Ausco Modular Pty Ltd v Western Downs Regional Council [2017] QPEC 58 (2018) QPELR 80

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Ausco Modular Pty Ltd v Western Downs Regional Council & Anor [2017] QPEC 58 PARTIES: AUSCO MODULAR PTY LTD (ACN 010 654 994) (appellant) v WESTERN DOWNS REGIONAL COUNCIL (respondent) and GROW CHINCHILLA PTY LTD (ACN 611 439 368) (co-respondent) FILE NO/S: 263 of 2017 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 11 October 2017 DELIVERED AT: Brisbane HEARING DATE: 11, 12, 13, 14, 15, 18 and 20 September 2017 and further written submissions on 4 October 2017 JUDGE: Kefford DCJ ORDER: The appeal will, in due course, be allowed. I will adjourn the further hearing to allow for the formulation of conditions. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for material change of use for a workers accommodation village – whether there is conflict with the planning scheme – whether the use will have unacceptable social planning impacts – whether the use will have unacceptable traffic impacts – whether the use will have unacceptable noise, lighting, odour or dust impacts – whether there is a need for the proposed development – whether there are sufficient grounds to approve the development despite conflict with the planning scheme LEGISLATION: Planning Act 2016 (Qld), s 311 Sustainable Planning Act 2009 (Qld), , s 314, s 324, s 326 -- 1 of 78 -- 2 CASES: Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; [2008] QPELR 342, approved Arksmead Pty Ltd v Council of the City of Gold Coast [2000] QCA 60; [2001] 1 Qd R 347, applied Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157, distinguished Bassingthwaighte v Roma Town Council [2010] QPEC 91; [2011] QPELR 63, approved Brencorp Properties Pty Ltd v Pine Rivers Shire Council [1997] QPELR 12, approved Broad v Brisbane City Council & the Baptist Union of Queensland [1986] 2 Qd R 317, applied Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209, distinguished Everson v Beaudesert Shire Council [1992] QPEC 22; [1992] QPLR 129, approved Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, approved Grosser v Gold Coast City Council [2001] QCA 423; (2001) 117 LGERA 153; [2002] QPELR 207, distinguished Hawkins v Ipswich City Council [1998] QPEC 26; [1999] QPELR 55, approved Holts Hill Quarries Pty Ltd v Gold Coast City Council & Ors [1999] QCA 510; [2001] 1 Qd R 372, applied Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved John Gimpel & Perry Morphett & Associates v Brisbane City Council [1988] QPLR 5, distinguished Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64; [2015] QPELR 203, approved Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271, distinguished Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63; [2012] QPELR 354, applied Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, applied -- 2 of 78 -- 3 Table of contents Introduction .......................................................................................................................... 5 The current facility ............................................................................................................... 5 The subject site and surrounding locality ............................................................................. 6 The proposed development .................................................................................................. 7 The decision framework ....................................................................................................... 8 Relevance of the existing use ............................................................................................... 9 The issues ........................................................................................................................... 10 Chinchilla Shire Planning Scheme 2006 ............................................................................ 11 Is there conflict with the desired environmental outcomes? .............................................. 12 Metroplex Management Pty Ltd v Brisbane City Council & Ors [2009] QPEC 110; [2010] QPELR 270, approved Serbian Orthodox Church School Congregation Sveti Nikola v Brisbane City Council [2012] QPEC 22; [2012] QPELR 468, distinguished SEQ Bonds Stores Pty Ltd v Gold Coast City Council [2006] QPEC 66; [2006] QPELR 747, approved Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPEC 3; [2005] QPELR 466, approved Wattlevilla Pty Ltd v Western Downs Regional Council [2014] QPEC 47; [2015] QPELR 21, approved Westfield Management Limited v Pine Rivers Shire Council & Anor [2005] QPEC 15; [2005] QPELR 534, distinguished Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied Yu Feng Pty Ltd v Brisbane City Council & Ors [2007] QCA 382; (2007) 156 LGERA 399, applied Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2914) 201 LGERA 82; [2014] QPELR 686, applied COUNSEL: M A Williamson with M J Batty for the appellant B D Job with N D Loos for the respondent J G Lyons for the co-respondent SOLICITORS: Keir Steele Lawyers for the appellant Holding Redlich for the respondent Thynne Macartney for the co-respondent -- 3 of 78 -- 4 Desired environmental outcome 3.2 - economic development ...................................... 12 Desired environmental outcome 3.3 - community expectations and needs .................... 17 Community expectations ................................................................................................ 17 Need ............................................................................................................................... 18 Sterilisation .................................................................................................................... 23 Conclusion regarding conflict with desired environmental outcome 3.3 ...................... 23 Is there conflict with the Rural Residential Zone Code? .................................................... 23 Nature, scale and density and character impacts ............................................................ 26 Impacts on other existing accommodation facilities ...................................................... 27 Amenity impacts ............................................................................................................. 29 Traffic impacts ............................................................................................................... 31 Noise, lighting, odour and dust impacts ........................................................................ 33 Western Downs Planning Scheme 2017 ............................................................................ 39 Relevance of the Western Downs Planning Scheme ...................................................... 40 Strategic Plan .................................................................................................................. 41 Overwhelming community need and valid planning justification ................................. 51 Character ....................................................................................................................... 52 Low Density Residential Zone Code .............................................................................. 53 Nature, scale and density and character impacts .......................................................... 55 Amenity impacts ............................................................................................................. 56 Accommodation activities code ...................................................................................... 56 Social issues ....................................................................................................................... 58 Grow Chinchilla’s submissions .......................................................................................... 63 Nature and extent of conflict .............................................................................................. 64 Grounds .............................................................................................................................. 70 Need ................................................................................................................................ 70 Other grounds ................................................................................................................. 76 Conclusion .......................................................................................................................... 78 -- 4 of 78 -- 5 Introduction [1] This is an appeal commenced by Ausco Modular Pty Ltd (“Ausco”). The appeal is against the decision of the respondent, Western Downs Regional Council (“Council”), to refuse a development application made by Ausco to facilitate the continued use, in perpetuity, of its non-resident workers accommodation village at 184 Zeller Street, Chinchilla (“the subject site”). [2] Grow Chinchilla Pty Ltd (“Grow Chinchilla”) is a company that was formed by a local resident. It was intended to be a vehicle to bring matters about the downturn in the coal seam gas industry to the attention of local residents, hoteliers, moteliers and local business owners.1 Grow Chinchilla made a properly made submission opposing the development. It elected to join the appeal. It continues to resist the grant of a development approval. The current facility [3] The facility currently exists on the subject site. It is branded “Chinchilla Stayover” and was constructed in various stages. Presently, it has capacity to accommodate 1 000 non-resident workers. [4] The uncontroverted evidence before the court is that the Chinchilla Stayover facility is of a high quality. It is well landscaped and provides excellent amenity for the workers that have the opportunity to reside there.2 [5] The pre-existing use of the subject site was originally established pursuant to an approval granted by Council on 17 March 2000. One of the reports incorporated into the development approval referred to an intention for the accommodation village to be decommissioned on completion of the Kogan Creek Power Station Project.3 Council subsequently extended the approval’s limited life in response to requests by Ausco in June 2004 and February 2008.4 On 5 November 2013, Council approved a further 100 beds in the proposed development, which approval was not acted upon.5 1 Statement of William Patrick Blake – Exhibit 18 Tab 5 p 18 [40]. 2 T2-3/L17-23 (Schomburgk); T2-38/L42 – T2-39/L3 (Ovenden); T2-73/L21-29 (Schneider); T3- 4/L35-46 (Powell); T4-4/L37-42 (Duane); T4-48/L45-46 (Coghlin); T4-85/L35 – T4-86/L5 (Leyshon). 3 T2-9/L32-36 (Schomburgk). 4 Joint Expert Report – Town Planning – Exhibit 8 pp 5-6 [18]-[19]. 5 Affidavit of Roger Neville Bradford - Exhibit 17 p 3 [23]. -- 5 of 78 -- 6 The development approval authorising the present use expired on 30 May 2013.6 An order of the Planning and Environment Court made on 28 October 2015 permitted the use to continue as a lawful use until the final determination of this appeal.7 The subject site and surrounding locality [6] The subject site is located on the corner of Zeller Street and Price Street, Chinchilla, approximately 1.7 kilometres south-east of the town centre. It has an area of 16.91 hectares.8 [7] The subject site is part of the Chinchilla township.9 [8] The main vehicular access is obtained from Zeller Street. There is a secondary service access from Price Street.10 [9] Zeller Street and Price Street are both bitumen sealed roads, with kerb and channel on the opposite side of the road. All other urban services are available to the subject site.11 [10] To the north, across Zeller Street, are residential lots of about 800 square metres, predominantly occupied with single detached houses. Similar residential development exists to the west across Price Street.12 [11] To the south and east of the subject site is predominantly rural-residential style development comprised of lots of about one hectare that are also occupied by, primarily, single detached houses. As one moves further east and south, away from the suburban parts of town, the land is developed in larger lots (four hectares and larger).13 [12] To the north-east of the subject site, around Carmichael Street and Taylor Street, towards the Warrego Highway, is an established industrial area that has access to Zeller Street.14 6 Joint Expert Report – Town Planning – Exhibit 8 p 6 [19]. 7 Joint Expert Report – Town Planning – Exhibit 8 pp 5-6 [17]-[20]. 8 Joint Expert Report – Town Planning – Exhibit 8 p 5 [9]. 9 Joint Expert Report – Town Planning – Exhibit 8 p 5 [12]. 10 Joint Expert Report – Town Planning – Exhibit 8 p 5 [9] and [10]. 11 Joint Expert Report – Town Planning – Exhibit 8 p 5 [11]. 12 Joint Expert Report – Town Planning – Exhibit 8 p 5 [12]. 13 Joint Expert Report – Town Planning – Exhibit 8 p 5 [13]. 14 Joint Expert Report – Town Planning – Exhibit 8 p 5 [14]. -- 6 of 78 -- 7 [13] To the east, at the eastern end of Zeller Street, approximately 300 metres from the subject site, is Chinchilla Tourist Park. To the south-west, approximately 800 metres from the subject site, is Base Camp Chinchilla, which is the only other provider of bulk non-resident workers accommodation in Chinchilla.15 [14] The Chinchilla airport is located approximately two kilometres south-west of the subject site.16 [15] In overall terms, the character of Zeller Street is not a pristine residential (or rural residential) environment; rather it has a mixed character.17 This is reflective of the location of light industry with access to Zeller Street, as well as its utilisation by traffic, including industrial traffic, as a convenient thoroughfare from the Warrego Highway to Chinchilla South Road towards Tara and Condamine.18 The proposed development [16] The development application seeks a development permit for the making of a material change of use for an undefined use, being a non-resident workforce accommodation. The proposal comprises the following elements: (a) 1 000 rooms in demountable cabins; (b) separate laundry facilities within dedicated demountable cabins; (c) kitchen and dining facilities within a large central common building; (d) management and reception within a separate demountable building; (e) indoor fitness centre; (f) formal and informal outdoor recreation areas; (g) approximately 750 carparking spaces; (h) landscaped surrounds; and 15 Joint Expert Report – Town Planning – Exhibit 8 p 5 [15]. 16 Joint Expert Report – Town Planning – Exhibit 8 p 5 [16]. 17 T2-81/L25 – T-82/L3 (Schneider); T2-44/L25-31 (Ovenden); Joint Expert Report – Town Planning – Exhibit 8 p 13 [53] (Schomburgk). 18 T2-82/L1-36 (Schneider); T3-55/L20-37 (Trevilyan). -- 7 of 78 -- 8 (i) a dam near the north-eastern corner of the subject site.19 [17] All buildings are single storey in height. They are set back from the perimeter boundaries by approximately: (a) 45 metres to the Zeller Street frontage; (b) 20 metres to Price Street; (c) 30 metres to the eastern boundary; and (d) 5 metres (at the closest point) to the southern boundary.20 [18] The primary vehicle access is to remain from Zeller Street, with only service vehicles to use the Price Street access.21 [19] The subject site is presently well landscaped. Ausco agrees to a condition being imposed for additional planting to be provided along the western, eastern and northern boundaries of the subject site, consistent with a Landscape Concept Plan dated August 2017.22 [20] The built form of the proposed development, other than the landscaping (which is to be enhanced), currently exists on the subject site. The first modular buildings were established on the subject site in 2004. In late 2007, the majority of the accommodation buildings were removed and relocated to other facilities run by Ausco. Modular accommodation buildings were reinstalled on the subject site during 2009 and 2010.23 The decision framework [21] The appeal was commenced by Ausco under s 461 of the Sustainable Planning Act 2009 (Qld). Pursuant to s 311 of the Planning Act 2016 (Qld), the appeal is to be decided under the provisions of the Sustainable Planning Act 2009. [22] Under s 495 of the Sustainable Planning Act 2009, the appeal proceeds by way of hearing anew. It must be decided based on the laws and policies applying when the 19 Joint Expert Report – Town Planning – Exhibit 8 p 7 [22] and [23]. 20 Joint Expert Report – Town Planning – Exhibit 8 p 7 [24]. 21 Joint Expert Report – Town Planning – Exhibit 8 p 7 [24]. 22 Landscape Concept Plan – Exhibit 33. 23 Affidavit of Myke Cavanagh – Exhibit 21. -- 8 of 78 -- 9 application was made, but the court may give weight to any new laws and policies the court considers appropriate. [23] The development application was made on or about 28 January 2016.24 At that time, the Chinchilla Shire Planning Scheme 2006 was in force. On 20 March 2017, the Western Downs Planning Scheme took effect.25 The parties agree that it ought be given substantial weight.26 [24] As the development application was impact assessable, it is to be assessed having regard to s 314 of the Sustainable Planning Act 2009 and decided in accordance with s 324 and s 326. Pursuant to s 326, a decision must not conflict with the Chinchilla Shire Planning Scheme unless, relevantly, there are sufficient grounds to justify the decision despite the conflict. [25] Conflict means “at variance or disagree with”.27 Any conflict must be “plainly identified” after analysing the scheme as a whole, rather than merely focussing on isolated provisions.28 [26] The word “grounds” is defined in Schedule 3 of the Sustainable Planning Act 2009 as: “1. Grounds means matters of public interest. 2. Grounds does not include the personal circumstances of an applicant, owner or interested party.” [27] It is for Ausco to establish that the appeal should be allowed and the development application approved.29 Relevance of the existing use [28] Grow Chinchilla submits that, in terms of the existing use of the subject site, Ausco ought receive no benefit merely because the use is already in place.30 In support of its submission, it refers to Westfield Management Ltd v Pine Rivers Shire Council & 24 Joint Expert Report – Town Planning – Exhibit 8 p 7 [26]. 25 Joint Expert Report – Town Planning – Exhibit 8 p 9 [42]. 26 Respondent’s Submissions – Court Doc No 35 p 13 [44]. T6-43/L31-34 (Williamson). 27 Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 286 [23]; Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63, 72 [16]; [2012] QPELR 354. 28 Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208. 29 Sustainable Planning Act 2009, s 493. 30 Submissions on behalf of the Co-respondent - Court Doc 36 p 6 [29]. -- 9 of 78 -- 10 Anor [2005] QPEC 15; [2005] QPELR 534 at 538, [22]; Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271 at [29]-[31]; John Gimpel & Perry Morphett & Associates v Brisbane City Council [1988] QPLR 5 at 8 and Serbian Orthodox Church School Congregation Sveti Nikola v Brisbane City Council [2012] QPEC 22; [2012] QPELR 468. [29] Council likewise submits:31 “In Serbian Orthodox Church School Congregation v BCC32 the Court discussed the principles for the Court to observe when dealing with an application to approve a use that is already up and running and concluded: (a) being an appeal de novo, the proponent gains no assistance from the use being up and running. The proposal must be assessed only on its merits going forward; (b) the Court can look at the impacts – amenity, traffic etc – that the development has had during its period of operation; and (c) the proponent is not entitled to rely on any loss or inconvenience – actual or implied – that might result from it having to dismantle the use in the event the Court dismisses the appeal.” [30] Each of these cases involved an appeal about a development application that had been made to regularise an unlawful use. That is not the case here. In this case, there is an existing lawful use. [31] Any loss or inconvenience that might result from having to dismantle the use if the development is not approved is not relevant. However, pursuant to s 314(3)(b) of the Sustainable Planning Act 2009, the existing lawful use of the subject site must be taken into account. It is relevant to an assessment of the impact of the proposed development. The present use informs the existing character of the area. The issues [32] The issues to be determined in this appeal are: (a) whether approval of the proposed development conflicts with the Chinchilla Shire Planning Scheme and, in particular, whether there is conflict with: (i) desired environmental outcomes; or (ii) the Rural Residential Zone Code occasioned by: 31 Respondent’s Submissions – Court Doc 35 p 9 [30]. 32 [2012] QPELR 468 at [17]. -- 10 of 78 -- 11 (A) the nature, scale and density of the proposed development and attendant impacts on character of the locality; (B) impacts on other existing accommodation facilities; (C) amenity impacts including traffic impacts and noise, lighting, odour and dust impacts; (b) whether there are provisions of the Western Downs Planning Scheme that warrant refusal of the development application; (c) whether social issues warrant refusal; and (d) the nature and extent of the conflict and whether there are sufficient grounds to justify approval of the proposed development notwithstanding conflict with the Chinchilla Shire Planning Scheme. [33] Although the disputed issues initially included visual amenity issues, on the basis that any development approval would be conditioned to require landscaping in accordance with the Landscape Concept Plan tendered as Exhibit 33, Council and Grow Chinchilla notified that they no longer rely on visual amenity as a ground for refusal.33 However, they each maintain their respective positions with respect to visual amenity insofar as it relates to town planning matters, including perceptibility, character values and broader scheme expectations.34 Chinchilla Shire Planning Scheme 2006 [34] The Chinchilla Shire Planning Scheme commenced in June 2006. The town planners agreed that the Chinchilla Shire Planning Scheme does not include a land use definition for the proposed activity, although the use would fall within the definition of “Accommodation building”.35 [35] Under the Chinchilla Shire Planning Scheme, the subject site is located in the Rural Residential Zone.36 33 Respondent’s Submissions – Court Doc 35 p 7 [22]. 34 Exhibit 34; T5-3/L17-27 (Lyons); T5-3/L32 (Job). 35 Joint Expert Report – Town Planning – Exhibit 8 p 9 [37]; Chinchilla Shire Planning Scheme Extracts – Exhibit 4 pp 5-10. 36 Chinchilla Shire Planning Scheme Maps – Exhibit 5 p 2. -- 11 of 78 -- 12 [36] Within the Rural Residential Zone, a development application for an undefined use is impact assessable. An application for use as an “Accommodation building” would also have required impact assessment.37 [37] Council and Grow Chinchilla allege that a decision to approve the proposed development would conflict with desired environmental outcomes in the Chinchilla Shire Planning Scheme and the Rural Residential Zone Code. Is there conflict with the desired environmental outcomes? [38] Part 3 of the Chinchilla Shire Planning Scheme contains the desired environmental outcomes. Desired environmental outcome 3.2 - economic development [39] Grow Chinchilla alleges conflict with desired environmental outcome 3.2,38 which states:39 “3.2 Economic Development The economy of Chinchilla Shire is enhanced and diversified through sustainable use of natural resources (including soil, extractive and mineral resources) and through a diverse range of other economic activities that respect the hierarchy of the urban centre and the small towns. - The Planning Scheme reinforces and consolidates the role of Chinchilla as the principal place for business, industry and commerce within the Shire. …” (emphasis added) [40] Before considering the detail of Grow Chinchilla’s submissions, it is apposite to recognise that this is a desired environmental outcome for the whole of the Shire. It is not framed in a manner that one would expect that the goal will be advanced by every development. Failure to advance the goal does not necessarily demonstrate conflict is occasioned by approval of a proposed development. However, approval of a proposed development will conflict with the desired environmental outcome if it cuts across the ability to achieve the outcome or is at odds with its achievement. 37 Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 12. 38 Issues – Exhibit 2 pp 7-8. 39 Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 11. -- 12 of 78 -- 13 [41] Grow Chinchilla submits that approval of the proposed development would result in conflict because: (a) the facility does not enhance the economy as its operation negatively impacts upon other accommodation operators within Chinchilla, which it says is reflected by current occupancy rates;40 and (b) the facility does not diversify the economy as there are already operating accommodation facilities within Chinchilla Shire, including another workers’ accommodation camp (Base Camp) and numerous other accommodation choices comprising hotels, motels, multiple dwellings and houses. There is also an approved but unconstructed workers’ accommodation camp for 196 multiple dwelling units and 68 accommodation units41 and an approved but unconstructed multiple dwelling approval (being the Bottle Tree Apartments).42 [42] The economic experts retained by the parties identified two types of non-resident accommodation facilities in Chinchilla, namely: (a) non-resident worker camps, being Base Camp with 314 rooms and Stayover Camp (which is the proposed development) with 1 000 rooms; and (b) 16 hotels or motels for short-term visitors that provide a total of 598 rooms, with the largest of those being Chinchilla Tourist Park with 105 rooms made up of 70 cabins and 35 caravans.43 [43] While the experts agree that there is a range of accommodation facilities within the region that would contribute to the accommodation of workers if required,44 the two types of facilities target (and are better able to cater to) different markets.45 The experts agreed that:46 “Overall, there is a large difference in the services, nature and pricing of facilities between hotel/motel accommodation and non-resident worker accommodation villages. The former is more attractive to visitors and independent business travellers and short term contractors, while the latter is 40 Submissions on behalf of the Co-respondent – Court Doc 36 p 28 [150], [154] and [155]. 41 Bundle of Co-respondent’s lay witness statements – Exhibit 18 Tab 58 p 65 [54]-[59]. 42 Submissions on behalf of the Co-respondent – Court Doc 36 p 28 [151]-[153]. 43 Joint Economic Need Report – Exhibit 11 p 29 [67] and [68] and p 30 Table 3. 44 Joint Economic Need Report – Exhibit 11 p 31 [71]. 45 T4-5/L12-18 (Duane). 46 T4-5/L12-25 and T4-5/L40-43 (Duane); Joint Economic Need Report – Exhibit 11 pp 37-8 [82]. -- 13 of 78 -- 14 more attractive to employers seeking to accommodate a large number of workers close to their place of employment and where all amenities can be provided in one location (e.g. three meals per day, recreation facilities and the like) with consistency.” [44] The experts also agreed that there is an increasing demand for specialised non- resident workforce accommodation to cater to that market as a result of the following factors:47 “a. Villages allow the workers for a single company undertaking a contract in the area to be accommodated all together in the one location. This controls employment conditions giving an employee uniformity of conditions for a large workforce rather than being spread across a number of accommodation styles, with different services and standards. b. A centralised accommodation location to coordinate the transport of workers to and from the project site and alleviates multiple transport routes in the township area. c. A food mess or dining hall is provided inhouse (sic), providing for all dietary needs and ensuring a healthy diet for the workers, relieving workers of the need to find the time and have the skills and energy to provide food for themselves after long shifts. d. Villages can be designed and segregated for day and night shift workers to ensure that night shift workers are not disturbed during the day. This is difficult to achieve in hotels/motels and traditional houses in residential areas with other users in the surrounding areas as well as other housemates being active during the daytime. e. Modern villages provide an enhanced level of amenity in terms of room quality, landscaping, etc. compared to older style camps. f. Cleaning, gardening, repairs and maintenance issues can be left to others. g. The ability of modern villages to provide amenities for each worker rather than shared facilities. h. There is direct access to first aid on-site together with other facilities such as entertainment and a gymnasium. i. Workers have substantial cleaning requirements and specialised, extensive laundry facilities can be provided at the villages. j. Appropriate provision for vehicle parking (typical residential houses and hotels/motels do not cater for the private vehicles of 4 – 5 single workers resulting in undesirable street parking practices. k. A resident code of conduct is enforced by site based management and security, ensuring that protocols and standards of behaviour are observed, encouraging an appropriate balance between lifestyle, sleep and nutrition.” 47 Joint Economic Need Report – Exhibit 11 pp 33-4 [73]. -- 14 of 78 -- 15 [45] Other key differences between the proposed development and a traditional hotel or motel are: (a) rooms are strictly single occupancy and, in many instances, incorporate single beds; (b) rooms are relatively small in dimension; (c) rooms are fully serviced once per week (rather than daily); (d) rooms have key operated air-conditioners, which cannot be utilised when the room is not occupied; (e) rooms do not incorporate cooking facilities; (f) rooms cater for shift workers with black out blinds; (g) all residents are inducted on arrival, at which time a Village Acknowledgment / Acceptance of Risk form is executed; (h) meals are provided in a manner that is high velocity and with regard to coordinated transport to work options; (i) the meal service commences at 4am; (j) each resident prepares their own takeaway lunch using a nominated “crib” area where takeaway meals, salad and sandwich ingredients are provided, as well as a selection of snacks; (k) central recreational facilities are provided to all for social integration; (l) locker rooms are dispersed throughout the village, allowing residents to check- out of their rooms when they are not on shift whilst safely storing their possessions on site; (m) manned security and village management are in place to ensure compliance with resident behaviour protocols; and -- 15 of 78 -- 16 (n) carparking is separated from residential areas, rather than in front of the rooms.48 [46] I do not regard these differences to be merely a matter of “preference”, but factors that explain why the two types of facilities operate as different markets serving different roles.49 The non-resident worker’s village operates as a “one-stop” facility that offers economies of scale benefits to companies seeking to accommodate large workforces.50 It also provides a different offer to hotels and motels, with many of those differences having underlying health, safety and well-being implications for non-resident workers.51 Hotels and motels, on the other hand, are geared to cater to a core market of tourists and travellers.52 [47] Given these different markets, I am satisfied that approval of the proposed development would enhance and diversify the economy of Chinchilla. It would ensure that there remains a choice of workers’ accommodation villages capable of catering for the large operators that require a large number of rooms.53 [48] Grow Chinchilla also submits that approval of the proposed development would lock in an oversupply of rooms, causing existing accommodation operators to continue to suffer. It submits this will result in negative impacts upon Chinchilla as the principal place for business, industry and commerce within the Shire.54 Even if the earlier proposition were true, the latter does not necessarily follow. I regard the opposite as likely. As was explained by Mr Duane, and accepted by Mr Leyshon,55 if the proposed development is not approved, those companies (of which there is evidence of at least two)56 that require the services offered by non-resident workforce accommodation would need to look for alternative accommodation in villages outside 48 Affidavit of Roger Neville Bradford – Exhibit 17 pp 8-10 [65]. 49 Joint Economic Need Report – Exhibit 11 p 38 [84]. There is, no doubt, overlap in the markets, but I regard the differences as important. By way of analogy, there is overlap in the market for a corner store and a full-line supermarket (with both selling bread and milk), but each operates in a different market. The full-line supermarket can offer convenience and price benefits (by achieving economies of scale) that are not available if one were forced to undertake a grocery shop by attending a series of smaller specialised stores. 50 T4-6/L7-27 (Duane); T4-42/L14 – T4-44/L6 and T4-45/L4-9 (Coghlin). 51 T4-59/L31-39 and T4-64/L11-24 (Coghlin); T4-73/L5 – T4-74/L30 (Leyshon). 52 T4-49/L35 – T4-50/L5 (Coghlin). 53 Joint Economic Need Report – Exhibit 11 p 46 [107]. T4-45/L11 – T4-46/L33 and T4-64/L26-47 (Coghlin); T4-76/L5-24 and T4-79/L32 – T4-80/L10 (Leyshon). 54 Submissions on behalf of the Co-respondent – Court Doc 36 p 29 [158]. 55 T4-79/L7-13 (Leyshon). 56 See Exhibit FG2 and FG3. -- 16 of 78 -- 17 Chinchilla, potentially on gas tenements and mining leases. That will have flow-on effects for spending in Chinchilla.57 [49] I am satisfied that a decision to approve the proposed development would not conflict with the desired environmental outcome in s 3.2. Desired environmental outcome 3.3 - community expectations and needs [50] Council and Grow Chinchilla allege conflict with desired environmental outcome 3.3.58 It states:59 “3.3 Community and Services Development in Chinchilla Shire reflects community expectations and needs, and contributes to community well-being through enhancement of core community elements (including the built environment, services, facilities and infrastructure). - The settlement pattern is logical and sequenced and the built environment contributes to the overall rural amenity and character of Chinchilla Shire. - … - Development contributes to the health and safety of people and provides a diverse range of housing types, services and facilities.” (emphasis added) Community expectations [51] With respect to community expectations, Grow Chinchillla submits that the evidence of the lay witnesses demonstrates a community expectation that the Ausco facility would be temporary.60 The evidence confirms that the expectation of the lay witnesses was based on the fact that Ausco had a temporary approval and an assumption that, once the approval expired, the facility would close.61 Grow Chinchilla emphasises that many accommodation operators say they made investment decisions worth many millions of dollars on the assumption that the facility would close and that they would then house those working in the locality as and when the need arose. 57 T4-6/L29 – T4-7/L19 (Duane). 58 Issues – Exhibit 2 pp 7 and 14. 59 Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 11. 60 Submissions on behalf of the Co-respondent – Court Doc 36 p 30 [161]. 61 See Bundle of Co-respondent’s Lay Witness Statements – Exhibit 18 Tab 7 pp 30-1 [8] (Clarke), Tab 8 p 35 [8] (McGovern), Tab 9 p 39 [10] (Schuh), Tab 10 p 42 [10] (Maclean) and Tab 13 p 53 [9] (Goldie). -- 17 of 78 -- 18 [52] As was observed by Dorney QC DCJ in Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64; [2015] QPELR 203 at 240 [176]: “While “realistic” expectations do, to some extent, at least, depend upon the expectations of the local community, a selection of expectations of particular opponents to a development does not necessarily inform the true content of such expectations.” [53] Community expectations are to be derived from the statutory planning controls and the community must be taken to consider the possibility that development may include that which a local government may permit in an appropriate case.62 [54] Residents of the area may well have hoped, and spent considerable funds on an assumption, that the use would cease at the expiry of the temporary approval. However, for reasons that follow, particularly with respect to the absence of hard amenity impacts and the existence of a need for the proposal, the possibility of a further approval was not a matter that could reasonably be ruled out. Need [55] With respect to the requirement that development in Chinchilla Shire reflect the needs of the community, Grow Chinchilla submits that there is no need for the proposed development as: (a) there is already an existing workers’ accommodation facility in Chinchilla that is not operating at full capacity; (b) there is already an approved but unbuilt workers’ accommodation facility in Chinchilla; (c) there are hotels and motels in Chinchilla that can accommodate larger work forces to the extent that there is any employer requirement that the workers are housed together; (d) there are numerous other accommodation choices that can accommodate smaller work forces including contractors, operations workers and others who come to the region for shorter periods; and 62 Everson v Beaudesert Shire Council [1992] QPEC 22; [1992] QPLR 129, 133; Brencorp Properties Pty Ltd v Pine Rivers Shire Council [1997] QPELR 12, 16; Hawkins v Ipswich City Council [1998] QPEC 26; [1999] QPELR 55, 60. -- 18 of 78 -- 19 (e) there are numerous other workers’ camps within the region, both in town and on tenements (and the latter can be developed without the need for a town planning approval). [56] In Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414 at 417-9, Wilson DCJ provided a thorough analysis of the authorities with respect to the concept of need as follows: “[20] In Watts & Hughes Properties Pty Ltd v. BCC (1998) Q.P.E.L.R. 273 at 275 the Court said: Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire. A thing is needed if its provision, taking all things into account, improves the physical well-being of the community (see Cut Price Stores Retailers v. Caboolture Shire Council (1984) Q.P.L.R. p.126 at 131). Need does not connote a pressing urgency but relates to the well-being of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality (see Roosterland Pty Ltd v. Brisbane City Council (1986) 23 A.P.A.D. p.58 at p.60). [21] Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community (Fitzgibbons Hotel Pty Ltd v. Logan City Council (1997) Q.P.E.L.R. 208 at 213; Bunnings Building Supplies Pty Ltd v. Redland Shire Council (2000) Q.P.E.L.R. 193 at 198C). Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met (Indooroopilly Golf Club v. BCC (1982) Q.P.L.R. 13 at 32-35, William McEwans Pty Ltd v. BCC (1981) 1 Q.P.L.R. 33 at 35). [22] The question whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors: Sempf v. Gatton Shire Council (1997) Q.P.E.L.R. 198, at 199-200; Arksmead Pty Ltd v. Gold Coast City Council (1989) Q.P.L.R. 322 at 330. Nor is the impact of a proposed development on existing like businesses a matter which is to be taken into account adversely to the proposed new facility unless, as Ms Scally noted in her report, the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community: Kentucky Fried Chicken Pty Ltd v. Gantidis (1979) 140 C.L.R. 675, at 687. [23] Any possible adverse effects on an existing business will only be relevant to the extent that 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: Zieta No. 59 Pty Ltd v. Gold Coast City Council (1987) 2 Qd. R. 116, at 120; Whitehead v. Hervey Bay City Council (1999) Q.P.E.L.R. 131, at 132. Indeed, providing competition and choice can be a matter which also provides for a need, in the relevant sense: Bunnings Building Supplies Pty Ltd v. Redland Shire Council (2000) Q.P.E.L.R. 193, at 198. -- 19 of 78 -- 20 [24] The weight to be given to the question of need, in assessing the merits of an application, is not fixed. As Moynihan J said in Intrafield Pty Ltd v. Redland Shire Council (2001) Q.C.A. 116, at para.[20]: ... Need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account. In some instances public or community need for a service or facility may not be great, and other considerations may be of greater moment. [25] It is also relevant to have regard to the nature of the proposed development. In Harburg Investments Pty Ltd v. Brisbane City Council (2000) Q.P.E.L.R. 313, the Court said at 317: (25) To state a truism, in assessing need when a development is being proposed, one must bear in mind the nature of that development. What is proposed here is not a specialised development such as a liquor barn, a hardware house, a hospital, a cinema complex or the like which attract custom from people with one specific purpose in mind. In such a case one would look more critically at the availability of like institutions elsewhere in reasonable proximity to the site. The benefit of more competition and choice would seldom justify having two liquor barns, two hardware warehouses, two hospitals or two cinema complexes cheek by jowl. (26) However, less stringent tests would apply in a case such as this, where convenience retail centres are under consideration. Stress must be paid on the convenience to the likely patrons of those development. Some patrons will prefer to visit one centre rather than another for idiosyncratic reasons which may relate to such things as the perceived convenience of access, the “atmosphere” of the development, the range of goods and services available and the personalities of the people employed there. While the access to this site is not entirely convenient, many may prefer it to negotiating the heavy traffic likely to be encountered in the Aspley business centre; the “atmosphere” at the proposed centre is likely to be more relaxed than at the Hypermarket or other business centres (including the centre where the Harburg premises are); the range of goods and services to be offered at the Ecovale development are at this stage undefined, other than a convenience store, but it is likely that there will be a mix which will particularly suit and attract some patrons; friendships of greater or lesser degrees are likely to be struck up between patrons and those who work there. It is in this sense that convenience, and thus need, should be judged and in my view it is probably that a need will be filled by the establishment of this small convenience centre for many of those people who live in the catchment areas identified by Mr Abnett, the economic consultant who was called by Ecovale. [26] This Court has been prepared to find that a need exists, despite the presence of similar businesses in the locality. Generally speaking, however, those decisions have been confined to circumstances where the proposals were likely to provide benefit by way of a greater level of convenience to patrons: Harburg Investments (supra); Provincial Securities Pty Ltd v. Brisbane City Council [2001] Q.P.E.L.R. 143. At the other end of the spectrum are cases in which such facilities as a new service -- 20 of 78 -- 21 station, or cinema complex would add to a consumer's area of choice but not noticeably improve the wellbeing of the community, or improve the services and facilities available in a locality where existing businesses plainly met demand: Prime Group Properties Ltd v. Caloundra City Council [1995] Q.P.L.R. 146, at 150; and, Queensland Investment Corporation v. Toowoomba City Council [2000] Q.P.E.L.R. 362.” (emphasis added) [57] For reasons explained in paragraphs [42] to [48] above and in paragraphs [58] to [65], [80] to [84], [135], [136], [138] to [144] and [223] to [231] below, I am satisfied that there is a need for the proposed development. The proposed development will provide accommodation to meet the needs of the workers accommodation village market, which was expressly recognised by all of the economic experts.63 As is noted in paragraph [46] above, the proposed development provides large companies involved in large projects with an accommodation offer that cannot be met by instead spreading workers across a number of smaller facilities with different accommodation services and standards.64 [58] The existence of a latent unsatisfied demand for workers accommodation village that is not being adequately met is of considerable significance for three reasons.65 [59] First, the differences in the offer available at workers accommodation villages, as compared to hotels and motels, are directed towards managing the health, safety and wellbeing of non-resident workers.66 [60] Second, as was agreed by the social planning experts, Mr Powell and Ms Johnson, workers accommodation villages are one of the options that are required to prevent negative impacts on local housing supplies.67 As much is recognised in the Western Downs Planning Scheme. It records, in s 3.2.2.1(3), that:68 “[i]t is necessary to ensure that sufficient accommodation options are available for non-resident temporary workers given that housing affordability can become an issue for people in lower low (sic) socio- economic brackets should non-resident temporary workers reside in dwellings in residential areas.” 63 Joint Economic Need Report – Exhibit 11 pp 33-4 [73] and p 46 [107]. 64 Joint Economic Need Report – Exhibit 11 pp 33-4 [73]. 65 Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, 419 [27] citing Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 317. 66 T2-7/L20-31 (Schomburgk); T2-53/L1-18 (Ovenden); T2-90/L7-44 (Schneider); T3-5/L1 – T3-6/L2 (Powell); T4-59/L31-39 and T4-64/L11-24 (Coghlin); T4-73/L5 – T4-74/L30 (Leyshon). See also Joint Expert Report on Social Planning – Exhibit 9 pp 18-9 [58] and [60] and Report of Mr Powell – Exhibit 15 pp 26-7 [61]-[66] and p 30 [75]-[76]. 67 Joint Expert Report on Social Planning – Exhibit 9 p 23 [87]. 68 Western Downs Planning Scheme Extracts – Exhibit 6 p 15. -- 21 of 78 -- 22 [61] The town planning experts also agreed that the Darling Downs Regional Plan 2013:69 “… recognises that population growth represents both opportunities and challenges and that Local Governments can assist by providing an adequate supply of land to accommodate the anticipated needs of various land uses. It also recognises that this may include providing an adequate supply of land to accommodate the non-resident workforce accommodation if there are approved projects which support it.” [62] It is also noted in the Darling Downs Regional Plan 2013 that: (a) development of social and local infrastructure and services is likely to encourage more workers to relocate their families to resource communities but it may not be practical to support the relocation of large numbers of non- resident workers to some smaller resource communities; (b) using isolated work camps that are highly self-sufficient can also reduce some non-resident worker impacts on community infrastructure; and (c) “expansion of the resources sector in the last decade has seen rapid increase in non-resident populations, increasing pressure on housing and accommodation, community services and infrastructure. This demand is expected to increase into the future with growth of the resource sector, placing increasing pressure on local residents in the form of housing affordability, cost of living and accessibility of services”.70 [63] Housing affordability is of high significance to the well-being of a community. [64] Third, all of the economists agreed:71 “in relation to workers accommodation villages, supply should always be in- excess of demand such that there is occupancy well below 100% to accommodate for potential peaks which could be either expected or unexpected, and to provide for choice of location and operator. These are important elements to the worker accommodation village market within the Chinchilla region given such big contracts influence major operators such as QGC as previously indicated.” [65] The presence of another workers accommodation village and other forms of accommodation is to be considered in this light. 69 Joint Expert Report – Town Planning – Exhibit 8 p 10 [46]. 70 Darling Downs Regional Plan pp 26 and 28 as extracted in the Joint Expert Report – Town Planning – Exhibit 8 pp 11-12 [48]. 71 Joint Economic Need Report – Exhibit 11 p 46 [107]. See also T4-7/L21 – T4-8/L16 (Duane) and T4-74/L46-47 (Leyshon). -- 22 of 78 -- 23 Sterilisation [66] Grow Chinchilla submits that approval of the proposed development will entrench the facility as a permanent use, thereby sterilising the subject site and impacting upon the ability to provide a diverse range of housing types. With respect to this issue, it notes that the subject site is intended for low density housing (of some 150-400 houses) under the 2017 planning scheme at some time after 2026. [67] I do not accept that approval of the development would “sterilise” the land. The built form of the proposed development is made up of demountable buildings that are capable of being removed. Condition 3 of the existing approval required this occur at the cessation of the use.72 While the use continues, the subject site will not be available for residential housing. However, should the need for the facility abate prior to 2026, the built form of the proposed development is not such as to render the subject site “sterilised”. The subject site will retain those attributes necessary to support residential housing in the future. Conclusion regarding conflict with desired environmental outcome 3.3 [68] In the circumstances, I am satisfied that approval of the proposed development would not conflict with the desired environmental outcome in s 3.3. Is there conflict with the Rural Residential Zone Code? [69] The Rural Residential Zone is “intended for low density, “detached houses” within a rural setting.”73 [70] The associated Rural Residential Zone Code includes the following provisions:74 “4.2.3.3 Code Purpose The following outcomes are the Purpose of the Code: (1) The Shire has an appropriate land use structure that is in accordance with the environmental characteristics of the locality and that avoids conflict between incompatible “uses”. (2) The Rural Residential “Zone” continues as an area for low density detached houses in a rural setting. (3) Rural residential activities are not prejudiced by inappropriate development and existing rural residential areas are consolidated. 72 Bundle of Approvals – Exhibit 32 Tab 2. 73 Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 12. 74 Chinchilla Shire Planning Scheme Extracts – Exhibit 4 pp 15-18 and 24. -- 23 of 78 -- 24 (4) Within the Rural Residential “Zone”, “development”: … … (c) is located, designed and operated in a manner that protects and enhances the low density rural residential scale, intensity, form and character; (d) does not prejudice or impact adversely on other “uses” including those within other “Zones”; … (5) Within the Rural Residential “Zone”, the Rural Residential “Zone” Code allows for: (a) tourist related “uses” (“bed and breakfast premises” and “visitor accommodation”) and “home businesses” where they are of a small scale and are compatible with surrounding “uses”. 4.2.3.4 Performance Criteria, Acceptable Solutions and Self Assessable Applicability – “Material change of Use” “Material change of use” Performance Criteria Acceptable Solution Self Assessable Development Applicability (to be read as per table 4.2.2 and 4.2.3.2 of the “Scheme”) Amenity PC5 “Residential Activities” – Density The low density residential scale, intensity, form and character of the Rural Residential “Zone” are protected. For “Detached houses”: AS5.1 No more than 1 (one) “Detached house” per lot. For “Caretaker’s residences”: AS5.2 No more than 1 (one) “Caretaker’s residence” per lot. For all other “Residential Activities”: No acceptable solution is prescribed. - “Detached house” - “Caretaker’s residence” -- 24 of 78 -- 25 Amenity PC8 Transport Movements Transport movements associated with the use protect the residential amenity of the locality and do not exceed those normally associated with residential activities. For non- “Residential activities” AS8 Transport movements do not occur through residential areas. For all other “uses”: No acceptable solution is prescribed. Amenity PC9 “Building” and “Structure” Design “Buildings” and “Structures” are of a domestic scale, form and character to maintain the residential amenity. No acceptable solution is prescribed. Environmental PC28 Noise Emissions Noise emissions from “Premises” do not cause environmental harm or nuisance to adjoining properties or “Sensitive land uses”. No acceptable solution is prescribed. (emphasis added, footnotes omitted) [71] Council alleges that a decision to approve the proposed development would conflict with overall outcomes 2, 4(c) and 4(d) and performance criteria PC5 and PC8.75 [72] In addition, Grow Chinchilla alleges that a decision to approve the proposed development would conflict with performance criteria PC9 and PC28.76 [73] In broad terms, the conflicts are alleged to arise as a consequence of: (a) the nature, scale and density of the proposed development and character impacts; (b) impact on other existing accommodation facilities; and (c) amenity impacts. 75 Issues – Exhibit 2 pp 14-15. 76 Issues – Exhibit 2 p 8. -- 25 of 78 -- 26 Nature, scale and density and character impacts [74] During cross-examination, Mr Schomburgk, the town planner retained by Ausco accepted that the proposed development is squarely at odds with the overall purpose of the Rural Residential Zone.77 Mr Schomburgk also acknowledges that what Ausco seeks to have approved: (a) is not commonly found in a rural residential area;78 (b) is not development that enhances the low density residential character and could not be said to be of a low density rural residential intensity, a low density rural residential form, nor a low density rural residential character;79 and (c) even with screening, will: (i) appear as something different to rural residential development;80 and (ii) have a completely different built form and character to what one would normally expect, including by reason of its visible signage and car parking and different traffic generation (in terms of the traffic peaks and the different types of vehicles).81 [75] The facility includes approximately 750 car parks, predominantly at the front of the subject site. There is also a high level of activity on the subject site, including from very early in the day with the kitchen facilities open from 4am. There is also a large number of traffic movements very early in the day, much earlier than would occur with traditional residential uses. [76] Ausco accepts that a decision to approve the development application would conflict with the Chinchilla Shire Planning Scheme because the proposed development is not a detached house in form, or limited in density to a single dwelling on a large lot.82 It also accepts that the conflict is more than minor or technical.83 77 T2-17/L13-14 (Schomburgk). 78 Joint Expert Report – Town Planning – Exhibit 8 p 14 [57]. 79 T2-19/L5-18 (Schomburgk). 80 T2-19/L24-28 (Schomburgk). 81 T2-19/L30-46 (Schomburgk). 82 Written Submissions on behalf of the Appellant – Court Doc 37 p 50 [179]. 83 Written Submissions on behalf of the Appellant – Court Doc 37 p 51 [181]. -- 26 of 78 -- 27 [77] Ausco’s concessions are appropriate. There is clear conflict with the intent of the Rural Residential Zone, overall outcomes (2) and (4)(c) and performance criteria PC5 and PC9. However, for the reasons stated herein, I am satisfied that the conflict is not accompanied by any undue impact. Impacts on other existing accommodation facilities [78] Grow Chinchilla submits that conflict with overall outcome (4)(d) of the Rural Residential Zone Code arises: (a) as a result of the impacts upon other accommodation providers (predominantly the hoteliers, moteliers and the other worker accommodation camp in Chinchilla, but also to some extent, those who have bought rental investment properties); and (b) as a result of matters of character and amenity in relation to the permanent residential uses nearby to the site.84 [79] Character and amenity impacts are dealt with elsewhere herein. [80] With respect to the issue of impact, Grow Chinchilla relies on: (a) evidence in lay witness statements from the hoteliers, moteliers and the other worker accommodation camp in Chinchilla, as well as property investors,85 who speak of drops in occupancy rates, financial difficulties that they are experiencing and their perception that their occupancy rates would significantly improve if the development application for the proposed development was refused; (b) the confidential part of the Joint Economic Need Report; (c) the interviews conducted by Ms Johnson, that confirm the distress felt by these accommodation providers and the hope that refusing this appeal would help with their predicament;86 and 84 Submissions on behalf of the Co-respondent – Court Doc 36 p 36 [195]. 85 Submissions on behalf of the Co-respondent – Court Doc 36 pp 36-7 [196]-[197]. 86 Joint Expert Report on Social Planning – Exhibit 9 p 16 [47(c)] and p 19 [64]. -- 27 of 78 -- 28 (d) the evidence that hotels and motels have and continue to accommodate non- resident workers and that they include a number of high quality buildings that can house larger sized worker teams, as well as contractors, operations workers and others who come to the region for shorter periods. [81] I have no doubt that the hoteliers and moteliers are experiencing personal distress as a consequence of the economic downturn following the end of the resource boom, nor that they have, during the boom, accommodated non-resident works and enjoyed more financially rewarding times. However, that is not the issue. Town planning is not concerned with protecting individuals from a decline in the investments that they elect to make, nor is it generally concerned with protecting existing operators from competition.87 [82] Section 4.2.3.3(4)(d) of the Chinchilla Shire Planning Scheme requires that development not impact adversely on other uses. It does not speak of the financial success of the operators of those uses. [83] Further, when considering the question of impact, a notion of reasonableness should be inferred: the provision should be construed as seeking to protect uses against unreasonable or unacceptable adverse impact.88 [84] I am satisfied that there is no conflict with overall outcome (4)(d) as: (a) houses provide no meaningful supply to the non-resident workers accommodation market. The economic experts agreed that “accommodation of non-resident workers within local houses is likely to be a limited part of the market”.89 Mr Duane said it would be less than one per cent of the market;90 (b) for the reasons outlined in paragraphs [42] to [48] and [57] above, I am satisfied that the proposed development would cater to a different market and that the hotels and motels are not in a position to meet the needs of the non- resident workers accommodation market. A number of smaller providers would need to be aggregated to establish sufficient numbers to accommodate 87 Kentucky Fried Chicken Pty Ltd v. Gantidis (1979) 140 CLR 675, 687. 88 Jedfire Pty Ltd v Council of the City of Logan & White [1994] QPEC 47; [1995] QPLR 41, 43; Multi Span Australia Pty Ltd v Department of Main Roads & Anor [2008] QPEC 14; [2008] QPELR 509, 510. 89 Joint Economic Need Report – Exhibit 11 p 31 [71]. 90 T4-15/L12-17 (Duane). -- 28 of 78 -- 29 the non-resident workforce for larger companies. An aggregation of uses or facilities is not a substitute for the proposal as a whole,91 which offers the choice of a “one stop” facility; and (c) the evidence does not establish that a decision to approve the development application would result in an adverse effect on the extent and adequacy of facilities that was not otherwise the product of the boom and bust nature of the Chinchilla economy. Amenity impacts [85] Council accepts that “hard” amenity impacts will be mitigated to the point where they do not represent a reason for refusal in their own right. It submits, however, that negative impacts upon perception of amenity remain.92 [86] Grow Chinchilla relies on unacceptable amenity impacts, occasioned by traffic, noise, light, odour and dust, as a reason for refusal.93 [87] In Arksmead Pty Ltd v Council of the City of Gold Coast [2000] QCA 60; [2001] 1 Qd R 347, the Court of Appeal (comprising McMurdo P, Thomas JA and Holman J) said at 354-5 [3]: ““Amenity”, as Dr Alan Fogg wrote in his Land Development Law in Queensland (1987), is “one of the most over-employed words in the vocabulary of planning jargon…” (p. 430), but it is accepted that the word refers to “that element in the appearance and layout of town and country which makes for a comfortable and pleasant life rather than a mere existence”: Ex parte Tooth & Co. Ltd; Re Parramatta City Council (1955) 55 S.R. (N.S.W.) 282 at 306. The concept of amenity is wide and flexible, and intangible factors and subjective considerations may be relevant to a decision on the effect of a proposed use on the amenity of the area affected: see Broad v. Brisbane City Council & Anor [1986] 2 Qd. R. 317.” [88] The notion of amenity was considered in Broad v Brisbane City Council & the Baptist Union of Queensland [1986] 2 Qd R 317, where Thomas J (with whom Connolly J agreed) observed at 319-20: “The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or 91 SEQ Bonds Stores Pty Ltd v Gold Coast City Council [2006] QPEC 66; [2006] QPELR 747, 755 [48]. 92 Respondent’s Submissions – Court Doc 35 p 25 [81]. 93 Submissions on behalf of the Co-respondent – Court Doc 36 p 23 [123]. -- 29 of 78 -- 30 class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be likely to have an effect in the way of “atmosphere.” Whether this is described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary resident.” [89] In Wattlevilla Pty Ltd v Western Downs Regional Council [2014] QPEC 47; [2015] QPELR 21, Robertson DCJ observed at 45 [96]: “The standard of amenity that residents are entitled to enjoy or expect is to be assessed objectively having regard to the Planning Scheme and its intent for development of the area.” [90] Amenity is not an issue that will necessarily be determined exclusively with reference to expert opinion (for example, about noise or odour). In Bassingthwaighte v Roma Town Council [2010] QPEC 91; [2011] QPELR 63, Jones DCJ observed at 73 [63]: “While the evidence of appropriate experts must of course be respected and given due weight, the court is not obliged to fall in with their assessment of what impacts other people ought find acceptable. Reasonable and genuine concerns about impacts on amenity must be given weight notwithstanding contradictory conclusions that might be expressed by expert witnesses.” (footnotes omitted) [91] In Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; [2008] QPELR 342, Dodds DCJ summarised the approach to be taken as follows at 348-9 [40]: “… Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. Bell v. Noosa Shire Council [1983] Q.P.L.R. 311; Feldham v. Esk Shire Council [1989] Q.P.L.R. 91. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered “according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity”. The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject. …” (emphasis added, footnotes omitted) -- 30 of 78 -- 31 Traffic impacts [92] Council and Grow Chinchilla allege that a decision to approve the proposed development would conflict with performance criterion PC8 of the Rural residential zone code in the Chinchilla Shire Planning Scheme.94 As noted above, it states:95 “Transport movements associated with the use protect the residential amenity of the locality and do not exceed those normally associated with residential activities.” [93] Council and Grow Chinchilla accept that the volume of traffic generation associated with the proposed development will be about the same as a residential development on the subject site. However, they submit96 that the traffic will be out of character with the area as: (a) the proposed development will have a much higher number of peak hour traffic movements;97 (b) the traffic peak occurs much earlier than would be expected from a standard residential development;98 (c) the movements are all concentrated at one driveway access point to Zeller Street (in contrast to the hypothetical residential development which could have numerous points of access, including to Price Street);99 and (d) the vehicle movements comprise a number of different types of vehicles including trucks, buses and four wheel drives and would comprise more of the larger vehicles than a typical residential subdivision. [94] The only traffic engineer called to give evidence was Mr Trevilyan. It was his uncontested evidence that: (a) in the event the subject site was developed for 150 traditional residential dwellings (which is considerably less than the 400 lots expected by Mr 94 Issues – Exhibit 2 pp 8 and 15. See also Exhibit 19. 95 Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 17. 96 Respondent’s Submissions – Court Doc 35 p 27 [85]; Submissions on behalf of the Co-respondent – Court Doc 36 p 26 [136]. 97 Report of Mr Trevilyan – Exhibit 14 p 5 [18]. 98 Report of Mr Trevilyan – Exhibit 14 p 36. 99 T3-57/L3-21 (Trevilyan). -- 31 of 78 -- 32 Ovenden100 and Mr Schneider101) and all lots gained access from Zeller Street, the peak hour traffic generation would be less than for the proposed development (128 vehicles per hour compared to 305 vehicles per hour) but the overall daily traffic generation would be essentially the same;102 (b) in the event the subject site was developed for 400 traditional residential dwellings, the peak hour traffic generation would be comparable to that of the proposed development but the daily traffic generation would be much higher;103 (c) the impacts on the road network are not only satisfactory, but well within acceptable standards. The analysis of the operation of the Zeller Street access, the Price Street access and the Zeller Street and Price Street intersection demonstrates excellent operating conditions and additional delays induced by the proposed development would be imperceptible;104 (d) the character of traffic on Zeller Street is mixed. Zeller Street carries residential traffic and industrial traffic, as well as through traffic (including heavy vehicles) as a signed bypass route from the Warrego Highway towards Tara and Condamine;105 (e) there is a 40 metre wide road reserve in Zeller Street, which is indicative of its function as a collector street, intended for use for residential and industrial local traffic, as well as through traffic;106 and (f) in terms of the concerns expressed by Mr Mackie that vehicles associated with the existing use of the subject site for non-resident workers’ accommodation has resulted in vehicles being parked on the kerb in Zeller Street and Price Street,107 the issue is being addressed by a security guard monitoring on street parking. Security records the number plates of any vehicles that are parked on 100 T2-40/L19-27 (Ovenden). 101 T2-78/L1-6 (Schneider). 102 Report of Mr Trevilyan – Exhibit 14 pp 4-5 [11]-[18]. 103 T3-56/L8-22 (Trevilyan). 104 Report of Mr Trevilyan – Exhibit 14 p 5 [19]-[21]. 105 T3-55/L20-37 (Trevilyan). 106 T3-55/L38-46 (Trevilyan). 107 Co-respondent’s Bundle of Lay Witness Statements – Exhibit 18 Tab 3 p 6 [12]. -- 32 of 78 -- 33 the street and if they are owned by anybody staying on the subject site, the owner and their employer are notified.108 [95] I accept that: (a) a residential subdivision of the subject site may not take all of its access from Zeller Street, thereby diluting the likely traffic impact on Zeller Street;109 (b) the morning peak of the traffic movements associated with the subject site is earlier than the normal residential peak;110 and (c) the mix of vehicles associated with the proposed development is different to the vehicles that would ordinarily be associated with a residential subdivision.111 [96] Nevertheless, I do not accept that the proposed development would have traffic impacts that would reasonably be regarded as out of character with the area. Zeller Street is not a pristine residential environment. Absent the proposed development, Zeller Street carries local industrial traffic and heavy vehicles that use Zeller Street as a signed bypass. [97] I am satisfied that the traffic impacts associated with the proposed development do not result in conflict with performance criterion PC8 or result in an unacceptable amenity impact. Noise, lighting, odour and dust impacts [98] Grow Chinchilla (and the lay witness statements tendered by it) has raised issues with respect to the amenity impacts associated with the proposed development as a consequence of its noise, lighting and air quality impacts. It alleges that a decision to approve the proposed development would conflict with performance criterion PC28 108 T3-56/L30-40 (Trevilyan). 109 T3-57/L3-21 (Trevilyan). 110 T3-57/L33-35 (Trevilyan). 111 T3-57/L42 – T3-58/L8 (Trevilyan). -- 33 of 78 -- 34 of the Rural residential zone code in the Chinchilla Shire Planning Scheme,112 which states:113 “Noise emissions from “Premises” do not cause environmental harm or nuisance to adjoining properties or “Sensitive land uses”. [99] The only expert called to give evidence with respect to noise, lighting, odour and dust was Mr King. [100] Mr King’s site inspection identified the following sources of noise specific to the proposed development: (a) car parking onsite and associated traffic noise, including reversing beepers; (b) bus pick-up and drop-off; (c) air conditioning units, both for individual rooms and shared facilities; (d) refrigeration unit and exhaust fans associated with the dining hall; (e) service vehicles and delivery trucks; and (f) noise from guests in external areas of the site (i.e. people talking).114 [101] Each of these noise sources was comprehensively considered by Mr King, who considered the existing noise environment of the subject site and adjoining uses by inspecting the site operations and measuring the noise generated by them.115 [102] It is accepted that the traffic counts and noise measurements were conducted at a time when the proposed use was not at capacity. Nevertheless, with respect to site carparking and traffic noise, I accept the uncontroverted evidence of Mr King that: (a) standard practice for parking vehicles fitted with reversing alarms on site is that they be left to enable departure in a forward direction;116 (b) reversing alarms are more common in the afternoon when workers are returning to camp and reversing into a carparking bay, but the ambient noise 112 Issues – Exhibit 2 p 8. See also Exhibit 19. 113 Chinchilla Shire Planning Scheme Extracts – Exhibit 4 p 24. 114 Report of Mr King – Exhibit 13 p 9 [19]. 115 Report of Mr King – Exhibit 13 p 9 [18]; T3-60/L8-25 (King). 116 Report of Mr King – Exhibit 13 p 9 [21]-[22]. -- 34 of 78 -- 35 environment is such that the reverse alarm did not present as unacceptable or intrusive to surrounding residential areas; (c) calculations of noise levels from site car parking activities demonstrate compliance with applicable sleep disturbance criterion is achieved at all surrounding residences, as are noise limits during the day and evening periods;117 (d) noise generated by vehicular traffic associated with the use, including noise from entering and existing vehicles at the site driveway on Zeller Street and noise from traffic on Zeller Street associated with the use, fit within and did not exceed existing ambient noise levels.118 The existing amenity absent the proposed development is not quietude as, even at 5am, there is already traffic using Zeller Street that is not associated with the proposed development. The existing traffic includes non-residential traffic, so that character of traffic noise is also present already. The noise generated by the traffic leaving the subject site is lower than existing traffic travelling along Zeller Street. Thus, while an individual could perceive the noise of vehicles leaving the site, because the vehicle is not silent, it would not reasonably offend their sense of place or amenity;119 and (e) the nett daily difference in road traffic noise generated by the proposed development, as compared to a residential subdivision of 150 lots, is negligible and imperceptible.120 [103] The buses used to transport some camp residents to and from work sites range from mini-buses to coaches. They all travel slowly and in a forward direction on-site and the noise from buses fits within existing ambient traffic generated noise. As such, noise from bus operations are not considered by Mr King to cause adverse amenity impact at surrounding residential areas.121 117 Report of Mr King – Exhibit 13 pp 9-10 [24]-[27]. 118 Report of Mr King – Exhibit 13 p 10 [28]-[29]. 119 T3-60/L44 – T3-61/L37 and T3-65/L1-32 (King). 120 Report of Mr King – Exhibit 13 p 10 [30]; T3-61/L11-46 (King). 121 Report of Mr King – Exhibit 13 p 11 [32]. -- 35 of 78 -- 36 [104] With respect to noise from service vehicles and refuse collection: (a) less than ten service vehicles, including deliveries and refuse collection, utilise the Price Street entry/exit point a day, with minimal resultant noise from such movements;122 (b) calculations of noise levels from delivery vehicles traveling to the back of house areas demonstrate compliance with the appropriate noise limits relating to service vehicle operations during the daytime period;123 (c) provided deliveries by medium rigid vehicles, large rigid vehicles, articulated vehicles and refuse collection are limited to the window of 7am to 6pm, there will be no adverse impact on surrounding acoustic amenity;124 and (d) there is no need to place a time-based restriction for deliveries by vans or small rigid vehicles to achieve acceptable acoustic amenity outcomes.125 [105] Fixed plant and equipment noise relates primarily to air conditioning units and heat pumps associated with guest rooms and central facilities, and fans and refrigeration equipment associated with the kitchen areas. These facilities are centralised on the subject site and well set-back from surrounding residential uses. Mr King’s inspections and noise measurements identify that noise from plant is barely detectable at off-site residential areas and the noise measurements and assessment demonstrates compliance with regulatory noise standards.126 [106] With respect to guest noise, there is significant separation between communal outdoor areas and off-site residences. The separation distance is in the order of 160 metres to the nearest off-site dwelling. Mr King opined that the separation is more than adequate to provide suitable noise reduction. His opinion was confirmed by a site inspection of the camp prior to Christmas when he observed a Christmas party occurring in the undercover entertainment area. The noise generated by the party was not considered by Mr King to be excessive or at a level likely to cause annoyance at off-site residences.127 122 Report of Mr King – Exhibit 13 p 11 [33]. 123 Report of Mr King – Exhibit 13 p 11 [34]-[35]. 124 Report of Mr King – Exhibit 13 p 12 [36]. 125 Report of Mr King – Exhibit 13 p 12 [36]. 126 Report of Mr King – Exhibit 13 p 12 [37]-[38]. 127 Report of Mr King – Exhibit 13 p 12 [39]-[40]. -- 36 of 78 -- 37 [107] Further, as was observed by Mr King, noise from on-site guests is likely to be self- limiting as excessive noise would impact on guests. Camp rules require appropriate behaviour and limits noise generation in external areas at all times.128 [108] Mr King opines that the day-to-day operation of the camp is such that it is not a generator of significant people noise nor operational noise with the normal daytime operations comprising housekeeping, maintenance and gardening operations.129 [109] I accept the evidence of Mr King, which was unchallenged. I am satisfied that the proposed development will not, if approved, adversely impact on amenity by reason of noise. [110] The lighting for the proposed development involves: (a) fixed lighting to external areas including car parking areas and outdoor communal recreation spaces, which is provided by pole mounted directional luminaires that are horizontal down facing fittings to limit light spill and glare;130 (b) pathway lighting between site buildings, which is provided by low height bollard lights and low intensity lights on building sides to pathway areas;131 and (c) street lighting on public roadways that is by typical pole/arm mounted fittings.132 [111] Another potential source of light impact is car headlight beam intrusion into residential properties opposite the site vehicle entry/exit point on Zeller Street. [112] In assessing potential impact of lighting, Mr King inspected the subject site overnight and measured light illuminance both on and external to the subject site. Based on his observations and measurements, it was the uncontroverted evidence of Mr King that: (a) the light measurements demonstrate compliance of fixed site light spill with the criteria in Australian Standard AS4282-1997 – Control of Obtrusive 128 Report of Mr King – Exhibit 13 p 12 [41]. 129 Report of Mr King – Exhibit 13 p 12 [42]. 130 Report of Mr King – Exhibit 13 p 14 [46]. 131 Report of Mr King – Exhibit 13 p 14 [47]. 132 Report of Mr King – Exhibit 13 p 14 [48]. -- 37 of 78 -- 38 Effects of Outdoor Lighting, which sets appropriate design standards for fixed site lighting with respect to impact upon amenity;133 (b) the site lighting does not spill into any off site residential areas and does not present as intense or glare generating fitting when viewed from beyond the subject site;134 (c) in terms of the concerns expressed by Mr Mackie that vehicles associated with the existing use of the subject site create headlight glare at his residence,135 given the location of Mr Mackie’s house, headlights from cars associated with the proposed development would not have any impact on Mr Mackie’s residence;136 (d) no adverse amenity impact will result from car headlight beam intrusion into residential properties because dwellings are set back from the street some 30 metres from where vehicles exiting the subject site are undertaking turns to enter Zeller Street and headlight beams do not cause adverse light spill across dwellings. Further, and in any event, the dwellings have curtains and blinds that were closed to provide privacy, which would minimise any visibility of headlights departing the subject site;137 and (e) the site lighting does not present as an island of light in a sea of darkness.138 It does not create undue glare or light spill beyond the boundaries of the subject site due to both the location and orientation of the light fittings and the significant separation distances between site lighting and off-site residential uses.139 [113] I accept the evidence of Mr King and am satisfied that site lighting does not result in adverse amenity impacts. Suitable conditions of approval can be set to ensure ongoing compliance with appropriate lighting standards. 133 Report of Mr King – Exhibit 13 p 14 [49]-[50]. 134 Report of Mr King – Exhibit 13 p 14 [51]. 135 Co-respondent’s Bundle of Lay Witness Statements – Exhibit 18 Tab 3 p 6 [11(b)]. 136 T3-59/L45 – T3-60/L6 (King). 137 Report of Mr King – Exhibit 13 pp 14-15 [52]. 138 Report of Mr King – Exhibit 13 p 15 [54]. 139 Report of Mr King – Exhibit 13 p 13 [44]. -- 38 of 78 -- 39 [114] During his site inspection, Mr King also identified the potential for air quality impacts of the proposed development and addressed them, even though they were not specifically raised. He observed that the site includes a central facilities area that provides a commercial kitchen and dining hall. Cooking odours from the kitchen are managed with the use of commercial grade exhaust canopy hoods over those cooking areas that are exhausted vertically above roof level by mechanical extraction fans.140 [115] Mr Kings field observations revealed that odour from cooking in the kitchen was just detectable within 50 metres of the exhaust fans and was not detectable at the site boundary. The detectable odour was not offensive.141 [116] I accept the uncontested evidence of Mr King that, given the physical infrastructure (i.e. hoods and exhaust fans) and the available separation distances between the kitchen exhausts and off-site residences, no adverse air quality (odour) impact will occur at residential areas beyond the subject site.142 [117] With respect to dust, I also accept the evidence of Mr King that there is not an unacceptable dust issue associated with the proposed development given the subject site is grassed and vegetated and the roads are sealed.143 The lay witness statements raise an issue with respect to dust generated by the unsealed shoulders of the local streets. This is not an issue that can properly be attributed to the proposed development. [118] I am satisfied that, with the imposition of conditions recommended by Mr King, the proposed development can operate such that unacceptable adverse amenity impacts can be appropriately managed to protect residential amenity. Western Downs Planning Scheme 2017 [119] Under the Western Downs Planning Scheme, the subject site is: (a) located in the Low density residential zone;144 140 Report of Mr King – Exhibit 13 p 16 [55]-[56]. 141 Report of Mr King – Exhibit 13 p 16 [58]-[60] and T3-62/L1-18 (King). 142 Report of Mr King – Exhibit 13 p 16 [57]. 143 T3-62/L18-29 (King). 144 Western Downs Planning Scheme Maps – Exhibit 7 pp 2-3. -- 39 of 78 -- 40 (b) shown as part of the Urban Area on the Strategic Plan Settlement Pattern map;145 and (c) outside of the Priority Infrastructure Area.146 [120] The Western Downs Planning Scheme includes a “Non-resident workforce accommodation” use, which is defined as:147 “Premises used to provide accommodation for non-resident workers. The use may include provision of recreational and entertainment facilities for the exclusive use of residents and their visitors” [121] Examples are said to include contractor’s camp, construction camp, single person’s quarters and temporary workers’ accommodation. The use does not include relocatable home park, short-term accommodation or tourist park, each of which are defined terms in the Western Downs Planning Scheme.148 [122] The Western Downs Planning Scheme also includes an administrative definition of “non-resident worker” as follows:149 “Workers who reside in areas for extended periods when employed on projects directly associated with resource extraction, major industry, major infrastructure or rural uses, but have a permanent place of residence in another area. This includes workers engaged in fly-in/fly-out or drive-in/drive-out arrangements.” [123] Development for non-resident workforce accommodation is identified as inconsistent development in the Low density residential zone.150 It is also identified as inconsistent development in every other zone. Relevance of the Western Downs Planning Scheme [124] Council and Grow Chinchilla each allege that a decision to approve the proposed development would conflict with the Western Downs Planning Scheme. Conflict with the Western Downs Planning Scheme is not determinative of the appeal. The weight afforded to provisions within Western Downs Planning Scheme is a matter for 145 Western Downs Planning Scheme Maps – Exhibit 7 p 5. 146 Western Downs Planning Scheme with PIA map – Exhibit 20. 147 Western Downs Planning Scheme Extracts – Exhibit 6 p 150. 148 Western Downs Planning Scheme Extracts – Exhibit 6 p 150. 149 Western Downs Planning Scheme Extracts – Exhibit 6 p 163E. 150 Western Downs Planning Scheme Extracts – Exhibit 6 p 109. -- 40 of 78 -- 41 the court.151 It was accepted by all parties that the Western Downs Planning Scheme should be given significant weight. It represents Council’s most recent statement of planning intent. However, there is a disagreement between the parties about whether the Westerns Downs Planning Scheme provides support for the proposed development or further highlights the inappropriateness of it. Strategic Plan [125] Part 3 of the Western Downs Planning Scheme contains the strategic plan, which sets the policy direction for the planning scheme.152 [126] Section 3.1(3) explains the structure of the strategic plan as follows:153 “For the purpose of describing the policy direction for the planning scheme, the Strategic Plan is structure in the following way: (a) the strategic intent; (b) the following five themes that collectively represent the policy intent of the Scheme: (i) Livable (sic) Communities and Housing; (ii) Environment and Heritage; (iii) Economic Growth; (iv) Infrastructure; and (v) Safety and Resilience to Hazards. (c) the strategic outcome(s) proposed for development in the planning scheme area of each theme; (d) the element(s) that refine and further describe the strategic outcome(s); (e) the specific outcomes sough for each, or a number, of elements; (f) the land use strategies for achieving these outcomes.” [127] The regional, local and historic context of the Western Downs is set out in s 3.2.1 of the strategic plan.154 The context includes: “(9) The Western Downs represents a significant proportion of the Surat Basin, a rich energy province extending from central southern Queensland to central northern New South Wales including the Western Downs, Maranoa and Toowoomba Regional Council areas. With significant proven reserves of thermal coal and coal seam gas located in the Surat Basin, the Western Downs has and will continue to undergo change and growth. The changes will not only impact on the economy of the region, but will also have impacts on growth management, including infrastructure provision, 151 Sustainable Planning Act 2009, s 495(2)(a). 152 Western Downs Planning Scheme Extracts – Exhibit 6 p 13. 153 Western Downs Planning Scheme Extracts – Exhibit 6 p 13. 154 Western Downs Planning Scheme Extracts – Exhibit 6 p 14-15. -- 41 of 78 -- 42 environmental protection and the retention of the lifestyle so valued by the existing community. The resource and coal seam gas industries are finite resources and therefore a balance must be achieved in growth management between short and long term land use impacts. (10) The Western Downs is the energy capital of Queensland supplying a diversity of gas, solar and coal electricity to the national electricity grid via an array of power stations and high voltage transmission lines that stretch across the landscape.” (emphasis added) [128] Section 3.2.2 outlines the opportunities and challenges that are “the most significant issues expected to define future development within the region” and sets out “key matters the Strategic Plan and/or planning scheme as a whole seek to address”.155 Relevantly, they include:156 “3.2.2.1 Housing need … (3) Fly-in/fly-out (FIFO), drive-in/drive-out (DIDO) non-resident temporary workers may relocate to the region on a temporary basis. Accommodation for these workers is and can be met by the current accommodation providers in the region. It is necessary to ensure that sufficient accommodation options are available for non-resident temporary workers given that housing affordability can become an issue for people in lower low socio-economic brackets should non-resident temporary workers reside in dwellings in residential areas. (4) Council encourages operational workforces to reside in the region to become residents and to contribute to the social fabric of our community. 3.2.2.2 Managing the growth of the resources and energy sector … (2) Mineral, gas and extractive industry activities have the potential to positively and negatively impact the triple bottom line, including potential: (a) ... (b) positive and negative economic impacts arising from, housing price fluctuation, growth in and emergence of complementary industries and services, social and physical infrastructure demands; (c) positive and negative social impacts including, increased employment opportunities, shifts in sectorial employment, housing shortages, social instability, lifestyle, health and amenity impacts, and loss of generational farming communities. 155 Western Downs Planning Scheme Extracts – Exhibit 6 p 15. 156 Western Downs Planning Scheme Extracts – Exhibit 6 pp 15-16. -- 42 of 78 -- 43 (3) The likely impacts of the rapidly expanding resources sector on the Western Downs are highly dependent on the location, magnitude and operation of individual mining and petroleum projects. Notwithstanding, the flow-on effects of this sector are likely to result in demand spikes in non-resident workforce accommodation and supporting services, including industry, retail and commercial activities. … (5) Population growth, including the influx of non-resident workers associated with the mining and resource sectors, is likely to impact on the physical and social fabric of Western Downs. It is important to ensure that individual settlements are maintained as strong and resilient communities that can adapt positively to future opportunities and challenges.” (emphasis added) [129] A number of the strategic outcomes and specific outcomes for the “Livable (sic) communities and housing” theme and the “Economic growth” theme are relevant in this case. They are as follows:157 “3.3 Livable (sic) communities and housing 3.3.1 Strategic Outcomes (1) The settlement pattern of the Western Downs supports, enhances and consolidates the existing network of communities and Urban areas located on the Warrego highway as the primary locations for future urban growth and service delivery. … (3) The settlement pattern contains urban development within identified boundaries to create compact, diverse and vibrant communities. Significant urban development for residential purposes takes advantage of the access to existing facilities and services. The settlement pattern maximizes the utilisation of existing infrastructure and maintains and enhances access to services, employment opportunities and recreational and social infrastructure for all residents. … (8) Where development is not consistent with the purpose and intent of the zone, overriding community need will need to be demonstrated as well as valid planning justification provided as to why the proposed use cannot be reasonably established in a more appropriate zone. (9) The unique identity of the urban centres and rural townships in the Western Downs is recognised and strengthened through complementary development that positively contributes to the regional identity of the Western Downs. … 157 Western Downs Planning Scheme Extracts – Exhibit 6 pp 18, 19, 23, 27, 44 and 45. -- 43 of 78 -- 44 3.3.2 Element – Network of centres … 3.3.2.1 Specific Outcomes … (3) Chinchilla, Miles and Wandoan are the focus for permanent and temporary non-resident worker accommodation and take advantage to the proximity to current and future resource sector activities in the district and the established urban service networks. Larger forms of permanent and temporary non-resident worker accommodation are predominantly located in Dalby, Chinchilla and Miles to minimise the social and economic impacts on other centres. … 3.3.4 Element – Community character … 3.3.4.1 Specific outcomes (1) Urban areas are predominated by a built form topology and landscaping that complements a climatically responsive traditional Queensland vernacular. … (3) Non-resident workers accommodation is complementary to the character of surrounding residential development by way of scale and appearance. … (7) Where development is not consistent with the purpose and intent of the zone, overriding community need will need to be demonstrated as well as valid planning justification provided as to why the proposed use cannot be reasonably established in a more appropriate zone. … 3.3.8 Element – Housing supply and diversity (1) Housing across the Western Downs is made affordable through the provision of a range of housing options that suit the needs of residents both currently and in the future. 3.3.8.1 Specific outcomes … (2) Where located in close proximity to urban centres, non-resident workforce accommodation integrates with the traditional urban character of the locality. …. 3.3.8.2 Land use strategies … (5) A maximum residential density of 25 dwellings per hectare is achieved and development has a low rise built form of up to two (2) storeys in height in the Low density zone. -- 44 of 78 -- 45 … 3.5 Economic growth 3.5.1 Strategic outcomes (1) The Western Downs supports a diversified and prosperous economy that builds on the existing economic strengths of the region including agriculture and forestry, energy and resource development, manufacturing, tourism and transport. … (5) The growth of the resource sector is balanced with environmental protection, social responsibility and advancement in other sectors of the regional economy, fostering a skilled and locally based workforce to improve the economic resilience and employment capital in the region. … 3.5.2 Element – Activity centres and employment … 3.5.2.1 Specific outcomes … (4) Chinchilla, Miles and Wandoan are the focus for permanent and temporary non-resident worker accommodation and take advantage to the proximity to current and future resource sector activities in the district and the established urban service networks. Larger forms of permanent and temporary non-resident worker accommodation are predominantly located in Dalby, Chinchilla and Miles to minimise the social and economic impacts on other centres.” (emphasis added) [130] Council alleges that a decision to approve the proposed development would conflict with s 3.2.2.1(3), s 3.2.2.1(4), s 3.3.4.1(3) and s 3.3.8.1(2).158 [131] Grow Chinchilla also alleges that a decision to approve the proposed development would conflict with those provisions. In addition, it alleges conflict with s 3.2.2.2(3), s 3.2.2.2(5), s 3.3.1(1), s 3.3.1(3), s 3.3.1(8), s 3.3.1(9), s 3.3.4.1(7), s 3.3.8.2(5), s 3.5.1(1) and s 3.5.1(5).159 [132] In Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82; [2014] QPELR 686, Morrison JA observed at [52] that “[t]he same principles which apply to statutory construction apply to the construction of 158 Issues – Exhibit 2 p 15. 159 Issues – Exhibit 2 pp 8-10. -- 45 of 78 -- 46 planning documents.” As such, it is necessary to consider the context of the provisions that are being construed.160 [133] Here, it is apparent from the heading, and the explanation of the structure of the strategic plan in s 3.1(3), that s 3.2.2.1(3), s 3.2.2.1(4), s 3.2.2.2(3) and s 3.2.2.2(5) are not provisions that are intended to prescribe outcomes for individual developments; rather they record the opportunities and challenges that provide the planning rationale for criteria contained elsewhere in the planning scheme. Similarly, s 3.3.1(1), s 3.3.1(3), s 3.3.1(9), s 3.5.1(1) and s 3.5.1(5) describe outcomes sought for the region as a whole, rather than for individual developments. Each of these provisions are relevant to an appreciation of the seriousness of any conflict, but do not adopt prescriptive language that is apt to give rise to a clearly identifiable conflict. [134] Even if these provisions were properly regarded as capable of sustaining a clear conflict, I am satisfied that a decision to approve the proposed development would not result in conflict. [135] With respect to s 3.2.2.1(3), I am satisfied that there is a need for the proposed development to ensure that there are sufficient accommodation options available for non-resident temporary workers. I accept the submissions on behalf of the Grow Chinchilla about the meaning of “accommodation providers”.161 However, the need is informed by the material differences between workers accommodation villages and hotels and motels as identified elsewhere already. [136] The existence of other workers accommodation villages in the region, both in towns (such as Dalby and Miles) and on mining tenements, does not adequately address that need, given: (a) the need experts agreed that “The strategic location of Chinchilla within the Surat Basin has enabled the town to take advantage of the energy resources boom. A number of resource based employment nodes are located within close proximity to Chinchilla, including the Kogan Creek Power Station, Kogan Mine, gas leases and Cameby Downs Mine”;162 and 160 Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, 95 [55]; [2014] QPELR 686. 161 Submissions on behalf of the Co-respondent – Court Doc 36 p 44 [232]. 162 Joint Economic Need Report – Exhibit 11 p 16 [40]. -- 46 of 78 -- 47 (b) the economic experts did not regard such other facilities as relevant to their analysis. Mr Coghlin and Mr Leyshon said in the Joint Economic Need Report that “if Stayover were to close many workers would relocate to other facilities in Chinchilla and would not necessarily be exiled to camps on mining leases”.163 Mr Coghlin also confirmed that for the purposes of this case his “trade area” was Chinchilla and that Dalby and Miles were not areas that he had investigated.164 [137] I do not accept that approval of the proposed development would cut across a planning strategy in s 3.2.2.1(4) to encourage operational workforces to reside in the region. It is apparent from the lay witness statements that there is a plentiful supply of houses in the area that will accommodate those who wish to reside permanently.165 There is no evidence that should there be insufficient workers village accommodation that those who would otherwise stay in such facilities will, instead, elect to become permanent residents. To the contrary, the evidence of the economists was that, absent the proposed development, those who would have otherwise stayed at the facility would either relocate to camps on mining or gas tenements166 or stay in hotels and motels in Chinchilla167. [138] The submissions by Grow Chinchilla with respect to conflict with s 3.2.2.2(3) focussed on the negative impacts that have arisen in Chinchilla from the resource boom and its sudden end. This is not a matter upon which the proposed development has any bearing. [139] As I have already identified elsewhere, I am satisfied that there is a need for further non-resident workers accommodation. In those circumstances, approval of the proposed development has the potential to addresses the housing shortage challenge identified in s 3.2.2.2(3) and ease pressures on household rents and prices when peak demands occur, rather than create conflict with the provision. [140] Similarly, approval of the proposed development will ensure that Chinchilla is maintained as a strong and resilient community that can adapt positively to future 163 Joint Economic Need Report – Exhibit 11 p 55 [145]. See also Joint Economic Need Report – Exhibit 11 p 60 [164]. 164 T4-40/L32-38 (Coghlin). 165 Co-respondent’s Lay Witness Statements – Exhibit 18 Tabs 21-24 and 26-40. 166 Joint Economic Need Report – Exhibit 11 p 58 [149] (Duane) and p 59 [156] (Leyshon). 167 Joint Economic Need Report – Exhibit 11 p 60 [164]-[165] (Coghlin). -- 47 of 78 -- 48 accommodation challenges (s 3.2.2.2(5)) that may arise as a consequence of other major projects in the area. [141] As was agreed by the economic experts: (a) “Stayover Chinchilla has played an important role in the development of major projects within the Chinchilla region and can continue to play that role into the future”;168 (b) there are a number of major projects planned throughout the area that should help maintain employment within the region;169 and (c) the list of major projects shows that there is going to be ongoing demand for non-resident workers accommodation facilities.170 [142] In his individual report, Mr Duane provided details of some of the major projects that are approved or proposed in the area.171 [143] I accept Council’s submission that future projects will, to some extent, replace the inevitable depletion of existing demand as current projects wrap up172 and that there is no certainty with respect to future projects.173 As was agreed by the economists, “it is impossible to say with any degree of accuracy what the actual demand will be for non-resident worker accommodation in Chinchilla over the next five years”.174 [144] Nevertheless, I am satisfied that there is a need for the facility and an absence of conflict with s 3.2.2.2(5). In order to avoid the negative impacts associated with accommodation shortages (such as those that have occurred in Chinchilla in the past) and ensure that Chinchilla can adapt positively to future opportunities and challenges, it is necessary to have non-resident workforce accommodation that is available to cater for potential peak demand, not just average occupancy.175 I do not accept the evidence of Mr Coghlin that many of these projects have long lead times that allow 168 Joint Economic Need Report – Exhibit 11 p 51 [122]. 169 Joint Economic Need Report – Exhibit 11 pp 20-1 [52]-[53]. 170 Joint Economic Need Report – Exhibit 11 p 44 [98]. 171 Report of Mr Duane – Exhibit 12 pp 4-5 [2.3]-[2.4]. 172 Joint Economic Need Report – Exhibit 11 p 41 [89] (Leyshon). 173 Respondent’s Submissions – Court Doc 35 p 31 [106]-[107]. 174 Joint Economic Need Report – Exhibit 11 p 44 [99]. See also T4-31/L1-5 (Duane); T4-32/L15 (read with Exhibit 31) (Duane); T4-20/L13-26 (Duane); T4-22/L1-8 (Duane). 175 T4-7/L21 – T4-8/L16 (Duane). -- 48 of 78 -- 49 the market to anticipate when they will proceed.176 The historical experience in Chinchilla belies this suggestion. Further, and in any event, any future application for a non-resident worker accommodation in Chinchilla would require impact assessment. It is not a code assessable use in any zone. As such, one could not reasonably assume that adequate provision could be made in a timely manner should the approved or proposed projects proceed. [145] Grow Chinchilla’s allegation of conflict with s 3.3.1(1) and s 3.3.1(3) is premised on its idea that approval of the proposed development would sterilise the land. I do not accept this submission for the reasons already provided in paragraphs [66] and [67] above. [146] Further, I do not accept, as submitted by Grow Chinchilla, that a decision to approve the proposed development involves this court substituting its own planning strategy in place of that of the planning authority contrary to the approach adopted in Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 at 211 and endorsed by the Court of Appeal in Holts Hill Quarries Pty Ltd v Gold Coast City Council & Ors [1999] QCA 510; [2001] 1 Qd R 372, Grosser v Gold Coast City Council [2001] QCA 423; (2001) 117 LGERA 153; [2002] QPELR 207, Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271 and Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157. In that respect, it is pertinent to observe that it is apparent from the provisions of the strategic plan referred to above that: (a) Chinchilla is intended to be a focus for permanent and temporary non-resident worker accommodation, because of its proximity to current and future resource sector activities; (b) larger forms of permanent and temporary non-resident worker accommodation are to predominantly locate in Dalby, Chinchilla and Miles to minimise social and economic impacts; and (c) non-resident worker accommodation may be provided in the Urban Area and in close proximity to urban centres.177 176 T4-36/L41 – T4-37/L2 (Coghlin). 177 See also Western Downs Planning Scheme Extracts – Exhibit 6 pp 118-9 headings above PO13 and PO16 in the Accommodation Activities Code. -- 49 of 78 -- 50 [147] The subject site is located in the Urban Area of Chinchilla.178 It is in the location that the planning scheme anticipates any needed non-resident worker accommodation will be provided. [148] With respect to s 3.3.1(9), Grow Chinchilla submits that conflict arises as the proposed development will not strengthen the identity of the Western Downs as it is poorly integrated. I do not accept that a failure to advance every goal in a strategic plan is evidence of conflict. In any event, the unique identity of Chinchilla is one that is intended to include non-resident workforce accommodation. I am satisfied there is no conflict with this provision. [149] Grow Chinchilla’s submissions with respect to conflict with s 3.5.1(1) and s 3.5.1(5) are premised on an absence of need for the proposed development, which I do not accept. [150] As for s 3.3.8.2(5), Grow Chinchilla made no submissions with respect to conflict with this provision. It is apparent from the context of the provision that it is intended to set a maximum density for dwellings in the Low density zone, should development be proposed for those purposes. The provision is of little relevance to assessment of another form of development, other than to the extent that it provides an indication of the intended intensity of built form and consequent character for an area. For reasons identified elsewhere, I am satisfied that the proposed development does not involve unacceptable impacts in terms of its built form and character. [151] The other provisions of the strategic plan with which there is alleged conflict, namely s 3.3.1(8), s 3.3.4.1(3), s 3.3.4.1(7) and s 3.3.8.1(2), raise for consideration: (a) whether there is an overwhelming community need for the proposed development and valid planning justification for it not being established in a more appropriate zone; and (b) whether the proposed development is complementary to the character of the surrounding area by way of scale and appearance and whether it integrates with the traditional urban character of the locality. 178 Exhibit 7 p 5. -- 50 of 78 -- 51 Overwhelming community need and valid planning justification [152] The proposed development is an inconsistent use in the Low density residential zone. As such, s 3.3.1(8) and s 3.3.4.1(7) of the Western Downs Regional Plan require demonstration of overwhelming community need and valid planning justification why the use cannot be reasonably established in a more appropriate zone. [153] These provisions do not specifically relate to non-resident workers accommodation; they apply to any development that is not consistent with the purpose and intent of the zone in which it is proposed to be located. [154] With respect to the requirement to demonstrate “overwhelming community need”, the observations of Williams JA in Yu Feng Pty Ltd v Brisbane City Council & Ors [2007] QCA 382; (2007) 156 LGERA 399 at 407 [26] with respect to a similar phrase in Brisbane City Plan 2000. William JA observed: “But in any event cl 4.4.2.6 is not on its face prescriptive. It is more in the nature of a “motherhood statement” and what will constitute an “overwhelming need” will vary enormously. There would almost be an infinite variety of facts which could impact upon the decision whether or not there was an “overwhelming need” for a proposal under consideration.” [155] In Metroplex Management Pty Ltd v Brisbane City Council & Ors [2009] QPEC 110; [2010] QPELR 270, Rackemann DCJ found at 287 [104] that the “overwhelming community need” is “a need which is of such strength as to overwhelm the conflict which otherwise exists with the planning strategy.” [156] The planning strategy in question is that development be consistent with the purpose and intent of the zone in which it is to be located. Although the proposed development conflicts with the intent and purpose of the Low density residential zone, for reasons explained below I do not regard the conflict as severe. I am satisfied, for the reasons provided in paragraphs [42] to [48], [55] to [65], [136] and [139] to [144] (particularly [58] to [64]) above, that there is overwhelming community need. [157] I am also satisfied that there is valid planning justification why the proposed use cannot be reasonably established in a more appropriate zone. The use is an inconsistent use in all zones in the Western Downs Planning Scheme. Further, the current location is an appropriate one given the use is an existing use that can (and does) operate in this location without undue impact. -- 51 of 78 -- 52 Character [158] I accept that the proposed development could not be described as complementary to the character of the surrounding area. [159] With respect to the requirement to be “integrated with the traditional urban character of the locality”, Grow Chinchilla urges reliance on the observation of the town planner engaged by it, Mr Schneider, that:179 “…despite the location of the site at the edge of the Chinchilla township, the development is designed and operated in a way that is not well integrated with the locality. The existing facility is an internalised and intensive development at the outskirts of the town. It is also largely self-contained in that it provides sleeping quarters, laundry facilities, kitchen and dining facilities, meals, non-alcoholic beverages; an indoor fitness centre, indoor recreational facilities, outdoor recreational facilities; car parking and landscaped surrounds within the camp environment. The facilities are well appointed and well maintained. Non-resident workers typically need only leave the facility for very few, if any, purposes (e.g. discretionary trips to licensed venues or refuelling vehicles at the service station). As a consequence, the proposed development ostensibly operates as a discrete village on the edge of Chinchilla. It is not well integrated, either physically or functionally, with the broader township. The poor integration of the existing facility is made more significant by the scale of the proposed development. The proposed 1,000 person capacity of the proposed development amounts to a potential on-site population that is as large as approximately 20% of the entire population of the Chinchilla township.” [160] I do not accept the views of Mr Schneider. He has addressed whether the proposed development integrates, as a use, with the township. The issue for consideration is one of character. [161] The locality is not a homogenous, single-detached housing area. Uses in the locality include other intense forms of residential uses, including Base Camp, Chinchilla Tourist Park and an aged care facility.180 [162] I am satisfied that, with the proposed landscaping, the proposed development will integrate with the urban character of the locality. 179 Joint Expert Report – Town Planning – Exhibit 8 p 19 [78]-[79]. 180 See further discussion on character in paragraphs [206] to [218] below. -- 52 of 78 -- 53 Low Density Residential Zone Code [163] The Low Density Residential Zone Code includes the following provisions:181 “6.2.7.2 Purpose The purpose of the Low Density Residential zone code is to provide for predominantly dwelling houses supported by community uses and small scale services and facilities to cater for local residents. The overall outcomes sought for the Low density residential zone code are as follows: (1) Low-rise, detached residential dwelling development is provided in a variety of styles and designs to meet the needs of the community by providing housing options that cater for different levels of affordability. (2) Dual occupancy and other residential activities such as residential care facility and retirement facility may be established where this scale and operation is compatible with, and does not detract from the residential character and amenity of the zone. Dual occupancy, residential care facilities and retirement facilities are to be located in walking distance of Centre zones. (3) Home bases (sic) business activities may occur where these activities meet the daily needs of the immediate residential catchment, and the business activity is ancillary to the residential use and does not negatively impact the residential amenity of the area. … (5) Small scale, non-residential uses are provided where they cater directly to community needs (such as convenience stores and childcare facilities) and where the character and residential amenity of the locality is protected and enhanced. These non-residential uses are not to replicate the uses that exist in more appropriate zones, such as centre zones. Non-residential uses are small scale and incorporate design elements that are consistent with the surrounding residential development. (6) Development provides for quality urban design and is complementary to and consistent with the character and amenity and the locality. Development achieves and maintains accessible, well-serviced and well-designed communities. … (8) A maximum residential density of 25 dwellings per hectare is achieved and development has a low rise built form of up to two (2) storeys in height. … (11) Development provides for an efficient pattern of development that creates walkable, permeable and legible communities that are integrated with active transport networks (such as the existing road network, cycleway and pedestrian footpath networks) and are well connected to activity centres, employment nodes, open space and recreation areas and community facilities. Development provides for a 181 Western Downs Planning Scheme Extracts – Exhibit 6 p 107, 108, 110 and 111. -- 53 of 78 -- 54 high level of amenity that is complementary to the built form typology and landscape character of the Low density residential zone. … (17) Where development is not consistent with the purpose and intent of the Low density residential zone, overriding community need will need to be demonstrated as well as valid planning justification provided as to why the proposed use cannot be reasonably established in a more appropriate zone. … 6.2.7.3 Criteria for assessment … Performance Outcomes Acceptable Outcomes Accommodation Density PO2 Accommodation and residential density is consistent with the prevailing character and density of the locality. AO2.1 Residential density is a maximum of one dwelling per 400m² of the site area. AO2.2 Accommodation density is a maximum of one accommodation unit per 200m² of the site area Amenity Protection PO5 Development must not detract from the amenity of the local area, having regard to: (a) noise; (b) hours of operation; (c) traffic; (d) lighting; (e) advertising devices; (f) visual amenity; (g) privacy; (h) odour; or (i) emissions. AO5 No acceptable outcome. -- 54 of 78 -- 55 PO6 Development must take into account and seek to ameliorate any existing negative environmental impacts, having regard to: (a) noise; (b) hours of operation; (c) traffic; (d) lighting; (e) advertising devices; (f) visual amenity; (g) privacy; (h) odour; or (i) emissions. AO6 No acceptable outcome. [164] Council alleges that a decision to approve the proposed development would conflict with the Low density residential zone code. It relies on the fact that the proposed development is listed as an inconsistent use in the zone.182 [165] Grow Chinchilla also alleges that a decision to approve the proposed development would conflict with the purpose of the code, overall outcomes (1), (6), (11) and (17) and performance outcomes PO2, PO5 and PO6.183 [166] In broad terms, the conflicts are alleged to arise as a consequence of: (a) the nature, scale and density of the proposed development and character impacts; and (b) amenity impacts. Nature, scale and density and character impacts [167] Non-resident workers accommodation is identified as inconsistent development in the Low Density Residential zone. It can be considered on its merits where it reflects the purpose and intent of the planning scheme.184 182 Issues – Exhibit 2 p 15. 183 Issues – Exhibit 2 pp 10-11. 184 Western Downs Planning Scheme Extracts – Exhibit 6 p 109. -- 55 of 78 -- 56 [168] The proposed development does not reflect the purpose of the Low Density Residential zone insofar as it does not involve dwelling houses, community uses or small scale services and facilities to cater for local residents. [169] However, as was acknowledged by Council in its submissions, the Western Downs Planning Scheme anticipates development other than dwelling houses in the Low Density Residential Zone, provided it: (a) is of a scale and operation that is compatible with the residential character and amenity of the zone; and (b) involves a quality urban design that is complementary to and consistent with the character and amenity of the locality. [170] Although the proposed development is not of a residential low density character, its character is not completely discordant with that of the locality and there are no unacceptable amenity impacts occasioned by the development.185 [171] I accept that a decision to approve the proposed development would conflict with the Low Density Residential Zone code. However, the significance of the conflict is mitigated by the matters referred to in paragraphs [206] to [218] below. [172] The question of overriding community need and planning justification has already been addressed in paragraphs [152] to [157] above. Amenity impacts [173] The issue of amenity impacts has been addressed in paragraphs [85] to [118] above. For the reasons identified there, I am satisfied that there is no conflict with performance outcomes PO5 and PO6 of the Low Density Residential Zone Code. Accommodation activities code [174] The Accommodation activities code includes the following provisions:186 “9.3.1.2 Purpose (1) The purpose of the Accommodation activities code is to ensure that Accommodation activities uses are designed, located and operated to 185 See further discussion about character in paragraphs [74] to [76] above and paragraphs [206] to [218] below and discussion on amenity in paragraphs [85] to [118] above. 186 Western Downs Planning Scheme Extracts – Exhibit 6 pp 114, 115, 118 and 121. -- 56 of 78 -- 57 maintain and protect the amenity of residents and amenity expectations of neighbourhoods. (2) The purpose of the code will be achieved through the following overall outcomes: (a) the type, location, scale, density and setbacks of accommodation activities is consistent with the character and amenity of the applicable zone; … (e) Accommodation activities are provided with appropriate service areas to ensure that occupants daily activities can be undertaken, whilst not prejudicing the residential amenity and streetscape of the locality; … 9.3.1.3 Criteria for assessment … Performance Outcomes Acceptable Outcomes Multiple dwellings, Dual Occupancy, Retirement facility, Residential care facility or Non-resident workforce accommodation (where for more than one dwelling and in an Urban Area) Built form PO13 The building must be oriented to the street to facilitate casual surveillance, provide visual interest and to ensure good urban design outcomes. AO13.1 The building has a door, habitable room window or balcony that faces the primary road frontage, and secondary road frontage (where applicable). AO13.2 All dwellings have a visible entry from the primary road frontage. Non-resident workforce accommodation Character PO22 The roof form of non-resident workforce accommodation is consistent with the predominant character of roof forms exhibited in the locality. AO22.1 The non-resident workforce accommodation includes one or more of the following roof types with a pitch of 20 degrees or greater: (a) skillion; (b) gable; (c) hipped; (d) pitched. AO22.2 The non-resident workforce accommodation includes eaves with a minimum width of 600mm. -- 57 of 78 -- 58 [175] Council did not allege conflict with this code but Grow Chinchilla alleges that a decision to approve the proposed development would conflict with the purpose of the code, overall outcomes (2)(a) and (e) and performance outcomes PO14 and PO22.187 [176] In broad terms, the conflicts are alleged to arise as a consequence of: (a) amenity impacts, including unacceptable visual amenity impacts occasioned by the large car parking and service areas; and (b) the built form of the proposed development. [177] The issue of amenity impacts has been addressed in paragraphs [85] to [118] above. The parties no longer contend that visual amenity is a ground that warrants refusal. [178] In terms of the built form of the proposed development, it is not oriented to the street, nor is the roof form consistent with the predominant character of roof forms exhibited in the locality. [179] Although non-resident workers accommodation can take a different built form than “dongas”,188 I do not regard the consequence conflicts with PO13 and PO22 of the Accommodation activities code as matters that warrant refusal of the proposed development. I do not regard it as appropriate to give the provisions any material weight given: (a) the built form of the proposed development already exists as part of an existing lawful use; and (b) neither Council nor Grow Chinchilla contend that visual amenity impacts are such as to warrant refusal of the proposed development. Social issues [180] In its Statement of Position, Grow Chinchilla alleged that the proposed development would result in unacceptable social and economic impacts.189 [181] Ausco and Grow Chinchilla each retained a social planner to give evidence with respect to that issue, namely Mr Powell and Ms Johnson respectively. 187 Issues – Exhibit 2 p 11. 188 T4-10/L31 – T4-11/L12 (Duane). 189 Issues – Exhibit 2 p 7 [18(c)]. -- 58 of 78 -- 59 [182] Despite having raised the issue, Grow Chinchilla’s submissions did not specifically address the issue. [183] Numerous points of agreement between the social planning experts indicate that the proposed development is a sensible ongoing facility to address the otherwise unacceptable social and economic impacts that might arise as a consequence of resource sector influences in a region that the Western Downs Planning Scheme describes as “the energy capital of Queensland”.190 Relevant points of agreement include: (a) in recent times coal mining and gas exploration have emerged as significant employing industries;191 (b) the proposed development is an existing operation that has existed in its current location for quite a number of years;192 (c) the source of data about community expectations includes strategic frameworks for land use planning;193 (d) of the 684 properly made submissions, the vast majority were via an automated online submission platform established by Grow Chinchilla, an organisation formed to give voice to, amongst others, the interests of short term accommodation providers;194 (e) “[s]uitable accommodation is required for the specialised workforce, which serves the mining and gas industries. The provision of workforce accommodation facilities mitigates demands on short-term accommodation and housing stock in towns and reduces the social impacts of housing non- resident workers in residential dwellings in town”.195 Ms Johnson noted that in the lead up to the peak of the boom in 2014, there was a tightening up of accommodation in Chinchilla, resulting in the displacement of ordinary renters;196 190 Western Downs Planning Scheme Extracts – Exhibit 6 p 14 s 3.2.1(10). 191 Joint Expert Report on Social Planning – Exhibit 9 p 3 [4]. 192 Joint Expert Report on Social Planning – Exhibit 9 p 4 [9(a)]. 193 Exhibit 9, Social Planning JER, p.7, para 12. 194 Exhibit 9, Social Planning JER, p.7, para 13. 195 Joint Expert Report on Social Planning – Exhibit 9 p 12 [34]. 196 Joint Expert Report on Social Planning – Exhibit 9 p 16 [48]. -- 59 of 78 -- 60 (f) workers living in accommodation facilities may go into town for alternative recreation, particularly on rest days. As such, some demand on local infrastructure, such as sporting fields and hotels, is likely to exist;197 (g) the proposed development is unlikely to adversely affect the amenity of other residents of Chinchilla in terms of the key considerations of air quality impacts and noise impacts. There are sufficient buffers to mitigate potential impacts (if any) associated with a concentration of activities and, should there be amenity issues, they are likely to be addressed effectively through management intervention. Visual amenity is likely to be something that could be addressed effectively through planting;198 (h) some workers living independently or in share accommodation would not be able to cope well enough with maintaining appropriate levels of nutrition.199 There is an understanding of this risk, and concern from employers that they are not adequately discharging their duty of care for the overall wellbeing of their employees. The benefit of non-resident workers accommodation villages is that rounded meals are provided and cleanliness of quarters is maintained, reducing the risk of adverse health outcomes from living away from home;200 (i) fly-in / fly-out and drive-in / drive-out practices and the need for workforce mobility has led to the need for accommodation which can serve peak workforce housing demands relating to natural resource sector cycles;201 and (j) accommodation villages are one of the options required to prevent negative impacts on local housing suppliers.202 [184] Despite agreeing to these matters, Ms Johnson was not supportive of the proposed development. However, I find her evidence with respect to the unacceptable impacts of the proposed development to be unpersuasive for a number of reasons. 197 Joint Expert Report on Social Planning – Exhibit 9 p 16 [49]. 198 Joint Expert Report on Social Planning – Exhibit 9 p 17 [53]. 199 Joint Expert Report on Social Planning – Exhibit 9 p 18 [57]. 200 Joint Expert Report on Social Planning – Exhibit 9 p 18 [58]. 201 Joint Expert Report on Social Planning – Exhibit 9 p 23 [85]. 202 Joint Expert Report on Social Planning – Exhibit 9 p 23 [87]. -- 60 of 78 -- 61 [185] First, Ms Johnson had not inspected the subject development. Her observations of the proposed development were limited to “a drive by”.203 [186] Given the important qualitative features of the proposed development, such as its well-appointed rooms, its high standard of dining facilities, large number and significant quality of recreational facilities and excellent landscaping, this was surprising. Those qualitative factors are important in evaluating the social planning impacts of the proposed development.204 In circumstances where Ms Johnson did not inspect the facility, the views she expressed with respect to the comparability of the proposal and the ability of the hotel/motel facilities to compete or address the need for workers’ accommodation205 are of no assistance. [187] Second, the evidence of Ms Johnson lacked rigour. Exhibit 27 is a copy of her “rough notes” from interviews with Chinchilla residents consisting of a panel of motel/hotel providers and real estate agents. The panel was provided to her – she did not select the people to be interviewed.206 As was demonstrated in cross-examination, the interviews undertaken and the record of those interviews was seriously lacking. Ms Johnson accepted the truth of what a number of interviewees had told her and acted on that basis to express her views. However, as the cross examination of Ms Johnson revealed, in a number of instances the concerns expressed by the competing accommodation providers who she interviewed were either wholly misplaced or simply wrong.207 [188] Third, in both the joint report208 and in her oral evidence, Ms Johnson appeared to have relied on the number of submissions made opposing the proposed development during the public notification stage of the IDAS process. As was pointed out by Mr Powell,209 of the submissions made, only 35.2 per cent were from persons identifying their address as being within Chinchilla, Dalby or Brigalow. Over half (64.8 per cent) of the submissions were made from persons who recorded a postal address as being outside of the local area, including a number of overseas submissions. 203 T3-34/L26-29 (Johnson). 204 T3-34/L37-41 (Johnson). 205 For example,. Joint Expert Report on Social Planning – Exhibit 9 p 15 [46]. 206 T3-48/L12-19 (Johnson). 207 T3-3-47/L18 – T3-53/L39 (Johnson). 208 Joint Expert Report on Social Planning – Exhibit 9 p 9 [21]. 209 Report of Mr Powell - Exhibit 15 p 13 [25]. -- 61 of 78 -- 62 [189] Despite this, Ms Johnson afforded all of these submissions, including those made on a pro forma basis, significant weight in her assessment. She did so on the premise that it was not the substance of the submission, but rather the number of them.210 Indeed, Ms Johnson did not even read the submissions.211 I do not regard such an approach as helpful. [190] Finally, Ms Johnson’s assessment failed to adequately recognise the important economic benefits that both the facility itself and the residents of the development provide to the Chinchilla economy – as she conceded, the economic contribution is a social benefit.212 In this respect, the uncontroverted evidence was that: (a) in 2014, some $5.86 million was spent directly in the Western Downs local government area by the operation of the village;213 (b) the dollar spend by Ausco comprised a range of industries including pest control, Australia Post, landscape supplies, concreting, stationary, electrical repairs, waste removal, hard ware supplies, air conditioning services and the like;214 (c) the $5.86 million in direct spending would have a multiplier effect in the wider economy, usually resulting in at least a further doubling in spending;215 and (d) in addition to the $5.86 million spent by Ausco, the workers in the village would also spend in town, by virtue of them staying in town rather than out on mining tenements.216 In this respect, spending would be particularly directed towards service stations, food and catering stores, local RSL and hotels, liquor outlets, taxi services, and local convenience facilities. [191] The need experts agreed that, while it was difficult to be precise about how much money is spent by non-resident workers staying at the proposed development, on average, individuals in Queensland spend around $13 500 each year on retail items. 210 T3-37/L37 – T3-38/L15 (Johnson). 211 T3-38/L10-15 (Johnson). 212 T3-41 - T3-42 (Johnson). 213 Joint Economic Need Report - Exhibit 11 p 54 [138]. 214 Joint Economic Need Report - Exhibit 11 p 54 [138]. 215 Joint Economic Need Report - Exhibit 11 p 54 [139]. 216 Joint Economic Need Report - Exhibit 11 p 54 [140]. -- 62 of 78 -- 63 Allowing for most food/meals to be catered for at the proposed development, this figure would be reduced to around $10 000 a year for non-resident workers.217 [192] Even at only 50 per cent occupation, the need experts agreed that the total spend on retail items by non-resident workers would be the equivalent of $5 million per year.218 [193] The need experts agreed that the amount of money spent annually within the town is significant, with a wide range of businesses benefitting directly from the proposed development and also indirectly in terms of workers spending on local facilities.219 Most of this spending would be lost from the local economy if Stayover Chinchilla was closed and the workers were redirected to camps providing accommodation on mining lease sites.220 [194] Despite this evidence, Ms Johnson expressed only general views about the limited economic benefit of developments such as the proposal. That general expression of opinion does not apply to the specific circumstances of this case. [195] The evidence of Ms Johnson is not sufficient to warrant refusal of the proposed development. [196] I am satisfied that the social impacts of the proposed development do not give rise to conflict with the Chinchilla Shire Planning Scheme or otherwise warrant refusal of the application. Grow Chinchilla’s submissions [197] Aside from the issues referred to above, many pages of the submissions on behalf of Grow Chinchilla were dedicated to “the boom and the bust” experienced in Chinchilla as a consequence of the exploration and development of coal seam gas and liquid natural gas reserves and coal reserves.221 [198] The submissions provide no explanation as to how the evidence about such matters are relevant to an assessment of the proposed development. I do not consider that the issues raised warrant refusal of the proposed development. 217 Joint Economic Need Report - Exhibit 11 p 54 [141]. 218 Joint Economic Need Report - Exhibit 11 p 54 [142]. 219 Joint Economic Need Report - Exhibit 11 p 54 [143]. 220 Joint Economic Need Report - Exhibit 11 p 54 [144]. 221 Submissions on behalf of the Co-respondent – Court Doc 36 pp 9–15 [58]-[75]; pp 22-23 [119]- [122] and p 43 [222]-[224]. -- 63 of 78 -- 64 Nature and extent of conflict [199] As was identified in paragraphs [74] and [75] above, the development will have a completely different built form and character to what one would normally expect in a rural residential area. [200] Consequently, a decision to approve the proposed development would result in clear conflict with the Chinchilla Shire Planning Scheme as the proposed development is not a detached house in form or limited in density to a single dwelling on a large lot. [201] Ausco submits that the conflict would not prevail in this case because: (a) the Chinchilla Shire Planning Scheme makes no provision for workers’ accommodation villages of the kind proposed;222 (b) the conflict is not attended by any unacceptable off-site amenity impacts;223 (c) the proposed development does not, and would not, unacceptably diminish the amenity currently enjoyed by residents in the locality;224 and (d) the planning for the area has changed and the most recent statement of planning intent is contained in the Western Downs Planning Scheme, which contains a number of provisions encouraging the type of development proposed by Ausco in Chinchilla.225 [202] Council submits that the conflict is not alleviated by the fact that the Chinchilla Shire Planning Scheme does not expressly recognise the concept of non-resident workers accommodation. It submits that, however the use is defined, its character, scale and function is able to be readily discerned.226 In relation to the effect of the change to the planning scheme, Council submits that as a matter of general principle, when a new planning scheme commences, if it is different to the document it supersedes, it might be said to be a case of the superseded scheme having being overtaken by events. However, it submits that the argument loses its force when (as here) a development proposal is also in conflict with the new scheme.227 222 Written Submissions on behalf of the Appellant – Court Doc 37 p 51 [181]. 223 Written Submissions on behalf of the Appellant – Court Doc 37 p 51 [183]. 224 Written Submissions on behalf of the Appellant – Court Doc 37 p 51 [184]. 225 Written Submissions on behalf of the Appellant – Court Doc 37 pp 51-2 [185]-[186]. 226 Respondent’s Submissions – Court Doc 35 p 13 [42]. 227 Respondent’s Submissions – Court Doc 35 p 13 [43]. -- 64 of 78 -- 65 [203] As was explained by Wilson SC DCJ in Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPEC 3; [2005] QPELR 466 at 473 [31], ascertaining the seriousness of the conflict involves: “discerning, from the verbiage of the Scheme, the degree of importance it attaches to compliance with particular principles, requirements or Codes and, then, analysis of the particular proposal within that regime.” [204] Although the proposed development is clearly at odds with the intended character of the zone, in terms of the verbiage of the Chinchilla Shire Planning Scheme, I consider it to be material that: (a) the Chinchilla Shire Planning Scheme makes no specific provision for workers’ accommodation villages of the kind proposed; (b) at its highest, section 3.3 of the Chinchilla Shire Planning Scheme envisages that development is to reflect community expectations and needs, and there is no conflict with that provision; (c) the Chinchilla Shire Planning Scheme makes provision for location of non- residential activities in the Rural Residential Zone in circumstances outlined in performance criterion PC1 of the Rural Residential Zone Code, which states: “PC1 Non-“Residential activities” – Locational Criteria Non-“Residential activities” are located in the Rural Residential “Zone” only where those activities: (a) are necessarily associated with “residential activities”; (b) do not impact adversely on the residential amenity of the Rural Residential “Zone”; (c) do not prejudice the consolidation of like non- “Residential activities” in other more appropriate “Zones”; (d) do not prejudice the productive capacity of surrounding rural land; and (e) protect the landscape values and scenic qualities of the Rural Residential “Zone”.” Neither Council nor Grow Chinchilla alleges conflict with this provision; and (d) there is also no allegation that the proposed development would conflict with overall outcomes (1) and (3) and performance criteria PC6, PC7, PC11, PC12, PC13 and PC27 of the Rural Residential Zone Code. Those provisions are -- 65 of 78 -- 66 directed at managing the separation of incompatible uses, avoiding prejudice to rural residential activities and managing impacts to acceptable levels. [205] It is also relevant to consider the particular circumstances of the proposed development within the regime outlined above to gain a true appreciation of the significance of the conflict. [206] The proposed development is of a high standard. Mr Ovenden described it as “well appointed and well maintained”228 and of a “high quality”229. As is noted in paragraph [33] above, Council and Grow Chinchilla abandoned the allegation that the proposed development ought be refused on grounds relating to visual amenity. [207] In terms of the significance of the conflict occasioned by the built form and character impacts, I consider it relevant that the current character of the locality is not a homogenous, single-detached housing area with houses on large lots. [208] Mr Ovenden acknowledged that it would not be accurate to describe Zeller Street as having a rural residential character.230 He also conceded that the proposed development does not prejudice existing rural residential activities in the area.231 [209] As was conceded by Mr Ovenden,232 Zeller Street has a mixed character that includes:233 (a) a TAFE college; (b) a school; (c) an aged care facility; (d) low density residential; (e) industrial uses; (f) rural residential; (g) showgrounds; and 228 T2-38/L42-44 (Ovenden). 229 T2-39/L3 (Ovenden). 230 T2-44/L25-31 (Ovenden). 231 T2-47/L40-41 (Ovenden). 232 T2-44/L1 (Ovenden). 233 T2-44/L1-25 (Ovenden). -- 66 of 78 -- 67 (h) Chinchilla Tourist Park. [210] Mr Ovenden accepted that Zeller Street is described in a character sense as a “mixed bag”.234 [211] Council invited the court to examine the aerial photograph of the whole of Zeller Street that appears in the Visual Amenity Joint Expert Report.235 It submits that the “mix” of uses are overwhelmingly low impact uses that the community would expect in a rural residential area. It also submits that the proportion of industrial land at the eastern end of Zeller Street is modest, and that it does not overwhelm the street or set the character and amenity expectations for the whole of the street. [212] There was no evidence of the impact of uses such as the showground or aged care facility. As for the industrial development, I accept that it does not overwhelm the street. However, I consider it fair to describe the character of the street as mixed. [213] The “mixed character” is reinforced by the form and function of Zeller Street. Mr Trevilyan, the only traffic expert to give evidence in the appeal, was of the opinion that Zeller Street: (a) carries a mixture of residential, industrial and through traffic;236 (b) forms a convenient link from the Warrego Highway towards Tara and Condamine, for through traffic;237 and (c) serves a major collector road function in the road network.238 [214] Mr Ovenden conceded that: (a) the people who reside on Zeller Street would have an expectation that the traffic on the street includes traffic from industrial development;239 (b) Zeller Street is a relatively busy street;240 and 234 T2-44/L25 (Ovenden). 235 Visual Amenity Joint Expert Report – Exhibit 10 p 27. 236 T3-55/L20-23 (Trevilyan). 237 T3-55/L25-29 (Trevilyan). 238 T3-55/L34-37 (Trevilyan). 239 T2-46/L42 – T2-47/L8 (Ovenden). 240 T2-47/L13-14 (Ovenden). -- 67 of 78 -- 68 (c) to describe Zeller Street as a low density residential street would be misleading.241 [215] Into this less than pristine environment, Ausco proposes a development that is “well appointed and well maintained”,242 and that forms part of the existing mixed character of Zeller Street. [216] Further, as was accepted by Mr Ovenden, the proposed development: (a) is located on a large site;243 (b) has a very generous setback to Zeller Street;244 and (c) is designed in such a way as to respect its neighbours, with catering and service facilities located in the centre of the proposed development.245 Mr Schneider accepted that the limited number of contemporaneous complaints that had been made about the use during its life is objective evidence of the fact that the design respects the neighbours.246 [217] In visual terms, it is not contended the development is unacceptable. As Mr Ovenden agreed, which was confirmed by my site inspection, it is very difficult to get a true appreciation of the scale of the proposed development, in visual terms, from Zeller Street.247 The aerial photograph in the Visual Amenity Joint Expert Report may well demonstrate that, when viewed from the air, the proposed development has a scale that is out of character with the surrounding development; however, it does not represent what is perceptible to the public. [218] The matters referred to in paragraphs [204] to [217] above mitigate the extent of the conflict with the Chinchilla Shire Planning Scheme. As was fairly acknowledged by 241 T2-47/L10-11 (Ovenden). 242 T2-38/L42-44 (Ovenden). 243 T2-44/L46-47 (Ovenden). 244 T2-45/L1-2 (Ovenden). 245 T2-45/L28-31 (Ovenden). 246 T2-83/L5-21 (Schneider). 247 T2-45/L4-6 (Ovenden). -- 68 of 78 -- 69 Mr Ovenden,248 the degree of conflict is tempered, and the outcomes sought by the Chinchilla Shire Planning Scheme are achieved in part, given: (a) the proposed development is at the edge of the Rural Residential Zone, opposite the Urban Zone and the Mixed Use Zone, and on the same street as properties in the industrial zone. The mix of zonings and mix of uses in proximity to the subject site mean the differences in nature, scale, density and character are less pronounced than they might be if the use was embedded within a homogenous area of rural residential allotments; (b) the proposed development (with the proposed enhancement to landscaping) will be reasonably well screened from surrounding properties and roads; (c) the proposed use is residential in nature, so impacts that result from its scale and intensity, being beyond that normally contemplated by a rural residential use, are likely limited to those falling within an amenity categorisation (such as traffic and noise) rather than health (such as emissions and dust); and (d) even though the vehicle movements are greater than a detached house on a rural residential allotment, the subject site has frontage to an appropriate standard of road to cater for the estimated traffic generation and it is connected to the full range of reticulated infrastructure. [219] In relation to the effect of the change to the planning scheme, I accept that the change to a planning scheme does not, of itself, justify approval of a development if the development proposal materially conflicts with the new scheme. However, I am satisfied that: (a) the conflict with the Western Downs Regional Plan is limited to a conflict arising as a consequence of the nature of the use (being an inconsistent use in the Low Density Residential zone) and the density, scale, built form and character impacts of the proposed development; but that (b) the conflict is ameliorated by the absence of unacceptable amenity impacts and the demonstration of an overwhelming community need for the proposed development; and 248 Joint Expert Report – Town Planning – Exhibit 8 p 22 [95]. -- 69 of 78 -- 70 (c) the existence of a latent unsatisfied demand for workers village accommodation is a matter of significance when one has regard to the strategic provisions of the Western Downs Planning Scheme and the Darling Downs Regional Plan. Grounds [220] The grounds relied on by Ausco can be broadly described as need and other matters of merit. Need [221] Many aspects of the evidence in relation to the need for the proposed development have already been dealt with in paragraphs [42] to [48], [55] to [65], [80] to [84], [135], [136] and [138] to [144] above. [222] Council and Grow Chinchilla submit that Ausco has not demonstrated a need for the proposed development. [223] In terms of the available information with respect to past and predicted occupancy rates, Council notes: (a) Chinchilla is presently experiencing a very difficult economic environment. For it, the resources boom peaked in 2013;249 (b) in terms of the non-resident workforce “[t]he non-resident workers on shift in Western Downs LGA in 2016 was only 27% of the level it was in 2014”;250 (c) Queensland Treasury forecasts a further decline of 10 per cent in that non- resident workforce to occur over the coming year;251 (d) there has been a decline in occupancy from the peak period until the current day; (e) there is a very significant number of available accommodation rooms in Chinchilla; 249 Respondent’s Submissions – Court Doc 35 [91]. 250 Respondent’s Submissions – Court Doc 35 [92]. See Joint Economic Need Report – Exhibit 11 p 46 [106]. 251 Respondent’s Submissions – Court Doc 35 [93]. See Joint Economic Need Report – Exhibit 11 p 46 Table 8 and T4-37/L36-38. -- 70 of 78 -- 71 (f) Base Camp has average occupancy of 30 per cent; and (g) the economists agreed that occupancy rates at the Stayover Chinchilla declined significantly after 2014. [224] Council submits that Ausco’s need argument depends in large part on the evidence of Mr Duane that despite current occupation rates for Base Camp and the subject proposal running at occupancy of around 30 per cent, the current demand can be around 400 beds and Base Camp alone cannot accommodate that number.252 [225] Mr Duane’s evidence was that on average the shortfall is “about 100, a bit less”.253 He acknowledged that that number: (a) is most likely to be comprised of a range of groups, rather than one block, of employees;254 (b) those workers are visiting various locations in the region;255 (c) those workers would include a range of contractors;256 (d) those workers may be on short visits;257 and accordingly (e) some of the demand, for stays of only three or four days, could be accommodated at the hotel/motel accommodation.258 [226] Council also referred to Mr Coghlin’s evidence that the inability to accommodate the current demand at Base Camp was not the problem that Mr Duane suggested it to be because:259 (a) the Queensland Treasury forecast of another decline next year in total non- resident workforce demand, in the order of 10 per cent; (b) when one looks at the total amount of accommodation available in Chinchilla, it’s more than enough to meet demand – there are 598 rooms in hotels and 252 Joint Economic Need Report – Exhibit 11 p 51 [124]. 253 T4-22/L40-41 (Duane). 254 T4-22/L43-44 (Duane). 255 T4-22/L46-47 (Duane). 256 T4-23/L1 (Duane). 257 T4-23/L3-4 (Duane). 258 T4-23/L6-8 (Duane). 259 T4-37/L31 – T4-38/L10 (Coghlin). -- 71 of 78 -- 72 motels plus some 318 rooms in Base Camp. There would be well over 300 rooms available at any one time in hotels and motels to meet individual demand; and (c) even if worker accommodation demand reaches 50 per cent above the predicted level, there is still sufficient demand for supply within Chinchilla without the proposed development. [227] Despite this evidence, I am satisfied that there is a need for the proposed development for the reasons already provided and because: (a) the contraction in the Chinchilla economy since the boom period of 2013 does not diminish from the specific need for this proposal, given the difference between the offer and the offer available at the hotels and motels; (b) I do not regard the Queensland Treasury forecasts to be particularly helpful. In the past they failed to predict the boom in Chinchilla, which no doubt contributed to the economic harm now being felt by many of those lay witnesses who gave statements in support of refusal. I also do not have confidence in the forecasts given Mr Bradford’s evidence about the extremely limited nature of the data collected by Queensland Treasury from Ausco each year; (c) as was accepted by Mr Leyshon, not all 598 hotel and motel rooms ought be regarded as capable of meeting individual demand if the proposed development is not approved. The only genuine competitors in this case for the Stayover facility are Base Camp, Chinchilla Tourist Park, Kings Park Accommodation, Bottle Tree Apartments (which is approved but not built), Chinchilla Motor Inn and Cypress Pines Motor Inn.260 This concession dramatically reduced the supply of accommodation available to meet the needs of non-resident workers. Indeed, based on such a concession, the total number of hotel/motel rooms available for non-resident workers accommodation declines from 598 to 275; (d) as the economists agreed, supply in relation to workers accommodation villages should always be in excess of demand such that there is occupancy 260 T4-76/L44 – T4-78/L33 (Leyshon). -- 72 of 78 -- 73 well below 100 per cent to accommodate peaks which could be expected or unexpected and to provide choice of location and operator;261 (e) the peak daily requirement for rooms at Stayover during the month of May 2017 was 424 rooms262 - this peak could not be accommodated by the only other operator in Chinchilla, Base Camp, which has a total 314 beds, of which 30 per cent are already occupied on average. On the basis of an average occupancy of 30 per cent for Base Camp, the peak demand experienced in May 2017 would result in a shortfall of some 233 rooms if this application was refused;263 (f) I am not persuaded that the shortfall of some 233 rooms would be addressed, or met, by existing hotels and motels in Chinchilla given the economists agreed that there is a large difference in the services, nature and pricing of facilities as between hotels/motels on the one hand and non-resident worker accommodation villages on the other hand.264 This is reinforced by Mr Bradford’s evidence,265 which is consistent with the notion that the two types of accommodation are separate styles serving different roles.266 The former’s core market involves tourists and travellers, not the provision of large format workers’ accommodation that competes directly with Stayover; (g) the recognised differences as between hotels/motels and worker accommodation villages have an important purpose – it is uncontroversial that the differences, whilst the product of preferences of the organisations who utilise the facilities, are directed towards managing the wellbeing of non- resident workers in large format villages; (h) as was acknowledged by Mr Leyshon, while there may not be demand for 1 000 beds, given the differences in the offer at a worker’s accommodation 261 Joint Economic Need Report – Exhibit 11 p 46 [107]. See also T4-7/L1-43 (Duane) and T4-74/L46- 47 (Leyshon). 262 Report of Mr Duane – Exhibit 12 p 6 [3.3]. 263 Joint Economic Need Report – Exhibit 11 p 51 [124]. 264 Joint Economic Need Report – Exhibit 11 pp 37-8 [82]. See also Joint Economic Need Report – Exhibit 11 p 58 [149]. 265 Affidavit of Mr Bradford – Exhibit 17 p 8 [65]. 266 Joint Economic Need Report – Exhibit 11 p 38 [84]. -- 73 of 78 -- 74 village as compared to hotels and motels, there is a need for another workers accommodation village;267 (i) the uncertainty about whether identified projects will proceed, and the timing and employment numbers of such projects, does not detract from the need. To the contrary, it reinforces the planning and community need to have an available facility that can cater to that demand in a timely fashion. Given the use is an impact assessable one in every zone, I am not satisfied that it is sufficient to rely on some future development application, particularly given the identified difficulties that can arise in terms of housing, not to mention the safety and welfare of the non-resident employees, if appropriate facilities are not available; and (j) if the application was refused, this would result in a reduction in choice and competition for the market – only one operator would remain in Chinchilla to meet the market’s needs for large non-resident workers’ accommodation, thereby creating an effective monopoly. [228] In addition to these matters, I found the evidence of Mr Bradford to be of interest. As the general manager of Ausco responsible for the operation of the Stayover facility, Mr Bradford has a sound measure of confidence that there is sufficient demand to support a 1000 bed facility in Chinchilla. That confidence was based upon Mr Bradford’s knowledge of the industry (including prospective major projects)268 and a genuine appreciation of the prospect that overlapping project requirements may result in the Stayover facility reaching full occupancy, even in circumstances where a perfect storm in terms of demand does not arise. [229] Mr Bradford’s confidence is, no doubt, informed by a contract with QGC for a guaranteed reservation of a large number of rooms, as well as another contract executed during the course of the hearing. However, I do not place significant weight on those individual contracts. They simply corroborate the expert opinion proffered by Mr Duane about the need for a facility with capacity to cater to companies that 267 T4-82/L3-34 (Leyshon). 268 Affidavit of Mr Bradford – Exhibit 17 [95]. -- 74 of 78 -- 75 seek to accommodate large groups of employees. What, to my mind, is more telling is: (a) the evidence of the peak in May 2017; (b) the fact that, if the development is not approved, there will only be one facility remaining in Chinchilla; (c) Mr Leyshon’s acceptance that there is a need for a second workers accommodation facility; (d) there are a number of projects that could, at short notice, produce significant demand; (e) there are significant consequences for the community if the demand is left unanswered; and (f) the ability to provide a nimble response to demand that arises in a short period is hampered by the fact that non-resident workers accommodation is an inconsistent use in every zone in the Western Downs Planning Scheme. [230] With respect to the issue about whether hotels and motels are an alternative to a non- resident workers camp, Council noted the evidence of the economists that for smaller groups for limited stays, the hotels and motels may be an alternative.269 [231] The relevant need for the proposed development is the need to have available workers village accommodation for the larger non-resident workforces (i.e. the core market of workers village accommodation), as opposed to travellers or small workforces that stay for only a few days (i.e. the core market of hotels and motels). The potential for unacceptable adverse impact on the hotel and motel operators can be addressed by the imposition of a condition.270 269 T4-12/L10 – T4-13/L46 (Duane); T4-44/L36-40 (Coghlin); T4-49/L46 – T4-50/L5 (Coghlin); T4- 76/L44 – T4-78/L45 (Leyshon). 270 T6-58/L30 – T6-59/L9 (Williamson). -- 75 of 78 -- 76 Other grounds [232] Ausco relies on the following additional matters to justify approval of the proposed development:271 (a) the identified need can be met in circumstances where the proposed development: (i) involves the continuation of an existing lawful use for the purposes of s 314(3)(b) of the Sustainable Planning Act 2009; (ii) is well located in the road network to offer accommodation facilities for resource projects in the region; (iii) will deliver social and economic benefits to the community, being matters of the public interest, including: (A) the purchase and consumption of locally made products and services;272 (B) significant employment opportunities for local residents;273 (C) important opportunities for career development for young people in the Western Downs area;274 (D) funding and participation in local community interests;275 (E) significant benefits over and above other accommodation choices in Chinchilla through its facilities, food and services; (iv) will continue to offer choice in competition in terms of workers accommodation; (v) will not have unacceptable impacts on amenity; (vi) will not have unacceptable economic impacts; 271 Written Submissions on behalf of the Appellant – Court Doc 37 pp 52-55 [188]-[194]. 272 See for example, Appellant’s Bundle of Lay Witness Statements - Exhibit 16 Tabs 1, 4, 5, 8, 10 and 11. 273 See for example, Appellant’s Bundle of Lay Witness Statements - Exhibit 16 Tabs 2, 7 and 9. 274 See for example, Appellant’s Bundle of Lay Witness Statements - Exhibit 16 Tab 9. 275 See for example, Appellant’s Bundle of Lay Witness Statements - Exhibit 16 Tab 9 p 6. -- 76 of 78 -- 77 (vii) will facilitate planning outcomes sought by Council’s current planning scheme for the local government area; and (b) the Chinchilla Shire Planning Scheme is overtaken by events and does not adequately provide for the use the subject of the development application. [233] In terms of the existing use of the subject site, this matter has been addressed earlier. I accept, as submitted by Council,276 that: (a) the existing use was authorised as a temporary one; (b) the approval had expired; and (c) the use is continuing only as a result of the exercise of this court’s discretion, and only until the outcome of this appeal is known. [234] I regard the existing use as relevant to a consideration of impacts of the proposed development, but of little relevance as a ground for approval. [235] With respect to the issue of social and economic benefits to the community, I consider it likely that, should the proposed development be refused, at least some of the workers will be accommodated in locations other than Chinchilla. There may still be some incidental spending in Chinchilla by those workers. However, I consider it unlikely that the benefits will be as great as those identified in the lay witness statements tendered by Ausco. As such, I accept that approval of the proposed development will result in social and economic benefits to the community. [236] As noted above, in considering whether there are grounds that would be sufficient to overcome the identified conflict, I regard it as material that there is an absence of unacceptable amenity or economic impacts. In Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, Holmes JA (with whom White JA and Atkinson J agreed) observed at 323-4 [25]: “It may be accepted, as Grosser says and Palyaris implies, the mere absence of adverse effects will not amount to sufficient grounds to outweigh a conflict with the planning scheme; but it does not follow that the absence of a negative impact or detrimental effect is not a relevant consideration. 276 Respondent’s Submissions – Court Doc 35 p 40 [138(a)]. -- 77 of 78 -- 78 In any case, Grosser and Palyaris, it should be remembered, were concerned with different expression, “planning grounds”, and hence a narrower enquiry than that entailed in assessment of the unqualified and broadly defined “grounds” which are now relevant. It must be a matter of public interest, for example, that the project under consideration will not destroy local amenity. The isolation and screening of the project were properly considered as a ground, to be weighed with other grounds in considering their sufficiency.” (emphasis added) [237] In terms of Ausco’s submission that the Chinchilla Shire Planning Scheme has been overtaken by events, I accept that the Chinchilla Shire Planning Scheme does not adequately provide for the use the subject of the development application. However, the land use strategy in the planning scheme, in terms of the intended residential character of the area, has not been overtaken by events. As Mr Schomburgk acknowledged during cross-examination: (a) very little of the zone is anything other than rural residential development;277 and (b) “[t]he objective of the zone is it remains generally intact if you take out the subject site”278 (which, of course, was approved before the Chinchilla Shire Planning Scheme and only on a temporary basis). [238] I otherwise accept the grounds relied on by Ausco and am satisfied that there are sufficient grounds to warrant approval of the development application, despite the identified conflict. Conclusion [239] For the reasons provided above, I am satisfied that Ausco has discharged its onus. The appeal will, in due course, be allowed. I will adjourn the further hearing to allow for the formulation of reasonable and relevant conditions. 277 T2-17/L25 – T2-18/L31 (Schomburgk). 278 T2-18/L33-35 (Schomburgk). -- 78 of 78 --