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Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council[2022] QPEC 22

Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council[2022] QPEC 22

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22

PARTIES:

ASHANTI LOGISTICS PTY LTD (ACN 148 885 803)

(Appellant)

v

SUNSHINE COAST REGIONAL COUNCIL

(Respondent)

FILE NO/S:

795 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

7 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18, 19, 20 and 22 October 2021, and further written submissions and further evidence received 20 December 2021

JUDGE:

Kefford DCJ

ORDER:

I order:

1. the appeal is allowed;

2. the decision of the Sunshine Coast Regional Council made on 9 March 2021 in respect of the development application for a development permit for a material change of use for a service station in respect of land at 51 Roderick Street and 19 Buccleugh Street, Moffat Beach, properly described as Lots 16, 31 and 32 on RP 81828 and Lot 1 on RP 132680, and notified in the negotiated decision notice dated 17 March 2021, is set aside; and

3.  that decision is replaced with a decision to approve the development application subject to the conditions contained in Annexure A of Exhibit 9.20.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – CONDITIONS – DEVELOPMENT APPLICATION – where the Council approved development of land for a service station – where a condition required the operating hours of the service station to be limited to 6 am to 10 pm, Monday to Sunday – whether the conditions imposed by the Council are lawful – whether conditions should be imposed in the exercise of discretion

LEGISLATION:

Planning Act 2016 (Qld), ss 59, 60, 65

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

Planning Regulation 2017 (Qld), s 31, sch 24

CASES:

AAD Design Pty Ltd v Brisbane City Council & Anor [2012] QCA 44; [2013] 1 Qd R 1, applied

Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, approved

Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; [1970] 123 CLR 490, applied

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, applied

Australian Capital Holdings Pty Ltd v Mackay City Council & Ors [2008] QCA 157, applied

Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, applied

Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, applied

Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, followed

Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 58 ALJR 386; (1984) 54 LGRA 110, applied

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

Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334, applied

Intrapac Parkridge Pty Ltd v Logan City Council [2014] QPEC 48; [2015] QPELR 49, approved

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

Lewiac Pty Ltd & ING Real Estate Joondalup BV v Gold Coast City Council & Ors [2003] QPELR 385, approved

Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, applied

Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2014] QCA 210; [2015] QPELR 68, applied

Pike v Tighe [2018] HCA 9; (2018) 262 CLR 648, applied

Proctor v Brisbane City Council (1993) 81 LGRA 398, applied

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

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, applied

Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPELR 337, approved

Wise v Maroochy Shire Council [1999] 2 Qd R 566, applied

Wootton v Woongarra Shire Council [1986] QPLR 122; (1985) 56 LGRA 301, applied

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

COUNSEL:

A Skoien and L Walker for the Appellant
D Whitehouse and T Stork for the Respondent

SOLICITORS:

HWL Ebsworth for the Appellant
Sunshine Coast Regional Council Legal Service for the Respondent

TABLE OF CONTENTS

Introduction4

What does the proposed development entail?5

What is the condition that is in dispute?5

What is the relevant framework for the decision?6

What are the issues in dispute?8

Is condition 5 reasonably required?10

What are the relevant assessment benchmarks?10

What is the existing amenity of the local area?15

What are the features of the subject land and the existing lawful use?15

What are the attributes of the location and context of the proposed development?16

What was the evidence of the residents about the existing amenity of the local area?17

What was the evidence of the experts about the existing amenity of the local area?18

Is the noise impact of the proposed development acceptable?20

Is the lighting and glare impact of the proposed development acceptable?25

Conclusion regarding whether condition 5 is reasonably required?26

Is condition 5 relevant and not an unreasonable imposition?27

What are the relevant assessment benchmarks?27

Is condition 5 relevant to ensuring the amenity of the planned residential area is protected?30

Is condition 5 relevant to ensuring the proposed development only serve the local level

convenience needs of residents and visitors in the immediate area?32

Is condition 5 justified by those assessment benchmarks relevant to consistency of a

service station use on the subject land?32

Is condition 5 justified because of the scale or intensity of the proposed development

or its likely function?33

Is condition 5 an unreasonable imposition?38

Conclusion regarding whether condition 5 is relevant and not an unreasonable imposition?39

Should condition 5 be imposed in the exercise of discretion?39

Conclusion40

Introduction

  1. [1]
    On the north-eastern corner of the signalised intersection of Buccleugh Street and Roderick Street in Moffat Beach, there is a service station.  It has been there since 1975.  It replaced a service station that operated at the location from at least 4 May 1958.  The existing service station and associated vehicle workshop are constructed over three lots that have the street address of 51 Roderick Street.  The service station is an existing lawful use that is unconstrained in its hours of operation. 
  2. [2]
    The Appellant, Ashanti Logistics Pty Ltd (“Ashanti Logistics”) wants to demolish the existing structures and replace them with a modern service station building.  The proposed tenant for the service station is 7-Eleven, which is a well-known operator of 24-hour service stations with convenience retail facilities.  The redevelopment is proposed to use additional adjacent land, located at 19 Buccleugh Street, which is currently improved by a single storey detached house.
  3. [3]
    Ashanti Logistics applied to Sunshine Coast Regional Council (“the Council”) for permission to redevelop four lots comprising the service station at 51 Roderick Street and the house at 19 Buccleugh Street, being land more particularly described as Lot 1 on RP 132680 and Lots 16, 31 and 32 on RP 81828 (“the subject land”).  On 17 March 2021, the Council gave Ashanti Logistics a negotiated decision notice in which the Council notified its decision to grant a development permit for a material change of use for a service station for the subject land. 
  4. [4]
    On 8 April 2021, Ashanti Logistics commenced this appeal, in which it challenges the imposition of conditions relating to hours of operation, design, landscaping and roadworks.  Ashanti Logistics and the Council have resolved their dispute about most of the conditions.  The only remaining condition in dispute relates to the limit on the hours of operation.

What does the proposed development entail?

  1. [5]
    The proposed redevelopment of the subject land involves:
    1. (a)
      the construction of a new service station shop (convenience retail) on Lot 1, with a gross floor area of 194 square metres, with floor space for the display of retail products limited to 150 square metres;
    2. (b)
      a fuel canopy and re-fuelling area with three re-fuelling islands and a total of six bowsers (fitted with stage two vapour recovery) served by two underground storage tanks, filling points and fuel vents;
    3. (c)
      a delivery and refuse bay for the delivery of goods and collection of refuse along with an enclosed refuse storage area adjoining the proposed service station shop;
    4. (d)
      an undercover outdoor seating area adjacent to Buccleugh Street;
    5. (e)
      nine on-site car parking spaces and two motorcycle parking spaces;
    6. (f)
      dedicated pedestrian access to Buccleugh Street;
    7. (g)
      vehicular access by way of the existing driveway crossovers to Buccleugh Street and Roderick Street, with movements to be left in and left out to Buccleugh Street and all movements to Roderick Street; and
    8. (h)
      landscaping to the boundaries of the subject land, comprising 332 square metres or 18.75 per cent of the total area of the subject land.[1]
  2. [6]
    Ashanti Logistics also seeks to have 24-hour operation, with deliveries by medium rigid vehicles and larger vehicles and bulk refuelling to occur only between 7 am and 6 pm.

What is the condition that is in dispute?

  1. [7]
    Ashanti Logistics disputes condition 5.  It states:

Nature and Extent of Approved Use

  1. The approved use must not operate outside the hours of 7am to 10pm Monday to Sunday.”
  1. [8]
    Ashanti Logistics contends that condition 5 should not be imposed, either because it is not lawful or because it should not be imposed in the exercise of discretion.  The Council disagrees.
  2. [9]
    During its opening, the Council indicated that, considering the evidence of the expert it retained to address the need for the proposed development, it is not opposed to a change to the conditions to permit the service station to operate from 6 am.[2]  The Council’s position is reflected in Exhibit 9.21, which is the proposed final order, including conditions package, that the Council seeks. 
  3. [10]
    Further, the Council accepts that, if the Court is persuaded that condition 5 need not be imposed, the proposed development should nevertheless be approved.  In those circumstances, it says that the Court should make an order that imposes the conditions contained in Exhibit 9.20.[3]

What is the relevant framework for the decision?

  1. [11]
    The application for a development permit was made on 1 April 2020.  As such, the statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies.  The appeal is by way of hearing anew.[4]  Ashanti Logistics has the onus of establishing that the appeal should be allowed.[5]
  2. [12]
    There is a broad discretion in determining the appeal.[6]  As the development application was impact assessable, the exercise of the discretion must be based on an assessment that, relevantly:[7]
    1. (a)
      must be carried out:
      1. against the assessment benchmarks in the Sunshine Coast Planning Scheme 2014 version 21 (“the Planning Scheme”)[8] to the extent relevant; and
      2. having regard to, relevantly, any lawful use of the premises and adjacent premises and the common material, including properly made submissions about the development application;[9] and
    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).
  3. [13]
    In deciding the appeal, the Court must confirm the decision appealed against, 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 that the Court considers appropriate.[10] 
  4. [14]
    There is a power to impose development conditions on a development approval.[11]  It is expressed in general terms.[12] 
  5. [15]
    As was noted by Atkinson J in Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor:[13]

“Approvals for use are commonly given with conditions attached.  Indeed commentators have remarked that unconditional approvals are extremely rare.  Conditions are the community price a developer must pay for a development approval.  They have characteristically been the vehicle for minimising adverse effects. …”

  1. [16]
    The power (and obligation) to impose development conditions must be read subject to the statutory provisions about lawful conditions.  Section 65 of the Planning Act 2016 imposes a constraint on the power to impose conditions.[14]  It, relevantly, states:

65 Permitted development conditions

  1. (1)
    A development condition imposed on a development approval must–
  1. (a)
    be relevant to, but not an unreasonable imposition on, the development or the use of premises as a consequence of the development; or
  1. (b)
    be reasonably required in relation to the development or use of premises as a consequence of the development.”
  1. [17]
    Whether conditions are reasonably required, for s 65(1)(b), involves a consideration of the proposed development and the changes that the development is likely to produce.[15]  The condition must be a reasonable response to the change in the existing state of things.[16] 
  2. [18]
    A condition that is not “reasonably required” in respect of a proposed development may nevertheless be “relevant” if it maintains proper standards in local development or in some other legitimate planning sense, such as where it is reasonably imposed in the interests of rational development of the area.[17]  The mere fact that a condition is relevant to the proposed development will not necessarily be sufficient to justify its imposition.[18]  It also must not be an unreasonable imposition on the development or use of premises as a consequence of the development.[19]  The requirement that a relevant condition not be an “unreasonable imposition” focuses attention on the development or potential use of the subject land as a consequence of the development and the reasonableness of the proposed condition in light of the development or the potential use.[20]
  3. [19]
    Even if a condition is one that can be legitimately imposed having regard to the constraints in s 65 of the Planning Act 2016, there is no obligation to do so.  The assessment manager, and this Court on appeal, retains a residual discretion to otherwise determine what lawful conditions should be imposed.[21]  The discretion is not to be exercised capriciously.  Regard must be had to all relevant considerations, including relevant provisions of the planning documents.[22]  Improper considerations must be disregarded.  As was noted by His Honour Judge Rackemann in Intrapac Parkridge Pty Ltd v Logan City Council:[23]

“… That discretion, while broad, must be exercised for a proper planning purpose and not for any ulterior purpose.  A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the relevant authority.[24]  In the case of the SPA, the assessment manager’s decision, including a decision to approve subject to conditions, must be based on the assessment of the application under Div 2 of Pt 5.  That includes assessment by reference to the planning scheme.”

  1. [20]
    The result must not offend against common sense and the conditions must fairly and reasonably relate to the permitted development or the planning considerations affecting the subject land.[25]  The condition must be fair and reasonable in the circumstances of the case.

What are the issues in dispute?

  1. [21]
    Ashanti Logistics opposes the imposition of condition 5.  The basis of its opposition is evident from the grounds of its Notice of Appeal[26] and the Appellant’s Grounds in Respect of Appealed Conditions[27].  Each of these documents raise the same issues.  They are most conveniently summarised in the Notice of Appeal as follows:

“(a) in respect of Condition 5 of the Appealed Conditions, fail to take account of the lawful existing use rights associated with the Existing Service Station and in particular, the ability to operate 24 hours a day, seven (7) days a week;

  1. (b)
    are not required for the development the subject of the Development Application (Proposed Development) to achieve compliance with the relevant assessment benchmarks;
  1. (c)
    are not relevant to, and are an unreasonable imposition upon, the Proposed Development and the use of the Land as a consequence of the Proposed Development; and
  1. (d)
    are not reasonably required in relation to the Proposed Development or the use of the Land as a consequence of the Proposed Development.”[28]
  1. [22]
    The Council disagrees.  It contends that condition 5 is relevant to, but not an unreasonable imposition on, the development and is reasonably required to preserve the clear planning intent in the Planning Scheme that retail business activities on the subject land:
    1. (a)
      ensure that there is no unreasonable loss of amenity for existing and planned residential areas; and
    2. (b)
      only serve the local level convenience needs of residents and visitors in the immediate area.[29]
  2. [23]
    Having regard to the Amended Agreed List of Issues in Dispute and the concessions made by the Council during the hearing, the real issues to be determined are:
    1. (a)
      whether condition 5 is reasonably required in relation to the development or use of premises as a consequence of the development;
    2. (b)
      whether condition 5 is:
      1. relevant to the development or the use of premises as a consequence of the development; and
      2. not an unreasonable imposition on the development or the use of the subject land as a consequence of the development; and
    3. (c)
      whether condition 5 should be imposed in the exercise of discretion.

Is condition 5 reasonably required?

  1. [24]
    The Council contends that condition 5 is reasonably required to mitigate unacceptable adverse amenity impacts that would be occasioned by noise, light and glare generated by the proposed development.  It says that the relevant amenity expectations are informed by:
    1. (a)
      ss 3.3.1(m), 3.3.2.1(a)(iii), and 3.3.9.1(a) of the Strategic framework;
    1. (b)
      the overall outcome in s 6.2.8.2(2)(m) of the Local centre zone code;
    2. (c)
      ss 9.3.18.2(1), (2)(a) and (b), and performance outcomes PO2 and PO9 of the Service station code; and
    3. (d)
      ss 9.4.3.2(1)(a), and (2)(a)(i), and performance outcomes PO1 and PO11 of the Nuisance code.

What are the relevant assessment benchmarks?

  1. [25]
    The Strategic framework in the Planning Scheme sets the policy direction for the planning scheme and forms the basis for ensuring that appropriate development occurs within the Planning Scheme area for the life of the Planning Scheme.[30]  The Strategic framework includes:
    1. (a)
      the strategic intent;
    2. (b)
      eight themes to achieve the strategic intent;
    3. (c)
      the strategic outcomes sought for development in the planning scheme area for each theme;
    4. (d)
      the elements that refine and further describe the strategic outcomes;
    5. (e)
      the specific outcomes sought for each or several elements; and
    6. (f)
      the strategic framework maps.[31]
  2. [26]
    Theme 1 in the Strategic framework relates to the settlement pattern.  The strategic outcomes for that theme include:

“(m) Communities within the Sunshine Coast are distinct and separate from each other displaying an individual character, identity, culture and in some cases, strong associations with the past.  Places reflect their coastal urban, rural town and village, rural residential or rural setting.”

  1. [27]
    Element 1 of Theme 1 contains specific outcomes that relate to character, lifestyle, and environment attributes.  They include the following specific outcome in s 3.3.2.1(a)(iii):

“(a) The character, lifestyle and environment attributes of the Sunshine Coast are recognised as essential contributors to the region’s natural (competitive) advantage by:-

  1. (iii)
    maintaining distinct, identifiable towns and neighbourhoods that sensitively respond to their setting and support strong, diverse communities with a sense of belonging.”
  1. [28]
    Element 8 of Theme 1 contains specific outcomes that relate to Local settings and local planning responses.  They include the following specific outcome in s 3.3.9.1(a):

“The Sunshine Coast is maintained as a community of communities where the character and identity of each community is recognised and protected in accordance with a local plan.”

  1. [29]
    It is evident from these provisions that the amenity impacts of development is to be assessed having regard to the location and context of the proposed development.
  2. [30]
    Further guidance on the expected standard of amenity is provided in the Local centre zone code, the Service station code, and the Nuisance code.
  3. [31]
    Zones organise the Planning Scheme area in a way that facilitates the location of compatible land uses.[32]  The subject land is in the Local centre zone.  As such, the Local centre zone code is a relevant assessment benchmark for development on land in the Local centre zone.  The overall outcome in s 6.2.8.2(2)(m) of the Local centre zone code states:

“development ensures that there is no unreasonable loss of amenity for surrounding premises, having regard to matters such as noise, lighting, waste, fumes, odours, overlooking and public health and safety.”

  1. [32]
    The Service station code is a relevant assessment benchmark for a material change of use for a service station.  Sections 9.3.18.2(1), (2)(a) and (b), and performance outcomes PO2 and PO9 of the Service station code state:

“(1) The purpose of the Service station code is to ensure service stations are developed in appropriate locations and in a manner which meets the needs of users, provides safe access and protects the environment and amenity of surrounding premises;

  1. (2)
    The purpose of the Service station code will be achieved through the following overall outcomes:-
  1. (a)
    a service station is established at a suitable location and on a site that is capable of accommodating all necessary and associated activities;
  1. (b)
    a service station does not adversely impact upon the amenity of the surrounding local area;

Location and Site Suitability

PO2

The service station is located so that it does not adversely impact upon the amenity of existing or future planned residential areas.

AO2

The service station is located on land included in a centre zone, industry zone or the Specialised centre zone.

OR

The service station is located in the Rural zone on a major road and at least 15 kilometres from any existing or approved service station on the same trafficable route.

OR

The service station is located in a designated highway service area.

Protection of Residential Amenity

PO9

The service station ensures the amenity of existing or planned residential areas is protected and noise, light or odour nuisance is avoided.

AO9

Where the service station adjoins a residential use or land included in a residential zone:-

  1. (a)
    a 2 metre high solid screen fence is provided along all common property boundaries of the site; and
  1. (b)
    the hours of operation of the service station are limited to between 7.00am to 10.00pm.
  1. [33]
    Centre zone” is defined in the Planning Scheme to include the Local centre zone.
  2. [34]
    The Nuisance Code also contains relevant assessment benchmarks.  Sections 9.4.3.2(1)(a), and (2)(a)(i), and performance outcomes PO1 and PO11 of the Nuisance code state.

“(1) The purpose of the Nuisance code is to maintain community wellbeing and protect environmental values by preventing or mitigating:-

  1. (a)
    nuisance omissions from development adversely impacting on surrounding sensitive land uses; and

  1. (2)
    The purpose of the Nuisance code will be achieved through the following overall outcomes:-
  1. (a)
    development is located, designed, constructed and operated to maintain appropriate levels of amenity and environmental performance by:-
  1. (i)
    not imposing unacceptable noise, light, glare, dust or odour omissions on surrounding sensitive land uses; and
  1. (ii)
    ensuring that proposed sensitive land uses are not subject to unacceptable nuisance emissions generated from surrounding development, having regard to the location and context of the proposed development;

  1. (c)
    environmental values are protected by preventing or minimising potential environmental harm or environmental nuisance resulting from the release of contaminants, particularly noise, odour, light, glare, dust and particulates.

Acoustic Amenity and Noise

PO1

Development, other than development involving live entertainment or amplified music in a designated special entertainment precinct or as part of a temporary event, is located, designed, constructed and operated to ensure that noise emissions do not unreasonably impact on surrounding sensitive land uses having regard to the location and setting of the development.

Note—this performance outcome applies even if noise emissions are generated by sensitive land uses, from sources such as communal areas, service areas, plant and equipment (e.g. air conditioning units) and the like.

AO1.1

Development, other than development in a designated special entertainment precinct, involving live entertainment or amplified music is designed and constructed to achieve an amplified music noise level external to existing or approved affected residences of:-

  1. (a)
    LA10 not greater than 5dB(A) above the background noise levels LA90 from 6am to 10pm; and
  1. (b)
    LOCT10 not greater than 8dB above the octave band background noise levels LOCT90 from 10pm to 6am.

Note: Acceptable outcome AO1 is provided as a guide only.  A higher or lower noise level may be appropriate depending on the location, setting and context of the proposed development.

AO1.2

For development not involving live entertainment or amplified music, no acceptable outcome provided.

Lighting and Glare

PO11

Development ensures that lighting and glare does not have any significant adverse amenity impacts or create nuisance to surrounding premises.

AO11.1

Lighting devices are located, designed and installed to:-

  1. (a)
    minimise light spillage on surrounding premises;
  1. (b)
    preserve an acceptable degree of lighting amenity at surrounding premises;
  1. (c)
    provide covers or shading around lights;
  1. (d)
    direct lights downwards;
  1. (e)
    position lights away from possible affected areas; and
  1. (f)
    enable the brightness of lights to be adjusted to low levels.

AO11.2

Streets, driveways, servicing and carparking areas are located and designed to minimise vehicle headlight impacts on any surrounding residential premises.

AO11.3

Reflective glare that would cause nuisance to residents or the general public at surrounding premises and public spaces is avoided or minimised through the use of:-

  1. (a)
    external building materials and finishes with low-reflectivity; or
  1. (b)
    building design/architectural elements or landscape treatments to block or reduce excessive reflected glare.
  1. [35]
    As I have observed in paragraph [17] above, whether conditions are reasonably required, for s 65(1)(b) of the Planning Act 2016, calls for consideration of the proposed development and the changes that the development is likely to produce.  The condition must be a reasonable response to the change in the existing state of things. 
  2. [36]
    This calls for consideration of three questions:
  1. What is the existing amenity of the local area?
  2. Is the noise impact of the proposed development acceptable?
  3. Is the lighting and glare impact of the proposed development acceptable?

What is the existing amenity of the local area?

  1. [37]
    To understand the amenity of the local area, it is necessary to first appreciate the features of the subject land, including its existing lawful use, and the context in which the subject land sits.

What are the features of the subject land and the existing lawful use?

  1. [38]
    The subject land comprises four lots with a total area of 1,770 square metres.  It has a frontage of approximately 25 metres to Roderick Street and 39.9 metres to Buccleugh Street, with a corner truncation of about 14.2 metres.[33]
  2. [39]
    The land at 51 Roderick Street (comprising three lots being Lots 16 and 31 on RP 81828 and Lot 1 on RP 132680) is currently used as a service station.  The land at 19 Buccleugh Street (being Lot 32 on RP 81828) is currently used as a dwelling house.
  3. [40]
    The existing service station is currently accessed via two crossovers – one to Roderick Street and one to Buccleugh Street.  Each crossover provides all movements access and egress, i.e., traffic can enter the service station from any direction and can travel in any direction when exiting the service station.  The service station shop has a gross floor area of 232 square metres.  There are four re-fuelling islands and eight bowsers.[34] 
  4. [41]
    The service station is presently leased to a tenant who operates it under the BP and Night Owl brands.  While the current tenant has chosen not to operate the service station for 24-hours a day and seven days per week, in the past, the service station has operated those extended hours.[35] 
  5. [42]
    There is no dispute between the parties about the nature and extent of the existing lawful use rights.  In Exhibit 9.15, the parties record their agreement[36] that:

“1. The land described as Lot 16 & 31 on RP 81828 was improved by, and lawfully used for the purposes of, a service station from at least 4 May 1958 (first service station building)

  1. In 1975 the. first service station was demolished and the land described as Lot 16 & 31 on RP 81828, together with Lot 1 on RP 132680, was improved by a building constructed, and used for, a service station (the second service station building).
  1. In 1988 the second service station building was modified by internal reconfiguration.[37]
  1. In 2018 the second service station building was further modified.[38]
  1. The use of the land on which the first service station building was erected for the purposes of a service station had no restrictions in relation to hours of operation under either the 1946 Planning Scheme or the 1964 Planning Scheme, and
  1. No development approval or permit for Lots 16 & 31 on RP 81828 and Lot 1 on RP 132680 has imposed any limitation in terms of hours of operation for the use of such land for the purposes of a service station, by either the first service station building or the second service station building.”
  1. [43]
    In its closing submissions, the Council conceded that there are existing lawful use rights for a service station use since its operation in 1958.  Those use rights are not constrained in terms of operating hours.  The existing lawful use rights attach to Lots 16 & 31 on RP 81828 and Lot 1 on RP 132680.  The Council concedes that those existing lawful use rights have not been abandoned.[39] 

What are the attributes of the location and context of the proposed development?

  1. [44]
    The subject land is in the Local centre zone under the Planning Scheme.  It is part of the Moffat Beach Local Centre.  The Moffat Beach Local Centre extends south from Tooway Lake, along Buccleugh Street, and then east along Roderick Street to its intersection with Seaview Terrace at the Moffat Beach park and foreshore area.[40] 
  2. [45]
    No uses in the Local centre zone in this local area operate past 10 pm.[41]
  3. [46]
    Buccleugh Street links Moffat Beach with Dicky Beach to the north and ultimately provides access through to Nicklin Way.[42]  Roderick Street provides access to Moffat Beach to the east and links with Edmund Street, which runs north-south generally parallel to the coastline and through the localities of Shelly Beach and Kings Beach, Caloundra.[43]  Buccleugh Street is a designated Collector Distributor Street and Roderick Street is a designated District Collector Street, which are both higher order streets in the road network hierarchy under the Planning Scheme.[44] 
  4. [47]
    Save for a 10.8 metre interface with land located in the Low density residential zone at 44 Bryce Street, the subject land only adjoins other land in the Local centre zone (to both the north and east).  Each of the two parcels of adjoining land to the north and north-east contains a single storey dwelling house.  The adjoining land to the east contains a two-storey building with ground floor commercial tenancies and residential living above.[45] 
  5. [48]
    The land on the opposite sides of Roderick and Buccleugh Streets is in the Low density residential zone.  To the south, land on the opposite side of Roderick Street is improved by a motel, with only one unit overlooking Roderick Street.  To the west, land on the opposite side of Buccleugh Street is improved by a single storey dwelling house, a single storey duplex and a two-storey duplex (of which only the two-storey duplex faces Buccleugh Street).[46]

What was the evidence of the residents about the existing amenity of the local area?

  1. [49]
    Several residents, and property owners, from the local area gave evidence about their impressions of the amenity and character of the local area. 
  2. [50]
    Mr Mark Wharton and his wife Maree live at 55 Roderick Street, Moffat Beach.  The existing service station is on the opposite corner to their house.  Their front door faces the petrol pumps and the shop front.  Mr and Mrs Wharton have lived at that location for five years.  Mr Wharton describes the area as a sleepy coastal town where people walk their dogs, walk to the beach and ride bikes.  He considers that it is quiet at night and “already dead by 9pm”.  He says there is nothing open late at night and the area has mostly daytime trade, although he accepts that the service station is used from around 6 am.[47] 
  3. [51]
    Mrs Wharton describes the area as a very small community with a small community feel akin to that of a country town.  She says it is a quiet place, with all businesses closed by 9 pm or 10 pm, or earlier.  She says that after that time, traffic on Buccleugh Street “dies right down and we can actually sleep”.  Mrs Wharton acknowledges that the traffic noise generally starts at around 4.30 am.  She also acknowledges that the Night Owl that previously operated on the subject land had lighting that was maintained 24 hours a day.  She explains that, to address the lighting, she grew trees in her front yard.[48]
  4. [52]
    Mr Jeffrey Oates owns the house at 40 Bryce Street.  He and his wife presently use it as a weekender and holiday home, but they intend to live there permanently in the future.  Mr Oates describes the area as a seaside, residential and family holiday area.  He says that the area is very quiet, which he attributes to the absence of night-time activity.  He says he can hear the surf from his home.  Mr Oates considers that there is an absence of light and noise during the night, especially during the week.  He says he infrequently hears noise from music on the weekend.  He describes night-time traffic noise as generally low and not obtrusive, with occasional noticeable loud engines at the traffic lights, which are noticeable because the area is so quiet.[49]
  5. [53]
    Mr James Davis lives at 44 Bryce Street.  He describes the local area as a quiet area with a peaceful feel and very little noticeable traffic noise at night.[50]
  6. [54]
    Mrs Kerryn Poncini and her husband, Paul, live at 36 Bryce Street.  Mrs Poncini describes the area as a unique, lovely, wholesome community and a family-oriented place.  She says that the noises she hears from her house are mainly from birds, families or happy people checking into the hotel, Raintrees Resort, which is across the road from her.  She says that the area is quiet during the week.  She considers that night-time traffic noise is irregular.  It includes vehicles travelling down Buccleugh Street around 2 am, and traffic noise from around 4.15 am.  The traffic noise does not disturb her sleep.[51]
  7. [55]
    Mr Poncini describes the area as peaceful.  He says that after 10 pm, it is very quiet with not much traffic, although he acknowledges that occasional cars or motorbikes can be heard.  He also says that pedestrians can occasionally be heard around 10 pm or 11 pm.  He considers that they can be heard because it is so quiet generally.[52]
  8. [56]
    Mr Craig, and others, own the building at 45 Roderick Street.  He describes the area as quiet, particularly for traffic between about 10 pm and 6 am.[53]
  9. [57]
    This evidence of residents and property owners in the local area was not challenged.  It is clear from this unchallenged evidence that these residents of Moffat Beach value the area for its character and amenity, which they perceive to be “quiet”.
  10. [58]
    The evidence of the residents and property owners referred to above is relevant to an appreciation of the amenity of the area absent the proposed development.  It is also relevant to my consideration of the potential impact of the proposed development.  In considering what weight should be afforded to the evidence of the residents and property owners about the amenity of the local area, it is relevant to have regard to whether, in an objective sense, the independent evidence indicates that the views of the residents and property owners from the local area are reliable.[54]

What was the evidence of the experts about the existing amenity of the local area?

  1. [59]
    Mr Ovenden and Mr Adamson, the town planners retained by Ashtani Logistics and the Council respectively, gave evidence about the character and amenity of the local area.  Consistent with the evidence of the residents and property owners of the local area, the town planners agree that, apart from the Moffat Beach Local Centre, the surrounding area has a predominantly low-density character and amenity that consists largely of low-density residential dwellings with some short-term accommodation interspersed.[55]  Mr Adamson describes the area as having a relatively high level of residential amenity at night. 
  1. [60]
    Mr Duane and Mr Norling, the economic experts retained by Ashtani Logistics and the Council respectively, identify the volume of traffic that flows along Buccleugh Street and past the subject land in hourly increments.  In summary, around 12,000 vehicles travel along Buccleugh Street each day.  This compares to around 21,000 vehicles per day travelling along the eastern end of Caloundra Road, around 30,500 vehicles per day travelling along Nicklin Way, and around 65,000 vehicles per day at Little Mountain.  On average, about 6 per cent of the traffic on Buccleugh Street occurs between 10 pm and 7 am and about 2.5 per cent occurs between 11 pm and 6 am (although the average is around 3.1 per cent on weekends).[56]  This evidence provides a quantitative measure that assists in understanding the evidence of the residents and property owners about the “quiet” nature of the local area at night.
  2. [61]
    The evidence of Mr Paul King and Mr Craig Beyers, the acoustic engineers retained by Ashanti Logistics and the Council respectively, also assists in this regard.  In the Joint Report of Experts in Noise, the acoustic engineers consider:
    1. (a)
      the MWA Environmental Noise Impact Assessment Report dated 23 June 2020 that was provided during the development application process; and
    2. (b)
      the Noise Impact Assessment dated 15 September 2021 prepared by Mr King, which is appended to the Joint Report of Experts in Noise (“the Noise Impact Assessment”). 
  3. [62]
    The Noise Impact Assessment contains ambient noise data collected from noise monitoring stations at nearby locations.  That data provides an update to the noise monitoring that was undertaken for the June 2020 report, which data may have been affected by extraneous noise.[57]  For the collection of the further data, Mr King selected locations that were representative of residential uses in proximity to the service station but which were unlikely to be affected by any plant and equipment noise from the existing service station.  In the Noise Impact Assessment, Mr King details his methodology for collection of the ambient noise data and the results.[58]  They were unchallenged. 
  4. [63]
    During cross-examination, Mr King explained that the dominant noise source for the existing ambient noise is primarily traffic flow.  He says that, under certain wind conditions, the surf can also be heard.  Overall, he describes the area as one with a moderate degree of amenity for an area where there is a signalised intersection, through which one of the roads carries in the order of 12,000 vehicles per day.  Mr King explains that the interruption of traffic flow caused by the signalised intersection causes variation in the traffic noise as the cars slow down, stop, and accelerate away.  He rejected the suggestion that the noise environment during the night-time period could be characterised as “very quiet”, given that there is 36 dB at that time.[59]  A comparison of the measured noise levels from the ambient noise data monitoring to the adopted Acoustic Quality Objectives for sensitive receptors in the Environmental Protection (Noise) Policy 2008 and the Environmental Protection (Noise) Policy 2019 reveals that existing ambient noise levels exceed the objectives for outdoor areas at a dwelling and would presently exceed the objectives for inside dwellings.[60]  As such, while Mr Adamson and those residents who gave evidence regard the area to be “quiet”, the ambient noise measurements indicate otherwise, as does the evidence of the residents that they hear the traffic.[61] 

Is the noise impact of the proposed development acceptable?

  1. [64]
    The Council relies on the evidence of Mr Adamson and the evidence of the residents and property owners of the local area to support its contention that condition 5 is reasonably required to ensure the proposed development will not have an unacceptable noise amenity impact. 
  2. [65]
    Mr Adamson opines that there will be inevitable impacts on amenity from the service station occasioned by car doors closing, tyres screeching and rowdy patrons.  The Council notes that these matters were identified as issues of concern by the residents and property owners of the local area. 
  3. [66]
    During final addresses, the Council submitted that the amenity consideration is to be informed by:
    1. (a)
      the existing lawful use rights;
    2. (b)
      the observations of the residents that historically the existing service station has not continuously operated on an overnight basis;
    3. (c)
      the character of the locality, being one where there are no significant overnight trading facilities; and
    4. (d)
      the unreasonableness that the Council says arises from operation of the proposed development overnight in a location that is adjacent to a low-density residential zone that is within a protected housing area.
  4. [67]
    As is alluded to by the Council in its submission, the subject land is near land within Precinct LDR1 (Protected Housing Area) of the Low density residential zone.  Consideration of the Planning Scheme provisions that relate to Precinct LDR1 (Protected Housing Area) reveals that the planning intent associated with designation of land as part of the precinct does not relate to amenity expectations.  The amenity protection to be afforded to land in Precinct LDR1 (Protected Housing Area) is the same as that to be afforded to all other land in the Low density residential zone.  The planning intent for land included in Precinct LDR1 (Protected Housing Area) is clearly identified in s 3.3.4.1(d) of the Planning Scheme, which states:

“Existing established residential neighbourhoods that are identified as protected housing areas are generally retained in their current form.”

  1. [68]
    A review of the concerns of Mr Adamson and those of residents and property owners of the local area expressed in their statements (and in the submissions[62]) reveal that the concerns relate to tangible amenity impacts, not intangible impacts.[63]  They relate to the potential for direct impacts from noise and lighting.  These impacts are capable of measurement against objective standards.  Such matters were the subject of evidence from Mr King and Mr Beyers.  They consider the likely noise impact of the proposed development, including noise of the nature referred to by Mr Adamson and by the residents and property owners.
  2. [69]
    In the Joint Report of Experts in Noise, the acoustic engineers assess the noise issues relevant to operation of the proposed development between 10 pm and 7 am,[64] having regard to:
    1. (a)
      the noise criteria that they consider appropriate to apply for operation in the night period (10 pm to 7 am), including by reference to ambient background noise levels;
    2. (b)
      the noise impact of the proposed development on sensitive off-site land uses and the compatibility of operation of the proposed development in the night period with surrounding land uses; and
    3. (c)
      the acoustic mitigation and control measures that would be required to achieve acceptable noise amenity outcomes for operation in the night period.[65]
  3. [70]
    In the Noise Impact Assessment appended to the Joint Report of Experts in Noise, Mr King details the assessment benchmarks, objectives, and standards to which he had regard in forming an opinion about the appropriate noise criteria to be adopted to analyse the acceptability of the noise impact of the proposed development. 
  4. [71]
    The assessment benchmarks identified by Mr King were performance outcome PO9 of the Service station code, and the purpose and the overall outcomes in ss 9.4.3.2(1), (2)(a) and (c) and performance outcome PO1 of the Nuisance code.  Mr King also had regard to the Planning scheme policy for the nuisance code, which provides advice and guidelines about achieving outcomes in the Nuisance code. 
  5. [72]
    Mr King explains that the Nuisance code does not contain numerical noise limits for a service station, but the Planning scheme policy for the nuisance code calls for a noise impact assessment report.  That report is to compare the background noise level with predicted source noise levels from the proposed activity at the nearest potentially affected sensitive land uses.  The comparison is to be done using an appropriately recognised methodology and criteria.  The exercise is to determine the extent of compliance with criteria as defined in Schedule 1 of the Environmental Protection (Noise) Policy 2008.  The Environmental Protection (Noise) Policy 2008 has been superseded by the Environmental Protection (Noise) Policy 2019, which retains the Acoustic Quality Objectives but removes the controlling background creep assessment methods.[66]
  6. [73]
    In the Noise Impact Assessment, Mr King observes that a comparison of the measured noise levels on the subject land to the adopted Acoustic Quality Objectives for sensitive receptors in the Environmental Protection (Noise) Policy 2008 and the Environmental Protection (Noise) Policy 2019 reveals that existing ambient noise levels exceed the objectives for outdoor areas at a dwelling and would presently also exceed the objectives for inside dwellings.  As such, Mr King considers it appropriate to also have regard to the criteria for controlling background creep in the Environmental Protection (Noise) Policy 2008.  Those criteria would require a more stringent noise limit than that would apply if the Acoustic Quality Objectives criterion of 37 dB(A) Leq was adopted.[67]
  7. [74]
    In addition, Mr King considers it appropriate to consider the potential for sleep disturbance at nearby sensitive receptors.  In the Noise Impact Assessment, Mr King notes that Queensland Ecoaccess Guideline: Noise - Planning for Noise Control (2015) indicates that unreasonable sleep disturbance impacts can occur when short duration noise peaks, that are in the range of 45 to 50 dB(A), occur within a bedroom more than 10 to 15 times per night.  He says that consideration of potential sleep disturbance noise criteria should also have regard to the ambient noise environment, i.e., whether noise from vehicles on public roads results in noise levels above the default planning criteria.
  8. [75]
    Given the existing noise levels at the locality during the 10 pm to 7 am period, Mr King opines that the lower range sleep disturbance noise criterion of 45 dB(A) Lmax noise level within a bedroom is appropriate to assess noise from vehicle movements and car starts or door slams during the night period.  Adopting a typical 7 dB(A) noise reduction through an open window, the sleep disturbance criterion of Lmax 52 dB(A) would apply external to a bedroom window.[68]
  9. [76]
    Having regard to the matters referred to in paragraphs [70] to [75] above, Mr King adopts noise criteria for the night period as follows:[69]

PERIOD

NIGHT-TIME

(10pm to 7am)

Time Varying Noise

(LAeq – dB(A))

40

Steady State – Continuous Noise
(LA90 – dB(A))

35

Sleep Disturbance

(LAmax – dB(A))

52

  1. [77]
    Mr King’s opinions about the appropriate noise criteria were unchallenged.  Mr Beyers accepted the criteria as appropriate.
  1. [78]
    In section 4.1 of the Noise Impact Assessment, Mr King identifies the ten nearest sensitive uses, being residential dwellings, and three nearest outdoor open space areas for which analysis is undertaken.  The identified residential dwellings are those located at 44 and 46 Bryce Street, 6 and 17 Buccleugh Street, and 45, 54, 55, 56, 58, and 62 Roderick Street. There was no challenge to the appropriateness of Mr King’s identified sensitive uses. 
  2. [79]
    In the Joint Report of Noise Experts, the experts describe the surrounding land uses as comprising:
    1. (a)
      to the north, low set residential premises in the Local centre zone;
    2. (b)
      to the east, a two-storey mixed use premises with residential uses on level one above ground floor commercial uses.  This adjoining property is in the Local centre zone;
    3. (c)
      to the north-east, an adjoining residential premises in the Low density residential zone;
    4. (d)
      to the south, Roderick Street with the Moffat Beach Motel and residential dwellings in the Low density residential zone beyond; and
    5. (e)
      to the west, Buccleugh Street with residential dwellings in the Low density residential zone beyond.[70]
  3. [80]
    The Noise Impact Assessment addresses potential noise amenity impacts from variable short duration noise sources.  They include those occasioned by vehicle movements, operational noise and carparking noise associated with the proposed development.  The noise sources considered in the assessment are slow-speed vehicle movements, carparking noise, service station operation noise (including from bowsers, audio visual devices, and tyre inflation), and patron noise.  To ensure a conservative assessment, a high-end traffic generation rate was applied.  The Noise Impact Assessment also models continuous noise from mechanical plant, including air-conditioning units, refrigeration plant, and exhaust fans.
  4. [81]
    The Noise Impact Assessment demonstrates that the proposed development can operate in accordance with the selected noise amenity criteria provided the following noise control measures are adopted:
    1. (a)
      2.0 metre high (above site finished surface level) noise barriers are constructed along the northern and eastern boundaries of the subject land with a 4.4 metre high section as shown on Figure 2 of the Noise Impact Assessment;
    2. (b)
      a 3.0 metre high (above site finished surface level) acoustic wall is constructed along the northern and eastern perimeters of the refuse and loading area as shown on Figure 2 of the Noise Impact Assessment;
    3. (c)
      the refuse and plant enclosure on the eastern side of the building has a roof which is lined with acoustic absorptive material on the underside with a Noise Reduction Coefficient (NRC) of 0.7;
    4. (d)
      mechanical plant and equipment is designed, located and installed to meet the source noise criteria nominated in the Noise Impact Assessment;
    5. (e)
      servicing and deliveries and refuse collection by medium rigid vehicles or larger vehicles is conducted during the day period (7 am to 6 pm) only;
    6. (f)
      deliveries by vans and small rigid vehicles do not generate significantly greater noise than normal passenger vehicles and thus van and small rigid vehicle servicing may be undertaken on a 24-hour basis;
    7. (g)
      bulk refuelling tankers are to access the subject land during the day and evening period (7 am to 10 pm) only;
    8. (h)
      all acoustic barriers and walls are to be gap free and constructed of materials achieving a minimum surface density of 12.5kg/m2;
    9. (i)
      any audio visual display screens at fuel bowsers are to be programmed to automatically turn off between the hours of 10 pm and 7 am; and
    10. (j)
      tyre inflation beepers are to be programmed to automatically turn off between the hours of 10 pm and 7 am.[71]
  1. [82]
    In the Joint Report of Noise Experts, Mr King and Mr Beyers also undertake an assessment of the proposed development against:
    1. (a)
      the overall outcome in s 6.2.8.2(2)(m) of the Local centre zone code;
    2. (b)
      the purpose and the overall outcomes in ss 9.3.18.2(1) and (2)(b) and performance outcomes PO2 and PO9 of the Service station code; and
    3. (c)
      the purpose and the overall outcomes in ss 9.4.3.2(1), (2)(a) and (c) and performance outcome PO1 of the Nuisance code.
  2. [83]
    Mr King and Mr Beyers jointly opine that the proposed development, operating 24-hours a day and seven days per week, would comply with each of the assessment benchmarks if the controls identified in paragraph [81] above are incorporated into the design and operation of the proposed service station.[72]
  3. [84]
    Mr King and Mr Beyers jointly conclude that the Noise Impact Assessment has appropriately assessed potential noise amenity impacts of the proposed development and provides specific noise control and mitigation requirements.  They agree that the proposed development, operating 24-hours a day and seven days per week, will provide acceptable acoustic amenity to surrounding residential uses if the controls identified in paragraph [81] above are incorporated into the design and operation of the proposed development.[73]
  4. [85]
    During cross-examination, Mr King explained that while the proposed development will generate noise, the change will not be such that it will be noticeable during the night-time period.  It will generally fit within the existing ambient noise levels, and most of the time existing ambient noise levels will be higher.[74]  
  5. [86]
    The acoustic engineers adopted a conservative approach in forming their opinions.  Mr King undertook additional monitoring to ensure he had an accurate understanding of existing ambient noise levels.  He adopted stringent noise criteria, including considering the effects of background creep.
  6. [87]
    Having regard to those matters referred to in paragraphs [25] to [68] above, and the evidence of the acoustic engineers, I am satisfied that, with the imposition of conditions addressing the matters identified in paragraph [81] above, the proposed development will not adversely impact on the amenity of the surrounding local area by reason of noise impacts. 
  7. [88]
    The proposed development, with 24-hour operation, will comply with the assessment benchmarks outlined in paragraphs [25] to [34] above as they relate to noise impacts.

Is the lighting and glare impact of the proposed development acceptable?

  1. [89]
    Mr King gave evidence with respect to the light and glare impacts that will be occasioned by the proposed development.  Mr King is a mechanical engineer with expertise in lighting, air quality and noise.  In his report on lighting amenity, Mr King considers the potential amenity impacts of fixed lighting on the subject land and those from headlight glare associated with vehicle movements into, out of, and on the subject land.[75]  As part of that exercise, he reviewed the Lighting Impact Assessment dated 30 March 2020, prepared by MWA Environmental, (“the Lighting Impact Assessment”) that is referenced in the negotiated decision notice.
  2. [90]
    Mr King identifies that the existing night lighting environment of the immediate surrounds is primarily impacted by existing streetlights, illuminated signage, under canopy carparking and security lighting associated with the existing service station on the subject land, and the lighting at the signalised intersection of Roderick Street and Buccleugh Street.  He opines that, because of this existing lighting, the subject land and its surrounds are currently a well-lit environment.  Further, due to the presence of intersecting streets, there are current turning movements of vehicles at the intersection that result in car headlights washing over existing dwelling houses.[76]
  3. [91]
    Mr King’s evidence in this regard is consistent with photographs of the subject land and signalised intersection taken during the night-time period.[77]  They demonstrate that the area immediately surrounding the subject land is heavily affected by light sources unrelated to the use of the subject land, including street lighting, lighting on the motel and headlights from the traffic that already traverses the area.
  4. [92]
    Mr King’s evidence is also consistent with the concessions of Mr Adamson during cross-examination that existing commercial tenancies in the Local centre zone near the subject land are illuminated with security lighting 24 hours a day.[78]
  5. [93]
    The Lighting Impact Assessment is based on a conservative approach to determining existing lighting conditions for the purposes of the assessment against Australian Standard AS4282:2019 Outdoor Lighting Obtrusive Effects.  It assumes an environmental zone of A3: Medium District Brightness, which applies for a typical suburban area.  It does so even though zone A4: High District Brightness, which applies for residential areas abutting commercial areas, could equally apply to the surrounding area.
  6. [94]
    Australian Standard AS4282 mandates a maximum vertical plane illuminance (for example, illumination of a habitable room façade) of less than or equivalent to two lux in an A3 Environmental Zone during curfew hours (which are nominally between 11 pm and 6 am).
  7. [95]
    Mr King opines that fixed lighting associated with the proposed development could be designed, as part of lighting design specification at the detailed design stage, to minimise light spill to off-site areas.  He says it can comply with AS4282 criteria at sensitive off-site locations in the manner identified in the Lighting Impact Assessment.  Condition 60 of the negotiated decision notice, which was not challenged on appeal, requires the lighting for the proposed development to accord with the requirements of the Lighting Impact Assessment.  That condition is proposed to remain.
  8. [96]
    The Lighting Impact Assessment also demonstrates that there would only be minor incidences of headlight illumination on residential dwellings to the south and west of the proposed development.  The illumination will be limited to:
    1. (a)
      a minor angle of illumination on a garage roller door at 1/6 Buccleugh Street; and
    2. (b)
      a minor angle of illumination of the façades of the dwelling at 52 and 54 Roderick Street, which would only exceed the 2 lux limit at a height of less than 0.5 metres above ground and would not affect any windows of those dwellings.
  9. [97]
    There will be no headlight illumination impact on habitable rooms. 
  10. [98]
    Having regard to the headlighting assessment in the Lighting Impact Assessment, Mr King opines that the proposed development, with 24-hour operation, will not result in unacceptable headlighting impacts at surrounding residential properties. 
  11. [99]
    The Council did not lead any expert evidence on lighting.  Mr King’s opinions were unaffected by cross-examination.  I accept Mr King’s evidence. 
  12. [100]
    Having regard to the matters referred to in paragraphs [25] to [60] and [89] to [99] above, I am satisfied that the proposed development, with 24-hour operation, will achieve compliance with the assessment benchmarks outlined in paragraphs [25] to [34] above as they relate to lighting and glare.

Conclusion regarding whether condition 5 is reasonably required?

  1. [101]
    For the reasons outlined in paragraphs [24] to [100] above, condition 5 is not a reasonable response to a change that will be occasioned by the commencement of the proposed development.  The changes are sufficiently addressed by the other conditions proposed in Exhibit 9.20.  Condition 5 is not a condition that can be lawfully imposed under s 65(1)(b) of the Planning Act 2016.

Is condition 5 relevant and not an unreasonable imposition?

  1. [102]
    As I have noted in paragraph [18] above, a condition that is not “reasonably required” in respect of a proposed development may nevertheless be “relevant”.
  1. [103]
    The Council contends that condition 5 is necessary to preserve the clear planning intent in the Planning Scheme that retail business activities on the subject land:
    1. (a)
      ensure that there is no unreasonable loss of amenity for existing and planned residential areas; and
    2. (b)
      only serve the local level convenience needs of residents and visitors in the immediate area.[79]
  1. [104]
    The Council says that planning intent is evident from:
    1. (a)
      ss 3.3.1(m), 3.3.2.1(a)(iii), 3.3.9.1(a), 3.4.1(f), and 3.4.3.1(a) and (c) of the Strategic framework;
    2. (b)
      s 7.2.6.3(2)(jj) and Table 7.2.6.4.2, and performance outcome PO7 of the Caloundra local plan code;
    3. (c)
      ss 6.2.8.2(2)(b), (e), (m), and (t) and Table 6.2.8.2.1 of the Local centre zone code;
    4. (d)
      ss 9.3.18.2(1), (2)(a) and (b), and performance outcomes PO2 and PO9 of the Service station code; and
    5. (e)
      ss 9.4.3.2(1)(a), and (2)(a)(i), and performance outcomes PO1 and PO11 of the Nuisance code.

What are the relevant assessment benchmarks?

  1. [105]
    I have already identified those assessment benchmarks that the Council relies on with respect to the amenity considerations in paragraphs [25] to [34] above. 
  2. [106]
    The other assessment benchmarks relied on by the Council relate to its contention that retail business activities on the subject land are intended to only serve the local level convenience needs of residents and visitors in the immediate area.
  3. [107]
    Theme 2 in the Strategic framework relates to economic development.  The strategic outcomes for that theme include:

“(f) A network of well-designed, connected and accessible activity centres are provided across the Sunshine Coast with uses and activities which reflect their role and function.”

  1. [108]
    Element 2 of Theme 2 contains specific outcomes that relate to the Sunshine Coast activity centre network.  They include the following specific outcomes in ss 3.4.3.1(a) and (c):

“(a) To support the preferred pattern of settlement, development is consistent with the Sunshine Coast activity centre network identified conceptually on Strategic Framework Map SFM2 (Economic development elements)

Editor’s note–the Sunshine Coast activity centre network is described in Table SC 1.2.3 of Schedule 1 (Definitions), and for ease of reference is reproduced below in Table 3.4.3.1 (Activity centre network).

  1. (c)
    Development does not undermine or compromise the network either by inappropriately establishing centre activities outside of an activity centre or proposing a higher order or larger scale of uses than intended for a particular activity centre.”
  1. [109]
    The network comprises a Principal regional activity centre, being the Maroochydore City Centre, Major regional activity centres, Specialist activity centres, District activity centres, Local (full service) activity centres, and Local (not full service) activity centres.
  2. [110]
    I accept the Council’s submission that this Court has long recognised the importance of a centres’ hierarchy.[80]  A centres’ hierarchy is vital to the functioning of a city.  It ensures the efficient, equitable and adequate provision of goods and services to all communities having regard to their needs, size, and location.[81]
  3. [111]
    The two types of centres in the Sunshine Coast activity network that the Council submits are relevant in this case are:
    1. (a)
      the Local (full service) activity centres, which:

“Provide for a wide range of local shopping, local employment, commercial, cafes and dining, entertainment, community services together with residential development where it can integrate and enhance the fabric of the activity centre.”

  1. (b)
    Local (not full service) activity centres, which:

“Provide a local convenience function only, accommodating small scale services and facilities and supporting the role of higher order activity centres in the activity centre network.”

  1. [112]
    The subject land is in the Caloundra local plan area under the Planning Scheme.  As such, the proposed development is to be assessed against the Caloundra local plan code, to the extent relevant.  That code identifies the intended roles of the Moffat Beach local centre and other centres within the Caloundra local plan area.  Relevantly, the overall outcome in s 7.2.6.3(2)(jj) states:

“The existing local centres at Currimundi (Local centre zone), Moffat Beach (Local centre zone), Dicky Beach (Tourist accommodation zone) are retained as local (not full service) activity centres providing for the basic convenience needs of residents of, and visitors to, the local area.”

  1. [113]
    Performance outcome PO7 in Table 7.2.6.4.2 of the Caloundra local plan code similarly requires that development in the Local centre zone ensures that the Moffatt Beach local centre functions as a local (not full service) activity centre only, providing for the basic convenience needs of residents and visitors.  No associated acceptable outcome is provided.
  2. [114]
    The limited extent of retail provision is also addressed in the overall outcomes in s 6.2.8.2(2)(b), (e) and (t) of the Local centre zone code.  They require:

“(b) development provides for a limited range of retail business activities that service the local level convenience needs of residents and visitors in the immediate area.

  1. (e)
    development for business activities is of a scale and intensity that is consistent with the intended role and function of the particular activity centre as specified in the Sunshine Coast activity centre network and the applicable local plan code and does not undermine the role or function of higher order activity centres.

(t) except where otherwise specified in a local plan code in Part 7 (Local plans), development provides for the following:-

  1. (i)
    a use listed as a consistent use in column 1 of Table 6.2.8.2.1 (Consistent uses and potentially consistent uses in the Local centre zone) to occur in the Local centre zone; and
  1. (ii)
    a use listed as a potentially consistent use in column 2 of Table 6.2.8.2.1 to occur in the Local centre zone only where further assessment has determined that the use is appropriate in the zone having regard to such matters as its location, nature, scale and intensity.

Note—a use not listed in Table 6.2.8.2.1 is an inconsistent use and is not intended to occur in the Local centre zone.

  1. [115]
    In Table 6.2.8.2.1, a service station is a listed as consistent use only where it is in a Local (full service) activity centre. 
  2. [116]
    As I have noted in paragraph [18] above, a condition may be “relevant” if it maintains proper standards in local development or in some other legitimate planning sense, such as where it is reasonably imposed in the interests of rational development of the area.[82]  To be lawful, the condition must also not be an unreasonable imposition on the development or use of premises as a consequence of the development.[83] 
  1. [117]
    In this case, determination of those issues calls for consideration of three questions:
  1. Is condition 5 relevant to ensuring the amenity of the planned residential area is protected?
  2. Is condition 5 relevant to ensuring the proposed development only serve the local level convenience needs of residents and visitors in the immediate area?
  3. Is condition 5 an unreasonable imposition?

Is condition 5 relevant to ensuring the amenity of the planned residential area is protected?

  1. [118]
    The Council submits that performance outcome PO9 of the Service station code requires that existing amenity of existing or planned residential areas is protected and noise and light impacts are avoided.  It says that the focus of the provision is the amenity of the “residential areas”, not just the existing uses in the area.  The Council submits that this is consistent with the overall outcome in s 9.3.18.2(2)(b), which calls for an assessment of the impact upon the amenity of the “surrounding local area”.  The Council also says that the reference to “area” is consistent with the wording used in the acceptable outcome, which refers to a service station that adjoins a “residential use” or “land located in a residential zone”.  The Council says that the use of the term “residential zone” in acceptable outcome AO9 supports a construction that requires consideration of both the development that exists and that which may reasonably be contemplated in those areas.
  1. [119]
    In this respect, the Council placed emphasis on the potential for the land at 44 Bryce Street to be redeveloped for a two-storey development and the joint opinion of the acoustic engineers with respect to compliance with performance outcome PO9 of the Service station code.[84]  The experts opine:

“The development does not achieve compliance with the requirements of AO9.

Despite this, compliance with PO9, as it relates to noise, is able to be achieved through implementation of appropriate noise controls into the design and operation of the facility. That is, potential impacts are minimised such that the use will not result in adverse acoustic amenity impact upon existing or future planned residential uses. It should be noted that were two storey residential uses to be developed on adjacent residential allotments to the north and/or north-east of the subject site, additional acoustic barriers would be required.

Specific measures to achieve acceptable acoustic amenity for existing residential uses in the area are detailed in Paragraph 27 of this joint report.”[85]

  1. [120]
    During cross-examination, Mr King was taken to the opinion and asked to identify the properties in question.[86]  Mr King identified two properties.  One is the adjoining land to the immediate north of the subject land.  It is in the Local centre zone.  It is not a planned residential area.[87]  The other was the land at 44 Bryce Street, which adjoins the north-east corner of the subject land.  It is in Precinct LDR 1 (Protected Housing Area) of the Low density residential zone. 
  2. [121]
    Mr King was also asked whether he had quantified the change that would be required.[88]  In his response, Mr King’s indicated that there may need to be some change but that he had not quantified it as he did not understand what the lateral extent of any future house may be. 
  3. [122]
    Counsel for the Council did not question Mr King any further on the issue.  Counsel did not ask him to assume the Council’s construction of the Planning Scheme, nor squarely put to him that the proposed development did not comply with that part of performance outcome PO9 that refers to “planned residential areas”.  Further, Mr King was not given the opportunity to address whether the observation qualified:
    1. (a)
      the opinions he otherwise expressed in that same paragraph, namely that:
      1. PO9, as it relates to noise, is able to be achieved through implementation of appropriate noise controls into the design and operation of the facility; and
      2. potential impacts are minimised such that the use will not result in adverse acoustic amenity impact upon existing or future planned residential uses; and
    2. (b)
      the opinions he expressed elsewhere in the Joint Report of Noise Experts that “the amenity of surrounding premises can be protected” through those specific controls detailed in paragraph [81] above.[89]   
  4. [123]
    Further, the Council’s allegation that the operation of the proposed development 24 hours a day and seven days per week fails to protect the planned residential areas was not a matter that was in issue.  By order of the Court made on 4 August 2021,[90] the issues in dispute in the appeal were limited to those matters outlined in the Appellant’s Grounds in Respect of Appealed Conditions filed 28 July 2021 and the Respondent’s Grounds and Particulars in Support of Conditions filed 29 July 2021.[91]  The amenity issue raised by the Council was limited to potential impact on existing sensitive land uses.  The allegation with respect to impact on planned residential areas was raised by the Council for the first time in its oral submissions.  In oral submissions, the Council referred to part only of the opinion set out in paragraph [119] above and submitted that Ashanti Logistics had not discharged its onus.  This is because it failed to demonstrate that the condition was not relevant to ensuring that the amenity of a planned residential area is protected.[92] 
  5. [124]
    Having regard to those circumstances, I am not prepared to infer that I should disbelieve or reject the evidence of Mr King that the use will not result in adverse acoustic amenity impact upon existing or future planned residential uses or on surrounding premises.[93]  Those opinions, which were expressed by Mr Beyers also, satisfy me that the proposed development, operating 24 hours a day, will comply with performance outcome PO9 of the Service station code. 
  6. [125]
    For the reasons provided above, condition 5 is not a condition that can be lawfully imposed under s 65(1)(a) of the Planning Act 2016 for the purpose of ensuring the amenity of the surrounding area, including planned residential areas, is protected.

Is condition 5 relevant to ensuring the proposed development only serve the local level convenience needs of residents and visitors in the immediate area?

  1. [126]
    The Council says that three matters are apparent from the Caloundra local plan code and the Local centre zone code provisions referred to in paragraphs [112] to [115] above and the allocation of the subject land as a Local (not full service) activity centre.  First, the Planning Scheme draws a dichotomy between when a service station is considered an appropriate use of Local centre land and when it is not.  It is appropriate when in a Local centre (full service) activity centre.  It is inappropriate when in a Local centre (not full service) activity centre.  Second, the existing local centre at Moffat Beach is not intended to operate as a full service local centre, rather it is to provide for basic convenience needs.  Third, the needs to be served are those of residents and visitors in the “local area” or “immediate area”. 

Is condition 5 justified by those assessment benchmarks relevant to consistency of a service station use on the subject land?

  1. [127]
    The Council’s submission about the dichotomy between when a service station is an appropriate use and when it is not an appropriate use of Local centre land appeared under a heading “Planning provisions relevant to the Use issue”.  Despite that, later in its written submissions, the Council appears to rely on the submission as informing reasonable expectation about amenity.  Its oral submissions confirm that the submission is relied on in that regard.  I have already addressed the amenity issues. 
  2. [128]
    In any event, any suggestion that condition 5 is relevant because a service station is an inconsistent use on the subject land loses considerable force in circumstances where:
    1. (a)
      the Council approved a service station use on the subject land;
    2. (b)
      the Council maintains that it is appropriate to approve a service station use on the subject land, even if condition 5 is not imposed;[94] 
    3. (c)
      there has been a service station operating on part of the subject land since, at least, 1958 (including, at times, on a 24-hour basis);[95]
    4. (d)
      there are existing lawful use rights that attach to part of the subject land that authorise its use for a service station without constraining its hours of operation;[96] and
    5. (e)
      there is no relevant provision of the Planning Scheme that links the consistency, or otherwise, of a service station in a local centre (not full service) activity centre to the hours of operation of that use.[97]

Is condition 5 justified because of the scale or intensity of the proposed development or its likely function?

  1. [129]
    As I have noted above, the Council contends that condition 5 is justified because the assessment benchmarks require that the proposed development only serve local level or basic convenience needs of visitors and residents of the immediate area. 
  2. [130]
    The relevant assessment benchmarks require that:
    1. (a)
      Local (not full service) activity centres provide a local convenience function only, accommodating small scale services and facilities;
    2. (b)
      the existing local centre at Moffat Beach is retained as a local (not full service) activity centre providing for the basic convenience needs of residents and visitors to the local area; and
    3. (c)
      development in the Local centre zone provides for a limited range of retail business activities that service the local level convenience needs of residents and visitors in the immediate area.
  3. [131]
    It is well-accepted that the same principles that apply to statutory construction apply to the construction of planning documents.[98] 
  4. [132]
    There is no definition of “small scale”, “basic convenience needs”, “local area”, “local level convenience needs” or “immediate area” in the Planning Scheme.  As such, those phrases are to be given their ordinary meaning. 
  5. [133]
    As was identified by the Court of Appeal in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcott Pty Ltd & Ors:[99]

““Small scale” is defined to be “of limited size or extent,” in the Oxford Dictionary and, relevantly, is defined in the Macquarie Dictionary as “unambitious, or of small extent, as an enterprise.”[100]

  1. [134]
    It is common ground that access to fuel is a “basic convenience need”.  Despite that, the Council contends that access to fuel between the hours of 10 pm and 6 am is not a basic convenience need or a local level convenience need.[101]  In support of its contention, the Council says:
    1. (a)
      local level and basic convenience needs take their flavour from the fact that the subject land is within a Local activity (not full service) centre, providing only a local convenience function”;
    2. (b)
      the intended function of uses in that centre is informed by comparing it to the overall outcomes sought for land in the District centre zone;
    3. (c)
      Moffat Beach and Dicky Beach are small suburbs; and
    4. (d)
      in the context of the number of persons expected to attend the use between the hours of 10 pm and 6 am, together with the availability of other 24/7 service stations within two kilometres of the subject land, there is a virtually non-existent need for, and addition to, convenient access to those goods from 10 pm to 6 am.
  2. [135]
    The Council contends that the references to the “immediate area” is to be construed as the suburb of Moffat Beach.  In supports of that contention, the Council says:
    1. (a)
      the Macquarie dictionary (7th Ed) relevantly defines “immediate”, as:

“having no object or space intervening; nearest or next: in the immediate vicinity.”

  1. (b)
    that the immediate area is the suburb of Moffat Beach is consistent with opinions expressed by Mr Norling and Mr Ovenden;[102]
  2. (c)
    Moffat Beach comprises only 2,620 people and the radius from the Local activity (not full service) centre is less than 1.5 kilometres before it takes in adjoining suburbs of Shelly Beach, Dicky Beach and Kings Beach;[103]
  3. (d)
    adjoining Moffat Beach to the north is Dicky Beach and then adjoining Dicky Beach to the north is Currimundi.  Each of those are planned to have facilities, on land in the Local centre zone or the Tourist accommodation zone, that will provide for the basic convenience needs of its residents and visitors, as is apparent from the overall outcome in s 7.2.6.3(2)(jj) of the Caloundra local plan code.  The Council submits that provides a clear indication that each of those suburbs are to be supported by their own zoned land, so far as providing for basic convenience needs; and
  4. (e)
    such an interpretation is consistent with the purpose of the Local centre zone code, its context and setting, and the overall outcomes in ss 7.2.6.3(2)(jj), (kk), and (qq) and performance outcome PO7 of the Caloundra local plan code.  From those provisions, the Council submits that it is apparent that the Planning Scheme considers individual communities to be of importance.
  1. [136]
    Ashanti Logistics approach the question of compliance with the intended function of the centre as a question of fact that is informed by the scale and intensity of the proposed development.  In that regard, Ashanti Logistics says this Court’s observations in Parmac Investments Pty Ltd v Brisbane City Council & Ors[104] are relevant, wherein the Court observed:

[43] When the text of overall outcome (4)(g)(i) is considered in that context, it seems to me that an assessment of the compatibility of the “scale” of the proposed development requires consideration of not only built form metrics, but also indicia of the intensity (or impact) of the use. Relevant indicia of the intensity, level of activity or impact of the use include hours of operation, extent and duration of lighting and volume of traffic associated with the proposed development.”[105]

  1. [137]
    There is no bright line to define whether a proposed development:
    1. (a)
      provides a local convenience function only;
    2. (b)
      is small scale;
    3. (c)
      provides for the basic convenience needs of residents and visitors to the local area; and
    4. (d)
      serves the local level convenience needs of residents and visitors in the immediate area.
  2. [138]
    These concepts call for factual determinations having regard to the terms of the assessment benchmarks read in their context and viewed through the lens of the local context in which the development is proposed. 
  3. [139]
    The matters identified by the Council are relevant to that determination.  To understand the intended role and function of the Local activity (not full service) centre, it is relevant to have regard to provisions that inform the intended role and function of other centres in the Sunshine Coast activity centre network.  They include those referred to in paragraphs [107] to [115] above. 
  4. [140]
    In addition, Table SC1.2.3 in Schedule 1 Definitions defines the intended role of a District activity centre as follows:

“Provide for a mix of uses and activities and include a concentration of retail, commercial, residential, offices and health services, community, entertainment and recreation facilities capable of servicing a district.”

  1. [141]
    Further guidance on the intended role of a District activity centre is provided by the purpose and overall outcomes of the District centre zone code, which relevantly state:

“(1) The purpose of the District centre zone code is to provide for a range of activities that complement, but do not compete with, the role and function of higher order activity centres by serving the convenience needs of district catchments in centres that are highly accessible and well connected to the catchment areas that they serve.

District centres are developed as well-designed, safe and visually attractive business, community and employment centres, predominantly in a low-rise building format.

  1. (2)
    The purpose of the District centre zone code will be achieved through the following overall outcomes:-
  1. (a)
    district activity centres are developed as vibrant, mixed use places, with a lively day time and night time economy. Residents in the zone should expect a reasonable level of ambient noise associated with the benefits of living in a centre;
  1. (b)
    development provides for a range of retail business activities that service the district level convenience needs of surrounding areas;
  1. (c)
    in addition to retail business activities, development provides for a mix of other business activities including food and drink outlets (e.g. restaurants and dining facilities), health care services, offices and an appropriate range of community activities and support services that promote an active, mixed use environment;

[106]

  1. [142]
    At first blush, the application for a 24-hour operation of the proposed development may indicate that the intended use is a more intensive use than a service station operating from 7 am to 10 pm.  However, that is not always so.
  1. [143]
    Here, the function of the proposed development is informed by its built form parameters.  It will have only three refuelling islands with six bowsers.  This is a reduction from the existing service station, which has four refuelling islands and eight bowsers.  The gross floor area of the “shop” building will be limited to 194 square metres, of which the (uncontested) conditions require that only 150 square metres is to be used for the ancillary use of the display and sale of retail goods. 
  2. [144]
    I accept the evidence of Mr Ovenden that the 150 square metre limit is sufficient to permit the service station to provide only a limited range of everyday items such as milk, bread, newspapers and magazines, coffee, and snack food items (i.e., chips, lollies, chocolate, sandwiches, and hot food items).  This range of goods, being limited to necessities and convenience items, is consistent with a modern suburban, but small-scale, service station.[107]  The limited display area is insufficient to provide for a wide range of local shopping needs (such as is intended in a Local (full service) activity centre), let alone to service the district level convenience needs of surrounding areas as is intended by development in the District centre zone.  It is insufficient to replace the need for a full-service centre.  It will not compete with the retail offerings in higher order centres, including Local centre (full service) activity centres. 
  3. [145]
    Further, the proposed development is not such that it would of itself, or in concert with other uses in the Moffat Beach local centre, provide for a wide range of local shopping (as is intended in a Local (full service) activity centre) or create a vibrant, mixed use place with a lively day time and night time economy (as is sought in the District centre zone).
  1. [146]
    In terms of the intensity of activity likely to be generated by the proposed development, I was assisted by the evidence of the economic experts.  Although Mr Duane’s evidence was that the proposed development would attract “passing traffic” from areas beyond the immediate area,[108] he did not consider that any such traffic would be significant.  Indeed, both economic experts opine that the proposed development was unlikely to draw significantly from outside the local area.[109]  Consistent with such views, Mr Duane accepts that on any given evening during the night-time period the patronage to the proposed development is likely to be very low.  The number of patrons would be lower than a typical convenience store.  It is likely to be limited to between 10 and 11 vehicles.[110]  Mr Norling expresses similar views.[111]  I accept this evidence about the likely low level of patronage that the proposed development will attract during the night-time period.  It persuades me that the level of activity between 10 pm and 6 am will be low. 
  2. [147]
    On balance, I am satisfied that the proposed development, operating 24 hours a day, will comply with the requirements in the relevant assessment benchmarks that:
    1. (a)
      Local (not full service) activity centres provide a local convenience function only, accommodating small scale services and facilities;
    2. (b)
      the existing local centre at Moffat Beach is retained as a local (not full service) activity centre providing for the basic convenience needs of residents and visitors to the local area; and
    3. (c)
      development in the Local centre zone provides for a limited range of retail business activities that service the local level convenience needs of residents and visitors in the immediate area.
  3. [148]
    For the reasons provided above, condition 5 is not a condition that can be lawfully imposed under s 65(1)(a) of the Planning Act 2016 for the purpose of ensuring that the proposed development only serves the local level convenience needs of residents and visitors in the immediate area.

Is condition 5 an unreasonable imposition?

  1. [149]
    Assuming for the moment, contrary to my findings in paragraph [125] above, that the imposition of condition 5 is relevant to securing compliance with those assessment benchmarks that seek to protect the amenity of the surrounding areas and planned residential areas, I am satisfied that its imposition for that purpose would be unreasonable for each of the following four reasons.
  2. [150]
    First, if the uses in the surrounding area change, those future uses will enjoy protection from noise nuisance as, leaving aside the conditions of any development approval, the service station operator will have obligations under the Environmental Protection Act 1994 (Qld) in respect of noise impacts on surrounding residential uses.
  3. [151]
    Second, the Planning Scheme contemplates that existing established residential neighbourhoods that are identified as protected housing areas will be retained generally in their current form.[112]
  4. [152]
    Third, the Planning Scheme contemplates that future residential development would design and locate to protect its own amenity.[113] 
  5. [153]
    Fourth, the reasonable expectations as to amenity of the single property potentially affected, being that at 44 Bryce Street, is to be informed by relevant considerations that include that:
    1. (a)
      the property also adjoins other land in the Local centre zone; and
    2. (b)
      the other types of uses that are identified as consistent uses or potentially consistent uses in the Local centre zone are not characterised by reference to hours of operation, such as that contained in acceptable outcome AO9 of the Service station code.  In this regard, a bar (a potentially consistent use), a theatre (a potentially consistent use), a food and drink outlet (a consistent use), a function facility (a consistent use), a shop (a consistent use), service industry (a consistent use), emergency services (a consistent use) and a parking station (a consistent use) are all uses that could:
      1. establish in a local area to serve residents of a local area, such as Moffat Beach that has a population (in 2021) of 2,620 persons;
      2. establish in a local area to serve visitors to such a local area (including those visitors who temporarily reside in a local area);
      3. generate noise and light; and
      4. operate during extended hours, including night-time hours.
  6. [154]
    If, contrary to my findings in paragraph [148] above, the imposition of condition 5 is relevant to securing compliance with those assessment benchmarks that seek to confine the function of the Moffat Beach local centre and the level of service that any development in that centre will provide, I am satisfied that its imposition for that purpose would be unreasonable for each of the following four reasons.
  7. [155]
    First, the proposed development would not compete with retail offerings in higher order centres or have any impact on higher order centres.
  8. [156]
    Second, the proposed development would replace an existing lawful use for a service station that is unconstrained in terms of operating hours.
  9. [157]
    Third, the level of patronage that the proposed development will attract during the night-time period is likely to be low.  This minimises the potential impacts from patrons attending the subject land.
  10. [158]
    Fourth, the operation of the proposed development 24 hours a day will not result in an adverse amenity impact, nor will it undermine or compromise the Sunshine Coast activity centre network.  It will have no unacceptable town planning consequence.

Conclusion regarding whether condition 5 is relevant and not an unreasonable imposition?

  1. [159]
    For the reasons provided in paragraphs [102] to [158] above, condition 5 is not a condition that can be lawfully imposed under s 65(1)(a) of the Planning Act 2016.

Should condition 5 be imposed in the exercise of discretion?

  1. [160]
    As I have found that condition 5 is not lawful, it is unnecessary for me to address in detail whether the condition should be imposed in the exercise of the discretion.  It is sufficient to make two observations. 
  2. [161]
    First, while the average patronage of the proposed development will diminish during night-time hours and, on any given evening, will likely be low, the existence of the proposed development to cater for such average (albeit low) patronage will improve the services and facilities available in the immediate area.[114]  It will improve the ease, comfort, convenience, and efficient lifestyle of the community of Moffat Beach.[115]  In this respect, I accept the evidence of Mr Duane that, accepting a low average patronage each night, at some time over the course of a year a high proportion of the residents of the immediate area could use the proposed development during the night-time hours.[116]  As such, if an operator is prepared to offer a 24-hour service despite such low levels of custom, the attendant benefit to the community satisfies me that condition 5 should not be imposed in the exercise of discretion in this case.
  3. [162]
    Second, if the reasons provided in paragraphs [24] to [158] above do not justify a conclusion that the condition is not lawful, they are sufficient to satisfy me that:
    1. (a)
      condition 5 is not required to achieve compliance with a relevant assessment benchmark; and
    2. (b)
      in any event, the condition should not be imposed in the exercise of discretion in this case.

Conclusion

  1. [163]
    For the reasons provided, condition 5 should not be imposed on the development approval.
  2. [164]
    As I have noted in paragraph [10] above, in those circumstances, the parties agree that the proposed development should be approved subject to those conditions contained in Exhibit 9.20.
  3. [165]
    In the circumstances, I propose to order:
    1. (a)
      the appeal is allowed;
    2. (b)
      the decision of the Sunshine Coast Regional Council made on 9 March 2021 in respect of the development application for a development permit for a material change of use for a service station in respect of land at 51 Roderick Street and 19 Buccleugh Street, Moffat Beach, properly described as Lots 16, 31 and 32 on RP 81828 and Lot 1 on RP 132680, and notified in the negotiated decision notice dated 17 March 2021, is set aside; and
    3. (c)
      that decision is replaced with a decision to approve the development application subject to the conditions contained in Annexure A of Exhibit 9.20.

Footnotes

[1]Exhibit 5.3 p 12.

[2]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 18 October 2021) 37.

[3]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 22 October 2021) 5-16.

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

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

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

[7]Planning Act 2016 ss 45(5) and 59.

[8]Exhibit 6.1.  Version 21 has been superseded, but no one challenges the opinion of the town planners that there are no relevant changes to the Planning Scheme: Exhibit 5.3 p 17 [6.4].

[9]Planning Regulation 2017 (Qld) s 31 and Sch 24. 

[10]Planning and Environment Court Act 2016, s 47.

[11]Planning Act 2016, s 60(2)(c).

[12]See s 324 of the Sustainable Planning Act 2009; Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, 150 [8].

[13][2001] QCA 334, [23] (footnotes omitted).  These observations of Atkinson J were cited with approval by Gotterson JA, with whom Muir JA and Atkinson J agreed, in Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2014] QCA 210; [2015] QPELR 68, 74 [28].  They were also endorsed by the High Court in Pike v Tighe [2018] HCA 9; (2018) 262 CLR 648, 659 [40] (per Kiefel CJ, Bell, Keane, Gordon & Edelman JJ).  These observations are consistent with the observations of Kitto J, Menzies J and Owen J in Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142 at 154.  They found that a condition requiring a developer to dedicate land to the Council for purposes relevant to subdivision of the larger parcel is the “quid pro quo” for restoration of a right to subdivide, which proprietary right was taken away by the planning legislation.

[14]Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, 150 [8]. The conditions power in s 65 of the Planning Act 2016 is materially in the same terms as its predecessors, namely s 345 of the Sustainable Planning Act 2009 and s 3.5.30 of the Integrated Planning Act 1997

[15]Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 58 ALJR 386; (1984) 54 LGRA 110, 113; Proctor v Brisbane City Council (1993) 81 LGRA 398, 401-4; Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [14].

[16]Wootton v Woongarra Shire Council [1986] QPLR 122; (1985) 56 LGRA 301, 303; Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [14].

[17]Proctor v Brisbane City Council (1993) 81 LGRA 398, 404; Wise v Maroochy Shire Council [1999] 2 Qd R 566, 571; Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, 153.

[18]Proctor v Brisbane City Council (1993) 81 LGRA 398, 404.

[19]See s 345(1)(a) of the Sustainable Planning Act 2009.

[20]Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [16].

[21]Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334, [5].

[22]Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, 150 [9]; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 67 [93]; Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; [1970] 123 CLR 490, 499-500.

[23][2014] QPEC 48; [2015] QPELR 49, 55 [24] citing Australian Retirement Homes Ltd v Pine Rivers Shire Council [2009] QPEC 92; [2010] QPELR 148.

[24]Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 54-6 [56]-[58] and 67 [93].

[25]Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 86-8 [152]-[157].

[26]Exhibit 1.1.

[27]Exhibit 1.3.

[28]Exhibit 1.1 p 6.

[29]The Council initially disputed that there were existing lawful use rights without constraint on the hours of operation.  After the hearing had concluded, the parties delivered an Amended Agreed List of Issues in Dispute: Exhibit 5.3.  It reflects that during the hearing the Council conceded that part of the subject land is improved by an existing service station that is an existing lawful use that is unconstrained in its hours of operation.

[30]Planning Scheme s 3.1(1).

[31]Planning Scheme s 3.1(2).

[32]Planning Scheme s 6.1(1).

[33]Exhibit 5.3 p 5.

[34]Exhibit 5.3 p 12.

[35]Exhibits 8.3 and 8.5.

[36]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 19 October 2021) 62-3.

[37]Building permit no. 9670.

[38]Building permit 9372-4

[39]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 22 October 2021) 25.

[40]Exhibit 5.3 p 6.

[41]Exhibit 5.3 pp 32-3.

[42]Exhibit 5.3 p 6.

[43]Exhibit 5.3 p 6.

[44]Exhibit 5.3 p 6.

[45]Exhibit 5.3 pp 5-6.

[46]Exhibit 5.3 p 6.

[47]Exhibit 8.7

[48]Exhibit 8.6.

[49]Exhibit 8.8.

[50]Exhibit 8.9.

[51]Exhibit 8.10.

[52]Exhibit 8.11.

[53]Exhibit 8.12.

[54]Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, 319-20 and 326; Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2007] QPEC 112; [2008] QPELR 342, 348-9 [40]; Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33, [46].

[55]Exhibit 5.3 p 6.

[56]Exhibit 5.1 pp 36-7.

[57]Exhibit 5.2 p 10.

[58]Exhibit 5.2 pp 29-31.

[59]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 19 October 2021) 55-6.

[60]Exhibit 5.2 p 35.

[61]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 19 October 2021) 57-8.

[62]Exhibit 4.1.

[63]In considering the evidence in Exhibits 8.7 to 8.12, I have kept in mind the objections (recorded in Exhibit 9.1) and the agreement between the parties with respect to the objections (recorded in Exhibit 9.7).

[64]The experts did not assess the time period between 10 pm and 6 am as the Council’s only changed its position with respect to the timeframe after the commencement of the hearing.

[65]Exhibit 5.2 pp 10 and 13-7.

[66]Exhibit 5.2 pp 33-4.

[67]Exhibit 5.2 pp 35-7.

[68]Exhibit 5.2 p 37.

[69]Exhibit 5.2 p 38.

[70]Exhibit 5.2 p 10.

[71]Exhibit 5.2 pp 40-67.

[72]Exhibit 5.2 pp 12-7.

[73]Exhibit 5.2 p 18.

[74]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 19 October 2021) 58-61.

[75]Exhibit 8.1 p 9.

[76]Exhibit 8.1 p 9.

[77]Exhibit 9.6.

[78]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 19 October 2021) 90.

[79]The Council initially disputed that there were existing lawful use rights without constraint on the hours of operation.  After the hearing had concluded, the parties delivered an Amended Agreed List of Issues in Dispute: Exhibit 5.3.  It reflects that during the hearing the Council conceded that part of the subject land is improved by an existing service station that is an existing lawful use that is unconstrained in its hours of operation.

[80]Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPELR 337, 339 [7].

[81]Lewiac Pty Ltd & ING Real Estate Joondalup BV v Gold Coast City Council & Ors [2003] QPELR 385, 389 [16], which was endorsed by the Court of Appeal in Australian Capital Holdings Pty Ltd v Mackay City Council & Ors [2008] QCA 157, [58] - [59].

[82]Proctor v Brisbane City Council (1993) 81 LGRA 398, 404; Wise v Maroochy Shire Council [1999] 2 Qd R 566, 571; Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, 153.

[83]See s 345(1)(a) of the Sustainable Planning Act 2009.

[84]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 22 October 2021) 26-.

[85]Exhibit 5.2 p 15.

[86]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 19 October 2021) 59-60.

[87]This was conceded by the Council: Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 22 October 2021) 30.

[88]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 19 October 2021) 59-60.

[89]See, for example, Exhibit 5.2 pp 13 and 14.

[90]Exhibit 1.5.

[91]Exhibits 1.3 and 1.4.

[92]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 22 October 2021) 26-37.  

[93]Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, 26.  See also John Dyson Heydon, Cross on Evidence (Lexis Nexis Butterworths Australia, 9th ed, 2013) [17435]-[17460] re the rule in Browne v Dunn (1893) 6 R 67 (HL).

[94]See paragraph [10] above.

[95]Exhibits 8.3 and 8.5.

[96]See paragraphs [42] and [43] above.

[97]Even the town planner retained by the Council, Mr Adamson, accepted this to be so: see Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 20 October 2021) 23.

[98]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcott Pty Ltd & Ors [2021] QCA 95, [77] citing Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82 and AAD Design Pty Ltd v Brisbane City Council & Anor [2012] QCA 44; [2013] 1 Qd R 1.

[99][2021] QCA 95, [75].

[100]Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcott Pty Ltd & Ors [2021] QCA 95, [75] (references omitted).

[101]Written Submissions of the Respondent p 22 [108].

[102]Exhibit 5.1 p 11 and Exhibit 5.3 p 25.

[103]Exhibit 5.1 pp 11 and 14.

[104][2018] QPEC 32; [2018] QPELR 1026.

[105]Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, 1036.

[106]Planning Scheme s 6.2.7.2.

[107]Exhibit 8.13 pp 6-7.

[108]Exhibit 5.1 p 11.

[109]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 19 October 2021) 12 and 36.

[110]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 19 October 2021) 8-10.

[111]Exhibit 5.1 pp 37-9

[112]Planning Scheme s 3.3.4.1(d).

[113]See, for example, the Dwelling house code and the Low density residential zone code.

[114]Exhibit 5.1 p 40 [102] and Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 20 October 2021) 5-12.

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

[116]Transcript of Proceedings, Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council (Planning and Environment Court of Queensland, 795 of 2021, Kefford DCJ, 19 October 2021) 8.

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Editorial Notes

  • Published Case Name:

    Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council

  • Shortened Case Name:

    Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council

  • MNC:

    [2022] QPEC 22

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    07 Jul 2022

Appeal Status

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

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