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Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor[2022] QPEC 16

Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor[2022] QPEC 16

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 16

PARTIES:

CANNON HILL INVESTMENTS PTY LTD AND AUSTRALIAN COUNTRY CHOICE PRODUCTION PTY LTD TRADING AS AUSTRALIAN COUNTRY CHOICE GROUP

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

RIVERMAKERS WELLNESS & RESEARCH CENTRE PTY LTD (ACN 640 084 700)

(Co-respondent)

AND

WILMAR TRADING (AUSTRALIA) PTY LTD

(ACN 128 080 455)

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

RIVERMAKERS WELLNESS & RESEARCH CENTRE PTY LTD (ACN 640 084 700)

(Co-respondent)

FILE NO/S:

3451 of 2020 and 23 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeals

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

3 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

28 – 29 and 30 July, 20 – 24 September and 21 October 2021 and further written submissions received 27 May, 30 May, and 1 June 2022

JUDGE:

Kefford DCJ

ORDER:

I order:

(a) By 4 pm on 17 June 2022, the respondent is to provide the other parties with a draft suite of conditions.

(b) By 4 pm on 1 July 2022, each of the appellants and the co-respondent is to notify the other parties, in writing, of its position with respect to the draft suite of conditions.

(c) The appeal be listed for review at 9 am on 8 July 2022.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against Council’s approval of development application – where the appellants contend the development is an inappropriate use of the subject land – where the development application is a change of use from vacant to indoor sport and recreation where the land is in the Industry zone – where the development permit imposes a condition requiring the use to cease after two years – where the appellants operate an abattoir and bulk shipping terminal near the subject site – where a Temporary Local Planning Instrument was introduced after the appeal was commenced – whether the proposed development is an inappropriate use of land – whether the proposed development is consistent with the planning scheme – whether the proposed development is consistent with the South East Queensland Regional Plan – whether the proposed development results in adverse constraints on industrial uses – whether the proposed development impacts on the road network – whether the proposed development has adequate car parking – whether weight should be given to the Temporary Local Planning Instrument – whether the proposed development is within the reasonable expectations of the community – whether there is a need for gym facilities – whether the proposed temporary nature of the approval is relevant – whether the fact the buildings are already constructed is relevant – whether the development application should be approved in the exercise of the planning discretion.

LEGISLATION:

Planning Act 2016 (Qld), ss 3, 4, 8, 23, 27, 43, 45, 59, 60, 66, 230

Planning and Environment Court Act 2016 (Qld), ss 39, 43, 45, 47

Planning Regulation 2017 (Qld), ss 30, 31, sch 24

Planning and Environment Court Rules 2018 (Qld), rr 4, 27, 28, 31, 32, 33

Uniform Civil Procedure Rules 1999 (Qld), r 426

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, applied

Adpen Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 59; [2020] QPELR 732, not followed

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved

Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18, approved

Body Corporate for Lindor Community Title Scheme 29204 and Planit Consulting Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 54; [2018] QPELR 265, approved

Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2017] QPEC 23; [2017] QPELR 530, approved

Brisbane City Council v Cunningham & Anor [2001] QCA 294; [2001] 115 LGERA 326, applied

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253, applied

Brown v Logan City Council [2019] 3 Qd R 355, applied

Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor [2018] QPEC 52; [2019] QPELR 221, approved

Clermont Quarries Pty Ltd v Isaac Regional Council [2020] QPEC 18; [2021] QPELR 65, approved

Collins Thomson Pty Ltd (in liq) v Clayton [2002] NSWSC 366, approved

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, applied

FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33, applied

GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33; [2018] QPELR 1079, cited

Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33, approved

Indooroopilly Golf Club v Brisbane City Council & Ors (1982) QPLR 13, approved

Insight Projects (Qld) Pty Ltd v Hervey Bay City Council [2007] QPEC 109; [2008] QPELR 321, approved

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

Iverach v Cardwell Shire Council & Anor [2006] QEC 114; [2007] QPELR 196, approved

J Murphy & Sons Ltd v Secretary of State for the Environment [1973] 2 All ER 26; [1973] 1 WLR 560; 71 LGR 273, 25 P & CR 268, cited

Jedfire Pty Ltd v Council of the City of Logan & Anor [1995] QPLR 41, approved

K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; [2021] QPELR 518, approved

K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, approved

Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, applied

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, applied

Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271, applied

Lifnex Pty Ltd and Oil Recyclers Australia Pty Ltd v Ipswich City Council [1998] QPELR 517, approved

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, applied

McDonald v Douglas Shire Council [2003] QCA 203; [2004] 1 Qd R 131, applied

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42, approved

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68, applied

Newman & Ors v Brisbane City Council & Ors [2011] QPEC 87; [2011] QPELR 786, approved

Perivall Pty Ltd v Rockhampton Regional Council & Ors [2018] QPEC 46; [2019] QPELR 96, approved

Pioneer Concrete (Qld) Proprietary Limited v Brisbane City Council [1980] QCA 1; (1980) 145 CLR 485, considered

Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2000] QPEC 95; [2001] QPELR 191, approved

Sellars Holdings Ltd v Pine River Shire Council [1988] QPLR 12, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, applied

Trowbridge v Noosa Shire Council [2018] QPEC 7; [2018] QPELR 501, approved

Westfield Limited v Stockland (Construction) Pty Ltd [2002] QPEC 232; [2002] QPELR 542, approved

Wilhelm v Logan City Council & Ors [2020] QCA 273, applied

Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied

COUNSEL:

D Gore QC and A Skoien for the Appellant in 3451 of 2020

R Anderson QC and N Loos for the Appellant in 23 of 2021

T Sullivan QC and R Yuen for the Respondent

M Batty and S Hedge for the Co-respondent

SOLICITORS:

Kinneally Miley Law for the Appellant in 3451 of 2020

Allens for the Appellant in 23 of 2021

Brisbane City Legal for the Respondent

Thynne + Macartney Lawyers for the Co-respondent

TABLE OF CONTENTS

Introduction7

What is the applicable framework for the decision?8

What issues require determination?9

Is the proposed development an inappropriate use of the land?10

What is the nature of the use and the scale and form of the proposed development?10

What are the relevant assessment benchmarks?11

Do the assessment benchmarks support the use of the subject land for the proposed development?12

Does the Industry zone code support the proposed development?13

Does the River gateway neighbourhood plan code support the proposed development?15

Does the Strategic framework support the proposed development?19

Does the Indoor sport and recreation code support the proposed development?24

Does the South East Queensland Regional Plan support the proposed development?25

Does the proposed development strike an appropriate balance?29

What are the existing lawful uses in the area?30

What was the evidence of the town planners?32

Is the evidence of Mr Ovenden reliable?37

What is my assessment of the balancing exercise?43

1. Does the proposed development involve a use that is inherently incompatible?44

2. Would the proposed development support and serve the industry area?45

3. Does the location of the proposed development provide an appropriate level of accessibility?47

4. Would the proposed development compromise the role and function of the Murarrie / Colmslie Major enterprise and industrial area?48

Conclusion regarding the appropriateness of the land use assessed against the South East Queensland Regional Plan54

Conclusion regarding appropriateness of the land use54

Will the proposed development result in an unacceptable risk of adverse and unreasonable constraints on industrial uses?55

Will the proposed development result in unacceptable impacts on the safety, efficiency, and function of the road network?60

What are the relevant assessment benchmarks?60

Will the proposed development have an unacceptable impact on the roundabout at the intersection of Colmslie, Lytton and Junction Roads?70

Will the proposed development create a traffic safety issue?75

Conclusion regarding compliance with the assessment benchmarks regarding traffic77

Will the proposed development provide adequate car parking?78

What weight should be afforded to the Temporary Local Planning Instrument?81

Is a decision to give weight to the Temporary Local Planning Instrument unfair to Rivermakers?82

What is the importance of the Temporary Local Planning Instrument?83

What is the outcome of an assessment of the proposed development against the Temporary Local Planning Instrument?86

Conclusion regarding the weight to be afforded to the Temporary Local Planning Instrument90

What are the relevant matters relied on by the parties?94

Is there a need for the proposed development?97

Conclusion regarding need for the proposed development110

Will the proposed development enable the efficient use of existing built infrastructure during a period of economic uncertainty?111

Is the proposed development inconsistent with the extant development approval for low and medium impact industry and warehouse uses?112

Is the way the subject land has been developed and fit-out relevant?113

Is the proposed development within the reasonable expectations of the community for development in the locality?117

Should the development application be approved in the exercise of the planning discretion?123

Conclusion127

Introduction

  1. [1]
    On the south-eastern corner of the intersection of Colmslie, Lytton, and Junction Roads at Morningside there is an existing development known as “The Depot”.  The street address of the development is 32 Colmslie Road and 500 Lytton Road, Morningside (“the subject land”).  Morningside is an eastern suburb of Brisbane on the southern side of the Brisbane River.
  2. [2]
    The Depot is developed with three large buildings, a service station, a drive-through McDonald’s fast-food restaurant and a central car park.  The buildings were constructed pursuant to a development permit that authorised their use for warehouse, low impact industry and medium impact industry uses.  They present in a similar manner to that typically adopted for “showroom-style” (i.e., large-format retail) uses.[1]
  3. [3]
    In April 2020, the Co-respondent, Rivermakers Wellness & Research Centre Pty Ltd (“Rivermakers”), sought a development permit to authorise it to carry out a material change of use of part of one of the existing buildings in the Depot (“the subject site”).  They sought approval to make a change from the present, vacant state of the subject site to its use for indoor sport and recreation in the form of a gymnasium and an indoor rock-climbing facility. 
  4. [4]
    The Council granted a development permit by decision notice dated 9 November 2020, thereby approving the change of use.  Importantly, it imposed a condition that, in effect, required the use to cease after a period of two years.  Rivermakers did not appeal the imposition of the condition that limited its use to a two-year period.  It now only seeks a temporary approval for that duration. 
  5. [5]
    The submitter Appellants, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd (together referred to as “ACC”) and Wilmar Trading (Australia) Pty Ltd (“Wilmar”) operate an abattoir and a bulk shipping terminal respectively near the subject site.  They each made submissions opposing the proposed development and appealed the Council’s approval of the development application.
  6. [6]
    ACC and Wilmar contend that the proposed development is an inappropriate use of the subject land as it is patently inconsistent with the assessment benchmarks in the South East Queensland Regional Plan 2017: ShapingSEQ (“the South East Queensland Regional Plan”), Brisbane City Plan 2014 version 18 (“City Plan”), and the Temporary Local Planning Instrument 02/21 – Colmslie Road Industry Precinct (“the Temporary Local Planning Instrument”).  They also contend that the proposed development will result in an unacceptable risk of adverse impact on existing industrial uses arising from amenity concerns raised by the customers of the proposed gymnasium and bouldering gymnasium.  ACC and Wilmar further contend that the proposed development will result in unacceptable traffic impacts.
  7. [7]
    Rivermakers disputes those contentions.  It contends that an approval is supported by the need for the proposed development, its temporary nature, and other relevant matters.  The Council supports Rivermakers’ position.
  8. [8]
    The issue for me to determine is whether, in the exercise of the planning discretion, the development application should be approved. 

What is the applicable framework for the decision?

  1. [9]
    The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies.  In deciding the appeals, the Court must confirm the decision appealed against, or change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.[2]
  2. [10]
    The appeals proceed by way of hearing anew.[3]  Rivermakers bears the onus of establishing that the appeals should be dismissed.[4]
  3. [11]
    There is a broad discretion in determining these appeals.[5]  The exercise of the discretion must be based on an assessment that:[6]
    1. (a)
      must be carried out:
      1. against the assessment benchmarks in City Plan[7] and the South East Queensland Regional Plan[8] to the extent relevant;
      2. having regard to, relevantly:
        1. (A)
          the South East Queensland Regional Plan to the extent relevant and only to the extent that an assessment is not otherwise carried out against the assessment benchmarks in the South East Queensland Regional Plan;[9] and
        1. (B)
          any development approval for, and any lawful use of, the premises and adjacent premises and the common material, including properly made submissions about the development application;[10]
    2. (b)
      may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise); and
    3. (c)
      may give weight that the Court considers appropriate in the circumstances to the Temporary Local Planning Instrument, which came into effect on 29 June 2021 and has effect for a period of two years.
  4. [12]
    This Court has analysed how impact assessable development applications are to be assessed and decided in Ashvan Investments Unit Trust v Brisbane City Council & Ors[11] and Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[12]  The jurisprudence in those cases was endorsed by the Court of Appeal in Brisbane City Council v YQ Property Pty Ltd,[13] Abeleda & Anor v Brisbane City Council & Anor,[14] Wilhelm v Logan City Council & Ors[15] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[16]

What issues require determination?

  1. [13]
    The parties agree that the issues that remain in dispute are those identified in Exhibit 9.60.[17]  They call for consideration of the following questions:
  1. Is the proposed development an inappropriate use of the land?
  2. Will the proposed development result in an unacceptable risk of adverse and unreasonable constraints on industrial uses?
  3. Will the proposed development result in unacceptable impacts on the safety, efficiency, and function of the road network?
  4. Will the proposed development provide adequate car parking?
  5. What weight should be afforded to the Temporary Local Planning Instrument?
  6. What are the relevant matters relied on by the parties?
  7. Is there a need for the proposed development?[18]
  8. Will the proposed development enable the efficient use of existing built infrastructure during a period of economic uncertainty?[19]
  9. Is the proposed development inconsistent with an extant development approval for low and medium impact industry and warehouse uses?[20]
  10. Is the way the subject land has been developed and fitted-out relevant?[21]
  11. Is the proposed development within the reasonable expectations of the community for development in the locality?[22]
  12. Should the development application be approved in the exercise of the planning discretion?
  1. [14]
    The first four questions involve an assessment against assessment benchmarks.  ACC and Wilmar identified numerous assessment benchmarks.  During the hearing, ACC and Wilmar made it clear that refusal is only warranted by non-compliance with what they identify as the “core” provisions.  ACC and Wilmar accept that if I am satisfied that non-compliance with the core provisions do not warrant the refusal of the development application, the provisions that they identify as “context” provisions are not such as would support a refusal of the development application.[23]  This concession informed the evidence presented to the Court and the assistance provided in final submissions.[24] 

Is the proposed development an inappropriate use of the land?

  1. [15]
    ACC and Wilmar contend that the proposed development is an inappropriate use of the land by reason of the type of use, and the scale and form of the proposed development. 

What is the nature of the use and the scale and form of the proposed development?

  1. [16]
    The proposed development is an indoor sport and recreation use comprising a gymnasium with a gross floor area of approximately 4,772 square metres and an indoor rock-climbing facility (i.e., a bouldering gymnasium) with a gross floor area of approximately 805 square metres.  The gymnasium is to include a ground level and a mezzanine level with five to seven studios for fitness classes, a separate weights area, administrative facilities, and amenities.  The use is to be located within an existing industrial building on the subject land. 
  2. [17]
    The Council’s approval included a condition that limited the operation of the proposed development to a period of two years until 9 November 2022.
  3. [18]
    During these appeals, Rivermakers indicated that it would accept the imposition of the following conditions:

“1. The approval is limited to a period of two (2) years from the date that the approval takes effect.

  1. The maximum number of patrons in the gym at any time is to be 300.
  2. The operator of the gym will provide information to all customers upon sign up that there are industrial uses nearby that may result in detectable noise and odour impacts from time to time.
  3. All windows of the proposed development facing Colmslie Rd will be obscured by at least 50% by permanent structures or treatments.
  4. Workers whose place of employment is located within the area to which Temporary Local Planning Instrument No. 2 of 2021 (Colmslie Road Industry Precinct) applies will be entitled to a discount of 40% on membership to the Total Fusion Morningside gym.”[25]
  1. [19]
    Wilmar notes that the gymnasium has been fitted out already, including with equipment that is not related to the use sought by Rivermakers in the development application that is before the Court.  The fit out includes treatment rooms, float rooms, saunas, consultant rooms, a food and drink outlet and office and administrative space.  Despite the fit out, there is no evidence of a lease between TotalFusion, the proposed operator and lessee, and Rivermakers.  The prospect that the use may unlawfully exceed that which is approved may be relevant when considering what conditions should be imposed.[26]  It is of less significance to an assessment of the acceptability of the proposed development given that I am to assess the proposed development, not a hypothetical development.   

What are the relevant assessment benchmarks?

  1. [20]
    In support of their contention that the proposed development involves an inappropriate use, ACC and Wilmar rely on numerous assessment benchmarks that they identify as “core” provisions.  They are:
    1. (a)
      Chapter 3, Part A, Goal 2: Prosper of the South East Queensland Regional Plan:
      1. Element 2, Strategy 2; and
      2. Element 5, Strategy 1;
    2. (b)
      in the Strategic framework in City Plan:
      1. the strategic outcome in s 3.3.1 1.h., which relates to Theme 1: Brisbane’s globally competitive economy;
      2. specific outcomes SO1, SO2, SO4 and SO8 and land use strategies L1.4, L2.1, and L8.2, in Table 3.3.3.1, which relates to Theme 1, Element 1.2 – Brisbane’s industrial economy;
      3. the strategic outcomes in ss 3.7.1 1.c.i., ii., iii., iv. and v.;
    3. (c)
      the purpose in s 6.2.5.2 1. and the overall outcomes in ss 6.2.5.2 4.a., b., e., g., 6.a. and 7.a. of the Industry zone code;
    4. (d)
      the overall outcome in s 7.2.18.3 8.a. of the River gateway neighbourhood plan code; and
    5. (e)
      the overall outcome in s 9.3.11 2.b. of the Indoor sport and recreation code.
  2. [21]
    ACC and Wilmar say that those core provisions should be understood by reference to the context identified in:
    1. (a)
      the South East Queensland Regional Plan:
      1. Chapter 3, Part A, Goal 2: Prosper, Element 1, Strategy 5, and Element 2, Strategy 1, and Element 5, Strategies 2 and 5;
      2. Chapter 3, Part C, Metro Sub-Region, Sub Regional Outcomes, Outcomes for Prosper, Regional Economic Clusters, 8(b) Australia Tradecoast;
    2. (b)
      in the Strategic framework in City Plan:
      1. the strategic outcomes in ss 3.3.1 1.f, g. and i.;
      2. land use strategies L1.1 and L4 in Table 3.3.3.1;
      3. specific outcome SO7 and land use strategy L7 in Table 3.3.4.1;
    3. (c)
      the purpose in s 6.2.5.2 1. and the overall outcome in s 6.2.5.2 6.b. of the Industry zone code; and
    4. (d)
      the purpose in ss 7.2.18.3 3.a., c. and e. of the River gateway neighbourhood plan code.
  3. [22]
    Rivermakers contend that the assessment benchmarks support a finding that the proposed development is an appropriate non-industrial use in an industrial zone.[27]

Do the assessment benchmarks support the use of the subject land for the proposed development?

  1. [23]
    The applicable zone code is a useful starting point when assessing whether the assessment benchmarks support the use of the subject land for the proposed development.  That is because City Plan uses zones to organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses.[28] 

Does the Industry zone code support the proposed development?

  1. [24]
    The subject land is mapped as part of the General industry A precinct and General industry B precinct of the Industry zone on Zoning Map – ZM-001-29.[29]  As such, the development application is to be assessed against the provisions of the Industry zone code[30] to ascertain whether there is a clear non-compliance or if the assessment lends weight to the decision to approve the development.
  2. [25]
    Rivermakers contends that the proposed development is contemplated by the Industry zone code.  It says the code seeks to, amongst other matters, provide for non-industry uses and activities that support industry activities and which do not compromise the future use of premises for industry activities.[31]  ACC and Wilmar dispute this.
  3. [26]
    The Industry zone code articulates the planning intent for land in that zone, including the subject land.  The purpose of the Industry zone is two-fold.  Section 6.2.5.2 of the Industry zone code states:

“1. The purpose of the industry zone is to provide for:

a. a varies of industry activities; and

b. other uses and activities that:

i. support industry activities; and

ii. do not compromise the future use of premises for industry activities.

  1. [27]
    It is uncontroversial that the proposed indoor sport and recreation uses are not industrial uses (be it low impact, service, or medium impact industry uses) or warehouse uses.  As such, approval of the proposed development is not consistent with the first stated purpose for the inclusion of land in the Industry zone.[32]
  2. [28]
    It is also uncontroversial that the commencement of an indoor sport and recreation use does not, of itself, give rise to a clearly identifiable non-compliance with the Industry zone code.  An indoor sport and recreation use is impact assessable in the Industry zone.  There is no clear statement in the code that establishment of such a use is inappropriate.
  3. [29]
    The real controversy is whether the proposed development is consistent with the second stated purpose of the Industry zone.[33]  Rivermakers contends that the Industry zone code provides support for the proposed development.  It says the proposed development is consistent with the purpose of the Industry zone because:
    1. (a)
      the proposed development supports industry activities by providing a relevant service and facility to, amongst others, the workers of the industry zone;[34] and
    2. (b)
      the proposed development is compatible with existing and future industry.[35] 
  4. [30]
    Those matters are disputed.  Assuming, for the moment, that Rivermakers can establish that the proposed development provides support to industry activities and is compatible with existing and future industry, it does not follow that the proposed development is consistent with the purpose of the Industrial zone.
  5. [31]
    Relevant overall outcomes in the Industry zone code that provide guidance on the type of non-industrial uses and activities that are anticipated in the Industry zone are overall outcomes 4.f. and 4.g. in s 6.2.5.2.  They state:

“4. Development location and uses overall outcomes are:

f. Development for a stand-alone office is not accommodated.

g. Development for a use that is ancillary to an industrial use on the same site, such as an office function, or small-scale shop or food and drink outlet that directly supports the industry and workers may be accommodated.”[36]

  1. [32]
    There is a recognisable relationship between the purpose of the Industry zone code to provide for uses that support industry activities and overall outcomes 4.f. and 4.g. of the Industry zone code.  These overall outcomes are the specified means of achieving the purpose of the Industry zone.[37] 
  2. [33]
    Overall outcomes 4.f. and 4.g. identify the nature of the non-industrial uses and activities that are anticipated.  They do so in two ways.  First, by expressly excluding certain uses, namely stand-alone office uses.  Second, by identifying the types of support uses that are anticipated.
  3. [34]
    There is a difference between the parties about the proper construction of overall outcome 4.g. 
  4. [35]
    Wilmar submits that the overall outcome speaks to development for a use that is ancillary to an industrial use on the same site.  It says that the ancillary use must directly support the industry and workers.
  5. [36]
    ACC submits that the overall outcome anticipates two types of support uses.  Firstly, a use that is “ancillary to an industrial use on the same site”.  This involves two restrictions, namely: (1) a use on the same site as an industrial use; and (2) a use which is ancillary to the industrial use.  An ancillary use is one that is subordinate to the principal use.[38]  Secondly, a support use that is a “small-scale shop or food and drink outlet that directly supports the industry and workers”.  ACC submits that this involves three restrictions, namely: (1) the use is limited to a shop or food and drink outlet; (2) the use must be “small-scale”; and (3) the use must directly support the industry and workers.
  6. [37]
    ACC submits that “small-scale” qualifies both the shop and the food and drink outlet.  It says this is supported by the fact that both uses are code assessable in the Industry zone if they have a gross floor area of less than 250 square metres but are otherwise impact assessable. 
  7. [38]
    It is unnecessary to resolve this issue as both Rivermakers and the Council accept that the proposed development is not the type of use anticipated in overall outcome 4.g.[39]  The concession is appropriate.  The proposed development is not ancillary to any other use at The Depot.[40]  Self-evidently, it is also not a shop or a food and drink outlet.
  8. [39]
    For the reasons provided above, the proposed development is not consistent with the purpose of the Industry zone code.  Regardless of whether the proposed development is consistent with the goal in s 6.2.5.2 1.b.ii (and the related overall outcome), it is not the type of supporting use that is anticipated in the overall outcomes.  Accordingly, the assessment against the code does not lend weight to a decision to approve the proposed development.  Equally, the assessment of the proposed development against the assessment benchmarks in the Industrial zone code reveals that there is no clearly identifiable non-compliance with the code by reason of the nature of the use. 

Does the River gateway neighbourhood plan code support the proposed development?

  1. [40]
    The subject land is mapped as part of the River gateway neighbourhood plan area on River gateway neighbourhood plan map – NPM-0.18.3.[41]  The River gateway neighbourhood plan code sits alongside the Industry zone code in City Plan.  Its purpose is to provide finer grained planning at a local level for the River gateway neighbourhood plan area.[42]  As such, the River gateway neighbourhood plan code contains assessment benchmarks that are relevant to the development application.[43]
  2. [41]
    Rivermakers contends that the proposed development is contemplated by the River gateway neighbourhood plan code.  It says that the code encourages development of the River gateway neighbourhood plan area as a distinct, mixed-use area supporting additional services and facilities.[44]  ACC and Wilmar dispute this.
  3. [42]
    The purpose of the River gateway neighbourhood plan code is to be achieved through the overall outcomes, including overall outcomes for each precinct of the neighbourhood plan area.[45] 
  4. [43]
    Section 7.2.18.3.2 3. contains five overall outcomes.  They relate to the whole neighbourhood plan area.  The parties contend that three are relevant in this appeal.  They are:

“3. The overall outcomes for the neighbourhood plan area:

a. The River gateway area is developed as a distinct, mixed use area, supporting additional housing opportunities, improved connectivity and additional local shops, cafes, services and facilities, as well as small- to medium-scale commercial and industrial development.

c. Development does not constrain the ability of existing development to operate.

…..

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

  1. [44]
    When read in isolation, the overall outcome in s 7.2.18.3.2 3.a. appears to support Rivermakers’ contention.  However, it is not appropriate to construe the provisions without regard to the balance of the code.[46]  As I have identified in paragraph [42] above, the purpose of the code is to be achieved through the overall outcomes including overall outcomes for each precinct of the neighbourhood plan area. 
  2. [45]
    The River gateway neighbourhood plan area contains five precincts, namely: (1) the Morningside precinct; (2) the Seven Hills TAFE precinct; (3) the Cannon Hill/Murarrie precinct; (4) the Minnippi precinct; and (5) the Industry precinct.  The Morningside precinct has two sub-precincts, and the Cannon Hill/Murarrie precinct has six sub-precincts. 
  3. [46]
    Although the subject land is mapped as part of the Industry precinct, the proper construction of the overall outcomes for the whole neighbourhood plan area is informed by a full appreciation of the structure of the code, including the overall outcomes for the other precincts.
  4. [47]
    The Morningside precinct is to provide for a range of residential, retail, and commercial uses along Wynnum Road.  The intent is that development will contribute to the revitalisation of the area into a vibrant urban village.[47]  Redevelopment of that part of the precinct that fronts Key Street is to be restricted to residential use.[48]  An overall outcome for the precinct states that impact assessable uses consistent with the outcomes sought include outdoor sales, industry, or entertainment facilities and, where in the District centre sub-precinct, service stations.[49]
  5. [48]
    Future redevelopment of the Seven Hills TAFE precinct is to deliver residential, and community uses.[50]
  6. [49]
    As with the Morningside precinct, in the Cannon Hill/Murarrie precinct, a range of residential, retail, and commercial uses are intended to contribute to the revitalisation of Wynnum Road.[51]  Overall outcomes for each of the sub-precincts indicate how that mix across the precinct is intended to be achieved.[52]  For example, the overall outcomes stipulate that the large vacant site on the corner of Creek Road and Mitchell Boulevard is to be developed for low-medium density residential development,[53] whereas the Former CSIRO sub-precinct is to be developed as a vibrant mixed use centre accommodating a range of activities, including multiple dwellings, offices, shops, entertainment and open space.[54]
  7. [50]
    The overall outcome for the Minnippi precinct seeks a network of shared bikeways and pedestrian pathways to improve circulation and linkages to external features and communities.
  8. [51]
    The overall outcomes for the Industry precinct are:

“a. Development comprising the consolidation of existing uses is consistent with the outcomes sought in established industrial areas where impacts on existing sensitive zones are managed through separation distances. Separation distances between industry and sensitive zones are a minimum of 250m for medium impact industry and 500m for high impact industry, unless it can be demonstrated that emissions and risks can be quantified and effectively managed to achieve appropriate environmental outcomes.

b. Existing parks and outdoor sport and recreation facilities within the precinct are retained.

c. Pedestrian and bicycle connections to the riverside parks are improved. Development provides for a new off-road pedestrian/bicycle pathway connecting Colmslie Recreation Reserve and Colmslie Beach Reserve.

d. Special industries are not consistent with the outcomes sought.”[55]

  1. [52]
    When the overall outcomes for the neighbourhood plan area are read in the context of the overall outcomes for the precincts set out above, it is apparent that the River gateway neighbourhood plan code provides specific guidance on how the distinct, mixed use area is to be achieved.[56]  Relevantly, in the Industry precinct, City Plan encourages development that comprises the consolidation of existing uses that are consistent with the outcomes sought in established industrial areas.  It also encourages the retention of existing parks and outdoor sport and recreation facilities.  City Plan does not encourage, or contemplate, the establishment of the full mix of uses to which reference is made in the overall outcome in s 7.2.18.3.2 3.a. on land in the Industry precinct.
  2. [53]
    Here, the proposed development does not involve the consolidation of existing uses.[57]  Accordingly, the assessment of the proposed development against the assessment benchmarks in the River gateway neighbourhood plan code reveals that there is no clearly identifiable non-compliance with the code by reason of the nature of the use. 
  3. [54]
    That said, for reasons provided above, on a proper construction of the River gateway neighbourhood plan code, the assessment against the code does not lend weight to a decision to approve the proposed development.

Does the Strategic framework support the proposed development?

  1. [55]
    Rivermakers contend that the proposed development is contemplated by the Strategic framework.  It says that the Strategic framework seeks to provide opportunities for clusters of supporting services for business and the convenience of workers of industrial areas in accessible locations that do not compromise the ongoing operation of industrial activities in the Major Industry Areas.  ACC and Wilmar disagree.
  2. [56]
    The Strategic framework sets the policy direction for City Plan and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of the planning scheme.[58]  The policy direction is articulated in:
    1. (a)
      the strategic intent;
    2. (b)
      the strategic outcomes for development in the planning scheme area for each of five themes, being:
      1. Brisbane’s globally competitive economy;
      2. Brisbane’s outstanding lifestyle;
      3. Brisbane’s clean and green leading environmental performance;
      4. Brisbane’s highly effective transport and infrastructure; and
      5. Brisbane’s CityShape;
    3. (c)
      the elements that refine and further describe the strategic outcomes;
    4. (d)
      the specific outcomes sought for the elements; and
    5. (e)
      the land use strategies for achieving each of the specific outcomes.[59]
  3. [57]
    Under City Plan, the subject land is mapped as part of the Major Industry Area on:
    1. (a)
      SFM-001 Sub-regional context strategic framework map;
    2. (b)
      SFM-002 Brisbane CityShape 2031 land use strategic framework map; and
    3. (c)
      SFM-005 Brisbane transport strategic framework map.[60]
  4. [58]
    The strategic outcome in s 3.3.1 1.h., which relates to Theme 1: Brisbane’s globally competitive economy, provides guidance about the policy direction for land in the Major Industry Area.  It states:

“Brisbane’s Major Industry Areas do not expand significantly during the life of the planning scheme, however they are preserved and will intensify.  The importance of Major Industry Areas in generating economic value and employment for Brisbane requires their maximum opportunity to be realised.  The Major Industry Areas are used solely for their intended purpose to enable their ongoing operation and to protect them from incompatible land uses.”

  1. [59]
    The importance of the industrial economy is also supported by the strategic outcome in s 3.3.1 1.g.,[61] which states:

“Brisbane’s industrial economy is a significant generator of employment and economic growth for the city.  The industrial economy is largely contained in the Major Industry Areas, which cluster manufacturing, storage, transport and logistics activities, industrial wholesale trade and resource recovery.  Brisbane’s Major Industry Areas include activities of potentially high environmental impact.”

  1. [60]
    This strategic outcome is supported by specific outcomes SO1, SO2, SO4 and SO8 and land use strategies L1.1, L1.4, L2.1, and L8.2, in Table 3.3.3.1.  They state:

3.3.3 Element 1.2 – Brisbane’s industrial economy

Table 3.3.3.1—Specific outcomes and land use strategies

Specific outcomes

Land use strategies

SO1
Brisbane’s Major Industry Areas and Strategic Inner City Industrial Areas are protected to ensure their integrity and effective operation.

L1.1
Brisbane’s remaining zoned land suitable for high-impact industries is reserved for these purposes.

L1.3
Lower impact industrial activities serve as buffers, locating between high impact industrial activities and sensitive land uses.

L1.4
Existing lawful industries continue to operate with certainty and are protected from encroachment by sensitive land uses. Proposed expansions of these industries meet relevant health, safety and environmental standards.

SO2
Brisbane’s Major Industry Areas and Strategic Inner City Industrial Areas are optimised to provide the widest range of industrial uses in order to maximise the economic opportunity for the city.

L2.1
Development for industrial uses is prioritised in the Major Industry Areas and Strategic Inner City Industrial Areas which are zoned to maximise the industrial land use potential for these areas.

SO4
Brisbane’s Major Industry Areas include clusters of supporting business services and a range of services and facilities for the convenience of workers.

L4
Major Industry Areas provide opportunities for clusters of supporting services for business and the convenience of workers of these areas. They are in accessible locations, serviced by public transport where possible and do not compromise the ongoing operation of industrial activities in these areas.

SO8
Brisbane’s industrial lands are protected from encroachment by office or other non-industrial-based uses.

L8.1
Major Industry Areas and Strategic City Industrial Areas are protected from encroachment of office parks and large-format retailing: these uses are adequately provided for elsewhere in the plan.

L8.2
Land uses other than industrial do not compromise the existing or potential industrial uses that occupy land in the Special industry zone, General industry C zone precinct or General industry B zone precinct of the Industry zone.

L8.3
Mixed industrial service and business administration uses will be promoted on land appropriately zoned at the Australia TradeCoast, Cannon Hill, Wacol and Richlands to accommodate personal and administrative services supporting businesses or employees of that Major Industry Area and where serviced by public transport.

L8.4
The co-location of administrative functions with industrial uses may occur within a site where directly related to the principal use of the premises and the design, interface and functionality outcomes for both administrative offices and industrial functions are achieved.

  1. [61]
    The importance of preservation of industrial land for its intended use is also highlighted by specific outcome SO7 in Table 3.3.4.1, which states:

3.3.4 Element 1.3 – Brisbane’s population serving economy

Table 3.3.4.1—Specific outcomes and land use strategies

Specific outcomes

Land use strategies

SO7
Brisbane preserves opportunities for low impact industry throughout the city in support of a strong population and economic growth.

L7
Industrial premises in the Low impact industry zone or General industry A zone precinct of the Industry zone are protected from encroachment and incompatible uses.

  1. [62]
    The strategic outcomes for the CityShape theme provide further guidance about the intended planning outcomes for land in the Major Industry Area.  Section 3.7.1 1.c. states:

“c. Brisbane’s Major Industry Areas are significant employment generators for the city and Queensland which:

i. accommodate a significant amount of economic activity generating employment;

ii. comprise low, medium and high impact industrial-based economic development that is always evolving with Brisbane’s changing economy;

iii. are protected and are able to evolve to support Brisbane’s industrial economy, global business and innovative start-ups;

iv. are serviced by small-scale commercial uses that support workers and provide business services;

v. do not provide opportunities for non-industrial based land uses that are otherwise adequately provided for elsewhere in the city or other parts of the region other than critical infrastructure;

vi are serviced by major transport infrastructure which provides for:

A. more sustainable travel modes such as public transport, walking and cycling;

B. efficient freight, air and sea transport within the city and to key freight access points and routes to and from the city (shown below in Figure C).”

  1. [63]
    As is observed by Rivermakers, specific outcome SO4 and land use strategy L4 of Element 1.2 of the Strategic framework contemplates the location of non-industrial uses that provide services and facilities for the convenience of workers in Major Industry Areas.  So does the strategic outcome in s 3.7.1 1.c.iv.  However, it is appropriate to construe the provision in context, including that provided by the other provisions extracted above. 
  2. [64]
    The other provisions extracted above reveal a strongly expressed policy directed at the preservation and protection of industrial zoned land so that the opportunity for its use for industrial purposes is maximised.  Consistent with that policy, the strategic outcome in s 3.7.1 1.c.iv. contemplates that commercial uses that support workers and provide business services will be small-scale.  Otherwise, the land use strategy in L8.3 of Element 1.2 indicates that land considered appropriate to provide administrative services supporting businesses or employees of the Major Industry Area will be appropriately zoned to accommodate those personal and administrative services. 
  3. [65]
    As such, when specific outcome SO4 and land use strategy L4 of Element 1.2 of the Strategic framework and the strategic outcomes in s 3.7.1 1.c.iv and v. are read in context, they do not provide the extent of support for the proposed development contended by Rivermakers. 
  4. [66]
    In addition, the proposed development is discordant with the planning intent in strategic outcome s 3.3.1 1.h. to preserve industrial land for use for its intended purpose so that its maximum opportunity to generate economic value and employment for Brisbane is realised. 
  5. [67]
    A finding that the proposed development does not accord with strategic outcome s 3.3.1 1.h. is supported by the assessment of the development application against the specific outcomes and land use strategies that implement the strategic outcomes.  Specific outcome SO1 seeks to ensure that Brisbane’s Major Industry Areas are protected to ensure their integrity and effective operation.  City Plan outlines five land use strategies that are intended to ensure that outcome.  Land use strategy L1.3 and L1.4 are relevant to the subject land.  Approval of the proposed development will not result in non-compliance with land use strategy L1.4.  That said, the proposed development does not protect the Brisbane’s Major Industry Area in the manner encouraged by land use strategy L1.3.  Land to the north and east of the subject land is in the General industry B zone precinct of the Industry zone.  That land is contemplated for uses that involve high-impact industrial activities.[62]  The land to the south of the subject land is in residential zones on which sensitive land uses are contemplated.  As such, inclusion of the subject land in the General industry A zone precinct of the Industry zone, and encouragement of its use for lower impact industrial activities, is consistent with land use strategy L1.3.  Approval of the proposed development does not advance that strategy in the manner contemplated.
  1. [68]
    Additionally, approval of the proposed development does not advance the planning outcomes sought in specific outcome SO2 and land use strategy L2.1 of Element 1.2 in Table 3.3.3.1.  It does not prioritise industrial uses, nor optimise use of the Major Industry Area for the widest range of industrial uses. 
  2. [69]
    For reasons discussed in detail later, I am satisfied that the proposed development will not compromise existing industrial uses.[63]  As such, there is no clearly identifiable non-compliance with land use strategy L8.2 of Element 1.2 in Table 3.3.3.1.  However, the proposed development does not find support in land use strategies L8.1, L8.3 or L8.4.  It also sits uncomfortably with the planning intent in specific outcome SO8 that industrial lands are protected from encroachment by office or other non-industrial based uses.
  3. [70]
    As for ss 3.7.1 1.c.i., ii., iii., and iv., although the proposed development does not give rise to a clearly identifiable non-compliance with those provisions, equally the provisions do not lend support to an approval.  The proposed development does not advance the employment generating role of Brisbane’s Major Industry Area in the manner encouraged by the strategic outcome in s 3.7.1 1.c.
  1. [71]
    It follows that assessment of the proposed development against the strategic outcome in s 3.3.1 1.h., and specific outcomes SO1, SO2 and SO8, having regard to all of their supporting land use strategies, and the strategic outcomes in ss 3.7.1 1.c.i., ii., iii., and iv., does little to support the case for approval of the proposed development. 
  2. [72]
    For the reasons provided above, assessment of the proposed development against the Strategic framework does not support approval of the proposed development.  Rather, the proposed development is at odds with the strongly expressed planning policy to preserve and protect land in the Major Industry Area from encroachment by non-industrial use and to prioritise and maximise its use for industrial purposes.  However, for reasons explained in paragraphs [164] to [181] below, the proposal to limit the duration of the approval to a two-year period significantly reduces the extent to which an approval would offend the planning policy.

Does the Indoor sport and recreation code support the proposed development?

  1. [73]
    In support of their contention that the proposed development involves an inappropriate use, ACC and Wilmar rely on the overall outcome in s 9.3.11 2.b. of the Indoor sport and recreation code. 
  2. [74]
    The Indoor sport and recreation code contains assessment benchmarks for impact assessable development applications seeking a material change of use for indoor sport and recreation.  The purpose of the code is to assess the suitability of that type of development.  The purpose is to be achieved through the overall outcomes.  They include the overall outcome in s 9.3.11 2.b., which states:

“Development ensures that facilities are appropriately located and designed.”

  1. [75]
    Despite maintaining the provision as a key provision informing the real issues in dispute, ACC submits:

“This is a generally expressed provision, and the code does not provide further relevant guidance.  In the result, a judgment about whether the gym is “appropriately located” will turn on the other Core provisions discussed above.”[64]

  1. [76]
    Wilmar did not address the provision, other than to quote it as a provision that reflects a “theme” about locating non-industrial uses in other areas of the city.  No submissions were made explaining the assertion that the provision reflects the theme.  It is not evident that it does.
  2. [77]
    I do not accept ACC’s submission that the Indoor sport and recreation code does not provide further relevant guidance about the appropriate location of indoor sport and recreation uses.  The performance outcomes and acceptable outcomes in the code contain benchmarks for the location of such uses to ensure acceptable levels of privacy and amenity for residents in neighbouring residential dwellings.[65]  They also encourage such uses at a location that is highly accessible to the intended users, rather than at a location where the use is solely accessible from a minor road.[66] 
  3. [78]
    Here, the proposed development is separated from residential dwellings such that there would be no unacceptable impact on the privacy and amenity of the residents.  Further, the proposed development is adjacent to a major road, namely Lytton Road, which is used by significant volumes of traffic associated with nearby residential areas.  Lytton Road links residents with the local recreational facilities and other services in the area, and the Gateway Arterial.[67]  In those circumstances, I am satisfied that the proposed development complies with the overall outcome in s 9.3.11 2.b. of the Indoor sport and recreation code.
  4. [79]
    Although other provisions of City Plan also inform the overall appropriateness of the location of the proposed development on the subject land, an assessment of the proposed development against the Indoor sport and recreation code supports its approval.

Does the South East Queensland Regional Plan support the proposed development?

  1. [80]
    Rivermakers contends that the proposed development is supported by the South East Queensland Regional Plan.  It submits that the regional plan seeks to accommodate a mix of commercial uses in major enterprise and industrial areas.  This is to give workers and enterprises an appropriate level of access to amenities and facilities and to reduce trips out of the area without compromising the role and function of major enterprise and industrial areas.[68]
  2. [81]
    ACC and Wilmar contend that assessment against the South East Queensland Regional Plan tells against approval of the proposed development. 
  3. [82]
    Chapter 4 of the South East Queensland Regional Plan sets out how the plan is to be delivered.  It identifies that, in accordance with the Planning Regulation 2017, development is to be assessed against the following parts of the South East Queensland Regional Plan, to the extent relevant:
    1. (a)
      Chapter 3, Part A: Goals, elements and strategies; and
    2. (b)
      Chapter 3, Part C: Sub-regional directions.[69]
  4. [83]
    An application conflicts with the South East Queensland Regional Plan if it does not comply with those sections.[70]
  5. [84]
    Under the South East Queensland Regional Plan, the subject land is in the Metro sub-region.[71]  The subject land is also located within the Australia TradeCoast Regional Economic Cluster on Map 3a.[72]  It is part of an area identified as “M5”, which Table 4 describes as the Murarrie / Colmslie Major enterprise and industrial area.[73]
  6. [85]
    Chapter 3, Part A contains the goals, elements and strategies that are the central part of the South East Queensland Regional Plan policy framework.  There are five goals, which align with the five themes of “Grow, Prosper, Connect, Sustain and Live”.  The five goals are the strategic outcomes sought to pursue the 50-year vision for South East Queensland.[74]  Each goal is supported by several elements, which provide more specific outcomes to achieve the goal.  The strategies define actions to achieve the elements.[75]
  7. [86]
    ACC and Wilmar contend that the proposed development conflicts with elements and strategies that relate to Goal 2: Prosper.  The goal is described in the South East Queensland Regional Plan as:

“SEQ has a globally competitive economy focused on high-value economic activities supported by population-serving jobs.

Regional Economic Clusters will leverage traditional strengths and competitive advantages to advance the economy, strengthen our global and national relationships, and embrace emerging technology and new opportunities.”

  1. [87]
    ACC and Wilmar contend that the proposed development conflicts with the assessment benchmarks in Chapter 3, Part A, Goal 2: Prosper:
    1. (a)
      Element 2, Strategy 2; and
    2. (b)
      Element 5, Strategy 1.
  2. [88]
    ACC and Wilmar say that those assessment benchmarks should be understood by reference to the context provided by:
    1. (a)
      Chapter 3, Part A, Goal 2: Prosper:
      1. Element 1, Strategy 5;
      2. Element 2, Strategy 1;
      3. Element 5, Strategies 2 and 5; and
    2. (b)
      Chapter 3, Part C, Metro Sub-Region, Sub Regional Outcomes, Outcomes for Prosper, Regional Economic Clusters, 8(b) Australia TradeCoast.
  3. [89]
    The relevant assessment benchmarks for Chapter 3, Part A, Goal 2: Prosper state:

Element 1: High-performing outward-focused economy

SEQ responds to the transitioning economy by focusing on export-oriented and business-to-business transactions that drive productivity and growth, while continuing to enhance population serving activities that support growing communities.

Strategies

  1. 5
    Plan for and support continued growth in population-serving employment and traditional economic industries.

Element 2: Regional Economic Clusters

High-value and outward-facing economic opportunities and synergies within SEQ’s RECs are accelerated.

Strategies

  1. 1
    Plan for the intensification and/or expansion of RECs to enhance regional economic growth and activity (Maps 3, 3a, 3b and Table 4)
  1. 2
    Identify and protect core components within RECs (Table 4) and their enabling infrastructure from encroachment by incompatible land uses.

Element 5: Major enterprise and industrial areas

Major enterprise and industrial areas, including their supply chain networks, grow and enhance national and global trade.

Strategies

  1. 1
    Protect major enterprise and industrial areas, including associated connections to freight, intermodal, and supply chain networks that form part of the strategic transport system, from encroachment by incompatible land uses (Maps 3, 3a, 3b, and Tables 4 and 6)
  1. 2
    Enable the intensification and expansion of major enterprise and industrial areas, where appropriate, to improve their capacity and functionality.

  1. 5
    Accommodate a mix of commercial uses in major enterprise and industrial areas to give workers and enterprises an appropriate level of access to shops, amenities and facilities to reduce trips out of the area without compromising their role and function.
  1. [90]
    Chapter 3, Part C contains sub-regional directions.  The Metro sub-region outcomes for the “Prosper” theme include:

Regional Economic Clusters

8 The intent to be a globally competitive region, and an attractive destination for investment and high-value economic activities, will be accelerated by identifying, protecting and growing economic opportunities and synergies within and between Regional Economic Clusters (RECs).

The RECs in the Metro sub-region include:

b. Australia TradeCoast

Representing one of SEQ’s most significant existing industrial agglomerations, the Australia TradeCoast REC features high levels of specialisation in priority sectors of manufacturing, mining services, transport and logistics, and tourism.

This REC is supported by major supply chain networks that service not only the region but the entire state.  Two distinct industry precincts separated by the Brisbane River make up this REC: the port-related cluster (south of the river) and airport-related cluster (north of the river).

This REC would benefit from public and active transport connections to serve the significant workforce population, utilising the existing railway network, and additional centre-like functions, particularly in the northern precinct.”[76]

  1. [91]
    ACC’s submissions about these provisions are brief.  They state:

“The protection strategies in SEQRP for land that includes the subject site are consistent with the Strategic Framework provisions, and reinforce the significance of the inconsistency between the gym proposal and material planning provisions.”

  1. [92]
    ACC’s submissions fail to confront that the strategies in the South East Queensland Regional Plan are not only directed to the protection of land in Regional Economic Clusters.  They also seek the accommodation of a mix of commercial uses in major enterprise and industrial areas to give workers an appropriate level of access to shops, amenities, and facilities.  The South East Queensland Regional Plan does not specify the sites on which that is to occur, nor specify the type and scale of commercial uses that are considered appropriate. 
  2. [93]
    City Plan, through its zonings, reflects how the local government intends to balance the competing policy considerations in the Strategic framework that, on the one hand, seek to preserve and protect industrial zoned land to maximise its use for industrial purposes and, on the other hand, seek to provide commercial uses that support workers.  However, I am not prepared to infer that the zonings in City Plan reflect how the balance should be struck to give effect to the strategies in the South East Queensland Regional Plan.  There is no evidence that the strategies in the South East Queensland Regional Plan 2017 have been integrated in version 18 of City Plan.  Rather, the evidence indicates to the contrary.
  3. [94]
    Section 2.2 of City Plan states:

“At the time of commencement of the planning scheme the Minister had identified that the planning scheme, specifically the strategic framework, appropriately advances the SEQ Regional Plan as it applies in the planning scheme area.”[77]

  1. [95]
    As is identified in the Citation and commencement of City Plan, the planning scheme commenced on 30 June 2014.  At that time, the “SEQ Regional Plan” was not the South East Queensland Regional Plan 2017: Shaping SEQ, as that document was only published in August 2017. 
  2. [96]
    In those circumstances, there is no readily identifiable non-compliance with the South East Queensland Regional Plan, nor is support a forgone conclusion.  Whether assessment of the proposed development against the South East Queensland Regional Plan supports approval or refusal turns on a discretionary judgment about whether the proposed development strikes an appropriate balance between the competing strategies in the South East Queensland Regional Plan.  This is a question of fact to be determined by reference to the circumstances of this case. 

Does the proposed development strike an appropriate balance?

  1. [97]
    The parties disagree about whether the proposed development strikes an appropriate balance between competing strategies in the South East Queensland Regional Plan discussed above.  This is a material consideration in determining whether the proposed development is an appropriate use of the subject land.
  2. [98]
    The position of the parties is informed by the evidence of the respective town planners that they retained.  The integers that informed the experts’ opinions were:
  1. whether the proposed development involves a use that is inherently incompatible with the existing and planned uses for the area;
  2. whether the proposed development would support and serve the industry area;
  3. whether the location of the proposed development provides the appropriate level of accessibility; and
  4. whether the proposed development would compromise the role and function of the Murarrie / Colmslie Major enterprise and industrial area through the alienation of industrial land or by reason of inappropriate traffic or reverse amenity impacts.
  1. [99]
    Before turning to consider the expert evidence and each of those issues, it is useful to first understand the land use context in which the proposed development is to be located.

What are the existing lawful uses in the area?

  1. [100]
    The town planners agree that it is relevant to consider the existing lawful uses in the area.  They agree that, having regard to lawful uses only, the land use in the locality is mixed.  It comprises both industrial and non-industrial uses.[78] 
  2. [101]
    As I mentioned in paragraph [2] above, the proposed development is to be established in part of an existing building.  It is one of three large buildings that is co-located with a service station, a drive-through McDonald’s fast-food restaurant and a central at-grade carpark.  It forms part of a development known as “The Depot”, which is located on the edge of a general industry area and on the north-west corner adjacent to the roundabout at the intersection of Colmslie, Lytton, and Junction Roads. 
  3. [102]
    The abattoir operated by ACC is located on the north-east corner of the intersection.  The bulk terminal operated by Wilmar is on the Brisbane River to the north of the ACC operations.
  4. [103]
    The block on which the subject land is located is bordered by Lytton Road to the south, Colmslie Road to the east, the Brisbane River to the north and the Colmslie Recreation Reserve to the west.  The block is in the Industry zone and includes land in the General industry A precinct, being most of the subject land, and land in the General industry B precinct.  The block contains a wide range of existing lawful uses including:
    1. (a)
      a service station (currently operated by Ampol and containing a shop);
    2. (b)
      a McDonald’s fast-food restaurant;
    3. (c)
      the Raptis seafood market on the river;
    4. (d)
      a high impact industry brewery that has the benefit of an approval for a food and drink outlet in a heritage building; and
    5. (e)
      a hotel and shop approved use.[79]
  5. [104]
    Much of the block forms part of a wider development that extends from Lytton Road to the Brisbane River that is marketed as “Rivermakers”.  The Depot is part of that broader Rivermakers development.  The balance of the Rivermakers’ development, other than The Depot, includes a modern industrial estate.  It is immediately north of the subject land and is being developed with both small and large footprint buildings for a range of uses.[80]  The land uses approved within the Rivermakers’ development are limited to warehouse, low, medium, and high impact industry and research and technology industry.  The approval for a small Shop and Hotel associated with the brewery (high impact industry) is part of the Rivermakers’ development.[81]  A substantial area of the Rivermakers’ development remains undeveloped.  The undeveloped land is included in the General industry B zone precinct.  It is intended to accommodate low and medium impact industry and high impact industry where appropriately separated from sensitive uses.  If developed accordingly, the development of this balance land will ultimately contribute further to the mix of industry uses in the locality.
  6. [105]
    The land surrounding the roundabout at the intersection of Colmslie, Junction and Lytton Roads also contains a broad mix of lawful uses.[82]  They include:
    1. (a)
      to the north-east, the industrial uses of ACC and Wilmar;
    2. (b)
      to the north-east, the Colmslie Beach Reserve.  This is a substantial recreation area that is improved by playgrounds, picnic tables and shelters.  It is well maintained, attractive and popular with the public.  Under City Plan, there is an intention to further improve the area by including a link between the Beach Reserve and the State Hockey Centre.  This will make the area more attractive to the public and, as such, may attract more non-industrial users into this locality over time, including along Colmslie Road;
    3. (c)
      to the south, Cannon Hill Anglican College, which is a major educational institution with an enrolment of approximately 1,000 students;[83]
    4. (d)
      to the south-east, land zoned as low density residential, which contains many lots already developed with detached housing (including as part of the Park Hill housing estate).[84]
  7. [106]
    The area to the north of Lytton Road, between it and the Brisbane River, contains a substantial amount of sport and recreation facilities, including:
    1. (a)
      the Colmslie Recreation Reserve to the west of the subject land, which contains the State Hockey Centre, a swimming pool, a gymnasium, “Vulcana Circus”, Dragon Boating Club, recreational boat ramps, a dog park, Bulimba Cricket Club and Bulimba Hockey Club;
    2. (b)
      as noted above, the Colmslie Beach Reserve to the north of the land, and a park including playgrounds and picnic areas; and
    3. (c)
      open green space in the middle of the Metroplex development.[85]
  8. [107]
    There are an extensive number of non-industrial uses in the Industry zone north of Lytton Road between Thynne Road and the Gateway Bridge, including:
    1. (a)
      to the west of the subject land, Anytime Fitness Bulimba, a beauty salon, the Vivo Coffee Shop, a wholesale meats and general goods shop, the Fish Factory takeaway shop and F45 Morningside;
    2. (b)
      in the same block as the subject land, a wholesale meats and general goods shop, a hotel/shop approved but not yet commenced, and the Revel Brewery and approved food and drink outlet (in addition to the service station and McDonalds already mentioned);
    3. (c)
      to the east, and to the east of Wilmar and ACC, a significant number of commercial and retail tenancies in the Metroplex development including Zac’s Bistro, Thorntons Barbershop, an office for Ray White Commercial, Hambros Chartered Accountants, Goodstart Early Learning Childcare, Tawa Yoga Studio, a pilates studio, Brewdog Hotel and Shop and, just south of Metroplex on the opposite side of Lytton Road, a four-storey office park known as Gateway Office Park.[86]

What was the evidence of the town planners?

  1. [108]
    Mr Buckley, the town planner retained by Rivermakers, acknowledges that the subject land is part of an area where existing and proposed industries are encouraged, protected, and expected to prosper.  However, he also says there is clear contemplation in each layer of the planning instrument that there will be a mix of uses that includes uses to support businesses and provide services for employees or workers in industrial areas.[87]  His opinion in this respect is supported by the provisions of the South East Queensland Regional Plan set out to in paragraph [89] above.
  2. [109]
    Mr Buckley says that whether the proposed development represents an appropriate support use that aligns with the anticipated mixed-use context is subject to considerations of impact and land use compatibility with nearby uses.  He opines that the proposed development demonstrates the potential for acceptable coexistence.[88] 
  3. [110]
    In support of his opinion, Mr Buckley notes that the proposed use is:
    1. (a)
      within an existing building in an existing modern complex and will be part of a low impact industry, warehousing and convenience food and fuel and service hub;
    2. (b)
      temporary and the building is able to be adaptively converted back to the uses for which the building is approved when the indoor recreation uses cease;
    3. (c)
      able to support staff within the existing and developing industrial or mixed-use area not only on its own but also as part of that service hub or cluster; and
    4. (d)
      capable of having no impact on the operations of neighbouring uses, including the abattoir and the housing nearby, by reason of its orientation and design.[89]
  4. [111]
    Mr Buckley also says that while the proposed development will introduce conventional vehicles into an industrial area where heavy vehicles are prevalent, the mixing of industrial and non-industrial traffic already occurs.  There are conventional vehicles associated with existing uses throughout the mixed-use area.  There are also conventional vehicles driven by staff of the abattoir, the Wilmar Trading enterprise, and the Raptis fish processing facility that gains access from Colmslie Road.
  5. [112]
    Mr Buckley notes that growth in health and wellness centres across Australia suggests there is a strong underlying need for the use.
  6. [113]
    Mr Buckley accepts that the proposed development may attract custom from non-local employees.  He says the custom may consist of employees of existing businesses, residents of the substantial housing nearby, and staff and parents associated with the large private school and other schools in Murarrie, Cannon Hill, and Morningside.  He says the fact the proposed development may attract broad custom does not make it unacceptable.  It merely reflects the wide land use mix in the locality and the consequent mix of population attracted to the area.
  7. [114]
    Ms Roughan, the town planner retained by the Council, expresses similar opinions to that of Mr Buckley.  She says the idea of non-industrial services within the Australia TradeCoast is reinforced by the South East Queensland Regional Plan, which includes a strategy for major enterprise and industrial areas to accommodate a mix of commercial uses to give workers and enterprises access to shops, amenities, and facilities.  However, she says the flexibility for other activities is constrained by important considerations arising from City Plan.  She says that City Plan includes strong statements that reflect the intention that current and future industrial activities are to be protected from incompatible uses that may fetter or undermine their operations through reverse amenity impacts (and the commensurate likelihood of nuisance and complaint).  She says this is a key test for any non-industrial activity and is a long-held planning principle.  Ms Roughan also opines that it is a long-held planning principle that limited industrial land should not be unnecessarily taken up by non-industrial uses.  In her view, this principle sits comfortably with City Plan’s policy to accommodate small-scale uses that directly serve the local workforce as well as other activities that cannot be easily accommodated elsewhere. She says those principles are reflected in land use strategy L8.2 in s 3.3.3 of City Plan, which emphasises the protection of General industry B and C zone precincts of the Industry zone.  It is also reflected in land use strategy L7 in s 3.3.4 of City Plan, which similarly seeks to protect industries in the Low impact industry zone and in the General industry A zone precinct of the Industry zone.[90]
  8. [115]
    In relation to whether the proposed development unduly takes up industrial land, Ms Roughan says the competing considerations are:
    1. (a)
      the proposed development is a relatively large facility that will take up nearly 50 per cent of the approved gross floor area on the subject land, but it is only one site in a much larger industrial complex;
    2. (b)
      the proposed development is not likely to exclusively, or even predominantly, serve the Australia TradeCoast workforce, but it would provide a significant convenience for them;
    3. (c)
      the proposed development is wholly contained in the General industry A precinct of the Industry zone, rather than General industry B precinct with its broader and higher impacting mix of uses and more “internal” location; and
    4. (d)
      the proposed development is not a use that is easily located elsewhere.  While the use is code assessable in centre zones, it is generally difficult to find suitable premises for a large format indoor recreation facility, particularly one of this scale.  For this reason, indoor recreation facilities such as gymnasiums, climbing gymnasiums, dance and gymnastics schools, trampoline centres and adventure play facilities are commonly found on industry zoned land in Brisbane – particularly in the Low impact industry zone, but also in the General industry A precinct of the Industry zone.[91]
  9. [116]
    Ms Roughan is of the view that, as a temporary activity, the proposed development will not preclude longer term industrial uses on the subject land primarily envisaged for the precinct, including “population serving” service and low impact industries and warehousing.  She opines that the proposed development will be comfortably contained in a lawfully established building that has a form consistent with the Industry zone intent and which can be readily repurposed after the use has ceased.
  10. [117]
    Mr Schomburgk, the town planner retained by Wilmar, says the South East Queensland Regional Plan maintains a consistent theme in relation to Regional Economic Clusters such as the Australia TradeCoast Regional Economic Cluster within which the subject land is located.  He says it plans for the intensification and expansion of Regional Economic Clusters, and protects core components within Regional Economic Clusters.  He says this is evident from Strategies 1 and 2 of Element 2.[92]  Mr Schomburgk acknowledges that there are specific provisions of the South East Queensland Regional Plan that admit of a mix of commercial uses in industrial areas to support workers in order to reduce trips outside of the area.
  11. [118]
    Mr Schomburgk disagrees with Mr Buckley’s opinions about those matters that indicate that the proposed development demonstrates the potential for acceptable coexistence.  He says that while the proposed use is within an existing building, that building has the potential to be used for a range of industrial activities.  He regards reliance on the nature of the surrounding land uses to be misleading as they are not all lawfully operating.  Mr Schomburgk says there should be no reliance on the temporary nature of the proposed development as that is not what was sought in the application.  Further, he notes that, during a site inspection, Mr McNeice from TotalFusion advised him that the cost of the current fit-out of the building was in the order of $10 million.  He says it seems incongruous that such expenditure would be incurred for a temporary period in the order of two years.  Mr Schomburgk also says that while the proposed gymnasium may offer some level of service to employees in the surrounding industrial areas, the scale of the proposed development means that it will inevitably attract most of its custom from outside of the industry areas.  In simple terms, the proposed development is far greater in scale than is required to satisfy the criteria for a non-industrial use in this locality.  Mr Schomburgk does not accept that the nature and scale of the use will have no impact on the operations of neighbouring uses, including the abattoir and the Wilmar operation.  He says the scale of the development and its attendant traffic generation must result in some level of impact on the surrounding land uses, especially the higher intensity industrial activities of ACC and Wilmar.  Mr Schomburgk considers that those industries rely on avoidance of additional adverse traffic impacts on Lytton Road and Colmslie Road for operational imperatives.[93] 
  12. [119]
    Mr Schomburgk disagrees with Mr Buckley’s view that the present mixing of traffic excuses any exacerbation of that mixing.  Based on his understanding of Wilmar’s operations, Mr Schomburgk says that any minor delays caused by increased non-industrial traffic onto Colmslie Road can have serious impacts on the efficiency of Wilmar’s operation.[94]
  13. [120]
    Mr Schomburgk does not dispute that health centres (or gymnasiums) are a growing phenomenon in lifestyle choices, and that that growth might well suggest a need for additional gymnasiums.  However, he says that is not a proper basis on which to determine that strategic industrial land should be lost to its intended industrial potential (even if only for one to two years).  He suggests that does not support the need for a massive gymnasium in this location.[95]
  14. [121]
    Mr Schomburgk opines that the proposal goes well beyond the service role contemplated in the South East Queensland Regional Plan.  He says that, because of the scale of the proposed development, rather than reducing trips out of the area, it will encourage non-industrial trips into the area, adding to the adverse mixing of heavy freight vehicles with conventional private vehicles on non-industrial trips.[96]
  15. [122]
    In the Joint Expert Report of Town Planners, Mr Ovenden, the town planner retained by ACC, also expresses opinions with respect to whether the proposed development is an appropriate strategic fit.  He disagrees with the opinions expressed by Mr Buckley. 
  16. [123]
    Mr Ovenden opines that the proposed development does not satisfy the criteria for establishing non-industrial activities in the Industry zone or City Plan’s Major Industry Area or the Major enterprise and industrial area under the South East Queensland Regional Plan.  Mr Ovenden’s opinion is premised on his assessment that:
    1. (a)
      City Plan and the South East Queensland Regional Plan contemplate non-industrial activities only where they are not otherwise accommodated elsewhere in the city or region and where they do not compromise the prioritised industrial activities;[97] 
    2. (b)
      the proposed development is a facility that provides for recreation needs far beyond the existing or expected workforce of the Industry zone in this part of the City due to its scale;
    3. (c)
      the proposed development cannot reasonably be described as a supporting service for business or for the convenience of workers of the area due to its scale.  Rather than reducing trips out of the industry area, the proposed development will increase the number of trips into the industry area for people who would not otherwise need to access the area;
    4. (d)
      the proposed development is not in an accessible location supported by public transport.  Rather, it is heavily car dependent and relies on access via two significant designated freight routes that are intended to be prioritised for vehicles associated with industrial activities;
    5. (e)
      the proposed development will compromise the ongoing operation of long established and significant industrial activities by introducing non-industrial people and vehicle movements into the area;
    6. (f)
      the proposed development is to be sited adjacent to land in the General industry B precinct in circumstances where the General industry A precinct is intended to act as a buffer between sensitive receptors and non-industrial uses, and medium and high impact industries;
    7. (g)
      the proposed development does not have any characteristics that warrant its location in the Industry zone or in the Major industry area of the Australia TradeCoast, such that it cannot be located elsewhere in the city;
    8. (h)
      the location of the proposed development in the Industry zone not only alienates more than half a hectare of gross floor area that is currently approved for industrial activities, but it also has the potential to compromise the future use of premises within or adjacent to The Depot for industry activities.  He says it will do this by introducing a significant number of people and vehicles into the precinct for the purpose of improving their health and wellbeing, which is unlikely to be compatible with genuine industry and warehouse operations; and
    9. (i)
      the proposed development is not a non-industrial use that is specifically anticipated in the Industry zone, such as an office or small-scale shop or food and drink outlet that is ancillary to an industrial use on the same site and that directly supports the industry and workers.[98]

Is the evidence of Mr Ovenden reliable?

  1. [124]
    In this case, Rivermakers urges closer scrutiny of the reliability of Mr Ovenden’s evidence.  It submits that little weight should be given to Mr Ovenden’s opinions.  It says that Mr Ovenden is not independent of ACC, as he is on an ongoing retainer with ACC and has acted as their agent on issues surrounding the Rivermakers site over many years.  Further, Rivermakers says that Mr Ovenden did not comply with his duty to identify all matters of significance to his opinion.  It says he has become an advocate or protagonist in the case rather than an objective expert.
  2. [125]
    In response to the criticisms made by Rivermakers about Mr Ovenden’s credibility, Counsel for ACC accepted that, with the benefit of hindsight, Mr Ovenden would have been well advised to have recorded his previous dealings in the joint report.  However, it says that I could still act on Mr Ovenden’s evidence.  ACC made three points in Mr Ovenden’s defence.  First, there is an internal inconsistency in Rivermakers’ approach as their submissions otherwise rely on concessions made by Mr Ovenden.  Second, there is no suggestion that Mr Ovenden has given inconsistent evidence.  Third, the existence of a watching brief is not a bar to giving evidence and does not, of itself, demonstrate that there is some problem with independence.[99]
  3. [126]
    The evidence demonstrates that there is a long and close relationship between Mr Ovenden and ACC.  In late 2015, Mr Ovenden was engaged by ACC to “maintain a watching brief on the Rivermakers Site”.[100]  The retainer was ongoing and persisted at the time of the hearing.[101]  Mr Ovenden said that his brief was to monitor possible enforcement issues and to make complaints to the Council about unlawful activity on the subject land.  He was also retained to object to development applications as they were made.[102]  He says he was separately retained as an expert in this case.[103]
  4. [127]
    As part of the “watching brief” for ACC, Mr Ovenden, with the assistance of his staff:
    1. (a)
      authored an objection, dated 9 September 2016, in relation to a code assessable development application for low and medium impact industry and warehouse on the industrially zoned land at 506 Lytton Road, Morningside dated 9 September 2016;
    2. (b)
      kept ACC informed about the progress of an application for a service station and food and drink outlet that was ultimately approved and authorises the service station and McDonalds on the corner of Lytton Road and Colmslie Road;
    3. (c)
      was involved in drafting a submission opposing a change application for the food and drink outlet;
    4. (d)
      was nominated as an expert for ACC in subsequent litigation about the application for the food and drink outlet; and
    5. (e)
      lodged a complaint about a number of uses on the subject land, and the adjacent land with which Rivermakers is associated, including uses referred to as Stone3, RSEA, Rosita Flowers, and Low ‘n Slow butcher.[104]
  5. [128]
    In addition, as part of the “watching brief”, with respect to the development application the subject of these appeals, Mr Ovenden:
    1. (a)
      prepared and lodged an early submission with the Council, prior to public notification, in which approval of the development application was opposed;
    2. (b)
      supervised the process of ACC engaging other experts in the fields of traffic, town planning and economic need to prepare a further objection;
    3. (c)
      prepared and lodged the further submission of ACC opposing approval of the development application; and
    4. (d)
      oversaw the process by which ACC requested that the Minister for Planning exercise his power[105] to call in, and re-decide, this development application after it had been approved by the Council.  During cross-examination, Mr Ovenden accepted that if the Minister had called in the development application the subject of these appeals, he would have made representations on behalf of ACC to have the application refused.[106]
  6. [129]
    ACC’s Notice of Appeal initiating these proceedings was filed on 10 December 2020. 
  7. [130]
    On 17 March 2021, Mr Ovenden attended a meeting between Mr Trevor James Lee (who is the sole director of ACC), Ms Keri Craig-Lee, Mr David Foote, Mr Anthony Lee and representatives of the State government.  During cross-examination, Mr Ovenden revealed that he did most of the talking at the meeting.  He conceded that he could not rule out that the development the subject of this appeal was discussed at the meeting.[107] 
  8. [131]
    At the meeting on 17 March 2021, Mr Ovenden presented the representatives of the State government with a document detailing several actions that the State might take to strengthen planning controls over the subject land.  Mr Ovenden said that the document (and the meeting) was directed primarily at the land uses on the subject land and the adjacent land with which Rivermakers is associated.  The first suggested short-term action was to direct the Council to introduce a temporary local planning instrument, which would make non-industrial uses impact assessable.  It would include assessment benchmarks in the River gateway neighbourhood plan code, the Industry zone code and use codes discouraging non-industrial uses and protecting ACC and other industry.  The second short-term option was to introduce a temporary state planning policy that would include assessment benchmarks to adequately protect ACC as a State interest.  It was suggested that the document could make non-industrial uses inconsistent and require separation distances.  Another listed short-term action was to not permit any further temporary use licences for non-industrial activities in the Rivermakers development.[108]
  9. [132]
    On 19 March 2021, Mr Ovenden sent an email to the Deputy Director-General of the Department of State Development, Infrastructure, Local Government and Planning.  The email attached the table of potential State actions that was presented at the meeting on 17 March 2021 and encouraged that the option of a temporary local planning instrument be “urgently considered”.  To justify the call for urgent action, Mr Ovenden said:

“For several years now BMI have treated the approx. 30 hectare Rivermakers site as a blank canvas and ignored the fact that it is included in a Major Industry Area.  Consistent with their early promotional material, they appear to be in the throes of establishing a significant retail showroom/gym complex toward the Lytton Road end of the site and appear to be in the process of establishing their James Street themed eateries, artisans, function and entertainment node toward the river end of the site. …

In our opinion, the actions by BMI to date completely undermine the integrity of City Plan 2014 and the Planning system generally.  Our client appears to be almost single handily upholding the planning scheme in circumstances where this is both a Council and State interest.

We fully expect a development application to be forthcoming shortly, to legitimise all the current work underway.  This will likely be a variation request over both the Depot and the riverfront part of the Rivermakers site.

I wanted to emphasise the opportunity for a TLPI because it can:

  1. Prohibit development or at least change the level of assessment by introducing a table of assessment for the Industry precinct of the River Gateway neighbourhood plan that over-rides the zone table of assessment
  2. Introduce a range of more robust overall outcomes and specific outcomes for the Industry precinct of the Neighbourhood Plan
  3. Amend the strategic framework and overlay provisions dealing with the freight network so it is not just a focus on the higher order mapped roads in the planning scheme
  4. Amend the Industrial amenity overlay provisions.

I feel that there is a need to act urgently on this.

Happy to discuss any of the above.”

  1. [133]
    Mr Ovenden was nominated as the town planning expert for ACC on 23 March 2021.[109]  He says his engagement as an expert involved a separate retainer.[110]  He did not disclose the date he accepted that retainer.
  2. [134]
    During cross-examination, Mr Ovenden accepted that over the last six years he has done what he could to protect ACC’s interests.  He was involved in developing and implementing’s ACC’s strategy to deal with Rivermakers’ development of the subject land and the adjacent land.  Part of that strategy involved encouraging the Minister to require a temporary local planning instrument that might be given weight in this proceeding.  Mr Ovenden’s involvement persisted after being engaged as an expert in this appeal.[111] 
  3. [135]
    In an appeal, an expert witness’s primary duty is to assist the Court.  That duty overrides any obligation that the expert may have to the party that engages them or to any person who is liable for the expert’s fees or expenses.[112]
  4. [136]
    Where an expert has a past, and continuing, engagement by a client, one would expect an expert to pause and reflect on whether the nature and extent of the engagement is consonant with the independence expected of an expert.  As was observed by Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd:[113]

“1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation …

  1. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise … An expert witness in the High Court should never assume the role of an advocate.”
  1. [137]
    These observations were cited with approval by Heydon JA in Makita (Australia) Pty Ltd v Sprowles,[114] who said that Cresswell J’s list has been influential in causing rules of court to be devised to control expert evidence.  In the Planning and Environment Court, those types of obligations are reflected in rr 27, 28, 31, 32 and 33 of the Planning and Environment Court Rules 2018.  The obligations in those rules indicate that it is critical to an expert’s credibility for an expert to be objective, and to be seen to be objective.[115]  
  2. [138]
    Where an expert appears to be acting as an advocate for the cause of the party who calls the expert, rather than expressing an independent opinion, the quality of the evidence given by the expert may be adversely affected.  The expert who adopts an advocate’s approach risks presenting evidence that is regarded by the Court as unhelpful or self-defeating in the sense of the evidence not being reliable.[116]
  3. [139]
    In this case, the inconsistency between Mr Ovenden’s professional obligations to his client associated with his ongoing brief to resist development on the subject land and the independence expected of an expert engaged to assist the Court causes me to be circumspect about reliance on his evidence.  My concerns about Mr Ovenden’s ability to be objective, and to give reliable evidence, are not quelled by a consideration of the evidence given by him. 
  4. [140]
    Like the position adopted by Mr Ovenden’s client referred to in paragraph [91] above, the opinions that Mr Ovenden expressed in the Joint Expert Report of Town Planners appear to have been expressed whilst turning a blind eye to those parts of the South East Queensland Regional Plan that are unfavourable to his client’s case.  Mr Ovenden’s opinion that the South East Queensland Regional Plan contemplates non-industrial activities only where they are not otherwise accommodated elsewhere in the city[117] does not withstand scrutiny.  It is at odds with Chapter 3, Part A, Goal 2, Element 5, Strategy 5 of the South East Queensland Regional Plan.  That Mr Ovenden did not explicitly acknowledge the strategy in the Joint Expert Report is remarkable given the opinions he expressed were otherwise responsive to those expressed by Mr Buckley, who quoted the strategy.  The failure by Mr Ovenden to expressly recognise the provision (as each of the other town planning experts has) might be regarded as an accidental oversight or a lack of precision and care in expressing his opinions.  In isolation, such an error would not lead me to conclude that Mr Ovenden’s evidence is otherwise unreliable.  Unfortunately, that is not the only matter that causes me to doubt the reliability of Mr Ovenden’s evidence in this case. 
  5. [141]
    My impression, from Mr Ovenden’s individual report and my observations of his demeanour during his oral evidence, was that Mr Ovenden is incensed by what he considers to be impropriety by Rivermakers in its conduct on the subject land and adjoining land.  Further, he clearly had difficulty putting such matters to one side and focussing on the real issues in this case.  For example, Mr Ovenden dedicated much of his individual report to an analysis of the legality of other uses on the subject land,[118] despite:
    1. (a)
      in the Joint Expert Report of Town Planners, the town planners agreeing that some uses that are establishing in the Depot and the wider Rivermakers development may be unlawful and should not be relied upon in forming their planning opinions; and
    2. (b)
      his obligation under r 32 of the Planning and Environment Court Rules 2018[119] to limit his statement of evidence to issues that are the subject of disagreement.
  6. [142]
    Mr Ovenden’s views about the allegedly unlawful conduct of Rivermakers on the subject land and nearby land, and about the relevance of that conduct to the merits of the proposed development, were expressed in strong terms.[120]  Given the nature and longevity of the engagement for ACC and the nature of the ongoing retainer, and the matters with which Mr Ovenden has been involved as part of that retainer, I am not confident that it was not asking too much of Mr Ovenden to express objective opinions about the appropriateness of the proposed development.
  7. [143]
    My concerns in that regard are heightened by the lack of balance displayed by Mr Ovenden in selecting documents to which reference was made in his statement of evidence.  Mr Ovenden chose to attach a copy of a government gazette direction given to the Council under s 94 of the Planning Act 2016.[121]  The direction requires the Council to advise the Minister for State Development, Infrastructure, Local Government and Planning of all development applications made over land within the Australia TradeCoast Regional Economic Cluster.  Mr Ovenden relied on that document to emphasise the importance of protecting the subject land from non-industrial development.  One would expect that, were an objective and balanced approach to be adopted, Mr Ovenden would have also referred to the Minister’s decision not to call in the development application – a matter of which he was aware because of his involvement.[122]  No such reference was made by Mr Ovenden.  As I have mentioned in paragraph [125] above, ACC concedes that Mr Ovenden’s failure to do so did not accord with his obligations under r 428(3) of the Uniform Civil Procedure Rules 1999.
  8. [144]
    In the circumstances, I am not prepared to give Mr Ovenden’s evidence about the appropriateness of the proposed development the weight that might ordinarily attach to evidence from an independent town planner retained by a party to an appeal.  My decision is not a reflection on his experience or competence as a town planner.  Rather, it is the product of two things.  First, the fact that the extent of his acknowledged obligations under his ongoing retainer for ACC are not consonant with the independence expected of an expert giving evidence in accordance with the Uniform Civil Procedure Rules 1999 and the Planning and Environment Court Rules 2018.  Second, several features of his evidence left me with concerns about the reliability of the opinions he expressed. 

What is my assessment of the balancing exercise?

  1. [145]
    Each of the other town planners expressed balanced and well-reasoned opinions about the appropriateness of the land use when assessed against the assessment benchmarks in the South East Queensland Regional Plan, and generally.  That the experts’ views differ is evidence that this is a matter about which reasonable minds might differ, depending on the view taken of the integers that inform the opinions.  As I have mentioned at paragraph [98] above, the integers that informed the experts’ opinions were:
  1. whether the proposed development involves a use that is inherently incompatible with the existing and planned uses for the area;
  2. whether the proposed development would support and serve the industry area;
  3. whether the location of the proposed development provides the appropriate level of accessibility; and
  4. whether the proposed development would compromise the role and function of the Murarrie / Colmslie Major enterprise and industrial area through the alienation of industrial land or by reason of inappropriate traffic or reverse amenity impacts.
  1. [146]
    I consider each of these integers in more detail below.  However, it is convenient to note that I generally prefer the evidence of Mr Buckley and Ms Roughan to that of Mr Schomburgk.  Mr Schomburgk’s opinions are premised on several assumptions that I do not accept.[123]  The assumptions that I do not accept include:
    1. (a)
      that no reliance should be placed on the temporary nature of the proposed development;
    2. (b)
      that it is relevant that TotalFusion told him that they spent in the order of $10 million; and
    3. (c)
      that the additional traffic generation will have an unacceptable impact on the industrial activities of ACC and Wilmar. 

1. Does the proposed development involve a use that is inherently incompatible?

  1. [147]
    Having regard to the existing lawful uses described in paragraphs [100] to [107] above, it is easy to accept the town planners’ characterisation of the uses in the locality as mixed.[124]
  1. [148]
    There is no issue about potential incompatibility between the proposed development and the existing sport and recreation uses.  Similarly, there is no suggestion that the proposed development is incompatible with the nearby residential uses or educations uses, or with the existing lawful uses on the subject land, such as the service station and the McDonald’s fast-food restaurant.  The proposed development is not expected to generate any unacceptable impacts, in terms of noise and air quality, on the local area or nearby residents.[125]  It is compatible with the operating hours and general level of activity and amenity experienced in the locality.[126]
  1. [149]
    The real issue with respect to incompatibility relates to the existing and planned industrial uses in the local area.
  2. [150]
    The Written Submissions of the Respondent[127] provide a useful summary of the industrial land uses planned for the area.  None of the parties took issue with the Council’s submissions in that respect.  I gratefully adopt the summary as follows:

“75. Development in the General Industry A zone precinct is expected to be compatible with adjacent residential areas.  The zone precinct envisages lower impacting activities.

  1. The zone precinct is intended to accommodate population serving industries involving high levels of public visitation, for example, dry cleaning and laundromats, tailors/dressmakers, various repair services, cabinet makers and self-storage facilities.  Self-evidently, a gymnasium is a public facing or visitation activity.
  2. Some of those industries could involve a large format building and attract a range of customers such as self-storage facilities.  As noted by Mr Ovenden, the modern self-storage facilities could be up to 15 metres in height and can occur in the General industry A zone precinct by way of code assessment.”[128]
  1. [151]
    I accept the evidence of Mr Buckley and Ms Roughan that there is no inherent incompatibility between large format indoor sport and recreation uses and industrial uses, and that the co-location of large scale indoor recreation uses and industrial uses is not uncommon.[129]  Their evidence is supported by that of Mr Schomburgk, who accepted during cross-examination that a gymnasium can be a compatible use in the General industry A precinct of the Industry zone, depending on its scale, presentation and impacts.[130]  Like those population serving industries that are encouraged in the precinct, an indoor sport and recreation use is a public facing or visitation activity.  It is also not a sensitive use under City Plan.[131]  The use is not so different in nature as to be incapable of coexisting in harmony.  The evidence of Mr Buckley and Ms Roughan, together with that referred to in paragraphs [204] to [260] below, satisfies me that the proposed development would not create an undesirable conflict between heavy vehicles accessing industrial uses and private cars of gymnasium patrons.
  2. [152]
    Further, for reasons explained later, the proposed development would not result in unacceptable traffic and reverse amenity impacts.[132]
  3. [153]
    In the circumstances, I am satisfied that the proposed development does not involve an inherently incompatible land use on the subject land.

2. Would the proposed development support and serve the industry area?

  1. [154]
    As I have already explained in paragraphs [24] to [39] above, the proposed development is not the type of support use that is anticipated in the Industry zone.  On the other hand, the South East Queensland Regional Plan encourages a mix of commercial uses in Major enterprise and industrial areas to give workers and enterprises an appropriate level of access to shops, amenities, and facilities.
  2. [155]
    Mr Buckley opines that the proposed development will provide access to recreation facilities for workers employed by the existing industrial and other uses in the Industry zone and, as such, will reduce trips out of the area.[133]  Ms Roughan expresses a similar opinion.[134]  Mr Schomburgk also accepts that the proposed development will offer a level of service to employees in the surrounding industrial areas, although he expresses concern that the proposed development’s scale means that it will inevitably attract the majority of its custom from outside of the industry area.[135]
  3. [156]
    The evidence of the economists supports that of the town planners.  Mr Duane, the economist retained by Rivermakers, opines that the proposed development would support the industrial uses in the area as, in his opinion, the local workforce would use the gymnasium.[136] 
  4. [157]
    Mr Shimmin, the economist retained by Wilmar, acknowledges that the convenience of workers is a matter of importance.  In his oral evidence, he explained that a proportion of workers choose to use a gymnasium close to work and, for those workers, the proposed development would be relevant.[137]  He says that the provision of facilities of the type proposed would be an expectation of workers in this locality.[138]  Mr Shimmin gave similar evidence in his individual statement of evidence, wherein he accepted that there would be a proportion of the target market aged 15 to 64 that would originate from the Colmslie Road industrial precinct, albeit a small proportion.[139]  Although the proportion may be small, the working population within the defined temporary local planning instrument area is about 10,000 people.  As such, applying Mr Shimmin’s estimated proportion of the workforce, at least 200 of those workers could be expected to seek membership at the proposed gymnasium.[140]
  5. [158]
    Mr Norling, the economist retained by ACC, gave similar evidence about the support that would be provided by the proposed development.  He says that workers have an expectation that certain needs will be met in a location that is convenient to their place of employment.[141]  He also accepts that approval of the proposed development would assist in providing workers and enterprises with access to a facility that has the potential to reduce road trips out of the area.[142]
  6. [159]
    While the proposed development may not exclusively or predominately serve the industry area, it represents an opportunity for the workers in the area to have convenient access to the recreation opportunities provided by the proposed development.[143]  As is noted by the economic experts, attending a gymnasium for fitness workouts is the most popular organised sport and physical recreational activity for Australians.[144]  The facilities offered by the proposed development would likely be attractive to workers in the area.  It would increase the level of amenities that are available in the area, providing improved health and wellbeing options for the workers and at a location that would minimise trips out of the area.  That the viability and capacity of the proposed development to offer a greater range of services for workers of the area is enhanced by making the service available to non-worker residents of the local area does not detract from the fact that the proposed development will give workers access to important amenities and facilities.[145]

3. Does the location of the proposed development provide an appropriate level of accessibility?

  1. [160]
    The subject land is located adjacent to the roundabout at the intersection of Colmslie, Lytton and Junction Roads.  Colmslie Road runs in a north direction, then a north-east direction along the Brisbane River.  It is classified as a neighbourhood road (minor road) and a primary freight access road under City Plan.  It is the boundary of Murarrie and Morningside.  The relevant section of Lytton Road extends from Bulimba in an east-west alignment, past the subject land and across the M1 Motorway to the Port.  Lytton Road is classified as a suburban road (major road) and a primary freight access road (from Thynne Road) under City Plan.  Junction Road runs in a southwest-northeast alignment from Wynnum Road, Cannon Hill through to the roundabout.  The roundabout is a junction of three suburbs, namely Morningside (to the north-west, west and south-west), Murarrie (to the north-east, east, and south-east) and Cannon Hill (to the south).  All of them are eastern suburbs of Brisbane on the southern side of the Brisbane River. 
  2. [161]
    While the proposed development is in the Industry zone, it is on the edge of the industrial area.  The proposed development can be accommodated within an existing industrial building on the subject land without unduly encroaching the “heart” of the industrial area. 
  3. [162]
    The subject land has road frontages to Lytton Road and Colmslie Road.  It has an all-movements ingress from Lytton Road and left out egress to Lytton Road, and an all-movements access to Colmslie Road.  I accept the evidence of Ms Roughan that the proposed development is located with convenient access to a major road (Lytton Road).  Lytton Road is utilised by a significant volume of traffic associated with nearby residential areas, visitors of the local recreational facilities and other services in the area (including the McDonald’s fast-food restaurant and service station on the subject land), and users of the Gateway Arterial.[146] 
  4. [163]
    As I have found in paragraphs [73] to [79] above, the proposed development complies with the overall outcome in s 9.3.11 2.b. of the Indoor sport and recreation code.  It is appropriately located to provide convenient access for workers of the nearby industrial area.

4. Would the proposed development compromise the role and function of the Murarrie / Colmslie Major enterprise and industrial area?

  1. [164]
    As I have already mentioned, Chapter 3, Part A, Goal 2, Element 5, Strategy 5 of the South East Queensland Regional Plan encourages amenities and facilities to support workers of the Murarrie / Colmslie Major enterprise and industrial area.  However, the encouragement is constrained.  Any such amenities and facilities must not compromise the role and function of the Murarrie / Colmslie Major enterprise and industrial area.  Also, under City Plan, any non-industrial use must not compromise the role and function of a Major Industry Area, or the operation of existing and potential industrial uses in the area.  This was acknowledged by Mr Buckley.[147] 
  2. [165]
    When viewed in the context of the subject land, the proposed development is large.  It will occupy nearly 50 per cent of the approved gross floor area of the subject land.[148]  On the other hand, as was observed by Mr Duane, it only represents about 0.05 per cent of the total land in the Australia TradeCoast.[149]  Mr Duane opines that approval of the proposed development is inconsequential to the ongoing operation of the Australia TradeCoast.  He says that the Australia TradeCoast will be developed within an indicative 12-year supply timeframe regardless of the proposed development.[150]  Viewed in that context, Mr Schomburgk accepts that the loss occasioned by the proposed development is minimal.[151]  However, he says that the size of the loss is not the only relevant consideration.
  3. [166]
    I agree with Mr Schomburgk.  The lost opportunity to utilise land in the Industry zone for industrial uses is not to be lightly swept aside on the basis that the area is but a small portion of the area otherwise available.  As would be apparent from the provisions of City Plan and the South East Queensland Regional Plan to which I have already referred, at the local government and State government level there is strongly expressed planning policy to preserve and protect land in the Major Industry Area from encroachment by non-industrial uses and to prioritise and maximise the use of such land for industrial purposes.  An unconstrained approval of an indoor sport and recreation use of the scale proposed would be at odds with that policy. 
  4. [167]
    Rivermakers and the Council contend that the proposed two-year operational period is a material consideration when assessing the potential for the proposed development to compromise the role and function of the Murarrie / Colmslie Major enterprise and industrial area.
  5. [168]
    Wilmar contends that the temporary nature of the approval should be given little weight.  It advances three arguments in support of its contention.
  6. [169]
    First, Wilmar contends that a temporary approval is inappropriate in town planning and social terms.  In this respect, it relies on the evidence of Mr Schomburgk.  He perceives there to be a community disbenefit in the gymnasium opening and then closing in two years’ time.  He says it would disrupt the routines of customers, who would then need to find an alternative venue for their physical activity.[152] 
  7. [170]
    It seems to me that to characterise this as a community disbenefit is an overstatement.  The opening and closing of businesses that provide a service to the community, or the movement of such businesses to new locations, is part of everyday life experience.  In addition, I accept the evidence of Mr Duane that the fitness industry is one that is accustomed to high turnover rates.[153]
  8. [171]
    Second, Wilmar contends that the temporary use will facilitate a change in the perceived land use context of the subject land without going through the proper planning scheme amendment process including public consultation.[154] 
  9. [172]
    I reject this argument.  While an amendment to a planning scheme can facilitate development by removing the need to apply for a development permit (effectively allowing the use to establish “as of right”), that is not the only means of lawfully changing the use to which land is put.  The Planning Act 2016 provides a process for obtaining a development permit for that very purpose.  The development application process is the more prevalent means of lawfully changing the use of land in Queensland.  Here, it is a process that required an impact assessable development application and, as such, was subject to public consultation through the public notification process.
  10. [173]
    Third, Wilmar contends that approval of the proposed development will affect community expectations regarding the intended use of the subject land in the future.  This is a matter about which Mr Ovenden expressed considerable concern during his oral evidence.  While he accepted that it was likely that the staff and clientele would be informed of the limited life of the gymnasium, he considered it likely that they would exert some form of pressure to prolong the life of the use.[155] 
  11. [174]
    Although the community expectations may be informed by the physical environment, it has long been recognised by this Court that reasonable community expectations are also informed by the relevant planning instruments.[156]  Here, the approval of the proposed development will not change the zoning of the subject land, nor will it change the assessment benchmarks against which any application to extend the life of the development approval will need to be assessed.  As such, I am not persuaded that community expectations justifies giving this consideration little weight.
  12. [175]
    ACC also contends that little weight should be given to the fact that Rivermakers’ only seeks a temporary approval.  Its submissions on this issue are strongly expressed.  To avoid any injustice that might be caused by my summarising their effect, while they are lengthy, it seems appropriate that I quote them.  After outlining the heavy reliance placed by the Council (and experts retained by Rivermakers and the Council) on the fact that the approval is to be limited to a two-year period, ACC submits:

“146. The evidence is all one way that the fitout was expensive, and that it would not be rational for any reasonable business person to accept a 2 year limitation on this gym. The Need JER referred to fitout costs of $7M to $10M, or $6M. Mr Shimmin expressed the view that, given the cost of the fitout, and the likely payback period, the 2 year condition was “simply uncommercial and impractical”. Mr Norling expressed the view that the operation could be commercially successful if it had a tenure of 5 to 10 years or more, but that with a period of 2 years, it would not generate sufficient profit. Mr Duane accepted that the 2 years would not cover the costs, that the loss could be in millions of dollars, and that it was not rational for any reasonable business person to accept a 2 year limitation on the gym.

  1. The Need JER also recorded that, on 9 April 2021, the need experts requested a copy of the Total Fusion lease, and that that was provided on 20 April 2021. As the Need JER records, the lease that was produced is not for a gym. Although Total Fusion is named as the tenant, the special conditions prohibit uses such as a gym, and provide that the members of Total Fusion may not be granted access to the premises for its use as a gym.
  2. The common material also included an email of 25 September 2020 from Land Partners (who provided the planning report which accompanied the development application), which stated:

“As discussed by phone out client has entered into an agreement to lease the building for a10 year period. I understand this is a standard lease term for the operation of a Gym. I also understand that Council wish to place a sunset clause on the development of 5 years. This time frame currently does not cover costs for the establishment of the Gym and we hope that council could consider a time frame that reflect the lease term. In this regard our client, if required, would prefer a 10 year sunset clause to cover the establishment costs for the Gym, however may consider a 7 year time frame is council were willing to accept same with the ability to extend the approval after that time. If Council could consider this request regarding the subset date that would be appreciated.

I also note that the development proposal will need to pay infrastructure costs to council. However with a sunset clause can you let me know how counsil with the handle this? Is it that we pay a reduced charge or say pay 50% of the charge with a balance payment if the gym approval is extended? We would like to discuss this further with council as part of the above sunset clause. Thanks for the above and we look forward to our review of the draft conditions and the above discussion on ICN charges.” 

  1. It is respectfully submitted that the matters referred to above all point away from regarding an approval of this proposed development as the preferable outcome, and all point to giving rise to areas of considerable concern. ACC doubts that either Rivermakers or the Council will be able to point to any decision of this Court that has condoned or granted an approval for a temporary use in circumstances where an unlimited approval was unacceptable. Such an outcome is counterintuitive.
  2. If a temporary approval were granted, the only reasonable conclusion open on the evidence is that Rivermakers would later exercise rights to seek to extend the approval. The issue is not whether the condition will not be complied with; the issue is whether Rivermakers will take steps to change the condition. To create an environment for that to potentially occur would be highly undesirable. This case has been conducted on a particular footing about time, and it would almost be a fraud on the Court for Rivermakers to seek to explore its rights in the future to change things.
  3. Rivermakers was put on notice in ACC’s opening that it would rely upon the consideration that neither Rivermakers nor Total Fusion (through an appropriate representative) would be giving evidence.
  4. The principle in Jones v Dunkel 1959 101 CLR 298 is well-known and well-established. The principle is that any inference favourable to ACC for which there is ground in the evidence may be more confidently drawn by this Court when a person able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the opposing party, and the evidence at the trial provides no sufficient explanation for that failure.
  5. That is the situation here. In its cross examination of relevant witnesses, ACC has put Rivermakers on notice that the lack of any explanation for Total Fusion acting pre-emptively in carrying out an expensive fitout, and what its true intentions are for the future, are evidentiary issues in the case.
  6. When regard is had to the various issues discussed above (re appropriate use of the land, reverse amenity, traffic), a temporary approval would be a bad thing, not a good thing.”
  1. [176]
    These submissions are not persuasive.  Leaving aside that the only evidence of the fit-out costs is hearsay, the opinions of the economic experts about the commerciality of a two-year operating period are premised on an assumption that the outlay costs are lost at the end of the two-year operating period.  There is no evidence establishing the validity of the assumption.  I do not accept that the assumption is valid.  To the contrary, as was acknowledged by Mr Norling, the costs referred to include a substantial amount of gymnasium equipment which, at the end of the two-year period, could be relocated to a new premises operated by the same business entity.[157] 
  2. [177]
    Further, and in any event, it is of little moment whether the fit out is reflective of premature overexuberance about the prospect of an approval, ignorance of the requirement to obtain an approval, or arrogance and blatant disregard of the law.  The decision to spend money on a fit out that may be wasted, or that may adversely affect the commercial success of the business, is a matter of private economics.  It is not relevant to the decision of an assessment manager, or the Court, to grant an approval (or a change to an approval).[158]  It does not inform whether the use is appropriate. 
  3. [178]
    The observations by Ackner J in J Murphy & Sons Ltd v Secretary of State for the Environment,[159] in relation to a similar planning regime applying in England, are apposite.  He said:

“There can be no doubt from the terms of para 10 of his letter that the Minister declined to have regard to the cost of developing the site, because he said in terms that the cost of developing a site for a particular purpose is an irrelevant consideration in determining whether planning permission should be granted.  Thus the essential and only question is: is the cost of developing a site for a particular purpose a relevant consideration in determining whether or not planning permission should be granted?  Planning permission is required for the carrying out of any development of land (s 23 of the Town and Country Planning Act 1971).  ‘Development’ is defined by s 22 of the Act as meaning the carrying out of building, engineering mining or other operations in, on, over or under the land, or the making of any material change in the use of any buildings or other land.  In considering such an application, there is no provision in the Act requiring the authority who considers the application for planning permission to look beyond the effect of the land use or change of use proposed to enquire into matters of cost and cost benefits.  I have never heard it suggested before that a planning application involves a valuation exercise of a kind which one would associate with the activities of the Lands Tribunal nor is there any reported decision to this effect.  What the planning authority is concerned with, is how the land is to be used, and not whether the development proposed is going to be a wise commercial venture.  The planning authority exercises no paternalistic or avuncular jurisdiction over would-be developers to safeguard them from their financial follies.  If it had such jurisdiction, planning inquiries would last even longer than they do now, and the problems of establishing whether or not a particular development was or was not economically justifiable would be countless.[160]

  1. [179]
    The approval sought for the proposed development if for a temporary use only.  It is to operate for two years.  The limited duration of the proposed use is a relevant, and material, fact informing the acceptability of the proposed development.  This fact persuades me that the proposed development would not alienate the subject site from use for industrial purposes in the long term.  The proposed development is to operate from an existing, approved industrial building.  Upon the cessation of the operation of the proposed development (after a two-year period), the opportunity for the existing industrial building to be used for industrial uses will still exist.  I accept the evidence of Ms Roughan that the building can be readily repurposed for “population serving” service industry, low impact industry and warehouse uses after the indoor sport and recreation use has ceased.[161]  The existing built form was approved for those uses originally.
  1. [180]
    For reasons provided in more detail below, I am also satisfied that the proposed development would not result in unacceptable traffic or reverse amenity impacts.[162]  It would not compromise the existing or potential industrial uses that occupy land in the Industry zone.  It can co-locate harmoniously with existing lawful uses on the subject land and those in the vicinity with no unacceptable impacts.  As such, it would not preclude or diminish industrial uses on the subject land or in the area generally.
  1. [181]
    In the circumstances, given the limited life of the proposed development and its location in an existing, approved industrial building, I am satisfied that, despite approval of the proposed development:
    1. (a)
      the integrity and effective operation of Brisbane’s Major Industry Areas can continue and is therefore protected;
    2. (b)
      the Major Industry Areas can continue to accommodate a significant amount of economic activity generating employment;
    3. (c)
      the Major Industry Areas are protected and can evolve to support Brisbane’s industrial economy, global business, and innovative start-ups; and
    4. (d)
      the role and function of the Murarrie / Colmslie Major enterprise and industrial area will be protected.

Conclusion regarding the appropriateness of the land use assessed against the South East Queensland Regional Plan

  1. [182]
    For the reasons provided above, I am satisfied that the proposed development represents an appropriate support use that aligns with the mixed-use context anticipated in the South East Queensland Regional Plan.  As such, assessment against the South East Queensland Regional Plan supports approval of the proposed development. 

Conclusion regarding appropriateness of the land use

  1. [183]
    For the reasons provided above, an assessment of the proposed development against the assessment benchmarks in City Plan is, on balance, relatively neutral.  It does not provide strong support for the proposed development.  Equally, it does not represent a significant hurdle to its approval.  This is because the extent to which the proposed development offends the goals with respect to preservation of industrial land is limited by two factors.  First, the duration of the proposed development, being for two years only.  Second, the fact that the use is to be established in an existing building that can be readily re-used for its original industrial use at the cessation of the indoor sport and recreation uses. 
  2. [184]
    An assessment against the South East Queensland Regional Plan supports approval of the proposed development.
  3. [185]
    To the extent that Chapter 3, Part A, Goal 2, Element 5, Strategy 5 of the South East Queensland Regional Plan is inconsistent with City Plan (or any other local planning instrument such as the Temporary Local Planning Instrument), pursuant to s 8 of the Planning Act 2016, the South East Queensland Regional Plan prevails. 
  4. [186]
    On balance, having regard to the assessment against the assessment benchmarks, I am satisfied that the proposed development, limited in duration to a two-year period of operation and to be conducted from an existing building, is an appropriate use of the subject land.

Will the proposed development result in an unacceptable risk of adverse and unreasonable constraints on industrial uses?

  1. [187]
    ACC contends that the proposed development will result in an unacceptable risk of adverse and unreasonable constraints (referred to as “reverse amenity” constraints) on present and future industrial uses.  The constraints are alleged to relate to air quality impacts.[163]  ACC also contends that those constraints will compromise or deter the establishment, continuation, or expansion of industrial uses.  Wilmar does not join with ACC in making this allegation.
  2. [188]
    In support of its contention that the risk is unacceptable, ACC relies on specific outcome SO8 and land use strategy L8.2 relating to Brisbane’s industrial economy in the Strategic framework and performance outcome PO1 of the River gateway neighbourhood plan code.  It says that the overall outcomes in ss 9.3.3.2 2.a. and e.i. and performance outcome PO14 of the Centre or mixed use code also provide relevant context on this issue.  Those provisions state:

3.3.3 Element 1.2 – Brisbane’s industrial economy

Table 3.3.3.1—Specific outcomes and land use strategies

Specific outcomes

Land use strategies

SO8
Brisbane’s industrial lands are protected from encroachment by office or other non-industrial-based uses.

L8.2
Land uses other than industrial do not compromise the existing or potential industrial uses that occupy land in the Special industry zone, General industry C zone precinct or General industry B zone precinct of the Industry zone.

7.2.18.3 River gateway neighbourhood plan code

7.2.18.3.3 Performance outcomes and acceptable outcomes

Table 7.2.18.3.3.A–Performance outcomes and acceptable outcomes

Performance outcomes

Acceptable outcomes

PO1
Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built from character and is:

  1. a.
    consistent with the anticipated density and assumed infrastructure demand;
  1. b.
    aligned to community expectations about the number of storeys to be built;
  1. c.
    proportionate to and commensurate with the utility of the site area and frontage width;
  1. d.
    designed to avoid a significant undue adverse amenity impact to adjoining development;
  1. e.
    sited to enable existing and future buildings to be well separated from each other and to avoid affecting the potential development or adjoining sites.

Note–Development that exceeds the intended number of storeys or building height can place disproportionate pressure on the transport network, public space or community facilities in particular.

Note–Development that is over-scaled for its site can result in an undesirable dominance of vehicle access, parking and manoeuvring areas that significantly reduce streetscape character and amenity.

AO1.1
Development complies with the number of storeys and building height in Table 7.2.18.3.3.B.

Note–Neighbourhood plans will mostly specify a maximum number of storeys where zone outcomes have been varied in relation to building height.  Some neighbourhood plans may also specify height in metres.  Development must comply with both parameters where maximum number of storeys and height in metres are specified.

AO1.2
Development has a maximum plot ratio that complies with Table 7.2.18.3.3.C.

AO1.3
Development has boundary setbacks that comply with Table 7.2.18.3.3.D.

Note–For development that fronts a street that is subject to a road-widening requirement, the minimum building setback is to be measured from the new property boundary.

9.3.3 Centre or mixed use code

9.3.3.2 Purpose

  1. The purpose of the Centre or mixed use code is to assess the suitability of development to which this code applies.
  2. The purpose of the code will be achieved through the following overall outcomes:

a. Development involving a new use in an existing building is appropriate for its location and does not negatively impact on the adjoining residents.

e. Development contributes to the overall structure and integration of the site with the local area and:

i. does not isolate or negatively impact on the development potential of adjoining sites;

ii. provides opportunities for the integration of pedestrian and cyclist access and parking across adjoining sites, to enhance convenience and comfort for all users.

9.3.3.3 Performance outcomes and acceptable outcomes

Table 9.3.3.3.A–Performance outcomes and acceptable outcomes

Performance outcomes

Acceptable outcomes

PO14
Development does not isolate or negatively impact on the development potential or future amenity of an adjoining site.

AO14
Development ensures that:

  1. a.
    the site and frontage width of an adjoining site within a zone in the centre zones category or the Mixed use zone:
  1. i.
    complies with the minimum requirements set out in a neighbourhood plan; or
  1. ii.
    does not isolate lots less than 800m2 in area or with a frontage width of less than 20m or prohibit access to an existing access easement arrangement or laneway; or
  1. b.
    a concept plan for the development demonstrates that the development can be physically achieved on the adjoining site at a later stage, commensurate with the intent of the zone and zone precinct or neighbourhood plan requirements.
  1. [189]
    ACC does not explain the basis for its allegation that the proposed development does not comply with performance outcome PO1 of the River gateway neighbourhood plan code.[164]  Rather, ACC quotes the provision and emphasises the words “avoid affecting the potential development of adjoining sites”.  There is no suggestion that the proposed development fails to comply with acceptable outcomes AO1.1 to AO1.3 inclusive, nor could there be.  When the outcomes are read in conjunction with s 7.1 6.f. of City Plan, it is apparent that compliance with the acceptable outcomes achieves compliance with the performance outcomes.  Further, and in any event, as is apparent when the whole provision is read, rather than just those words that ACC emphasises, the performance outcome relates to the design and siting of new buildings.  The proposed development involves the reuse of an existing building.  As such, I am satisfied that there is no relevant non-compliance with performance outcome PO1 of the River gateway neighbourhood plan code that tells against approval of the proposed development.
  2. [190]
    In its written submissions, ACC relies on the assessment benchmarks referred to above to contend that the reverse amenity issue arises in two ways.  First, with respect to the relationship between the proposed gymnasium and existing industry and, secondly, the relationship between the proposed gymnasium and any proposed new industry.
  3. [191]
    The potential for air quality impacts, relevantly by reason of odour, was the subject of expert evidence from Mr Craig Beyers and Mr Paul King, the air quality experts retained by Rivermakers and ACC respectively.  In the Noise and Air Quality Joint Experts’ Report, Mr King and Mr Beyers agree that the odour modelling demonstrates that acceptable odour amenity (insofar as compliance with the numerical odour standard) is predicted to be achieved at the proposed development.  They agree that this does not mean that odour will not be detectable from time to time, rather it will not be at a level that is likely to result in environmental nuisance.  The experts recognise that it is possible that occasional short-term odour may be detectable when cattle trucks on Colmslie Road drive past the subject land.[165]
  4. [192]
    ACC submits that the possibility of a detectable odour is important because this Court has recognised that, with noise and air quality issues, compliance with all regulatory requirements “is not the end of the matter”.[166]  It says that is partly because negative impacts on amenity can involve issues of perception, or different reactions by different people. 
  5. [193]
    I accept that demonstration of compliance with numerical standards will not always suffice.  Depending on the circumstances, it may be relevant to have regard to negative impacts that may result from issues of perception.
  6. [194]
    In this case, Mr Beyers considers the potential for odour nuisance to be very low given the infrequent nature of cattle deliveries and the low intensity of odour associated with the truck movements.  His assumptions about the frequency and intensity of the odour are informed by a field odour survey that measured the frequency of cattle deliveries to ACC’s abattoir and the intensity of the odour from the cattle trucks measured at the subject land.  Mr Beyers’ opinion is also informed by the fact that, prior to reaching the roundabout intersection of Lytton, Colmslie and Junction Roads, the cattle trucks pass numerous residential dwellings that are setback a similar distance from the road as the proposed development.[167]
  1. [195]
    ACC disputes the adequacy of the field survey undertaken by Mr Beyers and the legitimacy of his reliance on it to draw his conclusions.  With respect to the significance of the potential impact, ACC relies on the evidence of Mr King. 
  2. [196]
    Mr King gave evidence that the gymnasium is likely to have high patronage, and the patrons will be attending the premises for health reasons.  As such, he considers that the patrons have greater potential to experience nuisance from odour from passing trucks as compared to persons working in an industrial area, who would have a reasonable expectation of potential amenity impact from other industry.[168]
  1. [197]
    As is noted by ACC in its written submissions, it is appropriate to adopt a cautious approach when considering the potential for reverse amenity impacts.  This cautious approach is encouraged by City Plan, given its emphasis on the protection of industrial lands from encroachment, and the need to ensure the integrity and effective operation of industrial uses.  Land in the Major Industry Area is particularly important in that regard.  It is of critical importance to the generation of economic value and employment for Brisbane.
  2. [198]
    Even adopting a cautious approach, I am satisfied that the proposed development will not pose an unacceptable risk to present and future industrial uses having regard to the following four matters. 
  3. [199]
    First, despite Mr King’s concern that patrons of the proposed development may experience an impact from odour of passing cattle trucks, in his oral evidence Mr King accepted that the potential for odour nuisance is low.[169]
  4. [200]
    Second, when assessing the risk posed by the introduction of the proposed development to an industrial area, it is relevant to consider the surrounding context and the extent of the risk that exists absent the proposed development.  In that regard, it is relevant that there are existing sport and recreation facilities in the immediate locality.  They include hockey fields, a swimming pool, and the Colmslie Beach Reserve.  The Colmslie Beach Reserve is a popular outdoor recreation area that is closer to ACC’s facility than the proposed development.  Also, the cattle trucks already pass close to several residential areas on Lytton Road.[170]  As was identified by Mr Beyers, there are about 30 residential dwellings on Lytton Road to the east of the roundabout that are within 18 to 30 metres of the road that the cattle trucks traverse.[171]  This is closer than the proposed development, which is about 50 metres from the road.  Further, unlike an indoor sport and recreation use, residential dwellings are “sensitive uses” under City Plan.
  5. [201]
    Third, despite the existence of several sensitive receptors near ACC’s facility, and equally proximate to the route traversed by the cattle trucks, there have been no substantiated complaints about odour nuisance from cattle trucks associated with ACC’s facility.[172]
  6. [202]
    Fourth, the risk that ACC might be required to adjust its operations by reason of odour complaints from patrons is negligible.  The potential source of offensive odour is cattle trucks travelling on public roads.  It would be within the reasonable expectations of individuals at a location proximate to a cattle haul route that odour will be experienced from such sources.  In addition, patrons are unlikely to attend the proposed development more than once per day or for more than an hour or two on those days when they attend.[173]  To the extent that patrons experience odour that offends them in the short time they are at the proposed development, they are readily able to address the issue themselves by patronising another establishment.
  7. [203]
    Accordingly, I am satisfied that the proposed development would not pose an unacceptable risk on existing or future industrial uses by reason of reverse amenity impacts.  Approval of the proposed development would not compromise the existing or potential industrial uses in the area, nor represent an unacceptable encroachment by a non-industrial use.  This issue does not call for refusal of the proposed development.

Will the proposed development result in unacceptable impacts on the safety, efficiency, and function of the road network?

  1. [204]
    ACC and Wilmar contend that the proposed development will result in unacceptable impacts on the safety, efficiency, and function of the road network, in particular by reason of its impact on freight routes. 
  2. [205]
    The subject land is located on Lytton Road and Colmslie Road.  Those roads are mapped as primary freight access roads on the Road hierarchy overlay map – OM-018.2-29.[174]  The subject land is also adjacent to the roundabout intersection of Colmslie, Lytton and Junction Roads.

What are the relevant assessment benchmarks?

  1. [206]
    ACC and Wilmar rely on the following assessment benchmarks in support of their contention that the proposed development will have an unacceptable impact on the road network:
    1. (a)
      Chapter 3, Part A of the South East Queensland Regional Plan:
      1. Goal 2: Prosper – Element 1, Strategy 3; and
      2. Goal 3: Connect – Element 1, Strategies 1 and 3; and
    2. (b)
      in the Strategic framework in City Plan:
      1. specific outcome SO5 and land use strategy L5.1 in Table 3.3.3.1, which relates to Theme 1, Element 1.2 – Brisbane’s industrial economy;
      2. the strategic outcome in s 3.6.1 4., which relates to Theme 4: Brisbane’s highly effective transport and infrastructure;
      3. specific outcomes SO1, SO2, SO3, SO11 and SO12 and land use strategies L1.1, L2.1, L3, L11 and L12 in Table 3.6.2.1, which relates to Theme 4, Element 4.1 – Brisbane’s transport infrastructure networks; and
      4. specific outcome SO1 and land use strategy L1.2 in Table 3.7.3.1, which relates to Theme 5, Element 5.2 – Brisbane’s Major Industry Areas; and
    3. (c)
      the overall outcomes in ss 8.2.18.2 2.a. and f., performance outcomes PO1, PO2, PO3 and PO3A, and acceptable outcomes AO2.1 and AO2.2 of the Road hierarchy overlay code.
  2. [207]
    ACC and Wilmar say that those core provisions should be understood by reference to the context identified in:
    1. (a)
      in the Strategic framework in City Plan:
      1. the strategic outcomes in ss 3.3.1 1.f and 3.7.1 1.c.vi.B.;
      2. specific outcomes SO4 and SO15 and land use strategies L4, L15.1 and L15.2 in Table 3.6.2.1;
    2. (b)
      the overall outcome in s 8.2.18.2 2.c. of the Road hierarchy overlay code; and
    3. (c)
      the overall outcomes in ss 9.4.11.2 2.a., c., e., g. and l., performance outcomes PO1, PO3 and PO9 and acceptable outcomes AO1, AO3.1 and AO9.2 of the Transport, access, parking and servicing code.
  3. [208]
    The relevant assessment benchmarks for Chapter 3, Part A, Goal 2: Prosper state:

Element 1: High-performing outward-focused economy

SEQ responds to the transitioning economy by focusing on export-oriented and business-to-business transactions that drive productivity and growth, while continuing to enhance population serving activities that support growing communities.

Strategies

  1. 3Protect and enhance major national and international gateways for SEQ, including the Port of Brisbane, its airports, high-speed digital technology and the strategic road, freight and passenger transport systems.

  1. [209]
    ACC and Wilmar also rely on two strategies that relate to the “Connect” goal.  That goal is described in the South East Queensland Regional Plan as:

“SEQ is a region of more complete and interconnected communities supported by a multimodal and integrated regional transport system.  This system is frequent and reliable, and prioritises public and active transport for people, and freight networks for goods.

Infrastructure networks and services enable efficient and sustainable development, economic growth and social benefits throughout the region.”

  1. [210]
    The relevant assessment benchmarks for Chapter 3, Part A, Goal 3: Connect state:

Element 1: An efficient movement system

People and freight move efficiently around the region, maximising community and economic benefits.

Strategies

  1. 1Maximise the safe and efficient transport infrastructure to support the desired regional settlement pattern and major economic areas.

  1. 3Prioritise efficient and reliable freight movement on key corridors to minimise conflict with other transport and land uses (Map 4b).

  1. [211]
    ACC and Wilmar also rely on Theme 1: Brisbane’s globally competitive economy.  The strategic outcomes in s 3.3.1 1.f seeks:

“Brisbane’s highly effective infrastructure including airports and seaports, freight and advanced communications infrastructure fosters the efficient operation of the city’s economic activity including the Major Industry Areas, Strategic Inner City Industrial Areas, Major centres, Special centres and other economic areas.”

  1. [212]
    In support of that strategic outcome, the Strategic framework outlines the following specific outcome and land use strategy in relation to Brisbane’s industrial economy:

3.3.3 Element 1.2 – Brisbane’s industrial economy

Table 3.3.3.1—Specific outcomes and land use strategies

Specific outcomes

Land use strategies

SO5
Brisbane’s industrial areas have a high degree of connectivity which is protected and enhanced.

L5.1

Development optimises the use and efficiency of freight routes and they are protected from encroachment by sensitive land uses.

  1. [213]
    Theme 4 relates more specifically to transport and infrastructure.  Section 3.6.1 4. explains that the strategic outcomes for Brisbane’s highly effective transport and infrastructure have been aligned to the themes of Brisbane’s globally competitive economy, Brisbane’s outstanding lifestyle and Brisbane’s clean and green leading environmental performance.  Wilmar relies on the strategic outcome that relates to Brisbane’s globally competitive economy,[175] which states:

“Transport networks provide efficient and reliable travel options for:

  1. a.
    workers to access jobs;
  2. b.
    residents and visitors to access services;
  3. c.
    business and industry to operate effectively and productively.

Freight moves easily between industrial areas, major interstate routes and the seaport and airport.”

  1. [214]
    This strategic outcome is supported by specific outcomes SO1, SO2, SO3, SO11 and SO12 and land use strategies L1.1, L2.1, L3, L11 and L12 in Table 3.6.2.1.  They state:

3.6.2 Element 4.1 – Brisbane’s transport infrastructure network

Table 3.6.2.1—Specific outcomes and land use strategies

Specific outcomes

Land use strategies

Road network

SO1

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

L1.1

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

SO2

Brisbane’s road network is protected and enhanced.

L2.1

Development protects and enhances the existing and future road corridors, as identified in the Road hierarchy overlay.

SO3

Brisbane’s road network has improved connectivity and enhanced network design.

L3
Development provides roads or upgrades to:

  1. a.
    improve connectivity to, and support efficient growth in centres, Growth Nodes on Selected Transport Corridors and other infill in established suburbs;
  2. b.
    provide connections in Future Suburban Living Areas;
  3. c.
    provide adequate connections to the Major Industry Areas.

SO4

Brisbane’s road network supports the city’s network of centres and Major Industry Areas.

L4

Road network functions do not compromise the viability of centres and Major Industry Areas.

Freight network

SO11

Brisbane’s freight network ensures the efficient movement of freight to Major Industry Areas.

L11

Development protects and enhances the primary freight route that supports the Major Industry Areas, including Brisbane Airport and Port of Brisbane, as identified in the Road Hierarchy overlay.

SO12

Brisbane’s freight routes are protected in terms of their role and efficiency.

L12

Development supports the safety and efficiency of the primary freight routes and the primary freight access.

SO15

Brisbane business efficiency and urban amenity is enhanced by reducing the number and length of road freight movements.

L15.1

Industrial land is allocated in concentrated rather than dispersed locations to support the co-location of suitable industries and enable ready access to the Australia TradeCoast and airport and seaports at Brisbane Airport and Port of Brisbane.

L15.2

Land is zoned to enable industries intending to export long distances to locate close to or along major freight routes and intermodal terminals.

  1. [215]
    It is clear from these provisions that the protection of freight routes is an important planning policy. 
  1. [216]
    Wilmar also relies on specific outcome SO1 and land use strategy L1.2 in Table 3.7.3.1.  It states:

3.7.3 Element 5.2 – Brisbane’s Major Industry Areas

Table 3.7.3.1—Specific outcomes and land use strategies

Specific outcomes

Land use strategies

Australia Trade Coast

SO1

The Australia TradeCoast is serviced by improved road and freight transport networks which are supported by development.

L1.2

Development supports improved connections between the Australia TradeCoast and the south-west industrial gateway to facilitate movement of freight and workers.

  1. [217]
    Those provisions are related to the strategic outcome in s 3.7.1 1.c.vi.B., which states:

“Brisbane’s Major Industry Areas are significant employment generators for the city and Queensland which:

vi. are serviced by major transport infrastructure which provides for:

B. efficient freight, air and sea transport within the city and to key freight access points and routes to and from the city.”

  1. [218]
    Neither Wilmar nor ACC, nor the experts, identify the basis for their assumption that City Plan treats the subject land and its surrounds on the southern side of the Brisbane River as part of the Australia TradeCoast.  It is undoubtedly the case under the South East Queensland Regional Plan.  I am not persuaded the same is true under City Plan.  When one reads the whole of City Plan, it seems that, in City Plan, reference to the Australia TradeCoast relates only to that area on the northern side of the Brisbane River.  In any event, it is unnecessary to finally determine this issue as Wilmar only relies on the above provisions to support its general contention that the proposed development does nothing to protect the connectivity of the industrial area, the road network, or Brisbane’s freight routes.  Wilmar contends that the proposed development will have a detrimental impact on the roundabout at the intersection of Junction, Lytton, and Colmslie Roads.
  2. [219]
    As I have mentioned above, ACC and Wilmar allege non-compliance with provisions in the Road hierarchy overlay code.  The provisions they rely on state:

“2. The purpose of the code will be achieved through the following overall outcomes:

a. Development contributes to the safe and efficient operation of the existing and planned road hierarchy and to the function of the road as part of Brisbane’s public domain.

c. Development that changes the function of a road by generating traffic does so such that the new function of the road in the hierarchy is compatible with the surrounding road hierarchy and where necessary is reconstructed to meet its new design parameters.

f. Development ensures that land uses are located to support and implement a safe and efficient road hierarchy facilitating the efficient movement of people and goods.

8.2.18.3 Performance outcomes and acceptable outcomes

Table 8.2.18.3—Performance outcomes and acceptable outcomes

Performance outcomes

Acceptable outcomes

PO1

Development ensures that:

  1. a.
    vehicle access is provided to each premises which has no significant impact on the safety, efficiency, function, convenience of use or capacity of:
  1. i.
    the road hierarchy shown on the Road hierarchy overlay map;
  2. ii.
    public transport operations;
  3. iii.
    pedestrian and cyclist movement;
  1. b.
    the safety and efficiency of primary freight routes are protected and enhanced, supporting major industry areas;
  2. c.
    site access driveways in the road area accommodate all turns only when such arrangements are safe and can be demonstrated to not inhibit transport system operation.

AO1.1

Development ensures that an access driveway is provided from:

  1. a.
    a minor road;
  2. b.
    a district road or suburban road if the development has high traffic-generating potential.

AO1.2

Development ensures that an access driveway is not provided to or from a primary freight route identified on the Road hierarchy overlay map.

AO1.3

Development ensures that a use other than a use with high traffic-generating potential gains all vehicular access, other than for service vehicles, via the lowest order road in the road hierarchy to which the site has frontage.

AO1.4

Development ensures that a turn to and from a major road is restricted to a left turn only.

AO1.5

Development ensures that vehicle access is provided to an abutting site that only has frontage to an arterial road, to facilitate access to the abutting site via an alternative street.

PO2

Development does not compromise the safety, efficiency and function of the road hierarchy and addresses all the impacts to the road network.

AO2.1

Development ensures that the traffic generated by the development is consistent with the road hierarchy classification, function and expected traffic flows for the area.

AO2.2

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

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

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

PO3
Development makes provision for the extension, expansion and widening of the existing and future road network where required.

AO3
No acceptable outcome is prescribed.

PO3A
Development provides for the payment of extra trunk infrastructure costs for the following:

  1. a.
    for development completely or partly outside the priority infrastructure area in the Local government infrastructure plan;
  2. b.
    for development completely inside the Local government infrastructure plan involving:
  1. i.
    trunk infrastructure that is to be provided earlier than planned in the Local government infrastructure plan;
  2. ii.
    long term infrastructure for the road network which is made necessary by development that is not assumed future urban development;
  3. iii.
    other infrastructure for the road network associated with a development that is not assumed future urban development which is made necessary by the development.

AO3A
No acceptable outcome is prescribed.

  1. [220]
    ACC and Wilmar say that the core provisions that they rely on should be construed in the context of, amongst other provisions, the overall outcomes in ss 9.4.11.2 2.a., c., e., g. and l., performance outcomes PO1, PO3 and PO9 and acceptable outcomes AO1, AO3.1 and AO9.2 of the Transport, access, parking and servicing code.  Those provisions state:

“2. The purpose of the code will be achieved through the following overall outcomes:

a. Development provides for access, circulation, parking and vehicle-based services for all relevant transport modes, including walking, cycling and public transport relevant to the nature of the proposed development and its location in relation to the transport network and surrounding existing and future land uses.

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

e. Development provides site access arrangements to ensure that any adverse impacts on other development, the transport network and those who use it, are minimised to maintain amenity of the area and the safety and efficiency of the transport system.

g. Development maximises safety in the use of the transport network, particularly for the most vulnerable users (children, pedestrians, persons with disabilities and cyclists) so that all transport modes are safe and convenient.

l. Development accommodates future road upgrades and widenings ensuring the ongoing capacity, efficiency and safety of the transport network.

9.4.11.3 Performance outcomes and acceptable outcomes

Table 9.4.11.3—Performance outcomes and acceptable outcomes

Performance outcomes

Acceptable outcomes

PO1

Development is designed:

  1. a.
    to include a technically competent and accurate response to the transport and traffic elements of the development;
  2. b.
    in accordance with the standards in the Transport, access, parking and servicing planning scheme policy;
  3. c.
    to ensure the efficient operation and safety of the development and its surrounds.

AO1

Development complies with the standards in the Transport, access, parking and servicing planning scheme policy.

PO3

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

AO3.1

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

AO3.2

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

PO9

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

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

AO9.2

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

  1. [221]
    As with the other context provisions raised by ACC and Wilmar, neither ACC nor Wilmar provided any assistance about their relevance.  Despite alleging that these provisions provide important context and insisting that the Court consider them as part of the real issues in dispute, neither ACC nor Wilmar mention the context provisions at all.  This cavalier attitude of parties to the identification of the provisions to which the Court must have regard is disappointing.[176] 
  2. [222]
    The many provisions raised by ACC and Wilmar contain strong language.  Many of the outcomes pertain to safety and efficiency, which are important themes, particularly in the context of primary freight routes.  The provisions also contemplate that development will address its impacts on the road network, including by any necessary upgrades, or the payment of extra trunk infrastructure costs.  That said, the provisions should be construed in a way that is practical, recognising that City Plan contemplates that development will occur.
  3. [223]
    In Jedfire Pty Ltd v Council of the City of Logan & Anor,[177] His Honour Senior Judge Skoien said (in an oft-cited passage):

Traffic

Section 4.4(3) of the Local Government (Planning and Environment) Act 1990 states:

‘In considering an application to amend a planning scheme … a Local Authority is to assess each of the following matters to the extent they are relevant to the application:

  1. (a)
    whether the proposal, if approved….could –
  1. (i)
    create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network.’

The raw words of the section have to be taken with a grain of salt. Any rezoning for a proposed development might be said in some degree to create or increase a traffic problem and to affect detrimentally the efficiency of the roads if it creates any extra traffic, which is what almost all developments will do. One must inject a qualifying adverb such as “unreasonably” or “intolerably” into the section. Traffic in modern urban settings is not assessed in Utopian terms. In Utopia all cars, driven only by skilful, courteous drivers, would carry the maximum number of passengers at reasonable speeds on roads perfectly designed for safe swift travel. But the legislature must be taken not to have been acting with Utopia in mind. So in this case I consider that what I have to do is to decide whether the proposal is for a reasonable or tolerable traffic arrangement in the context of modern urban motor vehicle movement.[178]

  1. [224]
    Even though ACC and Wilmar have put many assessment benchmarks in issue, their contentions with respect to traffic can be distilled into the following questions:
  1. 1.Will the proposed development have an unacceptable impact on the roundabout at the intersection of Colmslie, Lytton and Junction Roads?
  2. 2.Will the proposed development create a traffic safety issue?

Will the proposed development have an unacceptable impact on the roundabout at the intersection of Colmslie, Lytton and Junction Roads?

  1. [225]
    As I have already mentioned, the subject land is adjacent the roundabout intersection of Colmslie, Lytton and Junction Roads.  The subject land has road frontages to Lytton Road and Colmslie Road.  It has an all-movements ingress from Lytton Road and left out egress to Lytton Road, and an all-movements access to Colmslie Road. 
  2. [226]
    Under City Plan, Lytton Road is designated a suburban road (major road).  Colmslie Road is designated as a neighbourhood road (minor road).  Both Lytton Road and Colmslie Road are mapped as primary freight access roads on City Plan’s Road hierarchy overlay map.[179]
  3. [227]
    There is no dispute between the parties that the roundabout intersection of Colmslie, Lytton and Junction Roads is already busy.  They disagree about whether the impact of the proposed development on the intersection is so unacceptable as to warrant its refusal.  To assist me with the determination of that issue, each of the parties presented expert evidence from a traffic engineer. 
  4. [228]
    The traffic engineers agree that the morning, afternoon, and late afternoon peak hour periods at the roundabout are those between 7.15 am and 8.15 am, 2.45 pm and 3.45 pm, and 4.30 pm and 5.30 pm. 
  5. [229]
    The period between 2.45 pm and 3.45 pm is the on-road peak on the Colmslie Road approach to the roundabout.[180]  The traffic engineers agree that the proposed development would generate little traffic at that time.  As such, the impacts on the road network during that time are not significant.[181]
  6. [230]
    Mr Trevilyan, the traffic engineer retained by Rivermakers, estimates that the proposed development, if conditioned to limit the number of patrons to 300, would generate 96 trips in the morning peak period and 259 trips in the evening peak period.[182]  None of the other traffic engineers took issue with this estimate.  There is also no dispute between the traffic engineers that this volume of traffic represents only a small increase to the volume of traffic that traverses the roundabout.  It is less than a five per cent increase in the overall traffic at the roundabout in the morning peak.  In the late afternoon peak, the traffic at the roundabout would be increased by approximately 194 vehicles per hour when the total volume of traffic is in the order of approximately 3,400 vehicles.  As such, the proposed development would cause an increase of approximately 5.7 per cent of the total traffic. 
  7. [231]
    Mr Trevilyan and Mr Pekol, the traffic engineer retained by the Council, opine that the increase in traffic on the roundabout that would be occasioned by the proposed development is not such as to warrant refusal of the proposed development. 
  8. [232]
    Mr Rogers, the traffic engineer retained by Wilmar, disagrees.  He opines that the key issue for the proposed development is that it will introduce non-industrial traffic into an already busy intersection that carries high volumes of large trucks.  He says it will do so in circumstances where there are significant delays and queueing in peak periods.  Mr Hollyoak, the traffic engineer retained by ACC, agrees with Mr Rogers.
  9. [233]
    The opinions expressed by each of Mr Rogers and Mr Hollyoak are premised on the outputs from SIDRA modelling.  SIDRA is software that is used to analyse intersection and network capacity, and the level of service and performance of intersections.  Mr Rogers and Mr Hollyoak used the software to assess the impact of the proposed development during the morning and later afternoon peak periods. 
  10. [234]
    Mr Trevilyan and Mr Pekol each have concerns about the veracity of the SIDRA modelling undertaken by Mr Rogers and Mr Hollyoak.  Mr Pekol first identified a concern about use of the SIDRA model in the Joint Expert Report of the Traffic Engineers.[183]
  11. [235]
    In his oral evidence, Mr Hollyoak explained that SIDRA modelling software is used universally in the traffic and transport profession to look at intersections.  It predicts the impact that a change to traffic arrangements will have on the performance of the intersection.[184] 
  12. [236]
    I accept that the SIDRA modelling software is a tool used to standardise the way intersections are analysed and reported, and that it is a tool that is regularly utilised in the traffic and transport profession.  However, it must be borne in mind that, as with most models, it has its limits.  The purpose of using software such as SIDRA is to produce reported results that are impartial and reliable.  The accuracy or reliability of the results the model produces is dependent on the reliability of the inputs, and the accuracy of its calibration to the situation on the ground.  Whether a model is accurately calibrated and can produce reliable results is a matter that calls for the judgment of an experienced traffic engineer.  The availability of modelling software such as SIDRA does not abrogate an expert’s obligation to exercise their professional judgment in the evidence they present to a court.  The software is a tool that may be used, if it produces reliable outputs: it is not a tool that must be used. 
  13. [237]
    In his examination-in-chief, Mr Hollyoak explained the efforts made to calibrate the model in this case.  He said:

“… The model was actually calibrated.  Calibration is to make sure that the – the model that you’ve got on your computer replicates the actual operation of the model on the ground, and the way in which you calibrate that, generally, is against queue lengths.  So you basically record queue lengths when you’re doing the traffic surveys, and then when you put your model together, you see if your model has got the same queue lengths as the – as were recorded on the ground.  If they aren’t, you can adjust various environmental factors to make it look more like what happened on the ground.  Once you’ve got a calibrated model, that – that is actually the key to it, is having a calibrated model before you actually perform any modelling.  I actually calibrated the model myself, but during the process of the joint reporting, Mr Rogers also calibrated his model, and the two calibrations were very similar, but what I didn’t want to do for a hearing is have two different models running, so I basically accepted Mr Rogers’ model, and I moved forward for the modelling of the development traffic with that calibrated model.  And during the joint expert report process, Mr Rogers did produce a memo which explained how he calibrated the model, which was issued to everybody in the joint report process.  It included a comparison of the modelled queue lengths against the recorded queue lengths, and on that basis, certainly me and Mr Rogers were satisfied that the model was satisfactorily calibrated, and, as far as I’m aware, there was no discussion in the joint report to suggest otherwise.”[185]

  1. [238]
    The model used by Mr Rogers was provided to Mr Pekol, who interrogated it.  In short, Mr Pekol pointed to two matters that indicate to him that the reliability of the SIDRA model is questionable. 
  2. [239]
    The first matter was the way calibration to the Colmslie Road approach queue was achieved.  Mr Pekol’s interrogation revealed that, to calibrate the model, the environmental factor for certain movements had been modified from the default model value of 1.0 to figures as high as 1.6 on the Colmslie Road approach.  In his oral evidence, Mr Pekol explained that the environmental factor is used to simulate the average size of a gap that a person might wait for before they enter the roundabout.  If the factor is above 1, then the gap is increased above the default value, and if the factor is less than 1, the gap is decreased.  Consequently, a higher factor would create a longer delay.  According to Mr Pekol, he has not seen a value as high as 1.6 used previously.[186] 
  3. [240]
    Mr Pekol further explained that there is almost a direct correlation between degree of saturation, queue length and delay.  As such, adjusting the environmental factor to a significant degree, as was done by the other traffic engineers in this case, affects the reliability of the results that flow from the model.[187]
  4. [241]
    During cross-examination, Mr Rogers confirmed that he used an unusually high environmental factor value of 1.6 to calibrate the model.  He acknowledged that he had not adopted such a high value when calibrating a SIDRA model previously.  He explained that it was necessary to adopt such a high value because of the unusualness of the roundabout.[188]  This evidence contradicts that of Mr Hollyoak, who said:

“there is nothing that is unusual in this roundabout which would make it difficult, such as slip lanes, which can easily be modelled, but it’s a very straightforward and simple roundabout.”[189]

  1. [242]
    The second matter raised by Mr Pekol relates to survey data obtained by Mr Pekol on 15 June 2021.  The data reinforces his concerns about the veracity of the SIDRA model and its outputs.  The data reveals a discrepancy between the 137 seconds delay in the morning peak predicted by the model and the average 33 seconds delay observed on 15 June 2021.[190]
  2. [243]
    I accept the evidence of Mr Pekol about the reliability of the model.  He provided a cogent explanation about the operation of the SIDRA model and its calibration.  His evidence satisfies me that it is appropriate to be cautious about the reliability of the results of the SIDRA model in this case. 
  3. [244]
    Mr Pekol’s evidence also persuades me that I should approach the opinions expressed by Mr Rogers and Mr Hollyoak with caution.  I am satisfied that the reported impact on the roundabout is likely not as high as what Mr Rogers and Mr Hollyoak opine. 
  4. [245]
    Returning then to whether the proposed development will have an unacceptable impact on the roundabout.  It is relevant that the issue of impact is considered in the appropriate context.  Here, like many other major roundabouts and intersections in Brisbane,[191] the roundabout at the intersection of Colmslie, Lytton, and Junction Roads presently does not operate at a desired level of service.  In those circumstances, adding any traffic to the roundabout, including industrial traffic, will have an impact on it.
  5. [246]
    In relation to the appropriateness of the impact, in his individual statement, Mr Pekol opines:
    1. (a)
      the peak hours for Wilmar’s and ACC’s facilities do not coincide with the peak traffic generating period for the proposed development;
    2. (b)
      during the more critical morning peak hour, the traffic generated by the facilities operated by Wilmar and ACC equates to 40 per cent and 5 per cent respectively of their busiest hour;
    3. (c)
      the traffic generated by the proposed development will not materially affect freight movements from the facilities operated by Wilmar and ACC;
    4. (d)
      the proposed development is compatible with the surrounding industrial uses, given the non-coincidence of the respective peak periods of traffic generation;
    5. (e)
      the impact of the proposed development on the traffic operations at the roundabout at the intersection of Colmslie, Lytton, and Junction Roads is insignificant in that, absent the development, there will still be heavy demands on the intersection; and
    6. (f)
      the proposed development is likely to increase average truck travel times to, from, and through Wilmar’s facility by less than one per cent.[192]
  6. [247]
    Mr Pekol’s opinions were supported by cogent explanations.[193]  His evidence is also supported by the evidence of Mr Trevilyan.  I accept Mr Pekol’s evidence.  It satisfies me that the proposed development will have a contextually acceptable impact on the roundabout.

Will the proposed development create a traffic safety issue?

  1. [248]
    Wilmar alleges that the introduction of the additional traffic from the proposed development leads to road safety concerns.  It identifies the alleged traffic safety issue by reference to the evidence of Mr Hollyoak as follows:

“… when intersections are at capacity, driver choices become poorer and there is potential for bad decisions to be made and for more crashes to occur. This concern relates not only to the Lytton Road roundabout intersection but also with the intersection of Colmslie Road with the Depot access at which the Colmslie Road queue will extend across the access, making it difficult for vehicles to leave it.”[194]

  1. [249]
    Mr Rogers agrees with Mr Hollyoak.  In the Joint Expert Report of Traffic Engineers, Mr Rogers says:

“In addition to the above impact in the operational performance of the roundabout, TR agrees with KH, that there is also a road safety concern as set out below:

  • Exacerbate the safety of right turns out of The Depot site onto Colmslie Road. Due to the queuing on Colmslie Road, vehicles were observed to only be able to turn right during peak periods by either being let in by queued vehicles or forcing their way into the queue;
  • The increase in delays for exiting Colmslie Road into the roundabout is likely to result in drivers becoming frustrated and accepting shorter gaps. This can lead to increased probability of a crash; and
  • Colmslie Road carries a high proportion of trucks (to QBT and ACC). This is likely to increase as the business park accessed from Dunhill Crescent is occupied. Thus the proposed gym would introduce additional traffic onto a heavy vehicle route which already has safety and capacity issues.”[195]
  1. [250]
    The opinions of Mr Hollyoak and Mr Rogers on this traffic issue were also premised on their assumption that the SIDRA modelling is accurate.  For reasons already explained, I do not accept that assumption. 
  2. [251]
    Mr Pekol accepts that, from time to time, there would be a queue of vehicles on Colmslie Road, and that the occasions where that would occur would be more frequent in the post-approval scenario than they are in the current scenario.  In that scenario, Mr Pekol says that a vehicle turning right out of the subject land either would have to wait until they could join the end of the queue or until they were let in by someone already in the queue.  He acknowledges that is not an arrangement that you would seek to attain in an ideal world.  However, Mr Pekol does not consider the situation to be inherently unsafe because it is a very low speed environment.  He explains that a vehicle turning right out of the subject land would be travelling at a low speed and the vehicles queued in Colmslie Road would be stationary.  The vehicles travelling northbound along Colmslie Road would have just exited the roundabout and would have ample opportunity to see the vehicle that was turning right in front of them.  In Mr Pekol’s opinion, the geometry and topography of Colmslie Road at that location provides ample sight distance for vehicles.[196]
  3. [252]
    I prefer the evidence of Mr Pekol on this issue.  His approach was a balanced one that gave appropriate regard to what might be considered reasonable or tolerable traffic arrangements in the context of modern urban motor vehicle movement.  It satisfies me that there is no traffic safety issue that warrants refusal of the proposed development.

Conclusion regarding compliance with the assessment benchmarks regarding traffic

  1. [253]
    My findings above inform my assessment of the proposed development against the assessment benchmarks identified with respect to traffic.
  2. [254]
    For the reasons provided above, I am satisfied that:
    1. (a)
      the proposed development would not unacceptably affect major national and international gateways for South East Queensland, including the Port of Brisbane, its airports, high-speed digital technology and the strategic road, freight and passenger transport systems;[197]
    2. (b)
      the proposed development would, to an appropriate degree, enable the maximisation of the safe and efficient use of existing transport infrastructure to support the desired regional settlement pattern and major economic areas;[198] and
    3. (c)
      the proposed development would not compromise the prioritisation of efficient and reliable freight movement on key corridors to minimise conflicts with other transport and land uses.[199] 
  3. [255]
    The proposed development would not unacceptably affect the high degree of connectivity to be enjoyed by Brisbane’s industrial areas.[200]
  4. [256]
    As the proposed development does not involve a sensitive land use and the traffic generated by the proposed development will have no material adverse impact on freight movements from the facilities operated by Wilmar and ACC (or other industrial uses in the area), it complies with the following provisions of the Strategic framework:
    1. (a)
      Theme 1, strategic outcome 3.3.1 1.f;
    2. (b)
      Theme 1, Element 1.2, land use strategy L5.1;
    3. (c)
      Theme 4, strategic outcome 3.6.1 4.;
    4. (d)
      Theme 4, Element 4.1, specific outcomes SO11 and SO12 and land use strategies L11 and L12; and
    5. (e)
      Theme 5, strategic outcome 3.7.1 1.c.vi.B.; and
    6. (f)
      Theme 5, Element 5.2, specific outcome SO1 and land use strategy L1.2 (assuming it is relevant).
  5. [257]
    Given that the proposed development would not result in unacceptable impact on the road network or the road hierarchy or result in an adverse effect on the safe and efficient operation of the development and its surrounds, the proposed development complies with:
    1. (a)
      Theme 4, Element 4.1, specific outcomes SO1, SO2, SO3, and SO4, and land use strategies L1.1, L2.1, and L4;
    2. (b)
      the overall outcomes in ss 8.2.18.2 2.a., c. and f., and performance outcomes PO1 and PO2 of the Road hierarchy overlay code; and
    3. (c)
      the overall outcomes in ss 9.4.11.2 2.a., c., e., and g., and performance outcomes PO1, PO3 and PO9 of the Transport, access, parking and servicing code.
  1. [258]
    Theme 4, Element 4.1, land use strategy L3 of the Strategic framework does not appear to be applicable as the proposed development involves the use of an existing building.  In any event, the proposed development does not impact on the adequacy of the connections to the Major industry areas.  Specific outcomes SO15 and land use strategies L15.1 and L15.2 in Table 3.6.2.1 have no evident applicability as assessment benchmarks for the proposed development.
  1. [259]
    The proposed development does not trigger any requirement for the extension, expansion and widening of the road network and, as such, performance outcome PO3 of the Road hierarchy overlay code and the overall outcome in s 9.4.11.2 2.l. of the Transport, access, parking and servicing code are of no moment in this case.
  2. [260]
    As for performance outcome PO3A(b) of the Road hierarchy overlay code, the levying of infrastructure charges is not part of the assessment process.  It is a separate issue to be dealt with by the Council under the infrastructure charging regime in the Planning Act 2016.  Further, and in any event, as the proposed development is for a temporary use, the absence of provision for payment of extra trunk infrastructure costs is not a matter that is so material that it would warrant refusal of the proposed development.

Will the proposed development provide adequate car parking?

  1. [261]
    In their documents identifying issues in dispute, ACC and Wilmar allege that the proposed development does not provide adequate car parking.[201] 
  1. [262]
    With respect to the car parking issue, ACC and Wilmar rely on the overall outcomes in ss 9.4.11.2 2.a. and j., and performance outcomes PO1, PO13 and PO14 and acceptable outcomes AO1, AO13 and AO14.1 of the Transport, access, parking and servicing code.  Those provisions state:

“2. The purpose of the code will be achieved through the following overall outcomes:

a. Development provides for access, circulation, parking and vehicle-based services for all relevant transport modes, including walking, cycling and public transport relevant to the nature of the proposed development and its location in relation to the transport network and surrounding existing and future land uses.

j. Development provides for on-site parking and manoeuvring areas for cars, motorcycles, bicycles and service vehicles which:

i. are safe and convenient to use;

ii. if outside the City core and the City frame identified in Figure a are adequate to meet the design peak-parking demands without significant overflow to adjacent premises or the generation of excessive on-street car parking demand, taking into account the requirements of other road users.

9.4.11.3 Performance outcomes and acceptable outcomes

Table 9.4.11.3—Performance outcomes and acceptable outcomes

Performance outcomes

Acceptable outcomes

PO1

Development is designed:

  1. a.
    to include a technically competent and accurate response to the transport and traffic elements of the development;
  2. b.
    in accordance with the standards in the Transport, access, parking and servicing planning scheme policy;
  3. c.
    to ensure the efficient operation and safety of the development and its surrounds.

AO1

Development complies with the standards in the Transport, access, parking and servicing planning scheme policy.

PO13

Development outside of the City core and the City frame identified in Figure a provides on-site car parking spaces to accommodate the design peak parking demands without any overflow of car parking to an adjacent premises or adjacent street.

AO13

Development outside of the City core and the City frame identified in Figure a:

  1. a.
    provides on-site car parking spaces in compliance with the standards in the Transport, access, parking and servicing planning scheme policy; or
  2. b.
    for accepted development subject to compliance with identified requirements, does not result in on-street car parking if no parking standard is identified in the Transport, access, parking and servicing planning scheme policy.

PO14

Development ensures that the number of car parking spaces and design of the car parking area:

  1. a.
    meet the combined design peak parking demand for residential, visitor and business parking;
  2. b.
    allow for the temporal sharing of car-parking spaces for uses with different peak parking demands.

AO14.1

Development provides a number of car parking spaces on site equalling the sum of the maximum design peak parking demand of the individual uses at any point in time.

  1. [263]
    Wilmar does not appear to maintain inadequate car parking as an issue justifying refusal of the proposed development.  Its written submissions do not address the issue.  The issue is maintained by ACC.
  2. [264]
    The adequacy of car parking was addressed by the traffic engineers.  In the Joint Expert Report of the Traffic Engineers, Mr Trevilyan provided an assessment of car parking demand.  His assessment assumed that the number of gymnasium patrons would be capped to a maximum of 300 at any one time.  The assessment also utilised check-in time data and staff shift times of three other gymnasiums operated by TotalFusion to estimate the car parking demand.[202]  Mr Trevilyan considers that a minimum of 266 car parking spaces would be available on the subject land for use by the proposed development.  On his analysis, the peak car parking demand for the proposed development is 260 car parking spaces.  Accordingly, Mr Trevilyan opines that the existing car parking supply is sufficient.[203]
  3. [265]
    Mr Pekol opines that the assessment by Mr Trevilyan is conservative.  Having regard to that analysis and his own independent analysis, Mr Pekol is satisfied that the car parking supply is adequate to meet the demands of the proposed development.[204]
  4. [266]
    Mr Rogers and Mr Hollyoak agree with Mr Trevilyan and Mr Pekol that there are sufficient car parks to meet the demands of the proposed development.  In the Joint Expert Report of the Traffic Engineers, Mr Rogers and Mr Hollyoak confirm that their opinions are premised on their own independent analysis.  They say that the concluded results of their own independent analysis aligns with the results produced by Mr Trevilyan.[205] 
  5. [267]
    Despite the agreement of the experts about this issue, ACC maintains that there are difficulties associated with the adequacy of the car parks.  It submits:
  1. “120.First, although Rivermakers does propose a condition limiting the maximum number of patrons in the gym at any time to be 300, no evidence is being presented as to how that will be managed. Both aspects lie outside the expertise of the traffic engineers, and the absence of a sound grounding of the assumptions made by the experts means that the opinions that they have formed are open to rejection by this Court.
  2. 121.Secondly, Rivermakers has not proposed a condition that the proposed development would operate in a similar fashion to the other Total Fusion gyms.
  3. 122. Thirdly, conditions of this character are, in any event, fraught with difficulty. The difficulties of enforcing or supervising continuing conditions (ie conditions which apply day-by-day whilst a particular development continues to be used for the approved purpose) were identified decades ago.
  4. 123.In view of these difficulties, the agreement of the experts about car parking is not decisive of the issue.”
  1. [268]
    ACC maintains this is an issue that warrants refusal of the proposed development.  I disagree.
  2. [269]
    Although Mr Trevilyan’s assessment was premised on assumptions informed by the operation of other TotalFusion gymnasiums, the results were cross-checked by the other traffic engineers based on their own independent analyses of likely peak car parking demands associated with the proposed uses.  The other experts concluded that similar or slightly lower peak demands were likely.[206]  Accordingly, I am satisfied that there is adequate car parking to meet the demands of the proposed development regardless of whether it operates in a similar manner to other TotalFusion gymnasiums.
  3. [270]
    Further, as is noted in paragraph [19] above, Rivermakers has indicated that it would accept a condition that limits the maximum number of patrons in the gymnasium at any one time to 300 people.  I am satisfied that such a condition can be readily implemented and monitored.  For example, it could be implemented by a check-in and check-out system, or via an online booking system.  As was noted by Mr Buckley, the community has become familiar with such processes given recent State government restrictions imposed on attendance at venues because of COVID-19.[207]
  4. [271]
    I am satisfied that the proposed development complies with the overall outcomes in ss 9.4.11.2 2.a. and j., and performance outcomes PO1, PO13 and PO14 of the Transport, access, parking and servicing code.  The adequacy of car parking is not an issue that warrants refusal of the proposed development.

What weight should be afforded to the Temporary Local Planning Instrument?

  1. [272]
    On 29 June 2021, the Minister for State Development, Infrastructure, Local Government and Planning notified his decision to make the Temporary Local Planning Instrument.[208]  It took effect that same day and continues for a period of two years unless repealed sooner. 
  2. [273]
    The Temporary Local Planning Instrument applies to an area of land described as the Colmslie Road Industry Precinct.  That area includes all land in the Industry zone west of the Gateway Motorway, east of Taylor Street and north of Lytton Road.  It includes the subject land.  Apart from land in the Industry zone, the Colmslie Road Industry Precinct includes land in the Sport and recreation and Open space zones.
  3. [274]
    The Colmslie Road Industry Precinct includes land within the Port-related Regional Economic Cluster and within the Murarrie/Colmslie Major Enterprise and Industrial Area under the South East Queensland Regional Plan.
  4. [275]
    ACC and Wilmar contend that the Temporary Local Planning Instrument should be given weight, and that it tells against approval of the proposed development.  The Council contends that it should be given little weight, and, in any event, it does not warrant refusal of the proposed development.  Rivermakers contends that the Temporary Local Planning Instrument should be given no weight.
  5. [276]
    In support of their respective positions, the parties raise three issues for consideration:
  1. Is a decision to give weight to the Temporary Local Planning Instrument unfair to Rivermakers?
  2. What is the importance of the Temporary Local Planning Instrument?
  3. What is the outcome of an assessment of the proposed development against the Temporary Local Planning Instrument?

Is a decision to give weight to the Temporary Local Planning Instrument unfair to Rivermakers?

  1. [277]
    Although the appeal is by way of hearing anew,[209] the obligation to assess the proposed development against the assessment benchmarks relates to those that were in effect when the development application was properly made.[210]  That legislative position is consistent with the presumption against retrospectivity of laws, which protects against the injustice of a person’s rights being affected by later legislation.  That said, the Court may give the weight that it considers appropriate, in the circumstances, to another statutory instrument that comes into effect after the development application is properly made but before it is decided by the Court.[211] 
  2. [278]
    The Court’s discretion is broad and must be exercised judicially.[212]  The exercise of the discretion may be informed by issues of fairness.[213]
  3. [279]
    The Temporary Local Planning Instrument came into effect on 29 June 2021.  This was about:
    1. (a)
      14 months after the development application was lodged;
    2. (b)
      seven months after the development application was approved by the Council; and
    3. (c)
      six months after the first Notice of Appeal was filed. 
  4. [280]
    It was less than one month before the first day of the hearing of the appeal.
  5. [281]
    Rivermakers’ submits that to take the Temporary Local Planning Instrument into account now would cut across the decisions made by Rivermakers and all those concerned with the proposed development over the last several years.  It says that there is great public interest in development rights being certain at the time private entities make development decisions and decisions about litigation in the Planning and Environment Court. 
  6. [282]
    Rivermakers submits that the unfairness occasioned by giving weight to the Temporary Local Planning Instrument is further evidenced by the fact that:
    1. (a)
      no compensation rights arise from the introduction of the Temporary Local Planning Instrument; and
    2. (b)
      there is no ability to make an application under the earlier planning framework (without the Temporary Local Planning Instrument) after the introduction of the Temporary Local Planning Instrument.
  7. [283]
    ACC submits that no issue of fairness or prejudice arises as the subject land can still be developed in accordance with the approval for industry uses.
  8. [284]
    I do not accept that the matter to which ACC refers demonstrates that no issue of fairness or prejudice arises.  There is considerable force to Rivermakers’ submissions.  The matters it raises tell against giving significant weight to the Temporary Local Planning Instrument.

What is the importance of the Temporary Local Planning Instrument?

  1. [285]
    Against the considerations of fairness to Rivermakers, I must balance the importance of a temporary local planning instrument to the purpose of the Planning Act 2016.  In this respect, it is relevant to appreciate the role of a temporary local planning instrument, and the circumstances giving rise to the promulgation of this Temporary Local Planning Instrument.
  2. [286]
    As is recorded in s 3, the purpose of the Planning Act 2016 is to establish an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning, development assessment and related matters that facilitates the achievement of ecological sustainability. 
  3. [287]
    The system that is intended to facilitate the achievement of ecological sustainability is outlined in s 4 of the Planning Act 2016.  It includes:
    1. (a)
      regional plans setting out integrated planning and development assessment policies about matters of State interest for particular regions of the State;
    2. (b)
      planning schemes setting out integrated State, regional and local planning and development assessment policies for all of a local government area;
    3. (c)
      temporary local planning instruments setting out planning and development assessment policies to protect all or part of a local government area from adverse impacts in urgent or emergent circumstances;
    4. (d)
      a development assessment system, that includes referral to the State Assessment and Referral Agency, for implementing planning instruments and other policies and requirements about development by:
      1. categorising development;
      2. categorising types of assessment for particular development;
      3. stating the processes for making, receiving, assessing and deciding development applications;
      4. establishing rights and responsibilities in relation to development approvals; and
    5. (e)
      Ministerial powers to protect, or give effect to, the State’s interests relating to planning and development assessment.
  4. [288]
    Pursuant to s 23 of the Planning Act 2016, a local government may make a temporary local planning instrument if the local government and Minister decides that:
    1. (a)
      there is significant risk of serious adverse cultural, economic, environmental or social conditions happening in the local government area;
    2. (b)
      the delay involved in using the process in ss 18 to 22 of the Planning Act 2016 to make or amend another local planning instrument would increase the risk; and
    3. (c)
      the making of the temporary local planning instrument would not adversely affect State interests.
  5. [289]
    A Temporary Local Planning Instrument may suspend or otherwise affect the operation of another local planning instrument but does not amend or repeal that instrument.[214]  It also does not create a superseded planning scheme or result in an adverse planning change.[215]  
  6. [290]
    A Temporary Local Planning Instrument prevails to the extent of any inconsistency with a planning scheme.[216]  A regional plan prevails to the extent of any inconsistency with a local planning instrument, including a temporary local planning instrument.[217]
  7. [291]
    As I have already mentioned, the Minister promulgated the Temporary Local Planning Instrument on 29 June 2021.  He did so under s 27 of the Planning Act 2016,[218] which authorised the Minister to take an action, such as promulgating a Temporary Local Planning Instrument, without giving a direction to the Council to take the action and without consulting with any person before taking the action. 
  8. [292]
    The Minister is entitled to promulgate a temporary local planning instrument, rather than directing a local government to take such action, if the Minister considers that:
    1. (a)
      the action should be taken to protect, or given effect to, a State interest; and
    2. (b)
      the action must be taken urgently.[219]
  9. [293]
    Wilmar submits that the fact that that the Minister used his power under s 27 of the Planning Act 2016, rather than directing the Council to take the action under s 26 of the Planning Act 2016, is evidence of the significance of the Temporary Local Planning Instrument.[220]  ACC also urges weight be placed on the fact that the Temporary Local Planning Instrument was made in emergent circumstances.
  10. [294]
    I accept that it is open for me to draw an inference such as that urged by Wilmar.  However, before drawing an inference about the importance to the State of assessing the proposed development against the Temporary Local Planning Instrument, it is also relevant to have regard to the fact that:
    1. (a)
      the Minister, at the invitation of ACC (and Mr Ovenden), had the opportunity to call in the development application but made a positive election not to do so;[221] and
    2. (b)
      the Minister was given notice of the appeals and had a right to join each of these appeals at any time before they were decided,[222] but elected not to exercise the right.
  11. [295]
    Exhibit 12.13 is also of interest.  On its face, it is a letter from the Minister for State Development, Infrastructure, Local Government and Planning to Mr Foote as managing director of ACC dated 25 January 2021.[223]  The letter states:

“Thank you for your letter of 10 November 2020 to the Honourable Cameron Dick MP, Treasurer and former Minister for Planning requesting the exercise of ministerial powers to call in the development application approved by the Brisbane City Council (the council) for an indoor sport and recreation centre on an industry zoned site at 500 Lytton Road and 32 Colmslie Road, Morningside.  As the current Planning Minister, I write to advise that on this occasion, I have decided not to exercise my power to call in the development application.

I note that there are currently two appeals filed in the Planning and Environment Court (P&E Court) against the decision by the council to approve the development application.  I consider that the court is an effective forum for the resolution of these issues and have asked the department to keep me informed as to the outcome of the appeals.  I also note the council’s advice that they only approved this use for a period of two years and did so in consideration of the impact COVID has had on commercial property leasing.

Noting the importance of protecting key industrial land and also industrial land uses from incompatible development, I have decided to give direction to the council, in accordance with section 94 of the Planning Act 2016 (the Planning Act), to provide me with copies of future applications proposing non-industrial activities in industry zoned land in the Australia TradeCoast Regional Economic Cluster.

This will provide me a better understanding of the scale and impact that applications of this type are having on the continued operation of appropriately located industrial development, and significant industrial land in this important area of Brisbane and South East Queensland.

As Planning Minister it is also open to me to take advice on any broader or systemic issues that arise, and also any actions that may be required through monitoring such applications.

The direction notice was published in the government gazette on 25 January 2021, in accordance with section 94(1) of the Planning Act.

I attach a copy of the direction notice and a Map of the Australia Trade Coast Regional Economic Cluster.

If you require any further information regarding this matter, please contact my Chief of Staff …”

  1. [296]
    These matters temper the inference that I would draw about the importance to the Minister (and the State) of assessing the proposed development, as compared to future development applications, having regard to the Temporary Local Planning Instrument.

What is the outcome of an assessment of the proposed development against the Temporary Local Planning Instrument?

  1. [297]
    The overview to the Temporary Local Planning Instrument records that it provides an interim response to protect the Colmslie Road Industry Precinct from encroachment by inappropriate non-industrial uses. 
  2. [298]
    Section 3.1 of the Temporary Local Planning Instrument states that its purpose is to:

“i. Continue to protect the integrity of land in the Industry zone within the CRIP for new and existing industry uses and enable new investment in industry to occur within the CRIP to provide economic benefits to the region and local area.

ii. Ensure incompatible non-industrial uses do not undermine the viability of and continued and future operation of, established and envisaged industrial development.

iii. Protect the effective operation of established and envisaged industrial uses by avoiding encroaching incompatible non-industrial development that may generate reverse amenity impacts.”[224]

  1. [299]
    To achieve that purpose, the Temporary Local Planning Instrument, amongst other things, includes assessment benchmarks for development to which the Temporary Local Planning Instrument applies.[225] 
  2. [300]
    Section 3.3 of the Temporary Local Planning Instrument states that the purpose will be achieved through development that is consistent with the assessment benchmarks contained in the Colmslie Road Industry Precinct Provisions, which are Attachment A to the Temporary Local Planning Instrument.[226]
  3. [301]
    Attachment A to the Temporary Local Planning Instrument includes the following provisions:

1. Compliance with the Colmslie Road Industry Precinct Provisions

1.1 Development that is consistent with the assessment benchmarks complies with the Colmslie Road Industry Precinct (CRIP) Provisions.  Development that is inconsistent with these provisions constitutes undesirable development and is unlikely to be approved.

2. Purpose of the Colmslie Road Industry Precinct Provisions

2.1 The purpose of the CRIP Provisions is to support the economic prosperity and growth of this key component of the Australia TradeCoast Regional Economic Cluster (REC) as a regionally and locally significant industry area, by:

i. protecting the integrity of land in the Industry zone for new and existing industry uses that provide economic benefits to the region and local area; and

ii. ensuring incompatible non-industrial uses do not undermine the viability of and continued and future operation of, established and envisaged industrial development; and

iii. protecting the effective operation of established and envisaged industrial uses by avoiding encroaching incompatible non-industrial development that may generate reverse amenity impacts.

3. Assessment benchmarks

3.1 The purpose of the CRIP Provisions will be achieved through the following overall outcomes:

i. land in the Industry zone within the CRIP is used for new and existing industry uses; and

ii. land in the Industry zone within the CRIP is protected from use for inappropriate non-industrial activities; and

iii. non-industrial development that may result in reverse amenity impacts to industry uses does not locate on land in the Industry zone within the CRIP;

iv. office uses do not locate on land in the Industry zone within the CRIP unless ancillary to an industrial use on the same site, such as an administrative area that directly supports the industrial use; and

v. indoor sport and recreation and outdoor sport and recreation uses do not locate on land in the Industry zone within the CRIP; and

vi. the only non-industrial uses contained on land in the Industry zone within the CRIP:

a. are small-scale food and drink outlet or shop uses that provide business services and facilities that are necessary to support the industrial workforce within the CRIP or have a demonstrated direct nexus with industrial businesses; or

b. do not involve a clustering of small non-industrial uses and do not locate in a catchment which is already serviced by an existing or approved non-industrial use; and

c. are those needed to facilitate the economic growth and advancement of the industry uses within the CRIP;

d. do not adversely impact on the continued operation of nearby industrial uses or compromise the industrial function of the CRIP.

3.4 Development for any other use:

i. has a clear nexus with and is necessary to support the viability of, and current and future operation of, industrial activities within the CRIP; and

ii. does not include a sensitive use; and

iii. specifically, does not involve an indoor sport and recreation or outdoor sport and recreation use.[227]

  1. [302]
    These overall outcomes are expressed in strong terms.  The proposed development is clearly not consistent with the planning policy to exclude indoor sport and recreation uses.  Further, pursuant to s 1.1 of Attachment A to the Temporary Local Planning Instrument, the proposed development is undesirable development. 
  2. [303]
    That said, having regard to findings I have made about the impact of the proposed development, I am satisfied that the proposed development does not offend the provisions of the Temporary Local Planning Instrument that identify its purpose.  Given that the proposed development will cease operation within two years, it would not undermine the viability, and the continued future operation, of established and envisaged industrial development.  Further, following the cessation of the operation of the proposed development, the existing industrial building can be used for industry activities.  Accordingly, the integrity of the land in the Industry zone for industry uses that provide economic benefits to the region and local area is protected; and the effective operation of established and envisaged industrial uses is protected.
  3. [304]
    The express exclusion of indoor sport and recreation is a more restrictive policy position for the Colmslie Road Industry Precinct than that reflected in Chapter 3, Part A, Goal 2, Element 5, Strategy 5 of the South East Queensland Regional Plan.  As I have already mentioned, in the event of inconsistency between a local planning instrument, be it a planning scheme or temporary local planning instrument, and a regional plan, the regional plan prevails.[228]
  4. [305]
    The determination of whether there is inconsistency involves an assessment of the proper construction of the relevant provisions in the context of the whole of the document in which they appear.[229]
  5. [306]
    As I have observed in paragraph [291] above, the Temporary Local Planning Instrument was promulgated by the Minister to protect a State interest.  The relevant State interest is apparent from the overview in s 2 of the Temporary Local Planning Instrument, which states:

2. Overview

2.1 This TLPI provides an interim response to protect the Colmslie Road Industry Precinct (CRIP) from encroachment by inappropriate non-industrial uses.

2.2 This TLPI seeks to support the economic prosperity and growth of this key component of the Australia TradeCoast Regional Economic Cluster (REC).

2.3 This TLPI recognises the importance of the CRIP as a regionally and locally significant industry area with high employment levels, containing diverse and economically significant industries and continuing to support long-standing and hard to locate industries.

2.4 In particular, this TLPI seeks to ensure development on land in the Industry zone within the CRIP is appropriately regulated to protect the integrity the Industry zone for new and existing industry uses and to ensure future uses will not result in reverse amenity impacts to existing and future industrial uses within the CRIP.

2.5 New non-industrial development and intensification of existing non-industrial development is not supported on land in the Industry zone within the CRIP, unless compliant with the TLPI.”

  1. [307]
    The Minister’s promulgation of the Temporary Local Planning Instrument post-dates the South East Queensland Regional Plan.  It also refers to the Australia TradeCoast Regional Economic Cluster, which is a planning area given significance by the South East Queensland Regional Plan, not City Plan.  
  2. [308]
    As I have already noted, the Temporary Local Planning Instrument does not admit of the same degree of flexibility for commercial uses in the Colmslie Road Industry Precinct as that which is contemplated for Major enterprise and industrial areas generally under the South East Queensland Regional Plan.  However, in the circumstances identified above, I am not persuaded there is an inconsistency.  Rather, the Temporary Local Planning Instrument is more prescriptive about the extent to which commercial uses are encouraged in that part of the Major enterprise and industrial areas of South East Queensland that fall within the Colmslie Road Industry Precinct.

Conclusion regarding the weight to be afforded to the Temporary Local Planning Instrument

  1. [309]
    The Temporary Local Planning Instrument is relevant to the assessment of the development application.  It is a relevant matter under s 45(5)(b) of the Planning Act 2016, as it represents the most contemporary statement of planning intent for the subject land and was promulgated to protect the area from adverse impacts in urgent or emergent circumstances.  It is also a matter to which weight can be given under s 45(8) of the Planning Act 2016.
  2. [310]
    I have considered the Temporary Local Planning Instrument, including its express discouragement of use of the land in the Industry zone for indoor sport and recreation.  It is a matter that tells against approval of the proposed development. 
  3. [311]
    Wilmar submits that the non-compliance with the Temporary Local Planning Instrument should be given significant (and effectively decisive) weight for three reasons.  First, the non-compliance should be given significant weight because the Temporary Local Planning Instrument seeks to protect matters of State interest at a regional and local level.  Second, the Temporary Local Planning Instrument has a direct nexus with the subject land and the proposed development.  Third, Wilmar says that to approve the proposed development would be in direct contravention of the Temporary Local Planning Instrument and would frustrate its operation within a part of the Colmslie Road Industry Precinct.
  4. [312]
    With respect to its third point, Wilmar notes the observations of Hardie J in Coty (England) Pty Ltd v Sydney City Council[230] that:

““It is important, in the public interest, that whilst the respondent council’s local scheme is under consideration this Court should, in the exercise of its appellate jurisdiction under cl 35 of the County Ordinance, avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period this Court should, in the exercise of the jurisdiction referred to, arrive at its judgment, as far as possible, in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation.

An approval in this case for a new, large and permanent industrial building on the land the subject of this application would, in my view, having regard to the circumstances of the case and the special features and town planning difficulties of the area, cut across to a substantial degree the considered conclusion of the respondent council and its town planning committee that the whole of the block should be zoned “Residential—Class C”. Further, it would make the ultimate decision more difficult in that the erection of the new factory would so disturb the existing balance and proportion of residential and non-residential development and user in the block that the Minister would be faced with the task of making a decision on a set of facts substantially different from that existing when the council dealt with the matter.”[231]

  1. [313]
    Wilmar also cites the observations of Henry J in Brisbane City Council v YQ Property Pty Ltd[232] that:

[21] The Coty principle identifies two public interest considerations when considering development applications in an era when a new planning scheme is under consideration but not yet taken effect. Each was separately described by Hardie J in the passage quoted above as “important, in the public interest”. Both share the underlying policy that completely ignoring a draft plan would “frustrate, and tend to diminish public confidence in, the planning process”. It is convenient to discuss these public interest considerations from the perspective of a court hearing an appeal from an assessment manager, though the Coty principle also applies to that original decision maker.

[22] It is conceivable that on the facts of a particular case one or other of those considerations may attract such significant weight as to have a determinative effect on the outcome. Importantly however, neither are expressed as inevitably determinative considerations. That is unsurprising because their relative significance will vary from case to case, depending upon the circumstances of each case.

[23] The first public interest consideration is the avoidance, as far as possible, of a judgment which would render more difficult the ultimate decision as to the form the planning scheme should take. The rationale behind that consideration is the desirability of the court not making a decision on a planning appeal in circumstances where it would make the democratic process surrounding the development of a new planning scheme more difficult. This first consideration, sometimes referred to as the “non-derogation principle”, was not relevant below. That is because Council’s decision had already been made by the time the learned primary judge delivered his reasons. The process by which the draft scheme would in due course become law only remained “a formality”.

[24] The second public interest consideration in the Coty principle is that the judgment should be arrived at, as far as possible, in consonance with town planning decisions which have been embodied in the new planning scheme in the course of preparation. This consideration allows the court to take into account the terms of a draft scheme or other planning instrument before that draft instrument has entered into force. It is a concession to the reality that planning is an ongoing process and that it is unwise to ignore the future direction of a planning scheme when the development the subject of the application will have to co-exist with whatever that future direction might be. …”[233]

  1. [314]
    Here, a decision to approve the proposed development would not offend the first public interest consideration referred to in Brisbane City Council v YQ Property Pty Ltd.[234]  The Temporary Local Planning Instrument is not a draft instrument.  Its final form has already been determined and promulgated.  As such, approval of the proposed development would not make the process of making the Temporary Local Planning Instrument more difficult.  It also would not make it more difficult for the Council to determine the form that more permanent amendments to the planning scheme should take because, if approved, the proposed development would be a temporary use only.
  2. [315]
    I am also satisfied that approval of the proposed development would not offend the second public interest consideration referred to in Brisbane City Council v YQ Property Pty Ltd,[235] or the public interest associated with the future implementation of the Temporary Local Planning Instrument.  In that respect, I again observe that the proposed development is sought as a temporary use only.  Further, the provisions of the Temporary Local Planning Instrument are not such that the approval of the proposed development would make the future implementation of the Temporary Local Planning Instrument more difficult.  One might well appreciate that circumstances exist where a temporary use may have such an impact, such as where it involves the construction of new built form and the provisions call for future development to be consistent with the built form in the area.  This is not such a case.  The approval of this temporary use in an existing industrial building will not disturb the existing balance of uses in a manner that cuts across the future implementation of the Temporary Local Planning Instrument.
  3. [316]
    Further, I do not consider that a decision that does not give determinative weight to the Temporary Local Planning Instrument would frustrate, or tend to diminish public confidence in, the planning process.  As I have already observed in paragraph [277] above, the planning process is one that:
    1. (a)
      mandates an assessment against the assessment benchmarks that were in effect when the development application was properly made; and
    2. (b)
      permits, but does not oblige, the decision maker to give news laws such weight as is considered appropriate in the circumstances of the case. 
  4. [317]
    On balance, I am satisfied that that the Temporary Local Planning Instrument is a relevant consideration and deserving of weight.  The matters referred to in paragraphs [285] to [293] and [297] to [308] above tell against approval of the proposed development.  However, having regard to the matters referred to in paragraphs [277] to [284], [303], and [311] to [316] above, and my other findings, I do not consider the proposed development’s inconsistency with the Temporary Local Planning Instrument should be given determinative or decisive weight.

What are the relevant matters relied on by the parties?

  1. [318]
    In the Agreed List of Issues, Exhibit 9.60, the parties include a heading “Relevant matters and discretion”, under which they raise the following issues:

“5. Whether the proposed development complies with all assessment benchmarks.

  1. Whether the proposed development can be conditioned to comply with all assessment benchmarks.
  2. Whether relevant matters favour approval or refusal of the proposed development, including the relevant matters in paragraph 8 to 21, below.
  3. Whether there is a planning, economic or community need for gym facilities in the locality.
  4. Whether the proposed development:

a. is not a land use that, because of its scale, directly supports only the industry and workers of this Major Industry Area; and

b. will serve a catchment that is wider than the immediate surrounding industrial area, and thus will attract non-industrial traffic into a predominantly industrial area.

  1. Whether the proposed development would result in positive economic and social impacts for the locality, namely, in so far as they are established:

a. Retention of spending within the local area;

b. Reduced need for local residents to travel for recreation, health and wellness;

c. Additional customer flows and vibrancy for other retail and non-retail facilities;

d. Creation of employment opportunities;

e. Conveniently located social and health services; and

f. Use and occupation of an existing building.

  1. Whether the proposed development’s location is appropriate in town planning terms by reference to, in so far as they are established:

a. Convenient location;

b. Higher order road access;

c. Its location in an existing mixed use hub;

d. Its separation from other uses;

e. Its ability to positively respond to local needs;

f. Its ability to complement rather than compromise the existing industrial uses.

  1. Whether any community support for the development favours approval.
  2. Whether the proposed development is inconsistent with an extant development approval for Low & Medium Impact Industry and Warehouse.
  3. Whether the proposed development is within, or outside, the reasonable expectations of the community for development in the locality.
  4. Whether the proposed development would create an undesirable conflict between heavy vehicles accessing industrial uses and private cars of gymnasium patrons.
  5. Whether the proposed development would put at risk the efficiency of the import export functions of the Queensland Bulk Terminals Facility, which Wilmar says are fundamental to the State and its economy.
  6. Whether the land has been developed in an incremental or piecemeal way, or the development approval was pre-empted by the Co-Respondent, and whether those facts are relevant and/or favour approval or refusal.
  7. Whether the proposed temporary nature of the proposed development is relevant and, if so, what role that can play in the threshold approval/refusal question.
  8. Whether the proposed development does not advance the purpose of the Planning Act 2016 as it does not assist in the achievement of economic development and will “compromise the ability of future generations to meet their (industrial) needs”.
  9. Whether the fact that the buildings are already constructed but partially vacant supports approval of the proposed development.
  10. Whether the temporary nature of the proposed development (limited to 2 years of operation) enables the efficient use of existing built infrastructure by facilitating a temporary use during a period of economic uncertainty while ensuring the long-term intent for the land to be used for industry type uses is not compromised.
  11. Whether the buildings and site are configured in a way that is conducive to the proposed temporary use.
  12. Whether the temporary nature of the proposed development (limited to 2 years of operation) will result in no unacceptable “reverse amenity” impacts.
  13. Whether weight ought to be afforded to the Temporary Local Planning Instrument No. 2 of 2021 (Colmslie Road Industry Precinct) that came into force on 29 June 2021, being a statutory instrument under s 45(8)(b) of the Planning Act 2016, and, if so, what weight or otherwise be considered as a relevant matter.”
  1. [319]
    The issues raised in paragraphs 1 to 4 of Exhibit 9.60 relate to the assessment benchmarks and have already been addressed in that context.
  2. [320]
    During the hearing, Wilmar and ACC abandoned the issue referred to in paragraph 16 of Exhibit 9.60.  As such, it is not an issue and will not be addressed.
  3. [321]
    The other issues raised in paragraphs 5 to 24 of Exhibit 9.60, other than the issue raised in paragraph 17, are each relevant matters for the purpose of assessing the development application under s 45(5)(b) of the Planning Act 2016.  The issue is whether they have been established on the evidence and, if so, how they inform the exercise of the discretion.
  4. [322]
    None of the parties provided written submissions that individually addressed each of the issues in the manner they are enumerated in Exhibit 9.60.  Rather, the submissions addressed a series of broader questions – a seemingly more appropriate approach. 
  5. [323]
    I have already addressed several of the issues.  By way of overview, with respect to the issues raised in Exhibit 9.60, I note:
    1. (a)
      issue 5 is addressed in paragraphs [15] to [271] above;
    2. (b)
      in light of my assessment against the assessment benchmarks, there is no need to separately address issue 6;
    3. (c)
      issue 7 does not, of itself, raise a separately identifiable issue;
    4. (d)
      issue 9 is addressed in paragraphs [29] to [39], [55] to [72] and [97] to [186];
    5. (e)
      issue 11 is addressed in paragraphs [15] to [271] above;
    6. (f)
      issue 15 is addressed in paragraphs [110] to [115], [118], [119], [123], [144], [145] to [153] and [204] to [260] above;
    7. (g)
      issues 18, 19, 20, 21 and 22 are addressed in paragraphs [116], [118] and [145] to [186] above;
    8. (h)
      issue 23 is addressed in paragraphs [187] to [203] above; and
    9. (i)
      issue 24 is addressed in paragraphs [272] to [317] above.
  6. [324]
    Otherwise, the issues that remain are conveniently addressed by considering the following questions:
  1. Is there a need for the proposed development?[236]
  2. Will the proposed development enable the efficient use of existing built infrastructure during a period of economic uncertainty?[237]
  3. Is the proposed development inconsistent with an extant development approval for low and medium impact industry and warehouse uses?[238]
  4. Is the way the subject land has been developed and fit-out relevant?[239]
  5. Is the proposed development within the reasonable expectations of the community for development in the locality?[240]

Is there a need for the proposed development?

  1. [325]
    Rivermakers contends that there is a need for the proposed development.  It says this is a relevant matter under s 45(5)(b) of the Planning Act that strongly favours approval of the development application.  ACC and Wilmar disagree.
  2. [326]
    All the parties appropriately acknowledge that the general principles that inform and guide an assessment of need are well-settled, and that they are conveniently identified by His Honour Judge Wilson SC (as he then was) in Isgro v Gold Coast City Council & Anor.[241]  As His Honour stated:[242]

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

  1. [327]
    His Honour also observed:

[29] When a Council comes to consider issues of this kind, it is a relevant matter that nothing in the legislation suggests local authorities are intended, or required, to actively manage and oversee private enterprise in their areas, or assume a planning role which requires them to protect existing businesses from competition. There must, too, be some reasonable, practical limits to the quality and detail of information an applicant must adduce to satisfy a Council about the matters raised, here, under s17.2.2.2, and .3. As Skoien DCJ recognised so long ago as Cut Price Stores Retailers & Ors v Caboolture Shire Council (1984) QPLR 126 at 131, an obligation to provide information about the likely economic impact of a proposed development upon similar existing businesses could, strictly speaking, involve crippling amounts of time, and money. For these reasons need has never been defined, in this jurisdiction, as reflecting an economic imperative, or one which (by extension) requires an applicant to establish an overwhelming demand by means of very strong supporting evidence: Cut Price Stores Retailers (supra) at 131; Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58 at 60; William McEwans Pty Ltd v Brisbane City Council (1981) 2 APAD 165.

[30] Within those parameters the central question is whether or not there is evidence of an existing, latent unsatisfied demand of the kind discussed in Queensland Investment Corp (supra, at 373) and Arksmead Pty Ltd v Council of the City of the Gold Coast [2000] QPELR 285.[243]

  1. [328]
    Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire but relates to the well-being of the community.[244]  Whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors.[245]  Providing competition and choice can be matters that provide for a need, in the relevant sense, but of itself the addition of choice to the marketplace does not necessitate a finding of need.[246]
  2. [329]
    Need is a relative concept to be given a greater or lesser weight depending on all the circumstances which the planning authority is to consider.[247]  It is but one of many issues that is required to be considered in a development application of this kind and is not, on any view, paramount.[248]
  3. [330]
    Recent guidance on the concept was also provided in Abeleda & Anor v Brisbane City Council & Anor,[249] wherein Mullins JA (as her Honour then was) observed:

[51] The focus in K & K and King of Gifts in respect of s 326(1)(b) of the SPA was whether the planning need for the proposed development overrode the planning scheme in relation to the development of that particular site. Under s 60(3) of the Act, the decision is made in respect of the development application for a particular site, but the parameters of the impact assessment undertaken by the decision-maker do not necessarily suggest that, where planning need is a relevant matter, the planning need must be limited to the need for the proposed development on that particular site only and no other site, rather than a planning need for that type of proposed development that would be appropriately satisfied by the development on that site. The weight to be given to the planning need may be greater if the evidence showed that the need would be satisfied only by the proposed development on the particular site. The process of decision-making provided for by the Act under s 45(5), s 59(2), s 59(3) and s 60(3) does not restrict planning need to the proposed development of the specific site in the manner discussed in Bell, K & K and King of Gifts for the purpose of s 326(1)(b) of the SPA, but the existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter.”[250]

  1. [331]
    On the issue of need, I had the benefit of expert evidence from Mr Gavin Duane, Mr Jon Norling and Mr Ian Shimmin, the economic experts retained by Rivermakers, ACC and Wilmar respectively. 
  2. [332]
    There is agreement between the economic experts about five relevant matters that inform whether there is a need for the proposed development. 
  3. [333]
    First, in the Joint Expert Report on Need, the experts agree the extent of trade area catchments for residential and worker catchments and the population of the catchment.  They also agree the likely socio-demographic profile of the likely patrons who are residents of the trade area and those that are workers in the local area.[251] 
  4. [334]
    The agreed primary trade area extends north and west to the Brisbane River, east to Bulimba Creek and south to D’Arcy Road in Carina.  The experts agree that patrons of the proposed development are likely to be drawn from three secondary trade areas.  The secondary east trade area extends to the Brisbane River in the north, Moreton Bay in the east and includes the suburb of Gumdale in the south.  The secondary south trade area stretches to White Hills Reserve in the south and Norman Creek in the west.  The secondary west trade area is bounded by the Brisbane River, the Pacific Motorway, and the rail line around Buranda Station.  Collectively, the experts refer to the trade areas as the main trade area.[252] 
  5. [335]
    Second, the experts agree that the trade area population is generally well aligned demographically to the gymnasium and fitness studio market, and particularly the gymnasium concept[253] that is sought to be delivered by the proposed development.  They expect this to mean a higher propensity to use gymnasium and fitness studios in the trade area as compared to the average for Brisbane and Australia.[254]
  6. [336]
    The third area of agreement between the experts relates to the number and characteristics (such as type, size and the structure of service) of existing gymnasiums and fitness studios in the main trade area.  There are 103 gymansiums and fitness studios in the main trade area, 30 of which are dedicated to pilates or yoga.  The largest gymnasiums in the main trade area are GoodLife Health Club at Morningside (in the primary trade area) at around 1,000 square metres, Fernwood Fitness at Westfield Carindale Shopping Centre in the secondary south trade area with an area of 1,589 square metres, and Pure Health Club, which is another large gymnasium with five studios offering over 120 classes a week.[255]  All of the other gymnasiums are smaller-scale facilities that typically range from 100 to 500 square metres in area.[256]  In the primary trade area, there are 27 gymnasiums and fitness centres, eight of which are dedicated to pilates or yoga.[257] 
  7. [337]
    As a point of comparison, the experts note that across Australia gymnasiums vary in size from small fitness studios with trainers, which would typically operate out of a space around 100 square metres, to larger gymnasiums with areas of between 3,000 and 4,500 square metres, which are operated by national operators and offer weight rooms, cardio workouts, pools, and other facilities.[258]  In between those two ends of the spectrum, there are a range of different sized gymnasiums delivering different environments.  The experts agree that there is an increasing trend towards 24-hour gymnasiums, “crossfit” studios and class only based facilities.[259]
  8. [338]
    With an area of 4,772 square metres, the gymnasium in the proposed development would be substantially larger than any other gymnasium within the main trade area.  It is likely to offer a greater number of classes per week than any other gymnasium.  It would also offer a more extensive array of facilities than the vast majority, if not all, of the other facilities in the catchment.[260]
  9. [339]
    The fourth area of agreement between the economic experts relates to the consumer choice and community well-being benefits of the proposed development.  The experts agree that the proposed development will offer a unique experience to members that is in line with international trends and innovations in terms of scale, facilities and services offered by gymnasiums and fitness studios.  It will provide a broader range of activities under the one roof, as well as a greater depth of offer than existing gymnasiums in the area.  It will also provide another option, amongst many, for gym-goers in the catchment area and, as such, it increases choice.  Further, it was agreed that the proposed development will provide improved services and facilities to members in the locality and will be appealing to those who prefer large gatherings for gymnasium sessions and classes, and who are prepared to pay higher prices for access.[261]
  10. [340]
    The fifth area of agreement between the experts is that the proposed development is likely to generate significant economic benefits in terms of turnover and employment.[262]
  11. [341]
    Despite agreeing to those matters, the experts ultimately disagree about whether there is a need for the proposed development.  Their disagreement is reflective of the fact that their opinions were informed, in part, by uncertain information about which highly qualified and experienced experts might disagree.  Much time was spent exploring the bases of the disagreement.  Below I consider the five key areas of disagreement.
  12. [342]
    The first substantial area of disagreement relates to the extent to which workers in the nearby industrial area will patronise the proposed development.  Mr Shimmin and Mr Norling opine that the workers in the local area are not well aligned as patrons of the proposed development given the industry of the workforce, the origin of the workers and the assumed fee structure of the proposed development.  Mr Duane disagrees.[263]
  13. [343]
    I consider that the estimates of likely patronage of workers assumed by Mr Shimmin and Mr Norling are unduly pessimistic.  I prefer the evidence of Mr Duane on this issue.  He opines that the proposed development will appeal to a portion of workers in the surrounding industrial area and will support those workers’ needs.  His opinion is supported by, amongst other things, an analysis of the income profile of the relevant workforce,[264] which analysis I accept. 
  14. [344]
    The second substantial area of disagreement relates to whether there is a current gap in the market and an economic need for the proposed development.  Mr Shimmin opines that the current provision and location of gymnasium and fitness studios throughout the main trade area is sufficient to satisfy the level of demand from the major segments of the addressable market over the forecast period.[265]  His opinion is informed by his quantitative analysis, which considers the supply to demand balance.  Mr Shimmin says it indicates a current overprovision of gymnasiums in the main trade area.[266]  He opines that the extent of overprovision is approximately 32 gymnasiums. 
  15. [345]
    Mr Norling opines that the current provision and location of gymnasiums and fitness studios in the main trade area, together with the number of classes offered, is numerically sufficient to satisfy the level of demand from the major segments of the addressable market over the period to November 2022.  He also opines that approval of the proposed development can be expected to result in several gym closures in the short term, mainly in the primary trade area.  His opinion in that regard is premised on the scale and standard of the proposed development, the demand to supply balance over the relevant period, the significant financial burden experienced by gymnasiums during 2020 due to lockdowns and the potential for the public to reduce their gymnasium usage because of future social distancing measures.  Based on those matters, Mr Norling concludes that there is no evidence of unsatisfied economic demand or gap in the market and, as such, there is no economic need for the proposed development on the subject land.[267]
  16. [346]
    Mr Duane disagrees with Mr Shimmin’s opinions about the supply to demand balance.  He considers that the level of demand from residents is likely to be 25 per cent higher than that assumed by Mr Shimmin.  He says the uplift is appropriate given there is likely to be a higher than average demand within the trade area due to the socioeconomic characteristics of the trade area as compared to that of the broader Brisbane average.  With the adjusted assumptions, the analysis indicates that the supply is notionally equal to demand in the primary trade area in 2021 and that demand will exceed supply as the population in the catchment grows.[268]  During his cross-examination, Mr Duane explained that, in any event, he does not rely on this analysis as though it were an exact science.[269]  Rather, Mr Duane’s opinion that there is an economic need for the proposed development is also informed by other considerations. 
  17. [347]
    Relevantly, Mr Duane explains that different sized gymnasiums are part and parcel of the industry and that large format gymnasiums are a growing part of the Australian fitness industry.  That type of gymnasium focuses on the concept of wellness, which is more than just physical health.  There is no comparable development within the defined catchment.  Mr Duane opines that in any modern economy, new concepts are a relevant part of serving the needs of the public.  For example, over time, larger format supermarkets and liquor stores have evolved in the Australian market to serve the needs of the community.  For that reason, Mr Duane says that a simple quantitative analysis of demand and supply does not appropriately account for the qualitative factors relevant to new concepts in the Australian market.  He notes that Mr Shimmin and Mr Norling do not discuss these qualitative factors to any significant degree in their analysis of supply and demand.  In terms of the significance of the new concept to the public, Mr Duane notes that the proposed gymnasium already has a substantial number of expressions of interest in membership even though it does not have an opening date.  He considers that the numbers are likely to increase if it were to open.  He considers that the expressions of interest in membership support a conclusion that the facility would be a well patronised and popular gymnasium and that there is an existing need.  Mr Duane also supports his opinion in this regard by reference to the socioeconomic profile of the trade area, which he says highlights the existence of a market that associates strongly with gymnasiums that have a premium offer.[270] 
  18. [348]
    In the Joint Expert Report on Need, the experts appropriately reveal the details of the supply to demand balance analysis.  It is apparent from the details they provide that the analysis attempts to measure demand based on uncertain information.  This is acknowledged by the experts, who describe it as “a high-level demand analysis”.[271]  In those circumstances, I consider that the approach of Mr Shimmin and Mr Norling, with its heavy reliance on the supply to demand analysis, presents an unduly blinkered view.  Nevertheless, to the extent that it is one of the indicia that might inform a judgment about the need for the proposed development, I prefer the evidence of Mr Duane to that of Mr Shimmin and Mr Norling with respect to the results of the supply to demand analysis.  Although I consider that the expressions of interest are to be viewed with caution, given there is no suggestion that they were accompanied by a financial commitment, Mr Duane’s opinions are otherwise supported by cogent explanations.  This leads me to conclude that the opinions of Mr Shimmin and Mr Norling that there is a current oversupply of 32 gymnasiums is unrealistic. 
  19. [349]
    The third substantial area of disagreement relates to whether the proposed development could be accommodated on appropriately zoned land. 
  20. [350]
    Whether City Plan makes adequate provision is a question of fact and degree.  That City Plan makes provision for indoor sport and recreation facilities is a relevant consideration that informs whether there is need for the proposed development, as does the challenges associated with delivering the proposed development on land that is appropriately zoned.
  21. [351]
    In the Joint Experts Report on Need, Mr Norling opines that there is no planning need for the proposed indoor sport and recreation uses to locate on the subject land given the number of vacant and under-developed lands preferred by City Plan.[272]  The sites that underpin his opinion are identified in Table 12.1 of the Joint Experts Report on Need.[273]  During cross-examination, Mr Norling was tested on his opinion that the identified sites were possible alternatives that were preferred by City Plan.  The cross-examination revealed that Mr Norling’s approach to identifying alternative sites was flawed.  For example, in asserting that the alternative sites were preferred by City Plan, Mr Norling fails to have regard to mapping that indicates that the sites are subject to development constraints associated with flooding, koalas and other ecological issues.[274]  Having been taken through numerous difficulties with his analysis,[275] Mr Norling was compelled to agree that there is a planning need for the proposed development on the subject land.[276] 
  22. [352]
    With respect to this issue, Mr Shimmin notes that TotalFusion has successfully opened large format gymnasiums at Garden City and Chermside shopping centres and at Gasworks in Newstead.  He says those opportunities emerged because of reconfigured space in established activity hubs.[277]  In his examination-in-chief, Mr Shimmin explained that he generally considers that a centre can be adapted to accommodate large format space users, whether they be a discount department store or a supermarket or a large format gymnasium and, as such, it is not necessary to consider vacant land.[278]  This potential was first mentioned by Mr Shimmin during examination-in-chief.  He did not present any data or documents that indicate that the potential could be realised within the short-term.
  23. [353]
    Mr Shimmin identifies the East Village site at the intersection of Creek and Wynnum Roads as a possible location for the proposed development.  He notes that the concept masterplan for that site includes a gymnasium, medical and allied health services, and high street retailing.  Mr Shimmin believes that the concept masterplan could be subject to change and is likely to be delivered in stages.  Construction on that site has not commenced.  Mr Shimmin opines that it is conceivable that a TotalFusion gymnasium would be an attractive proposition that accords with that project’s vision, which is to create a lifestyle hub that includes a gymnasium.  He says that the site would also represent a strategic location in the Cannon Hill activity centre, less than five minutes’ drive from the subject land.[279] 
  24. [354]
    In his individual report, Mr Shimmin claims that the Southgate Corporate Park adjoining East Village has vacant space available with sufficient parking that could immediately accommodate the proposed development.  I am not prepared to give this opinion any weight.  It was proffered late and founded on facts that are not established on the evidence. 
  25. [355]
    Mr Duane opines that the primary trade area is of most relevance in considering alternative sites given most future gymnasium patrons are in that area and that area has the largest pool of affluent residents for the subject development.  The identified alternative sites in the primary trade area, including East Village and the Bulimba Naval Base, are the subject of existing development proposals that do not include a large format gymnasium.  Mr Duane says that other sites, shown on Maps 3.1 and 3.2 in his report, including sport and recreation zoned land, are not appropriate given their location or lack of availability for private development.  In those circumstances, Mr Duane opines that there are no comparable alternative sites for the proposed development.[280]
  26. [356]
    I accept the evidence of Mr Duane.  His assumptions about the practical constraints to delivering the proposed development at the other locations is supported by Exhibit 12.14 and the concessions made by Mr Norling during his cross-examination.[281]  That said, Mr Shimmin’s opinions on this issue are also worthy of attention.  His evidence suggests to me that there is merit to an approval that is limited in duration to two years.  Such an approval would give the community the benefit of the proposed development for the two-year period and allow time for the types of opportunities referred to by Mr Shimmin to come to fruition.
  27. [357]
    A fourth area of disagreement relates to whether the proposed development could or would result in the closure of, or diminution of services or hours offered by, existing gymnasiums throughout the catchment area.
  28. [358]
    Mr Norling and Mr Shimmin opine that the proposed development is likely to result in closures at other gymnasiums and a reduction in classes in the catchment area and, as such, may reduce convenience for some residents.[282]  They say the proposed development would not make good the loss to the community that results from the closures given the proposed development would have a limited life of two years.[283] Their opinions about the likelihood of closures are founded on the assumption that there will be an oversupply of gymnasiums. 
  29. [359]
    Mr Duane disagrees.  He says that, having regard to the expressions of interest, it is likely that the impacts on competitive facilities will be spread across several different gymnasiums and that there is unlikely to be significant impact on a single gymnasium.  In addition, he considers that the customer base would be different to a range of other facilities, such as budget 24-hour gymnasiums.  Mr Duane also disagrees given the industry is one that is accustomed to high turnover rates.[284] 
  30. [360]
    Mr Duane’s opinion is supported by cogent reasoning.  Mr Norling and Mr Shimmin provide no detailed assessment of any of the existing gymnasiums and its patrons to support their opinion that existing facilities will be affected by the proposal.  Rather, as I have explained above, their opinions are founded on the fact that their theoretical analysis indicates an oversupply of 32 gymnasiums.  As I have found in paragraph [348] above, I do not accept their opinion about the likely oversupply of gymnasiums. 
  31. [361]
    The opinions of Mr Shimmin and Mr Norling also appears to give no recognition to the possibility that the difference in the product is such that it might entice patrons from members of the public who presently do not attend any gymnasium or fitness class.  It seems to me that there is a realistic prospect that may occur given the experts all agree that the proposed development will offer a unique experience to members that is in line with international trends and innovations. 
  32. [362]
    Further, Exhibit 12.11 shows that there is an existing competitive environment around other TotalFusion gymnasiums in Brisbane.  That document supports an inference that the proposed development is unlikely to result in such an extent of closures that there will be an overall adverse effect on the extent and adequacy of facilities available to the community.
  33. [363]
    For the reasons provided above, I prefer the evidence of Mr Duane on this issue.  I am satisfied that the extent of competition introduced by the proposed development will not cause an overall adverse effect on the extent and adequacy of facilities available to the community.  The mere threat of competition to existing businesses, or potential impact on their profitability, is neither established nor a relevant consideration.[285]
  34. [364]
    The fifth area of substantial disagreement between the experts relates to the significance of the loss of industrial land that would follow from approval of the proposed development.  Although the experts’ opinions differed about the significance of the impact caused by approval of the proposed development, there is no question that the Australia TradeCoast (and the Colmslie Road Industry Precinct) is a critically important component of the industrial land within the local government area and within South East Queensland at large. 
  35. [365]
    To inform their opinions with respect to this issue, the economic experts carried out an industrial land supply analysis.  Having regard to that analysis, Mr Norling and Mr Shimmin opine that although land absorption is naturally “lumpy” due to economic conditions and competition, based on historical take-up rates, there is about 12 years’ supply across the Australia TradeCoast as a whole (which the experts define as including the Major Industry Area to the south of the Brisbane River).  They say there is only 10 years’ supply in that part of the area located south of the Brisbane River.  As such, they consider that by 2031 it is reasonable to expect the Australia TradeCoast industrial land south of the river to be fully occupied by uses suited to the industrial zones under City Plan.  They consider that a capacity to accommodate only 10 years’ demand for strategic industrial lands at the Australia TradeCoast is inadequate.[286] 
  36. [366]
    The proposed development is estimated to be 0.5 per cent of the land available in the Australia TradeCoast (as defined by the experts to include the Major Industry Area south of the Brisbane River).  Nevertheless, Mr Norling and Mr Shimmin maintain that the loss is significant.[287]
  37. [367]
    On this issue, Wilmar submits that whether the loss is small or large involves a subjective assessment.  It says that putting subjectivity aside, the proposed development would involve the loss of valuable industrial land and there is no principled reason to say that a loss of 0.5 per cent of land in the Australia TradeCoast is insignificant.  It says that even if the proposed development operates for only two years, it displaces industrial uses that could be located on the subject site.
  38. [368]
    Mr Duane accepts that the Australia TradeCoast is of economic significance and has a finite supply of land.  He opines that the loss of industrial land occasioned by this development is such a miniscule amount that it would not impact the continued operation of the Australia TradeCoast.[288]  He also notes that, in terms of displacing other potential industrial uses, it is relevant that the proposed development involves the use of an existing building that will not be suitable to all industrial uses.[289]  Mr Duane says approval of the proposed development would not reduce the opportunity for location specific businesses to operate in the surrounding area.[290]
  39. [369]
    In terms of impacts on industrial users, it is also relevant that Wilmar withdrew reliance on Mr Shimmin’s analysis of the impact on Wilmar’s industrial operations and its allegations of impact.  There is no suggestion that approval of the proposed development would have an impact on ACC, other than the allegation of reverse amenity impacts.
  1. [370]
    With respect to this fifth area of disagreement, I accept the evidence of Mr Duane.  It is supported by cogent reasoning, which he details in the Joint Expert Report on Need and his individual statement. 
  1. [371]
    I accept that the subject land is a critically important component of the industrial land within the local government area and within South East Queensland at large.  Despite that, I do not consider the loss occasioned by the approval of the proposed development to be a matter that weighs heavily against the grant of an approval.  This is because of the combined effect of three matters.  First, the proposed development represents less than 0.5 per cent of the available land in the Australia TradeCoast.  Second, the approval would have a life limited to two years.  That is significant given there is 12 years’ supply of industrial land in the Australia TradeCoast, including 10 years’ supply south of the Brisbane River.  Third, the proposed development will occupy only part of one of three buildings that are present on the subject land and which buildings contain other vacancies. 
  2. [372]
    In addition to those key issues addressed by the economic experts, Wilmar submits that there is another consideration relevant to need that tells against approval.  It submits:

“240. There is also the issue of the mismatch between the fit out costs of the proposal and the limit of the two years proposed by Rivermakers. Mr Shimmin told the Court (in relation to the two-year limit):

“… I think it also just detracts from other businesses, so it’s a loss of economic welfare or the – or the value of the output to the community; a deadweight cost is – is another way of describing it to the business ecosystem. I also think it’s important to – to recognise that the operating losses – and I – I – I must say that that – that is my assumption that this facility is going to experience operation – operating losses because of the payback period of two years on the [indistinct] I – the operating losses effectively negate the temporary employment and income benefits that may be apparent from the employment created by the gym.”

[the “indistinct” in the second last line of that excerpt was a reference to “fit out”]

241 Mr Duane agreed that vacating after two years could lead to a loss in the millions. He said that it was not rational behaviour – if the proponent was trying to make a profit and act rationally.”[291]

  1. [373]
    Wilmar also submits:

“261 Added to the picture being a negative one for Rivermakers, is that the economic costs of the two-year limitation are a negative, rather than a positive. Mr Duane agreed that the two-year operation would not likely be enough to cover the costs of establishing the gymnasium. He agreed that the loss could be in the millions. When asked whether that was a desirable outcome, he said, “I’d say it’s not rational – is how I’d say it as an economist”. However viewed, there can be no good planning rationale for the encouragement of a proposal that makes no economic sense. It is insufficient simply to say it is a commercial risk to be carried by Rivermakers and the operators of the facilities when failure of a venture of this size will affect the community generally – members and suppliers, for example – and through disuse, even temporarily.”

  1. [374]
    As I have already observed, the decision to spend money on a fit-out that may be wasted, or that may adversely affect the commercial success of a business, is a matter of private economics.  It is not relevant to the issue of need as described by the relevant authorities.  Having regard to my findings and observations in paragraphs [176] to [178] and [327] above, I do not find these submissions to be persuasive.
  2. [375]
    In its written submissions, Rivermakers also raises two additional matters that it says demonstrate that the proposed development will satisfy a need for a gymnasium on the subject land.
  3. [376]
    First, it submits that the proposed development is recognised by the planning scheme as development that is needed.  In support of its submission, Rivermakers cites Barro Group Pty Ltd v Sunshine Coast Regional Council,[292] Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor,[293] and Sellars Holdings Ltd v Pine River Shire Council.[294] 
  4. [377]
    In terms of the support provided by the planning documents, Rivermakers submits:

“180. While each case turns on its own facts (for example, Barro was a case that concerned a quarry under the Sunshine Coast Planning Scheme) the relevant principles can be more broadly applied. In the present case, the provisions of the planning instruments indicate a need for:

  1. (a)
    facilities and services for workers in industrial areas in order to attract and retain workers to those areas: and
  1. (b)
    the River Gateway Neighbourhood Plan area to be developed as a distinct mixed use area, including additional services and facilities;
  1. (c)
    the Australia Trade Coast is to be developed such that appropriate facilities cater for an increasing workforce and include additional centre like functions; and
  1. (d)
    regional economic clusters will be connected and supported so that people can choose to work in attractive employment precincts throughout the region.
  1.  The provisions of the planning instruments that support such a submission are:
  1. (a)
    SEQRP, Goal 2: Prosper, Element 5: Major enterprise and industrial areas, Strategy 5: Accommodate a mix of commercial uses in major enterprise and industrial areas to give workers and enterprises an appropriate level of access to shops, amenities and facilities to reduce trips out of the area without compromising their role and function;
  1. (b)
    Strategic Framework, Theme 1: Brisbane’s globally competitive economy, 3.3.1 Strategic Outcome 1(d): Brisbane’s outstanding lifestyle attracts a highly skilled and diverse workforce and is a memorable destination for business visitors and tourists;
  1. (c)
    Strategic Framework, Theme 1: Brisbane’s globally competitive economy, 3.3.3 Element 1.2, SO4 and L4 – Brisbane’s Industrial economy: Brisbane’s Major Industry Areas include clusters of supporting business services and a range of services and facilities for the convenience of workers;
  1. (d)
    River Gateway Neighbourhood Plan: Overall Outcome 3(a) – The River gateway area is developed as a distinct, mixed use area, which (amongst other matters) includes “additional…services and facilities…”;
  1. (e)
    Strategic Framework, Theme 5: Brisbane’s Major Industry Areas, 3.7.3, Element 5.2, SO8 and L8.3 – Development makes provision for appropriate community facilities to cater for an increasing workforce in the Australia Trade Coast, including health, education, childcare and recreation facilities;
  1. (f)
    SEQRP, Theme 2: Prosper: Major Economic Area including Regional Economic Clusters will be connected and supported so that people can choose to work in attractive employment precincts throughout the region;
  1. (g)
    SEQRP, Metro Sub Region, Outcomes for Prosper, Australia Trade Coast: This Regional Economic Cluster would benefit from, amongst other things, “additional centre like functions”.
  1.  In this way, as was the case in Barro:

“In that context, the proven resource is acknowledged along with its importance, in a town planning sense, to the community.”

  1. Put simply, that there is a need for the proposed development is demonstrated by the planning instruments themselves, in the circumstances of this case. Indeed, even Mr Shimmin acknowledged that:
  1. (a)
    approval of the proposed development would contribute to the services and facilities that are available in the local plan area; and
  1. (b)
    the proposed development would be a population serving activity or service.”
  1. [378]
    I have already addressed the extent of support that I consider the planning documents provide for the proposed development in paragraphs [15] to [186] above.  The planning documents do not provide the extent of support for the proposed development as submitted by Rivermakers.  As such, while I do not cavil with the authorities referred to by Rivermakers, I do not otherwise accept its submission that the need is demonstrated by the planning documents in this case.
  2. [379]
    The second additional issue raised by Rivermakers relates to its offer that the approval be subject to the following condition:

“5. Workers whose place of employment is located within the area to which Temporary Local Planning Instrument No. 2 of 2021 (Colmslie Road Industry Precinct) applies will be entitled to a discount of 40% on membership to the Total Fusion Morningside gym.”[295]

  1. [380]
    Rivermakers rely on the offered condition to support a finding that the proposed development will appeal to a meaningful number of workers in the surrounding industrial area.  I have concerns about the appropriateness of a condition of this nature.  It seeks to control the way the commercial operator conducts the business, rather than controlling the use.  As such, I am not prepared to assess the extent of the need on the assumption that the condition would be imposed.  I have otherwise considered whether the proposed development will serve the industry area in paragraphs [154] to [159] above.

Conclusion regarding need for the proposed development

  1. [381]
    For the reasons provided above, I am satisfied that there is a discernible need for the proposed development.  That said, need is but one of several issues that is required to be considered in an application of this kind.  It is not, on any view, paramount in this case. 
  1. [382]
    In the context of this case, need is a matter of relevance, but it is not a decisive factor on its own.  The proposed development will provide an important service to the community in that it will support the workers of the nearby industrial area.  However, it will also serve a catchment that is wider than the immediate surrounding industrial area.  The planning documents do not support the satisfaction of that greater need on the subject land.  In this case, need is not a matter to which decisive weight should be given. 

Will the proposed development enable the efficient use of existing built infrastructure during a period of economic uncertainty?

  1. [383]
    The Council submits that in uncertain economic times, such as now, the proposed development is an efficient use of an existing industrial building that will provide direct economic benefits, in terms of employment, and indirect economic benefits to the community.  It says the economic condition in Queensland is far from certain because of COVID-19.  It also says that the temporary nature of the proposed development would not compromise the long-term intent for the subject land to be used for industrial activities.
  2. [384]
    Wilmar submits that this is not a feature that favours the exercise of the discretion in Rivermakers favour.  It says that the positive economic activity aspects could be enjoyed by locating the proposed development on appropriately zoned land elsewhere.  I do not accept Wilmar’s submissions.  They are not supported by findings I have made about the short-term availability of alternative sites.
  3. [385]
    In the Joint Expert Report on Need, Mr Norling opined that economic uncertainty occasioned by COVID-19 no longer exists in most parts of Queensland and Australia.  During cross-examination, Mr Norling appeared unshaken in his opinion that Queensland is insulated from economic uncertainty occasioned by COVID-19.  That was despite his acknowledgment of the widespread lockdowns in New South Wales and Victoria related to the Delta variant of COVID-19.  During cross-examination, Mr Shimmin and Mr Schomburgk accepted that, because of COVID-19, there is likely to be economic disruption in Queensland over the next few years.  They also accepted that the proposed development would provide some public benefit, albeit a small one, by providing an efficient use of the built infrastructure on the subject land during that period.[296]  I prefer the evidence of Mr Shimmin and Mr Schomburgk to that of Mr Norling.  Immediately following the evidence of Mr Norling, I made orders adjourning this matter as the continuation of the trial was negatively impacted by COVID-19 lockdowns in Queensland.
  4. [386]
    In the circumstances, I accept the Council’s submission.  It is supported by the evidence of Mr Shimmin and Mr Schomburgk.  It is a relevant matter that lends some support to an approval.

Is the proposed development inconsistent with the extant development approval for low and medium impact industry and warehouse uses?

  1. [387]
    The issue of whether the proposed development is inconsistent with the extant development approval for low and medium impact industry and warehouse uses was addressed by Wilmar as part of its submissions about why the location of the subject land is not appropriate for the use.  Relevantly, Wilmar submits:

“95 It is a well-known town planning principle, which ought to be respected, that one must ensure zoned land is not lost to activities not anticipated in the zone.

96 In this regard, it is submitted that the proposal is inconsistent with the extant development approval for Warehouse, Low Impact Industry and Medium Impact Industry uses (although this fact is not, in and of itself, a reason for refusal), and further:

“…despite numerous changes to the Depot development over time, the approved land uses have remained consistently as warehouse, low impact industry and medium industry. This compares unfavourably with the land uses one now sees on the ground, a number of which are currently the subject of Enforcement Notices, and confirms the statements made by me [Mr Schomburgk] and Mr Ovenden in the Town Planning JER regarding the mix of uses on the subject land.”

97 As is alluded to by Mr Schomburgk in the above passage, it is Wilmar's submission that it would be inappropriate to characterise The Depot complex, within which the proposal would (if approved) be located, as having a mixed land use character. This is because the non-industrial land uses within The Depot (excluding the service station and fast-food outlet discussed below) are “not lawful uses and cannot reasonably inform the land use and character context of the site or locality when assessing the application for the gym.

98 Further, there is no synergy with existing, lawful, non-industrial uses - which are a service station and a fast-food outlet - as both uses are small scale and they are intended to serve the travelling public. Neither of these uses align with the values, purpose or operation of a business that promotes health and wellbeing.”[297]

  1. [388]
    I accept Wilmar’s submission that it would be inappropriate to characterise The Depot as having a mixed land use character.  In considering the character of the land uses at The Depot, I have had regard to the fact that it is agreed that the approved lawful use of the subject land is that reflected in existing approvals, which authorise warehouse, low impact industry and medium impact industry uses, the service station and the fast-food outlet.  There is no relevant synergy with the existing, lawful, non-industrial uses that supports approval of the proposed development. 
  2. [389]
    With respect to this issue, Rivermakers submits that the basis of a material change of use application is that it will change the use of the land from that which exists or from that which is authorised by a previous approval. 
  3. [390]
    Rivermakers submits that s 66(2) of the Planning Act 2016 is relevant to this issue.  It states:

“A development condition must not be inconsistent with a development condition of an earlier development approval in effect for the development, unless–

  1. (a)
    both conditions are imposed by the same person; and
  1. (b)
    the applicant agrees in writing to the later condition applying; and
  1. (c)
    if the development application for the later development approval was required to be accompanied by the consent of the owner of the premises–the owner of the premises agrees in writing to the later condition applying.
  1. [391]
    Rivermakers submits that, in the present case, the Council made both conditions, and the applicant and owner indicated their consent to the application for a material change of use, which by its nature will be inconsistent with an approval for a different use.  In any event, Rivermakers submits that the point appears difficult for ACC and Wilmar to maintain considering both Mr Ovenden and Mr Schomburgk concede that it does not call for refusal of the proposed development.[298]  
  2. [392]
    This is not an issue that is of any real weight supporting approval or refusal.

Is the way the subject land has been developed and fit-out relevant?[299]

  1. [393]
    As I have noted in paragraph [318] above, paragraph 17 of Exhibit 9.60 raises the following issue:

“Whether the land has been developed in an incremental or piecemeal way, or the development approval was pre-empted by the Co-Respondent, and whether those facts are relevant and/or favour approval or refusal.”

  1. [394]
    This issue was first raised by ACC in its Reasons for Refusal, where it alleged:

“20 The land has been developed in an incremental and piecemeal manner to establish a built form, access arrangements, carparking provision and use intent that are inconsistent with the intent of the Industry Zone and Major Industry Area designations as they apply to the land and the locality.

22 Before any approval was given, the Co-Respondent pre-empted a development approval by establishing the use in the premises and engaging in a marketing campaign to attract gym membership and staff.”

  1. [395]
    Despite maintaining this as an issue, ACC’s submissions on the issue were limited. 
  2. [396]
    ACC submits that regard should not be had to unlawful uses.  That is a matter about which there was no controversy between the parties or the experts.  I agree.  The case for approval is not assisted by the existence of unlawful uses or by the fit-out of the building.
  3. [397]
    The other submissions made by ACC on this issue are set out in paragraph [175] above, and I have addressed them in paragraphs [176] to [178] above.
  4. [398]
    Rivermakers addressed the allegations in its written submissions, wherein it said:

“288. Finally, ACC attempts to rely on a relevant matter in respect of what it said was a “piecemeal and incremental development of the land”.[300] ACC may also attempt to rely on Exhibit 9.60, paragraph 17 which raises a similar issue but also adds an allegation that the development approval was pre-empted. Whether those matters are true issues for determination by this Court is also in issue: as is made clear by the words in paragraph 17 which provide, “…and whether those facts are relevant…”.

  1. It is anticipated that ACC submits that the current application is part of a plan by the owner of the wider Rivermakers development to establish non-industrial uses on the land. That matter arises from the statements of the High Court in Pioneer Concrete (Qld) Proprietary Limited v Brisbane City Council (1980) 145 CLR 485, where an applicant applied for a permit for quarrying separately to the application to use land for an access road, that such applications should be made together.[301] The Court of Appeal (Thomas JA, with whom McMurdo P and Helman J agreed) said in Brisbane City Council v Cunningham & Anor [2001] 115 LGERA 326 at 329:

The essential requirement of the decision in Pioneer Concrete is that the proposed use “must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application”: Per Stephen J (at 500; 357). There is no rule prohibiting the making of more than one application in respect of the one piece of land or part of a parcel of land. The Pioneer principle required that each application for a use for a particular purpose be for the whole of the use (including incidental and necessarily associated uses) and for the whole of the land devoted to that use. It did not require that two separate and distinct uses be combined in one application.”

  1. Skoien SDCJ stated in Westfield Limited v Stockland (Construction) Pty Ltd [2002] QPELR 542 that it is interdependent uses that rely on each other for their existence which are captured by the principle, rather than complementary uses.[302]
  2. The current case is self-evidently different. Whatever suggested “plan” exists, it is not dependent and necessary to the gymnasium proposal like access is to a quarry. The inference sought by ACC appears to be based on advertising and other material about the Rivermakers site,[303] statements purportedly made by Rivermakers’ employees,[304] and the establishment of allegedly non-industrial uses on the Rivermakers site.[305] That evidence does not support an inference that there is any “plan” to introduce unlawful uses. Many non-industrial uses are appropriately sited in industrial zones. The Depot part of the Rivermakers site already includes a number of uses which meet the advertising puffery of “dynamic social hub for trade”[306] including shops ancillary to industrial uses, service station and fast food outlet. The wider Rivermakers site has lawful approvals for a food and drink outlet ancillary to a craft brewery, and a shop and hotel ancillary to another brewery. There is no evidence of a “plan” to introduce any use that is dependent on the gymnasium for its very existence. The point is bad at law[307] and also redundant in the determination of these appeals given that a submitter appeal is not an appropriate vehicle to make a challenge of this type: Perivall Pty Ltd v Rockhampton Regional Council [2019] QPELR 96 at [31]-[71].
  3. ACC also raises a claim that Rivermakers pre-empted a development by establishing the use.[308]
  4. The Court of Appeal held in McDonald v Douglas Shire Council [2003] QCA 203 that for a use to commence, “the goal envisaged by a consent [must be] fulfilled”.[309] That case was decided in the context of a condition to commence a use by four years after an approval for a resort use was given. The Court of Appeal held that the construction of a maintenance shed, generator shed, two tank stands and three floor slabs was not sufficient for the resort use to have commenced.[310] De Jersey CJ said:

In this case, the true character of the approval was for the use of land in a particular way, and to the extent that the approval envisaged the construction of buildings, that was to facilitate the fulfilment of the broader goal.[311]

  1. The Court of Appeal in Ashtrail Pty Ltd & Anor v Council of the City of Gold Coast [2020] QCA 82 distinguished the case on the basis of wording in the Sustainable Planning Act 2009 (Qld) but otherwise did not call into question the Judgment.
  2. In the present case, Rivermakers submits that for an indoor sport and recreation use to commence, there must be persons engaging in sport and recreation inside a building on the land. That is the ultimate goal of the application for a material change of use. The internal fit out and installation of exercise equipment is not sufficient for the use to have commenced. Those are all matters of commercial risk for the operator.
  3. It has also been suggested that this relevant matter was sufficiently wide to contemplate an argument that Rivermakers or the intended operator of the Total Fusion gym or 9 Degrees bouldering facility would not comply with the conditions of approval imposed by the court. Rivermakers submits that if such a significant allegation were to be made, it should have been made in the clearest of terms. The light implication in the relevant matters raised by ACC should not be sufficient. In any case, Rivermakers submits:
  1. (a)
    There is a presumption that persons will comply with court orders including development conditions imposed on them.[312]
  1. (b)
    There is no evidence overturning that inference in this case. To the contrary, the forbearance of the operator to refrain from any use of a fully fit out gym shows their commitment to establishing the use lawfully, including in accordance with any conditions set by the court.”
  1. [399]
    In oral submissions, ACC did not cavil with the authorities to which these submissions refer, nor otherwise address their content.  I accept these submissions.

Is the proposed development within the reasonable expectations of the community for development in the locality?

  1. [400]
    In the document that identified ACC’s reasons for refusal, ACC alleges that the proposed development conflicts with the reasonable expectations for development in the locality.[313]  The allegation was maintained as an issue in the Agreed List of Issues: Exhibit 9.60.  Despite this, ACC did not address the issue of reasonable expectations in its submissions, either by assisting the Court with the relevant case law or by referencing the evidence that it says supports its contention.
  2. [401]
    A similar allegation about community expectations was made by Wilmar.  In the document that identified Wilmar’s reasons for refusal, Wilmar alleges that the proposed development is beyond the reasonable expectations of the community having regard to the planning scheme as a whole and the nature and extent of existing surrounding development.[314]  The allegation was maintained as an issue in the Agreed List of Issues: Exhibit 9.60.  Wilmar’s submissions about community expectations also provided no assistance about the relevant case law.  However, they briefly addressed the issue of community expectations.  I have considered the substance of Wilmar’s submissions with respect to the issue in paragraphs [173] to [174] above.  Wilmar otherwise submits that City Plan was publicly notified, and it reflects the community’s expectations for the industrial area.[315]
  3. [402]
    Rivermaker submits that the proposed development is within the reasonable expectations of the community for development on the subject land.  It says that the starting for point for considering this issue is that the expectations should be “reasonable” and not merely the expectations of one or two significant or powerful entities.  I accept that the expectations must be reasonable.  That they are made by one or two significant or powerful entities is not a matter deserving of weight.
  4. [403]
    In support of its submission that the proposed development is within the reasonable expectations of the community, in its original written submissions, Rivermaker relies on four propositions.  First, the subject land is part of a mixed-use locality.  Second, gymnasiums are a common presence in industrial areas in the wider industrial precinct at Morningside, Murarrie, and Cannon Hill and throughout Brisbane.  Third, the industrial area, which includes the subject land, has a large workforce and an adjacent residential area.  That workforce is entitled to have sport and recreation options that provide them with choice and convenience.  Fourth, the proposed development is consistent with City Plan.
  5. [404]
    The first three propositions on which Rivermakers relies are established by the evidence.  The fourth is not, nor is it established that it is reasonable to expect that the entitlement for access to sport and recreation options is to be met on the subject land.
  6. [405]
    After the delivery of the initial written submissions, the Court of Appeal in Development Watch Inc v Sunshine Coast Regional Council & Anor,[316] considered the issue of community expectations.  Burns J (with whom Morrison JA agreed) observed:

[43] As to that, the primary judge was of course obliged to consider whether the height of building and structures in the proposed development was consistent with the reasonable expectations of the local community. To do so, her Honour was required to first determine what the expectations of the local community were about the height of buildings and structures and once that was done, as her Honour recognised, the reasonableness of those expectations needed to be assessed in light of the planning provisions applying to the subject land. Then, after the reasonable expectations were identified, the extent to which those expectations were consistent with what was proposed for the development had to be determined.

[45] First, there was no base to work from because the primary judge did not find what the expectations of the local community were as to the height of buildings and structures in the proposed development. Although her Honour noted substantial opposition to the development and, by implication, concerns about the height of some of the buildings and structures, no finding was made as to the local community’s expectations regarding height. When later in the judgment her Honour discussed the content of the submissions, that was for the purpose of deciding whether the level of community opposition to the development warranted its refusal and, in any event, no finding about height was made. Indeed, the closest her Honour came to expressing a finding about the local community’s expectations regarding height was when the 2007 Approval was discussed. To that point in the judgment, her Honour recorded that the 2007 Approval contemplated buildings of up to two, three and four storeys in height, depending on the part of the land where construction was to occur. After acknowledging that the subject development was much greater in scale than that contemplated in the 2007 Approval, her Honour held that it was not reasonable for the community to expect that the extent of development be limited to that contemplated under that approval because it was granted “about 12 years ago” and, furthermore, the community should reasonably expect that the land “might be developed for a more intensive form of development where it complies with the assessment benchmarks that apply at the time the development application is made and meets an identified need, as the proposed development does”. Beyond that, no specific finding about the local community’s expectations regarding height was made. In the result, all that can be said is that the primary judge expressed the view that the local community ought reasonably expect that a more intensive form of development (than that contemplated under the 2007 Approval) might be approved. Absent any finding as to the expectations of the local community regarding the height of buildings and structures, the reasonableness of the local community’s expectations in light of the planning provisions applying to the subject land could not be assessed, let alone compared to the actual proposal to determine whether the two were consistent. The failure to make such a finding was an error of law.

[46] Second, although the planning scheme may be regarded as a prima facie expression of what will constitute, in the public interest, the appropriate development of the land, there was in this case a credible source of evidence as to the expectations of the local community, and a substantial one at that. Indeed, the body of material from the local community in the form of submissions following the public notification process along with the evidence given at the hearing by residents may properly be regarded as the most direct expression of the expectations about which overall outcome (b) of s 8.2.8.2(2) is concerned. In any event, properly made submissions about the development formed part of the common material and, as such, the assessment was required to be carried out having regard to them. There were 11,666 such submissions and, of those, 9,288 (including 3,167 local residents) opposed the development. A large proportion of the opposing submission received were in a pro forma style but there were 16 different variations of those. The height of the proposed development was a recurring ground of objection in virtually all the opposing submissions that were placed before the primary judge. However, although her Honour acknowledged the strength of opposition to the proposal in a general way, no detailed analysis of the content of the submissions appears to have taken place. Indeed, the view seemed to be taken that any submission expressing opposition because of concerns about the height of the development was “out of step with the planning scheme when read as a whole” and was, for that reason, to be disregarded. This is of course the complaint made in support of the first proposed ground of appeal.

[47] The problem with such a broad-brush approach is two-fold because it overlooks the need to first determine what the expectations of the local community were concerning the height of any development and gives primacy to the planning scheme to such a degree that it set to nought the evidence sourced from the local community. The court was required to take that evidence into account as part of the common material but that did not occur because any opposition to the proposed development was seen to be trumped by the planning scheme. This was another error of law.”[317]

  1. [406]
    His Honour’s observations suggest that a three-step process is called for that involves:
    1. (a)
      first, a determination of the expectations of the local community;
    2. (b)
      second, an assessment of the reasonableness of those expectations considering the planning provisions applying to the subject land; and
    3. (c)
      third, after the reasonable expectations are identified by following the first two steps, consideration of the extent to which those expectations are consistent with the proposed development.
  2. [407]
    Recently, at my request, each of the parties provided further submissions addressing the issue of community expectations by reference to the decision of the Court of Appeal in Development Watch Inc v Sunshine Coast Regional Council & Anor.[318] 
  3. [408]
    As was observed by all the parties in their further written submissions, in Development Watch Inc v Sunshine Coast Regional Council & Anor[319] the issue of the reasonable expectations of the local community was raised by an assessment benchmark, namely the overall outcome in s 8.2.8.2 of the Height of building and structures overlay code.  That assessment benchmark stated:

“the height of the buildings and structures is consistent with the reasonable expectations of the local community”. 

  1. [409]
    No such provision is in issue in this case.  Further, in this case the issue of reasonable community expectations is not about a specific element or aspect of the development.  It is raised as a relevant matter for the purposes of s 45(5)(b) of the Planning Act 2016, and for the Court’s overall discretion under s 60(3). 
  2. [410]
    I have reservations about whether the absence of reference to “reasonable expectations of the local community” in an assessment benchmark limits the relevance of the Court of Appeal’s observations.  Nevertheless, it is not necessary to determine that issue in this case.  The result is the same regardless of whether I follow the approach called for in Development Watch Inc v Sunshine Coast Regional Council & Anor[320] or a less prescriptive approach as contended for by the parties.
  3. [411]
    In carrying out the assessment, the Court must have regard to the common material, which includes properly made submissions about the development application.  Each of the parties submitted that there were 84 properly made submissions, with 80 in support and four that were adverse. 
  4. [412]
    Exhibit 9.30 was tendered as an adverse submission from ACC’s workers.  Exhibit 9.31 was tendered as an adverse submission from ACC.  Exhibit 9.32 was tendered as an adverse submission from Wilmar.  Exhibit 9.33 was tendered on the basis that it contains the other properly made submissions.  It contains 81 submissions.  Of the 81 submissions in Exhibit 9.33, 80 were in support and one was adverse. [321] 
  5. [413]
    Many of the documents said to constitute the submissions had the name and address of the submitter removed, such that it is not possible to identify whether they were all from residents or workers in the local area.  Further, a list of the submitters with their addresses was not tendered.  Nevertheless, many of the submissions were expressed to be from people who lived or worked in the area.[322] 
  6. [414]
    Although the number of submissions to a development application is relevant, of greater significance is their substance.[323]  Further, while the submissions are relevant to the assessment process,[324] the extent to which they inform the assessment depends on their content and the basis upon which they are founded.[325]  As was observed by Carter DCJ in Indooroopilly Golf Club v Brisbane City Council & Ors:[326]

“… It is trite to observe that a valid objection has to be relevant, that is, not based on irrelevant considerations and has to be soundly based factually.”[327]

  1. [415]
    I have read and considered Exhibits 9.30, 9.31, 9.32 and 9.33.  They are the exhibits that all the parties rely on as evidence of the community’s expectations.
  2. [416]
    While most of the submissions in support were brief, they expressed support for the proposed development on the basis that the community would benefit from the choice and convenience that the facilities would provide to residents and workers of the area.[328] 
  3. [417]
    For example, one submitter states:

“I would like to support this application on the grounds that it will provide great local amenity to an ever expanding population centre that is getting more and more densely populated.

The populations of Hawthorne, Bulimba, Cannon Hill transit via Lytton Road heavily and it’ll be a perfect spot for these people as well as those travelling afar in to work in the area. …”[329]

  1. [418]
    Another says:

“I have lived in this area for 30 years and have been waiting for a new fitness centre that is clean, modern and has easy parking.  Bulimba, Morningside, Murrarie, Hawthorne are lacking such a facility.  What is available are small, dark gyms hidden in Industrial areas, dotted around the area with limited parking.

It is an exciting opportunity for the area which will promote the health and fitness of our community.”[330]

  1. [419]
    Other submissions in support refer to the benefits from the creation of jobs.[331]
  2. [420]
    The submissions in support of the proposed development reveal that the community expects to enjoy the benefit of a greater choice of indoor sport and recreation facilities than that which presently exists.  They also expect that such facilities will be provided at a location that is convenient for residents and workers of the area.  The proposed development is considered to meet those expectations.  However, for reasons already explained, the community’s expectation that their desire for greater choice of conveniently located indoor sport and recreation facilities should be met by the proposed development is generally not supported by City Plan. 
  3. [421]
    The submissions in support reference matters that have otherwise been considered as part of my analysis of the need for the proposed development.  The views expressed in the submissions accord with the opinions expressed by the economic experts about the community benefit associated with the proposed development and are relevant in that regard. 
  4. [422]
    Exhibit 9.30 is a petition objecting to the proposed development.  It is signed by 339 people.  The first page of the petition states:

“… The reasons for objection are:

  • Employment and Job Security: The gyms will threaten jobs in the surrounding industrial businesses.  These businesses rely on separation from uses that attract lots of people and visitors who otherwise would not normally be in an industrial area.  The surrounding businesses generally create noise, odour and other emissions and for this reason should not be close to places where people gather to exercise and socialise.  If these businesses cannot operate properly, they will be forced to close which would result in significant job losses at a time when unemployment levels across the country are so high.
  • Traffic: The gyms will add a significant amount of traffic on Lytton Road and Colmslie Road.  Both these roads already experience congestion and are not suitable for additional traffic from this type of use.
  • Safety: Large and heavy vehicles frequently use Lytton Road and Colmslie Road to service the surrounding industry area.  The gyms will bring a lot of people and cars to the area and will result is (sic) safety issues between people, cars and heavy vehicles.”
  1. [423]
    The concerns expressed in the petition reveals an expectation that the industrial businesses in the area will be protected from encroachment.  That expectation is reasonable, having regard to the provisions of City Plan to which I have already referred.  So too is the expectation that traffic generation issues and traffic safety issues will be appropriately managed.  I have already addressed the extent to which the proposed development accords with those reasonable expectations as part of my assessment of the proposed development with respect to those issues. 
  2. [424]
    The issues raised in the submission from ACC, Exhibit 9.31, and the submission from Wilmar, Exhibit 9.32, identify concerns about land use, traffic, and reverse amenity.  The submissions were detailed and explained the basis of the expectations of those entities.  They reflect the matters raised by those parties in the proceeding.  I have already addressed the reasonableness of their expectations, and the extent to which the proposed development accords with them, as part of my assessment of the proposed development with respect to those issues. 
  3. [425]
    As I have previously mentioned, one of the submissions in Exhibit 9.33 objected to the development.  It did so on the basis that it is inconsistent with the land use intent for the site; it will result in significant detrimental impacts on the function and efficiency of the road network; and it will have a detrimental impact on the site and surrounding industry zoned land to accommodate and operate as intended for industry and associated purposes.  The submission also said that the proposed development is inconsistent with the Strategic Framework, Industry Zone Code, River Gateway Neighbourhood Plan Code, Indoor Sport and Recreation Code, Road Hierarchy Overlay Code, Centre or Mixed Use Code and Transport, Access, Parking and Servicing Code of City Plan 2014.[332]  These issues are also already addressed.
  4. [426]
    In summary, while a significant segment of the community might expect development of the type proposed, it is not within their reasonable expectations as informed by City Plan.  As such, this is a matter that tells against approval.  However, the benefit sought by the community is also a relevant matter.  It is a matter that is supportive of an approval.  On balance, this issue does little to advance the case for approval or refusal as compared to the substantive issues that have already been addressed.

Should the development application be approved in the exercise of the planning discretion?

  1. [427]
    Whether an approval is in the public interest is a question of fact to be determined in the exercise of the planning discretion.  A planning decision, and the inherent balancing exercise it entails, is invariably complicated and multifaceted.[333] 
  2. [428]
    In Abeleda & Anor v Brisbane City Council & Anor,[334] Mullins JA (with whom Brown and Wilson JJ agreed) observed:

[42] The last sentence in the above quote in describing the process of decision-making that s 326(1)(b) of the SPA did not permit should not be treated as anticipating the process of decision-making under s 60(3) of the Act. The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.

[54] Subject to recognition that the Act has not changed the characterisation of a planning scheme as the embodiment of the community interest, I also agree with the observations of Williamson QC DCJ at [53]-[54] of Ashvan on the role of non-compliance with a planning scheme in the exercise of the planning discretion under s 60(3) of the Act:

[53] An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s 60(3) of the [Act]. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question. That question is no longer answered by a provision such as s 326(1)(b) of the SPA. It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s 60(3) of the [Act]. It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.

[54] In practical terms, the change to the statutory assessment and decision making framework may call for an assessment manager (or this Court on appeal) to reach a balanced decision in the public interest where two competing considerations are at play: (1) the need for the rigid application of planning documents on the one hand; as against (2) the adoption of a flexible approach to the application of planning documents to, inter alia, exercise the discretion in a manner that advances the purpose of the [Act].”[335]

  1. [429]
    In its written submissions, Wilmar places emphasis on findings made by this court in Adpen Pty Ltd v Moreton Bay Regional Council & Anor.[336]  The findings that are emphasised should be approached with caution considering the Court of Appeal’s decision in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors[337] (“Trinity Park”).  In that case, the Court of Appeal considered an argument, by Dexus Funds Management Limited and Trinity Park Investments Pty Ltd, about cases they referred to as the “trilogy”, namely Bell v Brisbane City Council & Ors,[338] Gold Coast City Council v K & K (GC) Pty Ltd[339] and Redland City Council v King of Gifts (Qld) Pty Ltd.[340]  Trinity Park Investments Pty Ltd argued that although the trilogy of cases were decided in the context of s 326(1)(b) of the Sustainable Planning Act 2009, the Planning Act 2016 does not legislate a departure from principles stated in the trilogy of cases, which were said to have a long history in planning law jurisprudence.  Trinity Park Investments Pty Ltd submitted that unless there is a matter of public interest that overrides the public interest in maintaining a planning scheme, the need for a particular form of development should be met on a site that does not give rise to a conflict with the planning scheme.  To approach the assessment otherwise was argued to be an error of law.
  2. [430]
    In considering the argument, the Honourable Justice Brown, with whom the Honourable Justices of Appeal Philippides and Mullins agreed, observed:

[178] The decision of Ashvan Investments Unit Trust v Brisbane City Council, the trilogy and the approach to be adopted in light of s 60 of the Planning Act was recently considered by this Court in the decision of Abeleda v Brisbane City Council. Mullins JA provided the leading judgment. While the approach set out in the trilogy of cases still has relevance under the Planning Act particularly the fact, as stated by McMurdo JA, that “a planning scheme must be accepted as a comprehensive expression of what will constitute in the public interest the appropriate development of land,” in other respects the approach now to be adopted is quite different. As her Honour carefully set out in her judgment, s 60(3) of the Planning Act no longer incorporates what was described as the two step test and it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved.

[179] For the reasons set out by Mullins JA set out in Abeleda, the statements of Sofronoff P, Philippides JA and McMurdo JA and in the trilogy of cases referred to in paragraphs 20 and 21 of the submissions of TPI that it is necessary to demonstrate that it is in the public interest it is necessary to override the scheme as it applies to the land, no longer represent the approach to be adopted under s 45 and s 60 of the Planning Act. As her Honour at [42] stated:

“…..The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any noncompliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.””[341]

  1. [431]
    The relevant principles, and an appropriate explanation of the approach to be taken, are contained in the Court of Appeal authorities referred to in paragraph [12] above.
  2. [432]
    For reasons explained above, the case for refusal is of significant force.  The proposed development is contrary to the strongly expressed planning intention to preserve and protect land in the Major Industry Area from encroachment by non-industrial use and to prioritise and maximise its use for industrial purposes.  In that respect, the proposed development does not accord with numerous assessment benchmarks. 
  3. [433]
    As was observed by His Honour Judge Williamson QC in I B Town Planning v Sunshine Coast Regional Council:[342]

[288] The non-compliances with the planning scheme, whilst established, still need to be examined having regard to the circumstances of the case. To do otherwise would ignore that: (1) planning schemes are not immutable; (2) non-compliance with a planning scheme is not to be regarded as binary; and (3) it should not be assumed that every non-compliance with a planning scheme warrants refusal of a development application. These matters collectively confirm what should be regarded as well-settled, namely, it is necessary to examine the nature and extent of any non-compliance with an adopted planning control to determine how, and in what way, it impacts upon the exercise of the planning discretion.”

  1. [434]
    Ordinarily, one would expect the planning intentions relevant to the inclusion of the subject land in the Industry zone would be given their full force and effect, given the planning scheme is often regarded as an embodiment of the public interest.  Further, the planning strategy at play in this case is important as it relates to protection of strategic industrial land that is in limited supply.  In those circumstances, the identified non-compliances with the assessment benchmarks weigh heavily against approval of indoor sport and recreation uses on the subject land.  However, the broad evaluative judgment called for by the legislation requires consideration of other relevant matters.
  2. [435]
    In this case, the relevant matters include, but are not limited to, the fact that the existing building on the subject land presents an opportunity to provide a facility that will support industrial workers and residents of the local area.  The proposed development utilises that opportunity in a manner that does not result in adverse town planning impacts that cannot otherwise be appropriately addressed by the imposition of conditions.  Given the approval is limited in duration, and within an existing building approved for uses encouraged in the Industry zone, the approval of the proposed development will not disrupt the economic benefits that may be attained in the future from development of the subject land in a manner that is consistent with its inclusion in the Industry zone. 
  3. [436]
    On balance, I am satisfied that, taken in combination, all the matters identified throughout my reasons for judgment above that tell against approval should not stand in the way of an approval given the considerations that I have identified that support approval.  Taken in combination, the matters that support approval are compelling.  They persuade me that the proposed development is meritorious and should be approved, subject to the imposition of conditions that require the proposed development to:
    1. (a)
      cease operation within two years from the date on which the approval takes effect; and
    2. (b)
      limit the patrons to no more than 300 at any one time.

Conclusion

  1. [437]
    Rivermakers has discharged the onus.
  2. [438]
    In due course, the appeals will be dismissed, and the Council’s decision changed to a development approval that includes conditions addressing the matters identified in paragraph [436] above. 
  3. [439]
    I will adjourn the appeal to 8 July 2022 to allow the parties to prepare the necessary suite of conditions.  To facilitate that course, I direct as follows:
  1. By 4 pm on 17 June 2022, the respondent is to provide the other parties with a draft suite of conditions.
  2. By 4 pm on 1 July 2022, each of the appellants and the co-respondent is to notify the other parties, in writing, of its position with respect to the draft suite of conditions.
  3. The appeal be listed for review at 9 am on 8 July 2022.

Footnotes

[1]  Exhibit 2.4 p 6 [19].

[2]Planning and Environment Court Act 2016 s 47.

[3]Planning and Environment Court Act 2016 s 43.

[4]Planning and Environment Court Act 2016 s 45.

[5]Planning and Environment Court Act 2016 s 47; Planning Act 2016 s 60(3).

[6]Planning Act 2016 ss 45 and 59.

[7]  City Plan is a local categorising instrument: Planning Act 2016 s 43.  Version 18 of City Plan was the categorising instrument for the development in effect when the development application was properly made on 29 April 2020.  It was impact assessable.  See Exhibit 11.4 p 2 [1]. 

[8]Planning Act 2016 ss 43 and 45(5)(a)(i) and Planning Regulation 2017 (Qld) ss 30(2) and (3).

[9]Planning Act 2016 s 45(5)(a)(ii) and Planning Regulation 2017 s 31(1)(d)(i) and (2).

[10]Planning Regulation 2017 s 31 and sch 24.

[11]  [2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].

[12]  [2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].

[13]  [2020] QCA 253.

[14]  [2020] QCA 257.

[15]  [2020] QCA 273.

[16]  [2021] QCA 95.

[17]  The issue identified in paragraph 16 of Exhibit 9.60 was withdrawn by Wilmar.  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 20 September 2021) 11. 

[18]  This will address issues 8, 10, 12, and 21 from Exhibit 9.60.

[19]  This will address issue 21 from Exhibit 9.60.

[20]  This will address issue 13 from Exhibit 9.60.

[21]  This will address issue 17 from Exhibit 9.60.

[22]  This will address issue 14 from Exhibit 9.60.

[23]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 4.  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 20 September 2021) 9 and 11.  Submissions of the Appellant Wilmar Trading (Australia) Pty Ltd p 7 [19]. 

[24]  I consider the concession to be tantamount to an admission in a pleading. 

[25]  Exhibit 12.7.

[26]Lifnex Pty Ltd and Oil Recyclers Australia Pty Ltd v Ipswich City Council [1998] QPELR 517, 518; Clermont Quarries Pty Ltd v Isaac Regional Council [2020] QPEC 18; [2021] QPELR 65, 111 [183]; Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33, [238]-[239].

[27]  Written submissions of the Co-Respondent pp 2 – 3 [6].

[28]  City Plan s 6.1 1.

[29]  The building in which the subject site is located is wholly within the General industry A precinct of the Industry zone: Exhibit 2.02 p 19 [81].

[30]  City Plan s 6.1 4.

[31]  Written Submissions of the Co-respondent p 3 [6(b)].

[32]  City Plan s 6.2.5.2 1.a.

[33]  City Plan s 6.2.5.2 1.b.

[34]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 October 2021) 11. 

[35]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 October 2021) 13. 

[36]  City Plan s 6.2.5.2 4.

[37]  City Plan s 6.2.5.2 2.

[38]Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council & Anor [2018] QPEC 52; [2019] QPELR 221, 226 [9].

[39]  Written Submissions of the Co-respondent p 22 [63] and p 29 [98]; Written Submissions of the Respondent p 21 [119].

[40]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 17. 

[41]  Exhibit 11.4 p 2.

[42]  City Plan s 7.2.18.3.2 1.

[43]  City Plan s 7.1 4.

[44]  Written Submissions of the Co-respondent p 3 [6(c)].

[45]  City Plan s 7.2.18.3.2 2.

[46]Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58] and cases cited therein.

[47]  City Plan s 7.2.18.3.2 4.a.

[48]  City Plan s 7.2.18.3.2 4.b.

[49]  City Plan s 7.2.18.3.2 4.g.

[50]  City Plan s 7.2.18.3.2 5.a.

[51]  City Plan s 7.2.18.3.2 6.a.

[52]  City Plan ss 7.2.18.3.2 6.f. to k.

[53]  City Plan s 7.2.18.3.2 6.i.

[54]  City Plan s 7.2.18.3.2 6.j.

[55]  City Plan s 7.2.18.3.2 8.

[56]  See also ACC’s Outline of Submissions pp 19-21 [61]-[65].  At face value, there is force to these submissions.  To support its assertions with respect to the underlying zones, ACC points to exhibit 9.70.  That is no more than someone’s opinion (apparently someone from Reel Planning) about the underlying zones.  Mr Ovenden was not challenged about the accuracy of the document.  If it were inaccurate, I would have expected the Council to take issue with the basis of the tender of the document.  It did not.  See Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 22 September 2021) 56.  In any event, it is unnecessary for me to rely on this evidence, or to ultimately adopt or reject ACC’s submissions, given my findings above.

[57]  See Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 24 September 2021) 18-9.  

[58]  City Plan s 3.1 1.

[59]  City Plan s 3.1 3.

[60]  Exhibit 11.4 p 2.

[61]  See also City Plan ss 3.3.1 1.f. and i.

[62]  City Plan s 6.2.5.2 7.b.

[63]  See paragraphs [185] to [201] below.

[64]  ACC’s Outline of Submissions p 27 [85].

[65]  See City Plan s 9.3.11.3 – performance outcome PO1 and acceptable outcomes AO1.1 and AO1.2.

[66]  See City Plan s 9.3.11.3 – performance outcome PO3 and acceptable outcome AO3.

[67]  Exhibit 2.02 p 33 [151].

[68]  Written submissions of the Co-respondent p 2 [6(a)].

[69]  South East Queensland Regional Plan p 152.

[70]  South East Queensland Regional Plan p 152.

[71]  South East Queensland Regional Plan p 104.

[72]  South East Queensland Regional Plan p 56.

[73]  South East Queensland Regional Plan p 61.

[74]  South East Queensland Regional Plan p 36.

[75]  South East Queensland Regional Plan p 36.

[76]  South East Queensland Regional Plan pp 111-2.

[77]  Exhibit 11.9.

[78]  Exhibit 2.2 p 45.

[79]  Exhibit 6.2 p 22.

[80]  Exhibit 2.2 p 9 [28].

[81]  I have disregarded the uses in the other existing buildings on the subject land and the commercial uses observed on nearby land about which the town planning experts doubt in terms of their lawfulness.  As  is agreed by the town planners, reliance should not be placed on unlawful uses.

[82]  Exhibit 6.2 pp 22 and 376.

[83]  Exhibit 2.2 p 12 [47].

[84]  Exhibit 2.2 p 11 [46].

[85]  Exhibit 6.2 p 376.

[86]  Exhibit 6.2 pp 22-375.

[87]  Exhibit 2.2 p 23 [98].

[88]  Exhibit 2.2 p 24 [103].

[89]  Exhibit 2.2 p 24 [104].

[90]  Exhibit 2.2 p 28 [124]-[127].

[91]  Exhibit 2.2 p 28 [128].

[92]  Exhibit 2.2 p 29 [132].

[93]  Exhibit 2.2 p 29 [134].

[94]  Exhibit 2.2 p 30 [136].

[95]  Exhibit 2.2 p 30 [136].

[96]  Exhibit 2.2 p 30 [139].

[97]  Exhibit 2.2 p 25 [110].

[98]  Exhibit 2.2 p 27 [121].

[99]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 October 2021) 44. 

[100]  Exhibit 3.2 p 8 [59].

[101]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 50.

[102]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 50-1.

[103]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 51.

[104]  Exhibit 3.2 p 9 [61]-[62], p 75 and p 175; Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 51-3 and 75-6.

[105]  See chp 6, pt 3, div 3 of the Planning Act 2016.

[106]  Exhibit 3.2 p 17 [113], p 18 [116], and p 330; Exhibit 12.13; Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 51-6 and 74-5.

[107]  Exhibit 3.2 p 16 [103]-[105]; Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 57-58 and 66.

[108]  Exhibit 3.2 pp 259-61; Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 58.

[109]  Exhibit 12.23.

[110]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 51.

[111]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 24 September 2021) 5-7.

[112]Planning and Environment Court Rules 2018 (Qld) rr 4 and 27(e) (current as at 13 May 2019); Uniform Civil Procedure Rules 1999 (Qld) r 426 (current as at 18 February 2021);

[113]  [1993] 2 Lloyd's Rep 68, 81–2.

[114]  [2001] NSWCA 305; (2001) 52 NSWLR 705, 739-40 [79].

[115]  Current as at 13 May 2019.

[116]FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33; Collins Thomson Pty Ltd (in liq) v Clayton [2002] NSWSC 366; Insight Projects (Qld) Pty Ltd v Hervey Bay City Council [2007] QPEC 109; [2008] QPELR 321, 322 [5]; Newman & Ors v Brisbane City Council & Ors [2011] QPEC 87; [2011] QPELR 786, 809 [56].

[117]  Exhibit 2.2 p 25 [110].

[118]  Exhibit 3.1.

[119]  Current as at 13 May 2019.

[120]  See, for example, Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 54.

[121]  Exhibit 3.1 pp 45-6.

[122]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 73-4.

[123]  My reasons for not accepting the assumptions are explained by my findings through these reasons.

[124]  Exhibit .2 p 9 [23].

[125]  Exhibit 2.1 p 4 [4.2]-[4.3].

[126]  Exhibit 5.1 p 3 [2.0.12].

[127]  Exhibit 11.8.

[128]  Footnotes omitted. 

[129]  Exhibit 2.2 p 28 [128(d)], p 31 [143], p 33 [152], p 36 [177(d)]; Exhibit 5.1 p 4 [2.0.14]; Exhibit 6.2 p 6 [39] and Attachment D.

[130]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 24 September 2021) 60.  Mr Ovenden also accepted this general proposition: see Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 24 September 2021) 38. 

[131]  Exhibit 7.1 p 191.

[132]  See paragraphs [185] to [201] and [202] to [258] below.

[133]  Exhibit 2.2 p 24 [102]; Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 22 September 2021) 66.

[134]  Exhibit 2.2 p 28 [128].

[135]  Exhibit 2.2 p 29 [134(c)].

[136]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 29 July 2021) 36. 

[137]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 73. 

[138]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 20 September 2021) 22. 

[139]  Exhibit 4.4 p 13 [55].

[140]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 72. 

[141]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 8.

[142]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 35.

[143]Moule & Ors v Cambooya Shire Council; Breydon v Cambooya Shire Council & Ors [2003] QPEC 29; [2004] QPELR 12, 14 [12].

[144]  Exhibit 2.5 p 33 [119].

[145]  That is not to say that the attraction of non-worker custom is not otherwise relevant.  It is relevant to issues such as impacts of the proposed development.

[146]  Exhibit 2.2 p 33 [151].

[147]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 5-6. 

[148]  Exhibit 2.2 p 28 [128(a)].

[149]  Exhibit 2.5 p 71 [367].

[150]  Exhibit 2.5 p 71 [367].

[151]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 24 September 2021) 54. 

[152]  Exhibit 2.2 pp 34-5 [165]; Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 24 September 2021) 61. 

[153]  Exhibit 6.7 p 15 [3.20].

[154]  Submissions of the Appellant Wilmar Trading (Australia) Pty Ltd p 43 [148(d)].

[155]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 24 September 2021) 41-2.

[156]Body Corporate for Lindor Community Title Scheme 29204 and Planit Consulting Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 54; [2018] QPELR 265, 295-6 [125]; McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42, [49]. 

[157]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 56-7.

[158]Planning Act 2016 s 45(5)(b); Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271, [29]-[31].  For examples where the Court refused an approval, or a change to an approval, despite financial outlay by the proponent, see Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33 and GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33; [2018] QPELR 1079.

[159]  [1973] 2 All ER 26; [1973] 1 WLR 560; 71 LGR 273, 25 P & CR 268.

[160]J Murphy & Sons Ltd v Secretary of State for the Environment [1973] 2 All ER 26, 30-1 (emphasis added).

[161]  Exhibit 2.2 p 28 [129].

[162]  See paragraphs [185] to [201] and [202] to [258] below.

[163]  See ACC’s Outline of Submissions p 28 [88].

[164]  Exhibit 1.3 [16].

[165]  Exhibit 2.1 p 5 [4.10].

[166]Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2017] QPEC 23; [2017] QPELR 530, 551 [72] and 553 [76]. 

[167]  Exhibit 2.1 pp 5-6 [4.10].

[168]  Exhibit 2.1 pp 5-6 [4.10].

[169]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 22 September 2021) 38. 

[170]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 22 September 2021) 40-1. 

[171]  Exhibit 6.5 p 3 [5.2].

[172]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 22 September 2021) 42. 

[173]  Exhibit 6.5 pp 11-2 [6.13].

[174]  Exhibit 11.4 p 2.

[175]  Exhibit 1.5 p 4.

[176]  The undesirability of this type of conduct has been the subject of comment from this Court on many occasions.  It is inconsistent with parties’ obligations under s 10 of the Planning and Environment Court Act 2016

[177]  [1995] QPLR 41.

[178]Jedfire Pty Ltd v Council of the City of Logan & Anor [1995] QPLR 41, 43 (emphasis added).

[179]  Exhibit 11.4 p 2.

[180]  Exhibit 2.3 p 9 [31]-[33].

[181]  Exhibit 2.3 p 33 [138].

[182]  Exhibit 2.3 p 15 [60]-[61].

[183]  Exhibit 2.3 p 19 [80].

[184]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 September 2021) 4-5. 

[185]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 September 2021) 4. 

[186]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 September 2021) 50.

[187]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 September 2021) 56.

[188]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 22 September 2021) 15-6. 

[189]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 September 2021) 4. 

[190]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 September 2021) 56-62 and 69-72. 

[191]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 20 September 2021) 11`4. 

[192]  Exhibit 5.2 p 10 [29].

[193]  Exhibit 6.4.

[194]  Exhibit 2.3 p 24 [99].

[195]  Exhibit 2.3 pp 26-7 [109].

[196]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 21 September 2021) 80-1. 

[197]  Chapter 3, Part A, Goal 2: Prosper, Element 1, Strategy 3 of the South East Queensland Regional Plan.

[198]  Chapter 3, Part A, Goal 3: Connect, Element 1, Strategy 1 of the South East Queensland Regional Plan.

[199]  Chapter 3, Part A, Goal 3: Connect, Element 1, Strategy 3 of the South East Queensland Regional Plan.

[200]  City Plan specific outcome SO5 in Table 3.3.3.1.

[201]  Exhibit 1.3 and Exhibit 1.5.

[202]  Exhibit 2.3 p 31 [131] and pp 41-5.

[203]  Exhibit 2.3 p 31 [132].

[204]  Exhibit 2.3 p 31 [133].

[205]  Exhibit 2.3 p 31 [134].

[206]  Exhibit 2.3 p 44.

[207]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 22 September 2021) 67-70.

[208]  Exhibit 9.34.

[209]Planning and Environment Court Act 2016 s 43.

[210]Planning and Environment Court Act 2016 s 46(2); Planning Act 2016 s 45(7).

[211]Planning and Environment Court Act 2016 s 46(2); Planning Act 2016 s 45(8).

[212]Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; [2021] QPELR 518, 563 [176].

[213]Iverach v Cardwell Shire Council & Anor [2006] QEC 114; [2007] QPELR 196, 203 [49]; K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; [2021] QPELR 518, 563-4 [176]-[180], 573 [225].

[214]Planning Act 2016 s 23(3).

[215]Planning Act 2016 s 23(7).

[216]Planning Act 2016 s 8(4)(d).

[217]Planning Act 2016 s 8(4)(b).

[218]  Exhibit 9.34.

[219]Planning Act 2016 s 27.

[220]  Submissions of the Appellant Wilmar Trading (Australia) Pty Ltd p 77 [270(d)].

[221]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 23 September 2021) 73-4.

[222]Planning Act 2016 s 230(3)(f); Planning and Environment Court Act 2016 s 39.

[223]  There was no objection to the tender of the document.

[224]  Exhibit 9.34 pp 3-4.

[225]  Exhibit 9.34 p 4 s 3.2.

[226]  Exhibit 9.34 p 4.

[227]  Exhibit 9.34 pp 6-7 (emphasis added).

[228]Planning Act 2016 s 8.

[229]Brown v Logan City Council [2019] 3 Qd R 355, 370-1 [64] citing Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130, 139 [21] and the general principles of statutory construction explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 379-80 [60], 381 [69].

[230]  (1957) 2 LGRA 117.

[231]Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, 125-6.

[232]  [2020] QCA 253; [2021] QPELR 987.

[233]Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, 993-4 [21]-[24] (footnotes omitted).

[234]  [2020] QCA 253; [2021] QPELR 987.

[235]  [2020] QCA 253; [2021] QPELR 987.

[236]  This will address issues 8, 10, 12, and 21 from Exhibit 9.60.

[237]  This will address issue 21 from Exhibit 9.60.

[238]  This will address issue 13 from Exhibit 9.60.

[239]  This will address issue 17 from Exhibit 9.60.

[240]  This will address issue 14 from Exhibit 9.60.

[241]  [2003] QPEC 2; [2003] QPELR 414.

[242]  [2003] QPEC 2; [2003] QPELR 414, 418 [21].

[243]Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 419-20 [29].

[244]Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 417-8 [20].

[245]Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 [22].

[246]Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [19]-[21].

[247]Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [20].

[248]Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 419 [28].

[249]  [2020] QCA 257.

[250]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [51].

[251]  Exhibit 2.5 pp 22-30.

[252]  Exhibit 2.5 p 22 [72].

[253]  The experts referred to it as the “TotalFusion” concept.  This reflects the fact the components of the proposed development reflect that delivered at other TotalFusion gymnasiums in Brisbane and there is apparently commitment from TotalFusion to operate the proposed development.

[254]  Exhibit 2.5 pp 22-30 [70] – [103].

[255]  Exhibit 2.5 p 32 [114].

[256]  Exhibit 2.5 p 32 [115].

[257]  Exhibit 2.5 p 31 [104].

[258]  Exhibit 2.5 p 32 [108].

[259]  Exhibit 2.5 p 32 [109].

[260]  Exhibit 2.5 pp 32-3 [116]-[117].

[261]  Exhibit 2.5 pp 40-1 [168]-[170], [174]-[176] and [181].

[262]  Exhibit 2.5 p 74 [389]; Exhibit 6.7 p 16 [3.24].

[263]  Exhibit 2.5 p 30 [103(c)].

[264]  Exhibit 2.5 p 29 Tales 8.5 and 8.6; Exhibit 6.7 pp 4-7 [2.4]-[2.26] and pp 9-12.

[265]  Exhibit 2.5 p 38 [148].

[266]  Exhibit 2.5 p 38 [148]-[150].

[267]  Exhibit 2.5 p 39 [151]-[153].

[268]  Exhibit 2.5 p 38 [142]-[144].

[269]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 29 July 2021) 50-1. 

[270]  Exhibit 2.5 p 39 [154]-[160]; Exhibit 6.7 pp 13-4 [3.8]-[3.11].

[271]  Exhibit 2.5 p 35 [132].

[272]  Exhibit 2.5 p 45 [198] and p 74 [392].

[273]  Exhibit 2.5 p 43.

[274]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 16-30. 

[275]  They are detailed in the Written Submissions of the Co-Respondent pp 56-8 [205]-[210].

[276]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 32. 

[277]  Exhibit 2.5 p 44 [192].

[278]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 67. 

[279]  Exhibit 4.4 pp 9 [31]-[32].

[280]  Exhibit 6.7 p 14 [3.14] and pp 17-8.

[281]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 12-32. 

[282]  Exhibit 2.5 p 38 [149] and p 41 [172] and [178]; Exhibit 4.4 p 6 [22(b)]..

[283]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 33 and 66.

[284]  Exhibit 2.5 p 41 [183]; Exhibit 6.7 p 15 [3.18]-[3.20].

[285]Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 687; Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 [22].

[286]  Exhibit 2.5 p 70 [361]-[363].

[287]  Exhibit 2.5 pp 74-5 [393]; Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 30 July 2021) 33.  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 20 September 2021) 21-2.

[288]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 29 July 2021) 35.

[289]  Exhibit 2.5 p 71 [366].

[290]  Exhibit 2.5 p 72 [370].

[291]  Footnotes omitted.

[292]  [2021] QPEC 18, [185] and [197].

[293]  [2019] QPEC 46; [2020] QPELR 328, 413 [469] and 419 [508].

[294]Sellars Holdings Ltd v Pine River Shire Council [1988] QPLR 12, 15.

[295]  Exhibit 12.7.

[296]  Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 20 September 2021) 28; Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 24 September 2021) 57.

[297]  Footnotes omitted.

[298]  Exhibit 2.2 p 39 [194]; Transcript of Proceedings, Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor (Planning and Environment Court of Queensland, 3451 of 2020 and 23 of 2021, Kefford DCJ, 24 September 2021) 26 and 52.

[299]  This will address issue 17 from Exhibit 9.60.

[300]  Exhibit 1.3, ACC’s Reasons for Refusal, [20].

[301]  (1980) 145 CLR 485, 505 (Stephen J).

[302]Westfield Limited v Stockland (Construction) Pty Ltd [2002] QPELR 542, [31].

[303]  Exhibit 3.2, Lee Statement of Evidence, [72]-[73], [90], [95], Exhibit TJL-1, Document No K, P.

[304]  Exhibit 3.2, Lee Statement of Evidence, [71].

[305]  Exhibit 3.2, Lee Statement of Evidence, [91]-[94], [96].

[306]  Exhibit 3.2, Lee Statement of Evidence, Exhibit TJL-1, Document No P, p.227.

[307]  Consistent with the decision of this Court in Trowbridge v Noosa Shire Council [2018] QPEC 7 at [14]-[21].

[308]  Exhibit 1.3, ACC’s Reasons for Refusal, [22].

[309]  [2003] QCA 203, [17] (de Jersey CJ, with whom Williams JA and Wilson J agreed).

[310]  [2003] QCA 203, [20].

[311]  [2003] QCA 231, [21].

[312]Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2001] QPELR 191 at 195, [18]; Harris v Scenic Rim Regional Council (2014) 201 LGERA 12 at [244].

[313]  Exhibit 1.3 p 5 [21].

[314]  Exhibit 1.5 p 6 [3].

[315]  Submissions of the Appellant p 96 [335].

[316]  [2022] QPEC 6.

[317]Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QPEC 6, [43], and [45]-[47] (footnotes omitted).

[318]  [2022] QPEC 6.

[319]  [2022] QPEC 6.

[320]  [2022] QPEC 6.

[321]  There was no opposition to the tender of the documents on that basis and I will assume that the documents are what they are said to be.

[322]  See, for example, Exhibit 9.33 pp 1, 3, 8, 9, 10, 13, 15, 16, 19, 20, 24, 25, 28, 34, 36, 37, 61, 62, 63, 64,

[323]K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, 407 [2].

[324]Planning Act 2016 s 45.

[325]Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64; [2015] QPELR 203, 240-1 [174]-[178]; Indooroopilly Golf Club v Brisbane City Council & Ors (1982) QPLR 13, 39.

[326]  (1982) QPLR 13.

[327]Indooroopilly Golf Club v Brisbane City Council & Ors (1982) QPLR 13, 39.

[328]  See, for example, Exhibit 9.33 pp 2, 4, 5, 6, 7, 9, 10, 11, 13, 15, 24, 25, 29, 30, 39, 53, 61, 62, 72,

[329]  Exhibit 9.33 p 8.

[330]  Exhibit 9.33 p 10.

[331]  See, for example, Exhibit 9.33 pp 17, 21, 76, 82.

[332]  Exhibit 9.33 pp 77-9.

[333]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 808 [60].

[334]  [2020] QCA 257.

[335]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [42] and [54] (emphasis added).

[336]  [2019] QPEC 59; [2020] QPELR 732.

[337]  [2021] QCA 95.

[338]  [2018] QCA 84; (2018) 230 LGERA 374.

[339]  [2019] QCA 132; [2020] QPELR 631; (2019) 239 LGERA 409.

[340]  [2020] QCA 41.

[341]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95, [176].

[342]  [2021] QPEC 36, [288] (citations omitted).

Close

Editorial Notes

  • Published Case Name:

    Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor

  • Shortened Case Name:

    Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor

  • MNC:

    [2022] QPEC 16

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    03 Jun 2022

Appeal Status

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