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Navara Back Right Wheel Pty Ltd v Logan City Council[2019] QPEC 67

Navara Back Right Wheel Pty Ltd v Logan City Council[2019] QPEC 67

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67

PARTIES:

NAVARA BACK RIGHT WHEEL PTY LTD (ACN 608 304 678) AS TRUSTEE FOR 47-49 BROMLEY STREET TRUST

(appellant)

v

LOGAN CITY COUNCIL

(first respondent)

and

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

(second respondent)

and

CITIMARK PROPERTIES PTY LTD (ACN 066 613 349)

(first co-respondent by election)

AND

OTTO WILHELM

(appellant)

v

LOGAN CITY COUNCIL

(respondent)

and

CITIMARK PROPERTIES PTY LTD (ACN 066 613 349)

(co-respondent)

and

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

(third co-respondent by election)

FILE NOS:

3206/18 and 3364/18

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

20 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19-23, 26-28 August 2019, with further written submissions delivered on 4, 6 & 14 September 2019 and 18, 20, 22, 29 & 30 November 2019

JUDGE:

Williamson QC DCJ

ORDER:

Orders in accordance with paragraph [396] of these reasons for judgment.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where two submitter appeals against an approval for a Service station, Shop and Food and drink outlet – where proposed in a Rural residential zone – whether development anticipated in the Rural residential zone – whether development constitutes a centre activity in an out-of-centre location – whether development gives rise to unacceptable impacts on character, amenity and privacy – whether development unacceptably impacts on the safety and efficiency of the road network – whether development complies with the respondent’s planning scheme – whether there is a need for the proposed development – whether the application should be approved in the exercise of the planning discretion.

LEGISLATION:

Planning Act 2016, ss.3, 45, 59, 60.

Planning and Environment Court Act 2016, ss.43, 45.

Sustainable Planning Act 2009, ss.3, 8.

CASES:

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16

Australian Capital Holdings Pty Ltd v Mackay Regional Council [2008] QCA 157

Broad v Brisbane City Council [1986] 2 Qd R 317

Gillion Pty Ltd v Scenic Rime Regional Council & Ors [2014] QCA 21

Isgro Pty Ltd v Gold Coast City Council & Anor [2003] QPELR 414

Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46

Peet Flagstone City Pty Ltd v Logan City Council & Anor [2016] QPELR 538

COUNSEL:

A Skoien with D Purcell for the appellant in appeal 3364/18

B Job QC for the first respondent in appeal 3206/18 and respondent in appeal 3364/18

CL Hughes QC with M Batty for the first co-respondent by election in appeal 3206/18 and co-respondent in appeal 3364/18

J Brien for the second respondent in appeal 3206/18 and third co-respondent by election in appeal 3364/18

SOLICITORS:

N Leon, self-represented appellant in appeal 3206/18

Connor O'Meara for the appellant in appeal 3364/18

Minter Ellison Gold Coast for the first respondent in appeal 3206/18 and respondent in appeal 3364/18

ClarkeKann Lawyers for the first co-respondent by election in appeal 3206/18 and co-respondent in appeal 3364/18

Corrs Chambers Westgarth for the second respondent in appeal 3206/18 and third co-respondent by election in appeal 3364/18

Index

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

The land and surrounding locality......................................................................................................................................5

The proposed development................................................................................................................................................9

The statutory assessment and decision making framework........................................................................................11

The centres strategy...........................................................................................................................................................12

Will the proposed development constitute a new centre?............................................................................................22

Compliance with s.3.5.8.1(1)(b) of the Strategic framework.........................................................................................27

The Rural residential zone code.......................................................................................................................................32

Traffic...................................................................................................................................................................................39

Other issues raised by Navara..........................................................................................................................................52

Need.....................................................................................................................................................................................57

Exercise of the planning discretion..................................................................................................................................69

Conclusion...........................................................................................................................................................................73

Introduction

  1. [1]
    Citimark Properties Pty Ltd (Citimark) proposes to redevelop land situated at the corner of Beenleigh Redland Bay Road and California Creek Road, Cornubia.  The proposed redevelopment comprises three uses, namely, a Service station, Shop and Food and drink outlet.  In May 2017, Citimark made an impact assessable application to Council for an approval to authorise the redevelopment.  That application was approved, subject to conditions.  The approval is contained in a negotiated decision notice dated 12 July 2018[1].
  1. [2]
    The two proceedings before the Court are submitter appeals against Council’s approval. The first appeal in time[2] was commenced by an adjoining land owner, Navara Back Right Wheel Pty Ltd (Navara).  The second appeal[3] was commenced on behalf of Mr Wilhelm.  He has a commercial interest in a BP service station located some 200 metres to the south-west of the land.  It has frontage to the southern side of Beenleigh Redland Bay Road. 
  1. [3]
    There is substantial overlap in the issues raised on behalf of the submitter appellants. Both contend the development does not comply with Council’s planning scheme and, as a consequence, should be refused. In this respect, it is contended a number of departures from the adopted planning controls can be plainly identified. The departures are said to be the product of the application seeking approval to locate ‘Centre activities’ on land included in the Rural residential zone.  Both the submitter appellants contend the proposed Centre activities:
  1. (a)
    are not anticipated, or encouraged, in the Rural residential zone;
  1. (b)
    would, if approved, be located contrary to an express planning strategy, namely that Centre activities locate in designated centres;
  1. (c)
    would have unacceptable impacts on the character and amenity of the surrounding rural residential area, which includes Navara’s land; and
  1. (d)
    would have unacceptable traffic impacts. 
  1. [4]
    In addition to the above, Navara contends the application should be refused having regard to two matters arising out of the Chief Executive’s concurrence agency powers. In the Chief Executive’s concurrence agency response, a condition was imposed requiring the relocation of an existing bus stop[4].  Navara contends the location for the new bus stop, which is in front of its land on Beenleigh Redland Bay Road, is unsafe and will detrimentally impact upon privacy.  It is also asserted that Citimark, as part of the application process, was required to obtain Navara’s consent to relocate the bus stop.  No consent has been obtained. 
  1. [5]
    As against the above, Citimark contends the proposed development complies with the planning scheme. Alternatively, it urges the Court to adopt a flexible approach to the application of the planning scheme. It contends a rigid application of the document, in all of the circumstances, would not result in a decision that serves the public interest. A refusal, it says, would deny the public access to a facility which is needed, conveniently located, and will have no unacceptable impacts.
  1. [6]
    Consistent with its decision, Council contends the application should be approved. Central to this position is an acceptance that its planning scheme need not be rigidly applied, in the circumstances of this case, to achieve a balanced decision in the public interest.
  1. [7]
    Each appeal is a hearing anew[5].
  1. [8]
    It is for Citimark to establish each appeal against Council’s approval should be dismissed[6].

The land and surrounding locality

  1. [9]
    The land is rectangular in shape and has an area of 4,063 square metres[7].  It is presently improved with a single storey brick dwelling and a number of sheds[8].  Aerial photography[9], and the site inspection, confirm the house and sheds are surrounded by a number of items which clutter the land.  As Mr Job QC correctly submitted, the evidence demonstrates the house and sheds are surrounded by numerous vehicles, boats, sculptures and other ‘paraphernalia’.  The latter I took to be a reference to a range of exotic animals made of resin and positioned at various locations on the land[10]
  1. [10]
    As I have already said, the land is situated at the corner of Beenleigh Redland Bay Road and California Creek Road. The former is a state controlled four lane arterial road that carries approximately 22,000 vehicles per day past the land[11].  The latter is a two lane Council urban collector road carrying approximately 14,000 vehicles per day past the land[12].  The land has an existing cross-over to California Creek Road, and a secondary cross-over to Beenleigh Redland Bay Road[13].
  1. [11]
    The boundary of the land with frontage to California Creek Road is fenced, with gaps in the fence permitting vehicle access via a gravel driveway. Inside the fence line are trees, which can be seen in visual aids in evidence[14].
  1. [12]
    The boundary of the land with frontage to Beenleigh Redland Bay Road is fenced[15].  There is little by way of protection for the existing dwelling on the land from the impact of activity, and noise, from traffic on Beenleigh Redland Bay Road.  Mr Beyers, Citimark’s noise expert, said the amenity of the land, and area generally, is significantly impacted by the prevalence of road traffic noise[16]. The road noise described by Mr Beyers was consistent with my experience during the site inspection.
  1. [13]
    The land adjoins two properties: one to the north, and one to the east.
  1. [14]
    The adjoining land to the north has frontage to California Creek Road. Like the subject, it is a large rural residential sized lot. It is improved with a dwelling and a non-residential use0, namely a swim school[17]. The school is located towards the California Creek Road frontage of the adjoining land. The dwelling is setback further to the east.  The common boundary between the land and the property to the north is fenced, with vegetation at various widths along its length[18].
  1. [15]
    The adjoining land to the east is owned by Navara. It is an irregularly shaped large lot with dual frontage. It has frontage to Bromley Street to the north, and Beenleigh Redland Bay Road to the south. The latter frontage is the rear boundary of the land, which is fenced. Like the subject land, the amenity of the Navara land is impacted by road noise and activity from Beenleigh Redland Bay Road.
  1. [16]
    The Navara land is improved with a detached house, shed, a substantial driveway and pool. Given the impact of road noise from Beenleigh Redland Bay Road, it is unsurprising the house is located towards the Bromley Street frontage, from which access is taken. The house is located some 60 metres from the common boundary with the subject land[19], along which there is a dilapidated timber fence.  The western side of the common boundary (the subject land) is vegetated.  The eastern side of the common boundary (Navara land) was, at one stage vegetated, but it appears the vegetation has been removed in more recent times[20].
  1. [17]
    The evidence demonstrates that, when considered in its surrounding context, the land is located at an interface between rural residential development and low density residential development[21].  A strong feature of the character of that interface is the extent of road infrastructure, and the intersection of Beenleigh Redland Bay Road and California Creek Road.  This intersection is signalised and presents as a major break in travel paths in the road network[22]
  1. [18]
    I was assisted in this appeal by the evidence of two visual amenity experts, Mr McGowan and Mr Powell, who described the character of the surrounding locality in this way[23]:

16 Beyond the immediate vicinity of the site, the local area is characterised by detached residential housing at various densities (from small lot to rural-residential lot sizes).  This residential housing fabric is interrupted and framed by patches and corridors of green space, including California Creek Park (560 metres north-east of the subject land), and a large swathe of open space (some 430 metres south-west of the subject land) extending from Redland Beenleigh Road (sic) to the Logan River (south of the local area).

17 Both Beenleigh Redland Bay Road and California Creek Road (the main routes through the local area) are characterised by heavy traffic and a mix of land uses, including: a native plant nursery and shopping centre approximately 900-1,000 metres west of the subject land (refer Figure 29 at Appendix B); an early learning centre, service station (refer Figure 28 at Appendix B), and aged care facility (under construction) also to the west of the subject land (refer Figure 29 at Appendix B); a shopping centre and service station approximately 800 metres east of the subject land (refer Figure 32 and Figure 33 at Appendix B); and Chisholm Catholic College approximately 270 metres north of the subject land (refer Figure 31 at Appendix B).

  1. [19]
    As part of their assessment, the visual amenity experts agreed as to the location of the ‘visual catchment’ to be examined.  The catchment is described in paragraph 49 of their joint report as the ‘local area’, which is an area experienced from California Creek Road and Beenleigh Redland Bay Road. It is an elongated east-west visual catchment extending some 600 metres west, and 200 metres east, of the land. 
  1. [20]
    The visual amenity experts also agreed as to the character of the visual catchment. At paragraph 52 of their joint report they expressed the following point of agreement[24]:

Accordingly, the experts agree that the visual catchment conveys a mixed character with moderate to low visual values and low scenic amenity values.  Specifically, the experts agree that the immediate locality (the visual catchment node surrounding the main intersection near the subject land and incorporating the nearby BP service station and the aged care facility) does not have a strong sense of rural or semi-rural character, nor the scenic amenity values the might usually be associated with rural residential areas of development.”

  1. [21]
    Mr McGowan was invited to expand upon the above point in his evidence in chief.  In an exchange with Mr Batty of counsel, he said[25]:

Both the amenity and the character of this locality and the vicinity of the site in particular are heavily affected by … the busy roads, Beenleigh Redland Bay Road and Cornubia Creek Road and particularly the traffic and other infrastructure along them.  Both of those roads have fairly diverse character.  Beenleigh Redland Bay Road in particular has…a range of land uses including service stations, aged care facility, shopping centres and so on in reasonably close proximity to the site and that really – the experience along those roads is really the defining features of the …character of the area.  And in our joint report …we determine that the amenity of the area …is low to moderate.  There’s not strong scenic amenity and …particularly around the subject site there’s no clear rural residential character.

  1. [22]
    The evidence of Mr McGowan and Mr Powell is made good having regard to the extensive number of photographs contained in their joint report. 
  1. [23]
    The photographic evidence, assisted by an understanding and appreciation gained on the site inspection, demonstrates the character of the land, and surrounding locality, is fairly described as ‘mixed’.  The character is strongly influenced by the existence of the two busy roads and associated infrastructure, which combine to give the area a more urbanised character. The proposed development, in such a setting, will not present as incongruous. The setting is not a ‘semi-rural’ and/or a ‘bushland setting’.
  1. [24]
    Mr Buckley, the town planning witness called on behalf of Mr Wilhelm, made the point that the existence of the busy roads and associated infrastructure did not rob the area of its rural residential character.  This is true, to a point.  An element of the character of the area is the pattern of subdivision to the north, and east, of the land. It is very low density and consistent with a rural residential area.  However, the pattern of subdivision to the north and east is but one element of the character of the area. To focus unduly upon it as being a principal, or strong, indicator runs the risk that the visual catchment, which includes the land and adjoining intersection treatments, is ascribed a character it does not possess.
  1. [25]
    To assist in an assessment of the impact of the proposed development on local character, Citimark and Council referred to a decision of his Honour Judge Rackemann in Peet Flagstone City Pty Ltd v Logan City Council & Anor [2016] QPELR 538. At paragraphs [37] to [39] of the reasons for judgment he said:

[37] The development is not to be located within the heart of a sleepy rural residential laneway, but rather at the corner of a busy intersection of 2 significant traffic routes. Not only is the intersection busy, and likely to get busier, but has, as has already been noted, a number of design features, which distinguish it from other intersections and give it a character, including a night time character, which is more urban than the type of intersections more commonly found in rural or rural residential areas. Further, the development, including the service station and associated paved areas is, understandably, to be focused on that part of the site which is adjacent to the busy, lit intersection, with the balance to be undeveloped save for landscaping.

[38] As Mr Buckley attested, the character along traffic routes varies from place to place and the character at this location is influenced by the above matters. As Mr Buckley also attested, the impact of this proposal on character is quite different at this location than it would be on a site at the end of a rural or rural residential cul-de-sac accessing four 10 acre lots.

[39] I am satisfied that this particular proposed service station, in its particular context at a busy major intersection within a broader rural residential setting, will not present as particularly incongruous with, nor have any significant adverse impact on, the rural-residential or landscape character of the locality. In that regard, I accept the evidence of Mr Buckley and Mr Ovenden to the effect that the proposal would not only maintain amenity but, whilst not itself being of a rural residential character, would not detract from the existing or planned character of the surrounding area. I am also satisfied that it would not be inconsistent with the maintenance of appropriate landscape character along the traffic route.”

  1. [26]
    Whilst each case turns on its own facts, the above paragraphs extracted from the decision in Peet share a strong symmetry with the present case.  Here, like Peet, the land is not located within the heart of a sleepy rural residential laneway.  It is located at the corner of an intersection of two significant traffic routes.  The intersection is a busy one, and likely to get busier. It exhibits a number of features which distinguish it from a rural residential character.  The most notable feature is the design of the intersection itself, which is more urban than the type of intersection commonly found in a rural residential area.  The character of the intersection, and its contribution to the locality, creates a more urban character than one described as semi-rural, or a bushland setting.
  1. [27]
    For completeness, I would add that the area includes existing service stations. Four existing service stations were regarded by the town planning experts as being within the ‘vicinity[26], of the land, namely: (1) the BP located at 141-147 Beenleigh Redland Bay Road, in which Mr Wilhelm has an interest; (2) Caltex Woolworths further to the east of the land at 258 Beenleigh Redland Bay Road; (3) a Coles Express service station and a Caltex service station, both of which are situated on Bryants Road in the Loganholme local centre, north-west of the land. The service stations identified in item (3) are well removed from the land. The service stations in items (1) and (2) are of greater relevance from a character perspective.
  1. [28]
    Mr Ovenden, the town planning witness called by Council, went to some effort in his evidence to demonstrate that the Caltex service station identified in item (2) above has been landscaped to complement the existing character of the area[27]. The point made by Mr Ovenden was a simple one: a service station approval can be conditioned to ensure the development is landscaped in a manner that is sympathetic to, and consistent with, the local landscape character. I accept this evidence.  It is made good having regard to the photographs contained in Mr Ovenden’s further statement of evidence. 
  1. [29]
    The photographic evidence confirms that the Caltex Woolworths service station, and its landscaping, contribute to the landscape character of the locality. Both elements are part and parcel of existing character. As the photographs in the joint visual amenity expert report demonstrate, however[28], the locality is not dominated by landscaping and vegetation.  The character is strongly influenced by a mix of elements that are urban in nature, all of which combine to give the locality a feel that is more urbanised than a rural, semi-rural or bushland setting. 

The proposed development

  1. [30]
    Citimark seeks a development approval authorising the start of a new use on the land. The new use comprises three components, all of which are defined in Council’s planning scheme. The defined uses are Service station, Shop and Food and drink outlet. It is proposed the new use will operate 7 days per week, 24 hours a day[29].
  1. [31]
    The proposed built form comprises a rectangular, single storey building, and a canopy structure. The building has a gross floor area of 331m2.  It is located towards the north-western corner of the land, and is set back three metres from the northern boundary.  The Shop and Food and drink outlet are contained within the building.  An outdoor dining area is to be provided at the eastern end of the building.  The canopy structure is centrally located and sits above a single row of eight bowsers.  The maximum height of all built form will not exceed 8.5 metres above natural ground level. 
  1. [32]
    It is clear from the proposed amended landscaping plans that considerable attention has been given to the interface between the proposal and the existing residential uses to the north and east.
  1. [33]
    The amended landscaping plans reveal the following is proposed along the northern boundary of the land, namely: (1) a 2 metre high acoustic barrier for the full length of the common boundary; and (2) vegetative screening, comprising trees and shrubs, along the full length of the boundary, with trees reaching a minimum height of six metres.
  1. [34]
    The eastern edge of the built form has a variable setback to the eastern boundary. The setback is in the order of 12 to 20 metres. Within that large and variable setback distance[30], the amended landscaping plans reveal the following is proposed: (1) a 1.8 metre high acoustic barrier to the edge of the outdoor dining area; (2) a 1.5 metre high headlight barrier to the edge of a proposed car parking area; (3) a number of retained eucalyptus trees; (4) vegetative screening in the form of trees and scrubs; (5) a bio-retention basin, planted with sedges and grasses,  and surrounded by trees and scrubs mentioned above; and (6) ground cover planting, particularly for an easement running parallel to the boundary line.
  1. [35]
    The effect of the vegetative screening proposed to the eastern side of the land was touched upon by Mr Powell in his oral evidence. In response to a question from me[31], he said the proposed landscaping could provide a 100 per cent foliar screen to the east in a direct line of sight.  I accept Mr Powell’s evidence. The likelihood that the development will be screened from view to the east is further enhanced by the separation distance between the proposed built form, and the nearest built form on the Navara land. The separation distance is about 85 metres[32].
  1. [36]
    The amended landscaping plans also depict landscaping at the corner of Beenleigh Redland Bay Road and California Creek Road. The vegetation will include trees and scrubs. Street trees are also proposed in the road reserve. Each of these elements, in combination with the landscaping discussed above will, in my assessment, assist to integrate the development into the local area in the same way Mr Ovenden demonstrated with the Caltex service station located to the east.
  1. [37]
    As I have already said, the land is located on the corner of Beenleigh Redland Bay Road and California Creek Road. The proposed development provides a left in-left out access from both roads. The design of the access arrangements are depicted in Exhibits 39 and 40. The final arrangements are subject to detailed design. Twenty-seven (27) car parks are to be provided.
  1. [38]
    The development application was referred to the Chief Executive as a referral agency. A concurrence agency response, including conditions, was issued by the Chief Executive. Citimark takes no issue with that response, which includes, inter alia, a condition requiring a bus stop located on Beenleigh Redland Bay Road to be relocated further east. The bus stop will be in front of the land owned, and controlled, by Navara.

The statutory assessment and decision making framework

  1. [39]
    It is common ground the statutory assessment and decision making framework applicable to this appeal is prescribed by, inter alia, the PA[33].  I agree, and have approached that framework consistent with my decision in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16.  I have also taken into account the recent observations made about the PA by her Honour Judge Kefford in the decision of Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46.
  1. [40]
    As is clear from the terms of s.60(3) of the PA, the discretion to decide an impact assessable development application is broadly expressed. Citimark emphasised in its written submissions that this discretion is more flexible than its statutory predecessor, and is not constrained by a conflict and grounds test. This is true. It is, however, equally important to bear in mind that the exercise of the discretion, no matter which way it goes, is to be based on the assessment carried out under s.45(5) of the PA[34]. That assessment must be carried out against, inter alia, the assessment benchmarks.
  1. [41]
    The principal assessment benchmark against which the application is to be assessed is the Logan Planning Scheme 2015 (the planning scheme), version 4.0[35].  Section 1.1 of the planning scheme confirms the document has been prepared in accordance with the Sustainable Planning Act 2009 as a framework for managing development in a way that advances the purpose of that Act[36].  The purpose of that Act is to achieve ecological sustainability[37], which is defined in s.8.  The achievement of ecological sustainability, as defined in the Sustainable Planning Act 2009, is also a feature of the purpose of the PA.  It is expressed in s.3(2) of the PA in identical terms to that expressed in s.8 of the Sustainable Planning Act 2009. 
  1. [42]
    For the purposes of the planning scheme, the land[38]: (1) is identified in the Strategic framework as within the urban footprint, and adjacent to an existing strategic arterial road; (2) is included in the Park living precinct of the Rural residential zone; and (3) is not included in a Local plan area.
  1. [43]
    The submissions made on behalf of Mr Wilhelm emphasise particular provisions in the planning scheme, which are directed at ‘Centre activities’, and a requirement for them to locate in centre locations.  It is uncontroversial that the proposed uses are ‘Centre activities’ as defined in the planning scheme, and will not be located in a designated centre.
  1. [44]
    The point advanced on behalf of both submitter appellants is to the effect that the proposed development materially offends the centre provisions of the planning scheme, which embody an important forward planning strategy. It was emphasised that the strategy is to be treated as an expression of the public interest, in a planning sense, and ought not be readily departed from. Mr Skoien and Mr Purcell, who appeared for Mr Wilhelm, correctly pointed out that it is not a matter for the Court to gainsay an expression of public interest embodied in the adopted planning controls[39]
  1. [45]
    That the authorities[40] recognise centre hierarchy planning as an important forward planning tool in a planning scheme, which is not readily departed from, is accepted. It is undoubtedly an important part of any planning strategy. This does not however remove, or derogate from, the requirement for an assessment manager (or this Court on appeal) to examine the particular strategy in the particular planning scheme of relevance to a development application. The reason for this is obvious enough: it is wrong to assume all centre strategies are the same in that they discourage, save for a few limited exceptions, all centre activities locating anywhere other than designated centres. As is often the case with modern performance based planning schemes, there are many provisions that touch upon centres planning, both directly and indirectly. As a consequence, one needs to be careful to read a planning scheme as a whole before too readily jumping to a conclusion about the limits of such a strategy, and the development it encourages or discourages. The need to do so is particularly heightened where, as here, the conclusion urged by those who oppose a development proceeds on the footing the planning scheme contains a simple statement, if not absolute prescription, against a particular form, or type, of development locating out-of-centre.  The alleged non-compliance with the centre strategy was described by Mr Skoien and Mr Purcell here as ‘the most egregious type[41].
  1. [46]
    Given the significant reliance the submitter appellants place upon the centres planning strategy, it is necessary to first examine the planning scheme and determine the extent to which that strategy will be offended by the proposed development in the event it was approved.

The centres strategy

  1. [47]
    Council’s centres strategy is articulated in s.3.5 of the Strategic framework[42], which is one of 11 themes representing the policy intent of the planning scheme[43].
  1. [48]
    What is the centres strategy articulated in s.3.5 of the Strategic framework?
  1. [49]
    In the written submissions prepared by Mr Skoien and Mr Purcell, they described the articulated strategy in various terms. By way of example, they submitted:
  1. (a)
    at paragraph 4.41[44]:

In that premise, Wilhelm contends that the intention that ‘Centres activities’, other than ‘Accommodation activities’, be located in a centre, except in particular exceptional circumstances…”

  1. (b)
    at paragraph 7.1[45]:

As identified at paragraphs 4.29 to 4.43 above, there is a deliberate strategic planning intent evident in the Logan Scheme that new Centre activities uses, other than Accommodation uses, should not occur outside of a centre.

  1. (c)
    at paragraph 10.4(d)[46]:

“the proposed development would cut-across Council’s clear planning intent expressed in those relevant assessment benchmarks under the Logan Scheme, involving key strategies for…the placement of centre activities in identified centres, other than in particular specified circumstances (none of which are satisfied here the absence of any need for the proposed development and its out-of-centre location).”

  1. [50]
    Two of the three submissions set out above advance what might be described as a ‘general rule’, with an exception thereto.  The general rule being that Centre activities are to locate in ‘identified’ centres, save for Accommodation activities, or where the planning scheme provides otherwise. 
  1. [51]
    The planning scheme provides for a hierarchy and network of centres
  1. [52]
    Section 3.5.1 of the planning scheme forms part of the Strategic framework.[47]  It is a theme, titled ‘Centres[48].  Subsection (1) of the provision provides for a hierarchy and network of interrelated centres. It states:

(1) Logan has a hierarchy and network of interrelated centres comprising:

  1. (a)
    principal centres, being Beenleigh and Springwood that are the dominant centres in Logan;
  1. (b)
    major centres, being Browns Plains, Jimboomba, Logan Central, and Shailer Park that complement and are subordinate to the principal centres;
  1. (c)
    district centres, being Marsden, Meadowbrook, Park Ridge, and Underwood that complement and are subordinate to the principal centres and major centres;
  1. (d)
    local centres that complement and are subordinate to the principal centres, major centres and district centres;
  1. (e)
    neighbourhood centres that complement and are subordinate to the principal centres, major centres, district centres and local centres;
  1. (f)
    specialised centres that complement principal centres, major centres and district centres.”
  1. [53]
    The hierarchy and network of centres comprises 6 centre types. Each centre type is described as an element in the Strategic framework, namely in ss.3.5.2 to 3.5.7. The stated purpose of an ‘element[49] is to refine and further describe strategic outcomes. The elements, therefore, in ss.3.5.2 to 3.5.7 refine and further describe the strategic outcome expressed in s.3.5.1.
  1. [54]
    In addition to identifying a hierarchy and network of interrelated centres, s.3.5.1 provides a general description of centres under the planning scheme. Subsection (2) of the provision provides that centres are ‘vibrant, accessible and integrated places’.  It also provides that centres, inter alia: (1) are characterised by a high quality, well designed built environment; (2) have a built form consistent with the intended character of the centre; (3) are well serviced by public transport; (4) have a safe, convenient and comfortable pedestrian network; (5) support walking and cycling; (6) include a mix of uses; and (7) support the growth of tourism experiences.
  1. [55]
    It is clear from ss.3.5.2 to 3.5.7 that each of the centre types in the hierarchy have an intended role, function and scale. The role, function and scale of most centres can, in part, be assessed by reference to those centres to which it is subordinate. For example, s.3.5.2.1(1)(a) provides that principal centres are the dominant centres in Logan. This can be contrasted with s.3.5.3.1(1)(a), which provides that major centres are subordinate to principal centres.
  1. [56]
    The role, function and scale of an identified centre in the hierarchy can also be assessed having regard to the specific description given for each centre type and, where applicable, the specific intent for a particular centre. For example, in s.3.5.3.1(3), Jimboomba is described as a major rural centre. This can be contrasted with s.3.5.3.1(4) where Logan Central is described as Logan’s civic and cultural heart.
  1. [57]
    The planning scheme provision relied upon by the submitter appellants in support of the general rule, and exception, is s.3.5.8.1 of the Strategic framework. This provision, like s.3.5.1, forms part of the Centres theme. It states[50]:

3.5.8.1 Specific outcomes

(1) Centre activities, other than an Accommodation activity:

(a) must be:

  1. (i)
    located in a centre;
  1. (ii)
    consistent with the intent of the centre;
  1. (iii)
    at a scale compatible with the role and function of the centre in the centre hierarchy being:
  1. (A)
    principal centre, which is a dominant centre in Logan and services a main trade area over 100,000 people;
  1. (B)
    a major centre, which is subordinate to a principal centre and services a main trade area of approximately 40,000 to 50,000 people;
  1. (C)
    a district centre, which is subordinate to a principal centre and major centre and services a main trade area of approximately 15,000 to 20,000 people;
  1. (D)
    a local centre, which is subordinate to a principal centre, major centre and district centre and services a main trade area of approximately 8,000 to 10,000 people;
  1. (E)
    a neighbourhood centre, which is subordinate to a principal centre, major centre, district centre and local centre and services a main trade area of approximately 3,000 to 4,000 people;

(b) unless:

  1. (i)
    there is community need and economic need for the use;
  1. (ii)
    the use is of a scale compatible with its role and function in the centre hierarchy;
  1. (iii)
    the use does not have unacceptable adverse effects on any existing or planned centre;
  1. (iv)
    the use:
  1. (A)
    cannot be located in a principal centre, major centre, district centre, local centre, or neighbourhood centre;
  1. (B)
    is located in the specialised centre zone, or in an employment area where it cannot be located in a specialised centre; or
  1. (C)
    has a specific locational need requiring its location outside a centre and the use is located in accordance with the specific locational need.

(2) No new principal centre or major centre other than shown on SFM-01.00-Strategic framework map are created.”

  1. [58]
    Section 3.5.8.1(1)(a) has three cumulative requirements. It contemplates that Centre activities, save for Accommodation activities, must be: (1) located in centre; (2) consistent with the intent of the centre; and (3) at a scale compatible with the role and function of the centre in the hierarchy.
  1. [59]
    The first of three cumulative requirements requires this question to be examined: is the proposed development a Centre activity?
  1. [60]
    Centre activities’ is a defined activity group for the purposes of the planning scheme,[51] which states:

Column 1

Activity Group

Column 2
Uses

Centre activities

  • District centre activities
  • Local centre activities
  • Major centre activities
  • Neighbourhood centre activities
  • Principal centres activities
  1. [61]
    Centre activities are defined by reference to five further defined activity groups, which align with centre types stated in the hierarchy of centres in s.3.5.1(1). Each of the five defined activity groups are, in turn, defined by reference to a cluster of defined uses. The number of uses clustered in each group are significant and wide ranging. The uses are not limited to retail activities. For example, a Multiple dwelling, Home based business, and Outdoor sport and recreation are Centre activities.
  1. [62]
    It is common ground that the defined uses for which approval is sought by Citimark fall within a number of defined activity groups that are centre related. In particular, there was no contest that:
  1. (a)
    a Service station is included in the following defined activity groups – District centre activities, Local centre activities, Major centre activities and Principal centre activities;
  1. (b)
    a Shop is included in the following defined activity groups – District centre activities, Local centre activities, Major centre activities, Neighbourhood centre activities and Principal centre activities; and
  1. (c)
    a Food and drink outlet is included in the following defined activity groups – District centre activities, Local centre activities, Major centre activities, Neighbourhood centre activities and Principal centre activities.
  1. [63]
    Section 3.5.8.1(1)(a)(i) of the planning scheme requires Centre activities to locate in a ‘centre’.
  1. [64]
    What is a centre for the purposes of the planning scheme?
  1. [65]
    The planning scheme does not define ‘centre’, ‘a centre’ or ‘the centre’. 
  1. [66]
    Mr Skoien and Mr Purcell submitted the word ‘centre’ should be given its ordinary meaning, consistent with the context in which it appears[52].  They submitted the context comes from a range of provisions, including, but not limited to those in ss.3.5.1 to 3.5.7 of the planning scheme. I agree.
  1. [67]
    As a matter of context, s.3.5.8.1 appears in a part of the Strategic framework titled ‘Centres’.  Within that part of the Strategic framework (s.3.5), a hierarchy and network of centres is identified at s.3.5.1(1). Each of these centres have an identified role and function, which is sought to be protected by s.3.5.8.1(1)(a)(ii) and (iii). The intended role, function and scale of each centre type is detailed in ss.3.5.2 to s.3.5.7. In some, but not all cases, the detailed description of the role, function and scale descends to particular centres identified at specific locations.  All of this context is reinforced in the Centre zone code, particularly s.6.2.1.2(3), which contains the Overall outcomes for the zone where Centre activities are directed to locate[53].
  1. [68]
    The centres identified in s.3.5.1(1) are not the only centres envisaged in the planning scheme area. Section 3.5.8.1(1)(b) suggests additional centres may be approved, subject to meeting specific requirements.
  1. [69]
    Given the above context, in my view, the word ‘centre’ in the planning scheme ought be understood to mean a centre identified in s.3.5.1(1), and described in ss.3.5.2 to 3.5.7. It should also include a new centre, which is approved in a manner anticipated by s.3.5.8.1(1)(b).  A centre of this type, which will likely exclude a principal and major centre by operation of s.3.5.8.1(2), will be described by reference to ss.3.5.4 to 3.5.7. I was not referred to any specific part of the planning scheme that suggests a different meaning should be adopted for the word ‘centre’ in the circumstances.
  1. [70]
    Mr Skoien and Mr Purcell submitted the word ‘centre’ should be construed as ‘a place where a number of activities are conducted[54]. I do not accept the word centre, when appreciated in its context in the planning scheme, should be ascribed this broad meaning, which does not reflect relevant context.
  1. [71]
    Further, if the word ‘centre’ was to be given the broad meaning contended for, without the context to which I have referred, a number of difficulties arise. Take s.3.5.8.1(1)(a) for example. If it is assumed a proposed development includes a Centre activity, which should be located in a centre, the assessment against subsection (1)(a) makes little sense if compliance can be demonstrated by locating the use other than in a centre that I have described in paragraph [69] above. Compliance could be demonstrated by locating the use in any development that fits the broad description of ‘centre’, even if it is not one of the centres identified in ss.3.5.1 to 3.5.7, or approved under s.3.5.8.1(1)(b). This, in my view, is an indicator that the broad meaning to which Mr Skoien and Mr Purcell ascribed to ‘centre’ is not to be accepted as the preferred construction.
  1. [72]
    The submissions advanced on behalf of Mr Wilhelm recognise there is an exception to the general rule. The case advanced on his behalf is to the effect that the exception is stated in s.3.5.8.1(1)(b) of the planning scheme, which is set out above. The exception is said to be engaged where the four cumulative elements of the provision are demonstrated by a proponent who seeks approval for a Centre activity located outside of a centre. The provision requires such a proponent to demonstrate: (1) a community need and economic need for the use; (2) the use is of a scale compatible with its role and function in the centre hierarchy; (3) the use does not have an unacceptable adverse effect on any existing or planned centre; and (4) the use has a particular locational requirement.
  1. [73]
    The point made on behalf of Mr Wilhelm was to the effect that s.3.5.8.1(1) of the planning scheme represents an unexceptional and deliberate planning policy to create, maintain and protect an identified hierarchy of centres, with a limited exception. It was said the development does not comply with the rule, and limited exception to it, thereby giving rise to the most egregious of non-compliances with the planning scheme.
  1. [74]
    If an examination of the centres strategy ceased at this point, as the primary submissions prepared by Mr Skoien and Mr Purcell did, one would be forgiven for thinking the strategy is a simple one, with an equally clear exception. That is, however, not the full story. The strategy needs to be read, in concert, with other parts of the planning scheme that admit of uses, which are Centre activities, locating in out-of-centre locations without having to comply with s.3.5.8.1(1). There are three components of the planning scheme that must be considered in this context: (1) the defined activity groups; (2) the zone codes: and (3) all of s.3.5 of the Strategic framework.
  1. [75]
    As I have said, the planning scheme clusters defined uses into defined activity groups[55]. Service station, Shop and Food and drink outlet are defined uses in the planning scheme, and are included in a number of Centre activity groups. Those groups are, in turn, defined as Centre activities. That is not, however, the only defined activity group in which these defined uses are included. Shop and Food and drink outlet are included in the ‘Mixed use activities[56] and ‘Retail activities[57] defined activity groups. Service station is also included in the ‘Commercial activities[58] and ‘Mixed use activities[59] defined activity groups.
  1. [76]
    The inclusion of the three defined uses for which approval is sought in a number of defined activity groups is an indicator the planning scheme contemplates that uses may occur in a number of different land use contexts. If one takes the defined activity groups applicable to Shop and Food and drink outlet, the activity groups suggest the planning scheme anticipates the uses may occur in a centre, mixed use, or retail context. The defined activity groups applicable to a Service station anticipate that the use may occur in a centre, or mixed use context.
  1. [77]
    That there is no provision of the planning scheme to which I was referred providing for any one of the defined activity groups to be treated as dominant, or as prevailing over any other defined activity group, suggests the context in which a use is proposed is a matter of import in this planning scheme. It also suggests that each of the defined uses here are anticipated in a centre context, and out-of-centre context. That is, the uses are anticipated within, and outside of, the centres hierarchy, subject to the context in which they are proposed.
  1. [78]
    That context is important in this planning scheme can be demonstrated by one example. It requires reference to the second part of the planning scheme that is to be considered, namely the zone codes.
  1. [79]
    The particular example arises in the Mixed use zone code.
  1. [80]
    In the Mixed use zone, save for one specific exception that does not apply here, Centre activities are not anticipated in the zone. This is because it is not the Centre or Specialised centre zone. If, as the submitter appellants contend, a proposal to develop a Service station, Shop and Food and drink outlet is proposed on land in the Mixed use zone, it is discouraged by s.3.5.8.1(1)(a), and must comply with subsection (1)(b) of the same provision. If there is non-compliance with subsection (1)(b), the submitter appellants contend an approval would be contrary to an express planning strategy in the planning scheme, thereby giving rise to a non-compliance of the most egregious kind.
  1. [81]
    This position has some superficial attraction to it, until it is appreciated that Overall outcome s.6.2.10.2(3)(a)(i)(A)[60] of the Mixed use zone code encourages ‘Mixed use activities’ in the zone, which, by definition, include a Service station, Shop and Food and drink outlet.  Not only are the three Centre activities encouraged in the Mixed use zone, it is also to be noted there is no provision in the zone code that requires compliance to be demonstrated with s.3.5.8.1 of the Strategic framework.  This is a clear example where defined uses can appropriately exist within, and outside of, the identified centres hierarchy.
  1. [82]
    That uses can occur within, or outside of, a centre hierarchy is unremarkable when examined as a matter of planning principle and practice. As Mr Perkins said, there is no point of principle or practice which requires Service stations to locate only in centres. It was, in truth, common ground between the town planning witnesses that Service stations can be located in, and out, of centre locations. They are location flexible. One particular location where they are provided out-of-centre is on busy roads, such as here, to meet the public’s need for fuel and associated items.
  1. [83]
    The Mixed use zone code is not an isolated example where uses, which are defined as Centre activities, are anticipated in an out-of-centre location, and do not appear to be required to comply with s.3.5.8.1 of the Strategic framework.
  1. [84]
    In the Rural residential zone, the stated local government purpose of the zone code is to provide ‘predominantly’ for Dwelling houses on larger lots[61]. That Dwelling houses are to predominate in the zone does not exclude the prospect of non-residential uses in the zone. This is confirmed by Overall outcome (3)(e)(i) and Performance outcome PO1 of the code. These provisions of the zone code anticipate that land uses in the Park living precinct comprise, inter alia, Emergency services, Home based business or Sales office. Each of these uses are Centre activities. There is no part of the zone code that appears to require those uses to satisfy s.3.5.8.1 in the Strategic framework. This, again, is a recognition of the unremarkable, namely that Centre activities can exist in the zone outside of the centre hierarchy.
  1. [85]
    When attention is given to each of the zone codes in the planning scheme, it can be seen that Shop and Food and drink outlet are anticipated in 10 of the 15 zones, namely the: (1) Centre zone[62]; (2) Community facilities zone[63]; (3) Low density residential zone[64]; (4) Low impact industry zone[65]; (5) Low-medium density residential zone[66]; (6) Medium density residential zone[67]; (7) Medium impact industry zone[68]; (8) Mixed-use zone[69]; (9) Recreation and open space zone[70]; and (10) Specialised centre zone[71].   A Service Station is anticipated in three zones, namely the Centre zone[72], Specialised centre zone[73], and the Mixed use zone[74].
  1. [86]
    Each of the zone codes share a similar structure to the Rural residential zone code. The uses anticipated in the zone are identified in the Overall outcomes, which are complemented by a Performance outcome in the code. I was not directed to any zone code in the planning scheme that expressly constrains uses that are Centre activities and anticipated in the zone by reference to the test prescribed in s.3.5.8.1 of the planning scheme. This is a matter of some importance.
  1. [87]
    It can be seen in some zone codes that a test is prescribed to limit uses that are Centre activities, and the limitations are different to the test prescribed in s.3.5.8.1. For example, Shop and Food and drink outlets in some zones are to be small scale. This, in my view, is a further indicator that uses anticipated in a centre can also be located in a zone and comfortably exist outside of the centre hierarchy.
  1. [88]
    The examination of the planning scheme set out above raises the following question for consideration: when does s.3.5.8.1 of the planning scheme apply?
  1. [89]
    The question, in my view, is answered by: (1) the heading to the provision; and (2) the terms of the provision itself.
  1. [90]
    The heading to s.3.5.8.1, which is to be read as forming part of the provision[75], states ‘Element – New and expanded centres’. This phrase is not defined. It should be given its ordinary meaning, informed by the context in which it appears. The ordinary meaning, understood in context, is simple enough. The heading is intended to capture proposals for a ‘new centre’ and/or an ‘expanded centre’.  As I have already said, a centre ought be understood to mean a centre identified in s.3.5.1(1) and described in ss.3.5.2 to 3.5.7, or a centre approved under s.3.5.8.1(1)(b). 
  1. [91]
    That s.3.5.8.1 applies to new, and or expanded centres is confirmed by the provision itself. Subsection (2) expressly discourages new principal and major centres in the planning scheme area. That is, it discourages particular types of new centres.
  1. [92]
    The construction is also confirmed by the structure of s.3.5.8.1(1)(a) and (b).
  1. [93]
    Subsection (1)(a)(i) of the provision requires a proposal for a new Centre activity (other than Accommodation activities) to locate in centre, subject to two requirements. The two requirements are expressed in subsections (a)(ii) and (iii). They are intended to ensure the proposed new Centre activity does not disrupt the centre hierarchy. It can be disrupted where a centre is expanded through the addition of a new centre activity, which causes it to exceed its intended role and function in the hierarchy.
  1. [94]
    Subsection 1(b) applies to Centre activities that fall into one of five categories, namely:
  1. (a)
    Centre activities proposed in an existing centre identified in s.3.5.1(1), and do not comply with either, or both of, ss.3.5.8.1(1)(a)(ii) and (iii);
  1. (b)
    Centre activities proposed in an existing centre approved under s.3.5.8.1(1)(b), and do not comply with either, or both of, ss.3.5.8.1(1)(a)(ii) and (iii);
  1. (c)
    Centre activities proposed in an out-of-centre location, and if approved, would have the effect of expanding an existing centre identified in s.3.5.1(1);
  1. (d)
    Centre activities proposed in an out-of-centre location, and if approved, would have the effect of expanding an existing centre approved under s.3.5.8.1(1)(b); and
  1. (e)
    Centre activities that, if approved, would create a new centre in addition to those identified in s.3.5.1(1), or approved under s.3.5.8.1(1)(b).
  1. [95]
    Central to each of the five categories above is the proposition that the proposed development involves Centre activities that create a new centre, or expand an existing centre, be it one identified in s.3.5.1(1), or approved under s.3.5.8.1(1)(b).  When considered in this light, it is necessary to determine, as a threshold issue, whether development proposed, which involves uses that fall within a number of defined activity groups, including Centre activities, creates a new centre or, expands an existing centre.
  1. [96]
    If the threshold question is answered in the negative, s.3.5.8.1 of the planning scheme, in my view, has little work to do. The strategy set out therein is of no direct application. Put another way, the Centres planning strategy is not engaged. That is not, however, the end of the matter. It is necessary to turn to the balance of the planning scheme for guidance. Here, that guidance is to be taken principally from the zone code, which anticipates only a limited range of non-residential uses in the zone. The range of uses do not expressly anticipate a Service station, Shop and Food and drink outlet.
  1. [97]
    In limiting s.3.5.8.1 in its operation to the centres context I have discussed above, it permits the zone codes to work harmoniously with it. If it were otherwise, it could result in the absurd situation that the planning scheme is taken to turn its face against a use that is expressly anticipated in a zone. This would be the result that flows from the submitter appellants’ cases where a proposed use, like here, has the misfortune of being included in one of a number of defined activity groups, including Centre activities, but not Accommodation activities. The absurd outcome is a strong indicator that the general rule, and its exception, as advanced by the submitter appellants is not as absolute, or one dimensional, as they suggest.
  1. [98]
    As a consequence of the above, it is, in my view, necessary to examine which, if any, of the five categories identified in paragraph [94] above applies in this case. This task is simplified by reason that it is only suggested the development will constitute a new centre. That the case is limited in this way is unsurprising given the land is well removed from any existing centre, be it one identified in s.3.5.1(1), or approved under s.3.5.8.1(1)(b)). This has the consequence that only subparagraph [94](e) above could be said to apply in the circumstances of this case.
  1. [99]
    It is contended on behalf of Mr Wilhelm that the proposed development will create a new centre. The reason for this was articulated by Mr Skoien and Mr Purcell as follows[76]:

In this case, the Service Station, Shop and Food and Drink Outlet are all “centre activities”, and their establishment together on the one integrated site could only be regarded as constituting a “new centre” – in breach of the qualified prohibition in section 3.5.8.1.”

  1. [100]
    Putting to one side that s.3.5.8.1 of the planning scheme does not ‘prohibit’ development, the submission above requires this question to be determined: will the proposal constitute a new centre for the purposes of the planning scheme?
  1. [101]
    I will turn to deal with this question directly.

Will the proposed development constitute a new centre?

  1. [102]
    Citimark does not accept the proposed development will, if approved, constitute a new centre for the purposes of the planning scheme.
  1. [103]
    This position was foreshadowed by Mr Hughes QC in his opening[77].  It was also the subject of evidence. Both Council and Citimark led evidence in support of the proposition that the proposed development will not constitute a new centre in its own right[78]. The matter was also the subject of a specific written submission. Mr Hughes QC and Mr Batty in their written outline[79] submitted the proposed development would not, as foreshadowed in the opening, constitute a new centre. 
  1. [104]
    After a detailed review of the material, including the transcript, I was unable to identify where, if at all, Navara and Wilhelm put in issue that the development would constitute a new centre in its own right. I was also unable to identify any evidence, or submission, that was advanced by Navara or Mr Wilhelm in response to the point made by Citimark. As a consequence, I invited further submissions from the parties. Further submissions were provided on behalf of Navara and Mr Wilhelm.
  1. [105]
    With respect to Navara, the further written submissions received did not clarify its position. That said, I will proceed on the footing that the position adopted by Navara is the same as that adopted by Mr Wilhelm.
  1. [106]
    The further submissions received on behalf of Mr Wilhelm contend the proposed development ‘could only be regarded as constituting a new centre[80]. The position was put robustly, but I was not directed to any document where the issue was raised in these terms. Rather, Mr Skoien and Mr Purcell boldly submitted the point was ‘inherent’ in the alleged non-compliance with s.3.5.8.1(1) of the planning scheme[81].
  1. [107]
    I have serious misgivings as to whether the submitter appellants alleged the proposed development would constitute a new centre for the purposes of s.3.5.8.1 of the planning scheme. In my view, the further submissions received suggest the point had been overlooked. Indeed, it appears as if both parties proceeded on the assumption that the identification of Centre activities was sufficient to engage s.3.5.8.1. In any event, neither Council nor Citimark objected to the further submissions made on behalf of the submitter appellants. I will therefore proceed to determine whether the proposed development will create a new centre for the purposes of the planning scheme.
  1. [108]
    At paragraph 19 of their further written submissions, Mr Skoien and Mr Purcell advanced this proposition[82]:

…the question of whether the proposed development would be a new or expanded “centre” is a question of construction and not a matter for evidence. It is not disputed that, as a matter of fact, all of the components of the proposed development constitute “centre activities” under the Logan Scheme. Hence, the matter to be determined is whether the establishment of those “centre activities” would comply with the qualified prohibition in section 3.5.8.1 of the Logan Scheme, as properly construed.

  1. [109]
    As I understand the submission advanced, it is contended the proposed development is, as a matter of construction, a new centre. This is said to follow because the development comprises three Centre activities.
  1. [110]
    The submission set out above is, in my view, too simplistic. It ignores relevant context in the planning scheme. I have dealt with the relevant context above. The context suggests the word ‘centre’ should be given the meaning I have ascribed to it in paragraph [69]. That meaning is not limited to the identification of a mix of Centre activities. The word ‘centre’ ought be understood to mean a centre identified in s.3.5.1(1) and described in ss.3.5.2 to 3.5.7. It should also include a new centre, which is approved in a manner anticipated by s.3.5.8.1(1)(b).
  1. [111]
    In my view, to characterise the proposed development as a new centre, requires it to be examined against ss.3.5.1 to 3.5.7 of the planning scheme. This examination will expose whether the development is to be regarded as a new centre, and, if so: (1) what type of centre is proposed; and (2) where in the hierarchy that centre will sit in terms of its role, function and scale.
  1. [112]
    The two particular matters set out above will not be determined by simply identifying a mix of three centre activities in an integrated development. A mix of uses in an integrated development will be one indicator of a centre. This is clear enough from the cumulative parts[83] of s.3.5.1(2), which states:

(2) Centres are vibrant, accessible and integrated places that:

(a) are characterised by a high quality, well designed built environment;

(b) have a built form consistent with the intended character of the centre;

(c) utilise land efficiently;

(d) are well serviced by public transport;

(e) have a safe, convenient and comfortable pedestrian network;

(f) support walking and cycling;

(g) include a mix of uses;

(h) support the growth of tourism experiences.” (emphasis added)

  1. [113]
    A mix of uses is a characteristic of a centre. As s.3.5.1(2) however demonstrates, this is but one of eight characteristics. That a mix of uses is one of a number of characteristics of a centre is further confirmed when consideration is given to ss.3.5.2 to 3.5.7 of the Strategic framework.
  1. [114]
    Each specific type of centre in the hierarchy is described in ss.3.5.2 to 3.5.7. Like the general description referred to in s.3.5.1(2) above, each specific description recognises a centre exhibits multiple characteristics. One of those characteristics is a mix of uses, but it is not the only characteristic.
  1. [115]
    In my view, ss.3.5.1 to 3.5.7 recognise that a mix of centre activities may comprise a centre. It is a starting point. It does not however mark the finish. The provisions require consideration to be given of a number of elements of proposed development to determine if it constitutes a ‘centre’.
  1. [116]
    Having regard to the development proposed, I am satisfied, if approved, it would not be a centre of the kind anticipated by ss.3.5.1 to 3.5.7 of the planning scheme. Nor would it be a new centre for the purposes of s.3.5.8.1 of the planning scheme.
  1. [117]
    This is supported by the planning scheme, and the evidence.
  1. [118]
    With respect to the planning scheme, it provides for, and anticipates, Service stations, Shops and Food and drink outlets in zones that are in-centre locations, and out-of-centre locations. That they may occur in an out-of-centre location, in an integrated development, is an indicator that the uses may sit outside of the hierarchy and do not necessarily constitute a centre. This suggests, as I have already said, that context is a matter of importance for the planning scheme. It is not axiomatic that the three defined uses, which are Centre activities, will constitute a centre. One must examine those uses more closely having regard to the planning scheme and what it intends a centre to be.
  1. [119]
    Turning to the evidence, Mr Perkins and Mr Ovenden addressed whether the proposed development would constitute a new centre. Mr Buckley did not deal with the issue directly.
  1. [120]
    At paragraph 53 of the town planning joint report, Mr Perkins dealt with the issue in the context of s.3.5.8.1(1)(b)(ii) of the planning scheme. This provision requires a proponent for out-of-centre development to demonstrate the proposed use is of a scale which is compatible with its role in the centre hierarchy. In this context, Mr Perkins said[84]

The proposed development sits below and outside the centre hierarchy.  The GFA of the Service station/Shop and Food and drink outlet components is 189m2 and 142m2 (plus 20m2 outdoor dining area) respectively.  These are small scale, typical of modern Service station based ancillary retail activities, and smaller than the scale of facility likely to be found in a Neighbourhood centre.  The Service station component has four fuel bowsers/stations, again typical of a modern suburban Service station.

  1. [121]
    With the benefit of Mr Perkins’ views, Mr Ovenden at paragraph 69 of the same joint report said:

The proposed service station, ancillary shop and fast food is of a contemporary design and is of a relatively small scale.  It’s location ‘out of centre’ will not undermine or compromise the centres hierarchy in this part of the City.  In fact, the combination of service station, ancillary retail and fast food (at the scale proposed) does not, in my opinion, constitute a centre in its own right.  While the uses collectively or individually have a role to play in centres (other than service stations in a neighbourhood centre), equally they play a role in meeting legitimate community needs in ‘out of centre’ locations.

  1. [122]
    As I understood the evidence of Mr Perkins and Mr Ovenden, the point made was one of scale. That is, both of the town planners considered the proposed development as sitting outside the centre hierarchy because it was small in scale. That is to say, it would be smaller than the scale of facilities contemplated at the lowest level of the hierarchy in s.3.5.1 of the planning scheme. The lowest centre in the hierarchy is a neighbourhood centre.
  1. [123]
    This point is made good having regard to a number of zone codes in the planning scheme. In version 4 of the planning scheme, a Shop and Food and drink outlet are anticipated in 8 zones, excluding the Centre zone or Specialised centre zone. The extent to which the uses are anticipated in these 8 zones is constrained. The nature of the constraint is identified in each of the zone codes.
  1. [124]
    If the Low density residential zone code is taken as a specific example, it can be seen[85] from s.6.2.5.2(3)(e)(i)(B), (g)(i)(B), (h)(i)(B) and (i)(i)(B) that a small scale Food and drink outlet (excluding a drive-thru) and a small scale Shop are anticipated uses in various precincts of the zone.  Performance outcomes, namely PO11 and PO12, in the zone code confirm these uses are to be small scale.  The accompanying Acceptable outcomes prescribe a maximum gross floor area of 200 m2 for each use.
  1. [125]
    That a small scale Shop and Fast food outlet are centre activities, but anticipated in a non-centre zone is consistent with the approach adopted by Mr Perkins and Mr Ovenden. It is a clear indicator the planning scheme recognises that particular uses can sit outside of the hierarchy of centres, where small in scale. Here, the gross floor area of the shop is 189 m2.  The gross floor area of the Food and drink outlet is 142m2.  Each use is small in scale and can, as Mr Perkins and Mr Ovenden said, sit outside the hierarchy of centres. 
  1. [126]
    I would also add that, even if it was assumed the development is a centre, it is difficult to characterise it by reference to ss.3.5.2 to 3.5.7 of the planning scheme. I specifically asked for the submissions about this point. Mr Skoien and Mr Purcell provided no particular assistance.  They submitted there was no requirement for Mr Wilhelm to identify which centre type, if any, would properly describe the proposed development. It was said there was no onus on Mr Wilhelm to do so. 
  1. [127]
    In any event, ss.3.5.2 to 3.5.7 describe the types of centres in the hierarchy in the planning scheme area. The lowest level of centre in the hierarchy where a Service station is anticipated is a Local centre. Section 3.5.5.1 describes a Local centre as, amongst other things, ‘serving weekly convenience needs’.  It is also described as a centre that may include a single full-line supermarket that is supported by a range of small scale specialty shops and services.  This description is complimented by the Centre zone code.
  1. [128]
    Performance outcome PO3[86] of the Centre zone code applies to Local centres. The provision requires development in such a centre to provide a mix of Retail activities that are, inter alia, of an appropriate size relative to the role of the Local centre in the hierarchy. An Acceptable outcome is provided for PO3. It states that development for a Shop, being a supermarket, comprises a maximum gross floor area of 4,000m2.
  1. [129]
    The proposed development is not a Local centre for the purposes of s.3.5.5.1(1). Whilst it includes Local centre activities, those activities, as a matter of ordinary experience, are unlikely to serve weekly convenience needs. They are too small. The proposed development is not of a scale that would be fairly equated to a single full-line supermarket or a shop with a 4,000m2 gross floor area serving weekly convenience shopping needs. 
  1. [130]
    As Mr Perkins and Mr Ovenden opined, the scale of the proposed development is smaller than that anticipated as a centre in the identified hierarchy of centres. I agree. This is a strong indicator the proposed development is not a centre for the purposes of the planning scheme.
  1. [131]
    Mr Buckley, the town planning witness called on behalf of Mr Wilhelm did not, as far as I understood his evidence, suggest the proposed development was a centre. I was not directed to any part of his evidence where he expressed such an opinion. I was not directed to any part of his evidence where he joined issue with an opinion expressed by Mr Perkins, or Mr Ovenden, on this point. I also note that I was not referred to any part of the evidence where the opinions of Mr Perkins and Mr Ovenden were challenged on this point.
  1. [132]
    Accordingly, I am satisfied Citimark has established the proposed development is not a centre for the purposes of s.3.5.8.1 of the planning scheme. It is a development that comprises three activities which are anticipated in, and out of, centre. That they are proposed out-of-centre is unremarkable given the structure of the planning scheme.
  1. [133]
    The structure of the planning scheme is such that, here, the zoning provisions take on particular importance. This is because the development involves the introduction of non-residential uses into a Rural residential zone. The consistency or otherwise with this zone code is considered later in these reasons for judgment.

Compliance with s.3.5.8.1(1)(b) of the Strategic framework 

  1. [134]
    If, contrary to my findings above, it is assumed s.3.5.8.1(1) of the planning scheme has direct application, Citimark has established the proposed development substantially complies with the provision.
  1. [135]
    Section 3.5.8.1(1)(b)(i) requires a community need and economic need to be demonstrated for the ‘use’.  The development application seeks approval to start a new use, namely a Service station, Shop and Food and drink outlet. 
  1. [136]
    For reasons given below, I am satisfied there is a community and economic need for the proposed Service station. The evidence does not however demonstrate there is an economic need for the Shop and Food and drink outlet. The evidence also falls short in demonstrating there is an economic need for the development to operate 24 hours a day.
  1. [137]
    Section 3.5.8.1(1)(b)(ii) requires the use to be of a scale compatible with its role and function in the centre hierarchy. The extensive reasons for refusal notified by Mr Wilhelm did not put this provision in issue[87].  This is confirmed in footnote 77 of the written submissions prepared by Mr Skoien and Mr Purcell[88]
  1. [138]
    Section 3.5.8.1(1)(b)(iii) requires a proponent to demonstrate the proposed use will have no unacceptable adverse effect on an existing, or planned, centre. Mr Wilhelm’s amended reasons for refusal alleged non-compliance with this provision. He did not however identify the centres, be they planned or existing, which are relied upon to allege the non-compliance[89].
  1. [139]
    If the trade area, as I have accepted it to be, is examined with a zoning map, one existing centre can be identified in that area. It is the land included in the Centre zone to the south-east of the subject. The Centre zone land is located at the corner of Beenleigh Redland Bay Road and Logandale Boulevard. This location was described in the need joint report as the Cornubia local centre[90].  This centre does not include a Service station. An existing Caltex service station is located to the immediate north on the opposite side of Beenleigh Redland Bay Road. It is in an out-of-centre location.
  1. [140]
    Mr Duane opined there is limited, if any, land available in the Cornubia local centre for a Service station[91].  This was confirmed in his further statement of evidence which was marked Exhibit 14[92].  Mr Brown, and Mr Norling did not record any disagreement with the opinion expressed by Mr Duane in the joint report.  The point is made good having regard to map 7 of the need joint report[93].
  1. [141]
    Mr Leyshon did not consider it likely the proposed development, if approved, would have a material adverse effect on existing and proposed centres in, or adjacent, to the trade area.  This opinion was criticised by Mr Skoien and Mr Purcell in their written submissions as[94]: (1) ‘entirely uncompelling’; (2) a ‘bare assertion’; (3) being ‘unsupported by any probative evidence’; and (4) incapable of being testing in an objective way.  I do not accept this is a fair criticism of Mr Leyshon’s evidence. 
  1. [142]
    The opinion expressed by Mr Leyshon should not be read in isolation, as Mr Skoien and Mr Purcell invite the Court to do. The opinion follows a number of paragraphs of the joint report attributed to Mr Duane in relation to the same topic, about which Mr Leyshon appears to agree.  It is also to be observed that the opinion is expressed by Mr Leyshon in section 8 of the report, which follows an extensive body of analysis of the issues in dispute, consuming some 69 pages.  The analysis set out therein includes an examination of the Cornubia Local centre and an acknowledgement of the surrounding facilities, which includes the existing Caltex service station located on the northern side of Beenleigh Redland Bay Road. 
  1. [143]
    When considered in the context of the joint report read as a whole, I do not accept it is fair to characterise Mr Leyshon’s opinion at paragraph 177 of the need joint report, insofar as it applies to the Cornubia local centre as uncompelling, or a bare assertion. The opinion is, in my view, sound. It is supported by the evidence of Mr Duane, which is discussed above.  In addition, it is to be noted that neither Mr Brown, nor Mr Norling expressed their disagreement with paragraph 177 of the need joint report insofar as it relates to the Cornubia local centre. 
  1. [144]
    The absence of a contrary view from Mr Norling or Mr Brown is significant. The Court[95] made an order requiring the experts to participate in a joint meeting, and prepare joint reports.  The order required the joint reports to identify matters about which the experts agreed, and disagreed.  The report was to identify any reasons for disagreement.  I find it difficult to accept that two experienced experts, such as Mr Norling and Mr Brown, did not understand the requirements of the order, or, alternatively, chose to remain silent about a point of disagreement.  To conclude otherwise would ignore the confirmation both experts gave at paragraph 184 of the joint report. 
  1. [145]
    The point of disagreement of relevance attributed to Mr Norling and Mr Brown at paragraph 179 of the need joint report states:

JN and MB say that approval of the proposed development on the subject site would remove a key use from being considered as an anchor to a redevelopment of the residential housing on the Loganholme Local Centre.  It would be likely to delay and frustrate the development of this site as intended by the Logan Planning Scheme 2015.

  1. [146]
    Mr Brown and Mr Norling are of the opinion the proposed development will have an adverse impact on the Loganholme local centre. This centre is located to the west of the land, in the primary west sector of the trade area identified by Mr Duane and Mr Leyshon[96].  It uncontroversial this centre is developed in part.  Map 6 of the need joint report reveals that the eastern part of the centre is developed with a Woolworths supermarket based facility, and an at-grade carpark.  This development turns its back on the land to the west. 
  1. [147]
    The land to the west of the existing Loganholme local centre comprises 23 lots and is included in the Centre zone. It is presently developed with residential uses. At paragraph 112(a) of the joint report, Mr Brown and Mr Norling expressed the following opinion in relation to this land:

JN and MB say it is also relevant to identify the capacity of the relevant planning schemes to accommodate service stations within or close to the defined trade areas.  These include the following:

(a) The Loganholme Local Centre at the intersection of Beenleigh – Redland Bay and Bryants Road contains 23 allotments within the Local Centre zone that are occupied by residential houses.   These lots immediately adjoin the existing Woolworths-anchored shopping centre to its west.  These allotments have the potential to accommodate a service station fronting Beenleigh – Redland Bay Road serving eastbound traffic and a second service station fronting Bryants Road serving westbound traffic.  These sites are located only 1.2km west of the subject site and are both located within the Primary West trade area…”.

  1. [148]
    The opinions expressed by Mr Norling and Mr Brown assume: (1) the 23 lots have the potential to accommodate a Service station fronting Beenleigh Redland Bay Road, serving eastbound traffic; (2) a Service station is a potential anchor to redevelop the 23 lots; and (3) the proposed development, if approved, would delay and frustrate the development of the 23 lots as intended by the planning scheme, which could include a Service station as a key use.
  1. [149]
    I accept the assumptions stated in items (1) and (2) above are, theoretically, correct. A Service station, with a Shop and Food and drink outlet are anticipated by the planning scheme in the Centre zone. The 23 lots are included in the Centre zone, where Centre activities are promoted.
  1. [150]
    Whilst it can be assumed a hypothetical Service station may, theoretically, be developed on Centre zoned land to the west of the Loganholme local centre, it is another thing to assume such an outcome is practical or, indeed, realistic. The evidence establishes that it should not be too readily assumed the 23 lots, as a matter of practicality, are candidates for development of a Service station. This was demonstrated by Mr Job QC in his cross-examination of Mr Norling.
  1. [151]
    It is clear from the cross-examination of Mr Norling that a limited number of the 23 lots are candidates for a hypothetical Service station. They are located at the southern end of Osborne Court, and have frontage to Beenleigh Redland Bay Road[97].  Mr Norling readily accepted the limited number of lots that are candidates are constrained.  The constraints are many, and not insignificant.  In this regard, I accept the submission made by Mr Job QC at paragraph 78 of his written submissions. It comprehensively identified the extent to which the land is constrained, having regard to Mr Norling’s evidence[98]:

Mr Norling readily acknowledged that his suggested alternate site at the Loganholme Local Centre was constrained.  The constraints included that Beenleigh – Redland Bay Road is divided with a large median strip; the existing centre is separated from the balance of the centre zoned land by a significant drainage channel, and in addition, the shopping centre turns its back on the residential land; it would be difficult to provide integration in the form of direct access on the basis of the drainage reserve (and the consequential engineering cost issue), and also that at the southern end of the shopping centre is the loading bay such that one would not expect there to be direct access to the shopping centre.  Amalgamation of land would be necessary, involving 3 separate allotments on the western side of Osborne Court, or at least 2 on the eastern side; separate ownership of lots that require amalgamation is another constraint; whilst engineering solutions might be possible, the existence of the drain also represented a constraint; on the eastern side, one of the lots is Council owned and is a detention basin; and that the land is adjoined by existing residential development which is in close proximity.  He confirmed that the lack of integration between the centre land to which he referred, and the existing centre was such that one of the factors why economists suggest that uses should co-locate, would be absent in the present circumstances. 

  1. [152]
    Mr Skoien and Mr Purcell submitted there was no probative evidence before the Court to demonstrate, on balance, the constraints referred to by Mr Norling would preclude the development of the identified Centre zoned land for a service station, such as that proposed[99].  I reject this submission.  Mr Norling’s evidence reveals there are significant constraints impacting on the development potential of the land and, whilst it is correct to say ‘anything is possible’, the constraints cast a significant shadow over its suitability for a redevelopment as a Service station.  The significance of constraints were not fairly confronted in the submissions prepared by Mr Skoien and Purcell. 
  1. [153]
    I am persuaded there is a theoretical prospect that land included in the Centre zone to the west of the existing Loganholme local centre may be developed with a Service station.  That the proposed development will cut across, or put at risk, that theoretical prospect does give rise to a non-compliance with the provision. The non-compliance is founded on an unrealistic and impractical development scenario.
  1. [154]
    In the result, I am satisfied that the proposed development will not adversely affect any existing or planned centre either in the identified trade area, or in the broader locality. The impact of the proposed development on an existing centre is, at its highest, theoretical. I do not regard an impact of this kind, in all of the circumstances, as an adverse effect that can be characterised as unacceptable.
  1. [155]
    Section 3.5.8.1(1)(b)(iv)(A) requires a proponent to demonstrate the Centre activity cannot be located in a principal centre, major centre, district centre, local centre, or neighbourhood centre. Mr Skoien and Mr Purcell invited the Court to accept Mr Perkins’ evidence, who accepted that a development with the same composition of uses could be located in a principal centre, major centre, district centre or local centre[100].  I note Mr Skoien and Mr Purcell also invite the Court to ignore the qualification Mr Perkins attached to this evidence. Mr Perkins did not accept the same composition of uses in an existing centre could meet the same need as the proposed development. This is, in my view, an important qualification.
  1. [156]
    The planning scheme requires consideration to be given to this issue: can the use be located in a centre? The first part of the exercise is to ask, which centre? The answer to this question will likely eliminate from the assessment centres that would not reasonably meet the need identified in the earlier part of the test specified in s.3.5.8.1(1)(b)(i). That is to say, the provision, applied practically and sensibly, should be taken to require a proponent to demonstrate that a use cannot be reasonably located in a centre where the identified need has been established. The locality to be considered should not be limited, in my view, to a trade area. That has the potential to produce an artificial assessment. Rather, the assessment is to take into account those centres which could be fairly said, in all of the circumstances, to meet the identified need. If that approach is adopted here, it requires consideration to be given to whether the proposed development cannot be located in the Loganholme local centre and Cornubia local centre.
  1. [157]
    For reasons given above, I am satisfied the proposed development cannot be located in the Cornubia local centre. Mr Brown or Mr Norling did not suggest otherwise. Mr Skoien and Mr Purcell did not submit otherwise.
  1. [158]
    The evidence falls short of establishing that a Service station, Shop and food outlet cannot locate in the Loganholme local centre.  In that centre there is land earmarked for Centre activities.  A Service station, Shop and Food and drink outlet are uses anticipated in that zone, and in that particular centre.  As a consequence I am not satisfied it can be said the proposed development cannot be located in an existing centre. That said, for reasons given above, it is a theoretical possibility. I have serious misgivings, having regard to Mr Norling’s evidence, whether such a development outcome would be realistic, or practical.
  1. [159]
    Section 3.5.8.1(1)(b)(iv)(B) requires a proponent to demonstrate the use cannot be located in a Specialised centre. Mr Wilhelm does not allege non-compliance with this provision of the planning scheme.  This is confirmed having regard to the disputed issues, and footnote 77 of Mr Skoien and Mr Purcell’s submissions.  The written submissions confirm it is accepted the proposed use cannot be located in a Specialised centre zone.
  1. [160]
    Section 3.5.8.1(1)(b)(iv)(C) requires a proponent to demonstrate the use has a specific locational need requiring its location outside of a centre and, the use is located in accordance with that need. Citimark and Council face an immediate difficulty with this provision of the planning scheme. In Peet at paragraph 28(iv)(C), his Honour Judge Rackemann said:

As to the tests in s 3.5.8(1)(B) are concerned:

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

  1. [161]
    I agree with his Honour’s observation that I have emphasised above.
  1. [162]
    The nature of a Service station is such that it is ‘location flexible’.  This was consistent with the evidence. It was established that a Service station is typically provided in one of three locations, namely: (1) on a heavily trafficked road, deriving business primarily from passing traffic; (2) within a village/urban community primarily serving local residents and businesses; and (3) in locations with supermarkets, although not necessarily co-located. 
  1. [163]
    The locational flexibility of the use tells against compliance being established with s.3.5.8.1(1)(iv)(C). It is a use which can be located in a centre. It is also a use that can be located out-of-centre. I am not satisfied the proposed development must be located in an out-of-centre location.

The Rural residential zone code

  1. [164]
    The land is included in the Park living precinct of the Rural residential zone. Overall outcome (3)(e) of the zone code is specific to that precinct, and states[101]:

(e) in the Park living precinct:

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

  1. [165]
    Overall outcome (3)(e)(i) is complemented by Performance outcome PO1 (and the accompanying Acceptable outcome AO1) of the same code. The Performance outcome, and the accompanying Acceptable outcome provide, in part[102]:

PO1

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

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

AO1

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

  1. (c)
     section 6.2.13.2(3)(e)(i) overall outcomes for the Park living precinct; or ….
  1. [166]
    It is correct, as was submitted on behalf of Mr Wilhelm, that the proposed development does not seek approval for one of the uses anticipated in Overall outcome (3)(e)(i) of the zone code.  This begs the question: what is the planning consequence where a proposed use falls outside the list of uses anticipated by Overall outcome (3)(e)(i)?
  1. [167]
    The planning scheme does not, like other contemporary planning schemes, prescribe a planning consequence where a use falls outside the range of uses anticipated in a particular zone. For example, the planning scheme does not, like other contemporary planning schemes, deem such a use ‘inconsistent development’ in the zone, or as being ‘inconsistent’ with the zone code[103].  This, in my view, suggests one ought not be too ready to conclude a non-compliance with the zone code is established because, as here, the proposed uses are not expressly anticipated in the Overall outcomes of the zone code.
  1. [168]
    There is an additional reason why non-compliance may not necessarily follow where a use is absent from the list of uses stated in the Overall outcomes of a zone code in the planning scheme.
  1. [169]
    Overall outcome (3)(e)(i) and Performance outcome PO1 are expressed in positive terms. They encourage particular uses in the zone. The provisions do not, in terms, expressly discourage uses. A non-compliance, in such circumstances, would, in my view, only arise where it can, as a matter of implication or inference, be said to follow having regard to relevant context in the planning scheme.
  1. [170]
    I am not persuaded that ‘discouragement’ for the proposed development should be assumed as a matter of implication, or by inference, from the absence of encouragement in Overall outcome (3)(e)(i) and PO1 of the Rural residential zone code.  To draw such an implication or inference, it would be necessary to assume the Overall outcomes, in effect, ‘cover the field’ of uses anticipated in the zone. In my view, that is not an inference to be readily drawn having regard to the combination of these features of the zone code, namely: (1) non-residential uses, including Centre activities, are expressly anticipated in the zone; and (2) Performance outcome PO7 of the zone code anticipates a range of uses in the zone, namely a Child care centre and specific Accommodation activities (e.g. Multiple dwellings, Relocatable home park and Retirement facility), in circumstances where they are not anticipated in the Overall outcomes for the zone code.
  1. [171]
    Where, as here, the uses proposed are not expressly anticipated by the Overall outcomes of a zone code, it will be necessary to carefully examine those uses against the provisions of the code itself. As Mr Job QC submitted[104]:

…it is necessary to consider whether, although the use is not of the type ‘provided for’, it is nevertheless of a type which might be appropriate in the Zone having regard to such matters as whether the Zone Code contemplates non-residential development also, and the extent to which other objectives of the Zone Code are respected (and the extent to which they are applicable to the particular context).

  1. [172]
    As is clear from the above submission, which I accept, it is necessary to look beyond Overall outcome (3)(e)(i) and Performance outcome PO1 of the zone code. This will require:
  1. (a)
    an assessment of the extent to which the zone code anticipates non-residential uses in the zone; and
  1. (b)
    an assessment of the development against specific controls in the zone code, particularly those in relation to amenity and character, to ensure the controls are respected. 
  1. [173]
    Here, as I have already said, the zone code admits of the prospect that non-residential uses may occur in the Park living precinct of the zone. Three non-residential uses are anticipated in the precinct. They are identified in Overall outcome (3)(e)(i), Performance outcomes PO1 and PO7. The non-residential uses anticipated by the Overall outcome and PO1 are: (1) Emergency services; (2) Home based business; and (3) Sales office. Each of these uses are anticipated in centres and mixed use developments under the planning scheme. They are Centre activities. As Mr Job QC pointed out, PO7 expressly anticipates Childcare centres in the zone[105]
  1. [174]
    The above provisions of the zone code anticipate non-residential uses in the zone, and precinct. As a consequence, the zone code creates a reasonable expectation that uses in the zone may include non-residential uses that have non-residential impacts. Whether the impacts will be acceptable turns on an assessment of the development against the specific controls with respect to the protection of character and amenity.
  1. [175]
    The proposed development performs favourably against provisions of the zone code intended to protect the amenity and character of the zone.
  1. [176]
    An assessment against the zone code in this regard starts from the premise that Mr Wilhelm does not suggest there is non-compliance with Overall outcome (3)(a) of the zone code. This provision is relevant to the design of built form in the zone, and states[106]:

(3) The purpose of the Rural residential zone code will be achieved through the following overall outcomes:

(a) the design of the built form:

  1. (i)
    responds to site characteristics, including the shape, frontage, size, orientation and slope;
  1. (ii)
    produces a built form that is compatible with the semi-rural, landscaped or bushland setting;
  1. (iii)
    provides that the semi-rural, landscaped or bushland setting predominates over the built form;
  1. (iv)
    incorporates appropriate boundary clearances to protect and provide privacy for residents;
  1. (v)
    ensures it is easily and safely accessed.
  1. [177]
    The assessment of the development against the zone code also commences from the footing that Mr Wilhelm does not suggest the proposed development fails to comply with Performance outcomes PO3, PO4, PO5, PO22 and PO23. Each of these provisions are relevant to amenity and character considerations. The provisions state, in part[107]:

Building height

PO3

A building has a building height that is:

  1. (a)
     consistent with the setting for the precinct;
  1. (b)
     responsive to the topography of the site.

Boundary clearance

PO4

A building or structure has a boundary clearance that is compatible with the setting for the precinct having regard to:

  1. (a)
     visual amenity;
  1. (b)
     privacy

PO5

Development protects the intended amenity for the zone and precinct and an adjoining premises in a residential zone category by having regard to:

  1. (a)
     noise emissions;
  1. (b)
     air emissions;
  1. (c)
     light emission;
  1. (d)
     radiation emissions;
  1. (e)
     vibration emissions.
 

Site cover

PO22

A building or structure has a site cover that protects the visual amenity and the landscaped or bushland setting of the precinct.

Built form

PO23

The built form does not dominate the landscape or bushland setting.

  1. [178]
    Navara alleges non-compliance with PO5 above. For reasons given later, I reject this contention. In short, the evidence is all one way. It comfortably demonstrates compliance with Acceptable outcome AO5 and, in turn, PO5.
  1. [179]
    There are four provisions of the Rural residential zone code relied upon by Mr Wilhelm to allege the proposed development will have an unacceptable impact on amenity and character. The provisions are identified at paragraph 6.6 of the written submissions filed on his behalf[108], and comprise s.6.2.13.2(1), (2)(b,) (2)(c) and (3)(b). 
  1. [180]
    As Citimark correctly submitted[109], the provisions raised on behalf of Mr Wilhelm anticipate that: (1) development in the zone will provide a semi-rural, landscaped or bushland setting; (2) development will protect rural residential amenity; and (3) development will consist of specified uses. 
  1. [181]
    Whilst it is correct to say that certain uses are anticipated in the zone, and the uses proposed do not fall within the range of anticipated uses in the zone, I am comfortably satisfied the proposed development will not cut across the intent of the zone code to protect the character and amenity of the zone. I am so satisfied having regard to the reasons set out above with respect to the land, surrounding locality and the proposed development. In short, the proposed development has been well designed, and can be conditioned, to ensure the amenity and character of this particular locality is appropriately protected. This includes protecting the character, amenity and privacy of the Navara land.
  1. [182]
    The compliance that has been demonstrated with the planning scheme is not undermined by reason that the proposed development will, as Mr Perkins conceded, generate noise, light and activity that is not of a character, nature or extent anticipated in the Rural residential zone, or Park living precinct. That is true, but the evidence also demonstrates that the anticipated noise, light and activity of the use will be within acceptable limits, in circumstances where: (1) the character of the land and surrounding area is not strictly rural residential, it is more urban in character; (2) the proposed development will be well removed from the dwelling on the Navara land, by a distance of 85 metres; and (3) significant attention has been given to the design of the proposal to provide appropriate and sensitive interfaces to adjoining development and adjoining major roads.
  1. [183]
    As I understood the case advanced on behalf of Mr Wilhelm, the point made was to the effect that the proposed development would have an unacceptable impact on amenity in an intangible sense[110]. This is to be treated as a reference to the expansive concept of amenity as discussed by Thomas J in Broad v Brisbane City Council [1986] 2 Qd R 317.  Thomas J said that amenity is a ‘wide ranging concept’ that may be difficult to articulate.  His Honour identified that some aspects of amenity are tangible.  He said other aspects are more allusive, such as the standard or class of a neighbourhood.
  1. [184]
    Mr Wilhelm does not suggest the intangible impact on character and amenity warrants refusal of the application in its own right.  Rather, it is said to be one of a number of reasons, when aggregated, which militate against approval[111].  Mr Leon, who appeared for Navara, made no such concession. He contended the impacts on character and amenity warranted refusal, which included impacts on privacy.  These particular impacts are dealt with later in these reasons for judgment. The impacts are not such as to warrant refusal. 
  1. [185]
    The submissions advanced on behalf of Mr Wilhelm about amenity and character impacts are founded on three key propositions, namely: (1) there is no reasonable expectation that the land would be developed as a Service station, Shop and Food and drink outlet given Council’s centres planning[112]; (2) there is no reasonable expectation that the land would be developed as a Service station, Shop and Food and drink outlet given its Rural residential zoning[113]; and (3) the proposed development does not comply with particular assessment benchmarks in the planning scheme[114].  When understood in this light, Mr Wilhelm’s case is unpersuasive.
  1. [186]
    The proposition in item (1) above does not apply having regard to the planning scheme read as a whole.
  1. [187]
    The proposition in item (2) above is true to a point, but ultimately turns on an assessment of the proposed development against the zone code. That assessment reveals, even if there is no expectation the land may be developed as proposed, the impacts will be consistent with the intent of the zone code, which seeks to protect character and amenity.
  1. [188]
    I reject the proposition in item (3) for the reasons given above.
  1. [189]
    It is difficult to accept in the circumstances of this case that the proposed development will have an unacceptable impact on amenity in an intangible sense. The character of the area is, as I have described, more urbanised than rural residential character. It is affected by the existence of substantial hard infrastructure. Service stations are also present in the local area.
  1. [190]
    Any intangible amenity impact is one that should, in fairness, be assessed by reference to the evidence of those members of the community who are most likely to be affected by the proposed development. The submissions received by Council during the public notification period raise concerns about the impact of the proposed development on the feel and amenity of the locality[115].  The submissions, however, relate to an earlier iteration of the proposed development. They were prepared before the amended landscaping plans and reports of the noise, lighting and air quality experts were in existence. This shortcoming was not addressed by Mr Wilhelm or Navara in the appeal. Neither called evidence from lay witnesses to identify their amenity concerns in the knowledge of the amended proposal and recommended conditions of approval. The absence of this evidence materially undermines what is said in the submissions about the intangible impacts of the development on the amenity of the area.
  1. [191]
    In any event, as has been recognised, the views of lay witnesses are relevant in an assessment of intangible amenity impacts. As to the importance of those views, it is ultimately a matter of weight. This is grounded in an observation made by de Jersey J (as he then was), in Broad v Brisbane City Council [1986] 2 Qd R 317.  In the judgment, his Honour agreed with Thomas J, and added, inter alia[116]:

In determining the likely effect of a proposed development on the amenity of a neighbourhood, the Local Government Court is clearly entitled to have regard to the views of residents of the area.  The question is whether a resident’s view should be disregarded where it appears to be purely subjectively based, with no suggested justification in objective, observable likely consequences of the establishment of the proposed use.  In my opinion, such a subjective view need not necessarily be disregarded.  Very often, of course, the evidence of such a view would be accorded little if any weight.  In forming his own view on the likely effect of a proposed development on the amenity of an area, a Judge would I think ordinarily prefer views from residents which find justification in specific, concrete likely effects of the proposed development.” (emphasis added)

  1. [192]
    The point his Honour made is often overlooked. The subjective views of lay witnesses about amenity, and the impacts upon it, will be a matter of weight. Where the evidence establishes the subjective views of residents find no justification in specific, concrete likely effects of the proposed development, the views are, ordinarily, afforded little, if any weight.
  1. [193]
    Here, the intangible impacts find no direct support in the evidence of a number of experts, including those dealing with the environmental emissions of the development being Mr King, Mr Beyers and Mr Forbes. The latter two experts establish the proposed development complies with Acceptable outcome AO5 of the Rural residential zone code, which is relevant to the environmental emissions of the development. Compliance with Acceptable outcome AO5 of the zone code demonstrates compliance with Performance outcome PO5, which is set out above.
  1. [194]
    Accordingly, in the circumstances, I am satisfied the proposed development will not have any unacceptable impacts on the character and amenity of the locality in an intangible sense. To the extent it might be said that there are subjective impacts on the ‘feel of the place’, they find no justification in specific, concrete likely effects of the proposed development.
  1. [195]
    Citimark has demonstrated that the alleged impact on amenity, in an intangible sense, does not warrant refusal, let alone demonstrate a non-compliance with the planning scheme.
  1. [196]
    For the reasons given above, I am satisfied the proposed development is consistent with the Overall outcomes and Performance outcomes of the Rural residential zone code.

Traffic

  1. [197]
    Navara and Mr Wilhelm allege the proposed development should be refused for traffic engineering reasons. This part of the reasons for judgment deals with the traffic issues raised on behalf of Mr Wilhelm. The additional traffic issues raised by Navara are considered in the next section of these reasons for judgment.
  1. [198]
    To assist in the assessment of traffic related issues, I had the benefit of evidence from four traffic engineers, namely Messrs Douglas (Citimark), Trevilyan (Council), Williams (the Chief Executive) and Viney (Wilhelm). It was only Mr Viney who supported a refusal of the development application. He did so on one ground, namely, he regards the proposed access to California Creek Road as being unsafe. This ground was one of eight traffic grounds examined in the traffic joint report[117].  As I understand his evidence, Mr Viney does not suggest any of the other grounds (identified in paragraph 8 of the joint report) examined in the report warrant refusal.  He accepts those matters can be dealt with by way of conditions[118].
  1. [199]
    Whilst the evidence narrowed the scope of the traffic issues warranting refusal, Mr Skoien and Mr Purcell adopted a different approach in their submissions.  Their written submissions[119] advanced two matters said to warrant refusal.  First, it was submitted the left in-left out access to Beenleigh Redland Bay Road is an inefficient traffic outcome because it will facilitate rat-running through residential streets[120].  Second, it was submitted that adverse safety and efficiency impacts arise from the proposed left in-left out access to California Creek Road, which warrants refusal[121].
  1. [200]
    The first of the two points advanced by Mr Skoien and Mr Purcell focusses upon traffic exiting the proposed development and turning left into Beenleigh Redland Bay Road. This traffic is assumed to travel east along Beenleigh Redland Bay Road towards Brindabella Street, which is then utilised by motorists to access the rural residential area to the north, and east, of the land. Alternatively, this route can also be relied upon to access California Creek Road to travel north of the land.
  1. [201]
    The intersection of Brindabella Street and Beenleigh Redland Bay Road is signalised. The road forming the southern leg of the intersection is known as Logandale Boulevard. This is where the Cornubia local centre is located. The intersection permits vehicles to travel to and from the centre, through the intersection, utilising Brindabella Street.
  1. [202]
    The first submission made by Mr Skoien and Mr Purcell about the Beenleigh Redland Bay Road access has no merit. The submission was not supported by any reference to the evidence[122].  There appears to be a good reason for this.  The point was not supported as a reason for refusal by any of the traffic engineers. 
  1. [203]
    I accept the evidence of Mr Douglas, which appears to be agreed by all traffic engineers, that the proposed vehicular access to Beenleigh Redland Bay Road is appropriate from a traffic safety and efficiency perspective. I also accept the evidence of Mr Viney, who is a senior and experienced traffic engineer who confirmed in cross-examination that: (1) the proposed access arrangements to and from Beenleigh Redland Bay Road are acceptable, that is to say, no safety or efficiency issue is raised to warrant refusal in relation to this access point[123]; and (2) the alleged rat-running does not warrant refusal of the application given Brindabella Street already carries substantial commercial and retail traffic from the Cornubia local centre. The centre shares the southern leg of the same intersection with Brindabella Street and Beenleigh Redland Bay Road[124].
  1. [204]
    Returning to the evidence, the joint report of the traffic engineers reveals there is only one issue that is said to warrant refusal of the application. It was raised by Mr Viney, who in contrast to his three counterparts, was critical of the vehicular access proposed to the development from California Creek Road. At paragraph 20 of the traffic joint report, Mr Viney said:

Consequently, in his opinion, the access to California Creek Road should not be permitted and any access to the site should be limited to left in-left out access to Beenleigh-Redland Bay Road.  If a single left in-left out access to Beenleigh-Redland Bay Road (as per existing service stations to the east and to the west of the site) is considered to be undesirable then the development application should be refused.

  1. [205]
    Mr Viney reaffirmed his position, and the overarching reason for it, in his oral evidence. This was made clear in the following exchange that occurred in cross-examination with Mr Batty[125]:

And at the end of the day, that’s what this all comes down to, doesn’t it, that you’re simply seeking a better solution, correct?Well, can I just mention that…what you’re proposing here as being acceptable worsens the overall degree of safety of California Creek Road.  You’re saying it’s a low amount;  I’m saying it’s a significant amount.  And if it’s any amount, you’ve got a lower level of safety than if you just stopped the access there, banned the access there, as the site has a perfectly acceptable access to Beenleigh Redland Bay Road.  So why would you make the overall level of safety lower when you don’t have to?  That’s – that’s the point I’m trying to make.

  1. [206]
    The access about which Mr Viney was critical is a left in-left out access. It will be located about 70 metres north of the signalised intersection of California Creek Road and Beenleigh Redland Bay Road. The access will align with a ‘keep clear’ area marked on the approach to the intersection. It will also align with a service road that intersects with California Creek Road, but on its western side.  The configuration of the access is depicted in Exhibit 39.
  1. [207]
    As I understood Mr Viney’s evidence, he was concerned about four particular vehicular movements occurring via the proposed California Creek Road access. The movements are depicted in Appendix 3 to the traffic joint report, and can be described as[126]: (1) the requirement for vehicles leaving the development via the left-out access onto California Creek Road to force entry into the traffic stream heading south towards the intersection in the morning peak; (2) the demand for a right hand turn from the proposed access across the ‘keep clear’ area into California Creek Road, which is a prohibited movement[127]; and (3) the demand for vehicles to cross the ‘keep clear’ area so as to enter the development from the service road, or vice versa, which are prohibited movements[128].
  1. [208]
    Against the background of the above, Mr Viney identified eight reasons why, in his view, the left in-left out configuration of the proposed access to California Creek Road was unacceptable for traffic safety and efficiency reasons. The reasons were summarised at paragraph 19 of the traffic joint report, which states:

In Summary, Mr Viney’s opinion is that:

  1. (a)
    California Creek Road carries a high traffic flow of around 14,000 vehicles/day;
  1. (b)
    The proposed service station would be a reasonably high traffic generator;
  1. (c)
    The access proposed opposite the service road is difficult to negotiate in its present configuration for service road traffic;
  1. (d)
    There is an existing crash record at the intersection;
  1. (e)
    The proposed access would introduce a pedestrian safety problem in California Creek Road;
  1. (f)
    The proposed access location contravenes the recommendation of the Australian Standard;
  1. (g)
    There is a demand for a right turn movement out of the site at California Creek Road to allow service station traffic to egress to the north.  This travel demand cannot be satisfied at either the access to California Creek Road or the access to Beenleigh-Redland Bay Road; and
  1. (h)
    Allowing the left in-left out access to the service station at California Creek Road would significantly compromise the level of safety and efficiency on California Creek Road for both motorists and pedestrians.
  1. [209]
    I will deal with each of the eight points identified in paragraph 19 of the traffic joint report, save for subparagraph (h). This subparagraph is a conclusion that follows from the subparagraphs appearing above it.
  1. [210]
    I accept paragraph 19(a) of the traffic joint report is a correct statement of fact. As Mr Viney said, California Creek Road carries a high traffic flow, in the order of 14,000 vehicles per day. This traffic volume was agreed at paragraph 4 of the traffic joint report. The point does not however, in isolation, demonstrate the safety and efficiency of California Creek Road will be compromised by the proposed development. I did not understand Mr Viney to be suggesting otherwise. Rather, I understood paragraph 19(a) to be a matter of context.
  1. [211]
    I accept paragraph 19(b) of the traffic joint report as a matter of context. The proposed development will be a reasonably high traffic generator. That is not to say it will generate significant volumes of traffic. In the morning peak, the proposed development will generate 62 vehicle movements (31 in and 31 out) via the California Creek Road access[129].  Mr Viney confirmed it was the morning peak that was of most concern to him.  The reason for this was articulated as follows[130]:

“…because the access is on the approach to the intersection rather than on the departure side.  The – the cars that are leaving the site are normally going to be breaking into a queue, which again is normal practice not to have an access so close to the synchronised intersection that you have to break into a queue and this doesn’t apply, of course, to the access to Beenleigh Redland Bay Road, where it’s on the departure side, there’s no queue.”

  1. [212]
    I would add that I accept the statement in paragraph 19(b) of the traffic joint report in full knowledge there was a disagreement between the traffic engineers about the number of traffic movements the proposed development could be assumed to generate in the peak periods.
  1. [213]
    Mr Douglas applied a traffic generation rate to the gross floor area of the proposed development to undertake his assessment. The traffic generation rate applied was taken from an industry recognised document published in 2002. In his assessment, Mr Douglas concluded that 26 vehicle movements could be expected via the proposed California Creek Road access in the morning peak (13 in and 13 out)[131].  Mr Williams[132] and Mr Trevilyan agreed this forecast was understated[133].  Mr Viney expressed the opinion that the rates adopted by Mr Douglas from the 2002 publication were ‘totally inadequate[134].
  1. [214]
    Mr Viney preferred to assess the likely traffic generation by the number of petrol bowsers provided, rather than gross floor area. I prefer Mr Viney’s evidence to that of Mr Douglas in this regard.
  1. [215]
    I was left with the clear impression that Mr Douglas applied the published data here because it is more established, and applied more widely than Mr Viney’s suggested approach[135].  That, in my view, is unpersuasive once it is appreciated there are significant shortcomings in the published data relied upon by Mr Douglas.
  1. [216]
    Both Mr Williams[136] and Mr Viney observed the published generation rates relied upon by Mr Douglas are based on ‘very old surveys’ carried out in the 1970s[137].  Mr Viney made the further point that the survey data underlying the published generation rate was obtained at time when service stations operated very differently to how they now operate[138].  This was articulated in a response to a question from Mr Batty.  Mr Viney said[139]:

The 2002 publication that Mr Douglas has relied on is based on very old surveys in the 1970s and a lot of things have changed in that intervening period.  In the – in the Seventies there used to be, for instance, a workshop attached to a service station.  Self-service wasn’t generally a thing.  The service stations were primarily supplies of petrol.  Nowadays they’re shops as well.  All these things have changed, and also the influence of loyalty schemes with the supermarkets, etcetera.  So all those things that once made up the vehicle generation have changed significantly.”

  1. [217]
    I was not persuaded Mr Douglas gave sufficient recognition to the matters identified by Mr Viney, particularly in his oral evidence. As a consequence, the assessment of the proposed development should be based upon the level of traffic generation assessed by Mr Viney.
  1. [218]
    That said, it is clear from the evidence that this makes no difference to the views expressed by Messrs Douglas, Trevilyan and Williams. They each confirmed the difference in traffic generation was not significant to alter their views in any material way. I accept this evidence.
  1. [219]
    I accept the existing circumstances are such that it is difficult, as Mr Viney suggests, for traffic to execute a right hand turn from the service road into California Creek Road during peak times.  As a consequence, I accept paragraph 19(c) of the traffic joint report, but only to a point.  As Mr Viney said, the Beenleigh Redland Bay Road and California Creek Road intersection is congested during peak times, with queues extending past the location of the proposed access point to the land.  Executing a right hand turn movement from the service road into California Creek Road at peak times, I accept, is likely to be perceived by some motorists as difficult given the existing traffic volume.  Substantial delay can be experienced by those motorists.
  1. [220]
    That said, I was left with the impression that Mr Viney had overstated the level of difficulty for motorists seeking to turn right from the service road into California Creek Road given the combination of two matters, namely: (1) the right hand turn movement out of the service road is aided by a ‘keep clear’ section on California Creek Road; and (2) the traffic count data reveals the difficulty applies to a small number of vehicles seeking to execute this turning movement at peak times[140].
  1. [221]
    As I understood his evidence, the critical point being made by Mr Viney was to the effect that the proposed service station will further complicate the intersection of California Creek Road and the service road. In particular, he said the service station traffic would compete with local traffic from the service road for limited space in the California Creek Road carriageway, namely in the location of the keep clear zone and the stop bar at the intersection. He emphasised that this competition would occur in circumstances where drivers travelling south along California Creek Road would focus their attention on the intersection, rather than traffic movements to/from the service road, or service station. The combination of these features were the foundation for the opinion expressed by Mr Viney at paragraphs 11 and 12 of the traffic joint report, where he said:

11. ….For drivers turning right out of the service road, the existing level of safety is compromised at peak times by:

  • The close proximity of high speed left turn traffic from Beenleigh-Redland Bay Road; and
  • The need to judge when the southbound traffic in California Creek Road will close the “Keep Clear” gap.

12. To add a new intersecting road (i.e. service station access) opposite the service road in these circumstances would significantly and adversely affect the safety and efficiency of the existing unsignalised intersection.

  1. [222]
    The traffic issue raised by Mr Viney is not without force. It, however, falls short of being persuasive once it is appreciated the proposed development will reduce the number of turning movements at the intersection of California Creek Road and the service road.
  1. [223]
    At present, vehicular access can be gained to the land via a cross-over on the California Creek Road frontage. This point of access is an all-turns access. That is to say, vehicles may turn left, and right, from the land onto California Creek Road. The proposed development will be conditioned to preclude this right hand turn movement. The ability to preclude this turning movement, coupled with an option to extend the length of the ‘keep clear’ area was a matter of considerable importance to Mr Douglas.
  1. [224]
    The removal of the right hand turn movement from the land to California Creek Road was a factor Mr Douglas relied upon to conclude the proposed development would not further complicate the existing intersection between the service road and California Creek Road. This was not the only factor he relied upon. Mr Douglas elaborated on his position in oral evidence:

Finally, in respect of California Creek Road, Mr Douglas, are you of the opinion that the ingress and egress is acceptable, and if so, why?I’m of the view that it’s acceptable.  The reasons why is that it doesn’t permit right turns in right turns out.  I think that would be unreasonable to have formalised those turns because we increase the number of conflict points, and there’s difficulties forming storage for motorist [indistinct] as a left-in left-out, I’m comfortable that it’s safe.  It only really is a fairly simple movement for people heading into the site to turn left out of the southbound California Creek Road traffic stream, and when they’re exiting onto California Creek Road, to turn left back onto the California Creek Road traffic stream southbound.  In that stretch there, it’s also worth noting that you can re-join the left lane of California Creek Road, and that also turns right at the lights onto Beenleigh Redland Bay Road, so there’s no one having to force their way across to the second lane.  Both lanes turn right, effectively, which, again, is a positive factor, and also because it’s on the approach to the signals, the traffic speeds there aren’t particularly high because people are slowing down to either stop at the red signal or to the back of the queue when it’s busy.

  1. [225]
    The force of Mr Viney’s opinion is, in my view, diminished once it is balanced against the matters referred to by Mr Douglas, including those identified in his oral evidence above. The matters are: (1) the low number of vehicles seeking to execute a right hand turn from the service road into California Creek Road in the morning peak; (2) that the execution of left in-left out vehicle movements to enter and leave the development are simple and safe movements for a competent driver; (3) that vehicles exiting the land do not need to cross a lane of traffic to turn right at the intersection with Beenleigh Redland Bay Road; and (4) traffic speeds in this location are not high at peak times given drivers are slowing to stop at the red light, or to queue.
  1. [226]
    I am satisfied having regard to Mr Douglas’ evidence that the proposed development will not compromise the existing level of safety at the intersection of California Creek Road and the service road at peak time. Nor will it serve to complicate this intersection in a way that compromises safety and efficiency. In a world where traffic arrangements are not always perfect, the proposed access, and its interaction with the intersection of California Creek Road and the service road, will not be unacceptable.
  1. [227]
    I accept paragraph 19(d) of the traffic joint report as a correct statement of fact. The existence of the crash record is established by Exhibit 41. Each of the traffic engineers agreed the key intersection here had an existing crash record.
  1. [228]
    Mr Viney was pressed in cross-examination as to whether he was suggesting the application should be refused based on the crash data for the intersection of Beenleigh Redland Bay Road and California Creek Road. He confirmed, emphatically, that this was his view. So much is clear from the following exchange with Mr Batty[141]:

“Again, you wouldn’t be asking his Honour to refuse the proposal based on the crash data?I would be actually.  I’d be saying that this intersection, and I’d include the intersection of the service road and California Creek Road as part of this intersection because they’re so close to it.  I’ll be saying that it’s an area that has a crash history that places it in the black-spot category.  And it’s not a place where you put an access where people are red-light running, where people are concentrating on other things.  Why would you introduce another conflict to that area?  That just makes no sense to me.

  1. [229]
    The above explanation does not engage with Mr Williams’ evidence. As he pointed out, all but one of the reported crashes in the data, is the product of a filtered right turn. There is no filtered right turn from California Creek Road to Beenleigh Redland Bay Road. The turn to which the data principally applies is the right turn from Beenleigh Redland Bay Road to Montessa Street, which is the southern leg of the intersection[142].  This turning movement does not impact on the proposed access to the development from California Creek Road. 
  1. [230]
    I was not persuaded Mr Viney’s evidence was tempered by the matters raised in Mr Williams’ evidence about the crash data for the intersection. Further, his evidence did not provide sufficient detail as to what, if anything, could be drawn from the remaining crash data which related to the intersection of California Creek Road and the service road. Mr Williams was cautious as to what, if anything, could be made of that data. This was a position shared by Mr Douglas and Mr Trevilyan. 
  1. [231]
    At paragraph 19(e), Mr Viney expressed a concern that the proposed development would introduce a pedestrian safety problem in California Creek Road. The problem he was referring to was discussed at paragraph 18 of the joint report. In that part of the joint report, Mr Viney said cars leaving the proposed development will be queued across the California Creek Road pedestrian path with their attention focussed on finding a gap in the traffic rather than pedestrians. This was said to give rise to a pedestrian safety risk. It was in this light that Mr Viney considered the development access would present a real danger to pedestrians at peak times, particularly school children.
  1. [232]
    I do not accept paragraph 19(e) of the joint report. Mr Viney’s opinion does not appear to take into account that the footpath to which he refers will be located approximately 5 metres back from the edge of California Creek Road. This layout allows vehicles exiting the land to negotiate the area where the pedestrian path will be crossed before negotiating the left turn into the carriageway.
  1. [233]
    The location of the footpath, coupled with available sight distances for both drivers and pedestrians, satisfies me that Mr Douglas’ opinion in relation to paragraph 19(e) of the joint report is to be preferred to that of Mr Viney.
  1. [234]
    At paragraph 19(f) of the traffic joint report, Mr Viney refers to a contravention of a ‘recommendation’ in an Australian standard in support of his opinion.  This aspect of his reasoning is discussed in detail at paragraphs 14 to 16 of the joint report.  In those parts of the joint report, Mr Viney said the proposed access contravenes s.3.2.3 of Australian standard AS/NZS2890.1:2004.  By reference to a figure included in appendix 4 of the joint report, Mr Viney said the Standard’s recommendations ‘prohibit’ the proposed access location opposite the service road intersection with California Creek Road.  This evidence is made good having regard to the figure in Appendix 4 of the joint report and Exhibit 39.
  1. [235]
    Mr Viney fairly recognised there were exceptions to s.3.2.3 of the Australian Standard, but considered the development did not meet the stated exceptions. This is because, in his view, vehicle access could be obtained via Beenleigh Redland Bay Road and: (1) the access to California Creek Road would be located within the normal queuing length for the intersection; and (2) the proposed development could not be assumed to confine traffic to left hand turns only when entering, or leaving, the proposed development[143].
  1. [236]
    Whilst it is correct to say that access can be obtained via Beenleigh Redland Bay Road, and that the access into California Creek Road would be located within the normal queuing length for the intersection, I do not accept the proposed development would fail to confine traffic to left hand turning movements when entering or leaving the proposed development.
  1. [237]
    Not inconsiderable time was spent on this issue in oral evidence. It was also advanced in the written submissions prepared by Mr Skoien and Mr Purcell at paragraph 5.24, which states:

The fundamental deficiency in the design proposed lays in that access arrangements proposed do not physically confine movement by vehicles across the intersection between the service road and service station or right turns into or out of the service station.  With respect, the appropriate regulatory signage and line marking prohibiting right turn movements from the Land as adopted by Mr Trevilyan and Mr Douglas are inadequate to properly manage that issue as it is entirely dependent upon user compliance absent physical restriction.

  1. [238]
    It is uncontroversial that the proposed development, if approved, would be conditioned to include regulatory signage and line marking intended to prohibit right turn movements from the proposed development into California Creek Road. Despite this, the submission made by Mr Skoien and Mr Purcell invites the court to assume these measures will not be complied with. They submitted, ordinarily, non-compliance with regulatory signage and line marking may not be an issue, but this was not an ordinary case.
  1. [239]
    It was submitted the circumstances here require greater scrutiny given two matters[144]: (1) the known crash data; and (2) Exhibit 58, which suggests disobedience of road rules is a particular problem in Council’s local government area.
  1. [240]
    The submission made by Mr Skoien and Mr Purcell is an unusual one. The Court, ordinarily, does not approach the assessment of an application on the footing that members of the community who choose to take advantage of a particular development will knowingly break the law when doing so. I am not persuaded it is appropriate to adopt a different course in this appeal.
  1. [241]
    The proposed regulatory signage and line marking are intended to prohibit vehicles from crossing, or turning right at, the intersection between the service road and California Creek Road. To suggest these features of the proposal will be ineffective ignores a number of practical issues identified in the evidence. Mr Douglas’ evidence demonstrated[145] that either manoeuvre would be difficult, and need to be executed at low speed.  Both manoeuvres would be executed in circumstances where a hypothetical motorist has ignored two left only turn signs, and then, proceed to enter the southbound carriageway in conflict with other vehicles to determine whether it is safe to travel straight ahead, or turn right.  Mr Douglas said, and I agree, that ‘I don’t think anyone in their right mind would be wanting to attempt this[146]. He also said the manoeuvres would be ‘heroic’, ‘crazy’ and involve breaking the law[147].  This is consistent with Mr Viney’s evidence. He said the manoeuvres would be foolhardy. 
  1. [242]
    I do not consider it is appropriate to assume drivers will readily disobey regulatory signage and line marking where to do so would involve the execution of a dangerous right hand turning movement[148]that is contrary to regulatory road signage.  Exhibit 58 does not suggest otherwise, particularly when read with Exhibit 58A.
  1. [243]
    I was not referred to any provision of the planning scheme that requires development to be designed in a way that protects those members of the community (from themselves) who make a deliberate and reckless choice to put their own safety at risk. Such a requirement in the planning scheme would, in any event, be impractical and place an unreasonable burden on development.
  1. [244]
    Nor is development required, as a matter of traffic engineering principle, to be designed for the 99th percentile scenario where drivers knowingly disregard the law.  As Mr Trevilyan said, traffic engineers are conscious drivers disobey road rules, but balance this against the probability of it occurring, and the ramifications of designing for it[149].  Here, there is no need to design for the manoeuvres identified by Mr Viney given it will occur, if at all, in small numbers and well outside peak times.  Mr Williams described the risk of the manoeuvres as low, and likely to occur in the dead of night, or at 2.00am when no one else was around[150].  It is difficult, if not unrealistic, to expect development to be designed in a way which mitigates every conceivable traffic engineering risk no matter how remote, even where that risk involves motorists driving with blatant disregard for the law, and their own safety.
  1. [245]
    I note that Mr Williams suggested the existing median strip in California Creek Road could be extended to physically restrict the execution of the right turning movements in and out of the service road. This is unnecessary and not without consequence. The extended median strip would preclude vehicles lawfully turning from the service road into California Creek Road, thereby requiring an alternative route to be adopted. As an assessment of the street directory reveals, the alternative route would be inconvenient and, in all likelihood, result in an increase in traffic in other local residential streets for limited traffic engineering benefit.
  1. [246]
    Even allowing for the crash data, and the contents of Exhibit 58, the risk a driver may seek to cross the intersection of California Creek Road is not of sufficient magnitude to require the development to be assessed on the footing the regulatory signage, and line marking, will not be effective. The movements required to disobey the regulatory signage and line marking will be difficult, executed at low speed and, in any event, low in number being outside peak times.
  1. [247]
    As a consequence, I am satisfied it has been demonstrated, contrary to Mr Viney’s opinion, that an exception to s.3.2.3 of the Australian Standard appears to have been established, at least in part. It is, however, unnecessary to determine whether any of the exceptions have been demonstrated by Citimark. The Australian Standard to which Mr Viney referred is called up by the planning scheme as an Acceptable outcome. It represents one way in which the accompanying Performance outcome may be complied with.
  1. [248]
    The Australian Standard is called up by s.3.4.6 of Council’s infrastructure policy, which is, in turn, called up by Acceptable outcome AO10 of the Servicing, access and parking code in the planning scheme[151].  If it is assumed, as Mr Viney says, there is a departure from the Australian Standard, this may be treated as a departure from Acceptable outcome AO10. Consideration is then to be given to the terms of Performance outcome PO10 of the code. 
  1. [249]
    In relation to Performance outcome PO10, Mr Skoien and Mr Purcell submitted[152]

PO10 seeks to ensure that the arrangements for the parking area ‘prevent an adverse impact on the safety and efficiency of the existing or planned movement network’.  In Mr Viney’s opinion, there will be such adverse impacts.

  1. [250]
    There is an immediate difficulty confronting the submission set out above. Mr Viney confirmed in his oral evidence that PO10 of the code did not warrant refusal of the application[153]
  1. [251]
    Even if Mr Viney’s concession in relation to Performance outcome PO10 of the code is ignored, I am satisfied having regard to the evidence (of Messrs Douglas, Trevilyan and Williams) that the proposed development will not cut across the pertinent part of the provision, which states:

PO10

A car parking area is designed to:

(l) prevent an adverse impact on the safety and efficiency of the existing or planned movement network.”

  1. [252]
    Accordingly, I do not accept that paragraph 19(f) of the traffic joint report establishes a basis for concluding the proposed development will compromise the safety and efficiency of California Creek Road.
  1. [253]
    With respect to paragraph 19(g) of the traffic joint report, I accept as a matter of fact there will be a demand for a right turn movement out of the proposed development to travel north along California Creek Road. The proposed development, with the regulatory signage and line marking, will prohibit this movement. I also accept that access via Beenleigh Redland Bay Road will not meet this demand.
  1. [254]
    It is Mr Viney’s opinion that the inability to meet the demand for the right turn movement out of the proposed development, heading north along California Creek Road, will sound in a traffic consequence. In his view, it means drivers demanding the turn will find alternative routes. He says this will result in rat-running through local residential streets. This, he said, is because of the layout of the existing road network, which would be circuitous, and inconvenient, if motorists were confined to major roads in the road network.
  1. [255]
    There are three particular routes Mr Viney identified as being susceptible to inappropriate driver behaviour, including rat-running, namely[154]: (1) drivers executing a U-turn in Montessa Street, which is the southern leg of the intersection at Beenleigh Redland Bay Road, and is a residential street; (2) drivers travelling via a rural residential area (Brindabella Street, Bromley Street and Braydon Street) to access California Creek Road; and (3) at off peak times, drivers executing the manoeuvres referred to in paragraph [241] above. 
  1. [256]
    I do not regard any of the routes referred to in items (1) to (3) as sounding in an unacceptable impact that compromises the safety and efficiency of California Creek Road. This is, principally, because each of the routes assume residents of the trade area will purchase fuel in a single trip, thereby requiring a driver to, in essence, double back to return to the point of origin. This is not a safe assumption. The number of vehicles to which this applies is likely to be very small. The effect of Mr Brown’s evidence was that[155] fuel is typically purchased as part of a combined trip where there is little, if any, requirement to double back to the point of origin. Mr Viney’s assessment appears to have assumed otherwise.
  1. [257]
    The opinion expressed by Mr Viney about the impact of the proposed development on the safe and efficient operation of California Creek Road is entitled to respect. He is a senior and experienced traffic engineer. Based on his many years of experience, he formed the opinion that the safety of California Creek Road is likely to be compromised by the subject proposal. This is not a view that I accept. I am satisfied, having regard to the evidence of Mr Douglas, which is supported by Mr Trevilyan and Mr Williams, there is no traffic issue warranting refusal. 
  1. [258]
    That Mr Viney’s evidence is not preferred does not mean, as was submitted by Citimark, that I was persuaded he was insisting on traffic utopia[156].  I regard such a submission as unfair to Mr Viney.  The reason for refusal raised by Mr Viney turned on matters of professional judgement.  Whilst I prefer the evidence of the traffic engineers in preference to Mr Viney, that does not mean his evidence was calling for a traffic outcome akin to a perfect solution in an imperfect world.  Ultimately, I did not prefer his evidence to that of his counterparts’, because I regarded his professional judgement call as one being more conservative than was necessary, having regard to all of the circumstances. 
  1. [259]
    I would add that I also take comfort from the fact that, as Mr Viney accepted, the proposed development can be conditioned to comply with the contentious aspects of the Servicing, access and parking code in the planning scheme. This, in my view, is a good indicator that traffic issues do not warrant refusal in this case.
  1. [260]
    I am satisfied that the application need not be refused on traffic engineering grounds.
  1. [261]
    The final matter to be noted in this context is a submission made by Mr Job QC. He submitted that the true position to be adopted with respect to traffic was one consistent with the evidence of Mr Douglas. Mr Job QC pointed out that the evidence established the proposed development would, from a traffic perspective, provide a range of benefits. The benefits, in a traffic sense, were identified[157] as follows:
  1. (a)
    the extension of the dual eastbound traffic lanes by approximately 65 metres, which would improve the safety and effectiveness of the merge for east-bound traffic and increase the capacity of the intersection by increasing the distance where motorists had an opportunity to merge;
  1. (b)
    the implementation of the conditions of the approval would improve the safety and efficiency of the diverge into, and the merge out of, the bus stop back onto Beenleigh Redland Bay Road by increasing the distances over which such movements can occur, as well as increasing the separation from the upstream signals;
  1. (c)
    the implementation of the conditions of approval will require the provision of a hard stand area at the bus stop consistent with the public transport infrastructure manual; the Commonwealth Disability Standards for Accessible Public Transport 2002; and Australian Standard 1428 – Design for Access and Mobility[158]; and
  1. (d)
    the implementation of the conditions of approval would result in the provision of a future cycle lane past the bus stop[159]
  1. [262]
    Mr Job QC submitted, overall, the evidence established that the works proposed to Beenleigh Redland Bay Road would improve the safety and efficiency of the road network[160].  I accept this submission.

Other issues raised by Navara

  1. [263]
    Mr Leon, who appeared for Navara, advanced a number of reasons for refusal over and above those agitated on behalf of Mr Wilhelm.  The further issues falling within this category are in red text in the document titled ‘Issues in dispute’, which was marked Exhibit 5C.
  1. [264]
    There are six further issues raised for consideration by Navara, namely: (1) whether the proposed development would result in an unacceptable amenity and character impact on the surrounding road network; (2) whether the proposal complies with Performance outcome PO5 of the Rural residential zone code; (3) whether the proposed development would have unacceptable lighting, air quality and noise impacts; (4) whether the relocation of the bus stop is safe and appropriate; (5) whether there has been compliance with the concurrence agency information request in relation to obtaining consent about the relocation of the bus stop; and (6) whether the Navara land will suffer a loss in terms of the amenity and privacy it presently enjoys.
  1. [265]
    With respect to item (1), Navara did not call any expert evidence in support of the allegation the proposed development would impact on the character and amenity of the surrounding road network. In the ‘final submissions’ provided on its behalf, it was asserted the proposed development would ‘undoubtedly detract’ from the amenity of the locality because it will generate vehicle movements in, and around, the local network[161].  Whilst no specific reference was made in the to the evidence relied upon to establish this submission, it can fairly be assumed that Navara relies upon the evidence of Mr Viney.  In particular, it can be said it relies upon paragraph 9 of his further statement of evidence[162], which was expanded upon by Mr Viney in his oral evidence[163].  The point made by Mr Viney was, to the effect, that the retention of the proposed access point from California Creek Road would lead to ‘far more’: (1) rat-running of vehicles through residential streets; and (2) vehicles executing unacceptable turns in residential streets. 
  1. [266]
    I have dealt with the issues raised by Mr Viney earlier in these reasons for judgment.  I am satisfied they do not warrant refusal in a traffic engineering sense.  I am also satisfied the two matters raised by Mr Viney, in this context, do not give rise to any unacceptable impacts on the character or amenity of the area. 
  1. [267]
    The rat-running to which Mr Viney refers, as even he confirmed, already occurs in the road network[164]. As to the U-turn manoeuvres, Mr Viney confirmed they would occur in very low numbers[165], and the location where the manoeuvres are said to be a risk is not an obvious one[166].  As Mr Douglas said in his oral evidence[167]:

In your opinion, not only just focusing on the two routes that Mr Viney has referred to, but, as a whole, would the proposed development, in your opinion, unacceptably put patron traffic into residential streets?No more than they already currently are in having to approach other commercial facilities, schools and other destinations.  The catchment areas are quite poorly defined, as I was kind of alluding to.  If you look at the catchment you can see St Matthew’s Catholic Primary School.  That’s where kids went for some time.  All the residential streets in behind there, including Anakie Drive, Penelope, Reuben, Gloria.  All of that pocket really only have one or two ways in and out.  So the signals at Anakie Drive provide access to a very long residential street network that’s all quite linear.  And that’s a function of very lumpy topography.  You know, it’s quite hilly in there.  Similarly, Kilkenny Street behind Chisholm Catholic College provides access into a fairly large residential pocket, and, in some ways, is really operating as a collector street anyway.  Something counsel has had to put some [indistinct] further down on Parkview, which is an extension of it.  So those kind of streets are already carrying a not insignificant amount of kind of non-local traffic.  And then, of course, because they’re servicing large – relatively large residential catchments they themselves are carrying reasonable amounts of their neighbour’s traffic past each other to get in and out of those precincts.  And, you know, to get to or from the BP also requires some thought to get to or from the Caltex, requires some thought to get to or from the two service stations down Bryants Road, requires some thought on how you’re going to approach or depart.  It’s just a function of the relatively poorly planned road network in the area.

  1. [268]
    I accept Mr Douglas’ evidence. In turn, I am satisfied the proposed development will not give rise to any unacceptable impact on amenity or character by reason of the traffic movements generated in the local road network.
  1. [269]
    The issues identified in items (2), (3) and (4) above can be dealt with briefly. The issues raise technical matters with respect to impacts occasioned by reason of noise, lighting, air quality and traffic engineering matters. It is to be noted that Navara did not call any expert evidence in support of these technical issues.
  1. [270]
    As against Navara’s position, there is a substantial body of expert evidence in relation to noise, air quality and lighting impacts of the proposed development[168].  The experts[169] collectively examined the environmental emissions of the proposed development.  Agreement was reached across two joint reports. It was agreed the impacts would not be unacceptable, provided recommended conditions were imposed[170].  I accept this evidence. 
  1. [271]
    Mr Leon cross-examined each of the noise, lighting and air quality experts. With the greatest of respect to him, he did not undermine their evidence. Rather, his questioning tended to do no more than confirm that considerable attention had been paid to the environmental emissions of the proposed development and, subject to the imposition of conditions, those emissions would not be unacceptable.
  1. [272]
    A similar point can also be made with respect to the traffic engineering issues said to be associated with the relocation of the bus stop on Beenleigh Redland Bay Road. Navara alleges the relocated bus stop, which would be located immediately outside of its land, will be unsafe and inappropriate. It did not lead any expert evidence in support of the assertion. Nor did the final submissions identify the evidence relied upon to establish the allegation.
  1. [273]
    There is a substantial body of expert evidence in relation to the safety of the relocated bus stop in traffic engineering terms. It was a matter expressly dealt with by four traffic engineers in their joint report[171].  Only one of the traffic engineers, Mr Viney, expressed an opinion adverse to the location of the new bus stop. He said the location of the bus stop would prejudice the safety and wellbeing of bus passengers[172]
  1. [274]
    Mr Viney suggested the safety and wellbeing of bus passengers would be prejudiced by: (1) encouraging a pedestrian demand, without signals (across Beenleigh Redland Bay Road) from the relocated bus stop to a pathway leading to a residential area to the south; and (2) by requiring bus passengers to cross the main access driveway of the proposed service station if they proposed to walk back to the lights at the intersection of Beenleigh Redland Bay Road and California Creek Road.  Whilst these issues were raised by Mr Viney, he did not suggest that they were sufficient to warrant refusal of the development application[173].
  1. [275]
    As against Mr Viney’s evidence, there is the combined evidence of Mr Williams, Mr Trevilyan and Mr Douglas.  Mr Williams, called on behalf of the Chief Executive, expressly disagreed with Mr Viney’s opinion.  He said, while the relocated bus stop will require pedestrians to walk further to the signalised intersection at Beenleigh Redland Bay Road and California Creek Road, the signals provide a suitable facility for the safe movement of pedestrians.  In relation to the access driveway, Mr Williams pointed to two features, in his view, that suggest there will be no unacceptable safety risk to pedestrians.  He pointed to the combination of two factors, namely: (1) that pedestrians crossing the main access to the proposed service station would have an appropriate sight distance between vehicles entering the land; and (2) that a pedestrian’s site distance was enhanced by the provision of a left turn deceleration lane, which separates turning traffic from through traffic lanes.  I accept Mr Williams’ evidence in this regard.
  1. [276]
    I would also add that the issue of traffic safety was addressed by Mr Douglas. He agreed with Mr Williams, and further pointed out that the location of the bus stop brings with it a change to the road layout. He pointed out that it would deliver an extension to the current traffic merging arrangements on Beenleigh Redland Bay Road. In his view, this would be beneficial for east bound traffic utilising the busy arterial road[174]
  1. [277]
    Mr Douglas was cross-examined by Mr Leon about the benefits of the relocated bus stop[175]. In an exchange with Mr Leon, he confirmed the bus stop was to be relocated to the safest possible position (in comparison to other identified alternative locations) and would result in changes to the road layout which sounded in benefits to the community from a traffic perspective.  I accept Mr Douglas’ evidence in this regard.  The strength of the evidence was only confirmed by Mr Leon in cross-examination. 
  1. [278]
    The issue raised by Navara in item (5) above is without merit, and is fairly characterised as a red herring.
  1. [279]
    Navara contends the development application should be refused because there has been a non-compliance with the concurrence agency information request issued by the Chief Executive. In the information request dated 27 June 2017[176], the Chief Executive sought further information from Citimark with respect to the design of the relocated bus stop.  As part of that request, it was stated:

Where the re-located bus-stop is located adjacent to land parcels that are not a party to this application, written evidence is required from the affected land owner/s to confirm they do not object to the proposed re-location of the bus stop.

  1. [280]
    It is uncontroversial that Citimark’s response to the above information request did not include consent. That the response did not include consent is, however, of no particular importance. There is no adopted planning control, or statutory instrument, to which I was referred requiring Citimark to demonstrate it has the consent of Navara to relocate the bus stop. Further, there is no adopted planning control, or statutory instrument, that requires proof of consent to be demonstrated to achieve compliance with an assessment benchmark or code against which this Court is to assess the development. Ms Brien, who appeared for the Chief Executive, went so far as to submit that the matter of consent was not relevant to the assessment of the application[177].
  1. [281]
    In this case, the Chief Executive issued a concurrence agency response. The response was marked Exhibit 3A. It does not require, by way of condition, Citimark to demonstrate consent to the relocation of the bus stop. The conditions forming part of the response do not require any consent. No issue was raised by Navara about the Chief Executive’s conditions. Further, there is no evidence to establish there is a planning, or traffic engineering purpose, that would be served by the addition of such a requirement in any event.
  1. [282]
    As to item (6), Navara invites the Court to refuse the application on the footing that the existing character and amenity of the Navara land will be unacceptably diminished by the proposed development.
  1. [283]
    It is not difficult to accept that a 24 hour, 7 day per week service station has a real prospect of diminishing the amenity, and privacy, enjoyed by an adjoining residential use. Mr Perkins conceded in cross-examination that a service station is not a residential use, and does not have a residential character[178].  Mr Perkins also fairly conceded it was readily understandable why an owner, or occupier, of a residential property may not wish to live next door to a service station given general matters of perception.  These general propositions, in my view, are not, however, determinative of whether the impacts of the proposed development will be unacceptable. 
  1. [284]
    There is no doubt the proposed development will impact on the amenity and character of the locality. That flows from the addition of any new development to an area. The question is whether the impact would be unacceptable. There are four features of the evidence, taken in combination, that satisfy me the impact on amenity, character and privacy of the Navara land will not be unacceptable.
  1. [285]
    The four features are: (1) the evidence of the noise, lighting and air quality experts, which demonstrates the proposed development will not have an unacceptable impact, provided appropriate conditions are imposed; (2) the site plan, amended landscape plan and evidence of the visual amenity experts, which comfortably demonstrate that significant attention has been given in the design to the interface with the Navara land, where a 100 per cent vegetative screen will be achieved; (3) the likely effectiveness of the vegetative screen, at 100 per cent, is in all likelihood to be positively enhanced given the separation distance between the dwelling on the Navara land and the proposed development – this equates to some 85 metres from the dwelling to the edge of the built form; and (4) the Navara land does not enjoy a pristine rural residential character – the amenity and character enjoyed are significantly affected by its proximity to Beenleigh Redland Bay Road.
  1. [286]
    I would also add that any perceived loss of privacy resulting from the relocated bus stop lacks merit. As aerial photography before the Court confirms, the dwelling on the Navara land will be well removed from the relocated bus stop. The distance is such that prospective bus users are unlikely to have a direct view into the dwelling. In all likelihood, the prospect of overlooking in this sense is nil.
  1. [287]
    The privacy impact, at its highest, relates to the use of the yard, external to the dwelling on the Navara land. This area is screened from Beenleigh Redland Bay Road by a modest timber fence. The level of privacy and amenity in the yard is, as I have already said, significantly affected by its proximity to Beenleigh Redland Bay Road. When considered in this light, it is difficult to accept the proposed development, which involves the relocation of a bus stop, will unacceptably impact upon the privacy of the Navara land. It is already impacted by the existence of a major arterial road from which views into the land can be obtained.
  1. [288]
    For completeness, I note that the ‘final submissions’ made on behalf of Navara take issue with the level of certainty attaching to the proposed design of the bio-retention basin, landscaping and access driveways. 
  1. [289]
    That the design of the proposed development has not descended to the final detailed design phase is to be expected. As his Honour Judge Rackemann observed in SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24 at paragraph [23]:

Development design is commonly an iterative process.  As one would expect, the Applicant has not, at this stage, descended to the final detailed phase.  It would not be surprising if there were some changes as the design is refined and settled.  That is, no doubt, why many approvals are subject to conditions which require development “generally” in accordance with the approved plans.  The Respondent does not cavil with that, but suggests that the degree of “latitude,” reserved by the Applicant in this case, is excessive.

  1. [290]
    The evidence does not suggest the development is a futility, in the sense it cannot be constructed. Further, I am satisfied the design of the proposal does not impede the proper determination of whether the proposal complies, or could be conditioned to comply with, the relevant assessment benchmarks.
  1. [291]
    The evidence about this is all one way.
  1. [292]
    The evidence of Messrs Powell, McGowan and Douglas comfortably demonstrates that any uncertainty in the design is de minimis, and without consequence.  Further, the evidence demonstrates the Court can be confident the proposed development can be constructed generally in accordance with what is proposed, thereby appropriately mitigating impacts on the character and amenity of the area. 
  1. [293]
    All the features about which uncertainty is alleged by Navara will be the subject of conditions. The use will not be permitted to start, and lawfully continue, if the conditions with respect to the construction of the bio-retention basin, landscaping and access driveways are not complied with.
  1. [294]
    For the reasons given above, I am satisfied the issues raised by Navara do not warrant refusal of the development application.

Need

  1. [295]
    The issue of need arises in two ways in this appeal. First, it forms part of the test prescribed in s.3.5.8.1(1)(b)(i) of the planning scheme. Second, it is relied upon by Citimark, and Council, as a matter that favours approval of the development application in the public interest.
  1. [296]
    Citimark contends there is a need for the proposed development. The strength of the need was described by Mr Hughes QC and Mr Batty as ‘clear[179], ‘strong[180] and ‘pressing[181].  Council, while contending there is a need for the proposed development, was less enthusiastic about the nature, and strength, of the need.  Mr Job QC submitted there is an identified economic, community and planning need which exists today[182].
  1. [297]
    Before turning to deal with the need evidence, it is appropriate to set out a number of well-established principles that inform, and guide, an assessment of need. A useful summary of those principles was set out by Judge Wilson SC (as he then was) in Isgro Pty Ltd v Gold Coast City Council & Anor [2003] QPELR 414 at paragraphs [20] to [26].  The following principles taken from that summary are relevant to this appeal, namely:
  1. (a)
    a use is needed if it would, on balance, improve the services and facilities available in a locality;
  1. (b)
    need, in planning terms, does not mean pressing or critical need, or even a widespread desire;
  1. (c)
    the question of need is decided from the perspective of the community and not that of an applicant, commercial competitor or those who make adverse submissions;
  1. (d)
    providing competition and choice can be a matter which provides for a need, in a relevant sense;
  1. (e)
    any possible adverse effect on an existing business will only be relevant to the extent there is a risk of a reduction in the level of services enjoyed by the community by depressing one provider, and not replacing it with another; and
  1. (f)
    need is a relative concept to be given greater or lesser weight depending on all of the circumstances.
  1. [298]
    At paragraph [21] of Isgro, Judge Wilson SC (as he then was), said:

It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met (Indooroopilly Golf Club v. BCC (1982) Q.P.L.R 13 at 32-35, William McEwans Pty Ltd v. BCC (1981) 1 Q.P.L.R 33 at 35).

  1. [299]
    To examine the ‘basic assumption’ to which his Honour referred, and to determine whether the proposed development would, on balance, improve the facilities available in the locality, I had the benefit of evidence from four economists.  The economists are Messrs Duane (Citimark), Leyshon (Council), Brown (Wilhelm) and Norling (Navara). 
  1. [300]
    With the benefit of the economic evidence, taken together with the unchallenged evidence of Mr Horne[183], I am satisfied there is a need, in a planning sense for the proposed Service station.  This is so for the following reasons.
  1. [301]
    Mr Duane, Citimark’s economist, assessed the likely demand for a service station by applying two methodologies. The first is known as the corridor-based approach, which utilises traffic counts along a major traffic corridor, and a turn-in rate, to estimate likely demand for fuel, and related items[184].  The second adopted methodology is known as the catchment-based approach where a defined catchment, and the likely demand from that catchment, is assessed having regard to the size of the existing and future catchment population, and accessibility to existing facilities[185].
  1. [302]
    With respect to the corridor-based approach, Mr Duane opined that a turn-in rate of one per cent for the development need only be applied to achieve fuel sales in the order of 2.7 million litres. This sits within the range of average fuel sales reported in published data. At paragraphs 30 and 31 of the need joint report, the economists reviewed published data, suggesting the average number of litres of fuel, diesel and LPG sold per service station is in the order of 3.4 million litres, with non-supermarket based facilities averaging 2.9 million litres.
  1. [303]
    The calculation undertaken by Mr Duane for the corridor-based approach is set out at paragraphs 62 and 63 of the need joint report. At paragraph 62(b), it is stated that the assumed turn-in rate of one per cent equates to 175 vehicles, assuming 17,500 vehicles per day are travelling in an eastbound direction past the land.
  1. [304]
    Mr Duane’s evidence does not establish why it is appropriate to adopt, in the circumstances, a 1% turn-in rate. For example, the need report does not identify any comparative basis upon which to test, or examine, the applicability of the adopted turn-in rate in the circumstances.
  1. [305]
    Mr Norling was critical of the corridor-based approach.  At paragraph 66 of the need joint report, he said the calculation undertaken by Mr Duane was hypothetical, with no evidence to support the 1% turn-in rate.  He also said evidence was required to support the adopted turn-in rate given the existence of competing facilities that serve the same road corridor.  Mr Leyshon was of a similar view.  He agreed with Mr Norling because there was an absence of reliable data to test the validity of the turn-in rate adopted by Mr Duane[186]
  1. [306]
    Mr Norling and Mr Leyshon, whilst critical of the corridor-based approached, did not appear to consider the evidence of the traffic engineers. They assessed the volume of traffic likely to be generated by the proposed development. This evidence is relevant to an assessment of the turn-in rate.
  1. [307]
    Mr Duane’s assessment assumes 175 vehicles per day would turn-in to the proposed facility. This compares favourably with Mr Viney’s assessment (in Ex.45). He said the proposed development can fairly be expected to attract 70 vehicle movements into the development during the AM peak plus a further 70 in the PM peak. On the basis of this forecast, 140 vehicles are forecast to turn-in to the development during a two hour period of the day for a use that will operate 24 hours a day. The turn-in rate adopted by Mr Duane appears conservative when considered in this light.
  1. [308]
    In fairness to Mr Duane, I did not take him to suggest that a turn-in rate of 1% was the applicable rate to apply in the circumstances. Rather, I understood him to be suggesting that a turn-in rate of 1% per day would be sufficient for the proposed service station to be sustainable. The assumption appears to be a conservative one. I am satisfied the corridor-based approach establishes there is, as a starting point, a basis to conclude that a service station on the land would be sustainable, which is consistent with the existence of an economic need.
  1. [309]
    For the catchment-based approach, Mr Duane identified the trade area he assessed would be conveniently served by the proposed Service station. The area is identified on Map 2[187] in the need joint report, and comprises four sectors, namely: (1) primary east; (2) primary west; (3) secondary north; and (4) secondary east.  Mr Duane and Mr Leyshon agreed each of these sectors were relevant to the assessment of need for the subject proposal[188].  Mr Brown and Mr Norling adopted a different approach.
  1. [310]
    Mr Brown accepted that residents of the primary east sector, and some of the secondary east sector, may use the proposed development when refuelling on homebound trips. He did not agree the proposed development would experience material trade from the primary west sector. He said the local road network provides poor and convoluted access for that area to the land[189].  Nor did Mr Brown support the inclusion of the secondary north sector in the trade area[190].  As I understood his evidence, Mr Brown considered the secondary north sector to be too remote from the land. 
  1. [311]
    Mr Norling accepted the proposed development would primarily serve the needs of the primary east sector, with residents of this area conveniently located to the land and likely to pass the facility on a regular basis[191].  Mr Norling also accepted the existing rural residential population of the secondary east sector was relevant to the assessment, as some of the residents were likely to pass the land on a regular basis.  He did not accept the primary west sector should be included in the trade area because residents of that area are close to a number of existing service stations, and unlikely to pass the land on a regular basis.  Finally, Mr Norling did not accept the secondary north area should be included in the trade area because it is too remote from the land, and is already serviced by an existing BP service station[192].
  1. [312]
    In my assessment, the relevant trade area that would be conveniently served by the proposed development comprises the primary east sector, secondary north sector, and to a lesser extent, the secondary east sector.
  1. [313]
    The economists agreed the trade area should include the primary east sector. Having regard to the street directory, and location of competing facilities[193], I agree.
  1. [314]
    As to the primary west sector, I accept the evidence of Mr Norling and Mr Brown that it should not be included in the trade area given the proximity of that sector to existing facilities, coupled with the likely direction of travel for residents. Their view is made good having regard to the street directory (Exhibit 1), read together with section 5 of the need joint report, wherein the location of existing facilities that serve this sector are identified[194].  The location of existing facilities relative to the primary west sector makes it more likely, in my view, that residents of that sector will travel away from (west), rather than in the direction of, the land (east).
  1. [315]
    As to the secondary north sector, I accept the evidence of Mr Duane and Mr Leyshon that this area is fairly included in the trade area.  As the trade area map vividly reveals, this sector is accessed by a major arterial road, namely Mt Cotton Road, which connects to Beenleigh Redland Bay Road.  The connection occurs to the east of the land, and is a signalled intersection.  It is uncontroversial that 22,000 vehicles per day pass the land on its Beenleigh Redland Bay Road frontage.  It is not unreasonable to assume that a large proportion of this traffic heading eastbound has a connection with the secondary north sector.  The land is conveniently located to serve this sector, which at present, has an older form of BP service station.  That the development would be conveniently located to serve this sector is, in my view, fortified by reason that California Creek Road also provides a convenient road connection, in part, to the secondary north sector.  Vehicles travelling south, and southeast from this sector will find the proposal convenient to meet their fuel, and associated needs. 
  1. [316]
    As to the secondary east sector, I accept the evidence of Mr Duane and Mr Leyshon.  This is for similar reasons to those given for the secondary north sector.  The secondary east sector is accessed by a major arterial road, namely Beenleigh Redland Bay Road.  Vehicles travelling to and from this sector will pass the land, which will be conveniently located to meet the public’s need for fuel, and associated items.  The convenience of the land to meet those needs is only enhanced once it is appreciated there are limited service station facilities that exist along this route to the east. This is unlikely to change in the foreseeable future. 
  1. [317]
    Whilst the secondary east sector is appropriately included in the trade area for the proposed development, it should be recognised that the extent to which it will be served by service station facilities in the future is likely to dramatically change given a substantial urban development has been approved within the sector. This development is known as Shoreline. The growth in population to be accommodated by this development is reflected in population projections for the sector. In 2018, the population of the sector was forecast to be 620 persons, increasing to 5,150 persons in 2031. Given the size of the Shoreline development, it is reasonable to assume that service station facilities will be provided to serve the residents of that development and sector, but this is unlikely to occur in the short term.
  1. [318]
    To accommodate this feature of the evidence, I agree with Mr Norling that the population to be taken into account in the secondary east sector should be limited to the existing rural residential population, which is presently 620 persons. That is forecast to increase to 650 persons in 2021[195].  For the assessment of the trade area population, the secondary east sector should be assessed at 620 persons in 2018, increasing to no more than 650 persons in 2021. 
  1. [319]
    The economists agreed about the existing and forecast population of the entire trade area in the year 2011, and at intervals up to and including 2031. The population figures are set out in Table 2 of the joint report[196].  If it is assumed the proposed development, if approved and constructed, would commence trading in 2021[197], the population figures for the trade area sectors were agreed as follows: (1) primary east – 7,520; (2) primary west – 2,190; (3) secondary north – 7,660; and (4) secondary east – 650. 
  1. [320]
    Putting to one side the primary west sector, table 2 of the joint report reveals:
  1. (a)
    the population of the primary trade area (which comprises the primary east sector) is 7,520 persons in 2021, increasing to 8,020 persons in 2031; and
  1. (b)
    the population of the total trade area (which comprises the aggregate of the primary east, secondary north and secondary east sectors, with the latter capped at 650 persons) is 15,830 persons in 2021, increasing to 16,830 persons in 2031.
  1. [321]
    In the trade area, as I have assessed it, the economists agreed there are three existing service stations[198].  A 24 hour BP service station is located about 200m west of the land serving westbound traffic.  This is the service station in which Mr Wilhelm has a commercial interest.  A 24 hour Caltex Woolworths is located approximately 1km to the east serving eastbound traffic along Beenleigh Redland Bay Road.  An older style BP service station is located in the secondary north sector.
  1. [322]
    One recognised indicator of demand for additional service station facilities involves benchmarking the number of existing service stations per head of population against recognised published averages. To assist in this benchmarking exercise, the economists agreed that the Logan City Council local government area is currently serviced by one service station per 3,523 persons[199].  This rate of provision is significantly higher than the Australian metropolitan average, which is one service station for every 4,000 to 5,000 persons[200].
  1. [323]
    Turning to the trade area, the rate of provision of service stations in the primary trade area equates to one per 3,760 persons in 2021. As to the total trade area, the rate of provision of service stations can be expressed as one per 5,276 persons in 2021. If it is assumed the development application was approved, and constructed, the rate of provision would change to one per 2,507 persons in the primary trade area, and one per 3,958 persons in the total trade area.
  1. [324]
    I agree with Mr Brown that caution needs to be applied to the use of averages, such as the Australian metropolitan average of one service station for every 4,000 to 5,000 persons. This is an average that applies across a broad area. It may not necessarily reflect that particular locations have a concentration of service stations, with a resulting higher than average provision rate compared to other areas, which are not as well served. In my assessment, the appropriate comparison for benchmarking purposes is the rate of provision for the total trade area in the year 2021. It reflects the geographical area that will be conveniently served by the proposed development. If the proposed development was approved, and/or constructed, the rate of provision within that area would be one service station per 3,958 persons.
  1. [325]
    This rate of provision, when compared against the benchmark figures identified above suggests one of two things: (1) the trade area is, even allowing for the proposed development, underserviced by comparison to the Logan local government area taken as a whole; and (2) the trade area, including the development, would be serviced in line with the Australian metropolitan average of one service station per 4,000 people.
  1. [326]
    Given the benchmarking exercise above, can it be said there is an economic or qualitative demand for the proposed service station?
  1. [327]
    The benchmarking exercise, in my view, is one indicator of demand for the proposed service station. It establishes there is a demand for an additional service station to conveniently serve the trade area. The provision of existing facilities performs poorly against the Australian metropolitan average, as well as the service provision for the entirety of Council’s local government area. The extent of the difference between each benchmark, and the rate of provision is, in my view, more than trivial.
  1. [328]
    That the benchmarking exercise indicates there is a qualitative demand for the proposed service station in the trade area is only reinforced when considered against the background of the ‘socio-economic characteristics[201] and the ‘journey to work[202] data applicable to the trade area population.  With the benefit of this empirical data, the economists agreed it revealed:
  1. (a)
    the average household income levels for the trade area are significantly higher than the Brisbane average;
  1. (b)
    the average household size is above the Brisbane average at 3.0 persons;
  1. (c)
    car ownership levels are high through the trade area, particularly in the primary sector, with households owning two or more cars; and
  1. (d)
    nearly half of the employed residents within the trade area defined by Mr Duane and Mr Leyshon travel outside of the Logan City Council and Redland City Council local government areas for work.
  1. [329]
    The trade area population is car dependant. It is fairly assumed to generate a commensurate demand for conveniently located fuel, and associated items. The present provision of service stations to serve this car dependant population, even allowing for the existence of facilities further afield is, in my assessment, inadequate to meet the legitimate needs of the trade area.
  1. [330]
    The assessment of need up to this point has focussed on the existence of an economic demand for a service station that lends itself to a form of empirical expression. As the authorities confirm, an assessment of need is not limited to simply matters of empirical, or quantitative, assessment. The assessment also takes into account matters of public benefit that may, either individually or collectively, indicate the existence of a need. The indicators to be considered in this context, are those that demonstrate the use would, if approved, improve the physical wellbeing of the community. Put another way, it can be asked: will the use, if approved, improve the ease, comfort, convenience and efficient lifestyle of the community?
  1. [331]
    I am satisfied the evidence demonstrates this question is answered in the affirmative for the trade area population. The trade area population has a higher than average level of car ownership and, in turn, a foreseeable higher than average demand for fuel, and associated items. That the wellbeing of this population will be improved is demonstrated having regard to considerations of choice, competition and convenience.
  1. [332]
    With respect to choice, the proposed service station operator is 7-Eleven. At present there is no 7-Eleven service station located in the trade area. An approval, would, as a consequence, introduce an operator into the trade area that is not presently represented. This has an intangible benefit. It introduces an operator that is a known independent retailer into the trade area. The addition of a new independent operator, self-evidently, increases choice for residents of the trade area.
  1. [333]
    The written submissions prepared on behalf of Mr Wilhelm accept it is trite to observe that an approval would increase choice. The point made, however, is that there is no evidence of any latent, or unsatisfied demand, or need for choice by the community which is not already served by existing service stations identified in Table 7B of the economists’ joint expert report. I reject this submission. It proceeds on the misapprehension there is a requirement to demonstrate a latent or unsatisfied demand or need for choice. That is not the test. One looks to whether there are indicators that a development will improve the physical wellbeing of the community. One such indicator is that development will enhance the community’s choice of facilities. The evidence demonstrates an approval would enhance the community’s choice in fuel providers. This is by no means immaterial. The additional choice to be provided here relates to an independent fuel provider who is known for being price competitive, and is not represented in a trade area experiencing higher than usual petrol prices. The addition of the proposed development in such circumstances will improve the ease, comfort and efficient lifestyle of the trade area population.
  1. [334]
    There is an overlap between the concepts of choice and competition.
  1. [335]
    The proposed development will introduce an independent service station operator into the trade area who is not presently represented. This will provide additional choice. It will also, self-evidently, through the addition of a new trader increase competition in the market. That competition will be increased in the trade area is a matter of some moment given, as Mr Leyshon said, the purchase of fuel is ‘such a price driven transaction[203].
  1. [336]
    As part of their assessment, the economists undertook a review of published data and reports about the state of the fuel market in Brisbane. One particular publication reviewed was a report prepared by the ACCC titled ‘Report on the Brisbane Petrol Market’ (October 2017).  This report was prepared on the basis that petrol prices in Brisbane had been significantly higher than the other four largest Australian capital cities for the period between 2009/10 to 2016/17 and during 2018[204].  It was observed the report identified that retail fuel pricing is less competitive in Brisbane; Brisbane has fewer independent chains than other cities; independent chains in Brisbane do not price as aggressively as in other cities; and higher prices and profits in Brisbane have imposed a significant cost on Brisbane motorists[205].
  1. [337]
    The published data also dealt with 7-Eleven as an independent operator. The ACCC report identified it was consistently the cheapest provider of fuel in the Brisbane and Sydney markets[206].  This is consistent with Mr Duane’s evidence who observed that 7-Eleven has constantly proved to be one of the cheapest fuel operators within the Brisbane market[207].  It is also consistent with the evidence of Mr Norling and Mr Brown who acknowledged that 7-Eleven is a price discounter[208].
  1. [338]
    Mr Leyshon said that numerous price surveys throughout Australia have identified independent operators, such as 7-Eleven, as consistently positioned at the lower end of the price spectrum in every fuel market. He went on to say that, unsurprisingly, the presence of one, or more, independent outlets in an area has the potential to moderate the prices of other major retailers of fuel[209]. The presence of an independent (such as 7-Eleven) is more likely to lead to ‘sharper’ pricing by competitors.  Mr Leyshon’s research confirmed that it was the independent operators who triggered downward price movements, which were then matched by the major traders for fear of losing market share and business[210].
  1. [339]
    On balance, the introduction of an independent service station operator, such as 7-Eleven, into the trade area will likely lead to improved competition in a market dominated by major fuel retailers. This is supported by Mr Leyshon’s evidence, including his experience with the fuel market. That competition will be increased in the trade area is an indicator the physical wellbeing of the community is likely to be improved by the proposed development. This improvement is by no means trivial. It involves the increase of choice and competition in a market which is recognised as experiencing higher than average fuel prices for a community that has a high dependence on motor vehicles and a higher than average demand for fuel.
  1. [340]
    That the proposed development will provide an enhancement to the community in terms of choice and competition is further complemented by its location, and visibility in the road network. The evidence comfortably demonstrates the proposed service station will be well-located and highly visible to conveniently serve: (1) high volumes of passing traffic; and (2) the trade area population.
  1. [341]
    In my assessment, the land is conveniently located in the road network, and the proposal well-designed with safe and convenient access (left in-left out) from two road frontages, to meet the need for a further service station. As Mr Job QC submitted, the need to be met exists today. That the proposal is conveniently located to meet the need is a further indicator the physical wellbeing of the community would be enhanced by the proposed development.
  1. [342]
    The submissions advanced on behalf of Navara and Mr Wilhelm are critical of the evidence, and submissions, advanced about choice, convenience and competition. It was submitted the evidence overstates the benefits. Further, it is said there is no guarantee the proposed development will deliver any tangible benefits in terms of competition, or lower fuel prices.
  1. [343]
    A number of the criticisms directed to the evidence about choice, convenience and competition cannot be rejected out of hand. I do accept that the evidence, and some submissions, at times, were prone to express the benefits with high levels of enthusiasm that tended to overstate the position. That said, I do not accept it can be said the addition of an independent service station in the trade area will deliver no benefits in terms of choice, competition and convenience. Benefits of this kind do not lend themselves to empirical expression. They are considerations of a qualitative nature. I have treated them as such, and taken them into account in assessing, overall, whether the community wellbeing would be enhanced.
  1. [344]
    When considered in all of the circumstances, I am satisfied the proposed development will improve the existing level of services available to the trade area population, which, in turn, will provide benefits in terms of choice, competition and convenience. That is not to say, however, these matters are determinative of the question of need.
  1. [345]
    In my view, the quantitative assessment discussed above demonstrates there is a latent unsatisfied demand for service station facilities in the trade area. The same exercise demonstrates that the demand for such facilities exists today. This is then complemented by the qualitative matters, which I have discussed above. In combination, they demonstrate the subject proposal is well-located to meet a latent unsatisfied demand. In meeting that demand, the proposed service station has the potential to deliver significant public benefits that improve the convenience, comfort and lifestyle of the trade area population. In circumstances such as this, I am comfortably satisfied there is an economic and community need for the proposed service station.
  1. [346]
    The proposed development comprises not only a service station, but also includes a Shop and Food and drink outlet. The components are to be operated 7 days a week, 24 hours a day. The assessment of need to this point has focussed on the Service station component. It remains to be considered whether there is a need, and or demand, for a Shop, Food and drink outlet and 24 hour operation.
  1. [347]
    Having regard to the need joint report, it is difficult to reject the evidence of Mr Norling and Mr Brown about the need for these components of the development.  Both experts establish there is no economic need for a Shop, Food and drink outlet or indeed 24 hour, 7 day operation on the subject land.  This, however, is not ultimately determinative of the issue of need in relation to these aspects of the proposal. 
  1. [348]
    With respect to the Shop and Food and drink outlet, there is, in my view, little to be gained by examining whether there is an economic need, or demand for such uses on the land. This is because the planning scheme definition of Service station anticipates a Shop and Food and drink outlet may form part of the Services, where ancillary[211].  That is to say, there is at least an expectation to be derived from the planning scheme that a Service station may include an ancillary Shop and Food and drink outlet. 
  1. [349]
    The proposed Shop component is fairly characterised as ancillary. It is small in scale and will be the point of sale for the fuel offered for purchase. It takes its colour from the Service station. There is no requirement, in my view, to demonstrate an economic need for a Shop in such circumstances.
  1. [350]
    The Food and drink outlet is not fairly characterised as ancillary. It does not take its colour from the Service station. It is fairly characterised as a separate use. That said, it is, like the Shop, a facility that patrons expect in a modern Service station[212].  Mr Duane identified there is an increasing trend for the co-location of Service stations with fast food outlets[213].  This is a matter with which Mr Leyshon agreed. 
  1. [351]
    Whilst no economic need has been demonstrated for the Food and drink outlet, as Mr Norling and Mr Brown accepted, the co-location of the facility with the service station will provide an added benefit to the public[214].  I agree.  The benefit to the public is one of convenience. 
  1. [352]
    In circumstances where the community has a reasonable expectation that a modern Service station will include a Shop and Food and drink outlet, and there are benefits which accrue to the public with respect to the co-location of such facilities, an approval of the development would, overall, improve the physical wellbeing of the community.
  1. [353]
    As to the proposal to operate the development 24 hours a day, each of the economists recognised, in general terms, this is a matter of community benefit. But, as Mr Norling and Mr Brown said, there is no economic need demonstrated for 24 hour trading on the land.
  1. [354]
    That may be so, but to then dismiss the suggestion the proposed Service station, Shop and Food and drink outlet should operate 24 hours a day fails to give sufficient recognition to a number of matters raised by Mr Duane at paragraph 131 of the need joint report. It also fails to give sufficient recognition to Part 6 of his further statement of evidence. These aspects of his evidence emphasise: (1) the importance of late night/early morning shopping facilities for the public when other facilities are closed; and (2) that 24 hour operation provides the opportunity for local residents to access fuel at any time of the day depending on their movements.
  1. [355]
    The importance of having access to fuel at any time of the day is obvious enough in this trade area given the degree to which it is car dependent. It is also clear when three key trends identified by Mr Duane are taken into consideration. The trends are set out in paragraph 132 of the need joint report, which states:

Key trends reflecting the importance of convenience and petrol stores opening 24-hours include:

a. Work hours have changed substantially in Australia, with many people leaving home in the early hours of the morning, particularly tradesmen and the like.  Service stations open at such times provides a high level of convenience.

b. Shift work has also become increasingly important as part of the Australian environment and means people are travelling on roads at earlier/later times.

c. Australians have become more time poor, with two parents working, and 24-hour shopping provides people with a range of convenience goods to meet their everyday needs.

  1. [356]
    Given the above matters, I am satisfied there is a public benefit attributable to the proposed development operating 24 hours a day, 7 days a week. It will provide access for a car dependent trade area population to purchase fuel at any time of the day. This access will be convenient, and complemented by the Shop and Food and drink outlet. This sounds, in my view, in public benefits. The benefits result in the improvement of the range of facilities available to the trade area population and, as a consequence, will enhance their physical wellbeing.
  1. [357]
    For the reasons set out above, I am satisfied there is a latent unsatisfied demand for a service station to serve the residents of the trade area. The provision of that service station, coupled with the complementary Shop and Food and drink outlet uses will improve the physical wellbeing of the community. This public benefit will be enhanced where the facility operates 24 hours a day, 7 days a week providing ready access to fuel, convenience goods and food for the trade area population.
  1. [358]
    Mr Leyshon described the strength of the need for the proposed development as ‘medium level[215]. I accept this is an appropriate descriptor. It fairly reflects there are different considerations applying to the different elements of the proposal that I have dealt with above.
  1. [359]
    The remaining issue to be examined is whether the latent unsatisfied demand for the Service station can be met by the planning scheme in its present form. This question, in my view, is answered in the negative.
  1. [360]
    The case advanced on behalf of Mr Wilhelm and Navara emphasised that the proposed development is a Centre activity that should be located in a centre. A review of the planning scheme reveals Council, as planning authority, has made provision for Service stations, Shops and Food and drink outlets. It is correct to say that such uses are directed to locate in the Centre zone, Mixed use zone and Specialised centre zone.
  1. [361]
    A comparison of the trade area with the applicable zoning map reveals: (1) there is no land in the trade area which is included in the Mixed use zone or Specialised centre zone; (2) there is land in the trade area included in the Centre zone; and (3) the land included in the Centre zone is located on the southern side of Beenleigh Redland Bay Road, coincident with the centre known as the Cornubia local centre.
  1. [362]
    The evidence establishes there is no land available in this centre to accommodate the proposed development. It is developed with Centre activities, as is anticipated by the planning scheme.
  1. [363]
    This has the consequence that the need identified in the trade area, which exists today, can only be met in one of two places: (1) on land not included in the Centre zone in the trade area; or (2) on land included in the Mixed use, Specialised centre or Centre zone, but located outside the identified trade area.
  1. [364]
    That the Service station, Shop and Food and drink outlet would need to locate in one of these two locations demonstrates the identified need cannot be met by the planning scheme in its present form. This, in concert with the identified latent unsatisfied demand, establishes there is a need, in a planning sense, for the Service station.
  1. [365]
    It is to be noted that Mr Norling suggested the need for a Service station operated by an independent retailer could be met on land located in the Loganholme local centre. This land is not located in the trade area and, as I have already said, is significantly constrained. I do not accept Mr Norling’s evidence in this regard. The location of the centre is not suitable to meet the identified need.
  1. [366]
    As a result, I am satisfied there is a town planning, community and economic need for the proposed service station. This use will be complemented by the proposed Shop and Food and drink outlet. Those uses will, in conjunction with the Service station, improve the physical wellbeing of the trade area population as I have defined it.

Exercise of the planning discretion

  1. [367]
    The planning discretion conferred by s.60(3) of the PA is expressed in broad terms. As I have already said, it is not constrained by a ‘conflict and grounds’ test. It admits of more flexibility than its statutory predecessor. That is not to say it is an unbridled discretion to approve development. The discretion is to be exercised based on the assessment carried out pursuant to s.45(5) of the PA. Such an assessment must be carried out against the applicable assessment benchmarks for the development application.
  1. [368]
    Based on an assessment of the application against the principal assessment benchmark, namely the planning scheme, and identified relevant matters, I am satisfied Citimark has established the following:
  1. (a)
    the proposed development can be conditioned in a way that complies favourably with the Overall outcomes and  Performance outcomes in the Rural residential zone code;
  1. (b)
    the proposed development can be conditioned to comply with the Servicing, access and parking code in the planning scheme;
  1. (c)
    the proposed development will not have any unacceptable impacts on the safety and efficiency of the local road network, including State controlled roads;
  1. (d)
    the proposed development will be conveniently located to meet an existing town planning, community and economic need for a Service station in an identified trade area;
  1. (e)
    the proposed development can meet the identified need for a Service station in circumstances where:
  1. (i)
    the need relates to a daily essential of life, namely fuel, for a trade area population that is car dependant;
  1. (ii)
    the development can be conditioned such that it will have no unacceptable impacts on amenity, character or privacy;
  1. (iii)
    the development cannot be located in an existing centre within the identified trade area; and
  1. (iv)
    the development will have no unacceptable impacts on any existing centre, or the centre hierarchy in the planning scheme;
  1. (f)
    the proposed development provides an opportunity to increase competition and choice in the local fuel market through the addition of a well-recognised independent fuel retailer known to be price competitive;
  1. (g)
    assuming the provision has application to the appeal, the proposed development substantially complies with s.3.5.8.1(1)(b) of the Strategic framework, in that it has been demonstrated that:
  1. (i)
    there is a community need and economic need for the proposed Service station;
  1. (ii)
    the proposed development will comfortably exist outside of the centres hierarchy;
  1. (iii)
    the proposed development is of a scale and function that will not disrupt the centres hierarchy in any unacceptable way;
  1. (iv)
    the proposed development will not have any adverse effects on existing or planned centres; and
  1. (h)
    the proposed development will deliver a number of traffic engineering benefits, that is, it will improve various elements of the local road network at no cost to the public. 
  1. [369]
    I accept that each of the above matters are compelling grounds to warrant approval.
  1. [370]
    As against the above, it can be said there are three matters that tell in favour of refusal, namely: (1) it has not been demonstrated there is an economic need for the proposed Shop or Food and drink outlet; (2) it has not been demonstrated there is an economic need for the development to operate 24 hours a day; and (3) the proposed development does not comply with all aspects of s.3.5.8.1(1)(b) of the planning scheme.
  1. [371]
    I am satisfied items (1) and (2) do not warrant refusal of the application, be it individually, or collectively.
  1. [372]
    The planning scheme defines ‘Service station’ to include a Shop and Food and drink outlet as an ancillary use.  Here, the proposed Shop will be an ancillary use to the proposed Service station. It will form part of the same planning unit for which a need has been demonstrated. Importantly, an approval of the Shop component will not sound in any disruption to the centres hierarchy in the planning scheme. Nor will it sound in any unacceptable impact on amenity or character.
  1. [373]
    A Food and drink outlet is also anticipated as an ancillary use in the definition of Service station. The proposed Food and drink outlet is not an ancillary use here given its size, and because it can operate independently of the Service station. In circumstances such as this, an important matter to be considered relates to the impacts, if any, of this use. The evidence establishes there will be no unacceptable impacts from the Food and drink outlet. Neither the scale, nor the operation, of the use will manifest in any unacceptable planning consequence.
  1. [374]
    The evidence also establishes that an approval which permits 24 hour operation and the Shop and Food and drink outlet would not, subject to the imposition of conditions, give rise to any unacceptable impacts on amenity, or character. Nor would these features of the proposal sound in any disruption to the centres hierarchy in the planning scheme.
  1. [375]
    Further, I am satisfied, having regard to the evidence of the need experts, there are identifiable benefits that will accrue to the public in the event the development is approved to operate 24 hours a day, inclusive of a Shop and Food and drink outlet.
  1. [376]
    The benefits of 24 hour trading were identified by Mr Duane in section 6 of the need joint report, and at section 6 of his further statement of evidence[216].  I accept this evidence. 
  1. [377]
    The public benefits that can be ascribed to the Shop and Food and drink outlet in the proposed development were considered in detail by Mr Leyshon and Mr Duane.  I accept this evidence, particularly the opinions expressed in paragraphs [165] to [167] and [169] to [172] of the need joint report.  That evidence is supported by the following opinions expressed by Mr Brown and Mr Norling in the need joint report, namely:
  1. (a)
    at paragraph 168 of the joint report it was said:

…However, if the Court approves the Service Station on the subject site, then we say that it should also approve the Shop component, as patrons of the Service Station would expect to avail themselves of the range of goods typically sold in a Shop forming part of a Service Station.

  1. (b)
    at paragraph 173 of the joint report it was said:

…However, we agree that if the Court approves the Service Station, then the proposed Food and Drink Outlet would provide an added benefit to customers of that Service Station.

  1. [378]
    Mr Norling confirmed in his oral evidence that the absence of an economic need for the Shop and Food and drink outlet should not, from an economic perspective, stand in the way of an approval. This is clear from the following passage of cross-examination with Mr Hughes QC:

Well, we should push on before you start to run on empty, Mr Norling, I suppose.  There’s no doubt that you agree that in terms of the public benefit, should the court determine that a service station ought to be approved on this site, that the shop component and the fast-food component ought to be, as a matter of economic efficiency and public convenience, approved as well?Yes.

And we see that by looking at page 69, paragraph 168 in respect of the shop.  Again, Mr Brown stated that clearly?On paragraph 168, yes.

On page 69, and if we go over the page, to page 70, in paragraph 173, we see the same about the [indistinct]?Yes.

All right.  The issue, really, before the court for his Honour’s consideration is the fuel component?Yes.

  1. [379]
    I am also satisfied the non-compliance identified with s.3.5.8.1(1)(b) of the planning scheme should not be decisive in this appeal. This is so for five reasons.
  1. [380]
    First, the provision, whilst no doubt representative of an important planning strategy, does not directly apply to the proposed development. 
  1. [381]
    As I have already said, the planning purpose of s.3.5.8.1 is to regulate Centre activities that, inter alia, create a new centre, or expand an existing centre. The proposed development will do neither of these things. The opposition to the approval on behalf of Mr Wilhelm and Navara proceeds on a contrary footing. 
  1. [382]
    Second, that the proposed development constitutes an out-of-centre development in and out-of-centre location, which does not meet s.3.5.8.1(1)(b) of the planning scheme, is, in any event, unremarkable having regard to the planning scheme read as a whole.  The planning scheme anticipates Centre activities in out-of-centre locations where, as here, they are provided in a context that does not create a new centre, or expand an existing centre.
  1. [383]
    Third, there is no planning principle relevant to the location of service stations that would militate against approval.  The evidence of the need and town planning witnesses establishes that service stations are flexible in their locational requirements.  They can be located in centre.  They can be located out of centre.  They can also be located on busy roads to serve the needs of the public in a convenient way. 
  1. [384]
    The proposed development will be located at the intersection of two busy roads. It will be highly visible, and conveniently located, on those busy roads to meet the needs of the trade area population. This is in circumstances where the proposal will have no unacceptable impact on the centres hierarchy, and there is no available land in the Mixed use zone, or a centre type zone (Centre zone or Specialised centre zone) in the trade area to accommodate the proposed development.
  1. [385]
    Fourth, the non-compliance with the planning scheme does not manifest in any planning consequence.  That is to say, even assuming complete non-compliance with s.3.5.8.1(1)(b) of the planning scheme, it does not manifest in any planning consequence. The proposed development will have no unacceptable impact on amenity, or character.  Nor will it have any unacceptable impact on the centres hierarchy. 
  1. [386]
    Fifth, the assessment against s.3.5.8.1(1)(b) of the planning scheme reveals that a service station could, theoretically, be located on land in the Centre zone in the Loganholme local centre. 
  1. [387]
    This should not stand in the way of an approval.
  1. [388]
    As I have said, having regard to Mr Norling’s evidence, that land is significantly constrained.  I have serious misgivings as to whether it is reasonable to assume it would, in fact, be developed for a service station in the foreseeable future.  To assume this land represents a reasonable candidate to meet the identified need for the service station has an air of impracticality about it. 
  1. [389]
    In my view, refusing the proposed development in the hope the constrained land at the Loganholme local centre may be developed for a service station is unlikely to lead to the satisfaction of the need that has been identified. The need exists now, and relates to a necessary of life, namely fuel. Fuel is of particular importance to the population of the trade area. They are car dependant, and known to pay higher prices for fuel. To refuse the application on the basis that this need may theoretically be met on land outside the trade area is unpersuasive.
  1. [390]
    Against the background of the above considerations, it is my view the public interest, in a planning sense, is not better served by refusing the development application. To refuse it would represent a triumph of form over substance. The form constitutes textual non-compliance with s.3.5.8.1 of the planning scheme. The substance involves a meritorious proposal.
  1. [391]
    An assessment of the merits of the proposal comfortably establishes it will be conveniently located to meet an identified need for a necessary of life, which exists today. The need can be met by the proposal in circumstances where a number of benefits will accrue to the public in terms of choice, competition and convenience. These benefits will accrue in circumstances where there will be no unacceptable impacts on amenity, character or the centres hierarchy.
  1. [392]
    Accordingly, the application should be approved, subject to conditions.

Conclusion

  1. [393]
    I am satisfied Citimark has established the two submitter appeals against Council’s approval should be dismissed.
  1. [394]
    Whilst the appeal against Council’s approval is to be dismissed, there is a requirement for the decision approving the development application to be set aside, and replaced with a new decision. The new decision is to incorporate an updated suite of conditions.
  1. [395]
    The appeal will be adjourned to allow an amended suite of conditions to be formulated.
  1. [396]
    The orders of the Court will be:
  1. By 4:00pm on 3 February 2020, the respondent provide a draft suite of conditions to the parties.
  2. The appeal be listed for review at 9.15am on 5 February 2020.

Footnotes

[1]  Ex.3, p.159.

[2]  Appeal No.3206 of 2018.

[3]  Appeal No.3364 of 2018.

[4]  Ex.3A, condition 4.

[5]  s.43, Planning and Environment Court Act 2016 (PECA).

[6]  s.45(2), PECA.

[7]  Ex.9, p.4, paragraph 11.

[8]  Ex.9, p.4, paragraph 12.

[9]  Ex.9, p.4, figure 1.

[10]  For example there is a panther striking an attacking pose located on the roof of the dwelling.

[11]  Ex.12, p.23, paragraph 57.

[12]  Ex.20, p.2, paragraph 5.

[13]  Ex.9, p.4, paragraph 13.

[14]  Ex.9, p.4, figure 1 and Ex.15, figure 2.

[15]  Ex.15, p.27, figure 1.

[16]  T2-11, Line 35 to 41.

[17]  Ex.9, p.5, paragraph 15.

[18]  Ex.9, p.4, figure 1.

[19]  McGowan: T2-36, Line 18 to 22.

[20]  Ex.30.

[21]  Ex.9, p.5, paragraph 20.

[22]  Ex.15, p.39 and 40, figures 25 and 27.

[23]  Ex.15, p.5, paragraphs 16 and 17.

[24]  Ex.15, p.14, paragraph 52.

[25]  T2-24, Line 6 to 16.

[26]  Ex.9, p.5, paragraph 19 and figure 2.

[27]  Ex.24.

[28]  Ex.15, figures 1, 3, 4, 21, 22, 25 and 26.

[29]  Subject to limitations on the operating hours for various activities which are to be regulated by conditions, including fuel delivery limited to 7am-6pm and food and drink delivery 7am-10pm and waste collection 7am-6pm (conditions 3.12, 3.15 and 3.17).

[30]  Which can be seen on Ex.2, p.6.

[31]  T2-49, Line 13 to 27.

[32]  McGowan: T2-36, Line 25.

[33]  Ex.72, pp.8-11, paragraph 4.9 to 4.21; Ex.73, paragraph 10; and Ex.75, p.6, paragraphs 16 and 17.

[34]  s.59(3), PA.

[35]  Ex.6 and 6A.

[36]  Ex.6, p.1.

[37]  See s.3 of the Sustainable Planning Act 2009.

[38]  Ex.72, p.12, paragraph 4.23.

[39]  Ex.72, pp.12-13, paragraphs 4.24 to 4.26.

[40]  As discussed in detail in Australian Capital Holdings Pty Ltd v Mackay Regional Council [2008] QCA 157.

[41]  Ex.72, p.47, paragraph 7.40.

[42]  Ex.72, p.37, paragraph 7.1, read with paragraphs 4.29 to 4.43.

[43]  Ex.6, p.16, s.3.1(3)(b)(iii).

[44]  Ex.72, p.16.

[45]  Ex.72, p.37.

[46]  Ex.72, p.79.

[47]  Ex.6, p.22.

[48]  Ex.6, p.16, s.3.1(3)(b)(iii).

[49]  Ex.6, p.16, s.3.1(3)(d).

[50]  Ex.6, pp.26-27, with the Editor’s note omitted.

[51]  Ex.6, p.109, SC1.1.2(2) and (4).

[52]  Ex.82, pp.3-4, paragraph 10.

[53]  Ex.6A, p.56.

[54]  Ex.82, p.4, paragraph 11.

[55]  Ex.6, p.109, Sc1.1.2.

[56]  Ex.6, pp.113-114.

[57]  Ex.6, p.116.

[58]  Ex.6, p.110.

[59]  Ex.6, p.114.

[60]  Ex.6A, p.114.

[61]  Ex.6, p.60, s.6.2.13.2(2)(a).

[62]  Ex.6A, pp.56-57 and PO1 at p.58.

[63]  Ex.6A, pp.65-66 and PO1 at p.66.

[64]  Ex.6A, pp.81-82 and PO1 at p.82.

[65]  Ex.6A, pp.90 and PO1 at p.91.

[66]  Ex.6A, p.95 and PO1 at p.96.

[67]  Ex.6A, p.103 and PO1 at p.104.

[68]  Ex.6A, p.110 and PO1 at p.111.

[69]  Ex.6A, p.114 and PO1 at p.115.

[70]  Ex.6A, pp.123-124 and PO1 at p.125.

[71]  Ex.6A, pp.150-151 and PO1 at 152.

[72]  Ex.6A, pp.56-57 and PO1 at p.58.

[73]  Ex.6A, pp.152 and PO1 at 152.

[74]  Ex.6A, p.114 and PO1 at p.115.

[75]  s.35C(1) of the Acts Interpretation Act 1954.

[76]  Ex.82, p.3, paragraph 8.

[77]  T1-15, Line 20 to 35.

[78]  Ex.9, pp.13 and 17, paragraphs 53 and 69; Ex.10, p.6, paragraph 12.

[79]  Ex.75, p.20, paragraph 61.

[80]  Ex.82, p.3, paragraph 8.

[81]  Ex.82, p.4, paragraph 13.

[82]  With footnotes omitted.

[83]  This follows from s.1.3.3(1) of the planning scheme (Ex.6, p.7), which requires the word ‘and’ to be read after the semi-colon.

[84]  Ex.9, p.13, paragraph 53. 

[85]  Ex.6A, p.81. 

[86]  Ex.6A, p.58.

[87]  Ex.5A, paragraph 2 of the appellant Wilhelm’s Amended Reasons for Refusal.

[88]  Ex.72, p.39.

[89]  Ex.5A, p.6, particular (iv) of the appellant Wilhelm’s Amended Reasons for Refusal.

[90]  Ex.12, p.9, paragraph 19. 

[91]  Ex.12, p.70, paragraph 174.

[92]  See p.6, paragraphs 3.9 and 3.10.

[93]  Ex.12, p.75.

[94]  Ex.72, p.68, paragraph 8.57.

[95]  Court Doc. No.16 in Appeal No. 3364 of 2018.

[96]  Ex.12, map 3, p.32.

[97]  T3-74, Line 14-23.

[98]  With footnotes omitted.

[99]  Ex.72, p.42, paragraph 7.19.

[100]  Ex.72, pp.40-41, paragraph 7.15.

[101]  Ex.6, pp.60-61.

[102]  Ex.6, p.61.

[103]  As was considered in Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358 and Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QCA 021.

[104]  Ex.73, p.34.

[105]  Ex.73, p.34, paragraph 135 referring to Ex.6, p.63. 

[106]  Ex.6, p.60. 

[107]  Ex.6, pp.61, 62 and 66. 

[108]  Ex.72, p.29. 

[109]  Ex.75, pp.23-24, paragraph 72. 

[110]  Ex.72, p.28, paragraph 6.1.

[111]  Ex.72, p.29, paragraph 6.4.

[112]  Ex.72, p.29, paragraph 6.5.

[113]  Ex.72, p.29, paragraph 6.5.

[114]  Ex.72, p.31, paragraph 6.12.

[115]  Ex.3.

[116]  At p.325. 

[117]  Ex.20, pp.2-3, paragraph 8.

[118]  Ex.25, p.5, paragraph 18.

[119]  Ex.72.

[120]  Ex.72, p.22, paragraph 5.11.

[121]  Ex.72, p.22, paragraph 5.12.

[122]  Ex.72, p.22, paragraph 5.11.

[123]  T6-61, Line 45 to 46.

[124]  T6-65, Line 1 to 3.

[125]  T6-77, Line 12 to 20.

[126]  Ex.20, p.3, paragraph 9.

[127]  This movement is also depicted in Ex.57.

[128]  This movement is also depicted in Ex.57.

[129]  Ex.45 and T6-53, Line 39.

[130]  T6-54, Line 11 to 17.

[131]  Ex. 45.

[132]  T6-39, Line 34.

[133]  Ex.20, paragraph 63.

[134]  T6-51, Line 10.

[135]  T5-25, Line 24 to 29.

[136]  T6-39, Line 43 to 46.

[137]  T6-50, Line 36.

[138]  Ibid.

[139]  T6-50, Line 35 to 41.

[140]  As was agreed by Mr Viney at T6-75.

[141]  T6-73, Line 26 to 36.

[142]  T6-35, Line 45 to T6-36, Line 15.

[143]  As was submitted at Ex.72, p.24, paragraph 5.17.

[144]  Ex.72, p.26, paragraph 5.25.

[145]  T4-66, Line 26 to T4-67, Line 7.

[146]  T4-66, Line 33. 

[147]  T5-7, Line 8; T5-11, Line 42; T5-21, Line 44; T5-8, Line 28; T5-12, Line 17.

[148]  T4-66, Line 43-47. 

[149]  T6-18, Line 25-30. 

[150]  T6-34, Line 21-30. 

[151]  Ex.6, p.69. 

[152]  Ex.72, p.24, paragraph 5.20. 

[153]  T6-72, Line 19-21 and 33-37. 

[154]  Ex.25, p.2, paragraph 9. 

[155]  Ex.12, paragraphs 81 and 178.

[156]  As was submitted in Ex.75, pp.30-31, paragraph 96. 

[157]  Ex.73. 

[158]  Ex.21, pp 12-13, paragraphs 60-63 and 65. 

[159]  Ex.21, p.13, paragraph 69. 

[160]  Ex.21, p.17, paragraph 93.

[161]  Ex.71, p.1, paragraph 2.

[162]  Ex.25.

[163]  Particularly at T6-62, Line 8 to T6-68, Line 20.

[164]  T6-65, Line 1 to 3.

[165]  Douglas: T4-51, Line 20.

[166]  Douglas: T4-51, Line 22 to 25.

[167]  T4-52, Line 45 to T4-53, Line 19.

[168]  Ex.18, 19, 29 and T2-2 to T2-22.

[169]  Mr Beyers, Mr Forbes and Mr King.

[170]  Ex.18, p.11, paragraph 38 and Exhibit 19, pp.7-10, paragraphs 8 to 14.

[171]  Ex.20.

[172]  Ex.20, p.8, paragraph 47.

[173]  T6-61, Line 40-43.

[174]  Ex.20, p.9, paragraph 57.

[175]  T5-49, Line 13-38.

[176]  Ex.3, p. 73.

[177]  Ex.7, p.7, paragraph 26.

[178]  T5-100, Line 11 to 19.

[179]  Ex.75, p.18, paragraph 56.

[180]  Ex.75, p.17, paragraph 52.

[181]  Ex.75, p.9, paragraph 29.

[182]  Ex.73, p.37, paragraphs 149(a) and (b).

[183]  Ex.22. Mr Horne is a representative from 7-Eleven, who are the proposed operator of the service station.

[184]  Ex.12, p.24, paragraph 61.

[185]  Ex.12, p.25, paragraph 68.

[186]  Ex.12, p.25, paragraph 67.

[187]  Ex.12, p.31 and Ex.34.

[188]  Ex.12, p.27, paragraph 70.

[189]  Ex.12, pp.27-28, paragraph 72.

[190]  Ibid.

[191]  Ex.12, p.28, paragraph 74.

[192]  Ex.12, pp.28-29, paragraph 75.

[193]  Which are identified in section 5 of the need joint report.

[194]  Ex.12, p.45 and onwards.

[195]  Ex.12, p.36, Table 2.

[196]  Ex.12, p.36.

[197]  As was confirmed by Mr Duane in his oral evidence. 

[198]  Ex.12, p.47, paragraphs 104 and 105.

[199]  Ex.12, p.50, paragraph 117.

[200]  Ibid.

[201]  Ex.12, pp.33-34, paragraph 85.

[202]  Ex.12, pp.34-35, paragraph 87.

[203]  T3-60, Line 35-36.

[204]  Ex.12, p.16, paragraph 38.

[205]  Ex.12, p.16, paragraph 40.

[206]  Ex.12, pp.16-17, paragraph 41.

[207]  Ex.13, p.10, paragraph 4.2.

[208]  Ex.12, p.18, paragraph 48(c).

[209]  Ex.12, p.18, paragraph 47.

[210]  T3-56, Line 44 to T3-57, Line 25.

[211]  Ex.6, p.104.

[212]  Ex.12, pp.58-59, paragraphs 143 and 148.

[213]  Ex.12, p.58, paragraph 143.

[214]  Ex.12, p.70, paragraph 173.

[215]  Ex.12, p.72, paragraph 181.

[216]  Ex.13.

Close

Editorial Notes

  • Published Case Name:

    Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors

  • Shortened Case Name:

    Navara Back Right Wheel Pty Ltd v Logan City Council

  • MNC:

    [2019] QPEC 67

  • Court:

    QPEC

  • Judge(s):

    Williamson QC DCJ

  • Date:

    20 Dec 2019

Appeal Status

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

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