Arapower Pty Ltd v Gladstone City Council [2003] QPEC 11 (2003) QPELR 509

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Arapower Pty Ltd v Gladstone City Council [2003] QPEC 011 PARTIES: ARAPOWER PTY LTD Appellant v GLADSTONE CITY COUNCIL Respondent FILE NO: 2334 of 2002 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 17 April 2003 DELIVERED AT: Brisbane HEARING DATE: 24, 25 & 26 February 2003 JUDGE: Quirk DCJ ORDER: Appeal dismissed CATCHWORDS: BUILDING CONTROL AND TOWN PLANNING - Town planning - Council Approval - Appeal against council’s refusal of an application for a development permit for a material change of use of premises - Inconsistent with strategic plan - Impact on amenity - Where site gives rise to traffic problems - Whether there is any justification for a departure from the planning authority’s strategies where other suitable sites for the proposal exist COUNSEL: Mr T Trotter for the Appellant Mr S Ure for the Respondent SOLICITORS: MacDonald & Michel for the Appellant Deacons for the Respondent [1] This appeal is against the respondent’s refusal of an application for a development permit for a material change of use of premises for the purpose of a Video Store on land at Kin Kora in Gladstone. -- 1 of 9 -- 2 [2] The subject land has an area of a little over 1,600m 2 and is located on the southern side of Philip Street. It is separated from the intersection of the Dawson Highway by a small shopping complex known as the Windmill Centre. Philip Street is a four lane divided carriageway which is under State control and carries considerable volumes of traffic. On the other side of Philip Street is the Kin Kora Sub-Regional Centre. [3] The subject land is presently the site of a residential dwelling and is included in the Residential A zone in the Town Planning Scheme. In the Strategic Plan the land is part of the Urban designation. Residential development extends along Philip Street to the east and to the rear of the subject land is the Gladstone Golf Course. [4] Details of the proposed Video Store (which will provide 500m 2 of floor area) are to be found in the material before the court. Twenty-eight on-site car parking spaces are to be provided and a dual entry/exit point will give access to Philip Street. A driveway connection to the parking area of the Windmill Centre is shown in the relevant drawings and while the evidence from the appellant’s representative is that the present owner of the Centre is supportive of this, no formal arrangements to ensure the security of this integration are in place. [5] Because of the status of Philip Street, pursuant to the Integrated Planning Act, the Department of Main Roads was a Concurrence Agency in respect of the application. The department’s initial advice to the Council was that the application should be refused. Reasons for this attitude were stated and they focussed upon difficulties that would arise from conflict between vehicles moving along Philip Street and those entering and leaving the site. -- 2 of 9 -- 3 [6] The appellant consulted Mr Colin Beard an experienced traffic engineer who made recommendations that he believed might alleviate the perceived problems. These were referred to the Department which was then, pursuant to s 3.3.17 of the Integrated Planning Ac,t prepared to reconsider its position. It indicated (in a letter of 4 March 2002) that in the light of Mr Beard’s submissions and recommended alterations to access arrangements, the Department was prepared to regard its original concerns as having been addressed. The Department’s attitude was made conditional upon the adoption of Mr Beard’s altered access arrangements. [7] There was a body of adverse submissions to the application. On 20 May the Council resolved to refuse it on the following stated grounds: “1. The development is not supported by the Strategic Plan; 2. The proposed development is contrary to the intent of the Residential A zone; 3. The proposed development does not conform to the requirements of the Planning Scheme in that a separate goods delivery area has not and cannot be provided and that building is not set back a minimum of 3m from the adjoining residential development; 4. The applicant has not demonstrated a need for this land to be used for commercial purposes; 5. The proposed development would further contribute to ribbon development in an area where ribbon development should be clearly avoided; 6. The proposed development would increase the critical pedestrian/vehicle conflicts that already exist in this section of Philip Street; 7. The proposed development and its access will create a major traffic conflict point on Philip Street where currently there is only minor conflict and inconvenience generated by the residential use; 8. The safety and efficiency of Philip Street would be significantly reduced if the development were to proceed; -- 3 of 9 -- 4 9. The proposed development is likely to adversely affect the amenity of the adjacent residents as a result of increased traffic, noise impacts and light spill; 10. The submissions received by Council are generally considered to have merit.” [8] On the hearing of the appeal I had the advantage of evidence from two experienced town planning consultants, Mr Butler (for the appellant) and Mr Betts (the Council). In the Town Planning Scheme the proposed Video Store would appear to be within the defined use “shop” in the Town Planning Scheme. The table of zones for the Residential A zone indicates that such a use is a prohibited use. While, under the Integrated Planning Act, this does not necessarily stand in the way of a consideration of the application (and its approval if this is warranted), under s 6.1.2(3), in a transitional planning scheme, where a particular use appears as a prohibition, it is taken as an expression of policy that the use is inconsistent with the intent of the zone. [9] In the Strategic Plan land to the south of Philip Street is designated urban. This preferred dominant land use is explained as follows: “a generalization used to indicate the majority of development in the area will be of a residential nature. There are other uses accommodated by the Strategic Plan which are required to service and support residential areas and may normally be considered as integral components. These uses include educational and child minding facilities, smaller shopping centres and commercial facilities, health and medical facilities, law and order and emergency services, churches and other social and welfare facilities and recreation facilities. The urban designation also includes multi-unit development and other non-conventional housing styles.’ (Section 1.2.1 of the Strategic Plan).” [10] In this case the proposal is intended by the appellant to take the place of another video facility located in the Gladstone Central Business District. The appellant’s -- 4 of 9 -- 5 stated intent is that this store will serve a wide catchment. Its Consultant Economic Analyst, Mr Hyland, having noted that: “The proposed relocation does not introduce a new participant to the video industry in Gladstone but rather relocates an existing operator to a location providing better servicing opportunities to the Gladstone population.” Put forward the view that: “The direction of population growth of the Gladstone statistical local area would place the proposed Philip Street site in the demographic centre of Gladstone. In comparison, this current site will service a decreasing population of the Gladstone catchment.” He also pointed out that the market growth in DVD rentals and video game rentals will increase the demand for services available for video stores and the proposed relocation should not detrimentally impact upon the economic viability of existing video outlets within the catchment. All of this would seem to suggest that the proposal is intended to serve an area far greater than the local residential area. [11] In the Strategic Plan Urban Objective 4 is “to encourage high quality development of urban areas”. The Strategic Plan sets out a number of implementation criteria. Relevantly, in this matter, the following is stated at .6: “The Strategic Plan accepts that a certain level of commercial activity is desirable in residential precincts but in considering applications for such development the following criteria will be taken into account: - ……………………………………………………………………….. .2 Commercial facilities that do not perform the necessary local function will not generally be approved in residential areas but rather directed towards higher order commercial nodes …”. In the circumstances it is not easy to see the proposed use is one which is consistent with these implementation objectives. -- 5 of 9 -- 6 [12] Amenity considerations were raised and evidence was given in respect of impacts from sound and light. It is true that the proposal will present as a commercial building with a relatively high level of lighting. Noise associated with the arrival and departure of motor vehicles will be experienced. [13] However one has to accept that the level of amenity enjoyed by residents fronting Philip Street in this area is poor. High traffic volumes using the street and the level of commercial activity in the area, is largely responsible for this. It, of course, is no warrant for sacrificing whatever amenity is enjoyed by those who nevertheless reside in the Residential A zone but it is a matter to be taken into account when assessing the likely impact of the proposal. On the evidence given I would not reject it on the ground of impact upon amenity. [14] The matter of need was introduced not in the sense of an examination of or community need for more video outlets such as this. The issue as whether there was any justification for a departure from the planning authority’s strategies by allowing the proposal when other sites, suitable for the proposal, (and where planning controls are more welcoming) exist. [15] That being so, much of the evidence given by Mr Hyland, was not really on point. There was evidence of a number of other opportunities for the location of a facility of this kind. The more important of these were: 1. What is called the “Super Cheap” site where there is a 720m 2 vacancy closer to the city just off the Dawson Highway with good exposure and ample parking. 2. The “Night Owl” Centre which is in an established complex with vacancies providing a floor area appropriate to the proposed use. It is even closer to the Central Business District and is also on the Dawson Highway enjoying good exposure. -- 6 of 9 -- 7 [16] The point was made on the appellant’s behalf that the existence of these vacancies may not have been known at the time of the application. While this may dispose of any suggestion that they were ignored by the appellant in defiance of planning controls, the fact remains that they are now available and they cannot be ignored. I accept the submission made by the Council that these opportunities diminish substantially any justification for any departure from the planning instruments which do not favour the location of this facility on this site. It may well be that the appellant sees this site as having attributes that better suit its needs. However this again is a matter that does not dilute the importance of the local authority’s planning for the area. [17] Traffic engineering considerations loomed largely in the consideration of the suitability of this site for the proposed use. In that area of expertise I had the advantage of two respected practitioners, Mr Beard (called by the appellant) and Mr Holland (consulted by the Council). [18] It was generally accepted that the Windmill Centre so close to the Dawson Highway intersection and on the opposite side of a busy thoroughfare to the Kin Kora Centre was an example of poor planning. Difficulties arising from the interruption to the free flow of traffic along Philip Street caused by vehicles entering and leaving this site (and attempting U turns at the medium break a little to the east) together with dangers to pedestrians who carelessly cross the carriageway of Philip Street were referred to. In respect of the latter concern the median has been fenced and attempts have been made to otherwise limit opportunities to cross this busy thoroughfare. -- 7 of 9 -- 8 [19] The initial concerns of the Department have already been referred to. Evidence put before me (exhibit 9) would suggest that the stated intention to provide “internal vehiclular connectivity” between the subject land and the Windmill Centre played a large part in the Department’s preparedness to step back from outright opposition to the proposal. The views of both Mr Beard and Mr Holland were certainly not diametrically opposed and each recognised the difficulties that existed with the Windmill Centre and potential problems associated with this proposal. [20] Mr Beard’s guarded support for the proposal appears to be strongly influenced by a professional inclination to see improvements made to what are presently unhappy traffic circumstances. His evidence indicates that the prospect of “internal connectivity” was important in the formation of his views. Mr Holland also appeared to accept that, if this could be arranged, it would certainly be in the community’s interest. [21] The difficulty is of course that in this case no such connectivity can be ensured in the absence of formal arrangements (reciprocal easements of the like). While I have the greatest respect for the views expressed by both of these consultants, I am not satisfied on the evidence that concerns about the suitability of this site for the proposal in a traffic engineering sense have been sufficiently answered. [22] On the whole of the evidence I find that the onus of showing that the application should be approved has not been discharged in at least three important respects. These are:
inconsistency with the formal planning document
sufficient community benefit to override that inconsistency -- 8 of 9 -- 9
concerns about the suitability of the site having regard to traffic engineering difficulties. [23] In the circumstances the appeal must be dismissed. -- 9 of 9 --