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Peet Flagstone City Pty Ltd v Logan City Council[2016] QPEC 24

Peet Flagstone City Pty Ltd v Logan City Council[2016] QPEC 24

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Peet Flagstone City Pty Ltd v Logan City Council and anor [2016] QPEC 24

PARTIES:

Between

PEET FLAGSTONE CITY PTY LTD

(appellant)

and

LOGAN CITY COUNCIL

(respondent)

and

BLUESTONE MATTHEWS PTY LTD

(co-respondent)

FILE NO/S:

4263 of 2015

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8, 9, 11 September 2015, with further submissions received 2 October 2015[1]

JUDGE:

Rackemann DCJ

ORDER:

The appeal will be dismissed. The further hearing is adjourned to permit the parties to consider conditions of approval.

CATCHWORDS:

PLANNING AND ENVIRONMENT – submitter appeal against approval of a proposed service station and caretakers residence in a rural residential area – where appellant opposed to development which was outside its nearby development area – whether conflict with SEQRP – extent of conflict with the planning scheme – where proposal an inconsistent use – whether additional conflict by reason of out-of-centre development and impact on character – weight to be afforded new planning scheme – whether sufficient grounds – need – whether impact on centres planning and employment planning

COUNSEL:

D R Gore QC with B D Job for the appellant

M Batty for the respondent

C L Hughes QC with M Williamson for the co-respondent

SOLICITORS:

Cooper Grace Ward Lawyers for the appellant

Colin Biggers & Paisley for the respondent

Minter Ellison Gold Coast for the co-respondent

TABLE OF CONTENTS

  1. Introduction        Page 4
  1. The Proposal         Page 4
  1. The Conditions of Approval      Page 5
  1. The Locality        Page 6
  1. The Assessment Regime      Page 7
  1. The Issues        Page 8
  1. SEQRP         Page 9
  1. The Planning Points       Page 11
  1. (i)
    The inconsistent use point    Page 11
  1. (ii)
    The out-of-centre development point   Page 14
  1. (iii)
    The character point     Page 23
  1. Need and Impact       Page 30
  1. (i)
    Need for a service station     Page 30
  1. (ii)
    Would a service station on the subject site address the need? Page 34
  1. (iii)
    Alternative sites      Page 35
  1. (iv)
    Impact on centres planning and employment planning Page 43
  1. (v)
    Need and impact summary of conclusions  Page 47
  1. The Balancing Exercise      Page 48
  1. Conclusion        Page 49

Introduction

  1. [1]
    This appeal is against the respondent’s approval of the co-respondent’s development application to facilitate a new service station and caretaker’s residence at 1-11 Cusack Lane, Jimboomba. The appellant is the developer of other land in the broader area and opposes a service station at the subject site, which lies outside of its development area. The proposal is in conflict with the applicable planning scheme. It was approved by the respondent on the basis that there were sufficient grounds to justify approval notwithstanding the conflict. Those grounds included the respondent’s satisfaction that there is an overwhelming need to support a service station in this locality.

The Proposal

  1. [2]
    The proposed service station:
  1. (a)
    has a gross floor area of 223.9m²;
  1. (b)
    has an outdoor use and hard stand area of 1,455m²;
  1. (c)
    is to operate for 24 hours a day, 7 days a week;
  1. (d)
    has 4 bowser points and a point of sale (“shop”) offering basic convenience goods; and
  1. (e)
    is sited such that it is located in the north-western corner of the subject land, with a significant setback between the use and its eastern and southern boundaries.
  1. [3]
    The site cover for the proposal is modest, at less than 10%. The balance of the subject land is to be undeveloped, save for landscaping. Two vegetated buffers are proposed:
  1. (a)
    a 10 metre wide vegetated buffer along the southern boundary; and
  1. (b)
    a vegetated acoustic and visual buffer along the southern and eastern sides of the proposal, which will be well setback from the boundaries of the subject land.
  1. [4]
    A caretaker’s residence is proposed. It will be a detached single level three bedroom dwelling with a gross floor area of 199m².
  1. [5]
    The access to the proposal will be via:
  1. (a)
    a left-in and left-out access from Teviot Road; and
  1. (b)
    an all turns access from Cusack Lane.

The Conditions of Approval

  1. [6]
    The respondent’s approval of the development application was conditional. The conditions include as follows:
  1. (i)
    detailed landscape design drawings and documentation, prepared by a registered landscape architect are to be provided as part of an application for a compliance certificate (condition 3.6);
  1. (ii)
    landscaping is to be in accordance with the Council’s landscape development manual, consistent with the approved plans (condition 3.5);
  1. (iii)
    vegetation clearing is limited to the development footprint, save where clearing is permitted by exemptions in the planning scheme (condition 4.2);
  1. (iv)
    a vegetation clearing and management plan (VMP) is required and which is to include, amongst other things, a detailed ongoing rehabilitation and maintenance plan (condition 4.4);
  1. (v)
    a Site Based Rehabilitation plan (SRP), for vegetation replanting and rehabilitation is required (condition 4.8).

The Locality

  1. [7]
    The site is approximately 5km by road west of Jimboomba township, 1 km north-east of Flagstone Village, and 8.5km south of Greenbank Shopping Centre.
  1. [8]
    Cusack Lane is the primary east-west road connection between the Mt Lindesay Highway and Jimboomba to the east and Teviot Road and Flagstone to the west. It has a sealed dual carriageway. Teviot Road is a north-south road connection between Flagstone to the south and Greenbank (and other localities) to the north. It also has a sealed duel carriageway.
  1. [9]
    The intersection of Cusack Lane and Teviot Road has a number of design elements which together differentiate it from others, namely:
  1. (a)
    street lighting, so it is illuminated at night;
  1. (b)
    kerb and channel; and
  1. (c)
    line marking.
  1. [10]
    These features are consistent with the importance of the intersection in the road network. The intersection facilitates the movement of a significant number of vehicles travelling from the west (eg Flagstone) to or from Jimboomba which is, and is likely to remain in future, the major commercial and retail centre. Traffic volumes at the intersection are likely to increase as development occurs in the broader area.
  1. [11]
    As the joint report of the town planners noted, the Flagstone/Greenbank/Jimboomba area is part of a very wide-spread subregion that features extensive development commonly referred to as rural residential or park residential development. Large allotments of land in areas from 4000m² to 4 or 5 hectares extend across much of what was the northern part of the former Beaudesert Shire. Housing on large allotments with reasonable tree cover is the dominant physical context of the locality. As a consequence, the land use structure overall is at very low densities.
  1. [12]
    The Flagstone estate nearby features allotments at the lower end of the rural/park residential lot size range, but, in addition, is developing standard low-medium density housing. The existing Flagstone estate adjoins the greater Flagstone Priority Development Area (Flagstone PDA).
  1. [13]
    The Flagstone PDA was declared on 8 October 2010. It comprises 7,188 hectares and upon completion is expected to provide approximately 50,000 dwellings for up to 120,000 people. Development within the Flagstone PDA is regulated by the Greater Flagstone Urban Development Area development scheme. The PDA is composed of three separate “development areas”, including the Flagstone Development Area which is approximately 1 km to the south-west of the site (and also the Greenbank Central Development Area approximately 7km to the north and the North Maclean Development Area, approximately 5km to the north-east). Urban development has commenced as part of the Flagstone Estate and the PDA.

The assessment regime

  1. [14]
    The Application was made under the Sustainable Planning Act (SPA). It was impact assessable, and accordingly it is to be assessed pursuant to s.314 of SPA. That requires assessment against, relevantly, the SEQRP (where, as here, it is not identified as being appropriately reflected in the 2007 planning scheme) and also the Planning Scheme. The common material (including submissions received in relation to the development application) is also relevant to the assessment.
  1. [15]
    The development application is to be decided in accordance with ss.324 and 326 of SPA. The Court’s decision must not conflict with a “relevant instrument” unless there are sufficient grounds to justify the decision despite the conflict. A “relevant instrument” includes the SEQRP and the Planning Schemes. “Conflict” means to be at variance or disagree with. The term “grounds” is defined in Schedule 3. It refers to matters of public interest.
  1. [16]
    The Court is to decide the appeal based upon the laws and policies in force at the time the development application was made (which, in the case of the planning scheme, is the 2007 Beaudesert Shore Planning Scheme), but may give such weight it considers appropriate to new laws and policies (eg the 2015 Planning Scheme).
  1. [17]
    The co-respondent has the onus of proof of establishing that the appeal should be dismissed.

The issues

  1. [18]
    It is common ground that there is a degree of conflict between the proposal and the applicable planning scheme. The issues in the appeal primarily relate to the following:
  1. (a)
    The nature and extent of conflict with the relevant instruments, being
  1. (i)
    the South East Queensland Regional Plan (SEQRP);
  1. (ii)
    the 2007 planning scheme;
  1. (b)
    whether there are sufficient grounds to warrant approval of the application despite conflict; and
  1. (c)
    the weight to be given to the 2015 planning scheme.

SEQRP

  1. [1]
    The SEQRP is the pre-eminent plan for the SEQ region. Under that plan the site falls within the Regional Landscape and Rural Production Area (RLRPA). The Intent for such area is stated, in part, as follows:

“(it)… identifies land with regional landscape, rural production and other non-urban values. It protects this land for inappropriate development, particularly urban or rural residential development”.

  1. [2]
    The site is not within the Urban Footprint or within a centre. The appellant alleged conflict in that the proposal
  1. (a)
    does not protect land with non-urban values from inappropriate development;
  1. (b)
    does not make the most efficient use of land allocated for urban development; and
  1. (c)
    involves out of centre development and development that would detrimentally impact on activity centres.
  1. [3]
    The effect of the proposal on centres is dealt with later in the context of the planning scheme provisions. For the reasons discussed, I am satisfied that the proposal would have no significant adverse effect on any centre.
  1. [4]
    The effect of the proposal on non-urban values is also discussed later in the context of the ‘character point’. I am also satisfied that the proposal would have no undue impact in that regard.
  1. [5]
    Insofar as the location of the proposal within the RLRPA rather than the Urban Footprint is concerned, it would be surprising if the SEQRP did not envisage the prospect of some service stations along roads within that designation, given that service stations are, in general, not only found in centres, but along traffic routes. A closer examination of the RLRPA suggests that it does.
  1. [6]
    Regulatory provisions apply to the RLRPA. The SEQRP states that they, amongst other things, restrict urban development except within established villages, but that:

“The regulatory provisions support diversification of rural economies by allowing a range of developments, including:

 …

  • small-scale, industry and business activities”
  1. [7]
    Reference to the Regulatory provisions reveals that a service station, within certain parameters as to size (within which the subject proposal falls) is an urban activity which does not require referral agency assessment.
  1. [8]
    I accept, as was submitted for the appellant, that there is a distinction between the Regulatory provisions and the SEQPR and that removal of the need for referral agency assessment does not necessarily amount to positive support for service stations throughout the RLRPA generally or on any particular site within it, regardless of the provisions of the applicable planning scheme. It is however, difficult to conclude, in light of the provisions referred to, that service stations are necessarily considered by the SEQRP to be inappropriate development intended to be excluded from the RLRPA. There is no plainly identifiable conflict with the SEQRP. The regional plan is a relatively neutral consideration in the determination of this appeal.

The planning scheme points

  1. [9]
    The alleged conflicts with the planning scheme provisions of both the 2007 and 2015 planning schemes were summarised as relating to:
  1. (i)
    the inconsistent use point
  1. (ii)
    the out-of-centre development point
  1. (iii)
    the character point

(i) The inconsistent use point

  1. [10]
    The proposal is for an inconsistent use, within the meaning of that expression for the 2007 planning scheme. Sections 1.2.13 and 1.2.14 provide:

1.2.13 Consistent development

  1. (1) A consistent development is a development which is specified as a consistent development in a consistent development table for the locality (consistent development).
  2. (2) A consistent development is potentially consistent with the applicable localities and zones code and the relevant overlay and district codes.

1.2.14 Inconsistent development

  1. (1) An inconsistent development is a development which is not specified as a consistent development in a consistent development table for the locality (inconsistent development).
  2. (2) An inconsistent development is inconsistent with the applicable localities and zones code and the relevant overlay and district codes.
  1. [11]
    Pursuant to the 2007 planning scheme, the subject site fell within the Mt Lindsay Corridor Zone and the Rural Residential precinct.

The Specific Outcome and Prescribed Solutions for the Mt Lindesay Corridor Zone, (Table 3.2.11) provides:

Column 1

Specific Outcomes

Column 2

Acceptable Solutions – if Self assessable

Probable Solutions – if Code assessable

SO1 Development is limited to

development which is ‘Consistent Development’ as identified in Table 3.2.7 Consistent Development in the Mt Lindesay Corridor Zone.

S1.1 No Solution is prescribed.

  1. [12]
    Table 3.2.7, Consistent Development in the Mt Lindesay Corridor Zone provides for a service station and caretaker’s residence as follows:

Column 1

Development

Column 2

Consistent Development

Caretaker’s Residence.

Where in a Precinct other than the Conservation Precinct.

Service Station.

Where in the—

(a) Frame Precinct; or

(b) Mixed Use Precinct; or

(c) Minor Convenience Centre Precinct; or

(d) Industry Precinct.

  1. [13]
    It is common ground that the proposed service station development is not within one of the nominated precincts amounts to inconsistent development under the 2007 Planning Scheme. The proposed development is therefore in conflict with the 2007 Planning Scheme. The conflict is substantive rather than merely technical, as Mr Buckley (the town planner engaged by the co-respondent) described it. Senior Counsel for the co-respondent conceded that the conflict is significant.[2]
  1. [14]
    It was submitted, on behalf of the appellant, that the conflict, in this respect, is similarly clear in the case of the 2015 Planning Scheme, which is a matter of weight. Under that scheme, the site is included in the Rural Residential Zone and the Park Living Precinct. It was submitted, for the respondent, that the approach under the 2015 Planning Scheme is ‘softened’, because there is no designation of ‘consistent’ and ‘inconsistent’ development. Further, in the case of the Rural Residential Zone Code, s 6.2.13.2(a) speaks of the purpose to ‘predominantly’ provide for dwelling houses on larger lots, admitting of the prospect of development for other purposes.
  1. [15]
    The difficulty in accepting the “softening” (at least as it applies to this site) is that in s 6.2.13.2(3) the purpose of the Rural Residential Zone Code is said to be achieved through certain overall outcomes which include the following, in the case of the prevailing Park Living Precinct

“(e) in the Park living precinct:

  1. (i)
    land use comprise Caretakers accommodation, Dual occupancy auxiliary unit, Dwelling house, Emergency services, Home based business or Sales office

…”

  1. [16]
    It was pointed out, on behalf of the respondent, that this is a list of only the code assessable development (which is encouraged) and ought not to be taken as discouraging impact assessable development. The plain meaning of the words used however,(ie what land use will “comprise”) suggests discouragement of other uses. That is reinforced by PO1 and its acceptable outcome which relevantly provide:

Performance outcomes

Acceptable outcomes

PO1

A use in the Rural residential zone is for uses identified in:

…

c) section 6.2.13.2(3)(e)(i) overall outcomes for the Park living precinct;

AO1

A use in the Rural residential zone is for uses identified in:

…

c) section 6.2.13.2(3)(e)(i) overall outcomes for the Park living precinct;

  1. [17]
    That the performance outcome is as restricted as the acceptable outcome in terms of the identified uses, suggests that the intention is to confine non-conflicting land use to the list in s 6.2.13.2(3)(e)(i). I accept that the ‘inconsistent use’ point is also valid for the 2015 scheme.

(ii) The Out-of-Centre development point

  1. [18]
    The appellant does not contend that service stations can only be located within a centre, since the 2007 Planning Scheme anticipates such development also within an Industry precinct in the Mt Lindsay Corridor Zone. The focus of its argument however was that the proposed development:
  1. (a)
    does not maintain and consolidate the existing and planned structure of urban centres;
  1. (b)
    would amount to out-of-centre development; and
  1. (c)
    would compromise the network of planned centres (particularly at Flagstone).
  1. [19]
    The appellant pointed to a number of provisions of both the 2007 and 2015 planning schemes which provide for a network of centres, to provide for the needs of the community (including residents of the rural residential area), and which discourage the location of what would otherwise be centre activities in stand-alone non-urban locations in the Rural Residential or Park Living precincts. In this regard, the appellant placed reliance on the following provisions of the 2007 and 2015 planning schemes:
  1. (a)
    the 2007 PS:

i. Desired Environmental Outcome (DEO)2(j);

ii. Strategic Framework ss.2.2.5(2), 2.2.5(3). 2.2.6(1) to (4);

iii. Overall Outcomes for the Mt Lindesay Corridor Zone OO8, OO23, OO27 and OO47 to OO51;

iv. Specific Outcomes for the Mt Lindesay Corridor Zone SO1 (s.3.2.11);

  1. (b)
    the 2015 PS:

i. the Strategic Framework in ss.3.3.5.1(2) and (3), 3.5.1, 3.5.3(1) and (3), and 3.5.8(1);

ii. the Centre Zone Code and particularly s.6.2.1.2;

iii. the Rural Residential Zone Code and particularly s.6.2.13.2(3) and PO1.

  1. [20]
    Mr Buckley and Mr Ovenden (the town planner engaged by the respondent) were of the view, from a town planning perspective, that there is a need for flexibility in the siting of service stations. Indeed, Mr Buckley described service-stations as one of the most ‘location-flexible’ land use types. Whilst acknowledging that many centre designations anticipate service stations, he pointed out that, from a general town planning perspective, there is no imperative that they only be located in centres and that there are many examples of such facilities locating out-of-centre, but on significant roads where they offer ease of access and proximity to custom. As the economists agreed, in their joint report, service stations generally fall within one or more of 3 categories, namely those located on heavily trafficked roads, those in centres and those associated with a supermarket. As Mr Duane attested,[3] this reflects the fact that “people buy fuel in different ways and at different times”, that people do not necessarily combine the purchase of fuel with other types of shopping and that travel patterns are important in decisions about where fuel is purchased. As has been noted, the SEQRP contemplates the prospect of service station development in the RLRPA. None of that however, warrants ignoring the planning scheme provisions or downgrading the assessment of the extent of conflict with those provisions to the extent that the subject location is in conflict with them. 

2007 Planning Scheme

  1. [21]
    DEO 2(j) is that development “maintains and consolidates” the existing and planned scheme of urban centres, which consists of Beaudesert (as the principal rural centre), a number of centres for local employment opportunities, including Jimboomba, and a number of centres for local convenience services, including at Homestead Drive. The proposal is not within a centre and, to that extent, does not ‘maintain and consolidate’ any centre. The effect which the proposal would have on centres is discussed later and, for the reasons given, the proposal would, I am satisfied, have no undue impact on any centre.
  1. [22]
    The appellant relies on a number of provisions of the ‘Strategic Framework’, namely 2.2.5 (2) and (3) (which are part of the ‘broad strategies for the Shire”) and 2.2.6 (1) to (4) (which are part of the Local Strategies for the Mt Lindsay Corridor Zone). These are within Part 2 of the planning scheme which is said to provide “an explanation of the Strategic Framework, which is the vision for the Local Government Area”. Section 2.2.2 of 2007 planning scheme provides that:

“part 2 (Strategic Framework) does not have a direct role in the assessment of development under the Planning Scheme”

  1. [23]
    It is difficult to see why a development application should be found to conflict with a planning scheme, so as to trigger s 326 of SPA, by reference to provisions which the planning scheme itself says have no direct role in development assessment. My overall conclusion would not however, alter, even if those provisions did apply. The particular provisions reference to which was made relate to a pattern of townships, villages and centres to serve local convenience needs of rural residential areas. That planning strategy is evident from other provisions of the planning scheme. As has already been noted, the proposal is not within, nor does it positively support any such centre, although, for the reasons given later, it would have no undue impact on any such centre.
  1. [24]
    The Mt Lindsay Corridor Zone Code applies. S 3.2.8(c) provides as follows:

“3.2.8 Compliance with the Mt Lindsay Corridor Zone Code

Development complies with the Mt Lindsay Corridor Zone Code if in the case of –

(c) impact assessable development, there is compliance with the Specific Outcomes with the Mt Lindsay Corridor Zone Code and the purpose of the Mt Lindsay Corridor Zone Code being the Overall Outcomes for the Mt Lindsay Corridor Zone.”

  1. [25]
    There are 64 Overall Outcomes, eight of which the appellant relies upon in relation to the out-of-centre development point. As to those:
  1. (i)
    008 requires development to be located, designed and managed to, amongst other things, consolidate areas of existing urban development.  The proposed development does not consolidate with existing urban development;
  1. (ii)
    0023 provides that development involving, amongst other things, retail uses may be supported where the total gross floor area (existing and proposed) does not exceed a certain amount for certain locations or at a minor convenience centre.  The proposal is not in one of those locations or in a minor convenience centre;
  1. (iii)
    0027 requires urban development to be established in identified urban village areas.  The subject site is not within such a village;
  1. (iv)
    0047 to 0051 relate to development within the Town Centre Core precinct, Frame precinct, Mixed Use Precinct, Minor Convenience precinct, and Industry precinct.  The subject site is not within those precincts.  It is, instead, within the Rural Residential precinct which is the subject of 0054 which is said to cater “principally” for rural residential activity. 
  1. [26]
    The appellant also relies upon specific outcome SO1 of the Zone Code to which reference has already been made in relation to the inconsistent use point.

2015 Planning scheme

  1. [27]
    The 2015 Planning Scheme also contains a Strategic Framework. As to those provisions relied upon by the appellant for the out-of-centre development point are concerned:
  • Section 3.3.5.1(2) provides that the RLRPA are to access community infrastructure and services from the Urban Footprint, whilst sub-section (3) provides, in particular, that rural communities are to access urban services, including retail uses, from rural towns in the Urban Footprint and that these services are not to be provided in the RLRPA.  The proposal is for a retail service, to be provided within the RLRPA. The 2015 planning scheme does not appear to be as flexible as the SEQRP in relation to the location of service stations
  • Section 3.5.1 is the strategic outcomes for centres.  It provides for a hierarchy and network of interrelated centres, which the subject site does not fall within but which, for the reasons discussed later, will not be prejudice by the proposal.
  • Section 3.5.3 relates to the major centres, including Jimboomba, which is to provide, amongst other things, uses that support the surrounding rural and rural residential community.  The subject site proposal would, in part, support the surrounding rural and rural residential community but is not within Jimboomba.  It would not however, have any significant impact upon the intended role or function of the major centre at Jimboomba.
  • Section 3.5.8 (1) requires centre activities (other than on an Accommodation activity) to be located in a centre, be consistent with the intent of the centre and be at a scale compatible with the role and function of the centre in the centre hierarchy, unless:
  1. (i)
     there is community need and economic need for the use.
  1. (ii)
     the use is of a scale compatible with its role and function in the centre hierarchy.
  1. (iii)
     use does not have unacceptable adverse effects on any existing or planned centre.
  1. (vi)
     the use:
  1. (A)
     cannot be located in a principal centre, major centre, district centre, local centre or neighbourhood centre;
  1. (B)
     is located in the specialised centre zone, or in an employment area where it cannot be located in a specialised centre; or
  1. (C)
     has a specific locational need requiring its location outside the centre and the use is located in accordance with this specific locational need.
  1. [28]
    There was a debate about whether that provision applies. The heading to s 3.5.8 is “Element – New and expanded Centre”. The proposal, for a standalone service station, without a cluster of other uses (eg a fast food establishment and other uses) could not be regarded as constituting a new or expanded centre. As was pointed out for the appellant however, sub-section 1, on its ordinary meaning, requires centre activities to be located in a centre. The proposed service station is a type of activity which the planning scheme envisages will be accommodated in centres and its proposed location on the subject site is not in-centre. As to the tests in s 3.5.8(1)(B) are concerned:
  1. (i)
    For the reasons which are set out later, I am satisfied that there is both a community and an economic need for the use
  1. (ii)
    The requirement for the use to be of a scale compatible with its role and function within the centre hierarchy would not appear to be one that can be sensibly applied to the location of a use outside of a centre (since an out-of-centre location has no role in the hierarchy), but the subject development is of an appropriate scale for its purpose and will not prejudice the centre hierarchy
  1. (iii)
    For the reasons given later the proposal would not have unacceptable adverse effects on any existing or planned centre. 
  1. (iv)(A) There is an existing approval at Flagstone Village but, for the reasons given later, it is unlikely to proceed, at least within its current life. There are also opportunities in the Flagstone Frame Area but, for the reasons given later, they are unlikely to be realised in the short term. That said, it is at least theoretically possible to locate a service station within a centre in the agreed trade area. There are existing service stations in Jimboomba, although that is beyond the agreed trade area.

(B) The proposal is not within a specialised centre zone or in an employment area of the type referred to;

(C) whilst the proposed location offers obvious advantages for a service station seeking to address an identified need and whilst it is unlikely that the need will otherwise be addressed, in a timely way, by the alternative in-centre sites discussed later, it cannot be said that a service station is a use of a kind which has a specific locational need which requires, in the sense of necessitating, its location outside of a centre. As has already been noted, Mr Buckley and Mr Ovenden spoke of the location flexibility of service stations. 

  1. [29]
    It was submitted, on behalf of the appellant, that a conclusion s 3.5.8.1(1)(b) is unsatisfied, tells strongly against approval. Reference was made to Stradbroke Island Management Organisation Inc v Redland Shire Council,[4] where Davies JA and Mullins J regarded the statutory discretion to approve notwithstanding conflict to be at least influenced by if not dependent upon.[5] The ability of the applicant for development approval to demonstrate the substance of the matters required to be established by a planning scheme provision permitting discretionary retention of nominated development standards. It must be remembered however, that s 3.5.8 is part of the 2015 Planning Scheme. The subject proposal is to be decided under the 2007 scheme. It is only conflict with the 2007 scheme which attracts s 326 of SPA. The 2015 scheme is a matter of weight only. As Senior Counsel for the appellant effectively acknowledged,[6] the approach in the Stradbroke Island case is not, in the circumstances, directly applicable. That is not to say however, that s 3.5.8.1 should not be given some weight.
  1. [30]
    The Rural Residential zone code applies to development on the subject site. Its purpose (s.6.2.13.2) is to be achieved through the overall outcomes for particular precincts. As is already been observed in the context of inconsistent development point, those provisions do not contemplate development as proposed within the precinct.
  1. [31]
    Reference was made to the Centre Zone Code. S 6.2.1.2 provides that the purpose of the zone code is to, amongst other things, protect the centre hierarchy and to provide a vibrant mix and intensity of uses. The purpose will be achieved through overall outcomes which include that the development protects the Centre hierarchy by, amongst other things, being development that is located in the Centre zone. The subject proposal is not in that zone although, for the reasons given later, will not have any significant adverse impact upon the Centres hierarchy or the vibrancy or intensity of any element of it.
  1. [32]
    Insofar as the out-of-centre development point is concerned, the proposal is for a commercial activity in a rural residential area. It is not proposed for a site which is within, or which consolidates with or expands upon, any centre. It is out-of-centre development, although for the reasons discussed later, it would not compromise or significantly adversely affect the network of planned centres or any element of it.

(iii) The character point

  1. [33]
    It was submitted, for the appellant, that the proposal involves fundamental conflict with provisions of both the 2007 and 2015 planning schemes which intend to preserve character and identity. In particular, it was submitted that,

“a 24 hour, illuminated, commercial use which depends upon the attraction of custom from passers-by, use such as is proposed is the antithesis of what the planning schemes intend for this rural residential, RLRPA, locality”.

  1. [34]
    The provisions relied upon were as follows:
  1. (a)
    In the 2007 planning scheme:
  1. (i)
    DEO1(c), which is a broadly worded provision relating to the landscape character of the Shire and the conservation of significant vegetation. This proposal would not undermine that broad objective.
  1. (ii)
    DEO(2)(k), which seeks to maintain and enhance the distinctive character of townships and villages. The proposal is not in in a township or a village, nor would it undermine the distinctive character of such a place.
  1. (iii)
    DEO2(l), which requires development to be of a scale, form and intensity appropriate for the locality unless there is overwhelming community and economic need. The proposal is obviously not simply a house on a large lot, but does consist of single storey, relatively modest, buildings of their type within a development which occupies a relatively small proportion of a large site. As Mr Ovenden pointed out, the rural residential precinct does have some non-residential uses. Neither Mr Buckley nor Mr Ovenden saw the scale, form or intensity of the proposal as inappropriate. Mr Forsyth (the town planner engaged by the appellant) did not see a 24/7 commercial operation as within reasonable expectations, but volunteered, in the joint planning report that “I am of the opinion that the building design and layout of the facility on the subject site is not a matter that will determine whether it is suitable on the subject land”.  I am satisfied that the scale, form and intensity of the development will not have any adverse impact in terms of the locality. To the extent that there remains a level of conflict with this provision, the approach in the Stradbroke Island case becomes more relevant, since the provision is part of the 2007 planning scheme pursuant to which this development application is to be decided, but I am satisfied, for the reasons given later, that there is an overwhelming community and economic need, such that the exception to the requirement is satisfied.
  1. (iv)
    Strategic framework s.2.2.5(2) and s.2.2.6(5) require, amongst other things, that rural and semi-rural character is to be maintained by a pattern of townships and development is located in a manner that preserves landscape character along major traffic routes and where practicable retains the existing vegetation in rural residential areas to reduce the appearance of urban settlement.  The proposals is to be conditioned to minimise clearing and to require landscaping.
  1. (v)
    Mt Lindsay Corridor Zone Overall Outcome 008, which requires development to be located, designed and managed to enhance landscape character (a matter discussed later) and to be compatible with other existing and proposed development and 0063 which requires development to be of a scale, form and intensity which is intended in the zone and consistent with reasonable expectations. The site cover of the proposed development is modest, leaving the majority of the land underdeveloped, save for landscaping. The co-respondent proposes landscaping and by approval will be conditioned to ensure that is appropriate to existing landscape character.  Whilst the proposed service station differs from other development in the locality it will not be incompatible with it. The scale, form and intensity of development has been discussed in the context of DEO 2(1). Insofar as reasonable expectations are concerned, it has already been noted that the planning scheme does not contemplate a service station at this location, and so is not to be expected.  The co-respondent placed some reliance on the fact that a service station has been approved and developed elsewhere, with the same zone, in North McLean, but that does not create a reasonable expectation of further approvals. Leaving the nature of the use to one side, however the scale, built form and intensity of this particular proposal does not substantially depart from reasonable expectations.
  1. (vi)
    Mt Lindsay Corridor Zone specific outcomes: SO1 - to which reference has already been made, and SO48, which requires development to be consistent with the scale, from and intensity of development in the zone (matters already discussed).
  1. (vii)
    Specific outcome for the rural residential precinct SO1, which provides that development is to provide for “predominately” low density rural residential activities on large acreage lots, SO2 which requires development to maintain a park living and “predominately” vegetative character; tree clearing to be minimised and for landscaping to be implemented; SO4 which requires development to have a building set back consistent with park living character (the setbacks here to adjoining development are generous), and SO7 which requires non-residential development to:
  1. (a)
    Reflect the type form, scale and density of development elsewhere in the Precinct (matters discussed elsewhere); and
  1. (b)
    Provide a built setback and landscaping which are consistent with existing and planned development in the Precinct (the setbacks are appropriate and the development is to be landscaped); and
  1. (c)
    Provides a parking area on the premises that addresses the road – but does not adversely impact upon adjacent Rural Residential uses (the development is focused on the intersection and will have no undue impact on adjacent Rural Residential uses); and
  1. (d)
    Provide adequate screening and/or amenity planting or landscaping along any boundary to an existing Rural Residential use (the proposal satisfied this requirement).
  1. (viii)
    The service station code SO2, which requires development to be consistent with the character of the surrounding area (a matter otherwise discussed).
  1. (b)
    The 2015 planning scheme:
  1. (1)
    The strategic framework, s 3.3.1(4), which states that the  RLRPA is to be an expansive non-urban area with an nonurban character. S 3.3.5.1, which provides that the RLRP has a non-urban character defined by rural, rural residential, tourism, environmental and outdoor recreation uses, the predominance of natural landscape over buildings and structures and limited, dispersed buildings and structures that are integrated with the natural landscape. 3.11.3(1)(c) provides that, in rural residential locations, the level of amenity is commensurate with a rural residential environment where, amongst other things, there are very low density living environments with low level visual amenity impacts.
  1. (2)
    Rural Residential Zone Code s 6.2.13.2(1),(2) and (3)(a) and (e), which speak of the propose of the zone code in predominately providing for dwelling houses on larger lots and development in a  semi-rural, landscape or bushland setting and protecting  rural residential amenity.  That is to be achieved through overall outcomes which include requiring a design of built form, which amongst other things, is compatible with the semi-rural, landscape or bushland setting and where that setting predominates over the built form.  In the Park Living precinct in particular, development is to have a landscape or bushland setting.
  1. [35]
    As has already been noted, a service station use is not provided for on this site or under the relevant zones and designations under either the 2007 or 2015 planning schemes. A service station operating 24 hours per day, 7 days a week, is obviously development of a different kind and character to a large lot residential use. The use is one which relies on visual exposure to the passing traffic and its nature will be apparent. This particular proposal on this particular site however, would not, in my view, have any significant adverse impact in relation to character of the rural residential or park living locality as a whole.
  1. [36]
    This particular proposal is for a relatively small scale service station, with a complementing caretaker’s residence, each of which is single level development. It has a low site cover on a large site, leaving a relatively large balance area giving ample separation from adjacent rural residential development, and affording opportunity for landscaping (as will be required by the conditions of any approval) to address impacts on amenity and landscape character. It has already been noted that even Mr Forsyth said in the joint report that the building design and layout of the facility on the subject site is not a matter which will determine whether it is suitable on the subject land.
  1. [37]
    The development is not to be located within the heart of a sleepy rural residential laneway, but rather at the corner of a busy intersection of 2 significant traffic routes. Not only is the intersection busy, and likely to get busier, but has, as has already been noted, a number of design features, which distinguish it from other intersections and give it a character, including a night time character, which is more urban than the type of intersections more commonly found in rural or rural residential areas. Further, the development, including the service station and associated paved areas is, understandably, to be focused on that part of the site which is adjacent to the busy, lit intersection, with the balance to be undeveloped save for landscaping.
  1. [38]
    As Mr Buckley attested,[7] the character along traffic routes varies from place to place and the character at this location is influenced by the above matters.  As Mr Buckley also attested,[8] the impact of this proposal on character is quite different at this location than it would be on a site at the end of a rural or rural residential cul-de-sac accessing four 10 acre lots. 
  1. [39]
    I am satisfied that this particular proposed service station, in its particular context at a busy major intersection within a broader rural residential setting, will not present as particularly incongruous with, nor have any significant adverse impact on, the rural-residential or landscape character of the locality. In that regard, I accept the evidence of Mr Buckley and Mr Ovenden to the effect that the proposal would not only maintain amenity but, whilst not itself being of a rural residential character, would not detract from the existing or planned character of the surrounding area. I am also satisfied that it would not be inconsistent with the maintenance of appropriate landscape character along the traffic route.
  1. [40]
    I am satisfied that, to the extent that there remains a degree of conflict with the text of the planning scheme documents in relation to character, assessment of the subject proposal, in its context, leads to the conclusion that the textual conflict would not be accompanied by significant adverse impact.

Need and Impact

(1) Need for a service station

  1. [41]
    There is a clear need for a service station within the identified trade area to address a need which has existed for some time and which continues to grow in strength.
  1. [42]
    As appears from the economists joint report:
  1. (a)
    Service stations are typically provided at a rate of 1 per 4000-5000 metropolitan or city based residents in Australia and the provision in Logan City as whole is in line with that.
  1. (b)
    The trade area which would be served by the subject proposal is composed as follows:
  1. (i)
    The primary sector, to the east of the railway line, including existing development around Flagstone and bounded by the Logan River to the east and south; and
  1. (ii)
    The secondary sector, on the western side of the railway line, which does not have any residential population, but which is designated for major growth.
  1. (c)
    The trade area population is estimated at 6,480 persons as at 2014 with a projected increase to 23,650 persons by 2026, at an average annual growth rate of 1,430 persons or 11.4% over the next twelve years.
  1. (d)
    The population is sufficient to support at least one new service station now, given that there are currently no service stations within the trade area.  Indeed, there has been a sufficient population base to support a service station for some years.
  1. (e)
    Vehicle ownership levels in the trade area are high (2.3 vehicles per household compared with 1.7 in Brisbane) reflecting its outer suburban location.
  1. (f)
    As a consequence of the location, residents travel significant distances outside the local area for work, due to a lack of jobs within the immediate vicinity and also undertake significant travel for shopping, education and leisure activities.
  1. (g)
    Total fuel consumption by the population of the trade area is some 9.9 million litres, which equates to the volume of three average service stations.
  1. (h)
    All existing service stations are outside the trade area and are more than 5km from the subject site and even further from the majority of residents in the trade area, although some residents would be closer to facilities in Jimboomba.  In that regard:
  1. (i)
    There is a Woolworths branded outlet in the carpark of the Greenbank Shopping Centre;
  1. (ii)
    There are two service stations at North Maclean, which serve passing traffic along the Mount Lindsay Highway;
  1. (iii)
    There are a range of service station facilities at Jimboomba, but they lie about 5.5km to 6.5km from the subject site.
  1. [43]
    Mr Owen, the economist engaged by the appellant, pointed out that a lack of standard retail service facilities (including service stations) is not unusual in a newly developing area until the population is sufficient to support services and facilities. In this case however, as Mr Duane pointed out,[9] and Mr Owen conceded,[10] the population is, and has been for some time, at a sufficient level to support a service station facility.  Mr Owen was prepared to concede that the need has not only just arrived,[11] but has been present for at least five years.[12]  There is a case for the need having been present for much longer, since the trade area population has exceeded 5,000 since 2006, but it is unnecessary to resolve that issue, as on either view, the supply of service station facilities in this trade area has been deficient for some years.
  1. [44]
    It was submitted on behalf of the appellant that those who live in rural residential areas purchase with their eyes open and are prepared to “trade off” a lack of services for lifestyle. There is some truth in that in a general sense, but the trade area is not exclusively made up of rural residential areas. Indeed, as Mr Owen himself pointed out,[13] a significant proportion of the western part of the trade area includes development at urban densities. In any event, the general observation does not, in my view, negate the need, in fact, for something as basic as convenient access to fuel for a heavily car dependent community of this size. 
  1. [45]
    It was also submitted, on behalf of the appellant, that the agreed trade area is “an artificial construct of the experts” and reference was made to cases where existing facilities were not found to be inadequate.[14] It is obvious that, in the absence of an outlet within the trade area, residents have had to access service stations elsewhere. It is also apparent that residents will, from time to time, pass fuel outlets, beyond the trade area, in the course of their travels. There is no particular criticism of any of those outlets, but the vehicle dependent community which makes up the trade area is well and truly of a sufficient size to warrant the provision of at least one service station conveniently located within the trade area itself. The provision of such a facility within close proximity to their houses would, as the economists agreed, be of benefit to them. Mr Owen confirmed, in his testimony, that the catchment needs a service station and that it should have one within the catchment.[15] It is reasonable to expect that such a facility would be provided to such a community and, in the circumstances, the absence of a conveniently located facility within the trade area is, I am satisfied, a deficiency which speaks of a need.
  1. [46]
    The subject site has attracted interest from 7-11, a significant independent operator. In particular, by letter dated 6 May 2013, 7-11 submitted proposed terms and conditions for the co-respondents consideration. That was said to be conditional on, amongst other things, a satisfactory development approval being obtained. The subject appeal has, of course, meant that there is, to this point, no effective development approval. There is no evidence of further progress in the arrangements between the co-respondent and 7-11. If the proposal were operated by a significant independent such as 7-11, then some further benefit, in terms of competition, may be realised, but I have put that to one side, given that the identity of the operator is not certain at this point. That does not substantially reduce the strength of the need case. Mr McCracken confirmed that, while he assumed 7-11 would be the operator, his evidence would be the same for whoever the operator was.[16]
  1. [47]
    I have no hesitation in finding that there is, and has for some years been, a strong need for at least one service station to be developed at a convenient location within the trade area. There will be a need for others too, over time, to serve this significant, growing, car dependent but service station poor population.

(ii) would a service station on the subject site address the need?

  1. [48]
    The subject site is well located to address the identified need. It is conveniently located within the trade area catchment, on a significant intersection through which residents would travel on a regular basis as part of their normal pattern of movement. Indeed, in his trial report, Mr Owen referred to Cusack Lane and Teniot Road in the following terms:

“These roads are important as they are the most convenient and direct routes to retail, employment and recreational facilities for the majority of the trade area population.”

  1. [49]
    Similarly, Mr Duane’s testimony was that:[17]

“…this site is almost like a funnel where traffic has to bypass the site coming to and from the residential development within this area both in the primary and secondary catchments.  It therefore has a high level of exposure, has a high level of accessibility, which is attractive to the retailers or the service station retailers, but that is, in effect, its attractive to them because its attractive to how people purchase their fuel off major roads.”

  1. [50]
    That the site is not in a centre does not detract from its convenience or accessibility. Whilst there are some benefits of co-locating a service station within a centre, as Mr Duane pointed out, it is not at all uncommon for service stations to be found on major roads, where they can conveniently serve those whose pattern of travel takes them past those outlets.
  1. [51]
    As Mr Owen readily acknowledged,[18] the site is an attractive one and, indeed, a “very good location”[19] for service station development and is convenient to almost all, if not all, of the trade area population.[20] 
  1. [52]
    I am well satisfied the service station at the subject site would address the need.

(iii) alternative sites

  1. [53]
    It was contended, for the appellant, that there is no need, this time, for approval for the subject site, given “in centre” opportunities otherwise. Mr Owen’s evidence focused on his preference to see service station development occur in the context of other development at Flagstone, rather than on a free-standing site such as the subject site. In his testimony, he said:[21] 

“I believe that there is market demand for it that would support a service station. The benefit to the community that would accrue by putting the service station in one of the two designated activity centres outweighs this site. To me this site makes sense… when it can be shown that a service station couldn’t be accommodated in one of the existing activity centres”.

  1. [54]
    Attention focused upon an existing approval within the Flagstone Village, on a proposal by Coles to develop a Coles branded site as part of a supermarket in the Flagstone Centre frame area as well as on an intention by the appellant to market another site within the centre frame area as being suitable for a freestanding service station.
  1. [55]
    It was pointed out that service station development in Flagstone would also be convenient for at least much of the trade area. Mr Owen pointed out[22] that the western part of the trade area, in or proximate to Flagstone, has been mainly developed at lower densities, and so contains the majority of the population of the agreed trade area. It is also the part of the catchment which will be the focus of future growth.
  1. [56]
    There are parts of the trade area (including to the east) for which a facility in Flagstone would not be as convenient.[23] The Flagstone centre frame is at the western extremity of the trade area population. The subject site is more convenient to the trade area as a whole.[24] The opportunities for the provision of service stations within Flagstone are however of a relevant consideration.
  1. [57]
    Flagstone Village is an existing convenience centre located on the corner of Homestead Drive and Bushman Drive and has an approval to expand. There is also an existing development approval for a small service station with three bowsers and a shop/point of sale component of some 90m2 gross lettable area.  That could, theoretically, address the need to some extent although, as Mr Duane pointed out,[25] the proposal is small, would not offer a 24 hour convenience shop, and has a shared access which is not as convenient as the subject proposal.
  1. [58]
    The owner of the Flagstone Village made a submission to the Council objecting to the subject proposal on grounds which included reference to the service station approval at the village. That entity instituted an appeal to this Court against the subject approval but withdrew that appeal. A submission was also made to the Council by the owner of the approved service station site, but that entity did not appeal Council’s approval.
  1. [59]
    On the evidence, one could have little confidence that the Flagstone Village Service Station approval will proceed within the current life of the approval or otherwise in the near term, if at all. In that regard:
  1. (i)
    The approval was granted on 7 May 2013 and there has been no sign of it being acted upon to date notwithstanding the need which has existed in the meantime.  The approval now has only about one year to run before expiry (subject to any extensions).
  1. (ii)
    There is no evidence that any existing service station operator has expressed interest in, far less committed to, the Flagstone Village site.
  1. (iii)
    The size of the shop component (at 90m2) is small.  That is significant because, as the joint report of the economists notes[26], service stations have an increasing reliance on revenues from nonfuel products, such as convenience sales.  Mr McCracken testified that, on average, nonfuel sales account for about 20% of turnover but 70% of the profit of a service station.  He regards the 90m2 of the Flagstone Village proposal as too small for a modern service station operator. I accept that evidence
  1. (iv)
    The site is directly opposite an IGA Express convenience store which is IGA’s smallest store.  The result is that any convenience store in the Flagstone Village proposed service station would not only be undersized, but would be competing with the IGA as well as with any supermarket that is developed within an expanded village.
  1. (v)
    The access to the service station is indirect and less convenient because it requires access to be taken through the existing centre, rather than directly from the road network.
  1. (vi)
    As Mr McCracken pointed out, any potential operator is likely to be concerned that a Coles branded service station is now proposed for the Flagstone Town Centre frame (a matter discussed later).
  1. [60]
    Mr Duane and Mr McCracken spoke of the theoretical potential for the Flagstone Village service station to proceed, with its small shop, if it were a Coles or Woolworths branded outlet in the event that such an operator opened a supermarket in the Village.[27]  There is no such proposal at this stage. Coles has recently committed to developing a supermarket in the Flagstone frame area rather than in the Village centre and, on a conventional assessment of demand, there would not be a need for another full line supermarket for some time.[28] 
  1. [61]
    Moreover, whilst the Flagstone village service station is currently approved it would appear, as Mr McCracken attested, that its prospects of being built and operated are low.[29]  I am satisfied, on the balance of probabilities, that it is unlikely to proceed in the near term.  Whilst the Court is ordinarily disinclined to grant a new approval which may prejudice the exercise an existing approval,[30] the circumstances of this case lead to the conclusion that allowing the as yet unexpired Flagstone Village approval to stand in the way of approval of the subject development is unlikely to lead to the timely satisfaction of the strong and growing public and community need for service station facilities in the trade area. Indeed, it is likely to prejudice it.
  1. [62]
    Other potential sites for service stations lie in the Flagstone PDA. There are ultimately to be a range of centres within that PDA. Attention focused upon the town frame area (stage 7).
  1. [63]
    Mr Tupicoff (project director for the appellant) gave evidence that lots within stage 7 are generally being allocated as follows for commercial uses:
  1. (a)
    Lot 25000 – supermarket
  1. (b)
    Lot 25001 – sales office with ancillary coffee shop
  1. (c)
    Lot 25002 – childcare centre
  1. (d)
    Lot 25003 – service station
  1. (e)
    Lot 25005 – medical centre
  1. [64]
    At the time of trial, the appellant was preparing sales tender documents for the childcare centre first. That was intended to be followed by the service station and medical centre suites. In the latter half of 2015 Coles committed to the purchase of proposed Lot 25000, with the intention of developing it for a full line Coles supermarket, specialty shops, a Coles branded fuel station and other complimentary uses.
  1. [65]
    The above developments are however, still at a relatively embryonic stage. As at the time of the trial the contract with Coles had not been executed, far less completed. There was no detailed design work for the proposal. Mr Tupicoff’s expectation was that the contract would proceed to settlement in mid-2016 with a “performance target” of an opening in 2018. Further, it is unknown whether the service station would open at the same time as the rest of the development. As Mr Tupicoff conceded in cross-examination, there is no prospect of a Coles Express service station opening at any time prior to 2018 and it may well be later, given that Coles are apparently contemplating staging the development.[31]  By that time, the growth in the population is such that there will likely be a need for a second service station in addition to that which the co-respondent wishes to develop.[32]  That is, the Coles Express proposal, assuming it proceeds, is unlikely to address the existing need in a timely fashion, although it may well address the need for a further service station.
  1. [66]
    The position with respect to a potential freestanding service station on Lot 25003, on the northern side of Homestead Drive towards its western end is even more embryonic. As at the time of trial there had been no tendered documents prepared for the sale, and whilst there has been some very preliminary communication with 7-11,[33] no prospective purchaser or operator given any level of commitment. 
  1. [67]
    In addition to the embryonic stage of the plans for a freestanding service station in the frame area, the site for which the appellant proposes to seek a buyer effectively leads to a dead end at the western end of Homestead Drive. The Homestead Drive access is anticipated to be lift-in/left-out heading eastbound, thus favouring traffic coming from the west,[34] although it may also have access to/from Wild Mint Drive. Development has not yet proceeded west of the railway line. As Mr McCracken attested,[35] an independent operator is unlikely to take that freestanding service station opportunity in the face of a Coles branded service station being proposed across the road, at least until a significant amount of residential development occurs to the west of the railway.  It is the realisation of substantial residential development to the west which is critical to the operation of a service station on that site.[36]  It is not an opportunity which is likely to be realised in the short term to address the current need in a timely way.
  1. [68]
    None of the above is to suggest that service stations will not ultimately be developed at Flagstone. There is to be significant growth in this area which will lead to the need for multiple service stations. It is reasonable to expect that there will be service station development within Flagstone. That being the case, there is some benefit, as Mr Duane pointed out,[37] in terms of convenience, for the residents in trade area to have a choice of locations within which to purchase their fuel, by having a service station on the subject site as well as within Flagstone. 
  1. [69]
    Ultimately, the alternatives to which reference was made, should not stand in the way of an approval of the subject development. While there will be need for multiple service stations in the future, for which the alternative sites may provide, there is a need which exists now and has existed for some years. The appellant has not realised development to satisfy that need in a timely way and is unlikely to be able to do so for some time, although it seeks, in the meantime, to prevent someone else from doing so. Refusing the subject development in the hope of future development within Flagstone is unlikely to lead to the timely satisfaction of the need which exists at this point in time.
  1. [70]
    It was submitted, for the appellant, that the Court could not have confidence the subject approval would be promptly acted upon particularly given the absence of evidence about any progress in the arrangements between the co-respondent and 7-11 in recent times. The Court cannot, of course, force anybody to develop their land. It can only facilitate that by granting an approval. In this case however, there is reason for confidence that an approval would lead to development to address the need.
  1. [71]
    The subject site and proposed development are not subject to the range of issues which apply to the alternatives. The proposal is, on any view, an appropriately sized and designed modern service station proposed for a site which has obvious attraction for a service station including with respect to its accessibility and exposure. It will trade to a population which is in excess of the size ordinarily required to support a successful service station and that population is both heavily car dependent and growing. Potential competition at Flagstone Village is unlikely to be realised in the near term and in respect of the Flagstone frame area, will not come to fruition for some time (with growth in the meantime approaching or reaching the need for 2 service stations) and is in a different location, consolidating with planned development in that area but not with the same road exposure as the subject.
  1. [72]
    I am well satisfied that there is a planning need to provide the subject approval so as to create the means for the timely satisfaction of the identified need.

(iv) Impact on centres planning and employment planning

  1. [73]
    Mr Owen was concerned that the provision of a service station at an out-of-centre location would not only fail to provide the economic benefits of colocation with other facilities in a centre, but would prejudice early employment incubation opportunities which are otherwise generated by the early establishment of attractive viable centres.
  1. [74]
    As to the benefits of co-location, I accept Mr Duane’s evidence[38] to the effect that there is not always a benefit to co-location in terms of fuel outlets. As has already been observed, some service stations are located close to other facilities whilst some are not.
  1. [75]
    As Mr Owen pointed out in his trial report, the task of providing sufficient employment opportunities in Flagstone is substantial and would be aided by several strategies, including the stimulation of demand, so that pioneering businesses and industries can attract other businesses. In this context, he saw the early development of the Flagstone frame centre as an important opportunity and regarded the location of the first service station at an out-of-centre location as a “critical employment planning failure”, notwithstanding that a service station, of itself, would only be a very minor contributor to employment (six to eight jobs).
  1. [76]
    Whilst the importance and magnitude of the task of providing sufficient employment opportunities may readily be accepted, as may be the importance of development in the Flagstone frame centre built for employment and for attracting people to live in the area, Mr Owen’s approach greatly overstates the importance of the location of the first service station in the area as being within Flagstone.
  1. [77]
    Firstly, the subject proposal is unlikely to delay, far less prejudice, the realisation of a service station component within Flagstone and the benefits that may bring in terms of the development of the centre as a whole. There will soon be a need for 2 service stations within the trade area and there will be need for more over time. Mr Duane conceded[39] that the ability to implement a service station at Flagstone Village would be delayed if both the subject proposal and the coles branded outlet proceeded, and Mr McCracken also accepted that there is potential for the proposal to prejudice whatever prospect there is for implementation of the Flagstone Village Service Station within the current life of that approval.[40] It has already been found however, that the approved service station at the Flagstone Village is unlikely to proceed, at least in the near term in any event. 
  1. [78]
    The subject proposal is unlikely to delay the provision of a Coles branded service station on Lot 25000. Coles committed to that site subsequent to the Council’s decision to approve the subject development and it is obviously associated with the proposed Coles supermarket which provides trade synergy.[41]  In any event no service station would open at that site until at least 2018 by which time the population will be approaching the level which calls for a further service station.  Any delay will be likely occasioned by Coles own decision as to when to develop its supermarket and when to sequence the inclusion of a service station within that development, rather than as a consequence of the approval of the subject development.
  1. [79]
    The proposal is also unlikely to significantly delay the realisation of a service station on Lot 25003. As has already been found, delay in realising that opportunity will have more to do with the proposed Coles Express and the realisation of residential development to the west of the railway line.
  1. [80]
    It may be noted that Mr Tupicoff’s testimony[42] was that approval of the subject proposal would not lead the appellant to abandon its intention to provide fuel outlets in this centre, although he was concerned about the consequences of a potential delaying effect.[43]
  1. [81]
    Secondly, insofar as the potential for pioneering businesses to attract others is concerned, as Mr McCracken attested,[44] a service station does not have the gravitas to act as a significant incubator of broader development.[45]  The key incubator or catalyst at Flagstone is likely to be the realisation of the proposed Coles supermarket.[46]  Such development is not only more substantial but is one where the operator can more easily afford to establish somewhat ahead of a market.[47] I accept Mr Duane’s evidence in the joint report[48]  that “in no way will the development  of a supermarket as an incubator tenant be impacted whether a service station proceeds in the frame area or not” and his testimony[49] that development of the supermarket will not be impeded by the subject proposal.
  1. [82]
    As was submitted for the co-respondent:

“The reality is that a service station is not an incubator or anchor tenant that has the level of draw or gravitas that other centre activities have, such as a full line supermarket.  A full line supermarket, such as the one proposed by Coles, would be the most important driver of the centre.  The subject proposal will not delay the development of the town centre frame with a full line Coles supermarket.

The timing for the development of a full line supermarket is driven by the population of the trade area, not the timing of the provision of a service station.  It is recognised that a population of at least 8,000 to 9,000 persons is required to support a full line supermarket.  The population of the agreed trade area will reach this level in 2018.

Put simply, a service station approved on the subject land will not compromise the development of the Flagstone town centre frame.  There are more important issues that impact on the timing of the development of that area – most important being:

  1. (a)
     the population and its capacity to support a Coles supermarket in the centre frame – which will be the catalyst for other traders taking up the centre; and
  1. (b)
     the population and the timing of development to the west of the town centre frame. 

The subject proposal does not affect either of those two considerations.”

  1. [83]
    There was criticism of the proposal as being “opportunistic” in that it seeks to provide development on a site outside Flagstone to service residents of Flagstone when the appellant has been investing in planning to serve those residents otherwise. It might be that the appellant, from its commercial perspective, sees the co-respondent as getting in under its guard, but the reality is that the opportunity arises not just because of the positive attributes of the subject site for a service station but because the existing public and community need is not currently being met and is unlikely to be otherwise met a timely way. As was submitted for the appellant, the subject proposal, if anything, “serves the growing population until the appellant and its tenants or purchasers move to provide facilities required by the community”. As has been noted, projected growth will provide plenty of potential for service station development in the future within Flagstone in any event.
  1. [84]
    There was no real suggestion of significant impact on other elements of the centre hierarchy.[50] As Mr Buckley opined in the joint report:

“The proposal represents a relatively small scale service station that is well located to service the community. Its scale and the fact that the proposed use is confined to a service station only (and caretakers residence) and not a freestanding retail or fast food outlet on the same site means that its approval will not result in a de-facto local centre being established at this location and it will not unreasonably detract from or frustrate the orderly growth of the existing and planned centres in the wider area.”

(v) Need and impact summary

  1. [85]
    For the reasons discussed I find that:
  1. (a)
    There exists a clear, strong and longstanding need for a conveniently located service station to serve the population of the agreed trade area;
  1. (b)
    A service station at the subject site would address that need;
  1. (c)
    There can be no confidence that the alternative sites, to which reference was made, would meet the identified need a timely way, in the event that the subject proposal were refused;
  1. (d)
    The realisation of the subject proposal would not rob the appellant of the opportunity of realising service station development in Flagstone.  The expected growth will create the need for multiple service station developments over time;
  1. (e)
    The proposal, if approved, would not compromise the development of Flagstone Village, Flagstone Town Centre frame or, for that matter, any other existing or planned centre.

The balancing exercise

  1. [86]
    For the reasons given, I accept that there is conflict with the 2007 Planning Scheme. In broad terms, that conflict arises because the proposal is for a use which the Planning Scheme regards as inappropriate in the prevailing zone, is for a commercial (retail) development in a rural residential area, rather than within a centre or in a location which otherwise consolidates with urban development and is of a nature and character which is different from the character of development which is intended to predominate in the rural residential area.
  1. [87]
    The level of conflict is, I am satisfied, significant. It is greater than assessed by Mr Buckley or Mr Ovenden. In this case however, the conflict is not accompanied by any consequent undue impact. When the proposal is assessed on its merits, and in context, there is no undue impact likely to arise in terms of amenity, character, the centres hierarchy, the planning for Flagstone or, indeed, in any other respect.
  1. [88]
    In the circumstances, it is the strong and, in my view, overwhelming, economic, public and community need, which the subject proposal would address, but which is unlikely to be addressed in a timely way otherwise, which ultimately tips the balance in favour of approval notwithstanding the level of conflict.
  1. [89]
    The 2015 Planning Scheme is deserving of some weight but that does not change the conclusion which is reached in regard to the Planning Scheme which applied at the time the application was made. The relevant planning strategies embodied within the 2015 Planning Scheme are not markedly different from those pursued in the 2007 Planning Scheme. Whilst the tests for out-of-centre development are, I accept, somewhat higher, and are not, in all respects, met by the subject application, it must be remembered that the subject application is being assessed under the 2007 Planning Scheme and the relevant provisions of the 2015 Planning Scheme are a matter of weight only. While I have given consideration to the 2015 Planning Scheme, including the tests for out-of-centre development, I am ultimately unpersuaded to give that decisive weight in the circumstances.

Conclusion

  1. [90]
    The appeal will be dismissed.

Footnotes

[1]The preparation of reasons for judgment were delayed, in part, due to an extended period of leave, including special leave following a medical incident.

[2]See Gillion Pty Ltd v Scenic Rim Regional Council [2014] QCA 21.

[3]T2-6.

[4](2002) 121 LGERA 390.

[5]See Davies JA and Mullins J at [105] and [109].

[6]T4-54.

[7]T3-20.

[8]T3-21.

[9]T2-7.

[10]T2-83 to 85.

[11]T2-84.

[12]T2-85, T3-2.

[13]Owen T.

[14]Prince Group Properties LPP v Caloundra City Council [1995] QPELR 146, Intrafield Pty Ltd v Redland Shire Council [(2001) 116 LGERA 350.

[15]T2-89. See also McCracken T 2-47.

[16]T2-73.

[17]T2-5.

[18]T2-83.

[19]T2-90.

[20]T3-2.

[21]T3-6.

[22]Owen T3-2 see also McCracken T 2-47.

[23]McCracken T2-47, 48.

[24]T2-89 l 14.

[25]T2-45.

[26]Para 16.

[27]T2-33, T2-51.

[28]See Owen, T3-4.

[29]T2-48, 49, 51, 59, 60, 61.

[30]Gold Coast Carlton Pty Ltd v Beaudesert Shire Council [1985] QPLR 343.

[31]T3-56.

[32]T2-86.

[33]T2-86, Ex 16.

[34]T3-58.

[35]T2-69.

[36]T2-70.

[37]T2-9 see also Owen T2-88, 89.

[38]T2-40, 41.

[39]T2-26, T2-33.

[40]T2-59, 60.

[41]T2-86.

[42]T3-60.

[43]T3-62.

[44]T2-50.

[45]See also Duane T2-7.

[46]T2-50.

[47]T2-50.

[48]Para 58.

[49]T2-78.

[50]There was some mention of the impact of retail (shop) sales of the service station, but that did not establish any likely impact of significance – see T2-78, 3-76, 7.

Close

Editorial Notes

  • Published Case Name:

    Peet Flagstone City Pty Ltd v Logan City Council and anor

  • Shortened Case Name:

    Peet Flagstone City Pty Ltd v Logan City Council

  • MNC:

    [2016] QPEC 24

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    20 May 2016

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
Gillion Pty Ltd v Scenic Rim Regional Council [2014] QCA 21
1 citation
Jump To
Cite 1 - [2014] QCA 21
Gold Coast Carlton Pty Ltd v Beaudesert Shire Council [1985] QPLR 343
1 citation
Jump To
Cite 1 - [1985] QPLR 343
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
1 citation
Jump To
Cite 1 - (2001) 116 LGERA 350
Prince Group Properties LPP v Caloundra City Council [1995] QPELR 146
1 citation
Jump To
Cite 1 - [1995] QPELR 146
Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Anor (2002) 121 LGERA 390
2 citations
Jump To
Cite 1 - (2002) 121 LGERA 390
Cite 2 - (2002) 121 LGERA 390

Cases Citing

Case NameFull CitationFrequency
Bennington v Sunshine Coast Regional Council [2019] QPEC 111 citation
Wilhelm v Logan City Council [2020] QCA 2731 citation
1

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