Banner S&C (Logan Village) Pty Ltd v Logan City Council & Anor [2024] QPEC 29 (2025) QPELR 1366

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Banner S&C (Logan Village) Pty Ltd v Logan City Council & Anor [2024] QPEC 29 PARTIES: BANNER S&C (LOGAN VILLAGE) PTY LTD (ACN 642 703 464) (Appellant) v LOGAN CITY COUNCIL (Respondent) and CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING (Co-Respondent) FILE NO/S: 1994/22 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 5 June 2024 DELIVERED AT: Brisbane HEARING DATE: 26 February 2024 – 1 March 2024 JUDGE: McDonnell DCJ ORDER: The appeal is dismissed. The decision of the Respondent to refuse the application is confirmed CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – where the Appellant appeals against the Respondent’s decision to refuse a development application for a Car Wash, two Food and Drink Outlets and Low Impact Industry (tyre fitting and repairs) – where the site is currently improved by a service station and food and drink outlet – whether weight should be given to a planning scheme amendment – whether the proposed development is an appropriate use of the site – whether the built form of the proposed development dominates and whether it is incompatible with a “bushland setting” and a non-urban character – whether the proposed development protects rural residential visual amenity and character – whether there is a need for the proposed -- 1 of 31 -- 2 development – whether the development application should be approved in the exercise of planning discretion CASES: Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 Broad v Brisbane City Council & Anor [1986] 2 Qd R 317 Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126 Hua Shang Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99 Isgrow v Gold Coast City Council & Anor [2003] QPEC 2 Karalee Land Partners Pty Ltd v Ipswich City Council (2014) QPELR 603 Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors (2020) QPELR 899 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcott Pty Ltd & Ors [2021] QCA 95 Watts & Hughes Properties Pty Ltd v Brisbane City Council (1998) QPELR 273 Wilhelm v Logan City Council & Or [2020] QCA 273 Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168 Zappala Family Co Pty Ltd v Brisbane City Council (2014) QPELR 686 LEGISLATION: Planning Act 2016 (Qld) ss 45, 45(5), 45(5)(b), 45(7), 45(8), 60(3) Planning and Environment Court Act 2016 (Qld) ss 43, 45(1)(a), 46(2), 46(5), 47(1) Planning Regulation 2017 (Qld) ss 31(1)(f), 31(1)(g) COUNSEL: M Batty and N Batty for the Appellant B Job KC and D Purcell for the Respondent -- 2 of 31 -- 3 Co-Respondent was excused from appearing SOLICITORS: MacDonnells Law for the Appellant McInnes Wilson Lawyers for the Respondent Introduction [1] The Appellant has appealed against the Respondent’s decision to refuse a development application for a Development Permit for a Material Change of Use for a Car Wash, two Food and Drink Outlets and Low Impact Industry (tyre fitting and repairs) (the Development Application) on land at 1322–1330 and 1332–1346 Waterford Tamborine Road, Logan Village, more particularly described as Lots 73 and 74 on RP210268 (the Site). What are the features of the Site and the surrounding area? [2] The Site is located on the eastern side of Waterford Tamborine Road, on the southern corner of its intersection with Stockleigh Road. It has an area of approximately 26,633m². The western boundary of the Site fronts Waterford Tamborine Road for approximately 190m. Waterford Tamborine Road is a four-lane State-controlled road. Approximately 23,946 vehicles pass the Site per day.1 [3] The Site is currently improved by a service station and food and drink outlet. The service station comprises 4 bowsers and a 300m² shop. The food and drink outlet is 150m², includes a drive through, and is tenanted by Carl’s Jr. The existing use has an 85m frontage to Waterford Tamborine Road. The hardstand of the existing development has a footprint of 2970m². Vehicular access to the Site is via: (a) a private road extending from the intersection of Waterford Tamborine Road and Stockleigh Road into the Site; and (b) a 10m crossover from Waterford Tamborine Road, located to the south of the existing service station. [4] The proposed development area, being the western extent of the Site, is relatively level and clear of vegetation. It makes no contribution to a bushland setting.2 The Site includes part of a dam over the southern part. It is densely vegetated in the south- eastern extent of the Site. [5] The Court was assisted by evidence from Mr Curtis, for the Appellant, and Dr McGowan, for the Respondent, to deal with issues of character and visual amenity. The experts considered the adjoining and surrounding properties. I accept their descriptions, which are supported by the aerial photography and photographs of the Site and surrounds. [6] The Site is adjoined to the north by a bamboo plantation which extends along the eastern side of Waterford Tamborine Road for approximately 150m. To the rear of the bamboo plantation, the Site’s northern boundary is also adjoined by two rural 1 Ex. 9, Need JER, [14], p 3. 2 Ex. 8, Further Character and Visual Amenity JER, [68], p 48 (‘VA JER’). -- 3 of 31 -- 4 residential lots. To the east is a large, densely vegetated, rural residential lot. The property on the southern boundary accommodates residential and commercial uses (honey production) and is largely screened from the road frontage by established vegetation.3 [7] To the north of the bamboo plantation are residential lots screened from the road. The Logan Village Park adjoins the residential lots to the north. Thus, there is a contiguous edge of tall vegetation along the eastern side of Waterford Tamborine Road from the existing service station through to the intersection with Anzac Avenue. North of this intersection, the zoning changes to Low impact industry. Vegetation screens the light industrial area from the road frontage.4 [8] South of the Site, on the eastern side of Waterford Tamborine Road, the Rural residential zone extends to Pioneer Drive. The frontages are generally dominated by vegetation. The Community facilities zone extends south to the Yarrabilba Priority Development Area (Yarrabilba PDA), and accommodates the Logan Village Cemetery, the Logan Village Rural Fire Service’s emergency fire service sheds and the Logan Village Waste and Recycling facility. The cemetery and waste facilities are screened by vegetation. The Yarrabilba PDA extends south for approximately 7.6km.5 [9] Opposite the Site on Waterford Tamborine Road, south of Stockleigh Road, is 1335– 1371 Waterford Tamborine Road, a large triangular, vegetated parcel of land containing a detached dwelling house, set back from the frontage.6 A development application for a service station and food and drink outlet on that parcel was recently refused by the Court. South of that parcel, the Rural residential zone generally extends along the western side of Waterford Tamborine Road for approximately 8km. The visual character is relatively consistent, comprised of large rural residential lots with dwellings set back from the road frontage, within varying landscaped surrounds.7 The Procon service station has been approved and is presently under construction at 1601 Waterford Tamborine Road, opposite the entrance to the Yarrabilba PDA. [10] On the north-west corner of the intersection of Waterford Tamborine Road and Stockleigh Road is a housing estate in the Low density residential zone. It is set back from the intersection behind a grassed reserve and is screened from the road by an acoustic barrier which extends for approximately 1km north along Waterford Tamborine Road to Anzac Avenue. The roof forms of the houses are visible above the acoustic barrier.8 Approximately 1km north of the Site, over Anzac Avenue, is the Centre zoned land of Logan Village, which is located opposite the Low impact industry zoned land. [11] The entry to the Yarrabilba PDA is located approximately 2.4km south of the Site. The Yarrabilba PDA sits outside the Respondent’s planning scheme area and falls under State jurisdiction for development assessment and land use planning. The Yarrabilba PDA, with an area of approximately 2,200 hectares, is planned to provide 3 Ex. 8, VA JER, [13]–[16], p 15, Fig 9–15, pp 16–19. 4 Ex. 8, VA JER, [21]–[23], Fig 25, p 24. 5 Ex. 8, VA JER, [25]–[26], p 25. 6 Ex. 8, VA JER, [18], p 19, Fig 19–21, pp 21–22. 7 Ex. 8, VA JER, [24], p 25. 8 Ex. 8, VA JER, [17], p 19, Fig 17, p 20. -- 4 of 31 -- 5 up to 20,000 dwellings for up to 50,000 people over a 20 to 30 year period from its declaration in 2010. The development scheme regulates development within the PDA and provides for a major centre (with a core and frame and adjoining industry and business area), two district centres (one of which is well-established) and five neighbourhood centres. There is planned provision for retail and industry activities to be located within the PDA area.9 What is the background to the Development Application? [12] When the Development Application was properly made on 1 October 2021, the Logan Planning Scheme 2015 Version 8.0 (the Scheme) was in effect.10 Under the Scheme, the Site is included in the Park living precinct of the Rural residential zone. The mapping reveals the Site is included in the Regional landscape and rural production area, outside the Urban footprint.11 [13] The Development Application was subject to impact assessment and subject to a referral to Energex as an Advice Agency, and to the Department of State Development, Infrastructure, Local Government and Planning (the Department) as a Concurrence Agency. By its Referral Agency Response dated 29 March 2022, the Department directed the Respondent to refuse the Development Application. No properly made submissions were received during the notification period. By its decision notice dated 5 August 2022, the Respondent refused the Development Application. [14] Since the appeal was commenced, two minor changes have been made to the Development Application. Pursuant to a Court order of 10 November 2023, the appeal proceeded on the basis of the changed development application, being the Development Application as refused by the Respondent on 5 August 2022, as changed by the: (a) Order of the Court on 3 February 2023; and (b) plans and other documents at pages 5–12 of Exhibit GJN-04 of the Affidavit of Gavin John Nye filed 28 September 2023 and pages 7–27 of Exhibit JPB-02 of the Affidavit of Jon Peter Brooksby filed 28 September 2023. [15] On the basis of the changed development application, the Co-respondent was excused from further participation in the appeal unless and until changes were made to the changed development application or plans of development, or if conditions of approval were required to be formulated.12 What is the proposed development? [16] The proposed development has the following parameters: GFA – Proposed Development (Excluding Existing Approval) 1,145m² total, comprising: • 300m² carwash; 9 Ex. 7, Further Town Planning JER, [41], pp 12–13 (‘TP JER’). 10 Ex. 3, Agreed Facts, [10], p 2; Ex 6, CEO Certificate, Existing Approval and Development Application, [4(b)–(c)], p 1. 11 Ex. 3, Agreed Facts, [13], p 2; Ex. 5, CEO Certificate, Scheme Extracts, p 176. 12 Court Document 61, Order of the Court dated 10 November 2023. -- 5 of 31 -- 6 • 545m² food and drink outlet (x 2); and • 300m² low impact industry. GFA – Proposed Development (Including Existing Approval) 1,595m² total, comprising: • 450m² service station, shop and food and drink outlet; • 300m² carwash; • 545m² food and drink outlet (x 2); and • 300m² low impact industry. Height 6m – 7.78m Site Cover – Existing Approval 3.25% Site Cover – Proposed Development 7.6% Landscaped Area 1.6 HA (or 60.15%) Car Parking 63 car parking spaces Hours of Operation • Service Station – 24 hours, 7 days a week; • Food and Drink Outlet – 5am to 10pm, 7 days a week; • Carwash – 5am to 10pm, 7 days a week; and • Low Impact Industry – 5am to 10pm, 7 days a week. [17] The carwash is to be positioned to the north-east of the existing service station and comprises one automatic washing bay, two manual washing bays and six vacuum bays. Two stand-alone food and drink outlets are proposed on opposite ends of the Site, one to the north and one to the south of the existing service station. Each food and drink outlet includes a drive through facility. The Low impact industry tenancy is located to the east of the existing service station. This tenancy is intended to accommodate a tyre fitting and repair business. There is car parking adjacent to the main entrance of each stand-alone food and drink outlet, with car parking facilities otherwise shared amongst the proposed uses, and an internal road network to facilitate vehicular movements through the Site. [18] All buildings are single storey. The tallest, the Low impact industry building, has a height of 7.78m, and is set back approximately 68m from the road frontage, behind the service station. The buildings are concentrated towards the street frontage. The proposed new built form and hardstand area of the proposed development will adjoin the existing service station to the north, east and south to create a contiguous development area. The development footprint, comprising the hardstand and buildings, but excluding the landscaped areas incorporated through the hardstand, is 10,604m². The rear (eastern) extent of the Site will be retained in its natural form, comprised of dense established vegetation and the existing dam. 16,021m² of the Site is to be landscaped or vegetated.13 The bulk of this vegetation will be that retained at the rear of the Site. [19] The proposed Landscape Concept Plan reveals areas of landscaping at the frontage of the Site, batter planting east of the tyre retailer and car wash buildings, and perimeter 13 Ex. 1, Book of Plans and Documents, Proposed Site Plan, p 7. -- 6 of 31 -- 7 planting on the northern and southern boundaries, with some landscaping through the area of the development area.14 [20] Earthworks are proposed which will require the installation of retaining walls. [21] The retaining wall adjacent to the southern boundary is set back 3m from the boundary behind an overland flow path. It extends east for 27m, adjacent to and parallel to the side boundary. The retaining wall will vary in height from 0.708m at its western end to a maximum height of 2.239m, approximately 10m from its eastern corner, decreasing to 1.047m at the rear southern corner of the development area.15 The acoustic barrier in this location will have a height of 2m for a length of approximately 30m, extending along the southern side of the food and drink outlet building drive through. It is setback from the southern boundary between approximately 10m to 3m, and extends parallel to the southern boundary, with an increased height of 2.7m positioned above the retaining wall. This section of the acoustic barrier extends for a length of approximately 14m, before diverting to extend north across the Site for approximately 18m, reducing to a height of 2.4m for the last 9m. The combined total height of the retaining wall and acoustic barrier ranges from 4.88m to 4.93m.16 [22] The retaining wall adjacent to the northern side boundary is set back 1m from the boundary and extends east for approximately 93m, increasing in height from 0.66m near its western end to 3.24m at the rear north-eastern corner of the development area.17 A 2m high acoustic barrier is set back between 1.8m and 2m from the northern side, and extends to the west, parallel to the retaining wall and side boundary for approximately 91m.18 The combined maximum height of the retaining wall and acoustic barrier will be approximately 5.245m towards the eastern end.19 [23] Given the location of the acoustic barriers and retaining walls, they are most likely to impact upon the adjoining neighbours to the north and the south of the Site. The retaining walls and acoustic barriers were included in the proposal after public notice was undertaken. Accordingly, the opinions of these northern and southern neighbours about the retaining walls and acoustic barriers are not known. [24] The service station operates 24 hours per day. The town planning experts considered 24 hour operation for all the uses applied for. In response to expert advice, including acoustic advice received after public notification, the proposed hours of operation were altered to those in the table at [16]. The Appellant contends for approval on the basis that conditions be imposed limiting the hours of operation to those in the table. What is the statutory assessment and decision-making framework? [25] The appeal is to be determined under the Planning Act 2016 (Qld) (Planning Act) and the Planning and Environment Court Act 2016 (Qld) (PECA), and proceeds by way of hearing anew.20 The Court assesses the development application under s 45 of the 14 Ex. 1, Book of Plans and Documents, Landscape Concept Plan, p 24. 15 Ex. 8, VA JER, [37(b)], p 34. 16 Ex. 8, VA JER, [57]–[60], p 44. 17 Ex. 8, VA JER, [37(a)], p 34. 18 Ex. 8, VA JER, [62], p 46. 19 Ex. 8, VA JER, [63], p 46. 20 Planning and Environment Court Act 2016 (Qld), s 43 (‘PECA’). -- 7 of 31 -- 8 Planning Act as if it were the assessment manager.21 In deciding the appeal, the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Respondent with directions the Court considers appropriate.22 The Appellant bears the onus in the appeal.23 [26] As the Development Application was subject to impact assessment,24 the assessment: (a) must be carried out: (i) against the relevant assessment benchmarks in a categorising instrument that was in effect when the Development Application was properly made, relevantly the Scheme;25 and (ii) having regard to any matters prescribed by the Planning Regulation 2017 (Qld), including relevantly, any development approval for, and any lawful use of, the Site, as well as the common material;26 and (b) may be carried out against, or having regard to, any relevant matter, other than a person’s personal circumstances, financial or otherwise.27 [27] The assessment and decision making process is to be approached consistently with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,28 Abeleda & Anor v Brisbane City Council & Anor,29 Wilhelm v Logan City Council & Or,30 and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcott Pty Ltd & Ors.31 Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors.32 That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.33 [28] Section 60(3) of the Planning Act confers a broad discretion in deciding an impact assessable application. The decision-maker is to balance the factors to which consideration may be given. The factors in favour of approval and the factors in favour of refusal have to be balanced and the weight to be attributed to each factor is a matter for the decision-maker. Non-compliance with an assessment benchmark does not necessarily dictate refusal of a development application. The Planning Act does not alter the characterisation of a planning scheme as a reflection of the public interest. The extent to which a flexible approach to the exercise of discretion will prevail will turn on the facts and circumstances of each case, including the nature and extent of the non-compliance, if any, identified with an assessment benchmark. 21 PECA, ss 46(2), (5). 22 PECA, s 47(1). 23 PECA, s 45(1)(a). 24 Ex. 3, Agreed Facts, [14], p 2. 25 Planning Act 2016 (Qld), s 45(7) (‘Planning Act’). 26 Planning Regulation 2017 (Qld), ss 31(1)(f)–(g). 27 Planning Act, s 45(5). 28 [2020] QCA 253. 29 [2020] QCA 257. 30 [2020] QCA 273. 31 [2021] QCA 95. 32 [2019] QPEC 16, [35]–[86]. 33 [2019] QPEC 46, [12]–[22]. -- 8 of 31 -- 9 [29] Since the Development Application was refused, the Respondent has amended the Scheme. Version 9 of the Scheme commenced on 6 February 2023.34 This amendment is relevant for the purposes of the determination of this appeal as both a relevant matter reflecting the Respondent’s contemporary statement of planning intent pursuant to s 45(5)(b) of the Planning Act, and as a statutory instrument entitled to weight as considered appropriate by the Court pursuant to s 45(8) of the Planning Act. While weight may be afforded to the Scheme amendment, the Planning Act does not require that the application be assessed against it. The issue is the weight to be attributed to it. What is the weight to be given to the Scheme amendment? [30] Version 9 of the Scheme relevantly amended s 3.5.8.1 by inclusion of the words “and centre activities” at the end of the heading. The heading now reads “Element – New and expanded centres and centre activities” (Emphasis added). The provision relevantly provides: “3.5.8 Element – New and expanded centre and centre activities 3.5.8.1 Specific outcomes 1. Centre activities, other than an Accommodation activity, must be: (a) located in a centre unless: (i) there is a community need and economic need for the use; … (iv) the use: A. cannot be located in a principal centre, major centre, district centre, local centre or neighbourhood centre; B. is located in the Specialised centre zone, or in an employment area where it cannot be located in a specialised centre; or C. has a specific locational need requiring its location outside a centre and the use is located in accordance with the specific locational need; ….”35 [31] The Explanatory Report which accompanied the “Major Planning Scheme Amendment 2021” provides the following explanation for the change: “Section 3.5.8.1 of the Strategic Framework guides new and expanding centres by prescribing an ‘out of centre’ test for centre activities. These comprehensive criteria address community and economic need, scale, impact on centre hierarchy and separation distances. It has been identified through a Planning and Environment Court appeal, however, that the heading of this section, being ‘Element – New and expanded centres’, only applies to centre and 34 Ex. 3, Agreed Facts, [11], p 2; Ex. 5, CEO Certificate, Scheme Extracts, [4], p 2. 35 Ex. 5, CEO Certificate, Scheme Extracts (Version 9), p 248. -- 9 of 31 -- 10 not stand-alone centre activities. The heading is therefore to be expanded to explicitly capture centre activities thereby enabling this portion of Strategic Framework to be applied not only to centres but also stand-alone centre uses (such as Service stations) as part of the application assessment process. This will enable, where impact assessable, the demonstration of community need and economic need to justify a proposed use.” (Emphasis added). [32] The following table sets out the key events in relation to the adoption of the Scheme amendment and a timeline of the Development Application: Date Scheme amendment and Development Application status 1 Oct 2021 Development Application properly made.36 25 Oct 2021 Respondent issued information request. 7 Feb 2022 to 11 Mar 2022 Public consultation for Major Planning Scheme Amendment 2021 open. 5 Aug 2022 Respondent refused the Development Application, and the reasons for refusal relied upon referred to the draft planning scheme. 17 Aug 2022 Notice of appeal filed. 30 Sept 2022 Respondent’s List of Matters filed. Inconsistency with the planning intent for the location of centre activities in Strategic framework s 3.5.8.1 as amended in the “Major Planning Scheme Amendment 2021” was raised as an issue by the Respondent.37 25 Jan 2023 Major Planning Scheme Amendment 2021 adopted. 6 Feb 2023 Major Planning Scheme Amendment 2021 commenced.38 31 Mar 2023 Respondent’s Amended List of Matters filed. The issues were amended to, amongst other things, recognise that the draft planning scheme amendment package was by this stage in effect. 20 Nov 2023 Respondent’s Further Amended List of Matters filed. [33] It is uncontroversial that public consultation in respect to the amendment commenced more than four months after the Development Application was properly made, and the amendment did not come into effect until six months after the Development Application was refused. Nor is it controversial that the Respondent raised non- compliance with the proposed amended s 3.5.8.1 when refusing the Development Application, and immediately issues were identified in the appeal.39 [34] By the amendment, the provision now applies to stand-alone centre activities. Apart from the Low impact industry use (tyre shop), the proposal involves “centre activities”. Where such a proposal is impact assessable (as it is here), demonstration of community need and economic need may justify the location of the use outside a centre. If community need and economic need are demonstrated, planning need becomes a consideration. [35] The Respondent submitted weight should be given to the Scheme amendment. The Appellant submitted weight ought not be given. 36 Ex. 6, CEO Certificate, Existing Approval and Development Application, [4(b)], p 1. 37 Court Document 7. 38 Ex. 5, CEO Certificate, Scheme Extracts, [4], p 2. 39 T4-43 ll 26–30. -- 10 of 31 -- 11 [36] Sections 1(a)(ii) and (iii) are not in issue. In any event, I accept the evidence of the need experts that the proposed development would not have unacceptable adverse impacts on any existing or planned centre because of the significant population and demand growth in the main trade area, and that the majority of retail spending will continue to be directed to designated centres.40 [37] While there may be benefits to the uses being on a single site, this is not persuasive of a specific locational need for the proposed development. The tyre repair outlet is a destination use rather than a convenience style use. The evidence as to the benefits of the uses having a main road frontage focused on the food and drink outlets. That a main road frontage is not required for these uses is evident from a consideration of the existing food and drink outlets in the catchment. Only McDonald’s and KFC at Logan Village and Carl’s Jr on the Site have actual main road frontage. While the Site has the benefit of the Existing Approval, this alone does not justify a significant increase in the scale of the urban uses on the Site. For these reasons, I am not persuaded that there is a specific locational need for the proposal requiring its location outside a centre. [38] If weight were attributed to the Scheme amendment, that weight would support refusal of the application because of the findings: (a) about community need; (b) that the food and drink outlets, car wash and tyre retail outlet can be located in Logan Village and Yarrabilba PDA centres; and (c) about locational need. [39] As attributing weight to the Scheme amendment would not change the outcome of the appeal, it has not been necessary to determine the weight to be attributed to the Scheme amendment. What is the development approval and the lawful use of the Site? [40] By its decision notice dated 26 February 2018, the Respondent granted a development permit for a material change of use for a service station on the Site.41 The food and drink outlet and the childcare centre components of the application were refused. On 28 February 2020, a development permit for operational works for stormwater was granted for the Site.42 As a condition of that approval, landscape plans were approved, and landscaping works were required. On 7 May 2021, the Respondent undertook an audit of the operational works on the Site pursuant to the 28 February 2020 operational works approval. On 10 May 2021, the Respondent advised that it accepted the operational works pursuant to that approval were practically completed as at 7 May 2021.43 [41] The service station approval has been changed on a number of occasions. The most recent change was approved on 18 August 2022 (the Existing Approval).44 This approval involved a small increase in gross floor area and converted an ancillary food 40 Ex. 9, Need JER, [116], p 29. 41 Ex. 30, Respondent’s Decision Notice dated 26 February 2018. 42 Ex. 28, Respondent’s Decision Noticed dated 28 February 2020. 43 Ex. 27, Letter from Respondent to Cozens Regan Group dated 10 May 2021. 44 Ex. 6, CEO Certificate, Existing Approval and Development Application, p 4. -- 11 of 31 -- 12 and drink outlet to a stand-alone, drive through food and drink outlet.45 Pursuant to that change approval, landscape plans were approved.46 [42] The landscape plans approved on 18 August 2022 are not the same as those referred to in the operational works approval. It was uncontroversial that the vegetation on the Site is not consistent with the 18 August 2022 approved plans. Mr Curtis and Dr McGowan agreed that some vegetation which was required to be planted has not been installed, and some vegetation which was required to be retained is not in place.47 Thus, the appearance of the use is not consistent with the Existing Approval. In considering the current use and the character of the Site, I have had regard to what is on the Site. [43] If this development application is approved, it may not be possible to comply with both the Existing Approval and this approval. A change to the Existing Approval may be required so that compliance can be achieved. This is not fatal to the present application. [44] The Appellant has acted in reliance upon the approvals obtained. The service station has been operating on the Site for about three years. The food and drink outlet was expected to be completed in September 2023.48 It was operational at the time of the site inspection for this hearing in February 2024. [45] The present use of the Site pursuant to the approvals does not fall within those stated in AO1, PO1 and Overall outcome 3(e)(i) of the Rural residential zone code. [46] In carrying out the assessment, I have had regard to the development approvals and the lawful use of the Site. They inform: (a) the reasonable expectations as to the use of the Site, including when considering impacts, a baseline against which the impacts of the proposed development could be assessed;49 and (b) the character of the Site and its contribution to the character of the locality. What is the planning framework? [47] Relevantly, the Scheme includes a Strategic framework, zones and zone codes. The Strategic framework sets the policy direction for the Scheme and forms the basis for ensuring appropriate development occurs. It features a strategic intent, 11 themes, strategic outcomes for each theme, elements that refine and further describe the strategic outcomes and specific outcomes for the elements.50 Section 1.5 of the Scheme specifies a hierarchy of assessment benchmarks. Where there is an inconsistency between the provisions within the Scheme, the Strategic framework prevails over all other components to the extent of the inconsistency for impact assessment.51 Compliance with the codes is achieved by the compliance with (1) the 45 Ex. 6, CEO Certificate, Existing Approval and Development Application, p 7. 46 Ex. 6, CEO Certificate, Existing Approval and Development Application, pp 44–45. 47 Ex. 17, Separate Report of Dr McGowan, [9], p 4; Ex. 8, VA JER, [39]–[40], p 35, [69]–[70], pp 48– 49. 48 Ex. 14, Statement of Wayne Terrence Fussell dated 14 September 2023, [10], p 2. 49 Karalee Land Partners Pty Ltd v Ipswich City Council (2014) QPELR 603, [35]. 50 Ex. 5, CEO Certificate, Scheme Extracts, s 3.1, p 24. 51 Ex. 5, CEO Certificate, Scheme Extracts, s 1.5, p 14. -- 12 of 31 -- 13 purpose and overall outcomes of the code, or (2) the performance or acceptable outcomes of the code.52 What are the issues requiring determination? [48] The parties agreed a list of issues.53 These issues require the following questions to be determined: (a) is the proposed development an appropriate use of the Site? (b) does the built form of the proposed development dominate and is it incompatible with a “bushland setting” and a non-urban character? (c) does the proposed development protect rural residential visual amenity and character? (d) is there a need for the proposed development? (e) do the relevant matters identified by each party support approval or refusal? [49] Appropriately, the parties narrowed the issues during the course of the preparation for the hearing so that acoustic and flooding issues were not required to be determined by the Court. The character and visual amenity experts addressed provisions of the Landscape code in their Joint Expert Report (VA JER). The Respondent appropriately advised the Court that while compliance with these provisions was not accepted, it conceded that compliance with the Landscape code was not determinative of the appeal and so did not press the issue in the proceedings. This approach allowed the Court to deal with the real issues in dispute. Is the proposed development an appropriate use of the Site? [50] The Respondent contends that the proposed development constitutes an unacceptable land use having regard to the following assessment benchmarks: Logan Planning Scheme 2015 (Version 8.0) Strategic framework – Element – Regional landscape and rural production area – Specific outcome 3.3.5.1(1)(a) The Regional landscape and rural production area has non-urban character defined by: a. rural, rural residential, tourism, environmental and outdoor recreation uses; Strategic framework – Element – Regional landscape and rural production area – Specific outcome 3.3.5.1(3) Rural communities are to access urban services such as retail, commercial and community uses from the rural towns in the urban footprint such as Jimboomba and Logan Village and these services are not to be provided in the Regional landscape and rural production area. Rural residential zone code – Purpose 6.2.13.2(1) The purpose of the Rural residential zone is to provide for residential uses and activities on large lots, including lots for which the local 52 Ex. 5, CEO Certificate, Scheme Extracts, s 5.3.3(4)(c), p 76. 53 Ex. 2, List of Issues. -- 13 of 31 -- 14 government has not provided infrastructure and services. Rural residential zone code – 6.2.13.2(2)(a)–(b) The local government purpose of the Rural residential zone code is to: a. predominantly provide for Dwelling houses on larger lots; b. provide for development in a semi-rural, landscaped or bushland setting; Rural residential zone code – Overall outcome 3(e)(i) The purpose of the Rural residential zone code will be achieved through the following overall outcomes: … e. in the Park living precinct: i. land use comprise Caretaker’s accommodation, Dual occupancy (auxiliary unit), Dwelling house, Emergency services, Home-based business or Sales office; Rural residential zone code – PO1 PO1 A use in the Rural residential zone is for uses identified in: … c. section 6.2.13.2(3)(e)(i) overall outcomes for the Park living precinct; or … Rural residential zone code – AO1 AO1 A use in the Rural residential zone is for uses identified in: … c. section 6.2.13.2(e)(i) overall outcomes for the Park living precinct; or … [51] Purpose (1) of the Rural residential zone code is to provide for residential uses and activities on large lots. The phrase “residential uses and activities” is not defined in the Scheme. The principles applicable to the construction of planning schemes are well-established.54 I do not accept that “activities” means any use. The meaning of “activities” is informed by the preceding words. Thus, the activities to be provided 54 Zappala Family Co Pty Ltd v Brisbane City Council (2014) QPELR 686. -- 14 of 31 -- 15 on large lots in the Rural residential zone are residential in nature. The proposed uses are commercial,55 and so are inconsistent with the purpose. [52] Purpose (2)(a) of the Rural residential zone code does not exclude other uses, requiring only that “predominantly” Dwelling houses are provided for in the zone. “Predominant” is defined as “prevailing”.56 Other uses are not excluded. With respect to Purpose 2(b), for the reasons below, I am not satisfied that this proposal comprises development in a semi-rural, landscape or bushland setting. [53] For these reasons, the proposal is not consistent with the purpose of the Rural residential zone code. [54] Car wash, Food and drink outlet and Low impact industry are not uses identified in Overall outcome 3(e)(i), PO1 and AO1 of the Rural residential zone code. However, that is not the end of the matter. These provisions were considered by Williamson KC DCJ in Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors.57 His Honour considered the planning consequences where a proposed use falls outside the list of uses in OO3(e)(i). As his Honour observed, the provisions do not expressly discourage other uses. The uses envisaged in the Rural residential zone are not limited to those identified in OO(3)(e)(i). The zone code envisages that non-residential uses may occur in the Park living precinct of the zone. It is appropriate to have regard to: (a) the extent to which the zone code anticipates non-residential uses; and (b) an assessment of the development against specific controls for the zone, particularly in relation to built form, visual amenity and character. [55] As found below, the benchmarks in issue regarding built form and a non-urban character are not met. Non-compliance with these provisions suggests that the impacts of the proposed development are not acceptable, and the proposal is not an appropriate use of the Site. The Strategic framework provides guidance regarding the weight to be attributed to this. [56] The Site is outside the Urban footprint. Accordingly, the Regional landscape and rural production area provisions of the Scheme’s Strategic framework apply. The Strategic framework sets the policy direction for the Scheme. The Settlement pattern Strategic Outcomes provide that the Regional landscape and rural production area is “an expansive non-urban area with a non-urban character”.58 [57] The proposed development is not of a type of use listed in s 3.3.5.1(1)(a). The uses will not have a non-urban character. They are urban uses and are commercial in nature. The urban nature of the uses will influence the character of this area, extending the current urban use of the Site, contrary to its intended non-urban character. [58] The Specific outcome in s 3.3.5.1(3) for the Regional landscape and rural production area contains an exclusion, specifically that urban services such as retail, commercial and community uses are “not to be provided in the Regional landscape and rural 55 Ex. 35, Written Submissions of the Appellant, [83(c)], p 33. 56 Macquarie Dictionary, Eighth Edition. 57 (2020) QPELR 899, [166]–[174]. 58 Ex. 5, CEO Certificate, Scheme Extracts, s 3.3.1(4), p 27. -- 15 of 31 -- 16 production area.” This strong language demonstrates a clear and deliberate policy intention. Commercial uses such as these are not to be provided. [59] The Appellant submitted that s 3.3.5.1 of the Scheme does not call for refusal of the proposal as the non-urban character is already interrupted by urban features in the locality, including the existing uses on the Site, the Procon service station, the road infrastructure, Waterford Tamborine Road itself, electricity infrastructure and the residential housing development. [60] Section 3.3.5.1 of the Strategic framework should not be applied in an inflexible manner. To do so would fail to have sufficient regard to the lawful use of the Site. However, I am not persuaded by the Appellant’s submission for three reasons. [61] First, the Respondent determined that the current use on the Site conflicted with provisions of the Scheme, but found there were sufficient grounds to approve the development application, in particular, there was an identified and demonstrable need, despite the conflict.59 To the extent the Procon proposal at 1601 Waterford Tamborine Road did not meet the benchmarks, the Respondent was satisfied that there was a community and economic need for the proposal.60 Thus, these sites are urban in nature because the Respondent was satisfied that while those proposals did not comply with the relevant scheme provisions, there was a demonstrated need for each proposal which supported approval. [62] Second, the residential development influences the character, but is contained within the Urban footprint. It is low density residential development in the Low density residential zone. It comprises urban development in the Urban footprint. [63] Third, for the reasons in [72], the area has a semi-rural character and a bushland setting. The current use of the Site is urban. Pursuant to an existing approval, it is used for a service station and single food and drink outlet with a drive through. This informs expectations about the nature of the use and the scale and built form of uses on the Site and its future use. The present use is smaller in scale, has fewer buildings and fewer uses than the proposal and does not include extensive retaining walls and acoustic barriers. The proposal would increase the scale and number of urban uses on the Site and introduce new uses in an area intended to be non-urban. For these reasons, it would, in my view, increase the extent of the built form on and urban character of the Site beyond the reasonable expectations informed by the current use and approval. [64] Ultimately, of course, each application must be considered on its merits. [65] To the extent OO3(e)(i), PO1 and AO1 admit of the prospect that non-residential uses may occur in the Park living precinct of the zone, this is discordant with the clear and deliberate policy intent of the Strategic framework. Sections 3.3.5.1(1)(a) and (3) of the Strategic framework provide that the area has a non-urban character defined by rural, rural residential, tourism, environmental and outdoor recreation uses, and that urban services such as those proposed are not to be provided in the Regional landscape and rural production area. The proposed uses are not reasonably expected on land in the Park living precinct which is also subject to the Regional landscape and rural production area. 59 Ex. 30, Respondent’s Decision Notice for the Site dated 26 February 2018, p 3. 60 Ex. 33, Respondent’s Change Application Decision Notice dated 25 August 2021, pp 3, 5. -- 16 of 31 -- 17 [66] The Strategic framework does not support uses of this nature where the land is outside the Urban footprint, and in the Regional landscape and rural production area. Urban services, relevantly retail and commercial uses, are not to be provided. The proposal is not an appropriate use of the Site having regard to the benchmarks in issue. Given the nature of the non-compliance, it cannot be remedied by the imposition of conditions. As the Strategic framework does not support these uses on the Site, the non-compliance with the zone code should be given significant weight. Does the built form of the proposed development dominate and is it incompatible with a “bushland setting” and a non-urban character? [67] The Respondent contends that the proposed development should be refused on the basis of the following assessment benchmarks having regard to its built form: Logan Planning Scheme 2015 (Version 8.0) Strategic framework – Element – Regional landscape and rural production area – Specific outcome 3.3.5.1(1)(b) 1. The Regional landscape and rural production area has non-urban character defined by: … b. the predominance of natural landscape over buildings and structures; Rural residential zone code – 6.2.13.2(2)(b) 2. The local government purpose of the Rural residential zone code is to: … b. provide for development in a semi-rural, landscaped or bushland setting; Rural residential zone code – Overall outcome 3(a)(ii)–(iii) 3. The purpose of the Rural residential zone code will be achieved through the following overall outcomes: a. the design of the built form: … ii. produces a built form that is compatible with the semi-rural, landscaped or bushland setting; iii. provides that the semi-rural, landscaped or bushland setting predominates over the built form; Rural residential zone code – PO4 PO4 A building or structure has a boundary clearance that is compatible with the setting for the precinct having regard to: a. visual amenity; b. privacy. -- 17 of 31 -- 18 Rural residential zone code – AO4 AO4 A building or structure, other than an existing lawful building or structure, has a minimum: a. road boundary clearance of 20 metres where it has a frontage to Mount Cotton Road or Beenleigh-Redland Bay Road; or b. road boundary clearance of 10 metres on all other roads; c. side and rear boundary clearance of three metres. Rural residential zone code – PO24 PO24 The built form does not dominate the landscape or bushland setting. Rural residential zone code – AO24 AO24 No acceptable outcome provided. [68] “Predominance” is not defined in the Scheme. Adopting its ordinary meaning, it is defined as “the quality of being predominant; prevalence over others”. In the absence of a definition in the Scheme, “compatible” must be given its ordinary meaning. The Macquarie Dictionary defines “compatible” as “capable of existing together in harmony”. “Harmony” is defined as “a consistent, orderly or pleasing arrangement of parts; congruity”.61 [69] Dr McGowan accepted that the Site has not contributed to the bushland setting nor the protection of the rural residential visual amenity62 consistent with the requirements of the Scheme, since at least 2019. That this is likely to be the case is evident from the aerial imagery in Exhibit 19. The background to the use of the Site prior to the opening of the service station is unknown. However, the situation since at least 2019 is hardly surprising. The service station approval was granted in 2018 and the service station was opened in 2021. Between the granting of the approval and the opening of the service station, siteworks and construction would have been undertaken on the Site. In carrying out the assessment, I have had regard to the development approval and the lawful use of the Site, as required by the Planning Act. [70] The current use of the Site is urban. The canopy, front pylon sign and the building are particular features of the developed area of the Site. This is apparent from Figures 2 to 8, 38 and 39 of the VA JER. This is inconsistent with the intended non-urban character. Due to the presence of the vegetation at the rear of the Site, it presently appears as built form with a bushland backdrop.63 [71] That the proposed use would be urban in character was accepted by Mr Curtis,64 and is supported the photomontages. He did not consider that the proposed development offers a predominance of natural landscape over buildings and structures within the 61 Macquarie Dictionary, Eighth Edition. 62 T3-33 ll 9–12, ll 22–23. 63 Ex. 8, VA JER, [49(c)], p 42. 64 T2-90 l 32. -- 18 of 31 -- 19 development footprint.65 Rather, he opined that the development facilitates a built form that is compatible with the semi-rural, landscaped or bushland setting, which is a setting already modified by the existing service station on the Site.66 He agreed that in considering the setting, it is necessary to consider the Site, the area across the road and the neighbouring properties.67 [72] The character of the Site is influenced by the current use and its proximity to the signalised intersection, and the acoustic barrier and roof tops of the residential estate. However, that is not all that influences the character of the locality. The Scheme envisages that Rural residential zoned land has a semi-rural, landscaped or bushland character. The Rural residential zone extends in all directions from the Site, except in the direction of the residential estate on the corner of Waterford Tamborine Road and Stockleigh Road in the Urban Footprint.68 Regard must be had to the uses to the south and opposite the Site, not just those to the north-west. The low density residential development is set back from the intersection behind a grassed verge. The uses in the area, apart from the residential estate and the service station and food and drink outlet, are largely screened by vegetation. Considered in that context, while the current development area of the Site is urban, which influences the character of the Site, it does not compromise the Rural residential zone character attributes of the locality. The locality has a semi-rural character and a bushland setting.69 This is evident from Figures 47 to 53 of the VA JER. [73] The proposed built form comprises four new single storey buildings, acoustic barriers, retaining walls, extensive hardstand and signage in an area intended to be non-urban. The proposal will primarily occupy the currently vacant, cleared land on the front portion of the Site. Red Rooster has expressed interest in the northern food and drink outlet and Guzman Y Gomez has expressed interest in a tenancy in the southern food and drink outlet.70 I proceed on the basis that this interest continues despite the change in the proposal pursuant to the Court order made on 10 November 2023.71 The addition of the red coloured livery to the northern tenancy and the yellow and black coloured livery to the southern tenancy will increase the prominence of this built form. [74] Mr Curtis had regard to the building site cover of 7.6%, the building heights and the positioning and separation of the proposed buildings to opine that the proposed development is of a “relatively modest scale and intensity”.72 [75] In considering these provisions of the Scheme, it is appropriate to have regard to all the built form, not just the buildings. The development footprint is 10,600m², excluding the areas of vegetation, and comprises approximately 40% of the Site. While the proposal increases the extent of the built form, the existing bushland on the rear of the Site will generally remain. The plans and photomontages confirm that the buildings are dispersed across the development footprint.73 However, they also confirm that there are large areas of hardstand between the buildings, with limited 65 T3-20 ll 39–40. 66 T3-21 ll 34–39. 67 T2-94 l 45 to T2-95 l 20. 68 Ex. 1, Book of Plans and Documents, Zone map, p 1. 69 Ex. 8, VA JER, [96], p 52. 70 Ex. 14, Statement of Wayne Terrence Fussell dated 14 September 2023, [15]–[24], pp 3–4. 71 Ex. 15, Statement of Wayne Terrance Fussell dated 15 February 2024, [5], p 1. 72 Ex. 8, VA JER, [53], p 44. 73 Ex. 1, Book of Plans and Documents, Photomontages, pp 37, 39, 41. -- 19 of 31 -- 20 vegetation incorporated into the development footprint. The hardstand area facilitates car parking and vehicular circulation, which further contribute to the urban character of the proposal. The development footprint is located in the east of the Site, the most prominent part of the Site. The retaining walls and acoustic barriers are significant structures in terms of length and height. Their location towards the perimeter of the development area expands the area of the Site devoted to urban uses. While the tyre retail building will be setback from Waterford Tamborine Road, it will be visible across the forecourt of the service station. The food tenancies will be more visible, but no more visible than the prominent existing service station.74 Although no more visible than the existing service station, the service station is very visible.75 Further, the effect of these buildings is that the urban built form along the frontage of the Site will double from the current 85m to approximately 170m. [76] The proposal would significantly increase the area impacted by urban use. While the current use is urban, the proposal has the effect of tripling the area of urban development on the Site. While the bushland at the rear will be maintained, it has limited impact in terms of achieving compliance with the Scheme. Due to the location of the built form, it will predominate, rather than the natural landscape at the rear of the Site. The scale of the buildings and structures, their location towards the front of the Site, and their urban appearance cause the built form to dominate the bushland setting and the semi-rural character. The built form is not of a form that provides for the bushland setting to prevail over the built form, which is apparent from the photomontages.76 The proposal would contrast with the surrounding non-urban land. This has the effect that the built form is not compatible with the semi-rural character and bushland setting. [77] For these reasons, I am not satisfied that OO3(a)(ii) and (iii), PO24 and AO24 are met. The significance of this non-compliance is revealed by the Strategic framework. It requires that the Rural landscape and rural production area has a non-urban character defined by a predominance of the natural landscape over buildings and structures. Given the nature of the non-compliance, it cannot be remedied by the imposition of conditions. That the proposal is non-compliant with these provisions is a factor which weighs against approval. [78] AO4 requires a 10m front setback and a 3m side setback. The northern food and drink outlet has a minimum setback of 8.5m from the Waterford Tamborine Road frontage. The buildings otherwise achieve the Acceptable outcomes for the side and front boundary setbacks. In the context of the Site, this is a minimal intrusion. [79] The northern acoustic barrier is setback 5m from the frontage and between 1.8 and 2m from the side boundary. This failure of the acoustic barrier to comply with the Acceptable outcome, particularly with respect to the side boundary, is potentially more significant. This is due to the smaller setback requirement, the more significant extent of the encroachment, that the acoustic barrier extends for approximately 93m in this location, and that the character of the proposal is inconsistent with the intended character of the Site. It is necessary to examine issues of visual amenity and privacy. While the current use of the Site has changed the character from that intended, this proposal brings urban uses closer to the side boundaries and increases the area of urban use. 74 Ex. 8, VA JER, [56], p 44. 75 T3-9 ll 25–26. 76 Ex. 1, Book of Plans and Documents, Photomontages, pp 37, 39, 41. -- 20 of 31 -- 21 [80] Dr McGowan expressed concern that the landscaping in the 1m wide space between the northern boundary and the parallel retaining wall, and the 800mm strip of landscaping between the top of the retaining wall and the acoustic barrier, will be difficult to maintain.77 If not properly maintained, the visual screening of the retaining wall and acoustic fence on the northern boundary will be compromised. Mr Brooksby gave evidence that this vegetation could be maintained. This would involve the selection of appropriate species and management practices which could be achieved practically by the implementation of a maintenance management plan.78 Worker safety during the regularly required maintenance will also be required to be addressed in the maintenance management plan. While the confined nature of these spaces will make maintenance difficult, I proceed on the basis that it can be maintained to achieve effective screening consistent with Mr Brooksby’s evidence. Further, I have assumed that if approved, the maintenance management plan will be complied with, so, despite the practical difficulties of the maintenance of this screening vegetation, this northern retaining wall and acoustic barrier will be adequately screened. [81] The development is approximately 100m and 40m from the closest neighbouring dwellings in this location. The acoustic barrier will be screened by vegetation which will assist in reducing its appearance.79 For these reasons, subject to the imposition of conditions, I accept that the privacy and visual amenity of the residents on the northern boundary will not be unacceptably impacted and PO4 is satisfied. Does the proposed development protect rural residential visual amenity and character? [82] The Respondent contends that the proposed development would have an unacceptable amenity impact having regard to the following assessment benchmarks: Logan Planning Scheme 2015 (Version 8.0) Strategic framework - Element – Regional landscape and rural production area - Specific outcome – 3.3.5.1(1)(c) 1. The Regional landscape and rural production area has non-urban character defined by: … c. limited, dispersed buildings and structures that are integrated with the natural landscape. Strategic framework – Element – Design and placemaking – Specific outcome – 3.11.2.1(1)(b) 1. Development creates a high quality attractive and functional built environment that: … b. is responsive and sympathetic to the local topography and is consistent with and reinforces the intended character; Strategic framework – Element – Amenity – Specific outcome – 3.11.3.1(1)(c)(i) (Visual amenity only) 1. The level of amenity to be expected varies throughout Logan where: … 77 Ex. 8, VA JER, [38], p 35. 78 Ex. 13, Landscape Separate Report, [7]–[9], pp 3–4. 79 See [80] of these reasons. -- 21 of 31 -- 22 c. in rural residential locations, such as in a Rural residential zone, the level of amenity is commensurate with a rural residential environment where: i. there are very low density living environments with some low level … visual amenity impacts; Rural residential zone code – 6.2.13.2(2)(c) 2. The local government purpose of the Rural residential zone code is to: … c. protect rural residential amenity. Rural residential zone code – OO3(b) 3. The purpose of the Rural residential zone code will be achieved through the following overall outcomes: … b. development protects amenity consistent with its location in the Rural residential zone or precinct and the surrounding area; Filling and excavation code – 9.4.2.2(1) 1. The purpose of the code is to protect premises, people and natural processes from adverse impacts associated with filling or excavation. Filling and excavation code – OO2(a)(iv) 2. The purpose of the code will be achieved through the following overall outcomes: … a. development protects: … iv. visual amenity. Filling and excavation code – PO8 PO8 A retaining wall: a. is not constructed of timber and is not located on existing or proposed lot boundaries, or movement networks; b. does not adversely affect the natural physical processes and ecosystems; c. is located to avoid conflict with adjoining premises; d. is located such that existing and planned infrastructure is not adversely affected; e. protects the visual amenity of adjoining premises or a public open space; -- 22 of 31 -- 23 f. is located within the premises that is being filled; g. is located within the premises that is cut and is designed to take any surcharge loading allowable on the uphill lot; h. is safe and stable; i. enables easy access for maintenance. Filling and excavation code – AO8 AO8 A retaining wall is designed and constructed to comply with the standards specified in section 3.3.6.2 – Retaining walls in Planning scheme policy 5 – Infrastructure. [83] For the reasons at [75], the buildings and the structures are dispersed across the development area. They are not limited and integrated with the natural landscape for the following reasons. The natural landscape will be evident to the rear of the Site. The height of the existing canopy enables the vegetation at the rear of the Site to be seen in the area under the canopy, which has the effect of the vegetation appearing to be interspersed in that area. However, the buildings and structures are prominently positioned at the front of the Site. They do not have the appearance of being limited, as they extend across the front of the Site. They do not appear to be integrated with the natural landscape, even if the vegetation incorporated into the development area is considered. This is supported by the photomontages. [84] The proposal is urban in nature. The effect of the proposal is to significantly increase the size of the area to be used for urban purposes and to increase the number and range of urban uses beyond that for which the Site is presently used. The increased urban nature of the Site will be apparent from Waterford Tamborine Road. For these reasons, the proposal is not consistent with, or reinforcing of, the intended non-urban character. That the proposal does not possess a non-urban character means the proposal fails to protect the rural residential amenity. [85] As has been acknowledged, “the wide-ranging concept of amenity contains many aspects which may be very difficult to articulate”.80 Having regard to the benchmarks in issue and to the circumstances of the Site, Mr Curtis and Dr McGowan considered impacts on existing privacy, access to daylight and breezes, the change to outlooks, the potential sense of overbearing by the incompatible bulk and scale of the neighbouring development, and a change to the dominant character of the neighbouring streetscape and neighbourhood as relevant matters for this consideration. [86] That the proposal will change the dominant character of the streetscape has been dealt with above. The development will not unduly impact on the privacy of, access to daylight for, or be overbearing for, neighbouring residents. This is because of the separation distances between the development and the closest dwellings. The impacts 80 Broad v Brisbane City Council & Anor [1986] 2 Qd R 317, 326. -- 23 of 31 -- 24 on neighbouring properties to the east can be adequately mitigated by the imposition of conditions addressing landscape, signage, the colour schemes for the carwash facility, and lighting.81 [87] An extensive system of retaining walls and acoustic barriers, such as that proposed, possess an urban character and are not expected in a bushland setting or a rural residential environment.82 They have the effect of bringing urban uses closer to the neighbours on the side boundaries. [88] Landscaping at the Site’s north-west corner will partially screen the northern food and drink building. The issue of visual amenity with respect to the northern retaining wall and acoustic barrier is dealt with at [79] to [81]. [89] As the area between the southern boundary and the retaining wall is to accommodate an open drain, vegetation within that 3m will be limited to ground cover species,83 which will offer no screening. Screening vegetation can be accommodated within the triangular setback area to the western part of the combined retaining wall and acoustic barrier on the southern boundary. There is a portion where the distance between the boundary and the retaining wall and acoustic barrier reduces to 3m. Beyond that area, to the east, the Site building is located further from the buildings on the southern property. It is likely there would be some views from the house towards the Site. The views of the Site from this neighbour are already impacted by the Carl’s Jr building and associated drive through. However, the existing 2m high boundary fence and vegetation to the boundary on the southern property will provide partial screening. [90] For these reasons, I am satisfied that having regard to the current use of the Site, with the imposition of conditions, the effect of these walls and barriers on the visual amenity of these neighbours can be mitigated, and the proposal can be conditioned to comply with the visual amenity aspect of Specific outcome 3.11.3.1(1)(c)(i) of the Strategic framework, and with the benchmarks in issue from the Filling and excavation code. However, I am not satisfied that the proposal complies with Specific outcomes 3.3.5.1(1)(c) and 3.11.2.1(1)(b) of the Strategic framework and purpose 2(c) and OO3(b) of the Rural residential zone code. These non-compliances weigh against approval. Is there a need for the proposed development? [91] The Appellant relied upon need for the proposal as a matter that favours approval of the Development Application. [92] Before turning to the evidence, it is helpful to identify the well-established principles which inform and guide an assessment of need. They are conveniently summarised in Isgrow v Gold Coast City Council & Anor:84 (a) a use is needed if it would, on balance, improve the services and facilities available in a locality; (b) need, in planning terms, does not mean pressing or critical need, or even a wide- spread desire; 81 Ex. 8, VA JER, [147], p 64. 82 T3-16 ll 12–21. 83 Ex. 8, VA JER, [150], p 64. 84 [2003] QPEC 2, [20]–[26]. -- 24 of 31 -- 25 (c) the question of need is decided from the perspective of the community and not that of an applicant, commercial competitor or those who make adverse submissions; (d) providing competition and choice can be a matter which provides for a need; (e) any possible adverse effect on an existing business will only be relevant to the extent there is a risk of a reduction in the level of services enjoyed by the community by depressing one provider, and not replacing it with another; and (f) need is a relative concept to be given greater or lesser weight depending on all of the circumstances. [93] In that decision, his Honour Judge Wilson SC (as his Honour then was) stated: “Need, in planning terms, is widely interpreted as indicating a facility which improve the ease, comfort, convenience and efficient lifestyle of the community…of course, a need cannot be contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or not being adequately met. Need, in the town planning sense, does not mean a pressing need or a critical need or event a widespread desire that relates to the well being of the community.”85 (Footnotes omitted) [94] Planning need is not limited to the need for the proposed development on the particular site in question and no other site. The existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter, depending on all the circumstances of the case.86 [95] These are general statements of principle that inform and guide an assessment of need. They are not a checklist that must be established in every case. Rather, the assessment of need is a flexible process. This has long been recognised and was confirmed by the Court of Appeal in Yorkeys Knob BP Pty Ltd v Cairns Regional Council.87 [96] Mr Musk, for the Appellant, and Mr Leyshon, for the Respondent, gave economic and need evidence. The experts agreed in their JER that there was an economic need for the elements of the proposed development. However, the extent of this need, particularly with respect to food and drink outlets, diminished over the course of the hearing. [97] Between 2025 and 2036, the main trade area population is expected to grow significantly, from 26,465 to 46,395 persons.88 Between 2023 and 2036, around 90.5% of the projected population growth is expected to occur in the Yarrabilba PDA primary trade area.89 The residents of the main trade area are more car dependant than the average working Queenslander, as a higher proportion than the State average 85 Isgrow v Gold Coast City Council & Anor [2003] QPEC 2, [20] citing Watts & Hughes Properties Pty Ltd v Brisbane City Council (1998) QPELR 273, 275 and Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126, 131. 86 Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, [51]. 87 [2022] QCA 168, [30]. 88 Ex. 9, Need JER, [44], p 12. 89 Ex. 9, Need JER, [44], p 12. -- 25 of 31 -- 26 travel to work by car, and they travel longer distances. With the growth in population, demand for these types of facilities will increase. [98] Mr Musk identified a range of community benefits arising from the proposal:90 (a) improved convenience and access to a range of services; (b) increased supply of food and drink options, particularly before 7:00am; (c) enhanced variety, range and choice in the supply of facilities, particularly in respect of manual car wash bays and two new food and drink operators in the area; (d) co-location benefits by establishing a large range of vehicle-orientated uses on the Site; (e) responsive to the high vehicle dependence of the population of the trade area; and (f) enhanced supply and convenience of food and drink options on the homeward bound journey of Yarrabilba residents who commute north. Food and drink outlets [99] The proposal will provide an additional 545m² of food and drink outlet floor space. I accept the expressions of interest by Red Rooster and Guzman Y Gomez in the food and drink outlets are supportive of the need for food and drink outlets. As at June 2024, there is an undersupply of food and drink outlet floor space in the trade area of 2,221m².91 This need has decreased from 2,532m² in June 2023, and will continue to decrease to 702m² in June 2025 as a result of approvals in the catchment. This is not suggestive of a strong need for food and drink outlets. [100] There is a pending development application before the Respondent for a proposal involving three tenancies in Logan Village, one being a 165m² food and drink tenancy with a drive through. The proposal is in the Centre zone and is code assessable. This application indicates the existing planning provisions for Logan Village are capable of meeting demand, and that the planning instrument is working. [101] The catchment is well-serviced with local and national branded food and drink outlets. Mr Musk accepted that for residents of Yarrabilba PDA, the most convenient location for food and drink outlets would be in the Yarrabilba PDA,92 and the catchment provides a wide range of choice.93 Outside of Yarrabilba PDA, there are food and drink outlets on the site and in Logan Village Centre.94 The Yarrabilba Development Scheme contemplates and provides for this use.95 [102] Food and drink outlets can be accommodated in the Centre zone, and if less than 200m², are code assessable in the Low impact industry zone. All Centre zoned lots within Logan Village with frontage to Waterford Tamborine Road or Anzac Avenue are either occupied or subject to a proposed or approved development application. 90 Ex. 9, Need JER, [128], p 35. 91 Ex. 10, Separate Report of Mr Musk, Table 6.2, p 9; Ex. 9A, Updated Need JER, Table 6.2, p 29. 92 T2-7 ll 45–47. 93 T2-8 l 45 to T2-9 l 1. 94 T2-8 ll 1–5. 95 Ex. 9, Need JER, [33]–[34], p 8, Fig 3.1, p 9, Appendix 8, p 65. -- 26 of 31 -- 27 There are a number of Centre zoned sites set back from these frontages which are under-utilised and could accommodate the proposed uses. Mr Musk considered these sites would be less attractive to operators and would not provide the same convenience and co-location benefits as the Site. While these sites may be less attractive to national chain food and drink retailers with drive through facilities, such facilities in the Logan Village Centre are still likely to be viable due to their prominence and online presence. There is suitably zoned land in the Urban footprint to accommodate this use. [103] For these reasons, to the extent there is a need for food and drink outlets, it is not a pressing need. Food and drink outlets can be accommodated on existing zoned land. Further, the evidence is that further food and drink outlets are being supplied responsive to demand. For these reasons, I am not persuaded there is a latent unsatisfied demand for food and drink outlets that is not being adequately met by the planning instruments. Tyre retail facilities [104] The need experts concluded that there is an implied undersupply of 1.9 tyre retail facilities in 2024, which they expected would increase with the increase in population to 2.6 in 2025, 3.4 in 2027 and 4.1 in 2029.96 Further, the experts agreed that demand for tyre repair facilities in the main trade area was 10% higher than for the local government level due to higher vehicle ownership and average drive distance to work for residents in the catchment. [105] The analysis by the experts considered only facilities limited to tyre retailers alone; it ignored facilities which provide that offer, such as mechanics.97 This was an approach agreed between the experts. However, in terms of the consideration of community need, these other facilities are relevant. All facilities that provide tyre repair services, not just those limited to tyre retailing, are relevant in considering competition, choice and convenience in the community. For example, UltraTune in Yarrabilba, located with a car wash, was not included in the supply figures adopted by the experts, but offers tyre retailing. I am satisfied that facilities other than dedicated tyre retailers would assist to address need and provide convenience, choice and competition for the trade area population. As the implied undersupply fails to take these facilities into account, I am not persuaded that the implied undersupply reliably reflects the community need for such facilities. [106] Visits to tyre repair facilities are not regular, but are instead measured in years.98 It is not unreasonable to expect consumers to travel a longer distance to access a service only required every few years. For these reasons, I am not persuaded that the tyre retail use benefits from co-locating at this Site. [107] A car wash and a tyre repair facility is code assessable in the Low impact industry area, located opposite Logan Village Centre. There is appropriately zoned vacant land in that location that can accommodate these two uses on a single site. Mr Adams accepted that there was appropriately zoned land in the catchment to accommodate the car wash and tyre retailer. Mr Musk opined that they would not be as convenient and accessible if located in these areas as intended by the Scheme. 96 Ex. 9A, Updated Need JER, Table 6.6, p 32. 97 T2-39 ll 38–47. 98 T2-10 ll 15–37. -- 27 of 31 -- 28 [108] There are two tyre fitting and tyre maintenance businesses, as well as a number of businesses for the maintenance and servicing of motor vehicles, in the Low impact industry area.99 This suggests the location is convenient and the use does not require direct access to a main road. It is apparent from Appendix 11 of the Further Town Planning Joint Expert Report (TP JER): (a) there are existing tyre fitting and tyre maintenance businesses and businesses for the maintenance and servicing of motor vehicles in the industrial area opposite Logan Village Centre and within the Yarrabilba PDA; and (b) there is land available within the Logan Village Urban footprint and the Yarrabilba PDA Urban footprint that might reasonably accommodate the proposed uses.100 [109] The location of these facilities in Yarrabilba and proximate to Logan Village, would be convenient and accessible to the primary trade area. For these reasons, I am not persuaded that there is a latent unsatisfied demand for tyre retailers that is not being adequately met by the planning instruments. Car wash facilities [110] The experts concluded that there is an implied undersupply of 1.4 car wash facilities in 2024, 0.5 in 2025, 0.9 in 2027 and 1.2 in 2029.101 This is not suggestive of a strong need. The drop in undersupply from 2024 to 2025 takes into account the increase in car wash facilities as a result of the car wash proposed at the service station approved and under construction at 1601 Waterford Tamborine Road.102 [111] The experts considered a significant gap existed in the market being the absence of hand wash/polish or manual self wash options.103 In identifying this gap, the experts did not take into account the car wash facilities at 1601 Waterford Tamborine Road as it was subject to a legal challenge at the time. The car wash at 1601 Waterford Tamborine Road includes automatic and manual detailing bays.104 There is a car wash facility in the Yarrabilba PDA. It is automated, but offers a manual detailing service on Thursday, Friday and Saturday, which was not taken into account by the experts.105 These services assist to address the significant gap in the market identified by the experts. [112] The disposable income of the Yarrabilba PDA community (the primary driver of need) is lower than other areas.106 Paying for a car wash is a discretionary spend.107 To wash their car, residents need not attend at a car wash facility. Instead, they may wash it themselves or engage a mobile retailer. [113] The experts relied upon data comprising commercial car wash facilities only, as that is what is intended by the proposal. The analysis excludes mobile car wash and detailing facilities. These mobile facilities would likely address the identified gap in the market for hand wash/polish services. 99 Ex. 7, TP JER, Appendix 11, pp 159–166. 100 Ex. 7, TP JER, Appendix 11, pp 159–166. 101 Ex. 9A, Updated Need JER, Table 6.4, p 31. 102 Ex. 9A, Updated Need JER, Notes to Table 6.4, p 31. 103 Ex. 9, Need JER, [64], p 19. 104 Ex. 33, Respondent’s Change Application Decision Notice dated 25 August 2021, p 29. 105 T4-10 ll 15–27. 106 T2-18 l 46 to T2-19 l 5. 107 T2-19 ll 7–9. -- 28 of 31 -- 29 [114] There is no certainty that the car wash proposed will offer hand wash/polish services. The Agreement to Lease dated 3 October 2019 refers to an “automated car wash facility”.108 The plans depict two manual bays, one automatic bay and six vacuum bays.109 Whether the manual wash is undertaken by the vehicle owner or the operator of the car wash is not established. I proceed on the basis that the facility will offer car wash facilities, but that the evidence does not establish that the particular gaps in the market are met by the proposal. I am not persuaded that the community need for car wash facilities is strong due to the other available options for car washing and the discretionary nature of the spend. [115] A car wash can be accommodated and is code assessable in the Centre zone and the Low impact industry zone. There was no suggestion that car wash and tyre retail facilities could not be accommodated in Logan Village or Yarrabilba. In February 2023, on a site located at 1644–1666 and 1668–1730 Waterford Tamborine Road, Yarrabilba, an application for a material change of use was approved. The approved plan of development shows 49 non-residential lots and a list of 30 approved uses including “Service Industry (Car Wash)”. This approval evidences that uses of this nature can be accommodated in the Yarrabilba PDA and suggests the Yarrabilba Development Scheme is doing its job. For these reasons, I am not persuaded that there is a latent unsatisfied demand for car wash facilities that is not being adequately met by the planning instruments. [116] Any economic and community need for the uses can be met on appropriately designated land in the Scheme area and the Yarrabilba PDA. Should the Development Application be approved in the exercise of the planning discretion? [117] I am not satisfied the proposal meets all the assessment benchmarks. In particular, the proposed development is not an appropriate use of the Site, and the built form and appearance of the proposal are not compatible with a non-urban character. To the extent that conditions can be imposed to remedy non-compliance with the benchmarks, these are addressed earlier in these reasons. I am not satisfied that the application can otherwise be conditioned to comply. [118] The Appellant contended that in the event that the Court finds non-compliances with the Scheme, there are relevant matters which support approval. A balancing exercise needs to be undertaken in the exercise of discretion. It is invariably a complicated and multifaceted exercise.110 The discretion is to be exercised based on the assessment carried out under s 45 of the Planning Act. It is not to be undertaken capriciously. The decision must withstand scrutiny against the background of the planning scheme and proper planning practice.111 It should recognise that the provisions of a planning scheme are seen to embody the public interest and, as such, there is a public interest in compliance with them. However, not every non- compliance is contrary to public interest or will warrant refusal. The extent to which 108 Ex. 14, Statement of Wayne Terrence Fussell dated 14 September 2023, Document 3, pp 24–53. The Agreement to Lease exhibited appears in fact to relate to a child care centre rather than a car wash, but nothing turns on this. 109 Ex. 1, Book of Plans and Documents, Proposed Site Plan, p 7. 110 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16, [60]. 111 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16, [63] citing Hua Shang Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99. -- 29 of 31 -- 30 a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case, which includes a consideration of the “relevant matters”. [119] Relevant matters raised by the Appellant as supporting approval of the application were: (a) the proposed development complies, or can be conditioned to comply, with the Scheme; (b) there is an absence of adverse impacts resulting from the proposed development; (c) the proposed development is consistent with reasonable community expectations, including having regard to the existing approved service station on the Site; and (d) the Site is well-positioned, located and serviced to accommodate the proposed development.112 [120] In response, the Respondent said matters supporting a refusal of the proposed development are: (a) the proposed development cannot be conditioned to address all of the aspects of the Scheme with which it does not comply; (b) there are no circumstances that would justify departure from the provisions of the Scheme; and (c) approval of the proposed development would not be in the public interest. [121] The matters of conditions and adverse impacts are addressed above. [122] I am not persuaded that convenience and accessibility of the Site is a factor which supports approval. Its location at a signalised intersection means it is accessible to those travelling north or south on Waterford Tamborine Road. However, there is no suggestion that the present services are not convenient or accessible. There are food and drink outlets open before 7:00am. The proposed food and drink outlets would simply increase the number of them. Manual car wash bays will be available in the trade area upon the opening of the car wash at 1601 Waterford Tamborine Road. While I accept that there are co-location benefits for the food and drink outlets with the existing uses on the Site, I am not persuaded that these benefits exist with respect to the tyre retail facility. [123] I am satisfied that the uses can be accommodated on appropriate existing Centre and Low impact industry zoned land in Logan Village and on land in Yarrabilba. If situated in the locations proposed by the Scheme and the Yarrabilba PDA, similar co- location benefits will arise as the uses would be associated with a broader range of services than those proposed on the Site. [124] Community expectations are informed by the Scheme, and the current use of the Site. While the current use is inconsistent with the Scheme, it informs community expectations as to use, scale and form of urban development on the Site. It does not justify departure from the Scheme absent need for the proposal. The proposal, if 112 Ex. 2, List of Issues, [5], pp 1–2. -- 30 of 31 -- 31 approved, would increase the size of the urban use, introducing new buildings, retaining walls, extensive hardstand and new urban uses. The urban development would be three times larger than the existing urban use on the Site. [125] The level of inconsistency of the proposal with the Scheme is significant. To the extent that there is a need for the uses, I am not persuaded that it warrants departure from the clearly articulated planning strategy in the Scheme. Retail and commercial uses are not to be provided in the Regional landscape and rural production area. In the face of non-compliance with the Scheme and the findings about need, these additional factors do not persuade me that the application ought be approved. The public interest in the circumstances is best served by ensuring compliance with the Scheme. In the exercise of my discretion, the application is refused. Conclusion [126] For these reasons, the appeal is dismissed. The decision of the Respondent to refuse the application is confirmed. -- 31 of 31 --