ALDI Stores (A Limited Partnership) v Redland City Council & Ors [2009] QPEC 27 [2009] QPELR 602

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: ALDI Stores (A Limited Partnership) v Redland City Council & Ors [2009] QPEC 27 PARTIES: ALDI STORES (A LIMITED PARTNERSHIP) Appellant V REDLAND CITY COUNCIL Respondent AND DEBRA NEARY AND NIGEL CUSHING First Co-Respondents AND CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS Second Co-Respondent FILE NO/S: BD 1429 of 2008 DIVISION: Planning and Environment Court PROCEEDING: Appeal DELIVERED ON: 22 April 2009 DELIVERED AT: Brisbane HEARING DATE: Site inspection 16 March 2009; hearing 16, 17, 18, 19 and 20 March 2009 JUDGE: Alan Wilson SC, DCJ ORDER: 1 Appeal allowed 2 Adjourn the matter for further review on 14 May 2009 CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – where appellant proposed a supermarket in an urban residential area – where s 3.5.14(2)(a) of the Integrated Planning Act 1997 (Qld) interpreted – where desired environmental outcomes not compromised – where proposal in -- 1 of 13 -- 2 conflict with planning scheme provisions – whether sufficient grounds to justify approval despite conflict with planning scheme – whether need for alternative supermarket – where minor traffic issues along a major arterial road – whether amenity affected by proposed development Integrated Planning Act 1997 (Qld) s 2.1.23, s 3.5.5, s 3.5.14(1) and (2) and s 4.1.50 Cases considered: Brazier v Brisbane City Council (1972) 26 LGRA 322 Brown v Brisbane City Council [2005] QPELR 629; [2005] QPEC 26 Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 Coolum Properties Pty Ltd v Maroochy Shire Council [2008] QPELR 145; [2007] QCA 351 Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 Grosser v Council of Gold Coast (2001) 117 LGERA 153; [2002] QPELR 207; [2001] QCA 423; Handley v Brisbane City Council & Pike Mirls McNoulty Pty Ltd [2005] QPELR 80; [2004] QPEC 39 Intrafield Pty Ltd v Redland Shire Council (2001)116 LGERA 350; [2001] QPELR 413; [2001] QCA 116 Isgro v Gold Coast City Council [2003] QPELR 414; [2003] QPEC 2 Koerner v Maroochy Shire Council [2004] QPELR 211 Kotku Education and Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267; [2004] QPEC 68 Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266; (1994) 86 LGERA 224; [1994] QPLR 318; Luke v Maroochy Shire Council [2003] QPELR 447; [2003] QPEC 5 Parcel One Pty Ltd v Ipswich City Council [2007] QPELR 474; [2007] QPEC 103 Parmac Investments Pty Ltd v Brisbane City Council (2008) 160 LGERA 356; [2008] QPEC 7 SEQ Bond Stores v Gold Coast City Council [2006] QPELR 747; [2006] QPEC 66 Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85; [2005] QPEC 70 Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPELR 466; [2005] QPEC 3 The JAG Superannuation Fund v Brisbane City Council [2008] QPELR 659; [2008] QPEC 30 Webster v Caboolture Shire Council [2008] QPEC 82 Westfield Management Limited v Pine Rivers Shire Council & Anor [2004] QPELR 337 -- 2 of 13 -- 3 Woolworths Ltd v Maryborough City Council [2006] 1 Qd R 273; [2006] QPELR 63; [2005] QCA 262 COUNSEL: D R Gore QC and B Job for the appellant S N Ure for the respondent SOLICITORS: Hopgood Ganim for the appellant DLA Phillips Fox for the respondent [1] ALDI applied to the Redland City Council for planning permission to build one of its supermarkets on land at Alexandra Hills. Council refused the application on the basis the development and its potential impacts were inconsistent with planning intentions for the site, and the surrounding area. [2] The first co-respondents, who reside to the south of the site across Keith Surridge Park, were concerned the store would have a negative impact on their enjoyment of their land and supported Council’s decision to refuse the development. Ultimately, however, they took no part in the appeal following a pre-hearing agreement that if ALDI’s appeal succeeded it would undertake various improvements by way of lighting, and security cameras, in the area; limit trading hours; and, advance a particular landscaping scheme. To my observation, ALDI conducted its appeal in accordance with the terms of that agreement. The other remaining co-respondent1 , the Department of Main Roads, was excused from further participation in the appeal by an earlier Order. [3] The site of the proposed supermarket presently consists of seven residential allotments with a total area of 5,724m2 on the southern side of Finucane Road, Alexandra Hills. There are unoccupied dwelling houses on six of the lots, and one is vacant. All seven lots are, under the current Redlands Planning Scheme (RPS), categorised as being within the Urban Residential zone, but are also within the deeper reaches of the RPS Road and Rail Noise Impact Overlay, which addresses areas affected by busy transport corridors. [4] As inspection of the site and the surrounding area readily illustrated, the amenity of the parcel (for residential purposes) is poor. It is an outpost of residential zoning in an area otherwise given over to retail, transport and community facilities. Finucane Road is a major State-controlled, busy four lane thoroughfare. To the immediate east of the site is a 24-hour Caltex Service Station, on land which is also zoned Urban Residential. The Keith Surridge Park abuts the land to the south and west, and is zoned Open Space. South of the park is a small pocket of detached houses lying, however, in an area categorised in the RPS as Medium Density Residential. On the northern side of Finucane Road is residential development in the form of detached dwellings also lying, however, in the Medium Density Residential zone and adjoined, slightly further to the north, by two schools and a community hall. [5] Also close by is the Alexandra Hills Shopping Centre, located 250m to the east of the site and categorised in the RPS as lying within a District Centre zone. 1 Mirvac was originally another submitter but later withdrew its opposition and, indeed, supported ALDI’s appeal. -- 3 of 13 -- 4 The centre contains about 10,718m2 of retail floor space. Its primary tenants, a Woolworths Supermarket and a Trade Secret outlet, occupy 3,700m2 and 2,156 m2 respectively. It also has more than 40 specialty shops, restaurants and fast food outlets and a Woolworths service station. Mirvac owned the centre until recently and, during 2007, sought to find space for ALDI within it but was unable to do so. [6] Within close proximity to this isolated residential pocket on a busy road are, then, a large shopping centre, a service station, a retirement village, child care centres, sporting clubs, a community hall, a health centre, several schools, a TAFE campus, and pockets of residential land zoned for medium density uses. [7] ALDI stores, it is worth observing early, are not full-line supermarkets. They typically only carry approximately 700-900 ‘line’ items, compared to more than 20,000 items available in full-line supermarkets. These items are, as inspection again confirmed, low priced. The expert retail analysts agreed that ALDI stores do not directly compete with the major chain supermarkets but, with their limited range, different products and low prices, act in a complementary fashion such that shoppers will often, in fact, visit both. [8] ALDI’s proposal here involves a store with a gross floor area of 1,414m2 and includes 72 car parking spaces a service delivery area, loading bay and vehicular manoeuvring area between the supermarket itself and the site’s eastern boundary; vehicular access for customers from Finucane Road at the far western end of the site; and pedestrian access from Finucane Road and via stairs to Keith Surridge Park, both towards the centre of the site. [9] It is of historical relevance that, in April 2001, Council granted preliminary approval under its previous planning scheme for a Material Change of Use to construct, on the land now comprising the ALDI site, a mixed commercial development likely to include a health care institution, commercial premises and a refreshment establishment. It is also equally important to note, however, that the current RPS (promulgated under the Integrated Planning Act 1997 (Qld) (IPA)) has deliberately zoned the site Urban Residential. [10] In accordance with the Court’s usual practice the expert witnesses were required to meet and produce joint reports in advance of preparing individual appeal reports, or giving evidence. The case also went to mediation under the aegis of the Registrar, and the particular concerns of the first co-respondents were addressed to the point, at least, that they left the contest of the appeal to Council. The outstanding issues are alleged conflict with the RPS, and compromise of its Desired Environmental Outcomes (DEOs); need; traffic; and, amenity. Legislative context [11] Under the RPS the development application is impact assessable and must, therefore, have been assessed by the Council (and, now, the Court) under s 3.5.5 of IPA, and decided under s 3.5.14. ALDI carries the burden of -- 4 of 13 -- 5 establishing that Council’s decision was wrong, and its appeal should be allowed2 . [12] Pursuant to s 3.5.14(2) of IPA the assessment manager’s decision must not compromise the achievement of the DEOs for the planning scheme area, nor be in conflict with the Scheme, unless there are sufficient grounds to justify an approval, despite the conflict. [13] The distinction between the compromise of DEOs and conflicts with the planning scheme, and the process of addressing conflict, were considered in the Court of Appeal by Fryberg J in Woolworths Ltd v Maryborough City Council (No 2) (2006) 1 Qd R 273. As his Honour said at page 296, the exercise of assessment is not one which should be undertaken in an unnecessarily formal or mechanical way, and any conflict must be capable of being plainly identified. [14] For reasons which follow I am satisfied that, here, the DEOs have not been compromised; and that, although the proposal is in apparent conflict with certain planning scheme provisions, the conflict is of a minor or low-level kind and there were always sufficient planning grounds to justify approval of the application, and the appeal should be allowed. Desired Environmental Outcomes [15] In a number of decisions this court has held that, for individual development proposals, compromise might not readily be found in the face of DEOs which operate on a shire-wide, or city-wide, basis3. The very general wording of these DEOs means the statements of principle they contain may, sometimes quite easily, be trawled for words supportive of differing conclusions4. Other decisions acknowledge, however, that compromise may more easily be identified in the face of DEOs which operate for more specific purposes, or relate to smaller areas5 . [16] Here, the broad-scale nature of the DEOs logically attracts an approach of the kind suggested by Skoien SJDC in Brown v Brisbane City Council [2005] QPELR 629 in which his Honour said, at [9]: ‘ … So for a development proposal to compromise the achievement of a DEO, it must be of such a nature that it will clearly threaten, imperil or endanger the planning outcome that is expressed… to be one for the ‘planning scheme area’ rather than for a specific site or locality… or, the planning scheme generally. Further, as a consideration of the existence of sufficient planning grounds is not afforded … , it is obvious the provision 2 Integrated Planning Act 1997 (Qld) s 4.1.50(1). 3 Handley v Brisbane City Council & Pike Mirls McNoulty Pty Ltd [2005] QPELR 80 at [19]; but, see the contrary view expressed in Webster v Caboolture Shire Council [2008] QPEC 82 at [102]-[107]. 4 Kotku Education and Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267 at [25]; The JAG Superannuation Fund v Brisbane City Council [2005] QPELR 466 at [18]. 5 See, eg, Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPELR 466; [2005] QPEC 3; The JAG Superannuation Fund v Brisbane City Council (2008) QPELR 659; [2008] QPEC 30. -- 5 of 13 -- 6 contemplates a threat to the DEO which is so serious that no regard to ameliorating planning grounds can be had.’ (emphasis added) [17] The DEOs that Council asserted would be compromised by the proposal concerned the location of shopping facilities, traffic issues, and economic development 6. [18] The first is DEO 3 – Community Health and Wellbeing, in which s 3.1.4(1)(f) provides: ‘(1) As a vibrant and attractive place to live, Redland Shire offers its community a high level of amenity, social cohesion and diversity and a range of facilities and activities through – … (f) focusing retail, commercial and community facilities at centres which maximise their accessibility to the Shire’s population.’ [19] While there was some difference between the economists/retail experts (Mr Leyshon and Mr Norling) about the way shoppers would use the ALDI store and the nearby shopping centre, the major question is whether the proposed supermarket is outside a ‘centre’ and, therefore, in conflict with the planning scheme. For reasons which follow and address the ‘centres’ strategy and provisions in the RPS, I am not persuaded to that view. Once it is appreciated that the proposal is not in conflict with the RPS, no compromise of this DEO arises. [20] The second point of alleged compromise concerns DEO 4 – Access and Mobility found in s 3.1.5(1) of the Scheme, which provides: ‘(1) Redland Shire is served by an effective, safe, equitable and convenient movement system through – … (h) protecting and maintaining the efficiency and effectiveness of existing and future transport corridors and existing and future line haul public transport corridors.’ [21] Council claimed to find compromise touching the achievement of this DEO in that service vehicles manoeuvring onto and from the site would interrupt the traffic flow on Finucane Road, and significantly increase hazards at the two nearby signalised intersections; and, have the undesirable characteristics of ‘ribbon’ development. [22] As the discussion of traffic issues appearing later shows, however, Council’s concerns are not made out or, at the highest, are quite minor and do not present any threat of discernible ‘compromise’ of this broad-scale DEO. The categorisation of the proposal as one which encourages undesirable ‘ribbon’ development is also shown to be inappropriate when, for reasons again explored later, the site is actually within what a fair reading of the RPS 6 See Redlands Planning Scheme Division 1 of Part 2. -- 6 of 13 -- 7 categorises as a ‘centre’, where a variety of retail and community facilities are contemplated. [23] DEO 6 – Economic Development appears in s 3.1.7(1), and relevantly reads: ‘(1) Redland Shire has a diverse, dynamic and sustainable economy with increasing levels of employment opportunity through – (a) a network of multi-purpose centres where - (i) development occurs in accordance with Redland Shire’s network, where, … b. Birkdale and Alexandra Hills are district centres.’ [24] For reasons which, again, focus upon the more specific provisions of the RPS I am not persuaded this DEO is compromised or cut across by this proposal. As analysis of the RPS reveals, the ‘centres’ strategy, properly understood, embraces rather than repels the proposal here. Planning Scheme Provisions Strategic Framework [25] The Strategic Framework in Division 2 of Part 3 of the RPS reflects the DEOs and summarises the approach taken by the RPS to achieve them7. Specifically, s 3.2.3(3)(k) states: ‘The Redlands Planning Scheme actively protects the primacy of the City’s centres by discouraging out-of centre development and ensuring no existing centre expands to the next level in the centre’s matrix by virtue of size or function.’ [26] The term ‘out-of-centre’, according to the definition section of the RPS, means ‘a location that is clearly separate from a centre but within the defined urban area in the planning scheme’. Whether the proposal constitutes ‘out-of-centre’ development hinges on the question whether the site is within, or outside, what the RPS shows as the ‘Alexandra Hills District Centre’. [27] ALDI contends that the District Centre includes a wide range of non-residential uses including the Alexandra Hills Shopping Centre, the free-standing 24-hour service stations (adjoining the land to the east), and a nearby retirement village, child care centres, a community hall, a sporting club, a health centre, Keith Surridge Park and its playing fields, and the TAFE campus. The assertion is based in part upon a diagram in the RPS 8 which shows the District Centre extending beyond Finucane Road to the north and Cambridge Drive to the west so as to include these facilities and, of course, the ALDI site. 7 Redlands Planning Scheme s 3.2.1(1). 8 Redlands Planning Scheme Part 3, Division 2, Diagram 2. -- 7 of 13 -- 8 [28] Council argues that the District Centre consists entirely of, and is strictly limited to, the land occupied by the Alexandra Hills Shopping Centre, and does not extend to the ALDI site. This interpretation is, in part, reliant on the fact the Shopping Centre is shown to be within the District Centre zone in some scheme maps. [29] In the absence of a definition of ‘centre’ in the RPS, ALDI has sought its meaning from the context of the Strategic Framework. In doing so, it contends that the section immediately preceding s 3.2.3(3)(k) of the RPS, s 3.2.3(3)(j) supports its preferred construction. The section says: ‘All remaining centres in the Shire are local centres. Local centres are generally encouraged to develop in locations zoned for such purposes.’ This language is contrasted with that in s 3.2.3(3)(k), the provision Council asserts is not in accordance with the proposal – ‘The (RPS) actively protects the primacy of the Shire’s centres by discouraging out of centre development.’ [30] There are a number of reasons for concluding that the construction advanced for ALDI is to be preferred, as better reflecting the apparent meaning and intent of the RPS. First, common to both provisions is an absence of any express restriction on the development of retail uses on land not currently zoned specifically for that purpose9 . [31] Second, the overall outcomes sought in the RPS specifically contemplate ‘a range of uses’ that is not confined to retail use, nor limited to one supermarket10 . Indeed, the Table of Assessment contemplates at least 8 uses which are relevant to Alexandra Hills in the sense that they have not been established within the strict confines of the existing shopping centre, but have been established within the broader ‘node’ identified by ALDI, namely – • aged persons housing • apartment building • childcare centre • community facility • education facility • health care centre • indoor recreation facility • park. [32] Third, the RPS contains a number of provisions emphasising that centres are to be ‘highly accessible’: ss 3.1.4(1)(f) and 3.1.5(1)(e); and, in particular, s 3.2.3(10)(a) which says the RPS ‘… implements residential development 9 This is consistent with the requirement of s 2.1.23(2) of the Integrated Planning Act 1997 (Qld). 10 Redlands Planning Scheme s 4.4.7: Overall Outcomes for the District Centre Zone Code; and, also, see Specific Outcome S1.2 -- 8 of 13 -- 9 strategies that … promote a high level of access to centres and community facilities’. [33] Fourth, the ALDI site is in close proximity to Keith Surridge Park, a Caltex Service Station, a retirement village, childcare centre, and St Anthony’s Parish School and the Community Hall, which then adjoins the Alexandra Hills State Primary School. It is plain, I think, that this is the locale incorporated in the RPS in Diagram 2 of Division 2 of Part 3. [34] Council’s attempt to confine the District Centre to the existing shopping precinct is also weakened by the fact that the only use, other than a retail use, within the much more constrained boundaries it propounds is Australia Post. This does not seem to be consistent with the District Centre concept, as envisaged by the RPS code. [35] I am satisfied that, properly construed, the ‘Alexandra Hills District Centre’ contemplated by the RPS is larger than the District Centre zone and the Alexandra Hills Shopping Centre which lies within it. It is unnecessary to define its exact boundaries, or to do more than observe that on this construction the subject site falls within what the planner called by ALDI referred to as the District Centre ‘node’. Urban Residential Zone Code [36] Under s 4.24.2 of the RPS ALDI’s application for a material change of use is impact assessable. Pursuant to Table 1 of the Urban Residential Zone of the RPS, the proposed development is also an ‘inconsistent use’ given that it its proposed gross floor area exceeds 400m2 . [37] ALDI contends that these provisions do not, however, amount to a prohibition; and, that the proper approach to them was correctly summarised by Rackemann DCJ in SEQ Bond Stores v Gold Coast City Council [2006] QPELR 747, in which his Honour said: ‘Clause 7.6.1 provides that any use not listed in section A of the Table of Development ‘should be considered undesirable or inappropriate in the LAP precinct to which the Table of Development applies’. Clause 7.6.1 also provides that any use which is not individually listed in the Table of Development will (subject to Schedule 8 of IPA) be treated as an impact assessable development. … While clause 7.6.1 of chapter 2 of division 1 of Part 6 speaks of such uses being considered as ‘undesirable or inappropriate’, the provision is not a prohibition on such uses or their approval. The clause could not properly be construed or applied as a prohibition, given s 2.1.23(2) of the IPA.’ [38] Council also submits that s 4.24.7(a)(ii)(a) of the RPS is compromised by the proposal. The section provides, relevantly: ‘(a) Uses and Other Development; … provide for a limited range of non-residential uses that; -- 9 of 13 -- 10 fulfil a local community need and provide opportunities for social interaction and activity. … d. do not compromise the role and function of centres; e. do not result in commercial ribbon development.’ [39] It is accepted by both parties that although ALDI stores have a limited range of products, they sell a much larger range of goods than anticipated to meet a local community need. Council also argues that, due to the location of the proposed ALDI store vis a vis the existing Shopping Centre, as well as the positioning of its entry and exit points, social interaction or activity would not be promoted. [40] The fact that paragraph (c) of Specific Outcome S1.3 (1) (‘providing only for the identified convenience needs of the local community’) is not able to be met by this proposal has been properly conceded by Mr Schomburgk, ALDI’s town planning expert. This concession is necessarily qualified by the observation that the Court has been commonly confronted with this type of problem, and accepted that the provision of services to a community wider than the local community is not necessarily a disqualifying factor11 . Conflict with Planning Scheme Provisions [41] There is, then, some conflict with RPS provisions and it is necessary to consider the level of conflict and whether there are sufficient planning grounds to justify the approval of the application pursuant to s 3.5.14(2)(b) of IPA. Schedule 10 defines ‘grounds’ for the purposes of this provision as matters of public interest (but so as to exclude anything concerning the personal circumstances of an applicant, owner, or interested party). [42] Council argues that, in short, there are simply not sufficient planning grounds to permit a commercial development in the Urban Residential zone – a categorisation which, it says, reflects a conscious decision by a responsible local government, consonant with an analysis prepared for the Redland Shire Centre Study in 2002 which lists community facilities, parkland and medium density housing as the appropriate potential uses for the subject site. [43] The earlier analysis of the planning scheme shows that the level of conflict cannot be described as more than relatively minor. The proposal has the potential to cater for and attract custom beyond the convenience needs of the local community, but that occurs in the context of a large, nearby shopping centre which manifests the same potential. Even more importantly, however, on its proper construction the RPS actually creates a ‘district community’ node which is not confined to the District Centre zone and includes a range of community facilities and retail facilities – and, of course, ALDI’s site. [44] As observed earlier, physical inspection of the site and the district vividly illustrated how the subject site is an island of quasi-residential allotments in a sea of non-residential uses or zones. It is relatively small, and has a frontage to 11 Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85 at [10]. -- 10 of 13 -- 11 one of the major traffic routes in the City. It is close to land in the District Centre zone, and surrounded by other non-residential uses in the locality which plainly has the capacity to cater for more than ‘local’ needs. [45] Once these elements are appreciated the level of conflict with the Urban Residential Zone Code and the Strategic Framework is minor. The proposal resolves the planning problems created by the odd, ‘island’ aspect of the site; meets (as shown below) an apparent need; sits comfortably within the ‘node’ envisaged by the RPS; and, complements the nearby District Centre. These are plainly matters fairly capable of being categorised as of ‘public interest’ and, hence, persuasive planning grounds which propel the application across the low level conflict it has with the planning scheme. Need [46] ‘Need’ in planning terms has been widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community. The proper need for competition and choice may be relevant to the question12 . However, this view is required to be balanced with that of the Court of Appeal in Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350 in which Moynihan J (with whom McPherson JA and Wilson J agreed) held that: ‘… need is a relative concept to be given a greater or less weight depending on all of the circumstances which the planning authority was to take into account. The findings of the primary judge amount to no more than that the existing facilities were adequate and the proposal would do no more than give a choice which some consumers might choose to avail themselves of.’ [47] The expert retail analysts were in agreement that: 1. ALDI acts in complementary fashion with major chain supermarkets and at a much lower overall price structure; 2. the proposal would improve the choice of supermarkets available at Alexandra Hills; 3. the proposal would improve the price of groceries at Alexandra Hills; 4. the proposal would improve the competition between supermarkets at Alexandra Hills; 5. the proposal would not give rise to unacceptable impacts at Capalaba, Cleveland or Victoria Point; 6. it was logical to expect that some shoppers may travel from other areas, including Birkdale or Cleveland, to Alexandra Hills, notwithstanding that they have access to major chain supermarkets; 7. there was a need for the proposal (although they diverged in respect of the extent of that need). 12 Isgro v Gold Coast City Council [2007] QPELR 414. -- 11 of 13 -- 12 [48] Indeed, Mr Norling, the respondent’s retail analyst, accepted that he would have no opposition to the development if it were incorporated in the Alexandra Hills Shopping Centre. [49] Mr Leyshon’s theory – that the proposed development will do more than merely give consumers another supermarket option – was persuasive. The unique shopping experience offered by ALDI is not common to the other major chain supermarkets within the primary trade area. The discounted groceries it might provide meet a plain need for lower prices (indeed, the contrary view would be unsustainable) and, also, improve the level of competition in the area. Traffic [50] The issues which remained after the meetings of experts were service vehicle manoeuvring, impact on traffic operations at Finucane Road intersections, and issues associated with commercial ‘ribbon’ development. [51] The issue of trucks manoeuvring onto and leaving the site and possible interruptions to the traffic flow on Finucane Road largely, I thought, evaporated during the evidence of the two very senior and experienced traffic experts. Mr Beard accepted it was not sufficiently problematic to warrant refusal of the application, and Mr Holland’s evidence was persuasive that actual interruption was unlikely or, at worst, minimal. Proposed conditions of development addressing u-turns at nearby, signalised intersections accord with satisfactory practice elsewhere and, I am persuaded, will not exacerbate any problems in the vicinity either on busy Finucane Road, or other nearby roads and streets. [52] In terms of commercial ribbon development it is relevant that: 1. ALDI is unable to be located in existing shopping centre; 2. Council approved commercial development on the land in 2001; 3. the land adjoins the service station site; 4. a deceleration lane is to be provided; 5. DMR has no concerns with the proposal. [53] In summary, the proposal has been suitably conditioned to alleviate any further traffic issues Mr Beard identified; and, in truth, the question of ribbon development is not a matter creating any meaningful concern, or conflict with the RPS. Consequently, the issues relating to traffic do not warrant a refusal of the application. Amenity [54] Council argued that the proposal would have an unacceptable impact on the amenity of adjoining open space because it would remove the casual surveillance currently offered by the previous (but now empty) residential dwellings, would only provide passive surveillance of the park during the store’s operating hours, and will create ‘dead’ areas within the park, near the site’s boundary. Dr Hassal, the landscape architect called by ALDI wholly -- 12 of 13 -- 13 disagreed with these claims and his uncontradicted evidence was persuasive that the proposed design and site layout will not diminish either the sense or perception of safety in park users, or their actual levels of safety – and, indeed, was persuasive those things are, if anything, likely to be enhanced by such features as improved lighting. [55] The evidence given by Mr King about noise, light and the like which, again, was not contested by Council was that plant and equipment noise as well as car parking, service vehicle and loading dock activities will readily achieve relevant compliance noise limits. [56] In short, there are no remaining amenity issues hostile to the proposal. Conclusion [57] The appellant has discharged the onus of proof placed upon it by s 4.1.50(1) of IPA, and consequently I order that the appeal should be upheld. [58] Two additional matters arose during the appeal. Alternative landscaping designs were advanced, with ALDI contending for one which involves some minor work in the nearby park, supported by nearby residents. The other covers the possibility that Council may not permit that work. Council did not signify its position. The first was preferred by Dr Hassall, an expert landscape architect and the residents who were submitters and it seems to offer advantages in terms of surveillance and general, more ‘open’ design. The matter may be deferred for further submissions if, in finalising the conditions to be attached to the development approval which flows from this decision, the parties remain at arm’s length. [59] The second matter concerns the question whether changes to the proposal since Council’s refusal are ‘minor’ for the purposes of s 4.1.52 of IPA. They involve the inclusion of the ‘deceleration’ lane on Finucane Road and associated alterations to footpath and frontage layout; a slight readjustment of the car park layout to accommodate staff parking spaces and alteration of aisle widths. On any view the changes are beneficial, as are those concerned with the preferred landscaping design, and qualify as minor within the principles outlined in this court on the many previous occasions it has been obliged to address the question13 . [60] The appeal will be adjourned for further review on a date to be determined when final orders, or further submissions about appropriate conditions, may be made. 13 See, eg, Parcel One Pty Ltd v Ipswich City Council [2007] QPELR 476 at [14]. -- 13 of 13 --