Carbone v Esk Shire Council [2006] QPEC 16

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Carbone v Esk Shire Council [2006] QPEC 016 PARTIES: PAUL CARBONE Appellant ESK SHIRE COUNCIL Respondent FILE NO/S: Appeal No 3207 of 2003 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: DELIVERED ON: 3 March 2006 DELIVERED AT: Brisbane HEARING DATE: 6,8,9,10 February 2006 JUDGE: Robin ORDER: Appeal allowed; conditions of approval to be finalised CATCHWORDS: Development application for hotel use – effect of proposal would be to relocate a current recently approved hotel use to a larger existing building on the same site, with addition of a drive-through facility for the bottle shop – commercial zoning and preferred dominant land use – issues included on-site parking requirements, amenity impacts and noise nuisance for residents of the neighbourhood – curfew on use of rear driveway proposed – whether undue supervision required – whether Esk Shire Council Planning Scheme required “need” to be established – whether subsequent rival proposed from the small town’s original hotel should be preferred to the proposal COUNSEL: Cochrane (Appellant) Ure (Respondent) SOLICITORS: Hopgood Ganim (Appellant) King and Company (Respondent) [1] Mr Carbone is appealing the Respondent Council’s decision communicated by decision notice dated 29 August 2003, to refuse his application for a development -- 1 of 26 -- 2 permit for a material change of use to allow land located at 18 Brisbane Valley Highway and 14 Burns Street Fernvale to be used for hotel purposes, the application having been made on or about 20 November 2002. The Form 1 development application describes the existing use as “Shops & Restaurant & Vacant building” and the proposal as “Use existing building as a Hotel,” in both instances referring for detail to an attached report written by Randall McHugh of Craven Town Planning. [2] The Assessment Report, as it is called, includes a site history, the broad outline of which there is no reason to doubt: “ • In the early 1990’s Council issued approval for the site to be used for commercial purposes and subsequently two commercial buildings were established on the site. The smaller building is used for a mixed business that includes a restaurant and a take-away food outlet. Up until recently the larger building was used as a supermarket – this building is now vacant and is the subject of this application. • In March 2001 Esk Shire Council granted approval (Development Application Number 976) for the smaller of the buildings to be used as a “Hotel (limited facilities)”. • Subsequent to the 2001 approval: - o the larger building has become vacant; o the owner has been contacted by a hotel operator who wishes to establish a new licensed facility in Fernvale; o the Liquor Licensing Division has advised that a more appropriate building for a Hotel would be the larger building on the site. Concern was expressed regarding the limited size of the smaller building. Given these circumstances the applicant has decided to pursue approval of a Hotel in the larger of the existing buildings.” Mr McHugh being no longer with the firm, the Appellant relies on the planning report and evidence of Mr Craven. His report became exhibit 1. Although the details did not emerge in any clear way, it was common ground that a general licence was granted in respect of the smaller building pursuant to the Liquor Act -- 2 of 26 -- 3 1992. See sections 58(1)(a), and 58A to 61. This is the same kind of licence as pertains to the long established Fernvale Hotel-Motel a block or so north of Mr Carbone’s site on the same side of the Brisbane Valley Highway. These are not the only licences issued under the Liquor Act for Fernvale: for example, licensed restaurant facilities are available there. The general licence the site enjoys, issued for the smaller building, is the basis for operation there of a tavern/licensed restaurant, and a very small bottle shop; they trade as the “Purple Heifer”. [3] For reasons which are not difficult to fathom, proposed hotel uses are impact assessable. Mr Carbone’s application attracted adverse submissions, which were collected in a communication sent by the Council on 8 October 2003 in accordance with section 4.1.34 of the Integrated Planning Act 1997 (IPA). The most detailed, which gives every appearance of having been prepared with the aid of town planning expertise, was from Mr Welsh, a principal of Tipglance Pty Ltd as operator of the Fernvale Hotel-Motel. Mr and Mrs Andersen own the property to the south of the site which, like it, has a Brisbane Valley Highway frontage and one to Burns Street, which runs parallel (lot 14, having the street number 16 Burns Street); they wrote to the Council on 10 February 2003: - “We oppose on the grounds (a) that excessive traffic flow, especially late at night, would disturb nearby residents, (b) of increased traffic noise due to proposed drive-through bottle shop, (c) that inadequate parking area on the proposed hotel property would cause parking congestion in Burns Street, (d) that the close proximity to Stumer Park, which is used by youth, would provide easy access to alcohol and the possibility of it being taken to the Park, which in turn could cause problems, (e) that the premises at 1454 Brisbane Valley Highway is rented by the Fernvale Community Church and is used by the Church during the week to provide services to the community – an adjoining hotel would be inappropriate, -- 3 of 26 -- 4 (f) that there is already a hotel in Fernvale to service the requirements of the community (g) that having another outlet for alcohol and possibly poker machines would be potentially detrimental to the community and (h) that we have gathered over one hundred signatures on a petition from people opposed to the proposal.” The petition is made up of seven separate sheets commencing with a statement of the objection and followed by columns for date, name, signature, and address. Some of the sheets, at least, were made available at the bar of the Fernvale Hotel. One signatory, summarising paragraphs 19-23 inclusive of Mr Welsh’s submission, added “Fernvale Hotel is all we need in Fernvale”. There has been no occasion to check all of the recorded signatures. There is no reason to suspect that the petition is other than substantially genuine. Many signatories give a Burns Street address, including Wayne Brown of number 16, which is a two storey residence behind the building mentioned by the Andersens in (e), also rented by them to the Church and made available by it, in turn, as a residence for people being helped. On a view during the hearing, that residence appeared rather dilapidated. The petition reveals no signature linked to number 12 Burns Street. I would not be prepared to infer that owners or occupants of number 12 are represented by the sole instance of a Burns Street address devoid of street or lot number. [4] Number 12 Burns Street (which is lot 15) is the northern neighbour of the arm of the site which extends from the highway to Burns Street. Its western boundary abuts the rear of that part of the site which has a highway frontage but does not extend to Burns Street. Its northern boundary is the projection of the northern boundary of that part of the site. [5] It is presently possible (and the development proposal will continue this) to drive through the site between the highway and Burns Street, using a sealed driveway -- 4 of 26 -- 5 which bisects the highway frontage of the site and runs along its boundary with number 12. Given the nuisance apprehended from use of the driveway if the proposal goes ahead, the absence of objection from number 12, which is likely to be most affected, may be significant in the circumstances. An adverse submission from the Church signed by Pastor Muller expands on the Andersens’ points, especially (d); fears of “further underage drinking” facilitated by the bottle shop were mentioned; the Church activity in the hall was identified by its name of “Gleaners” which is advertised prominently around the relevant building. [6] Pastor Muller’s letter objects to the “proposed new Hotel”. Likewise, Desley McDermott’s thoughtful “New Fernvale bottle shop development objection” complains of the inadequacy of Burns Street, which she depicts as “just barely wide enough to be a residential street” to handle the anticipated traffic movements and demand for parking. She is particularly concerned about the situation late at night and, given the absence of public transport and taxi services, drinkers driving, who should not; she complains of a potential danger associated with traffic turning across the highway to or from the site, and of the undesirability of “installing a room full of poker machines.” The last (by date) of the objections came from Genevieve Organ, 15 Burns Street, which is presumably immediately across Burns Street from the site. She refers to interference with expectations that Burns Street (“frequently used by children of all ages”) should remain suburban, tranquil and clean, to disturbance by increased traffic “from the use of the proposed drive- through bottle shop” and increased noise and light levels, especially at night, likewise the anticipated behaviour of rowdy patrons at night to “diminish our quality of life”. It suggested there is “very little need for yet another” liquor licence in the area. The objection/adverse submissions discussed appear to have been -- 5 of 26 -- 6 written in ignorance of the general liquor licence while already exists for the site. Apropos “poker machines”, it might be noted that none exist in Fernvale at the moment, although both the site and the Fernvale Hotel are authorised to operate them. The cost of tendering for access to a more limited pool of gaming machines for actual operation has been prohibitive, apparently. It seems there is a market akin to that for taxi licences. [7] Mr Tony Freshwater and associates took over the Fernvale Hotel Motel on 1 July 2005. He took a keen interest in the appeal and gave evidence, the frankness of which commanded respect. He adopted the bold stance that he was prepared to face the competition, if the proposal went ahead. Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 confirms that considerations of competition in some retail market have very little role to play in planning cases. It was not suggested there would be (and there is no reason to anticipate) blight, in the sense that the Fernvale Hotel would be likely to fail if the proposal went ahead. There is evidence by the Council’s economics expert, Mr Coglin (and it would be the general community feeling today) that, ordinarily, competition in a market is a good thing; competition increases choice. I did not think Mr Freshwater was asking for sympathy. He and his partners had very little claim to any. Their assessment that Fernvale was and would remain a one hotel town was unjustified. Although aware of the existence of the Purple Heifer, which was assessed on cursory inspection from the outside as very small and not likely to pose any problem, none of the investigations about it which could have been made, especially in relation to the development application to the subject of this appeal, were made. [8] In my opinion, there has been insufficient appreciation in many quarters of the implications of the Council’s March 2001 approval (development application -- 6 of 26 -- 7 number 976) of a material change of use to permit the existing restaurant building to be used as a hotel with an associated bottle shop. Consistently with the possibility of obtaining a series of requisite consents to permit a use one at a time established in Walker v Noosa Shire Council [1983] 2 Qd R 86, Mr Carbone or relevant persons associated with him approached the licensing authorities. Whatever misgivings they may have had, it is accepted that they issued a general licence in respect of the smaller building one the site – no licence was in evidence. It is difficult to gainsay Mr Craven’s observation (exhibit 1, paragraphs 20-21) that the significant approval in this matter is the March, 2001 Council approval of a tavern in the smaller of the two buildings, which has been trading since 2002: “it means that the essence of the current proposal is not to establish a new tavern on the site, but to relocate and enlarge the existing small tavern, although the proposed premises are still small by any normal standards.” Mr Craven prepared exhibit 16 to clarify the changes: - “ Activity Area Area in Existing Tavern(m2) Area in Proposed Tavern (m2) Lounge 136 100 Gaming area 0(part of lounge) 66 Dining area 0( part of lounge) 34 Total public dining & liquor consumption spaces 136m2 200m2 Bottle shop 23 97 Serving area behind bar 13 28 Kitchen 35 (but includes takeaway servery) 32 Staff/manager facilities 0 19 Entry 0 18 Toilets (public) 22 58 TOTAL AREA 229m2 452m2 Major Changes • Lounge/dining space remains the same (126m2 vs 134m2 ) • There is now a dedicated gaming lounge (66m2 ) • There is now a partly defined entry area (18m2 ) • Bottle shop increases from 23m2 to 58m2 • Area behind the bar increases from 13m2 to 28m2 • There is now space for staff (19m2 ) [9] Inspection of the Purple Heifer confirms the licensing authorities’ concerns were valid. The bottle shop has a separate street entrance; its pocket-handkerchief size -- 7 of 26 -- 8 severely limits the range of items which may be displayed (a greater range is held in storage and presumably available on request): serving is done by a staff member from the kitchen. The bar, too, is pokey. There are no gaming machines installed, so that no issue arises out of the existence of conflicting plans showing their proper location. One of the four former shop areas that have been “opened up” to form the bar-restaurant is used only for storage, but toilets appeared to be accessed through it. [10] The evidence does not show how well the Purple Heifer is trading; except that Mr Coglin says that (like the Fernvale Hotel) it is not presently trading to the limit of its capacity. As it is, it does not strike one as a particularly enticing facility for potential customers. Nonetheless, for some years the planning and liquor licensing situation has been such that adverse impacts of the kinds the submitters allude to might have been generated. They might well be generated if the outcome of this appeal is such as to limit hotel activities on the site to those that may be lawfully conducted under present arrangements. It may be guessed that provision of a larger bottle shop, and one established as a drive through facility, will generate additional traffic through the site, entering from the highway, and exiting into Burns Street. A feature of the case is that the site is already built out, so that limitations are imposed which would not apply if there were a vacant site. The space between the former supermarket building (currently used as a secondhand goods outlet) and the long boundary shared with number 12 Burns Street is (at 5 meters) inadequate to permit passing of vehicles, and will therefore necessitate a one-way traffic pattern. It seems that lawful use of the site since the early 1990’s has involved unrestricted vehicle access from and to Burns Street (as well as Brisbane Valley Highway) and that, for three and half years, that has been in the context of lawful “Hotel” use, with -- 8 of 26 -- 9 its concomitant patron noise, divided by one of the experts in the field, Mr King into “normal behaviour” and “irresponsible behaviour”. In my opinion, in assessing the impacts of the proposal, the relevant comparison is between what occurs and may occur at present under existing approval, on one hand, and on the other, the likely impacts if the proposal goes ahead – rather than the starting point being no development at all. Compare Law v Beaudesert Shire Council [2000] QPEC 090 at [17]. [11] The Appellant bears the onus of proof in this appeal which he brings under section 4.1.27 of the IPA: Section 4.1.50(1). However, it is for the Council, in practical terms, to identify the issues, which it nominates as need, car parking and amenity. Other issues have been raised in the past, such as a landscaping, which might have been required, given that the site area of 2172m2 exceeds the benchmark 2000m2 in section 6.7.4.9 of the Planning Scheme of the Council of the Shire of Esk. Mr Ure conceded that this provision should not be determinative. There is landscaping on the site behind the supermarket building (extending along the southern boundary, which the building abuts) to Burns Street, which the Appellant offers to enhance. In any event, the provision appears to apply to new buildings only, as does the requirement of Table 6.8.2 applicable to hotels and motels that “new buildings to be erected on land adjacent to a residential zone shall not be within six (6) metres of an external boundary….” NEED [12] The Strategic Plan deals with preferred dominant land uses in section 1.3 and, relevantly, as follows: - -- 9 of 26 -- 10 “1.3.7 BUSINESS AND COMMERCIAL – The preferred locations for the dominant business and commercial activities within the Shire are coloured blue. The varying size of the areas designated within each of the urban centres is intended to represent the proposed future hierarchy of business and commercial activities within the Shire. Future expansion of business and commercial activities will be encouraged in accordance with the proposed hierarchy and will be subject to a requirement to provide justification of the need for further development. The location and size of further business and commercial development and the uses which are permissible in such areas will be determined in accordance with the statement of objectives. The preferred area for commercial and retail development in the urban centre of Fernvale is depicted on Figure 5.” (Italics added) [13] The site is depicted on Figure 5. The italicised sentence has been a focus of argument between the parties as to its meaning since Mr McHugh’s time. See, for example, his letter of 23 June 2003, exhibit 15, reiterating a submission made on the 27 March prior. The letter asserts that need is not a matter Council is entitled to concern itself with in this situation. The argument (which I think is correct) depends on the zoning of the site as commercial. That zoning is shared by the Andersens’ land (and indeed all land to the south in the rest of the town block and the next town block) and the four blocks fronting Brisbane Valley Highway immediately to the north of the site to Banks Creek Road, as well as the next two blocks across Banks Creek Road. The lot adjacent to the site is occupied by the manager of the Purple Heifer tavern. However, number 12 Burns Street and the five Burns Street blocks to the north of it are zoned residential, although sharing the site’s business/commercial PDLU. I agree with the contention that on the basis of the site being in the business/commercial PDLU designation and in the commercial zone the application does not represent an expansion of business and commercial activities – from which it follows that there is no requirement on the proponent of a development application to “provide justification of the need for further development”. Mr McHugh drew a contrast with a rezoning to commercial of the -- 10 of 26 -- 11 kind that might have become necessary in relation to 12 Burns Street. As for identifying the “statement of objectives”, Mr McHugh drew attention to the Strategic Plan aim in 1.2.2 “to minimise unnecessary cost to the Council and the community arising through the effects of inappropriate land uses and premature development”. He also identified (and the appeal focused more on this) section 1.6 of the Strategic Plan – commercial area objectives: - “Objective 1.6.1 1.6.1.1 To consolidate and encourage the growth of existing commercial and business centres within the framework of a hierarchy of commercial and business centres throughout the Shire. Implementation 1.6.1.2 Within the context of the scale and distribution of the existing urban centres, the Strategic Plan Map indicates those areas considered appropriate to be development for commercial and business activities. Development of a scale and type commensurate with preferred hierarchy of urban centres will be permitted in the designated areas. The dominant urban centres will be encouraged to develop as the major service centres with only local business and commercial activities being encouraged in other urban settlements. 1.1.1.3 Rezoning for commercial purposes will not be encouraged unless otherwise provided for on the Strategic Plan Map. Land uses of commercial or business nature have been provided as permissible uses in other zones in accordance with the levels of service considered in those locations.” [14] The foregoing confirms the view I have taken of section 1.3.7. [15] Reference was made in evidence to other planning schemes in Queensland which expressly make need a consideration for the relevant Council when it assesses certain development applications. That is the case in Esk, but not in respect of the present application. It is one made under the transitional (and now superseded) planning scheme gazetted 19 June 1992 and amended in 1995 and 1996 (part of the appeal book exhibit 2). The Council now has an IPA scheme in which the site is located in the Town Centre of the Town Zone – Fernvale, a somewhat expanded -- 11 of 26 -- 12 town centre. The land across Burns Street is Park Residential, as opposed to Residential, of which there are three small pockets. Everything between Burns Street and the highway is Town Centre. The IPA scheme has no particular importance in the appeal. Nothing in it was pointed to as telling against the application. [16] The Court of Appeal confirmed in Arksmead Pty Ltd v Council of the City of Gold Coast (2000) 107 LGERA 60: [2000] QCA 60, at [8] (page 63) the appropriateness of this court’s considering need on an application for consent, rather than leave the matter for consideration by a licensing authority, for example. The level of sophistication examinations of need may reach is exemplified by Isgro v Gold Coast City Council [2003] QPELR 414. On a similar approach, if it matters, need would appear to be established here. The Council did not see fit to raise need in the March 2001 approval, which appears as appendix D in Mr Craven’s report, exhibit 1: “DECISION NOTICE FOR DEVELOPMENT APPLICATION NO.976 The Development Application NO.976 for Material Change of Use for Hotel (limited facilities) at 14 Burns Street, Fernvale (with road frontage to the Brisbane Valley Highway) described as Lot 14 on RP910188 was assessed and Approved with Conditions. The decision was made by the Council of the Shire of Esk on 28 March 2001. The following schedule provides all the relevant details. 1. Referral Agencies names and addresses Concurrence Agencies Department of Main Roads PO Box 645 Toowoomba Qld 4350 Advice Agencies Not Applicable 2. Conditions Assessment Manager -- 12 of 26 -- 13 Schedule 1 The following conditions are to be fulfilled before the use commences: 1. The term Hotel (limited facilities) is for the use of this subject site for the following purposes: (a) the use of the building located in the north west corner of the subject site, fronting the Brisbane Valley Highway and known as “First National House”; (b) the shared use of the car parking on the whole of the subject site; (c) a bottle shop of approximately 60m2 (d) a restaurant and bistro, including provision for the sale and consumption of alcohol on the premises with or without a meal; (e) a take-away food facility; and (f) the provision of no more than seven (7) gaming machines limited to the bistro area only, in accordance with the approved plans.” [17] The subsequent conditions indicate concern with acoustic issues, likewise with “front and rear car park areas” and lighting for them. 27 marked car parking spaces were required. [18] Mr Coglin’s evidence, given for the Council, is important, if need is be considered. His report (exhibit 9) offers the following conclusion: - “8. Conclusion 8.1 It is not clear to me why a hotel licence was granted for The Purple Heifer Tavern. From my enquiries and inspections, the Fernvale Hotel (which preceded the Purple Heifer) is a modern, well-maintained facility with the capacity to serve the market well. Before the Purple Heifer Tavern began trading, the only hotel facilities lacking in Fernvale were a walk-in bottle shop and a drive-through bottle shop. However, the granting of a hotel general licence to the appellant did not result in the provision of a drive-through bottle shop or a walk-in bottle shop of adequate size. Therefore the general licence does not appear to have been granted to meet a need for additional hotel facilities in Fernvale. -- 13 of 26 -- 14 8.2 Often small towns have more than one hotel, but this is more often an historical holdover than a reflection of market demand. 8.2 The subject proposal would expand the Purple Heifer Tavern. While this may have some potential benefit for the community, it does not indicate need for an expanded facility. 8.3 Applying typical tests of need shows that: • The proposal would essentially expand an existing facility. It would also provide a drive through bottle shop and a walk-in bottle shop of reasonable size that are currently absent in Fernvale. However, the existing Fernvale Hotel already has firm plans to provide the bottle shop facilities that are currently lacking in Fernvale. • The existing licensed bar and bistro facilities in Fernvale have the capacity to serve the market. • The trade area population served by the two Fernvale hotels is considerably less than the population that would normally warrant two general licences. The visitor population in the area does not represent a significant additional market. • The trade area population is forecast to increase only minimally in the foreseeable future, so additional hotel capacity is not warranted by marker growth. • Of five written submissions to Council, four addressed need for the proposal, and all of these concluded that there was no need for it. I therefore conclude that although it would generate some potential benefit in terms of providing additional choice, there is not a need for the proposal.” [19] He accepted there was a need for the facilities he describes as “currently absent”. If correct, the forecast of very modest future growth should alleviate to an extent the concerns of adverse submitters, for example about “chaos” in Burns Street. The difficulty I feel with Mr Coglin’s approach relates to his favouring the Fernvale Hotel as preferred supplier of the needed facilities. Exhibit 14 is a copy of the Council’s file in respect of its foreshadowed development application which was lodged under cover of a letter dated 17 November 2005. As was the case with the Appellant’s application made three years earlier, there had been some preliminary -- 14 of 26 -- 15 pre-lodgement discussions. The proposal is for a free standing bottle shop to the north of and roughly midway between the existing hotel and existing motel units at the rear. It may be seen as preferable to the proposal in traffic aspects in that it will provide a loop pattern whereby “liquor barn” and motel traffic flows from and back to Brisbane Valley Highway. The Appellant points to an issue raised by a Main Roads requirement as to width of the footpath crossing. One would expect that can be overcome. The traffic pattern may be as much a matter of necessity as the Appellant’s, as the highway access seems to be all that is available. This recent proposal is said to be preferable from the point of view of offering longer trading hours since it would not be subject to the curfew proposed for the “drive in” aspect of the Appellant’s bottle shop of 8pm. On the evidence, it is not likely that any bottle shop in Fernvale would attract much custom after that hour. One must wonder whether the very recent application is in part a means of creating difficulties for the present appeal. For all the confidence expressed, there is no guarantee it will go ahead, assuming it gains necessary approvals. A concern ventilated in evidence was the cost of staffing the stand-alone bottle shop which, for security reasons, would probably require two staff; a good deal of their time might be passed with little or nothing to do; such a staffing arrangement may be assessed as uneconomic. [20] It is embarrassing for the court to be asked to pronounce a supervening application superior to a long-standing one, with the consequence that the latter fails. For the court to proceed on that basis, there would surely have to be an overwhelming disparity in the merits of the respective proposals – which is not encountered here. (If the court’s construction of section 1.3.7 is correct, Mr Freshwater will not be called on to establish need for his proposal, even if the Appellant’s is approved and implemented.) -- 15 of 26 -- 16 OTHER CONFLICT WITH STRATEGIC PLAN [21] Mr Ryter, a planning consultant, who provided a report and gave evidence in the Council’s case, identified what he said was an aspect of conflict with the strategic plan over and above that relating to need allegedly requiring to be (but not in the event, assertedly) proved. The intent of the commercial zone is: “3.2.7 To provide for a wide range of business and commercial enterprises centrally located in urban areas, without intruding into residential areas, where the population numbers warrant the establishment of a variety of business with associated civic and cultural facilities for the people using such area. It is intended that shops and shopping centres be located in this zone and where appropriate the zone be developed with tourist facilities. It is also intended that developments conserve or enhance the historic or scenic character of the zone in accordance with Council’s requirements.” [22] As Mr Ryter observes, detached houses adjoin the site on two sides (north and south, the former zoned Residential A) and exist directly opposite the site in Burns Street. He argues that, while some level of commercial intrusion into this area must be expected, given the range of uses that could be established in the commercial zone without planning approval, in a case of an impact assessable development proposal, like the present, the unacceptable impacts of the proposal by way of noise and parking/traffic as assessed by other experts show that there is unacceptable intrusion into the residential area, resulting in a conflict with the stated intent. The wisdom of the boundaries adopted in planning schemes to separate uses, in particular commercial from residential, can often be called into question. From Ms Organ’s perspective, for example, having commercial development directly across Burns Street, the western side of which is selected as the Town Centre, would not be congenial. It is odd in the extreme to contemplate a commercial use on land zoned and designated (as regards PDLU) commercial as intruding into “residential areas” which may share the designation, and even the zoning. The pattern of zoning -- 16 of 26 -- 17 sites commercial suggests it has been occurring on an ad-hoc basis. It seems artificial, in the circumstances, to allow the non-commercial zoning east of Burns Street to override or constrain a commercial zoning on the other side. I do not detect any concerning conflict here. PARKING [23] The site presently has 29 designated car parking spaces, which appears to exceed the Council’s requirement in the existing approval. There are also a couple of loading areas, which could be used by patrons at night. Mr Brameld, a traffic expert engaged by the Council, was highly critical of present arrangements, which Mr Viney, for the Appellant, assessed as adequate. Some of the 29 spaces are “substandard”; there is room for argument as to just how many. The criticism applies to three “tandem” spaces at the southern end of the highway frontage and to one or more of three “parallel park” spaces against the boundary with number 12 Burns Street close to that exit. Opposite those three, behind the existing larger building are six spaces designated as for staff only (perhaps they’ll be for bottle shop patrons too) in the interests of undisturbed sleep for the occupants of number 16 Burns Street. At the Burns Street end, there exists a six metre “landscaped” area separating the six spaces from the side boundary. On the highway side, nose-in parking adjacent to the existing entrance to the building receiving the tavern, which will be the only one hotel patrons are able to use, may require patrons to negotiate parked vehicles there. Bay width, likewise bay lengths (alone or in combination with aisle widths behind), barely satisfy Australian standards; Mr Brameld says they are inadequate for large four wheel drive vehicles. He and Mr Viney were at odds regarding the ability of drivers to manoeuvre vehicles into and out of spaces, although Mr Brameld conceded that determined drivers can do better than the -- 17 of 26 -- 18 Standard in evidence contemplates. Mr Brameld would like to see the parking layout on the site redesigned (of course, what can be done is compromised by the existing buildings) and suggests the current 29 would in that process reduce to 22, supplemented by a couple in loading areas, as mentioned above. Both men agree that five vehicles may park on Brisbane Valley Highway in front of the site on the southbound side. Main Roads require the prohibition of parking on the opposite side of the Highway to ensure that through traffic is able to avoid vehicles stopped prior to turning into the site. The likelihood, given current uses, is that there will be considerable opportunities for parking on the highway beyond the frontage of the site, but regard was had to a principle that parking demand occasioned by the use of a site should be accommodated on it and (here) along the kerb in front. Notwithstanding the way Burns Street is dealt with in the planning scheme current at the time of the application and in the IPA scheme, as “commercial” and Town Centre, the approach was taken, in the interests of the residential uses, that parking associated with the relocated hotel should not happen anywhere in the Burns Street. There is nothing to stop its occurring in association with the present Purple Heifer and other uses of the site. [24] On-site parking for patrons might be reduced not only by their exclusion from the Burns Street end, by gates at the Burns Street exit closing the back area off to everyone and a gate at the western end of the building closing it off to all but staff; a suggestion was made that the rear places in the three tandem parks might be restricted to staff, with appropriate signage inviting patrons to “park them in”. It is no doubt likely that patrons would be astute not to risk being “parked in” themselves; on occasion, no doubt, parties in multiple vehicles expecting to depart together would co-operatively use tandem parking. In my opinion, the court ought -- 18 of 26 -- 19 to adopt an understanding approach to an application like the present, which seeks to make use of existing buildings on a site, with consequences that provision for traffic and parking may not be ideal, which is not to say that neighbours or the general community should be saddled with unacceptable impacts. It might be noted that the Fernvale Hotel-Motel has no on-site parking in a formal sense, although an unofficial car park operates on its site and on vacant land of an understanding neighbour. [25] Parking has been an issue since the development application was filed. A report of Julie Kowaltzke, development planner of 4 September 2002 regarding Proposed Hotel at Fernvale – Car Parking Requirements offers this background summary: - “In March 2001 Council gave approval (Development Application No. 976) to a Material Change of Use to allow the existing restaurant building to be used on the basis of a Hotel with an associated bottle shop. On the basis of receiving the planning approval the applicant then set about getting the necessary Licensing approvals from the State Government’s Liquor Licensing Division. The Liquor Licensing Division has now advised they have concerns regarding the suitability of the initial building being used for the purposes of a hotel. In the meantime the larger building on the site, previously used for a supermarket, has become available. The Liquor Licensing Division has subsequently suggested, in their view this building would be a more appropriate site for a Hotel. Subsequent to an onsite meeting with the Development Planner, Craven Town Planning are in the process of preparing a new development application. In addressing various issues, the site will not be possible to meet the parking requirements of the current Planning Scheme. The total site parking requirement is 63 spaces. Available area is 27 spaces. A significant parking relaxation for the proposed development application is being sought. A financial contribution in lieu of the provision of onsite parking has been offered. As a condition of approval in Schedule 1 of the previous approval for the Hotel (Limited Facilities), Council granted the shared use of the car parking on the whole of the subject site for 27 spaces. This number was based on the fact that the existing use of the building was a restaurant and café and the proposed use was for a bottle shop, licensed restaurant and bistro, and take-away shop. It was intended that on certain occasions, functions and live entertainment would be -- 19 of 26 -- 20 catered for onsite. In addition, seven gaming machines were proposed to be located in the bistro area. The availability of vacant land is an issue the Council needs to consider, in creating a car parking area, which is in a reasonable walking distance to the proposed hotel, should Council agree in accepting a financial contribution in lieu of onsite spaces.” Three options for off-site parking provision were then identified. [26] The 63 spaces was arrived at by application of tables which, perhaps contemplating the era before random breath testing and relatively modest blood alcohol concentrations in drivers constituted offences, imposed heavy requirements on particular sub-uses, especially the “public bar”. This lead to some manoeuvring in the description of areas in the proposal to confine (rather artificially) the designated “public bar”, create an “entry” and the like. Reference was made to the statutory definition in section 4 of the Liquor Acts 1912-1965 to corroborate Mr Craven’s recollection of relevant history. The Planning Scheme in Table 6.9.1 sets out minimum parking requirements for developments for various kinds, including hotels, restaurants and shops. Neither Mr Brameld nor Mr Viney supported the mechanical application of formulae, both preferring to adopt a method of estimating likely parking demand. Mr Viney (who conceded that the existing parking layout is “not ideal”), on the basis of the highest recorded demand for parking on the site, considered that “approximately six spaces per 100m2 of gross floor area (i.e 27 spaces) would be adequate for determined use in the larger building for all normal trading conditions.” One of the uncertainties in the situation is what will happen to the small building if the proposal goes ahead. There were suggestions there would be a restaurant there if the licensing authorities are agreeable; another suggestion was the use for storage in association with operation of the larger building (at least for part of the smaller one). We do not know what will happen. In the end, I accept -- 20 of 26 -- 21 Mr Viney’s assessment. In addition to the on-site parking, there will be parking space on the street exceeding the five spaces immediately in front of the site. [27] Mr Brameld’s view was that, based on a strict interpretation of Council’s planning documents, either 43 or 63 car parking spaces would be required on-site. However, based on the number of cars parked at the nearby Tarampa Tavern, he thought that 52 car parking spaces to 59 car parking spaces would be required on-site to cater for the busiest day of the week. The Tarampa Tavern, unlike the proposal, has no more than a handful of nearby residents to provide patrons who would not need to use cars. Further, skilful promotion based on provision of good, inexpensive meals and effective publicity about particular specials on certain days of the week, has resulted in an extraordinarily successful operation at Tarampa. That operator’s success does not seem to have been replicated in any of the broadly similar enterprises looked at by Mr Brameld and Mr Viney. I think it would inappropriate to translate the Tarampa experience to the site. I think Mr Brameld’s prognostication of a shortfall of 23 to 30 car parking spaces, forcing the parking of cars in “residential Burns Street” and generating “adverse impacts of the spill-over parking, viz loud talking, doors slamming, engines starting and the impact of cars parked on the grassed verges during wet weather” is unduly gloomy. [28] From the outset, the applicant has accepted it required a relaxation of parking requirements. See Mr Viney’s report of 19 November 2002, included with the development application. Mr McHugh, in the letter of 23 June 2003, after “amendment” of the proposal, indicated how 63 spaces came down to 43 and sought a “relaxation of 14 spaces”. Consistently with the planning scheme recognition in 6.9.8 of monetary contribution as an alternative to the provision of on-site parking in accordance with the standard, the letter offered a contribution “in -- 21 of 26 -- 22 the order of $10,000 toward parking in Fernvale… payable after one year (in light of actual experience).” Given that Mr Viney does not cover future demands of the small building, I am inclined to think a monetary contribution representing five spaces ought to be required at this stage. [29] Mr Cochrane, for the appellant, referred to Renard Developments Pty Ltd v Caloundra City Council [2001] QPELR 218 as an illustration of circumstances in which some relaxation of required parking numbers for a similar development was considered justified in the particular circumstances; it is of some interest that Judge Skoien regarded the recycling of an existing building to become a hotel (“clearly a commercial use in the broad sense”) as a positive feature, citing s1.2.3(e) of IPA. AMENITY [30] In the planning scheme section 3.9 - Table of Development: Commercial Zone, Hotel is found in Column IV Purposes for which buildings or other structures may be erected or used or for which land may be used only with the consent of the Council. The Appellant argued that consent uses are ones which should be permitted in appropriate cases. Reference was made to Judge Skoien’s comment in Bell v Noosa Shire Council [1983] QPLR 311: - “Because the proposed use is a consent use, it is obviously one which in the overall scheme of the town plan, should be permitted in an appropriate case. Otherwise it would have been made a prohibited use… Under a town planning scheme a landowner must be taken to contemplate that a nearby parcel of land will be put to one of the uses to which the land may be put as of right. He must also be taken to contemplate that such a parcel of land may come to be put to one of those uses permitted with the consent of the local authority. Those are expectations which he must be taken to have in relation to that parcel of land. So while it may be that… the development of a consent use…would have an adverse psychological effect on those residents who have built permanent homes in the area, I cannot see -- 22 of 26 -- 23 that factor alone as being properly very persuasive to the mind of a town planning authority. The consent use was always possible; the real question is whether if the proposed use is established on the subject land it will substantially degrade the area, whether it would unreasonably disrupt the lives of the occupants of the neighbourhood.” to Mackay v Brisbane City Council [1992] QPLR 65 at 67 and Real Property Consultants Pty Ltd v Brisbane City Council [1999] QPELR 455 at 456-57. Also to the view of the Divisional Court in an English decision of Collis Radio Limited v Secretary of State for the Environment (1975) 29 P&CR 390 at 395 -96: - “There is no doubt whatever that, human nature being what it is, if permission is granted for a particular form of development on site A, it is very difficult to refuse similar development on site B if the circumstances are the same. It must happen constantly in practice that a local planning authority refuses planning permission in respect of site A because of the consequences which it fears might flow in respect of sites B, C, and D… Planning is something that deals with localities and not individual parcels of land and individual sites. In all planning cases it must be of the greatest importance when considering a single planning application to ask oneself what the consequences in the locality will be – what are the side effects which flow if such a permission is granted.” [31] The court has to compare its assessment of the impact of the use applied for with its assessment of the impact of the current lawful uses. Fernvale is not expected to grow significantly. Activities on the site are not likely to change greatly in character, although when the bottle shop operates in drive-through mode (reducing demand for on on-site parking, as Mr Viney observed) vehicles will be directed to exit into Burns Street. This concern is alleviated by the proposed curfew arrangement which will seal Burns Street off to vehicles, and if appropriate, even to pedestrian traffic at night. I think that the Appellant’s acoustic and traffic experts, Mr Moore and Mr Viney, are more likely to prove correct about the amount of noise nuisance in Burns Street once the curfew is in force than Mr King and Mr Brameld. Speaking generally, the experts as a group, and Mr Freshwater too, endorse the view -- 23 of 26 -- 24 that the denizens of a small community such as Fernvale are more likely to be considerate of the amenity of local residents than those of more populous centres. Concern about “irresponsible behaviour” as apprehended by Mr King and Mr Brameld late at night led to rejection of the application in Real Property Consultants, where it was anticipated that a hotel operation with a substantial gaming component might have up to 260 patrons present at once. The proposal’s patronage would not come near to that level. [32] The loss of a drive-through facility associated with the bottle shop was not likely to inconvenience would-be customers, as Mr Freshwater conceded, except perhaps for an hour after 8pm on a Friday night. [33] Mr Ryter’s most potent argument in relation to amenity issues in the context of what he considered fundamental incompatibility between hotel uses and residential uses (incompatibility already afflicting the Fernvale community) was the amount of “policing” required to ensure that the management regime contemplated was implemented. Apart from measures to control noise from mechanical equipment and entertainment on site, there was the nightly closing off of Burns Street and the other end of the drive way area alongside the building, which might be overlooked occasionally and policing of the exclusion patrons from the rear car park area (either at night or at all times) and from the “first in” sections of the tandem car parks. Although the evidence contained mention of boom gates which generated minimal noise when operated, some uncertainty remained as to whether the gate at the front of the building, supposedly available to the staff after 8pm, would operate automatically, and thus be used by patrons generally. Mr Ure referred to decisions in which the difficulties of continuing management militated against the approval of development applications: Larsen v Caboolture Shire Council (1980) 1APAD 202: -- 24 of 26 -- 25 Kadryn Pty Ltd v Gold Coast City Council (1980) 1APAD 376. See, more recently, Lewiac Pty Ltd v Gold Coat City Council [2003] QPELR 385. It does not seem that there is any unacceptable risk of the conditions regarding gates offered here proving unworkable. I would invite the parties to discuss these matters in search of a solution together, and in particular to consider whether the sealing off of Burns Street to pedestrian traffic as well as to vehicles is really a good idea. Pedestrian access may well be convenient for some (some of whom, it may be expected, would park in Burns Street – which might well be thought unremarkable given that it is a part of the Town Centre). If no common ground can be reached, the court will have to decide. My inclination would be that the condition for closure of the Burns Street access no longer apply once residential use of both number 12 and 16 ceases. [34] A topic which emerged during the appeal was the possible construction of what were called carports over the parking areas at the rear. The underlying concern was noise at night from vehicles being closed and started up. That noise travels in “line of sight”. Given that the house at number 16 is highset, although the bedrooms appear to be on the far side of the site, acoustic barriers of up to 4.8 metres in height might be needed along or inside the boundaries to shut out noise. Such barriers would seem an absurdity, out of scale with anything else in the vicinity. It is not seriously thought they would ever be constructed. An alternative canvassed, if the apprehended vehicle-associated noise continued to be a concern, was cantilevered acoustic barriers, i.e. carports. For the Council it was suggested that the requisite supports would further compromise inadequate car parking spaces and that the visual impact might be concerning, for neighbours in particular, to the extent that the whole development application was so substantially changed that the Appellant might have to start again. There is some disproportion in all of this. I would be -- 25 of 26 -- 26 willing, if either party sought it, to include a condition requiring the Appellant to make any necessary application for carports, and, if the Council gave approval, construct them. I think a better resolution is to preclude customer parking there at night (on the reasonable assumption that staff instructed to be quiet when they finally depart will comply) – a justifiable course, in light of provision for parking to be made in the form of a financial contribution to Council. [35] Without intending to denigrate Fernvale in any way, I would observe that it is a small, quiet country town. Volumes of traffic on the Brisbane Valley Highway are modest. Mr Ure is correct that it is open to the Council in its planning arrangements to insist on standards for parking provision and the like at levels demanded in larger centres. However, if it turns out that the site is not able to accommodate the full demand for parking from time to time, I do not foresee that there would be any unacceptable or concerning degree of inconvenience or annoyance to the community. It must not be forgotten that there is already a hotel approved and operating on the site. [36] The appeal should be allowed and the Appellant’s development application approved, subject to appropriate conditions, which the parties are invited to try to agree upon, to give effect to these reasons. -- 26 of 26 --