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  4. King of Gifts (Qld) Pty Ltd v Redland City Council - [2017] QPEC 64

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King of Gifts (Qld) Pty Ltd v Redland City Council[2017] QPEC 64

King of Gifts (Qld) Pty Ltd v Redland City Council[2017] QPEC 64

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64

PARTIES:

KING OF GIFTS (QLD) PTY LTD

(appellant)

v

REDLAND CITY COUNCIL

(respondent)

and

DEPARTMENT OF TRANSPORT AND MAIN ROADS

(first co-respondent by election)

FILE NO/S:

3641 of 2015

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

6 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2017, 2 and 3 August 2017, 11 and 31 October 2017

JUDGE:

Kefford DCJ

ORDER:

The appeal will, in due course, be allowed.  I will adjourn the further hearing to allow for the formulation of conditions.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for material change of use for a service station and drive through restaurant – whether there is conflict with the planning scheme – whether the use will have unacceptable visual amenity impacts – whether the use will have unacceptable ecological impacts – whether the nature and location of the use is inappropriate – whether there is a need for the proposed development – whether there are sufficient grounds to approve the development despite conflict with the planning scheme

LEGISLATION:

Planning Act 2016 (Qld), s 311

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

CASES:

Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2017] QPEC 53, cited

Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, applied

Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147, applied

COUNSEL:

P A Beehre for the appellant

K W Wylie for the respondent

SOLICITORS:

No appearance for the appellant

Redland City Council for the respondent

Table of contents

Introduction..........................................................................................................................................................................3

The subject site.....................................................................................................................................................................3

The locality............................................................................................................................................................................3

The proposed development...............................................................................................................................................4

The decision framework.....................................................................................................................................................5

The issues.............................................................................................................................................................................6

Redlands Planning Scheme................................................................................................................................................9

Visual amenity impacts.....................................................................................................................................................10

Ecological impacts.............................................................................................................................................................16

Ecological issues relevant to the southern portion.......................................................................................................19

Ecological issues relevant to the northern portion.......................................................................................................25

The nature and location of the use and character of the built form..........................................................................29

Draft Redland City Plan 2015...........................................................................................................................................36

Nature and extent of conflict...........................................................................................................................................36

Grounds..............................................................................................................................................................................37

Need....................................................................................................................................................................................37

Other grounds...................................................................................................................................................................42

Conclusion.........................................................................................................................................................................44

Introduction

  1. [1]
    The appellant seeks a development approval for a material change of use to develop a degraded and disused farm at the confluence of two major roads for a service station (including associated shop and carwash facility) and a drive through restaurant. Although Redland City Council (“Council”) accepts there is a need for a service station, it refused the appellant’s development application.  Council contends that the use should not be established in this location as the land is zoned Open Space and Environmental Protection.

The subject site

  1. [2]
    The subject site is located at 604-612 Redland Bay Road, Alexandra Hills and has an area of 3.522 hectares. It is presently improved by two houses and two sheds in its southern corner. More than 95 per cent of the subject site is cleared and grassed, although there is a patch of natural vegetation associated with the creek in the north-west and scattered native trees in the east, with the remaining vegetation comprising ornamental and orchard species.[1]
  1. [3]
    Hilliards Creek flows in a generally easterly direction, through culverts beneath Redland Bay Road, and passes the north-west corner of the subject site before continuing in a north-easterly direction.[2]
  1. [4]
    The subject site is located on the north-eastern corner of the roundabout intersection of Redland Bay Road, Boundary Road, Duncan Road and Taylor Road, Alexandra Hills. It has frontage to Redland Bay Road and Boundary Road, both of which are State-controlled roads that form a major transport corridor from Capalaba to Victoria Point.[3]  The subject site slopes downwards away from the roundabout towards the northern, rear portion of the site.[4]

The locality

  1. [5]
    The surrounding area has a mix of uses, most of which are rural or non-urban in nature. The uses include housing on large rural or semi-rural lots and agricultural activities, including poultry farming. To the east of the subject site, further along Boundary Road, is a flower farm, produce store and other similar uses.[5]  Sheldon College is located approximately 450 metres to the south of the subject site and the Victoria Point Shopping Centre and Capalaba Park Shopping Centre are each located approximately five to six kilometres east and north respectively from the subject site.[6]
  1. [6]
    The land to the east, around Kinross Road and Panorama Drive, is in a state of transition to urban development, generally reflecting the uses encouraged by the Kinross Road Structure Plan. That document does not, however, contemplate urbanisation of the subject site.[7] 

The proposed development

  1. [7]
    The proposed development is for a combined service station and drive-through restaurant to be located on the southern portion of the subject site, closest to the Boundary Road frontage. It incorporates:
  1. (a)
    a service station and convenience retail facility in a single-storey building with a gross floor area of approximately 316 square metres.  Toilet facilities, with an area of 75 square metres, are connected to the service station;
  1. (b)
    eight fuel pump stations, with 14 fuelling positions, in an undercover fuelling area of 473 square metres;
  1. (c)
    a car wash facility with four bays and a small office and equipment area, located to the north of the fuel pumps and with a total gross floor area of 234 square metres;
  1. (d)
    a fast food restaurant with drive-through facility, with a gross floor area of 251 square metres, which is to be located adjoining the eastern side of the service station, linked by a 600 square metre unenclosed courtyard;
  1. (e)
    69 car parking spaces;
  1. (f)
    two noise barriers and a landscape buffer to the adjoining property to the east;
  1. (g)
    substantial road widening to Redland Bay Road and Boundary Road;
  1. (h)
    a vegetated environmental buffer in the northern part of the subject site, in the vicinity of existing vegetation and proximate to Hilliards Creek and a buffer area that is to be re-vegetated towards the northern end of the subject site;
  1. (i)
    on site effluent disposal with a surface irrigation area of 2 100 square metres, bounded by a chain wire fence on its southern side; and
  1. (j)
    a ten metre high pylon sign on each road frontage (subject to future approval).[8]
  1. [8]
    The proposed hours of operation are 24 hours a day, seven days a week.[9]
  1. [9]
    All vehicular access is proposed to be via a left-in left-out access from Redland Bay Road, with a left-out-only facility provided onto Boundary Road.[10]
  1. [10]
    The appellant does not oppose a condition imposed by the Department of Transport and Main Roads that requires approximately 5 000 square metres of the subject site adjoining Redland Bay Road and Boundary Road to be kept free of permanent buildings, structures and improvements as the land will ultimately be required for road widening.[11]

The decision framework

  1. [11]
    The appeal was commenced under s 461 of the now repealed Sustainable Planning Act 2009 (Qld).  Pursuant to s 311 of the Planning Act 2016 (Qld), the appeal is to be decided under the provisions of the Sustainable Planning Act 2009. 
  1. [12]
    Under s 495, the appeal proceeds by way of hearing anew. 
  1. [13]
    Under s 493 of the Sustainable Planning Act 2009, the appellant bears the onus of establishing that the appeal should be allowed and the development application approved.
  1. [14]
    The development application was made on or about 23 April 2012.[12]  At that time, Redlands Planning Scheme Version 4 (“Redlands Planning Scheme”) was in force.
  1. [15]
    As the development application was impact assessable, it is to be assessed having regard to s 314 of the Sustainable Planning Act 2009 and decided in accordance with s 324 and s 326.  Pursuant to s 326, a decision must not conflict with the Redlands Planning Scheme unless, relevantly, there are sufficient grounds to justify the decision despite the conflict.
  1. [16]
    Conflict means “at variance or disagree with”.[13]
  1. [17]
    The word “grounds” is defined in Schedule 3 of the Sustainable Planning Act 2009 as:

“1. Grounds means matters of public interest.

  1. Grounds does not include the personal circumstances of an applicant, owner or interested party.”

The issues

  1. [18]
    In its decision notice dated 20 August 2015, Council notified its decision to refuse the proposed development.[14]  On 9 November 2016, pursuant to an order of this court, Council amended its grounds for refusal.[15]  Council’s Amended Grounds for Refusal alleged conflict with more than 120 provisions of the Redlands Planning Scheme,[16] many of which contained several propositions.  In addition, Council alleged conflict with 20 provisions of the draft Redland City Plan 2015.  Council’s Amended Grounds for Refusal did not include any statement of the basis for the alleged conflicts. 
  1. [19]
    On the second day of the hearing, Council provided its Further Amended Grounds of Refusal.[17]  This only slightly narrowed the number of provisions with which it alleged conflict – reducing the number of provisions to be addressed to around 93.  Again, Council provided no statement of the basis on which it alleged conflict with the identified provisions.
  1. [20]
    Many of the provisions identified by Council were not mentioned, let alone addressed, in its written submissions. In advancing its case, Council’s written submissions focussed on allegations of conflict:
  1. (a)
    occasioned by visual amenity impacts, in relation to which it alleged conflict with:
  1. (i)
    Desired Environmental Outcome No. 2 – Character and Identity – s 3.1.3(1)(b)(i) and (iv);
  1. (ii)
    overall outcomes 4.6.7(2)(c)(i)a. and d. and 4.6.7(2)(d)(i)b. and c. of the Environmental Protection Zone Code;
  1. (iii)
    specific outcome S3.2 of the Environmental Protection Zone Code;
  1. (iv)
    overall outcome 5.15.8(2)f. (with respect to the third square bullet point only) and specific outcome S1.7(1)(c) of the Kinross Road Structure Plan Area Overlay Code;
  1. (b)
    occasioned by ecological impacts, in relation to which it referred to:
  1. (i)
    Desired Environmental Outcome No. 1 – Natural Environment – s 3.1.2(1)(a)(i)c. and f.;
  1. (ii)
    overall outcomes 4.6.7(2)(a)(i)c. and e. of the Environmental Protection Zone Code;
  1. (iii)
    specific outcome S1.1 of the Environmental Protection Zone Code;
  1. (iv)
    overall outcomes 5.15.8(2)f. (with respect to the second triangle bullet point under the fourth square only) and 5.15.8(2)g. (with respect to the first, second and third triangle bullet points under the first square and the first triangle bullet point under the second square only) and specific outcomes S1.7(2)(b), S1.9(1)(a) and (f) and S1.9(2)(a) of the Kinross Road Structure Plan Area Overlay Code;
  1. (c)
    occasioned by the nature and location of the use and the type of built form, with respect to which it referred to:
  1. (i)
    specific outcomes S 2.1 and S 2.2(1)(a), (b), (c) and (e) of the Environmental Protection Zone Code;
  1. (ii)
    specific outcomes S1.1 and S1.2(1)(d) of the Open Space Zone Code;
  1. (iii)
    overall outcomes 5.15.8(2)f. (with respect to the first and third triangle bullet point under the fourth square only) and 5.15.8(2)g. (with respect to the fourth triangle bullet point under the first square) and specific outcomes S1.1(1), S1.7(2)(a) and (c) and S1.9(2)(i) of the Kinross Road Structure Plan Area Overlay Code; and
  1. (iv)
    overall outcome 6.9.3(2)(a)(i) and (ii) and specific outcome S1(1)(a) and (b) of the Drive Through Restaurant Code.
  1. [21]
    Following a further mention of the matter on 31 October 2017, during which I sought assistance from Council about its position, Council indicated that it did not require this court to consider allegations of conflict with provisions other than those identified in paragraph [20] above.  It also indicated that it no longer pressed allegations of conflict with overall outcome 5.15.8(2)g. (with respect to the fourth triangle bullet point under the first square) and specific outcome 1.9(2)(i) of the Kinross Road Structure Plan Area Overlay Code.
  1. [22]
    Consequently, the issues to be determined in this appeal are:
  1. (a)
    whether approval of the proposed development conflicts with the Redlands Planning Scheme by reason of:
  1. (i)
    visual amenity impacts;
  1. (ii)
    ecological impacts;
  1. (iii)
    the nature and location of the use and character of the built form;
  1. (b)
    whether provisions of the draft Redland City Plan 2015 ought be given weight and warrant refusal of the development application; and
  1. (c)
    the nature and extent of the conflict and whether there are sufficient grounds to justify approval of the proposed development notwithstanding conflict with the Redlands Planning Scheme.

Redlands Planning Scheme

  1. [23]
    The built form of the proposed development is located in the southern part of the subject site, which is in the Environmental Protection Zone and Precinct 6a - Bushland Living (multiple locations).
  1. [24]
    The effluent treatment area is located in the northern part of the subject site, which is zoned Open Space and within Precinct 7a – Greenspace Network (Hilliards Creek Core Habitat and Corridor) in the Kinross Road Structure Plan Area.[18] 
  1. [25]
    For impact assessable development, Redlands Planning Scheme requires development to be assessed against all relevant provisions of the Redlands Planning Scheme.[19]
  1. [26]
    Redlands Planning Scheme includes six desired environmental outcomes, each of which are “sought to be achieved, or at a very least not compromised to the extent practicable having regard to each of the other DEOs, during the life of the Redlands Planning Scheme”.[20]
  1. [27]
    The codes that are relevant to an assessment of the proposed development in the context of this appeal are the Environmental Protection Zone Code, the Open Space Zone Code, the Kinross Road Structure Plan Overlay Code and the Drive Through Restaurant Code.
  1. [28]
    Insofar as codes are concerned, Redlands Planning Scheme contemplates that:
  1. (a)
    a probable solution for a specific outcome provides a guide to achieving that specific outcome in whole or in part, and does not limit the assessment manager’s discretion to impose conditions on a development approval;[21]
  1. (b)
    development that is consistent with the specific outcomes in a code complies with the code;[22] and
  1. (c)
    where provisions of the Kinross Road Structure Plan Area Overlay Code are in conflict with another code in the Redlands Planning Scheme, the specific outcomes and probable solutions in the Kinross Road Structure Plan Area Overlay Code take precedence.[23]

Visual amenity impacts

  1. [29]
    With respect to visual amenity impacts, Council alleges a decision to approve the proposed development would conflict with:
  1. (a)
    Desired Environmental Outcome No. 2 – Character and Identity – s 3.1.3(1)(b)(i) and (iv), which states:[24]

“(1) Redland City’s unique character and identity is protected and strengthened by –

…

  1. (b)
     ensuring a compact urban form and pattern of development that maintains and enhances the identifiable coastal, hinterland and island communities with each –
  1. (i)
     separated by greenspace;

…

  1. (iv)
     incorporating a building height, scale and range of residential uses that reflect the local context and locational characteristics.”
  1. (b)
    overall outcomes 4.6.7(2)(c)(i)a. and d. and 4.6.7(2)(d)(i)b. and c. of the Environmental Protection Zone Code, which state:[25]

“(c) Built Form and Density

  1. (i)
     The scale of uses and other development minimise adverse impacts on environmental values and the landscape setting by –

a. using a low impact built form that reduces impacts on the land;

…

d. limiting and containing the footprint of the development.

  1. (d)
     Amenity
  1. (i)
     Uses and other development achieve a high standard of environmental and visual amenity by -

…

b. protecting scenic values associated with the landscape, including bushland backdrops when viewed from nearby or at a distance;

c. complementing the landscape setting within which development occurs;”

  1. (c)
    specific outcome S3.2 of the Environmental Protection Zone Code, which states:[26]

“S3.2(1) Buildings and structures –

  1. (a)
    maintain a low rise appearance;
  2. (b)
    are not visually prominent from external areas.”
  1. (d)
    overall outcome 5.15.8(2)f.[27] and specific outcome S1.7(1)(c) of the Kinross Road Structure Plan Area Overlay Code, with respect to the Bushland Living Precinct, which each state:[28]

“ensures uses are low key, cover only a small portion of the land and have a very low impact on environmental values”.

  1. [30]
    Council submits that, read collectively, these provisions demonstrate an intention that development on the subject site:
  1. (a)
    be low impact, in that development should be “low-key” and cover only a small portion of the relevant site; 
  1. (b)
    be low-profile, such that its prominence could not be said to be inconsistent with the otherwise prevailing non-urban or rural landscape setting; and
  1. (c)
    have a visual impact akin to a detached dwelling, within a native habitat area, and as part of a fauna movement corridor.
  1. [31]
    With respect to the alleged conflict, Council relies on the evidence of Mr Chenoweth, particularly his description of the nature of the conflict as follows:[29]

“3.1 AC considers that the proposed development will convert almost all the part of the site intended for low density Bushland Living (15,780 m2, excluding road widening) into an intensively developed complex of concrete surfaces, buildings, signs, lighting and roof forms with a distinctly urban character; and that this change will have a detrimental impact on the local area because the corner site is relatively prominent, elevated with respect to Redland Bay Road and seen by large numbers of motorists daily.

3.2 AC considers that the incompatibility between the proposed development and its semi-rural setting (and planning intentions for the zones and Structure Plan) are exacerbated by the scale of development and its location on a relatively elevated site (as seen from Redland Bay and Boundary Road). He notes that the proposed service station development, even though reduced from the size initially applied for, will be one of the larger service station complexes in Redland City, with a drive through facility of 251m2, 14 fuelling spots, a 316m2 convenience store and a 4-bay carwash occupying around 12,850m2 of the site (excluding the proposed effluent disposal area)”.

  1. [32]
    I accept that the proposed development involves an intensively developed complex of built form with a distinctly urban character. I do not regard the use as “low key”, nor as one that “cover(s) only a small portion of the land” and, in that respect, approval of the proposed development would conflict with overall outcome 5.15.8(2)f.[30] and specific outcome S1.7(1)(c) of the Kinross Road Structure Plan Area Overlay Code.  It also conflicts with overall outcome 4.6.7(2)(c)(i)d. of the Environmental Protection Zone Code, as I would not describe the footprint as limited or contained, even though it is confined to that part of the subject site that is already cleared.
  1. [33]
    Although there are other businesses within the same visual catchment,[31] in my view a decision to approve the proposed development would conflict with overall outcome 4.6.7(2)(d)(i)c. of the Environmental Protection Zone Code as, to the extent that it is visible, the use is not one that complements the current landscape setting.  It is of a very different built form character to what currently exists or is encouraged in the Redlands Planning Scheme,[32] particularly given the night-time glow that will be associated with the 24 hour a day use.[33]
  1. [34]
    However, I do not consider there is conflict with overall outcomes 4.6.7(2)(c)(i)d. or 4.6.7(2)(d)(i)b. or specific outcome 3.2(1) of the Environmental Protection Zone Code. I also do not regard the conflicts identified in paragraph [32] above as serious.  In my view, the proposed development has been designed such that it will minimise adverse impacts on the landscape setting and will have minimal visual impact overall.  In that regard it is material that:
  1. (a)
    although the subject site is elevated compared to some parts of the surrounding land, the built form is not at the peak of a hill;[34]
  1. (b)
    the intersection may be prominent and the subject site visible when viewed at the intersection,[35] but the catchment from which the built form on the subject site is visible is limited.  As was noted by Mr Powell (the visual amenity expert retained by the appellant), a combination of the existing topography and existing vegetation limits the areas from which the subject site and proposal are likely to be clearly viewed.[36]  This was borne out by what I viewed on a site inspection.[37]  The photomontages demonstrate that, except from directly in front of the subject site, the buildings associated with the proposed development are unlikely to be visible from the main elongated north-south stretch of the visual catchment along Redland Bay Road.  Further, those present in the visual catchment will, in the main, be occupants of vehicles travelling along the State-controlled road.  Their attention will, necessarily, also be drawn to other things, not the least of which being the major roundabout that will need to be navigated;[38]
  1. (c)
    the buildings are low-rise in appearance.[39]  The building height is limited to a maximum height of approximately 5.5 metres, which is considerably less than the height that could be achieved by a compliant two storey house.[40]  The buildings are also well set back from the road frontage;[41]
  1. (d)
    as was accepted by Mr Chenoweth, it would be difficult to appreciate the extent of the development footprint from locations external to the subject site;[42]
  1. (e)
    the proposed development appears to “sit down” below the road[43] and is not overbearing[44] or visually prominent.[45]  It is subservient in height to the surrounding mature trees;
  1. (f)
    the proposed development will not breach any important skyline or bushland views;[46]
  1. (g)
    the proposed acoustic fence is capable of being screened by attractive landscaping so as to ensure the visual amenity of the neighbour is not degraded;[47] and
  1. (h)
    any pylon sign associated with the development will be visible, but would not be so discordant with the character of the area as to be significant.  The area includes other pylon signs, such as that for Hoya Garden Plaza, as well as significant signage associated with the road network.[48]  The sign would also be visible for only a short distance along Redland Bay Road, and only for a matter of seconds as occupants of vehicles approach the roundabout at the intersection of Redland Bay Road and Boundary Road.[49]
  1. [35]
    These matters also mitigate the seriousness of the conflict with those provisions identified in paragraphs [32] and [33] above.
  1. [36]
    In terms of the proposed use of the northern portion of the subject site for an effluent treatment area, Council submits that the maintenance of a grassed area cropped to approximately 100 millimetres would conflict with the area’s intended visual appearance, which it describes as “native habitat, which would include native and uncropped grasses, shrubs and trees.”  I do not regard the submission as meritorious.  That part of the subject site is within Sub-precinct 7a - Hillards Creek Core Habitat and Corridor in the Kinross Road Structure Plan Area Overlay.  The area is intended to incorporate a sub-regional habitat and movement corridor for koalas and other native fauna.[50]  From a visual perspective, that may present as a mixture of patches of trees and shrubs, with small patches of grass, as suggested by Mr Chenoweth,[51] but I do not accept that the whole of an area so designated must necessarily present as such.  The relevant part of the subject site will include some trees, as well as native grasses.[52]  In any event, as was acknowledged by Mr Chenoweth, passing motorists will not notice very much difference and there are areas outside of the effluent treatment area that could be planted to achieve the visual outcome referred to by Mr Chenoweth.[53]
  1. [37]
    Finally, with respect to visual amenity issues, Council alleges that the proposed development is in fundamental conflict with the Redlands Planning Scheme, in that it will compromise, or reduce the effectiveness of, the inter-urban break in the vicinity of the subject site.  I do not accept this factual proposition, nor do I regard Desired Environmental Outcome No. 2 as providing for such a break.
  1. [38]
    Desired Environmental Outcome No. 2 seeks separation between identifiable “communities”, not development areas. 
  1. [39]
    On the issue of a break, Council seeks to rely on s 3.3.1.1(8) of the Draft Redland City Plan 2015 as supporting its contention that the local government has planned the area as an inter-urban break. That strategic outcome states that “development maintains waterway corridors and habitat areas as green breaks within the urban area.”[54]  Council also referred to s 3.3.1.1(9)(h), which states that “the pattern of urban development … maintains the scenic and recreational values of the Redlands’ natural, rural and coastal landscapes.”[55]  With respect to this issue, I accept the evidence of Mr Powell that the proposed development is unlikely to prevent the local waterway on the site from continuing to contribute (to the extent that it is currently able) to the separation between urban forms.[56]  The proposed landscaping will also assist with this, as does the limited visibility of the proposed development.

Ecological impacts

  1. [40]
    With respect to ecological impacts, Council alleges a decision to approve the proposed development would conflict with:
  1. (a)
    Desired Environmental Outcome No. 1 – Natural Environment – s 3.1.2(1)(a)(i)c. and f., which state:[57]

“(1) Redland City’s environmental values and natural resources are managed in a sustainable manner to maintain biodiversity, ecological processes and community well being by ensuring development –

  1. (a)
     protects and enhances –
  1. (i)
     a wide range of natural ecosystems including –

…

c. areas where there are opportunities for environmental enhancement activities to support significant ecosystems and also provide natural corridor linkages between conservation areas;

…

f. locally significant patches, corridors and mosaics of bushland that support wildlife throughout the City.”

  1. (b)
    overall outcomes 4.6.7(2)(a)(i)c. and e. of the Environmental Protection Zone Code, which state:[58]

“(i) Ensure uses and other development identify, protect and provide for the long-term management and enhancement of the environmental values associated with this zone, being – 

…

c. corridors, networks, patches and mosaics of native plants, and all areas where native animals have relatively unimpeded movement when compared to urban areas;

…

e. native animals, native plants and ecosystems, any of which are common (least concern), vulnerable, rare or endangered as defined in the Nature Conservation Act 1992;”

  1. (c)
    specific outcomes S1.1(1)(a) and (b) of the Environmental Protection Zone Code, which state:[59]

“S1.1(1) Uses and other development maintain, enhance and protect environmental values by-

  1. (a)
     re-vegetating degraded and cleared areas;
  1. (b)
     retaining and increasing native animal movement through the premises;”
  1. (d)
    overall outcomes 5.15.8(2)f. (with respect to the second triangle bullet point under the fourth square only) and 5.15.8(2)g. (with respect to the first, second and third triangle bullet points under the first square and the first triangle bullet point under the second square only) and specific outcomes S1.7(2)(b), S1.9(1)(a) and (f) and S1.9(2)(a) of the Kinross Road Structure Plan Area Overlay Code, which state:[60]

“5.15.8 Overall Outcomes of the Kinross Road Structure Plan Area Overlay Code

…

f. Bushland Living Precinct – (Precinct 6)

…

  • Sub-Precinct 6a Bushland Living (Multiple Locations)

…

  • protects, enhances and maintains waterways, habitat and movement corridors for koalas and other fauna

…

g. Greenspace Precinct – (Precinct 7)

  • an area of five (5) sub-precincts that are designed and located to:
    • enhance, protect and maintain environmental, landscape, hydrological, scenic and recreation values;
    • rehabilitate degraded habitats to increase native vegetation cover, buffer core habitats and re-establish fauna corridors;
    • preserve and enhance native fauna habitat and movement areas and corridors along Hilliards Creek and throughout the Structure Plan Area; 

…

  • Sub-precinct 7a Hilliards Creek Core Habitat and Corridor protects and enhances publicly owned land that:
    • incorporates a sub-regional habitat and movement corridor for koalas and other native fauna;

…

S1.7(2) Sub-Precinct 6a Bushland Living – Multiple Locations –

…

  1. (b)
     protects, enhances and maintains waterways, habitat and movement corridors for koalas and other fauna;

…

S1.9(1) Precinct 7 – Greenspace Network comprising of five (5) sub-precincts is designed and located to–

  1. (a)
     enhance, protect, rehabilitate and maintain environmental, landscape, scenic and recreation values;

…

  1. (f)
     to rehabilitate degraded habitats to increase native vegetation cover, buffer core habitats and enhance and establish viable koala and fauna corridors and links;

…

S1.9(2) Sub-Precinct 7a – Hilliards Creek Core Habitat and Corridor protects and enhances publicly owned land that –

  1. (a)
    provides a sub-regional habitat and movement corridor for koalas and other fauna;

… ”

  1. [41]
    Council submits that:
  1. (a)
    a decision to approve the development of the service station, car wash and drive through restaurant, with associated hard stand in the southern portion of the subject site, in the area zoned Environmental Protection, creates conflict, in that it removes areas currently used by red-necked wallabies as a movement corridor, and fails to provide the corridor enhancement and re-vegetation of degraded and cleared areas otherwise required by the Redlands Planning Scheme; and
  1. (b)
    the development of the effluent discharge area in the northern portion of the subject site, in the area zoned Open Space, creates conflict, in that the discharge area does not comprise a “rehabilitation of degraded habitats to increase native vegetation cover”,[61] nor does it provide a “sub-regional habitat and movement corridor”,[62] regardless of whether native grasses are used in that function.

Ecological issues relevant to the southern portion

  1. [42]
    The built form associated with the proposed development is located in the Environmental Protection Zone. The area being developed comprises approximately 75 per cent of the area so zoned.[63]
  1. [43]
    Council submits that the scheme provisions for this part of the subject site, and in particular specific outcome S1.1(1) of the Environmental Protection Zone Code, make clear that the part of the subject site to be developed should be re-vegetated and that the existing movement corridor should be maintained and enhanced. It submits that, without more, the development of 75 per cent of this site area with a service station centre is in conflict with this requirement.
  1. [44]
    In Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147, Morrison JA observed at 94 [52] that “[t]he same principles which apply to statutory construction apply to the construction of planning documents.”  As such, it is necessary to consider the context of the provisions that are being construed.[64] 
  1. [45]
    Here, the following contextual matters provide assistance in appreciating the extent to which there is an obligation to enhance the ecological values of that part of the subject site located in the Environmental Protection Zone.
  1. [46]
    First, although Desired Environmental Outcome No. 1 – Natural Environment encourages enhancement of natural ecosystems:
  1. (a)
    it is an outcome that has City-wide application;
  1. (b)
    the relevant outcome sought to be achieved is “maintenance” of biodiversity, ecological processes and community well being, not enhancement;
  1. (c)
    the maintenance of those values is sought to be achieved by ensuring “development” protects and enhances a wide range of natural ecosystems.  Thus, the outcome acknowledges the possibility of achieving enhancement as part of a development, not instead of development;
  1. (d)
    s 3.1.1(2) makes it clear that each desired environmental outcome is sought to be achieved, or “not compromised to the extent practicable” having regard to each of the other desired environmental outcomes;[65]
  1. (e)
    Desired Environmental Outcome No. 3 – Community Health and Wellbeing seeks to ensure that:[66]

“(1) As a vibrant and attractive place to live, Redland City offers its community a high level of amenity, social cohesion and diversity and a range of facilities and activities through –

…

  1. (d)
     requiring the provision of an adequate standard and capacity of services and amenities in all local communities throughout the City;
  1. (e)
     ensuring new areas of urban development incorporate the integrated and timely provision of an adequate standard and capacity of services, community facilities and amenities to meet future community needs”
  1. (f)
    Council accepts that there is a modest need for a service station.[67]
  1. [47]
    Second, although the Strategic Framework does not have a role in development assessment under the Redlands Planning Scheme,[68] it:
  1. (a)
    reflects the desired environmental outcomes and summarises the approach taken by Redlands Planning Scheme to achieve the desired environmental outcomes;[69]
  1. (b)
    provides a summary of city-wide and local strategies implemented under the Redlands Planning Scheme to achieve the desired environmental outcomes;[70] and
  1. (c)
    describes the context for the strategies, and associated Redlands Planning Scheme measures used to secure their implementation.[71]
  1. [48]
    The strategy with respect to the natural environment involves:[72]

“(a) The protection of areas of ecological, habitat and/or biodiversity significance is facilitated by the inclusion of such areas within the Conservation Zone or Environmental Protection Zone.

  1. (b)
     Diagram 4 – Natural Environment identifies the core habitat, rural and habitat corridor network and the urban corridor network.

…

  1. (g)
     Visual and scenic quality is preserved through the allocation of zones to reinforce-
  1. (i)
     physical and visual breaks between communities;
  1. (ii)
     management of vegetation clearing;
  1. (iii)
     protection of remnant vegetation;
  1. (iv)
     protection of vistas, peaks, ridgelines and green backdrops;
  1. (v)
     encouraging development that is responsive to natural terrain and landform.”
  1. [49]
    The Strategic Framework map does not have a cadastral base. It is a conceptual diagram that provides a general indication that the subject site may have core habitat areas.[73]  It is not apparent from the Strategic Framework Map whether part of the subject site was included in the Environmental Protection Zone to facilitate protection of areas of ecological, habitat and/or biodiversity significance or to preserve scenic and visual quality, or for both purposes.
  1. [50]
    With respect to the vision for the Kinross Road Structure Plan Area, the Strategic Framework states:[74]

“… The Kinross Road Structure Plan Area has a distinct sense of place and community built upon a strong respect for the natural environment including Hilliards Creek, flood affected areas, bushland habitats and fauna movement corridors.

…

The Kinross Road Structure Plan Area is characterised by an extensive network of public open space.  Land along Hilliards Creek is core habitat for koala populations and other native fauna and is protected from development.  Other greenspace corridors supplement this core habitat, providing a connected network of open space that divides the Kinross Road Structure Plan Area into urban and natural areas.”

(emphasis added)

  1. [51]
    This statement suggests that the southern part of the subject site is of value in dividing the urban areas from the natural areas. This will still be achieved on the subject site.
  1. [52]
    The strategy with respect to the Bushland Living Precinct is set out in materially similar terms as the substantive provisions in the Kinross Road Structure Plan Area Overlay Code. They admit of the possibility of development, provided it is of very low impact on environmental values. It also encourages enhancement of the environmental values of the Precinct, but leaves open the prospect that the enhancement will be coupled with development.[75]  By way of comparison, the strategy for Sub-precinct 7a Hilliards Creek Core Habitat and Corridor, which corresponds with that part of the subject site located in the Open Space Zone, places far greater emphasis on the need to enhance and protect environmental values and does not contain any encouragement for substantive development.
  1. [53]
    Third, the Environmental Protection Zone Code also encourages enhancement of the environmental values associated with the Zone, while leaving open the prospect that the enhancement will be coupled with development.
  1. [54]
    Here, the built form of the proposed development is to be located in an area that is currently cleared of native vegetation and contains buildings, gardens and groups of planted trees, cleared areas and orchards.[76]  In the Joint Expert Report (Ecology), Mr Chenoweth (the ecology expert retained by Council) expressed concern that the proposed service station and hard surface areas will comprise a substantial building footprint, will result in the removal of large areas of grassland habitat and will have adverse impacts on the habitat of the red-necked wallaby.[77]  Despite this, Mr Chenoweth and Dr Watson (the ecology expert retained by the appellant) agreed that:[78]
  1. (a)
    the proposed development is within that part of the subject site that is currently used for residential and rural purposes (and has been as such for many years); and
  1. (b)
    the areas of native vegetation and corridor value will be retained, protected and enhanced.[79]
  1. [55]
    The proposed development does not involve any substantial re-vegetation of the environmentally degraded area in the south of the subject site, nor does it retain or increase the ability of the red-neck wallaby to move through the premises. However, that does not evidence conflict with specific outcome S1.1(1) of the Environmental Protection Zone Code. The material outcome sought is to “maintain, enhance and protect environmental values”.  Sub-paragraphs (a) and (b) of specific outcome S1.1(1) provide two mechanisms by which that outcome may be achieved.  Specific outcome S1.1(1) contains many other mechanisms.  They are:
  1. (a)
    retaining as many native plants as possible;
  1. (b)
    preventing the introduction of non-native plants;
  1. (c)
    controlling stormwater run-off and water quality;
  1. (d)
    maintaining overland drainage systems and waterways in their natural state;
  1. (e)
    minimising the need for excavation and fill; and
  1. (f)
    reducing erosion and sediment run-off.[80]
  1. [56]
    There is no suggestion that the proposed development does not employ those mechanisms.
  1. [57]
    Although a less extensive development, as encouraged by the Redlands Planning Scheme, may permit greater opportunity for enhancement of environmental values, I am, nevertheless, satisfied that the development maintains and protects those environmental values that exist on the subject site. Those values of particular ecological significance, identified in the State and Council mapping, are the vegetated areas associated with Hilliards Creek,[81] rather than that part of the site in the Environmental Protection Zone. 
  1. [58]
    The values are also enhanced, to a limited degree, by:
  1. (a)
    the proposed landscape planting, which could be conditioned to include trees and shrubs that have a benefit to the movement of birds and other animals;[82] and
  1. (b)
    the introduction of fencing to direct fauna towards safe road crossing points.[83]  As was noted by Dr Watson, that part of the subject site that is in the Environmental Protection Zone is the most south-westerly part of a mapped environmental area and is bounded by two major roads, with a roundabout uphill.  Wallaby road fatalities are common in the area.[84]
  1. [59]
    As such, I am satisfied that the proposed development complies with Desired Environmental Outcome No. 1 – Natural Environment – s 3.1.2(1)(a)(i)c. and f., overall outcomes 4.6.7(2)(a)(i)c. and e. of the Environmental Protection Zone Code, specific outcome S1.1 of the Environmental Protection Zone Code, overall outcome 5.15.8(2)f. (with respect to the second triangle bullet point under the fourth square only) and specific outcome S1.7(2)(b) of the Kinross Road Structure Plan Area Overlay Code.

Ecological issues relevant to the northern portion

  1. [60]
    In the northern portion of the subject site, the proposed development includes:
  1. (a)
    on site effluent disposal with a surface irrigation area of 2 100 square metres, bounded by a chain wire fence on its southern side; and
  1. (b)
    a vegetated environmental buffer in the vicinity of existing vegetation and proximate to Hilliards Creek and a buffer area that is to be re-vegetated towards the northern end of the subject site.
  1. [61]
    The appellant does not oppose a condition requiring native grasses to be used in the on site effluent disposal.
  1. [62]
    Dr Johnson (the expert retained by Council) expressed concern about the effectiveness of native grasses to perform the functions required in an effluent treatment area.[85]  However, he acknowledged that someone who knew more about the performance of grasses would more appropriately address the issues that concerned him.[86] 
  1. [63]
    I accept the evidence of Mr Bristow (the expert retained by the appellant with respect to the effluent treatment system) that native grasses, such as kikuyu, could be effectively used.[87]  Although Mr Bristow has a base degree in chemical engineering, he has spent most of his professional career dealing with issues of water and sewerage treatment, effluent disposal, effluent recycling and allied sciences and engineering.  He has spent many years dealing with effluent disposal schemes, both grass and tree, including native species and in rainforest areas.[88]  He also has experience in ongoing management of the types of effluent treatment areas in question as his company operates a number of different effluent irrigation schemes in Queensland.[89] 
  1. [64]
    With respect to the proposed development in this area, the ecology experts agreed that the proposed development will:
  1. (a)
    protect the creek and associated riparian vegetation and will create additional habitat, including grassland for several fauna (including wallabies);[90]
  1. (b)
    retain remnant vegetation, essential habitat (in their entirety) and provide a buffer to the “core habitat” values associated with Hilliards Creek;[91]
  1. (c)
    retain and enhance the movement corridor for common and threatened fauna;[92]
  1. (d)
    protect and provide wildlife corridors and maintain connections to habitat areas to provide for the movement and migration of native fauna throughout Redlands;[93] and
  1. (e)
    particularly the environmental buffer and protection area, will incorporate and enhance aquatic (waterway) and terrestrial (riparian, bushland, grassland) environments, maintain and enhance ecological values and functions within the Kinross Road – Hilliards Creek open space network.[94]
  1. [65]
    The only points of disagreement between the ecology experts related to fencing of the effluent disposal area (which was resolved between the appellant and Council) and whether the ground cover proposed for the effluent disposal area (being dense irrigated grass that is periodically slashed) achieved the native habitat intended by Redlands Planning Scheme.
  1. [66]
    For this part of the site, the Kinross Road Structure Plan Area Overlay Code provisions associated with the Greenspace Precinct and Hilliards Creek Core Habitat and Corridor sub-precinct require development to:
  1. (a)
    enhance, protect and maintain environmental values;
  1. (b)
    rehabilitate degraded habitats to increase native vegetation cover, buffer core habitats and re-establish fauna corridors;
  1. (c)
    preserve and enhance native fauna habitat and movement areas and corridors along Hilliards Creek and throughout the Structure Plan Area; and
  1. (d)
    protect and enhance publicly owned land that incorporates a sub-regional habitat and movement corridor for koalas and other native fauna.[95]
  1. [67]
    Council submits that the primary issue with respect to this part of the site is the provision of over 5 000 square metres of irrigated grasslands. 
  1. [68]
    Council accepts that the area may be grassed with native grasses that will be, most likely, cropped to approximately 100 millimetres in height.[96] 
  1. [69]
    Council also accepts that the proposed development could include fencing that would allow wallabies to move on, and eat, the irrigated grasslands (which could be native species).
  1. [70]
    However, Council submits that the open-field like development will not resemble the native habitat and movement corridor prescribed by the Redlands Planning Scheme for this part of the subject site.
  1. [71]
    In this respect, Council relies on the evidence of Mr Chenoweth that:
  1. (a)
    a lush field of irrigated exotic grasses (or even native grasses) does not constitute native habitat or enhancement corridor as envisaged by the Redlands Planning Scheme for this area, as it will lack diversity of either flora or fauna;[97] and
  1. (b)
    any such area would not comprise a “habitat” as intended by the Redlands Planning Scheme.[98]
  1. [72]
    In his individual report, Mr Chenoweth described what such enhancement may comprise in the following terms:[99] 

“Enhancement of habitat and corridor opportunities on the subject land (other than the part of the land adjoining Hilliards Creek proposed by the developer) could, in my opinion, include weed removal and replacement of exotic with native species, removal of rubbish, erosion control, planting of native trees, shrubs and groundcover on the open grassy/degraded parts of the property, preferably maintaining areas of grassland for grazing macropods.  It could also include fauna underpass culvert upgrading and fencing to direct fauna towards safe road crossing points …”

  1. [73]
    I do not accept Council’s submission that the proposed development will not provide the native habitat and movement corridor prescribed by the Redlands Planning Scheme for this part of the subject site.
  1. [74]
    The Redlands Planning Scheme does not prescribe the extent to which native vegetation cover and habitat is to include trees and shrubs.  With respect to the types of habitat sought, overall outcome 5.15.8(2)g. in the Kinross Road Structure Plan Area Overlay Code states:[100]
  • “Sub-precinct 7a Hilliards creek Core Habitat and Corridor protects and enhances publicly owned land that:

…

  • protects a diversity of habitats along Hilliards Creek including remnant vegetation, regrowth vegetation and grassland communities;”
  1. [75]
    In any event, having regard to:
  1. (a)
    the matters of agreement between the ecology experts;
  2. (b)
    Mr Chenoweth’s acknowledgment during cross-examination that the grassed area, if slashed long (which I regard as a description that reasonably accords with the proposal to slash the grasses to approximately 100 millimetres), would provide habitat to fauna such as bandicoots, native lizards and frogs and potentially birds that nest in clumps of grass (like plovers);[101] and
  3. (c)
    the availability of approximately 5 900 square metres of open space to the east and west of the area to be used for effluent treatment, which could be subject to a condition requiring it be planted with trees and shrubs,[102]

I am satisfied that a decision to approve the proposed development would not conflict with Desired Environmental Outcome No. 1 – Natural Environment – s 3.1.2(1)(a)(i)c. and f., overall outcome 5.15.8(2)g. (with respect to the first, second and third triangle bullet points under the first square and the first triangle bullet point under the second square only) and specific outcomes S1.9(1)(a) and (f) and S1.9(2)(a) of the Kinross Road Structure Plan Area Overlay Code.

The nature and location of the use and character of the built form

  1. [76]
    With respect to inconsistency arising as a consequence of the proposed use, Council alleges a decision to approve the proposed development would conflict with:
  1. (a)
    overall outcome 4.6.7(2)(b)(i)e. of the Environmental Protection Zone Code, which states:[103]

“(i) Provide for a range of low-key uses and other development that –

…

e. are low-key and have a very low impact on environmental values;

…”

  1. (b)
    specific outcomes S 2.1 and S 2.2(1)(a), (b), (c) and (e) of the Environmental Protection Zone Code, which state:[104]

“S 2.1  Uses identified as inconsistent in Table 1 are not established in the zone.

S 2.2(1) Uses and other development -

  1. (a)
     promote low-key tourism accommodation that is complementary to and has a direction connection with environmental values, such as cabins, cottages, eco-tourism and bed and breakfast;
  1. (b)
     provide opportunities recreational activities that have a direct connection with the environmental values of the land;
  1. (c)
     may include agricultural activities and small-scale enterprises or industries that support those activities, while protecting and enhancing environmental values;
  1. (d)
     support cottage industries that are managed and operated by the residents, such as timber work, pottery or similar crafts;
  1. (e)
     include educational, scientific and community activities that support environmental values and provide opportunities for appreciation or study of those values;
  1. (f)
     provide for a residential lifestyle that protects and maintains environmental values;
  1. (g)
     provide opportunities for working from home in a bushland setting.”
  1. (c)
    specific outcomes S1.1 and S1.2(1) of the Open Space Zone Code, which state:[105]

“S1.1  Uses identified as inconsistent in Table 1 are not established or undertaken in the zone.

S1.2(1) The following activities are consistent in the zone -

  1. (a)
    parks that –
  1. (i)
     complement environmental attributes such as nature based, water focused or the like;
  1. (ii)
     serve diverse demographic and community needs such as local play, sport field or showground or the like;
  1. (iii)
     are themes to showcase specific attributes such as ornamental gardens, show grounds or the like;
  1. (b)
     outdoor recreation facilities such as fields, tracks, race courses, arenas and trails pools, golf courses and ranges, courts, and the like and ancillary facilities including clubhouses and canteens;
  1. (c)
     community facilities such as cultural, social or community based uses such as halls, showgrounds or the like;
  1. (d)
     utility installations and minor utilities where necessary to –
  1. (i)
     protect the safety of people and property;
  1. (ii)
     provide essential services to the community.”
  1. (d)
    overall outcomes 5.15.8(2)f. (with respect to the first and third triangle bullet point under the fourth square only) and specific outcomes S1.1(1) and S1.7(2)(a) and (c) of the Kinross Road Structure Plan Area Overlay Code, which state:[106]

“5.15.8 Overall Outcomes of the Kinross Road Structure Plan Area Overlay Code

…

f. Bushland Living Precinct – (Precinct 6)

…

  • Sub-Precinct 6a Bushland Living (Multiple Locations)

…

  • provides for single dwelling houses on existing privately owned lots;

…

  • provides opportunity for home businesses, low key tourism and recreational pursuits in an environmental setting;

…

S1.1(1) Provide for a range of uses and other development that contribute to the creation of an integrated urban community generally in accordance with Map 1 - Kinross Road Structure Plan Area - Land Use Precincts.

…

S1.7(2) Sub-Precinct 6a Bushland Living – Multiple Locations –

  1. (a)
    provides for single dwelling houses on existing privately owned lots;
  1. (c)
    provides opportunity for home businesses, low key tourism and recreational pursuits in an environmental setting;

…”

  1. (e)
    overall outcome 6.9.3(2)(a)(i) and (ii) and specific outcome S1(1)(a) and (b) of the Drive Through Restaurant Code, which state:[107]

“6.9.3 Overall Outcomes of the Drive Through Restaurant Code

…

  1. (2)
    The overall outcome sought for the Drive Through Restaurant Code is the following -
  1. (a)
     to ensure the use -
  1. (i)
     is located to complement centre activities;
  1. (ii)
     is compatible with the character of the locality and the physical characteristics of the site on which it is located;

…

S1(1)  The use is located -

  1. (a)
     within established centres;
  1. (b)
     in areas away from sensitive receiving environments.”
  1. [77]
    Both a service station use and a drive through restaurant are listed as inconsistent uses in Table 1 in the Environmental Protection Zone Code.
  1. [78]
    The types of uses encouraged on the subject site are:
  1. (a)
    agricultural activities, or educational, scientific or community activities that support environmental values;[108] 
  1. (b)
    single dwelling houses on existing privately owned lots, including working from home;[109] and
  1. (c)
    home businesses, low key tourism and recreational pursuits in an environmental setting.[110]
  1. [79]
    The uses are intended to be low-key.[111]  The Redlands Planning Scheme also seeks a built form that is low-rise in appearance.[112] 
  1. [80]
    Mr Schomburgk, the town planner retained by the appellant, accepted that the development would “dominate this somewhat-isolated part of the landscape to some degree, given the nature of the use and its visual attraction”.[113]  During cross-examination about whether the use would be “low-key”, Mr Schomburgk said as follows:

“And as a result of that it could not be considered low-key development as that term is used?---That’s the issue, I think. That’s the fundamental issue from a planning point of view in this appeal, whether it is low-key and what “low-key” means in the terms of the environment protection zone and arguably in the terms of a service station as well. And you’ll see that I’ve conceded in various parts of the joint report that this is an issue. I’ve conceded that it’s not low-key in the sense of being akin to a dwelling house. It’s much more than that. However, what I’ve also said, I think, is that for a service station – this one has been designed to be as low-key as possible. It’s set below the road levels. So it’s set into the site to some extent. It’s restricted to single story. A number of features about that. But at the end of the day it needs to be, as you say – it needs to be visible to passing motorists who want to fill up with fuel. They will certainly know it’s there. The council, in my opinion, has the ability to minimise the impacts of pylon signs – for example – a matter we’ve discussed in the joint reports. But there will still be almost inevitably pylon signs on the site, one or more on the site. So those sort of things – you’ll certainly know it’s there. That’s the intention.

…

When you said before it’s as low-key as it could be, what you – would I be right to say that – you know – if you accept for a fact that we’re going to put a service station there, as far as service station goes it’s a low-key service station?---That’s my – that’s what I intended to convey. Yes”

  1. [81]
    Redlands Planning Scheme does not call for a low-key service station, but low-key uses. The proposed development could not fairly be described as a low-key use.
  1. [82]
    The proposed development is fundamentally different in nature and size (in terms of its footprint) to the types of uses and development that the Redlands Planning Scheme envisages on the subject site.
  1. [83]
    The character of the proposed development is also not consistent with the locality. During cross-examination, Mr Schomburgk accepted:
  1. (a)
    the Redlands Planning Scheme does not provide for urbanisation to the north of the subject site;[114]
  1. (b)
    the area to the south of the subject site remains outside the Regional Plan urban footprint, so there is no expected urbanisation in that area;[115]
  1. (c)
    there is nothing in either the current or future planning scheme that would indicate urbanisation of land to the west of the subject site;[116]
  1. (d)
    the development intensification proposed in the Kinross Road Structure Plan Area increases from the subject site to the eastern side of Kinross Road;[117] and
  1. (e)
    the visual catchment of this locality, within two to three hundred metres of the subject site, could not be described as urban, and will not become urban.[118]
  1. [84]
    Mr Schomburgk acknowledged that the public would not have expected a service station to be located on the subject site.[119]  This is highlighted by the statements received from local residents.[120] 
  1. [85]
    Accordingly, a decision to approve the proposed development would conflict with:
  1. (a)
    overall outcome 4.6.7(2)(b)(i)e. of the Environmental Protection Zone Code;
  1. (b)
    specific outcomes S 2.1 and S 2.2(1) of the Environmental Protection Zone Code; and
  1. (c)
    overall outcome 5.15.8(2)f. (with respect to the first and third triangle bullet point under the fourth square only) and specific outcomes S1.1 and S1.7(2)(a) and (c) of the Kinross Road Structure Plan Area Overlay Code. 
  1. [86]
    A decision to approve the proposed development would also conflict with overall outcome 6.9.3(2)(a) and specific outcome S1(1)(a) and (b) of the Drive Through Restaurant Code as it is not compatible with the character of the locality in which it is located, nor is it proposed to be located within an existing centre.
  1. [87]
    The location of drive through restaurants in established centres:
  1. (a)
    enables such uses to be clustered and thereby permits visitors to the centres to have multiple choices in one location;[121] and
  1. (b)
    contributes to the vibrancy and activity in centres and adds to the convenience role they play.[122]
  1. [88]
    In terms of the location of an effluent treatment area on that part of the subject site located in the Open Space Zone, given it is part and parcel of the service station and drive through restaurant uses, there is conflict with specific outcomes S1.1 and S1.2 of the Open Space Zone Code. The use is not a utility installation. It is incidental to and necessarily associated with the service station and drive through restaurant uses and is therefore part of those uses.
  1. [89]
    The seriousness of the conflict is, however, tempered by:
  1. (a)
    the low, even negligible, visual amenity impact and the absence of unacceptable ecological impacts;
  1. (b)
    the low-key appearance that is achieved as a consequence of the scale of the proposed buildings (being single storey), the location of the buildings set down below the tree-line, the landscaped presentation to the abutting roads and the generous setbacks from the road boundaries;[123]
  1. (c)
    the park-like appearance of the effluent treatment area;
  1. (d)
    the absence of impact from the 24-hour operation of the proposed use given its location away from residential development and the incorporation of site works, such as acoustic barriers and landscaping, that will ensure that any potential amenity impacts are negated or controlled to acceptable levels;[124] and
  1. (e)
    in relation to the drive through restaurant, its proposed co-location with a service station, which adds to the convenience of its use. 
  1. [90]
    Council also accepts that, if there is a need for a drive through restaurant that cannot be reasonably met by existing or anticipated drive through restaurants in existing centres, then there is no identified centre in the Kinross Road area that would meet this purpose, such that out-of-centre development for this use should be permitted.[125] 

Draft Redland City Plan 2015

  1. [91]
    Council’s Draft Redland City Plan 2015 has been publicly notified and Council has resolved to proceed with it.[126]  The appellant conceded that it is appropriate that it be given weight.[127]
  1. [92]
    The Draft Redland City Plan 2015 maintains the current planning for the subject site. As is observed by the town planning experts, the provisions of the draft effectively replicate the provisions of the current scheme.[128]  As such, the conflict with it is not of determinative significance.  As was submitted by Counsel for the appellant, the draft Scheme does not herald a new planning policy or a shift in planning policy that warrants refusal of the proposed development for fear that an approval would cut across, or compromise, the ability to implement the draft scheme.[129] 

Nature and extent of conflict

  1. [93]
    Council submits that the development is in such clear and cogent conflict with the Redlands Planning Scheme that almost overwhelming grounds for approval would be required to justify approval of the proposed development.
  1. [94]
    I accept that there is clear conflict as identified above. It effectively arises as a consequence of the proposal to locate uses that are nominated as inconsistent uses and that are not low-key in nature in a zone that does not encourage that style of use.
  1. [95]
    However, the seriousness of the conflict is reduced for the reasons provided above. In short, when one reads the Environmental Protection Zone Code, Open Space Zone Code and the Kinross Road Structure Plan Area Code as a whole, together with the desired environmental outcomes and strategic framework, it seems apparent that the planning rationale for limiting the uses to low-key uses with minimal footprint is, in large part, to ensure achievement of the environmental and visual amenity goals. These goals are not materially compromised by the proposed development. As such, the seriousness of the conflict is reduced.

Grounds

  1. [96]
    The grounds relied on by the appellant can be broadly described as need and other matters of merit.

Need

  1. [97]
    In Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, Wilson DCJ provided a thorough analysis of the authorities with respect to the concept of need and distilled the concept at 418 as follows:

“[21] Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community (Fitzgibbons Hotel Pty Ltd v. Logan City Council (1997) Q.P.E.L.R. 208 at 213; Bunnings Building Supplies Pty Ltd v. Redland Shire Council (2000) Q.P.E.L.R. 193 at 198C). Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met (Indooroopilly Golf Club v. BCC (1982) Q.P.L.R. 13 at 32-35, William McEwans Pty Ltd v. BCC (1981) 1 Q.P.L.R. 33 at 35).”

(emphasis added)

  1. [98]
    Council accepts that there is a level of need for an additional service station within the primary trade area identified by the economists, Mr Duane (retained by the appellant) and Mr Norling (retained by Council).[130]  Its position reflects that of Mr Norling, who opined that there was a minor to modest level of need for the proposed service station.[131]  The need that Council acknowledges is one based on the number of residents in the trade area, and the limited number of service stations located within that same area. 
  1. [99]
    Council also accepts that the proposed service station will provide greater convenience and choice to both passing motorists, who otherwise reside outside of the primary trade area, as well as residents of the primary trade area.
  1. [100]
    However, Council’s position is that the level of need is modest, in circumstances where:
  1. (a)
    little weight should be placed upon the need for residents in Mr Duane’s “secondary” trade areas, given such trade areas have more convenient access to existing service stations and are likely to drive past existing service stations when travelling to and from Brisbane, or other centre-type developments;
  1. (b)
    it is agreed between the need experts that residents of the trade area enjoy high levels of car ownership, and are particularly likely to undertake significant travel not only for their employment, but also for shopping, education and leisure activities.[132]  In undertaking such travel, such residents will have access to existing conveniently located and accessible facilities at Victoria Point, Thornlands and Capalaba as well as the Woolworths on Mt Cotton Road;
  1. (c)
    it was also agreed between the need experts that the subject proposal would derive business primarily from passing traffic, but also local residents on their homeward bound journey.[133]  If the prime customer is passing traffic, Council submits, for the reasons described above, the customers will have ample opportunity to access other service stations in the locality;
  1. (d)
    viewed as a whole, Redland City has one service station per 5 600 residents, which the experts agree is below but roughly in line with the metropolitan average of 4 000 – 5 000 persons per service station;[134] and
  1. (e)
    there is no evidence of any level of inadequacy amongst the existing competitive facilities.[135] 
  1. [101]
    Council also submits that there is no evidence of a need for a drive-through restaurant on the subject site. It refers to the evidence of Mr Duane that “the size of the trade area population at close to 30,000 residents by 2031 is more than enough to support a drive through facility within this location”.[136]
  1. [102]
    The matters identified in paragraphs [100](a) to (e) are uncontroverted.  However, I do not accept that they demonstrate only a modest need for the proposed development, nor do I accept that there is no need for a drive-through restaurant on the subject site.  I am satisfied that there is a clear and strong level of economic need given:
  1. (a)
    there is currently approximately 10 000 persons in the primary trade area alone, which is predicted to increase to 13 700 persons by 2031.  As such, the primary trade area could presently support two to three service stations.[137]  It currently supports none.  This court refused one of the two proposed service stations, the Coles Express at Paradise Gardens, on 6 September 2017.[138]  Mr Norling acknowledged that the growing population of the primary trade area will support an increased provision of commercial facilities such as a service station, car wash and fast food outlet;[139]
  1. (b)
    the projected population increases for Redland City indicate that a further ten service stations will be required in Redland City in the coming years, with two supportable in Thornlands.[140]  As such, existing service stations in Redland City have substantial existing and future population bases to serve;[141]
  1. (c)
    the growth in the fuel market in the primary trade area is projected at 5.8 million litres.  A modern service station typically requires around 3 – 3.5 million to be successful.  As such, the growth in the fuel market demonstrates the need for an additional two service stations;[142]
  1. (d)
    in relation to the drive through restaurant, it is a normal part of this type of development to co-locate with such uses.  The subject site provides a sustainable viable location for a drive through facility complementing the service station,[143] particularly given its location on the homeward bound side of the road;
  1. (e)
    the proposed development would provide increased convenience, choice and competition in a growing market.[144]  There is no service station with car wash facilities in the southern part of the catchment;[145] Mr Norling acknowledged that the co-location of fast food outlets and car washes with service stations provides a convenience benefit to many motorists.[146]  He also acknowledged that the proposed development would improve the convenience for those in the primary trade area,[147] and that it would improve the level of choice, which is currently low for those in the primary trade area;[148] and
  1. (f)
    the proposed development is unlikely to impact on the ability of the existing or other proposed service station to viably trade over time.  The total fuel market in the trade area is projected to be in excess of 26 million litres by 2031, excluding commercial vehicles, boats and visitors.[149]
  1. [103]
    Council also submits that the proposed development is inappropriate to meet this need in any event. It accepts that convenient access may be assured for motorists travelling south along Redland Bay Road, but submits that there is no convenient vehicular access for motorists travelling along the more heavily trafficked Boundary/Duncan Road, nor is there convenient access for those motorists travelling north on Redland Bay Road. Mr Ovenden identified this access issue.[150]  During cross-examination, Mr Schomburgk accepted that access from Boundary/Duncan Road and from the South would be much less convenient.[151]
  1. [104]
    Although access from Boundary Road will be less convenient, I do not accept that the location is not an appropriate one to meet the need. Often service stations only serve traffic in one direction.[152]  Further, as was noted by Mr Duane, Redland Bay Road carries a higher volume of traffic than Boundary Road.[153]  The volume of passing traffic along Redland Bay Road is almost 50 per cent greater than the volume of traffic around Boundary Road.[154]
  1. [105]
    Traffic along Boundary Road could still access the service station by turning into Redland Bay Road and undertaking a u-turn opposite Parkwood Drive, approximately 250 metres north of the intersection of Redland Bay Road and Boundary Road.[155]  Residents of the growing primary trade area are generally a substantial distance away from a competitive range of facilities in close proximity to their home.[156]  They reside further away from fuel stations than residents elsewhere within Redland Shire.[157]  The closest alternative service station for the primary trade area is located around five kilometres from the subject site.[158] 
  1. [106]
    Council submits that, in any event, the size and scale of the proposed development, with the commensurate impacts upon the site and receiving environment described above, are much greater than what would be required to satisfy any need identified by the experts. In that respect, it relies on the evidence of Mr Duane during cross-examination that the need that he identified could be satisfied by a service station with a smaller convenience store,[159] fewer fuel spots, without the car wash and possibly without the drive through restaurant.[160]
  1. [107]
    It is not relevant to consider a hypothetical alternative. This court must assess the proposed development.
  1. [108]
    I am satisfied that there is a need for the proposed development that is sufficient to justify approval despite the identified conflicts with Redlands Planning Scheme.

Other grounds

  1. [109]
    The appellant relies on the following additional matters to justify approval of the proposed development:[161]
  1. (a)
    the proposed development can be designed such that it is contained within the Bushland Living Precinct (6a) of the Kinross Road Structure Plan Area, thereby not encroaching into the Greenspace Network Precinct (7a);
  1. (b)
    the proposed use can be designed to be “low-key” as required by the Kinross Road Structure Plan Area Code for development in the Bushland Living precinct;
  1. (c)
    the proposed use has been designed such that it is not visually prominent and the site can be landscaped such that it does not dominate the landscape setting when viewed from adjacent roads;
  1. (d)
    the proposed use will occupy only a small part of the site that is currently degraded.  Parts of the site with significant environmental values will be retained and enhanced;
  1. (e)
    degraded areas of the site are to be re-vegetated in accordance with the overall outcomes of the Environmental Protection Zone;
  1. (f)
    the proposal provides the much-needed dedication of additional land for Main Roads widening, at no cost to Council or the community;
  1. (g)
    the actual or on ground values of any ecological significance:
  1. (i)
    have been identified; and
  1. (ii)
    have been excluded from the development, in that the values (such as individual trees, corridors, habitats and waterways) have been protected or buffered;
  1. (h)
    the proposed development and proposed environmental buffer area in the northern part of the subject site will provide an opportunity to enhance the ecological values and will result in a net environmental benefit;
  1. (i)
    the net environmental benefit will be in relation to the waterway and associated bushland.  The bushland will be enhanced through rehabilitation, planting with suitable native species, removing weeds, stabilising the landscape, reducing erosion and pollution and creating habitat;
  1. (j)
    the buffer areas will also be enhanced and preserved indefinitely through either a registered covenant or a transfer of the relevant area to Council;
  1. (k)
    the proposed development and buffer (as a whole) will support and reflect the relevant environment objectives of the planning scheme (and the Kinross Road Structure Plan in particular); and
  1. (l)
    the effluent disposal system does not discharge directly into any water course and is confined to land based disposal.  It can be confined in area and location so it does not have a detrimental effect on the ecological values of the site.
  1. [110]
    Council submits that these grounds amount to nothing more than compliance with the relevant provisions of the Open Space Zone Code and the Kinross Road Structure Plan Area Code and that, without more, they cannot sensibly be relied on as grounds to warrant approval.
  1. [111]
    In Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, Holmes JA (with whom White JA and Atkinson J agreed) observed at 323-4 [25]:

“It may be accepted, as Grosser says and Palyaris implies, the mere absence of adverse effects will not amount to sufficient grounds to outweigh a conflict with the planning scheme; but it does not follow that the absence of a negative impact or detrimental effect is not a relevant consideration.  In any case, Grosser and Palyaris, it should be remembered, were concerned with different expression, “planning grounds”, and hence a narrower enquiry than that entailed in assessment of the unqualified and broadly defined “grounds” which are now relevant.  It must be a matter of public interest, for example, that the project under consideration will not destroy local amenity.  The isolation and screening of the project were properly considered as a ground, to be weighed with other grounds in considering their sufficiency.”

(emphasis added)

  1. [112]
    In considering whether there are grounds that would be sufficient to overcome the identified conflict, I regard it as material that there is an absence of unacceptable ecological and amenity impacts.
  1. [113]
    With respect to the grounds advanced by the appellant, I don’t accept that the proposed development:
  1. (a)
    is contained within the Bushland Living Precinct.  Although the built form is so contained, the effluent treatment system encroaches;
  1. (b)
    is low-key or that it only occupies a small part of the subject site;
  1. (c)
    involves re-vegetation of the degraded areas of the subject site in accordance with the overall outcomes of the Environmental Protection Zone.  Much of the area within the Environmental Protection Zone will be developed; and
  1. (d)
    involves dedication of the additional land for road widening.  The conditions require the land to be kept free of permanent building, structures and improvement so as not to stymie future resumption.
  1. [114]
    I otherwise generally accept those matters advanced by the appellant are supportive of approval of the proposed development.
  1. [115]
    Even without these other grounds, the need for the proposed development is sufficient to justify approval of it notwithstanding the identified conflicts with the Redlands Planning Scheme.

Conclusion

  1. [116]
    For the reasons provided above, I am satisfied that the appellant has discharged its onus.  The appeal will, in due course, be allowed.  I will adjourn the further hearing to allow for the formulation of reasonable and relevant conditions.

Footnotes

[1]  Joint Experts Report – Ecology – Exhibit 7 p 2 [2]-[3].

[2]  Joint Experts Report – Ecology – Exhibit 7 p 2 [4].

[3]  Joint Experts Report – Town Planning – Exhibit 8 p 4 [9] and [11].

[4]  Joint Experts Report – Town Planning – Exhibit 8 p 4 [12] and p 5 [14].

[5]  Joint Experts Report – Town Planning – Exhibit 8 p 5 [15].

[6]  Joint Experts Report – Town Planning – Exhibit 8 p 5 [16].

[7]  Joint Experts Report – Town Planning – Exhibit 8 p 5 [17]-[18].

[8]  Joint Experts Report – Town Planning – Exhibit 8 pp 6-7 [20].

[9]  Joint Experts Report – Town Planning – Exhibit 8 p 7 [20].

[10]  Joint Experts Report – Town Planning – Exhibit 8 p 7 [20].

[11]  Appeal Book – Exhibit 2 Volume 3 pp 290 and 377.

[12]  Joint Experts Report – Town Planning – Exhibit 8 p 7 [22].

[13]Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273 at 286 [23]; [2005] QCA 262; Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63 at 72 [16]; [2012] QPELR 354; [2011] QCA 358.

[14]  Appeal Book – Exhibit 2 Volume 3 Tab 36.

[15]  Appeal Book – Exhibit 2 Volume 1 Tab 5.

[16]  If the provisions in the document were counted, there are only approximately 50 provisions.  However, some provisions have multiple sub-paragraphs raising different considerations.  Also, some conflicts are alleged by reference to a provisions “in its entirety”, effectively raising conflict with numerous provisions.

[17]  See Exhibit 26.  The document was produced in response to queries from me during Council’s opening about the extent of the allegations of conflict, given the absence of identified basis for the allegations in the document – see T1-20 – T1-25.

[18]  Joint Experts Report – Town Planning – Exhibit 8 pp 4-5 [13].  Planning Scheme Extracts – Exhibit 15 p 264.

[19]  See s 1.2.6(1)(c) of Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 13.

[20]  See s 3.1.1(2) of the Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 19.

[21]  See s 1.2.9(1) of Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 16.

[22]  See s 4.6.6(1), s 4.16.6(1), s 5,15.7(3) and (4), s 6.9.2(1) and s 6.24.2(1) of Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 pp 81, 98, 148, 190 and 195.

[23]  See s 5.15.4(4) of Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 129.

[24]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 20.

[25]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 82.

[26]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 84.

[27]  with respect to the third square bullet point

[28]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 pp 152 and 164.

[29]  Joint Expert Report (Visual Amenity) – Exhibit 6 p 10.

[30]  with respect to the third square bullet point.

[31]  Joint Expert Report (Visual Amenity) – Exhibit 6 pp 18-20 [3.32]-[3.37] and Figures 12 and 13.

[32]  Joint Expert Report (Visual Amenity) – Exhibit 6 p 20 [3.38].

[33]  Joint Expert Report (Visual Amenity) – Exhibit 6 p 23 [3.50].

[34]  Joint Expert Report (Visual Amenity) – Exhibit 6 pp 3-4 [1.8]-[1.10] and Figure 6; T2-43/L42-46 (Chenoweth).

[35]  T2-22/L27-33 (Powell).

[36]  Joint Expert Report (Visual Amenity) – Exhibit 6 p 11 [3.7].  This was also demonstrated by the cross-examination of Mr Chenoweth – T2-42/L4 – T2-46/L38.

[37]  I am mindful of the limited purpose of a site inspection and that I must act on evidence.  However, the site inspection allowed me to appreciate the visibility and extent of visual prominence of the subject site.

[38]  T2-32/L13-22 (Powell).

[39]  T2-42/L22-23 (Chenoweth).

[40]  Joint Expert Report (Visual Amenity) – Exhibit 6 p 16 [3.20] and [3.21]. T2-44/L1-5 (Chenoweth).

[41]  T2-31/L37-42 (Powell).  See also Book of Plans – Exhibit 1.

[42]  T2-49/L12-16 (Chenoweth).  See also Joint Expert Report (Visual Amenity) – Exhibit 6 p 17 [3.27].

[43]  T2-45/L18-23 (Chenoweth).

[44]  T2-46/L5-9 (Chenoweth).

[45]  T2-50/L24-26 (Chenoweth).

[46]  T2-44/L7-19 and T2-51/L27-35 (Chenoweth).

[47]  T2-46/L11-38 (Chenoweth).

[48]  Joint Expert Report (Visual Amenity) – Exhibit 6 pp 11-13 [3.9]-[3.13] and Figures 7, 8 and 9 and Book of Plans – Exhibit 1; Exhibit 5.

[49]  T2-11/L42 – T2-15/L13 (Powell).

[50]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 152 s 5.15.8(2)(g).

[51]  T2-40/L12-24 (Chenoweth).

[52]  Book of Plans – Exhibit 1 p 6 and T2-48/L40 – T2-49/L10 (Chenoweth).

[53]  T2-47/L5-22 (Chenoweth).

[54]  Draft Redlands City Plan 2015 – Planning Scheme Extracts – Exhibit 15 p 279.

[55]  Draft Redlands City Plan 2015 – Planning Scheme Extracts – Exhibit 15 p 279.

[56]  Report of Mr Powell – Exhibit 12 pp 9-11 [3.10]-[3.24].

[57]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 19.

[58]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 81.

[59]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 83.

[60]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 pp 151, 152, 165, 167, 168 and 169.

[61]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 168 s 5.15.9 S1.9(1)(f).

[62]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 169 s 5.15.9 S1.9(2)(a).

[63]  Joint Expert Report – Town Planning – Exhibit 8 p 18 [61d)] (Ovenden); T3-31/L17-23 (Schomburgk).

[64]Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, 95 [55]; [2014] QPELR 686.

[65]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 19.

[66]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 21 s 3.1.4.

[67]  Respondent Council’s Written Submission – Court Doc 45 pp 23-4 [88]-[89]; T4-4/L14-20 (Wylie).

[68]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 25 s 3.2.1(2).

[69]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 25 s 3.2.1(1).

[70]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 25 s 3.2.1(3)(a).

[71]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 25 s 3.2.1(3)(b).

[72]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 31 s 3.2.3(6).

[73]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 57.

[74]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 46 s 3.2.4(5)(b)(i).

[75]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 51.

[76]  Joint Expert Report (Ecology) – Exhibit 7 p 4 [13].

[77]  Joint Expert Report (Ecology) – Exhibit 7 p 10 [52].

[78]  Joint Expert Report (Ecology) – Exhibit 7 p 12 [69].

[79]  During the hearing, Counsel for Council, without seeking leave, asked questions of Mr Chenoweth during examination in chief intended to adduce opinion evidence that contradicted opinions expressed by Mr Chenoweth in the Joint Expert Report Ecology – Exhibit 7 p 12 [64]-[70].  See T2-92/L40-47.  Counsel for the appellant objected and, for the reasons evident in the exchange with Counsel for Council, I denied leave and refused to accept the evidence that had already been adduced by Counsel asking questions without first seeking leave – see T2-93/L19 - T2-94/L45 and T3-2/L4 – T3-12/L19. 

[80]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 83.

[81]  Supplementary Joint Expert Report (Ecology) – Exhibit 9 p 3 [9].

[82]  T2-79/L19-24 (Watson).

[83]  Ecology Report of Mr Chenoweth – Exhibit 21 p 3 [2.3.2].

[84]  T2-90/L14-30 (Watson).

[85]  T3-56/L39 – T3-58/L43 (Johnson).

[86]  T3-57/L44 – T3-58/L2 and T3-58/L45 – T3-59/L6 (Johnson).

[87]  Exhibit 30; T3-63/L11 – T3-69/L45 (Bristow).

[88]  T3-62/L10-14 (Bristow).

[89]  T3-68/L32-34 (Bristow).

[90]  Joint Expert Report (Ecology) – Exhibit 7 p 12 [67].

[91]  Joint Expert Report (Ecology) – Exhibit 7 p 12 [68].

[92]  Joint Expert Report (Ecology) – Exhibit 7 p 12 [68].

[93]  Joint Expert Report (Ecology) – Exhibit 7 p 12 [70].

[94]  Joint Expert Report (Ecology) – Exhibit 7 p 12 [70].

[95]  Council abandoned its allegations with respect to those provisions that referred to publicly owned land.

[96]  T3-64/L1-4 (Bristow).

[97]  Supplementary Joint Experts Report (Ecology) – Exhibit 9 p 5 [35] and T3-19/L13-18 (Chenoweth).

[98]  Supplementary Joint Experts Report (Ecology) – Exhibit 9 p 6 [48].

[99]  Ecology report of Mr Chenoweth – Exhibit 21 p 3 [2.3.2].

[100]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 152.

[101]  T3-17/L46 – T3-18/L7 (Chenoweth).

[102]  T3-18/L9-36 (Chenoweth).  The appellant does not oppose such a condition – Written Submissions on behalf of the Appellant – Court Doc 47 p 48 [252].

[103]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 82.

[104]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 pp 83-4.

[105]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 101.

[106]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 pp 151, 152, 156, 165 and 169.

[107]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 pp 190 and 191.

[108]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 pp 83-4 specific outcome s 2.2(1)(c) and (e) of the Environmental Protection Zone Code.

[109]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 pp 151-2 and 165 overall outcome 5.15.8(2)f. first triangle under the fourth square bullet point and specific outcome S1.7(2)(a) of the Kinross Road Structure Plan Area Overlay Code.

[110]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 pp 83-4 and 151-2 overall outcome 5.15.8(2)f. third triangle under the fourth square bullet of the Kinross Road Structure Plan Area Overlay Code and specific outcome S 2.2(1)(a) and (b) of the Environmental Protection Zone Code.

[111]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 82 overall outcome 4.6.7(2)(b)(i)e. of the Environmental Protection Zone Code.

[112]  Redlands Planning Scheme – Planning Scheme Extracts – Exhibit 15 p 84 specific outcome S3.2 of the Environmental Protection Zone.

[113]  Joint Expert Report – Town Planning – Exhibit 8 p 17 [59(b)].

[114]  T3-29/L25 (Schomburgk).

[115]  T3-29/L27-32 (Schomburgk).

[116]  T3-29/L27-43 (Schomburgk).

[117]  T3-30/L1-6 (Schomburgk).

[118]  T3-30/L28-33 (Schomburgk).

[119]  T3-31/L5-8 (Schomburgk).

[120]  Exhibits 16, 17, 18 and 19.

[121]  T1-41/L1-18 (Duane).

[122]  Joint Expert Report – Town Planning – Exhibit 8 p 28 [103].

[123]  Joint Expert Report – Town Planning – Exhibit 8 pp 19-20 [69]-[70].

[124]  Joint Expert Report – Town Planning – Exhibit 8 p 27 [100].

[125]  Respondent Council’s Written Submission – Court Doc 45 p 19 [74].

[126]  Respondent Council’s Written Submissions in Reply – Court Doc 46 p 7 [28].

[127]  T4-32/L34-36 (Beehre).

[128]  Joint Expert Report – Town Planning – Exhibit 8 p 13 [41].

[129]  T4-32/L34-39 (Beehre).

[130]  Respondent Council’s Written Submissions – Court Doc 45 pp 23-4 [88].

[131]  Joint Economic Need Report – Exhibit 3 p 35 [71].

[132]  Joint Economic Need Report – Exhibit 3 p 20 [47].

[133]  Joint Economic Need Report – Exhibit 3 p 27 [60].

[134]  T1-38/L1-37/L43-47 (Duane); Joint Economic Need Report – Exhibit 3 p 30 [64].

[135]  Joint Economic Need Report – Exhibit 3 p 36 [71(f)].

[136]  Joint Economic Need Report – Exhibit 3 p 38 [76].

[137]  Joint Economic Need Report – Exhibit 3 p 34 [70(d)].

[138]Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2017] QPEC 53.

[139]  Joint Economic Need Report – Exhibit 3 p 35 [71(b)].

[140]  Report of Mr Duane – Exhibit 13 p 13 [4.17]-[4.18].

[141]  Report of Mr Duane – Exhibit 13 p 13 [4.19].

[142]  Joint Economic Need Report – Exhibit 3 p 34 [70(e)].

[143]  Joint Economic Need Report – Exhibit 3 p 35 [70(h)].

[144]  Joint Economic Need Report – Exhibit 3 p 35 [70(i)].

[145]  T1-30/L30-41 (Duane).

[146]  Joint Economic Need Report – Exhibit 3 p 35 [71(a)].

[147]  T1-52/L1-20 (Norling).

[148]  T1-57/L31-33 (Norling).

[149]  Joint Economic Need Report – Exhibit 3 p 35 [70(j)].

[150]  Joint Expert Report – Town Planning – Exhibit 8 p 35 [134].

[151]  T3-28/L1-13 (Schomburgk).

[152]  T1-32/L1-5 (Duane).

[153]  Joint Economic Need Report – Exhibit 3 p 37 [72(a)].

[154]  Joint Economic Need Report – Exhibit 3 p 25 [54]-[55] and p 26 Map 2.

[155]  Joint Economic Need Report – Exhibit 3 p 3 [3].

[156]  Report of Mr Duane – Exhibit 13 p 11 [4.12].

[157]  Report of Mr Duane – Exhibit 13 p 11 [4.11].

[158]  T1-28/L15-32 (Duane).

[159]  T1-39/L17-19 (Duane).

[160]  T1-40/L19-34 (Duane).

[161]  Written Submissions on behalf of the Appellant – Court Doc 47 p 67 [341].

Close

Editorial Notes

  • Published Case Name:

    King of Gifts (Qld) Pty Ltd v Redland City Council

  • Shortened Case Name:

    King of Gifts (Qld) Pty Ltd v Redland City Council

  • MNC:

    [2017] QPEC 64

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    06 Nov 2017

Litigation History

EventCitation or FileDateNotes
Primary JudgmentApplication for development approval.20 Aug 2015King of Gifts (Qld) Pty Ltd's application for development approval refused by the Redland City Council.
Primary Judgment[2017] QPEC 64 (2018) QPELR 18706 Nov 2017Appeal pursuant to s 461 of the Sustainable Planning Act 2009 (Qld); appeal allowed; development approval granted: Kefford DCJ.
Primary Judgment[2020] QPEC 4207 Aug 2020Appeal pursuant to s 461 of the Sustainable Planning Act 2009 (Qld) following remittal ordered in [2020] QCA 41; appeal allowed; development approval granted: Kefford DCJ.
Notice of Appeal FiledFile Number: Appeal 10074/2018 Sep 2020Application for leave to appeal from [2020] QPEC 42.
Appeal Determined (QCA)[2020] QCA 4113 Mar 2020Application pursuant to s 63 of the Planning and Environment Court Act 2016 (Qld) for leave to appeal granted; appeal allowed; orders made 18 June 2018 set aside; matter remitted to the Planning and Environment Court to be determined according to law: Fraser and Philippides and McMurdo JJA.
Appeal Determined (QCA)[2021] QCA 21001 Oct 2021-
Special Leave Refused (HCA)[2022] HCASL 5716 Mar 2022-

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193
1 citation
Jump To
Cite 1 - (2000) QPELR 193
Fitzgibbons Pty Ltd v Logan City Council (1997) QPELR 208
1 citation
Jump To
Cite 1 - (1997) QPELR 208
Indooroopilly Golf Club v Brisbane City Council (1982) Q.P.L.R 13
1 citation
Jump To
Cite 1 - (1982) Q.P.L.R 13
Isgro v Gold Coast City Council [2003] QPEC 2
1 citation
Jump To
Cite 1 - [2003] QPEC 2
Isgro v Gold Coast City Council (2003) QPELR 414
1 citation
Jump To
Cite 1 - (2003) QPELR 414
Lipoma Pty Ltd v Redland City Council [2017] QPEC 53
2 citations
Jump To
Cite 1 - [2017] QPEC 53
Cite 2 - [2017] QPEC 53
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 [2011] QCA 358
1 citation
Jump To
Cite 1 - [2011] QCA 358
Lockyer Valley Regional Council v Westlink Pty Ltd[2013] 2 Qd R 302; [2012] QCA 370
4 citations
Jump To
Cite 1 - [2012] QCA 370
Cite 2 - [2012] QCA 370
Cite 3 - [2013] 2 Qd R 302
Cite 4 - [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
William McEwans Pty Ltd v BCC (1981) 1 Q.P.L.R 33
1 citation
Jump To
Cite 1 - (1981) 1 Q.P.L.R 33
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
2 citations
Jump To
Cite 1 - [2005] QCA 262
Cite 2 - [2006] 1 Qd R 273
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
3 citations
Jump To
Cite 1 - [2014] QCA 147
Cite 2 - [2014] QCA 147
Cite 3 - [2014] QCA 147
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
3 citations
Jump To
Cite 1 - [2014] QPELR 686
Cite 2 - [2014] QPELR 686
Cite 3 - [2014] QPELR 686
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
3 citations
Jump To
Cite 1 - (2014) 201 LGERA 82
Cite 2 - (2014) 201 LGERA 82
Cite 3 - (2014) 201 LGERA 82

Cases Citing

Case NameFull CitationFrequency
King of Gifts (Qld) Pty Ltd v Redland City Council (No 2) [2020] QPEC 4240 citations
Redland City Council v King of Gifts (Qld) and HTC Consulting Pty Ltd [2021] QCA 21013 citations
Redland City Council v King of Gifts (Qld) Pty Ltd(2020) 3 QR 494; [2020] QCA 414 citations
1

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