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  4. Fortress Freeholds Pty Ltd v Brisbane City Council - [2016] QPEC 63

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Fortress Freeholds Pty Ltd v Brisbane City Council[2016] QPEC 63

Fortress Freeholds Pty Ltd v Brisbane City Council[2016] QPEC 63

PLANNING & ENVIRONMENT COURT OF  QUEENSLAND

CITATION:

Fortress Freeholds Pty Ltd v Brisbane City Council & Ors [2016] QPEC 63

PARTIES:

FORTRESS FREEHOLDS PTY LTD (ACN 010 893 740)

Appellant

v

BRISBANE CITY COUNCIL

Respondent

&

MALCOLM DOUGLAS AND SUSAN DOUGLAS

First Co-Respondent by Election

&

NEVIN WILSON AND KATHERYN WILSON

Second Co-Respondent by Election

&

DANIEL TONINO AND LISA TONINO

Third Co-Respondent by Election

&

DAMIAN SALVATI

Fourth Co-Respondent by Election

FILE NO/S:

720/16

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

DELIVERED ON:

16 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

10, 11 and 12 October; 17 and 18 November 2016

JUDGE:

Bowskill QC DCJ

ORDER:

The appeal will be dismissed, in so far as it concerns the application for a development permit for a material change of use for a warehouse (self-storage facility).  I will hear the parties as to the appropriate form of order (given the parties’ position in relation to the uncontested part of the proposed development) and also as to costs.

CATCHWORDS:

PLANNING & ENVIRONMENT – Appeal against Council’s deemed refusal of the appellant’s development application, seeking approval for reconfiguration of a lot, and material change of use, to permit development of a self-storage facility on land within the low density residential zone in Carseldine – whether there are sufficient grounds to approve the proposed development despite conflict with the planning scheme – whether there is a need for the proposed development 

Sustainable Planning Act 2009 (Qld), ss 314, 324, 326, 461, 493 and 495

All-A-Wah Carapark Pty Ltd v Noosa Shire Council [1989] QPLR 155

Neilsens Quality Gravels Pty Ltd v Brisbane City Council [2016] QPELR 709

Stappen Pty Ltd v Brisbane City Council [2005] QPELR 466

Synergy Property Partners No 2 Pty Ltd v Brisbane City Council [2016] QPELR 474

Weightman v Gold Coast City Council [2003] 2 Qd R 441

Zanow v Ipswich City Council [2010] QPELR 721

Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82

COUNSEL:

C Hughes QC, with M Williamson, for the Appellant

M Batty for the Respondent

SOLICITORS:

McCullough Robertson for the Appellant

Brisbane City Legal Practice for the Respondent

M Douglas, on his own behalf and on behalf of the other Co-Respondents by Election

Introduction

  1. [1]
    Fortress Freeholds Pty Ltd is the owner of land at 77 Denver Road, Carseldine, on which it has operated, since 1996, a motel and conference facility called the Carseldine Palms Motel.  The land is located on the corner of Denver Road and Gympie Road.  Fortress wishes to redevelop this land, to establish a self-storage facility on the western part of the land, closest to Gympie Road, and seven residential allotments on the remaining, eastern part of the land.
  2. [2]
    To that end, on 13 April 2015 Fortress submitted a development application to the Council, seeking approval for a proposed material change of use, to permit the land to be used for a self-storage facility, and reconfiguration of the lot, from one lot into eight.
  3. [3]
    This appeal is against the Council’s deemed refusal of that development application.
  4. [4]
    The Council opposes the material change of use, but not the reconfiguration aspect of the development application.  The co-respondents by election are residents of four houses on Lucinda Street, which is nearby (but not adjacent to) the land.  They also oppose the material change of use.

The land

  1. [5]
    The land has an overall area of 1.3 hectares, a frontage of about 130 metres to Denver Road, and about 75 metres to Gympie Road, with vehicle access to the land only from Denver Road.  The western part of the land that is proposed to accommodate the self-storage facility has an area of 7,435 m2 (just over half the overall area of the land), a frontage to Denver Road of approximately 80 metres, and to Gympie Road of approximately 85 metres.  The land slopes down from the north, towards Denver Road, with a fall of about 3 metres.[1]  
  2. [6]
    The land is currently improved by the Carseldine Palms Motel, which has been there since 1996 but is no longer operational.  The motel is a single storey development, with 56 motel/short term accommodation units, and what is described as a conference centre, restaurant and recreation areas.[2]
  3. [7]
    In terms of surrounding development:[3]
    1. (a)
      immediately to the north, there is a vacant lot, which has frontage to Gympie Road and McCallum Street, which is the site of a proposed Energex substation;[4] as well as four residential houses (which front McCallum Street);
    2. (b)
      further north, along Gympie Road, towards the intersection of Beams Road and Gympie Road, there is a mix of uses, including the Carseldine Central Shopping Centre, a retirement village and nursing home (Holy Spirit Home), and a retail nursery (Eden Gardens);
    3. (c)
      to the east of the land, there is predominantly residential development with houses on low density residential lots, and towards the end of Denver Road, another retirement village;
    4. (d)
      to the west, on the other side of Gympie Road, there are also residential lots;
    5. (e)
      immediately to the south, across Denver Road, is the Carseldine Police Station, which is fairly described as “a visually prominent building, presenting an unscreened, unarticulated and patterned façade to Gympie Road”;[5] and
    6. (f)
      further south, along Gympie Road, there are a variety of developments and land uses, including residential development on the western side, and on the eastern side of Gympie Road another retirement village (Carseldine Gardens), the Aspley Carsel Motor Inn and a squash court complex.[6] 

The proposed development

  1. [8]
    The focus of the appeal is on that part of the proposed development which concerns the construction of a self-storage facility on the western half of the land closest to Gympie Road.   The remaining, eastern part of the land is proposed to be reconfigured to create seven residential lots, ranging in size from 450m2 to 908m2, as well as a new access road from Denver Road to the residential lots.  The reconfiguration component of the development is not in issue on this appeal.
  2. [9]
    The self-storage facility is proposed to be developed in three stages, and will include a two-storey storage facility building, developed in three stages, ultimately having 415 individual storage units; a single storey office building, adjoining the vehicular entrance off Denver Road, with car parking spaces provided at the entrance; and a servicing area and truck loading/unloading facility within the secure self-storage area, along with additional car parking spaces.[7]
  3. [10]
    The proposed design for the self-storage facility includes:[8]
    1. (a)
      a site cover of 4,068 m2, which is 55% of the total area of the lot proposed for the storage facility;[9]
    2. (b)
      building setbacks:
      1. from Gympie Road, of about 4.93 metres (to the proposed retaining wall) or 6.93 metres to the building wall;
      2. from the residential houses to the north, of about 7.35 metres (in the case of 77 McCallum St) and about 10.5 metres (in the case of 79 McCallum Street), in each case to the building wall;
      3. from the proposed residential lots to the east, of about 6 metres to the building wall;
      4. from Denver Road, of about 9 metres to the office;
    3. (c)
      a building height of two storeys for the storage building, being about 7.25 metres above ground level at its highest point;[10]

There is a 9.5m height limit for any building on this site.  The proposed storage facility building is lower than this, in part because it is proposed to be cut into the existing ground line, which otherwise slopes down, from north (McCallum Street) to south (Denver Road).[11]

  1. (d)
    a building height of one storey for the office building, of about 4 metres;[12]
  2. (e)
    building dimensions, according to calculations made by Ms Morrissy, a town planning consultant called by the Council to give evidence, which were not substantially controverted by Mr McGowan of approximately 42.5 metres on the western façade of the building (facing Gympie Road); approximately 19 metres, for the office on southern façade (facing Denver Road), but behind that, about 57 metres, where the vehicle zone, entry and security fence/gate are; approximately 44.5 metres along the eastern boundary; and approximately 92.5 metres, along the northern boundary;[13]
  3. (f)
    all vehicular access coming from Denver Road, with Denver Road being accessed from Gympie Road as a “left in – left out only intersection”[14] (that is, traffic travelling north on Gympie Road cannot turn right into Denver Road);
  4. (g)
    hours of operation from 7am to 10pm, 7 days per week;
  5. (h)
    visually prominent signage, being a pylon sign on Gympie Road, as well as signage on the building itself, facing Gympie Road and Denver Road (although this is not part of the development application);[15]
  6. (i)
    landscaping on all sides of the building;[16]
  7. (j)
    a 1.8 metre high timber fence along the northern and eastern boundaries; and
  8. (k)
    3.5 metre high acoustic barriers, around the eastern and south-eastern edge of the vehicle manoeuvring area (on the recommendation of the noise experts).

The assessment regime

  1. [11]
    This appeal was commenced pursuant to s 461(1)(e) of the Sustainable Planning Act 2009.   The appeal is by way of hearing anew (s 495(1)), and must be decided based on the laws and policies applying when the development application was made, although the Court may give weight to any new laws and policies the Court considers appropriate (s 495(2)).  
  2. [12]
    The relevant laws and policies applying when the development application was made, and now, were contained within Brisbane City Plan 2014.  Under City Plan 2014, the land:
    1. (a)
      is located within a suburban living area, for the purposes of the strategic framework;
    2. (b)
      is located within the low density residential zone;
    3. (c)
      is included in the Bracken Ridge and district neighbourhood plan, although is not located within any specific precinct or sub-precinct within this plan; and
    4. (d)
      is affected by a number of overlays,[17] none of which have been raised as an issue in this appeal.
  3. [13]
    Under City Plan 2014, the proposed self-storage facility is defined as a “warehouse”.[18]  Since a “warehouse” is not specifically listed in the table of assessment for material change of use in the low density residential zone (table 5.5.1), it is impact assessable, and the relevant assessment criteria is the planning scheme, to the extent relevant (table 5.5.1 and s 5.3.3(d)(ii)).  
  4. [14]
    Fortress, as the appellant, bears the onus of establishing that the appeal should be allowed (s 493(1)).
  5. [15]
    Because the application is impact assessable, the Court must assess the application in accordance with s 314 of the Planning Act and decide the application in accordance with ss 324 and 326 of the Planning Act.
  6. [16]
    Under s 314(2), the application is to be assessed against relevant parts of the applicable planning scheme.  In addition, the application must be assessed having regard to any lawful use of premises the subject of the application or adjacent premises (s 314(3)(b)), a provision which assumed some significance in this appeal, having regard to the previous use of the land for a motel.
  7. [17]
    The Court’s decision must not conflict with the planning scheme, unless there are “sufficient grounds” to justify the decision, despite the conflict (s 326(1)(b)).   “Conflict” means to be at variance with or disagree with.[19]  “Grounds” means matters of public interest, and does not include the personal circumstances of the appellant.[20]
  8. [18]
    The general approach which has been adopted in applying s 326(1), is consistent with that proposed in Weightman v Gold Coast City Council [2003] 2 Qd R 441 at [36].[21]
  9. [19]
    Determining whether the proposed development is in conflict with the planning scheme involves, in some respects, construing the meaning of relevant parts of the scheme.  The same principles which apply to statutory construction apply to the construction of planning documents.[22]   However, as Morrison JA has observed, “[t]he fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes”.[23]  In that regard, I also adopt the following principles, recently summarised by Robertson DCJ in Neilsens Quality Gravels Pty Ltd v Brisbane City Council [2016] QPELR 709 at [43]-[44]:

“Planning instruments should be read as a whole, and applied in a practical and common sense way, and so as to achieve their evident purpose.  Statements of intent, aims and objective in planning schemes are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate:  Leda Holdings Pty Ltd v Caboolture Shire Council.[24]  A planning scheme should be construed broadly, rather than pedantically or narrowly, and with a sensible practical approach:  Lockyer Valley Regional Council v Westlink Pty Ltd.[25] 

Conflict is considered against the substance of the planning scheme, and not against a provision in isolation from the whole and the conflict must be plainly evident:  Central Equity v Gold Coast City Council.[26]”

The issues in dispute

  1. [20]
    The issues in the appeal are:
    1. (a)
      whether the proposed development is in conflict with relevant provisions of City Plan 2014 – in this regard, the areas of conflict agitated on this appeal are, to adopt the Council’s references:
      1. strategic planning conflict;
      2. land use conflict;
      3. built form conflict; and
      4. whether there is a need for the proposed development;
    2. (b)
      the nature and extent of any such conflict with the planning scheme; and
    3. (c)
      whether there are grounds to approve the proposed development, if conflict is found – the primary ground agitated on the appeal concerning whether there is a need for the development.
  2. [21]
    It was accepted that issues of traffic, on-site parking and noise amelioration could be satisfactorily dealt with by appropriate conditions, and do not warrant refusal of the development application.  The co-respondents by election had also raised an issue about air quality in advance of the hearing, but did not seek to press that as a reason for refusal on the hearing of the appeal.

Is the proposed development in conflict with City Plan 2014?

Conflict with the strategic framework?

  1. [22]
    The strategic framework for City Plan 2014 is set out in part 3.  That framework “sets the policy direction for the planning scheme and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of the planning scheme” (s 3.1(1)).  The strategic framework is structured by reference to a statement of strategic intent and five themes that collectively represent the policy intent of the scheme (s 3.1(3)).
  2. [23]
    As already observed, the land is included within the suburban living area.  As described in s 3.7.1(1)(g) (part of the strategic outcomes for theme 5, Brisbane’s CityShape):

“Brisbane’s Suburban Living Areas represent the majority of established residential suburbs in Brisbane, where growth occurs in response to local needs and impacts on local amenity and values are carefully considered.  Brisbane’s Suburban Living areas comprise the following:

  1. (i)
    low density residential areas where the majority of development is housing in the form of detached dwellings ranging from small cottages to large family homes on lots typically in the range of 400-800m2;
  1. (ii)
    centres, community facilities, medium and high density residential and industrial uses, as indicated in neighbourhood plans and the zoning pattern;
  1. (iii)
    localities identified in overlays,  neighbourhood plans and the zoning patterns as having a particular character or value that is desired to be retained with very little visible change over the life of the planning scheme;
  1. (iv)
    areas of character housing and commercial character buildings substantially constructed in 1946 or earlier;
  1. (v)
    areas of small-scale low-medium density housing such as dual occupancy or row housing that encourage intergenerational housing options to facilitate ageing in place;
  1. (vi)
    a range of non-residential land uses that generally support the needs of the surrounding residential area.”[27]
  1. [24]
    Whilst some non-residential uses are clearly contemplated within a suburban living area, as submitted by the Council:
    1. (a)
      the range of non-residential uses contemplated is identified, and does not include warehousing (including storage facilities);

In this regard:

  1. (i)
    specific outcome (SO) 5, in table 3.7.6.1, contemplates “district centres” that serve local and district catchments, which “function as community destinations, providing localised access to goods and services, including retail, community facilities and low impact industry and localised employment” (land use strategy 5.1);
  1. (ii)
    SO 6, in table 3.7.6.1, contemplates “neighbourhood centres” that offer small-scale, low-impact local conveniences; and
  1. (iii)
    SO7, in table 3.7.6.1, contemplates non-residential uses that support local character and amenity.  Land use strategy 7 provides that “a range of non-residential land uses that generally support the needs of those Suburban Living Areas include the following:
  1. (a)
    local and district services and shopping with access to public transport services, as well as centres in specific locations and other small-scale non-residential uses such as those within commercial character buildings, providing neighbourhood convenience services within a walkable catchment;
  1. (b)
    schools and other community facilities;
  1. (c)
    a range of parks, from district sporting fields to local informal use parks;
  1. (d)
    vegetation and open space …
  1. (e)
    pedestrian-friendly traffic environments and pedestrian and cyclist connectivity to surrounding areas including some buffered industrial areas that offer locally accessible employment opportunities for residents in the Suburban Living Areas.”[28]
  1. (b)
    the strategic framework expressly contemplates storage and warehousing uses within industrial areas.[29]
  1. [25]
    The Council argues that the proposed development is in conflict with the strategic framework, because it is an inappropriate use in the low density residential zone; is of an inappropriate built form; and does not respond to a local need.   As addressed below, the Council contends the proposed development is in conflict with other relevant parts of the planning scheme, for these reasons.  But the Council also contends that, on these bases, the proposed development does not comply with the requirements of the strategic framework, a conflict which is “serious and major” given that the strategic framework sets the policy direction for City Plan 2014.
  2. [26]
    In so far as the strategic framework is concerned, the appellant contends, consistently with the evidence of Mr Schomburgk, that it outlines “very high level goals”, which are essentially aspirational in nature, but which do not exclude a use such as the proposed self-storage facility being appropriate on the site.  In particular, Mr Schomburgk observed that land use strategy L7 is not exhaustive, it merely outlines some non-residential land uses that generally support the needs of suburban living areas; and he says that providing a self-storage facility in close proximity to a residential area will support that residential area for residents seeking to store goods outside of their own home.[30]  The appellant does, however, concede that since the proposed facility will not only support the needs of the surrounding residential area, there is a conflict in that respect with the strategic framework.[31]
  3. [27]
    On the basis of the findings which are made below, as to conflict in terms of the proposed use, and the built form, in my view the proposed development can also be said to be in conflict with the strategic framework in those respects.  Although the proposed use is not expressly discouraged, it is apparent that the strategic framework contemplates non-residential uses which are supportive of the surrounding residential area, and which are consistent with the applicable zoning pattern, and neighbourhood plan, which I have found the proposed development is not.  As is also apparent, the proposed use is in fact expressly contemplated within industrial areas. 

Is the proposed use of the land, for a self-storage facility, in conflict with the low density residential zone code?

  1. [28]
    The low density residential zone code is set out in section 6.2.1.1, which relevantly provides as follows:

“(1)  The purpose of the Low density residential zone code is to provide for predominantly dwelling houses supported by community uses[32] and small-scale services and facilities which cater for local residents.

  1. (2)
    The local government purpose of the code is to:
  1. (a)
    Implement the policy direction set in the Strategic framework, in particular:
  1. (i)
    Theme 2:  Brisbane’s outstanding lifestyle, Element 2.1 – Brisbane’s identity and Element 2.1 – Brisbane’s housing and accommodation choices;
  1. (ii)
    Theme 5:  Brisbane’s CityShape and Element 5.5 – Brisbane’s Suburban Living Areas.
  1. (b)
    Provide for suburban living in a 1 or 2 storey dwelling house.
  1. (c)
    Provide for other housing types at a house scale to provide housing diversity offering choice to different household types and individuals to suit residents through different life-cycle stages.
  1. (d)
    Ensure development occurs on appropriately sized and configured lots and is of a form and scale that reinforces a distinctive subtropical character of low rise, low density building set in green landscaped areas.
  1. (e)
    Provide for dwelling houses that are supported by compatible and individual small-scale non-residential uses.
  1. (3)
    The purpose of the code will be achieved through the overall outcomes for:
  1. (a)
    development location and uses;
  1. (b)
    development form.
  1. (4)
    Development location and uses overall outcomes are:
  1. (a)
    Development comprises dwelling houses of predominantly 1 or 2 storeys in height, on appropriately sized and configured vacant lots, which maintain the low density detached housing suburban identity of the Low density residential zone.
  1. (b)
    Development, other than a dwelling house, including dual occupancy or a multiple dwelling is not accommodated within this suburban setting unless on a well-located site of over 3,000m2.
  1. (c)
    Development for other housing types, being a residential care facility or retirement facility, which provides housing diversity and enables people to remain within their local neighbourhood throughout their life cycle, may be accommodated at appropriate locations where height is no greater than 1 or 2 storeys.
  1. (d)
    Development for a relocatable home park or tourist park may continue to operate and expand where on an existing site to provide housing diversity.
  1. (e)
    Development for a dwelling unit may occur as part of a non-residential use.
  1. (f)
    Development reflects and supports the high level of comfort, quiet, privacy and safety (including impacts of glare, odour, light, noise, traffic, parking, servicing and hours of operation) reasonably expected within a predominantly low density permanent residential environment.
  1. (g)
    Development for commercial character building activities on land within the Commercial character building overlay is to comply with the Commercial character building (activities) overlay code.
  1. (h)
    Development for a small-scale non-residential use which is a community care centre, community use, health care services, office, shop or veterinary services (together with any associated caretaker’s accommodation or dwelling unit), where not on land within the Commercial character building overlay is to:
  1. (i)
    have a gross floor area of less than 250m2;
  1. (ii)
    serve local residents’ day to day needs;
  1. (iii)
    not undermine the viability of a nearby centre.
  1. (i)
    Development for a home based business may operate in a dwelling house and is of a scale and nature that protects the amenity of adjoining residents.
  1. (j)
    Development for a non-residential use serves a local community facility[33] need only, such as a child care centre or a substation,[34] and is of a bulk and scale that is compatible with and integrates with the built form intent for the Low density residential zone.
  1. (k)
    Development for rooming accommodation accommodates five persons or less.
  1. (5)
    Development form overall outcomes are:

... [sub-sections (a) to (d) are all related to dwelling houses]

  1. (e)
    Development responds to land constraints, mitigates any adverse impacts on environmental values and addresses other specific characteristics, as identified by overlays affecting the site or in codes applicable to the development.”[35]
  1. [29]
    The appellant accepts that the proposed development is in conflict with a number of provisions of the planning scheme,[36] because it will serve more than a local need.  But otherwise, the appellant contends there is no conflict.
  2. [30]
    The Council submits that the proposed development is in conflict with a number of provisions of the low density residential code:
    1. (a)
      First, the purpose of the code (s 6.2.1.1(1)), which is to provide for predominantly dwelling houses, supported by community uses and small-scale services and facilities which cater for local residents.  It was not disputed that the proposed self-storage facility is not a community use, as defined, nor is it a small-scale service or facility which caters for local residents.

The appellant submits that this provision simply describes the predominant uses in the zone (dwelling houses, community uses, small-scale services and facilities which cater for local residents); but does not purport to identify, and discourage, the range of uses that will fall outside those uses which are to predominate.[37]  The Council submits, as a matter of construction, that the word “predominantly” in s 6.2.1.1(1) relates to dwelling houses; with the predominant form of development that is intended to occur in the low density residential zone being “dwelling houses”, with those dwelling houses being supported by community uses and small-scale services and facilities which cater for local residents.[38]  In my view, the construction contended for by the Council is correct, when regard is had to the whole of the low density residential zone code, including sections 6.2.1.1(2)(e), (4)(f), (h) and (j).

  1. (b)
    Second, the local government purpose of the code (s 6.2.1.1(2)(e)), which is to provide for dwelling houses that are supported by compatible and individual small-scale non-residential uses. Again, it was not disputed that the proposed self-storage facility is not a small-scale non-residential use.
  2. (c)
    Third, the overall outcome in s 6.2.1.1(4)(h), which sets out parameters for certain types of development for small-scale non-residential uses.  The Council argues that a self-storage facility is not a use contemplated by that provision; nor does it meet the parameters.    As a matter of construction, it seems to me the Council’s argument does not give effect to the words “which is a” in this section.   On a proper reading of subsection (4)(h), it is referring to development for a small-scale non-residential use “which is a” community care centre, etc; and there is then a requirement for a use(s) of that specified kind to have a gross floor area of less than 250m2, serve local residents’ day-to-day needs and not undermine the viability of a nearby centre.   I do not consider that this provision has general application to any other kind of non-residential use; although it reflects a consistent theme of contemplating small-scale non-residential uses.
  3. (d)
    Fourth, the overall outcome in s 6.2.1.1(4)(j), which provides that development for a non-residential use serves a local community facility need only, such as a child care centre or a substation, and is of a bulk and scale that is compatible with and integrates with the built form intent for the low density residential zone.  

Focussing on the first part of this, the proposed self-storage facility is not a “community facility”, as that term is defined; therefore it cannot be said to serve a local community facility need, let alone only such a need.  The question of the “built form” will be dealt with under the next heading.  But, as a matter of construction, to meet this overall outcome, both matters need to be satisfied (as is indicated by the use of the conjunctive, “and”). 

  1. [31]
    The appellant’s argument, as to why the proposed development ought not be found to be in conflict with the low density residential zone code, is that the provisions are essentially “silent” on the proposed use; it is not expressly discouraged, therefore it is necessary to “delve deeper into the planning scheme for assessment criteria”.[39]   Mr Schomburgk acknowledged that the proposed use, for a self-storage facility, is not one that is normally expected within a residential zone;[40] indeed neither he,[41] nor either of Mr Blackwell or Mr Norling, the economic need experts, could think of an example where a new self-storage facility has been approved in a residential area.[42]  But Mr Schomburgk expresses the opinion that the proposed development is appropriate on the site, having regard to the context of the locality, being on Gympie Road, adjoining a (future, potential) Energex substation, and being opposite a police station, all of which mean that “the character of this particular part of the streetscape is not that of a residential area”.  
  2. [32]
    That argument is unpersuasive.  The code is clear, in terms that its purpose is to provide for predominantly dwelling houses, supported by community uses and small-scale services and facilities which cater for local residents.   Although it does not expressly discourage large-scale non-residential, commercial or industrial uses, which will cater for a broader market than the local residents, that is implicit in what it does provide for and encourage.  
  3. [33]
    This is reinforced by the small-scale non-residential uses code, which I accept is relevant because it provides context in terms of understanding the planning intent for non-residential uses on residential zoned land;[43] although plainly it does not apply to the proposed use, due to its large scale.   In circumstances where the drafters of the planning scheme have articulated, in the low density residential zone code, the types and scale of non-residential uses which are contemplated, being community uses and small-scale services and facilities that cater for local residents; and regulated, in a detailed way, the small-scale non-residential uses that may be introduced on residential zoned land; it is not logical, in my view, to conclude that a large-scale commercial use, although not expressly discouraged, is nonetheless harmonious with the planning scheme provisions.  If that was the case, one would expect some express regulation of such uses.
  4. [34]
    The proposed self-storage facility is not a community use; is most definitely not small-scale; and does not cater only for local residents.  It is a large-scale, non-residential, use – that is plainly, in my view, in conflict with this part of the planning scheme.

Existing use of the land or adjacent premises – s 314(3)(b)

  1. [35]
    The appellant placed particular emphasis on the requirement, under s 314(3)(b) of the Planning Act, in assessing the application for approval, to have regard to any development approval for, and any lawful use of, premises the subject the application or adjacent premises.   In so far as the land is concerned, the appellant emphasises the use of it, since 1996, for the purpose of a motel.   The appellant also emphasises the police station on the opposite corner of Denver Road and Gympie Road; and, in anticipation, the potential future Energex substation on the vacant lots to the north of the land.  Logically, in considering adjacent premises, the adjacent residential development ought also to be considered.
  2. [36]
    The town planning experts seemed to refer to the existing motel use as residential, with a commercial element.[44]   It does not seem apt to refer to a motel as a residential use, given that in a planning context, the term “residential” has been held to have the connotation of long term or permanent residence, in a dwelling.[45]   The existing use is, therefore, appropriately described as a non-residential, commercial use.   Although I accept that it is appropriate to have regard to that use of the land, in assessing the present application, I note also that entrenching a non-conforming non-residential use on the land is something the authorities indicate is to be discouraged.[46]  Although this proposed development, if approved, would be different from the existing use of the land, in my view this principle is nevertheless, by analogy, relevant and applicable here.
  3. [37]
    In relation to reasonable expectations of residents in the area, the appellants place significant emphasis on the existing use of the land, for a motel; as well as on the scale of the surrounding non-residential uses, existing (particularly in the case of the police station) and proposed (in the case of the substation).  As Mr Schomburgk observes, “[t]he scale of these uses, coupled with the undoubted impact of Gympie Rd, creates a character and amenity for the subject site, especially the western end of it, unlike most residential areas.  Indeed, the area is not fairly described as having a character that is ‘predominantly dwelling houses supported by community uses and small-scale services and facilities which cater for local residents’ as is envisaged by the purpose of the LDR zone code in City Plan 2014”.[47]  Although Mr Schomburgk also acknowledged that a warehouse, such as the self-storage facility proposed, is not normally expected within a residential zone.[48]
  4. [38]
    The reasonable expectations of residents in the locality are appropriately guided by the planning intent articulated by the local authority in the planning scheme, as well as existing development on the land.[49]   But as to the latter, simply because Gympie Road is a busy arterial road; and that there are other non-residential uses along Gympie Road, as well as a police station at the corner of Denver Road, does not mean that residents in the locality ought reasonably to expect that the site of the motel could be developed in such a way as to accommodate a large scale commercial use such as is proposed; which is otherwise provided for only in industrial zones; especially given the provisions of the strategic framework and the low density residential zone code already referred to.
  5. [39]
    Even if the character of the area in the vicinity of the land may, in some respects, be considered discordant with the planning scheme provisions, it is not an unusual circumstance that a planning scheme area would not perfectly reflect the planning intent embodied in the planning scheme.  And where, as here, it cannot be said the planning scheme has been overtaken by events, or is unsoundly based (keeping in mind the current planning scheme is only 2 years old), the provisions of the planning scheme are entitled to their full weight and effect, both as to present uses, as well as future planning intent and aspirations.[50]
  6. [40]
    I am not persuaded that, when having regard to the existing lawful use of the premises, or adjacent premises, as I am required to do by s 314(3)(b), the conflict that I have found with the planning scheme is removed, or ameliorated.  

Does the built form of the proposed development conflict with the planning scheme?

  1. [41]
    The Council submits that the built form of the proposed development conflicts with various parts of the planning scheme, including the strategic framework, the low density residential zone code and the Bracken Ridge and district neighbourhood plan code.  The Council accepts that the small-scale non-residential uses code does not apply to the proposed development, but, as already noted, submits that it provides important context for this appeal, and reinforces the fact that the proposed development, due to its use, and its built form, is not appropriate in the low density residential area.
  2. [42]
    The relevant provisions of the strategic framework are SO7, and land use strategy 7 (set out in paragraph [24](a)(iii) above).
  3. [43]
    The relevant provisions of the low density residential zone code that regulate built form are:
    1. (a)
      sub-section (1), setting out the purpose of the code, which refers to dwelling houses being supported by “community uses and small-scale services and facilities which cater for local residents”;
    2. (b)
      sub-section (2)(d), which provides that a local government purpose of the code is to “ensure development occurs on appropriately sized and configured lots and is of a form and scale that reinforces a distinctive subtropical character of low rise, low density buildings set in green landscaped areas”;
    3. (c)
      sub-section (2)(e), which provides that a local government purpose of the code is to provide for dwelling houses “that are supported by compatible and individual small-scale non-residential uses”;
    4. (d)
      sub-section (4)(h), which I have discussed at paragraph [30](c) above.
  4. [44]
    Provisions from the Bracken Ridge and district neighbourhood plan code which are referred to by the Council include section 7.2.2.3.2(3), which provides that the overall outcomes for the neighbourhood area are, inter alia:

“(h) Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the … site and is only developed at a greater height, scale and form where there is both a community need and economic need for the development.”

  1. [45]
    Although the appellant submits the neighbourhood plan is silent in terms of the height, scale and form of development which is intended for this site; the Council submits that, consistently with the principles of interpretation referred to above, it is appropriate to consider the planning scheme provisions as a whole, from which it is clear that built form matters are regulated, in relation to this site.  That is apparent, for example, when regard is had to the low density residential zone code, the provisions of which have already been referred to.
  2. [46]
    The Council submits the proposed development is in conflict with these provisions, because it:
    1. (a)
      is of a size that does not just support a local need, but extends well beyond that;
    2. (b)
      is not of a form and scale that reinforces a distinctive sub-tropical character of low rise, low density buildings set in a green landscape setting;
    3. (c)
      is not of a small scale; and
    4. (d)
      would be of a height, scale and form which is not consistent with the amenity, character and community expectations for the site; and
    5. (e)
      there is no community and economic need for the development.
  3. [47]
    Mr McGowan appropriately acknowledges that the proposed development is not a residential scale dwelling, nor is it a small-scale non-residential use that might be found in a residential area,[51] nor is it low key in nature.[52]  However, he is of the view that “it is of a scale and appearance which will see it comfortably fit in its context without unacceptably impacting on the amenity or character of the prevailing residential uses in the area, nor of the streetscape qualities of either Gympie Road or Denver Road”.  He says this has been achieved through a number of design elements that reduce the potential for adverse visual impacts, including:             
    1. (a)
      locating the storage facility on the western side of the land, closest to Gympie Road, and the residential lots on the eastern side;
    2. (b)
      incorporating “generous side boundary setbacks” along the northern and eastern boundaries, with screening vegetation;
    3. (c)
      cutting the storage building into the site, giving it a relative height similar to or lower than existing and future houses;
    4. (d)
      incorporating landscaping around the facility;
    5. (e)
      articulating and decomposing the building mass;
    6. (f)
      incorporating a range of materials to break up the apparent mass of the storage building, but which Mr McGowan accepts are commercial materials (including precast concrete, metal sheet cladding and brickwork), although he says they are used in a “relatively refined way”); and
    7. (g)
      screening and internalising the vehicle manoeuvring area to reduce visibility.[53]
  4. [48]
    Accepting that the proposed facility is not residential in scale or form, the appellant submits that, having regard to the scale of other development that presently exists, which is not residential in scale or form; the existence of the current lawful use on the site (the motel); that the proposal will involve the re-use of an existing commercial site; and the actual impacts of the built form, the proposed development will not have an unacceptable impact on the visual amenity and character of the area, and is not in conflict with the planning scheme.
  5. [49]
    The scale of the built form of the proposed self-storage facility is fairly described as substantial and significant, as is demonstrated by the various plans and drawings in evidence (exhibits 5 and 6), including the annotated plan with dimensions prepared by Ms Morrissy (exhibit 22).   Although it may be accepted that, in designing the proposed facility, the appellant has tried to mitigate the built form impact of it, in a manner which seems consistent with what Mr Blackwell described as the “modern” presentation of self-storage facilities;[54] it remains the fact that the proposed building is a very large, commercial building, which is out of place in a low density residential zoned area.
  6. [50]
    I have already addressed the appellant’s argument about the significance of the existing use of the land, for the purposes of s 314(3)(b).   On this appeal, the appellant places a great deal of significance on the character of Gympie Road, as a major arterial road, accommodating a variety of non-residential uses, some of which are of a considerable scale; as well as the police station and the potential substation; and that the land has been used for a motel since 1996.   Whilst those matters are relevant, and have been taken into consideration, as I have already said, they are not such as, in my opinion, to ameliorate, or diminish what seems to me to be plainly evident conflict with relevant parts of the planning scheme.  The local residents are entitled to expect that future development in the area will conform with the intent of the low density residential zone, and the provisions of the planning scheme.
  7. [51]
    In relation to the neighbourhood plan provision, the appellant submits the proposed development is of a height scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the site; in which case it is not necessary for community or economic need to be demonstrated.   It is only if development exceeds such height scale and form that community and economic need must be shown. 
  8. [52]
    As a matter of construction that is correct.   But I do not accept the first contention.  On the evidence before me, I consider that the proposed development is of a greater scale, in particular, than is consistent with the amenity and character of the site, community expectations and also the infrastructure assumptions intended for the site – such intention to be found in the planning scheme provisions.  In those circumstances, both a community need and economic need would need to be shown, in order to meet the outcome in s 7.2.2.3.2(3)(h). 
  9. [53]
    I have addressed the evidence in relation to need in considering “grounds” below, reaching the conclusion that the appellant has not established, on the balance of probabilities, that there is a need for the proposed development, in this location.  It follows that, in so far as this part of the neighbourhood plan is concerned, it is not met.
  10. [54]
    Overall, in my view, the built form of the proposed development is also in conflict with the relevant planning scheme provisions.

Nature and extent of the conflict

  1. [55]
    Even in relation to the one aspect of conflict conceded by the appellant (serving more than a local need), the extent of the conflict is accepted by the appellant to be significant, but not serious.[55]
  2. [56]
    Having regard to the conclusions I have reached above, about the far greater level of conflict with relevant provisions of the planning scheme, I accept the Council’s description of the extent of the conflict as serious and major.[56]

Are there grounds to justify approval, despite the conflict?

  1. [57]
    I turn now to consider whether, for the purposes of s 326(1)(b), there are sufficient grounds to justify approving the proposed development, despite the conflict I have found with the planning scheme provisions.
  2. [58]
    Although in the JER Mr Schomburgk referred to a number of grounds which he said would justify approving the development, the substantive argument was really about whether there was a need for the development.  Mr Schomburgk agreed that if it is found there is no demonstrated need for the proposed development, there are not sufficient other grounds to overcome the conflict.[57]  I will address the issue of need in detail, and then briefly address the other grounds raised.

Is there a need for the proposed development, in this location?

  1. [59]
    The appellant relied upon the evidence of Mr Blackwell, a valuer and property consultant, who said he had developed a specialisation in the self-storage industry over the last 20 years.  The Council relied upon the evidence of Mr Norling, a consultant in business and property economics.  The economic need analysis was conducted, in the first instance, by Mr Blackwell; but was the subject of review and comment by Mr Norling. 
  2. [60]
    As it ultimately emerged, the evidence of Mr Blackwell was, in some respects, unsatisfactory and, overall, unpersuasive.  There were a number of errors identified in the analysis initially undertaken by Mr Blackwell, which necessitated an adjournment of the hearing, and further work being carried out by him.  But what that further work demonstrated was the arbitrary nature of the calculations performed by Mr Blackwell, which underpinned his conclusions as to there being a need for the proposed facility.
  3. [61]
    In the end, I prefer the evidence of Mr Norling, to that of Mr Blackwell, where they are in disagreement with one another, for reasons which I explain. 
  4. [62]
    In their first joint report[58]  Mr Blackwell and Mr Norling provide an overview of the self-storage industry, by reference to data from industry publications ([16]-[22]).  Among other relevant matters, it is noted that:
    1. (a)
      generally optimal occupancy for a self-storage business is considered to be between 85% to 90%, although the industry has fallen below optimal occupancy (which is demonstrated by figure 1, on page 7 of exhibit 8A, with data from June 2008 to March 2016);[59]
    2. (b)
      approximately 74% of private storage users and 79% of business storage users come from within a twenty minute travel time of a storage facility; and the majority of people visit their storage facility less than once per month;[60]
    3. (c)
      the most common way that people find a self-storage facility is by an internet search, although a similar (albeit smaller) proportion of people would do so on the basis of visibility from the road;[61]
    4. (d)
      the number of people living in flats, units or apartments is a factor generating demand for self-storage – for example, as at 2011, while 13.6% of the population are unit or apartment dwellers, 28.8% of storage users are unit or apartment dwellers;[62]
    5. (e)
      the “key drivers of demand for using self-storage by private users” are lack of space at their main residence, need for temporary storage while between locations, or needing storage while living away from their main residence;[63]

Mr Blackwell expanded on this, in his individual statement of evidence[64] and his oral evidence,[65] explaining that demand for self-storage facilities has grown over that time, due to the growth in population, growth in the propensity of people to relocate their homes, heightened awareness of the advantages and ability to use this form of “product”, and an increase in higher-density dwellings (apartments and units), in which it might be expected people have less space for storage.

  1. (f)
    people also use storage facilities for business purposes, to store equipment, inventory, business records, and for other business purposes.[66]
  1. [63]
    Mr Blackwell’s analysis was conducted on the basis of the current (that is 2016) conditions, and he did not consider it necessary to consider growth in demand beyond the current date.[67] 
  2. [64]
    Mr Blackwell identified a “customer catchment area”, for the purpose of carrying out a supply demand analysis.  The customer catchment area is defined by reference to a 7 km radius of the land (7 km being taken to be the equivalent of a 20 minute travel time, on the basis of the data referred to at [62](b) above), but also taking into account the existing road network, including the faster travel times associated with use of the Gympie Arterial Road.[68]  Mr Norling agreed that the catchment area was appropriate.[69]
  3. [65]
    Mr Blackwell’s supply demand analysis began by identifying a supply and demand rate.   On the basis of amended figures, following errors in the original work carried out by Mr Blackwell which were pointed out by counsel for the Council, the supply and demand rates Mr Blackwell arrived at were as follows:[70]
    1. (a)
      There were 116 established self-storage facilities identified in the Brisbane Significant Urban Area (an area defined by the Australian Bureau of Statistics, which the experts agreed was an appropriate benchmark[71]), which provide a total of approximately 38,706 storage units, including units currently under construction.   On the basis of a 2016 forecast population for the Brisbane SUA of 2,245,900, that level of supply shows a supply rate of 0.0172 units per capita (equivalent to 17.2 units per 1000 persons).[72]

Mr Norling does not agree that the units currently under construction, and not expected to open until 2017, ought to be included in this calculation.  His view is that these facilities should not be used as a basis for estimating the 2016 per capita demand, although he agrees they should be taken into account in the supply calculations (being locked into the supply pipeline and due to open well before the subject facility could open, if approved).[73]  With those removed, Mr Norling would arrive at a supply rate of 0.0167 per capita.[74]   I accept the logic of Mr Norling’s observation in this regard.  Since the exercise is to estimate a present demand rate (see paragraph (c) below), it is not logical to include units from facilities which are not yet constructed.

  1. (b)
    Average occupancy of storage facilities as at December 2015 was 84.09%.

Whilst Mr Norling considers there is an element of overstatement in the figures used by Mr Blackwell in arriving at this occupancy rate, in the absence of data to quantify the degree of overstatement, he was prepared to adopt 84.09%.[75]

  1. (c)
    Applying that occupancy rate to the overall level of supply, the current usage (demand) level for self-storage in the Brisbane SUA is at a rate of 0.0145 units per capita.[76]

Taking into account Mr Norling’s issue with the including of the two facilities which are not yet constructed, Mr Norling would arrive at a demand rate of 0.0140 units per capita.[77]

  1. [66]
    The 2016 population data for the customer catchment area is 313,341.   Mr Blackwell opines that there is a close alignment between the profile of the population of the catchment area and the profile of the overall Brisbane population, and that the catchment area would provide demand levels that do not depart materially from demand levels applicable to broader Brisbane.[78]  He therefore considers that the current Brisbane usage (demand rate) may be applied as a reasonable (most likely case) demand level for the customer catchment area.[79]  Mr Norling broadly agreed with this proposition.[80]
  2. [67]
    The amended table 2 in the second JER of Mr Blackwell and Mr Norling (exhibit 8A, p 16) summarises Mr Blackwell’s supply demand analysis.  Before saying more about that, there are some further parts of Mr Blackwell’s analysis to be mentioned.
  3. [68]
    In terms of the existing self-storage supply within the customer catchment area, it was agreed there are 16 competing facilities within the 7 km catchment area.[81]   Mr Blackwell estimates that they provide a total of 7,545 storage units.[82] 
  4. [69]
    Amended table 2 has 3 columns, for “worst case”, “most likely case” and “best case” scenarios.  For the purposes of this discussion, I will mention only the “most likely case” figures.  
  5. [70]
    On the basis of the 2016 population figure of 313,341 (for the customer catchment area), and a demand rate per capita of 0.0145, Mr Blackwell arrives at a demand level of 4,543 storage units.[83]
  6. [71]
    Mr Blackwell then adds 15% to that, on the basis of research that indicates 26% of private users and 21% of business users travel more than 20 minutes to a storage facility, which he says indicates a significant level of demand comes from outside the catchment area, and which he has quantified at 15%.[84]  Mr Norling takes issue with this.  Mr Norling’s point is that, in calculating the demand rate, utilising figures from the Brisbane SUA, that already factors in demand from outside the catchment area, so the addition of a further 15% results in double-counting.[85]   I was left in some doubt about where the merits of this point lie, and therefore do not make a finding inconsistent with Mr Blackwell’s approach; notwithstanding I otherwise found Mr Norling’s critique of Mr Blackwell’s approach persuasive in a number of respects.  
  7. [72]
    The ultimate estimated demand, on Mr Blackwell’s analysis, was 5,225 units.
  8. [73]
    The next part of Mr Blackwell’s analysis is to work out the level of available supply in the catchment area.   This analysis begins with the number of units already available (16 existing facilities, providing 7,545 storage units); applying a discount for the average occupancy level of 84.1%; and then applying further discounts, ranging from 40% to 90%, on the basis of an estimate as to how much of that supply would be used by people from within the catchment area.  So, for example, for the National Storage at Aspley, Mr Blackwell estimates 90% of their custom would come from within the catchment area; whereas for the StorMart Self Storage at Alderley, Mr Blackwell estimates only 40% of their custom would come from within the catchment area.    Applying those various reductions results in an existing supply of 3,809 units within the catchment area.
  9. [74]
    As Mr Blackwell explained, these various percentage reductions are based on a judgment on his part, on the basis of a number of factors, including the distance from the proposed facility to each existing facility; accessibility and visibility of the existing facilities; natural barriers (such as rivers and forests); and the intensity of development around the existing development – in order to form a view as to what percentage of the supply offered by the existing facilities may be absorbed within the catchment area.[86]
  10. [75]
    Mr Blackwell then factors in existing supply from outside the catchment area (on the basis that some people within the catchment area may use storage facilities outside the catchment area), again applying percentage reductions said to reflect the percentage of supply which will be filled by facilities outside the catchment, which results in an additional supply of 1,315 storage units.
  11. [76]
    The total existing supply, on Mr Blackwell’s figures is 5,124 storage units.
  12. [77]
    On his “most likely case” figures, this results in a shortfall, between the estimated demand of 5,225, and the estimated supply, of 101 units.   In contrast, on Mr Blackwell’s original calculations, there was forecast a shortfall of 1,321. 
  13. [78]
    Mr Blackwell estimates that the proposed self-storage facility the subject of this appeal will accommodate approximately 481 self-storage units, which he says will address his estimated undersupply of 101 units.[87]  On this basis, Mr Blackwell expresses the view that there is a “demonstrable need” for additional self-storage unit supply in this local community.[88]  Despite acknowledging that, as a result of the corrected calculations, “the level of undersupply is substantially reduced than what I originally anticipated”, Mr Blackwell said his opinion – that there is a demonstrable need for this facility – had not changed.[89]
  14. [79]
    At the broadest level, Mr Norling is critical of Mr Blackwell’s methodology, and notes that if you simply look at the existing supply level from the 16 facilities already within the catchment (disregarding inflows/outflows), there is a clear surplus of supply over the estimated demand.[90]
  15. [80]
    But Mr Norling also describes the numerous assumptions which underpin the analysis of supply and demand in Mr Blackwell’s table 2 as “contrived and spurious”.[91]  In particular, this is directed to the assumptions made about what proportion of demand would originate from each of the self-storage facilities referred to in the “existing supply” section of table 2 (within and outside the catchment), for which, as Mr Norling observes, there is no objective evidence.[92]  That observation was first made by Mr Norling, in relation to the original table 2.  The amended table 2 incorporated some fairly significant changes in these assumptions; although it was not suggested that was the result of any change in circumstances (as opposed to a revision of Mr Blackwell’s assumptions).
  16. [81]
    As I have already noted above, in terms of the specific calculations in table 2, Mr Norling takes issue with the inclusion of the two facilities which are not yet constructed, in determining the estimated 2016 demand rate.   Removing these from the calculations results in a corrected 2016 supply rate of 0.0167.  When this is multiplied by the occupancy rate of 84.09%, it results in a corrected 2016 demand rate of 0.0140.   Applying that rate to the population figure of 313,341 results in an estimated demand of 4,387 units (as compared with Mr Blackwell’s 4,543 units).  Using Mr Blackwell’s estimated supply figure (of 5,124), demonstrates a current surplus of 79 units, rather than the shortfall Mr Blackwell identified of 101 units.
  17. [82]
    What is particularly significant, it seems to me, about this analysis is that it affects only one of the integers in Mr Blackwell’s analysis (the inclusion, in the method of calculating a demand rate of storage units not yet constructed), and results in demonstrating there is actually a surplus of storage units.  This does not factor in the issue about whether or not it is correct to include the 15% demand from outside the catchment area; or any adjustment based on the various assumptions inherent in the “existing supply” part of the table.    Even on this limited basis, the efficacy of Mr Blackwell’s analysis is undermined, and rendered unpersuasive.
  18. [83]
    But even if Mr Blackwell’s analysis were to be accepted, on its face, given the inherent imprecision in the figures, a shortfall of 101 units cannot be said to evidence demonstrable need.  On the contrary, the supply and demand figures are essentially balanced.
  19. [84]
    Mr Norling also observes that any need which there may be for a facility such as this can readily be accommodated on vacant land within appropriate zones within the catchment area, in which such a facility would be code assessable, not impact assessable, as it is here.[93]  Mr Norling says sufficient appropriately zoned land exists to meet any further or future need that may exist for additional self-storage facilities, which demonstrates “that there is simply no need for residential zoned land to be given over to industrial development”.[94]
  20. [85]
    Although Mr Blackwell disagreed with this,[95] his criticisms of the available, appropriately zoned land did not withstand scrutiny:
    1. (a)
      in terms of the area of Mr Norling’s identified alternative sites – these included sites within the 3,000 to 8,000m2 that Mr Blackwell considers ideal, as well as larger sites, which could (as in the case of the subject site) be subdivided if necessary;[96]
    2. (b)
      in relation to the alternative sites being further away for residents in his zone of maximum convenience than the subject site – he acknowledged that they are nevertheless within the customer catchment area and within the 7km/20 minutes’ drive time that the research indicates most people are prepared to travel;[97]
    3. (c)
      in relation to the alternative sites not having the appropriate level of commercial exposure – he acknowledged that most of them are located on main roads;[98]
    4. (d)
      in relation to an industrial location generally being a less desirable location for a modern storage facility – he acknowledged that it is not unusual under most planning schemes in the State for storage facilities to be located in industrial zones[99]; and
    5. (e)
      in relation to an industrial location being a less desirable location, particularly for “female users”, seemingly on the basis of safety concerns[100] – this seemed to be a personal opinion, and comment by Mr Blackwell; as Mr Norling observed, there is no objective data to support that point.[101]

Zone of maximum convenience

  1. [86]
    Mr Blackwell also conducted a separate analysis of the “convenience to the neighbourhood associated with the material change of use (warehouse) development”,[102] which began with the identification of what Mr Blackwell termed the “zone of maximum convenience”.   In relation to this part of his analysis, Mr Blackwell observed that “a typical self-storage customer base is made up of predominantly private users within residential accommodation”, suggesting a breakdown of 80% of customers being private individuals and 20% being business users; and therefore suggesting that the location of a self-storage facility in close proximity to people’s residences would be a good thing, in terms of convenience and efficiency.[103]
  2. [87]
    Mr Blackwell’s “zone of maximum convenience” is identified in figure 4 of exhibit 8A.  The boundary is identified as being the mid-point between the location of the proposed facility and the nearest competing self-storage facility.[104]  As Mr Blackwell agreed, it represents the area where, if approved, the proposed self-storage facility would be closer, for residents in that area, than any of the existing facilities.[105]
  3. [88]
    Using that smaller area – in which of course there are no existing self-storage facilities – Mr Blackwell arrives at an estimated demand of 472 storage units, which aligns with the 481 storage units likely to be provided by the proposed facility.
  4. [89]
    Mr Norling rejects the notion that the zone of maximum convenience is relevant to the analysis of need, on the basis that the research has established that self-storage customers travel much further distances to access self-storage facilities, and on the basis that defining a catchment on the basis that it excludes the existing provision of self-storage facilities is “self serving”.[106]  I accept his evidence in that respect.

Brisbane urban concentration area

  1. [90]
    Mr Blackwell also identified another area, in the course of the revised further work he carried out, after the hearing was adjourned to give him time to address the anomalies identified in his original work.  This area was called the “Brisbane urban concentration” area, which is a smaller section of the Brisbane SUA, which he describes as the “more established urban areas of Brisbane”, in which 99 of the 116 storage facilities (previously identified as being within the Brisbane SUA, and forming the basis of the supply rate discussed above) are located.[107]  Although describing it as including the “more established urban areas of Brisbane”, Mr Blackwell’s “Brisbane urban concentration” area excludes suburbs such as Kenmore, Chapel Hill and Fig Tree Pocket (among others).[108] Focussing on this “urban concentration area”, Mr Blackwell calculated a higher demand rate (of 20.5 units per 1,000 population; as opposed to 17.2 units per 1,000 population) which, when applied to the figures in table 2, resulted in an estimated shortfall of 1,081 storage units (as opposed to 101).  
  2. [91]
    For my part, all that this additional layer of analysis did was support the argument that Mr Blackwell’s calculations are contrived and spurious.  There is substance to the observation, by Mr Norling, that the introduction of this concept was curious, “at a time when the analysis based on the Brisbane SUA does not support his previous conclusions”,[109] and that by defining this smaller area, Mr Blackwell has artificially derived a larger supply/demand rate per capita.[110]  This analysis, which was confusing, and not, in the end, relied upon in a substantive way, only served to further undermine the cogency of Mr Blackwell’s analysis; which was already undermined, as a result of the corrections that were necessitated, and reflected in the second JER, and amended original JER (exhibit 8A).
  3. [92]
    My conclusions about this issue are, in the end, based on the analysis in so far as it concerns the customer catchment area (not the zone of maximum convenience, and not the Brisbane urban concentration area); taking into account the findings I have made about aspects of that analysis, above. 
  4. [93]
    The focus of the experts’ analysis of need was on questions of supply and demand; an essentially quantitative analysis.  Although Mr Blackwell said that qualitative issues, such as choice, convenience and accessibility were not taken into account by his analysis,[111] it seemed to me, from other evidence he gave, that some qualitative considerations were factored in, particularly in relation to the “existing supply” part of the equation.   In any event, the appellant argued, seemingly apart from Mr Blackwell’s numerical analysis, that a need for the proposed development could be established on the basis that it would provide choice to consumers; and, for those residents in the “zone of maximum convenience”, would be more convenient than the existing facilities.   In the present context, however, I am conscious of the meaning to be given to “need”, as it has been explained in the authorities, as referring to “an objectively perceived need for the development”, connoting “the idea that the physical well-being of a community, or some part of it, can be better and more conveniently served by providing the means for ensuring the provision of that facility”, as opposed to a subjective desire for the development.[112] 
  5. [94]
    Although the appellant submitted that the community’s well-being would be enhanced if the proposed facility was approved, as it will improve the services and facilities available in this locality, that must be considered in the light of the expert evidence which was placed before the court. That evidence, as discussed above, does not establish, objectively, that there is a need for a facility of this kind, in this location.  The so-called qualitative analysis, which the appellant sought to distinguish from the quantitative analysis undertaken by the experts, was principally focussed on Mr Blackwell’s “zone of maximum convenience”.  It may be accepted that a facility, on the land, would be convenient to residents in that area.  But in the present context, on the evidence, there is no reason why such residents, who might wish to avail themselves of a self-storage facility, could not readily utilise one of a number of existing facilities (which are located within the 7 km / 20 minutes travel time the research suggests is acceptable to most people; which does not seem unreasonable, given the further data that most people access their self-storage facility less than once a month).  That is, it has not been established that there is such a community, or economic, need for a facility such as this, in this location, to justify its approval, despite the conflict it otherwise presents, given the residential zoning of the area.
  6. [95]
    In so far as the appellant also sought to establish community need based on the growth of population said to be “reasonably anticipated given the particular forward planning for this part of Brisbane, which includes the re-development of … the Fitzgibbon Priority Development Area”,[113] I note the evidence of Mr Norling that this is not a prospective development, but has been in place since 2009.[114]   So, firstly, it was a known factor at the time City Plan 2014 came into force and, secondly, the demand, such as it might be, is already factored in by reference to the population figures the experts have taken into account.  Thirdly, in this regard, I reiterate that the appellant’s case, on the basis of Mr Blackwell’s evidence, was in terms of the current 2016 position; not on the basis of forward projection into the future.  In those circumstances, there is not before the court an appropriate evidential basis to form a conclusion, in relation to this submission.
  7. [96]
    In the end result, the appellant bears the onus of establishing, on the balance of probabilities, that the appeal ought to be allowed.  In so far as the issue of need is concerned, the appellant simply has not discharged that onus.  I am not persuaded, on the evidence before me, that an economic or community need for this facility, in this location, has been shown.  Even if there was a need, there is appropriately zoned land, within a reasonable distance, on which such a facility can appropriately be developed.  That of course is not a determinative factor, but it is a relevant one.

Other grounds

  1. [97]
    The other grounds identified by Mr Schomburgk, and on which the appellant relies,[115] are:
    1. (a)
      The relevant part of the land is an appropriate candidate for a commercial use, given its location at the intersection of a busy arterial road and because such a use would involve the re-use of a commercial site, rather than a new use of vacant land earmarked for a residential use, a matter the legislation obliges the court to take into account.

I have already addressed these matters, in relation to the matter of conflict; in my view, they do not, having regard to the conclusions I have reached, provide grounds to approve the development, despite the conflict.

  1. (b)
    In reality, it is unlikely the relevant part of the land would ever be developed for detached houses, having regard to its Gympie Road frontage, and the surrounding non-residential uses.

I regard this as a matter of speculation.  It was not apparent to me, from the evidence, that the land could not be developed in a manner consistent with its low density residential zoning (which is not restricted to detached houses).  I am therefore unpersuaded that this is a ground, in the public interest, that warrants the approval of the development, despite the conflict I have found.

  1. (c)
    The proposed development of the balance of the land for residential detached housing increases housing stock and choice in the locality, and provides a buffer between the storage facility and the existing residential uses.

This does not provide a ground, in the public interest, to overcome the conflict I have found, between the proposed commercial development on the balance of the land.

  1. (d)
    The amenity impacts from the proposed development will not be of a scale or intensity typically associated with a warehouse as defined in City Plan 2014.[116]

In light of the conclusions already reached above, in terms of the proposed use, and also the built form of the proposed development, I do not see how this could be a ground to overcome the conflict found with the planning scheme.

  1. (e)
    Amenity impacts on surrounding properties arising from the existing commercial use of the land (for a motel) will be reduced by the proposed development, because the volume of vehicles accessing the site will be lower than that generated by the motel; and the hours of operation will be reduced from the existing motel, which operates 24 hours a day.

Apart from Mr Schomburgk’s comments in this regard, there was no particular evidence about the difference, in terms of impacts, between the previous use, for a motel, and the proposed use, for a self-storage facility.  I am not in a position to form a view about this.  Nevertheless, I have accepted the submission that the proposed facility will have unacceptable visual amenity impacts, in conflict with what is intended by the planning scheme provisions.

Conclusion

  1. [98]
    The proposed development is in serious and major conflict with the planning scheme; and there are no grounds which have been established, on the evidence before the court, to justify approval of the development.  The appeal will therefore be dismissed, in so far as it concerns the material change of use for the purpose of a self-storage facility.
  2. [99]
    I will hear the parties as to the appropriate form of order (given the parties’ position in relation to the uncontested part of the proposed development) and also as to costs.

Footnotes

[1]JER – town planning (exhibit 7) at [13] and [14].

[2]JER – town planning (exhibit 7) at [11].  The current facility is depicted, from an aerial perspective, in exhibit 5 at p 1.

[3]JER – town planning (exhibit 7) at [17]-[22].

[4]Statement of Chris Schomburgk, a town planning consultant called by the appellant to give evidence (exhibit 11) at [7(ii)], and attachment 1.

[5]Statement of Nick McGowan, a landscape architect and urban designer called by the appellant to give evidence in relation to visual amenity issues (exhibit 12) at [14].

[6]See the depiction of land use in figure 4, on p 9 of McGowan (exhibit 12); see also exhibit 5, p 2.

[7]JER – town planning (exhibit 7) at [24].  See also exhibit 5, pp 13-14.

[8]JER – town planning (exhibit 7) at [23]-[25].  See also McGowan (exhibit 12) at [27].

[9]See exhibit 5, p 13 (area legend).

[10]Exhibit 5, p 19; McGowan T 2-8.2.

[11]McGowan T 2-8.

[12]Exhibit 5, p 19; McGowan T 2-7.31.

[13]See exhibit 22; McGowan T 2-11 and 2-34; also McGowan (exhibit 12) at [28]-[30].

[14]JER – town planning (exhibit 7) at [13].

[15]McGowan T 2-36.

[16]See exhibit 6, p 2.

[17]JER – town planning (exhibit 7) at [15].

[18]See schedule 1 (definitions), table SC1.1.1B (definition of “warehouse”, which includes, as an example, “self-storage sheds”).

[19] Woolworths Ltd v Maryborough City Council (No. 2) [2006] 1 Qd R 273 at [23].

[20]Schedule 3 of the Planning Act, definition of “grounds”.

[21]See also Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302 at [18]-[21].

[22] Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82 at [52], referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71], [78].

[23] Zappala at [56].

[24][2006] QPELR 54 at [11] per Wilson SC DCJ.

[25](2011) 185 LGERA 63; [2012] QPELR 354 at [20] per Fraser JA.

[26][2007] QPELR 356 at [16] and [17].

[27]Emphasis added.

[28]Emphasis added.

[29]Section 3.3.1(1)(g) and (k)

[30]JER – town planning (exhibit 7) at [39], [40], [48].

[31]Appellant’s submissions at [70], [94] and [102(b)]; and T 6-23.16 - 6-24.3.

[32]“Community use” is defined in schedule 1, table SC1.1.1.B to mean “premises used for providing artistic, social or cultural facilities and community support services to the public and may include the ancillary preparation and provision of food and drink”.   Examples include an art gallery, community centre, community hall, library and museum.

[33]“Community facilities” are defined in schedule 1, table SC1.1.2.B as cemetery; club; child care centre; community care centre; community residence; community use (as to which, see footnote 32); crematorium; educational establishment; funeral parlour; emergency services; health care services; hospital;; major sport, recreation and entertainment facility; place of worship.

[34]Substation is also defined in schedule 1, table SC1.1.1.B.

[35]Emphasis added.

[36]Namely, s 6.2.1.1(1) (purpose); s 6.2.1.1(4)(j) (overall outcomes) of the low density residential zone code; and also s 3.7.1(g)(vi) of the strategic framework. 

[37]Appellant’s submissions at [105].

[38]Council’s oral submissions T 6-6.

[39]JER – town planning (exhibit 7) at [57]-[62].

[40]Schomburgk T 3-24.9.

[41]Schomburgk T 3-27.37.

[42]Blackwell T 5-47.35; Norling T 5-54.19-.26 (Mr Norling said all but one of the self-storage facilities in the catchment area were in industrial or centre areas; he thought one was in a residential area, but said “that’s an historical happening”).  See also Norling T 5-64.45.

[43]Council’s submissions at [99]; see also Synergy Property Partners No 2 Pty Ltd v Brisbane City Council [2016] QPELR 474 at [20].

[44]Schomburgk at JER [114] and T 3-15.43-.46; Morrissy T 3-41.45.

[45]See, for example, Zappala v Brisbane City Council (2014) 201 LGERA 82 at [77]-[82].

[46] Zanow v Ipswich City Council [2010] QPELR 721 at [44], referring to K C Drew Pty Ltd v Brisbane City Council [1990] QPLR 232 at 235.

[47]Statement of Chris Schomburgk (exhibit 11) at [8]; also Schomburgk T 3-7.

[48]JER – town planning (exhibit 7) at [120].

[49] Neilsens v Brisbane City Council at [122], referring to Berry v Caboolture Shire Council & Johnston [2002] QPELR 96 at [14].

[50] Stappen Pty Ltd v Brisbane City Council [2005] QPELR 466 at [32]-[34].

[51]Exhibit 12 at [32] and [102].

[52]McGowan T 2-20.41.

[53]Exhibit 12 at [103].

[54]See, for example, exhibit 15A at p 5.

[55]Appellant’s submissions at [146].

[56]Council’s written submissions at [152]-[160].

[57]Schomburgk at JER – town planning (exhibit 7) [155]; T 3-13.3 and 3-15.29.

[58]JER – economic need experts (exhibit 8).   As a result of errors in calculations undertaken by Mr Blackwell, which were identified at the commencement of his cross-examination, the hearing was adjourned and a further joint report was prepared (exhibit 27); as well as revised (marked up) versions of the original JER (exhibit 8A) and Mr Blackwell’s individual statement (exhibit 15A).   In these reasons, for convenience, reference will only be made to the amended versions of the latter two reports – the original JER (exhibit 8A) and Mr Blackwell’s individual statement (exhibit 15A).

[59]Exhibit 8A at [18(a)]; also Blackwell T 5-23.

[60]Exhibit 8A at [19(h)] and [34].

[61]Exhibit 8A at [19(e)]; also Blackwell T 5-22.37.

[62]Exhibit 8A at [19(g)] and [24]

[63]Exhibit 8A at [19(i)].

[64]Exhibit 15A.

[65]Blackwell T 2-46.

[66]Exhibit 8A at [23].

[67]Exhibit 8A at [73].

[68]Exhibit 8A at [35].

[69]Exhibit 8A at [87].

[70]Exhibit 8A at [28]-[30].

[71]Exhibit 27 at [55].

[72]38,706 storage units, divided by 2016 population of 2,245,900 = 0.0172.

[73]Exhibit 27 at [51].

[74]Exhibit 27 at [59].  Removing the two yet to be constructed facilities results in an available supply of 37,456 units, divided by the population of 2,245,900 = 0.0167.

[75]Exhibit 27 at [60].

[76]Supply rate of 0.0172, multiplied by 84.09% = 0.0145.

[77]Exhibit 27 at [62].  Mr Norling’s supply rate of 0.0167, multiplied by 84.09% = 0.0140.

[78]Exhibit 8A at [40] and [41]

[79]Exhibit 8A at [46].

[80]Exhibit 8A at [87(b)] and [87(d)].

[81]Exhibit 8A at [42] and [87(e)].  See also amended figure 2, in exhibit 8A

[82]In relation to this aspect of Mr Blackwell’s calculations, the number of units attributed to each of the existing storage facilities did change, between his original table 2 (estimating 7,164 units) and his revised table 2 (estimating 7,545 units).  This information was obtained by Mr Blackwell using a variety of methods, including using Google streetview images; or having conversations with owners, managers or family members of those people.  See exhibit 29; Blackwell T 5-38.   Mr Blackwell acknowledged that in his original work he had relied on outdated data; and that he had updated that, in preparing the revised table 2.

[83]313,341 multiplied by a demand rate of 0.0145 = 4543.

[84]Exhibit 8 at [50]; exhibit 15A at [34].

[85]Exhibit 8 at [87(f)]; Mr Norling’s individual statement (exhibit 18) at [8].

[86]T 5-39.  Again, there were some changes to the percentages Mr Blackwell had adopted in his original table 2, and those included in his revised table 2.

[87]Exhibit 8A at [55].

[88]Exhibit 8A at [56].

[89]Blackwell T 5-18 and T 5-34.35.

[90]Exhibit 8A at [87(g)].

[91]Exhibit 8A at [87(j)]; exhibit 27 at [66]; exhibit 18 at [9].

[92]Exhibit 18 at [9].

[93]Exhibit 8A at [88]-[92]; exhibit 18 at [11]-[12].   The sites are plotted by Mr Blackwell in figure 4, on p 23 of exhibit 8A.

[94]Exhibit 18 at [12].

[95]Exhibit 8A at [81]-[85].

[96]Blackwell T 5-30 to 5-31.

[97]Blackwell T 5-29.

[98]Blackwell T 5-30.17.

[99]Blackwell T 5-32.17.

[100]Blackwell T 2-48 and 2-55.

[101]Norling T 5-60.14.

[102]Exhibit 8A at [31].

[103]Exhibit 8A at [57]-[60] and [76].

[104]Exhibit 8A at [61].

[105]Blackwell T 5-27.40; see also Norling T 5-63.15.

[106]Exhibit 8A at [87(k)].

[107]Exhibit 27 at [16]-[18].  Appendix C to exhibit 27; a larger version of which is exhibit 28.

[108]Exhibit 27 at [57].

[109]Exhibit 27 at [52] and [58].

[110]Exhibit 27 at [57].

[111]Blackwell T 5-33.15.

[112] All-A-Wah Carapark Pty Ltd v Noosa Shire Council [1989] QPLR 155 at 157;

[113]Appellant’s submissions at [124].

[114]Norling T 5-64.20.

[115]Appellant’s submissions at [160]; Schomburgk JER – town planning (exhibit 7) at [159].

[116]See also Schomburgk T 3-8.44 - 3-9.16.

Close

Editorial Notes

  • Published Case Name:

    Fortress Freeholds Pty Ltd v Brisbane City Council & Ors

  • Shortened Case Name:

    Fortress Freeholds Pty Ltd v Brisbane City Council

  • MNC:

    [2016] QPEC 63

  • Court:

    QPEC

  • Judge(s):

    Bowskill DCJ

  • Date:

    16 Dec 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
All-A-Wah Carapark v Noosa Shire Council (1989) QPLR 155
2 citations
Jump To
Cite 1 - (1989) QPLR 155
Cite 2 - (1989) QPLR 155
Berry & Ors v Caboolture Shire Council & Johnson [2002] QPELR 96
1 citation
Jump To
Cite 1 - [2002] QPELR 96
Equity Limited v Gold Coast City Council (2007) QPELR 356
1 citation
Jump To
Cite 1 - (2007) QPELR 356
K C Drew Pty Ltd v Brisbane City Council [1990] QPLR 232
1 citation
Jump To
Cite 1 - [1990] QPLR 232
Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QPELR 54
1 citation
Jump To
Cite 1 - [2006] QPELR 54
Lockyer Valley Regional Council v Westlink [2012] QPELR 354
1 citation
Jump To
Cite 1 - [2012] QPELR 354
Lockyer Valley Regional Council v Westlink Pty Ltd[2013] 2 Qd R 302; [2012] QCA 370
1 citation
Jump To
Cite 1 - [2013] 2 Qd R 302
Lockyer Valley Regional Council v Westlink Pty Ltd & Ors (2011) 185 LGERA 63
1 citation
Jump To
Cite 1 - (2011) 185 LGERA 63
Neilsens Quality Gravels Pty Ltd v Brisbane City Council [2016] QPELR 709
3 citations
Jump To
Cite 1 - [2016] QPELR 709
Cite 2 - [2016] QPELR 709
Cite 3 - [2016] QPELR 709
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
Jump To
Cite 1 - (1998) 194 C.L.R 355
Stappen Pty Ltd v Brisbane City Council (2005) QPELR 466
2 citations
Jump To
Cite 1 - (2005) QPELR 466
Cite 2 - (2005) QPELR 466
Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474
2 citations
Jump To
Cite 1 - [2016] QPELR 474
Cite 2 - [2016] QPELR 474
Weightman v Gold Coast City Council[2003] 2 Qd R 441; [2002] QCA 234
2 citations
Jump To
Cite 1 - [2003] 2 Qd R 441
Cite 2 - [2003] 2 Qd R 441
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
1 citation
Jump To
Cite 1 - [2006] 1 Qd R 273
Zanow v Ipswich City Council [2010] QPELR 721
2 citations
Jump To
Cite 1 - [2010] QPELR 721
Cite 2 - [2010] QPELR 721
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
4 citations
Jump To
Cite 1 - (2014) 201 LGERA 82
Cite 2 - (2014) 201 LGERA 82
Cite 3 - (2014) 201 LGERA 82
Cite 4 - (2014) 201 LGERA 82

Cases Citing

Case NameFull CitationFrequency
Body Corporate For Roydon Community Titles Scheme 1487 v Cairns Regional Council [2020] QPEC 601 citation
Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPEC 252 citations
1

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