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Yorkeys Knob BP Pty Ltd v Cairns Regional Council[2022] QPEC 6

Yorkeys Knob BP Pty Ltd v Cairns Regional Council[2022] QPEC 6

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QPEC 6

PARTIES:

YORKEYS KNOB BP PTY LTD

(Appellant)

v

CAIRNS REGIONAL COUNCIL

(Respondent)

FILE NO/S:

2376/2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

The Planning and Environment Court, Brisbane

DELIVERED ON:

18 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

7 – 10 February 2022

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for a Service Station, Shop and Food and Drink Outlet in the Rural zone.

PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with the planning scheme – whether there is a need for the proposed development.

CASES:

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

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

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147

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

LEGISLATION:

Planning and Environment Court Act 2016 (Qld) ss 43, 45(1)(a) and 46(2)

Planning Act 2016 (Qld) ss 45 and 60(3)

Planning Regulation 2017 (Qld) s 31

COUNSEL:

M J Batty and T D Stork for the appellant

B D Job QC and J G Lyons for the respondent

SOLICITORS:

Evans Planning Law for the appellant

P & E Law for the respondent

Introduction

  1. [1]
    This is an appeal against the refusal by the respondent of a development application for a development permit for a material change of use (Service Station, Shop and Food and Drink Outlet) and a development permit for Reconfiguring a Lot (Boundary Realignment) (“the proposed development”) on land at 750 Captain Cook Highway and 111L Yorkeys Knob Road, Yorkeys Knob (“the site”).
  2. [2]
    The site is in a rural area, within an inter-urban break and mapped within an area of High landscape value pursuant to the respondent’s planning scheme, Cairns Plan 2016[1] (“the planning scheme”).  There is a strong intent running through the planning scheme that the site is not to be developed in a manner contemplated by the proposed development. However, the appellant asserts that there is a significant need for the proposed development which over-rides the non-compliances with the planning scheme.[2]

The site and the surrounding area

  1. [3]
    The site comprises two allotments with a combined area of approximately 22 hectares located at the north-eastern corner of the intersection of the Captain Cook Highway and Yorkeys Knob Road.[3]  The Captain Cook Highway is a state-controlled road comprising four lanes which adjoins the southern boundary of the site.  Yorkeys Knob Road is a major rural road consisting of two lanes and is located along the western boundary of the site.  It is mostly flat and unimproved.  Currently it is not subject to cropping and is covered by grass and weeds.[4]
  2. [4]
    The site is located amongst low-lying rural land, generally characterised by sugarcane farming.[5]  It has been identified as good quality agricultural land but is suited only to sugarcane production, although some adjoining land is now used for equine grazing.[6]
  3. [5]
    The site is located within the Barron River floodplain between the Coral Sea and the McAlister Range.[7]  It is part of a large area in the Rural zone,[8] and within a large area referred to in the planning scheme as an inter-urban break.[9]  One of the overall outcomes in the Flood inundation hazards and overlay code of the planning scheme is to “protect the scenic amenity of this inter-urban break”.[10]  The site is mapped in the planning scheme as being within an area of High landscape value.[11]  A map showing the built form in the surrounding area confirms the presence of the inter-urban break.[12]  Although there are some non-rural uses within this  inter-urban break, rural amenity and rural uses predominate in the vicinity of the site.  It has significant landscape values which are reflective of this.  I agree with the observations of Dr McGowan, the visual amenity expert called on behalf of the respondent that:

“The floodplain landscape is characterised by: its sense of openness, which is framed by dramatic slopes of the surrounding ranges; the predominance of agricultural activity and rural landscape; intermittent natural landscape features, particularly riparian vegetation and river crossings; and clear dominance of the rural and natural landscape features over the modest, sporadic clusters of built form”.[13]

The proposed development

  1. [6]
    The proposed development is intended to be built on a hard stand area of approximately one hectare,[14] taking access from Yorkeys Knob Road.[15]  In addition to 58 car parking spaces and six fuel bowsers for cars and other light vehicles, it is also proposed that there will be B-Double parking spaces, two coach parking spaces and three van parking spaces.  It is proposed that there will be three fuel bowsers for trucks and other heavy vehicles.[16]  The proposed building is intended to be one storey high, 17 metres wide and 69 metres long. It is intended to contain the Service Station operations, two fast food outlets, which are to be 200m2 and 100m2 respectively,[17]  and a kiosk and a shop as well.  The proposed hours of operation are 24 hours per day, seven days a week.[18]  In addition to an indoor dining area and amenities, a drivers’ lounge facility for heavy vehicle drivers is proposed.[19]
  2. [7]
    The building is to be 130m from the carriageway of the Captain Cook Highway and 90m from Yorkeys Knob Road.[20]  Two other roof structures outside the proposed building are contemplated which cover fuel dispensing forecourts.  The larger of the two has a height of slightly over 5m, a width of approximately 18m and a length of approximately 28m.  There is intended to be another free-standing roof structure to the north of the main building with the same height and the dimensions of 14.5m long and 11.5m wide.[21]  In addition, a number of external signs are proposed: a main pylon sign, approximately 20m high and 4.5m wide and smaller signage, one 3.7m high and 2m wide and another, 7.9m high and 2.4m wide.[22]  In circumstances where it is uncontroversial that a key locational criterion for the proposed development is a strong visual presence,[23] it is unsurprising that it is being marketed as having unimpeded sightlines to the Captain Cook Highway.[24]  The photomontages placed in evidence before me show that the proposed development is intended to be clearly visible in the daytime[25] and it will obviously be well lit at night,[26] albeit in the context of the current highway lighting.
  3. [8]
    I agree with the observations of Dr McGowan as to the visual impacts of the proposed development in the context of where the site is located:

“Apart from some aspects of the landscape (such as the detention basin), there is nothing about the proposed development that would relate it to the rural landscape character… It will present as a disparate and incongruent intrusion into the rural landscape.  The building canopy, extensive hardstand, and the high level of concentrated vehicle activity would be at odds with the rural character of the area.  The prominent signage would exacerbate this incompatibility, as indicated in the photomontages…”[27]

The statutory assessment framework

  1. [9]
    Pursuant to the Planning and Environment Court Act 2016 (“PECA”) the appeal is by way of hearing anew,[28] and the appellant must establish that the appeal ought be upheld.[29]  Section 46 of the PECA addresses the nature of an appeal and relevantly provides:

“(2) The Planning Act section 45 applies for the P&E Court’s decision on the appeal as if—

  1. (a)
    the P&E Court were the assessment manager for the development application; and
  2. (b)
    the reference in subsection (8) of that section to when the assessment manager decides the application where a reference to when the P&E Court makes the decision.”
  1. [10]
    As the proposed development was impact assessable, s 45 of the Planning Act 2016 (“PA”) provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument which, in the circumstances before me, are the relevant provisions of the planning scheme.[30]  It must also be carried out having regard to any matters prescribed by regulation.[31]  In this regard s  31 of the Planning Regulation 2017 states that impact assessment must be carried out having regard to the Far North Queensland Regional Plan 2009 – 2031 (“FNQRP”).[32]  However, I must only do this to the extent I consider the FNQRP relevant to the proposed development.[33]  As the planning scheme states that it appropriately advances the FNQRP as it applies to the planning scheme area, I do not consider the FNQRP is separately relevant to the proposed development.[34]
  2. [11]
    Of particular relevance in the determination of this appeal, the assessment undertaken by me may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[35]
  3. [12]
    The court in determining an appeal about a development application is conferred a wide discretion pursuant to s 60 of the PA which relevantly states:

“(3) To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide—

  1. (a)
    to approve all or part of the application; or
  2. (b)
    to approve all or part of the application, but impose development conditions on the approval; or
  3. (c)
    to refuse the application.”
  1. [13]
    In undertaking this task, the observations of Mullins JA in Abeleda & Anor v Brisbane City Council & Anor are instructive:

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

[43]  In view of the fact that s 60(3) of the Act reflects a deliberate departure on the part of the Legislature from the two part test under s 326(1)(b) of the SPA, it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved. The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application.  The weight given to each of the factors is a matter for the decision-maker in the circumstances...”[36]

  1. [14]
    Mullins JA further observed in Wilhelm v Logan City Council & Ors:

“[77]  …The change in the decision-making regime has not affected the fundamental nature of a planning scheme as the reflection of the public interest in the appropriate development of land.”[37]

  1. [15]
    The applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council, notably that the same principles which apply to statutory construction apply to the construction of planning documents,[38] and that such documents need to be read as a whole, in a way which is practical and as intending to achieve a balance between outcomes.”[39]
  2. [16]
    Finally, while I must assess the proposed development against or having regard to the planning scheme in effect when the development application was properly made, I may give the weight I consider appropriate to amendments to it after the development application was properly made.[40]  In this regard, amendments contained in Version 3.0 of the planning scheme have been identified for my consideration by the respondent in the issues for determination.  However, I do not propose to give any weight to them in circumstances where the planner called on behalf of the respondent, Mr Schomburgk, readily conceded that there is no meaningful difference between the planning scheme in force at the time the development application was properly made and Version 3.0.[41]

Relevant provisions of the planning scheme

  1. [17]
    As stated above, the planning scheme and specifically the strategic framework, advance the FNQRP.[42]  Where there is an inconsistency between provisions of the planning scheme, the strategic framework prevails over all other components to the extent of the inconsistency.[43] 
  2. [18]
    The following elements of the strategic framework have been identified as relevant to my consideration of the disputed issues:

3.2 Strategic intent

Rural land has been protected and is used for rural purposes.

The hillslopes, waterways, natural areas and rural surrounds sit alongside the urban environment.  They are protected and enjoyed by the community for their character and identity, landscape value and contribution to the local economy…[44]

3.3 Settlement pattern theme

3.3.1 Strategic outcomes

  1. (1)
    The region grows and evolves in a way that:

  1. (i)
    retains rural land for agricultural uses;[45]

3.3.6 Element – rural areas

3.3.6.1 Specific outcomes

  1. (1)
    Rural areas are used for agricultural purposes.

  1. (4)
    Rural areas that provide an inter-urban break or have scenic landscape value are retained in their form for that purpose.

  1. (7)
    Boundary realignments occur only in rural areas where improved agricultural production or environmental protection outcomes are demonstrated or to resolve building encroachment issues.”[46]

3.4.4 Element – landscapes

3.4.4.1 Specific outcomes

  1. (1)
    Development protects, maintains and enhances the region’s landscape values.
  2. (2)
    Rural and inter-urban breaks are protected from visual intrusion.[47]

3.4.6 Element – natural hazards

3.4.6.1 Specific outcomes

  1. (6)
    Development in the coastal communities of Yorkeys Knob, Holloways Beach and Machans Beach is contained within the existing identified urban area to prevent expansion into areas that are vulnerable to natural hazards.
  2. (7)
    Development, other than agricultural activities does not occur within the Barron River Delta flood plan.”[48]
  1. [19]
    The strategic direction identified in the above provisions is further confirmed in the lower order provisions of the planning scheme.  When interpreting provisions found within various codes, s 5.4 states that code assessable development that complies with the purpose and overall outcomes of the code, or the performance or acceptable outcomes, complies with the code.[49]
  2. [20]
    As the site is in the Rural zone, the rural zone code applies and relevantly states:

6.2.19.2

  1. (1)
    The purpose of the Rural zone code is to:

  1. (b)
    provide opportunities for non-rural uses that are compatible with agriculture the environmental features, and landscape character of the rural area where the uses do not compromise the long-term use of the land for rural purposes;
  2. (c)
    protect area of Agricultural Land Classification Class A and Class B for agricultural use by avoiding fragmentation and locating non-agricultural development on or adjacent to Rural zoned land;

  1. (2)
    The local government purpose of the code is to:

  1. (c)
    provide protection to areas of environmental and scenic significance.

  1. (3)
    The purpose of the code will be achieved through the following overall outcomes:
  1. (a)
    areas for use for primary production are conserved and fragmentation is avoided;

  1. (c)
    rural lots are consolidated to reduce fragmentation to maintain the predominant form of rural use in the area;

  1. (e)
    development other than a rural use is directly associated with the rural character of the zone;”[50]

Thereafter, the following performance outcomes are relevant:

“PO3

Development is consistent with the purpose and overall outcomes sought for the zone.

PO4

Uses and other development include those that:

  1. (c)
    are compatible with rural activities or are capable of establishing in a rural settling within suitable buffers so that nearby rural activities are not compromised;

PO5

The site coverage of buildings, structures and associated services does not have an intrusive effect on the rural or scenic values of the site.[51]

  1. [21]
    Although flooding is no longer a discreet issue in dispute, the Flood and inundation hazards overlay code applies to the site and, as stated above, states in the purpose provisions that the overall outcomes sought for the Barron River Delta include the protection of the scenic amenity “of this major inter-urban break.”[52]
  2. [22]
    The following provisions of the Landscape values overlay code are also identified as relevant to the determination of the appeal:

8.2.10.3 Purpose

  1. (1)
    The purpose of the Landscape values overlay code is to ensure that development protects, maintains and enhances the landscape values within the Cairns region.
  2. (2)
    The purpose of the code will be achieved through the following overall outcomes:
  1. (a)
    areas of High landscape value are protected, retained and enhanced;

  1. (d)
    development maintains and enhances the significant landscape elements and features which contribute to the cultural significance and distinctive character and identity of the Cairns region;

  1. (f)
    inland watercourses, forested mountains and coastal landscape character types remain predominantly natural in appearance in order to maintain the region’s diverse character and distinctive tropical image, in particular:
  1. (i)
    areas in the coastal landscape character type which are predominantly natural and undeveloped in appearance retain this natural landscape character;
  2. (ii)
    inland watercourses which are predominantly natural and undeveloped in appearance retain this natural landscape character;
  3. (iii)
    the rural character of canfields, grassy hillsides and lowlands landscape character types which are predominantly rural or natural in appearance are maintained.
  1. (g)
    landscape values are maintained when viewed from:
  1. (i)
    lookouts;
  2. (ii)
    scenic routes;
  3. (iii)
    gateways;
  4. (iv)
    public places.
  1. (h)
    view towards High landscape value areas and the Coral Sea are not diminished;
  1. (i)
    development is consistent with the prevailing landscape character of its settling, and is neither visually dominant nor visually intrusive.”[53]
  1. [23]
    Thereafter, performance outcome PO1 requires development within High landscape value areas identified on the Landscape values overlay maps, to be sensitive to the setting and in particular be “effectively screened from view from a road”.[54]
  2. [24]
    For the sake of completeness, the Service station and car wash code contemplates centre activities being ancillary to the service station use.[55]  An ancillary use is defined as a “use that is directly associated with and subordinate to the primary use of the land”.[56]  Centre activities are in turn defined to include a Food and drink outlet and a Shop.[57]  Finally, the term Landscape values is widely defined as “Landscape attributes perceived by the community and visitors as contributing to the attractive scenery and distinctive visual imagery of the Cairns region”, including “canefields”.[58]

The disputed issues

  1. [25]
    The parties agreed the extent of the disputed issues remaining for determination in the appeal.  Essentially they are:
  1. 1.Whether the proposed development is an appropriate use of the site by reference to relevant provisions of the planning scheme identified above;
  2. 2.Whether the proposed development would have unacceptable rural character and scenic amenity impacts by reference to various provisions of the planning scheme identified above; and
  3. 3.Whether relevant matters warrant approval for the proposed development.  In particular whether there is a sufficient planning need for it in circumstances where it is otherwise appropriately located, will not result in any unacceptable planning consequences and can co-exist with nearby rural uses.[59]
  1. [26]
    The agreed list of disputed issues also raised issues concerning the FNQRP and the weight to be given to amendments in Version 3.0 of the planning scheme which I have already dealt with.  The appellant also raised the benefits of convenience, competition and choice as relevant matters.  However, given the extent to which the proposed development is inconsistent with the planning strategy evident for the site, such matters are not of sufficient weight themselves to warrant consideration should a sufficient need for the proposed development not be demonstrated.
  2. [27]
    Finally, the appellant also raises community expectations as a relevant matter. The planning scheme, being the reflection of the public interest, is where community expectations spring from.

Strategic planning and amenity considerations

  1. [28]
    The planning scheme makes it very clear that not only is rural land to be protected and used for rural purposes but relevantly, rural areas in certain circumstances provide an inter-urban break or have scenic landscape value and should be retained in their current form from an amenity perspective.  The site is within such an area and it is mapped as having High landscape value.  It was not suggested that the relevant provisions of the planning scheme are not soundly based.  It is apparent that the extent of the rural land in the inter-urban break and its qualities provides a sound basis for this strategy.[60]  Contrary to the submissions of the appellant which disparage the state of the site and its landscape values, I accept both that the site has scenic landscape values in its wider context and that the proposed development will have significant impacts upon them as set out in the evidence of Dr McGowan quoted above.
  2. [29]
    The Rural zone code is reflective of this strategy and places even more restrictions on opportunities for non-rural uses.  In the purpose, it is stated that they must not only be compatible with agriculture, the environmental features and landscape character of the rural area, but also not compromise the long-term use of the land for rural purposes.  Clearly the proposed development with its extensive pad and associated infrastructure will do this.  There will also be a fragmentation of Class B Agricultural Land, although I concede that it will not be significant when one has regard to the amount of land in the vicinity of the proposed development.  I am satisfied that contrary to PO5 of the Rural zone code that the proposed development will have an intrusive effect on the rural or scenic values of the site despite the presence of the Captain Cook Highway and its attendant infrastructure, including signage and lighting.  There will be a similar compromise of the landscape values which are sought to be protected in the Landscape values overlay code.  While the appellant emphasises the fact that the land to be repurposed is not currently being used for cropping or any rural activities, it remains suitable caneland that (apart from a small area of filling of approximately 0.45 ha)[61] is readily capable of being cropped in this way. All of the site is suitable for uses contemplated by the Rural zone code.
  3. [30]
    I found the evidence of Mr Schomburgk, the town planner who gave evidence on behalf of the respondent, particularly persuasive in justifying the planning strategy referred to above.  He stated:

“In my opinion, the policy intent to discourage (prevent) non-rural uses such as this is clear…and…soundly based.  While some other non-rural uses had historically developed in parts of the delta/inter-urban (break), that ought not be regarded as a basis for adding other non-rural uses into this locality, especially uses such as proposed that are, by their nature, prominent visual features and attract high visitation.  I say it is soundly based because Cairns’ growth is physically constrained by the ocean to the east and the mountain range to the west.  Hence, Cairns has developed in a linear form and, without appropriate inter-urban breaks to the north and south, would be in danger of becoming a single, linear metropolis, thereby losing the character that has evolved from a series of discreet villages/townships for the northern beaches…In my opinion there are, then sound town planning reasons to maintain and reinforce this particular inter-urban break…”[62]

  1. [31]
    Mr Schomburgk went onto state:

“In my opinion, there are adverse town planning consequences that will arise from approval of this development, being further non-rural intrusion into the inter-urban break and thereby further dilution of the concept of such a break, and a detraction from the sense of community that has evolved for the discreet towns of the northern beaches of Cairns.”[63]

  1. [32]
    Turning to the relevant matter raised by the appellant, that the proposed development would be appropriately located, it is notable that both Mr Schomburgk and the planner who gave evidence on behalf of the appellant, Ms Morrissy, agreed that:

“Absent all other considerations, the subject site is appropriate for a service station given its location on the corner of a busy highway (serving passing motorists and heavy vehicles) and a lower order road (serving Yorkeys Knob community as well)”.[64]

  1. [33]
    I accept that from a purely functional perspective, the site is a good location for the proposed uses in circumstances where both planners also conceded that a contemporary service station will often include one or more fast food outlets and a small shop for convenience goods.[65]  I also accept that surrounding land could continue to be used for rural uses and that there would not be a meaningful loss of good quality agricultural land as a consequence of the proposed development.  The fact remains, however, that the proposed development is completely at odds with the clear planning intent that it not occur on the site. The site is appropriately designated as part of a wider area of rural land exhibiting rural amenity and high landscape values.  To allow the proposed development to intrude into this area will indeed result in unacceptable planning consequences for the reasons identified by Mr Schomburgk above.

Need

  1. [34]
    In circumstances where there is a significant divergence between the proposed development and the planning strategy evident in the planning scheme to preserve the rural qualities of the site, the appellant submits that there is a significant need for it which overcomes the non-compliances with the planning scheme.  The concept of planning need was explained by Wilson SC DCJ in Isgro v Gold Coast City Council & Anor in the following terms:

“Need in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community…Of course, a need cannot be a contrived one.  It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met…”[66]

  1. [35]
    The only evidence given at the hearing of the appeal, which addressed this question, was by two economists, Mr Stephens who gave evidence on behalf of the appellant, and Mr Norling who gave evidence on behalf of the respondent.  Their analysis began with the identification of a “Resident Catchment” for the northern beaches which had the Barron River at its southern-most boundary and extended to beyond Palm Cove to the north.[67]  Their analysis revealed that the catchment was a dormitory area relying to a significant extent on accessing employment outside of it and primarily to the south.  A significant 68 per cent of resident workers travel outside of it for work.[68]  Furthermore, the northern beaches catchment has a higher rate of car ownership than the Cairns local government area as a whole and slightly higher than the Queensland average.[69]  Queensland has an average of one service station for every 3,540 residents,[70] whereas the average number of service stations in Cairns was only one per 3,730 people.[71]  Mr Stephens contended that the threshold identified by the Australia Petroleum Institute of one service station for 4,000 people ought to be applied to the catchment resulting in a need for 8.8 service stations.[72]  There are currently only five service stations operating within the catchment and one approved service station which has not yet been developed.[73] There are currently proposals for three additional service stations in the northern beaches corridor.[74]
  2. [36]
    Mr Stephens also sought to demonstrate a demand for an integrated facility, designed to meet the needs of heavy and commercial vehicles passing through the northern beaches and tourists and visitors to the northern beaches.[75]  In respect of the former, the term “heavy vehicle” contemplates anything that is not a car, utility or light van right up to a B-Double or a road train.[76]  Mr Stephens went on to assert that the proposed development would offer a number of facilities that would be attractive to both drivers in the transport industry and tour operators. These include the extensive parking for buses and vehicles, high and ultra-high flow diesel, undercover pumps, fast food and even a lounge for the drivers of heavy vehicles who might choose to utilise the proposed development.[77]  The difficulty with this evidence was that there was absolutely no evidence from anyone involved in the road transport industry or anyone involved in the tourist industry in the Cairns region, asserting that the proposed development is one which would likely be used by them.  Mr Stephens admitted under cross-examination that he had a limited knowledge of the heavy and commercial vehicle industry in Cairns.[78]  He stated that this was his first assignment that related to this industry and that he had not even spoken to anyone involved in the industry in the Cairns region.[79]  He was unaware of any issue with fatigue management in the region.[80]  He was also unaware as to whether there was any deficiency in what was provided to tour groups in the Cairns region.[81] 
  3. [37]
    The appellant has therefore not demonstrated any need for the proposed development from the perspective of either the requirements of the road transport industry or tourist industry in the Cairns region.  The vehicles in question are generally large and would be based in a location where there are already facilities available for refuelling and obtaining refreshments.  It cannot be postulated that there is a need for a facility to serve these purposes just to the north of the Cairns CBD merely on the premise that there is not one there already.
  4. [38]
    A similar problem arises by merely relying upon broad analyses of numbers of residents and numbers of service stations when endeavouring to assess the need for the proposed development.  So far as the service station component is concerned, the fact that 68 per cent of resident workers travel outside the northern beaches catchment for employment purposes and most of them head south towards Cairns, is a particularly relevant statistic.  Firstly, there is an additional service station just to the south of the southern boundary of the catchment on the inbound side of the Captain Cook Highway for commuters to utilise should they be travelling south to work.  Mr  Stephens did not include this in his analysis.  Mr Norling did include it. Mr Stephens asserted that the presence of the Smithfield Shopping Centre and the James Cook University within the catchment would offset through inflows of people seeking fuel within it, the leakage of commuters obtaining fuel outside of it.[82]  I found this analysis too glib and simplistic.  It was not based on any statistical analysis. Moreover, no evidence was placed before me of residents of the northern beaches catchment needing to queue to obtain fuel or of any inconvenience or lack of choice in accessing fuel for their vehicles.  It also appears that high-flow diesel is already available at service stations within the catchment, although the extent to which it is remains unclear.[83]
  5. [39]
    Mr Norling expressed the view that there was likely to be less demand for service stations within the catchment because most of the people who live there worked outside of it, and mostly in the Cairns urban area.[84] He nonetheless was of the view that while there was no need for a traditional service station on the site, there was a modest need for a service centre of the type proposed to locate in the northern beaches to cater for the travelling public.[85] I accept that the particularly high number of residents who commute south towards Cairns results in significant utilization by them of the service station just south of the Barron River and of the many other service stations on commuter routes outside the identified catchment.
  6. [40]
    The appellant has applied for three separate uses.  They are all impact assessable on the site and a service station is an impact assessable use in every zone of the planning scheme.[86]  While there are plenty of food and drink outlets in the catchment and plenty of locations for shops,[87] I accept that as an integrated facility the proposed development has attractions over and above those which are evident on a separate analysis of each of the discreet uses.  It is clear, by virtue of the three current applications for service stations in the northern beaches corridor, that there are other sites where the need for the various components of the proposed development, including the service station use, could be met.  I am satisfied that there are ample opportunities to meet this need outside the Barron River Delta, with its attendant restrictions on non-rural development. So much is evident by the approved, but not yet operating service station at Smithfield,[88] and two proposed service stations at Trinity Beach and Clifton Beach.[89] 
  7. [41]
    The appellant has not discharged the onus of demonstrating a sufficient level of need for the proposed development to overcome the fundamental and serious inconsistencies with the planning strategy evident in the provisions of the planning scheme discussed above which, quite simply, is to keep the site in a rural state in order to preserve the rural amenity of the inter-urban break in which it is situated.

Conclusion

  1. [42]
    The planning strategy evident in the planning scheme which seeks to preserve the rural character of the site as part of a significant inter-urban break is sound and apparent at every level of the planning scheme.  The proposed development will represent a significant and unacceptable encroachment into this area. It is not an appropriate use for the site in circumstances where, although it would be a good location for such a development from a purely functional perspective, a sufficient planning need for it has not been demonstrated to warrant such a comprehensive intrusion into the rural and landscape amenity of the inter-urban break.  In failing to discharge the onus of demonstrating a sufficient planning need for the proposed development, the remaining relevant matters relied upon by the appellant are insufficient to justify it in the exercise of my discretion. In these circumstances, there is no justification for the proposed boundary realignment sought by the development application either.[90]
  2. [43]
    The appellant has failed to discharge the onus of demonstrating a sufficient planning need for the proposed development and the appeal is dismissed.

Footnotes

[1]  Version 2.1.

[2]  In submissions on behalf of the appellant, para 17.

[3]  Exhibit 5, para 13.

[4]  Ibid.

[5]  Ibid, para 18.

[6]  Exhibit 15, p 1.

[7]  Exhibit 7, para 27 and Exhibit 20.

[8]  Exhibit 5, para 83.

[9]  Ibid, para 95.

[10]  Section 8.2.7.2(3), Exhibit 4, p 43.

[11]  Exhibit 7, Fig. 29.

[12]  Exhibit 20.

[13]  Exhibit 7, para 92.

[14]  Exhibit 29.

[15]  Exhibit 1, p 4.

[16]  Exhibit 5, para 49 and para 50.

[17]  Ibid, para 45, Table 4 and Exhibit 7, para 39.

[18]  Ibid, para 54.

[19]  Ibid, para 52.

[20]  Exhibit 7, para 40.

[21]  Ibid, para 41.

[22]  Ibid, para 42 and Exhibit 1, p 9.

[23]  T1-73, ll 5-10.

[24]  Exhibit 26.

[25]  Exhibit 16.

[26]  Exhibit 11.

[27]  Exhibit 7, para 106.

[28] Planning and Environment Court Act 2016 (Qld) s.43.

[29]  Ibid s. 45(1)(a).

[30] Planning Act 2016 (Qld), s 45(5)(a)(i).

[31]  Ibid, s 45(5)(a)(ii).

[32] Planning Regulation 2016, s 31(1)(d).

[33]  Ibid, s 31(2)(a).

[34]  Section 2.2, Exhibit 4, p 13.

[35] Planning Act 2016 (Qld), s 45(5)(b).

[36]  [2020] QCA 257.

[37]  [2020] QCA 273.

[38]  [2014] QCA 147 at [52].

[39]  Ibid at [56].

[40] Planning Act 2016 s 45(7) and (8).

[41]  T3-53, ll 25 – 30.

[42]  Section 2.2, Exhibit 4, p 13.

[43]  Section 1.5, Ibid, p 9.

[44]  Ibid, p 15.

[45]  Ibid, p 16.

[46]  Ibid, p 21.

[47]  Ibid, p.24.

[48]  Ibid, p 25.

[49]  Section 5.4(1)(iii), Ibid, p 32.

[50]  Ibid, p 38.

[51]  Ibid, pp 39 – 40.

[52]  Section 8.2.7.2(3), Ibid, p 43.

[53]  Ibid, p 51.

[54]  Ibid, p 52.

[55]  Section 9.3.22.2(2)(b) and PO1(a), Ibid, p 58.

[56]  Ibid, p 113.

[57]  Ibid, p 108.

[58]  Ibid, p 118.

[59]  Exhibit 3.

[60]  Exhibit 20.

[61]  Exhibit 15, p 3.

[62]  Exhibit 5, para 144.

[63]  Ibid, para 147.

[64]  Ibid, para 230(j).

[65]  Ibid, para 230(i).

[66]  [2003] QPELR 414 at [21].

[67]  Exhibit 6, para 65, Map 6.

[68]  Ibid, para 74.

[69]  T2-3, ll 45 – 50, T2-4, ll 1 – 2.

[70]  Exhibit 6, para 56.

[71]  Ibid, para 116.

[72]  Ibid, para 115.

[73]  Ibid, para 84, Table 8, as amended.

[74]  Ibid, para 146(iv), as amended.

[75]  Exhibit 13, para 11.

[76]  Exhibit 27, para 1(a), AUSTROADS annexure.

[77]  Exhibit 13, para 9, T1-116, ll 20 – 40.

[78]  T1-74, ll 20 – 25.

[79]  T1-75, ll 10 – 45.

[80]  T1-79, ll 10 – 15.

[81]  T1-97, ll 1-15.

[82]  T1-114, ll 45 - T1-115, ll 20.

[83]  T1-118, ll 5 – 15.

[84]  T1-136, l 40 – T1-137, l 10.

[85]  T1-138, l 20 – T1-140, 1 50.

[86]  T3-63, ll 9 – 10.

[87]  Exhibit 6, para 95, Table 9 and para 141.

[88]  Perhaps the delay can be explained by the need for access from the recently constructed Smithfield Bypass, Exhibits 23, 24 and 27.

[89]  Exhibit 6, para 146(1) and T1-142.

[90] This is conceded by Ms Morrissy and Mr Schomburgk, Exhibit 5, para 230(g).

Close

Editorial Notes

  • Published Case Name:

    Yorkeys Knob BP Pty Ltd v Cairns Regional Council

  • Shortened Case Name:

    Yorkeys Knob BP Pty Ltd v Cairns Regional Council

  • MNC:

    [2022] QPEC 6

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    18 Feb 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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