Atkinson v Ipswich City Council & Anor [2006] QPEC 37 [2006] QPELR 550

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Atkinson v Ipswich City Council & Anor [2006] QPEC 037 PARTIES: JULIE-ANNE ATKINSON Appellant V IPSWICH CITY COUNCIL Respondent and GW & AE MORRISSY INVESTMENTS PTY LTD Co-Respondent FILE NO/S: DB345 of 2005 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 5 May 2006 DELIVERED AT: Brisbane HEARING DATE: 31 October 2005, 1st – 4th and 15 th November 2005 JUDGE: Rackemann DCJ ORDER: The appeal is allowed CATCHWORDS: Submitter appeal – proposed regional tavern – neighbourhood tavern under construction nearby – need – compatibility and consistency with planning intent – where area designated in Transitional Planning Scheme as a Major Neighbourhood Centre – amenity Ballymont v Ipswich City Council (No. 1) [2002] QCA 233 BIM Holdings Pty Ltd v Pine Rivers Shire Council [2002] QPELR 363 Comkey Pty Ltd & Anor v Caboolture Shire Council [2005] QPEC 114 Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPEC 29 Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council -- 1 of 27 -- 2 [2005] QPEC 70 Weightman v Gold Coast City Council [2002] 121 LGERA 161 COUNSEL: Mr Bowie (Solicitor) for the Appellant Mr Pyle, of Counsel, for the Respondent Mr J Haydon of Counsel, for the Co-Respondent SOLICITORS: Minter Ellison, for the Appellant Brian Bartley & Associates, for the Respondent MacDonnells, for the Co-Respondent INTRODUCTION [1] This submitter appeal is against the Council’s approval of an application for a development permit for material change of use (and preliminary approvals for building works and operational works) for a proposed large hotel at Junction Rd, Chuwar at the gateway to the large lot residential areas of Karalee and Barellan Point. The site, which is currently vacant, lies on the northern side of Junction Road, approximately 170m east of its intersection with Mount Crosby Road and approximately 130m west of the existing Karalee Village Shopping Centre, which is constructed on the corner of Junction Road and Langlands Street. The appellant is constructing the approved ‘Karalee Tavern’ on land on the southern side of Junction Road, approximately 450m to the east of the subject site. [2] The proposed tavern (the Junction Hotel) is planned to have a floor area of approximately 2100 m2 , comprised of internal gross floor area of 1700 m2 and outdoor areas of 400 m2 . It is intended to provide a sports bar area, gaming lounge, bistro/function area, bottle shop, children’s play area and other facilities as well as 147 on-site car parking spaces and a taxi set down/pick up area. The Karalee Tavern will provide some of the same components, including bistro/dining facilities, sports bar and children’s play area, but will be significantly smaller, with a gross floor area of just in excess of 1200 m2 . [3] The application attracted 19 adverse submissions, of which 16 were properly made. The material suggests that roadworks, being undertaken at the time, might have affected the effectiveness of the public notification. Whether that reduced the number of submissions is a matter of speculation only. -- 2 of 27 -- 3 [4] The issues in the appeal are set out, in some detail, in the documents which comprise Exhibits 1 and 1A, but may be summarised as relating to the need for and appropriateness of a tavern, of the size, style and function proposed, having regard to its context, the relevant town planning strategies and its likely impact on amenity. THE LOCALITY [5] The subject site is located in a part of Junction Road which is and will be a developing node 1 . The most significant existing non-residential development is the Karalee Village Shopping Centre, which is anchored by a Woolworth’s Supermarket, together with a number of specialty shops, including a bottle shop operated by interests associated with the co-respondent. [6] Junction Road lies at the gateway to the large lot residential areas of Karalee and Barellan Point, which are generally bounded by the Brisbane and Bremer Rivers. Other nearby areas, generally to the north of the Warrego Highway, feature development at rural or park residential densities. This includes Karana Downs, which is now within Brisbane City. [7] Areas to the south, which feature industrial, urban and suburban development, are significantly different in character. The areas generally to the north of the Warrego Highway, referred to as the Main Trade Area (MTA) and North Trade Area (NTA) by the need experts, are relatively sparsely populated2 and feature a higher proportion of families with children, higher rates of home ownership, and higher household incomes compared with the areas to the south, within their nominated South Trade Area (STA). The areas are quite distinct in terms of their location, land use, character and demographics. THE TWO TAVERNS 1 Although residential was one not excluded from the ‘node’ in the Special Opportunity Area. -- 3 of 27 -- 4 [8] While the Karalee Tavern and the proposed Junction Hotel would have some similar components, there would be differences in their size, character and function. The Karalee Tavern is sized and designed to function as a neighbourhood tavern. It is around 1200m2 GFA and has a patron capacity of about 44% of the proposed Junction Tavern. It takes the form of a timber cladded building in something of a homestead style, set in treed surroundings. It is the product of a development process which included public consultation. [9] The need experts Mr Owen (called by the co-respondent) and Mr Kleineberg (called by the appellant) were in agreement that, absent the proposed Junction Hotel, the Karalee Tavern would trade primarily to the MTA3 , which generally consists of the large lot residential areas of Karalee and Barellan Point to the east and the Chuwar area to the west of Mount Crosby Road, but north of the Warrego Highway. It would also, I accept, cater to some residents of the NTA (at least until and unless other facilities are provided for that area), but generally not to those in the STA. The Karalee Tavern would, in effect, be and be seen to be, a tavern facility functioning at a neighbourhood level. [10] The proposed Junction Hotel however, has been designed as a much larger and more contemporary looking facility likely to function as a “regional tavern”. It will, as Mr Owen said4 “offer amplified entertainment, dining options, choice of bars and a gaming lounge” in order to attract those from a broader and larger catchment, including from the STA, beyond the neighbourhood catchment5 . Mr Kleineberg thought that the STA would “be instrumental in rendering the regional type tavern viable.” Inclusion of the more populous STA more than doubles the catchment population6 . [11] Mr Kleineberg thought that to draw trade from that catchment, the Junction Hotel would place an emphasis on evening amplified entertainment for younger patrons. He considered that the patronage from beyond the neighbourhood area would be concentrated in the evening period and that it would comprise some 80% of the 2 Table S1 to Exhibit 15 – with a combined population of 10,794 for the geographically larger MTA and NTA combined, compared with a population of 16,751 for the STA – see also Ex 3 pg 6 which quotes a population of 11798 further combined MTA and NTA in 2005 and 17 352 for the STA 3 See Ex 14 4 Exhibit 3, page 8 5 See Ex 16 6 See Ex 16 -- 4 of 27 -- 5 trade in that period. Mr Owen disagreed with those predictions and thought the Junction Hotel would successfully trade to a larger catchment by offering “different price offerings at different price points at different styles”7 . The architect, Mr Real gave evidence that the proposal was not ‘designed’ to operate as a 6 or 7 nights per week nightclub, but he acknowledged that there would be the capacity to open up three areas to provide a large area which could be used for entertainment 8 . Mr Kleineberg considered the design to be a good one for a “large tavern playing a regional role”. [12] Precisely how the Junction Hotel would be “pitched” would no doubt be influenced by the market, and changes in the market over time. I find, however, that the Junction Tavern will be able to, and likely to, function as a ‘regional tavern’, well above a neighbourhood level, particularly in the evening period. [13] The Council’s planner, Mr Nelson, drew a comparison with the district centre of Yamanto to suggest that the NTA and MTA could sustain both a large and smaller tavern. The need experts, in their joint report, disagreed about whether the NTA and MTA could support even two neighbourhood taverns, but Mr Owen, in his report, did not set out to justify a regional tavern, in addition to a neighbourhood tavern, by reference only to the NTA and MTA. Whether the NTA and MTA could support two taverns or not, I find that it is probable that the Junction Hotel, if developed, would operate as a ‘regional tavern’ for a catchment beyond the neighbourhood catchment and extending to the STA. [14] The Karalee Tavern is unlikely to successfully compete “head on” with the Junction Hotel if both were developed. Mr Owen saw an opportunity for the Karalee Tavern to function in a “complementary manner” by providing an emphasis on dining opportunities in a “family friendly environment” or a “lower key, quieter environment”9 . He also thought that, with the advent of the Junction Hotel, the Karalee Tavern might be able to attract residents and workers in the STA, who might not otherwise have patronised that facility. He thought that 25-30 per cent of the business from both taverns combined would come from the STA. Mr 7 T164 8 T135-136 9 Exhibit 3, page 8 -- 5 of 27 -- 6 Kleineberg feared that the Karalee Tavern would be out-competed to the point where the ability to maintain its standard of service would be adversely affected10 . [15] I am satisfied that, without the Junction Hotel, the Karalee Tavern will be and will be seen to be a neighbourhood level facility. The Junction Tavern, on the other hand, would be and would be seen to be, a higher order “regional tavern”. I am satisfied that, were both to trade, the Karalee Tavern would attempt to compete, but that the Junction Hotel, as the ‘regional tavern’, would likely gain at least the lion’s share of those attracted from beyond the neighbourhood catchment. NEED [16] Absent either tavern, the large lot residential areas in the MTA and NTA are relatively poorly serviced. The combined population of those areas exceeds 10,000 people. They currently have no tavern operating under a general licence. There are two clubs within the NTA, but the closest tavern facilities to the north are at Kenmore. There are also licensed facilities to the south of the Warrego Highway, and in Ipswich, but these do not form part of the neighbourhood. Mr Owen and Mr Kleineberg agreed that the MTA and NTA areas are also poorly serviced by restaurants/cafes and other food service facilities. [17] The relative under provision of facilities is, perhaps, unsurprising given the large lot residential nature of the area, but the developing node at Karalee presents the opportunity to better meet the needs of the community. [18] It might be noted that an ‘in-centre’ survey conducted by Mr Owen (Exhibit 4) suggests that the Karalee Village Shopping Centre already draws the vast proportion of its patrons from these areas11 north of the highway, but few respondents to the survey came from the STA12 . The majority of respondents to the survey also frequently used other shopping centres in the Ipswich region. [19] One would expect that the Karalee Tavern will be a welcome addition to the facilities available to the residents of the large lot residential areas. Certainly it is 10 The appellants did not contend that the Karalee Tavern would be forced to close 11 83 per cent of respondents live within postcode 4306, which include Barellan Point, Chuwar, Karalee, Karana Downs, Mount Crosby, Pine Mountain and Riverside -- 6 of 27 -- 7 welcomed, in prospect, by a number of the residents who gave evidence. The question however, is not whether there is a need for the already approved Karalee Tavern, but whether there is a public or community need for the Junction Hotel as well. [20] In assessing the need for the Junction Hotel, Mr Owen looked to the broader catchment to which it would trade. He concluded that, having regard to the residents and workers in the combined NTA, MTA and STA, “a large tavern at Karalee (Junction Tavern) is expected to trade to viable levels” and “the available market is of sufficient size to allow other facilities (e.g. Karalee Tavern) to trade in a viable manner”13 . That is not an irrelevant exercise but, as the Court pointed out in BIM Holdings Pty Ltd v Pine Rivers Shire Council [2002] QPELR 363, it concentrates more on the point of view of the operator than the community. [21] It was pointed out that the provision of the Junction Hotel, in addition to the Karalee Tavern, would not merely duplicate services and facilities. As already noted, the facilities have points of difference, including with respect to character and function. The Junction Hotel, for example, would have a greater capacity to accommodate larger functions than the Karalee Tavern. Further, the provision of two taverns would be expected to increase choice and competition, which ordinarily are seen to be of benefit to the community. [22] Concerns were expressed by Mr Kleineberg about the impacts of competition on the Karalee Tavern and its ability to maintain its level of service. It would not be in the community interest for the success of the ‘regional’ tavern to result in long term degradation of the neighbourhood level facility. There is a risk that could occur, although I was left short of being persuaded that it probably would. [23] I accept that the proposal would, if developed, likely lead to a net improvement in the extent of services and facilities of that kind within the area of its influence. That is a matter which, reconsidered in isolation, weighs in favour of the proposal, but does not, of and in itself, necessarily justify approval. [24] The need, in this case, is not strong or pressing. The community would not be without tavern facilities if the Junction Hotel were not to proceed. The new Karalee 12 2.1% came from Brassall and 1.7% from Tivoli. -- 7 of 27 -- 8 Tavern facilities will provide facilities at a neighbourhood level, conveniently located to serve the MTA and at least part of the NTA. The Junction Hotel would add an additional facility, in the nature of a ‘regional’ tavern, for those within its broader catchment, but it cannot be said that every community needs (using that term in its ordinary meaning) both a regional and a neighbourhood tavern situated within it. As is observed later, in the context of the planning provisions, the area in and around the Karalee Centre is not intended to provide for all needs at all levels. It is not uncommon for people to travel further to access facilities which function at a higher level than the neighbourhood level. In the absence of the Junction Hotel, those within the nominated trade areas wishing to access a regional tavern would have to go elsewhere, as they currently do however, as Mr Kleineberg pointed out, there are other facilities. [25] While an applicant does not necessarily have to establish a strong or pressing need to obtain approval, the nature and extent of the need is relevant in determining the weight to be attached to that consideration in the context of a given application. THE PLANNING DOCUMENTS 1. INTRODUCTION [26] An important issue was whether the subject site is inappropriate for a tavern of a ‘regional’ scale and function. Although referred to, in industry terms, as a regional tavern, it would, as Professor Brannock said, function at what would ordinarily be regarded, in town planning terms, as a sub-regional or lower (district) level. Whether a facility, functioning at that level, is appropriate must be judged in the context of the relevant planning documents. In this case it is relevant to traverse the progression in the planning documents over time. [27] The relevant planning documents, in this case, comprise the transitional planning scheme for the city of Ipswich, which was the planning scheme in force at the time the application was made, together with the current IPA Planning Scheme, which came into effect shortly thereafter. The IPA requires the appeal to be determined 13 Exhibit 3, page 7 -- 8 of 27 -- 9 pursuant to the transitional planning scheme, but the court may give such weight to the current planning scheme as it considers appropriate.14 [28] In considering the town planning issues I had the assistance of evidence from three experienced and competent town planners namely Ms Vigar (called by the co- respondent), Mr Nelson (called by the respondent), and Professor Brannock (called by the appellant). Construction issues however, are a matter for the court. 2. THE TRANSITIONAL PLANNING SCHEME [29] The Transitional Planning Scheme, which was gazetted in 1999, contains a Strategic Plan. In 2001 the Transitional Planning Scheme was amended to incorporate the Ipswich Northern and Inner Western Corridors Structure Plan (the Structure Plan)15 . The subject land was also included within the Particular Development Zone, which facilitates development in accordance with the Structure Plan. The Structure Plan takes precedence over the Planning Scheme provisions16 in the area subject to the Structure Plan. [30] Since the application was made under a Transitional Planning Scheme, the court is required to decide the application by reference to the relevant provisions of the Repealed Act. Those provisions require refusal of an application which conflicts with any relevant strategic plan or development control plan, where there are not sufficient planning grounds to justify approval despite the conflict.17 3. THE STRATEGIC PLAN [31] The subject land, together with other land in the Chuwar/Karalee/Barellan Point/Karana area fell within the “Urban Development Areas” designation within the Strategic Plan. There was also a non cadastrally based “District Centre” designation in the vicinity of the subject site. The intent for the Urban Development Areas stated that they “represent those parts of the city where it is proposed that 14 See Section 4.1.52 15 The Structure Plan takes the form of a Development Control Plan although it was prepared as an amendment to the Transitional Planning Scheme in accordance with Schedule 1 of the IPA, rather than under the Repealed Act. 16 See Clause 13 at page 94 of the Transitional Planning Scheme – note however that ‘Planning Scheme Provisions’ is a defined term for the purposes of clause 17 and includes the provisions of the Strategic Plan and Structure Plan. No clause 17 appears in the Transitional Planning Scheme and it may be that the definition is intended to apply for the purposes of clause 13. -- 9 of 27 -- 10 urban development will occur or substantially commence during the period up to 2011”. The expression urban development, included, but was not limited to, park residential development. [32] Pursuant to clause 3.5 of the Strategic Plan, the Chuwar, Blacksol, Karalee and Karana Downs area was nominated as a Priority Growth Area for the period up to 2011. Table 3.1 sets out the number of people capable of being housed in accordance with the Preferred Urban Strategy under three different density scenarios. Population estimates varied from 35,000 (based upon 25 persons per hectare) to 57,000 (based on 50 persons per hectare). [33] The Commercial and Communities Centres Strategy18 contained a “broad hierarchy of retailing centres” based on the development of: a) The City Centre as the dominant centre in the western sub region; b) Town and District centres at highly accessible locations; and c) Local and neighbourhood facilities distributed to maximise convenience. The Strategic Plan Map designated the City Centre, Town Centres and District Centres, but not neighbourhood or local centres. [34] There were eight District Centres nominated in the Strategic Plan, including Brassall and Karalee. District Centres were intended to complement the role of the City Centre and Town Centres and also to cater for the convenience needs of nearby residents.19 They were to cater primarily for convenience goods shopping, generally of a non specialised nature, but also provide a limited range of offices and community services.20 [35] Table 4.1 of the Strategic Plan specified indicative retail/office floor space of 10,000 to 25,000 square metres for a District Centre in order to serve a notional population threshold of 30,000 to 50,000. The expected range of uses included a major supermarket and discount department store and “limited entertainment and 17 See Sections 4.4(5A) and 4.13(5A), and Weightman v Gold Coast City Council [2002] 121 LGERA 161 for a discussion of the steps involved in applying that test. 18 Clause 4.4 19 Clause 4.2(6) 20 Clause 4.4 -- 10 of 27 -- 11 recreational functions”. Commerce and trade activities were anticipated to form an integral part of District Centres. [36] The facilities at Karalee are not, and were not at the time the Strategic Plan commenced, of that order. The District Centre designation related to the centre in prospect. Clause 4.2(b) of the Strategic Plan stated, in part, that “the existing nominated centres may be permitted to expand to achieve the functional requirements of a District Centre” but subject to a “demonstrated need and demand for such expansion” and “in accordance with the provisions (of) a Strucutre Plan for the area concerned”. [37] Neighbourhood Centres, on the other hand, were said to vary significantly in size and cater primarily for the convenience shopping needs of the surrounding neighbourhood. Other development appropriate for Neighbourhood Centres included “limited” professional and business offices, medical services, community facilities (including schools), commerce and trade type activities and recreational facilities. Neighbourhood Centres had an indicative retail/office floor space of 2000 to 10,000 square metres to serve a notional population threshold of 5,000 to 15,000 people. The anticipated range of uses were “supermarket, limited comparison shopping, business services for local population, community facilities servicing neighbourhood demands (eg. health and education facilities).” 21 [38] District Centres and Neighbourhood Centres were clearly at different levels in the planned hierarchy. While both meet convenience needs, the emphasis for a Neighbourhood Centre was, as one might expect, on meeting the needs of the surrounding neighbourhood. [39] In justifying the location, at Karalee, of a ‘regional’ tavern in addition to a neighbourhood tavern, both Ms Vigar (the town planner called by the co- respondent) and Mr Nelson (the Council’s town planner) placed some weight on the Strategic Plan designation of a District Centre at Karalee. The planning for Karalee however, has not been static. 4. THE CORRIDORS PLANNING STUDY 21 See Clause 4.4 and Table 4.1 -- 11 of 27 -- 12 [40] In 1999 the council completed a planning study (the Planning Study) to be used in the formulation of the subsequent Structure Plan. That Planning Study recommended that land in the Chuwar, Karalee, Barellan Point, Karana Downs, Mt Crosby, Kholo, Lake Manchester and Pine Mountain22 “be developed for park residential at significantly lower densities than those originally envisaged due to constraints to development.” 23 The revised population projection was 11,826 persons which, according to the study, “could support a neighbourhood centre at Karalee, providing for the major weekly or fortnightly shopping trip.” That sits well with the description of the function and likely catchment for Neighbourhood Centres in both the Strategic Plan and the Structure Plan. [41] The then local centre at Karalee was nominated as the preferred location for the Neighbourhood Centre, with expansion to occur in a westerly direction, to increase visibility to Mt Crosby Road. The Planning Study also found the land to the south of Junction Road to be appropriate for development for local employment services, which would further support the commercial role of the centre. The Planning Study envisaged Brassall as functioning as a District Centre with respect to retailing, but with limits on its size and function otherwise, given its proximity to the Ipswich City Centre, which was intended to retain its primacy. [42] While the Karalee centre was recommended to be a Major Neighbourhood Centre and Brassall a District Centre, the planning study encouraged higher order district level ‘human services’ to concentrate in Karalee, on the basis of social justice and social equity considerations, given the geographic dislocation of the community served by the Karalee centre from the city centre. [43] The Planning Study also acknowledged that a new school was unlikely to proceed on land then owned by the Department of Education in close proximity to the Karalee centre. Suitable alternative uses for the site were said to be recreational or community purposes or, if there be an insufficient demand for these uses, then Park Residential or low density residential purposes, possibly including accommodation for older persons. 5. THE STRUCTURE PLAN 22 Referred to as Communities A and B 23 See page 174 of The Planning Study -- 12 of 27 -- 13 [44] The recommendations of the Planning Study were carried forward into the Structure Plan. By that time Karana Downs had become part of Brisbane City. The large lot residential areas to the north of the highway, which were included within the Strategic Plan, generally coincided with the MTA only. [45] The Structure Plan designated land in the Chuwar, Karalee and Barellan Point area, as “Large Lot Residential” Preferred Future Land Form (Figure 2.1) and designated the Karalee Centre, which had been designated as a “District Centre” in the Strategic Plan, as a “Major Neighbourhood Centre.” Brassall retained its “District Centre” designation. [46] The Centres Strategy promoted in the Structure Plan: i. Reinforced the role of the Ipswich City Centre as a key SEQ centre for commercial, administrative, retail, health, educational, entertainment, legal and cultural/community activities; ii. Provided for limited expansion of the Brassall centre as a multi-functional District Centre to complement and support the role of the Ipswich CBD; iii. Supported the expansion and diversification of the Karalee Centre as a multi- functional major neighbourhood centre to provide enhanced access for local residents to goods and services; and iv. Promoted the development of an efficient and appropriate distribution of local neighbourhood centres to meet the day to day convenience needs of existing and future residents of the planned area.24 [47] The intention of the Commercial and Community Centres Precincts in the Structure Plan was to foster this centres strategy. It was said that “new commercial and community development, other than local facilities…should be located in the designation most suited to its function.”25 [48] The intent for the Major Neighbourhood Centre was as follows: 24 See clause 2.6 25 Clause 3.3.1 -- 13 of 27 -- 14 “it is intended to encourage the development of an integrated commercial and community centre on designated lands to the north of Junction Road between Mt Crosby Road and the Langlands Street intersections, to service the existing and future residents in the surrounding large lot housing estates to the north of the Warrego Highway. It is intended that the centre may be promoted as the main node for the provision of convenience–type shopping facilities up to a medium sized supermarket. The centre may include limited comparison/specialty shopping having regard to the function and intended catchment of the centre. The final mix of uses and appropriate size of the retailing component of the centre will depend on the findings of a detailed assessment of the centres role within the overall centre’s hierarchy, and demonstration at the centre will not detrimentally impact on the functioning of other centres. The centre may also provide for support facilities to satisfy the needs of surrounding residents including some professional offices, medical facilities, community services and the like to strengthen community identity and the ability of the centre to support public transport services. It is intended that the centre be designated to foster a compact, low rise built form and incorporate landscaping to promote an attractive landmark centre at the gateway location to Karalee. Design layout should also promote safe pedestrian access to the centre. Ultimate expansion of the centre will depend on the provision of sewerage infrastructure.”26 [49] While the final mix of uses and appropriate size of the retailing component were not fixed, it is apparent that the centre at Karalee was intended to operate at a neighbourhood level “to service the existing and future residents in the surrounding large lot housing estates to the north of the Warrego Highway.” The provision of convenience type shopping facilities was to be up to a “medium sized supermarket” only. Comparison/specialty shopping was to be limited “having regard to the function and intended catchment of the centre.” Support facilities were envisaged to “satisfy the needs of surrounding residents”. That is consistent with the statement in clause 2.6, extracted above, that the expansion and diversification of the Karalee Centre was intended to provide enhanced access “for local residents” to goods and services. [50] There is no indication in the above provisions that the centre, or its components, were intended to function at a District or higher level27 , in order to satisfy the needs -- 14 of 27 -- 15 of those from an area beyond the existing and future residents of the large lot estates to the north of the Warrego Highway. [51] Within the designated Major Neighbourhood Centre, on the site now occupied by the Woolworths anchored shopping centre, development for the purposes of a hotel was, pursuant to the Structure Plan, Impact Accessable type B (being development which is undesirable and inconsistent with the intent and objectives of the zone and is unlikely to be approved), except where it was a minor component of a shopping centre and/or involved only the change of use of an existing building. The development of a hotel was code assessable in a District Centre. [52] The subject site was not itself included within the existing designated Major Neighbourhood Centre precinct. Rather, it was in close proximity to that designation, and within the Special Opportunity Area SA1. [53] The Special Opportunities Areas were “sub areas where the future use cannot be definitively stated at this time”. Table 3.11 set out the intent for each sub area. The Structure Plan provided that a development or use may be favourably considered where, amongst other things, it was appropriate relevant to the stated intent. It was also stated that “it is essential that short term decisions on the sub areas do not prejudice the realisation of the opportunities detailed below”. [54] The intent for SA1 was as follows: “Projected population thresholds for the locality indicated there are insufficient levels to support the establishment of a high school. Should the school site not be developed for school purposes, pending a decision on its future use by Education Queensland, it is intended to promote the area and adjacent lands to the south fronting Junction Road for purposes which support the Karalee Major Neighbourhood Centre (subject to the provision of sewerage infrastructure). Uses which may be considered include: a) housing at a density promoting housing options not available in the locality such as a retirement/community or other forms of low to medium density housing; and/or b) additional large lot housing; 26 See clause 3.3.1(b) 27 Save for ‘human services’ discussed elsewhere -- 15 of 27 -- 16 c) expansion of the future Major Neighbourhood Centre westwards along Junction Road towards Mt Crosby Road; and/or d) neighbourhood level community uses supporting Karalee Major Neighbourhood Centre; e) retail warehouse and produce store type uses supporting the Karalee Major Neighbourhood Centre; and/or f) sporting and/or open parkland or other recreation uses forming part of the Karalee Centre. Provision for community/cultural facilities may also be desirable [55] It is apparent that, pursuant to the Structure Plan, land within SA1 may be appropriate for the expansion of the Major Neighbourhood Centre, in a westerly direction towards (although not necessarily to) Mt Crosby Road, and for purposes which “support” that centre. In this context, “expansion” refers to a geographical expansion of the centre in the direction nominated, but not one which elevates the function of the centre within the hierarchy beyond its major neighbourhood designation. [56] Development within SA1 for the purposes of a hotel was subject to impact assessment. Whether it was type A (development which may or may not be appropriate) or type B depended upon whether, in council’s opinion, the development was consistent and compatible with the planning intent for the sub area and surrounding precincts. [57] In accordance with the recommendations of the Planning Study, land on the southern side of Junction Road was designated as a “Local Employment and Services Area” which “should support the role of the Karalee Major Neighbourhood Centre in providing services and trades not catered for within the centre.”28 A hotel was an impact assessment (type A) development within that area. [58] It is difficult to divine from the provisions of the Structure Plan an intention, encouragement or support for the development of land in, or within close proximity to, the Major Neighbourhood Centre for a large tavern, to function as a “regional tavern”, at a district level in town planning terms, drawing from a broad area extending south of the Warrego Highway. 28 Clause 3.4.1(c)(i) -- 16 of 27 -- 17 [59] The planning intent for Karalee is for a Major Neighbourhood Centre at the designated location, which may expand, in a westerly direction, and/or be supported by uses in the SA1 area and by local employment and services on the southern side of Junction Road. If the area in and around the centre (including SA1) were intended to provide for district level commercial or entertainment functions, such as a ‘regional tavern’, then one would have expected some indication of that (as is the case for district level ‘human services’ such as a multi-purpose community youth centre).29 [60] I do not accept that the proposed Junction Hotel would function as an appropriate expansion of the Major Neighbourhood Centre or supporting use to that centre, as a Major Neighbourhood Centre. It would function at a higher order than that which would be consistent and compatible with the planning intent. [61] There was some debate between the town planners as to whether the Junction Hotel would be properly characterised as an expansion of the centre, given a substantial vacant intervening land holding. The Junction Hotel would be, and would be seen to be, part of the developing node in this locality and its relationship with the centre may be strengthened depending upon the way the intervening land is developed, but I do not consider that it would be appropriately characterised, at this stage, as an expansion of a Major Neighbourhood Centre. While expansion does not necessarily have to occur “block by block”, I am satisfied that the Junction Hotel would, in the circumstances, be, and be seen to be, a discrete development, albeit part of the node. [62] Even if viewed as an expansion of the centre however, I do not regard the Junction Hotel as an appropriate expansion. The expansion contemplated is an expansion of the centre, as a Major Neighbourhood Centre. Its intended function is to “service the existing and future residents in the surrounding large lot housing estates to north of the Warrego Highway” with shopping facilities and “support facilities to supply the needs of surrounding residents… to strengthen community identity … .” It is difficult to reconcile the provision of a ‘regional tavern’ for a broad area extending south, beyond what residents to the north of the highway would identify as their community, with the function and intended catchment of the centre and the intent to 29 Clause 2.5 -- 17 of 27 -- 18 strengthen community identity. I accept Professor Brannock’s evidence that it would likely have a detrimental affect on community identity. [63] Somewhat similar observations apply with respect to development of the SA1 lands for purposes which “support” the Major Neighbourhood Centre. A tavern or hotel use is not referred to in the list in Table 3.11, but that list is not exhaustive. I accept that a hotel/tavern, of an appropriate scale and function, may act to support a Major Neighbourhood Centre. Indeed the Karalee Tavern is likely to do just that, even though it is on the southern side of Junction Road. It is more difficult however, to characterise a large tavern, functioning as a ‘regional tavern’ at what is, in planning terms, at least a district level, as a supporting use to a neighbourhood centre, even a Major Neighbourhood Centre. [64] It was pointed out that, although functioning at that level, the Junction Hotel would also provide services to existing and future residents of the park residential settlements north of the highway and, indeed, obtain the majority of its trade from those areas (the co-respondents called some residents who would welcome the Junction Hotel). That however, could be said of many district level facilities and, indeed, district centres as a whole. As the Strategic Plan notes, “district centres are also intended to cater for the convenience needs of the nearby residents”. The major neighbourhood centre at Karalee is not intended to provide all of the residents of the large lot residential areas with all of their needs at all levels. The residents of this area are also intended to be served, at different levels, by higher order centres.30 [65] It was revealed that the existing facilities in Karalee service an area beyond Karalee/ Barellan Point/Chuwar. The ‘in centre’ survey showed 15.2% of respondents coming from Karana Downs and 5.2% from Mt Crosby. The proprietor of the hardware store also spoke of the expanded catchment of that shop. That does not however, necessarily mean that the hardware shop is a district level facility nor does it change the conclusion that the Karalee centre functions and is intended to function, at a neighbourhood level. [66] It is unsurprising that, in the absence of their own facilities31 , residents of the large lot settlements in the more northerly areas would also attend Karalee for 30 See EG, the last paragraph of p175 of the Planning Study. -- 18 of 27 -- 19 neighbourhood level facilities. As I have said in another context, catchment areas are not quarantine zones.32 The Planning Study took account of this area in recommending a major Neighbourhood Centre for Karalee. The facilities at Karalee are properly characterised as neighbourhood level facilities. The proposed Junction Hotel would function at a level higher than that of a neighbourhood level facility, such as Karalee Tavern. [67] The council’s town planner, Mr Nelson, was of the view that a tavern of the scale proposed would be appropriate, because it would likely draw from a similar catchment to the existing Woolworths,33 but the in-centre survey suggests that few of the respondents to the survey were from the STA. [68] Both Mr Nelson and Ms Vigar spoke of the development of a District Centre at Karalee over time. In her primary report34 Ms Vigar spoke of the Woolworths based centre as providing “a strong base for development of a district centre over time”. In her response report,35 Ms Vigar expressed the view that “the centre at Karalee is clearly contemplated by council as a District Centre, but would operate at the lower end of this category ie. probably as a Major Neighbourhood Centre with some District Centre functions appropriate by virtue of its location in relation to other centres.” [69] Mr Nelson, in his report said: 36 “… the existing Karalee District Centre is currently operating as a “Neighbourhood Centre” having regard to the retail/office floor space and notional population thresholds. It should be noted however, that over time, an increase in commercial facilities will happen commensurate with population growth in the area, and the Neighbourhood Centre will transform into a District Centre. The proposed development forms part of the expansion of the centre.” and “whilst the current facilities in the Karalee District Centre are consistent with a Neighbourhood Centre, the provision of additional commercial facilities will eventually transform the neighbourhood centre into its ultimate hierarchy function as a district centre”. 31 It should be noted that Brisbane City Plan 2000 makes provision for a Multi-purpose Centre (MP4) in Karana Downs – see Ex. 34 32 Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council [2005] QPEC 70 33 T236 34 Exhibit 2, page 11 35 Exhibit 25 36 Exhibit 8, page18 and 32 -- 19 of 27 -- 20 [70] The evidence of Ms Vigar and Mr Nelson, at times, tended to blur the distinction between a District Centre and a Major Neighbourhood Centre. [71] It has already been noted that the Strategic Plan, in clause 4.2(6), does envisage that “the existing nominated centres may be permitted to expand to achieve the functional requirements of a District Centre.” As was recognised in Ballymont v Ipswich City Council (No. 1) [2002] QCA 233, the language suggests that what is referred to is a functional expansion. Such an expansion “to achieve the functional requirements of a District Centre” however, was expressly subject to demonstration of a need and demand and that “such expansion is in accordance with the provisions of a Structure Plan for the area.” In this case the applicable Structure Plan envisaged the functional expansion of the Karalee Centre to a Neighbourhood Centre only. [72] I do not consider that “Major Neighbourhood Centre” and “District Centre” are interchangeable terms. They are different designations pursuant to the Structure Plan. While, as Counsel for the Co-Respondent pointed out, the Strategic Plan was not expressly amended upon the Structure Plan coming into effect, I do not consider that the Major Neighbourhood Centre designation is simply a form of District Centre or an interim status for a centre destined to be a District Centre. Indeed counsel for the respondent, in the course of oral submissions, conceded that, to the extent Mr Nelson relied upon the intent for the centre to transform from a Major Neighbourhood Centre to a District Centre, he was wrong37 . Further, in his written submissions, counsel for the respondent conceded that “the Structure Plan is to prevail and that therefore the centre is proposed to be developed as a Major Neighbourhood Centre”38 . [73] The history of the planning changes, outlined earlier, reveal that the designation of the Karalee centre as a Major Neighbourhood Centre was a deliberate decision, in the later and more detailed planning document, which was based on reduced population projections for the areas intended to be served by the centre and which, by virtue of the Structure Plan, were to remain Park Residential. 37 T574 38 Paragraph 49 of submissions for the respondent -- 20 of 27 -- 21 [74] Even if the Karalee Major Neighbourhood Centre was regarded as a form of District Centre, albeit at the lower end of that category, I would still conclude that the function of the proposed Junction Hotel would be beyond that contemplated for the Centre, an expansion thereof or facilities supporting the centre, given the detailed provisions of the Structure Plan. [75] Ms Vigar, in her response report, expressed the view that: “if functions are proposed that are in accordance with the planning intent for these areas and the need can be demonstrated, the issue of whether they otherwise constitute District Centre functions should not be a reason for refusal unless the establishment of the proposal would compromise the operation of another designated higher order centre”. [76] The planning scheme would obviously not encourage development at Karalee which would compromise the operation of another designated centre. The appellant pointed out that a second tavern at Karalee would make it more significant, for entertainment, than Brassall. Putting that to one side, I do not consider however, that the planning scheme supports the location of district level commercial and entertainment facilities, in or around the Major Neighbourhood Centre, provided only that each individual development would not, of and in itself, compromise a higher order centre. Development in the Structure Plan area is intended to be in accordance with the Structure Plan. The proposed Junction Hotel is not, in my view, consistent with the planning intent for the area as provided for in that Structure Plan. [77] Further, as Professor Brannock pointed out, the area in and around the centre is still at the early stages of its development and approval of a higher order facility at this stage would tend to prejudice, rather than support, the intended development and function of this area. [78] As the Structure Plan itself recognises, the land in SA1, which is available for supporting uses, is limited and “it is essential that short term decisions… do not prejudice the realisation” of the stated opportunities. Part of the SA1 land, to the north of Perseverance Street, has already been approved for residential development. A decision to permit the development of a significant parcel of land, in the remaining available area, for a ‘regional tavern’, for which there is limited need and which would have a function beyond a neighbourhood level, to serve an -- 21 of 27 -- 22 area beyond the intended catchment of the centre, would seem an inappropriate use of land otherwise intended to be available for development which appropriately expands or supports the Major Neighbourhood Centre. The selection of uses (including any community uses) in the balance area would also then need to take the regional tavern into account. 6. THE IPA PLANNING SCHEME [79] The IPA Planning Scheme carries forward the planning strategy from the Structure Plan. The large lot residential areas north of the Warrego Highway are designated “large lot residential” on Strategy Map 2. Insofar as commercial activities are concerned, the Planning Scheme states39 that: “there is a focus for commercial activity within Ipswich directed towards development of the local government area as a “city of centres”, with the Ipswich City Centre as the key regional centre, Springfield Town Centre as the “Gateway CBD” (refer part 14), a network of other major centres (including major future urban centres) and neighbourhood centres and local shopping/commercial areas as shown on map 3 of schedule 7.” [80] Map 3 shows an existing “Major Neighbourhood Centre” at Karalee and an existing “Major Suburban Centre” at Brassall. The existing centre at Karalee is included in the Local Retail and Commercial Zone. Major Neighbourhood Centres are said to “represent important community focal points and clusters of local business and community service activities”. They are also said to “play an important role in fostering a positive community image and identity”40 . The “specific outcomes” for ‘Business/Land use mix’ for existing Major Neighbourhood Centres are as follows 41 : “Major Neighbourhood Centres are main nodes for the provision of convenience type shopping facilities servicing local communities with: A. Up to a medium sized supermarket; B. Limited comparison/specialty shopping and having regard to the function and intended catchment of the centre; C. Support facilities to satisfy the needs of local residents including some professional offices, low impact, local business and industry activities, medical facilities, community services, recreational facilities and the like 39 Page 1 - 3 40 See Note 4.10.4B at pg 4-106 41 See clause 4.10.4 at pg 4–106 to 4-107 -- 22 of 27 -- 23 and strengthen community identity and the ability and the centre to support public transport services; and D. Local cafes, restaurants and other food and beverage establishments.” [81] The land previously in the Special Opportunity Area is, under the IPA Scheme, in the Special Opportunity Zone and, in particular, within sub area SA16. The intended specific outcomes for that area mirror the provisions of the Structure Plan. [82] The provisions of the IPA Planning Scheme, to the extent that they are deserving of weight, do not alter the conclusions previously expressed in relation to the relevant planning strategies. Indeed, they confirm the strategy for the Karalee Centre to be a Major Neighbourhood Centre, with development of the Special Opportunity Area for purposes which support that centre, as the Major Neighbourhood Centre. [83] The respondent and co-respondent pointed to what they considered to be significant provisions in the IPA Planning Scheme concerning hotels. In particular, the Land Use Mix and Centres Development Strategy for the Local Retail and Commercial Zone included, as one of the overall outcomes sought: “the Local Retail and Commercial Zone operates in conjunction with other nearby community service functions such as schools, meeting places, service stations and local entertainment facilities (eg. hotels, clubs and food and beverage outlets) in order to create local activity centres/nodes.” [84] I do not consider that provision supports the establishment of hotels, of limitless scale and function, nearby land in the Local Retailing Commercial Zone. Hotels are mentioned as an example of a “local” entertainment facility in order to create a “local” activity centre/node. A hotel of the size and function of the Karalee Tavern would appear to meet that description, but the proposed Junction Tavern is of a different order. In that regard, the provision in the strategy for the Local Retail and Commercial Zone may be contrasted with that for the Major Centres Zone42 which states (my underlining): “within major centres, entertainment and recreation uses are generally of a local/district nature, including health and fitness centres, hotels, clubs and food and beverage outlets.” 42 Clause 4.9.2 -- 23 of 27 -- 24 The provision of a ‘regional’ tavern to serve a district level function would appear to sit more comfortably with that statement of intent than the provision for the Local Retail and Commercial Zone. [85] It may be noted that the development of significant entertainment facilities is not even contemplated in all major centres. The specific outcomes of some major centres refer to the intent for “significant entertainment facilities (eg. hotels…)”, while other major centres, are intended for only “local entertainment facilities.” [86] It was also pointed out that, while described in the above provisions as entertainment facilities, hotels fall within the definition of a “business use” in the IPA Scheme. Such uses, where, amongst other things, operating after 10pm, are code assessable in the Local Retail and Commercial Zone. It should be noted however, that the codes against which such development would be assessed include the Specific Outcomes in section 4.3.3 of the Local Retail and Commercial Zone. It should also be noted that, in Clause 4.10.5(2), such uses are said to be consistent with the outcomes sought for that zone “if of a type and scale appropriate for the prevailing nature of the area… .” Those provisions do not provide unequivocal support for a hotel facility, of unlimited scale or function, within the Local Retail and Commercial Zone. It may also be noted that in the Special Opportunity Zone, the use would be subject to impact assessment. CHARACTER AND AMENITY [87] Concerns were expressed about the Junction Hotel’s likely impact, particularly in relation to noise and perceptions of the character in the area. There are, of course, a number of provisions of the planing documents which relate to protection of amenity. [88] The noise issues were diligently examined by Mr King for the appellant and Mr Moore for the co-respondent. They agreed that, subject to the imposition of conditions and appropriate management, likely noise impacts could be ameliorated, to acceptable levels, for both internal and external noise sources, in normal circumstances. Mr King’s remaining concern was the likelihood of adverse impact, on existing and future residents, from irresponsible patron behaviour both within and external to the site. -- 24 of 27 -- 25 [89] As this court has acknowledged on other occasions43 such behaviour can be expected, at times, with respect to hotels and taverns. The gravity of that prospect may vary, having regard to the circumstances of the case. [90] The incidence of irresponsible behaviour is, of course, impossible to predict with accuracy. Mr King agreed that, based on the collective experience of the experts, a “package of controls” could reduce the incidence of irresponsible behaviour. Indeed, Mr King made a similar concession in Comkey Pty Ltd & Anor v Caboolture Shire Council [2005] QPEC 114, where the court was satisfied that undue impact would not occur with respect to a single tavern of 1100 square metres. Mr King’s concern in this case was related to: • The size and function of the tavern proposed, being a ‘regional’ tavern drawing larger numbers of patrons from a broader area in the evening hours; • The relatively quiet nature of the area otherwise in the evening period; and • The relative remoteness of the locality. This may delay dispersal (if taxis or the planned courtesy bus are not readily available). It was also noted that the nearest police station at Karana Downs has limited counter hours, although there are police patrols. Insofar as onsite noise is concerned, Mr King referred to the outdoor areas. Mr Moore pointed out that the appropriate noise limit would be met even having regard to large groups of people, but I accept Mr Kings’s evidence that greater noise could be associated with irresponsible behaviour 44 . [91] The Karalee Tavern would not be immune from itself having to deal with any irresponsible patron behaviour. As Mr King said however: “Quite simply, in my experience, the larger the tavern, the greater number of people, the greater number of people drinking, the greater the potential for an incident. Again, another factor to take into account is the style of the tavern, whether they have amplified music, and the hours they operate.” 43 BIM Holdings Pty Ltd v Pine River Shire Council (Supra) and Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPEC 29 44 See T294-295 -- 25 of 27 -- 26 [92] It was clear that the residents who gave evidence had a strong sense of community and some were concerned at the prospect of the Junction Hotel drawing a large number of patrons including from beyond the local area and the amenity impacts which might result. I thought it somewhat unnecessary and unfortunate that some witnesses used terms such as “riff raff” and “yobbos” in referring to “outsiders”, but it is not unreasonable for them to have a level of concern for impacts, at times, associated with the proposed regional tavern. [93] While, as Mr King acknowledged, the extent of irresponsible patron behaviour is something which is difficult to predict in advance, I accept that the Junction Hotel would present an increased potential (compared with a neighbourhood level facility) for amenity impacts (from its patrons), associated with irresponsible behaviour. That potential is likely to be realised from time to time. [94] The concerns of residents in relation to the character of this semi rural area must be assessed with regard to the planning intentions for the area. While the broader area is intended to remain park residential in character, that is not the case proximate to the subject site. Residential development at a higher density has been approved for part of the ex-school site. The Karalee Centre already exists and a service station is being developed in close proximity as is the Karalee Tavern. The Planning Scheme also envisages further substantial development (including non-residential development) on both sides of Junction Road in the vicinity of the subject site. As that development occurs, the Junction Hotel, if developed, would, be seen as part of that node. It would not unduly disturb the wider park residential character of the area. Designed and landscaped as proposed, it would not be visually unattractive. It would however, be seen for what it would be, that is a large tavern for people from a broader area, rather than a neighbourhood facility. CONCLUSION [95] The proposed Junction Hotel would be a large tavern, likely to operate as a “regional tavern” at a district level, in planning terms, for a broad catchment extending to the areas south of the Warrego Highway. Since the adoption of the Structure Plan, there seems to be little in the planning documents which would give encouragement to the location of such a facility in a location intended for development which either extends or supports the Karalee Centre, being the centre -- 26 of 27 -- 27 to serve the neighbourhood level needs of the large lot residential areas north of the highway. The scale and function of the proposed Junction Hotel appears at odds with the intent for that area and would tend to prejudice, at least to some degree, rather than support, the achievement of that planning intent. [96] While the Junction Hotel would increase the provision of tavern facilities to the community, there is not a strong or pressing need for a regional tavern in this location, in addition to the neighbourhood level Karalee Tavern. [97] While the Junction Hotel would be seen as part of the developing node in this locality, it would be (and be perceived to be) a higher than neighbourhood level facility, and would have an elevated risk and likelihood of amenity impacts from time to time. [98] I am not persuaded that the co-respondent has discharged its onus. The appeal is allowed. -- 27 of 27 --