Burns Bridge Australia Pty Ltd v Council of the Shire of Noosa Respondent & Ors [1994] QPEC 81

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P&E Appeal No. 299 of 1994 BETWEEN: BURNS BRIDGE AUSTRALIA PTY LTD Appellant COUNCIL OF THE SHIRE OF NOOSA RESPONDENT Respondent THE DIRECTOR GENERAL, DEPARTMENT OF TRANSPORT Respondent by Election SCHRODERS AUSTRALIA PROPERTY MANAGEMENTS LIMITED REASONS FOR JUDGMENT - QUIRK DCJ Delivered the -.JS"-th day of November 1994 This appeal relates to an application to rezone land of an area of a little over nine hectares at Noosaville to a Special Facility Zoning to allow the development of an integrated shopping centre. The development (planned in stages} is intended to comprise a major structure in which shopping facilities of various types will be placed, large areas of on-site carparking and some discrete structures, one of which is to function as a service station. A point has been taken that, because of the inclusion of the service station in the proposal, it would offend the provisions -- 1 of 5 -- 2 1 of s.8.4 of the Local Government (Planning and Environment) Act. This somewhat awkwardly worded section provides: "8.4 Combined use of premises for service station and shop. (1) Subject ~o this section and despite anything in a planning scheme, premises in the planning scheme area are not to be used as a service station in combination with a specified use unless those premises are zoned for the exclusive use of- {a) a service station and a specified use; or (b) a service station, a specified use and a use associated with the service station or specified use in relation to the premises. (lA) The gross floor area used for the specified use must not b~ more than 10 square metres. (2) (a) ( i) ( ii) {b) subsection {1) does not prevent the use of any premises as a service station in combination with a specified use where - the use in question was an existing lawful use of the premises at the commencement of this Act; or approval for the use in question has been granted before the commencement of ~his ~ct and the use is effected in conformity with that approval. A use of any prem~ses that, by reason of paragraph (a), is not prevented. by subsection (1) is to be taken to constitute a lawful non-conforming use of the relevant premises under the planning scheme in force in the area in which the premises are situated. (3) In this section - "specified use" means any one of the following uses - (a) general store; (b) local store; (c) shop; {d) store." -- 2 of 5 -- 3 The section appears to say that land may only be used for a service station "in combination with" any of the uses specified in ( 3) (the "specified use") where the land upon which the proposal is intended is zoned "for the exclusive use" of the combination of those uses but in no case may the combination involve a "specified use" where it has a gross floor area in excess of 100 square metres. We are not favoured by the Act with any relevant definitions ( other than "premises") but for the purposes of this appeal it is agreed that the major part of the proposal would fall within the ambit of (3) and would be a "specified use". The gross floor arE!a of the shopping component of the proposal is vastly in excess of the maximum stipulated in l(a) and a decision here comes down to whether a proper understanding of the proposal would see the service station component as being "in combination with" the shopping component. While the appellant argued that the service station would operate quite independently from the shops, the contrary argument was that as an identified part of an integrated development with common use of access ways, driveways, carparking and the like, the service station could not be seen sensibly to be other than a use proposed n in combination" with other parts of the proposal. While one might strain to escape from a result which appears to be quite unsatisfactory, a construction of the section according to law cannot be avoided. The section is the successor of the more carefully worded section 33 (22B) of the Local ~overnment Act. While there are some important differences in the two provisions, the context in which the phrase "in -- 3 of 5 -- 4 combination with" appears is much the same. The earlier section contemplated a service station being "in combination with" (among other things) a drive-in shopping centre and a shopping centre. The section went on to make provision for this to occur with an appropriate zoning. The present section has omitted any reference to a drive-in shopping centre or a shopping centre and the introduced gross floor area limitation would appear to have necessitated this. However to suggest that this should lead to the phrase "in combination with" being given an entirely different meaning in the present section is, as I see it, to go too far. Counsel for the appel~ant argued with some conviction that it is difficult to imagine the legislature intending that a service station could never be part of a carefully planned and integrated commercial/retail facility where floor areas are well in excess of the stipulated maximum and that the section has been generally understood as a measure intended to control development where a service station and shopping are intended together as part of a single business enterprise. Town planning evidence which I have heard from time to time might lead one to suspect that he might be correct. Bearing in mind the provisions of S,14A of the Acts Interpretation Act, efforts were made to go to appropriate sources to attempt to find some indication of what intention the legislature might have had in enacting s. 8. 4 in its present form. However nothing particularly helpful resulted from these eff arts. If the section does not reflect legislative intent, it should be corrected but that is not within the province of this -- 4 of 5 -- 5 court. I see no justification for attributing to the phrase "in combination with" a meaning quite different to that which it clearly had in a very similar context in the repealed Act. Accordingly the service station must be seen as intended here "in combination with" a "specified use" which has a gross floor area well in excess of the prescribed maximum. Such a development would be contrary to law. I rule accordingly. -- 5 of 5 --