Allastar Pty Ltd v Logan City Council & Ors [2000] QPEC 86 [2001] QPELR 197

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Allastar Pty Ltd v Logan City Council & Ors [2000] QPE 086 PARTIES: ALLASTAR PTY LTD ACN 086 077 330 Appellant V LOGAN CITY COUNCIL Respondent And SHANE AND DONNA WEAVER First Co-Respondents And RAYMOND AND SONIA MORRIS Second Co-Respondents And ALLAN MAAS Third Co-Respondent And MICHELLE RAINEY Fourth Co-Respondent And HELEN PARKER AND PETER HYDE Fifth Co-Respondents And GEORGE BUTLER Sixth Co-Respondents And MICHAEL JOHN TURNHAM & NICHOLAS DETSIMAS Seventh Co-Respondents And FRAN WILKINS Eighth Co-Respondent And JANELLE, IAN AND SARAH GIBSON Ninth Co-Respondents And MARTIN AND LINDA CONNAH Tenth Co-Respondents -- 1 of 21 -- 2 FILE NO/S: Appeal No. 1209 of 2000 PROCEEDING: Appeal DELIVERED ON: 24 November 2000 DELIVERED AT: Brisbane HEARING DATES: 30-31 October; 1 November and 10 November 2000 JUDGE: Judge Brabazon QC ORDER: APPEAL ALLOWED IN PART. CATCHWORDS: BUILDING CONTROL AND TOWN PLANNING - amenity - traffic safety – landscaping Larsen v Caboolture Shire Council (1981) APA 202 Bowlden v Redland Shire Council 24 LGRA 331 Knox v BCC (1975) 31 LGRA 108 Logan City Council v Harderan Pty Ltd (1989) QPLR 11 COUNSEL: Mr J Haydon for the appellant Mr T Trotter for the respondent Mr Sammon for the Department of Main Roads Ms Rainey (4th co-respondent in person) SOLICITORS: Geoff Klooger & Associates for the appellant Corrs Chambers Westgarth for the respondent Crown Law Office for the Department of Main Roads JUDGMENT [1] This is an appeal about conditions imposed by the Logan City Council. Allastar had applied to the Council for approval to build a service station and shop at the corner of Beenleigh-Redland Bay Road and Brindabella Street, Cornubia. On 8 March 2000 the Council decided to allow the application, subject to numerous conditions. That approval was given despite many objections from local residents. This appeal seeks to vary several of those conditions. [2] In summary, these are the contentious issues: -- 2 of 21 -- 3 (a) Should the service station have access to Brindabella Street (as the appellant wishes or not (as the Council decided). This has proved to be the most substantial issue in the appeal. (b) In any case, should Allastar have to pay a contribution of $32,875 towards the signalization of the intersection of Redland Bay Road and Brindabella Street? (c) Should some additional roadworks be carried out in Brindabella Street should Brindabella Street be widened? What landscaping should be required, both on the service station site, around its perimeter, and on the footpaths of Brindabella Street and the main road? The Subject Land [3] The total site has an area of 1.1238 hectares. It presently contains two large house blocks, with their back gardens running onto Beenleigh-Redland Bay Road. The two houses face Bromley Street, which is parallel to that road. Brindabella Street connects the main road and the street, on the western side. Allastar's application for a material change of use proposed that the house at the corner of Bromley Street and Brindabella Street be demolished, while the other house should remain. The land would then be divided into two lots. Lot 1, running along Bromley Street, would contain the existing brick house with its back garden over the area where the house to be demolished presently stands. The service station site would then be on the southern half of the land, adjoining Beenleigh-Redland Bay Road. [4] That proposal can be seen in the site development plan (Appeal Book p. 28). There is also a coloured representation of the proposal, prepared by the landscape -- 3 of 21 -- 4 architect, Mr Greg O'Brien (see Exhibit 4A). As his illustration shows, this service station is somewhat unusual, in that it will contain a large area of lawn and trees - an area almost as big as the usual service station buildings and driveway. [5] The principal access to the service station is from Beenleigh-Redland Bay Road. That is a left in-left out access, available for eastbound traffic. The proposal contains another access onto Brindabella Street. It is that access which has become the central part of this appeal. Mr O'Brien's drawing shows the proposed landscaping, which is also a contentious issue. [6] It is proposed that the service station and shop will be open 24 hours a day. Town Planning Controls [7] The subject land is part of the Park Residential Zone. The proposed use, as a service station, is a prohibited use in the Park Residential Zone. The extent of that zone can be seen from the zoning map - see Figure 3 to Professor Brannock's report. The Neighbourhood [8] As the zoning indicates, the surrounding properties on the same side of Beenleigh- Redland Bay Road are private houses. They are on 5,000 square metre lots. High front fences are unusual in the area - most of the fences are low and prevent no visual barriers. Along Beenleigh-Redland Bay Road there is a single row of houses, which have their frontages to Bromley Street. That is, the front gardens of the houses all face Bromley Street to the north, while their rear gardens adjoin the -- 4 of 21 -- 5 main road. The result is a rather untidy collection of fences and garages, facing the main road. [9] Directly across Brindabella Street, and occupying the other corner block on Beenleigh-Redland Bay Road, is the Rainey residence. Its position was considerably discussed during the appeal, because of the impact of the proposed access road to the service station, on the other side of Brindabella Street. It is a large lowset house, surrounded by a low wire fence, and with trees mainly along the boundary facing towards the main road. [10] The southern side of Beenleigh-Redland Bay Road presents a different picture. It has been developed as a local shopping centre, the Logandale Plaza. It is zoned Local Business. The shopping centre is about directly opposite this proposed service station. Then, to the south-west, also facing the main road, there is the Logandale gated community which is zoned Residential. It contains a much denser level of housing, than the Park Residential zone to the north. [11] Therefore, the site forms part of the Urban Fringe - it is in a transitional area, between the urban residential and rural parts of the city. The Legal Framework [12] This is an appeal against the Council's decision. It is now heard under the provisions of the Integrated Planning Act. It is an appeal by way of hearing anew. That is, the court replaces the Council in making an entirely fresh decision about the matter, based on evidence given to it. As it is an appeal by the applicant for a -- 5 of 21 -- 6 development application, it is for Allastar to establish that the appeal should be upheld (s.4.1.50(1)). [13] Since the introduction of the Integrated Planning Act, the Planning Scheme for Logan City Council is a transitional scheme. See s.6.1.12 of IPA. It is necessary to pay attention to the criteria set out in the repealed Local Government (Planning and Environment) Act, as their effect is still preserved by s.6.1.29 of IPA. In this case, under the former legislation, there would have been an application for a rezoning. It is therefore necessary to consider the criteria which might apply, in s.4.4 of the P&E Act. In particular, s.4.4(3)(a) is relevant here, and must be considered in the assessment of this application: "Where the proposal, if approved, or buildings erected in conformity with the proposal, or both the proposal if approved and the buildings so erected would - (i) create a traffic problem increase an existing traffic problem or detrimentally affect the efficiency of the existing road network; (ii) detrimentally affect the amenity of the neighbourhood; (iii) … " [14] Sub-section 5A requires the court to refuse the application if it conflicts with any relevant strategic plan or development control plan, and there not sufficient planning grounds to justify approving the application despite the conflict. [15] Section 6.1.2(3) of IPA now states that a prohibited use in a transitional planning scheme is to be taken as an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. The Main Roads Department -- 6 of 21 -- 7 [16] At the commencement of the appeal, the Department of Main Roads was not a party to the appeal. However, during the hearing, it became appropriate to order that the Chief Executive of the Department be given a chance to be heard, particularly in relation to the question of access to Brindabella Street. That order arose out of ss. 41-43 of the Transport Infrastructure Act 1994. Mr Sammon appeared towards the end of the hearing, and then, having elected to call no further evidence, addressed the court during final submissions. [17] The effect is that the views of the Main Roads Department are being taken into account in deciding this appeal, in relation to the access to Brindabella Street. Appearances [18] In addition to Allastar, the Council, and the Department of Main Roads, all the other co-respondents (with the exception of the seventh co-respondents) were represented at the hearing. They were represented by Ms Rainey and Ms Parker, themselves co-respondents. Ms Rainey made capable submissions on behalf of herself and the others. The Second Access [19] The issue arises out of condition 2 of the Development Approval. See p. 201 of the Appeal Book. Drawing 3239/99 (Sheet 2) prepared by Stephen D'Andrea, dated March 1999, showed the second access to Brindabella Street. However, condition 2 specifically states - "No ingress or egress from the development shall be permitted on Brindabella Street." -- 7 of 21 -- 8 [20] The Council, and the represented co-respondents, maintained that position at the hearing. Allastar wishes to have the second access. [21] It is necessary to identify those parts of the Council's planning instruments which are relevant: (a) Paragraph 1.6 of the Strategic Plan is part of the Residential Fringe Area strategy. The Park Residential Area is intended to be developed for low density housing lots within a parklike environment. It should be developed in accordance with the Park Residential Zone. It is an objective, that the parklike environment of the Park Residential Area should be protected and enhanced. Development must not detrimentally affect the amenity of existing or future residential development within that area, as a result of noise, glare, light, or the introduction of non-residential traffic or through traffic. (See paras. 1.6.1 and 1.6.2) (b) Part 4 of the Planning Scheme contains residential fringe development controls. The above elements of the Strategic Plan must be considered. The Park Residential Zone is intended to provide for low density housing in a parklike environment, with high levels of residential amenity on lots generally with a minimum area of 5,000 metres square. (4.2.1). The provisions of local service stations will be determined in accordance with any relevant Local Planning Policy relating to local service functions (4.2.1.5). In particular, para. 11.11.10 deals with service stations. It provides: -- 8 of 21 -- 9 "Development for the purpose of a service station must : … (f) not cause a lighting nuisance to adjoining premises; and (g) ensure that headlight glare from vehicles does not cause a lighting nuisance to adjoining residential premises … " (c) Planning Policy 12 is relevant. It deals with local service functions. A service station, by definition, is a local service function. However, para. 1.1.4.3 specifically directs attention to the dominant requirements of a specific local planning policy. In this case, that is Planning Policy No. 20, dealing specifically with service stations. Its policy provisions have the aim of ensuring that service stations are sited in convenient locations to service local and through traffic without significantly affecting the character or amenity of the locality. Their location and design should encourage safe and efficient traffic movement into and within the site (paras. 1.1.2.1 and 1.1.2.2.). There are two relevant performance objectives - to ensure that service stations are located appropriately to prevent intrusion into residential areas which result in a loss of amenity or significant alteration to the character of the locality (para 2.1.1.1) and to avoid the establishment of service stations on isolated sites where the situation can result in a loss of residential security and amenity (para 2.1.1.2). To give effect to those objectives, there are two performance criteria - a service station must be located proximate to existing non- -- 9 of 21 -- 10 residential development wherever practical, and a service station must not introduce non-local traffic into a residential area (paras. 2.1.2.1 and 2.1.2.2). [22] The evidence revealed several matters that should be taken into account, with regard to the second access. First, there is the likely impact of vehicles entering and leaving the Brindabella Street access. In particular, the impact on the Rainey residents should be considered. As it will be a 24 hour service station, attention was focussed on the night-time traffic. In particular, the traffic between 10 p.m. and 5 a.m. is during the usual sleeping hours. The application suggested that only five vehicles an hour would use the entire service station between 8 p.m. and 7 a.m. However, the evidence of the traffic experts indicated a higher usage. With regard to Brindabella Street, during that seven hour period, the estimates range from 10 vehicle movements to 32 vehicle movements. Increased movements during the other hours of darkness should not be ignored. [23] As Exhibit 4A shows, the access will be almost directly opposite the driveway of the Rainey residence. Presently, there is little vegetation on the footpaths, while there is some vegetation scattered about the garden of the Rainey residence. The existing background light levels in the street are very low. The evidence of Mr Kamst was persuasive, in dealing with both headlight glare and noise of cars using the secondary access. Headlight glare will sweep along the full length of the Rainey house, as cars turn either to their right or their left on leaving the service station. The impact of the headlights will be significant. It is not sufficient to point to the fact that the Rainey property is already on a busy main road. Those vehicles which enter the intersection from the opposite side of the road, and turn towards the -- 10 of 21 -- 11 city, have a much lower impact than those leaving the access driveway - they are much further away. [24] Mr Kamst dealt with noise issues. Mr Rumble also submitted a report. His report dealt with noise measurements taken at the actual site of the proposed service station. Mr Kamst's measurements specifically dealt with the impact on the Rainey residence. He says, and it should be accepted, that use of the access would cause sleep disturbances. That is because there are likely to be sudden noises, above the background noise (the background noise is substantially created by the flow of traffic on the main road). It is much less at night, and it also tends to be a steady noise, rather than a sudden or sharp noise. [25] Issues involving a possible fenced Rainey residence, and landscaping on the footpath of each side of Brindabella Street, are linked to the glare issue. As his plan illustrates, Mr O'Brien has attempted to use dense planting to soften that impact on the Rainey residence. [26] The possibility of a 1.8 metre high solid fence along Brindabella Street should not be seriously considered. It only crept in as a possibility mentioned during the hearing. Most of the houses in the area have low fences. The Raineys do not want a high fence. There is also a difficulty with Mr O'Brien's dense plantings on the footpath. First, the evidence shows that they would not be completely successful in blocking out headlight glare. Secondly, as a matter of law, it is established that a condition cannot be validly imposed, if it would require constant supervision by a Council. Indeed, the court has no power to order the Council to provide infrastructure, such as landscaping, to facilitate the development. See the decisions -- 11 of 21 -- 12 in Larsen v Caboolture Shire Council (1981) APA 202 at 210; Bowlden v Redland Shire Council 24 LGRA 331; Knox v BCC (1975) 31 LGRA 108; and Logan City Council v Harderan Pty Ltd (1989) QPLR 11 (Full Court of Queensland). [27] As the evidence revealed, it is not possible to predict how many vehicles will choose to use Brindabella Street to reach this new service station, if permitted to do so. However, it must be obvious that there will be some increase in traffic, and that will include traffic coming from other than the local area. For example, it can be expected that traffic from across the main road, in the more densely settled areas, would choose to frequent this service station. The use of Brindabella Street would provide a convenient way for them to return home, across the main road. [28] A separate issue, is whether or not the second access would generally increase the traffic safety of those using the service station. Allastar and the Department of Main Roads have an allied interest, in supporting such safety issues, as a positive reason for allowing the second access. The Main Roads' submissions were put in relation to traffic safety only. It made it clear that the Department did not view its role as that of a planning authority in the way that the Council had to. Accordingly, it made no submissions with regard to amenity, or other issues. [29] The submission for the Department shows the reasons why the second access might promote traffic safety. There are three situations where the second access would be used: (a) it would be used by local traffic from the neighbourhood, which could use the service station without any need for it to travel on to the main road; -- 12 of 21 -- 13 (b) local traffic from across the main road, particularly from the shopping centre and the Logandale gated community could use it to make an easy return trip across the intersection, without travelling along the main road; and (c) cars travelling towards the city from the east could access the service station by turning right into Brindabella Street and then rejoining the highway by turning right out of Brindabella Street. [30] If the second access is not provided, then the constraints on traffic movements along the main road need to be kept in mind. There is a median strip opposite the proposed access off the main road. Cars travelling towards the city would not be able to directly access the service station from the main road. Cars travelling away from the city and into the service station on their left, would then have to continue along the main road after they leave it. If they wished to do a U-turn, their only legal choice is to travel 1.2 kilometres to Fairview Street to do so. If they choose to make an illegal U-turn, they can do so at the end of the formed median strip. [31] Therefore, the Department suggests, from a traffic point of view, access through Brindabella Street would actually improve traffic safety for the local population, and those travelling either east or west along the main road, who wish to use this service station without making a U-turn. The Brindabella Street access would offer easier departure from the service station to motorists at various destinations, and remove the temptation to make an illegal U-turn at the end of form median strip on the main road. -- 13 of 21 -- 14 [32] The traffic engineers dealt with those matters. Mr Viney, who thought that the second access was a desirable solution from the traffic point of view, agreed that the service station proposal could operate safely without it. That is because those motorists making U-turns on the main road would be a very minor proportion of the overall traffic. Another expert, Mr Douglas, thought that the removal of the proposed ingress/egress in Brindabella Street would not be a particular concern, from the point of view of traffic engineering. He pointed out that motorists travelling inbound on the main road could use the BP service station near California Creek Road - not far away, to the west. He also pointed out that the access arrangements proposed for this service station were similar to a number of service stations elsewhere in Brisbane. The level of hazard associated with this development, without the second access, would be similar to a number of those other established service stations. He also thought (as did Mr Kumskov) there was some prospect of an undesirable element among the younger population visiting the convenience store, late at night, and doing so along Brindabella Street. [33] Town planning considerations were dealt with by Professor Brannock and Mr Kumskov. Professor Brannock gave weight to the views of Mr Viney, and the Department of Main Roads, with respect to traffic safety issues. He did not discuss the impact of glare on the Rainey residents. He appears to be in favour of the second access for that reason. On the other hand, Mr Kumskov paid more attention to the potential impacts on the amenity of the adjacent houses. He thought that access to Brindabella Street should not be permitted, because of those potential adverse impacts. If this service station and shop, with one access on the main road, can be visually and physically separated from the Park Residential development, then access via Brindabella Street should not be permitted. As he put it: "the -- 14 of 21 -- 15 potential loss of service to local residents is outweighed by the potential adverse impacts on the amenity of the area." [34] Overall, the evidence of Mr Kumskov should be preferred to that of Professor Brannock. It appeared to pay more attention to the amenity issues, and that attention is demanded by the requirements of the Strategic Plan and the Town Plan, set out above. [35] Ms Rainey gave a written statement and oral evidence, about the likely impact on her residence, and family. Her concerns are genuine ones. They include safety issues, such as restriction on the view of a driver backing out of their driveway, if thee should be denser trees on the footpath. While her house is affected by noise from the main road, she quite reasonably believed that the additional traffic in Brindabella Street would have an additional, and unacceptable impact. [36] There is, therefore, a need to balance the competing considerations - convenience to some, detriment to the amenity of others, some improvement in traffic safety, and the degree of risk, if this second access is not allowed. The wise and flexible concept of amenity, should be kept in mind - a residents' subjective perception of a locality may be taken into account. The evidence shows that the Council reached the right conclusion. Allastar has not demonstrated that Condition No. 2 should be amended, to allow the second access. The town planning provisions emphasize the need to protect the amenity of the area surrounding the service station. They should prevail. -- 15 of 21 -- 16 Signalization [37] The Department of Main Roads has not sought a financial contribution for the future signalization of the intersection of the main road and Brindabella Street. The best that can be said is that signalization lies some 5-10 years in the future. The correspondence from Main Roads does not mention a contribution. Even after the Department of Main Roads became involved in the hearing, and represented by counsel, there was no further evidence on this question. It may be noted, as a matter of interest, that when an earlier possible development of this land was being considered in 1992, Queensland Transport sought a financial contribution on that occasion. [38] The power to seek a contribution comes from s. 40(1)(3) of the Transport Infrastructure Act. In this case, the approval of the Chief Executive was sought, and the Department had an opportunity to request compensation. [39] As there will be no access to Brindabella Street, then the service station will not generate further traffic at the intersection. [40] Section 3.5.30(1) of IPA provides that any condition must be: (a) relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or (b) be reasonably required in respect of the development … " [41] The evidence does not show that a condition requiring contribution would be relevant, or reasonably required. It follows that Condition No. 5 should be deleted. -- 16 of 21 -- 17 Roadworks [42] Conditions 6 and 7 deal with roadworks in the area of the Brindabella Street and main road intersection. As I understand the parties submissions, they are generally uncontentious, even without access to Brindabella Street. However, it may be that there should be no widening of the carriageway in Brindabella Street, as there is now no need (see Mr Viney's report). [43] In any case, the parties will have an opportunity to propose any agreed consequential amendments to Conditions 6 and 7. If there is no agreement, then the court will decide the final form of a condition. Main Roads Approval [44] Condition 9, which is in issue, requires Allastar to submit an "application for access approval" to Main Roads prior to commencement of building works. [45] It is understood that the parties are agreed, that s.52 of the Transport Infrastructure Act will require at least a formal application to Main Roads. There seems to be no need to vary that condition. (There is an interesting issue, about the power of Main Roads to continue a position which would be contrary to the present findings of this court. It would appear to be odd, if that could be done. However, it is not presently an issue, so there is no need to express a concluded view about it.) -- 17 of 21 -- 18 Conditions 37 and 41 - Noise [46] Opposition to Condition 37 was abandoned, during the appeal. The evidence also reveals that Condition 41 should remain - see Mr Kamst's report. Landscaping [47] Allastar's proposals about landscaping, developed by Mr O'Brien, are shown in Exhibit 4A. The controversial aspect of Condition 17 requires: "Advanced trees of a minimum container size of 25 litres with a minimum spacing of 5 metres from centres along the Brindabella Street and Redland Bay Road frontages and the northern and eastern boundaries of the site. " [48] Mr O'Brien thought that a literal reading of that condition would see continuous planting along the main road frontage (apart obviously, from the driveway entrance and exit) and that such foliage would obstruct the ability of passing motorists to see the garage, and to read information on the pylon sign, to be erected towards the eastern end of the service station. [49] On the other hand, Ms Rainey submitted that the condition should stand, to soften the views of the building, and that the tall pylon sign would be visible in any event. [50] Those competing considerations can be understood if one looks at Mr O'Brien's simulations of the appearance of the service station. See Exhibit 4B. -- 18 of 21 -- 19 [51] The evidence suggests that a compromise position might be the best. That is, Ms Rainey's concerns could see the proposed plantings remain along the frontage to the main road to the edge of the access road. The condition should also require similar planting on the eastern side of the exit road. That will allow Allastar to move the pylon sign if it wishes, to the rectangular island opposite the canopy. There should be no need for such high planting on that island. [52] In my opinion, the landscaping on the main road frontage should be done generally in accordance with Mr Kumskov's evidence at T.195-198. That describes a sensible balance between landscaping, as the Council wished, and the need of the service station to advertise prices on the pylon sign and the need for the motorists to have clear sight lines as they enter and leave. [53] Now that there will be no access road, attention should be paid to reworking the landscape plans for the western half of the site. It also seems that Mr Kumskov's evidence should be accepted, to the effect that landscaping on the northern boundary should be on the service station land, rather than being partly on the private property to the north. That will achieve the best chance of having the landscaping adequately maintained in the long term. It should also be possible to straighten the rear boundary, as he suggests. That should not be, at least for the moment, an order of this court, as it involves the exercise of a discretion to reduce the area of the private property to less than 5,000 square metres. That would seem to be the preferable course. If such a condition can be imposed, and the parties agree, then it can be reflected in the final orders. -- 19 of 21 -- 20 [54] (Paragraph 5.3 of Mr O'Brien's report should be kept in mind, where he deals with the apparently ambiguous impact of the expression "with a minimum of five metres from centres" in Condition 17. The condition should be re-worded to remove any ambiguity. In removing that ambiguity, it should be kept in mind that the preferred evidence is that of Mr Kumskov, rather than Mr O'Brien, with regard to the commercial visibility of the site.) Condition 19 [55] Condition 19 provides that: "Footpath treeplanting shall be provided in accordance with Council's Development Manual - ß All trees should have a minimum container size of 25 litres; ß Tree species shall be as approved by the Director of Development Health and Environment; ß … " [56] Paragraph 5.4 of Mr O'Brien's report explains that the practical consequence of that condition is to require the planting of an avenue of "major trees" along the main road. As Mr O'Brien explains, there are overhead powerlines in both Brindabella Street and the main road. While the choice of plantings can assist in avoiding the power lines in Brindabella Street (which is a minor road) the consequence of Council's Manual will require an unacceptably high trees in the main road. They will then have to be lopped to accommodate the power lines. They will also provide visual barriers to motorists looking for the entrance driveway. [57] There appears to be considerable force in those observations. They should be accepted. Condition 19 should be reworked, with regard to the footpath planting, to generally accord with Mr O'Brien's views. -- 20 of 21 -- 21 Orders [58] It is apparent that the appeal should be allowed, in part, consistently with these reasons. The parties should have an opportunity to settle the appropriate amended conditions. If there are any difficulties, the appeal can be re-listed, and the court will settle the conditions. -- 21 of 21 --