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Northern Sands Pty Ltd v Cairns Regional Council[2023] QPEC 31

Northern Sands Pty Ltd v Cairns Regional Council[2023] QPEC 31

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Northern Sands Pty Ltd v Cairns Regional Council [2023] QPEC 31

PARTIES:

NORTHERN SANDS PTY LTD

(ACN 096 988 920)

(appellant)

v

CAIRNS REGIONAL COUNCIL

(respondent)

FILE NO:

72 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Cairns

DELIVERED ON:

11 August 2023

DELIVERED AT:

Cairns

HEARING DATE:

27-29 July 2022, 1-2 August 2022.

JUDGE:

Morzone KC DCJ

ORDER:

  1. The orders made on 8 November 2019 be varied in paragraph 1 as follows:
    1. Delete “Schedule 2 of the Planning Act 2016” and insert in lieu “the Sustainable Planning Act 2009”.
    2. Delete “Schedule 1 of the Development Assessment Rules” and insert “Statutory Guideline 06/09 under the Sustainable Planning Act 2009”.
  2. The applications to develop a petrol service station/truck stop including a convenience store, three fast-food tenancies and a truck drivers’ lounge centre are refused.
  3. Appeal dismissed.
  4. I will hear further submissions as to final orders consistent with these reasons.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Appeal against refusal of development application – impact assessment of development permit for material change of use to authorise the use of the Proposed Service Centre/Truck Stop and a development permit for reconfiguring a lot to allow an amendment of an access easement that currently encumbers Lot 5 on SP309133 for the benefit of Lot 6 on SP309133 – code assessment of the Material Change of Use and code assessment for the Reconfiguration – whether the scope of the development application include decoupled truck parking facilities – whether the proposal conflict with the planning instruments, in relation to the proposed land use and location and the rural character and scenic amenity – whether proposal inconsistent with existing approvals over the land – whether If the proposal conflicts with the planning instruments, are there sufficient grounds to approve the application, including whether there is a need for the proposal.

LEGISLATION:

Planning Act 2016 (Qld)

Sustainable Planning Act 2009,(Qld)

Planning and Environment Court Rules 2018

CASES:

All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155

Bell v Brisbane City Council & Ors [2018] QCA 84

Bunnings Building Supplies Pty Ltd v Redland Shire Council [2000] QPELR 193

Clark v Cook Shire Council [2008] 1 Qd R 327

Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126

Degee v Brisbane City Council [1998] QPELR 287.

Dempsey v Brisbane City Council & Ors [2012] QPEC 2

Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209

Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40

Fitzgibbon Hotel Pty Ltd v Logan City Council [1997] QPLER 208

Friend v Brisbane City Council [2014] QPELR 24

Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132

Harbug Investments Pty Ltd v Brisbane City Council [2000] QPELR 313

Heran Building Group Pty Ltd v. Logan City Council [2002] QPELR 303

Heritage Properties Pty Ltd v Redland City Council & Ors [2010] QPEC 19.

Hydrox Nominees Pty Ltd v Sunshine Coast Regional Council [2014] QPEC 18

Indooroopilly Golf Club v Brisbane City Council [1982] QPELR 13 at 32-35.

Intrafield v Redland Shire Council [2001] 116 LGERA 350

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

Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64.

Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, at 687.

Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266 at 272.

Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302

Luke v Maroochy Shire Council [2003] QPELR 447

McConaghy Properties Pty Ltd v. Townsville City Council [2017] QPELR 333

Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368

Redland City Council v. King of Gifts (Qld) Pty Ltd [2020] QCA 41

Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58

Stappen Pty Ltd v. Brisbane City Council [2005] QPELR 466

TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1

United Petroleum Pty Ltd v. Gold Coast City Council & Anor [2018] QPELR 510.

Watts & Hughes Properties Pty Ltd v Brisbane City Council (1998) QPLR 273 at 275.

Weightman v Gold Coast City Council [2003] Qd R 441 at [36].

Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 QdR 273

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

Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306

Zanow v. Ipswich City Council [2010] QPELR 721 at [45]

Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82

ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352

COUNSEL:

A. N. S. Skoien and D. D. Purcell for the Appellant

B. D. Job KC and K. J. Buckley for the Respondent

SOLICITORS:

Marino Lawyers for the Appellant

P&E Law for the Respondent

Summary

  1. [1]
    The appellant developer appeals from the respondent Council’s decision to refuse an application to develop a petrol service station/truck stop including a convenience store, three fast-food tenancies and a truck drivers’ lounge centre at 563 Captain Cook Highway at Barron in the outskirts of Cairns in far northern Queensland.
  2. [2]
    On 8 November 2019 this court erroneously allowed a minor change to the application under the Planning Act 2016 (Qld), when the applicable law was the former Sustainable Planning Act 2009 (Qld) (SPA).  For analogous reasons those orders are varied to be made under the SPA.  The appellant proposes an additional change to the layout for truck parking and manoeuvring, detailed design for traffic access and full-length landscaping for the western side of the access.  This additional change (taken with the former change) does not result in a substantially different development under the SPA.  Accordingly, the appeal proceeded to be heard and determined based on the changed development application as shown in the revised drawings.
  3. [3]
    The development application as changed seeks:
    1. a development permit for material change of use to authorise the use of the Proposed Service Centre/Truck Stop; and
    2. a development permit for reconfiguring a lot to allow an amendment of an access easement that currently encumbers Lot 5 on SP309133 for the benefit of Lot 6 on SP309133.
  4. [4]
    The proposal requires impact assessment for the Material Change of Use and code assessment for the Reconfiguration. 
  1. [5]
    The appellant contends that the proposal is a unique offering to Cairns; catering for the travelling needs of all types of vehicles using the highway, in a way that improves the current use without unacceptably detracting from the rural character and scenic amenity.  The Council maintains that the proposal significantly conflicts with the planning instruments’ preservation of the rural character and scenic amenity in the inter-urban break, and that there is an absence of any relevant need or other sufficient grounds to overcome the conflict.  There were no properly made submissions.
  2. [6]
    The critical questions for determination in the appeal are:
    1. Does the scope of the development application include decoupled truck parking facilities?
    2. Does the proposal conflict with the planning instruments, in relation to:
      1. The proposed land use and location?
      2. The rural character and scenic amenity?
    3. Is the proposal inconsistent with existing approvals over the land? and
    4. If the proposal conflicts with the planning instruments, are there sufficient grounds to approve the application, including whether there is a need for the proposal?
  3. [7]
    After hearing the appeal, assisted by a view, and considering further written and oral submissions, I have answered each question in the negative. 
  4. [8]
    Regarding the preliminary question of whether the truck parking adjacent to the access road includes the decoupling of trucks and trailers visiting the site, associated parking of the decoupled trailers, and the re-coupling of trucks and trailers, I have concluded that these uses are not incidental to the proposed uses and fall outside the scope of the application.  As to the merits of the application, I have concluded that while the use of a petrol service station/truck stop in itself could be accommodated on the site, the proposal will have an unacceptable impact on the rural character and scenic amenity.  To that extent, the proposal conflicts with the planning instruments and is also inconsistent with existing approvals over the land.  I have concluded that there are not sufficient grounds, including need, to justify approval despite the conflicts.
  5. [9]
    Accordingly, I refuse the development application and dismiss the appeal. I will receive further submissions on appropriate orders.

Assessment Framework

  1. [10]
    The application was properly made in December 2015 when the SPA was in force but later repealed on 3 July 2017.  The repealed SPA continues to apply to the assessment of the application, the decision, and this appeal.[1]
  2. [11]
    The appeal is by way of a hearing anew.[2]  Pursuant to s 46(3) of the PECA, this Court cannot consider a change to a development application unless the change is only a minor change to the application.
  3. [12]
    Since the development application is impact assessable, the court must assess the application in accordance with ss 314 and 317 of the SPA against the Far North Queensland Regional Plan 2009-2031 and CairnsPlan 2009 and having regard to matters including existing approvals for the site and decide the application in accordance with ss 324 and 326 of the SPA.  The court may give such weight it considers appropriate to new laws and policies;[3] relevantly here CairnsPlan 2016.[4]
  4. [13]
    It seems to me that the CairnsPlan 2016 should be given substantial weight.  The appellant has always acknowledged as much, and it is also recognised by the town planning experts, Mr Schomburgk and Mr Buckley.  The CairnsPlan 2016 was in draft form when the application was lodged, and it had commenced before the Council decided to refuse the application.  It is identified as appropriately reflecting the regional plan.  It has continued in force and has had several revisions over 6 years.
  5. [14]
    Pursuant to ss 326(1)(b) of the SPA the decision must not conflict with the planning scheme unless there are “sufficient grounds” to justify that decision despite the conflict. 
  6. [15]
    The appellant bears the onus of establishing the appeal should be allowed and the application be approved.[5]

Proposed development

  1. [16]
    The appellant seeks approval for a material change of use for a Service Station and Fast Food Outlet to operate 7 days a week and 24 hours per day; and for reconfiguring of a lot to amend the access easement over Lot 5.
  2. [17]
    On 8 November 2019 this court allowed a minor change to the application for an access road, the truck parking facilities, and a revised amended access easement as shown in the revised drawings.  However, the application wrongly proceeded, and orders were made, to the effect that the proposed change was “a minor change for the purposes of Schedule 2 of the Planning Act 2016 (Qld)”, whereas the application ought to have been determined under the former SPA.  For analogous reasons, the change is plainly a minor change within the meaning of s 350 of the SPA, the orders are varied accordingly.[6]
  3. [18]
    The appellant now proposes an additional change to the development layout for the Service Centre/Truck Stop be that shown in the revised layout plan - “Proposed Service Centre/Food Outlets, Concept Driveway Arrangement 1 (Full Landscape) Lines and Signs”, being Drawing No MAR0318-01 Concept 1a – Full dated 8 August 2022.  The additional change comprises:
    1. re-arrangement of the truck parking and movement areas within the site to cater for the Truck Parking practicalities;
    2. formalisation and detailed design of the traffic arrangements for the Access Road; and
    3. the provision of full-length landscaping down the western side of the Access Road.
  4. [19]
    The question is - does the cumulative changes result in a “substantially different development” having regard to the nature and degree of the change[7]; viewed broadly and fairly.[8]  The answer is ‘no’.
  5. [20]
    The proposed changed application does not result in a substantially different development, it does not cause any change of assessment or type of development approval, and it does not trigger additional referrals.  Consequently, the additional change is allowed, and the appeal proceeded to be heard and determined on the changed development application.
  6. [21]
    The proposed development, as changed, has a gross floor area of 781m2 comprising:
    1. a low-profile single level service station with a canopy for up to 8 cars to be serviced by 4 fuel pumps;
    2. a convenience store with an area of approximately 247m2;
    3. a separate canopy for up to 4 trucks to be serviced by 3 fuel pumps;
    4. 3 Food Outlets (food and drink outlets) of about 282m2;
    5. a truckers’ lounge;
    6. associated amenities;
    7. 29 car parking spaces;
    8. parking for 1 car/caravan;
    9. parking for 3 trucks between the truck fuelling and main building; and
    10. further parking for 2 trucks adjacent to the access road.
  7. [22]
    A preliminary question arises about whether the further truck parking adjacent to the access road includes a use for decoupling of trucks and trailers visiting the site, lay-by parking of decoupled trailers, and re-coupling of trucks and trailers.  For the reasons discussed later, I have concluded that such a use is extraneous to the application and not incidental to the proposed use.
  8. [23]
    It will be necessary to fill the site between 1.3m to 1.8m to achieve the required flood immunity to floor levels and fill the balance of the site between 0.8m to 1.6m for roads and car parking.  The site spans about 137m from the common boundary to the highway.  The car refuelling canopy structure and front pylon signage will be appropriately prominent and illuminated at night for highway traffic.  There will be landscaping around the hardstand area and the proposal, but some existing vegetation will be removed along approximately 135m of the frontage, such that the proposed development will then be visible along the frontage ...”.[9].
  9. [24]
    It is proposed to formalise, realign, and widen the existing road access.  The proposed reconfiguration is to amend the existing access easement over Lot 5 to cover the proposed access road to allow access for both the proposal and the existing land uses of the extractive industry and the concrete batching plant on Lot 5. 

Does the scope of the development application include adjacent decoupling and decoupled truck parking facilities?

  1. [25]
    A preliminary issue concerns whether decoupled truck parking facilities forms part of the Service Station use within the meaning of “Service Station” in CairnsPlan 2009. 
  2. [26]
    The Site Plan shows the car fuelling canopy and parking, truck fuelling canopy, truckers’ lounge, fast food outlet tenancies and convenience store.  It also shows the further ‘truck parking’ located adjacent to the service station area and access road.   The debate concerns the scope of this use.  The issue does not concern the truck uses proposed for the actual hardstand areas (i.e., built form of pavement and line marking) where trucks can stand, pass, and park in the course of using the facilities at the Service Centre/Truck Stop. 
  3. [27]
    The appellant contends that the additional truck parking facilities forms part of a Service Station use under the scheme and ought be included in the assessment of the development application.  It argues that the use of Truck Parking will allow heavy vehicles (including B-Doubles) to de-couple and couple trailers and to allow such vehicles (whether trucks or truck trailers) to stand for relatively short periods of time (either coupled or decoupled) to facilitate truck driver rests and to allow for travel further over roads where smaller configuration of heavy vehicles is desirable and/or required by law (for example, to allow a B-Double to break into truck and single trailer, to make two lawful trips over the break in the B-Double Route between Smithfield and Speewah) as shown in photographic evidence of other existing sites.
  4. [28]
    The appellant does not argue (as is consistent with the expert evidence) that this contended use is “incidental to and necessarily associated with the use of the premises”.[10]  But instead, the appellant urges that the contended use is caught by the definitions of a ‘Service Station’ use as shown in various aerial photographs. 
  5. [29]
    In my view, this is a simple matter of construction, and the photographic evidence is merely anecdotal in the absence of approval or definitional context.  I prefer the council’s contention that the contended use does not form part of the defined use of a ‘Service Station’ and ought not be included in any assessment or any approval.
  6. [30]
    The uses applied for are a Service Station, Restaurant and Detached bottle shop.  Relevantly, a Service Station use is defined in CairnsPlan 2009 as follows:

“Means the use of premises for:

  • The retail sale of motoring requirements such as fuels, lubricants, oils and greases, batteries, tyres, spare parts, auto accessions and limited convenience shopping items to the travelling public;
  • The hire of a limited number of vehicles or trailers;
  • The washing of motor vehicles for a fee, including facilities provided for the public to wash and clean the interior and exterior of their own vehicles. The service station use also includes facilities commonly described as a petrol station and car wash.”
  1. [31]
    The principles applicable to the construction of planning documents were restated by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council.[11]  The Court noted that the same principles that apply to statutory construction apply to the construction of planning documents,[12] but that this still allows for the expressed view that such documents need to be read in a way which is practical, read as a whole and as intending to achieve a balance between outcomes.[13] 
  2. [32]
    It seems to me that the defined use of Service Station, even construed broadly, does not include the use contended by the appellant.  In my view, in construing the whole scheme in a way that best achieves their apparent purpose and objects, the contended use is in the nature of “heavy vehicle parking” and/or “transport and equipment depot”, which are aptly caught by the “Industry Class B” use defined in the CairnsPlan 2009 as follows:

“The use includes activities such as brewery, boat maintenances and repair (no abrasive blasting), heavy vehicle parking; transport and equipment depot; panel beating and spray painting, cannery, concrete batching plant, concrete product manufacture, sawmill and steel fabrication.”

  1. [33]
    Similarly, I am unpersuaded that the contended use is caught by the Service Station use definition in the later CairnsPlan 2016, which is more narrowly expressed as follows:[14]

“Service station means the use of premises for -

(a) selling fuel, including, for example, petrol, liquid petroleum gas, automotive distillate, or alternative fuels; or

(b) a food and drink outlet, shop, trailer hire, or maintaining, repairing, servicing, or washing vehicles, if the use is ancillary to the use in paragraph (a).

  1. [34]
    Instead, the contended use is more aptly caught by the definition of “Transport depot” in CairnsPlan 2016, as follows:

“Transport depot means the use of premises for—

(a) storing vehicles, or machinery, that are used for a commercial or public purpose; or

(b) cleaning, repairing, or servicing vehicles or machinery, if the use is ancillary to the use in paragraph (a).

Examples include contractor’s depot, bus depot, truck yard, heavy machinery yard. Using premises to store buses, taxis, trucks, heavy vehicles or heavy machinery.”

  1. [35]
    In the end, I am bound to conclude that the use of ‘Service Station’, whether as defined in the CairnsPlan 2009 or CairnsPlan 2016, does not include decoupling of trucks and trailers visiting the site, associated parking of decoupled trailers, and re-coupling of trucks and trailers, to facilitate lawful onward and return movement of large vehicles attending the proposed development in shorter truck and trailer arrangement, as part of the freight industry.  Therefore, such a use falls outside the scope of the application and assessment.

Does the proposal conflict with the planning instruments?

  1. [36]
    As to whether the proposal conflicts with the planning instruments, in relation to the proposed land use and location, and the surrounding rural character and scenic amenity, involves an assessment of the proposal against the overlapping provisions across the various planning instruments:
    1. the Regional Plan – Parts C and E; 2.1 - Regional landscape values and s 2.3 - Scenic amenity, outdoor recreation and inter-urban breaks; and
    2. the CairnsPlan 2009 – Desired Environmental Outcomes, ss 2.2.5, 2.3.2, & 2.3.5; Structure Plan Map 4; Description and Intent, s 3.7.1; and Rural 1 Planning Area Code Purpose, s 4.5.1; Service Station Code, 4.7.20; Development Near Major Transport Corridors and Facilities Code, s 4.8.1
    3. the CairnsPlan 2016 – Strategic Framework Settlement Pattern, ss 3.2, 3.3.1, 3.3.6, 3.4.1, 3.4.4, 3.4.6; Strategic Framework Maps; Rural Zone Code - 6.2.19.2(4)(b), (5)(c) & (6); Service Station and Car Wash Code, s 9.2.23.2(1); Flood Inundation Hazards Overlay Code, s 8.2.7.2(3)(b).

Regional Plan

  1. [37]
    Part C of the Regional Plan dealing with Strategic Directions outlines a number of underlying regional planning principles, takes into account current and new drivers for growth and requires that “planning and development must be responsive to these strategic directions to ensure long-term ecological sustainability of the region.” [15]
  2. [38]
    The Strategic Direction - Protecting regional landscape and rural production values - seeks to maintain regional landscape and rural production values and features by protecting them from “inappropriate urban development, urban sprawl and fragmentation” as follows:[16]

“The FNQ region has diverse landscape features, which include important World Heritage areas and productive farm lands.  These features provide substantial environmental, economic and social benefits to the region and underpin the region’s liveability.  The regional landscape features include areas of high ecological significance, rural production areas, renewable energy resources, extractive and mineral resources, areas of high scenic amenity, outdoor recreation and landscape heritage value.  These areas must be protected from inappropriate urban development, urban sprawl and fragmentation so that the regional landscape and rural production values are maintained.”

  1. [39]
    The term “urban development” is defined as “a general term including residential, industrial, retail, commercial, sporting, indoor recreation, short term accommodation, community activities and a range of other urban land uses.  It does not include rural land uses such as agriculture and horticulture.”  “Agriculture” is defined as “production of food, fibre and timber, including grazing, cropping, horticulture and forestry.”  “Horticulture” is not defined, nor are the terms - “urban sprawl” and “fragmentation”.
  2. [40]
    Part E of the Regional Plan “outlines the fundamental principles, policies and desired regional outcomes that will guide FNQ planning and development assessment.”
  3. [41]
    Relevantly, policy 2 - Regional landscape and natural resources - provides for the desired regional outcome that: “The environmental, cultural, social and economic features that comprise the region’s unique tropical and rural landscapes are identified, maintained and managed sustainably”, and (relevant to this case) that “the forested hills, regional landscapes and abundant tropical greenery make the region’s scenery special and distinct from other parts of Australia.  …  [The region’s landscape] … provides a backdrop for tourism, outdoor recreation and spiritual and cultural pursuits”.
  4. [42]
    In s 2.1, Regional landscape values are characterised thus:

2.1.  Regional landscape values

The region’s natural areas are characterised by their high biodiversity, agricultural and fisheries productivity, and scenic amenity. The natural environment is also a major economic asset; it contributes substantially to the tourism and natural resources industries, as well as to residents’ and visitors’ quality of life and to recreational and scenic opportunities.  The region’s landscapes and natural areas also have important cultural significance for the region’s Indigenous and non-Indigenous communities. FNQ’s landscape has:

  • areas of high ecological significance
  • areas of good quality agricultural land
  • areas of high scenic amenity
  • extractive and mineral resource areas
  • potential renewable energy resource areas
  • cultural heritage areas
  • outdoor recreation areas
  • areas that form inter-urban breaks
  • water catchment areas
  • coastal waters and foreshores.

….

Objective

  • The region’s landscape values are identified, protected and managed through an integrated planning approach.

Land use policies

2.1.1 The value of the landscape for nature conservation, primary production renewable energy resource areas, priority carbon sequestration, cultural heritage, outdoor recreation and scenic amenity is given appropriate recognition in land use planning and development assessment.

  1. [43]
    “Inter-urban breaks” are defined in the Regional Plan, to mean “non-urban land areas that separate or surround urban villages, towns and metropolitan areas”.[17]  
  2. [44]
    Section 2.3 - Scenic amenity, outdoor recreation and inter-urban breaks provides:

2.3 Scenic amenity, outdoor recreation and inter-urban breaks

The region has a diverse range of outstanding landforms and seascapes. The features which combine to create the region’s visual imagery include mountain ranges, coastal escarpments, beaches, rivers, valleys, agricultural land, creeks, rainforests, wetlands, estuaries and islands. ….

…

Inappropriate development has the potential to diminish the region’s outstanding scenic and recreational values.

Objectives

  • The visual amenity of the region’s natural landscapes, seascapes and productive rural lands is protected and enhanced.

Land use policies

2.3.1 The visual amenity of the region’s landscapes and seascapes is protected and enhanced by assessing proposed developments on landscapes that are vulnerable to visual impact due to their prominence, topography or degree of naturalness.

2.3.7 Major urban areas, towns and villages are separated from regional landscape and rural production areas by inter urban breaks that protect the character and identity of regional communities.”

CairnsPlan 2009

  1. [45]
    The Desired Environmental Outcomes, in the CairnsPlan 2009 strategically highlight that:
    1. by 2.2.5 – “[t]he landscape of the City is valued and enjoyed by residents and visitors, and the essential elements of this landscape, the forested hills and foothills, beaches and headlands, streams and rivers, wetlands, open spaces and rural land are conserved and enhanced.”  It discusses that the Cairns area is internationally renowned for its high scenic value, and that “[t]he rural landscape is an important part of the scenic landscape of the City.  Significant qualities of the natural landscape include cane farming and its contribution to the continually changing landscape; views of traditional farmhouses and outbuildings; riverine forests; and stands of large forest trees in agricultural or pastoral lands and along roadsides.”  The performance indicator for DEO 2.2.5 rhetorically asks that “where development has occurred, has it adversely affected the scenic landscape of the city or any of the essential elements of the scenic landscape?”
    2. by s 2.3.2 – “[b]usiness, retail and industrial activities are located in a hierarchy of centres and in designated areas throughout Cairns to encourage continued investment and an increase in the diversity in number of employment opportunities.   Town centres, subregional, district and local centres are intended to be developed to contribute to a sense of community life and belonging for the people they serve.”  Those centres, and the major industrial and employment areas identified in the Structure Plan Map 4, are established and consolidated.  The performance indicator asks – “Where significant new business, community and industrial development has occurred, has it been located within the Town Centres, Sub-Regional and District Centres and the major industrial and employment areas?”
    3. the Structure Plan Map 4 shows the preferred pattern of development.
    4. by s 2.3.5 - it is acknowledged that the urban area is broken by the cane fields of the Barron Delta.  It is also intended that the pattern of development promoted by the scheme is to be consistent with, and reinforce, the settlement pattern identified by the Regional Plan.
  2. [46]
    Section 3.7.1 highlights the contribution of the Barron Delta floodplain, cane fields and scenery in the description and intent of the Barron-Smithfield District, where the land is located, as follows:

“3.7.1 Description and Intent

The dominant features of the Barron-Smithfield District are the wetlands adjacent to the coastline and waterways; the floodplain of the Barron Delta with its extensive cane fields; and the views across the floodplain to the Barron Gorge and the forested hillslopes of the Kuranda Range.

Urban development is contained to the northern and western edges of the flood plain and to the established residential areas of Machans Beach, Holloways Beach and Yorkeys Knob.

It is intended that the Barron Delta should continue to be utilised as productive agricultural land because of the susceptibility to flooding; the value of the good quality agricultural land; and the contribution the area makes to the scenic amenity of the City with the views of cane fields, wetlands and hillslopes. …”

  1. [47]
    The land is also in the Rural 1 Planning Area, and subject to the Rural 1 Planning Area Code.  The Code facilitates the achievement of the relevant desired development outcomes for the Rural 1 Planning Area in terms of amenity and landscape, retention of natural scenic landscape character, and protection from urban uses, as follows:

4.5.1 Rural 1 Planning Area Code Purpose

The purpose of this code is to facilitate the achievement of the following desired development outcomes for the Rural 1 Planning Area: …

  • Rural development contributes to the amenity and landscape of the area
  • …
  • Land which has limited agricultural potential, but which is important to the scenic landscape of the City, is retained with a natural character;
  • Land which is susceptible to flooding or drainage problems, including difficulties associated with high ground water tables is protected from urban or other uses.

PERFORMANCE CRITERIA

ACCEPTABLE MEASURES

P 5 Land which has limited agricultural potential, but which is important to the scenic landscape of the City, is retained with a natural character.

A5.1  No acceptable measures are specified.

P 6 Land which is susceptible to flooding or drainage problems, including difficulties associated with high ground water tables are protected from urban or other uses

A6.1  No acceptable measures are specified.

P 7 Development does not adversely affect the amenity of the:

  1. planning area; and
  2. adjoining land uses.

A7.1  No acceptable measures are specified.

  1. [48]
    Section 4.7.20 of the Service Station Code purposes to ensure that service stations are sympathetic to the amenity and character of surrounds, including, that they: “Do not have adverse effects on the amenity of this surrounding area or on the operation of the adjacent road system” and “Buildings and structures are sited and designed to complement or enhance the character in amenity of streets in neighbouring premises.”
  2. [49]
    Similarly, s 4.8.1 of the Development Near Major Transport Corridors and Facilities Code purposes to ensure that development does not compromise the safety and efficiency of major transport corridors and facilities, and performance criteria P 5 and P 6 deal with visual amenity this way:

PERFORMANCE CRITERIA

ACCEPTABLE MEASURES

P 5 Predominant views and vistas from major transport corridors are preserved.

A5.1 Development is designed to preserve and complement the views and vistas from the major transport corridor; and

P 6 Landscaping is provided along major transport corridors to provide the occupants of vehicles with the least amount of distractions and to provide a pleasant visual experience.

A6.1  Residential development and industrial development are visually screened from the major transport corridor with a 10 metre wide earth mound 2 metres high which is fully landscaped; and

A6.2  5 metre wide filtered landscape screening is provided to commercial development.

CairnsPlan 2016

  1. [50]
    CairnsPlan 2016 continues the planned recognition, protection and retention or the rural and scenic character of the Barron Delta and limits development in the inter-urban break.
  2. [51]
    Section 3.2 sets out the strategic intent representing the vision for the Cairns region in 2031, including that: “Growth has occurred in an efficient manner and urban development is consolidated within the identified urban area”; “The expected population growth for the region is accommodated through the redevelopment of existing urban area …; “Rural land has been protected and is used for rural purposes”;  “The hillslopes, waterways and 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.”
  3. [52]
    The identified settlement pattern for the region is as shown in the Strategic Framework Maps, including Map SFM-01 (Settlement Pattern), which shows the rural break between the urban areas of Cairns city and Smithfield.   
  4. [53]
    The strategic outcomes for the settlement pattern for the region in s 3.3.1(1) seek to promote growth and evolution in a way that, inter alia: “(f) avoids putting people and property at risk from natural hazard; (i) retains rural land for agricultural purposes;… (m)              maintains and enhances the scenic amenity, tropical character and identity of the region.” And s 3.3.1(2) encourages “urban development in the region occurs within the urban area” for efficient and orderly delivery of urban infrastructure.  
  5. [54]
    Section 3.3.6.1 identifies the specific outcomes for the element of rural areas including:

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

(2) Land uses that have the potential to conflict with agricultural uses are not established. …

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

  1. [55]
    The Strategic Outcomes for the Natural Areas and Feature Theme include, in s. 3.4.1(2) that “The region’s internationally renowned tropical landscapes incorporating the hill slopes and foothills ... headlands, streams and rivers, rural lands and open spaces are valued economically, aesthetically, culturally and socially and are protected from development that diminishes their ecological, social and economic value.”  For the associated element of landscapes, specific outcome s 3.4.4.1(1) & (2) provide: “(1) Development protects, maintains, and enhances the region’s landscape values. (2) Rural and inter-urban breaks are protected from visual intrusion.”  And for the element of Natural Hazards, specific outcome s. 3.4.6.1 reinforced that “(7) Development, other than agricultural activities, does not occur within the Barron River Delta flood plain.”
  2. [56]
    Section 6.1 of CairnsPlan 2016 provides for zones. 
  3. [57]
    In the Rural Zone Code, s 6.2.19.2(4)(b) relevantly provides for rural uses and activities and other uses and activities that “are compatible with: (a) existing and future rural uses and activities; and (b) the character and environmental features of the zone.”   Section 6.2.19.2(5)(c) identifies the local government purpose of the code is to “provide protection to areas of environmental and scenic significance”, which includes the Barron Delta.  Relevant to this case, s 6.2.19.2(6) provides for overall outcomes:

“(e)Development other than a rural use is directly associated with the rural character of the zone; …

  1.  Development is not visually intrusive and does not adversely impact on the visual amenity of rural areas that provide an inter-urban break”.
  1. [58]
    In that respect, the performance outcomes for the Rural Zone Code include:

“PO3 Development is consistent with the purpose and overall outcomes sought for the zone.

PO4  Uses and other development includes those that: (c) are compatible with rural activities or are capable of establishing in a rural setting 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.

PO6 Development is located, designed, operated, and managed to respond to the characteristics, features and constraints of the site and its surrounds.”

  1. [59]
    As to the Service Station and Car Wash Code, s 9.2.23.2(1) identifies the purpose of the Code is to establish service stations and car wash facilities that function without adverse impacts on amenity, the hierarchy of centres and road function, and deliver an attractive and complimentary service for the community.  The overall outcome reflected in PO1 requires that Centre activities are ancillary to the service station use and do not compromise the role and function of the region's network of centres.
  2. [60]
    For completeness, s 8.2.7.2(3)(b) of the Flood Inundation Hazards Overlay Code relevantly provides that the overall outcome sought for Precinct 1 – Barron River Delta is to “protect the scenic amenity of this major inter-urban break.”  The correlated acceptable outcome AO12 requires that “development in the precinct does not result in an adverse impact on the amenity and landscape character of the area to achieve the required level of immunity.”  Although AO12.1 includes a noted reference to the Landscape Overlay Code, the land is not mapped as having landscape values and not caught by that Code.  And there is no live issue regarding flooding.  Such matters merely serve to reinforce the significance of cane fields and other rural production areas in the region's scenic landscape values.  The code's overall outcomes emphasise the maintenance and enhancement of significant landscape elements and the protection of rural and inter-urban breaks from visual intrusion
  3. [61]
    It is necessary to identify any conflict between approval of the proposal and with the relevant planning instrument, and if so, consider the nature and extent of the conflict taking a sensible approach and regarding the planning instrument as a whole.
  4. [62]
    Any conflict must be “plainly identified”.[18]  The term “conflict” was considered by the Court of Appeal in Woolworths Ltd v Maryborough CC (No. 2),[19] where Fryberg J said:

“‘Conflict’ in this context means to be at variance or disagree with.  It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme).  Unlike ‘compromise’ in para. (a), it implies no particular impact by a subject upon an object.  A determination that there has been a breach of the requirement that ‘the assessment manager’s decision must not … conflict with the planning scheme’ requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter.  Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.”

  1. [63]
    In Lockyer Valley Regional Council v Westlink Pty Ltd,[20] the Court of Appeal discussed and affirmed the Weightman test.  Later, in Kangaroo Point Residents Association Inc v Brisbane City Council,[21] the Court held at [69]-[70]:

“A useful starting point for such interpretation is to consider the approach of de Jersey CJ, with whom Muir JA and Douglas J agreed, in Stockland Development Pty Ltd v Townsville City Council & Ors.  There, after noting that the first instance approach to the application of the scheme to the developer’s proposal involved ‘a correct interpretation of the language of the scheme’ and ‘a factual conclusion as to the absence of conflict,’ de Jersey CJ stated that it was a mistake to think that the construction of town planning schemes can or should be attended by the precision and certainty which should characterise the construction of contracts and statutes, because good town planning, basic principles aside, depends on a large element of fluidity and flexibility: at 324 [25]-[26].

But that approach does not mean that the same general principles which apply to statutory construction do not apply to the construction of planning documents.  This was the concern of the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council & Ors.  There, Morrison JA, with the concurrence of McMurdo P and Douglas J, authoritatively stated that the correct approach to statutory interpretation must begin and end with the text itself, while at the same time bearing in mind that the modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, using ‘context’ in its widest sense: at 95 [55] (with citations omitted). Where the flexibility and fluidity must then occur, consistently with Morrison JA’s analysis, is by appreciating that such documents need to be read in a way which is practical, to be read as a whole, and to be read as intending to achieve balance between outcomes: at 95 [56].  In this understanding of such need, Morrison JA expressly adopted statements by Chesterman JA in AAD Design Pty Ltd v Brisbane City Council, to the effect that: planning schemes, and the definitions found in them, often lack clarity, contain ambiguities, and sometimes appear contradictory; and attempts to make sense of them gives rise, on occasions, to ‘expressions of judicial exasperation:’ at 96 [57]”.

  1. [64]
    In considering the principles relevant to the construction of planning schemes, the matters enunciated by Britton SC DCJ in Westfield Management Ltd v Pine Rivers Shire Council [2009] QPELR 337 remain apposite:
    1. They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach;[22]
    2. They should be construed as a whole;[23]
    3. They should be construed in a way which best achieves their apparent purpose and objects;[24]
    4. In the light of the proscription against prohibiting development;[25]
    5. Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate;[26]
    6. A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved;[27]
    7. A Strategic Plan should be read broadly and not pedantically;[28]
    8. Although planning documents have the force of law, they are not drawn with the precision of an Act of Parliament;
    9. A conflict alone may not have the effect of ruling out a particular proposal.[29]
  2. [65]
    The appellant urges a greater scope for decision making where planning provisions are worded vaguely, or flexibly, and/or where there are no clear or definitive criteria to determine whether there is conflict between a proposal and the relevant instrument.[30]  The appellant contends that proposal does not cut across or compromise the land use intent or settlement pattern for the region and, consistently, falls within what is reasonably contemplated for the land by the planning provisions.  It highlights the scope for differing subjective perspectives in the desired environmental outcomes and strategic intent and outcomes relied upon by the Council. 
  3. [66]
    The council maintains that the planning instruments consistently discourage a use of this nature in this locality and contends that the proposal conflicts with the instruments at multiple planning control levels, especially the incongruity of the proposed urban development with the surrounding rural character and scenic amenity in the inter-urban break.
  4. [67]
    The identified provisions of the various instruments reinforce the interrelationship of the use and location with the surrounding the rural character and scenic amenity in the inter-urban break.  The provisions variously evoke an assessment of an approval of the proposal impacting visual character of agricultural land and rural production, regional landscape, and maintenance of an area of high scenic amenity, scenic opportunities and visual imagery and amenity.  Therefore, consideration of whether the proposal in it itself is acceptable use on the site per se, cannot be easily severed from broader considerations of any impacts on the rural character and scenic amenity.

Proposed use and site location

  1. [68]
    The proposed location of the development is at 563 Captain Cook Highway at Barron, which is about 9 km north of Cairns city on the western side of the Captain Cook Highway. 
  2. [69]
    The land comprises 63.44 ha and is bounded with about 900m frontage to the highway, the Barron River and working cane farms adjacent and abound.  Agricultural uses generally characterise the relatively level terrain surrounding the land, with the vegetated ridgelines of the neighbouring ranges visible in the background where they extend from the south around to the west.
  3. [70]
    The land is setback about 28m from the existing edge of the Highway (which is the edge of the road reserve).  The highway comprises 4 lanes with two dual carriageways separated by a grassed median, within a 68m wide road reserve.  The highway serves as the region’s principal north-south arterial route and a designated B-double Route, terminating at the Smithfield Roundabout (at the southern end of Smithfield).

Regional plan

  1. [71]
    The land itself is well outside world heritage area, and it is not itself an area of high ecological significance or of high scenic amenity or of landscape heritage value.  It is not posited as an area of good quality agricultural land for rural production, or land possessed of renewable energy resources, extractive and mineral resources, or used for outdoor recreation.
  2. [72]
    The appellant relies upon the Regulatory Provisions in Part D (now repealed) as supporting diversification of rural economies by allowing a range of developments, including small to medium scale tourist activities, small scale industry, business and community activities and sport and recreation facilities.
  3. [73]
    The proposal is a form of urban development, but it is not development exclusive to urban areas for urban activities or purposes.  Service stations (including those with retail shops, food outlets and lounge) are typically situated in a variety of locations, including in rural areas particularly along main roads and highways, in higher order urban and suburban streets, near airports, along popular tourist routes, rest stops and attractions, and industrial areas, near factories and warehouses.  It is commercial development that is conveniently located to serve the motoring public and tourists, transporters, recreators, and the local agricultural and farming community. 
  4. [74]
    Whilst, the development site does not have protected characteristics, it seems to me that the proposed use in this location will be an incursion into the preservation of the inter-urban break promoted by the regional plan.   The proposal will have a total developed area of about 6,863m2.  It will sit alongside the existing uses of the extractive industry (sand mining), concrete batching plant and waste disposal facility.  These uses will be the largest area of non-cane farming land use within the Barron River Delta.  Unlike the existing use, the proposal will be exposed with less screening in the inter-urban break and create a foreground visual obstruction to the surrounding rural landscapes and tropical backdrop.  I discuss these more later. 
  5. [75]
    Suffice it to say, I think the proposal in that site location will conflict with Regional Planning intent of recognition, protection and enhancement of the regional character and identity of the area values.

CairnsPlan 2009

  1. [76]
    The strategic provisions of CairnsPlan 2009 largely go to the assessment about rural character and scenic amenity impacts, which I also discuss more later. 
  2. [77]
    Rural 1 Planning Area seeks to predominantly support rural and associated farming activities, but in doing so, it does not specifically exclude all non-rural activities.  Further, Service Station and Restaurant uses in the Barron-Smithfield District is not identified as an inconsistent use, but rather as impact assessable.  The proposal will contribute to a sense of community life and belonging for the people it will serve being resident commuters, tourists, transporters, and agricultural producers. 
  3. [78]
    The land in its present state is not productive agricultural land and has limited agricultural potential.  In that context, Mr Buckley acknowledges these considerations under CairnsPlan 2009: (a) whether rural activities are protected from the intrusion of incompatible uses; (b) whether the site is important to the scenic landscape value of the City; and (c) whether the Proposed Development can be protected from the identified flooding issues.  Mr Schomburgk added another consideration of whether the development might adversely affect the amenity of the planning area and adjoining uses (which is relevant to the next question in the appeal).
  4. [79]
    I accept Mr Buckley’s evidence that the broader area on which the land sits has “limited agricultural potential into the mid to long term”, even when I account for the conditions attaching to existing uses which call for the rehabilitation management of the land for future agricultural use.  The proposal will be co-located with the existing extractive industry, batching plant, bulk landscape supply and waste disposal uses.  Since the land is not otherwise used for rural purposes, the non-rural cluster of uses will not intrude into the surrounding productive agricultural land.  The land itself is not identified as being important to the scenic landscape value of the city.  And more broadly, it is of little importance to the natural character of the scenic landscape of the city except for the introduced vegetation on the frontage, which serves to screen the highly disturbed and current non-rural uses of the land from the highway in compliance with current conditions of current approvals.  The land is susceptible to flooding, and whilst conditions will provide flood mitigation and safety, the proposal will introduce another urban or commercial use.  Flooding has been resolved in the appeal.
  5. [80]
    I am unable to discern any other clear conflict with CairnsPlan 2009 of locating a use of petrol service station/truck stop in themselves on that particular site, but mere site location cannot be isolated from wider impact considerations of whether it is an inappropriate urban development that impacts the rural character and scenic amenity, which I deal with later.  Suffice it to say, in respect of the proposal’s use and location in a wider landscape along a characteristic rural roadside flanked by cane fields, farm housing, sheds and machinery, I think that the size and scope of the proposal will introduce urban development and business and retail activities into the area, and thereby promote inappropriately urban intrusion or creep into the Baron Delta. 

CairnsPlan 2016

  1. [81]
    CairnsPlan 2016 does not exclude non-rural development in the Rural zone, but seeks to harmonise and protect the rural character, activity and scenic values enjoyed in the inter-urban break in the zone.
  2. [82]
    As Mr Buckley observed, rural character is more than just rural uses throughout the locality, it includes the other non-rural uses which contribute to and make up that rural character which exists.  However, in my view, the proposal cannot be described as directly associated with the rural character and function of the rural zone.  Its presentation will be incongruous with the rural character and scenic amenity of the inter-urban break.  These amenity impacts of the proposed indirectly associated use do conflict with the CairnsPlan 2016.
  3. [83]
    Again, consideration of mere site location cannot be isolated from wider impact considerations of whether the proposal is an inappropriate urban development that impacts the rural character and scenic amenity, to which I now turn.

Rural character and scenic amenity impacts

  1. [84]
    The planning instruments provisions variously evoke an assessment of an approval of the proposal impacting the visual character of agricultural land and rural production, regional landscape and maintenance of an area of high scenic amenity, scenic opportunities and visual imagery and amenity.
  2. [85]
    I have the benefit of day and night photography and photomontages evidence.  I was also accompanied on a locational tour and a site inspection to assist my understanding of the evidence.
  3. [86]
    The land is centrally located within the Barron River Delta significantly contributes to the rural character and scenic landscape between Cairns CBD and the Cairns northern suburbs.  The Barron Delta is a large open flood plain predominantly comprised of working cane farms and some other minor farming and associated rural activities, intersected by the highway.  It also contains outdoor recreation such as a go-carting track and shed structure and a formal golf driving range.  The appellant also points to recent development approvals for non-rural/urban development in the Barron River Delta - that the proposed Service Centre/Truck Stop should be approved simply because Council has approved another non-rural/urban use in the Barron River Delta.  Rather, the Appellant says that the 2020 Development Approval and the 2022 DA Extension are consistent with there being no “threshold issue” standing in the way of a non-rural/urban use in the Barron River Delta. The nearest residential area of Holloways Beach is about 1.3km to the northeast. 
  4. [87]
    The site and existing industrial uses (and background beyond) are almost completely screened from the highway by existing vegetation within the frontage and in the road reserve and are not readily visible by highway users except for glimpses through the vegetation break for the access road.  The land uses are obviously visible from elevated positions such as the Henry Ross Lookout.
  5. [88]
    The proposal’s impact on visual amenity is a consequence of the nature of its uses, reliance on visual prominence, limited landscaping, and night-time illumination.  It necessarily depends on being visually prominent to attract customers, utilising exposed signage and branding.  No comparable retail development, 24-hour operation, or illuminated development exists in the area, which further highlights the proposal's deviation from the non-homogeneous character of the surroundings.  Limited landscaping, coupled with the removal of vegetation, intensifies the visual impacts of the development.  Its visual impact extends into the night, with prominent illumination in stark contrast to the surrounding area naturally dark and predominantly lacking artificial light. 
  6. [89]
    Mr Curtis opined that the proposal situated along the highway within a rural landscape would not have an adverse impact on the scenic landscape value of the Barron River Delta. He considered it as a relatively minor element of the local topography that would not change the fundamental character of the area. That is, on his evidence, the expansive landscape would continue to dominate the area's identity.  The Barron River Delta, when viewed from the Captain Cook Highway, is predominantly characterized by agricultural land used for growing sugar cane. The visual amenity of the area is enhanced by the presence of vegetated ridgelines in the Macalister Range, which serve as a backdrop to the west and south.  He compared the proposal with other existing development “along the highway at large, the continuation of it”; suggested it would not be incongruous “with the fact that there are other structures along that highway that will be visible” accepting that those structures have a rural character, rural context and involve wide open space, and that none had a retail purpose.  In the joint expert reports, he acknowledged the character of the existing locality as generally, of an open character, with linear clusters of established vegetation; visually dominated by sugar cane fields and ranges; involving intermittent clusters of buildings, and largely screened by existing vegetation, with the existing industrial uses not visible from the highway.  He opined that a service station in a rural location is not an unreasonable expectation for motorists, and the proposed development will be viewed as part of the highway infrastructure while retaining the essential character of the surrounding landscape.  Currently, the extraction area and dwelling is screened by both vegetation and a fence with only the signage and entrance road visible.  Whilst also acknowledging that the site is largely screened from the highway by existing trees, Mr Curtis relied on certain elements such as the existing dwelling, signage, entrance road, widened carriageway, and railway line crossing as contributors to the legibility of the site's location and its active land use.  The built form of the development includes fuel canopies and a set-back service building.  The proposal will involve the removal of the existing vegetation along approximately 135 meters of the site's frontage adjacent to the development area, which accounts for around 15% of the frontage to the Captain Cook Highway. However, the remaining balance of approximately 735 metres of frontage will retain the existing vegetation.  Mr Curtis accepted that the proposal would be visible somewhat to the travelling public travelling in the 100 km/hr zone along the frontage between the remaining trees, but the proposal will open up views of the Macalister Range beyond.  Although the service station would be illuminated at night, Mr Curtis noted that the surrounding darkness would significantly diminish the view of the scenic landscape in any event, and other existing developments along the Captain Cook Highway will also be illuminated at night.  Based on these observations, he opined that the proposed development will preserve the essential elements of the scenic landscapes, not adversely impact the amenity of the planning area, preserve the predominant views from the major transport corridor, retain rural areas as inter-urban breaks or with scenic landscape value, be compatible with the rural area's landscape character, respond to site characteristics, reflect local character, and incorporate landscaping to reduce impacts and provide a pleasant visual experience.  Mr Curtis described the proposal as having a “neutral”[31] visual impact, and would maintain the scenic amenity, tropical character and identity of the region.[32]
  7. [90]
    I disagree.  In my respectful view, Mr Curtis took a too broad approach to the assessment of visual amenity.  Whilst he accepted the relevant locality to be the area from the intersection with Cairns Western Arterial Road (viewpoint C1) to the southeast of the Barron River (viewpoint C7), as indicated in Figure 11, during his evidence Mr Curtis attempted to minimise the visual impact of the proposal by considering the context of the entire Barron Delta.  For instance, Mr. Curtis compared the proposed development to other existing structures "along the highway at large" and argued that it would not be incongruous because there are other visible structures in the area to opine that the predominant features of the Barron Delta as a whole, such as the cane fields, the Delta, and the MacAlister Range, would not be compromised by the proposed development.  However, the existing structures have a rural character, rural context, and recreational purpose, and primarily serve purposes other than retail.  It is in this too broad a context, that Mr Curtis maintained that the predominant features of the Barron Delta as a whole, such as the cane fields, the Delta, and the MacAlister Range, would not be compromised by the proposed development.  Again, I think that perspective is too broad. 
  8. [91]
    It seems to me that the matters of visual amenity ought to be considered from the micro perspective of the travelling public – mainly as they approach and drive past the site, and less relevantly from a lookout or wider perspective.  Therefore, I prefer the evidence of Dr McGowan.  Dr McGowan opined that the proposal will diminish the landscape and scenic values of the Delta landscape and detract from the visual experience of travellers on the highway.  He discounts the prospect of increased views to the background ranges and points to the combination of built form, hardstand, signage, lighting, and vehicle activity associated and existing industrial activities, resulting from the removal of vegetation, as diminishing the scenic amenity and negating previous landscape buffering requirements. 
  9. [92]
    The removal of vegetation to open views of the McAlister Range does not adequately address the issue of the proposal's visual intrusion. This is because the existing vegetation plays a crucial role in defining the character of the area, and even with clear views, the proposal would still dominate the foreground.

Regional plan

  1. [93]
    The Regional Plan promotes recognition, protection and enhancement of the regional character and identity of the area. 
  2. [94]
    The area surrounding the site is characterised as regional landscape and rural production within an interurban break that separates the major urban area of Cairns and outer suburbs.  The outlook is one of all-round high scenic amenity to the horizon.  The foreground and intermediate area also characterised with various rural, tourist and commercial built environments, including highway & road pavement, informal driveways and roundabouts, road signage, lighting and advertising billboards, traffic, horse stables/shelters, farm fencing, sheds, housing and machinery, go-kart track and building, golf range.   These features, play an important role in the regional character and identity of the area.  Although as noted in the explanatory notes to s 2.3 of the regional plan - “Some scenic landscapes are highly vulnerable to visual impact due to their prominence, topography or degree of naturalness.  Inappropriate or poorly designed urban and infrastructure development has, in the past, led to degradation of these natural landscapes. These areas need to be rehabilitated and future impacts on scenic landscapes avoided.” 
  3. [95]
    Mr Buckley acknowledged the role of inter-urban breaks in the joint expert planning report that: “FNQ has a network of many interconnected urban areas that are separated by rural or natural land, each with its own special identity, character and role. These urban areas are contained within urban footprint areas and framed by the regional landscape and rural production area.  The area that distinguishes one footprint from another is referred to as an inter-urban break and is located within the regional landscape and rural production area. These areas are protected from inappropriate urban development and subdivision through the FNQ Regulatory Provisions and play an important role in maintaining regional character and identity.”  Notwithstanding this acknowledgement, he maintained that the location of the proposed use was appropriate with no material effect on the region’s scenic amenity, identity, and the role of the inter-urban breaks.  I disagree.
  4. [96]
    Mr Schomburgk maintained the view expressed in the joint expert planning report that the proposal does not meet any of the identified themes and instead “detracts from” the landscape values.  He maintained that the Regional Plan identifies a clear policy direction to avoid urban development in the rural landscape and rural production areas.  He explained that: “These provisions reflect a sound town planning policy intent for inter-urban break areas (and this one in particular) to be maintained without inappropriate intrusion, to continue to provide the visual and sense-of-place amenity that this break provides.  This sound town planning policy intent is reinforced by various provisions of each tier or layer within the local government’s planning scheme…”.
  5. [97]
    I prefer the evidence of Mr Schomburgk and Dr McGowan.  In my view the proposal development is inconsistent and conflicts with the identified provisions of the Regional Plan because:
    1. The proposal conflicts with the Strategic Direction in Part C of the Regional Plan, by the incursion of inappropriate urban development, and fragmentation intruding into the regional landscape and rural production area.
    2. The proposal compromises the desired regional outcome stated in Policy 2 and s 2.1 of Part E of the Regional Plan, by diminishing the visual appeal and scenic amenity of the forested hills and green tropical backdrop to commuting tourist.
    3. Contrary to s 2.3 of the regional plan, I think the proposal represents inappropriate urban development that intrudes into the inter-urban break (s 2.3.7) and erodes the scenic amenity (s 2.3.1) instead of protecting and enhancing the visual qualities of the region natural landscapes and productive rural lands.

CairnsPlan 2009

  1. [98]
    The performance indicator for DEO 2.2.5 poses a rhetorical question: "where development has occurred, has it adversely affected the scenic landscape of the city or any of the essential elements of the scenic landscape?"  Given the removal of vegetation, increased visibility of the use and its characteristic elements (unlike, recreational activity, traditional farmhouses and outbuildings), I think the proposal conflicts with the provision's objective of conserving and enhancing the scenic landscape.  It is likely that the development would have a negative impact on the rural landscape's visual appeal, affecting the scenic value enjoyed by travelling residents and visitors.
  2. [99]
    It seems to me that the proposed establishment of a service station, convenience store, food outlets, truckers’ lounge and associated amenities is a significant new business and community development.  Its proposed location deviates from the pattern of development specified in s 2.3.2 and in the Structure Plan Map 4. 
  3. [100]
    Further, the proposal’s commercial nature and infrastructure, as well as the removal of existing vegetation, conflict with the intended land use, agricultural value, and scenic amenity outlined in s 3.7.1 for the Barron-Smithfield District.  Its commercial nature and infrastructure do not contribute to the productive agricultural land or the scenic amenity of the area or preserve or maintain the visual appeal of the area, which includes the views of cane fields, wetlands, and hillslopes. 
  4. [101]
    I am unable to accept Mr Buckley’s opinion that the broader area of land has “limited agricultural potential into the mid to long term”, especially in light of the specific conditions attaching to existing uses which call for the rehabilitation management of the land for future agricultural use.  But even if land has limited agricultural potential, it is important to the scenic landscape and is susceptible to flooding.  It seems to me that the proposal conflicts with the provisions of the Rural 1 Planning Area Code. Contrary to the purpose stated in section 4.5.1, it is urban development, not rural development, that undermines rather than enhances the visual amenity and landscape of the area. Additionally, in direct contradiction to section 4.7.20, the proposed development is not sympathetic to the amenity and character of its surroundings. Instead of complementing or enhancing the area's visual amenity and landscape, the built structures of the development will have adverse effects on them.  And, contrary to s 4.8.1, it will intrude and alter, instead of preserving and complementing, the predominant views and vistas along the major transport corridor.

CairnsPlan 2016

The visual amenity concerns are further reinforced in CairnsPlan 2016, which strategically emphasises the desire to protect and preserve existing character: (a) Growth is to be concentrated within the identified urban area, promoting efficient development; (b) Natural areas and rural surrounds are valued for their character, landscape, and contribution to the local economy; (c) Rural land is to be retained for agricultural use, preserving its purpose; (d) Rural areas providing inter-urban breaks or scenic value are to be preserved accordingly; and (e) Rural lands and open spaces hold economic, aesthetic, cultural, and social value, requiring protection from development that diminishes their overall value.

  1. [102]
    The Strategic Framework explicitly states that development such as this, being other than agricultural activities, should not occur within the Barron River Delta floodplain. 
  2. [103]
    The proposal conflicts with the purpose of the Rural Zone Code to accommodate rural uses and compatible activities while considering the character and environmental features of the zone.  The proposal is not excepted as being development directly associated with the rural character and not visually intrusive, respecting the visual amenity of rural areas providing inter-urban breaks.  It seems to me that the visual impacts of the development, characterized by extensive hardstand, signage, lighting, and activity, will detract from the area's amenity and character.  Additionally, the removal of existing vegetation along the front boundary further diminishes the visual appeal.  I accept the Council’s argument that contrary to PO5 and PO6 of the Rural Zone Code, the proposal will have an intrusive effect on the rural and scenic values of the land, and the development fails to respond to the land's characteristics and surroundings.  Likewise, the proposal also conflicts with the Flood and Inundation Hazards Overlay Code and falls short of the acceptable outcome AO12.1, by failing to protect and avoid adverse impacts on the area's amenity and landscape character.
  3. [104]
    Having regard to my assessment, I am bound to conclude that while the use of a petrol service station/truck stop in itself could be accommodated on the site, the proposal will have an unacceptable impact on the rural character and scenic amenity being central to those planning instruments.  Therefore, approval of the proposal conflicts with the planning instruments in a fundamental way that is neither technical nor minor.

Is the proposal inconsistent with existing approvals over the land?

  1. [105]
    The Court must have regard to the existing approvals as part of its assessment.[33] 
  2. [106]
    It is undisputed that the existing approvals require landscaping along the entire Captain Cook Highway frontage for Lot 5 on SP 309133, with the exception of the access road and that part of Lot 5 on SP 309133 formerly described as Lot 6 on RP 837731 which is improved with the existing house.
  3. [107]
    Approval was first given in or around 1990 and the initial approval for the extraction activities was granted in or around 1990. Since then, there have been several subsequent approvals and extensions.  Relevantly here, the conditions of the approvals have consistently required dedication of a strip along the frontage;[34] the implementation of landscaping and vegetation buffers on the land, and specifically, the requirement to screen the extractive industry operations from view along the Highway frontage; and protective measures have been put in place to safeguard the future use and productivity of the land and the surrounding areas.[35]  As recently as 25 July 2017, the Council granted approval for an extension to the extraction boundaries, allowing for a change in the scale of use, and inclusion of waste disposal for construction and demolition waste.  The approval was subject to a landscaping condition:

Landscaping

13. The Applicant/Owner/Operator must demonstrate the following landscaped buffers within the site:

a. a minimum 10m wide densely landscaped buffer along the Captain Cook Highway frontage of the site, extending from the existing site access to the western site boundary; and

b. a minimum 10m wide densely landscaped buffer located adjacent to the western portion of the existing site access, extending a minimum distance of 40m in the site from the site boundary.

The 10m wide landscaped buffer areas must not be used for general site operations nor contain extracted material at any time.

…

The landscape buffers must be maintained for the life of the development, to the satisfaction of the Chief Executive Officer.

  1. [108]
    Accordingly, the land’s frontage to the Highway is almost entirely screened by dense vegetation.  The conditioned landscaping condition fulfils the planning objective to maintain the desired aesthetic quality and avoid any potential visual disturbances for passing drivers.
  2. [109]
    The proposal will occupy a portion of Lot 5 and extend the northern boundary, including the car fuelling area about 7m from the frontage, signage, including a 7m high illuminated pylon sign, and removal of the existing vegetation along about 135m of site's frontage adjacent to the development area.  While the remaining balance of approximately 735 meters of frontage will retain the existing vegetation, I accept Mr McGowan’s assessment “that the removal of existing vegetation on the site and in the road reserve and the lack of proposed landscaping will also open up views through the site to the extractive industry and other uses on the Site”.
  3. [110]
    Plainly, the removal of the existing vegetation will contravene Condition 13 of the existing approval and further conflict with the underlying objective of the planning instruments.  Therefore, approval of the proposal would be inconsistent with existing approvals over the land.

Are there sufficient grounds to approve, including whether there is a need for the proposal?

  1. [111]
    Having found that a decision approving the proposal plainly conflicts with the planning instruments, it is necessary to consider whether there are sufficient grounds to justify the decision despite the conflict. 
  2. [112]
    The appellant relies upon the following as being sufficient grounds, separately or together, to approve the proposed development:
    1. there is a clear strong need for the proposal;
    2. the nature of the proposal is such that it is more appropriately located in isolation from urban residential, commercial and industrial uses;
    3. the site has locational and spatial characteristics that are specifically suited for the proposed development;
    4. the site is located on a multi-combination vehicle route with existing adequate deceleration and acceleration lanes for ingress and egress for all vehicles;
    5. the site and its surrounds are atypical of the character of rural land within the Barron River Delta;
    6. the co-location of the proposal with the existing extractive industry and other non-rural uses on the site is an efficient and effective use of the road network;
    7. approval of the proposal will not undermine, interfere with, or significantly adversely affect the implementation of, the broad objectives of CairnsPlan 2009 regarding the scenic landscapes of the City, the economic development and employment opportunities within Cairns urban areas, and the preferred pattern of urban development;
    8. approval of the proposal will not undermine, interfere with, or significantly adversely affect the implementation of, the broad objectives of CairnsPlan 2016 regarding the strategic outcomes of the Settlement Pattern Theme, the outcomes for the Rural Areas, or the outcomes for the Natural Hazards for the Natural Areas and Features Theme;
    9. neither CairnsPlan 2009 or CairnsPlan 2016 contemplated, nor made provision, for a development such as the proposal on a national multi-combination vehicle route; and approval of the proposal on the land would not conflict with, compromise or undermine any of the deliberate planning policies expressed in either planning scheme.  Furthermore, any physical impacts occasioned by the proposal may reasonably, and adequately, be dealt with by the imposition of development conditions.
  3. [113]
    On the contrary, the council asserts that these matters are not sufficient grounds to justify approval, but instead are compelling factors in the case to refuse the proposal as follows:
    1. As to points (a) and (d), matters of need and the benefit of locating on a multi-vehicle route demonstrate that not only is there not a “clear strong need” for the proposal, but that there is no need at all.
    2. As to points (b) and (c), while the Council logically accepts there can be valid amenity reasons for locating a service station on the fringe or away from urban residential, commercial and industrial uses, that is not a reason why the proposal ought to be located on this site in the Barron Delta contrary to the relevant schemes.
    3. As to point (e), no expert supported the proposition that the site and its surrounds “are atypical of the character of rural land within the Barron River Delta”, rather the appellant’s witnesses, Mr Buckley and Mr Curtis, acknowledge the rural character of the area.
    4. As to point (e), no evidence was adduced to support the contention.  The existing extractive industry is contemplated in this location by both CairnsPlan 2009[36] or CairnsPlan 2016[37], and the proposal contrary to the extant conditions of the approvals for the site.
    5. Points (g), (h) and (i), are disposed of by the assessment against the planning instruments.
  4. [114]
    It seems to me that all contentions bar those in (a) and (d), are part of the consideration and are effectively defeated by the assessment of the proposal against the planning instruments, which leaves the main focus on need.
  5. [115]
    By virtue of ss 326(1)(b) of the SPA the relevant decision must not conflict with a “relevant instrument” unless there are “sufficient grounds” to justify that decision despite the conflict.  Ascertaining the seriousness or nature of the conflict involves discerning from the verbiage of the instrument, the degree of importance it attaches to compliance with the particular principles, requirements or codes and then, analysing the particular proposal within that regime.[38]
  6. [116]
    The word “Grounds” is defined in Schedule 3 of the SPA in respect of s. 326(1) as:

“1. Grounds means matters of public interest.

2. Grounds does not include the personal circumstances of an applicant, owner or interested party.”

  1. [117]
    In Weightman v Gold Coast City Council,[39] in considering a similar requirement to s 326 of the SPA in the repealed Local Government (Planning and Environment) Act 1990, Atkinson J observed:[40]

“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s. 4.4(5A)(b) of the P&E Act, the decision maker should:

  1. examine the nature and extent of the conflict;
  2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
  3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
  1. [118]
    Her Honour elaborated on the courts task saying:

“[35]  The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict. The discretion, as White J observed in Grosser v Council of the City of the Gold Coast is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds. This is a mandatory requirement. If there is a conflict, then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict. The primary judge wrongly held that it was discretionary?? only. ...

[37]  The first task required of the decision maker, as the learned primary judge recognised, is to consider the nature and extent of the conflict. The conflict may be minor or major in nature or indeed anywhere in the continuum between those two extremes. The conflict in this case is a major one, arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys. ...

[44]   The second question the decision maker has to consider is whether there are any planning grounds on which to approve, or which militate against approval of, that part of the application which is in conflict with the planning scheme. The nature and extent of the conflict may be such as to suggest that there are significant planning considerations against that part of the application.

[45]   The decision maker should then consider other aspects of the development and determine whether they are consistent with proper planning grounds. Those are the planning grounds which apply whether or not the conflict exists.

[46]  It is only after consideration of all of these matters that the decision maker is able to properly assess whether or not the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”

  1. [119]
    The test, as described by Atkinson J in Weightman, has been applied with fidelity in relation to successive analogous provisions.  In Lockyer Valley Regional Council v Westlink Pty Ltd,[41] the Court of Appeal discussed and affirmed that the Weightman test remained relevant under the amended s 3.5.14, save that the expression “planning grounds” required a narrower inquiry than that entailed in assessment of the unqualified and broadly defined “grounds” which had become relevant.[42]  Both Weightman and Lockyer, were applied in relation to s 326 of the SPA in Zappala Family Co Pty Ltd v Brisbane City Council,[43] where Morrison JA said that in applying s. 326(1), the Court must examine the nature and extent of the conflict with the planning scheme.[44]  But in doing so, the court does not adopt the roll of the planning authority and decide for itself whether some proposal different to the planning strategy of elected local authority ought be a preferred or better use,[45] recognising that the local authority has wider considerations to strike an overall balance, in the public interest, between the many interests potentially affected by the scheme.[46] These matters were again emphasised in the unanimous decision of the Court of Appeal in Bell v Brisbane City Council & Ors.[47]
  2. [120]
    Bell v Brisbane City Council & Ors,[48] and the later cases of Gold Coast City Council v K & K (GC) Pty Ltd,[49] and Redland City Council v. King of Gifts (Qld) Pty Ltd[50] authoritively examined the term ‘public interest’ and the application of s 326(1)(b), before legislative changes brought about a new more flexible approach (not applicable here).[51]
  3. [121]
    In Bell, the Court of Appeal explained that s 326(1)(b) will only be engaged in exceptional cases where there is a tension between the application of the relevant instrument and the public interest embodied in the scheme.  McMurdo J (who wrote the judgment with unanimous support) said:

“[66] Section 326(1)(b) will be engaged only where there is a tension between the application of the relevant instrument, here a planning scheme, and the public interest.  If that tension exists, it will be for the decision maker to consider whether there are sufficient grounds, in the public interest, to depart from the instrument.  Necessarily, cases where that tension exists will be exceptional, because a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.  In Clark v Cook Shire Council,[52] Keane JA, with the agreement of the other members of this Court said:

‘The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.’ (Emphasis added.)

[67] It is not for the decision maker (including in this context a Court), to gainsay the expression of what constitutes the public interest that is in a planning scheme.  A decision maker might think that a limit of 15 storeys is too restrictive, and the public would be better served by a higher limit.  But this decision maker must accept that it is in the public interest that the limit be 15 storeys, because that is what the planning scheme effectively provides.”

  1. [122]
    The court identified the types of exceptional circumstances where a decision maker may conclude that the planning scheme did not accurately reflect what was in the public interest saying:

“[68] Cases could arise where relevant circumstances have changed since the planning scheme was made, or where it can be seen that there is a factual error in the scheme itself. Cases of that kind were identified in the explanatory notes for s 3.5.14 of the Integrated Planning Act 1997 (Qld). There might also be cases where it is evident that the planning scheme has not anticipated the existence of circumstances which have created a need for a certain development in the public interest. In exceptional cases of all of these kinds, the decision maker might be able to conclude that the planning scheme is not, in the particular case, an embodiment of what is in the public interest.”

  1. [123]
    As to the primacy of the expression of public interest in the scheme, the court said:

“[70] Consequently, any consideration of the application of s 326(1)(b) of the SPA must proceed upon the premise that it is in the public interest that the planning scheme, in each relevant respect, be applied, unless the contrary is demonstrated.  ….”

  1. [124]
    The court rejected, as part of an assessment under s 326(1)(b), some “balancing exercise” by “balancing consideration of all positive and negative attributes of the proposed development (for example, particular community benefits might weigh in favour of approval even where a proposal is not consistent with the community expectations)”.[53]  As I apprehend it, that sort of improper balancing exercise is to be distinguished from the exercise in the last stage of the Weightman test when determining whether planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.[54]  Further, I do not read the decision as relegating as irrelevant considerations, other favourable planning scheme provisions as part of the examination of the nature and extent of conflict and sufficiency of grounds.[55]
  2. [125]
    In the most recent case of Gold Coast City Council v K & K (GC) Pty Ltd,[56] Sofranoff P (with whom Fraser JA and Flanagan J agreed) distinguished the term ‘public interest’ from “planning grounds” in the former legislation saying:

“[36] It has been said that the expression “matters of public interest” has a wider scope than “planning grounds”. That is undoubtedly true. Although planning grounds would always serve the public interest, matters of public interest might be constituted by matters that are not planning grounds.

[37] The expression “in the public interest”, when used in a statute, imports a discretionary value judgment to be made by reference to factual matters confined only by the subject matter, the scope and the purpose of the statutory enactment.  The range of matters that can, potentially, be included within the scope of “matters of public interest” is very wide although the particular legislation in which the expression appears will enable some matters to be regarded as definitely extraneous to any objects the legislature could have had in view.”

  1. [126]
    The President illustrated the matter by referring to the five matters listed in the Ministerial Guidelines made on 11 December 2009, as “matters that may be considered when determining whether there are sufficient grounds to justify a decision that conflicts with a relevant instrument”, namely:

“(a) The relevant instrument is out of date because, for example, the construction of a new railway station has enabled land previously intended for low density residential development to sustain a higher density or because a Planning Scheme is now inconsistent with current design principles, methods for addressing climate change or demographic shifts;

  1. The relevant instrument is incorrect because, for example, a Scheme was based upon an assumption of low growth but that assumption has been falsified or “constraint mapping in the Planning Scheme does not reflect the physical site circumstances”;
  1. The relevant instrument inadequately addressed development, for example, because a proposal involves alternative technologies and ideas that are still in the research and development stage or that are not yet established in common practice;
  1. The relevant instrument does not anticipate specific or particular development because the proposed development may be of international, national, state or regional significance and may not have been anticipated, such as a large infrastructure development proposed for an area envisaged to be residential;
  1. There is an urgent need for the proposal, such as an undersupply of residential care accommodation such that there is likely to be a significant shortfall in the next five years and, although changes to the Scheme are being studied, finalisation of any changes would unduly delay the delivery of the need for accommodation.”
  1. [127]
    The President then remarked at [39] that:

“[39]  It can be seen that the kinds of factors identified in the guidelines are matters that are, by their nature, capable of overriding the intent of a Planning Scheme, or capable of overriding a conflict with particular provisions contained within it, because they are matters that are now said to justify an exception to the Scheme but which were unavailable for consideration when the Scheme was formulated. The matters stated in the guidelines are matters that may be taken into account by a decision maker. They are not mandatory. Nor are they exhaustive.”

  1. [128]
    At paragraphs [47]-[48] the President further reinforced that:

[47] At the heart of decisions like these is the acknowledgement that conformity with the Planning Scheme is, prima facie, in the public interest. That approach is consistent with decisions of this Court from the time of the earliest planning legislation. For example, in Dillon v Council of the City of Townsville Carter DCJ said that the very raison d’être of a Planning Scheme is to best serve the needs of a community in a particular area. Most recently, McMurdo JA emphatically restated the principle in Bell v Brisbane City Council.

[48] That means that it can never be enough to satisfy a provision like s 326(1)(b) of the SPA for a party merely to prove that “there is a need” for a proposed development.  The existence of a need for a particular kind of development is the starting point.  If the placement of a development in a particular location would conflict with a Planning Scheme, then it must be accepted that it is the intent of the Scheme that, subject to there being a matter of public interest that overrides the public interest in maintaining a Scheme, the need should be met by a development on a site that does not give rise to a conflict.  An applicant must identify reasons why the terms of the Planning Scheme should not prevail. Otherwise, there is a risk that, rather than applying s 326(1)(b), the decision maker will be doing no more than performing a general weighing of factors in order to determine whether, in the decision maker’s own view, it would or it would not be better to permit a development on the site to go ahead.

  1. [129]
    And the last of the trio of decisions under the former regime is Redland City Council v. King of Gifts (Qld) Pty Ltd,[57] where it was held that the process under s. 326(1) of the SPA does not involve a consideration of the competing merit and weight of grounds relied upon for approval,[58] but that an applicant must identify reasons why the terms of a planning scheme should not prevail.[59] 
  2. [130]
    In King of Gifts, Philippides JA observed that:

“… A proposed development that conflicts with that expression of the public interest can only be approved where a public interest in the conflicting development is demonstrated to be sufficient to exceed the public interest otherwise represented by adhering to the provisions of the planning scheme.”[60] 

  1. [131]
    And similarly, McMurdo JA echoed his view in Bell, and apposite to this case, spoke of need this way: [61]

“… Unless it was demonstrated that, in the relevant respects, the planning scheme, as it applied to this site, no longer represented what was required in the public interest, it could not be said that there were “grounds” (meaning matters of public interest) for permitting the development. What had to be established was not just that there was a need for such a development in the area, but that there was a need for the development in a location where the planning scheme provided that it should not occur.  It had to be shown that, in the public interest, it was necessary to override the scheme as it applied to this land.”

Is there any demonstrated economic, planning and/or community need for the proposed development?

  1. [132]
    The appellant contends that sufficient grounds in a demonstrated need for the development to justify approval despite the conflicts.  It argues that the evidence demonstrates a strong need for the development to be delivered in this location, providing convenience, choice and competition with respect to essential facilities, in the public interest.  On the contrary, the council contends that there is an absence of any relevant need such that it is a compelling factor for refusal.
  2. [133]
    The seminal principles that inform and guide an assessment of need are conveniently summarised by Judge Wilson SC (as he then was) in Isgro v Gold Coast City Council,[62] and have been refined in subsequent cases,[63] as follows:
    1. need is a relative concept to be given greater or lesser weight depending on all of the circumstances to be taken into account;[64]
    2. need in planning does not mean pressing need, critical need, widespread desire or connote a pressing urgency, but relates to the well-being of the community;[65]
    3. for community need, a range of qualitative factors are involved such as convenience, accessibility, choice, range, depth, competition, price, service, shopper amenity, etc;[66] A use is needed if its provision, taking all things into account, will improve the physical well-being of the community,[67] or will on balance improve the services and facilities available in the locality;[68] or will improve the ease, comfort, convenience and efficient lifestyle of the community;[69]
    4. a need cannot be a contrived one, but based on the assumption that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met;[70] A need does not have to be particularly strong to be a ‘demonstrable need’, but rather real or substantive (rather than trivial, immaterial, minor, or insignificant) need which is capable of being shown or logically proved.[71]
    5. the question of need is decided from the perspective of the community and not that of an applicant, commercial competitor or those who make adverse submissions;[72]
    6. the impact of a proposed development on existing like businesses is a matter which is to be taken into account adversely to the proposed new facility unless, for example, the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community;[73]
    7. the provision of competition and choice can be a matter which indicates a need.[74]
    8. a fundamental element of economic need is that the development, if approved, would be financially viable,[75] as distinct from privately profitable.  Economic need involves a typically more quantitative assessment as to whether the extent of demand for the proposal is sufficient to support it at a sustainable level.[76] 
    9. Planning Need refers to an assessment of the extent to which the proposed development can be accommodated by existing planning provisions. This necessarily involves an assessment of the existence of competitive approvals and the availability of suitably zoned and/or designated lands to accommodate the proposed development.[77]

Service Station

  1. [134]
    The retail fuel market in Australia is highly competitive and has been undergoing significant change for the past three decades.  The website of the industry key body, the Australian Industry of Petroleum provides an insight into the fuel market and trends. The most significant trend has been the reduction in the number of retail service station sites, and the move to higher volume outlets located in busy areas and on highways.  The number of sites has reduced from around 20,000 sites in 1970 to around 6,300 sites now. In terms of city vs country prices, regional service stations typically see 1 tanker per 2-3 weeks versus 1 tanker per day at some city sites. The average customer base per service station is around 2,000 people in regional areas (and well below in many towns) whereas metro/city sites have a customer base of around 4,000 to 5,000.
  2. [135]
    According to the Australian Competition and Consumer Commission reports the number of petrol stations in Australia has decreased in the longer term, to a low by the mid-2000s, but in the past 3-5 years, there has been an increase in the number of outlets opened by major chains as well as independent operators.  As of June 2017 there were about 7,100 service stations - an average of one per 3,460 persons nationally.   Research by Location IQ indicates that there are now approximately 7,400 service stations in Australia - one for every 3,400 persons.  In 2014, over 80% of revenue in the retail sector is generated in the sale of petroleum products, but convenience store and other non-fuel sales have become increasingly important for overall profitability.  The range of retail products sold include food and grocery items, trailer hire, car washes, ATM services and gas bottle exchanges. Revenue is also generated by sub-leasing a section of the store to fast food and coffee franchises.  Overall, convenience store sales contributed over 40% to the retail sector net profits despite making up less than 20% of total revenue.  In its September 2018 report, the ACCC monitoring indicated that independent retail chains, such as 7-Eleven, United, Puma Energy and On The Run, have experienced a significant increase in the share of retail petrol sales over the past 14-year period, while at the same time, supermarket chain shares have declined.
  3. [136]
    Overall, the retail sales of unleaded fuel in Australia have remained relatively stable over the past few years, while diesel sales have increased and LPG sales have decreased. This is likely due to a number of factors, including the increasing popularity of fuel-efficient vehicles and the growing demand for diesel from commercial vehicles.  Of course, total unleaded fuel sales in Australia actually declined during heightened periods of the COVID pandemic. 
  4. [137]
    A report by the ACCC in 2017 found that petrol prices in Cairns have been significantly higher than in the five largest cities in Australia for a consistent period of time.  The number of retail sites in Cairns has not changed much in the last six years, with some 32 sites in total having increased from 28 in 2010.  A 2017 report by the Australasian Convenience and Petroleum Markets Association found that petrol station shoppers consisted of convenience store shoppers comprising 31% of refuelers, 19% of location-driven shoppers who rarely bought non-fuel products, one-third of the market were price-sensitive fuel shoppers who bought from the same place or waited for cheaper fuel; and 18% fixed retail shopper who were predominantly loyal to their convenient outlet.  Overall, the key findings suggest that consumers are becoming more price-sensitive and are willing to switch petrol stations more often. However, price is still the most important factor for most consumers when choosing where to purchase fuel. Location and convenience are also becoming more important factors for consumers, especially for convenience store shoppers.
  5. [138]
    There is no dispute that the proposal including its truck refuelling facility, truck stop and fast-food outlets will operate on a 24-hour basis in line with the community expectations and consistently with competing service centres.
  6. [139]
    Service stations in Australia are typically located on heavily trafficked roads, serving passing traffic.  The site is located on the Captain Cook Highway, which is one of the busiest roads in Cairns with around 31,000 vehicles passing the site daily.  Of these, only a few or about 5% are heavy vehicles, including articulated vehicles and B-doubles, which is explicable since B-doubles are restricted from using the Kennedy Highway between the Captain Cook Highway and Speewah.  I accept Mr Norling’s evidence that only B-doubles likely to travel past the subject site are sugar cane trucks (during the restricted season) and trucks from the Boral Quarry at Redlynch and Northern Sands Quarry at Barron.
  7. [140]
    Mr Duane opined that the number of heavy vehicles travelling past the subject site is significant and will continue to increase in the future.  He relies upon the quantitative general traffic data of Captain Cook Highway.  He points to the Captain Cook Highway as one of the busiest roads in Cairns, with an average daily traffic volume of 31,079 vehicles passing the site including about 5% or 1,563 heavy vehicles per day, and of those 153 were articulated vehicles and 8 of these were B-Doubles. 
  8. [141]
    While Mr Norling agreed with the number of vehicles travelling past the site, he opined that a majority of heavy vehicles were likely rigid trucks and buses, with a small number of articulated vehicles and B-doubles.  He opined that the B-Double incidents were ‘inconsequential’ and the articulated vehicles also ‘very low’.  Mr Norling preferred the more qualitative data on freight movement in the state and in the local Cairns region, and the relatively low volumes of road freight travelling to or from the north of Cairns consistent with small population, shipping, and seasonal road access.  He cites data showing that the majority of road freight in Queensland travels between Brisbane and Townsville, and that the Cairns local region only receives a small percentage of this freight.  And he argues that the major industrial area of Cairns is located in the Portsmith area on the southern side of Cairns and that most trucks transporting freight to or from this area would bypass the subject site.  Mr Norling notes that the Cairns local region only receives 10% of the road freight that arrives in Queensland, and that a majority of road freight in the Cairns local region travelling between Cairns and locations to the south of Cairns.  The major industrial area of Cairns is located in the Portsmith area on the southern side of Cairns. 
  9. [142]
    I prefer Mr Norling’s approach to the assessment as being more reliably and qualitatively relevant to the site.  Further, I am unable to discern any need for facilities for heavy vehicles and truckers because:
    1. According to Exhibit 10 and Mr. Douglas, light vehicles fall under Class 1 and 2, and are defined as those less than 5.5m in length. The rest of the spectrum, varying in fuel capacity and size, are heavy vehicles.
    2. Mr. Duane was unsure about the constituents of the heavy vehicle category, beyond articulating that articulated and B-double trucks made up a certain proportion. He could not specify the proportions of other vehicles in the category passing the site.
    3. The traffic counts at the site show the minimal daily passage of articulated trucks (153, 0.5% of total) and B-double trucks (8, 0.025%).  Only half of these could access the site due to northbound-only availability.  Even using Mr  Duane's estimated turn-in rates for heavy vehicles, the numbers of these specific vehicle types visiting the site are very low.
    4. Despite a proposal for a trucker's lounge and amenities, there's no evidence indicating a need for such facilities at this location.  Mr. Duane was unable to estimate the number of long-haul B-double or articulated truck drivers that would use these facilities.
    5. The types of vehicles that would require truck facilities are more common on the Western Arterial, which sees 214 articulated vehicles each day, compared to 153 at the site in question. Lighter "truck and bus" vehicles can refuel at existing facilities.
    6. When asked about any service deficiencies for heavy vehicles, Mr. Duane was unable to articulate any issue regarding fuel access.
    7. Mr. Norling mentioned that heavy vehicle volumes are not the sole factor, but the nature of truck movements and their needs are also important.  Mr. Duane conceded that traffic experts would be better equipped to discuss these details. However, no such evidence was presented.
    8. Mr. Duane's inquiries into the heavy vehicle industry were minimal and provided no specific information regarding the fuelling and operational habits of heavy vehicle drivers or the need for a new fuelling station.
    9. Mr. Duane noted a trend towards larger trucks in road freight, but Mr. Norling pointed out that the types of trucks that pass the site in question are declining in their role in non-metropolitan freight movement.
    10. Mr. Norling provided some context on freight movement patterns, suggesting that trucks moving freight between Cairns and the south would not pass the site and would have suitable refuelling facilities elsewhere. Trucks moving north would typically use the Western Arterial and bypass the site.
    11. B-doubles that likely pass the site are mostly sugarcane trucks and quarry trucks.  Mr. Duane admitted there were few attractions in the trade area for heavy vehicles, and more heavy vehicles pass the Western Arterial than the site.
  10. [143]
    The trade area for the proposed service station development includes the Northern Beaches of Cairns Statistical Area 2 of Yorkeys Knob-Machans Beach, Trinity Beach – Smithfield and, Clifton Beach – Kewarra Beach and part of Redlynch (north of the Barron River).  The trade area population was estimated at 36,350 persons in 2020 and is projected to increase to 48,400 persons by 2041.  I accept Mr Norling’s evidence that residents of Caravonica may not use the Captain Cook Highway as often as other residents of the trade area.  This is because Caravonica is located near the Cairns Western Gateway, which provides an alternative route to the urban area of Cairns. 
  11. [144]
    The average fuel consumption for passenger cars per 100 km in Queensland is 10.9 litres per 100 km currently, while the average for Australia is 10.8 litres per 100 km. A review of the Australian Bureau of Statistics Survey of Motor Vehicle Usage shows that the figure of consumption has been trending downwards over the last decade or so, at the rate of 0.44% per annum over the past two decades.  Mr Norling prefers a declining fuel consumption of 0.25% per annum and Mr Duane prefers a position between a declining fuel consumption of 0.25% per annum and a constant fuel consumption.
  12. [145]
    In addition to the resident population, the trade area also includes a significant number of tourists who would pass the site.  Mr Duane estimates that tourists would be equivalent to up to 15% of demand for residents on the Northern Beaches of Cairns. Mr Norling agrees that tourists would add to demand but considers that an allowance of about 10% of fuel sales as being generated by tourists is more appropriate since a significant proportion of visitors rely on air travel.  I agree with Mr Norling and prefer his proportional tourist allowance. 
  13. [146]
    The proposal site is on a heavily trafficked road and would serve passing traffic, including trucks, tourists, and local residents.  There are five service stations within the trade area located on the Captain Cook Highway.
    1. There are two service stations in Smithfield. One is a Shell Coles Express located in the Smithfield Major Centre, and the other is a BP service station located in the residential precinct of the Smithfield Local Plan area.
    2. There is one service station in Yorkeys Knob. It is located midway between the Yorkeys Knob urban area and the Captain Cook Highway.
    3. There are two service stations in Clifton Beach. Both are located on the southbound side of the highway, but they have access for northbound traffic as well. One is a Caltex station that was recently refurbished, and the other is an independent Mobil station.
    4. There is a single petrol bowser located at the Machans Beach Convenience Store. However, this facility is considered to be outdated and inadequate, so it will not be considered further in the analysis.
  14. [147]
    These facilities would also serve the high number of vehicles travelling between the Northern Beaches and Cairns. But none of these have dedicated truck refuelling facilities and they are incapable of accommodating B-Double trucks.  Beyond the trade area, there are a number of service stations on the Captain Cook Highway, to the north of the City Centre, leading to the airport. The closest is a Puma Energy at Aeroglen, which is only 400m south of the catchment boundary.  These facilities would also serve the high number of vehicles travelling between the Northern Beaches and Cairns.
  15. [148]
    There are three future competitive developments relevant to the proposal:[78]
    1. A service station is approved at 171 Trinity Beach Road, Trinity Beach as part of a Woolworths supermarket centre approval.
    2. A site at 109-117 McGregor Road at Smithfield received approval for a service station in 2019, with a pending application on the site for a mixed use development.
    3. An additional approval at 2L Captain Cook Highway, Clifton Beach has also been granted in the interim period.
  16. [149]
    Evidently, there is increased establishment of Service Stations and Food and Drink Outlets in the northern corridor of Cairns.  With the exception of the Subject Application and the Yorkeys Knob Application, all other proposed developments are located within an Urban or Future Urban Area and are not located in the Barron River Delta.
  17. [150]
    There are six truck stops in Cairns variously located in the industrial area at Portsmith or the southern entrance to Cairns at Gordonvale.
  18. [151]
    The evidence suggests that the demand for a service station at the subject site is likely to be lower than the typical demand for highway service centres.
  19. [152]
    Mr Duane uses a corridor-based approach to estimate the demand for a service station at the site. This approach uses traffic counts along a major traffic corridor and a turn-in rate to estimate the likely demand for fuel and related items from traffic utilizing the road corridor.  The turn-in rate is the percentage of vehicles that pass a service station and actually turn in to use its facilities. There is no accepted benchmark for turn-in rates for service stations, as they can vary depending on a number of factors, such as the location of the service station, the size of its offer, and the competitive environment.  Mr Duane estimates that the turn-in rate for the subject site would be 1.75% for light vehicles and 3.5% for heavy vehicles. This is lower than the typical turn-in rates for highway service centres, but he justified this by pointing out that the subject site only has access for northbound traffic.  He also assumed that the average fuel transaction for a light vehicle is 43 litres and the average diesel transaction for a heavy vehicle is 200 litres.  He used current diesel and unleaded prices despite likely fluctuation.  Based on these assumptions, he estimated that the total fuel sales for the subject service station would be 6.2 million litres in 2021, which indicates that the proposal would be sustainable.
  20. [153]
    Whilst Mr Norling agreed with the arithmetic, he was not prepared to agree with the turn-in rates at the time of the joint expert report but did not ultimately contradict them.
  21. [154]
    It seems to me that one service station for every 4500 to 5000 residents is an appropriate service station benchmark.  Using a trade area of a population of 36,350, the catchment currently provides one service station for every 7500 people with the existing five service stations, with the prospect of providing one service station for every 4543 including the 3 prospective developments.
  22. [155]
    I also respectfully agree with the observation of Everson DCJ in Yorkeys Knob BP Pty Ltd v Cairns Regional Council[79] when speaking of the need for a similar facility in the vicinity and subject to CairnsPlan 2016 that: “It cannot be postulated that there is a need for a facility to serve these purposes just to the north of Cairns CBD merely on the premise that there is not one there already”. 
  23. [156]
    In my view the proposal in this location can be contrasted with one petrol station provided for every 3,200 persons enjoyed by the Cairns local government area.  The proposal is highway based with a high volume of passing traffic separated by a median and more convenient to outbound residents, tourists and heavy vehicles. 
  24. [157]
    It seems to me that the trade area residents would regularly travel past the site on their way to and from the Cairns CBD to Smithfield.  Other Service Stations are located closer to service their needs and there are three approvals in locations that would satisfy any future gap.

Convenience Shop

  1. [158]
    The proposed convenience store would be 247m2.
  2. [159]
    Having regard to the fuel industry data, it seems to me that most people who visit service stations do so to refuel their cars, and few people will visit the convenience store specifically.  Convenience stores are important to the profitability of service stations, and the proposed store would help to ensure the viability of the service station.
  3. [160]
    I accept that the proposed store would have little impact on the hierarchy of centres in the area, as it will be smaller and offer a limited range of goods, compared to other proximate convenience stores and is no comparison to the larger centres in the City Centre and Smithfield.  But there is clearly no community, economic or planning need for a convenience shop to establish in an out-of-centre location as a stand-alone facility, that is, without accompanying a Service Station.
  4. [161]
    Approval rises or falls with the need for a Service Station.

Restaurants

  1. [162]
    The proposed three restaurants are to be 90-95 m2 each.
  2. [163]
    They are more likely to be occupied by small to medium-sized fast-food chains or independent restaurants.  They will not have and are not suitable for large chain fast food restaurants, that require drive-through service. 
  3. [164]
    The appellant argues that the site is well-suited for fast food restaurants because it is located in a high-profile area with limited immediate competition, extended operating hours, and a diverse customer base.  I accept that the residential trade area will be able to support fast food restaurants.  Tourists and Truckers would add to demand.  Currently, there are only eight national branded fast-food outlets in the trade area.
  4. [165]
    But again, since there is no community, economic or planning need for standalone restaurants in an out-of-centre location their fate rises or falls on the finding of need for the service station.

Conclusion

  1. [166]
    I am unpersuaded that the grounds relied upon by the appellant are sufficient, in terms of the public interest or benefit, to grant approval despite conflict with the planning scheme. 
  2. [167]
    Even though the site is located on a major road with high traffic volumes, I prefer the assessment of Mr Norling of only a modest level of community and economic need for a Service Centre on the Highway but find that there is no community or economic or planning need for the proposal to serve the needs of Northern Beaches residents or tourists or truckers.  In my view, the number of heavy vehicles using the road is relatively low.  The only B-doubles likely to travel past the site are sugar cane trucks and trucks from local quarries.  It seems to me that the proposed site is not a good location for a truck stop/service centre because most of the heavy vehicles travelling past this site are not travelling to or from the north of Cairns.
  3. [168]
    There is no evidence of any of the usual indicia of need such as lack of general choice, competition, or convenience, a monopoly or lack of price competitiveness, overtrading, or vehicle queuing.  No evidence was adduced from operators in the fuel industry, road transport industry, or tourist industry, or potential operators of the various uses proposed.
  4. [169]
    There is no demonstrated economic need for the proposal.  There is no unsatisfied town planning and community need for the proposal.
  5. [170]
    Therefore, since the appellant has not shown why the planning instruments, as the embodiment of what is in the public interest, should not prevail, I am bound to refuse the application.   

Orders

  1. [171]
    For these reasons, I make the following orders:
    1. The orders made on 8 November 2019 be varied in paragraph 1 as follows:
      1. Delete “Schedule 2 of the Planning Act 2016” and insert in lieu “the Sustainable Planning Act 2009”.
      2. Delete “Schedule 1 of the Development Assessment Rules” and insert “Statutory Guideline 06/09 under the Sustainable Planning Act 2009”.
    2. The application to develop a petrol service station/truck stop including a convenience store, three fast-food tenancies and a truck drivers’ lounge centre are refused.
    3. The appeal is dismissed;
    4. I will hear further submissions as to final orders consistent with these reasons.

Judge DP Morzone KC

Footnotes

[1] Planning Act 2016 (Qld), s 311; Sustainable Planning Act 2009,(Qld) s 311(2); Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21 at [37]–[38].

[2] Sustainable Planning Act 2009, ss 462 & 495.

[3] Sustainable Planning Act 2009, s 495(2).

[4] McConaghy Properties Pty Ltd v. Townsville City Council [2017] QPELR 333 at [28].

[5] Sustainable Planning Act 2009 (Qld) ss 462, 495 and 493(1).

[6]  Pursuant so s 4 of the Planning and Environment Court Rules 2018, and s 667(2)(d) & (e) of the Uniform Civil Procedure Rules 1999.

[7] Dempsey v Brisbane City Council & Ors [2012] QPEC 2 at 14.

[8] Heritage Properties Pty Ltd v Redland City Council & Ors [2010] QPEC 19.

[9]  Mr Curtis - Ex.8.2 - Visual Amenity JER, p. 26, para 57

[10] Sustainable Planning Act 2009 (Qld), Schedule 3. See also “ancillary” definition; Ex.4, Tab 2, p. 77

[11] Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82

[12]  Zappala at [52].

[13]  Zappala at [56].

[14]  Ex. 4, Scheme Extracts at Attachment 3, p. 115.

[15]  Ex. 5, Regional Plan and State Planning Policies, p. 6.

[16]  Ex. 5, Regional Plan and State Planning Policies, p. 7.

[17]  Ex. 5, Regional Plan and State Planning Policies, p. 19.

[18] Fitzgibbon Hotel Pty Ltd v Logan City Council [1997] QPLER 208, [212].

[19] Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 QdR 273, [23].

[20] Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 QdR 302, 322-323; Hydrox Nominees Pty Ltd v Sunshine Coast Regional Council [2014] QPEC 18, [14].

[21] Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64.

[22] ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352, 360; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 340, 342, 345; Harbug Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 318.

[23] Luke v Maroochy Shire Council [2003] QPELR 447.

[24] Luke v Maroochy Shire Council [2003] QPELR 447; Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368, 370; Acts Interpretation Act 1954, s 14A.

[25] Integrated Planning Act 1997 (Qld) s 6.1.2(3); Sustainable Planning Act 2009 (Qld) s 53.

[26] Degee v Brisbane City Council [1998] QPELR 287.

[27] Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266 at 272.

[28] Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306.

[29] Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, 212.

[30] Friend v Brisbane City Council [2014] QPELR 24 at [27] referring to Gracemere Surveys Pty Ltd v Peak Downs Shire Council [2009] 175 LGERA 126 at [30].

[31]  T3-71, l. 34.

[32]  T3-72, l. 39.

[33] Sustainable Planning Act 2009 (Qld) s 314(3)(b)

[34]  Ex. 24, Tab 1, Condition 5

[35]  See for example, Ex. 24, Tab 2, Condition 6; Tab 3, Conditions 11, 12, 19, 20, 21, 22; Tab 4, Condition 3; Tab 8, Conditions 14 and 18; Tab 10, Conditions 14 and 17; Tab 12, Conditions 13 and 14.

[36]  Ex. 4, Scheme Extracts at Attachment 2, p. 56 at s 4.5.1.

[37]  Attachment 3, p. 54 at s 6.2.19.2(5)(b).

[38] Stappen Pty Ltd v. Brisbane City Council [2005] QPELR 466, 473 [31] per Wilson DCJ

[39] Weightman v Gold Coast City Council [2003] Qd R 441 at [36].

[40]  Weightman at [36], with whom others agreed, at [8] de Jersey CJ, and at [16] per McMurdo P

[41] Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302 at 322-323.

[42]  Lockyer at 323–324.

[43] Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82.

[44] Bell v Brisbane City Council & Ors [2018] QCA 84 at [55]

[45] Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 and Heran Building Group Pty Ltd v. Logan City Council [2002] QPELR 303 at [15] and [17]

[46] Zanow v. Ipswich City Council [2010] QPELR 721 at [45]

[47] Bell v Brisbane City Council & Ors [2018] QCA 84 at [77] & [78] per McMurdo JA with whom Sofronoff P and Philippides JA agreed.

[48] Bell v Brisbane City Council & Ors [2018] QCA 84, per McMurdo JA with whom Sofronoff P and Philippides JA agreed.

[49] Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 at [36] & [37] (references omitted).

[50] Redland City Council v. King of Gifts (Qld) Pty Ltd [2020] QCA 41

[51] Planning Act 2016, s. 45 considered in Abeleda & Anor v Brisbane City Council (2020) 6 QR 41 at[40], [42], [53] approving Ashvan Investments Unit Trust v Brisbane City Council & Ors Ashvan [2019] QPEC 16 at [51], [53], [54], [57], [58], [60], [67]-[69].

[52] Clark v Cook Shire Council [2008] 1 Qd R 327 at 338.

[53]  Bell, at [73] & [74].

[54]  Weightman, at [35], [36] & [46]; Bell, at [66].

[55]  Bell, at [59], [73] & [74]; Weightman, at [36] & 37.

[56] Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132.

[57] Redland City Council v. King of Gifts (Qld) Pty Ltd [2020] QCA 41

[58]  King of Gifts at [119].

[59]  King of Gifts at [118].

[60]  King of Gifts at [118].

[61]  King of Gifts at [169]

[62] Isgro v Gold Coast City Council [2003] QPELR 414 at [20]-[30].

[63]  For example: Abeleda & Anor v. Brisbane City Council & Anor [2021] QPELR 1003 at [51]; Navara Back Right Wheel Pty Ltd v. Logan City Council; Wilhelm v. Logan City Council [2020] QPELR 899 at [297] & [330]; Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 at [29] and undisturbed on appeal in Trinity Park Investments Pty Ltd v. Cairns Regional Council & Ors; Dexus Funds Management Limited v. Fabcot Pty Ltd & Ors [2021] QCA 95 at [22], [157] and [159]; McKay v Brisbane City Council [2021] QPEC 42 at [237]; and United Petroleum Pty Ltd v. Gold Coast City Council & Anor [2018] QPELR 510.

[64] Intrafield v Redland Shire Council [2001] 116 LGERA 350 at [20].

[65] Watts & Hughes Properties Pty Ltd v Brisbane City Council (1998) QPLR 273 at 275.

[66] Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 at [29].

[67] Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126 at [131].

[68] Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58 at [60].

[69] Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at 213; Bunnings Building Supplies Pty Ltd v Redland Shire Council [2000] QPELR 193 at 198C.

[70] Indooroopilly Golf Club v Brisbane City Council [1982] QPELR 13 at 32-35.

[71] United Petroleum Pty Ltd v. Gold Coast City Council & Anor [2018] QPELR 510.

[72] Cf. Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at [213]; TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1 at [9]; Isgro v Gold Coast City Council & Anor [2003] QPELR 414.

[73] Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, at 687.

[74] Intrafield v Redland Shire Council [2001] 116 LGERA 350.

[75] All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155, 158.

[76] Fabcot Pty Ltd v. Cairns Regional Council & Ors [2021] QPELR 40 at [29].

[77]  Fabcot at [29].

[78]  A pending application for a service centre with two drive through outlets at 111 Yorkeys Knob Road has been refused.

[79] Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QPEC 6 at [37] not disturbed on appeal [2022] QCA 168.

Close

Editorial Notes

  • Published Case Name:

    Northern Sands Pty Ltd v Cairns Regional Council

  • Shortened Case Name:

    Northern Sands Pty Ltd v Cairns Regional Council

  • MNC:

    [2023] QPEC 31

  • Court:

    QPEC

  • Judge(s):

    Morzone KC DCJ

  • Date:

    11 Aug 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abeleda & Anor v Brisbane City Council (2020) 6 QR 41
1 citation
Jump To
Cite 1 - (2020) 6 QR 41
Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003
1 citation
Jump To
Cite 1 - [2021] QPELR 1003
All-A-Wah Carapark v Noosa Shire Council (1989) QPLR 155
2 citations
Jump To
Cite 1 - (1989) QPLR 155
Cite 2 - (1989) QPLR 155
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
1 citation
Jump To
Cite 1 - [2019] QPEC 16
Bell v Brisbane City Council [2018] QCA 84
4 citations
Jump To
Cite 1 - [2018] QCA 84
Cite 2 - [2018] QCA 84
Cite 3 - [2018] QCA 84
Cite 4 - [2018] QCA 84
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193
2 citations
Jump To
Cite 1 - (2000) QPELR 193
Cite 2 - (2000) QPELR 193
Clark v Cook Shire Council[2008] 1 Qd R 327; [2007] QCA 139
2 citations
Jump To
Cite 1 - [2008] 1 Qd R 327
Cite 2 - [2008] 1 Qd R 327
Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126
2 citations
Jump To
Cite 1 - (1984) QPLR 126
Cite 2 - (1984) QPLR 126
Degee v Brisbane City Council (1998) QPELR 287
2 citations
Jump To
Cite 1 - (1998) QPELR 287
Cite 2 - (1998) QPELR 287
Dempsey v Brisbane City Council [2012] QPEC 2
2 citations
Jump To
Cite 1 - [2012] QPEC 2
Cite 2 - [2012] QPEC 2
Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209
2 citations
Jump To
Cite 1 - (1990) QPLR 209
Cite 2 - (1990) QPLR 209
Fabcot Pty Ltd v Cairns Regional Council & Ors [2021] QPELR 40
4 citations
Jump To
Cite 1 - [2021] QPELR 40
Cite 2 - [2021] QPELR 40
Cite 3 - [2021] QPELR 40
Cite 4 - [2021] QPELR 40
Fitzgibbon Hotel Pty Ltd v Logan City Council [1997] QPLER 208
2 citations
Jump To
Cite 1 - [1997] QPLER 208
Cite 2 - [1997] QPLER 208
Fitzgibbons Pty Ltd v Logan City Council (1997) QPELR 208
3 citations
Jump To
Cite 1 - (1997) QPELR 208
Cite 2 - (1997) QPELR 208
Cite 3 - (1997) QPELR 208
Friend v Brisbane City Council [2014] QPELR 24
2 citations
Jump To
Cite 1 - [2014] QPELR 24
Cite 2 - [2014] QPELR 24
Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132
3 citations
Jump To
Cite 1 - [2019] QCA 132
Cite 2 - [2019] QCA 132
Cite 3 - [2019] QCA 132
Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council & Anor (2009) 175 LGERA 126
1 citation
Jump To
Cite 1 - (2009) 175 LGERA 126
Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313
2 citations
Jump To
Cite 1 - (2000) QPELR 313
Cite 2 - (2000) QPELR 313
Heritage Properties Pty Ltd v Redland City Council [2010] QPEC 19
2 citations
Jump To
Cite 1 - [2010] QPEC 19
Cite 2 - [2010] QPEC 19
Hydrox Nominees Pty Ltd v Noosa Shire Council [2014] QPEC 18
2 citations
Jump To
Cite 1 - [2014] QPEC 18
Cite 2 - [2014] QPEC 18
Indooroopilly Golf Club v Brisbane City Council [1982] QPELR 13
2 citations
Jump To
Cite 1 - [1982] QPELR 13
Cite 2 - [1982] QPELR 13
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
3 citations
Jump To
Cite 1 - (2001) 116 LGERA 350
Cite 2 - (2001) 116 LGERA 350
Cite 3 - (2001) 116 LGERA 350
Isgro v Gold Coast City Council (2003) QPELR 414
3 citations
Jump To
Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Cite 3 - (2003) QPELR 414
Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21
1 citation
Jump To
Cite 1 - [2018] QPEC 21
Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64
2 citations
Jump To
Cite 1 - [2014] QPEC 64
Cite 2 - [2014] QPEC 64
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
2 citations
Jump To
Cite 1 - (1979) 140 CLR 675
Cite 2 - (1979) 140 CLR 675
Lewiac Pty Ltd v Council of the City of Gold Coast[1996] 2 Qd R 266; [1994] QCA 2
2 citations
Jump To
Cite 1 - [1996] 2 Qd R 266
Cite 2 - [1996] 2 Qd R 266
Lockyer Valley Regional Council v Westlink Pty Ltd[2013] 2 Qd R 302; [2012] QCA 370
3 citations
Jump To
Cite 1 - [2013] 2 Qd R 302
Cite 2 - [2013] 2 Qd R 302
Cite 3 - [2013] 2 Qd R 302
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
3 citations
Jump To
Cite 1 - (2003) QPELR 447
Cite 2 - (2003) QPELR 447
Cite 3 - (2003) QPELR 447
Management Ltd v Pine Rivers Shire Council [2009] QPELR 337
1 citation
Jump To
Cite 1 - [2009] QPELR 337
McConaghy Properties Pty Ltd v Townsville City Council [2017] QPELR 333
2 citations
Jump To
Cite 1 - [2017] QPELR 333
Cite 2 - [2017] QPELR 333
McKay v Brisbane City Council [2021] QPEC 42
1 citation
Jump To
Cite 1 - [2021] QPEC 42
Mr Houston instanced Heran Building Group v Logan City Council (2002) QPELR 303
2 citations
Jump To
Cite 1 - (2002) QPELR 303
Cite 2 - (2002) QPELR 303
Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2020] QPELR 899
1 citation
Jump To
Cite 1 - [2020] QPELR 899
Nordale Management Pty Ltd v Council of the Shire of Maroochy (1995) QPLR 368
2 citations
Jump To
Cite 1 - (1995) QPLR 368
Cite 2 - (1995) QPLR 368
Redland City Council v King of Gifts (Qld) Pty Ltd(2020) 3 QR 494; [2020] QCA 41
3 citations
Jump To
Cite 1 - [2020] QCA 41
Cite 2 - [2020] QCA 41
Cite 3 - [2020] QCA 41
Roosterland Pty Ltd v Brisbane City Council (1986) 23 APA D 58
2 citations
Jump To
Cite 1 - (1986) 23 APA D 58
Cite 2 - (1986) 23 APA D 58
Stappen Pty Ltd v Brisbane City Council (2005) QPELR 466
2 citations
Jump To
Cite 1 - (2005) QPELR 466
Cite 2 - (2005) QPELR 466
TMP Holdings Pty Ltd v Caloundra City Council [2002] QPELR 1
2 citations
Jump To
Cite 1 - [2002] QPELR 1
Cite 2 - [2002] QPELR 1
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
1 citation
Jump To
Cite 1 - [2021] QCA 95
United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPELR 510
3 citations
Jump To
Cite 1 - [2018] QPELR 510
Cite 2 - [2018] QPELR 510
Cite 3 - [2018] QPELR 510
Watts & Hughes Properties Pty Ltd v BCC (1998) QPLR 273
2 citations
Jump To
Cite 1 - (1998) QPLR 273
Cite 2 - (1998) QPLR 273
Weightman v Gold Coast City Council & Anor (2003) Qd R 441
2 citations
Jump To
Cite 1 - (2003) Qd R 441
Cite 2 - (2003) Qd R 441
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
2 citations
Jump To
Cite 1 - [2006] 1 Qd R 273
Cite 2 - [2006] 1 Qd R 273
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QPEC 6
2 citations
Jump To
Cite 1 - [2022] QPEC 6
Cite 2 - [2022] QPEC 6
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168
1 citation
Jump To
Cite 1 - [2022] QCA 168
Yu Feng Pty Ltd v Maroochy Shire Council[2000] 1 Qd R 306; [1996] QCA 226
3 citations
Jump To
Cite 1 - [2000] 1 Qd R 306
Cite 2 - [2000] 1 Qd R 306
Cite 3 - [2000] 1 Qd R 306
Zanow v Ipswich City Council [2010] QPELR 721
2 citations
Jump To
Cite 1 - [2010] QPELR 721
Cite 2 - [2010] QPELR 721
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
3 citations
Jump To
Cite 1 - (2014) 201 LGERA 82
Cite 2 - (2014) 201 LGERA 82
Cite 3 - (2014) 201 LGERA 82
ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd[1992] 1 Qd R 352; [1991] QSCFC 123
2 citations
Jump To
Cite 1 - [1992] 1 Qd R 352
Cite 2 - [1992] 1 Qd R 352

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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