Collins Food International Pty Ltd v Brisbane City Council & Ors [1992] QPEC 54

IN THE PLANNING & ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P. & E. Appeal No. 58 of 1992 BETWEEN: COLLINS FOOD INTERNATIONAL PTY. LTD. Appellant BRISBANE CITY COUNCIL Respondent AND: FORMCREST PTY. LTD. & ORS. Respondents by Election 3rd, 4th August, 1992 ) REASONS FOR JUDGMENT - ROW D.C.J. - 28TH AUGUST, 1992 Collins Foods International Pty. Ltd. (the appellant) appeals herein consequent upon the decision of the respondent whereby it refused an application to rezone land situated at 906 Moggill Road and 9 Marshall Lane, Kenmore described as Lot 2 and ) Common Property on Group Title Plan 2865 (cancelling part of Lot 1 on Registered Plan No. 811489), Parish of Indooroopilly having an area of 3991m 2 by excluding the subject land from the ) Particular Development ( Fast Foods Store and Restaurants not exceeding 1430m 2 where the Fast Foods Store's component of the building on the site does not exceed 570m 2 ) Zone and including the land so excluded in the Business Zone. The common property has an area of 7688m 2 . On 17th July, 1992 the Court ordered that the appeal be heard and determined upon an amended application whereby the land is to be rezoned to the Particular Development ( Fast Foods Store, Restaurants, Local Store and Video Store) Zone -- 1 of 10 -- 2 in lieu of the Business Zone and that it was not necessary to readvertise the application so amended. The subject land is located on the southern side of Moggill Road and on the western side of Marshall Lane opposite the Kenmore Tavern and the adjacent Kenmore Tavern Plaza Shopping Centre. Lot 1 is currently occupied by a Kentucky Fried Chicken outlet within the western part of the land and a Sizzlers Restaurant within the southern part. The subject site located within the north-eastern section is vacant and undeveloped. The common property is utilised to provide access to the existing Kentucky Fried Chicken outlet and Sizzlers Restaurant and to service the proposed development. The proposed development will have a gross floor area of 722m2 with provision for 43 on-site parking spaces. Vehicle access to the site is provided from Marshall Lane by the existing access within the common property to the Kentucky Fried Chicken outlet and Sizzlers Restaurant. The proposed development will provide after hours convenience facilities for the locality with the provision of a general store and a video hire outlet and other retailing activities being within the description of the zone. The Wongabel Shopping Centre is on the opposite side of Marshall Lane being located on the corner of Marshall Lane, Talina Lane and Wongabel Street. This centre includes a convenience store together with 16 other service/convenience shops of which one is vacant. The Kenmore Tavern Plaza Shopping Centre includes a Woolworths Supermarket and other smaller C -- 2 of 10 -- 3 specialised food shops and convenience services. A McDonalds fast food outlet and the Kenmore Tavern are situated adjacent to the shopping centre. Adjacent to the subject land on the corner of Marshall Lane and Moggill Road is a service station. The Kenmore Village Shopping Centre is located approximately one kilometre to the west of the subject land and has as its major tenant a Coles New World Supermarket and includes a wide range of retailing facilities and personal services. The strip \ ) shopping centre fronting Moggill Road is comprised mostly of small type convenience and service type retailing activities as well as a small supermarket. ) Wongabel Shopping Centre and the Kenmore Tavern Plaza Shopping Centre are both included in the Business Zone. With the exception of the zoning for service stations on the northern side of Moggill Road the dominant zone in the locality is Residential ) "A". The proposal as amended seeks to extend the ambit of the existing Particular Development Zone to include the terms "Local Store and Video Store". The proposed development and use of the ) land remains unchanged from that initially lodged with and considered by and refused by the respondent. By particulars dated 17th July, 1992 the appellant detailed the nature and extent of the proposal upon which the Court was to hear the appeal. The disputed issues in the appeal were notified by the agent for the respondents by election on 21 st July, 1992 as follows: -- 3 of 10 -- 4 (1) There is no proven need for an additional shopping centre of the type as proposed by the amended rezoning; (2) The proposed rezoning will duplicate existing convenience or extended hour retailing in the locality; and (3) The proposed rezoning is contrary to the provisions of the Town Planning Scheme for the City of Brisbane, particularly the provisions of the Strategic Plan expressed in Aim 2 and particularly expressed in s. 2. 3. 5, Aim 3 particularly expressed ins. 2.4.2. and Aim 7, particularly expressed in s. 2.8.3 of the Town Planning Scheme. By letter dated 23rd July, 1992 the City Solicitor for the respondent notified the solicitors for the appellant as follows: "I confirm my advice to you on 21 July, 1992 that, upon the hearing of the appeal, the respondent will support the approval of the amended application to rezone the subject land to the Particular Development (Fast Food Store, Restaurant, Local Store and Video Store) Zone." The respondents by election were also accordingly notified. Consequent upon public notice having been given of the application 21 individual objectors and a number of petitioners objected to the application. The current Particular Development Zone permits only development for the purpose of restaurants and fast food stores. The additional uses proposed in the zone would permit development to occur on the subject land for the purposes of local store and video store. Local Store is defined under the relevant Planning -- 4 of 10 -- 5 Scheme as a building, the floor area of which does not exceed 200m2 used or intended for use for the sale or displaying or offering for sale, by retail of goods for the day to day needs of the surrounding neighbourhood. . . Video Store is not defined. The term "shop" includes a local store and also includes a video hire outlet. The amended application significantly restricts the usage which could be made of the subject land if zoned Business Zone. The Business zone would ) )allow the establishment of a vast range of retail/commercial uses on the site as of right in addition to a wide range of permissible uses. ) The Wongabel Shopping Centre is an old style neighbourhood type shopping centre with buildings located onto and up to the alignment with no on-site customer car parking provided. Moggill Road is an arterial road carrying substantial volumes of traffic. The intersection of Mogg ill Road and Marshall Lane is signalised. The matters upon which the respondent and, on appeal, the Court is to assess an application for a Planning Scheme amendment are set ins. 4.4.3 of the Planning & Environment Act. Traffic impact and amenity were not seen as disputed issues on the appeal. Given the current zoning and land use pattern and nature of the existing development the proposal I am satisfied will not prejudicially affect the amenity of the neighbourhood nor would it be likely to cause traffic problems. A proposed rezoning and subsequent development of the subject land will not create a need for increased facilities. -- 5 of 10 -- 6 As the subject land is already included in a Particular Development Zone for the nominated purposes which include after hours activities the proposed zone, which will extend such activities to include a local store and video store, is unlikely to have any adverse effect on the balance of zones in the planning scheme area as a whole or in the particular locality. The question of Town Planning need was raised by the various Town Planning witnesses and also by Mr. Kern, a property consultant. In assessing the question of Town Planning need in relation to the rezoning application it is important that the subject land is currently within a nominated Particular Development Zone wherein the particular purposes relate significantly to after hours facilities. The evidence of Mr. Kern indicates a significant level of inquiry in relation to the occupancy of the proposed development. Whilst a number of inquirers were disqualified by virtue of the name of the proposed Particular Development Zone his evidence indicates that there are substantial negotiations in relation to the occupancy of the proposed local store and video store. Although no prospective tenants have yet signed lease documents the expressions of interest are indicative of a significant demand in the locality for retail activities of a kind within the nominated particular development. His evidence and that of the Town Planning witnesses who examined the question of need on behalf of the parties demonstrate that whilst there are a number of outlets in the locality trading on an after hours basis most after hours convenience shopping ceases at about 8. 00 p.m. The proposal C -- 6 of 10 -- 7 relates to a development which is seeking a convenience outlet operating for much wider hours. A number of the convenience outlets are relatively small and do not provide a great deal of variety, range or choice of products and may be seen as not providing adequate convenience facilities to residents in the locality. Whilst there are a number of video hire outlets in the locality the proposal is likely to provide a much more modern facility with a greater range and choice of product. In a number ) )of such existing convenience and video hire outlets on-site parking is not available and access difficulties exist. Whilst ) the nearest convenience store is within the Wongabel Shopping Centre the facility is rather outdated and because of its size and position is not an attraction to the residents of the locality. The existence of other convenience and other facilities in the locality does not necessarily result in the proposal providing a mere duplication of existing facilities. ) The proposal I am satisfied will provide a higher level of facility with a greater range, aiversity and choice in product. The proposed use is complimentary to that currently existing and ) will compliment the existing after hours services. The evidence of vacancies in existing retail areas on its own is not evidence of public or community need. It is indicative that the older less modern form of retail outlets are disadvantaged and that consequently the public or the community is not being adequately and properly served. The existing convenience store facilities within the area are rather limited and do not provide an appropriate level of service in terms of size, range of products, convenience and attractiveness as might reasonably be expected -- 7 of 10 -- 8 in the locality. The absence of convenience trading after 8.00 p.m. is further indicative that a public or community need is not being satisfied. Similarly the existing video outlets do not provide an appropriate level of service in terms of size, range of products, parking and convenience and attractiveness or acceptable car customer access. In those circumstances I was satisfied that the proposed development will not significantly duplicate existing facilities but would rather provide an improved level of service to the local community through additional facilities of a standard not available generally at the present time. Aim 2 of the Strategic Plan is to facilitate and encourage opportunities to cater for the diversity and demands, interest and lifestyles, by providing a wide range of choice in housing, shopping, business, employment and recreation. Section 2.3.5 relates to the need and convenient availability of retailing and other activities which will be provided through the various matters therein stated. The proposed rezoning and subsequent development will achieve an ordered grouping of facilities having regard to the existing development and the permitted development within the existing zone. Aim 3 of the Strategic Plan seeks to promote the concentration and ordered grouping of retail/commercial activities that are conveniently located to residents. The subject land forms part of a recognised and established non- residential area where there are a number of non-residential ( I -- 8 of 10 -- ) 9 related activities. Inclusion of the subject land in the expanded Particular Development zone promotes the ordered grouping of activities which compliment one another by providing a focus for after hours facilities of a non-residential nature. The proposal having regard to the availability of the common area for access and the provision of a relatively large number of on- site car parking spaces would provide a level of convenience to the locality to an acceptable standard. Aim 7 of the Strategic Plan is to promote confidence and realistic expectations concerning development to be permitted in the future. The current zoning is undoubtedly a significant factor to be taken into consideration in relation to the realistic expectations concerning developments in the future. The addition of the categories of Local Store and Video Shop cannot be seen to produce a lack of confidence in relation to the expectations concerning developments in the locality. The existing zoning will permit non-residential uses to trade after hours and seven days a week. The proposed rezoning would not significantly alter that expectation but will confirm the expectation for that form of development as nominated in the zone. As the Development Development subject land is Zone the addition currently to the Zone cannot be seen as one inappropriate in the circumstances. with a Particular nominated Particular whereby the zone is -- 9 of 10 -- 10 On all the evidence I am persuaded that the appellant has established that the application should be approved and the appeal allowed. As a matter of conditions, if any, to be imposed in relation to the application was not considered in detail by the Court, the appeal will be adjourned to the 8th day of October, 1992 to permit the respondent within 30 days from the date hereof to notify the appellant and the respondents by election in writing of proposed conditions, if any, which it desires to impose on the application. The appellant within seven days of the receipt of such notification shall notify the respondent in writing of conditions, if any, to which objection is made. (t -- 10 of 10 --