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Middle Pond Pty Ltd v Whitsunday Regional Council[2024] QPEC 45

Middle Pond Pty Ltd v Whitsunday Regional Council[2024] QPEC 45

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Middle Pond Pty Ltd v Whitsunday Regional Council & Ors [2024] QPEC 45

PARTIES:

MIDDLE POND PTY LTD ACN 601 430 559

(Appellant)

v

WHITSUNDAY REGIONAL COUNCIL

(Respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING

(Co-respondent)

and

CATHERINE DRYLAND AND HAMISH REID

(First Co-respondents by Election)

FILE NO/S:

884 of 2023

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

7 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2024 to 4 October 2024 and further submissions received on 18 October 2024

JUDGE:

Kefford DCJ

ORDER:

The appeal is adjourned to 19 November 2024 for review.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s decision to refuse a proposed self-storage facility – where the subject land is in the Low-medium density residential zone of the Whitsunday Regional Council Planning Scheme 2017 – where the protection of residential character and amenity is an important planning policy for land in the Low-medium density residential zone – where a self-storage facility does not fit within the stated exception that permits certain non-residential uses in the Low-medium density residential zone – whether the proposed self-storage facility is consistent with the planning goals sought to be achieved in the Low-medium density residential zone – whether the proposed self-storage facility complies with the Industry activities code – whether there are relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016 – whether there is a need for the proposed self-storage facility – whether the proposed self-storage facility should be approved in the exercise of the discretion

LEGISLATION:

Planning Act 2016 (Qld) ss 45, 59, 60

Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46, 47

CASES:

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

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Andema Pty Ltd v Noosa Shire Council [2020] QPEC 46; [2021] QPELR 783, approved

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

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39, applied

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

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

Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; (2011) 180 LGERA 278; [2011] QPELR 406, approved

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, approved

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

Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899, approved

North Harbour Holdings Pty Ltd v Moreton Bay Regional Council & Anor [2024] QPEC 21, approved

Purcell Family v Gold Coast City Council [2004] QPELR 521, approved

Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2021] QPEC 29; [2022] QPELR 608, approved

Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council & Ors [2005] QPEC 70, [2006] QPELR 85, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168; (2022) 253 LGERA 171, applied

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

COUNSEL:

E Morzone KC and T Stork for the Appellant

B Job KC and M Batty for the Respondent

M Rodgers for the Co-respondent

SOLICITORS:

Corrs Chambers Westgarth for the Appellant

McCullough Robertson for the Respondent

Clayton Utz for the Co-respondent

Mr Reid (self-represented) for the First Co-respondents by Election

TABLE OF CONTENTS

Introduction4

What is the applicable framework for the decision?6

What are the issues in dispute?7

What is the character of the subject land and the locality in which it sits?7

What does the proposed self-storage facility use entail?10

Is the proposed self-storage facility consistent with the planning goals sought to be achieved under the Low-medium density residential zone?12

What outcomes are sought in the Low-medium density residential zone?12

What concessions are made by Middle Pond Pty Ltd?16

Why does Middle Pond Pty Ltd contend the non-compliances are not significant?17

Is the design of the proposed self-storage facility appropriate for the Low-medium density residential

zone?17

Does comparison to a hypothetical multiple dwelling demonstrate no unreasonable loss of visual

amenity?17

Is the proposed self-storage facility compatible with the scale and character of surrounding

development?20

Conclusion regarding compliance with the overall outcomes directed to visual and character

impacts24

Is the proposed self-storage facility commercial in nature?26

Will the proposed self-storage facility function appropriately?29

Does the proposed self-storage facility perform favourably in terms of location and

accessibility?33

Conclusion regarding assessment against the Low-medium density residential zone

code35

Does the proposed self-storage facility comply with the Industry activities code?37

Are there relevant matters relied on by the parties under s 45(5)(b) of the Planning Act

2016?38

Is there a need for the proposed self-storage facility?40

What are the general principles that inform and guide an assessment of need?40

Is there a latent unsatisfied demand for self-storage facilities that cannot be adequately

met?41

Is there other evidence that demonstrates a need for the proposed self-storage

facility?43

Conclusion regarding need47

Should the proposed self-storage facility be approved in the exercise of the discretion?47

Conclusion48

Introduction

  1. [1]
    Middle Pond Pty Ltd wants to reconfigure land at 82 Shute Harbour Road, Cannonvale (“the subject land”) into several new lots (“the proposed reconfiguration”) and to commence using one of the new lots for a self-storage facility (“the proposed self-storage facility”). 
  2. [2]
    To facilitate its goal, Middle Pond Pty Ltd made a single development application to Whitsunday Regional Council (“the Council”) in which it sought a development permit for the reconfiguration of lots and a development permit for the material change of use of one of those lots for the purpose of a self-storage facility. 
  3. [3]
    The subject land is in the Low-medium density residential zone of the Whitsunday Regional Council Planning Scheme 2017 (“the Planning Scheme”), which is intended to provide for various residential uses.  There is a stated exception that permits certain non-residential uses in the Low-medium density residential zone.  A self-storage facility does not fit within the exception. 
  4. [4]
    The proposed reconfiguration was code assessable, whereas the application for the material change of use was impact assessable.
  5. [5]
    As Shute Harbour Road is a State-controlled road and a State transport corridor, both components of the development application required referral to the Co-respondent, namely the Chief Executive, Department of State Development, Infrastructure, Local Government and Planning (“the Chief Executive”) as a referral agency.  In the referral agency response, the State Assessment and Referral Agency, as delegate of the Chief Executive, directed the Council to impose conditions on any approvals given by the Council.
  6. [6]
    The development application was publicly notified.  The Council received 31 properly made submissions about it.  One expresses conditional support while the rest oppose the proposed self-storage facility.  Most express the view that the proposed self-storage facility should be in an industrial area.  The First Co-respondents by Election, Catherine Dryland and Hamish Reid, live near the subject land and made a properly made submission opposing the proposed self-storage facility. 
  7. [7]
    The Council gave a development permit authorising the reconfiguration of lots subject to conditions but refused that part of the development application that related to the proposed self-storage facility.
  8. [8]
    This is an appeal by Middle Pond Pty Ltd against:
    1. the Council’s decision to impose conditions 6.1 and 6.6 as part of the development permit for the proposed reconfiguration;
    2. the Council’s decision to refuse the proposed self-storage facility; and
    3. that part of the approval that records the conditions that the Chief Executive directed be imposed on any approval of the proposed self-storage facility.
  9. [9]
    Ms Dryland and Mr Reid have elected to join the appeal and, in all respects, adopt the position advanced by the Council.
  10. [10]
    Middle Pond Pty Ltd has not progressed that part of its appeal that relates to the conditions imposed by the Council or those required by the Chief Executive.  At this stage, it only seeks determination of that part of the appeal that relates to the proposed self-storage facility.  It is content to leave the balance of the appeal for determination by another judge at a later stage.  As such, these reasons for judgment only relate to that part of the appeal agitated before me, namely whether the proposed self-storage facility should be approved, approved in part or refused. 
  11. [11]
    During the preparation of the appeal, Middle Pond Pty Ltd made a minor change to its development application.  Middle Pond Pty Ltd bears the onus of establishing that the proposed self-storage facility (as changed) should be approved or approved in part: s 45 of the Planning and Environment Court Act 2016 (Qld). 
  12. [12]
    For the reasons that follow, Middle Pond Pty Ltd has not discharged the onus.

What is the applicable framework for the decision?

  1. [13]
    Under s 43 of the Planning and Environment Court Act 2016, the appeal proceeds by way of hearing anew, subject to ss 46(2) and (5).  The Court has a broad discretion in determining the appeal.  It is to be exercised judicially and subject to the limitations in the relevant statutes.  The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect.
  1. [14]
    The Court must assess the relevant part of the development application, being the impact assessable material change of use, under s 45(5) of the Planning Act 2016 as if it were the assessment manager: Planning and Environment Court Act 2016 s 46(2).  The Court’s decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 59(3) and 60 of the Planning Act 2016.
  2. [15]
    Sections 45(5)(a)(i) and (7) of the Planning Act 2016 mandate assessment against assessment benchmarks in a categorising instrument in effect when the development application was properly made.  In this case, that is version 3.7 of the Planning Scheme.  Weight can be given to version 4.7 of the Planning Scheme, which took effect on 3 October 2023 and is still in effect: s 46(2) of the Planning and Environment Court Act 2016 and s 45(8) of the Planning Act 2016.  Middle Pond Pty Ltd contends that there are no relevant amendments to be considered.  The Council drew my attention to the change in mapping in version 4.7 with respect to nearby land fronting Shute Harbour Road.  Those parcels containing commercial uses have been rezoned from the Low-medium density residential zone to the Local centre zone.  That said, like Middle Pond Pty Ltd, the Council submits that there are no material differences in the drafting of provisions, or mapping, between versions 3.7 and 4.7 that are relevant to the determination of this appeal.  No party contends otherwise.  As such, references to the Planning Scheme should be read as references to version 3.7 unless otherwise specified.
  3. [16]
    The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309. 
  4. [17]
    Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at 803-13 [35]-[86].  That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328 at 333-7 [12]‑[22]. 
  5. [18]
    As is explained in those authorities:
    1. the ultimate decision called for when making an impact assessment is a broad, evaluative judgment that admits of flexibility to approve an application in the face of noncompliance with a planning scheme;
    2. the exercise of the discretion under s 60(3) of the Planning Act 2016 is subject to three requirements, including that it be based upon the assessment carried out under s 45 of the Planning Act 2016; and
    3. the Planning Act 2016 does not alter the characterisation of a planning scheme as a document that reflects the public interest.
  6. [19]
    With that framework in mind, I now turn to consider the issues in dispute.

What are the issues in dispute?

  1. [20]
    Having regard to the cases advanced by Middle Pond Pty Ltd and the Council, the issues that require determination can be addressed by answering the following five key factual questions:
  1. Is the proposed self-storage facility consistent with the planning goals sought to be achieved in the Low-medium density residential zone?
  2. Does the proposed self-storage facility comply with the Industry activities code?
  3. Are there relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
  4. Is there a need for the proposed self-storage facility?
  5. Should the proposed self-storage facility be approved in the exercise of the discretion?
  1. [21]
    Before turning to address these issues, it assists to appreciate:
    1. the features and character of the subject land and the locality generally; and
    2. the parameters of the proposed self-storage facility use.

What is the character of the subject land and the locality in which it sits?

  1. [22]
    The subject land is a 15,298 square metre parcel of land that is comprised of lots properly described as Lots 1 and 4 on RP737339.  It has an irregular shape with frontages of approximately 190 metres to Shute Harbour Road, approximately 40 metres to Barnes Place and approximately 200 metres to Tropic Road.
  2. [23]
    The subject land is predominantly vacant.  It contains some established vegetation along the south-western boundary.  Its highest point is in the south-western corner of the subject land and is approximately 19 metres Australian Height Datum.  The lowest point is in the north-eastern corner and is approximately 8 m Australian Height Datum.
  3. [24]
    The subject land is on the southern side of Shute Harbour Road, which is a two-lane, two-way road under the control of the Department of Transport and Main Roads.  Shute Harbour Road serves as the main road linking Airlie Beach to the Bruce Highway and Proserpine.  The subject land also has frontages to Tropic Road and Barnes Place, both of which are two-lane, two-way Council-controlled roads.  There is currently no formalised vehicular access onto the subject land from any of these roads.
  4. [25]
    There is disagreement between Middle Pond Pty Ltd and the Council about the character of the locality in which the subject land sits. 
  5. [26]
    Middle Pond Pty Ltd relies on opinions expressed by Mr Simon Forsyth and Mr Curtis, the town planner and visual amenity and architecture experts retained by it, to attribute a strong commercial character to the surrounding area.  I do not accept Middle Pond Pty Ltd’s characterisation for three reasons. 
  6. [27]
    First, Middle Pond Pty Ltd relies on opinions expressed by Mr Curtis, but fails to confront the concessions made by Mr Curtis during cross-examination that detract from the reliability of his opinions. 
  7. [28]
    Second, I do not accept Mr Forsyth’s opinions about the character of the area.  His opinions are founded, in large measure, on a desktop analysis of the uses along Shute Harbour Road that ignores:
    1. the substantial area of residential development and the vegetated residential setting that surrounds the subject land; and
    2. important characteristics of the commercial uses in the vicinity that influence their visual presentation.   
  8. [29]
    Third, the evidence on which Middle Pond Pty Ltd relies does not accord with views I have formed having regard to other evidence that I accept, including the many photographs of the area, the evidence of Mr Chris Buckley, the town planner retained by the Council, and the concessions made by Mr Curtis.  The evidence that I accept reveals the following.
  9. [30]
    The broader locality is characterised by an urban settlement pattern that is primarily structured around Shute Harbour Road, which meanders from Cannon Valley to the south-west through Cannonvale and on to Airlie Beach to the north-east.
  10. [31]
    Within that broader context, the subject land sits in a locality that is characterised by the picturesque backdrop that is provided by the vegetated slopes of Conway National Park to the south-east.  The topography climbs from the southern side of Shute Harbour Road towards Conway National Park.  Between the subject land and the National Park are vegetated slopes containing a scattering of houses on moderate sized lots. 
  11. [32]
    Immediately opposite the subject land, on the northern side of Shute Harbour Road, there is low-density residential development comprising single detached dwellings on moderate sized lots.  Further north is the coastline.  The residential development to the north of Shute Harbour Road turns its back on the road and is substantially screened from view by landscaping.  As was accepted by Mr Curtis during cross-examination, the residential development on the northern side of Shute Harbour Road presents a landscaped character to Shute Harbour Road: it does not have a commercial appearance.  During cross-examination, Mr Forsyth also accepted that the area to the north of Shute Harbour Road presents as a vegetated area with glimpses of residential rooves and has no commercial appearance.
  12. [33]
    To the west of the subject land, there is a smattering of commercial uses fronting Shute Harbour Road.  The closest is a small cluster of commercial uses about 200 metres to the west of the subject land.  Those commercial uses are contained in several buildings.  Apart from one, they are of a residential scale.  The largest building is about the size of a residential shed.  It is not visible from Shute Harbour Road because of extensive, lush vegetation.  Further to the west, on the corner of Shute Harbour Road and Valley Drive, is a veterinary surgeon.  From the aerial photographs, it appears to be of a house scale and surrounded by dense vegetation.  Yet further to the west along Shute Harbour Road, approximately 800 metres from the subject land, is the Reef Gateway Hotel. 
  13. [34]
    Each of these commercial uses to the west is separated from the other commercial uses by a large, vacant parcel of land that is zoned for residential use.  There is also existing residential development between the closest commercial cluster and the veterinary surgeon.
  14. [35]
    Along Shute Harbour Road, to the east of Tropic Road, there are some commercial uses.  The nearest is separated from the subject land by Tropic Road.  It is a Reece Plumbing store.  It sits on an isolated parcel that is separated from the balance of the commercial uses to the east and the constructed carriageway of Shute Harbour Road by a wide, unconstructed, and vegetated road reserve known as Coyne Road.  The store is setback from the Tropic Road frontage behind a low hedge.  As can be seen in the photographs, the store does not present a large expanse of wall in a single plane.  Rather, the visual mass of the building is broken down by stepping and recessing of the external walls.  The combination of articulation and the adoption of a predominance of dark colours that blend with the vegetated backdrop result in a building with a small-scale appearance. 
  15. [36]
    On Tropic Road, the Reece Plumbing store is adjoined to the south by a vacant parcel zoned for residential use.  Further south along Tropic Road, opposite the subject land, is a childcare centre.  It is setback from the frontage of Tropic Road behind a small hedge and a hardstand area that serves as a carpark.  Apart from the hardstand area, the childcare centre has the appearance of a sprawling, low-set house.
  16. [37]
    Returning to Shute Harbour Road, to the east of the unconstructed road reserve of Coyne Road, the orientation of Shute Harbour Road deviates.  The turn in the road creates a visual disconnect between land uses to the west of the roundabout and those to the east.  To the east of the unconstructed road reserve of Coyne Road, there is a strip of commercial uses interspersed with residential uses fronting Shute Harbour Road.  The largest of the commercial uses to the east of the intersection is Bunnings Warehouse.  It is on the corner of Shute Harbour Road and Pandanus Drive.  It is approximately one kilometre from the subject land and presents a façade approximately 94-metres-long to Shute Harbour Road.  It is visually disconnected from the subject land by reason of the winding nature of Shute Harbour Road.  The balance of the commercial uses between the subject land and Bunnings Warehouse are of a modest scale, with facades fronting Shute Harbour Road in the order of 20 to 25 metres in width. 
  17. [38]
    I accept the opinion of Mr Buckley, and Mr Curtis’s concession during cross-examination, that the roundabout at the intersection of Shute Harbour Road, Tropic Road and the unconstructed road reserve of Coyne Road marks a noticeable and material change in character between land to the west of the roundabout, including the subject land, and land to the east of Tropic Road. 
  18. [39]
    Mr Buckley opines that the locality surrounding the subject land does not have a commercial use character.  Having regard to the photographs before me, I agree.  Although there are commercial uses that front Shute Harbour Road, they do not convey that the locality has a commercial, or a mixed-use, character.  This is because of the combined effect of the distance between the subject land and the other commercial uses, the intervening vacant parcels of land, the extensive vegetation that screens the proximate commercial uses to the west, the intervening road reserve to the east, and the bend in Shute Harbour Road proximate the roundabout intersection with Tropic Road.  The absence of commercial character is also informed by the visible land use pattern that rises behind the subject land to the south and across Shute Harbour Road to the north.  Those areas present as residential areas. 
  19. [40]
    Overall, the existing land uses in the surrounding area are predominantly characterised by a mix of low density, single detached dwellings.  The residential uses are punctuated with limited commercial uses.  The land uses, both residential and commercial, present a low intensity built form with significant landscaping that provides an attractive setting. 

What does the proposed self-storage facility use entail?

  1. [41]
    As was recognised by Middle Pond Pty Ltd in its development application, the proposed self-storage facility fits the use definition of “Warehouse” in the Planning Scheme.  This is defined as follows:

Table SC 1.1.2 Use definitions

Column 1

Use

Column 2

Definition

Column 3

Examples include

Column 4

Does not include the following examples

Warehouse

Premises used for storing or distributing goods, whether or not carried out in a building.

Where ancillary the use may include the wholesale of goods.

Self-storage sheds

Hardware and trade supplies, outdoor sales, showroom, shop

  1. [42]
    A Warehouse use in turn forms part of the “Industry activities” defined activity group. 
  2. [43]
    Additionally, the proposed self-storage facility is to include ancillary uses of showroom, office and caretaker’s accommodation.  Each of those ancillary components are not sought to be established as separate and distinct uses.  They are integral to the proposed self-storage facility use.
  3. [44]
    In this case, the uses described above, and their appropriateness on the subject land, are informed by aspects of the proposed self-storage facility that define its location, built form parameters, design, landscaping and access.
  4. [45]
    The proposed self-storage facility is to be located on proposed lot 100, which comprises 8,685 square metres of the subject land.  Proposed lot 100 extends across the entire frontage of the subject land to Shute Harbour Road, which is approximately 190 metres.  It also occupies the entire frontage to Barnes Place and approximately 75 metres of the frontage to Tropic Road. 
  1. [46]
    The proposed self-storage facility is to be developed across two stages.  Stage 1 is to comprise Building A, which will locate near the corner of the intersection of Shute Harbour Road and Tropic Road.  It is to contain a self-storage facility of 3,294 square metres comprising 230 storage units, an ancillary showroom of 111 square metres and a caretaker’s accommodation of 131 square metres.  Stage 2 is to comprise Building B, which is proposed at a higher elevation at the corner of Shute Harbour Road and Barnes Place.  It is to contain a self-storage facility of 3,874 square metres comprising 262 storage units.
  2. [47]
    The total self-storage facility floorspace across the two stages of development is 7,168 square metres, which is to provide a total of 492 storage units.  The proposal plans provide an indicative storage layout.  Middle Pond Pty Ltd proposes to use a modular internal construction so that the storage unit sizes can change in response to customer demand.
  3. [48]
    The proposal plans show an offering of 14 different storage unit sizes ranging from two square metres to 21 square metres, with an average unit size of 10.8 square metres.  The internal layout would allow for the storage of jet skis, small boats and small camper trailers, but not medium to large boats or caravans.
  4. [49]
    The built form of the proposed self-storage facility involves:
    1. a maximum building height of two storeys and 8.4 metres;
    2. 7,168 square metres of gross floor area dedicated to storage across proposed Buildings A and B, which are approximately 60 and 80 metres in length respectively;
    3. 3,756 square metres of site cover, equating to 43.25 per cent of the area of proposed lot 100;
    4. 1,111 square metres of landscaping, equating to 12.8 per cent of the area of proposed lot 100; and
    5. 14 car parking spaces.
  5. [50]
    There is nine metres between Buildings A and B, but the projecting awnings encroach that gap.
  6. [51]
    The two buildings are setback from the boundaries behind an internal ring road, car parking and landscaping that adjoin the subject land’s boundaries.  The buildings are setback a minimum of:
    1. nine metres to the Shute Harbour Road frontage;
    2. 14.8 metres to the Barnes Place frontage; and
    3. 6.3 metres measured to the awning (or 9.7 metres measured to the wall) to the southeastern boundary of proposed lot 100, being a boundary with land proposed to be occupied by residential uses.
  7. [52]
    In terms of design, variations in the external cladding, fenestration, and external colourations are proposed in an attempt to fragment the appearance of the façade.  They create a collection of forms that reflect the approximate widths of the existing building forms in the surrounding area.
  8. [53]
    The proposed landscaping comprises a contiguous planting area that adjoins the subject land’s perimeter boundary, except at the entrance driveway crossover.  The landscaping varies in width from two to four metres. 
  9. [54]
    Finally, access to the subject land is provided via a single vehicle crossover from Tropic Road.  A 2.1-metre-high acoustic fence is proposed along the common boundary between the subject land and adjoining residential, and vacant, lots.

Is the proposed self-storage facility consistent with the planning goals sought to be achieved under the Low-medium density residential zone?

  1. [55]
    Middle Pond Pty Ltd concedes non-compliance with some of the assessment benchmarks in the Low-medium density residential zone code but says that the proposed self-storage facility is consistent with the underlying planning goals.  As such, it says that little weight would be afforded to the non-compliances and the discretion should be exercised to approve the proposed self-storage facility.

What outcomes are sought in the Low-medium density residential zone?

  1. [56]
    The Planning Scheme contains several zones, which organise the Planning Scheme in a way that facilitates the location of preferred or acceptable land uses: s 6.1(1) of the Planning Scheme.  For each zone, the applicable zone code identifies the purpose of the code and the overall outcomes that achieve the purpose of the code: s 6.1(7) of the Planning Scheme.
  2. [57]
    A review of all the zone codes, in conjunction with the Schedule to the Planning Scheme, reveals that the Planning Scheme facilitates the location of preferred and acceptable land uses by:
    1. clustering defined uses into defined activity groups; and
    2. identifying in each zone code:
      1. (i)
        the preferred land uses by nominating the defined activity groups of uses, or a subset of them, that are to be provided in the zone; and
      1. (i)
        the acceptable land uses by nominating the defined activity groups of uses that may be established if the proposed use within the defined activity group satisfies additional specified parameters.
  3. [58]
    In the Low-medium density residential zone, the preferred uses are a range and mix of dwelling types, including dwelling houses and multiple dwellings, which are uses in the “Accommodation activities” defined activity group.  These uses are to be provided in a low to medium-rise format and are to comprise a range of single and multiple residential uses for permanent residents: see the purpose of the Low-medium density residential zone code in ss 6.2.10.2(1) and (2) of the Planning Scheme.
  1. [59]
    Limited uses from the Business, Community and Other activities defined activity groups are also identified as potentially acceptable in the Low-medium density residential zone, subject to qualifications: s 6.2.10.2(3)(d) of the Planning Scheme.  For completeness, the defined uses in these defined activity groups are set out below.

Table SC 1.1.1.2 Defined activity groups

Column 1

Activity group

Column 2

Use Terms

Business activities

Adult store

Agricultural supplies store

Brothel

Bulk landscape supplies

Car wash

Food and drink outlet

Garden centre

Hardware trade supplies

Market

Office

Outdoor sales

Sales office

Service station

Shop

Shopping centre

Showroom

Veterinary services

Community activities

Cemetery

Child care centre

Community care centre

Community use

Crematorium

Educational establishment

Emergency services

Funeral parlour

Health care services

Hospital

Outstation

Place of worship

Other activities

Air services

Detention facility

Landing

Major electrical infrastructure

Parking station

Port services

Renewable energy facility

Substation

Telecommunications facility

Transport depot

Utility installation

  1. [60]
    The Planning Scheme recognises that it may be in the public interest that residents of the Low-medium density residential zone be supported by some community uses and small-scale services and facilities within these defined activity groups: s 6.2.10.2(1) of the Planning Scheme. 
  2. [61]
    That said, the Planning Scheme also recognises that non-residential uses have the potential to conflict with, and unacceptably impact on, the residential character and amenity enjoyed by occupants of residential uses that are encouraged in the zone. 
  3. [62]
    Accordingly, as I have indicated in paragraph [59] above, the Planning Scheme places multiple qualifications on the non-residential uses that may be established.  In this way, the Planning Scheme strikes the balance between the competing policy considerations of:
    1. making provision in a residential area for non-residential uses that conveniently cater to the day to day needs of local residents; and
    2. ensuring that the public benefit associated with the provision of needed facilities is not met at the expense of residential amenity. 
  1. [63]
    The first qualification limits the non-residential uses to those used in the Business, Community and Other activities defined activity groups set out at paragraph [59] above.  The other qualifications relate to the scale and function, form and accessibility of those uses in the Business, Community and Other activities defined activity groups.  These qualifications are set out in the overall outcome in s 6.2.10.2(3)(d) of the Planning Scheme, which states:
  1. “(d)
    development may provide for limited Business, Community and Other activities including sales offices, shops (limited to corner stores), community uses, emergency services and utility installations which:
  1. directly support the day to day needs of the immediate residential community;
  1. are small-scale and low intensity;
  1. are compatible with the local residential character and amenity of the area;
  1. wherever possible, are co-located with similar activities within the zone;
  1. are accessible to the population they serve and are located on the major road network rather than local residential streets; and
  1. do not have a significant detrimental impact on the amenity of surrounding residents, having regard to hours of operation, generation of odours, noise, waste products, dust, traffic, electrical interference, lighting and visual impacts …”
  1. [64]
    When one reads the entire Planning Scheme, it is apparent that the qualification on the type of uses to be provided in the various zones in the planning scheme area reflects a deliberate planning decision about the clustering of land uses and the identification of those zones in which they are preferred and acceptable:  in particular, see s SC1.1.1(4), Table SC 1.1.1.2, ss 3.1(4), 6.1(1), 6.2.2.2(3)(c), 6.2.7.2(3)(c), 6.2.9.2(3)(a), 6.2.11.2(3)(c), 6.2.12.2(3)(a), 6.2.14.2(3)(b), 6.2.16.2(3)(c), 6.2.20.2(3)(b) of the Planning Scheme. 
  2. [65]
    The same is true of the qualifications that relate to the scale and function, form and accessibility of uses identified as potentially acceptable.  The qualifications differ from zone to zone to reflect the planning considerations that must be addressed for the potentially acceptable uses to be regarded as acceptable in the zone in question:  cf., for example, s 6.2.7.2(3)(c) and (e) and s 6.2.10.2(3)(d) of the Planning Scheme.
  3. [66]
    The Low-medium density residential zone code also contains other controls on built form that apply to both residential and non-residential development in the zone.  Relevant provisions include the overall outcomes in ss 6.2.10.2(3)(f), (h)(iv) and (i) of the Low-medium density residential zone code, each of which is put in issue by the Council.  They state:
  1. “(f)
    unless otherwise specified in a local plan code or Table 6.2.10.2.1 (Maximum building heights in Low-medium density residential zone), development has a low to medium rise built form that is compatible with the intended scale and character of the streetscape and surrounding area, with a maximum building height of 12.0m above ground level;

Table 6.2.10.2.1 Maximum building heights in Low-medium density residential zone

Low-medium density residential location

Maximum building height

Airlie Beach Precinct B

14m

  1. multi-storey development ensures that there is no unreasonable loss of amenity for surrounding development, having regard to:
  1. microclimate impacts, including the extent and duration of any overshadowing;
  1. privacy and overlooking impacts;
  1. impacts upon views and vistas; and
  1. building massing and scale relative to its surroundings;
  1. development is designed and located in a manner which makes a positive contribution to the streetscape and is sympathetic to the intended scale and character of surrounding development …”
  1. [67]
    It is apparent from these provisions that the protection of residential character and amenity is an important planning policy for land in the Low-medium density residential zone. 
  2. [68]
    The high degree of importance that is placed on this policy is also evident from provisions that apply only to uses that fall within the Accommodation activities defined activity group, including ss 6.2.10.2(3)(a), (b) and (c), which state:
  1. “(a)
    development provides for a compatible mix of low and medium density residential dwelling choices and forms, predominantly for permanent living, including dwelling houses, dual occupancies and multiple dwellings (such as townhouses, villas, terraces and row houses);
  1. (b)
    other low-medium density Accommodation activities, such as community residence, relocatable home parks, residential care facilities, retirement facilities, short-term accommodation and tourist parks, may also be provided.  The operation and scale of these uses are compatible with, but do not detract from, the intended residential character and amenity of the zone;
  1. (c)
    home based businesses that are compatible with local residential amenity may be established in the zone …”

(emphasis added)

  1. [69]
    The Council submits that it is clear from each of the provisions referenced in paragraphs [56] to [68] above that the proposed self-storage facility involves material non-compliance with, and gains no relevant support from, assessment benchmarks in the Low-medium density residential zone code.  This is disputed by Middle Pond Pty Ltd.
  2. [70]
    Before considering Middle Pond Pty Ltd’s contentions that the proposed self-storage facility is appropriate, it is helpful to understand the concessions it makes about the nature and extent of non-compliance with the Low-medium density residential zone code.

What concessions are made by Middle Pond Pty Ltd?

  1. [71]
    Middle Pond Pty Ltd concedes that the proposed self-storage facility does not accord with the planned purpose for land in the Low-medium density residential zone as identified in ss 6.2.10.2(1) and (2) of the Low-medium density residential zone code.  It also concedes non-compliance with the overall outcomes in ss 6.2.10.2(3)(a) and (d) of the Low-medium density residential zone code. 
  2. [72]
    In addition, Middle Pond Pty Ltd acknowledges that the proposed self-storage facility is not one of those uses encouraged in the overall outcomes in ss 6.2.10.2(3)(b) and (c) of the Low-medium density residential zone code.  Those assessment benchmarks provide no relevant support for the proposed self-storage facility. 
  3. [73]
    Middle Pond Pty Ltd’s concessions are appropriate given the proposed self-storage facility is not:
    1. a residential use; or
    2. a low-medium density Accommodation activity; or
    3. a home based business; or
    4. a use that falls within the Accommodation activities, Business activities, Community activities or Other activities defined activity groups; or
    5. a small-scale service or facility. 

Why does Middle Pond Pty Ltd contend the non-compliances are not significant?

  1. [74]
    Middle Pond Pty Ltd submits that closer scrutiny of the overall outcomes in ss 6.2.10.2(3)(b), (c) and (d) of the Low-medium density residential zone code reveals a degree of support for the proposed self-storage facility.  As such, it says that the conceded non-compliances with the Low-medium density residential zone code are not significant and should be afforded little weight. 
  2. [75]
    There are four propositions that are fundamental to Middle Pond Pty Ltd’s case in this respect. 
  3. [76]
    First, the design of the proposed self-storage facility is appropriate.
  4. [77]
    Second, the proposed self-storage facility is of a commercial nature and, as such, is an appropriate type of use for the Low-medium density residential zone. 
  5. [78]
    Third, the proposed self-storage facility will function in the manner intended for non-residential uses.
  6. [79]
    Fourth, the proposed self-storage facility performs favourably in terms of location and accessibility requirements.
  7. [80]
    The case for approval was advanced by Middle Pond Pty Ltd on the basis that the Court would accept each of these propositions.

Is the design of the proposed self-storage facility appropriate for the Low-medium density residential zone?

  1. [81]
    Middle Pond Pty Ltd advances two bases on which it says the Court would be satisfied that the design of the proposed self-storage facility is appropriate.
  2. [82]
    The first is based on a comparison of the potential mass and scale of a multiple dwelling to that of the proposed self-storage facility.
  3. [83]
    Second, Middle Pond Pty Ltd contends that the proposed self-storage facility is compatible with, and sympathetic to, the scale and character of surrounding development and will make a positive contribution to the streetscape. 

Does comparison to a hypothetical multiple dwelling demonstrate no unreasonable loss of visual amenity?

  1. [84]
    Middle Pond Pty Ltd contends that intended built form, and the anticipated visual amenity and character impacts, for the subject land and the surrounding area can be primarily derived from the Low-medium density residential zone code.  It says that the Multi-unit uses code and the Landscaping code also provide relevant assistance.  I agree.
  2. [85]
    In terms of expectations generally, Middle Pond Pty Ltd says that the intended character of the area is development of a low to medium-rise built residential form.  It says that the community would also reasonably expect development of a non-residential character in the immediate locality as:
    1. the Low-medium density residential zone code admits of the possibility of non-residential uses; and
    2. there is commercial development on nearby lots to the north-east along Shute Harbour Road that were previously in the Low density residential zone or the Low-medium density residential zone and that are now designated as part of the Local centre zone under version 4.7 of the Planning Scheme.
  3. [86]
    Middle Pond Pty Ltd also submits that the proposed self-storage facility’s impact on the existing amenity is likely to be less than the impact of an alternative multiple dwelling development on the subject land that maximises the Planning Scheme’s acceptable building height and site cover and adopts its minimum acceptable building setbacks. 
  4. [87]
    In this respect, Middle Pond Pty Ltd says that:
    1. proposed Building A has a maximum height of 8.4 metres but, for the greater part, has a height of between 4.26 and 7.26 metres.  Proposed Building B has a maximum height of 7.2 metres.  These heights are significantly less than the maximum 12 metre height in the Low-medium density residential zone code;
    2. the site cover of the proposed self-storage facility is 43 per cent, which is below the maximum of 60 per cent in the Multi-unit uses code; and
    3. the proposed setbacks range between nine metres and 14.806 metres and the proposed self-storage facility is setback 9.7 metres from the boundary of the only adjoining residential property at 5 Barnes Place.  These setbacks exceed the minimum that the Planning Scheme identifies as acceptable for a multi-unit use in the Multi-unit uses code. 
  5. [88]
    I accept each of these matters.  However, they present an incomplete picture.
  6. [89]
    The Low-medium density residential zone code identifies that it is residential character and amenity that is planned for land in the Low-medium density residential zone: see, for example, ss 6.2.10.2(3)(b), (c), and (d)(iii) of the Planning Scheme.  The residential character and amenity is to be protected.  The residential development in the zone is intended to have a low to medium rise built form, with a maximum height of 12 metres. 
  7. [90]
    Although non-residential development is anticipated in the immediate locality, Middle Pond Pty Ltd’s submissions do not confront that the Planning Scheme restricts the type of non-residential use and its form, scale and function: see ss 6.2.10.2(1) and (3)(d) of the Planning Scheme (paragraphs [59], [60] and [63] above).
  8. [91]
    Further, the amendment of the Planning Scheme to include the commercial development along Shute Harbour Road in the Local centre zone is indicative that the character of those uses is not to be expected in the Low-medium density residential zone.
  9. [92]
    As for the relevant guidance provided by the Multi-unit uses code, the purpose of the code is to ensure that low-medium density residential uses are of a high-quality design that appropriately responds to local character and amenity considerations: s 9.3.10.2(1) of the Planning Scheme.  That purpose is to be achieved through the overall outcomes. 
  10. [93]
    The overall outcomes require that a multi-unit use is visually attractive with a built form that addresses the street and integrates with surrounding development: s 9.3.10.2(2)(a) of the Planning Scheme.  A multi-unit use must also incorporate a building design that responds to the character of the local area: s 9.3.10.2(2)(b) of the Planning Scheme.  To achieve that purpose, a multi-unit use must incorporate high quality landscaping and well-designed, useable, communal and private open space areas that provide visual relief from the built form: s 9.3.10.2(2)(c) of the Planning Scheme. 
  11. [94]
    An alternative means of achieving the purpose of the Multi-unit uses code is through compliance with the performance outcomes or the acceptable outcomes: s 5.3.3(4)(c) of the Planning Scheme.
  12. [95]
    The acceptable outcomes include some built form metrics that provide a guide to the scale and mass of buildings that may be expected.  For example:
    1. buildings are not to exceed 60 percent total site coverage: acceptable outcome AO5.1 in Table 9.3.10.3.1 of the Planning Scheme;
    2. a building of up to 8.5 metres height is to be setback a minimum of two metres from side boundaries, a minimum of six metres from a primary front boundary, a minimum of three metres from a secondary front boundary and a minimum of two metres from a rear boundary: acceptable outcome AO6.1 in Table 9.3.10.3.1 of the Planning Scheme; and
    3. at least 30 per cent of the site area is to be provided as communal and private open space: acceptable outcome AO9.1 in Table 9.3.10.3.1 of the Planning Scheme.
  13. [96]
    In addition to these quantitative standards, the acceptable outcomes for each planning goal set qualitative standards that must be achieved to demonstrate compliance with the acceptable outcomes.  For example, in addition to the quantitative standard about site coverage, the acceptable outcomes relevant to building mass and composition require that buildings incorporate most or all the following design features:
    1. vertical and horizontal articulation such that no unbroken elevation is longer than 15 metres: acceptable outcome AO5.2(a) in Table 9.3.10.3.1 of the Planning Scheme;
    2. variations in plan shape, such as curves, steps, recesses, projections or splays: acceptable outcome AO5.2(b) in Table 9.3.10.3.1 of the Planning Scheme;
    3. variations in the treatment and patterning of windows, sun protection and shading devices, or other elements of a facade treatment at a finer scale than the overall building structure: acceptable outcome AO5.2(c) in Table 9.3.10.3.1 of the Planning Scheme;
    4. balconies, verandahs or terraces: acceptable outcome AO5.2(d) in Table 9.3.10.3.1 of the Planning Scheme; and
    5. planting, particularly on podiums, terraces and low-level roof decks: acceptable outcome AO5.2(d) in Table 9.3.10.3.1 of the Planning Scheme.
  14. [97]
    These acceptable outcomes are intended to ensure that a multi-unit use is sited and designed in a manner that minimises building mass and scale, provides visual interest through articulation and architectural design features, and allows sufficient area at ground level for communal open space, landscaping and maintenance of a residential streetscape: performance outcome PO5 in Table 9.3.10.3.1 of the Planning Scheme.  The uses are also to be sited and designed to preserve any existing vegetation that will buffer the proposed building; allow for landscaping to be provided between buildings and street frontages; and maintain the visual continuity and pattern of buildings and landscape elements within the street: performance outcome PO6 in Table 9.3.10.3.1 of the Planning Scheme.
  15. [98]
    The Landscaping code requires development to provide landscaping that successfully integrates the built form with the local landscape character and enhances the tropical qualities of the Whitsunday region: s 9.4.5.2(2)(c) of the Planning Scheme.  It also requires development to provide landscaping that protects and enhances the character and amenity of the site, streetscape and surrounding locality: performance outcome PO3 in Table 9.4.5.3.1 of the Planning Scheme.
  16. [99]
    It is not apparent that Mr Curtis and Mr Forsyth had regard to the Planning Scheme context outlined in paragraphs [92], [93], [96], [97] and [98] above when forming their opinions that the proposed self-storage facility would have lesser visual amenity and character impacts than a multi-unit use.  As such, I do not find their opinions about the acceptability of the impacts to be compelling. 
  17. [100]
    I am not satisfied to the requisite standard that the proposed self-storage facility’s impact on visual amenity and character is likely to be less than the impact of a multi-unit residential development. 

Is the proposed self-storage facility compatible with the scale and character of surrounding development?

  1. [101]
    Middle Pond Pty Ltd contends that when the built form of the proposed self-storage facility, and its character and visual impacts, are assessed against relevant assessment benchmarks of the Low-medium density residential zone code, the proposed self-storage facility performs favourably. 
  2. [102]
    The overall outcome in s 6.2.10.2(3)(d)(ii) of the Low-medium density residential zone code calls for consideration of whether a non-residential use is small-scale and low intensity.  The overall outcomes in ss 6.2.10.2(3)(b), (c), and (d)(iii) of the Low-medium density residential zone code each call for a broader assessment of a proposed development’s compatibility with residential character.
  3. [103]
    As I have already mentioned, Middle Pond Pty Ltd concedes that the proposed self-storage facility is not small-scale but submits that it is low intensity.
  4. [104]
    Relevant indicia of the intensity of the use include the hours of operation, the extent and duration of lighting and the volume of traffic associated with the proposed development: Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, 1036 [43].
  5. [105]
    I am satisfied that the proposed self-storage facility is low intensity.  The size of the proposed buildings coupled with extensive hardstand manoeuvring and parking areas creates an intense built form.  That said, there are no emissions-based amenity or traffic issues raised against the proposed self-storage facility.  The traffic volumes are expected to be low, with estimated daily trip generation rates of 96 vehicles on a weekday and 83 vehicles on a weekend, being much less traffic than a multiple dwelling would generate.  There is expected to be minimal foot traffic.  It is also unlikely that the proposed self-storage facility will attract industrial users.  The proposed regular hours of operation are between 6 am and 7 pm, with access outside those hours only by arrangement with the onsite manager.  This is a matter that lends weight to its approval.  With that in mind, I turn to the broader assessment of the proposed self-storage facility’s compatibility with residential character.
  6. [106]
    The term “compatible” is not defined in the Planning Scheme.  The Macquarie Dictionary defines it as, relevantly:[1]
  1. “1.
    capable of existing together in harmony. 2. capable of orderly, efficient integration with other elements in a system…”
  1. [107]
    It is a term with a degree of elasticity and flexibility.  Development is compatible with local residential character and amenity if it is capable of existing in harmony with that character and amenity: Andema Pty Ltd v Noosa Shire Council [2020] QPEC 46; [2021] QPELR 783, 790 [28] citing Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPEC 25; (2017) 224 LGERA 166; [2017] QPELR 628.
  2. [108]
    The character of a locality is the aggregate impression formed having regard to the individual features and traits of the existing development, landscaping and natural environment in the street or locality.  It is also informed by the perceptions or expectations that people hold about a place, which may be influenced by the existing attributes of the area and the planning intentions for the area: North Harbour Holdings Pty Ltd v Moreton Bay Regional Council & Anor [2024] QPEC 21, [237]-[240]; McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, 984 [49]; Purcell Family v Gold Coast City Council [2004] QPELR 521, 524 [20].
  3. [109]
    I have considered the existing scale and character of surrounding development and its contribution to the streetscape in paragraphs [22] to [40] above.  I have addressed the intended visual amenity and character impacts for development on the subject land and the surrounding area in paragraphs [84] to [98] above.  The proposed self-storage facility does not perform well when considered in that context. 
  4. [110]
    I accept the evidence of Mr Buckley that modern self-storage facilities are generally designed to accommodate many storage units.  Consequently, they are either land consumptive or involve multiple levels.  Their built form is often large and quite different in scale and composition to acceptable design outcomes in residential areas.  The same is true of the proposed self-storage facility.
  5. [111]
    I have already made findings about several parameters that inform the visual and character impacts of the proposed self-storage facility in paragraphs [45] to [54] above.  To those findings, I add the following.
  6. [112]
    It is unsurprising that Middle Pond Pty Ltd accepts that the proposed self-storage facility use is not small scale given the evidence of the experts.  Mr Forsyth acknowledges that the proposed self-storage facility does not have a small-scale built form.  Mr Buckley is of a similar view.  Mr Curtis accepts that the built form would be significantly larger than residential buildings in the area and is not small scale.
  7. [113]
    As I have already mentioned, the proposed self-storage facility has more than 7,400 square metres in gross floor area and a site cover of more than 3,750 square metres.  In those respects, it is comparable in scale to the Bunnings Warehouse, which has an indoor floor area of less than 3,400 square metres. 
  8. [114]
    Mr Curtis accepts that most people will perceive the proposed built form as a single building and acknowledges that the length of the built form is greater than the length and width of typical houses.  During cross-examination, he also acknowledged that:
    1. the proposed buildings would each be considerably larger than any of the commercial buildings on Shute Harbour Road to the east of the roundabout;
    2. although each of the proposed buildings will be two-storeys-high, none of the commercial development beyond the roundabout exceeds a single storey;
    3. the nearby warehouse component of Bunnings Warehouse has a similar length to proposed Building A;
    4. each of the proposed buildings will be the largest buildings in the locality, perhaps other than the Bunnings Warehouse;
    5. self-storage facilities are inherently and fundamentally non-residential;
    6. the proposed buildings have a lack of fenestration compared to a residential form of development;
    7. the proposed built form does not have a residential character at all, rather it has a commercial appearance; and
    8. the proposed built form would not be mistaken for a residential building.
  9. [115]
    These concessions are appropriate, and I accept the evidence of Mr Curtis in this respect.  That evidence accords with the views I have formed having regard to the plans, projections and elevations depicting the proposed self-storage facility and the photographs of the surrounding area.
  10. [116]
    The SmartMaps in Exhibit 26 indicate that the frontage of the proposed self-storage facility to Shute Harbour Road would be equivalent to the combined frontage of all the commercial development north-east of the roundabout.  They also demonstrate that the frontage of the existing commercial development on Shute Harbour Road is minimal compared to the dimensions of proposed Buildings A and B.
  11. [117]
    The impression that the proposed self-storage facility is of an excessive scale is exacerbated by the fact that there is only a nine-metre-wide gap between the 60-metre-wide proposed Building A and the 80-metre-wide proposed Building B.  When viewed from an angle, that gap will not be sufficient to discern a separation between the buildings.
  12. [118]
    Further, as can be seen from the plans, each of proposed Buildings A and B contain no meaningful vertical or horizontal articulation to the northern elevation.  Consequently, each proposed building presents to Shute Harbour Road as having an unbroken elevation for its entire length.
  13. [119]
    Despite the matters referred to above, Mr Curtis maintains that the proposed self-storage facility will have acceptable visual and character impacts.  His opinion is founded on two matters, namely:
    1. the extent to which the design features mitigate unacceptable impacts; and
    2. the mitigating impact of the proposed landscaping. 
  14. [120]
    As to the first, Mr Curtis says that variations in the external cladding, fenestration and external colourations create legible segments and a visual rhythm that animates the façade’s appearance and modulates the length of the built form.  He says that these design features create an assemblage of smaller scale elements that have approximate widths like existing building forms in the surrounding area, being in the order of 12 to 18 metres.  In his view, these design features prevent the buildings having a singular, monolithic appearance. 
  15. [121]
    When pressed about the design elements that reflect, and are compatible with, residential development, the only elements that Mr Curtis identified were “potentially the corner feature” of the showroom and the caretaker’s office in proposed Building A and the fenestration provided by the large fixed-pane windows. 
  16. [122]
    I am not persuaded that these elements are compatible with existing or intended development in the surrounding area.  Mr Curtis was unable to identify any building in the locality with windows of a scale like that proposed.  He acknowledged that the windows were themselves the scale of some houses.  In addition, on my review of the plans, projections and elevations of the proposed self-storage facility, the caretaker’s component of proposed Building A to which Mr Curtis referred is coloured a vibrant yellow and has a prominent parapet at the top that gives that part of the building a three-storey appearance.
  17. [123]
    I accept that, in some cases, design features such as those identified by Mr Curtis, may animate the appearance of a façade, modulate the length of the built form, and reduce the extent to which a building has a singular, monolithic appearance.  On my review of the plans, projections and elevations depicting the proposed self-storage facility, I am not persuaded that the design attributes effectively do so in this case. 
  18. [124]
    As I have mentioned, Mr Curtis also relies on landscaping to inform his view that the visual impact is acceptable. 
  19. [125]
    The details on the landscaping plan show that the planting along most of the Shute Harbour Road frontage is to involve shrubs interspersed with medium columnar trees.  Medium to large spreading shade trees are only proposed on the corners of proposed lot 100.  As such, the landscape concept plans demonstrate that the proposed landscaping will only partially screen the built form.  This was accepted by Mr Curtis, who acknowledged that there was no intention to hide the proposed buildings behind landscaping.  To the contrary, the proposed self-storage facility is likely to seek to promote itself to the public to some degree, such as through the adoption of the vibrant yellow colouring on the façade of Buildings A and B.  In those circumstances, I am not persuaded that the proposed landscaping will appropriately mitigate the unacceptable visual and character impacts occasioned by the proposed self-storage facility. 
  20. [126]
    I prefer the evidence of Mr Buckley to that of Mr Curtis (other than the concessions made by Mr Curtis identified in paragraph [114] above, which I accept).  Mr Buckley provides a cogent explanation for his opinion, and his opinion accords with the views I have formed having regard to the plans, projections and elevations depicting the proposed self-storage facility and the photographs of the surrounding area. 
  21. [127]
    Relevantly, Mr Buckley opines that the proposed self-storage facility does not make a positive contribution to the streetscape nor is it sympathetic to the scale and character of surrounding development.  He explains that although height is an indicator of the acceptability of the form of a building, it is but one dimension of a building.  Here, when the height is combined with the other lineal dimensions, the consequential outcome in volume, scale and appearance is that of an industrial building.  Mr Buckley says that, even with the proposed landscaping, the buildings are obvious and are obviously not residential in nature.  He says that such an outcome has no connection with the predominant residential character of the area.
  22. [128]
    The unacceptable impact is exacerbated because the subject land:
    1. is a prominent site with extensive frontage to Shute Harbour Road;
    2. is elevated above the road; and
    3. sits at the entrance to a substantial area of residential development that is accessed from Tropic Road and Barnes Place. 
  23. [129]
    Having regard to the mass and scale of the proposed self-storage facility relative to its surroundings, I am satisfied that the proposed self-storage facility is not designed and located in a manner that is sympathetic to the existing and intended scale and character of surrounding development.  For the reasons outline above, I am satisfied that it will not make a positive contribution to the streetscape and will instead result in an unreasonable loss of visual amenity.
  24. [130]
    Overall, based on the evidence of Mr Buckley and my review of the plans, projections and elevations depicting the proposed self-storage facility, I am comfortably satisfied that the proposed self-storage facility will not be compatible with the scale and character of surrounding development.

Conclusion regarding compliance with the overall outcomes directed to visual and character impacts

  1. [131]
    With respect to visual and character impacts, the Council alleges that the proposed self-storage facility is inconsistent with, and gains no relevant support from, the purpose and overall outcomes in ss 6.2.10.2(1), (2), (3)(a), (b), (c), (d)(ii), (iii) and (vi), (f), (h)(iv), and (i) of the Planning Scheme.
  2. [132]
    As I have mentioned at paragraph [71] above.  Middle Pond Pty Ltd concedes that the proposed self-storage facility does not accord with the planned purpose for land in the zone as identified in ss 6.2.10.2(1) and (2) of the Low-medium density residential zone code.  It also concedes non-compliance with the overall outcomes in ss 6.2.10.2(3)(a) and (d) of the Low-medium density residential zone code. 
  3. [133]
    Having regard to my findings in paragraphs [22] to [54] and [81] to [130] above, I am satisfied that the proposed self-storage facility:
    1. gains no support from the overall outcome in s 6.2.10.2(3)(b) of the Planning Scheme because it is not a use that is within the Accommodation activities defined activity group and, in any event, its scale is not compatible with, and detracts from, the intended residential character and amenity of the Low-medium density residential zone;
    2. gains no support from the overall outcome in s 6.2.10.2(3)(c) of the Planning Scheme because it is not a home-based business and, in any event, it is not compatible with local residential amenity;
    3. is partially inconsistent with the overall outcome in s 6.2.10.2(3)(d)(ii) of the Planning Scheme because although it is low intensity, it is not small scale;
    4. is inconsistent with the overall outcome in s 6.2.10.2(3)(d)(iii) of the Planning Scheme because it is not compatible with the local residential character and amenity of the area;
    5. is inconsistent with the overall outcome in s 6.2.10.2(3)(d)(vi) of the Planning Scheme because it will have a significant detrimental impact on the amenity of surrounding residents by reason of its visual impact; and
    6. is inconsistent with the overall outcome in s 6.2.10.2(3)(i) of the Planning Scheme because it is not designed and located to make a positive contribution to the streetscape and it is not sympathetic to the intended scale and character of surrounding development.
  4. [134]
    With respect to the overall outcome in s 6.2.10.2(3)(f) of the Planning Scheme, the height of the proposed self-storage facility is less than the maximum specified therein.  As such, there is no dispute that the height of the proposed self-storage facility is less than the maximum building height anticipated in the Low-medium density residential zone.  Despite that, the Council alleges non-compliance on the basis that, leaving aside height, the built form is not “compatible with the intended scale and character of the streetscape and surrounding area”.
  5. [135]
    Middle Pond Pty Ltd disputes this allegation.  It says that the overall outcome in s 6.2.10.2(3)(f) of the Planning Scheme is directed to considerations relevant to height alone.  Middle Pond Pty Ltd argues that such a construction is supported by the fact that issues about building mass and scale are addressed in the overall outcomes in ss 6.2.10.2(3)(h)(iv) and (i) of the Low-medium density residential zone code.   
  6. [136]
    The Council did not respond to this statutory construction issue advanced by Middle Pond Pty Ltd. 
  7. [137]
    It is unnecessary for me to determine the statutory construction issue because:
    1. to the extent that s 6.2.10.2(3)(f) of the Low-medium density residential zone code relates to height, the proposed self-storage facility complies with the overall outcome and that is a matter that lends weight to its approval; and
    2. to the extent that s 6.2.10.2(3)(f) of the Low-medium density residential zone code requires the built form to be compatible with the intended scale and character of the streetscape and surrounding areas:
      1. (i)
        this requirement is also raised as part of the assessment of the proposed self-storage facility against the overall outcomes in ss 6.2.10.2(3)(b), (c), (d)(iii) and (vi), (h)(iv) and (i) of the Low-medium density residential zone code; and
      1. (ii)
        no party asserts that greater or lesser weight should be attributed to this issue on the basis that it is an issue that is also mentioned in s 6.2.10.2(3)(f) of the Low-medium density residential zone code.
  1. [138]
    With respect to the overall outcome in s 6.2.10.2(3)(h) of the Planning Scheme, it is common ground that the proposed self-storage facility:
    1. is a multi-storey development; and
    2. will not have a significant detrimental impact on the amenity of surrounding residents by reason of its hours of operation, generation of odours, noise, waste products, dust, traffic, electrical interference, or lighting.
  2. [139]
    The real issue in dispute about this overall outcome relates to the visual amenity impact of the proposed self-storage facility.  To that end, having regard to my findings above, I am satisfied that the proposed self-storage facility does not comply with the overall outcome in s 6.2.10.2(3)(h)(iv).

Is the proposed self-storage facility commercial in nature?

  1. [140]
    Middle Pond Pty Ltd accepts that its proposed self-storage facility is not a use that is included within the defined activity groups of “Business activities”, “Community activities” and “Other activities” and, as such, it is not identified as a non-residential use that is anticipated in the Low-medium density residential zone.  It says that it does not necessarily follow that it is inappropriate to locate the proposed self-storage facility in the Low-medium density residential zone.  Middle Pond Pty Ltd contends that careful consideration of the nature of the use, and its alignment with controls on the location of anticipated non-residential uses, demonstrate that the proposed self-storage facility is appropriately located.
  2. [141]
    The fact that a self-storage facility use is not within the identified non-residential uses expressly contemplated in the Low-medium density residential zone does not, by itself, demonstrate that it is inappropriate to locate such a use on the subject land.  To appreciate the planning consequence of a proposed use that is not an anticipated non-residential use, it is necessary to assess the use with regard to provisions of the Planning Scheme that guide the nature, scale and appropriate built form of non-residential uses that might be anticipated in the zone and their character and amenity impacts: Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2021] QPEC 29; [2022] QPELR 608, 622 [60]; Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899, 928-9 [166]–[174].  It also assists to consider the relevant provision that expressly identifies those anticipated uses to ascertain whether it reflects a deliberate planning policy to limit the non-residential uses to those identified.
  3. [142]
    Middle Pond Pty Ltd submits that the non-residential uses that are anticipated include those that are commercial in nature.  It says that the proposed self-storage facility has a nature and character that is more closely aligned with retail and commercial uses than with industrial uses and, as such, it is reasonable to anticipate its location in the Low-medium density residential zone. 
  4. [143]
    In support of its contentions, Middle Pond Pty Ltd relies on the evidence of:
    1. Mr Norling and Mr Ganly, the need experts retained by Middle Pond Pty Ltd and the Council respectively;
    2. Mr Parker, the director of Middle Pond Pty Ltd; and
    3. Mr Forsyth.
  5. [144]
    The need experts opine that modern self-storage facilities, such as that proposed, are not industrial in nature or character.  They say that self-storage facilities are more closely aligned with retail and commercial uses.  Their opinions are founded on industry information about modern self-storage facilities which indicates that:
    1. 72 per cent of all customers use self-storage units for personal reasons, 16 per cent use self-storage units for business use only, and 12 per cent use self-storage units for a mixture of business and personal use;
    2. to the extent that customers are businesses, they are mostly small businesses rather than industrial businesses;
    3. the unit sizes are typically small, suiting household users rather than industrial businesses;
    4. the major items stored in self-storage units by current users comprise household items or furniture (51 per cent), garage or shed items (30 per cent), items that have sentimental value (30 per cent), seasonal items (27 per cent), gym equipment (24 per cent), a loved one’s belongings (22 per cent), valuable assets (21 per cent), business items (17 per cent), and cars or motorbikes (17 per cent);
    5. the storage units are accessed by cars rather than large trucks;
    6. the main reasons for choosing a particular facility include offerings of the lowest price (42 per cent), most convenient location (41 per cent), most convenient access (28 per cent), most security (26 per cent) and type of storage needed (25 per cent); and
    7. customers prefer convenient access from a major road rather than having to negotiate through an industrial area.
  6. [145]
    This industry information is supported by the evidence of Mr Parker.  He has approximately 28 years of involvement with the storage industry.  Mr Parker explains that he has observed that the self-storage industry has changed over time from being an industry-driven requirement to being a domestic and commercial driven requirement.  For that reason, he considers it necessary to locate these uses in non-industrial locations and to change design outcomes to better suit the requirements of the users.
  7. [146]
    Mr Parker considers that the proposed self-storage facility is easily accessible from, and has excellent exposure to, Shute Harbour Road.  Shute Harbour Road is a major carriageway.  It is the only access road into Cannonvale and Airlie Beach.  In 2022, it had an average annual daily traffic count of 18,600 vehicles.  Presently, the Department of Transport and Main Roads is in the design phase of an upgrade to Shute Harbour Road that will add two lanes to the road proximate the subject land.
  8. [147]
    Mr Parker also gave evidence that the proposed self-storage facility has been designed to cater for a range of domestic and business users but not industrial users.  It is anticipated that there will be a variation in the size of units between two square metres and 27 square metres.  As the proposed facility is not intended to facilitate the storage of large commercial quantities of goods and will not permit the storage of toxic, hazardous or combustible materials, Mr Parker considers that the proposed self-storage facility is unlikely to attract industrial users. 
  9. [148]
    Having regard to, amongst other things, the evidence of Mr Parker, Mr Forsyth opines that the proposed self-storage facility is not industrial in nature.
  10. [149]
    Mr Buckley disagrees with the need experts and Mr Forsyth. 
  11. [150]
    Mr Buckley opines that whatever technical characterisation may be given to the nature of the use, self-storage facilities are inherently and fundamentally non-residential.  He considers that whether one refers to the Planning Scheme or first principles, such uses fairly sit within a traditional light industrial land use definition.  Mr Buckley’s opinion in that respect is founded on four town planning considerations.
  12. [151]
    First, regardless of the size of the individual space or unit used for the purpose of self-storage, storage or warehousing is an activity that is well understood.  It involves the keeping of goods for both short and long periods of time within a building that is fit for that purpose.  Mr Buckley explains that the town planning definition focuses on the activity being one of storage.  In that sense, there is a commonality between the proposed use and warehouse activities undertaken by logistical companies.  Mr Buckley acknowledges that planning schemes are never perfect, but he says that the town planning strategy of grouping like uses is the foundation to definitional characterisations adopted in planning schemes. 
  13. [152]
    Second, given the planning purpose for which self-storage facilities are designed, the buildings are usually utilitarian and functional.  In Mr Buckley’s opinion, consistent with the use that they accommodate, the built form for self-storage facilities usually presents as a non-residential use. 
  14. [153]
    Third, Mr Buckley opines that the scale of modern self-storage facilities is material to understanding the use.  He says that modern facilities are usually designed to accommodate large numbers of units.  Consequently, they are either land consumptive or the buildings contain multiple levels and, as such, they are often of a materially different scale and composition to acceptable design outcomes in residential areas.
  15. [154]
    Fourth, according to Mr Buckley, the locational considerations for self-storage facilities are not as pressing as other land use categories that provide a service to residential communities.  This is because, in general, patrons do not visit them as regularly as a supermarket, take away food outlet or even medical services.  As such, Mr Buckley opines that there is no planning need to locate self-storage facilities close to residential users.  In his view, if they can be co-located with identified centres or industrial hubs, that is an added benefit as it optimises existing infrastructure.  However, Mr Buckley opines that it does not follow that such uses should be located within a residential zone. 
  16. [155]
    When confronted with Mr Parker’s evidence about the changing profile of users of self-storage facilities, Mr Buckley was not dissuaded from his view about the appropriate town planning characterisation of such uses.  He explained that although the predominant users of self-storage facilities may have changed, so have modern industrial areas.  Not all industrial areas are intimidating to people or contain uses that generate significant noise or other atmospheric omissions.  Mr Buckley explains that across Queensland, industrial areas have become more refined.  For example, there are local government areas that accommodate uses at the light industrial end of the scale and other local government area that provide for their location in areas designated for service industries or in mixed use zones in which there is infiltration of commercial uses.  Mr Buckley considers that the proposed self-storage facility would sit very comfortably in those types of environments.
  1. [156]
    I accept the evidence of the need experts and Mr Parker to which I have referred in paragraphs [144] to [147] above.  I also accept the cogency of Mr Buckley’s observations to which I have referred in paragraphs [150] to [155] above and prefer Mr Buckley’s evidence to that of Mr Forsyth.  The evidence persuades me that certain aspects of the proposed self-storage facility use lend support to its co-location with other commercial uses while other characteristics indicate that it is appropriately located in an industrial area. 
  2. [157]
    In those circumstances, I am prepared to assume that the proposed self-storage facility has a commercial character and will proceed to assess it on that basis. 

Will the proposed self-storage facility function appropriately?

  1. [158]
    There is a diverse range of defined uses clustered in the defined activity groups that may be acceptable in the Low-medium density residential zone: see paragraph [59] above.  However, the Planning Scheme protects the integrity of the Low-medium density residential zone through controls on the function of such uses.  This is apparent from the purpose in s 6.2.10.2(1), which states:

“The purpose of the Low-medium density residential zone code is to provide for a range and mix of dwelling types, including dwelling houses and multiple dwellings supported by community uses and small-scale services and facilities that cater for local residents.”

  1. [159]
    Relevant to this purpose, the overall outcomes in ss 6.2.10.2(3)(d)(i) and (ii) of the Low-medium density residential zone code provide:
  1. “(d)
    development may provide for limited Business, Community and Other activities including sales offices, shops (limited to corner stores), community uses, emergency services and utility installations which:
  1. directly support the day to day needs of the immediate residential community;
  1. are small-scale and low intensity …”
  1. [160]
    I have already addressed the overall outcome in s 6.2.10.2(3)(d)(ii) to the extent that it informs visual and character impacts in paragraphs [102] to [105] above.
  2. [161]
    The assessment benchmark in s 6.2.10.2(3)(d)(i) calls for analysis of the planning need for the non-residential use.  That is a multi-faceted concept that raises for consideration matters that include the community and economic need: Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at 817 [112]. 
  3. [162]
    Whether a non-residential use will directly support the day to day needs of the immediate residential community for the purposes of the overall outcome in s 6.2.10.2(3)(d)(i) of the Low-medium density residential zone code is a question of fact and degree.  It is informed by a range of considerations, including the nature of the use proposed and relevant context in the Planning Scheme.
  4. [163]
    Here, relevant context includes the purpose of the Low-medium density residential zone code, which describes the nature and intended function of non-residential uses anticipated in the zone as “community uses and small-scale services and facilities that cater for local residents”. 
  5. [164]
    Although the overall outcome in s 6.2.10.2(3)(d)(i) of the Low-medium density residential zone code is expressed to focus on the needs of the immediate residential community, the mere fact that it will attract patrons from beyond the immediate residential community is not fatal.  It has long been recognised that planning schemes are to be read as a whole and in a way that is practical and intended to achieve a balance between the individual outcomes: AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58]. 
  6. [165]
    In this respect, I agree with the tenor of the observations made by His Honour Judge Rackemann in Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council & Ors [2005] QPEC 70, [2006] QPELR 85, wherein His Honour observed at 87:
  1. “[10]
    It is unrealistic, in dealing with facilities such as service station/shop uses, in the modern context, to expect that they will not be used by a proportion of people from beyond the local area. Catchment areas are not borders within which patrons are quarantined. It would be surprising if the Kensington Village Shopping Centre did not also attract some custom from beyond the local area. Provisions of this kind should be construed and applied in a practical rather than pedantic way. I do not consider that the custom from further afield disentitles this facility from properly being considered as a local level facility, a facility which usefully adds to a range of services offered to the population catchment of the local centre and which is consistent with the character of the precinct. The use is not one which conflicts with the evident planning intent of those provisions.”

(footnotes omitted)

  1. [166]
    These observations were endorsed by the Court of Appeal in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309 at 338 [81].  As was clarified by Brown J, that is not to suggest that phrases that call for a use to serve a local area should be treated as having an open-ended meaning. 
  2. [167]
    Leaving aside that the proposed use is not anticipated in the zone, Middle Pond Pty Ltd contends that the proposed self-storage facility will function appropriately as it will cater for local residents and directly support the day to day needs of the immediate residential community.  It relies on three matters to support its contention.
  3. [168]
    First, Messrs Norling and Ganly agree that the proposed self-storage facility will be convenient for all residents of their agreed catchment, which is described further below.
  4. [169]
    Second, Middle Pond Pty Ltd says that the use has an element of essentiality.  In this respect, the economics experts say that approximately 10 per cent of the Australian population currently uses storage, 40 per cent have used storage at some point, and 20 per cent have used storage in the last five years.  The high demand for storage in the catchment is consistent with such figures.  In addition, based on their review of industry data, the economics experts say that self-storage facilities are used where there has been a death in the family and by those experiencing the breakdown in domestic or family relationships. 
  5. [170]
    As to these first two matters, I accept the evidence of the economics experts about the characteristics of the self-storage industry, including the profile of the customer base, customer preferences and drivers for demand identified in paragraphs [144] , [168] and [169] above.  I also accept the evidence of the economics experts that customers are typically prepared to travel up to 10 kilometres to access self-storage facilities.  This evidence from the economics experts is consistent with evidence given by Mr Parker, which I accept. 
  6. [171]
    Relevantly, Mr Parker explains that the most dominant type of users of self-storage facilities nowadays are people who own property in the local area and store some of their personal belongings at the facility.  He says that small businesses represent a smaller proportion of users.  According to Mr Parker, customers access their stored items on a semi-regular basis.  He says that, consequently, his experience is that customers prefer the facility to be in a convenient, secure and easily accessible location. 
  7. [172]
    In Mr Parker’s experience, the self-storage facilities that are in higher demand and that are better utilised are those that are close to, and provide easy access to, residents of the local area.  Mr Parker says that the feedback he gets from domestic and local business users is that they do not want self-storage facilities that are in industrial areas.
  8. [173]
    The third matter relied on by Middle Pond Pty Ltd is the opinion of Mr Forsyth that the proposed self-storage facility on the subject land, by its nature and operation, will support the day to day needs of the immediate residential community.  Mr Forsyth’s opinion in this regard is premised on the evidence of Mr Parker that the dominant users of self-storage facilities are domestic and that users seek convenience and storage facilities close to where they live.  During cross-examination, Mr Forsyth clarified that he considers that a use will satisfy the day to day needs of the immediate residential community if it is able to be accessed when desired, even if that happens to be only a little more frequently than once a month.  He then acknowledged that every conceivable use with operating hours that include every weekday would comply with his approach to a use that directly supports the day to day needs of the immediate residential community.  I do not accept Mr Forsyth’s evidence on this issue.  It lacks cogency.
  9. [174]
    I am satisfied that the proposed self-storage facility is of a scale that goes well beyond a non-residential use that directly supports the day to day needs of the immediate residential community.  My finding in this respect is informed by the combination of four aspects of the evidence.
  10. [175]
    First, the economics experts’ evidence about the need for the proposed self-storage facility is founded on the facility drawing custom from an extensive agreed catchment area. 
  11. [176]
    With the benefit of the industry data about the attributes of the self-storage industry, Messrs Norling and Ganly agree a catchment area for the proposed self-storage facility.  They describe the agreed catchment area as comprising a discrete urban area that is separated from the nearest urban area of Proserpine by 18 kilometres.  The economics experts opine that the road network is configured such that residents from the agreed catchment area represent a captured market, with the subject land being convenient for persons living in the agreed catchment and not convenient for residents located outside of it.
  12. [177]
    The agreed catchment area covers an extensive geographical area that is coincident with the Australian Bureau of Statistics’ Census Statistical Area Level 2 of Airlie - Whitsunday.  It includes the immediate suburb of Cannonvale, the adjoining suburbs to the east and west, other suburbs in the broader locality, and nearby islands such as Hamilton and Hayman Islands.  It includes land that is more than ten kilometres from the subject land. 
  13. [178]
    There is disagreement between Mr Norling and Mr Ganly about the extent of demand for self-storage facilities.  That said, each experts’ analysis is founded on the estimated resident population of the entire agreed catchment area.  Neither of the economics experts analyse the need generated by the “immediate residential community”, nor do they provide population projections for an area other than the entire agreed catchment area.  Although Mr Norling says that most residents of the catchment area live in Cannonvale, he does not provide a map that indicates the area to which he refers, nor does he give a quantitative indication of the proportion of the population of the agreed catchment area that resides in Cannonvale.  On my review of the aerial photographs of the area, the aerial extent of land proximate the subject land that appears to be developed with residential development is significant.  However, there also appears to be sizeable residential communities at more distant locations, such as at Jubilee Pocket. 
  14. [179]
    Second, if the proposed self-storage facility was approved and constructed, it would be the largest such facility in the agreed catchment area. 
  15. [180]
    Third, for reasons that are discussed below when addressing the issue of need, the existing and approved supply of self-storage facilities exceeds the demand projected by both economics’ experts well into the future.  Even if I were to accept the assessment that is most favourable to Middle Pond Pty Ltd, being that provided by Mr Norling, if the recently approved self-storage facilities are constructed, supply will exceed projected demand in 2026 by 114 units.  This is without the additional 492 storage units that would be supplied by the proposed self-storage facility.  On Mr Norling’s analysis, it is not until about 2053 that there would be sufficient demand to fully support the proposed self-storage facility.  During his cross-examination, Mr Norling described the need as non-existent for several years. 
  16. [181]
    Fourth, the evidence of the economics experts is a strong indicator that, if approved, to be viable the proposed self-storage facility would be reliant on serving the needs of much more than just the immediate residential community.
  17. [182]
    In those circumstances, I am not persuaded that the proposed self-storage facility is a non-residential use that will directly support the day to day needs of the immediate residential community for the purpose of the overall outcome in s 6.2.10.2(3)(d)(i) of the Low-medium density residential zone code.  As such, if approved and constructed, it will function in a way that is not encouraged or anticipated in the Low-medium density residential zone.

Does the proposed self-storage facility perform favourably in terms of location and accessibility?

  1. [183]
    The overall outcomes in ss 6.2.10.2(3)(d)(iv) and (v) of the Low-medium density residential zone code contain controls on the location and accessibility of non-residential uses.  They state:
  1. “(d)
    development may provide for limited Business, Community and Other activities including sales offices, shops (limited to corner stores), community uses, emergency services and utility installations which:

…

  1. wherever possible, are co-located with similar activities within the zone;
  1. are accessible to the population they serve and are located on the major road network rather than local residential streets; …”
  1. [184]
    Although the outcome in s 6.2.10.2(3)(d)(iv) is expressed to be one that is desirable, rather than mandatory, Middle Pond Pty Ltd contends that it provides support for the proposed self-storage facility.  Middle Pond Pty Ltd submits that the proposed self-storage facility is co-located with uses of a similar nature and will deliver a modern built form within a landscaped setting that is compatible with the character of the surrounding area. 
  2. [185]
    In support of its submissions, Middle Pond Pty Ltd relies on the evidence of Mr Forsyth and Mr Curtis to which I have already referred above.  It also relies on Mr Parker’s evidence that the Reece Plumbing store, the childcare centre on the opposite corner of Tropic Road and other nearby commercial activities are likely to use the self-storage facility.
  3. [186]
    For reasons already explained, I do not accept that evidence of Mr Forsyth and Mr Curtis relied on by Middle Pond Pty Ltd.  Even assuming that the proposed self-storage facility is commercial in nature, I am not persuaded that the proposed self-storage facility is similar to other activities in the Low-medium density residential zone.
  4. [187]
    That said, the proposed self-storage facility does perform more favourably when assessed against the other locational requirement, namely the requirement in s 6.2.10.2(3)(d)(v).
  5. [188]
    Further, there is no doubt that the proposed self-storage facility will be accessible to the residents of the agreed catchment area.  The subject land has significant exposure to passing traffic as it fronts Shute Harbour Road, which is the main road linking Airlie Beach to the Bruce Highway and Proserpine. 
  6. [189]
    In addition to fronting Shute Harbour Road, the proposed self-storage facility fronts two residential streets, being Tropic Road and Barnes Place.  The proposed access is from Tropic Road.  There is a dispute about whether, in those circumstances, the proposed self-storage facility is located on the major road network. 
  7. [190]
    It is unnecessary to resolve this dispute as the outcome is not determinative.  In terms of the access for the proposed self-storage facility, it is of greater significance that:
    1. the proposed self-storage use fronts a major road (Shute Harbour Road);
    2. the proposed access is near the end of Tropic Road where it intersects at a roundabout with Shute Harbour Road;
    3. the proposed self-storage facility is low intensity;
    4. there are already non-residential uses that take access off Tropic Road, namely the Reece Plumbing store and the childcare centre; and
    5. the Council does not assert any adverse traffic or noise impacts and, as such, I am prepared to infer that the proposed self-storage facility will operate safely and efficiently with no adverse impacts on the operations of the road network.
  8. [191]
    These are matters that lend weight to the case for approval.

Conclusion regarding assessment against the Low-medium density residential zone code

  1. [192]
    For the reasons provided above, having regard to my assessment of the proposed self-storage facility against the Low-medium density residential zone code, I approach the exercise of the discretion on the basis that the proposed self-storage facility:
    1. complies with the height requirement in the overall outcome in s 6.2.10.2(3)(f) of the Low-medium density residential zone code and, to the extent that the overall outcome contains any additional requirement, the non-compliance lends no additional weight to the case for refusal;
    2. is commercial in nature;
    3. is consistent with some outcomes sought in the Low-medium density residential zone code and has characteristics that lend support to its approval in that it:
      1. (i)
        is low intensity;
      1. (ii)
        will not have a significant detrimental impact on the amenity of surrounding residents by reason of its hours of operation, generation of odours, noise, waste products, dust, traffic, electrical interference, or lighting;
      1. (iii)
        fronts a major road (Shute Harbour Road);
      1. (iv)
        will be accessed from a location on Tropic Road close to the roundabout intersection with Shute Harbour Road; and
      1. (v)
        will operate safely and efficiently with no adverse impacts on the operations of the road network.
  2. [193]
    Collectively, these matters lend support to the case for approval.  However, they do not persuade me that the proposed self-storage facility is appropriately located on the subject land for three reasons.
  1. [194]
    First, the proposed self-storage facility does not comply with the assessment benchmarks in ss 6.2.10.2(1), (2), (3)(a), (d), (h)(iv) and (i) of the Low-medium density residential zone code and finds no meaningful support in ss 6.2.10.2(3)(b), (c), and (d)(i), (iii) and (iv) of the Low-medium density residential zone code.
  1. [195]
    Second, there is no suggestion that the Planning Scheme is not soundly based or has been overtaken by events.
  2. [196]
    In that respect, the evidence persuades me that modern self-storage uses are of a nature that may be appropriately located in either an industrial area or a commercial area.  The extent to which a self-storage facility is suited to a location in an industrial or commercial area may depend on factors such as:
    1. the characteristics of the self-storage facility in question, including its size and the need that the facility is designed to address;
    2. the attributes of the locality, including the convenience of access to industrial and commercial areas; and
    3. the relative availability of land in industrial and commercial areas and how the applicable planning scheme seeks to strike the balance between demands on land available for industrial and commercial purposes.
  1. [197]
    Here, the Planning Scheme appears to appropriately recognise that some self-storage facilities may have attributes that lend support to their location in commercial areas.  A review of the various zone codes reveals that, as a defined warehouse use and as a use that falls in the Industry activities defined activity group, a self-storage facility is:
    1. a preferred land use in the Low impact industry and Medium impact industry zones;
    2. anticipated as a land use that may be acceptable in the Major centre zone, the District centre zone, the Local centre zone, the Neighbourhood centre zone, the High impact industry zone, the Special industry zone, the Waterfront and marine industry zone, the Industry investigation zone, and the Rural zone, subject to meeting identified criteria; and
    3. not anticipated in, amongst others areas, the Low-medium density residential zone. 
  2. [198]
    I am satisfied that the Planning Scheme reflects sound town planning strategy wherein it:
    1. includes a warehouse use (and self-storage sheds) as part of the Industry activities defined activity group and identifies it as an acceptable land use in the Low and Medium impact industry zones and a potentially acceptable land use in other industry zones and in centre zones; and
    2. does not identify a warehouse use (or self-storage sheds) as one of the non-residential uses anticipated in the Low-medium density residential zone. 
  1. [199]
    In forming that view, I have had regard to:
    1. the matters referred to in paragraphs [195] and [197] above;
    2. the evidence about the self-storage industry and the characteristics of modern self-storage facilities referred to in paragraphs [144] to [156] and [168] to [172] above;
    3. the characteristics of the locality identified in paragraphs [30], [146] and [176] above that inform the relative accessibility of various areas in the locality; and
    4. the spatial distribution of the zones in which a self-storage facility is a preferred or acceptable land use and the residential zones, as evident from the zoning maps.
  2. [200]
    Third, the commercial character of the proposed self-storage facility and its other positive attributes do not alleviate the conflict with the Low-medium density residential zone code occasioned by its inappropriate scale, visual amenity and character impacts.
  3. [201]
    The protection of residential character and amenity is an important planning policy for land in the Low-medium density residential zone.  The non-compliances with those assessment benchmarks of the Low-medium density residential zone code directed to that policy are serious and represent a compelling reason to refuse the proposed self-storage facility. 

Does the proposed self-storage facility comply with the Industry activities code?

  1. [202]
    As I have already mentioned above, the proposed self-storage facility falls within the use definition of “Warehouse” in the Planning Scheme, which in turn forms part of the “Industry activities” defined activity group.  As such, the proposed self-storage facility is to be assessed against the assessment benchmarks in the Industry activities code.
  2. [203]
    The Council alleges that the proposed self-storage facility does not comply with several assessment benchmarks in the Industry activities code, namely the purpose in s 9.3.8.2(1), the overall outcome in s 9.3.8.2(2)(a) and performance outcome PO1.  They state:
  1. “(1)
    The purpose of the Industry activities code is to ensure Industry activities are designed and operated in a manner which meets the needs of the Industry activity, protects public safety and environmental values and appropriately responds to amenity considerations.
  1. The purpose of the Industry activities code will be achieved through the following overall outcomes:
  1. the scale and intensity of an Industry activity is compatible with its location and setting;

…

Built form, streetscape character and protection of amenity

PO1

Buildings and structures associated with the industrial activity are:

  1. of a scale and design, which is appropriate to an industrial setting, whilst contributing positively to the visual character and streetscape of the area; and
  1. designed to avoid or mitigate the potential for adverse amenity impacts on adjoining or nearby sensitive land uses.”
  1. [204]
    As I have already acknowledged at paragraph [138](b) above, the proposed self-storage facility will not have a significant detrimental impact on the amenity of surrounding residents by reason of its hours of operation, generation of odours, noise, waste products, dust, traffic, electrical interference, or lighting.  The real issue in dispute between the parties relates to the visual and character amenity impacts occasioned by the proposed self-storage facility.
  2. [205]
    Middle Pond Pty Ltd contends that the proposed self-storage facility complies with each of these assessment benchmarks in that respect.  Its case in this regard is that with respect to character and visual amenity that I have already addressed above. 
  1. [206]
    I accept the opinion of Mr Buckley on this issue.  He opines that the introduction of a large self-storage facility in a predominantly residential area and in a well-defined residential zone falls short of meeting the purpose in s 9.3.8.2(1), the overall outcome in s 9.3.8.2(2)(a) and performance outcome PO1 of the Industry activities code.  He says this is because:
    1. the scale and intensity of the proposed self-storage facility is well beyond what would be compatible with its location along a part of Shute Harbour Road where there is an integrity of land use and zone.  Although there are a few outliers, the land use pattern mirrors the zoning well;
    2. the proposed self-storage facility does not contribute positively to the visual quality of the zone and locality in which it is proposed; and
    3. by its scale, the proposed self-storage facility represents a significant intrusion into an area that has a predominant residential character.
  1. [207]
    Having regard to my findings about the character of the subject land and the surrounding area, the design attributes of the proposed self-storage facility and its visual and character impacts, I am not persuaded that the proposed self-storage facility complies with the assessment benchmarks of the Industry activities code put in issue by the Council.  The proposed self-storage facility is discordant with:
    1. s 9.3.8.2(1) of the Industry activities code because it is not designed to appropriately respond to visual amenity considerations;
    2. the overall outcome in s 9.3.8.2(2)(a) of the Industry activities code because its scale is not compatible with its location and setting; and
    3. performance outcome PO1 of the Industry activities code because the buildings associated with the use are of a scale and design that do not contribute positively to the visual character and streetscape of the area. 
  2. [208]
    In addition, I am not persuaded that the buildings are designed to appropriately mitigate the potential for adverse visual amenity impacts on the nearby sensitive land uses, being the house occupied by Ms Dryland and Mr Reid.  Their house sits at a higher elevation than the subject land and its orientation is such that they are afforded views over the subject land to the ocean beyond from their deck.  Although Mr Curtis refers to this in his report, he does not consider the impact of the design on the visual amenity enjoyed, and reasonably expected, by Ms Dryland and Mr Reid.
  3. [209]
    The non-compliances with the Industry activities code are matters that tell against approval of the proposed self-storage facility.  That said, I accept the Council’s submission that these non-compliances are not, by themselves, decisive.  This is because they arise out of the same findings that demonstrate non-compliance with the Low-medium density residential zone code.  It is the non-compliances with that code that give the refusal case its greatest force.

Are there relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?

  1. [210]
    Middle Pond Pty Ltd identifies several relevant matters that it says arise for consideration under s 45(5)(b) of the Planning Act 2016 and support approval.  They are framed in the following terms in the Appellant’s Particularised List of Reasons for Approval dated 22 December 2023 in Exhibit 1:
  1. “10.
    There is a strong level of town planning, community and economic need for the MCU component.  In particular, the MCU Component:
  1. provides for an existing shortfall in self-storage facilities;
  1. provides for a community that has a high propensity to utilise self-storage facilities;
  1. provides a standard of facility and service that is superior to all but one of the existing self-storage facilities in the catchment area;
  1. provides for an improved amenity for most consumers by not being located within an industrial area;
  1. is well located to serve the need and is conveniently accessible;
  1. is a more accessible location for the majority of the catchment area than facilities located at Jubilee Pocket; and
  1. provides for future population growth and increasing demand for self-storage facilities.
  1. 11.
    There is insufficient vacant and appropriate Low Impact Industry zoned lands within the catchment area to accommodate the MCU Component.
  1. 12.
    The self-storage use is not a typical industrial use in nature, but is more akin to a commercial use, and on this basis:
  1. the MCU Component avoids the use of valuable industrial land for a self-storage facility; and
  1. the MCU Component is co-located with other commercial uses along Shute Harbour Road.
  1. 13.
    The loss of LMDRZ land will have no material impact on the Planning Scheme’s ability to accommodate residential development.
  1. 14.
    By a combination of its architectural design, siting and landscaping, the MCU Component is compatible with the character and amenity of the surrounding area.”
  1. [211]
    The Council also raises relevant matters on which it relies to contend for refusal.  The matters identified by it are founded on the Council’s opposition to the matters raised by Middle Pond Pty Ltd.
  2. [212]
    I accept that each of these matters is a relevant matter for s 45(5)(b) of the Planning Act 2016.  The real issue is whether they are each established on the evidence and what weight should be attributed to each of them.
  3. [213]
    With respect to the contention in paragraph 12 of the Appellant’s Particularised List of the Reasons for Approval, Middle Pond Pty Ltd has not persuaded me that the avoidance of use of industrial land for a self-storage facility is a matter that supports approval for the reasons identified in paragraphs [195] to [199] above.
  4. [214]
    I have already addressed the substance of the contention in paragraph 14 of the Appellant’s Particularised List of Reasons for Approval.  For reasons provided above, Middle Pond Pty Ltd has not persuaded me that the proposed self-storage facility is compatible with the character and amenity of the surrounding area.
  5. [215]
    The remaining matters raised by the parties can be dealt with by addressing the issue of the need for the proposed self-storage facility.

Is there a need for the proposed self-storage facility?

  1. [216]
    Middle Pond Pty Ltd has not revised the Appellant’s Particularised List of Reasons for Approval dated 22 December 2023.  Despite that, by the end of the hearing, its case with respect to need materially changed. 
  2. [217]
    The change is informed by three recent decisions by the Council.  Relevantly:
    1. on 21 August 2024, the Council approved a code assessable development application and gave a development permit for a material change of use for a self-storage facility in the Low impact industry zone at 17 Carlo Drive, Cannonvale;
    2. on 26 August 2024, the Council approved a code assessable development application and gave a development permit for a material change of use for a self-storage facility in the Low impact industry zone at 3 – 5 Loop Road, Jubilee Pocket; and
    3. on 2 October 2024, the Council approved a code assessable development application and gave a development permit for a material change of use for a self-storage facility in the Low impact industry zone at 6, 8 and 10 Carlo Drive, Cannonvale.
  3. [218]
    Despite these recent approvals, Middle Pond Pty Ltd still contends that there is a need for the proposed self-storage facility, or at least sufficient need to warrant a partial approval. 
  4. [219]
    The Council contends that there is no relevant need for the proposed self-storage facility.
  5. [220]
    Before turning to consider the evidence, and the case now advanced by Middle Pond Pty Ltd, it is useful to record some general principles that inform and guide an assessment of need.

What are the general principles that inform and guide an assessment of need?

  1. [221]
    The existence of a need for the proposed self-storage facility is relevant under s 45(5)(b) of the Planning Act 2016.
  2. [222]
    The general principles that inform and guide an assessment of need are well-settled.  Many of them are conveniently summarised in Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, at 417-20 [20]–[30].  His Honour Judge Wilson SC (as His Honour then was) stated at 418 [21]:

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

  1. [223]
    Need, in the town planning sense, does not mean a pressing need or a critical need or even a widespread desire but relates to the well-being of the community: Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 417-8 [20] citing Watts & Hughes Properties Pty Ltd v Brisbane City Council [1998] QPELR 273, 275 and Cut Price Stores Retailers v Caboolture Shire Council (1984) QPLR 126, 131.   
  2. [224]
    Planning need is not limited to the need for the proposed development on the site in question and no other site.  The existence of other sites that permit the use that may address the need may be a relevant matter, depending on all the circumstances of the case: Abeleda & Anor v Brisbane City Council & Anor [2022] QCA 168; [2021] QPELR 1003, 1018 [51]. 
  3. [225]
    It must be remembered that these are general statements of principle that inform and guide an assessment of need.  They are not a checklist that must be established in every case.  Rather, the assessment of need in this context is a flexible process.  This has long been recognised.  It was again confirmed by the Court of Appeal recently in Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168; (2022) 253 LGERA 171, 181 [30]. 
  4. [226]
    Need is a relative concept to be given a greater or lesser weight depending on all the circumstances that the decision maker is to consider: Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [20].  At the end of the day, whether there is a need for development is a question of fact: Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39, [53]. 

Is there a latent unsatisfied demand for self-storage facilities that cannot be adequately met?

  1. [227]
    The need experts undertook a supply and demand assessment to ascertain whether there was a latent unsatisfied demand for self-storage facilities. 
  2. [228]
    There was agreement between the experts about many integers that inform their respective assessments.  I have already identified some of them in paragraphs [144], [168], [169], [170], [175], [176] and [177] above.
  3. [229]
    The respective assessments of demand prepared by the need experts differ in three respects.  First, Mr Norling has assumed the demand rate for self-storage facilities in the catchment will continue to increase at 0.5 per cent per annum over the projection period whereas Mr Ganly has not.  Second, Mr Norling applies an average occupancy rate of 85 per cent whereas Mr Ganly considers that a rate of 90 per cent is more appropriate.  Third, Mr Norling relies on waiting list numbers at other storage facilities much more heavily than Mr Ganly.
  4. [230]
    Although I have reservations about Mr Norling’s assumptions, particularly with respect to waiting list numbers, it is unnecessary to resolve the differences in this case.  It does not affect whether there is a latent unsatisfied demand. 
  5. [231]
    The assessments of both Mr Norling and Mr Ganly demonstrate that there is presently a latent unsatisfied demand and that the demand is more than adequately addressed by the three recent self-storage facility approvals. 
  6. [232]
    The following table encapsulates the end results of Mr Ganly’s supply and demand assessment of the need for storage facility units:

 

2023

2026

2031

2036

2041

2046

Required supply at 90% occupancy rate

733

780

850

917

981

1,042

Supply

634

1,040

1,040

1,040

1,040

1,040

Shortfall in Supply (-) / Excess Supply (+)

-99

+260

+190

+123

+59

-2

  1. [233]
    The increase in supply from 634 units to 1,040 units in 2026 reflects Mr Ganly’s assumption that the three recently approved self-storage facilities will each open by 2026.
  2. [234]
    Based on his analysis, Mr Ganly opines that the catchment area will not return to a balanced situation, i.e., where there is neither shortfall nor excess supply, until 2046.  He says that it is now apparent that the catchment area will be oversupplied with 260 self storage units in 2026 without construction of stage 1 of the proposed self-storage facility on the subject land.  In Mr Ganly’s opinion, the 230 units in stage 1 of the proposed self-storage facility would not be supportable until 2065.
  3. [235]
    Mr Norling’s assessment, while different, reveals similar results.  The following table details his findings:

 

2023

2026

2031

2036

2041

2046

Required supply at 85% occupancy rate

858

926

1035

1146

1255

1367

Supply

634

1,040

1,040

1,040

1,040

1,040

Shortfall in Supply (-) / Excess Supply (+)

-224

+114

+5

-106

-215

-327

  1. [236]
    Like Mr Ganly, in this assessment, Mr Norling assumes that the three recently approved self-storage facilities will open by 2026.  On Mr Norling’s analysis, the recent approvals will result in a surplus of supply for some time, and a balance between supply and demand will not be reached until about 2031.  According to Mr Norling, thereafter, the shortfall is expected to increase after 2031, but the growth in demand will not fully support the first stage of the proposed self-storage facility until about 2042 and will not fully support stage 2 until about 2053. 
  2. [237]
    Based on this assessment, Mr Norling originally described the level of economic need for the proposal as being low, but in his oral evidence he described the need as non-existent for several years.
  3. [238]
    Having regard to the supply and demand assessment undertaken by the experts, I am not persuaded that there is a latent unsatisfied demand that cannot be adequately met by the Planning Scheme.

Is there other evidence that demonstrates a need for the proposed self-storage facility?

  1. [239]
    Middle Pond Pty Ltd accepts the cogency of the supply and demand assessment undertaken by Mr Norling but says that the proposed self-storage facility should be approved in full or in part for seven reasons.
  1. [240]
    First, need is not a relevant assessment benchmark.  This is undisputed.  It does not materially advance the case for approval given Middle Pond Pty Ltd relies on need as a relevant matter that supports approval.  The real issue is whether the evidence demonstrates a need for the proposed self-storage facility in whole or in part.
  1. [241]
    Second, there is an existing quantitative need for self-storage, with an undersupply of 224 units in 2023 on Mr Norling’s analysis.  Considered in isolation, this lends some support to an approval.  However, the current, latent unsatisfied demand loses considerable force as a basis for approval when one considers that, even if approved, the proposed self-storage facility would not commence operation immediately.  It would be unlikely to commence operation until 2026, by which stage the need experts opine the current shortfall in demand will be more than adequately addressed by the three recent approvals.  Those recent approvals, together with the eleven facilities already in operation in the catchment area, demonstrate that the Planning Scheme continues to make adequate provision for self-storage facilities in the catchment. 
  2. [242]
    Third, Middle Pond Pty Ltd says that there is no certainty that the competing developments will proceed to construction and, if so, that all would be open for trading by 2026.  In this respect, Middle Pond Pty Ltd relies on the evidence of Mr Norling that the construction industry continues to face labour and material shortages, price escalations and difficulties for developers in obtaining acceptable tenders from construction companies. 
  3. [243]
    Mr Norling’s evidence in that respect was highly generalised.  It was not underpinned by any investigations about the state of the construction industry in the Whitsunday Region.  To the extent that it has force, it is a consideration that also applies to the proposed self-storage facility. 
  4. [244]
    Further, the persuasiveness of this consideration is undermined by Mr Norling’s agreement that his analysis, set out in paragraph [235] above, is the appropriate basis for analysing need.  His analysis assumes that the three recent approvals will be operational by 2026.  This is an assumption that Mr Norling clearly accepts as reasonable, despite his evidence about the construction industry.  Its reasonableness is supported by the fact that three separate entities have spent money pursuing a development application for self-storage facilities in the last few months.  This supports a reasonable inference that there is confidence that the facilities can be delivered. 
  5. [245]
    In those circumstances, I am not persuaded, to the requisite standard, to afford considerable weight to this consideration. 
  6. [246]
    The fourth reason advanced by Middle Pond Pty Ltd relates to the qualitative benefits provided by the proposed self-storage facilities.  Middle Pond Pty Ltd says the supply and demand assessment undertaken by the need experts does not take account of the qualitative differences between different facilities.  It contends that the proposed self-storage facility is consistent with modern community preferences and provides a superior standard of facility and service to those that presently exist within the catchment area.  As such, Middle Pond Pty Ltd says that there remains a strong community need for the proposed self-storage facility that is not adequately accommodated by the Planning Scheme.
  7. [247]
    In support of these contentions, Middle Pond Pty Ltd relies on the evidence of Mr Norling and Mr Parker. 
  8. [248]
    Mr Norling opines that the proposed self-storage facility would provide a standard of facility and service that is superior to all the existing self-storage facilities in the catchment area.  He says that it will provide an improved level of choice.  He also says that the subject land offers a more accessible location for most residents of the catchment area.  He considers Jubilee Pocket to be less accessible, particularly when traffic through Airlie Beach is heavy.  Mr Norling also opines that the proposed self-storage facility would provide an improved amenity for most customers because it is not located within an industrial area where customers would have to negotiate around large trucks and navigate potentially difficult access arrangements.
  9. [249]
    In his statement, Mr Parker identifies those features of the proposed self-storage facility that he considers set the proposed self-storage facility apart from its competitors.  The relevant features are:
    1. a wide range of storage unit sizes and hardstand storage options;
    2. drive-up access for all facilities;
    3. free use of a van, utility vehicle and trailer for customers to move goods;
    4. pest control;
    5. weekly cleaning;
    6. CCTV surveillance;
    7. security monitoring;
    8. PIN access;
    9. onsite manager;
    10. goods lifts;
    11. forklift onsite, which can be operated by the Storage Choice onsite manager at the customer’s request;
    12. pallet jacks and flatbed trolleys;
    13. industrial bin;
    14. packaging supplies available for purchase, including boxes, wine cartons, tape and tape dispensers, packing paper and bubble wrap, plastic covers for furniture and other household items, marking pens, packing knives, truck ties, and felt wrap;
    15. monthly leases;
    16. long term discounts; and
    17. a best price guarantee. 
  10. [250]
    Mr Parker initially says all these features set the proposed self-storage facility apart from its competitors.  Later in his statement, Mr Parker says that the distinguishing features are:
    1. free use of a van, utility vehicle and trailer for customers to move goods;
    2. an onsite forklift, which can be operated by onsite managers; and
    3. packaging supplies available for purchase. 
  11. [251]
    I have reservations about the extent of community benefit provided by those matters identified by Mr Norling and Mr Parker as:
    1. the aerial photographs and street view images of the Carlo Drive, Cannonvale locations demonstrate that the recently approved facilities in Carlo Drive will be co-located with a range of facilities, including a school and a shopping centre.  As such, they will be easily accessed and in an area that the community visits frequently;
    2. during cross-examination, Mr Forsyth accepted that Carlo Drive and Loop Road are easy to access and are not intimidating areas for a driver;
    3. Mr Ganly opines that although the proposed self-storage facility is conveniently accessed given its location on Shute Harbour Road, the added convenience offered by that location is marginal, particularly when the facilities are only accessed infrequently;
    4. on my review of the maps of the catchment area, there would be relatively little difference in the accessibility of the existing and approved self-storage facilities compared to the proposed access to the subject land;
    5. Mr Parker provides no details about the terms of the best price guarantee, nor was Middle Pond Pty Ltd able to explain how that feature could lawfully be conditioned or enforced; and
    6. Middle Pond Pty Ltd was unable to explain how the free use of a van, utility vehicle and trailer, on-site forklift and assistance from an on-site manager during operating hours could be assured or enforced.
  12. [252]
    Despite these reservations, for the purpose of my assessment I am prepared to assume that the proposed self-storage facility will offer all those community benefits asserted by Middle Pond Pty Ltd.
  13. [253]
    Fifth, Middle Pond Pty Ltd says that there is an element of unfairness to it by reason of the effluxion of time since its development application was properly made.  It says that the Court is entitled to consider the unfairness when exercising its discretion.  Middle Pond Pty Ltd’s submission is difficult to follow.  The cases cited by Middle Pond Pty Ltd to support its submission do not assist.  They relate to the weight to be attributed to amendments to the relevant planning instruments.  No party asserts that weight should be afforded to amendments to the Planning Scheme in this case.  In any event, the effluxion of time is a product of Middle Pond Pty Ltd’s election to pursue a development application on land that is not appropriately zoned for the use sought.
  14. [254]
    Sixth, Middle Pond Pty Ltd says that there is insufficient vacant and appropriately zoned land within the catchment area to accommodate the proposed self-storage facility.  It says that the reality is far from the Council’s case that any demand is eminently capable of being met by the Planning Scheme. 
  15. [255]
    I am not persuaded that this is a matter that lends meaningful support to the case for approval.  It is premised on an assumption that there is an unsatisfied demand for the extent of self-storage facilities proposed such that there is a need to accommodate a facility of the size proposed.  This is not borne out on the evidence. 
  16. [256]
    Finally, Middle Pond Pty Ltd says that approval of the proposed self-storage facility would not have an adverse impact on the availability of land in the Low-medium density residential zone.  In this respect, Middle Pond Pty Ltd relies on the evidence of Mr Norling that the proposed self-storage facility would occupy less than one hectare of land in the Low-medium density residential zone, which represents 0.7 per cent of the vacant land in that zone in the catchment area.  
  17. [257]
    The Council says that although the quantum of land that would be lost is small, the loss is important and would have a relevant impact on the Planning Scheme’s ability to accommodate residential development.  The Council relies on evidence of Mr Ganly and Mr Buckley in support of its submission.
  1. [258]
    Mr Ganly opines that the vacant land in the Low-medium density residential zone in Cannonvale represents a key source of the supply of multiple dwellings.  He says that the vacant land is along Shute Harbour Road, where it is close to commercial and community facilities and has access to local bus services.  He opines that multiple dwelling development on sites such as the subject land represent an important opportunity for more affordable housing product to be introduced into the market.  He considers this to be an important consideration in the current climate where there is declining affordability and increased rental stress.
  2. [259]
    Mr Buckley says that it is easy to appreciate that the subject land would play a role in providing housing choice for the local community over time given its size, street frontages and amenity.  He explains that there is always a balance inherent in the allocation of zones in a planning scheme.  He says the balance struck by the Planning Scheme is critical in this locality because the supply of potentially developable land is limited.  This is because it is not a location where there is plentiful flat land or where there are ample opportunities for new development.  To the contrary, the locality generally is heavily constrained.  The corridor from Cannonvale through to Jubilee Pocket is constrained topographically. 
  1. [260]
    The evidence of Mr Ganly and Mr Buckley presents a compelling counterpoint to the evidence of Mr Norling.  On balance, I am not persuaded that the loss of the subject land adds meaningful weight to the case for approval or refusal.

Conclusion regarding need

  1. [261]
    For the reasons provided above, I am comfortably satisfied that:
    1. at present, there is a presently unmet demand for further self-storage facilities; and
    2. the presently unmet demand can be appropriately met by the three recent self-storage facility approvals.
  2. [262]
    That said, I accept that the well-being of the community would be enhanced by access to a self-storage facility with the benefits offered by the proposed self-storage facility.

Should the proposed self-storage facility be approved in the exercise of the discretion?

  1. [263]
    There are five propositions that are fundamental to Middle Pond Pty Ltd’s case for approval, namely:
    1. the design of the proposed self-storage facility is appropriate in that it is compatible with the scale and character of surrounding development;
    2. the proposed self-storage facility is of a commercial nature; 
    3. the proposed self-storage facility will function in the manner intended for non-residential uses in the Low-medium density residential zone;
    4. the proposed self-storage facility performs favourably in terms of location and accessibility requirements; and
    5. there is a need for the proposed self-storage facility because the well-being of the community would be enhanced by access to it given its offering of a superior standard of facility and service that is consistent with modern community preferences.
  1. [264]
    Middle Pond Pty Ltd’s case was advanced on the basis that the Court would accept all these propositions and that, collectively, they justify approval of the proposed self-storage facility, or at least part of it (being stage 1 in proposed Building A).
  2. [265]
    As would be evident from my findings above, Middle Pond Pty Ltd has demonstrated that the proposed self-storage facility is of a commercial nature and that it performs favourably when assessed against the requirements in the Low-medium density residential zone code in terms of its accessibility. 
  3. [266]
    In terms of need, there is no latent unsatisfied demand for further self-storage facilities that cannot be adequately met by existing approvals and the Planning Scheme.  That said, the proposed self-storage facility would offer a superior standard of facility and service to that provided by the existing and approved developments. 
  4. [267]
    Those matters lend support to the case for approval.
  1. [268]
    Against those matters, I must weigh the non-compliances with the Planning Scheme.  The non-compliances are occasioned by the inappropriate scale of the proposed self-storage facility and its associated inappropriate visual amenity and character impacts.
  2. [269]
    On balance, I am not persuaded that all the matters that favour approval that I have identified throughout these reasons, taken collectively, are sufficient to provide a sound town planning basis to depart from the Planning Scheme.  They do not render the impacts on amenity and character acceptable.  Moreover, there is no sound town planning reason to not give the Planning Scheme its full force and effect insofar as it seeks to protect residential character and amenity. 
  3. [270]
    Although the scale of the facility, and the consequential extent of the adverse character and amenity impacts, would be lessened if I only approved stage 1 and the use of proposed Building A, I am not persuaded that outcome is appropriate either.  Even considered in isolation, proposed Building A is of an inappropriate scale and would occasion unacceptable visual amenity and character impacts such that approval of that part of the development application would result in non-compliance with the assessment benchmarks in ss 6.2.10.2(1), (2), (3)(a), (d), (h)(iv) and (i) of the Low-medium density residential zone code and the purpose in s 9.3.8.2(1), the overall outcome in s 9.3.8.2(2)(a) and performance outcome PO1 of the Industry activities code.  The non-compliances with the assessment benchmarks of the Low-medium density residential zone code are serious and represent a compelling reason not to grant a partial approval.

Conclusion

  1. [271]
    Middle Pond Pty Ltd has not discharged the onus of demonstrating that the Council’s decision to refuse that part of the development application that sought a development permit for a material change of use should be replaced with an approval.  As such, it is appropriate to dismiss that part of the appeal that relates to that part of the Council’s decision and to refuse that part of the development application that seeks a development permit for a material change of use.
  2. [272]
    That said, as I have already mentioned, this appeal also relates to conditions imposed on the development permit for the proposed reconfiguration.  Middle Pond Pty Ltd has not advanced that part of the appeal.  In the circumstances, this matter will be listed for further mention before the judge in the applications list for orders that facilitate the hearing of the balance of the appeal.  The appeal will be adjourned to 19 November 2024 for that purpose.

Footnotes

[1] Macquarie Dictionary Online, 2023, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au.

Close

Editorial Notes

  • Published Case Name:

    Middle Pond Pty Ltd v Whitsunday Regional Council & Ors

  • Shortened Case Name:

    Middle Pond Pty Ltd v Whitsunday Regional Council

  • MNC:

    [2024] QPEC 45

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    07 Nov 2024

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
AAD Design Pty Ltd v Brisbane City Council[2013] 1 Qd R 1; [2012] QCA 44
4 citations
Jump To
Cite 1 - [2012] QCA 44
Cite 2 - [2012] QCA 44
Cite 3 - [2013] 1 Qd R 1
Cite 4 - [2013] 1 Qd R 1
Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003
3 citations
Jump To
Cite 1 - [2021] QPELR 1003
Cite 2 - [2021] QPELR 1003
Cite 3 - [2021] QPELR 1003
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
2 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Andema Pty Ltd v Noosa Shire Council [2020] QPEC 46
2 citations
Jump To
Cite 1 - [2020] QPEC 46
Cite 2 - [2020] QPEC 46
Andema Pty Ltd v Noosa Shire Council [2021] QPELR 783
2 citations
Jump To
Cite 1 - [2021] QPELR 783
Cite 2 - [2021] QPELR 783
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
3 citations
Jump To
Cite 1 - [2019] QPEC 16
Cite 2 - [2019] QPEC 16
Cite 3 - [2019] QPEC 16
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
3 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Cite 3 - [2019] QPELR 793
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
2 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
2 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
Clarry v Brisbane City Council [2024] QCA 39
2 citations
Jump To
Cite 1 - [2024] QCA 39
Cite 2 - [2024] QCA 39
Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126
1 citation
Jump To
Cite 1 - (1984) QPLR 126
Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116
2 citations
Jump To
Cite 1 - [2001] QCA 116
Cite 2 - [2001] QCA 116
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
2 citations
Jump To
Cite 1 - (2001) 116 LGERA 350
Cite 2 - (2001) 116 LGERA 350
Isgro v Gold Coast City Council [2003] QPEC 2
3 citations
Jump To
Cite 1 - [2003] QPEC 2
Cite 2 - [2003] QPEC 2
Cite 3 - [2003] QPEC 2
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
Jensen v Brisbane City Council & Anor [2022] QPELR 963
2 citations
Jump To
Cite 1 - [2022] QPELR 963
Cite 2 - [2022] QPELR 963
K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1
1 citation
Jump To
Cite 1 - [2011] QPEC 1
K Page Main Beach Pty Ltd v Gold Coast City Council & Ors (2011) 180 LGERA 278
1 citation
Jump To
Cite 1 - (2011) 180 LGERA 278
Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPEC 25
1 citation
Jump To
Cite 1 - [2017] QPEC 25
Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPELR 628
1 citation
Jump To
Cite 1 - [2017] QPELR 628
Lake Maroona v Gladstone Regional Council (2017) 224 LGERA 166
1 citation
Jump To
Cite 1 - (2017) 224 LGERA 166
McKay v Brisbane City Council [2021] QPEC 42
2 citations
Jump To
Cite 1 - [2021] QPEC 42
Cite 2 - [2021] QPEC 42
Murphy v Moreton Bay Regional Council [2019] QPEC 46
2 citations
Jump To
Cite 1 - [2019] QPEC 46
Cite 2 - [2019] QPEC 46
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
2 citations
Jump To
Cite 1 - [2020] QPELR 328
Cite 2 - [2020] QPELR 328
Navara Back Right Wheel Pty Ltd v Logan City Council [2019] QPEC 67
2 citations
Jump To
Cite 1 - [2019] QPEC 67
Cite 2 - [2019] QPEC 67
Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2020] QPELR 899
2 citations
Jump To
Cite 1 - [2020] QPELR 899
Cite 2 - [2020] QPELR 899
North Harbour Holdings Pty Ltd v Moreton Bay Regional Council [2024] QPEC 21
2 citations
Jump To
Cite 1 - [2024] QPEC 21
Cite 2 - [2024] QPEC 21
Page Main Beach Pty Ltd v Gold Coast City Council (2011) QPELR 406
1 citation
Jump To
Cite 1 - (2011) QPELR 406
Parmac Investments Pty Ltd v Brisbane City Council [2018] QPEC 32
1 citation
Jump To
Cite 1 - [2018] QPEC 32
Parmac Investments Pty Ltd v Brisbane City Council & Ano r [2018] QPELR 1026
1 citation
Jump To
Cite 1 - [2018] QPELR 1026
Purcell Family v Gold Coast City Council & Ors (2004) QPELR 521
2 citations
Jump To
Cite 1 - (2004) QPELR 521
Cite 2 - (2004) QPELR 521
Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2021] QPEC 29
2 citations
Jump To
Cite 1 - [2021] QPEC 29
Cite 2 - [2021] QPEC 29
Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2022] QPELR 608
2 citations
Jump To
Cite 1 - [2022] QPELR 608
Cite 2 - [2022] QPELR 608
Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council [2005] QPEC 70
2 citations
Jump To
Cite 1 - [2005] QPEC 70
Cite 2 - [2005] QPEC 70
Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85
2 citations
Jump To
Cite 1 - [2006] QPELR 85
Cite 2 - [2006] QPELR 85
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
3 citations
Jump To
Cite 1 - [2021] QCA 95
Cite 2 - [2021] QCA 95
Cite 3 - [2021] QCA 95
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
3 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Cite 3 - [2022] QPELR 309
Watts & Hughes Properties Pty Ltd v BCC (1998) QPELR 273
1 citation
Jump To
Cite 1 - (1998) QPELR 273
Wilhelm v Logan City Council [2020] QCA 273
2 citations
Jump To
Cite 1 - [2020] QCA 273
Cite 2 - [2020] QCA 273
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
2 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168
3 citations
Jump To
Cite 1 - [2022] QCA 168
Cite 2 - [2022] QCA 168
Cite 3 - [2022] QCA 168
Yorkeys Knob BP Pty Ltd v Cairns Regional Council (2022) 253 LGERA 171
2 citations
Jump To
Cite 1 - (2022) 253 LGERA 171
Cite 2 - (2022) 253 LGERA 171
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
2 citations
Jump To
Cite 1 - [2014] QCA 147
Cite 2 - [2014] QCA 147
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
2 citations
Jump To
Cite 1 - [2014] QPELR 686
Cite 2 - [2014] QPELR 686

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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