Antha Pty Ltd v Brisbane City Council [1993] QPEC 73

_llflii 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 / I v/JUDGE ROW Appeal No 114 of 1993 ANTHA PTY LTD and BRISBANE CITY COUNCIL BRISBANE .. DATE 22/10/93 JUDGMENT REVIS:D CC;\:::S '.SS!JED State :::~ :.;,.::-:i.~J 3:.;re::u , D:,~2 /.l._ I J( I 3 Appellant Respondent 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimiles (07) 227 5532 -- 1 of 25 -- 221093 T 1/MMcG M/T CMS12/93 (Row DCJ) 09 HIS HONOUR: On the whole of the evidence the appellant has established that the application be approved and the appeal allowed. As the issue of conditions, if any, to be attached to an approval was not particularly before the Court, the further hearing of the appeal is adjourned to 9.30 a.m. on 09 OP 0£ 9 December 1993 to permit the respondent, within 21 days of the date hereof, if it wishes so to do, to impose and notify conditions of the approval to the appellant. The appellant, within seven days, shall notify the respondent of any condition to which it objects. I publish my reasons. 2 JUDGMENT ( ( ( -- 2 of 25 -- i J IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Before K.F.C. ROW D.C.J. [ANTHA P/L V BCC] BETWEEN: P&E APPEAL No. 114 of 1993 ANTHA PTY LTD APPELLANT - and - BRISBANE CITY COUNCIL RESPONDENT REASONS FOR JUDGMENT - K.F.C. ROW D.C.J. Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): 22.10.93 MR T TROTTER FOR APPELLANT MR M HINSON FOR RESPONDENT KINSEY BENNETT & GILL FOR APPELLANT DIRECTOR OF LEGAL SERVICES, BRISBANE CITY COUNCIL FOR RESPONDENT. 13,14,15 OCTOBER 1993 -- 3 of 25 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND p & E Appeal No. 114 of 1993 BETWEEN: ANTHA PTY LTD Appellant BRISBANE CITY COUNCIL Respondent 13, 14, 15 October 1993 REASONS FOR JUDGMENT - ROW D.C.J. Delivered the 22nd day of October 1993 Antha Pty Ltd ( the appellant) appeals herein consequent upon a decision of the respondent refusing an application made by and on behalf of the appellant for consent to use land situated at 171 Queen Street Brisbane, being part of Lot 27 on Registered Plan No. 180490, Parish of North Brisbane, and to use part of a building erected thereon for the purpose of a pleasure fair. The appellant proposes to use vacant shop premises within the Wintergarden Shopping Centre being Tenancies No. 27 and 28, having a combined floor area of 280 square metres, for an entertainment centre containing some SO electronic games machines. Access to the area proposed to be used is via an escalator leading directly down from the Queen Street Mall into the interior of the site as well as via two points of entry from the Queen Street Mall by internal passageways of the Wintergarden Centre. -- 4 of 25 -- 2 The application was lodged with the respondent on 22nd December 1992 and duly advertised. Four objections being from the Brisbane City Heart Business Association, the Ward Alderman and two tenants of the Wintergarden Centre were lodged with the respondent. The grounds raised in the objections include amenity, suitability of the proposed use and need. The respondent on the 13th March 1993 resolved to refuse the application on the following grounds:- "!. The proposal would encroach upon and erode the limited availability of retail space in the retail heart specifically at ground level; and II. The proposal would contribute to the fragmentation of retail activity in the retail heart of the C.B.D. The overall strength and vitality of retailing is dependent upon a compact retail heart." The decision was notified to the Appellant by letter dated 23rd March 1993. By letter dated 27th September 1993 the respondent notified the solicitors for the appellant as follows:- "With respect to issues, the respondent notifies of further disputed issues as are contained in the attached list. The respondent abandons the issues as set out in the letter from the respondent to the appellant dated 23rd March 1993." The disputed issues on the hearing of the appeal were identified as follows:- "1. The proposed use would detract from the amenity of the Queen Street Mall. 2. The proposed containment of the down escalator to the subject premises is considered unacceptable as it would compound the access problems to the Wintergarden Shopping Complex. 3 . The proposed would encroach upon and erode the limited viability of retail space in the retail heart. The proposal would be more appropriately located in that part of the entertainment precinct which is not directly accessible from -- 5 of 25 -- 3 the Queen street Mall for the juxtaposition of the proposed pleasure fair _and tav~rns (i.e. Hilton and Wintergarden) is considered to represent an unacceptable mix of land uses." The application had a somewhat chequered history before the respondent. On 12th January 1993 the Assessment Committee recommended that no objection be raised to the proposal from a planning point of view subject to a satisfactory agreement concerning developmental requirements including the requirements as therein stated. At that time no objections had been received by the respondent. On 15th February 1993, Mr Newby, Acting Senior Town Planner of the respondent recommended that the application be refused for the following reasons: " ( 1) The proposal contributes to the fragmentation of retail activity in the Retail Heart of the CBD. The overall strength and vitality of retailing is dependent upon a compact retail heart, particularly in prime retail areas fronting or immediately accessible from the Mall. ( 2) The proposal would encourage activity in the Mall which is not conducive to a pleasant experience or a high standard of amenity and is therefore likely to reduce the propensity of people to return for retailing, entertainment and other purposes. The image and attractiveness of the Mall is critical to its long- term economic performance of retailing and to the cultural/social significance of the City Centre. ( 3) The entertainment precinct is the part of the CBD where leisure centres are intended to locate." The Assessment Committee on 23rd February 1993 recommended that from a planning point of view the proposal be opposed for the grounds as therein stated in the Minute of the committee which grounds repeated those in the report of Mr Newby. on 11th March 1993 the Director of Town Planning recommended to the Director of Development and Planning reasons for refusal namely:- "The proposal would be contrary to the aims and objectives of the Central City as expressed in Section 9.2 -- 6 of 25 -- 4 and the intent of the retail heart as expressed in Section 9.4.22 of the City of Brisbane Town Plan, in particular: (a) the proposal would encroach upon and erode the limited availability of retail space in the retail heart specifically at ground level. (b) the proposal would contribute to the fragmentation of retail activity in the retail heart of the CBD. The overall strength and vitality of retailing is dependent upon a compact retail heart." On 19th March 1993 the Council Registration Board refused the application on the grounds set out in Clauses (a) and (b) of the Memorandum of the Director of Town Planning which decision was notified to the appellant under cover of a letter dated 23rd March 1993. The subject land is included within the Central Business Zone under the Town Plan for the City of Brisbane. The intent of the Central Business Zone includes that land included in this Zone is intended to accommodate high intensity office development, retailing, entertainment, recreation and cultural activities, and a variety of personal services. It further provides that it is considered reasonable to provide for new uses or a change of use to allow other activities of a broadly similar nature such as fast food stores, restaurants and places of assembly ..... Other activities having an entertainment or tourist flavour, including hotels and licensed clubs, are also provided for in this zone. Within the Intent, retailing space is intended to be provided for large parts of the ground floor level, particularly in the retail heart with office development predominantly above ground floor level in most parts of the CBD. Pursuant to the Table of Development, pleasure fair is permitted within the Central Business Zone if within the -- 7 of 25 -- 5 entertainment precinct or otherwise is permissible development in the Central Business Zone. The subject site is within the Central City Area within the provisions of s.9 of the Town Plan. The primary aim for the central city is to ensure the continuation and strengthening of the vitality and functions of the central city in its role as metropolitan and regional centre for commerce, retailing and entertainment. Objective 9.2.2 which is for the maintenance of the central city as a major centre for entertainment provides that this will be achieved by facilitating the establishment of venues which require a central location for entertainment, cultural activities and tourist accommodation. As defined in the Central Business District Structure Plan the subject site is within the retail heart as illustrated in Figure 9.4.1 of the Town Plan. Figure 9.4.1 further shows an area within the Central Business District designated as Entertainment precinct. Whilst the Entertainment precinct is on a map which has a cadastral base, the precinct itself does not appear to be wholly cadastrally based in that one of its boundaries does not appear to accord with real property boundaries. The subject site is not within the entertainment precinct as so defined on Figure 9.4.1 but is about 30 metres external thereto. The Entertainment precinct is primarily bound by George, Charlotte, Albert and Queen Streets. It comprises part of the area included in the Cental Business Zone and partly overlaps the retail heart. The precinct is characterized by the existing concentration of entertainment facilities including restaurants, cinemas and multi purpose entertainment venues. It -- 8 of 25 -- 6 is generally intended that entertainment activity be encouraged to concentrate within this area. The Entertainment precinct will provide a supporting role to the retail heart and will also function as a convenient area for people to gain access to such activities as restaurants and cafes, takeaway food outlets, theatres and cinemas, hotels, nightclubs and other recreational facilities. Section 9.4.2.2 under the heading "Retail Heart" provides that a primary objective of the Central City is to maintain and strengthen the retail functions of the CBD. The principle means of achieving this is through a compact retail heart characterized by continuous retail frontages at pedestrian levels. In dealing with the retailing character of the retail heart, it is said in s.9.4.2.2:- "The streetscape of the retail heart should convey to shoppers and tourists that the area is a major facility for specialist retailing and services, entertainment and other activities ..... where pedestrians are most likely to congregate with the expectation of finding retail facilities at ground floor level is important to retain the 'retail frontage'. It is highly desirable that the activities at pedestrian level should principally be for purposes which reinforce the role of the retail heart. These include shops, personal services, restaurants, takeaway food outlets, cinemas and hotels." Section 1 7. 2 of the Town Plan prescribes development requirements for specific purposes including "Pleasure Fair". Under Sub-clause (b) the hours of operation of pleasure fairs are to be restricted as therein stated. Under Sub-clause (c} the number of amusement machines at any premises are not to exceed one machine per four square metres of gross floor area. The proposal provides for one machine per 5.2 square metres of gross -- 9 of 25 -- 7 floor area. The appellant proposes hours of operation exceeding those set out in s.17.2(b). In addition to the various provisions of the Town Plan that are relevant, the respondent has adopted planning policy No. 10.03 which specifically relates to pleasure fairs. The aim of the policy is to provide a guidance relating to facilities to be provided, layout and the performance of pleasure fairs. Under the heading General Requirements, it is stated that a pleasure fair in the nature of an amusement arcade is most appropriately located in association with other recreational uses, or retail uses, or as part of an entertainment complex such as those located with the Entertainment precinct in the Central Business District. It is further provided under General Requirements that Council will generally approve pleasure fairs proposed in the following locations:- " ( a) shopping centres, leisure or recreational complexes, particularly where associated with cinema complexes and food courts; (b) within the Entertainment precinct of the Central Business District; and (c) any other location where there is a strong nexus with other leisure, recreational and retailing uses." Further to the development requirement specified in s.17.1 of the Town Plan, certain other general requirements are stated within the policy. The provision of Sub-clause (b) of the policy is of no consequence since within the Entertainment precinct, pleasure fairs are permitted development and the respondent has no discretion to exercise in relation to approval of such a use other than in respect of the imposition of conditions. -- 10 of 25 -- 8 On 1 5th June 1993, the respondent approved for public exhibition a number of amendments to the Town Plan including an amendment to the effect that a pleasure fair becomes a permissible development in the Central Business Zone and proposed to delete that part of the Table of Development which provided that a pleasure fair within the Entertainment precinct was permitted development. Planning Policy 10.03 was proposed to be amended to accord with these particular requirements with the deletion of Sub-clause ( b) under the heading "General Requirements". Under the proposed amendments to this policy the respondent will generally approve pleasure fairs proposed in the following locations: " (a) shopping centres, leisure or recreational complexes, particularly where associated with cinema complexes and food courts; and (b) any other location where there is a strong nexus with other leisure, recreational and retailing uses." The Planning Policy was further amended to provide:- "In the Central Business Zone, pleasure fairs being video game parlours/amusement machine centres and the like, are not considered appropriate land uses where proposed in or in close proximity to the highly pedestrianised and speciality retailing areas of the retail heart, in particular the Queen Street Mall. It is considered that such land uses may detract from the quality and level of public amenity in key C.B.D. locations." The last day for public objection to the proposed amendments was 17th September 1993. No objections were received by the respondent to the proposed pleasure fair amendments to the Town Plan or Policy. The proposed amendments to the Town Plan have not been forwarded to the Chief Executive for gazettal to the date hereof. The amendment to the Planning Policy has not been effected pending the gazettal of the amendments to the Town Plan. -- 11 of 25 -- 9 As the proposed amendments to the Town Plan have progressed a significant distance along the legislative path, significant weight should be given to the amendments. One of the significant aspects of the amendments is that whereas prior to the amendment a pleasure fair was permitted development within the Entertainment precinct a pleasure fair is now proposed to be permissible development in all areas within the Central Business zone. It is particularly significant that a use which was previously permitted is now permissible within that area. The proposed use is consistent with the intent of the Central Business Zone and is recognized by the Table of Development as being a use which is not inconsistent with and/or incompatible with the Central Business Zone. The Planning Strategy for the Central City, in particular the Central Business District features entertainment facilities and recognizes the relationship that exists between entertainment facilities and other facilities such as take-away food outlets, shops, cinemas and hotel facilities. The area of the proposed development is not located at ground level being at a level below ground. It has no frontage to the Queen Street Mall at ground level. It is accessible from the Queen Street Mall by existing stairways or escalator. In those circumstances, it cannot be said that the proposed use would interfere with the continuous retail frontage as is envisaged within the planning strategies of the respondent. The Mall itself provides access for active and passive entertainment as well as giving access to buildings which provide some form of active passive entertainment and recreational uses. The proposed use would provide for a form of active entertainment -- 12 of 25 -- 10 and is in close proximity to other facilities which provide for recreational and other complementary facilities such as take away food outlets and liquor outlets. Under the Planning Strategies, entertainment is recognized as part of the function of the retail heart and part of the Central City. The proposal conforms to that part of the Town Plan dealing with the retailing character of the retail heart. The proposed development and its proposed hours of operation or the hours of operation as limited in the Development Standards would conform to "an appearance of 'all hours' retailing" within the retail heart as set out in s.9.4.2.2. Within close proximity to the proposed development, there are a number of food outlets and liquor outlets which trade beyond normal retail hours. The proposal is within the required maximum machines per unit of gross floor area. The question of hours of operations is a matter which ought properly be considered if approval is given to the proposed development. The location of the proposed development is consistent with those locational criteria identified in Planning Policy 10.03 in that the Wintergarden Centre is a shopping centre which has a significant component of retailing together with a large food court on the same level as the subject site and provides direct internal access to the adjacent cinema complex. Under the present policy, the subject site is not within the Entertainment - precinct but is in very close proximity thereto. In regard to the proposed amendments to the planning policy, I do not consider that the fact that the subject site is external to the Entertainment precinct is of significance. The proposed use has -- 13 of 25 -- 11 a strong nexus with nearby uses, in particular the food court, cinemas and tavern. The proximity to the Queen Street Mall, being itself a recreational attraction, also provides a sufficiently strong nexus with other leisure, recreational and retailing uses in the vicinity. That part of the proposed amendments to Planning Policy 1 0. 03 which refers to pleasure fairs being video game parlous/amusement machine centres as not to be considered appropriate land uses when in close proximity to the Queen Street Mall has to be considered in the context of the Town Plan. Under the existing Town Plan in the Central Business zone, the proposed use is permitted development within the Entertainment precinct and permissible elsewhere in the zone and not prohibited development in that zone. Under the proposed amendments to the Town Plan and Table of Development, a pleasure fair is permissible development within the Central Business Zone and not prohibited. As the subject land is not within the Entertainment Precinct the assessment of the application for a pleasure fair requires the exercise of discretion. An examination of the substance of the objections lodged with the Respondent is indicative that little weight, if any, should be given to any or all of such objections. The objection by the then operator of the Wintergarden News loses much of its force in that the objector no longer operates the newsagency. Evidence was given by the current owner of the newsagency that he has no objection to the proposed development. On the hearing the appeal, evidence as to the nature of the proposal was given by Mr Umashev, a director of the appellant. The appellant either through itself or other associated companies -- 14 of 25 -- 12 has had considerable experience in the amusement machine industry. It has operated and does operate a number of similar facilities within various capital cities and other cities within Australia including a number within the City of Brisbane and more particularly the Brisbane C.B.D. Area. In areas outside the C. B. D. the appellant has similar facilities in Indooroopilly Shoppingtown, Carindale Shopping Centre and formerly at Toombul Shoppingtown. The evidence of Mr Umashev, I am satisfied, demonstrates that the appellant has considerable experience and knowledge in the efficient running of pleasure fairs of the nature proposed. I was impressed by his evidence as to the actions taken by the appellant and associated companies to ensure the satisfactory operation of this form of development and the controls which are undertaken by managers to ensure that the developments present as an attraction and are subject to such control as to ensure good and proper behaviour and acceptable dress standards. I am further satisfied, contrary to what some public perceptions may be, that this form of development presently has a customer profile of a family entertainment centre and that such developments do attract a wide range of patrons. The perceptions that amusement parlours have low lighting, darkened decor and allow smoking, eating and drinking does not accord with the present manner of operation as stated in the evidence of Mr Umashev, which evidence I accept. Evidence from a number of persons responsible for shopping centres wherein the appellant conducts a pleasure fair such as is proposed herein confirms the evidence of Mr Umashev. That evidence establishes, and, I accept, that the proposed form of -- 15 of 25 -- 1 3 development is one which fits comfortably with existing shopping centre development, particularly where associated with food halls, cinemas, hotels, theatres and other recreational facilities. The evidence of Senior Sergeant Orchard was further indicative that existing similar developments within the vicinity of the Queen Street Mall have not within the last eighteen months to two years produced any complaints to police. His evidence is not of such a nature as to cast any significant doubt on the evidence given by the various other witnesses relative to the operation and behaviour of patrons at existing pleasure fairs. Town planning evidence was adduced from Mr Brannock, an experienced Town Planning Consultant, on behalf of the appellant and Mrs Heinke, a Senior Town Planner, in the employ of the respondent. Section 4.13 of the Local Government (Planning and Environment) Act (the Act) prescribes matters to be considered on the assessment of a Town Planning Consent Application. Under s.4.13(5A) the Local Authority must refuse to approve the application if: (a) the application conflicts with any relevant Strategic Plan or Development Control Plan. Section 8.2 of the Act obliges the respondent when considering the application to take into consideration whether any deleterious effect on the environment would be occasioned by the implementation of the proposal. Environment is defined in very wide terms under the Act. The Queen Street Mall represents undoubtedly one of the most significant aspects of the City of Brisbane. It has an environment which is of significance in the overall development -- 16 of 25 -- 1 4 of the Central Business District. As it provides for recreational use the amenity of the Queen Street Mall is a matter of significance. Mrs Heinke was of the view that approval of the application would be prejudicial to the amenity of the Queen Street Mall and relied significantly on what she regarded as behaviourial problems associated with persons who frequent pleasure fairs. In her view pleasure fairs of the type proposed predominantly attract a typical customer having a profile of male and aged between 1 3 and 20 years. She was of the view that the behaviourial problems do not occur within the pleasure fair facility itself but are associated with those public areas in the vicinity thereof whereby customers of the facility adopt attitudes which threaten and result in members of the public in the Mall being uncomfortable. This perception of the public as a result of people congregating outside of or near vicinity to a pleasure fair she regarded as most significant and as being prejudicial to the amenity of the Queen Street Mall. Her evidence in relation to behaviourial problems associated in areas outside of pleasure fairs is against a substantial body of evidence including that of Sergeant Orchard whose observations in relation to the past eighteen months to two years is indicative that no such behaviourial problems exist or if they do exist, are not of such amount as to warrant those matters being referred to the police station in the immediate locality. The weight of evidence to the contrary is indicative that within the environs of the facility there is ample and proper control exercised in relation to patrons and that management of such -- 17 of 25 -- 15 facilities which are operated by the appellant have effectively controlled behaviour of patrons within the facility or in the immediate vicinity thereof. Undoubtedly, the issue of 1 •d t • re a factor relevant in the psychologica consi era ions a assessment of amenity. On the body of that evidence adduced on behalf of the appellant, I am satisfied that the approval of the application will have none, or, if any, minimal effect on the amenity of the locality. It was submitted on behalf of the respondent that not any one of the issues in itself was sufficient reason in dismissing the appeal rather as a consequence of the combination of those issues, the appeal should be dismissed. The proposal involves the use of the existing down escalator for the purpose of providing a form of access to the site. In addition to that access, other access is available through existing steps leading from the Queen Street Mall to the lower levels of the Wintergarden Centre. The fact that the Wintergarden Centre has been developed and approved with such access points is to be accepted by the Court despite the view expressed by Mrs Heinke that at the present time such access would be unacceptable. The proposal by the appellant that at the down-end of the escalator there be what would amount to a continuation of the pattern of the existing public areas on the lower level would give some indication to persons entering the elevator at the Queen Street Mall that it would provide access to the lower level and not be solely contained within the site or service only the site. In order to ensure that such was carried out, appropriate conditions could undoubtedly be imposed -- 18 of 25 -- 16 which may or may not include the provision of some sign indicating that the escalator was available to members of the public and not limited to patrons of the proposed development. The layout plan of the proposal which indicates the positioning of machines immediately adjacent to the escalator, particularly at its down-point or termination in the subject premises would not significantly create the impression that the escalator did not give access to public areas on the lower level when it is proposed that the area between the end of the down escalator and the public area be of the same texture and finish. On the evidence I am satisfied that the proposed use of the escalator for access to the proposed development will not consequently cut off one of the means of public access to the lower level of the Wintergarden Centre. There is no evidence before the Court that in its present form the escalator constitutes an access problem to the Wintergarden Centre. Locational issues were raised when considering the Entertainment Precinct and the existence of liquor outlets in the near vicinity of the site. The proposed amendments to the Town Plan and Planning Policy significantly diminishes the effect of the provisions in the existing Town Plan and Policy which relate to the location of pleasure fairs within the Entertainment Precinct. The effect of the existing provisions of the Town Plan was that within that Precinct a pleasure fair was permitted as of right. The respondent in those circumstance, had no right to refuse an application and no application was required for consent other than in relation to the imposition of conditions. Under the proposed amendments, an application is necessary even where -- 19 of 25 -- 17 such a facility is proposed in the Entertainment Precinct. There is nothing in the existing Town Plan and/or Policy or proposed amendments to the Town Plan and/or Policy which is indicative that the location of the proposed development is undesirable. Under the locational guidelines set out in the policy the site is within a shopping centre. Such a location is one of the preferred locations under Policy 1 O. 03. In addition to that location and criteria, the site has a strong nexus with other leisure, recreational and retailing uses. The proposed amendment to the policy in relation to the location of pleasure fairs within the Central Business Zone is to be considered in conjunction with the Table of Development in that Zone and in the various texts which appear in the Town Plan. On the evidence I am satisfied that the proposed use would not detract from the quality and level of public amenity in the Queen Street Mall. The proximity of liquor outlets was seen on behalf of the respondent as a matter of concern. Under the Table of Development an hotel is permitted development within the Central Business Zone. There is nothing in the Table of Development which is indicative that a pleasure fair and hotel are incompatible land uses within the Central Business Zone. Other developments which include a licensed liquor outlet are similarly permitted or at the worst, permissible in the Central Business Zone. The reference in the Town Plan to the association of Entertainment with uses including hotels, is indicative that such uses are seen as complementary and not as incompatible uses in the Central Business Zone. The retail character of the retail heart is further indicative that entertainment facilities can -- 20 of 25 -- 18 complement uses including shops, restaurants, takeaway food outlets, cinemas and hotels. The subject site I am satisfied is in a position where it is in very close proximity to many of those facilities and that in such circumstances, it is an appropriate location for the proposed development. It is of significance that the site is not located at the ground floor level of the Queen Street Mall but is on a lower level, being accessible only by the escalator or stairways leading from the Mall. The site itself has not a frontage to the Queen Street Mall and in fact, part of the site is below and under the level of the Queen Street Mall. Insofar as both hotels and pleasure fairs when located within the Entertainment Precinct are permitted development in the Central Business Zone, there can be no doubt that the existing Town Plan regards such uses as compatible. Whilst incompatibility between a prohibited development on the one hand and either permitted or permissible development can be accepted I see nothing wrong in principle with the notion that there can be incompatibility in a particular location either in a form of permitted development and a form of permissible development or two forms of permissible development. Having regard to the approximate distance the site is from the Entertainment Precinct, it is difficult to see that there can be any variation in relation to incompatibility between the proposal and the existing hotel uses. The evidence at its best, from Mrs Heinke raises a potential for conflict between the proposed use and the hotel use which exists in the locality. / -- 21 of 25 -- 19 If, as Mrs Heinke relied on, the public perception of the adverse effect that the proposal would be likely to have on members of the public utilising the Queen Street Mall, that perception has not been the subject of any evidence other than that of Mrs Heinke's own personal experiences. The fact that the application was advertised and that part of that advertising procedure required the placing of signs which would be visible to the public, coupled with the lack of public objection does not lead one to a view that members of the public saw or perceived there to be such an objection as would warrant the lodging of an objection to the application. No evidence was adduced on behalf of the respondent which would support the alleged public perception that inappropriate behaviour may be generated and the other adverse impacts as referred to by Mrs Heinke. The absence from the original grounds of refusal of any matter associated with amenity is worthy of some consideration, considering that Mrs Heinke had some input into the matter. On the issue of amenity, I prefer the approach adopted by Mr Brannock which in my view is amply supported by the evidence of the various other witnesses called on behalf of the appellant. The evidence of Mr Umashev was particularly persuasive in relation to the method and manner of control of development such as is proposed herein by the appellant. That such methods of management control have been singularly successful in other areas was demonstrated by those witnesses who have had responsible positions in relation to the management of shopping centres within which similar developments are located. The locational guidelines are indicative that a shopping centre is a suitable -- 22 of 25 -- 20 location and the proximity to a food court, cinemas, hotel and other retailing outlets is a suitable location. I prefer the Town Planning approach adopted by Mr Brannock. The proposal complies with the relevant provisions of the existing Town Plan and with the existing policy. The proposal complies with the intent of the Central Business Zone in that the establishment of such a use is consistent with a number of the provisions where reference is made to the provision of entertainment facilities within the Zone or certain parts thereof. The fact that the site has not direct frontage to the Queen Street Mall is further indicative that the proposal complies and does not conflict with the said Town Plan and associated Planning documents. It does not conflict with the primary aim of the Central City in that it maintains the Central City as a major centre for entertainment. The proposal complies with the Retail Heart designation and the objectives in relation to that as being within a description of the intended retailing character thereof. Having regard to its proposed hours of operation and the hours of operations prescribed within Planning Policy 10.03, the proposal will provide for use of a facility within the Retail Heart having an appearance of "all hours retailing" in conjunction with the extended hours presently existing in relation to the food court, restaurants, cinemas and hotels in the locality. The proposed amendments to the Town Plan and Planning Policy 10.3 are indicative that a use such as is proposed is seen as a suitable use in a particular case within the Central Business District. The locational preferences as set out in the proposed amended policy indicate that the site meets -- 23 of 25 -- 21 those criteria in that it is located within a shopping centre and further that it has a strong nexus with existing outlets. A deletion in the policy of the locational criteria within the Entertainment precinct leads to an inference that that Precinct is now not to be regarded as a preferred area for uses such as is proposed. The proposed amendments to the Town Plan clearly establish that the Entertainment Precinct is not an area wherein such a use is to be permitted. Pleasure fairs in that area and as in all other areas in the Central Business Zone are proposed to be permissible development. The proposed amendment to the Policy has to be read having regard to the Town Plan and the Table of Development which identify that within the Central Business Zone, pleasure fair is permissible development. There is no doubt that the environment which is created in the Queen Street Mall is significant in attempting to portray an image for the Central Business District of Brisbane. Undoubtedly to achieve such a portrait, a high level of public amenity ought to be and is achieved. Based on the evidence adduced on behalf of the appellant, I am satisfied that the proposal will not to any significant extent detrimentally affect the amenity of the Queen Street Mall. The retention within various aspects of the text in relation to the Central Business Zone of the word "entertainment" is indicative that the proposal which provides a form of entertainment is consistent with the various relevant aspects of the Town Plan. Mr McCracken, a Retail Analyst and Manager of Kinhill McNamara's Economics Practice, presented some short evidence in -- 24 of 25 -- 22 relation to the perception in the retailing industry of leisure activities. His evidence establishes and I accept that of recent times recreational uses are seen as legitimate retail activities and complement, support and strengthen a retail mix within a shopping centre of significance. His evidence further establishes that the site has no significance in the overall retailing space within the Wintergarden Centre and that the loss of such an area of 280m2 would not have any or any significant adverse effect on the availability of retail space within the Central Business District or the Wintergarden Centre itself. On the whole of the evidence the appellant has established that the application should be approved and the appeal allowed. As the issue of conditions, if any, to be attached to an approval was not debated particularly before the Court, the further hearing of the appeal is adjourned to 9.30 a.m. on the seventh day of December 1993 to permit the respondent within twenty-one days of the date hereof if it wishes so to do to impose and notify conditions of the approval to the appellant. The appellant within seven days shall notify the respondent of any condition to which it objects. -- 25 of 25 --