Debernardi & Vertex Bianca Nominees Pty Ltd v Gold Coast City Council & Anor [1993] QPEC 86 [1994] QPLR 168

I l~ttv ._ vt::J/ V lS le . State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT JUDGE O'SULLIVAN / P&E No 314 of 1992 ROBERT DEBERNARDI and VERTEX BIANCA NOMINEES PTY LTD· and GOLD COAST CITY COUNCIL and LEWIAC PTY LTD BRISBANE .. DATE 11 /11 /93 JUDGMENT 1 rcr-····· .. ,,-, ,.... D REVISED V •\,~-- ,;;.j,.''::- State Aeport:"ig Curc,:·.1 ,Date 221 l/ ,q3 Appellants Respondent Respondent by Election .Jt/1 'Flnnr. The 1.:m· rnrrrt<.. r.<'oro,. ,,,.,.,.,_ Rri<:hfln,. n .Jnnr, T,.f,.nl,nnp• ({)71 -,-,7 J'U,n r,,,, •.,;milr>• 11171 "' 7 i;-,n, -- 1 of 32 -- 111193 RDT (O'Sullivan DCJ) HER HONOUR: In this matter the appeal is dismissed. I publish my reasons. HER HONOUR: The formal order I will make is that the appeal is dismissed and that the matter is adjourned to a date to be fixed. JUDGMENT 2 10 20 ( 30 40 ( C 50 60 -- 2 of 32 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE i QUEENSLAND J P&E No. 314 of 1992 Before O'Sullivan DCJ [Re: ] DEBERNARDI AND VERTEX BIANCA NOMINEES v. GOLD COAST CITY COUNCIL AND ANOTHER ROBERT DEBERNARDI AND VERTEX BIANCA NOMINEES P/L (APPELLANTS) Catchwords: Counsel: Solicitors: Hearing Date(s): Judgment delivered: -and- GOLD COAST CITY COUNCIL (RESPONDENT) -and- LEWIAC PTY LTD (RESPONDENT BY ELECTION) Applicant appeal; refusal of re-zoning from Special Facilities (Waterfront industry, Commercial Premises etc) to Special Facililties (Tavern & Liquor Barn) Zone; Proposed tavern and restaurant; Conflict with Strategic Plan; Commercial intrusion; Amenity; Consolidation of commercial facilities; Conflict with Draft Strategic Plan; Traffic; Noise; Need for proposed development Mr S. Ure (Appellant) Mr M. Rackemann (Respondent) Mr T. Trotter (Respondent by Election) King and Company (Appellant) McDonald Balanda & Chesters (Respondent) Clarke & Kann (Respondent by Election) 23,24,27,28,29,30 September 1993 1 October 1993 11 November 1993 I V(jc:, -- 3 of 32 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 314 of 1992 BETWEEN: ROBERT DEBERNARDI AND VERTEX BIANCO NOMINEES PTY. LTD. Appellant GOLD COAST CITY COUNCIL Respondent AND: LEDA HOLDINGS PTY. LIMITED First Respondent by Election AND: LEWIAC PTY. LTD. Second Respondent by Election - REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. Delivered the 11th day of November 1993 This is an appeal against the refusal of an Application to rezone land containing 5599 square metres described as Lot 2 on RP 110992, Lot 3 on RP 183795, Lot 20 on WD 5809 Parish of Barrow County of Ward and located at 95 Brisbane Road, Biggera Waters ("the land") from the Special Facilities (Waterfront Industry, Vehicle Sales Premises, Commercial Services, Shops, Restaurant and Commercial Premises) Zone to the Special Facilities (Tavern and Liquor Barn) Zone. -- 4 of 32 -- 2 The First Respondent by Election filed a Notice of Withdrawal on the 13 September 1993. The Second Respondent by Election will be referred to as "the Respondent by Election" in these Reasons. The land is bounded by Brisbane Road, Cabarita Street (also called Babbidge Street), Arthur Street and (partly) Biggera Creek. The proposed development is for a tavern with a gross floor area of 1114m2, surrounded by 74 car parks and landscaping, as shown on Site Plan TP3 ("the proposal"). The proposed floor plan shows a restaurant of 238m 2 , club bar of 52m 2 , lounge bar of 111m 21 cellar of 150m 21 and verandahs around part of the building. Advertising: Counsel for the Respondent by Election submitted that the proposal ought to be re-advertised. He referred to the evidence of a number of witnesses, principally in Affidavit form, concerning differences between the proposal and the development which had been advertised. He referred to Kidd v. Brisbane City Council (1984) QPLR 34, 39 and North v. Council of the City of Ipswich 30 LGRA 267, 271 . He submitted that the test to be applied to the issue of whether the proposal needs to be re- advertised is whether the amendments amount to a substantially different development or a materially different development. -- 5 of 32 -- 3 Counsel for the Respondent referred to North (supra}; Matus & Anor. v. Cairns City Council (1981) QPLR 106, 108; Belsham v Brisbane City Council ( 1989) Planner 203, 204 and Fischer v Brisbane City Council (1978-80) 38 LGRA 140, 143. I have read the various affidavits which have been filed, and perused the transcript of the oral evidence given by the respective witnesses, which outline in some detail the differences between the proposal and the development which was advertised. I consider that the differences "reduced rather than introduced factors which may interfere with residential amenity" (North (supra)}. I consider that the proposal does not "introduce a new or enlarged factor which may cause interference or additional interference with residential amenity" (North (supra)) . I adopt the test outlined in Belsham (supra) namely: "Whether it is a substantially different application to such a degree that a new town planning application is needed." While there are differences, they are not of such a degree that a new town planning application is needed. I also adopt the approach set out in Matus (supra): "In considering the nature of a proposed amendment or variation, the nature of the proposal ought to be looked at broadly and fairly for the purposes of determining whether the amendment or variation is of such consequence that public notice should be given thereof." Looking at the nature of the proposal broadly -- 6 of 32 -- 4 and fairly, I consider that the differences are not of such consequence that public notice should be given. I find that the proposal does not need to be re-advertised. The issues in the Appeal are traffic, whether the proposal is contrary to the existing and draft Town Planning Schemes, weight of public objection, amenity, need, availability of suitably zoned land, car parking, traffic, in-adequate landscaping and unacceptable noise impacts. Objections: Fourteen letters of objection and two petitions with approximately 120 signatures were lodged with the Respondent. Miss Vigar, the Town Planner who gave evidence on behalf of the Respondent by Election, provided an Objectors Map. This shows that there was high level of objection in the residential areas close to the land and especially residents in Cabari ta and Clifton Streets. Current Town Planning Scheme: Since June 1989 the land has been in the Special Facilities (Waterfront Industry, Vehicle Sales Premises, Commercial Services, Shops, Restaurant and Commercial Premises) in the Respondent's Town Planning Scheme ("the Scheme"). -- 7 of 32 -- 5 Under the current Town Planning Scheme ("the Scheme"), a hotel is a consent use in the Residential "A", Residential "B" and Residential "C" Zones. The Scheme does not stipulate performance criteria for hotels in the Special Facilities Zone. The Scheme stipulates performance criteria for hotels in residential Zones, which include the requirement that the site be at least 1 hectare. Current Strategic Plan: The land is included in the "Urban Areas" Designation in the current Strategic Plan ("the Plan"). Objective 4(b) of that Designation includes the following: "(i) Any uses in the urban area are those which are complementary to and compatible with residential use" (iii) There is no unwarranted commercial intrusion into residential areas. Commercial uses with traffic generating noise appearance can have residential amenity. the attendant car-parking, nuisance and non residential a detrimental effect on There will frequently be applications for the establishment of commercial uses such as restaurants in residential areas along the Highway and other main roads as these locations provide the exposure required for these uses. Careful consideration in terms of the effects of ribbon development and the effect the use may have on adjoining residential development should be given to any such proposal. Wherever possible the integrity of residential areas should be maintained and commercial uses should not be allowed to intrude into the area. 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. (iv) Residential amenity is preserved or enhanced. -- 8 of 32 -- 6 (v) The traffic generated by particular uses does not create an intrusion into residential areas. Where other than residential uses are established in predominantly residential areas they should be so located that access to the site may be gained along principle (sic.) roads without creating or encouraging undesirable traffic flows along minor residential roads." Mr Grummitt the Town Planner who gave evidence on behalf of the appellants, considered that the proposal is for a neighbourhood tavern because. its focus is to provide a facility for the residents in the neighbourhood and therefore it is "complementary to and compatible with residential use". I do not agree that this follows as a matter of logic but in any event the conclusion cannot be upheld because (as I outline later) the proposal is not a neighbourhood tavern by virtue of its probable catchment. The proposal is not complementary to residential use. For the reasons I later canvass concerning amenity, the proposal is not compatible with residential use. The proposal conflicts with Objective 4(b)(i) of the Plan. Mr Grummitt considered that there is no unwarranted commercial intrusion into residential areas for a number of reasons. First, as the land does not actually physically abut residential areas then it is not an intrusion into them. I do not accept this, because it places too little weight on the concept of amenity, and a recognition that potential impacts go beyond the physical boundaries of the land. I consider that he, like many other witnesses who gave evidence on behalf of the Appellants, placed too much weight on the fact that the land is a discrete parcel. Secondly, he considered that as the land is currently commercial -- 9 of 32 -- 7 there cannot be an intrusion into residential areas. I do not accept this because it places too much weight on the past uses on the land (commercial and industrial type activities) and the current approval, and too little weight on the proposal and an assessment as to whether it intrudes. Thirdly, he considered that as the proposal is not occupying any more space than is currently zoned for commercial uses, there is no commercial intrusion. I do not accept this as it places too little weight on the concept of amenity, which is broader than the space taken up by the proposal. Fourthly, there is no intrusion as the proposal does not introduce a commercial activity. I do not accept this as I consider the proposal is a commercial activity. Fifthly, the proposal is not in a residential area and thus cannot be a commercial intrusion into a residential area. I do not accept this as it fails to recognize the amenity impacts of the proposal. In construing Objective 4(b)(iii) of the Plan regard must be had to the statement contained in the last sentence thereof 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". I consider that Mr Grummi tt gave too little weight to this statement. I find that the proposal by virtue of its nature, hours of operation, uses and associated traffic is an unwarranted commercial intrusion into residential areas and thus is in conflict with Objective 4 (b) (iii) of the Plan. -- 10 of 32 -- 8 The witnesses for the Appellants contended that residential amenity will be preserved or enhanced by the proposal. The witnesses for the Respondent and the Respondent by Election considered it will not, for a number of reasons including noise impacts, character of the proposal, inadequate car parking and inadequate landscaping. I propose to deal with the question of noise under the "Noise" heading, and the question of car parking under the "Traffic" heading. I turn now to character of the proposal and inadequate landscaping. Character of the proposal: I consider that the proposed tavern is domestic in form and style, but commercial in character and size. I accept the evidence of Mr Robinson, the Architect who gave evidence on behalf of the Respondent by Election, that the proposal is "a commercial scale building in the middle of a whole series of car parks". I consider that from the Gold Coast Highway the appearance of the proposal will be that of car parks in front of a large building. For the residents in the area to the north of the land, their view will be of landscaping. I accept the evidence of Mr Robinson, that the proposal has considerable bulk which is incompatible with the residential areas, and the scale does not respect the residential amenity of -- 11 of 32 -- 9 the area. I also accept his evidence that the proposal is not in character with other residential buildings in the area. It is "merely a commercial scale building with a pastiche Queensland front on it". Amenity: The proposal conflicts with Objective 4 (b) (iv) of the Plan by virtue of the matters I have discussed concerning the character of the proposal, and its noise impacts, which I will discuss under the "Noise" heading. I propose to deal with Objective 4 (b) (v) of the Plan under the "Traffic" heading. I consider that the proposal will not maintain the amenity and low density character of detached housing areas in line with the expectations of residents. Landscaping: The Scheme does not provide for landscaping provisions for the Special Facilities Zone. Miss Vigar considered that the appropriate course was for the proposal to comply with s. 4.19(2) of the draft Scheme, namely, 6 metres of landscaping on all street frontages. Mr Grummitt considered that if that were so, relaxation ought to be given because there ought to be a "trade off" between the extra landscaping ( 9. 5 metres in lieu of 6 -- 12 of 32 -- 10 metres) provided at the rear of the land; but his view was that, in any event the appropriate landscaping is that required for Commercial Zones, namely, 2 metres. I accept the evidence of Miss Vigar that because of the proximity of the land to residential areas, the appropriate requirement is that contained ins 4.10 of the draft Scheme. There is thus a shortfall, and I am not persuaded on the evidence that relaxation would be granted but I do not consider that this deficiency will impact on the amenity of the area to such an extent as would of itself justify refusal of the Application. Objective 4(2): The Respondent and the Respondent by Election raised the issue of the failure of the proposal to meet Objective 4(2) of the Plan (consolidation of commercial facilities). Objective 4 (2) concerns the development of an infrastructure of neighbourhood and local shopping facilities to meet the convenience needs of the people. I accept the evidence of Mr Bell, the Town Planner who gave evidence on behalf of the Respondent, that to locate the proposal on the land divorced from the existing local centres or the proposed Harbour Town Regional Centre would only serve to fragment rather than to consolidate upon the existing and planned commercial hierarchy. He noted that the existing local centre at Babbidge Street has land available immediately adjoining it. He also noted that the proposal does not reinforce the existing pattern of local centres -- 13 of 32 -- 11 and duplicates a liquor retail outlet already existing at the Babbidge Street centre. Mr Grummitt considered that as the proposal is a neighbourhood tavern then it should be in close proximity to its neighbourhood and thus not consolidated with commercial facilities, or located in a commercial area of regional or district significance. In view of my finding that the proposal is not a neighbourhood tavern, I do not accept this evidence. He considered that there is no suitably zoned land because regard must be had to the target neighbourhood which precludes the proposal being located elsewhere. In view of my finding that the proposal is not a neighbourhood tavern, I do not accept this evidence. As I do not accept the evidence that the patrons will be predominantly walking to the proposal, but will be driving, there is little difference between the location of the proposal on the land and its location in other suitably zoned land where it can consolidate in the manner contemplated by the Respondent's planning documents. The proposal conflicts with Objective 4 (2) of the Plan. Draft Town Planning Scheme: -- 14 of 32 -- 12 The Draft Town Planning Scheme ( "the Draft Scheme") has been advertised, and may be gazetted in 1993. Mr Grummitt considered that the proposal conforms with the development criteria nominated in section 1 2. 7 of the Draft Scheme. Miss Vigar agreed, with the exception of landscaping. In the Table of Development for the Local Shopping Zone permissible development includes a hotel "where the total floor area available for public use as part of any bar, lounge or 2 II dining area does not exceed 75m • Draft Strategic Plan: The land is included in the "Detached Housing" Preferred Dominant Land Use Designation in the Draft Strategic Plan ( "the Draft Plan"). It is on the edge of that Designation, a factor which was acknowledged as relevant by Miss Vigar. In the Table of Zones in the Draft Plan hotels are prohibited development in the Residential Dwelling House, Residential Duplex Dwelling, Residential Townhouse and Residential Multi-Unit Zones. In view of the advanced stage of the Draft Plan in its path towards gazettal, weight ought to be given to it, particularly in view of the evidence that it is cadastrally based and is the result of a great deal of public consultation. -- 15 of 32 -- 1 3 Mr Grummitt was of the view that the "Detached Housing" Designation is inappropriate and in error. He considered that the land is not suitable for detached housing because of its poor amenity, principally because of its exposure to the noise of the Gold Coast Highway. I do not accept the evidence that the location of industrial and commercial and retail uses on land across the Gold Coast Highway indicates the poor amenity value of the land. There are relevant differences between land on the opposite sides of the Gold Coast Highway. I prefer the evidence of Mr Robinson, Mr Bell and Miss Vigar, all of whom considered that the land could be used for cluster housing or townhouses. I accept their evidence that, with suitable buffering and landscaping onto the Gold Coast Highway, the land can be used for detached housing. The Draft Plan includes the following: "The maintenance of residential amenity is a major priority for the Council in relation to detached housing areas ..... Other development may include cluster housing, integrated housing and aged persons accommodation subject to such development being at a scale and density compatible with detached housing. A very limited range of non-residential development which is either ancillary to residential development or directly serves the convenience needs of the local neighbourhood may also be appropriate in some locations. -- 16 of 32 -- 14 To maintain the amenity and low density character of detached housing areas in line with the expectations of residents. In order to maintain a high level of residential amenity and a detached housing character, the Council will only favour proposals for development which are complementary to and compatible with dwelling houses. The provisions of the Planning Scheme relating to site coverage, development density, building height, on-site open space, car parking and landscaping will set standards for all development which further ensure the maintenance of amenity and character .... " I consider that Mr Grummitt gave too little weight to the statement concerning non-residential development, especially in view of his acknowledgment that the statement is stronger than a similar statement in the Plan. I accept the evidence of Mr Bell and Miss Vigar that the proposal is not ancillary to residential development nor does it directly serve the convenience needs of the local neighbourhood. I consider that the proposal does not maintain the amenity and low density character of detached housing areas nor is not complementary to and compatible with dwelling houses. For these reasons, the proposal conflicts with the Objectives of the Draft Plan. It does not follow that because a proposal conflicts with a Strategic Plan, then it should be refused. The Court still has a discretion where there are sufficient planning grounds to justify approving the application despite the conflict: s. 4.13 -- 17 of 32 -- 1 5 ( SA) of the Local Government (Planning and Environment) Act (1990-1992). It was agreed by the Town Planners that so far as non-residential uses in residential Zones are concerned, the proposed Plan is stronger than the Plan. Mr Grummitt agreed that the words in the proposed Plan are stronger than the words in the current Plan. Mr Bell considered that since 1989 there has been extensive public consultation and a lot of work has been done on planning philosophies and planning principles which have been embodied in the proposed Plan. They show the land as being better suited to residential uses. They prohibit hotels and restaurants in the residential low density areas, so there is a strong shift away from locating hotels, restaurants, etc. in the residential areas and moving them towards the commercial areas as a consolidation exercise. It was suggested by the Appellants' witnesses that the Draft Plan does not take account of amendments to the Liquor Act, especially the deletion of the requirement that hotels include a public bar, and the trend towards smaller hotels with more emphasis on food. I do not accept the evidence that the proposal is not a form of development envisaged at the time the Draft Plan was put together. I accept the evidence of Miss Vigar that the trend towards smaller hotels, and hotels of the type envisaged by the proposal, has been taken into account in the Draft Plan. -- 18 of 32 -- 16 The Appellants' witnesses stressed that the proposal is for a "family-oriented" tavern, and does not include a liquor barn, a bottle shop, or a public bar, and it is thus different from traditional hotels and taverns. I am not satisfied on the evidence that the likely patrons of the proposal will be such that it can fairly be described as a "family oriented" tavern. I am not satisfied on the evidence that the proposal is so different from traditional hotels and taverns that it is not adequately provided for in the Draft Plan. It was suggested by the Appellants that some importance attaches to the fact that the Respondent did not take the opportunity to rezone the land under the Draft Scheme to a residential Zone - rather, it retained it in the Special Facilities Zone and gave it a "Detached Housing" Designation in the Draft Plan. It was thus suggested that this is an indication that the Local Authority sees no conflict between the existing Zone and the "Detached Housing" Designation, and similarly there would be no conflict between the land being allocated to another Special Facility Zone while remaining in the "Detached Housing" Designation. I do not agree with this contention. I prefer the evidence of Miss Vigar that by its 1989 decision the Council was trying to achieve a balance between being fair to holders of existing approvals and looking towards the good long term planning of the area: what is good for the long term planning of the area is that it be residential but to be fair to those who have existing approvals and have proceeded on that basis, the existing approvals can be exercised but should not be prolonged -- 19 of 32 -- 17 in the longer term. I do not consider that it is open to conclude that the 1989 rezoning suggests compatibility with the residential areas or if it does that necessarily leads to the conclusion that the proposal ought to be approved. An assessment must be made of the merits of the proposal, albeit taking into account as relevant its existing Zoning (and existing approval). I accept the evidence of the witnesses for the Appellants that the proposal is different from traditional hotels for a number of reasons, including the deletion of public bar, beer garden, entertainment lounge, drive-in bottle shop and liquor barn, but I do not accept that it is unique, nor that its characteristics are such that these amount to sufficient planning grounds to justify approving the application despite its conflict with the Plan and the proposed Plan. Traffic: Evidence concerning traffic was given by Mr Holland on behalf of the Appellants, Mr Veitch on behalf of the Respondent and Mr Olsen on behalf of the Respondent by Election. The traffic engineers differed as to the likely traffic generated by the proposal. Mr Holland relied substantially on a survey he conducted at the Chatswood Hills Tavern. Mr Veitch had recourse to interstate data and data from the Helensvale Tavern. In the final analysis, their differences in generation rates were not substantial, and they are conveniently tabulated in Exhibit 31. -- 20 of 32 -- 18 The traffic engineers differed about the catchment data (which was compiled by other persons, on which they relied), and on their assessments of the extent to which patrons would walk to the proposal. The traffic engineers agreed that there is presently a "rat run" route along Hollywell Road, Wattle Avenue, Willow Street, Clifton Street, Cabari ta ( Babbidge) Street and onto the Gold Coast Highway. They differed as to the extent of the "rat run", and acknowledged that it is not possible to quantify it with precision. Mr Holland conceded that the current extent is contrary to what traffic engineers and others in planning try to achieve. He agreed that any significant increase would accentuate this situation, but his evidence was that the proposal would not generate a significant increase. The traffic engineers differed as to the extent to which the likely patrons of the proposal would use this "rat run". Mr Holland was of the view that most of the patrons of the proposal would not use the "rat run", but would prefer to use the Gold Coast Highway. In contrast, Messrs. Veitch and Olsen considered that the majority of the patrons would use the "rat run"; in arriving at their conclusions, they relied on the catchment data compiled by Plant Location International. They disagreed with Mr Holland, as to the patrons likely to come from areas east of Hollywell Road and south of Bigger a Creek. I pref er the evidence of Messrs Veitch and Olsen, and I accept the increase in through traffic volumes as calculated by Mr Olsen. However, I do not -- 21 of 32 -- 19 accept that percentage increases in traffic are of themselves determinative, particularly when the base is low. I accept the evidence of Mr Holland that even if the calculations of increases are accepted, they are nevertheless not unacceptable on grounds of traffic volumes, because of the low volumes involved. The traffic engineers agreed that there would be increases in through traffic generated by the proposal in the evenings, when the "rat running" would otherwise have lessened. However, they differed as to the consequences that flow from that. I accept the evidence of Mr Holland that the increases do not warrant refusal of the Application on traffic grounds. I find that the traffic aspects are not of themselves sufficient to warrant refusal of the Application. The issue of the noise impacts of through traffic generated by the proposal, especially at night, will be considered separately under the "Noise" heading. Noise: Evidence concerning noise was given by Mr Palmer on behalf of the Appellants, Mr Winders on behalf of the Respondent and Mr Kamst on behalf of the Respondent by Election. There are a number of potential noise impacts of the proposal, and I propose to deal with these under separate headings. -- 22 of 32 -- 20 Entertainment: I accept the evidence of Mr O'Neill that potential problems can be solved by the imposition of conditions prohibiting amplified music, or indeed (if it were considered reasonable) live entertainment. With these conditions, entertainment noise is unlikely to impact on the amenity of the neighbourhood to an unacceptable extent. Patrons on verandahs: While the Appellants agreed to a condition which prohibited the use of the eastern and western verandahs, I consider that such a condition is unworkable. Unless the verandahs are in some way physically made inaccessible to patrons, or are enclosed, patrons are likely to use them, and to create noise which is likely to impact on the amenity of the neighbourhood (especially in the area of the triangle of Cabarita, Arthur and Clifton Streets) to an unacceptable extent. Car park: The acoustic barrier proposed by Mr Palmer will sufficiently attenuate the noise from the rear car park, for the residences which are located behind the screen, provided there is also the mounding suggested by Mr Winders and the density of the screen is as suggested by Mr Kamst. -- 23 of 32 -- 21 The noise from patrons and vehicles in the vicinity of the proposed car parks on the Babbidge Street side of the land (which will not have a screen) will impact on the amenity of the neighbourhood to an unacceptable extent, especially for the residents in the vicinity of the triangle of Arthur, Cabarita and Clifton Streets. The additional acoustic screen suggested by Mr Kamst would not be acceptable for traffic safety reasons, unless the proposed car parking spaces in the immediate vicinity were deleted, and in any event the screen could not screen the entry/exit point. The noise from vehicles exiting (and to a lesser extent entering) the land would create noise which would impact on the amenity of the neighbourhood to an unacceptable extent. I consider that the cellar in the proposal will operate as a bottle shop, and will thus generate traffic accordingly. I accept the evidence of Mr Kamst that a relevant factor in the assessment of noise impact is that the noise has the potential to either wake people up if they are asleep, or people will find it very difficult to get to sleep with vehicles exiting from the car park. The noise engineers agreed that their surveys showed that the surrounding area is a quiet residential area, especially at night. -- 24 of 32 -- 22 The proposal does not specify the taxi or set down and pick up point. Mr O'Neill said that the taxi point could be located at the front door. It is possible that the entry point in Babbidge Street could be used for taxis and set down and pick up. I accept the evidence of Mr Winders that there is no means of using any barrier or other noise measures to reduce the noise from this area and that the likely noise would impact on the amenity of the neighbourhood to an unacceptable extent. Although the 15-minute car park patrols suggested by Mr O'Neill would assist in reducing noise, I am not satisfied that they would do so to an extent which would reduce the noise impacts to an acceptable degree, especially for the exit/entry point, on the footpath and in Babbidge street. Patrons outside the land: I consider that the management techniques suggested by Mr O'Neill may have some impact on this potential problem for the areas near to the land, but the area of influence is severely limited and I consider that even taking these techniques into account, patrons outside the land will create noise impacts on the amenity of the neighbourhood to an unacceptable degree. Even if the numbers of patrons walking through the residential areas after patronising the proposal are lower than was suggested by the Appellants' witnesses, there will nevertheless be sufficient numbers to create noise to an extent which will have -- 25 of 32 -- 23 an adverse effect on the amenity of the neighbourhood. I find that this noise will be inevitable even if some of those persons are residents of the neighbourhood who may be more considerate than "outsiders". I accept the evidence of Mr Winders that when residents hear persons outside their properties they are likely to be disturbed because they listen to hear whether they are entering their property, and they try to work out what they are doing. The noise generates fear in them that they are going to do something, so they listen. Mrs Williams and Mr McKenna, who are local residents, gave evidence of problems already encountered with pedestrians going past their houses. Traffic noise: I have considered the Objections which were lodged and I have had regard to the evidence of the Objectors who were called to give oral evidence. I accept that the volume of traffic generated by the proposal is of concern to the residents affected. I accept the evidence of Mr Winders that while the increase in numbers alone is not sufficient for the traffic noise to be considered as excessive in noise engineering terms, it is also relevant to have regard to the nature of the streets which are regarded as quiet residential streets which currently carry little non-local traffic in the evening hours. An increase in numbers alone would not go unnoticed in the particular area. -- 26 of 32 -- 24 Mr Holland conceded that non-local traffic currently using the residential streets travels faster than local traffic. Mr Veitch and Mr Olsen predicted that non-local traffic generated by the proposal would similarly travel faster, thus having a greater impact. I accept the evidence of Mr Winders that the vehicles driving faster will increase the noise exposure of the residents in the evenings, and I consider that they will have an unaccept- able impact on the amenity of the neighbourhood. Totality of noise impacts: I consider that Mr Palmer placed too much emphasis on management practice in his assessment of the potential noise impacts of the Application. I consider that all the noise impacts I have discussed, when taken together, are sufficient to justify refusal of the Application. Car parking: The proposed number of car parks is 74 - this does not comply with the requirements of the current Scheme, but does comply with the requirements in the draft Scheme, 68. Mr Holland considered that the data on which the former is based is out of date and irrelevant. Mr Grummi tt considered that relaxation under the current Scheme is appropriate, especially in view of community attitudes • towards drink driving. I consider that the non- -- 27 of 32 -- 25 compliance with the current Scheme is not such as to warrant refusal of the Application. Need: Evidence was given on behalf of the Appellants by Mr O'Neill, an experienced hotelier, and by Mr Stubbins, who has extensive experience with the Licensing Commission. Evidence on behalf of the Respondent by Election was given by Mr Norling of Plant Location International. There are two aspects to this matter - likely patrons of the proposal and likely catchment for the proposal. Patrons: I find that some of the patrons of the proposal will drive to the proposed facilities, while others will walk. Mr Stubbins assumed that because the proposal will be in very close proximity to residences, and residents thus will have the opportunity to walk, then they will do so. I am unable to agree with this assumption, and the evidence does not persuade me that the likely level of patrons who will walk from nearby residential areas will be as postulated by Mr Holland (who based his views on a survey conducted at the Chatswood Hills Tavern) and Mr Stubbins (who relied on his experience). I consider that it is more probable than not that more of the patrons of the proposal will drive than will walk. -- 28 of 32 -- 26 I do not accept the evidence of Messrs O'Neill and Stubbins that the proposal will be a "family tavern", even accepting the wide definition of "family" espoused by Mr Stubbins. I accept the evidence of Mr Norling concerning the likely patrons of the proposal. They will include couples with children, couples without children and single people. I find that in its likely patronage the proposal will not be very different from other hotels and taverns, except that the percentage of patrons who will walk to it may be a little higher. I consider that the patrons of the proposal will include patrons purchasing take-away alcohol from the cellar. These will include patrons who live nearby and also patrons from a wider catchment. Catchment: Mr Norling and Mr Stubbins differed as to the likely catchment for the proposal. Their methods of assessment varied greatly and have aspects to commend them. evidence of Mr Norling. However, overall, I prefer the As to whether there will be patrons from north of Biggera Creek, I prefer the evidence of Mr Norling to that of Mr Stubbins. I find that patrons are likely to come from a wider catchment than the immediate neighbourhood, and will also include patrons attracted by seeing the proposal as they drive along the Gold Coast Highway. -- 29 of 32 -- 27 I am satisfied on the evidence that the catchment is sufficient for the proposal. Mr Norling and Mr Stubbins also differed as to the comparison of the proposal with existing facilities in the area. Both produced detailed analysis, and I also heard from two local residents, Mr Walters and Mr Goodall, whose evidence I accept. I prefer the evidence of Mr Stubbins to that of Mr Norling. I am satisfied that there are no comparable facilities in the area, especially having regard to the focus of the proposal on restaurant-style dining. On the evidence I am satisfied that the Appellant has established a public or community need for the land to be rezoned in order to meet the public need for the proposal which has been demonstrated. The existing approval: The Appellants placed some reliance on the existing approval on the land. Since 1989 there has been an approval for a commercial development including a boating showroom of 568 m2, chandlery of 208 m2 , retail shops of 207 m2 , restaurant of 210 m2 , and offices of 484 m2 and 478 m2 . The evidence of Mr Debernardi, one of the Appellants, is that the approved development would not stack up as a viable commercial operation. -- 30 of 32 -- 28 Mr Grummitt agreed he would be extremely surprised if the current approval were to be granted against the background of the proposed Plan. He said that he had not placed a great deal of importance on the 1989 approval. Mr Robinson described the current approved development as terrible. I accept that the existence and nature of the current approved development is of some relevance to the issues before the Court, including the reasonable expectations of the residents, but it must also be remembered that the subject application should be assessed on its own merits. Summary: On the balancing of the various factors, significant weight should in the circumstances be given to the provis~ons of the current and Draft Town Planning Schemes. The proposed rezoning and subsequent development is in conflict with a number of the provisions in those documents, and there are not sufficient planning grounds which would justify approving the Application despite the conflict. I consider that the Application should be refused because of the noise and traffic impacts, for the reasons I have canvassed. The Application should be refused. -- 31 of 32 -- 29 The Appeal is dismissed. -- 32 of 32 --