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Parmac Investments Pty Ltd v Brisbane City Council[2018] QPEC 32

Parmac Investments Pty Ltd v Brisbane City Council[2018] QPEC 32

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32

PARTIES:

PARMAC INVESTMENTS PTY LTD (ACN 106 378 205)

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

and

BEVERLEY WHITE, NEALE DOUGLAS WHITE, ROSS WHITE AND LEANNE SHARP

(first co-respondents by election)

and

CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING

(third co-respondent by election)

FILE NO/S:

4296 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

18 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

9, 10, 11, 12 April 2018 and 8, 9 and 10 May 2018 and further evidence received 21 May 2018

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where the appellant seeks approval for a service station in the Environmental management zone – where the council refused the development application – whether the proposed development is of a scale that is compatible in the zone – whether the proposed development supports existing concentrations of commercial-type development – whether the proposed development meets other locational requirements for location in the zone – whether the proposed development will have an unacceptable visual amenity impact – whether the proposed development would have an unacceptable impact in terms of air, noise and lighting – whether the proposed access arrangements are unsafe – whether there are relevant matters such as need that support approval of the proposed development

LEGISLATION:

Planning Act 2016 (Qld), s 229, s 288, s 311

Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 46, s 47, s 76

Planning Regulation 2017 (Qld), s 27

CASES:

Bell v Brisbane City Council [2018] QCA 84, considered

CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47; (2009) 239 CLR 390, cited

Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395, cited

Heath & Anor v Brisbane City Council [2008] QPEC 33; [2008] QPELR 566, followed

Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21, followed

Jedfire Pty Ltd v Council of the City of Logan & White [1995] QPELR 41, followed

K & K GC Pty Ltd v Gold Coast City Council [2018] QPEC 9, cited

Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7; [2008] QPELR 480, followed

Petroleum Design & Management Pty Ltd v Mackay City Council [2004] QPEC 20; [2004] QPELR 593, followed

Prime Group Properties Limited v Caloundra City Council and Darracott & Ors [1995] QPELR 147, cited

Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Anor [2002] QCA 277; (2002) 121 LGERA 390, cited

Stockland Development Pty Ltd v Townsville City Council & Ors [2013] QCA 210; (2013) 195 LGERA 317, cited

United Petroleum Pty Ltd v Gold Coast City Council [2018] QPEC 8, approved

Wingate Pty Ltd & Anor v Brisbane City Council & Ors [2001] QPEC 5; [2001] QPELR 272, followed

Zappala v Brisbane City Council [2014] QCA 147; (2014) 201 LGERA 82, applied

COUNSEL:

T Sullivan QC with M Batty for the appellant

N Loos for the respondent

B Job QC for the first co-respondents by election

J Ware for the third co-respondent by election

SOLICITORS:

Connor O'Meara Solicitors for the appellant

City Legal – Brisbane City Council for the respondent

Anderssen Lawyers Pty Ltd for the first co-respondents by election

Herbert Smith Freehills for the third co-respondent by election

TABLE OF CONTENTS

Introduction..........................................................................................................................................................................4

The site..................................................................................................................................................................................4

The proposed development...............................................................................................................................................5

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

The decision of the Court of Appeal in Bell v Brisbane City Council & Ors......................................................................6

The issues..............................................................................................................................................................................8

Land use conflict...................................................................................................................................................................9

Overall outcome (4)(g) of the Environmental management zone code.........................................................................9

Is the proposed development of a scale that is compatible with the Environmental management zone?..............9

Is the proposed development located on a district road or suburban road (or motorway or arterial road only)?....................................................................................................................................................................................13

Does the proposed development support existing concentrations of centre-type activities?.................................15

Relevant provisions of the Strategic framework and Service station code.................................................................20

Amenity impacts.................................................................................................................................................................22

Visual amenity.....................................................................................................................................................................22

The Greenspace Network..................................................................................................................................................22

Character of the proposed development........................................................................................................................29

Visual amenity impacts on the immediate surrounds...................................................................................................29

Air, noise and lighting amenity impacts...........................................................................................................................32

Air quality............................................................................................................................................................................32

Noise....................................................................................................................................................................................32

Lighting................................................................................................................................................................................34

Traffic...................................................................................................................................................................................36

Is access off Old Cleveland Road acceptable given the proximity of intersections?..................................................36

Austroads............................................................................................................................................................................41

Transport, access, parking and servicing planning scheme policy..............................................................................42

Is an extended shared cyclist/left turn facility acceptable?..........................................................................................44

Are the width of the parking spaces acceptable?..........................................................................................................48

Is there acceptable access for fuel tankers?..................................................................................................................48

Conclusion re traffic.........................................................................................................................................................49

Relevant matters..............................................................................................................................................................49

Need...................................................................................................................................................................................50

Conclusion.........................................................................................................................................................................55

Introduction

  1. [1]
    This appeal is against the decision of the respondent, Brisbane City Council (“Council”) to refuse the appellant’s development application for a service station and associated convenience store on the corner of Old Cleveland Road and Stanbrough Road, Belmont.
  1. [2]
    The first co-respondents by election (referred to herein, for convenience, as “the residents”) live nearby and oppose the development.
  1. [3]
    The second co-respondent by election, the Chief Executive of the Department of State Development, Manufacturing, Infrastructure and Planning (“Chief Executive”), was a concurrence agency for the development application.  He contends that the access arrangements and associated road works proposed by the appellant are unsafe.  However, he contends that if conditions are imposed as proposed by him, the development could be approved.

The site

  1. [4]
    The subject land is located at 1562 Old Cleveland Road, Belmont. It has an area of approximately 7 643 square metres.  It is bounded by Old Cleveland Road to the south, Stanbrough Road to the east and residences to the west and north.
  1. [5]
    The subject land is relatively flat and has been cleared in parts.[1]  A two-storey dwelling house and an illuminated advertising sign, approximately nine metres in height, currently improve it.
  1. [6]
    The subject land has frontage of approximately 50 metres to Old Cleveland Road and 300 metres to Stanbrough Road.[2]
  1. [7]
    Under Brisbane City Plan 2014 (“City Plan”), the subject site is located in the Environmental management zone.

The proposed development

  1. [8]
    Approval is sought for a 7-11 branded service station containing four fuel pumps with dispensers to accommodate eight standing positions under a canopy. There is to be a sales area building (with a retail area of 117.6 square metres, an office of 19.1 square metres and back of house of 55.3 square metres), refuse storage area, mechanical plant, air and water pumps, as well as 12 car parking spaces.[3] 
  1. [9]
    The proposed development provides for illuminated signs, including a freestanding pylon sign that is 10 metres high and 2.3 metres wide, canopy signage and shop signage.[4]  Some signage will require a further development permit.
  1. [10]
    The service station use is proposed to be limited to the southern part of the subject land, on an area of 3 487 square metres.  The balance area, approximately 4 156 square metres, will remain undisturbed.[5]
  1. [11]
    Landscaping is proposed along all development area boundaries, with the exception of those parts of the subject land required for ingress or egress.[6]  An acoustic fence is proposed along the western and northern boundary of the development area.[7] 
  1. [12]
    The service station is intended to operate 24 hours a day, seven days a week. However, the appellant has agreed to conditions that limit bulk fuel delivery to between 7.00am and 6.00pm, as recommended by its acoustic engineer, Mr King. It is also agreeable to limiting bulk fuel delivery so that it does not occur during the morning or afternoon peak weekday hours of 7.00am to 9.00am and 4.00pm to 7.00pm in order to meet concerns expressed by Mr Trevilyan (the traffic engineer retained by Council) with respect to such vehicles “straddling” two lanes to access the subject land.[8]

The decision framework

  1. [13]
    The development application the subject of the appeal was lodged with Council on or about 23 May 2017.[9]  At that time, the Sustainable Planning Act 2009 (Qld) was in force, as was City Plan.
  1. [14]
    The Sustainable Planning Act 2009 was repealed by the Planning Act 2016 (Qld) on 3 July 2017.  Pursuant to s 288 of the Planning Act 2016, the Sustainable Planning Act 2009 continued to apply to the assessment of, and decision with respect to, the development application.
  1. [15]
    By decision notice dated 13 October 2017, Council notified its decision to refuse the development application.[10]
  1. [16]
    The appellant filed a Notice of Appeal on 8 November 2017.
  1. [17]
    The appeal is a Planning Act appeal, commenced after 3 July 2017 under s 229 and s 311(4) of the Planning Act 2016.  It is also an appeal under s 76(1)(c) of the Planning and Environment Court Act 2016 (Qld).  As such, the appeal is to be heard and determined under the Planning Act 2016 and the Planning and Environment Court Act 2016.
  1. [18]
    Pursuant to s 45 of the Planning and Environment Court Act 2016, the appellant has the onus of establishing that the appeal should be upheld.
  1. [19]
    The appeal is generally by way of hearing anew:[11] the court is to determine the appeal standing in the shoes of the assessment manager and on the law as it presently stands.[12] 
  1. [20]
    The development application required impact assessment. The decision is to be based on the assessment under s 45(5), (6) and (7) of the Planning Act 2016,[13] subject to s 46(2) of the Planning and Environment Court Act 2016.  As such, the court must assess the development application against City Plan, being the planning instrument in place at the time the development application was properly made, and may assess the development application against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.

The decision of the Court of Appeal in Bell v Brisbane City Council & Ors

  1. [21]
    With respect to the recent Court of Appeal decision in Bell v Brisbane City Council & Ors [2018] QCA 84 (“Bell”), Council submits that the Court of Appeal’s statements about the primacy of the planning scheme are clear statements of general principle and that the repealed Sustainable Planning Act 2009 and the Planning Act 2016 are not so dramatically different that those statements of general principle have lost their cogency.[14]  In particular, Council encourages the application of the sentiments expressed in Bell that the planning scheme is a comprehensive expression of the public interest.[15]  It submits that the sentiment marks a change in the understanding of the law, in that it ought now be recognised that the expression in a planning scheme as to the appropriate development of land should not be lightly overcome by some factor extraneous to the planning scheme.
  1. [22]
    The appellant submits that the Court of Appeal appears to have reduced the Court’s discretion to approve in circumstances where conflict is found with a relevant planning instrument. It submits that this reduced discretion arises on the basis of the decision in Bell in that the Court of Appeal appeared to be of the view that in determining whether there are grounds capable of overcoming conflict, it is necessary for the assessment manager to have regard to the planning scheme as an embodiment of what represents the public interest.[16]
  1. [23]
    The appellant submits, however, that the decision of the Court of Appeal in Bell is of diminished significance in this case, and is by no means determinative, for three reasons, namely:[17]
  1. (a)
    Bell was a grounds case, in that conflict with the applicable planning instruments was conceded;
  1. (b)
    the statutory assessment process that applied in Bell is not applicable in this case; and
  1. (c)
    the focus of the decision in Bell was overall outcome (3)(h) of the Toowong-Auchenflower Neighbourhood Plan.
  1. [24]
    I accept the appellant’s submission that the decision of the Court of Appeal in Bell is of diminished significance in this case.  The statutory assessment process under the Planning Act 2016 differs from the assessment regime that applied under the Sustainable Planning Act 2009, which was being considered in Bell.  The new assessment and decision rules for both code and impact assessment dispense with the “2 Part Test” (i.e. the conflict and grounds test) that existed under the Sustainable Planning Act 2009.[18]  This is confirmed by the Explanatory Note to the Planning Bill 2015.  As such, the ratio decidendi of the Court of Appeal decision in Bell is not binding.[19]
  1. [25]
    That said, the statement of McMurdo JA at [66] that “a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land” is persuasive, given the statement was made with respect to City Plan. 
  1. [26]
    However, one must be cautious in the application of that observation. It is important that it is not taken out of context. The statement was made in a context where:
  1. (a)
    it was clear that the observation was being made about the role of a planning scheme when s 326(1)(b) of the Sustainable Planning Act 2009 is engaged;
  1. (b)
    the provision being construed, in terms of conflict and grounds to overcome it, was overall outcome (3)(h) of the Toowong-Auchenflower Neighbourhood Plan, which was extracted at [10] of the decision.  It states:

“Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.”

(emphasis added)

The provision is unusual in that it not only contains development standards for height, scale and form, but also a discretion to allow departure from the intended development standards where it is established that there is “both a community need and an economic need for the development”.  Where a proposed development does not comply with the intended development standards or the additional factors set as discretionary hurdles, one might expect that it would need to be an exceptional case, in terms of the “grounds” or other “relevant matters” relied on, to support approval;[20] and

  1. (c)
    the description of the planning scheme as providing a “comprehensive expression of what will constitute, in the public interest, the appropriate development of land” should not be taken as a statement that the planning scheme is a complete expression of what is in the public interest.  This is apparent from the observations of McMurdo JA at [68].  It is also self-evident given planning schemes are reflective of a point in time, and are performance based.  A performance based planning scheme does not, by its very nature, envisage a single development option or design; rather it presents a series of development parameters that are to be considered and demonstrated by a proposal.  Further, they do not purport to provide for every form of development that may be required to meet the legitimate expectations of the community.  If it were otherwise, the notion of planning need would have no work to do.
  1. [27]
    The expression of a clear and deliberate policy in a planning scheme about the appropriate development of land should not be readily departed from, particularly where the expression is in such strong terms as that in overall outcome (3)(h) of the Toowong-Auchenflower Neighbourhood Plan under consideration in Bell.  Equally, one should not approach the statutory assessment exercise on the basis that the provisions of a planning scheme are to be rigidly applied, or on the basis that they cannot be overcome.  To do so would be to ignore the assessment exercise called for by s 45 of the Planning Act 2016, which, for impact assessment, expressly permits regard to be had to any other relevant matter.
  1. [28]
    Ultimately, the outcome of each case will turn on the nature of the planning scheme provisions in question and the facts of the case. The decision of the Court of Appeal in Bell is by no means determinative in this case.

The issues

  1. [29]
    The issues in dispute relate to:
  1. (a)
    whether the proposed development is an appropriate use in the zone;
  1. (b)
    whether the proposed development will have unacceptable amenity impacts, including visual amenity impacts and the impact on amenity from air, noise and lighting;
  1. (c)
    whether the proposed development can achieve an acceptable traffic outcome; and
  1. (d)
    the extent to which relevant matters, such as planning, economic and community need, support approval of the proposed development.

Land use conflict

Overall outcome (4)(g) of the Environmental management zone code

  1. [30]
    Although Council and the residents have identified many provisions of City Plan that they say are relevant assessment benchmarks with which the proposed development does not comply, it was common ground[21] that the central provision in the appeal is overall outcome (4)(g) of the Environmental management zone code.
  1. [31]
    Overall outcome (4)(g) states:[22]

“(g) Development for an agricultural supplies store, animal keeping, bulk landscape supplies, emergency services, garden centre, service station, or wholesale nursery:

  1. (i)
     is of a scale which is compatible with the Environmental management zone;
  1. (ii)
     is located on a district road or suburban road (or motorway or arterial road only, if a service station);
  1. (iii)
     supports existing concentrations of centre-type activities;
  1. (iv)
     is not located within an area of high or general ecological significance on the Biodiversity areas overlay map.”
  1. [32]
    There is no dispute that overall outcome (4)(g)(iv) is satisfied.[23]  The proposed development is not located within an area of high or general ecological significance on the Biodiversity areas overlay map. 
  1. [33]
    There is, however, dispute about whether the proposed development accords with overall outcomes (4)(g)(i), (ii) and (iii).

Is the proposed development of a scale that is compatible with the Environmental management zone?

  1. [34]
    There is disagreement between the parties about the matters that are to be considered when assessing the scale of the proposed development.
  1. [35]
    The appellant submits that matters relating to gross floor area, height, impervious area and setbacks are all relevant to an assessment of scale.[24] 
  1. [36]
    With respect to those development metrics:
  1. (a)
    the proposed gross floor area of about 200 square metres does not represent an overdevelopment of the subject land.  It is compatible with the scale of houses in the neighbourhood, some of which would have a gross floor area in excess of 200 square metres;[25]
  1. (b)
    the proposed buildings are to have a height of eight metres, which is comparable to the potential height for houses in the zone, which could be up to two storeys or 9.5 metres in height;[26]
  1. (c)
    the proposed development is to have an impervious area of about 2 055 square metres,[27] which is comparable to the 2 785 square metres of impervious area for the residential use to the north, and the 3 983 square metres and 2 931 square metres of impervious area associated with residential properties to the west;[28] and
  1. (d)
    there is a generous separation, in the order of 130 metres, between the service station fuel canopy and the residential use to the north.[29]
  1. [37]
    In those circumstances, the appellant submits the proposed development is of a scale that is compatible with the Environmental management zone.
  1. [38]
    Council and the residents submit that the hours of operation, extent and duration of lighting and the volume of traffic associated with the proposed development also inform its scale.[30]
  1. [39]
    The term “scale” is to be given its ordinary meaning, as it is not defined in the Sustainable Planning Act 2009, the Sustainable Planning Regulation 2009 (Qld), Schedule 1 of City Plan or the Acts Interpretation Act 1954 (Qld).[31]
  1. [40]
    “Scale” is defined in the Macquarie Dictionary,[32] relevantly, as:

“1. a succession or progression of steps or degrees; a graduated series. … 9. a certain relative or proportionate size or extent: a residence on yet a more magnificent scale. 10. a standard of measurement or estimation.”

  1. [41]
    The definition of scale provides little assistance in resolving the issue. However, other provisions of the Environmental management zone code that provide context and assist in the understanding of the concept of “scale”[33] in overall outcome (4)(g) are:[34]
  1. (a)
    the purpose of the Environmental management zone code, which the overall outcomes are intended to achieve.[35]  It states:[36]

“(1) The purpose of the Environmental management zone code is to recognise environmentally sensitive areas and may provide for houses on lots and other low-impact activities where suitable. These areas are protected from inclusion of any urban, suburban, centre or industrial land use except quarries that are identified in the Strategic framework.

…

  1. (3)
     The purpose of the code will be achieved through overall outcomes for development location, uses and form.”

(emphasis added)

  1. (b)
    other overall outcomes of the Environmental management zone code, which include:

“(f) Development for a home based business may operate in a dwelling house and is of a scale and nature that protects the amenity of adjoining residents.

…

  1. (i)
     Development for a place of worship, retirement facility, residential care facility or other intensive land use is not accommodated as their size, bulk and visual impact detract significantly from the landscape character and environmental values of land.”

(emphasis added)

  1. [42]
    Consideration of those provisions reveals that:
  1. (a)
    although the purpose of the zone is to recognise environmentally sensitive areas, the zone also provides for “low-impact activities where suitable”;
  1. (b)
    the overall outcomes are not directed only at questions of development form, but also issues of location and use;
  1. (c)
    overall outcome (4)(f) controls the development metrics associated with built form for home based businesses by permitting a home based business to “operate in a dwelling house”, but the overall outcome also contains an additional requirement that the “scale” be such as to “protect the amenity of adjoining residents”; and
  1. (d)
    overall outcome (4)(i) stipulates that the “size, bulk and visual impact” (rather than the scale) of a place of worship, retirement facility and residential care facility are not considered appropriate.
  1. [43]
    When the text of overall outcome (4)(g)(i) is considered in that context, it seems to me that an assessment of the compatibility of the “scale” of the proposed development requires consideration of not only built form metrics, but also indicia of the intensity (or impact) of the use.  Relevant indicia of the intensity, level of activity or impact of the use include hours of operation, extent and duration of lighting and volume of traffic associated with the proposed development. 
  1. [44]
    The inclusion of a service station use as a contemplated use in the Environmental management zone does not, of itself, indicate that all service station proposals are compatible, or that it is axiomatic that the use will be one that will have 24-hour operation.[37]  The overall outcome that lists the use is intended to achieve the overriding purpose, which admits of “other low-impact activities”. 
  1. [45]
    Further, the other uses contemplated in the Environmental management zone involve a much lower level of activity or intensity than the proposed development. In particular:
  1. (a)
    animal keeping, such as pet resorts and kennels, would generally have low visitor numbers and virtually no visitors at night;[38]
  1. (b)
    bulk landscape supplies stores and nurseries might be busy on the weekend, but would have low levels of activity during the week and no visitors at night;[39] and
  1. (c)
    although emergency services can operate at any hour of the day, it is a use that is inactive almost all of the time.  It has the potential for loud noises and bright lights in the early hours of the morning, but only on an occasional basis.[40] 
  1. [46]
    The scale of a service station use can vary from site to site. For example, the Matilda at Capalaba West (within the primary trade area) does not involve a 24-hour operation.[41] 
  1. [47]
    Another aspect of scale that can vary is the number of bowsers and the size of the associated convenience shop. The proposed development involves four fuel pumps with eight standing positions and a shop in the order of 225 square metres.[42]  Compared to other service stations in the trade area, the service station is of a medium scale.  There are other service stations with fewer bowsers.  The shop size of the proposed development would be at the upper end of the spectrum.[43]
  1. [48]
    Mr Brown described the subject service station proposal as “a high intensity form of development”.[44]  Both Mr Schomburgk and Mr Powell accepted that the proposed development is an intensive land use.[45]  It will have a high level of activity, with customers coming and going 24 hours a day, seven days per week.[46]  There will be a substantial increase in the traffic in Stanborough Road, which will be particularly evident between 10 pm and 6 am, as every vehicle that enters the site must leave via Stanborough Road.[47]
  1. [49]
    The proposed development will also involve well over 100 square metres of signage and branding.[48]  Much of it will be directly or indirectly illuminated at night.  In addition, other areas will be illuminated such as the area under the canopy, the tower attached to the shop, the entirety of the pylon sign, the shopfront face and what appears to be a maintenance area for the shop.[49]  That compares with the billboard currently on the subject land, which has a display area three metres high and six metres wide and is illuminated for part of the night.[50] 
  1. [50]
    Overall, the proposed development involves a greater level of activity and impact than the existing uses in the area and the uses encouraged in the area.[51] 
  1. [51]
    Having regard to all relevant indicia of the “scale” of the use, I am not satisfied that the use is of a scale which is compatible with the Environmental Management Zone. 

Is the proposed development located on a district road or suburban road (or motorway or arterial road only)?

  1. [52]
    The service station is proposed to be located on the corner of Stanbrough Road and Old Cleveland Road. Stanbrough Road is a district road. Old Cleveland Road is an arterial road.[52]
  1. [53]
    There was a significant contest between the parties about whether the proposed development satisfies overall outcome (4)(g)(ii) of the Environmental management zone code. It requires:

“(g) Development for an agricultural supplies store, animal keeping, bulk landscape supplies, emergency services, garden centre, service station, or wholesale nursery:

  1. (ii)
     is located on a district road or suburban road (or motorway or arterial road only, if a service station); …”
  1. [54]
    The appellant submits that, as a matter of grammatical construction, all of the uses can be located on suburban or district roads. It submits that the use of the word “or” after the first bracket introduces something additional to what preceded it; it is not the language of exception.  It submits that when the location of the use is only on an arterial road or motorway, the use is limited to a service station.  It submits that, on any construction, overall outcome (4)(g)(ii) cannot mean that if a service station is located on a district road and an arterial road the outcome is not met.[53] 
  1. [55]
    In support of its construction, the appellant also submits that there is no logical basis for corner lots to be excluded from the planning intent that service stations are acceptable in the Environmental management zone where they are located with frontage to motorways or arterial roads.[54] 
  1. [56]
    Council and the residents submit that the outcome requires service stations have their access only by motorways or arterial roads.
  1. [57]
    I do not accept the construction contended for by the appellant. It ignores that the placement of the comma is after the word only, rather than before it. Alternatively, it gives the word “only” no work to do.
  1. [58]
    In my view, the provision permits a service station in the Environmental management zone where it is located only on a motorway or arterial road. The words in the brackets operate as an exception to the general rule that all of the uses can be located on suburban or district roads.
  1. [59]
    This construction accords with sound town planning. It isolates the traffic impact associated with the service station use: it prevents the intrusion of service station traffic into lower order side roads that connect with arterial roads or motorways.[55]  This minimises the potential for an unacceptable character impact occasioned by traffic associated with a service station. 
  1. [60]
    A service station on a corner lot, particularly with access to both frontages, has a greater potential for visual impacts than one located only on an arterial road or motorway. This is because there are two roads or viewing corridors, thereby increasing the potential for impact on residents and viewers.[56]
  1. [61]
    The locational distinction in the planning outcome between service stations and those activities that are contemplated on a district or suburban road is explicable by reference to their differing visual impact. During cross-examination, Mr Powell acknowledged that:
  1. (a)
    animal keeping involves a different appearance;[57]
  1. (b)
    an example of a bulk landscape supply facility is the Nuway facility in Exhibit 75 and that garden centres and wholesale nurseries tend to be rather low key in appearance.  They are more consistent with the rural residential-type character.  Most are unlikely to operate 24 hours a day, and they are unlikely to have anything like the level of lighting associated with a service station;[58] 
  1. (c)
    the service station will be a much busier premises with higher levels of activity when compared to any of the other examples.[59]
  1. [62]
    In this case, the lack of conformity with this planning objective is not without consequence.
  1. [63]
    I do not accept, as submitted by the appellant, that the corner lot results in the proposed development being further setback from nearby sensitive receptors thereby reducing the amenity impacts and providing greater opportunity for ameliorative measures such as landscaping.[60]  The extent of impacts occasioned by a service station on a corner lot will depend on the design of the service station and the locational attributes of the site in question.
  1. [64]
    Here, the subject land’s location on the corner of Old Cleveland Road and Stanbrough Road results in the subject land having only two adjoining neighbours. However, the existence of Stanbrough Road between the proposed development and the residence to the east does not necessarily produce a better amenity outcome.
  1. [65]
    The amelioration afforded by the increased distance between the two sites is eroded by the proposed reliance on Stanbrough Road for all egress from the service station and the consequent inability to landscape the entire frontage to Stanbrough Road.
  1. [66]
    There will be a significant visual change. The service station’s fuel dispenser canopy, signage and hardstand areas will be clearly visible from Stanbrough Road.[61]  As is evident from the photomontages, its colour and physical form presents a stark contrast to the adjacent landscape.[62]  At night, the visual impact of the proposed development will be even more evident.  Currently, at night, the streetscape presents as a dark rural residential street with occasional house lights.  In this environment, the service station would stand out as a beacon, with the two illuminated entry signs, the underside of the fuel dispenser canopy, the surrounding hard pavement and adjacent trees all illuminated by a bright white light.  White light itself will be perceived differently from the sodium vapour “warm” lighting at the Old Cleveland Road intersection.[63]  These visual impacts would not occur were the proposed development located on an arterial road only.[64]

Does the proposed development support existing concentrations of centre-type activities?

  1. [67]
    Overall outcome (4)(g)(iii) requires development of a service station in the Environmental management zone to “support existing concentrations of centre-type activities”.
  1. [68]
    The term “support” is not defined in the Sustainable Planning Act 2009, the Sustainable Planning Regulation 2009 (Qld), Schedule 1 of City Plan or the Acts Interpretation Act 1954 (Qld).[65]  As such, it is to be given its ordinary meaning.[66]
  1. [69]
    “Support” is defined in the Macquarie Dictionary,[67] relevantly, as:

“1. to bear or hold up (a load, mass, structure, part, etc.).  2. to sustain or withstand (weight, etc.) without giving way.  3. to undergo or endure, especially with patience or submission; tolerate. … 5. to maintain (a person, family, establishment, institution, etc.) by supplying with things necessary to existence; provide for.  6. to uphold (a person, cuase, policy etc.) by aid or countenance; back; second (efforts, aims, etc.) … 21. a service providing assistance to the users of a product …”

  1. [70]
    The appellant submits that, in the context of the provision, “support” means not cutting across, supplanting or overtaking existing concentrations of centre-type activities.[68] 
  1. [71]
    In addressing compliance with overall outcome (4)(g)(iii), Mr Schomburgk, the town planner engaged by the appellant, expressed the opinion that:[69]

“The intent of this criterion is unclear to me, especially in light of the identification of a service station as use contemplated for the Zone – a zone that, by its nature, is usually remote from centre zones and centre activities.  A service station ought not be confined to a “centre-designated” area, especially when, as in this case, it is intended to serve not only local trade but passing traffic as well.  The Council’s reasons for refusal notes that the site is not adjacent to, or in close proximity to, any existing concentration of centre-type activities.  I do not see the correlation between support for centre-type activities, and the location of a proposed use, especially for a use such as a service station which is usually regarded as something of a “footloose” land use.  I note that the same criteria apply to a garden centre, agricultural supplies store, wholesale nursery, etc – none of which have any practical relationship with conventional centre-type activities.  Curiously, the Purpose of the EMZ includes to protect these areas “from the inclusion of any … centre land use” (s 6.2.4.1(1)) yet this criterion requires such development to “support existing concentrations of centre-type activities”.  The policy intent of this criterion remains unclear to me for the types of land uses listed as potentially compatible in the EM Zone.”

  1. [72]
    In his individual report, Mr Schomburgk opined that the proposed use complies with overall outcome (4)(g)(iii) by:[70]

“adding to the spatial mix of service stations in this locality, and by filling a “gap” in the current distribution of service stations in the area.”

  1. [73]
    The appellant submits that the proposed development would support existing concentrations of centre-type activities given that:
  1. (a)
    there is a need for the proposed development;
  1. (b)
    the proposed development does not cut across or conflict with the hierarchy of centres;
  1. (c)
    the spatial distribution of service station type uses is presently inadequate in this location given the “gap” in the network; and
  1. (d)
    Mr Norling, the need expert retained by Council, by reference to the antonyms of “support” appeared to accept the appellant’s definition of the word “support”.[71]
  1. [74]
    I do not share Mr Schomburgk’s views, nor do I accept the appellant’s submissions.
  1. [75]
    It is difficult to see how the appellant’s construction of the provision accords with the ordinary meaning of “support”.  In any event, the “support” to be provided is not support for other centre uses (or an absence of unacceptable impact on other centre uses): it is “support” for “existing concentrations” of “centre-type activities”. 
  1. [76]
    “Centre-type activities” is not defined in City Plan.  “Centre activities” is a defined activity group in City Plan.  It includes a number of defined uses.  The only use referred to in overall outcome (4)(g) that is included in the definition of “Centre activities” is emergency services. 
  1. [77]
    In my view, the term “centre-type activities” is not coincident with “centre activities”, nor is the provision an expression of planning policy that the uses referred to in overall outcome (4)(g) are to locate in a “centre-designated” area.  The term “centre-type activities” is a convenient descriptor for those uses referred to in overall outcome (4)(g), given they generally (other than emergency services) involve an aspect of commerciality.  It is also apt to describe “existing concentrations” of uses that are a combination of “centre activities” and other uses that are not “centre activities” that have a commercial nature.  Examples in the area include:
  1. (a)
    the dry cleaner, café, post office, child care centre[72] and service station clustered in the Environmental management zone on New Cleveland Road, proximate the corner of Tilley Road.  The cluster is adjacent the Gumdale State School and is immediately across the road from the neighbourhood centre;[73]
  1. (b)
    the concentration of activities in relative proximity on New Cleveland Road, proximate Archer Street and Green Camp Road, which include a swim school (in the Emerging Community Zone) and two animal keeping uses, a service station and car repair station;[74] and
  1. (c)
    a very small concentration of two animal keeping uses on Formosa Road.[75]
  1. [78]
    As was acknowledged by Mr Schomburgk, there is nothing in the text of City Plan that evinces a planning intention to permit service stations to be regarded as a “footloose” use or to encourage “spatial distribution” of service stations to fill gaps in the current distribution.[76] 
  1. [79]
    It seems to me that the provision requires development to contribute to existing concentrations of centre-type activities by locating them in close proximity to those existing concentrations.
  1. [80]
    Consideration of overall outcome (4)(g)(iii) in the context of the purpose of the Environmental management zone code, which the outcome is intended to achieve, lends weight to that construction. The purpose, relevantly, includes implementation of the policy direction set in Theme 3 and Element 3.1, and Theme 5 and Element 5.6 of the Strategic Framework.[77]
  1. [81]
    That policy direction relates to the definition of local neighbourhoods and the edge of the city, avoidance of fragmentation of environmental management lands, and protection of ecological corridors, green links and inter-urban breaks. It is particularly evident in:
  1. (a)
    strategic outcome 3.5.1(1)(d) in Theme 3, which states:[78]

“The Greenspace System serves many functions. It contributes to the city's character and liveability; it supports landscape, recreation and ecological functions, ecosystem services and defines local neighbourhoods and the edge of the city.”

(emphasis added)

  1. (b)
    strategic outcome 3.5.1(1)(f) and (g) in Theme 3, which seek a well-protected system of habitat areas connected by ecological corridors and links between biodiversity areas;
  1. (c)
    specific outcome SO2 and land use strategies L2.1 to 2.3 for Element 3.1, which relevantly provide:[79]

SO2

Brisbane’s Greenspace System provides an effective network of greenspace links and contributes to a regional network.

L2.1

Development does not fragment environmental management, rural residential or rural lands.

L2.2

…

L2.3

Development protects the inter-urban breaks between Brisbane and the Moreton Bay region, Somerset region, Redland City and Logan City which form part of the regional Greenspace System and provide links to greenspace in other local government areas.

(emphasis added)

  1. (d)
    specific outcomes SO1, SO2 and SO3 and the corresponding land use strategies for Element 5.6 – Brisbane’s Greenspace System, which state:[80]

SO1

The Greenspace System’s values and functions are identified, retained and enhanced.

L1.1

Development protects land allocated for nature conservation, public open space and sporting and recreation uses.

L1.2

Development intensity, land use allocation, siting and design protect the multiple values and functions of the Greenspace System.

SO2

The Greenspace System is expanded to protect areas with green space values.

L2

Development in the Greenspace System appropriately reflects the values of the site and ensures those areas of the site are protected and enhanced.

SO3

The Greenspace System provides an effective network of green space links and contributes to a regional network.

L3.3

Development protects the inter-urban breaks between Brisbane City and Moreton Bay Region, Somerset Region, Redland City and Logan City, as part of the Greenspace System.

(emphasis added)

  1. [82]
    A construction that requires those uses identified in overall outcome (4)(g) to co-locate with, or contribute in a locational sense, to an existing concentration is consistent with the policy direction identified in these provisions. The appellant’s interpretation of the provision is not.
  1. [83]
    A construction that requires contribution in a locational sense is also consistent with sound town planning principles. As was observed by Mr Brown, positioning like with like ensures the identified uses are not scattered indiscriminately throughout the zone.[81]  He regarded the co-location or collection of these “centre-type” activities in a concentrated area as informed by consideration of amenity impacts, traffic management and efficiency.[82]  Mr Mulcahy also gave evidence about the benefits to the community and motorists when facilities are grouped together, rather than isolated.[83]  During cross-examination, Mr Schomburgk also acknowledged that co-location of development for those uses identified in overall outcome (4)(g) with existing concentrations of centre-type activities makes sense having regard to:
  1. (a)
    the activation that such uses involve;
  1. (b)
    the accepted planning principle of conveniently locating uses so as to encourage multi-purpose or combined trips; and
  1. (c)
    the potential for greater consistency in character and absence of adjoining residential development.[84]
  1. [84]
    A prime example of the achievement of these principles is the location of the 7-Eleven service station at the corner of New Cleveland Road and Tilley Road at Gumdale.[85]  It is located on land in the Environmental management zone[86] but is adjacent to a substantial number of centre-type uses, including retailing, personal services and general commercial uses.[87]
  1. [85]
    In light of the view I have taken about the proper construction of overall outcome (4)(g)(iii), I am not satisfied that the proposed development would support existing concentrations of centre-type activities.
  1. [86]
    I accept the evidence of Mr Leyshon that the proposed development is not located sufficiently close to any established centre or concentration of centre-type activities to support or complement such activities.[88] 

Relevant provisions of the Strategic framework and Service station code

  1. [87]
    Other provisions in issue in the appeal that relate to land use conflict are:
  1. (a)
    Theme 2, Element 2.1, specific outcome SO5 and land use strategy L5.1 of the Strategic framework, which state:[89]

SO5

Brisbane's development and infrastructure strengthens local identity.

L5.1

Development responds to and reinforces locally distinctive design, landscape, heritage, social values, patterns of development and culture.

(emphasis added)

  1. (b)
    Theme 5, Element 5.6, specific outcome SO1 and land use strategy L1.2, which provide:[90]

SO1

The Greenspace System’s values and functions are identified, retained and enhanced.

L1.1

Development protects land allocated for nature conservation, public open space and sporting and recreation uses.

L1.2

Development intensity, land use allocation, siting and design protect the multiple values and functions of the Greenspace System.

(emphasis added)

  1. (c)
    the purpose and overall outcome (2)(a) of the Service station code, which requires that “Development is in an appropriate location”;[91] and
  1. (d)
    performance outcome PO1 of the Service station code, and its associated acceptable outcome, which state:[92]

PO1

Development is located on a site that maintains the purpose and integrity of the zone and ensures that impacts on adjoining, adjacent and surrounding areas are minimised.

AO1.1

Development is not located in a zone in the residential zones category.

AO1.2

Development is not located in the Rural zone or the Environmental management zone except where:

  1. (a)
     the site is located on the Gateway Motorway or Ipswich Motorway;
  1. (b)
     the service station is one element of an integrated development that also provides a range of facilities for motorists such as rest areas, toilets and picnic facilities.

(emphasis added)

  1. [88]
    The appellant did not address these other provisions with respect to land use, other than to identify them and submit that the true dispute between the parties lies in respect of overall outcome 4(g) of the Environmental management zone code.[93]  That is unsurprising given the correlation between the provisions.
  1. [89]
    In light of my findings with respect to overall outcome (4)(g) of the Environmental management zone code, I am not satisfied that the proposed development satisfies the overall outcome (2)(a) or performance outcome PO1 of the Service station code.
  1. [90]
    The inclusion of the proposed 24 hour, overtly commercial development, with frontages to both Old Cleveland Road and Stanbrough Road, is contrary to the planning intent identified in Theme 2, Element 2.1, specific outcome SO5 and land use strategy L5.1 of the Strategic framework. 
  1. [91]
    In this respect, I accept the opinion of Mr Brown. He noted that the locality had been designated as greenspace to perform a particular function, namely to provide for a break in urban development between two parts of the metropolitan area.  The proposed development would be a discordant element in an area that has a development pattern and landscape impression of large lots developed at a low intensity with a rural-residential character.[94]
  1. [92]
    Mr Mulcahy also considered that the character and nature of the proposed 24-hour service station would be contrary to the local identity, and not respond to the landscape and patterns of development along Old Cleveland Road.[95]  He considered that the visual effect of having a pool of light in an otherwise dark or low-lit environment would be inappropriate to the existing rural residential character and existing pattern of development.[96]  I agree.
  1. [93]
    With respect to the Greenspace System’s values and functions, I accept the uncontested evidence of Dr Watson. There are no ecological benefits associated with the operation of a service station, with its attendant vehicles, on the subject land.[97]  However, the proposed development will result in an improvement to quality and quantity of vegetation on the subject land.[98]  The overall outcome in terms of ecological values is neutral.[99] 
  1. [94]
    Accordingly, while there are no matters related to ecology that call for the proposed development to be refused, the proposed development will not result in any enhancement of environmental or ecological values.
  1. [95]
    Further, as is noted in paragraph [81](a) above, the functions of the Greenspace system also include, relevantly, supporting landscape functions and defining local neighbourhoods and the edge of the city.  The proposed development is discordant with the surrounding landscape and the planned character of the local neighbourhood.  As such, I am also not satisfied that the proposed development is one that retains, protects or enhances the Greenspace System’s values and functions. 

Amenity impacts

  1. [96]
    Council and the residents allege that the proposed development would have an unacceptable impact on visual amenity, as well as unacceptable amenity impacts as a consequence of air, noise and light impacts.

Visual amenity

  1. [97]
    The visual amenity issues in the appeal are:
  1. (a)
    whether the proposed development accords with the provisions of the Strategic framework relating to the Greenspace Network;
  1. (b)
    whether the proposed development is of an appropriate character; and
  1. (c)
    whether the proposed development would have unacceptable visual amenity impacts on its immediate surrounds.

The Greenspace Network

  1. [98]
    It is alleged that the proposed development does not accord with provisions of City Plan, in particular the Strategic framework, that relate to the Greenspace Network. The relevant provisions are:[100]
  1. (a)
    Theme 3, strategic outcome 3.5.1(1)(d) of the Strategic framework, which states:[101]

“The Greenspace System serves many functions. It contributes to the city’s character and liveability; it supports landscape, recreation and ecological functions, ecosystem services and defines local neighbourhoods and the edge of the city.”

(emphasis added)

  1. (b)
    Theme 3, Element 3.1, Table 3.5.2.1, specific outcome SO2 and land use strategies L2.1 to 2.3, which relevantly provide:[102]

SO2

Brisbane’s Greenspace System provides an effective network of greenspace links and contributes to a regional network.

L2.1

Development does not fragment environmental management, rural residential or rural lands.

L2.2

…

L2.3

Development protects the inter-urban breaks between Brisbane and the Moreton Bay region, Somerset region, Redland City and Logan City which form part of the regional Greenspace System and provide links to greenspace in other local government areas.

(emphasis added)

  1. (c)
    Theme 5, Element 5.6, Table 3.7.7.1, specific outcomes SO1, SO2 and SO3 and relevant corresponding land use strategies, which provide:[103]

SO1

The Greenspace System’s values and functions are identified, retained and enhanced.

L1.1

Development protects land allocated for nature conservation, public open space and sporting and recreation uses.

L1.2

Development intensity, land use allocation, siting and design protect the multiple values and functions of the Greenspace System.

SO2

The Greenspace System is expanded to protect areas with green space values.

L2

Development in the Greenspace System appropriately reflects the values of the site and ensures those areas of the site are protected and enhanced.

SO3

The Greenspace System provides an effective network of green space links and contributes to a regional network.

L3.3

Development protects the inter-urban breaks between Brisbane City and Moreton Bay Region, Somerset Region, Redland City and Logan City, as part of the Greenspace System.

(emphasis added)

  1. [99]
    The subject land is mapped as part of the Greenspace System on the Strategic Framework Map SFM-004.[104]  The subject land’s location within the inter-urban break is graphically depicted in Figure N1 in the Visual Amenity Joint Expert Report.[105]
  1. [100]
    Although the area is mapped as part of the Greenspace System, Mr Powell (the visual amenity expert retained by the appellant) considers the proposed development is located along a section of Old Cleveland Road with a high degree of evident urban form fronting the Old Cleveland Road / Moreton Bay Road corridor between the Gateway Motorway and Redland City.  He says that the corresponding capacity for that section of road to contribute to the visual and character function of an “inter-urban break” is limited by the degree and extent of such urban form.  He says other substantial sections of Old Cleveland Road / Moreton Bay Road provide a much more comprehensive and reliable green, non-urban edge in closer proximity to urban areas.  Consequently, in his opinion, the proposed development protects, and does not materially impact, the character function of the Council-mapped Greenspace System.[106]
  1. [101]
    In terms of the character of the locality generally, the town planners agreed that:[107]

“The locality is characterised by large homes on large allotments, generally in the order of 6,000 to 8,000m2, with some smaller (down to around 4,000m2) and some larger (up to 1.5 ha) lots in the immediate locality. Most homes have retained or planted mature trees such (sic) the locality presents as an attractive, generally well-maintained, rural residential area. This “pocket” of large lot, rural residential living extends broadly from the Gateway Motorway to the west to Capalaba to the east, north to New Cleveland Rd and south to Mt Gravatt Capalaba Rd, with some notable exceptions (see below).”

  1. [102]
    This description accords with what I viewed on the site inspection.[108] 
  1. [103]
    On the northern side of Old Cleveland Road, in the vicinity of the subject land, there is a smattering of non-residential uses, including a flower stall[109] and several billboard signs[110].  The flower stall is a low-key use that does not involve 24-hour operation and is not illuminated at night.  It has little activity around it.  Advertising signage is confined to a sandwich board sign.[111]  There is no evidence that the existing flower store operation has any approval.[112]  The billboard on the van on the neighbouring property to the west is also not licenced or approved,[113] nor is the billboard at number 1554 Old Cleveland Road.[114]
  1. [104]
    Otherwise, on the northern side of Old Cleveland Road between the Gateway Motorway and the intersection with Moreton Bay Road, there is a catering shop front that appears to be abandoned,[115] an audiologist in his rural residential home (which presents as a well-kept rural residential lot with subtle signage indicating the use),[116] an electrical contractor (which effectively looks like a tradesman working from home),[117] and the abandoned Hawkins Nursery.[118] 
  1. [105]
    On the southern side of Old Cleveland Road, the rural residential style uses (with their varying extent of built form exposure and fencing) are interrupted by Sleeman Sports Complex[119] and Belmont Shooting Complex[120].  These sporting facilities are consistent with the function of the Greenspace system to support recreation,[121] and are encouraged in the Greenspace Network.[122]
  1. [106]
    I do not accept Mr Powell’s view that this section of Old Cleveland Road has a “high degree of evident urban form”.[123]  Despite the occasional presence of low-key commercial uses in the section of Old Cleveland Road between the Gateway Motorway and the intersection with Moreton Bay Road,[124] the character on the northern side of Old Cleveland Road is “dominated by trees and houses on large allotments, typical of rural-residential areas”.[125]  This character is effectively demonstrated by the series of Google Street View images produced by Mr Mongard.[126]  In terms of the billboards, I accept Mr Mongard’s characterisation of them as “scattered and isolated amongst a lengthy tree dominated corridor and … typical for such a non-urban road corridor”.[127] 
  1. [107]
    The subject land presents as part of an inter-urban break between the corner of Old Cleveland Road and the Gateway overpass through to the edge of Brisbane City where it meets Redland City. Although the break does not have the same vegetated quality as that experienced along Moreton Bay Road,[128] the non-urban character and pattern of development along this stretch is evident in Mr Mongard’s sequence of images.[129]  It stands in stark contrast with the urban character at either end of the stretch, which is also demonstrated by images produced by Mr Mongard.[130] 
  1. [108]
    In respect of the differences between urban character and the characteristics of land in the inter-urban break, I accept the view expressed by Mr Mulcahy that:

“When viewed in the broader context of the City, including the framing “Urban Areas” of Brisbane City and Redland City, the area identified as “Greenspace” in City Plan and as “Regional Landscape and Rural Production Area” in SEQRP (being generally between the Gateway Arterial and Brisbane-Redland City boundary), clearly exists with its own identifiable identity and characteristics, such as:

a) No kerb and channel or constructed footpaths

b) Limited street lighting

c) Small scale buildings, or larger scale buildings on larger rural residential landscaped lots with a relative low site cover, such that these buildings become a small element in the landscape.

d) The dominance of vegetation and unbuilt space.”

(emphasis added)

  1. [109]
    The characteristics referred to by Mr Mulcahy are present along the relevant stretch of Old Cleveland Road.  The limited street lighting is apparent from Figures J10, N8 and N9 in the Visual Amenity Joint Expert Report.[131]
  1. [110]
    The characteristics listed by Mr Mulcahy are also present in Stanbrough Road. Adjacent to the subject land, Stanbrough Road is a minor, rural road with grass verges, no footpaths and low levels of street lighting.[132]  These characteristics are common in the area: residents in the area, Mr White and Ms Walker, confirmed as much.[133]
  1. [111]
    Mr Mongard demonstrates the progressive view travelling along Stanbrough Road through a series of Google Street View images.[134]  During cross-examination, Mr Powell acknowledged that Stanbrough Road has a different character to Old Cleveland Road.  Beyond the first 20 to 30 metres it starts to get less urbanised and “if you didn’t look behind you, you wouldn’t … know there was an arterial road behind you”.[135]  Trees and plantings heavily dominate the streetscape.  Little lighting from houses is evident from the street.[136]
  1. [112]
    Having regard to the matters outlined in paragraphs [101] to [111] above, I do not accept the view of Mr Powell that the capacity for this section of road to contribute to the visual and character function of an “inter-urban break” is limited by the degree and extent of the development present on it.[137]
  1. [113]
    The appellant submits that the proposed development does not depart from the relevant provisions of the Strategic framework on the basis that:[138]
  1. (a)
    Theme 3, Element 3.1, Table 3.5.2.1, specific outcome SO2 states an aspirational objective, namely that Brisbane’s Greenspace system is to provide an effective network of Greenspace links and contribute to a regional network, which will continue to be achieved regardless of the result in this appeal;
  1. (b)
    Theme 5, Element 5.6, Table 3.7.7.1, specific outcome SO1 seeks for the Greenspace systems, values and functions to be identified, retained and enhanced.  In this respect, the appellant submits that it is again salient to have regard to the outcomes sought by the Environmental management zone code (namely that service stations and other commercial and urban uses are contemplated, in certain circumstances, in that zone).  It submits specific outcome SO1 is an aspirational statement that would be achieved by the proposed development, given that it is a contemplated use in the zone, and because the values and functions of the Greenspace system, as a whole, would not be affected by the result in this proceeding;
  1. (c)
    Theme 5, Element 5.6, Table 3.7.7.1, specific outcome SO2 relates to similar matters as discussed above in respect of specific outcome SO1; and 
  1. (d)
    Theme 5, Element 5.6, Table 3.7.7.1, specific outcome SO3 seeks for the Greenspace system to provide an effective network of links in a regional network.  Again, the appellant submits such an outcome can still be achieved regardless of the result in this appeal.
  1. [114]
    I accept the appellant’s submission that it is difficult for parties contending for development to be refused to establish non-compliance with broad statements such as these. The statements outline aspirations for a Greenspace System with a particular function to be protected (and enhanced) throughout the local government area.
  1. [115]
    Nevertheless, the provisions are relevant to an assessment of the proposed development. As is recorded in section 3.1(1) of City Plan:[139]

“The strategic framework set the policy direction for the planning scheme and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of the planning scheme.”

  1. [116]
    As such, these provisions of the Strategic framework assist in a consideration of whether the proposed development ought be approved.
  1. [117]
    In the Visual Amenity Joint Expert Report, Mr Powell acknowledged that:[140]

“…it is uncontroversial that the proposal will be noticeable as a service station, day and night, in each of the views, even where only the 10m high pylon sign is visible. It is also uncontroversial that there will be an introduction of lighting visible from the road frontage, not only from the pylon, but on the underside of the fuel canopy and illumination of the square logo on the southern face of the canopy …”

  1. [118]
    There is well over 100 square metres of signage and branding that is expected to be associated with the proposed development.[141]  Much of it will be directly or indirectly illuminated at night.  In addition, other areas will be illuminated such as the area under the canopy, the tower attached to the shop, the entirety of the pylon sign, the shopfront face and what appears to be a maintenance area for the shop.[142]  This can be compared to the 3m x 6m billboard on the subject land, which is only illuminated for part of the night.[143]
  1. [119]
    There is nothing in the locality between the Gateway Motorway to Moreton Bay Road that has anything like the level of signage or branding, whether illuminated or not.[144]
  1. [120]
    The visual impact of the proposed development is described well by Mr Mongard. He notes that 7-Eleven service stations are highly visible facilities. They present white surfaces with colourful contrasting horizontal stripes throughout their structures, integrated with numerous 7-Eleven signs and illuminated surfaces. The colouration, lighting and form will make the proposed development highly evident during the day and even more so at night. The bowser canopy under lighting will be clearly visible from the street and in view through the open driveway area on Stanbrough Road.[145]  As noted in paragraph [66] above, the proposed development will result in a significant visual change.  The colour and physical form of the service station will present a stark contrast to the adjacent landscape.[146]
  1. [121]
    I accept the evidence of Mr Mongard that when viewed from across Old Cleveland Road, the canopy and the vertical pylon sign will appear as strongly contrasting elements to the adjacent landscape from the intersection. The proposed development is of a scale and form at odds with the adjacent landscape, which appears as a contrasting treed backdrop, with one house, street lights and power poles. At night, the visual contrast is strong since the adjacent properties and their landscapes are very dark. The combination of the existing billboard with the other proposed signage and fascia super graphics creates a dominant urban landmark evident from the intersection.[147]  
  1. [122]
    I also accept the opinion of Mr Mongard about the views that would be experienced by eastbound drivers along Old Cleveland Road. As he notes, the dominant elements of the service station would all be evident. These include a cluster of signage, namely 7-11 signs, a digital display sign, and other third party signs (likely the pylon sign), as well as long horizontal striped patterns to the fuel canopy and sales building. At night, the adjacent landscape around the subject land as seen from this view is very dark. The urban scale, character and lighting of the proposed development is inconsistent and out of scale with the surrounding rural residential landscape. The existing billboard sign and the power pole near the driveway entrance exacerbate the contrast and visual clutter created by the proposed vertical sign and building tower.[148]
  1. [123]
    Overall, I accept the view of Mr Mongard that:[149]

“… the proposal will by its nature be a visually prominent commercial landmark at odds with the greenspace and rural character of the vicinity, locality and neighbourhood.”

  1. [124]
    As such, the proposed development finds no support from the provisions of the Strategic framework related to the Greenspace System. It does not protect the inter-urban break between Brisbane and Redland City or the landscape function of the Greenspace System. The proposed development does not contribute to the regional network of greenspace links. It represents an intrusion into the designated inter-urban break within the Brisbane Greenspace System. Further, I accept the view of Mr Brown that the proposed development would adversely affect the sense of local identity that exists within that part of the Greenspace System.[150]

Character of the proposed development

  1. [125]
    The issue of character of the locality has been considered above when assessing the proposed development against overall outcome (4)(g) of the Environmental management zone code.

Visual amenity impacts on the immediate surrounds

  1. [126]
    It is alleged that the visual amenity outcome of the proposed development does not accord with the following provisions of City Plan:
  1. (a)
    Theme 3, Element 3.2, specific outcome SO2 and land use strategy L2.1, which provides:[151]

SO2

Brisbane provides an amenity which is appropriate to the uses and development intensity planned for the different parts of the city.

L2.1

Development accords with the pattern of zones, neighbourhood plans and overlays which provide the basis for managing health and amenity impacts and interfaces between land uses and activities.

(emphasis added)

  1. (b)
    the purpose and overall outcomes of the Service station code, which provide:[152]

“9.3.21.2 Purpose

  1. (1)
     The purpose of the Service station code is to assess the suitability of development to which this code applies
  1. (2)
     The purpose of the code will be achieved through the following overall outcomes:
  1. (a)
     Development is in an appropriate location.
  1. (b)
     Development maintains health, safety and amenity near the service station and around the site.
  1. (c)
     Development is designed to effectively manage adverse impacts and hazards to adjacent or adjoining sites.”

(emphasis added)

  1. (c)
    Performance outcome PO2 and acceptable outcome AO2 of the Service station code, which state:[153]

PO2

Development maintains and contributes to the visual amenity of the locality.

AO2

Development ensures:

  1. (a)
     a continuous 3m wide landscape strip containing groundcover and small shrubs is maintained along the frontage of the site;
  1. (b)
     any building or structure is located at least 7m behind the landscape strip.

(emphasis added)

  1. [127]
    The residents allege there are adverse interface issues with residences to the east, north and west.
  1. [128]
    The residence to the east across Stanbrough Road is separated from the proposed development by Stanbrough Road. Mr King (the expert retained by the appellant with respect to air, noise and lighting impacts) confirms that the proposed development will meet all applicable air, noise and lighting standards.
  1. [129]
    Nevertheless, it is apparent from the photomontages that the proposed development will have a negative visual impact on the residence. The view from the living room window of the house is depicted in montages VP04.[154]  Mr Mongard opines that the building, tower and signage will be clearly visible.  At night, the pylon sign and building tower create a strong visual contrast to the dark vegetation, and the scale and character of the existing rural residential streetscape.  Mr Mongard also considers that when the existing billboard sign is turned off (around 10.30 pm every night)[155], the lighting evident from the advertising sign will be even more dominant.[156]  I accept this evidence of Mr Mongard.
  1. [130]
    This impact is not one that the residents ought have reasonably expected. The impact will, however, be ameliorated after about four years.[157]
  1. [131]
    The interface between the proposed development and the residence to the north is more acceptable. That property is set back about 130 metres from the fuel canopy.[158]  At present, the view from the residence is a filtered view.  It would remain so if the proposed development were approved.[159]  The fuel dispenser canopy would, however, be evident above the fence line in the view from the window of the home office[160] (as well as from living and dining areas of the house on the adjoining land to the north).[161]  During the evening, the reflected illumination and the underside lighting of the canopy will be visible in the centre of the view.[162]  The adjacent landscape is very dark.  Having regard to the photomontages, I accept the evidence of Mr Mongard that, for the first five years, the night-time view in particular will be evident through the existing trees and fences throughout the evening.  However, as was acknowledged by Mr Mongard, after six or seven years, the development may be able to be fully screened from this view.[163]  The maintenance of over 4 000 square metres of land at the rear of the subject land in an undeveloped state[164] is of particular importance when considering the overall impact on the residence to the north. 
  1. [132]
    In respect of the property to the west, it is proposed that the acoustic fence “kink in” off the boundary to permit landscaping between the fence and the boundary.  Mr Powell has proposed an intensive planting regime for that location.[165]  Once the proposed planting outcome is achieved, the photomontage prepared by Mr Elliott demonstrates that the residence to the west will not be unacceptably impacted by the proposal.[166]  Although Mr Mongard expressed concern about the ability to achieve the growth rates anticipated by Mr Powell, he ultimately confirmed that a suitable landscaping proposal could be designed.  However, it might take between six and eight years to be sufficiently effective.[167]  Mr Powell likewise acknowledged that there was no certainty about growth rates.[168]
  1. [133]
    Having regard to the visual impacts at the interface of the surrounding residences, I am not satisfied that the proposed development complies with Theme 3, Element 3.2, specific outcome SO2 and land use strategy L2.1, overall outcomes (2)(b) and (c) of the Service station code or performance outcome PO2 of the Service station code.
  1. [134]
    Were these the only unacceptable impacts of the proposed development, I would not regard them as sufficient to warrant refusal of the proposed development, particularly as they are impacts that can be ameliorated in the short-medium term. It may take longer to ameliorate the impact to the residence to the west, but there was no submission against the proposed development by the owner or resident of that property.
  1. [135]
    However, having regard to the matters noted in paragraphs [101] to [111] and [117] to [123] above, I am not satisfied that the proposed development provides an amenity that is appropriate to the uses and development intensity planned for the area or appropriately maintains and contributes to the visual amenity of the locality.

Air, noise and lighting amenity impacts

  1. [136]
    It was originally alleged that the appellant had not demonstrated that the proposed development was acceptable in terms of air quality, noise and lighting impacts.[169] 
  1. [137]
    The only expert witness to give evidence with respect to such matters was Mr King, who was retained by the appellant.

Air quality

  1. [138]
    Neither Council nor the residents made any submissions with respect to air quality.
  1. [139]
    Mr King prepared a detailed air quality assessment.[170]  It considered emissions from bulk refuelling and refuelling of vehicles at the fuel dispensers.  It was prepared on the basis of both Stage 1 and Stage 2 Vapour Recovery being installed as part of the service station infrastructure.[171]
  1. [140]
    The air quality assessment concluded that the relevant air quality planning criteria and odour criteria will be satisfied at surrounding sensitive receptors. Indeed, compliance with the relevant air quality planning criteria and odour criteria was predicted at the subject land’s boundaries and at the boundary to the balance area of the subject land.[172]
  1. [141]
    Mr King reiterated similar comments in his oral evidence when he said:
  1. (a)
    the proposed development has Stage 1 and Stage 2 Vapour Recovery and as such will be provided with the highest standard of containment and is well set back from neighbouring residences;[173] and
  1. (b)
    air quality criteria in terms of health are readily satisfied at the residences nearby.  No undue impact from the service station will arise in respect of air quality.[174]
  1. [142]
    I am satisfied that the proposed development will not have an unacceptable impact on air quality.

Noise

  1. [143]
    Mr King prepared a noise assessment that made specific recommendations with respect to noise barriers and conditions of approval with respect to noise.[175]  The appellant has adopted the recommendations.[176]
  1. [144]
    Mr King concluded that from an acoustic engineer’s perspective, he was of the professional opinion that there are no acoustic reasons for the proposed development to be refused.[177]  It was material to Mr King’s opinion that:
  1. (a)
    the subject land and nearby residential uses are currently subject to elevated noise levels 24 hours a day, seven days a week due to traffic on Old Cleveland Road and, to a lesser extent, traffic on Stanbrough Road;[178]
  1. (b)
    the character of noise associated with the proposed development, being primarily vehicle generated noise, would be similar to the character of the noise present in the locality at the current time;[179]
  1. (c)
    with the implementation of specific noise control measures such as noise attenuation barriers, and conditions limiting hours of certain activities and setting noise amenity limits for mechanical plant, the assessments undertaken demonstrate that the proposed development can comply with regulatory noise criteria and will fit within the current ambient noise environment.[180]
  1. [145]
    Although the character of the noise associated with the proposed development will primarily be vehicle generated noise, as was agreed by Mr King, noises on the subject land such as people talking and car doors slamming would be detected from time to time.[181]  Other noises generated on the subject land, be it from a truck, a car screech or loud music will be detected also.[182] 
  1. [146]
    These particular noises, although fitting within regulatory noise criteria, will be noticeable, particularly during the later night periods when the background noise levels will be noticeably quieter than during the day. The night-time noise levels would be in the order of fairly standard suburbia night time noise levels.[183]
  1. [147]
    Those noise impacts are also not of a character that the residents might reasonably expect to hear 24 hours a day with the regularity that might be expected from a service station use (as compared to from a neighbouring residence).
  1. [148]
    As such, I am not satisfied that the proposed development complies with overall outcome (2)(b) of the Service station code.
  1. [149]
    The residents also allege conflict with overall outcome (2)(d) and (f) of the Transport, access, parking and servicing code, which state:[184]

“(d) Development ensures that impacts on amenity caused by traffic generation is consistent with the community’s reasonable expectations for the intended use.”

  1. “(f)
     Development ensures that access, parking and servicing arrangements and impacts such as noise, are consistent with the community’s reasonable expectations and avoid risk of damage to people, property and vehicles.”

(emphasis added)

  1. [150]
    In this respect, the residents refer to the additional traffic noise associated with the proposed development. They submit that the purpose of the service station is to attract custom off Old Cleveland Road and that this will result in new traffic on Stanbrough Road as the attracted custom will have to exit via Stanbrough Road to return to Old Cleveland Road.[185]  
  1. [151]
    Mr King accepted that the driveway off Stanbrough Road would, of itself, result in the acceleration and deceleration of vehicles, and consequential noise. It would also involve a mixing of turning traffic.[186]  Mr King also agreed that the change in noise levels for the residents on the eastern side of Stanbrough Road (having regard to traffic and people noise) will be noticeable; but in his opinion, not unacceptable.[187] 
  1. [152]
    Mr King observed that, even during the night, for houses that front Old Cleveland Road, this is not a quiet area. The noise environment is heavily influenced by traffic on the surrounding roads.[188]  He gave a cogent explanation of the likely impact during re-examination when he said:

“And, therefore, you’re taking account of those matters in forming the conclusions that you’ve reached in exhibit 12?‑‑‑Yeah, so it – and just to clarify, in terms of the traffic generated by this use on Stanborough Road, your Honour, will not increase existing noise levels by more than three dB at any time because the traffic generation rates on Stanborough Road during the day and the evening are greater – sorry – the existing traffic is greater than the traffic that the service station will generate typically.  And certainly, at times when low traffic flows are on the roads, the service station flow rates are generally proportional to the passing traffic.  And, again, if we did approach three dB, my – my prediction was shown in my report was a maximum increase of .7 dBA to the north of the site because that was the matter that was raised by the town planners in their joint report with respect to traffic leaving the site at night [indistinct]  An increase of .7 dB is not detectable and well below the threshold.  Between the site and Old Cleveland Road, yes, there will be more traffic with the service station there but, again, it’s in proportion to the traffic on Stanborough Road and the much higher traffic flows on Old Cleveland Road.  So, in my opinion, there will not be an adverse acoustic amenity impact.”

(emphasis added)

  1. [153]
    This evidence from Mr King is uncontested. In light of that evidence, even though a service station use may not be within the residents’ reasonable expectations, I am satisfied that the proposed development would comply with overall outcome (2)(d) and (f) of the Transport, access, parking and servicing code.

Lighting

  1. [154]
    The lighting measurements and inspection undertaken by Mr King identified that the Old Cleveland Road frontage of the subject land and that part of Stanbrough Road nearest the intersection with Old Cleveland Road are illuminated by existing street lighting and the existing illuminated advertising sign on the subject land.[189]  However, as one moves away from the intersection, lighting levels reduce such that on Stanbrough Road, within 60 metres of the intersection with Old Cleveland Road, existing lighting levels decrease.[190]  Around the current access point of the subject land, Mr King described the environment as “dark”.[191]  The same light measurement was recorded on Old Cleveland Road near the western edge of the subject land.[192]
  1. [155]
    The lighting analysis prepared by Mr King identifies that the proposed development would comply with the requirements of AS4282:1997.[193]  On that basis, Mr King opined that lighting associated with the proposed development would not detract from the existing amenity nor result in lighting that offends, in regard to light-spill or glare, when viewed from surrounding residential areas.[194]
  1. [156]
    However, Mr King also acknowledged:
  1. (a)
    it is rarely possible to contain light within the boundaries of a property - some will inevitably be spilled beyond it;[195]
  1. (b)
    the determination as to whether that spill becomes intrusive to others involves subjective considerations;[196]
  1. (c)
    the Australian Standard does not consider appropriate guidelines for internally illuminated signs;[197]
  1. (d)
    the intrusive effect of brightly lit surfaces such as flood-lit buildings and externally lit advertising signs are not addressed in the Australian Standard;[198]
  1. (e)
    lighting is often the focus of complaints because it is, by its nature, highly visible;[199]
  1. (f)
    outdoor lighting, no matter how well designed, will generally have some effect on the environment in which it is installed;[200]
  1. (g)
    people have a range of reactions to the installation of outdoor lighting, and responses may vary from positive acceptance to outright rejection.  Light impact can be a subjective thing.  The degree of response depends, in part, on the nature of the surrounding developments, the novelty of the installation, and the frequency and times of operation;[201] and
  1. (h)
    even where the technical parameters of the Australian Standard are complied with, that will not necessarily ensure that a complying installation will receive no adverse reaction from those affected by the light spill.[202]
  1. [157]
    In this case, I am not satisfied that the lighting associated with the proposed development will not have an unacceptable amenity impact given:
  1. (a)
    the low-key nature of the surrounding developments and the “dark” environment that presently exists;
  1. (b)
    the proposed development involves 24-hour lighting of the subject land;
  1. (c)
    the proposed development is not consistent with the outcomes of the Environmental management zone and is not one that ought reasonably be expected by the residents; and
  1. (d)
    as noted in paragraph [66] above, the proposed development will stand out as a beacon in stark contrast to the adjacent landscape.

Traffic

  1. [158]
    There are four key issues with respect to traffic. They are:
  1. (a)
    whether access off Old Cleveland Road is acceptable given the proximity of the proposed Old Cleveland Road access to the Stanbrough Road intersection;
  1. (b)
    whether suitable access can be achieved from Old Cleveland Road with an extended shared cyclist/left turn facility;
  1. (c)
    whether the parking spaces internal to the land should be 2.7 metres or 2.6 metres in width; and
  1. (d)
    whether the manner in which fuel tankers would access the subject land as part of the proposed development from Old Cleveland Road is acceptable.

Is access off Old Cleveland Road acceptable given the proximity of intersections?

  1. [159]
    In the Traffic Engineering Joint Expert Report, Messrs Holland, Trevilyan and Williams agree that, from a traffic engineering perspective, a solution of all access from Stanbrough Road is the safest access solution.[203]
  1. [160]
    In relation to access to the proposed development, Council submits there are three possibilities, which it describes as options 1, 2 and 3. Option 1 involves access to the subject land from Stanbrough Road.[204]  With respect to that “option” Council submits:[205]

“There is sufficient evidence before the Court for all access to be restricted to Stanbrough Road.  That would be the conservative course.  It is clearly the safest option.”

  1. [161]
    I do not regard Council’s approach to the traffic issue as appropriate.
  1. [162]
    It is well established that it is not this court’s role to redesign a particular proposal or conduct an inquiry as to whether a better proposal might possibly be formulated.[206]  As Brabazon QC DCJ said in Wingate Pty Ltd & Anor v Brisbane City Council & Ors [2001] QPEC 5; [2001] QPELR 272 at 276 [21]:

“… It is not the function of this Court (or indeed any planning authority) to refuse an application because it considers that the proposed use is not the best possible use of the site.  It is not the function of the Court to redesign a proposal.  Its function is to pass judgment on that which is proposed.   In this case, the issue is whether or not the current proposal has been shown to be acceptable.  The fact that some alternative may be thought to be even more acceptable is by the way.  If the current proposal is acceptable, then that is enough.”

(emphasis added)

  1. [163]
    In this case, access to the service station is proposed via an entry only crossover at Old Cleveland Road and an entry-exit crossover at Stanbrough Road.[207]  That is the proposal that is to be assessed for its acceptability. 
  1. [164]
    The residents contend that access from Old Cleveland Road is unacceptable because it is unsafe and, consequently, the proposed development should be refused.[208]  They submit that, by reason of safety issues, the proposed development does not comply with:[209]
  1. (a)
    Theme 4, Element 4.1, Table 3.6.2.1, specific outcome SO1 and the corresponding land use strategies, which state:[210]

SO2

People and goods can move safely on the road network by the most efficient modes and routes, and the impact of traffic on neighbourhoods and the environment is minimised.

L1.1

Development contributes to the safety and efficiency of the road network and seeks to minimise impacts of traffic on surrounding areas.

L1.2

Development layout and access minimises impacts on pedestrian, cyclists and public transport movement and streetscape while providing for safe site servicing.

(emphasis added)

  1. (b)
    overall outcome (2)(b) of the Service station code, which requires that development “maintains … safety … near the service station and around the site”;
  1. (c)
    performance outcome PO2 and acceptable outcome AO2.2 of the Road hierarchy overlay code, which state:[211]

PO2

Development does not compromise the safety, efficiency, function, convenience of use or capacity of the operation of the existing and future road hierarchy, and addresses all the impacts on the road hierarchy.

AO2.1

Development ensures that the traffic generated by the development is consistent with the adjoining road’s hierarchical classification, function and expected traffic flows.

AO2.2

Development mitigates an impact on the road hierarchy if the development:

  1. (a)
     is for a major development; or
  1. (b)
     involves an access driveway to a major road; or
  1. (c)
     involves an access driveway within 100m of a signalised intersection.

Note—This can be demonstrated in a traffic impact assessment report prepared and certified by a Registered Professional Engineer Queensland in accordance with the Transport, access, parking and servicing planning scheme policy.

(emphasis added)

  1. (d)
    overall outcomes (2)(c), (e) and (g) of the Transport, access, parking and servicing code, which state:[212]

“(c) Development provides safe access for all transport modes that does not impact adversely on the efficiency and safety of the transport network or diminish the amenity of nearby land uses.

  1. (e)
     Development provides site access arrangements to ensure that any adverse impacts on other development, the transport network and those who use it, are minimised to maintain amenity of the area and the safety and efficiency of the transport system;
  1. (g)
     Development maximises safety in the use of the transport network, particularly for the most vulnerable users (children, pedestrians, persons with disabilities and cyclists) so that all transport modes are safe and convenient.”

(emphasis added)

  1. (e)
    performance outcome PO1 and acceptable outcome AO1 of the Transport, access, parking and servicing code, in that those provisions require development to be designed in accordance with the standards in the Transport, access, parking and servicing planning scheme policy,[213] and the residents allege that the proposed development does not comply with a number of provisions of the Transport, access, parking and servicing planning scheme policy; and
  1. (f)
    performance outcomes PO3 and PO9 (and corresponding acceptable outcomes) of the Transport, access, parking and servicing code, which state:[214]

PO3

Development provides vehicle access that is located and designed so as to have no significant impact on the safety, efficiency, function, convenience of use or capacity of the road network.

AO3.1

Development provides site access that is located and designed in compliance with the standards in the Transport, access, parking and servicing planning scheme policy.

AO3.2

Development provides an easement for a vehicular access benefiting all adjoining landowners and the Council if the vehicular access services more than an individual development or premises.

PO9

Development provides access driveways in the road area that are located, designed and controlled to:

  1. (a)
     minimise adverse impacts on the safety and operation of the transport network, including the movement of pedestrians and cyclists;
  1. (b)
     ensure the amenity of adjacent premises, from impacts such as noise and light.

AO9.1

No acceptable outcome for access is prescribed, for a major development (as described in the Transport, access, parking and servicing planning scheme policy).

AO9.2

Development which is not a major development (as described in the Transport, access, parking and servicing policy) provides a single site access driveway in the road area to the lowest order road to which the site has frontage.

AO9.3

Development ensures that sight distances to and from all proposed access driveways in the road area and intersections are in compliance with the standards in the Transport, access, parking and servicing planning scheme policy.

AO9.4

Development provides access driveways in the road area which:

  1. (a)
     are located, designed and controlled in compliance with the standards in the Transport, access, parking and servicing planning scheme policy;
  1. (b)
     are not provided through a bus stop, taxi rank or pedestrian crossing or refuge.

AO9.5

Development makes provision for shared access arrangements particularly where it is necessary to limit access points to a major road.

(emphasis added)

  1. [165]
    The residents rely on the evidence of Mr Holland to allege conflict with these provisions. Mr Holland is of the opinion that access from Old Cleveland Road should not be permitted. He says that due to the proximity of the proposed entry driveway to Old Cleveland Road (namely, about 40 metres before the left turn movement into Stanbrough Road), vehicles slowing to enter the site would be unable to clearly and safely indicate this intent, as distinct from an intention to turn left into Stanbrough Road. He says that this would lead to last minute, and potentially hazardous, lane-changing or emergency braking by drivers following such a vehicle.
  1. [166]
    Mr Holland’s concern about potentially hazardous movements was heightened by the fact that Old Cleveland Road carries significant traffic volumes, and that he regarded the left turn movement into Stanbrough Road as an unusually heavy left turn movement.[215]  The Stanbrough Road turn carries more than 500 vehicles in the afternoon peak.  Mr Crank, the traffic engineer retained by the appellant, accepted that it was quite a high volume turn.[216]
  1. [167]
    The residents submit that another factor in that regard is the context in which the proposed access is located. The proposed development would introduce the only commercial driveway in the relevant locality. The residents submit that has a bearing on the expectation of drivers, which can be contrasted with the context of a built up commercial area with a multitude of driveways. They submit, consistently with the evidence of Mr Holland,[217] that in the latter instance, drivers are more likely to apprehend the potential of a turn into one or more driveways or streets. 
  1. [168]
    I do not share these concerns of Mr Holland and the residents. The majority of people would know of the presence of the service station.[218]  There is clear visibility approaching the subject site and drivers would expect there would be an ingress to the service station from Old Cleveland Road.[219] 
  1. [169]
    In support of his opinion, Mr Holland also referred to part of Appendix A of the Austroads Guide to Road Design Part 4: Intersections and Crossings – General (2009 edition) and to the Transport, access, parking and servicing planning scheme policy.

Austroads

  1. [170]
    Mr Holland relies on a statement in part of Appendix A of the Austroads Guide to Road Design Part 4: Intersections and Crossings – General (2009 edition). Also, having regard to Table A2 in that document, Mr Holland opines that the recommended upstream functional intersection distance is 185 to 215 metres, which is far in excess of the proposed 40 metres.[220]
  1. [171]
    There is now a 2017 edition of Austroads Guide to Road Design Part 4: Intersections and Crossings. Mr Holland says the words of the 2017 edition have duplicated those in the 2009 edition almost verbatim.[221]  A copy of the relevant extract from the 2009 edition was not tendered.  Mr Holland maintains his issue with respect to the 2017 edition.  It is appropriate that I consider the issue with reference to that edition.[222]
  1. [172]
    Appendix E to Austroads Guide to Road Design Part 4: Intersections and Crossings – General (2017 edition), Section E.1 Introduction states:

“Ideally arterial roads should have no intersecting driveways and minor streets and sub-arterial roads should have this level of access limited.  Furthermore, major intersections on these roads should be spaced to support traffic signal coordination which will identify windows in the time-distance profile that allow suitable access at other locations along the road.

Each major intersection has a functional area (Section 7.2.1) on approaches and departures within which the provision of any driveway or minor intersection is undesirable and should not be permitted.  In effect, the space available between the functional areas is what is available for minor accesses.  Driveways and unsignalised minor street connections have similar traffic characteristics and should be treated in a similar way.”

(emphasis added to reflect those statements of concern to Mr Holland)

  1. [173]
    Although it might be “ideal” that “arterial roads should have no intersecting driveways”, I place no significance on that statement given it is inconsistent with overall outcome (4)(g) of the Environmental management zone code.
  1. [174]
    With respect to the lack of desirability of locating a driveway in a functional area of a major intersection, the purpose of the functional area of an intersection is explained in s 7.2.1, which states:[223]

“The location of an access close to a major intersection is often an issue in the design of major intersections as it has the potential to adversely affect both safety and capacity.  The functional area of an intersection is the area beyond the physical intersection of two roads that comprises decision and manoeuvre distances on the approaches and departures, plus any required vehicle storage length.  Wherever possible, this area should be protected from interference by traffic from accesses.

The upstream functional area is that length over which vehicles on the through road are manoeuvring to execute a right or left-turn at the intersecting road.  This length is the greater of the distance required for the right or left turn, including storage of the queue length.  The downstream distance is that required for a driver to avoid a collision with a vehicle entering the road from an access connection.”

(emphasis added)

  1. [175]
    Consistent with the explanation given by Mr Holland with respect to the 2009 version, the 2017 version provides that the upstream dimensions of the functional area has three components, namely distance travelled during driver perception and reaction time, stopping or manoeuvring distance and distance required from queued vehicles.[224]
  1. [176]
    Appendix E expands on information in section 7. It provides seven bases to assess the acceptability of access spacing.[225]  Mr Crank assessed the proposed spacing with respect to each of these criteria.[226]  His assessment was not challenged.  It is cogent and I accept it.  It demonstrates that the proposed access is acceptable.

Transport, access, parking and servicing planning scheme policy

  1. [177]
    The residents submit that Mr Holland’s position is also supported by the Transport, access, parking and servicing planning scheme policy.  In particular, they rely on:
  1. (a)
    s 4.2(4), which states:[227]

“An access driveway is located as far as possible from an intersection, and other driveways and median openings, except if in a restricted area where it can be demonstrated that safety and operational performance of the transport system are not compromised.”

  1. (b)
    s 4.4(1), which states with respect to “External considerations”:[228]

“If access can satisfactorily be provided from a minor road, access is not provided from a major road.”

  1. [178]
    During the hearing, reference was also made to:
  1. (a)
    s 4.1(9) of the Transport, access, parking and servicing planning scheme policy, which states:[229]

“If a site has more than 1 road frontage, the major access must be from minor road rather than a major road, except where the traffic generated by the development would significantly compromise the amenity of the minor road.  In some cases, ameliorative works may be required in a minor road to alleviate possible amenity impacts.”

  1. (b)
    s 4.2(5) of the Transport, access, parking and servicing planning scheme policy, which states:[230]

“The minimum distance of an access driveway from an intersection or other feature is specified in Table 5, and is measured from the point at which the frontage property boundaries intersect, disregarding any existing or proposed truncations.”

  1. (c)
    Table 5 of the Transport, access, parking and servicing planning scheme policy, which provides that the “minimum separation of minor driveway from adjacent feature” is 30 metres from the property boundary of the intersecting road where the “adjacent feature” is a “major road intersection” and the access is from a “major” road.
  1. [179]
    The residents criticise Mr Crank’s reliance on Table 5. They submit that his evidence that a “left in only driveway is generally minor with respect to its impact on the road network”[231] is unconvincing.[232]  The residents also submit[233] that the access off Old Cleveland Road is not a minor driveway given it will be used by 90 per cent of the approximately 1 600 vehicles over the course of a day.[234]  They also rely on the opinion of Mr Trevilyan that it is a major driveway given it will not have low volumes and it will provide access to articulated vehicles.[235]
  1. [180]
    I do not accept that the explanation provided by Mr Crank is unconvincing. In my view, the reference in s 4.1(9) calls for consideration of both access driveways.  The access off Old Cleveland Road provides for left-in ingress only.  In comparison, the access to Stanbrough Road provides for all turns ingress and egress.  I accept that it is the major access for the proposed development. 
  1. [181]
    In any event, to the extent the development does not comply with s 4.4(1) and s 4.1(9) of the Transport, access, parking and servicing planning scheme policy, I consider it of little moment given the inconsistency between this provision and overall outcome (4)(g)(ii) of the Environmental management zone code.  Having regard to s 1.5 of City Plan, the inconsistency between these provisions ought be resolved in favour of overall outcome (4)(g)(ii) of the Environmental management zone code.
  1. [182]
    In terms of the reference to “minor driveway” in Table 5, this reference appears in a heading to the table only.  Table 5 is called up by s 4.2(5), which instead refers to an “access driveway” rather than a “minor driveway”.  The table does not provide a standard for a driveway other than a “minor driveway”.  As such, when considered in context, the reference to “minor driveway” should be understood as a reference to an “access driveway”. 
  1. [183]
    I also consider that Mr Crank’s opinion that the intersection of Old Cleveland Road and Stanbrough Road is not a major intersection has merit.[236]  The intersection is not signalised; it has a free left turn lane with a length of lane for acceleration; and it has a deceleration lane in Old Cleveland Road.
  1. [184]
    Accordingly, I am satisfied that the location of the proposed access about 40 metres from the intersection of Stanbrough Road and Old Cleveland Road is acceptable and safe.

Is an extended shared cyclist/left turn facility acceptable?

  1. [185]
    The appellant proposes an access from Old Cleveland Road, and consequent road work, that involves an extension to the existing auxiliary left turn lane. It proposes that the extension be made to the existing 3.5 metre wide left turn lane, which incorporates a shared 1.8 metre wide cyclist lane for the full length of the extension.[237]
  1. [186]
    In the event that the access from Old Cleveland Road was determined to be appropriate, the residents contend it is necessary to, at the very least, implement the requirements of the Chief Executive to ensure safety issues are appropriately addressed, particularly the risk to cyclist safety.[238]
  1. [187]
    The Chief Executive contends that unless the extension to the auxiliary left turn lane proposed by the appellant is widened for its entire length to a full width left turn lane (3.5 metres in width) and a separate cycle lane provided (1.8 metres in width),[239] the appellant’s development ought be refused.[240]
  1. [188]
    In support of his position, the Chief Executive relies on the performance outcomes PO1 and PO3 of Module 19 (State transport network functionality) of the State Development Assessment Provisions (Version 1.10) (being the version in place at the time the application was made), as well as the purpose of the Module.  Those provisions state:[241]

“The purpose of this code is to ensure that development does not adversely impact the safety, function and operational efficiency of the state-controlled road network or a future state-controlled road network.

PO1 Any road access location to the state-controlled road from adjacent land does not compromise the safety and efficiency of the state-controlled road.

PO3 The design of any road access maintains the safety and efficiency of the state-controlled road.”

  1. [189]
    The Chief Executive also submits that significant weight should be given to State Development Assessment Provisions (Version 2.2) as it is the most recent expression of the Chief Executive’s policies and position on State transport related assessment and this version is not materially different to versions that applied when the development application was being assessed.[242]  In that document, the Chief Executive relies on performance outcome PO16 of State code 1: Development in a state-controlled road environment, as well as the purpose of the code, which relevantly state:[243]

“The purpose of this code is to protect state-controlled roads, future state-controlled roads and other infrastructure in the state-controlled roads from adverse impacts of development.  The purpose of this code is also to protect the safety of people using, and living and working near, state-controlled roads.

Specifically, this code seeks to ensure:

  1. development does not create a safety hazard for users of a state-controlled road, by increasing the likelihood or frequency of fatality or serious injury

…

  1. development does not create a safety hazard for users of a development does not result in a worsening of the physical condition or operating performance of state-controlled roads and the surrounding road network.

…

PO16 The location and design of vehicular access to a state-controlled road (including access to a limited access road) does not create a safety hazard for users of a state-controlled road or result in a worsening of operating conditions on a state-controlled road.”

  1. [190]
    In addition to those provisions, Council and the residents rely on performance outcome PO20, which states:[244]

“PO20 Development does not result in a worsening of operating conditions on the state-controlled road network.”

  1. [191]
    There is no material difference between the outcomes sought by the provisions in each version of the State Development Assessment Provisions. Both seek to ensure that the safety and efficiency of the state-controlled road network is maintained.
  1. [192]
    Old Cleveland Road is gazetted as a limited access State controlled road.[245]
  1. [193]
    In determining whether the proposed development should be refused on the basis of the concerns raised by the Chief Executive, the court is not bound by the referral agency response.[246]
  1. [194]
    Further, all parties accepted during oral submissions that the only issue for determination by the court with respect to this issue is whether the access design proposed by the appellant is safe and protects the efficiency of Old Cleveland Road.  It is not necessary for the court to determine whether the proposed development ought be conditioned to provide access in the form proposed by the appellant or the form proposed by the Chief Executive.  This is a matter to be considered by the Chief Executive as part of the process of formulating conditions, should the court determine that the proposed development should be approved.[247] 
  1. [195]
    The Chief Executive’s concern with respect to this issue is that the appellant’s design will substantially lengthen the period for which a driver intending to make a left hand turn will have to queue behind a cyclist in that lane.[248]  The Chief Executive is concerned that this has the potential to result in queuing of vehicles in the through lane.  It also increases the risk to cyclists due to impatient driver behaviour, particularly in circumstances where it submits that:
  1. (a)
    this behaviour is already occurring as a result of the existing “retro-fit” solution;[249]
  1. (b)
    a cyclist will be travelling slowly up hill;[250]
  1. (c)
    the length of time a motorist must queue behind a cyclist is potentially doubled from 14 to 28 seconds if travelling at 20 kilometres an hour,[251] but it could be longer as a cyclist speed may be travelling only 15 kilometres an hour;[252]
  1. (d)
    there is a high volume of left hand turn movements during peak times, in the order of up to 600 vehicles per hour;[253]
  1. (e)
    the peak hour left hand turning movements by motor vehicles occur when commuters are trying to get home;[254]
  1. (f)
    the speed limit on this stretch of road is 80 kilometres an hour[255] but cyclists will be travelling at approximately 15 to 20 kilometres an hour; and
  1. (g)
    a cyclist is a vulnerable road user.  Any incident is likely to lead to serious injury.  The fact that the cyclist use of this lane was described as “infrequent” must be considered in light of the serious impacts if there is an impact.[256]
  1. [196]
    The evidence bears out those matters relied on by the Chief Executive.
  1. [197]
    The Chief Executive submits that the proposed development should be refused unless there is a separate cycle lane.
  1. [198]
    Old Cleveland Road is a designated primary cycle route.[257]  Cyclist safety on this route (and generally) is, of course, a matter of high importance.  There can be no doubt that a reduced interaction between vehicles and cyclists is beneficial, particularly given the potential consequences of a collision between a cyclist and a motorist are very serious.[258]  This highlights the importance of ensuring an appropriate design.
  1. [199]
    Messrs Williams, Trevilyan and Holland are of the opinion that a separate cycle lane is preferable to the appellant’s design. That, however, is not the test. As is noted by the appellant,[259] “Traffic utopia is not the test.”[260]  The issue is whether the appellant’s proposed design is acceptable.
  1. [200]
    Here, the appellant’s design incorporates a lengthening of the left turn lane. This may cause motorists to travel a greater distance at a slower (cycle) speed.[261]  If a motorist encounters a cyclist at the start of the left-turn lane, he or she may need to follow it for approximately 28 seconds, as compared to 14 seconds in the existing shared lane.[262] 
  1. [201]
    There are several possible consequences of that. The first possible impact is that a vehicle approaching a cycle lane will continue in the through lane and then turn left in front of the cyclists. That would result in a car moving into the deceleration lane at a later point in time and having less time to decelerate to turn into either Stanbrough Road or the service station. The second possible impact is that the driver will pull in behind the cyclist, get inpatient, and then overtake. Mr Crank agreed that that had a very real potential. The third scenario is that the driver pulls in behind the cyclist, exercises patience, and stays there. In that case, the traffic will queue behind that vehicle and potentially back into the through lane. Mr Crank agreed that would potentially affect the operation or efficiency of Old Cleveland Road. There would be potential inconvenience to cars in the through lane, and the turning lane.[263]
  1. [202]
    Mr Williams states that, having observed interactions between cyclists and left turning vehicles, he believes there will be a risk to cyclists from drivers speeding past the cyclist to turn left into Stanbrough Road, effectively cutting off the cyclists, and from drivers travelling very closely behind cyclists as they continue eastbound along Old Cleveland Road.[264] 
  1. [203]
    The evidence of Mr Williams seems unduly pessimistic in terms of the increased risk to cyclists’ safety. It gives insufficient credit to motorists. Although they may become impatient because of the presence of a cyclist, the application of commonsense suggests they are not going to collide with a cyclist when, absent the development, they would otherwise simply follow the cyclist. They may be frustrated, but rational behaviour would not result in a collision.
  1. [204]
    It seems to me it is when the motorist changes lanes that the cyclist is vulnerable. It is at that time that the potential for a collision with the cyclist arises. That vulnerability exists whether there is a separate cycle lane or not.[265]  The appellant’s design does not exacerbate that vulnerability.  There is good visibility leading up to the subject land and there will be clear visibility down the shared left turn only lane.[266]  The proposed extended deceleration lane with treated markings for cyclists will provide sufficient identification of the intended co-occupation.[267] 
  1. [205]
    In terms of potential impacts on the efficiency of Old Cleveland Road, I am persuaded that the impacts are not likely to be so material as to warrant refusal of the proposed development absent a separate cycle lane. This is because cyclists are infrequent in peak hours[268] and, if a cyclist is encountered, as the cyclist moves forward it will make room for a car to enter a queue (if one forms) within the left-hand lane.[269]  There are likely to be more cyclists on weekends, but they tend to ride in packs and occupy the whole through lane.[270]

Are the width of the parking spaces acceptable?

  1. [206]
    This issue can be dispensed with easily. Council does not address it in its written submissions. The residents submit that it is a matter for conditions.[271] 
  1. [207]
    Both Mr Holland (the traffic engineer retained by the residents) and Mr Trevilyan (the traffic engineer retained by Council), who each expressed concern with respect to the issue, agreed that the issue was a matter for conditions.[272]  I am satisfied that this issue is not one that warrants refusal.

Is there acceptable access for fuel tankers?

  1. [208]
    Mr Holland and Mr Trevilyan each expressed concern with respect to the manner in which fuel tankers would access the subject land.
  1. [209]
    Mr Holland expressed concern that if a vehicle towing a trailer was parked at the bowser closest to Old Cleveland Road, a tanker attempting to enter the subject land would need to stop about four metres short of the planned point on which it ought stop. This would result in the trailer of the tanker completely blocking the left turn lane and the cycle lane, as well as intruding into the left through lane of Old Cleveland Road. Mr Holland opined that such an outcome should not be tolerated.[273]  However, during cross-examination Mr Holland accepted that if a condition was imposed to limit bulk fuel delivery so that they do not occur in the peak weekday hours and so that appropriate exclusion zones were installed, that would mitigate the potential difficulty identified by him.
  1. [210]
    Both Council and the residents accepted that this issue could be adequately addressed by way of conditions.[274]  I agree.
  1. [211]
    The issue raised by Mr Trevilyan related to whether a tanker turning left onto the subject land from Old Cleveland would intrude into the through traffic while making that turn.[275]  Such an intrusion can have potential significance in terms of traffic safety and potential impact on the operational efficiency by disrupting through traffic. 
  1. [212]
    The appellant submits that Mr Trevilyan accepted that his issue could be dealt with by way of conditions that exclude fuel tankers from arriving at the busy times of the day, namely the peak am and peak pm periods.
  1. [213]
    Council disputes that the matter is capable of being addressed in that manner.[276]  It submits that it is necessary to resolve the dispute between the experts in Exhibit 58, which was produced to clarify the respective positions of Mr Crank and Mr Trevilyan about the turn path of a tanker entering the subject land.
  1. [214]
    I accept the evidence of Mr Trevilyan in Exhibit 58. His evidence demonstrates that the clearance envelope for the design semi-trailer is not such that the turn would be exclusively from the shared left turn / bicycle lane. The wheel path will encroach beyond the inside corner (kerb and pavement edge) and the eastern kerb. I accept Mr Trevilyan’s opinion that a level of overhang of the front corner of the body of the prime-mover over the eastern landscaping area would be reasonable.  The overhang of the clearance envelope into the through lane is more troubling.  It has the potential to impact on the efficiency of Old Cleveland Road.[277] 
  1. [215]
    Nevertheless, I accept that the extent of unacceptable impacts from any need for a tanker to straddle lanes could be dealt with by conditions.[278]  Whether the condition should be one that limits the timing of fuel deliveries or some other design condition is a matter that would require further consideration by, amongst others, the Chief Executive were the development to be approved.  I am satisfied that this issue is not one that warrants refusal.

Conclusion re traffic

  1. [216]
    I am satisfied that the traffic issues raised in the appeal do not warrant refusal. They can be appropriately addressed by way of conditions.

Relevant matters

  1. [217]
    As I have observed already, the court may assess the development application against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.
  1. [218]
    In this case, the appellant submits that should the proposed development not comply with the applicable assessment benchmarks, there are relevant matters that call for the proposed development to be approved, notwithstanding that finding.
  1. [219]
    With respect to the matters relied on by the appellant, for the reasons already provided above with respect to land use conflict and amenity impacts, I do not accept:[279]
  1. (a)
    the proposed development has been designed such that it is not visually prominent and that the subject land can be landscaped such that it does not dominate the landscape setting when viewed from adjacent roads;  
  1. (b)
    the proposed development is a low key, small scale facility having regard to the location in which it is proposed;
  1. (c)
    the proposed development is, or ought to be, within the reasonable expectations of local residents, given the provisions of the Environmental management zone code; and
  1. (d)
    there would be an absence of unacceptable noise and lighting impacts arising from approval of the proposed development.
  1. [220]
    I do, however, accept:[280]
  1. (a)
    the proposed development will add to the choice in competition for fuel and minor convenience retailing in this locality;
  1. (b)
    the proposed development will be conveniently accessible to those for whom it is intended, that is local residents and passing motorists;
  1. (c)
    the subject land represents, from a commercial operator’s perspective, a logical (even ideal) location for a service station given the existing gap in the spatial distribution of such facilities;
  1. (d)
    the proposed development is a facility for the convenience of local and passing traffic;
  1. (e)
    the proposal is on the left-hand side of the homeward journey for those who work in Brisbane City but live to the east in Redland City.  This locational criterion is one preferred by service station operators as it adds to the convenience for passing trade and for local residents; and
  1. (f)
    other than the impact on the first 60 metres or so of Stanbrough Road, the design of the proposed development does not encourage non-local traffic into local streets due to its corner location.  However, for the reasons outlined above with respect to land use conflict, I do not consider the location and impact on Stanbrough Road to be acceptable.
  1. [221]
    The significance of these matters will be considered further below when dealing with the issue of need, which is also relied on by the appellant.

Need

  1. [222]
    The appellant relies on six factors to demonstrate there is a need for the proposed development, namely:[281]
  1. (a)
    there is a significant gap, approximately ten kilometres, between service stations located along Old Cleveland Road from Camp Hill to Capalaba West.[282]  Old Cleveland Road is a major arterial road carrying large volumes of traffic heading to Redland City and the subject land is conveniently located for north bound traffic exiting the Gateway Motorway and travelling east towards Redland City;[283]
  1. (b)
    the subject land is located on a highly trafficked funnel road, carrying in the order of 55 000 vehicles per day (or 27 500 vehicles travelling eastbound).[284]  It represents a logical location to serve the population by providing a choice of location in a market where consumers buy petrol at different times for different purposes.[285]  In this respect, Mr Norling said, “… it is the position which is the unique position, the interdictor which allows it to have that competition against multiple service stations”;[286]
  1. (c)
    the proposed development will introduce price competition in an environment where there is a low level of competitive pricing;[287]
  1. (d)
    price and convenience of location are important factors to consumers and the proposed development would be very competitive in terms of price and location by virtue of its interdictor location;[288]
  1. (e)
    car ownership levels in the trade area, particularly the primary trade area, are higher than the average and there is significant commuting by residents of the trade area;[289] and
  1. (f)
    the proposed development would offer 24 hour a day access to convenience items, which is important due to the limitations of trading hours on the operation of supermarkets.[290]  The need experts agree that smaller convenience stores offer an important late night/early morning shopping facility across important elements of the day when other facilities are closed.  Petrol stations being open 24 hours per day, seven days per week also provide the opportunity for local residents to access petrol at any time of the day depending on their movements.[291]
  1. [223]
    The evidence of the economic experts demonstrates these matters. However, the extent to which these matters support approval of the proposed development are tempered by a number of other factors.
  1. [224]
    Firstly, in terms of the gap in the spatial distribution of service stations along Old Cleveland Road, it is informed by the clearly expressed planning strategy that a service station should only locate in the Environmental management zone if the criteria in overall outcome (4)(g) of the Environmental management zone code are met.
  1. [225]
    The gap is also unsurprising given:
  1. (a)
    the primary trade area generally incorporates the rural residential areas around Belmont, Gumdale and Chandler.  In 2016, the population of the primary trade area was only 3 420 people, which is about 2 ½ per cent of the total trade area population;[292]
  1. (b)
    there is no anticipated growth in the primary trade area given the dominance of the area that is in the Environmental management zone;[293] and
  1. (c)
    the primary trade area is very well served by existing service stations – there are four in the primary trade area and a fifth on the edge of the primary trade area.[294]
  1. [226]
    Second, in terms of the location of the subject land on a “highly trafficked funnel road”, the economic experts acknowledged that the subject land is at the “start” of a funnel “leading to population that commences 6km east of the site”.[295] 
  1. [227]
    While a significant proportion of the population of the secondary and tertiary trade areas to the east commute to Brisbane for employment, Old Cleveland Road is but one of several major thoroughfares that connects Brisbane City to the main, but distant, population.  Wynnum Road extending into Manly Road would also provide convenient access to the City for those residents in the northern part of the Redlands (and within the trade area).  There are no traffic counts for that road.[296]  Similarly, Mt Gravatt-Capalaba Road would be the route used by a substantial proportion of the residents in the southern part of the secondary and tertiary trade area.  Both of those road networks have convenient access to interchanges with the Gateway Motorway also.  Mt Gravatt-Capalaba Road also has access to the Pacific Motorway.[297]  Those routes are served by the full spectrum of service station offerings.[298] 
  1. [228]
    As was acknowledged by Mr Duane, not all residents would travel to the City, or even west. Of those that would travel west, not all would travel along Old Cleveland Road. Whatever option was taken, the population resident in the secondary and tertiary sectors have access to a broad range of existing service station facilities.[299]
  1. [229]
    Third, with respect to the introduction of price competition in an environment where there is a low level of competitive pricing, and, in particular, the ability of the proposed development to provide price competition by virtue of its interdictor location, I accept that 7-Eleven’s business model is to aim to provide cheaper prices than competitors,[300] and that, if approved, other service stations would monitor the price of petrol at the proposed development closely.[301] 
  1. [230]
    Mr Duane accepted that approval of this proposal would not alter fuel prices in Brisbane, but that you may see a difference in the trade area at a local level.[302]
  1. [231]
    However, a survey within the relevant locality undertaken by Mr Norling revealed that:
  1. (a)
    whilst two of the 7-Eleven service stations were operating at the lowest price, they had that in common with a Caltex service station, a Caltex Woolworths (excluding any discount), two Freedom stations and one Matilda station;
  1. (b)
    the other 7-Eleven facility was trading at the same price as the average of the three Shells Coles Express (excluding any discounts for those Coles stations), the average of the three BP stations, one of the Caltex stations, one or more of the Caltex Woolworths stations (excluding discounts), and more than the Freedom and Puma stations;
  1. (c)
    the average of the three 7-Eleven stations was less than the Shell Coles Express, BP and Caltex stations, but more than the Caltex Woolworths, Freedom and Puma Energy stations.  When the (very popular) shopper docket discounts were applied to the Coles Express and Caltex Woolworths stations, the average 7-Eleven price was 1 cent per litre more than the Shell stations, and 4.3 cents a litre more expensive than the four Caltex Woolworths stations;
  1. (d)
    as Mr Norling put it (even excluding the shopper docket discount available in many of the other facilities), 7-Eleven’s “average price in this corridor placed it in the middle of the pack of the seven brands represented in this corridor”.[303]
  1. [232]
    In terms of Mr Norling’s price survey, Mr Duane agreed that if 4 cents per litre was deducted from the very popular supermarket based service stations, there were ten service stations on average that are cheaper than the average of the 7-Eleven stores within the relevant area.  That is, on an average, the 7-Eleven was “more expensive”.[304]  (While supermarket based service stations are no longer able to advertise the discounted price of fuel, the signage can display the availability of the discount and Mr Leyshon was not aware of any changes in the use or popularity of the dockets as a consequence of the change in rules regarding advertising.[305])
  1. [233]
    A 7-Eleven branded service station is represented already in the relevant trade area. No evidence was produced by that service station, including through the 7-Eleven representative Mr Smith, to contradict Mr Norling’s survey or to otherwise establish that the existing 7-Eleven outlets in the trade area consistently provide the cheapest (or even cheap) fuel.
  1. [234]
    Overall, with respect to competition and fuel prices, I am satisfied that the proposed development will assist in increasing competition, but am not persuaded that there will be a material impact on fuel prices.
  1. [235]
    Fourth, in terms of higher than average car ownership levels in the trade area, particularly the primary trade area, the economic experts agreed that the proposed development is not reliant on the primary sector. It would serve traffic generated by residents of:
  1. (a)
    a secondary sector to the east extending from Birkdale / Wellington Point through to Alexandra Hills and Capalaba; and
  1. (b)
    a tertiary sector comprising the coastal suburbs from Cleveland down to Victoria Point and Redland Bay.[306]
  1. [236]
    The secondary and tertiary sectors effectively incorporate the majority of Redland City.[307]
  1. [237]
    During cross-examination, Mr Duane accepted that the real demand for service stations arising from population growth is from residents of the tertiary sector. That part of the trade area accounts for 80 per cent of the population growth.[308]  The residents of the tertiary trade area are between 10 and 25 kilometres from the subject land.[309]
  1. [238]
    Fifth, in terms of the offer of 24 hour a day access to convenience items, there is no shortage of service station facilities with 24-hour trade in the area. The economic experts agreed that “the vast majority of petrol stations in the surrounding area operate 24 hours”.[310] 
  1. [239]
    There is also an extensive network of 24-hour facilities along major routes for those travelling to or from further afield.[311] 
  1. [240]
    Further, I accept the view of Mr Leyshon that, in terms of convenience, 24-hour service stations close to residents’ homes would offer a greater convenience.[312]
  1. [241]
    As was observed by Rackemann DCJ in United Petroleum Pty Ltd v Gold Coast City Council [2018] QPEC 8, at [96]:[313]

“Need in planning terms is a relative concept. It does not connote pressing urgency but rather relates to the general wellbeing of the community. A use would be needed if, it would, on balance, improve the services and facilities available in a locality.”

  1. [242]
    Overall, if approved, the proposed development would provide a limited level of increased convenience, choice and competition for residents of the secondary and tertiary trade area.
  1. [243]
    The subject land would obviously be conveniently located for residents of the secondary and tertiary trade area travelling eastbound on Old Cleveland Road. However, it would not provide a convenient location for service station or convenience shop trips generated from their homes.[314]  I am also not persuaded that there is a material lack of convenience for residents of the primary trade area.[315]
  1. [244]
    In terms of choice, each of the primary, secondary and tertiary trade areas have a broad range of choice, including a 7-Eleven branded service station.[316]
  1. [245]
    Given the characteristics of the primary trade area, I am not persuaded that the proposed development would, on balance, materially improve the services and facilities available in the locality in which it is proposed, i.e. the primary trade area.
  1. [246]
    Further, I am not satisfied that the proposed development provides the identified benefits in circumstances that strike an appropriate balance in terms of other planning considerations, such as respect for the existing and planned character and amenity of the area.

Conclusion

  1. [247]
    The appellant has not discharged the onus. The appeal is accordingly dismissed.

Footnotes

[1]  Town Planning Joint Expert Report – Exhibit 4 p 4 [2.4].

[2]  Town Planning Joint Expert Report – Exhibit 4 p 4 [2.3].

[3]  Town Planning Joint Expert Report – Exhibit 4 p 5 [3.2].

[4]  Town Planning Joint Expert Report – Exhibit 4 p 5 [3.5]; Book of Plans – Exhibit 1 p 9; T6-62/L29-30 (Powell).

[5]  Town Planning Joint Expert Report – Exhibit 4 p 5 [3.1].

[6]  Town Planning Joint Expert Report – Exhibit 4 p 5 [3.4].

[7]  Town Planning Joint Expert Report – Exhibit 4 p 5 [3.4].

[8]  T5-57/L45 – T5-58/L7 (Trevelyan).

[9]  Town Planning Joint Expert Report – Exhibit 4 p 5 [3.1].

[10]  Town Planning Joint Expert Report – Exhibit 4 p 6 [3.12].

[11]Planning and Environment Court Act 2016, s 43.

[12]Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21, [93].

[13]Planning Act 2016, s 59(3).

[14]  Council’s Outline of Submissions – Court Doc 27 p 10 [39].

[15]  Council’s Outline of Submissions – Court Doc 27 p 11 [41].

[16]  Written Submissions on behalf of the Appellant – Court Doc 24 p 8 [50]-[51].

[17]  Written Submissions on behalf of the Appellant – Court Doc 24 pp 8-9 [53]-[60].

[18]  p 74.

[19]Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395, 417-8 [56]; CAL No 14 Pty Ltd v Scott [2009] HCA 47; (2009) 239 CLR 390, 407 [49] and [51]. 

[20]  See Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Anor [2002] QCA 277; (2002) 121 LGERA 390, 415-6 [105].

[21]  The Chief Executive’s interest in the appeal was confined to traffic and he was excused for the balance of the hearing.

[22]  Planning Scheme Extracts – Exhibit 3 p 90.

[23]  T7-53/L33-5 (Brown).

[24]  Written submissions on behalf of the Appellant – Court Doc 24 p 27 [140].

[25]  T6-100/L37 – T6-101/L5 (Mongard); Report of Mr Schomburgk Exhibit 11 p 4 [17(i)]; Town Planning Joint Expert Report – Exhibit 4 p 22 [7.13] (Schomburgk).

[26]  T6-101/L7-18 (Mongard).

[27]  Report of Mr Powell – Exhibit 8 p 10 [4.8].

[28]  Report of Mr Powell – Exhibit 8 p 10 [4.8] and p 11 figure 3; T6-101/L37 – T6-102/L11 (Mongard).

[29]  T6-105/L25-33 (Mongard).

[30]  Council’s Outline of Submissions – Court Doc 27 pp18-9 [53]-[56]; Submissions on behalf of the First Co-respondents by Election – Court Doc 26 p 51 [201]-[204].

[31]  Additional Planning Scheme Extracts – Exhibit 87 Tab 1 s 1.3.1(1).

[32]  7th edition.

[33]Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; [2014] QPELR 686; (2014) 201 LGERA 82, 94-5 [52]-[56].

[34]  Planning Scheme Extracts – Exhibit 3 p 90.

[35]  Additional Planning Scheme Extracts – Exhibit 87 Tab 4.

[36]  Planning Scheme Extracts – Exhibit 3 p 89 s 6.1(7).

[37]  See Oral Submissions for the appellant – T8-74/L8-28.

[38]  T7-30/L44-47 (Schomburgk).

[39]  T7-30/L41-47 (Schomburgk).

[40]  T7-55/L17-39 (Brown).

[41]  Economic Need Joint Expert Report – Exhibit 6 p 35 Table 7.

[42]  T2-49/L33-42 (Duane).

[43]  T2-49/L44 – T2-50/L19 (Duane); Economic Need Joint Expert Report – Exhibit 6 p 35 Table 7.

[44]  Town Planning Joint Expert Report – Exhibit 4 p 22 [7.13] (Schomburgk).

[45]  T6-7/L17 - T6-78/L16 (Powell); T7-39/L8-12 (Schomburgk).

[46]  T7-39/L8-12 (Schomburgk).

[47]  Report of Mr Mulcahy – Exhibit 81 p 3 [10]; T2-17/L43 – T2-18/L16 (King); Report of Mr King – Exhibit 12 p 99.

[48]  T6-60/L32 – T6-63/L15 (Powell).

[49]  T6-63/L17 – T6-64/L21 (Powell).

[50]  T6-64/L28-32 (Powell).

[51]  T7-55/L17-39 (Brown); Town Planning Joint Expert Report – Exhibit 4 p 17 [6.42] (Brown).

[52]  Road hierarchy map – Exhibit 80.

[53]  Written Submissions on behalf of the Appellant – Court Doc 24 p 12 [77].

[54]  Written Submissions on behalf of the Appellant – Court Doc 24 p 13 [78].

[55]  T7-54/L1-8 (Brown).

[56]  Visual Amenity Joint Expert Report – Exhibit 5 p 31 [110] (Mongard).

[57]  T6-76/L37-44 (Powell).

[58]  T6-77/L46 – T6-78/L41 (Powell).

[59]  T6-77/L43-45 (Powell).

[60]  Written Submissions on behalf of the Appellant – Court Doc 24 p 13 [79].

[61]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 Appendix A Photomontage VP01 Day p 3.

[62]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 p 15 [50] (Mongard).

[63]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 p 15 [50] (Mongard) and Appendix A Photomontage VP01 Night p 13; Visual Amenity Joint Expert Report – Exhibit 5 p 31 [111] (Mongard).

[64]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 p 15 [50] (Mongard).

[65]  Additional Planning Scheme Extracts – Exhibit 87 Tab 1 s 1.3.1(1).

[66]  The appellant, Council and the residents each referred me to the observations of Robin QC DCJ that were implicitly approved by the Queensland Court of Appeal in Stockland Development Pty Ltd v Townsville City Council & Ors [2013] QCA 210; (2013) 195 LGERA 317 at 320-1 [8]-[10].  Those observations are of no assistance given the different context in which the phrase appeared.

[67]  6th edition.

[68]  Written Submissions on behalf of the Appellant – Court Doc 24 p 13 [82].

[69]  Town Planning Joint Expert Report – Exhibit 4 p 23 [7.17] (Schomburgk).

[70]  Report of Mr Schomburgk – Exhibit 11 p 5 [29].  See also Report of Mr Schomburgk – Exhibit 11 p 5 [27]. 

[71]  Written Submissions on behalf of the Appellant – Court Doc 24 p 14 [85].

[72]  These are centre activities.

[73]  Existing uses in the Environmental Management Zone – Exhibit 67 uses A1, B1 and B2.  See Book of Plans Exhibit 1 p 1 for street names and identification of the Gumdale Primary School.  See also description of the centre in the Economic Need Joint Expert Report – Exhibit 6 p 44 [104].

[74]  T7-52/L21-26 (Brown).  See also Existing uses in the Environmental Management Zone – Exhibit 67 uses A2, C7 and C8.  See also description of the Archer Street Precinct in the Economic Need Joint Expert Report – Exhibit 6 p 46 [108].

[75]  Existing uses in the Environmental Management Zone – Exhibit 67 uses C5 and C6.  See Book of Plans Exhibit 1 p 1 for street names.

[76]  T7-29/L18 – T7-30/L27 (Schomburgk).

[77]  Planning Scheme Extracts – Exhibit 3 p 89 s 6.1(7).

[78]  Planning Scheme Extracts – Exhibit 3 p 21.

[79]  Planning Scheme Extracts – Exhibit 3 p 23.

[80]  Planning Scheme Extracts – Exhibit 3 pp 74-5.

[81]  T7-51/L44 – T7-52/L2 (Brown).

[82]  T7-52/L6-26 (Brown).

[83]  Report of Mr Mulcahy – Exhibit 81 p 3 [12].

[84]  T7-38/L40 – T7-39/L41 (Schomburgk).

[85]  T7-39/L43-44 (Schomburgk).

[86]  Town Planning Joint Expert Report – Exhibit 4 p 18 [6.48] (Brown); Exhibit 67 – identified as A1.  See also Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM33 – JM36.

[87]  Town Planning Joint Expert Report – Exhibit 4 p 18 [6.46]-[6.48] (Brown); Exhibit 67.

[88]  Economic Need Joint Expert Report – Exhibit 6 p 48 [114].

[89]  Planning Scheme Extracts – Exhibit 3 p 4.

[90]  Planning Scheme Extracts – Exhibit 3 pp 74-5.

[91]  Planning Scheme Extracts – Exhibit 3 p 124.

[92]  Planning Scheme Extracts – Exhibit 3 p 125.

[93]  Written Submissions on behalf of the Appellant – Court Doc 24 p 12 [68]-[70].  Footnote 35 refers to Theme 5 strategic outcomes 1(h) and 1(i).  In its written submissions, Council abandoned allegations of conflict with those provisions.

[94]  Town Planning Joint Expert Report – Exhibit 4 p 14 [6.2]-[6.4] (Brown).

[95]  Town Planning Joint Expert Report – Exhibit 4 p 28 [8.9] (Mulcahy).

[96]  Town Planning Joint Expert Report – Exhibit 4 p 22 [8.10] (Mulcahy).

[97]  T2-38/L31-41 (Watson).

[98]  Report of Dr Watson – Exhibit 13 p 8 [36].

[99]  T2-39/L1-15 (Watson).

[100]  Conflict with Theme 3, Element 3.1, Table 3.5.2.1, specific outcomes SO1 and SO3 were not addressed by Council or the residents.  Allegations of conflict with those provisions are not pursued.  See Council’s Outline of Submissions – Court Doc 27 pp 34-5 [132].

[101]  Planning Scheme Extracts – Exhibit 3 p 21.

[102]  Planning Scheme Extracts – Exhibit 3 p 23.

[103]  Planning Scheme Extracts – Exhibit 3 pp 74-5.

[104]  Exhibit 63.

[105]  Visual Amenity Joint Expert Report – Exhibit 5 p 12 Figure N1.

[106]  Visual Amenity Joint Expert Report – Exhibit 5 p 12 [23] (Powell).

[107]  Town Planning Joint Expert Report – Exhibit 4 p 4 [2.6].

[108]  While the site inspection is not evidence, it was of great assistance to me in understanding the evidence of the visual amenity experts and town planners.

[109]  See Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM42 image 3 and Appendix E Figure E2.1.

[110]  See Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM15 image 6, Figure JM16 image 8, Figure JM47 images 1 and 2 and Figure JM61 image A, and Appendix E Figure E3.1.

[111]  T6-51/L35 – T6-52/L9 (Powell).

[112]  Exhibit 70.

[113]  Exhibit 70.

[114]  Exhibit 72.

[115]  See Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM41 image 1.

[116]  See Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM41 image 2.  T6-50/L6-10 (Powell).

[117]  T6-59/L22 – T6-60/L17 (Powell).

[118]  See Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM42 image 4.

[119]  Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM45.

[120]  Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM46 and Appendix E Figure E4.1.

[121]  See Planning Scheme Extracts – Exhibit 3 p 21.  Theme 3, strategic outcome 3.5.1(1)(d) of the Strategic framework states “The Greenspace System serves many functions. It contributes to the city’s character and liveability; it supports landscape, recreation and ecological functions, ecosystem services and defines local neighbourhoods and the edge of the city.”

[122]  See Theme 3, Element 3.1, Table 3.5.2.1 specific outcome SO1 and land use strategy L1, Theme 5 strategic outcome (1)(i) and Theme 5, Element 5.6, Table 3.7.7.1 specific outcome SO1 and land use strategy L1.1.

[123]  Visual Amenity Joint Expert Report – Exhibit 5 p 12 [23] (Powell).

[124]  That the presence of such uses is occasional, as compared to a continuous strip like that presented by the Neighbourhood Centre at Capalaba (see Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM53), is evident from Mr Powell’s Figure E1 Character Analysis - See Visual Amenity Joint Expert Report – Exhibit 5 Appendix E.

[125]  Visual Amenity Joint Expert Report – Exhibit 5 p 4 [9] (Mongard).

[126]  Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM13 – JM19 and JM41 – JM42.

[127]  Visual Amenity Joint Expert Report – Exhibit 5 p 31 [106] (Mongard).

[128]  T7-56/L43 – T7-57/L4 (Brown).

[129]  Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM13 – JM19.

[130]  See Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM51 – JM52 and JM53.

[131]  Visual Amenity Joint Expert Report – Exhibit 5 p 25 Figure J10 and p 27 Figure N8 and Figure N9.

[132]  Visual Amenity Joint Expert Report – Exhibit 5 p 4 [10] (Mongard). 

[133]  Affidavit of Mr White – Exhibit 18 p 2 [10]; Affidavit of Ms Walker – Exhibit 19 p 1 [3].

[134]  Visual Amenity Joint Expert Report – Exhibit 5 Appendix D Figure JM27 – JM32.

[135]  T6-70/L1-4 (Powell).

[136]  See Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 Appendix A Photomontage VP01 Day p 2 and VP01 Night p 12.

[137]  Visual Amenity Joint Expert Report – Exhibit 5 p 12 [23] (Powell).

[138]  Written Submissions on behalf of the Appellant – Court Doc 24 pp 25-6 [135].

[139]  Additional Planning Scheme Extracts – Exhibit 87 Tab 2.

[140]  Visual Amenity Joint Expert Report – Exhibit 5 p 38 [145(v)] (Powell).

[141]  T6-60/L32 – T6-63/L15 (Powell).

[142]  T6-63/L17 – T6-64/L21 (Powell).

[143]  T6-64/L29-32 (Powell).

[144]  T6-64/L34 – T6-65/L1 (Powell).

[145]  Visual Amenity Joint Expert Report – Exhibit 5 p 41 [154] (Mongard); Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 Appendix A Photomontage VP01 Day p 3, VP02 Day p 5, VP03 Day p 7, VP01 Night p 13, VP02 Night p 15 and VP03 Day p 17.

[146]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 p 15 [50] (Mongard).

[147]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 p 15 [51] (Mongard) and Appendix A Photomontage VP02 Night p 15.

[148]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 pp 15-6 [52] (Mongard) and Appendix A Photomontage VP03 Night p 17.

[149]  Visual Amenity Joint Expert Report – Exhibit 5 p 43 [158] (Mongard).

[150]  Town Planning Joint Expert Report – Exhibit 4 p 15 [6.12] (Brown).

[151]  Planning Scheme Extracts – Exhibit 3 p 26.

[152]  Planning Scheme Extracts – Exhibit 3 p 124.

[153]  Planning Scheme Extracts – Exhibit 3 pp 125-6.

[154]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 Appendix A Photomontage VP04 Day p 9 and Night p 19.

[155]  Statement of Ms Deen – Exhibit 21 p 2 [9].

[156]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 p 16 [53] (Mongard).

[157]  See Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 Appendix A p 34.

[158]  T6-105/L25-33 (Mongard).

[159]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 Appendix A Photomontage VP05 Day pp 10-1 and VP05 Night pp 20-1.

[160]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 Appendix A Photomontage VP05 Day pp 10-1 and VP05 Night pp 20-1.

[161]  T7-16/L1-5 (Mongard).

[162]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 p 16 [54] (Mongard).

[163]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 pp 16-7 [54] (Mongard) and Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 Appendix A p 35.

[164]  T6-105/L14-5 (Mongard). 

[165]  Report of Mr Powell – Exhibit 8 Figures A2 and A3.

[166]  Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 Appendix A pp 26-7.

[167]  T6-89/L17-40 and T6-90/L4-30 and T7-18/L11-24 (Mongard); Photomontage and Visual Amenity Joint Expert Report – Exhibit 59 pp 13-4 [45]-[46] and pp 22-3 [67]-[71] (Mongard).

[168]  T6-79/L13-27 (Powell).

[169]  See, for example, Consolidated List of Disputed Issues – Exhibit 15 p 3 [2].

[170]  Report of Mr King – Exhibit 12 p 18 [71] and Attachment 8.

[171]  Report of Mr King – Exhibit 12 p 18 [72].

[172]  Report of Mr King – Exhibit 12 p 18 [74].

[173]  T2-7/L18-25 (King).

[174]  T2-7/L27-36 (King).

[175]  Report of Mr King – Exhibit 12 pp 9-10 [22]-[24].

[176]  Report of Mr King – Exhibit 12 p 10 [25].

[177]  Report of Mr King – Exhibit 12 p 10 [27].

[178]  Report of Mr King – Exhibit 12 p 12 [34]; T2-5/L31-42 (King).

[179]  T2-4/L41-45 (King).

[180]  Report of Mr King – Exhibit 12 p 15 [57]-[59]; T2-12/L26-33 (King).

[181]  T2-10/L42-46 (King).

[182]  T2-11/L30-31 (King).

[183]  T2-20/L19-28 (King).

[184]  Planning Scheme Extracts – Exhibit 3 p 135.

[185]  Submissions on behalf of the First Co-respondent by Election – Court Doc 26 pp 17-8 [62].

[186]  T2-16/L12-34 (King).

[187]  T2-16/L41 – T2-17/L7 (King).

[188]  T2-21/L1-27 (King).

[189]  Report of Mr King – Exhibit 12 p 16 [62]-[63].

[190]  Report of Mr King – Exhibit 12 p 16 [64].

[191]  T2-8/L42-47 (King).

[192]  Report of Mr King – Exhibit 12 p 26 [74].

[193]  Report of Mr King – Exhibit 12 p 16 [66] and [68].

[194]  Report of Mr King – Exhibit 12 p 17 [69].

[195]  T2-25/L4-5 (King).

[196]  T2-25/L7-16 (King).

[197]  T2-26/L29-38 (King); Australian Standard AS 4282-1997 Control of the obtrusive effects of outdoor lighting - Exhibit 25 p 5.

[198]  T2-26/L40-46; Australian Standard AS 4282-1997 Control of the obtrusive effects of outdoor lighting - Exhibit 25 p 5.

[199]  T2-28/L21-27 (King); Australian Standard AS 4282-1997 Control of the obtrusive effects of outdoor lighting - Exhibit 25 p 10.

[200]  T2-28/L31-40 (King); Australian Standard AS 4282-1997 Control of the obtrusive effects of outdoor lighting - Exhibit 25 p 10.

[201]  T2-30/L43 – T2-31/L12 (King); Australian Standard AS 4282-1997 Control of the obtrusive effects of outdoor lighting - Exhibit 25 p 11.

[202]  T2-31/L17-42 (King); Australian Standard AS 4282-1997 Control of the obtrusive effects of outdoor lighting - Exhibit 25 p 13.

[203]  Traffic Engineering Joint Expert Report – Exhibit 7 p 3.

[204]  Council’s Outline of Submissions – Court Doc 27 p 25 [84].

[205]  Council’s Outline of Submissions – Court Doc 27 p 27 [98].

[206]Heath & Anor v Brisbane City Council [2008] QPEC 33; [2008] QPELR 566, 569 [23].

[207]  Town Planning Joint Expert Report – Exhibit 4 p 5 [3.3].

[208]  T8-27/L39 – T8-30/L19 (Job); T8-32/L25-9 (Loos).

[209]  See Submissions on behalf of the First Co-respondents by Election – Court Doc 26 pp 46-7 [186]-[187]; p 58 [238]-[239]; pp 59-62 [248]-[248] (the document contains an issue with paragraphs numbers).

[210]  Planning Scheme Extracts – Exhibit 3 p 35.

[211]  Planning Scheme Extracts – Exhibit 3 pp 120-1.

[212]  Planning Scheme Extracts – Exhibit 3 p 135.

[213]  Planning Scheme Extracts – Exhibit 3 p 136.

[214]  Planning Scheme Extracts – Exhibit 3 pp 137-9.

[215]  Traffic Engineering Joint Expert Report – Exhibit 7 p 7.

[216]  T4-26/L45-47 (Crank).

[217]  T4-79/L29-38 (Holland).

[218]  See my findings regarding visual amenity.  See also T5-26/L46-7 (Holland).

[219]  T5-30/L6-22 (Holland) and T5-67/L33 – T5-68/L4 (Trevilyan).

[220]  Traffic Engineering Joint Expert Report – Exhibit 7 p 8.

[221]  T5-31/L8-9 (Holland).

[222]  No traffic engineer suggested otherwise.

[223]  Exhibit 53 p 180.

[224]  Exhibit 53 p 36.

[225]  Exhibit 53 p 180.

[226]  Report of Mr Crank – Exhbit 9 pp 7-8 [23].

[227]  Planning Scheme Extracts – Exhibit 3 p 158.

[228]  Planning Scheme Extracts – Exhibit 3 p 158.

[229]  Planning Scheme Extracts – Exhibit 3 p 157.

[230]  Planning Scheme Extracts – Exhibit 3 p 158.

[231]  T4-38/L5-9 (Crank).

[232]  Submission on behalf of the First Co-Respondents by Election – Court Doc 26 p 39 [156].

[233]  by reference to the definition of “major development” in s 1.3 of the Transport, access, parking and servicing planning scheme policy.

[234]  T4-46/L40 – T4-47/L26 (Crank).  See Submission on behalf of the First Co-Respondents by Election – Court Doc 26 p 39 [157].

[235]  T5-41/L35 – T5-42/L29 (Trevilyan).  See Submission on behalf of the First Co-Respondents by Election – Court Doc 26 pp 39-40 [158].

[236]  Report of Mr Crank – Exhibit 9 pp 7-8 [22]-[24].

[237]  Exhibit 35.

[238]  Submissions on behalf of the First Co-respondents by Election – Court Doc 26 pp 46-7 [187].

[239]  Book of Plans – Exhibit 1 pp 24-5.

[240]  Written Submissions of the Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning – Court Doc 25 pp 3-4 [15] and [17].

[241]  State Development Assessment Provisions (Version 1.10) – Exhibit 42 pp 32-33.

[242]  Written Submissions of the Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning – Court Doc 25 p 13 [63].

[243]  State Development Assessment Provisions (Version 2.2) – Exhibit 44 pp 12 and 16.

[244]  State Development Assessment Provisions (Version 2.2) – Exhibit 44 p 18.

[245]  Exhibit 45.

[246]  Section 46(5) of the Planning and Environment Court Act 2016.

[247]  T8-27/L39 – T8-8-32/L41 and T8-36/L25 – T8-38/L34.

[248]  T4-57/L32-45 (Crank).

[249]  Report of Mr Williams – Exhibit 23 pp 4-5 [31] and T4-58/L18-20 (Crank).

[250]  T4-57/L3 (Crank).

[251]  T4-55/L23-31 (Crank).

[252]  T6-12/L14-39 (Williams).

[253]  T4-56/L45 – T4-57/L1 (Crank).

[254]  T4-57/L5-6 (Crank).

[255]  T4-57/L9 (Crank).

[256]  T4-60/L25-40 (Crank).

[257]  T4-24/L24-29 (Crank).

[258]  T5-48/L1-23 (Trevilyan); T4-49/L35-42 (Crank).

[259]  Written Submissions on behalf of the Appellant – Court Doc 24 p 22 [124(a)].

[260]Jedfire Pty Ltd v Council of the City of Logan & White [1995] QPELR 41, 43; Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7; [2008] QPELR 480, 483 [16]; Petroleum Design & Management Pty Ltd v Mackay City Council [2004] QPEC 20; [2004] QPELR 593, 595-6 [20]-[22].

[261]  T4-54/L26-38 (Crank).

[262]  T4-55/L23-29 (Crank).

[263]  T4-55/L33 – T4-58/L10 (Crank).

[264]  Report of Mr Williams – Exhibit 23 pp 4-5 [31].

[265]  T6-10/L29 – T6-11/L10 (Williams).

[266]  T5-30/L6-22 (Holland); T5-67/L33 – T5-68/L4 (Trevilyan); T5-71/L22-23 (Trevilyan).

[267]  T5-65/L1-7 (Trevilyan).

[268]  T5-61/L14 – T5-63/L45 (Trevilyan).

[269]  T5-58/L37 – T5-59/L32 (Trevilyan); T5-60/L15 – T5-61/L5 (Trevilyan).

[270]  T5-62/L39 – T5-63/L30 (Trevilyan).

[271]  Submissions on behalf of the First Co-respondents by Election – Court Doc 26 p 36 [145].

[272]  T5-18/L21-34 (Holland); T5-49/L17-26 (Trevilyan).

[273]  T5-12/L10-34 (Holland).  The issue is described in Mr Holland’s report – Exhibit 17 p 3 [12]-[14] and Attachment A.

[274]  Submissions on behalf of the First Co-respondents by Election – Court Doc 26 p 36 [145]; T8-24/L10-23 (Loos).

[275]  Report of Mr Trevilyan – Exhibit 16 p 2 [9] and Appendix D p 32.

[276]  T8-25/L40 – T8-26/L2 (Loos).

[277]  Exhibit 58 pp 5-9.

[278]  T5-49/L32-36; T5-55/L38 – T5-56/L11 and T5-57/L29 – T5-58/L7 (Trevilyan). 

[279]  Town Planning Joint Expert Report – Exhibit 4 p 26 [7.40].

[280]  Town Planning Joint Expert Report – Exhibit 4 p 26 [7.40].

[281]  Written Submissions on behalf of the Appellant – Court Doc 24 pp 36-41 [195]-[221].

[282]  Economic Need Joint Expert Report – Exhibit 6 p 50 [118 a].

[283]  T3-41/L24-36 (Leyshon); T3-33/L38-46 (Leyshon); T3-73/L11-22 (Norling); T3-47/L3 – T3-48/L10 (Leyshon); T3-56/L6-9(Leyshon); T3-69/L25-31 (Norling); T3-76/L29-34 (Norling).

[284]  The subject land will only provide convenient access to eastbound traffic.

[285]  Economic Need Joint Expert Report – Exhibit 6 p 51 [118 e] and p 20 [49]-[50].

[286]  T3-78/L32-38 (Norling).

[287]  Economic Need Joint Expert Report – Exhibit 6 p 51 [118 f]; T3-84/L9-35 (Norling); T3-42/L26-38 (Leyshon); T3-78/L22-34 (Norling).

[288]  Economic Need Joint Expert Report – Exhibit 6 p 19 [47 e] and p 18 [45 b].

[289]  Economic Need Joint Expert Report – Exhibit 6 p 26 [66 f] and p 27 [67]; T3-54/L4-45 (Leyshon).

[290]  Economic Need Joint Expert Report – Exhibit 6 p 39 [92].

[291]  Economic Need Joint Expert Report – Exhibit 6 p 42 [95].

[292]  Economic Need Joint Expert Report – Exhibit 6 p 23 [57], p 26 Map 2 and p 28 Table 2; T3-3/L25-28 (Duane).  See also Economic Need Joint Expert Report – Exhibit 6 p 37 [84].

[293]  T2-65/L35-42 (Duane); Economic Need Joint Expert Report – Exhibit 6 p 26 [64] and p 31 [71].

[294]  Economic Need Joint Expert Report – Exhibit 6 p 36 [80]; Exhibit 27; T2-66/L29-37 (Duane).

[295]  Economic Need Joint Expert Report – Exhibit 6 p 20 [50 a].

[296]  T2-57/L20-42 (Duane).

[297]  T2-58/L5-32 (Duane).

[298]  Exhibit 27.

[299]  T2-59/L25-44 (Duane).

[300]  T3-42/L26-34 (Leyshon).

[301]  T3-42/L36-38 (Leyshon).

[302]  T2-53/L7-14 (Duane).

[303]  Economic Need Joint Expert Report – Exhibit 6 p 16 [41]-[42].

[304]  T2-54/L28-37 (Duane).

[305]  T3-57/L1-13 (Leyshon).

[306]  Economic Need Joint Expert Report – Exhibit 6 p 23 [57]-[58].

[307]  Economic Need Joint Expert Report – Exhibit 6 p 23 [59].

[308]  T3-3/L30-45 (Duane).

[309]  T3-4/L38-43 (Duane).

[310]  Economic Need Joint Expert Report – Exhibit 6 p 39 [90].  See also Economic Need Joint Expert Report – Exhibit 6 p 35 Table 7.

[311]  See also Economic Need Joint Expert Report – Exhibit 6 p 35 Table 7.

[312]  T3-20/L41-45 (Leyshon).

[313]  citing Prime Group Properties Limited v Caloundra City Council and Darracott & Ors [1995] QPELR 147, 149-50.  See also the general principles referred to in K & K GC Pty Ltd v Gold Coast City Council [2018] QPEC 9 at [235]-[237].

[314]  T2-87/L23-36 (Duane).

[315]  T2-86/L5-39 (Duane).

[316]  T2-87/L38 – T2-88/L11 (Duane).

Close

Editorial Notes

  • Published Case Name:

    Parmac Investments Pty Ltd v Brisbane City Council & Ors

  • Shortened Case Name:

    Parmac Investments Pty Ltd v Brisbane City Council

  • MNC:

    [2018] QPEC 32

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    18 Jun 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bell v Brisbane City Council [2018] QCA 84
2 citations
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Cite 1 - [2018] QCA 84
Cite 2 - [2018] QCA 84
CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390
2 citations
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Cite 1 - (2009) 239 CLR 390
Cite 2 - (2009) 239 CLR 390
CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47
2 citations
Jump To
Cite 1 - [2009] HCA 47
Cite 2 - [2009] HCA 47
Cf Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 480
2 citations
Jump To
Cite 1 - [2008] QPELR 480
Cite 2 - [2008] QPELR 480
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
2 citations
Jump To
Cite 1 - (1998) 194 CLR 395
Cite 2 - (1998) 194 CLR 395
Garcia v National Australia Bank Ltd (1998) HCA 48
2 citations
Jump To
Cite 1 - (1998) HCA 48
Cite 2 - (1998) HCA 48
Heath & Anor v Brisbane City Council [2008] QPEC 33
2 citations
Jump To
Cite 1 - [2008] QPEC 33
Cite 2 - [2008] QPEC 33
Heath & Anor v Brisbane City Council [2008] QPELR 566
2 citations
Jump To
Cite 1 - [2008] QPELR 566
Cite 2 - [2008] QPELR 566
Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21
2 citations
Jump To
Cite 1 - [2018] QPEC 21
Cite 2 - [2018] QPEC 21
Jedfire Pty Ltd v Council of the City of Logan & White (1995) QPELR 41
2 citations
Jump To
Cite 1 - (1995) QPELR 41
Cite 2 - (1995) QPELR 41
K & K GC Pty Ltd v Gold Coast City Council [2018] QPEC 9
2 citations
Jump To
Cite 1 - [2018] QPEC 9
Cite 2 - [2018] QPEC 9
Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7
2 citations
Jump To
Cite 1 - [2008] QPEC 7
Cite 2 - [2008] QPEC 7
Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPEC 20
2 citations
Jump To
Cite 1 - [2004] QPEC 20
Cite 2 - [2004] QPEC 20
Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPELR 593
2 citations
Jump To
Cite 1 - [2004] QPELR 593
Cite 2 - [2004] QPELR 593
Prime Group Properties Limited v Caloundra City Council and Darracott & Ors (1995) QPELR 147
2 citations
Jump To
Cite 1 - (1995) QPELR 147
Cite 2 - (1995) QPELR 147
Stockland Development Pty Ltd v Townsville City Council [2013] QCA 210
2 citations
Jump To
Cite 1 - [2013] QCA 210
Cite 2 - [2013] QCA 210
Stockland Development Pty Ltd v Townsville City Council & Ors (2013) 195 LGERA 317
2 citations
Jump To
Cite 1 - (2013) 195 LGERA 317
Cite 2 - (2013) 195 LGERA 317
Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Anor (2002) 121 LGERA 390
2 citations
Jump To
Cite 1 - (2002) 121 LGERA 390
Cite 2 - (2002) 121 LGERA 390
Stradbroke Island Management Organisation Inc v Redland Shire Council [2002] QCA 277
2 citations
Jump To
Cite 1 - [2002] QCA 277
Cite 2 - [2002] QCA 277
United Petroleum Pty Ltd v Gold Coast City Council [2018] QPEC 8
2 citations
Jump To
Cite 1 - [2018] QPEC 8
Cite 2 - [2018] QPEC 8
Wingate Properties Pty Ltd v Brisbane City Council [2001] QPEC 5
2 citations
Jump To
Cite 1 - [2001] QPEC 5
Cite 2 - [2001] QPEC 5
Wingate Pty Ltd v Brisbane City Council (2001) QPELR 272
2 citations
Jump To
Cite 1 - (2001) QPELR 272
Cite 2 - (2001) QPELR 272
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
2 citations
Jump To
Cite 1 - [2014] QCA 147
Cite 2 - [2014] QCA 147
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
1 citation
Jump To
Cite 1 - [2014] QPELR 686
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
2 citations
Jump To
Cite 1 - (2014) 201 LGERA 82
Cite 2 - (2014) 201 LGERA 82

Cases Citing

Case NameFull CitationFrequency
Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 222 citations
Bennington v Sunshine Coast Regional Council [2019] QPEC 114 citations
Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2023] QPEC 442 citations
DVB Projects Pty Ltd v Council of the City of Gold Coast [2022] QPEC 402 citations
Gillion Pty Ltd v Scenic Rim Regional Council [2018] QPEC 473 citations
Griffith Capital Pty Ltd v Redland City Council [2022] QPEC 213 citations
K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 402 citations
McKay v Brisbane City Council [2021] QPEC 423 citations
Middle Pond Pty Ltd v Whitsunday Regional Council [2024] QPEC 451 citation
Murphy v Moreton Bay Regional Council [2019] QPEC 461 citation
Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council [2021] QPEC 772 citations
Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 312 citations
Trowbridge v Noosa Shire Council [2019] QPEC 542 citations
Walters v Brisbane City Council [2019] QPEC 33 citations
1

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