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ML Parkway Pty Ltd v Townsville City Council[2024] QPEC 53

ML Parkway Pty Ltd v Townsville City Council[2024] QPEC 53

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

ML Parkway Pty Ltd v Townsville City Council [2024] QPEC 53

PARTIES:

ML PARKWAY PTY LTD (ACN 664 118 209)

(appellant)

v

TOWNSVILLE CITY COUNCIL

(respondent)

FILE NO/S:

1772 of 2023

DIVISION:

Planning and Environment

PROCEEDING:

Appeal against refusal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

20 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23, 24 & 25 October 2024

JUDGE:

Williamson KC DCJ

ORDER:

The appeal is returned to the applications list for review on 30 January 2025.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where appellant seeks approval to start a self-storage facility on land in the Low density residential zone – whether the proposed built form is of a house compatible scale – whether the proposed built form is consistent with local streetscape character – whether the proposed use will primarily support the day-to-day needs of the immediate residential community – whether the proposed development will unreasonably detract from the residential amenity of the area – whether the development is better located in another zone – whether the development complies with the respondent’s planning scheme – whether an approval should be granted in the face of non-compliance with the respondent’s planning scheme.

CASES:

Abeleda v Brisbane City Council (2020) 6 QR 441

Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987

Grosser v Gold Coast City Council (2001) 117 LGERA 153

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

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116

McEnearney v Council of the City of Gold Coast [2024] QCA 246

Self Storage Helensvale Holdings Pty Ltd v Council of the City of Gold Coast [2022] QPELR 608

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

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309

Watts & Hughes Properties Pty Ltd v Brisbane City Council [1998] QPELR 273

Wilhelm v Logan City Council & Ors [2021] QPELR 1321

LEGISLATION:

Planning Act 2016, ss 45, 59 and 60

Planning Regulation 2017, s 31

Planning and Environment Court Act 2016, ss 43, 45 and 46

COUNSEL:

Mr M Batty with Mr L Walker for the appellant

Mr K Wylie with Ms H Stephanos for the respondent

SOLICITORS:

Connor O'Meara for the appellant

Townsville City Council, Legal Services for the respondent

Introduction

  1. [1]
    This is an appeal against Council’s decision to refuse a development application seeking approval to start a new self-storage facility on land in the Low density residential zone. The refusal is contrary to an officer’s recommendation.
  1. [2]
    The disputed issues in the appeal focus on provisions of Council’s planning scheme particular to the Low density residential zone. A review of this part of the planning scheme exposes that non-residential uses are anticipated in the zone, but only when specific planning controls going to the scale, form and function of such uses are met. The appellant contends the proposed development complies with the planning scheme in this respect, or alternatively, contends there are good town planning reasons to not rigidly apply these controls in the circumstances of this case. Council joins issue with these contentions.
  1. [3]
    The appeal is a hearing anew: ss 43 and 46(1) of the Planning & Environment Court Act 2016.
  1. [4]
    It is for the appellant to establish the appeal should be upheld: s 45 of the Planning & Environment Court Act 2016.

The site and locality

  1. [5]
    Bushland Beach is a northern beachside suburb of Townsville. It is separated from the main urban area by low lying land affected by the Bohle River. Access to the suburb is primarily obtained via the Bruce Highway (east-west) and Mount Low Parkway (north-south). Bushland Beach is physically separated from the suburb of Mount Low, which is located to the south. The physical separation between the suburbs is due to a combination of natural features (vegetation and landform). Secondary access to Bushland Beach is available via North Shore Boulevard. This road connects to the Bruce Highway and travels through a master planned community to the south-east of Bushland Beach. The Boulevard connects to Mount Low Parkway south of Bushland Beach.
  1. [6]
    The site the subject of the appeal is located at Goicoechea Drive, Bushland Beach (the site). It is a good candidate for non-residential development in the Low density residential zone having regard to a combination of matters, namely the site:
  1. is vacant and regular in shape;
  1. has a gentle and barely noticeable slope from south-west to north-east;
  1. has an area of 8,130 m2, which is substantially greater than the minimum lot size anticipated for the Low density residential zone (400 m2) and the average lot size in and around the site (ranging from 715 m2 to 1,000 m2);
  1. is free from constraints that limit the available footprint for urban development (such as engineering, flooding/drainage, ecology and vegetation constraints);
  1. has two road frontages – 60 metres to Goicoechea Drive and 80 metres to Mount Low Parkway;
  1. adjoins a 4,000 m2 parcel to the north that is included in the Low density residential zone and improved with a non-residential use; and
  1. shares its southern boundary with low density residential development that, by reason of the layout of the road network, is orientated such as to turn its back to the site and face Bilbao Place to the south.
  1. [7]
    The non-residential use referred to in subparagraph (f) is a large child care centre. Attempts have been made to design the built form of this centre to include elements found in nearby dwelling houses. The scale of the use is, however, substantial. Photographic material before the Court clearly shows the built form and scale of the use is substantially greater than, and incompatible with, the scale of a house. That the use is non-residential in nature is confirmed by the existence of commercial signage and the substantial setback of the built form to Goicoechea Drive. The setback is out of character with surrounding residential uses and has been infilled with an exposed at-grade carpark. The carpark is a hard concrete surface with line marking denoting carparking bays. The hard stand area is commensurate in size (840 m2) with lots located to the south of the site (Ex.4, Figure 5 and Figures NM3 to NM5). Taken as a whole, the child care centre sits uncomfortably with the proposition that the northern end of Goicoechea Drive is low density residential in character. The character of this part of the street is more accurately described as mixed, transitioning from non-residential uses in the north (clustered around an existing roundabout) to low density residential development to the south and west.
  1. [8]
    The site is situated near a ‘major focal or landmark intersection’: Ex.6, para 31. The intersection is controlled by a roundabout. The four legs of the roundabout comprise Mount Low Parkway (north and south), Lynwood Avenue (west) and Lionel Turner Drive (east). The north-eastern corner of the site is located less than 50 metres south of the roundabout (on its south-western leg), where there is a cluster of non-residential uses located on all four quadrants. The uses comprise a mix of community, retail and neighbourhood services.
  1. [9]
    The north-east quadrant of the roundabout is developed with, and zoned for, a Local centre in Council’s planning scheme centre hierarchy. It is known as Bushland Beach Plaza and anchored by a full-line Coles supermarket. The built form is typical of a supermarket based centre, presenting as a series of large boxes. This built form, in conjunction with a landscaped setback, sleeves the western side of the centre, which has frontage to Mount Low Parkway. A large at-grade carpark is located to the east of the built form.
  1. [10]
    On the south-east quadrant of the roundabout is a large park included in the Sport and recreation zone. Based on aerial photography with a scale bar, the overall dimensions of the park are in the order of 500 metres long (east-west) by 300 metres wide (north-south). It extends a considerable distance to the east and south of the site. The park facilities comprise (moving west to east) an at-grade carpark, three football fields (and associated club facilities), a cricket field and a landscaped buffer area to Lionel Turner Drive.
  1. [11]
    The south-west quadrant of the roundabout comprises the site and adjoining child care centre. Both sites are included in the Low density residential zone. In character terms they can be distinguished from residential development located further to the south and west. Both sites are considerably larger than a single residential allotment. A further point of distinction can be identified by reference to the orientation of residential development to the immediate south of the site. As I have already observed, residential lots to the south turn their back to the site. They are orientated towards Bilbao Place to the south. This orientation creates a bookend effect for the residential development. The site and adjoining land to the north sit between the roundabout and the bookend. In visual terms, this has the consequence that the site and adjoining child care centre share a stronger visual connection to non-residential development clustered around the roundabout.
  1. [12]
    The north-west quadrant of the roundabout is included in the Low density residential zone. Within the life of its current planning scheme, Council approved a 7-Eleven service station and carwash on this land. The former has commenced operation. The latter is under construction. Both facilities are undoubtedly non-residential uses. Neither are of a house compatible scale. Nor do they contribute to, or maintain, a high level of amenity or character intended for the Low density residential zone. It is unsurprising in this context that Mr Wylie conceded the zoning of this land has been overtaken by events. I accept that concession.
  1. [13]
    To round out the examination of the locality, it is necessary to look to the south and west of the site. This area is included in the Low density residential zone and, as the existing pattern of subdivision exposes, is developed for these purposes. Detached dwellings on relatively large lots (>600 m2) is the dominant land use. Houses in the area are modern in appearance and predominantly single storey structures. The elevation of land increases as one moves further south and west of the site. Some houses in this location have an attractive aspect towards Halifax Bay. The site can be seen, to varying degrees, in the foreground of this aspect.
  1. [14]
    There are three dwellings directly across Goicoechea Drive from the site. The built form is single storey. In streetscape terms, the dwellings are uniformly setback from the front boundary with front yards devoid of vegetation. The garage for each house is closer to the street than the balance of built form and, as a consequence, presents a dominant visual element to the street: Ex 4, Figure 6. The level of residential amenity enjoyed by these properties is impacted by the existence of the non-residential uses discussed in paragraphs [11] and [12].

The proposed development

  1. [15]
    The proposed development was described in the appellant’s Part A written submissions (Ex.1) in this way (footnotes omitted):
  1. “22.
    The Development Application seeks approval for a site office, along with 135 self-storage units contained in 22 separate groupings of single storey buildings (none of which has a wall longer than 12 metres) distributed in six parallel columns, separated by trafficable driveways and with a walkable break between each row. None of the proposed buildings exceed 144m2 and they range between 3.5 metres and 5.6 metres in height, well below the 8.5 metre or two storey height prescribed by the acceptable outcomes of the Low density residential zone code.
  1. The proposed development will have a gross floor area (GFA) of 2,788m2 along with 34 per cent site cover and will involve:
  1. a mix of storage bays, with floor areas between 9m2 and 72m2;
  1. eight open-air bays, with floor areas between 24m2 and 40m2;
  1. a singular vehicular entry point from Goicoechea Drive, achieved by way of a nine metre wide driveway with a 23.6 metre wide crossover (including splays);
  1. 1314m2 of perimeter landscaping including buffers to each boundary, comprising some 16.6 per cent of the site; and
  1. acoustic fencing to the southern boundary and acoustic barriers to the east and west.
  1. The proposed development represents a modern self-storage facility (as is agreed between the need experts) and will target a range of businesses and individuals including tradespeople, residential customers (including those who wish to store caravans or other vehicles) and users of the nearby Bohle River Boat Ramp.
  1. The Appellant has made a deliberate attempt to maximise the convenience of users of the proposed development (at the expense of yield) by adopting a “ranch” style to allow vehicles to directly access storage units at grade. Other operational features of the proposed facility include:
  1. 24-hour CCTV monitoring;
  1. access between 6.00am and 9.00pm by way of pin code or a mobile phone “app”.”
  1. [16]
    The proposed development is depicted in a number of photomontages: Ex.2, pp. 6-16. I am satisfied the photomontages accurately depict the development after the proposed landscaping has been given time to mature, being a period of about 5 years. The photomontages demonstrate there is limited visibility of the proposed development. They establish there is no vantage point from which the full scale of the use, and built form, can be appreciated. The parts of the development that are visible from Goicoechea Drive will be limited to the entry features (driveway, gate, office building and signage), the upper walls and roof gables of the first row of storage sheds and a partial view of the second row of storage sheds. These glimpses will be seen in the context discussed in paragraphs [7] to [14]. The context is removed from a pristine Low density residential environment.
  1. [17]
    The photomontages indicate the proposed development will be partially visible at elevated viewing positions to the south. It is, however, difficult to isolate the proposed development in these views. It is lost in a sea of white rooves, including the roof of the child care centre on the adjoining land to the north. The roof of the child care centre is more dominant in the photomontages given, unlike the proposed development, it is appreciably larger in area compared to smaller rooves of residential dwellings in the foreground of the photomontage. Further, it can also be observed that the elevated views of the site do not suggest the full scale of the built form proposed on the site, including hardstand areas, will be visible, let alone out of place. This is particularly so when juxtaposed with the visual impact of the existing service station and child care centre to the north.
  1. [18]
    To ensure the development outcome depicted in the photomontages is achieved within 5 years of commencing the use, Mr Powell, the appellant’s visual amenity expert, recommended that the trees (as distinct from shrubs or groundcover) planted to screen the development have an initial pot size of 100 litres. While this is not critical to the visual acceptability of the proposal, the development will be assessed against the planning scheme on the footing that this requirement would form part of the conditions of approval. Such a condition gives the Court further comfort that the screen planting depicted in the photomontages will be achieved at the 5 year mark.

Statutory assessment framework

  1. [19]
    The statutory assessment framework for this appeal is prescribed by the Planning Act 2016 (the Act). The Act requires the development application be assessed in accordance with s 45(5) and decided in accordance with ss 59(3) and 60.
  1. [20]
    Section 45(5)(a)(i) calls for an assessment, to the extent relevant, against assessment benchmarks in a categorising instrument. Section 45(7) confirms this is a reference to an assessment benchmark in effect when the development application was properly made. Version 2022/01 of Council’s planning scheme, namely Townsville City Plan (the planning scheme) was in effect at this time: Ex.7, para 1.
  1. [21]
    Section 45(5)(a)(ii) requires an assessment manager, and this Court on appeal (by operation of s 46(2)(a) of the Planning and Environment Court Act 2016), to have regard to matters prescribed by regulation. One such matter is the common material (s 31(1)(g) of the Planning Regulation 2017), which includes properly made submissions. During the application process, Council received 277 properly made submissions: Ex.17. I have had regard to those submissions. It is fair to characterise them as predominantly proforma in nature and adverse to the proposal. In summary terms, the submissions raised a number of points for consideration. They were correctly identified by the town planning witnesses in their joint report at paragraph 47:
  1. “47.
    [277]…properly made submissions were received and most opposed the application on grounds that included:
  1. inappropriate location because of the industrial nature of the use;
  1. traffic impacts including because the area is accessed by a single road;
  1. impact on local amenity, in particular visual amenity;
  1. noise impacts;
  1. absence of a need because the area does not have many local businesses; and
  1. conflict with planning scheme.”   
  1. [22]
    Council’s refusal case did not rely upon the issues identified in subparagraphs (b) and (d).
  1. [23]
    During the course of the hearing, Council tendered a bundle of petitions that were received during the application process but, as I understand it, were not accepted as properly made submissions: Ex.18. Despite this, I have considered the petitions. Planning issues are identified in a short statement within in each petition. Overall, the petitions add nothing of substance to the issues raised in a more fulsome way in the properly made submissions. As a consequence, the petitions, in and of themselves, have been given little weight in the assessment of the development application.
  1. [24]
    There are no issues in this appeal that require an examination of a planning scheme amendment or adopted planning control captured by s 45(8) of the Act.
  1. [25]
    The statutory assessment framework is to be approached in accordance with the following Court of Appeal authorities, namely: Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; Abeleda v Brisbane City Council (2020) 6 QR 441; Wilhelm v Logan City Council & Ors [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309. The authorities confirm, among other things, that: (1) in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the Act admits of more flexibility to approve an application in the face of non-compliance with a planning scheme; and (2) a planning scheme remains a reflection of the public interest.

Planning context

  1. [26]
    As I have already observed, the site is included in the Low density residential zone of the planning scheme. In that zone, a development application seeking approval to start a new use of land for the purposes of a ‘warehouse’ triggers impact assessment. This is the use for which approval is sought by the appellant. It is defined in the planning scheme as follows:

Column 1

Use

Column 2

Definition

Column 3

Examples include

Column 4

Does not include the following examples

Warehouse

Premises used for the storage and distribution of goods, whether or not in a building, including self-storage facilities or storage yards.

The use may include sale of goods by wholesale where ancillary to storage.

The use does not include retail sales from the premises or industrial uses.

Self-storage sheds

Hardware and trade supplies, outdoor sales, showroom, shop

  1. [27]
    A theme that can be identified in the properly made submissions and the evidence of Council’s expert witnesses (Mr Ovenden, Mr Leyshon and Dr McGowan) engages part of this definition. It was suggested in the properly made submissions and evidence that the proposed development is an industrial use, or, at the very least, industrial in nature. I do not accept the assessment should proceed on such a footing for five reasons taken in combination.
  1. [28]
    First, it should not do so in the light of the express terms of the definition above. The definition makes clear that a ‘warehouse’, being the use for which approval is sought, does not include ‘industrial uses’. This is to be contrasted with ‘Self-storage sheds’, which are given as an example of what is ‘included’ in a ‘warehouse’ use.
  1. [29]
    Second, the planning scheme includes use definitions and thresholds for Low, Medium and High impact industry. The proposed development is not captured by any of the use definitions. Nor is it captured by the Industry thresholds in Table SC 1.1.2.1 of the planning scheme.
  1. [30]
    Third, while the planning scheme encourages ‘storage’ uses in industrial zones (ss 6.5.1.2(3)(b), 6.5.2.2(3)(a)), it does not follow that such a use is industrial or akin to an industrial use for the purposes of the planning scheme. A careful examination of industrial zone codes in the planning scheme reveals ‘storage’ falls within a group of activities that may be compatible in an industry zone. This group includes uses such as wholesale trade supplies and indoor sport and recreation uses, which can be distinguished from industrial uses.
  1. [31]
    Fourth, whether a use is an industrial one, or akin to such a use, will turn on matters of fact and degree. Here, the development proposed is not industrial in nature, kind or scale having regard to: (1) the visual aids depicting the development; (2) the matters traversed in paragraphs [15] to [18]; and (3) Mr Ovenden’s evidence that the proposed use is fairly regarded as ‘benign’ given there will be an absence of adverse impacts from the development typically associated with an industrial use (e.g. noise, odour, light and traffic impacts).
  1. [32]
    Fifth, warehouses have historically been regarded in general planning terms as industrial land uses. The evidence however establishes that this is changing. Self-storage facilities are a modern iteration of warehousing. They are not warehouses of old. They are now designed to serve, and be attractive, to a range of customers, including residential users. The types of users that can be expected here were discussed in the evidence and are consistent with the observations made by her Honour Judge Kefford in Self Storage Helensvale Holdings Pty Ltd v Council of the City of Gold Coast [2022] QPELR 608 at [30]. By reference to a very similar body of evidence, her Honour observed, in part:
  1. “[30]
    In Queensland, self-storage facilities are typically used by a range of domestic and business users. They include:
  1. customers who do not have room to hold items at their places of residence, due to the small size of their lots and homes. These customers store their personal belongings at a self-storage facility instead and access self-storage on a semi regular or weekly basis;
  1. customers who are moving to a new house or selling and buying property. They use a self-storage facility as a holding place. These customers access their belongings on a daily basis, while living in temporary accommodation, and then on an as needs basis if they have not moved all of their belongings to the permanent accommodation;
  1. customers who are downsizing. These customers access self-storage on a semi regular or weekly basis;
  1. customers who have a death of a family member. In those circumstances, items are held in self-storage until the estate is administered;

…

  1. customers running small businesses, who use self-storage to store their work tools and equipment. These customers access the facility on a daily basis;…”
  1. [33]
    The proposed development is designed to accommodate these types of customers.
  1. [34]
    The town planning witnesses called to assist the Court agreed the main focus of the assessment in this appeal is the Low density residential zone code (the zone code) in s 6.2.1 of the planning scheme. It was common ground that compliance with the zone code is demonstrated in accordance with s 6.1(7) of the planning scheme. With this provision in mind, compliance is demonstrated in one of two ways, namely: (1) by complying with the performance outcomes and/or acceptable outcomes of the zone code that achieve the overall outcomes; or (2) by complying with the overall outcomes of the zone code. Irrespective of the mode of compliance demonstrated, compliance with the code will achieve its stated purpose in ss 6.2.1.2(1) and (2).
  1. [35]
    A review of the purpose of the zone code reveals, unsurprisingly, the zone is intended to provide for predominantly dwelling houses: s 6.2.1.2(1). The dwelling houses are envisaged in areas that exhibit a particular type of character and amenity: ss 6.2.1.2(2). As to character, the stated purpose of the zone code is to maintain ‘the low-rise and lower density character of Townsville’s suburbs’: s 6.2.1.2(2)(c). As to amenity, the stated purpose is to maintain ‘a high level of residential amenity’: s 6.2.1.2(2)(d). The residential communities within the zone are also intended to be ‘accessible, well-serviced and well-designed’: s 6.2.1.2(2)(e). 
  1. [36]
    The purpose and particular purpose of the zone code will be achieved through 10 overall outcomes.
  1. [37]
    The overall outcomes articulated in ss 6.2.1.2(3)(a) and (c) are relevant to character and amenity considerations in the zone. The provisions are in the following terms:
  1. “(3)
    The purpose of the zone will be achieved through the following overall outcomes:
  1. built form is of a house compatible scale and consistent with the local streetscape character;

…

  1. development maintains a high level of residential amenity on the site and in the neighbourhood;”
  1. [38]
    The purpose of the zone code, as I have already said, is to provide for ‘predominantly’ dwelling houses. That this use is to predominate leaves open the prospect that land included in the zone may be used for a different purpose. In this regard, two overall outcomes of the zone code make provision for non-residential uses and residential uses that are greater in scale and intensity than a dwelling house. Overall outcomes s 6.2.1.2(3)(g) and (h) relevantly provide:
  1. “(3)
    The purpose of the zone will be achieved through the following overall outcomes:
  1. …residential care or retirement facilities may be acceptable within this zone where provided in locations that are within a convenient walkable distance to centres, public transport and community activities, and where of a scale that is consistent with the local character;
  1. non-residential uses only occur within the zone where they primarily support the day-to-day needs of the immediate residential community, do not reasonably detract from the residential amenity of the area and are not better located in nearby centre zones;”
  1. [39]
    While the proposed development is not a residential care or retirement facility, reference to overall outcome (3)(g) is, in my view, relevant to an assessment of reasonable expectations as to the bulk, height and scale of built form that ought be anticipated in the Low density residential zone. In this regard, overall outcome (3)(g) can be read with Performance outcomes PO21 and PO22 of the zone code, which are in the following terms:

For assessable development – where a multiple dwelling, residential care facility or retirement facility development

Location

PO21

Multiple dwelling, residential care facility or retirement facility development occur only in locations where:

  1. they can be designed to be compatible with local character and low density scale of development;
  1. having convenient walkable access to the city’s network of centres;
  1. having convenient walkable access to public transport; and
  1. having convenient walkable access to recreational facilities.

AO21

The premises:

  1. is located within 400m of a centre zone or public transport stop on a major road;
  1. has a minimum site area of 1,000m2 and 20m frontage where for a multiple dwelling;
  1. has a minimum site area of 3,000m2 and 20m frontage where for a residential care facility or retirement facility; and
  1. is located within 400m of a park.

PO22

Buildings are low-rise and of a house compatible scale.

AO22

Building design achieves:

  1. a site cover that does not exceed 65% of site area;
  1. a building height that does not exceed 2 storeys and 8.5m if it is within 10m of a site boundary, and 3 storeys if it is 10m or more from a site boundary; and
  1. the maximum length of any wall is 12m.
  1. [40]
    Performance outcome PO21 provides a locational test for multiple dwellings, residential care facilities and retirement facilities in the Low density residential zone. Compliance with the test is achieved by complying with the associated Acceptable outcomes: paragraph [34]. The site complies with AO21 because it is located within 400 metres of a centre, exceeds the minimum site area and frontage width, and is located within 400 metres of a park. That compliance is readily demonstrated with AO21 gives rise to an expectation that the site may be suitable for a residential care facility, retirement village or multiple dwelling uses.
  1. [41]
    Performance outcome PO22, and the associated Acceptable outcome, convey an expectation about the height and scale of a use that complies with PO21. The Acceptable outcome conveys that built form will be regarded as low rise and of a house compatible scale where, in essence, it is limited to a height of two storeys and 8.5 metres and site cover does not exceed 65%. The proposed development is single storey and does not exceed 8.5 metres. The site cover for the proposal is 34%, calculated by dividing the gross floor area of the built form by the site area of 8,130 m2. The built form proposed also complies with the maximum prescribed wall length of 12 metres.
  1. [42]
    The balance of the zone code takes a familiar form. After setting out precinct specific overall outcomes that do not apply here, the zone code contains a table of assessment benchmarks. The benchmarks comprise Performance outcomes and associated Acceptable outcomes. Performance outcomes PO18 and PO20 have direct application to this appeal. They are directed towards the location and scale of non-residential uses in the zone. The provisions, including their associated Acceptable outcomes, are in the following terms:

For assessable development – where a non-residential or tourist accommodation use

PO18

Non-residential uses are established only where:

  1. compatible with local character and amenity;
  1. limited in scale and supporting the day-to-day needs of the local community; and
  1. not impacting on the role and function of the city’s network of centres or more appropriately located in another zone.

No acceptable outcome is nominated.

Editor’s note – Applicants should have regard to Economic impact assessment planning scheme policy no. SC6.5 for guidance on how to demonstrate compliance with this performance outcome.

PO20

Development is of a house compatible scale.

…

AO20.2

Where a new building is proposed:

  1. buildings and other structures do not exceed 8.5m or 2 storeys, whichever is the lesser;
  1. the building does not exceed 250m2 in gross floor area;
  1. site cover does not exceed 60%; and
  1. the maximum length of any wall is 12m.

  1. [43]
    Performance outcome PO18 represents one of two tests prescribed in the zone code to control the form, scale and function of non-residential uses in the Low density residential zone. The second test is contained in overall outcome 3(h) of the same zone code. The tests are, self-evidently, expressed in different terms but seek to strike a balance. In the Low density residential zone: (1) a ‘high level of residential amenity’ is intended (s 6.2.1.2(2)(d)); and (2) communities are intended to be ‘accessible’ and ‘well serviced’ (s 6.2.1.2(2)(e)). Items (1) and (2) give rise to a point of tension; for a residential community to be well serviced, it necessarily requires access to non-residential uses. Uses of this kind have the potential to adversely impact amenity and character.  It is this tension that calls for a balance to be struck.
  1. [44]
    How is the balance struck in this planning scheme?
  1. [45]
    The express terms of the planning scheme create an expectation that non-residential uses may be approved in the Low density residential zone provided specific requirements are met (principally overall outcome 3(h) and Performance outcome PO18). The requirements seek to control the scale, form and function of non-residential uses in the zone. The planning purpose or objective for doing so is to make provision for low density residential communities to have convenient access to services in the zone (i.e. be well serviced as envisaged by s 6.2.1.2(2)(e)) but only to a point. Access to services is not intended to come at the expense of residential character and amenity.
  1. [46]
    Central to PO18 and overall outcome 3(g) of the zone code is an assessment of impacts on amenity and character. Performance outcome PO20 is relevant to this assessment. Performance outcomes PO10, PO11 and PO16 are also relevant to this assessment. These provisions, and their associated Acceptable outcomes, are in the following terms:

For assessable development

PO10

Development minimises impacts on surrounding land and provides for an appropriate level of amenity within the site, having regard to:

  1. noise;
  1. hours of operation;
  1. traffic;
  1. visual impact;
  1. odour and emissions;
  1. lighting;
  1. access to sunlight;
  1. privacy; and
  1. outlook.

No acceptable outcome is nominated.

PO11

Landscaping is provided to enhance the appearance of the development, screen unsightly components, create an attractive on-site environment and provide shading.

No acceptable outcome is nominated.

PO16

Parking facilities are located to be concealed from public view to ensure an attractive streetscape.

AO16

Vehicle parking structures are located:

  1. behind the building setback; or
  1. behind the building; or
  1. at basement level.

Figure 6.4 – Concealment of parking structure illustrates.

  1. [47]
    With respect to Performance outcome PO10, Council contended that non-compliance arose with this provision by reason of visual impacts only: Ex.38, para 64(b). Non-compliance with PO11 nor PO16 was not part of Council’s refusal case: cf Ex.38, para 64(b). The assessment proceeds on the footing that the proposed development can be conditioned to comply with PO11 and PO16. It can be observed that neither the service station or child care centre to the north of the site comply with these provisions of the zone code, despite being approved during the currency of the planning scheme: see Ex.29, 30 and Ex.2, pp. 9-12.

The disputed issues

  1. [48]
    Council contended the development application ought be refused for three reasons. The reasons can be identified as follows (Ex.22, paragraphs 3 and 31):
  1. The proposed development is inconsistent with the character and amenity outcomes sought for the Low density residential zone, because of its scale, inconsistency with local character and failure to maintain high levels of residential amenity;
  1. The proposed development is inconsistent with the land use intentions for the Low density residential zone because it is a non-residential use that does not serve the day-to-day needs of the immediate residential community and is more appropriately located in another zone; and
  1. There are relevant matters that support refusal, in particular, the number and content of properly made submissions and the absence of planning need.
  1. [49]
    Paragraphs 1 and 2 assume non-compliance is established with the zone code, in particular, overall outcomes (3)(a), (c) and (h), and Performance outcomes PO10(d), PO18 and PO20.
  1. [50]
    Paragraph 3 has a particular role to play in the exercise of the discretion. It is relied upon to resist a submission to the effect that the discretion ought be exercised in favour of approval in the face of non-compliance with the planning scheme.
  1. [51]
    I will now deal with the reasons for refusal.

Character and amenity outcomes

  1. [52]
    An assessment of the impacts of the development on amenity and character starts on a positive footing, favouring approval. This emerges from the following matters.
  1. [53]
    An assessment of impacts makes good Mr Ovenden’s view that the proposed development is characterised as ‘benign’. In this respect, the use will generate less traffic movements per day than a dwelling house.  The use can also be conditioned so there will be no ‘hard impacts’ on amenity and character. Hard impacts capture a multitude of things, including impacts arising by reason of noise, hours of operation, traffic, odour and emissions, lighting, access to sunlight, privacy and outlook. With this in mind, it can be said the impacts that remain for consideration are visual and intangible in nature (feel of neighbourhood/sense of place). The assessment of these impacts was greatly assisted by the photomontages prepared for the appeal.
  1. [54]
    The photomontages, appreciated with the context traversed in paragraphs [7] to [14] and proposed site plan and elevations, demonstrate the proposed development will: (1) present an attractive landscaped interface to Mount Low Parkway, reinforcing the character of a landmark/focal intersection; (2) present an appropriately landscaped interface to adjoining land (north and south); and (3) present a landscaped interface to Goicoechea Drive, punctuated with features that will enable the development to be identified as a non-residential use.
  1. [55]
    Against the background of paragraph [54], I am satisfied the visual impact of the proposed development will be limited in extent. This is reinforced by Mr Powell’s evidence, which establishes that the development: (1) will have a limited visual catchment; (2) has been designed so as to break up the built form into components, which do not individually exceed 250 m2 in floor area (cf AO20.2(b)); and (3) will be screened by a well-considered landscaping proposal. The limited visual catchment, in conjunction with the interface treatments, has the effect that there are no viewing points from which the full scale of the development can be appreciated. Indeed, when views are available into the site, only limited parts of the built form can be seen. The built form that will be visible is sympathetic to the area in that it is single storey in height and consistent with the scale of a house. Further, the architectural elevations illustrate that the built form visible from Goicoechea Drive will be finished with design elements (i.e. roof design, faux windows and timber battens) that are consistent with elements seen in nearby dwelling houses: Ex.2, p. 2, West/Goicoechea Drive Elevation and sketch detail of office. Carparking will also be concealed from view.
  1. [56]
    An assessment of character and amenity impacts ought properly take into account ‘what exists on the ground’: cf McEnearney v Council of the City of Gold Coast [2024] QCA 246, [45]. When that exercise is undertaken here, I am comfortably satisfied the proposed development will be consistent, and compatible, with the existing character and amenity of this part of Bushland Beach.
  1. [57]
    In this case, ‘what exists on the ground’ is traversed at paragraphs [7] to [14]. The findings set out therein reveal the site, while zoned Low density residential, has a visual relationship with, and forms part of, a mixed use non-residential area framing the quadrants of a focal/landmark intersection. The character and amenity of this particular part of the locality, as is evident from the visual aids and evidence of Mr Powell and Mr Buckley, includes a mixture of non-residential uses that adversely impact on the residential uses located at the northern end of Goicoechea Drive where the site is located. In this regard, the built form (and associated hardstand areas) of the existing uses located on the western side of the roundabout are visually prominent and undeniably commercial in character.  Large hardstand areas and carparking facilities are not concealed from view and, as a consequence, do little to conceal the scale and intensity of the non-residential uses.  The non-residential uses are visible from, and contribute to the mixed character and amenity of the northern end of Goicoechea Drive.
  1. [58]
    Council’s experts focused on those parts of the proposed development that reinforce the non-residential nature of the proposed use. The relevant features emphasised were the large driveway, industrial gates, commercial signage and the concealing effect of landscaping, which is itself said to be an indicator that the use is inconsistent with the character and amenity of Goicoechea Drive.
  1. [59]
    It is appropriate that the features emphasised are taken into account. As contended, they will reinforce that the proposed development is a non-residential use. It does not however follow that the development is unacceptable in character and amenity terms; questions of fact and degree are involved. In this regard, I preferred the evidence of the appellant’s witnesses as to the acceptability of that impact in all of the circumstances. Mr Buckley and Mr Powell considered the impact acceptable. In so doing, they gave appropriate weight to the fact that the non-residential features emphasised by Council’s experts will be seen in a particular context, namely the mixed use context described in paragraphs [7] to [14]. I am satisfied, once appreciated in context, that the driveway, gates, signage and landscaping will not: (1) give rise to an adverse visual impact; and (2) be inconsistent or incompatible with the existing character and amenity of the area.
  1. [60]
    Impacts on amenity and character are not limited to what can be seen or heard. Amenity, as is well established, is a broad concept that includes the feel or sense of place. An impact of this kind was pressed in the refusal case on the premise the proposed development, if approved, would introduce a non-residential use with industrial characteristics into a residential area. When considered at this high level, there is some superficial attraction to Council’s case. The point however loses its force once it is appreciated that: (1) the proposed development, as I have already observed, is not industrial in nature, kind or form; and (2) the existing land use context does not present as a pristine Low density residential area. As a consequence, this is not a case where intangible amenity and character impacts ought stand in the way of an approval. The presence of gates, a large driveway, signage and perimeter landscaping does not alter this conclusion.
  1. [61]
    In the light of paragraphs [52] to [60], I am satisfied the proposed development will not adversely impact on the existing character and amenity of the area, be it in visual terms or in an intangible sense. The opinions expressed by Mr Ovenden and Dr McGowan are inconsistent with this finding. I have not, as a consequence, acted on their evidence to the extent of this inconsistency.
  1. [62]
    It is also necessary to examine the impacts of the proposed development on the planned character and amenity of the Low density residential zone. The planning intent, which frames reasonable expectations, can be gleaned from the zone code. For this appeal, the intent for the Low density residential zone has in mind a predominance of dwelling houses that are intended to maintain a low-rise and low density character. Superficially, the proposed development sits uncomfortably with this intent given the use is not residential in nature. This is not, however, the end of the matter given overall outcome 3(h) and Performance outcome PO18. Both provisions admit of non-residential uses in the zone provided specific requirements are met. The requirements call for character, amenity and streetscape to be examined. An assessment of the development, based on existing circumstances, demonstrates consistency and compatibility in this respect.
  1. [63]
    For present purposes, if a narrow view of the planning scheme is taken, and it is assumed the zoning of the site is intended to maintain a pristine Low density residential environment, free from non-residential development, the proposed development does not perform well when considered in the abstract. It is a non-residential use. This does not, however, work refusal in this case. Such a decision, in my view, would not withstand scrutiny once the following matters are taken into account, including that the zone code has been overtaken by events in terms of planned character and amenity. This applies to the northern end of Goicoechea Drive and the western side of the roundabout referred to in paragraph [8]. The relevant matters are:
  1. paragraphs [52] to [59], which establish that the impacts of the development are benign and approval (in character and amenity terms) will not sound in any adverse town planning consequences when considered in context;
  1. Overall outcome 3(h) and Performance outcome PO18 of the zone code, which admit of the prospect of non-residential development in the Low density residential zone, subject to qualifications, and are met in so far as the protection of existing amenity and character is concerned;
  1. Overall outcome 3(g) and Performance outcome PO21 of the zone code, which suggest reasonable expectations should include, in this case, an expectation that the site, given its size and location, may be developed with retirement or residential care facilities that have substantial built form greater in scale than the proposed development, and will likely introduce impacts into the northern end of Goicoechea Drive (such as non-residential traffic associated with deliveries, medical care etc) that are more than benign; and
  1. real world factors and discrepancies expose that Council has itself diverted from the planning intent expressed for the Low density residential zone in this particular part of the planning scheme area: cf Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPELR 466, [33] – this is in circumstances where the diversions from the planning scheme cannot be reversed and have affected the future amenity and character of this part of the Low density residential zone.
  1. [64]
    With respect to (d), the non-residential uses located to the west of the landmark intersection, and north of the site, were approved under the current planning scheme. An appreciation of their form and scale comfortably establishes they represent material diversions from the intended character and amenity of the Low density residential zone as articulated in the planning scheme. In this regard, the evidence establishes that the non-residential development approved on land in the Low density residential zone to the north of the site: (1) is incompatible with the local character and amenity intended for the zone; (2) does not comply with PO20 of the zone code in that it is not of a house compatible scale; (3) has not been designed to conceal parking facilities or unsightly components from public view, contrary to Performance outcomes PO11 and PO16; and (4) has not been designed to minimise impacts on surrounding land or to provide for an appropriate level of intended amenity in at least visual terms, contrary to PO10(d). With respect to items (3) and (4), the non-compliance with the planning scheme is particularly apparent in the built form (and associated hardstand) of the service station and the child care centre’s at-grade carpark. As to the latter, the built form is neither concealed nor designed to minimise impacts on residential amenity. The carpark is the size of a residential allotment and non-residential in character. A similar point can be made in relation to the existing service station and its associated hardstand area.
  1. [65]
    In circumstances where it is demonstrated, such as here, that: (1) an approval will not sound in any adverse town planning consequences for the existing character and amenity of an area; and (2) Council has granted approvals, which are contrary to its planning scheme, have been acted upon, cannot be reversed, and affect the future (in character and amenity terms) of a particular zone in a material way; it is not difficult to conclude there is a proper basis established to adopt a flexible approach to the application of the planning scheme in relation to amenity and character outcomes. To do otherwise, as Council contends, would be to refuse an application in circumstances where non-compliance, even if accepted, does not manifest in adverse town planning consequences. The rigid application of the zone code in such circumstances would be tantamount to enforcing compliance for compliance sake.
  1. [66]
    It was submitted on behalf of Council that there are four reasons why character and amenity considerations warrant refusal of the proposed development: Ex.38, para 75-97. The reasons can be reduced to the following propositions:
  1. the built form outcomes are not consistent or compatible with the existing and planned character of the local area, including streetscape character;
  1. the proposed landscaping and the ‘gesture’ of façade treatments fails to mitigate the effects of new development on local character;
  1. the proposed development will not maintain a high level of residential amenity generally, or in the neighbourhood; and
  1. the proposed development is not of a house compatible scale.
  1. [67]
    With respect to (a) and (c), Council’s written submissions were critical of the design and siting of the proposed development, pointing out (in reliance on Dr McGowan’s evidence) that the building style, colour and use of materials proposed will have a degree of monotony and present as rows of sheds with little connection to residential development. Further, it was pointed out that the proposed development has a number of elements that would serve to reinforce its incongruity with residential development, thereby representing an adverse intrusion into the residential character of the area. This point was advanced in reliance upon a number of features of the proposed development, namely the area of hardstand, wide industrial entry gates, a wide crossover, the presence of commercial signage and landscaping that conceals the built form. The submissions assume the evidence of Council’s experts, namely Mr Ovenden and Dr McGowan, is accepted and acted upon by the Court. This is not a course I was satisfied should be adopted.
  1. [68]
    As I have already observed, I prefer Mr Powell and Mr Buckley’s evidence to that of Council’s experts. This is because Mr Powell and Mr Buckley’s evidence was consistent with my own views of the visual aids and the description of existing character and amenity of the area of interest. Further, I was satisfied the evidence of Mr Ovenden and Dr McGowan should not be acted upon because they: (1) gave insufficient weight to existing development that adversely affects the character and amenity of this part of the Low density residential zone; (2) gave insufficient weight to the location of the site, forming part of the south-west quadrant of a landmark intersection, which has a mixed rather than residential character; (3) gave insufficient weight to the size of the site, which in the Low density residential zone may accommodate significant built form for the reasons set out in paragraphs [39] to [41]; (4) gave insufficient weight to the fact that adjoining residential development turns its back to the site and is orientated to the south thereby creating a bookend as discussed in paragraph [11]; (5) did not appear to take into account, or alternatively sought to minimise compliance demonstrated with Performance outcomes PO10, PO11 and PO16 of the zone code; and (6) gave insufficient weight to the absence of hard amenity impacts, which can be conditioned to achieve compliance with PO10 of the zone code. The failure to give sufficient weight to the matters above meant Mr Ovenden and Dr McGowan, in my view, overstated the likely impacts of the development. They also downplayed features of the development that were intended to mitigate impacts.
  1. [69]
    The submissions advanced on behalf of Council in relation to subparagraphs (a) and (c) also assume non-compliance with the planning scheme is established. For reasons already given, I am satisfied the proposed development will be consistent, and compatible, with existing character, including streetscape character, of the area. As to planned character, if it is assumed the proposed development is inconsistent with what is intended by the planning scheme for the Low density residential zone, this inconsistency does not warrant refusal for reasons given at paragraphs [63] to [65]. That said, I am satisfied for reasons already given that compliance has been demonstrated with the following provisions of the zone code, in so far as they relate to amenity and character, namely:
  1. Overall outcome 2(c) because the proposed development is low rise and will not change the low density character of the residential neighbourhood to the south and west of the site, which will continue to adjoin a cluster of mixed uses focused around a landmark/focal intersection;
  1. Overall outcomes 2(d), 3(c) and 3(h) because the proposed development will not adversely detract from, and will permit the maintenance of, the existing level of residential amenity enjoyed in Goicoechea Drive, particularly at its northern end – compliance with these provisions can be conditioned for the reasons given above;
  1. Overall outcome 3(a) because the proposed development is consistent with existing local streetscape character, which is unlikely to change in the future and is fairly described as a transition from residential uses in the south and west to a mix of non-residential uses around a landmark/focal intersection;
  1. Performance outcome PO10 because the visual impacts of the proposed development will not be unacceptable, and can be conditioned to provide an appropriate level of amenity within the site and beyond; and
  1. Performance outcome PO18(a) because the proposed development will be compatible with local character and amenity, which is unlikely to change in the future, and is fairly described as a transition from residential uses in the south and west to a mix of non-residential uses around a landmark/focal intersection.
  1. [70]
    With respect to subparagraph (b), I do not accept the landscaping and façade treatments fail to mitigate the effects of the development on local character. This is so for reasons given above.
  1. [71]
    With respect to subparagraph (d), Performance outcome PO20 of the zone code requires non-residential development to be of a ‘house compatible scale’. Compliance with this provision can be demonstrated through compliance with the associated Acceptable outcomes. In this regard, it was uncontroversial that the proposed development complied with all but one part of the Acceptable outcomes, namely AO20.2(b). This provision states that ‘the building does not exceed 250 m2 in gross floor area’. Counsel for the appellant submitted that compliance was achieved with this subparagraph of the Acceptable outcome because no part of the built form, considered individually, exceeded 250 m2.  As a matter of fact, this can be accepted. Counsel for the respondent submitted the correct approach required all of the built form to be taken into account as a composite structure, which, here, well exceeds 250 m2 of gross floor area. This too can be accepted as a matter of fact.
  1. [72]
    While I prefer the approach contended for on behalf of the Council, it is unnecessary to resolve the issue of construction. This is because: (1) non-compliance with AO20.2(b) simply means the proposed development is examined against the verbiage of PO20; and (2) if it is assumed that the scale of the development is examined by reference to the sum total of its built form and is incompatible with a house scale, the assessment does not suggest non-compliance will sound in adverse planning consequences. I am satisfied, in the context of PO20, that non-compliance does not sound in adverse planning consequences because: (1) the built form is low rise and complies with this part of Performance outcome PO20; (2) the full extent of the development is concealed by perimeter landscaping; (3) there is limited visibility to the built form from a range of vantage points, including elevated views; and (4) to the extent the built form is visible, it has been broken down into parts that are commensurate with a house scale – no one building in its own right exceeds 250 m2 of gross floor area. In my view, this assessment against PO20, in particular items (1) and (4) above, rather suggests assumed non-compliance with the provision is conservative in favour of refusal; at best, any non-compliance is technical or trivial. On balance, I am satisfied the evidence in fact demonstrates compliance with PO20.
  1. [73]
    In the result, I am satisfied the appellant has demonstrated that the submission recorded at item 1 of paragraph [48] does not warrant refusal of the development application.

Land use intentions

  1. [74]
    A review of the zone code reveals it contains a planning strategy with respect to non-residential uses. The strategy is evident in overall outcome 3(h) and Performance outcome PO18, both of which seek to control the presence, scale, form and function of non-residential uses in the zone. To achieve this, each provision has in mind that non-residential uses will ‘only occur’ in specific circumstances.
  1. [75]
    Dealing with the overall outcome first, it has in mind that non-residential land uses may only occur in the zone where the following cumulative requirements are met, namely: (1) they primarily support the day-to-day needs of the immediate residential community; (2) do not unreasonably detract from the residential amenity of the area; and (3) are not better located in nearby centre zones. For reasons given above, I am satisfied the assessment against the overall outcome can proceed on the footing item (2) is complied with. Items (1) and (3) however require further examination.
  1. [76]
    Item (1) requires two questions to be asked and answered. First, does the proposed development support day-to-day needs of a residential community? Second, is the residential community served by the development ‘immediate’? To answer these questions, I had the benefit of evidence from Mr Duane and Mr Leyshon. They examined economic need for the proposed development and prepared a joint report: Ex.5.  Reference to the overall conclusions of the joint report reveals it was agreed there was an economic need for additional storage development in an agreed catchment: Ex.5, paras 107 and 108.  The key point of disagreement was whether the proposed development would be more appropriately located elsewhere, namely in a nearby industrial zone.
  1. [77]
    The agreed catchment is depicted in Map 4 of the joint report: Ex.5, p. 21. The area is substantial in size, capturing Bushland Beach, Mount Low, North Shore and Deeragun. The aerial extent of the catchment, in my view, extends well beyond the ‘immediate’ residential community for the purposes of overall outcome 3(h). The immediate residential community is that located in Bushland Beach and Mount Low. The second question posed in paragraph [76] is answered unfavourably to the development. Non-compliance is established.
  1. [78]
    As to the first question, overall outcome 3(h) requires the need met to be ‘primarily’ one that supports a ‘day-to-day’ need. Reference to the economic joint report establishes that the customer base for the proposed development is likely to be ‘primarily’ residential users for the purpose of overall outcome 3(h). They will account for 72% of the total number of users: Ex 5, p. 14. Compliance is demonstrated in this limited sense, leaving the notion of ‘support’ and the ‘day-to-day’ needs of a residential community to be considered.
  1. [79]
    The word ‘support’ is not defined in the planning scheme. Nor is it defined by reference to the documents cited in s 1.3.1 of the planning scheme. It is to be given its plain and ordinary meaning. In context, the use of the word ‘support’ conveys a particular nexus between the proposed development and a day-to-day need for a residential community.  The need identified in this case is for additional self-storage facilities to serve an agreed catchment. The proposed development will ‘support’ that need.
  1. [80]
    The phrase ‘day-to-day’ need is not defined in the planning scheme. Nor is it defined by reference to the documents cited in s 1.3.1 of the planning scheme. The phrase, as a consequence, is to be given its plain and ordinary meaning.  It means, in my view, a need that is ordinary, routine and arises every day. When the phrase is given this meaning, there is some attraction to Council’s contention that self-storage is not a day-to-day need given the small proportion of the population (6.5%) that utilises such facilities, and on an infrequent basis (Ex.38, para 20). The evidence suggests the utilisation rate of the proposed storage facility would be consistent with the following submission made on behalf of Council:

“…86.3% of private users access their storage unit less than once per month; 34.9% would access their unit once per month; 26.3% would access it only 3 to 6 times per year; and 25.1% would access it fewer than 3 times per year…” 

  1. [81]
    With the benefit of further consideration after the hearing, I accept there is considerable force to Council’s submission about whether the proposed development is a ‘day-to-day’ need of a residential community. The submission does, however, need to be tempered with an acceptance that the point is not all one way. As I have already observed, self-storage is changing. So too is the range of users that take advantage of these facilities for purposes discussed at paragraph [32]. While the range of users represent a small proportion of the population, that proportion of the population who ‘need’ self-storage facilities may well, as the evidence establishes, require it on a daily basis for an extended period. This is not, on reflection, however sufficient to say, for the purposes of assessment, that storage is a day-to-day need of a residential community. Non-compliance in this respect has therefore been established.
  1. [82]
    Overall outcome 3(h) also requires consideration to be given to whether the proposed development is better located in a nearby centre. For the purposes of the overall outcome, the ‘nearby centre’ is located on the north-eastern side of the roundabout discussed in paragraph [9]. It was common ground there is no vacant land within this centre to accommodate the proposed development.
  1. [83]
    Council contended that a nearby centre for the purposes of overall outcome 3(h) of the zone code was an existing retail facility located at North Shore. The difficulty with this contention is that the North Shore facility is the product of a preliminary approval for land included in the Emerging community zone. It is not included in a centre zone. This, in my view, is sufficient to deal with the issue – it might be nearby but is not included in a centre zone. That said, I do not regard the North Shore facility as ‘nearby’ in any event. The word ‘nearby’ is not defined in the schedules to the planning scheme nor by reference to the documents referred to in s 1.3.1. It is to be given its plain and ordinary meaning, informed by context. When considered in this way, the phrase, in my view, conveys the search is for land in a centre zone close, adjacent or adjoining to the proposed development. The North Shore facility is not close to, adjacent or adjoining the proposed development. It is located some 5 to 10 minutes’ drive from the site.
  1. [84]
    Performance outcome PO18, like overall outcome 3(h), comprises a number of cumulative elements that must be met to demonstrate compliance. The elements are as follows, namely the use is established only where: (1) it is compatible with local character and amenity; (2) it is limited in scale; (3) it supports the day-to-day needs of the local community; (4) it does not impact on the role and function of the city’s network of centres; and (5) it is not more appropriately located in another zone. Reference to the precise terms of PO18 reveals the word ‘or’ sits between items (4) and (5), which has the potential to convey that these requirements represent alternatives. While I recognise there is force in the arguments advanced in support of this contention, I have approached the assessment on the footing that items (4) and (5) must both be satisfied to demonstrate compliance with PO18.
  1. [85]
    For reasons given above, I am satisfied the proposed development complies with item (1).
  1. [86]
    As to item (2), I am satisfied the proposed development is ‘limited in scale’ for the purpose of the zone code having regard to three considerations. First, the matters traversed in paragraphs [71] and [72] about PO20 of the zone code. This performance outcome provides a constraint for the scale of development in the Low density residential zone. It requires development to be of a ‘house compatible scale’. Second, reasonable expectations as to the scale of non-residential development in the Low density residential zone ought properly take into account that, given the size and location of the site, it may be developed with uses that are materially greater in scale than a dwelling house. A measure of the anticipated scale of such uses is provided by Acceptable outcome AO22(a), which envisages a site cover up to 65% along with similar building height and maximum wall lengths for non-residential development. The proposed development has a site cover in the order of 34% and also meets the prescribed building height and wall length criteria in AO22. Third, for reasons given above, the scale of the proposed development will not manifest in adverse character and amenity impacts. Nor, as was common ground, will the use adversely impact on the centre’s network identified in the planning scheme. These matters are consistent with the proposition that the proposed development, if approved, will not sound in adverse town planning consequences by reason of its scale. 
  1. [87]
    As to item (3), the assessment proceeds on the footing the proposed development will do more than support a day-to-day need of the local community. Item (3) is not satisfied.
  1. [88]
    It was common ground the proposed development, if approved, would not adversely impact on the role and function of the city’s network of centres. It follows from this that item (4) is satisfied.
  1. [89]
    Council contended that item (5) was not satisfied in this case because the proposed development was ‘more appropriately’ located in an industrial zone (at Shaw or Garbutt) or in the existing ‘centre’ located at North Shore. The former land is located outside of the agreed catchment. The latter is a facility included within the agreed catchment, albeit at the eastern periphery. In support of Council’s case in this respect, the Court’s attention was directed to parts of the planning scheme that make provision for warehouses as self-assessable development in industrial zones: Ex.38, para 54. Reference was also made to the economic need evidence about locational considerations for self-storage facilities. This evidence establishes that locational considerations for storage facilities are not as pressing, or critical, as is the case for other land uses that provide convenience retail services to residential communities (such as centres, shops etc).
  1. [90]
    While the planning scheme makes provision for warehouse uses in industrial zones, and there is substantial vacant industrial land in Shaw and Garbutt to accommodate such uses, I was not persuaded this establishes a town planning reason to direct self-storage uses to industrial zones in preference to other zones. Equally, I was not persuaded these matters are sufficient to establish that the industrial zone is a more appropriate location for the proposed development in comparison to the site.
  1. [91]
    The industrial land relied upon by Council, even taking into account the less pressing locational requirements for self-storage uses, is well removed from the population the proposed development is intended to serve. It is located outside of the catchment agreed by Mr Duane and Mr Leyshon. This is not overcome by asserting, as Mr Leyshon did, that the industrial areas are conveniently located to service residential and business users of Bushland Beach. I do not accept this assertion. The industrial land relied upon is located more than 10 minutes’ drive from the site and requires users to travel along the Bruce Highway in order to access industrial locations that have poor amenity in contrast to Bushland Beach. The importance of this should not be underestimated in the light of paragraph [32].
  1. [92]
    Mr Duane considered in detail the suitability of alternative industrial sites: Ex.5, section 6 and Ex.13, section 4. It is unnecessary to traverse his analysis in detail. It is sufficient to say that the analysis establishes that industrial land may provide an alternative to the proposed development, but would provide a less convenient offer to residential customers and nearby commercial uses in comparison to the proposed development. I accept this evidence. It is inconsistent with the proposition that industrial land is ‘more appropriate’ for the proposed development. The same evidence, which I accept, also establishes that the industrial land relied upon is not a true alternative to the site in any event: see paragraphs [115] to [118].
  1. [93]
    Paragraphs [15], [32], [89] to [92], taken with my reasons with respect to character and amenity impacts, demonstrate compliance with Performance outcome PO18, in so far as industrial land is advanced as being more appropriate. This is because the findings set out therein lead me to conclude that: (1) it is unnecessary to locate the development in an industrial area to achieve an acceptable character and amenity outcome; (2) industry land is inferior to the site having regard to accessibility considerations; and (3) the site will comfortably provide a superior level of amenity for the expected range of users (which will be predominantly residential customers) given its design and non-industrial location.
  1. [94]
    I am satisfied the Northshore facility, while a potential alternative, is not superior in town planning terms to the proposed development. Nor is it a more appropriate location. This is so for four reasons, First, I was not directed to any planning scheme provision, or planning principle, that directs storage facilities to centre locations at the expense of other zones. There is unlikely to be any such provision in relation to the North Shore facility because it is, at present, included in the Emerging community zone. Second, this is not a case where the use proposed is an activity that is regarded as important to the success of a centre (such as a full-line supermarket). In this regard, it was common ground the proposed development, if approved, would not adversely impact on the role and function of the city’s network of centres, which includes the North Shore facility. Third, an assessment of amenity and character impacts does not suggest the proposed development ought be located in centre. The assessment reveals that the use is, in impact terms, benign, and will be compatible with the character and amenity of the area. Fourth, the proposed development is land consumptive and, in my view, would provide little benefit to a centre in terms of activation and vibrancy. In simple terms, the proposed use does not have a frontage that would generate vibrancy or activity of the kind expected, and indeed, required for the success of a centre. Once these matters are appreciated, it is not difficult to conclude that the proposed use would be an inefficient use of centre land, even when that land is earmarked by way of a preliminary approval. Mr Ovenden suggested these difficulties may be overcome by reconfiguring the proposal. This would involve a significant re-design of the proposed development, taking the form of a multi-storey facility. Such a design, in my view, is not an alternative to the proposed development. It represents a different offer to the proposed development. Unlike the proposal, patrons of a multi-storey storage facility would, for the most part, be unable to park their vehicles immediately outside of the location where their goods are stored. Lifts and trolleys would be required to load and unload stored items at the upper levels of the facility. In comparison, the proposed development permits direct access to storage units from vehicles, avoiding the use of lifts. This difference, in convenience terms, particularly for residential users, is not immaterial.
  1. [95]
    In summary, the proposed development complies, in part, with overall outcome 3(h) and Performance outcome PO18. Non-compliance arises with those parts of each provision that seek to regulate the introduction of non-residential uses into the zone by reference to the nature of the need they serve. That the proposed development does not comply with overall outcome 3(h) and Performance outcome PO18 in this regard is serious and attracts significant weight (in favour of refusal) in the exercise of the planning discretion. It follows that part of the issue recorded at item (2) in paragraph 48 has been established.

Relevant matters informing the exercise of the discretion

  1. [96]
    The assessment regime prescribed by the Act for impact assessment has in mind that the assessment manager (and this Court on appeal) may take into account ‘relevant matters’. The weight to be given to such matters is for the decision maker. They may point in favour of approval or refusal.
  1. [97]
    In this case there are relevant matters that favour approval. Three such matters arise, in the first instance, from the reasons set out above, namely:
  1. Council has, in granting approvals in this locality, itself diverted from the intent articulated in the planning scheme for the Low density residential zone supporting a conclusion that the zone code is, in part, overtaken by events;
  1. the proposed development, in impact terms, is fairly regarded as benign; and
  1. an approval in the circumstances here would not lead to any adverse character or amenity impacts.
  1. [98]
    Relevant matters favouring approval can also be identified in Mr Buckley’s evidence.
  1. [99]
    In the town planning joint report, Mr Buckley opined that the location of the proposed development is consistent with sound town planning practice and principle. He pointed out that the proposed development, if approved, would result in the co-location of a non-residential use with an existing Local centre. This can be accepted having regard to the location of the site and its proximity to an existing Local centre on the north-eastern corner of the landmark intersection referred to in paragraph [9]. Where, as here, co-location can be achieved, it can be accepted, as a general proposition, that planning benefits will accrue. They are in the nature of convenience, multi-purpose trips and the containment of impacts. I accept Mr Buckley’s evidence that these benefits will accrue in the circumstances here even allowing for the fact that self-storage facilities do not demand the same degree of accessibility to the catchment they serve as convenience retail uses.
  1. [100]
    An approval, if granted, would have the consequence of removing the site from the bank of land available to meet housing needs in this part of the planning scheme area. This is a matter Mr Buckley considered. He did so to ascertain whether the balance of zones would be adversely affected, eroding the benefits of co-location discussed above. After examining the extent of housing potential at North Shore, and identifying significant areas of land zoned Emerging community in the locality, Mr Buckley concluded that the loss of the site for residential development was a matter of no moment for the balance of zones. Mr Ovenden did not suggest otherwise. I accept Mr Buckley’s evidence in this regard.
  1. [101]
    The appellant contended there is a need for the proposed development. If established, this is a relevant matter favouring approval.
  1. [102]
    Turning to the evidence, I am satisfied it has been established, as a matter of agreement (Ex.5, para 108), that there is an economic need for self-storage facilities to serve an identified catchment. This manifests in a significant undersupply of storage units (439 to 498) for the catchment. Importantly, this undersupply would not be made good assuming the proposed development was approved; a shortfall in supply of some 300 storage units for the catchment would remain despite an approval.
  1. [103]
    The proposed development is well placed to conveniently meet the identified economic need for the population of the agreed catchment area. Importantly, the evidence establishes that the need can be met by the proposed development in circumstances where: (1) the location of the development is consistent with sound town planning practice and principle (co-location and balance of zones); and (2) an approval would not lead to any unacceptable character or amenity impacts. That the identified need can be conveniently met in this way by the proposed development makes good the appellant’s contention that the community’s well-being would be enhanced by an approval in this appeal. Development that enhances a community’s well-being has long been recognised as a factor indicating the presence of a planning need: Watts & Hughes Properties Pty Ltd v Brisbane City Council [1998] QPELR 273, 275.
  1. [104]
    The weight to be given to the existence of need is not fixed. It is to be given greater or lesser weight depending on the circumstances of the case: Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116, [20]. The nature of the use proposed informs the weight to be given to the identified need: Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 317. In general terms, greater weight is attached to development that can be said to meet the necessaries of life, such as convenience retail centres. Lesser weight is generally ascribed where what is proposed is ‘specialised’ and attracts custom from patrons with one specific purpose in mind. Examples of this type of development have been said to include a liquor barn or cinema.
  1. [105]
    While the proposed development would offer an identified resident population convenient access to self-storage facilities close to their homes, this does not constitute a convenience retail offer. Further, the proposed development would attract a small proportion of the resident population (about 6.5%) with one purpose in mind (storage of goods). These matters, taken in combination, suggest the demonstrated need in this case, while no doubt important to a small proportion of the public, does not attract a high level of community significance in and of itself. This suggests the weight to be given to the identified need (in and of itself) in the exercise of the discretion is relatively modest.
  1. [106]
    Council contended any need for the proposed development is ‘modest at best’. I accept this submission, save for the use of the words ‘at best’. However, I reject Council’s contention that the identified need can be met in one of two ways, either: (1) by existing facilities in Mount Low and Garbutt; or (2) by the provision of new facilities at Shaw or North Shore.
  1. [107]
    Item (1) can be disposed of quickly. Existing storage supply is, on the agreed evidence, insufficient to meet demand. The level of undersupply in the agreed catchment was described as high. It equates to 439 units in 2024 and 475 units in 2026. The evidence of the need experts makes good that this high level of undersupply would not be made good assuming an approval was granted. Nor would it be made good if it is assumed the existing storage facilities referred to are relied upon to meet demand. Reliance upon existing facilities to meet the identified need is misguided.
  1. [108]
    Item (2) assumes the identified undersupply of storage units for the agreed catchment can be met on land included in the Emerging community zone at North Shore or on Industrial land located outside of the agreed catchment.
  1. [109]
    Mr Ovenden opined that the proposed development could be located in a ‘frame area’ of the Stockland facility at North Shore. This facility is included in the Emerging community zone. Mr Ovenden however pointed out that the zoning needs to be read with a preliminary approval that varies the planning scheme. That preliminary approval is said to facilitate the achievement of a Major centre, which could accommodate the proposed development in a convenient location to serve the agreed catchment.
  1. [110]
    This part of Mr Ovenden’s evidence, unfortunately, cannot be accepted. This is because the opinion expressed by him assumes particular matters about a preliminary approval said to vary the planning scheme in its application to the Stockland North Shore facility. The Council, who is the repository of development approvals, did not put the preliminary approval before the Court. This has the consequence that Mr Ovenden’s evidence about the Stockland North Shore facility is difficult to properly test and, as a consequence, is given no weight.
  1. [111]
    If a contrary view was taken about the weight to be given to Mr Ovenden’s opinion about the North Shore Facility, I do not accept his evidence in any event. Mr Ovenden’s evidence wrongly assumes the North Shore facility is an available alternative to the proposed development. In this regard:
  1. there is no evidence to establish that vacant land forming part of the North Shore facility, which is owned by Stockland, is ‘available’ (i.e. for sale); and
  1. having regard to publicly available material, Stockland’s present intentions appear to involve developing Stage 2 of the facility for business and retail uses, with no provision made for a self-storage facility.
  1. [112]
    Further, the matters traversed at paragraph [94] also work against treating North Shore as an alternative to meeting the identified need. The self-storage facility proposed on the site, as I have already observed: (1) is land consumptive; and (2) is very unlikely to generate the vibrancy and activity anticipated in a Major centre. That it is land consumptive and lacks vibrancy suggests the use is an inefficient use of centre land. That it would be an inefficient use of centre land is a clear indicator that the North Shore facility does not represent a true alternative for the proposed development. This is not overcome, as Mr Ovenden suggested, by redesigning the proposal to be a multi-storey facility for the reasons discussed at paragraph [94].
  1. [113]
    I prefer Mr Duane’s evidence in relation to whether the identified need can be met on land in the North Shore facility. The evidence, which is set out at section 3 of exhibit 13, makes good the following conclusion he expressed at paragraph 3.7:

“Further Stockland Northshore is located close to existing self-storage facilities at Bohle/Mt Louisa (refer Map 3.1), over 9.5 km by road from the subject site. If a facility was to locate at this site, it would not provide a greater physical separation from existing facilities and would not enhance choice and convenience for residents of the Bushland Beach/Mt Low sector of the catchment. In my opinion, it is not a true alternative to the subject site.”

  1. [114]
    For reasons given in paragraphs [108] to [113], I am satisfied land located at the North Shore facility does not represent a true alternative to the proposed development. Nor does it displace the conclusion that there is a genuine need identified for the proposed development.
  1. [115]
    It has been recognised for many years that planning need involves the demonstration of a latent unsatisfied need that cannot be met, in whole or part, by the planning scheme in its present form. It is this reasoning that underlies Council’s reliance upon Industry zoned land to meet the identified need. More specifically, Council’s case is that the need for self-storage facilities can be met on industrial land because: (1) there is available vacant industrial land; and (2) a warehouse, as defined in the planning scheme is, in some cases, accepted development or code assessable development.
  1. [116]
    Council relied upon the evidence of Mr Leyshon in relation to available industrial land. He identified a number of opportunities in industrial areas, such as Shaw and Garbutt, and said they could accommodate a new storage facility: Ex.19, para 2.2. Mr Leyshon pointed out that the suburb of Shaw is within 15 minutes’ drive of the site and conveniently located for residents of Bushland Beach and business users. Mr Ovenden also identified the Mount Low industrial area as providing an additional alternative location for storage facilities.
  1. [117]
    There are three immediate difficulties for the industrial alternatives identified by Mr Leyshon and Mr Ovenden. First, the land (save for Mount Low) to which reference is made is located outside of the agreed catchment area. Second, all vacant land in the Mount Low industrial area is controlled by the Department of Transport and Main Roads and unlikely to be available for development, let alone development of the kind proposed. Third, all of the land referred to as providing an ‘opportunity’ is disconnected from the residential community intended to be served by the proposed development. These matters, taken in combination, are significant. They suggest the so-called alternative opportunities advanced are unsuitable for the proposed development and will not meet the need of the agreed catchment. In my view, this conclusion is sufficient to dispose of the contention that the need for the proposed development can be met on vacant land in the Industrial zone.
  1. [118]
    For completeness, it can be observed that Council invited the Court in its written submissions to reach a contrary conclusion about need given: (1) there are a number of opportunities that exist in industrial areas to accommodate the proposed development; (2) there are existing facilities outside the agreed trade catchment area that are within an accepted drive time of up to 15 minutes; (3) there is no lay witness evidence to suggest the community is suffering from a lack of available self-storage facilities; (4) only a small proportion of the population will benefit from the proposal; and (5) any need is eroded by the extent of character and amenity impacts.
  1. [119]
    For reasons given above, I do not accept items (1) and (5).
  1. [120]
    Item (2) can be accepted as being correct as a matter of fact. This fact does not however alter my views about need in this case. The evidence contained in the economic need joint report makes clear that, in agreeing to the catchment area for the proposed development, Mr Duane and Mr Leyshon examined drive times for customers. With this and a number of factors in mind, the agreed area was drawn so as to deliberately exclude a drive time of 10 to 15 minutes. Once this is appreciated, the point advanced in item (2) is a disappointing one. It has the tenor of an attempt to erode a point of agreement by stealth. This was uncompelling.
  1. [121]
    I accept item (3). There is no evidence from lay witnesses to establish they are suffering as a result of an under supply of storage facilities (or would continue to suffer in the event the application was refused). Evidence of this kind would add weight to the identified need, if it was accepted. It is, in this case, a step too far, however, to suggest its absence has a negative effect on (erodes) the identified need in this appeal. This is so because: (1) it was not explained how, and in what way, the assertion undermines the careful and unchallenged economic analysis undertaken by Mr Duane and Mr Leyshon; and (2) such a contention, in any event, appears to be contrary to authority – the point appears to impliedly suggest that the relevant enquiry in relation to need calls for the identification of suffering, which may be considered closely aligned to a need that is pressing or critical: Watts & Hughes Properties Pty Ltd (Supra), 275.
  1. [122]
    I accept item (4). It has informed the weight to be given to need in the circumstances of this case.
  1. [123]
    A review of Council’s Part B written submissions reveals it contends there are three relevant matters said to reinforce why the appellant’s development application ought be refused. The three matters are: (1) no material detriment would arise to the residential community if the development was refused; (2) there is an absence of planning need for the proposed development; and (3) the proposed development is inconsistent with community expectations expressed in the submissions.
  1. [124]
    I accept item (1) is correct having regard to the evidence about the proportion of the residential population that utilise self-storage facilities (about 6.5%).
  1. [125]
    I do not accept item (2) for the reasons given above.
  1. [126]
    As to item (3), I have considered the properly made submissions and a bundle of petitions. The views expressed in the former are entitled to weight. The position in relation to the latter is less clear, but for reasons already given it is unnecessary to dwell upon them. In any event, it is correct to say that the submissions made to Council (in either form) are adverse to the development application. They raise, as correctly submitted, a range of planning issues. An important issue raised involved alleged ‘inconsistency’ between the proposal and the intended character and amenity of the Low density residential zone. The terms of the submissions reveal that inconsistency was advanced on a particular premise; namely, that the proposed development, if approved, would introduce an industrial use or industrial impacts into a Low density residential area. This was said to be contrary to the planning scheme and result in adverse character and amenity impacts.
  1. [127]
    I have little doubt the views expressed in the submissions are honestly held by the authors of those documents. The difficulty I have is that the views expressed are not based on a sound footing in terms of ‘reasonable expectations’ as to character and amenity. Three shortcomings can be identified in this respect. First, the submissions assume the proposed development is an industrial use. This is contrary to the definition in the planning scheme of ‘warehouse’. It is also contrary to the evidence, which establishes the use is not industrial in nature and appearance. Second, the submissions did not fairly confront important context that informs ‘reasonable expectations’. This is a reference to ‘on the ground’ factors discussed in paragraphs [8] to [12] and [56] to [58]. Once these factors are taken into account, a different picture to the one assumed by the submissions emerges. It is at odds with a contention that the area of interest enjoys a high level of residential amenity and character, unaffected by non-residential uses. Third, the submissions do not reflect that reasonable expectations as to character and amenity here ought take into account that the land, given its size and location, may be suitable for development appreciably greater in scale than a dwelling house. Further, it can be observed that the views expressed in the submissions assert the proposed development will have adverse impacts on character and amenity. This is not supported by the evidence before the Court.
  1. [128]
    Given the matters traversed in [126] to [127], I was persuaded the submissions should attract little weight in the exercise of the discretion.
  1. [129]
    For the reasons given in paragraphs [123] to [128], the disputed issue identified in item (3) of paragraph [48] has been established in part only. The two matters established will be treated as relevant matters favouring refusal.

Exercise of the discretion

  1. [130]
    Having regard to the above assessment, I am satisfied the appellant’s case in favour of approval is strong. It has established the proposed development is meritorious. This is not a difficult conclusion to reach once it is appreciated the proposed development:
  1. will be a modern self-storage facility;
  2. will be, in impact terms, benign;
  3. substantially complies with the adopted planning controls;
  4. has been located consistent with sound town planning practice and principle;
  5. can be conditioned to ensure impacts on Low density residential character and amenity will not be unacceptable;
  6. will not adversely impact on the role and function of the City’s centres network;
  7. will meet an identified need for self-storage facilities in a location that is convenient to the population it will serve;
  8. will meet an identified need in circumstances where conditions can be imposed to manage adverse town planning consequences, including adverse impacts on amenity and character; and
  9. Council has, in granting approvals in the locality, itself diverted from the intent articulated in the planning scheme for the Low density residential zone, particularly in relation to the scale and appearance of non-residential uses at the northern end of Goicoechea Drive where the site is located.
  1. [131]
    As against these matters, there are two reasons warranting refusal. Taken in combination, they are by no means technical or trivial, representing a significant obstacle to approval.
  1. [132]
    The primary, and most significant reason for refusal that has the potential to attract decisive weight involves an inconsistency with a planning scheme strategy. Inconsistency with a planning strategy attracts significant weight in the exercise of the discretion. The proper approach to matters of this kind has long been recognised as one of restraint: Grosser v Gold Coast City Council (2001) 117 LGERA 153, [38]. It is not this Court’s function to substitute a planning strategy for those a planning authority has chosen to adopt.
  1. [133]
    The relevant planning strategy can be gleaned from reading the purpose, overall outcome 3(h) and Performance outcome PO18 of the zone code. As I have already observed, the strategy has in mind that Low density residential communities may include non-residential uses. This is to enable communities to be, inter alia, ‘well serviced’. Such uses are not, however, intended to be the predominant use in the zone: cf s 6.2.1.2(1) and (2)(a) of the zone code. They are anticipated ‘only where’ the cumulative elements of one of two specific tests are met. The tests are to be found in overall outcome 3(h) and Performance outcome PO18. In substance, the tests seek to restrict the form, scale and function of non-residential uses. The planning purpose for doing so is, unsurprisingly, to maintain a high level of residential amenity in the zone. This planning purpose finds support in the purpose (s 6.2.1.2(2)(d)) and overall outcome (3)(c) of the zone code. Both provisions have in mind that development in the zone will maintain a high level of residential amenity.
  1. [134]
    Overall outcome 3(h) has a number of elements. Non-compliance has been established with only one element, namely the part that seeks to limit the draw or function of the proposed development to one that ‘primarily supports the day-to-day needs of the immediate residential community’.  Performance outcome PO18 also comprises a number of elements. Non-compliance has been established with subsection (b) of the provision, which requires a non-residential use to, inter alia, support the day-to-day needs of the local community. The nature of the non-compliance with each provision is consistent; the proposed development will serve a need greater than is contemplated in the Low density residential zone.
  1. [135]
    Given the terms of overall outcome 3(h) and PO18 of the zone code, and their apparent purpose, it is not difficult to conclude that the non-compliance is a significant matter in the exercise of the discretion. It is, on face value, decisive.
  1. [136]
    In examining the weight to be given to the refusal case, I have also taken into account the relevant matters (paragraph [130]) I accept go to refusal of the application. I do not regard those matters as weighty considerations in and of themselves. Further, they do not appreciably enhance the weight to be given to the refusal case beyond that to be attributed to inconsistency with a planning strategy. This, in my view, is so because, absent sound town planning reasons, the strategy would ordinarily be given its full force and effect. It should be respected. The development application, absent sound town planning reasons, should be refused.
  1. [137]
    Are there sound town planning reasons here that establish a basis to depart from the planning strategy?
  1. [138]
    I am satisfied this question is answered in the affirmative.
  1. [139]
    The evidence establishes that an approval will not, despite non-compliance with the strategy, sound in adverse town planning consequences. In this respect, an approval will not adversely impact on the character and amenity of this part of Bushland Beach. Nor will it impact on the role and function of the City’s centres network, including a Local centre to the north-east. The absence of impact, taken in conjunction with the demonstration of need, is a matter to which significant weight ought be given in favour of approval.
  1. [140]
    The absence of impact is also relevant to the nature and extent of non-compliance with the planning scheme in this case. This is exposed having regard to the structure and purpose of the zone code. The zone code comprises essentially three parts: a purpose, overall outcomes and a table of assessment benchmarks. The pinnacle of the code is the purpose and particular purpose stated in ss 6.2.1.2(1) and (2). General provisions of the planning scheme, along with ss 6.2.1.2 (3) and (4) of the zone code make clear that the purpose of the zone code will be achieved through the overall outcomes (including 3(h)), additional overall outcomes (which have no application here) and the assessment benchmarks (including PO18).
  1. [141]
    The evidence establishes that the purpose and particular purpose of the zone code will be achieved here despite the non-compliance with overall outcome 3(h) and PO18(b). Compliance with the purpose and particular purpose is achieved because: (1) an approval will not change the predominate use (dwelling houses) in this part of the Low density residential zone; (2) the proposed development will positively contribute to the services available to the community, which includes a significant area of land included in the Low density residential zone (s 6.2.1.2(2)(e)); and (3) the proposed development can achieve items (1) and (2) without eroding the level of residential amenity enjoyed in this part of Bushland Beach (s 6.2.1.2(d)).
  1. [142]
    Paragraphs [139] and [141], taken in combination, suggest two things, namely: (1) a decision to depart from the relevant planning strategy in this case will not sound in any adverse town planning consequences of the kind the zone code seeks to avoid through provisions such as overall outcome 3(h) and Performance outcome PO18; and (2) a refusal in the circumstances would reflect an insistence on compliance with the planning scheme for compliance sake. To require refusal of an application against the background of these matters is less than compelling. Indeed, it lacks genuine potency once it is appreciated that Council has itself diverted from the same planning strategy of interest in this case. It has approved non-residential development to the north of the site. I have discussed this development and its diversion from the planning scheme above. The extent of diversion is not limited to a planning strategy. It includes non-compliance with provisions of the zone code dealing with the scale and appearance of built form and a requirement to conceal carparking areas. That Council has itself departed from the zone code, when taken in combination with the above matters, provides a sound town planning basis to depart from the planning strategy of interest in this appeal.
  1. [143]
    On balance, I am satisfied non-compliance with the planning scheme does not call for refusal in the circumstances of this appeal. The proposed development ought be approved subject to conditions.

Conclusion

  1. [144]
    The appellant has discharged the onus.
  1. [145]
    The appeal will be allowed in due course, with the development application approved subject to conditions.
  1. [146]
    To facilitate the preparation of a suite of conditions, I will return the appeal to the applications list for review on 30 January 2025. The appeal will remain on that list unless and until a dispute arises about conditions of approval.
Close

Editorial Notes

  • Published Case Name:

    ML Parkway Pty Ltd v Townsville City Council

  • Shortened Case Name:

    ML Parkway Pty Ltd v Townsville City Council

  • MNC:

    [2024] QPEC 53

  • Court:

    QPEC

  • Judge(s):

    Williamson KC DCJ

  • Date:

    20 Dec 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
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
2 citations
Jump To
Cite 1 - (2020) 6 QR 441
Cite 2 - (2020) 6 QR 441
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
Grosser v Council of Gold Coast City (2001) 117 LGERA 153
2 citations
Jump To
Cite 1 - (2001) 117 LGERA 153
Cite 2 - (2001) 117 LGERA 153
Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313
2 citations
Jump To
Cite 1 - (2000) QPELR 313
Cite 2 - (2000) QPELR 313
Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116
2 citations
Jump To
Cite 1 - [2001] QCA 116
Cite 2 - [2001] QCA 116
McEnearney v Council of the City of Gold Coast [2024] QCA 246
2 citations
Jump To
Cite 1 - [2024] QCA 246
Cite 2 - [2024] QCA 246
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
Stappen Pty Ltd v Brisbane City Council (2005) QPELR 466
2 citations
Jump To
Cite 1 - (2005) QPELR 466
Cite 2 - (2005) QPELR 466
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
2 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Watts & Hughes Properties Pty Ltd v BCC (1998) QPELR 273
2 citations
Jump To
Cite 1 - (1998) QPELR 273
Cite 2 - (1998) QPELR 273
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
2 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321

Cases Citing

Case NameFull CitationFrequency
ML Parkway Pty Ltd v Townsville City Council (No.2) [2025] QPEC 62 citations
1

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