Fenbridge Pty Ltd v Council of the City of Gold Coast & Anor [1993] QPEC 96 [1994] Q.P.L.R. 239

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 36 of 1993 Before Quirk DCJ [Fenbridge P/L v. Gold Coast City Council] BETWEEN: BETWEEN: FENBRIDGE PTY. LTD. Appellant - and - COUNCIL OF THE CITY OF GOLD COAST - and - PEARLIZA PTY. LTD. Respondent Respondent by Election P & E Appeal No. 39 of 1993 PEARLIZA PTY. LTD. Appellant - and - COUNCIL OF THE CITY OF GOLD COAST - and - FENBRIDGE PTY. LTD Respondent Respondent by Election Judgment delivered: REASONS FOR JUDGMENT 17/12/1993 Catchwords: Counsel: D. Gore Q.C. with M. Hinson for the Appellant M. Racekmann for the Respondent J. Gallagher with D. Morzone for the Respondent by Election -- 1 of 19 -- Solicitors: Hearing Date(s): Hill and Taylor for the Appellant McDonald Balanda and Chesters for the Respondent Lees Marshall and Warnick for the Respondent by Election 29, 30 November 1993, 1-3 December 1993, and 6-8, 10 December 1993 -- 2 of 19 -- ! IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND BETWEEN: AND: AND: AND: BETWEEN: AND: AND: P & E Appeal No. 36 of 1993 FENBRIDGE PTY. LTD. Appellant COUNCIL OF THE CITY OF GOLD COAST Respondent PEARLIZA PTY. LTD. Respondent by Election P & E Appeal No. 39 of 1993 PEARLIZA PTY. LTD. Appellant COUNCIL OF THE CITY OF GOLD COAST Respondent FENBRIDGE PTY. LTD Respondent by Election REASONS FOR JUDGMENT - QUIRK D.C.J. Delivered the day of December 1993 The decision of the respondent planning authority which gave rise to these appeals was to conditionally approve an application for town planning consent to the use of land at Labrador for "tavern, special use {T.A.B.) caretaker's residence and group housing development. Appeal No. 39 of 1993 was by the applicant {Pearliza) and was against the imposition of certain conditions attached to the approval. The matters in dispute in this appeal have now been -- 3 of 19 -- 3 resolved and I have been provided with the terms upon which the parties have reached agreement in respect of those matters. The other appeal (No. 36 of 1993) by an objector {Fenbridge) which is constructing a new tavern complex some distance to the south of the subject land and it is this appeal against the application's approval that remains to be determined. The site of the tavern proposed by Pearliza is at the north east corner of the intersection of MacMillan Street and Olsen Avenue where it occupies an area of 10,402 square metres. The land which is presently undeveloped (apart from a low set brick dwelling which is intended for demolition) has a frontage of 91 metres to Olsen Avenue and 106 metres to MacMillan Street. Olsen Avenue is a four lane median divided road which carries a heavy volume of traffic and is part of the Gold Coast City's arterial road system. MacMillan Street is a residential street in which the volume of traffic is comparatively low. To the east of Olsen Avenue and to the south of Central Street (which intersects with it to the north of the subject land) development has been mainly for residential purposes. Immediately to the north of the subject land there is a newly established group housing estate and immediately to the east and to the south of MacMillan Street there is residential development of good quality and recent origin in which duplex dwellings predominate. On the opposite side of Olsen Avenue there is a large area of open space to the north of which development is largely residential although, fronting Olsen Avenue, there is a medical centre and, further to the north, a chiropractor and real estate office. -- 4 of 19 -- 4 In the current Town Planning Scheme the subject land, together with most other land to the east of Olsen Avenue is zoned Residential B. On the north east corner of Olsen Avenue and Central Street there is an area of local shopping (Parkwood Plaza) which is appropriately zoned. On the western side of Olsen Avenue residential development north of the area of open space (which is set aside for flood retardation) is included in the Residential A Zone. A tavern (which is included in the definition "hotel") and the other uses proposed are discretionary uses in the Residential B Zone. In the current Strategic Plan the subject land is in an area in which the preferred dominant land use is shown as being "urban". A proposed new Town Planning Scheme has been publicly exhibited and submitted to the Department following consideration of objections. Gazettal is anticipated in the near future. In /t the proposed Scheme, land in this area which was formerly zoned Residential Bis included in the Residential-Duplex Dwelling Zone. A hotel (which includes a tavern) is a prohibited use in that zone. The proposed Strategic Plan is the subject land in an area designated "Semi-detached housing" in which the preferred dominant land use is duplex dwellings situated on suburban allotments. After objections were received following public exhibition of the draft Town Planning Scheme, the Planning Authority was concerned that some confusion had been experienced by the community in reconciling the preferred dominant land use designations in the draft Strategic Plan with the various zones -- 5 of 19 -- 5 proposed in the Scheme proper. It was resolved to make a representation to the Governor in council that, inter alia, the draft Town Plan be amended to create a linkage between the strategic Plan designation (semi-detached housing) and the Residential-Duplex Dwelling zone. In the proposal put before the Court, the tavern comprises a single storey structure of gross floor area of 1112 square metres with 312 square metres of "covered verandahs and drive- through". On the eastern part of the site, a group housing development of 7 dwelling units is intended. It is stated that the tavern is intended to be a neighbourhood facility with the emphasis on the attraction of family patronage. With this in mind, the proposal as originally submitted has been amended by a reduction in floor area of something in the order of 300 square metres; a reduction in the size of the TAB area from 78 square metres to 38 square metres; a reduction in the area of the drive- in bottle shop by 110 square metres; deletion of the public bar area, the garden lounge and caretaker's residence and an increase in the depth of landscaping at the northern boundary. Vehicular access will be only to Olsen Avenue and extensive landscaping is proposed. The details of this were explained in the evidence of Mr. Jones, an experienced landscape architect. There was a body of objection to the application and some surrounding residents who had objected were called to give the Court the benefit of their views on the proposal. The respondent's town planning officer, who made an assessment of the application and recommended its refusal, appeared to attach considerable importance to the provisions of the draft Town -- 6 of 19 -- 6 Planning Scheme whereby the proposal (in so far as it involved a tavern) would be a prohibited use in the Residential-Duplex Dwelling Zone. However, after a consideration of his report and further submissions from the applicant ( including submissions from its town planning consultant), the respondent planning authority resolved to approve the application conditionally. In the course of the hearing of the appeal, a number of issues were raised. All of these related to that part of the proposal which involved the tavern. The question of need was considered in the evidence of three consultants, each of whom has considerable experience in the hospitality industry (particularly in the assessment of the community need for licensed premises in a given area). In the evidence of these three witnesses and in material placed before the Court, full details of existing licensed facilities in this part of the Gold Coast and those not yet [· operating but in respect of which necessary approvals are in place were given. Attempts were made to identify appropriate catchment areas for these facilities and of the proposal under consideration. Messrs. Kleineberg and Norling, who were called by Fenbridge, reached a conclusion that the community's interests did not require the provision of further facilities of the kind which would be offered by this proposal, while Mr. Hegyi (called by Pearliza), who placed particular emphasis on the proposal's intended role as a relatively small neighbourhood facility, expressed a contrary view. -- 7 of 19 -- 7 It must be remembered that this is an application for town planning consent and not for a rezoning. The relevance of "need" in a case of this kind has been explained in this Court in the past (W.H. Bowden Pty. Ltd. v. Pine Rivers Shire Council (1986) Q.P.L.R. 268, Theodorou v. Redland Shire Council (1987) Q.P.L.R. 11) . The statutory authority responsible for the issuing of licences has determined that there is a demonstrated need for one here, and while not necessarily determinative in a matter before this Court, this is not a matter that can be regarded lightly. (Bell v. B.c.c. (1982) Q.P.L.R. 375, Power Hotels Pty. Ltd. v. B.c.c. (1984) Q.P.L.R. 188). On the other hand, while it is obvious that wherever one places a tavern, access to its facilities would be made easier for some, it does not seem, on the evidence given in this appeal, that there is any dearth of licensed premises in this part of the city. It was accepted by Counsel for Pearliza that this was not a case where we were dealing with a serious deficiency in the satisfaction of community interests such as would justify the granting of town planning consent where otherwise such consent would not be warranted. On that note, I believe that the question of need can be put to one side. In the matter of traffic engineering, I had the benefit of the views of two experienced consultants, Mr. Beard (called by Fenbridge) and Mr. Eppell (by Pearliza). Mr. Beard identified a number of areas in which he believed the proposal would give rise to difficulties in a traffic engineering sense. These related to the status of Olsen Road as an arterial road and the -- 8 of 19 -- 8 absence of any median break at the Macmillan street intersection. The result is that "remote U turns" would be required both at the Central Street and Stephenson Street ( further to the south) intersection by persons arriving from the south and departing to the north. Mr. Beard recognised that works which are intended to upgrade the Central Street intersection and to increase pavement width would satisfactorily reduce the level of hazard facing the U-turners at that intersection which is signalised. The difficulties at Stephenson street {which is not controlled) would remain, particularly for other motorists attempting to make a right turn from that street into Olsen Avenue. Mr. Beard was also concerned that the site's location on an arterial road would give it a potential to attract passing custom {particularly in relation to "packaged sales") to an extent beyond that presently envisaged by Pearliza. He added that the difficulties for "destination" traffic in gaining convenient access to the site would detract from its appeal as a neighbourhood tavern. The unsignalised turning manoeuvres on and off the arterial road, while not a serious problem with a minor commercial use, could pose difficulties if the site began to attract higher levels of passing traffic. The difficulties for patrons created by the necessity and inconvenience of remote u-turns would, in Mr. Beard's opinion, encourage on-street parking in both Olsen Avenue (on the western side) and Macmillan street. Mr. Beard was particularly concerned at the possibility of uncontrolled pedestrian movement from the western side of Olsen Avenue across the arterial road and was prepared to say that this highlighted the unsuitability of this -- 9 of 19 -- 9 location for a tavern and in itself m1.'ght J·ust1.'fy th f 1 f ere usa o the application. He conceded that other matters to which he had made reference, taken in isolation, might not warrant the application's rejection, but having regard to his concerns considered cumulatively, the proposal was not one which he was prepared to support. I listened carefully to the evidence of Mr. Eppell on these matters but was left with the view that Mr. Beard's concerns were not satisfactorily explained away. The suggestions that the J problem of pedestrian movement across the arterial road would be overcome by the presence of the signalised intersection at Central Street and that the difficulties for right-turners from Stephenson Street will, in any event, become more difficult because of traffic volume increases were not particularly J comforting. I have concluded, on the evidence given in the appeal, that traffic issues should not be determined in favour of Pearliza. The matter of major importance in this appeal was that of town planning. Mr. Challenor (the town planning consultant of Fenbridge) saw the proposal as being in conflict with both the existing and proposed Town Planning Schemes. Mr. Daniel, the Council's planning officer who had recommended against the proposal, adhered in evidence to his opposition to it which was based on a perceived conflict with the proposed scheme. Mr. Parker (Pearliza's consultant) and Mrs. Campbell (called by the respondent Planning Authority) were prepared to support the proposal on the basis that it was not contrary to either the -- 10 of 19 -- 10 exi st ing or proposed schemes and that evidence indicated that its impact upon adjoining residential amenity was not such as to call for its rejection. A close examination of th e current and proposed Town Planning Schemes is therefore called for. In the existing scheme, as mentioned, the proposal is a discretionary use in the Residential B Zone. In relation to the "urban" designation, the Strategic Plan states that: "The term urban is used to indicate that the area is not only confined to residential uses but will include those other uses which service the residential area and are normally found as an integral part of such an area". Accordingly, one must proceed on the basis that, in appropriate circumstances, the scheme envisages that a use of the kind here intended may be permitted to establish in the Residental B zone. In Division IX, Clause 40, the scheme sets out specific performance standards for hotel development which, inter alia, call for a minimum site area of 1 hectare (the area to be used for tavern purposes here is a little over .75 hectare). There is however an opportunity to relax this requirement where such: "Dispensation is justified having regard to - (i) the existing development in the area (ii) the existing and proposed amenity of the area (iii)the level of the subject land in relation to the levels of other land in the area". In the current Strategic Plan in Part A Clause 3(4) where the relevant "urban area objectives" are found, considerable emphasis is placed on the preservation of residential amenity; the need for any other permissible use to be complementary to and compatible with residential use and the prevention of unwarranted commercial intrusion into residential areas. -- 11 of 19 -- J 11 On my reading of it, it would appear that controls to prevent the intrusion of non-residential uses into residential areas have been tightened in the proposed Town Planning Scheme. In relation to this appeal, it is of course relevant to note that "hotel" development is prohibited in the Residential-Duplex Dwelling Zone. The statement of intent of that zone is that: "A restricted range of non-residential development is included in Column 3 of the Table of Development. such development is limited to that which provides a service to the residents of the area which will only be approved if it can be shown that a local need exists and that it is complementary to and compatible with the residential development in the surrounding area. In this regard any permissible development which does not provide a direct service to the surrounding residential area or is likely to conflict with the residential development or may be reasonably located elsewhere will not be permitted to establish in these areas. In order to preserve residential amenity, permissible development should be situated in locations which offer good accessibility and minimal impact upon residential amenity." Whether the provisions of the draft Strategic Plan take the matter with which we are concerned any further is debatable. Mr. ·, Challenor and Mr. Daniel were criticised for what was said to be .l a misunderstanding of the "linkage" provisions (the subject of Council resolution following public exhibition), but it would not seems to me to be particularly profitable to be distracted by an exercise in interpretation of that resolution the meaning of which is, admittedly, not entirely clear. As far as this land is concerned, a linkage between the Residential-Duplex Dwelling zone and the strategic Plan designation "semi-detached housing" both of which apply to the land is evident without any need to go to the resolution. Pearliza sought to come to grips with the apparent conflict with the proposed Town Planning Scheme by arguing that an -- 12 of 19 -- 12 approval in this case would not offend the "non-derogation" principle (Coty Pty. Ltd. v. Sydney City Council (1957) 2 L.G.R.A. 117; ~.c.c. v. Hollingsworth (1985} 62 L.G.R.A. 319} in that it would not "render more difficult the ultimate decision as to the form the scheme should take or the implementation of the scheme if gazetted in its draft form". It was said that importance should be attached to the fact that the area was already largely developed. I have some difficulty with this argument. If one accepts that the draft Town Planning Scheme has placed considerable importance upon the preservation of residential amenity in a particular area, any approval that might threaten the attainment of those objectives in that area would, it seems to me, pose problems for the integrity of the scheme whether or not residential development had established in the area. It is not a point that needs to be laboured in this case but it cannot be overlooked that a Town Planning Scheme is intended to promote community confidence and to provide security not only to those who develop land for the first time but also to those who might want to redevelop or acquire land in an already developed condition. I find it difficult to understand how a town planning approval which might lead to a negative impact on an area's amenity could assist in the future implementation of a scheme which has, as one of its major goals, the preservation of that amenity. Fundamentally, however, it must be recognised that whatever one makes of the "non-derogation" principle, in a case of this kind where a discretion to grant town planning consent must be -- 13 of 19 -- 13 exercised, it would be inappropr 1• ate t f o re use a particular application simply because a proposed planning scheme has identified the intended use as a prohibited use without a proper consideration of the merits of the matter and the town planning justification for prohibiting that use. In dealing with this appeal, it seems to me that the proper approach is to see the proposed Town Planning Scheme as underlining the importance of residential amenity and its preservation and to make an assessment of the proposal on that understanding. The area in which the subject land is found, bounded by Central Street and Olsen Avenue and MacMillan Street is virtually entirely residential. Mr. Parker and Mrs. Campbell sought to identify what they termed a "loose commercial node" constituted by the non-residential development on the opposite side of Olsen Avenue and north of Central Street. However, I accept Mr. Challenor's view that this development has little impact on what he described as the "residential pocket" in which the subject land is located. Some reference was made to the detriment to amenity posed by the traffic volumes in Olsen Avenue. However, as Mr . Challenor pointed out this is not a matter which should be seen as justifying a departure from residential use of the subject land. The land immediately to the north has been developed residentially in what appears to be an attractive and satisfactory manner and the current Strategic Plan, in Clause 3(4)(b)(iii) recognises that: "The fact that a major road frontage may detract from the residential amenity of the area should not be sufficient reason to allow non-residential uses to proliferate along major roads." -- 14 of 19 -- 14 On the basis that the proposal is intended as a neighbourhood family tavern ( and I accept the evidence of Mr Bate, one of Pearliza's principals, that it is) it would seem to qualify as providing a service to the residents of the area. It is not disqualified in that respect simply because it might, on occasions, attract patronage from beyond that immediate area. The important question appears to be whether it has been demonstrated that an approval of this application would not, on the balance of probabilities, lead to incompatibility with the residential amenity of the surrounding area. As taverns go, the proposal is admittedly not relatively large. It presents an attractive appearance and the efforts of Mr Jones, the landscape architect, cannot be criticised. However even if one accepts that all reasonable steps have been taken to ameliorate problems associated with the physical appearance of the development, it clearly retains, in respect of its scale, the distribution and form of its structures and the provision of on site car parking, the attributes of a non residential use. Further, as was stressed in evidence given in the appeal, experience has shown that potential problems for residential amenity are inevitably associated with premises licensed to sell liquor. The chances of noise associated with high spirits, unruly behaviour and loud and disturbing vehicle movements are just some examples of this. The major difficulty with these disruptive matters is that they are rarely predictable and often beyond effective control by management. I appreciate that such matters as noise from entertainment are subject to regulation and control by the licensing authority ' -- 15 of 19 -- 15 and that measures can be adopted in the des· d t t·ign an cons rue ion of the building to contain noise created within it. However, such measures have little effect in regard to the activity of patrons outside the building and in the carparking area. Here the opportunity to control loud noises created spontaneously and those associated with vehicle movements is necessarily limited. The late hour at which such occurrences might be expected is an added difficulty. In relation to likely noise problems I had the benefit of the evidence of two experienced experts in this field who made considered predictions as to likely noise levels from the proposed tavern. Mr Kamst (called by Fenbridge) was of opinion that having regard to the relative positions of the proposed tavern and surrounding residences, significant noise impact upon those residences could be anticipated. Mr Winders (the consultant of Pearliza) was satisfied that the proposal could operate without unreasonable impairment of residential amenity. The differing assumptions which led to these conflicting views can be found in the reports and in the evidence of these. expert witnesses. However aside from matters such as the appropriate tonal penalties to be attributed to particular noise sources and the likely background levels having regard to Olsen Avenue traffic and the effect of screen fencing, it seemed to me that the essential difference in the competing points of view was that a conservative approach was adopted by Mr Kamst and that Mr Winders was more optimistic in his approach appearing a little too ready to place confidence in the ability of management to control noise sources external to the building. In the -- 16 of 19 -- 16 circumstances of this appeal, the conservative approach is the one which I prefer. It seem to be recognised by Pearliza's witnesses that the acceptability of the proposal depended in no small way upon its role as a relatively small, neighbourhood tavern intended principally to meet the needs of residents of the area. social drinking on a large scale and a substamtial trade in "packaged liquor" was not envisaged. Mr Hegyi was at pains to explain that this was the way in which the proposal had been assembled and that, as such, it would operate satisfactorily. Mr Bate, whose evidence was given in a forthright manner, was prepared to accept conditions limiting the proposal to the form of development as shown on the plans put before the Court and with certain specific restrictions upon hours of operation. I emphasise that I make my assessment of the proposal on the basis of those limitations and upon the assumption that it will be operated without the need for any further town planning or licensing authority approval. An approval however once granted, would endure beyond the ownership and control of Pearliza if and when that occurred and such a change is something that cannot, in a town planning assessment of a proposal, be ignored. On the evidence given in the appeal it would seem quite possible that changes in the mode of operation of the tavern could be dictated by the commercial realities of the marketplace and that such changes could be achieved within the framework of existing approvals. As an example, the attractions of an arterial road location might prove irresistible to an operator who favoured a change in pricing \ -- 17 of 19 -- 17 strategy to attract a far greater level of package liquor sales. Increased traffic movements on to, through and off the site would be inevitable. A change in mode of operation of the tavern itself could easily result in a clientele quite different to the intended local family groups. Behaviour problems not presently envisaged could not be ruled out. These possibilities together with the need for the high level of circumspection regarding potential amenity problems which appears to me to be dictated by the existing and proposed planning schemes favour, in my judgment, the more conservative assessments of Messrs Challenor, Beard and Kamst. A number of residents of the immediate area gave evidence in opposition to the proposal. Their concerns for the protection of their residential amenity were expressed with conviction. They were clear in their evidence that the proposal {because of the very nature of a development of this kind) on the subject land would not be welcome. In this context it is perhaps of advantage to remember what was said by the Full Court in Broad v B.C.C {1986) 2 Qd.R 317 at 320: "The wide ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect that can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce". I have concluded that the respondent's existing town planning scheme, reinforced by its proposed scheme, would justify an expectation by residents of the area that in respect of this -- 18 of 19 -- 18 site, an application for Town Planning consent of this kind would be unlikely to receive favourable consideration. For the reasons which I have outlined, I find on the evidence given in the appeal that the onus of showing that the application should be approved has not been discharged. It seems to me that the appropriate order is that in Appeal No. 36 of 1993 the appeal by Fenbridge Pty. Ltd. is allowed and the Application for Town Planning Consent is refused. -- 19 of 19 --