Insights

In brief

The case of K & K GC Pty Ltd v Gold Coast City Council [2018] QPEC 009 concerned an Applicant appeal against the Council's decision to refuse a development application for a combined service station, coffee shop and take away food premise.
 
The Court allowed the appeal and held that there were sufficient grounds to justify approval of the proposed development despite the conflicts with the Gold Coast Planning Scheme 2003 (2003 Planning Scheme).

 

Planning framework

At the time the development application was made, the 2003 Planning Scheme was in effect. The 2003 Planning Scheme designated five of the six lots the subject of the development application as being within the Residential Choice Domain, with the remaining lot designated as being within the Detached Dwelling Domain.
 
Relevantly, the Gold Coast City Plan 2016 (2016 Planning Scheme) underwent public consultation in June and July 2014, approximately 15 months prior to the time the development application was made. The 2016 Planning Scheme designated all six lots as being partly within the Low Density Residential Zone and partly within the Medium Density Residential Zone and included the site in the suburban neighbourhood designation under the Strategic Framework.
 

Issues in the appeal

The issues in the appeal were as follows:

1. the nature and extent to which the proposed development conflicted with the 2003 Planning Scheme having regard to the following:a.
a. take away food premises and a fast food outlet were identified as undesirable uses;
b. the service station was an inappropriate use given the following:
i. insufficient setbacks;
ii. unacceptable impact on residential character and amenity;
iii.  impermissible traffic implications;
iv. the absence of a demonstrated need.
 
2. whether there were sufficient grounds to justify the approval of the proposed development despite the conflict with the 2003 Planning Scheme; and

3. whether the 2016 Planning Scheme should be given significant weight in the assessment of the proposed development.

Conflict with the 2003 Planning Scheme

The 2003 Planning Scheme relevantly provided that a takeaway food premise and a fast food premise were generally considered as inappropriate under the relevant zones. The Court agreed that the provision, on face value, indicated a clear policy that take away food and fast food outlets are not to be developed in either the Residential Choice Domain or Detached Dwelling Domain. However, the Court concluded that the proposed development should not be refused on the basis that the development would be of benefit to the local residents and would not have a significant impact on the hierarchy of centres.
 
The Court also rejected the Council's "unfounded" arguments relating to the insufficient setbacks and unacceptable impact on residential character and amenity. The Court found that the design of the proposed development not only fulfilled the requirements of the 2003 Planning Scheme in regards to the setbacks, residential character and amenity, but it also "impresses as an exceptional design that not only respects the existing streetscape character, but also enhances it" (see paragraph [64]).
 
The Council also submitted that the proposed development would give rise to unacceptable safety issues for motorists due to the short distance to decelerate when entering the site which conflicted with the Service Station Code under the 2003 Planning Scheme. The Court found that the proposed development satisfied the performance criterion and would not result in an unreasonable or intolerable increase in the safety risk that drivers presently confront whilst travelling in the area.
 
With respect to need, the Council conceded that there was a low level of need for the proposed service station but argued that this low level of need was insufficient in satisfying the Service Station Code. The Court had relied on its previous decision in United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8, in which it observed the following to justify its position (at paragraph [81]):
 
"A need does not have to be particularly strong to be a demonstrable need. The provision ought however, consistently with the ordinary principles of construction, as they are applied to planning schemes, be interpreted as referring to a real or substantive (rather than trivial, immaterial, minor or insignificant) need which is capable of being shown or logically proved."
 
The Court concluded that a decision to approve the proposed development would not conflict with the Service Station Code as there was a higher need for the proposed development than that conceded by the Council.

Sufficient grounds to justify approval

The Court considered whether there were sufficient grounds to justify the approval despite the proposed development conflicting with the 2003 Planning Scheme, in particular whether there was a determinative need as well as other matters of merit. The Council argued that there was no relevant demonstrated need for a 24-hour service station, as there were already pre-existing 24-hour service stations within the area, and that the low traffic volume in the area at night was indicative of the low level of need.
 
The Applicant argued that the existing 24-hour service stations within the area were reflective of the "trends and expectations of the community in relation to the access of petrol stations and their associated convenience stores" (see paragraph [255]). The Court agreed with the Applicant's submission that access to a 24-hour service station would be beneficial to the physical wellbeing of the community.
 
The Court also found that a 24-hour service station would extend the choice available to residents and therefore was satisfied that there was a demonstrated need for the proposed service station to operate 24 hours a day.
 
In relation to the 2016 Planning Scheme, the Council contended that the Court should exercise its discretion to afford the 2016 Planning Scheme significant and overwhelming weight on the basis that the draft 2016 Planning Scheme was publicly exhibited between June and July 2014 which was approximately 15 months prior to the submission of the development application and that the proposed development conflicted with the 2016 Planning Scheme.
 
The Court concluded that it would be unfair to give the 2016 Planning Scheme determinative weight as the Council had not referenced the 2016 Planning Scheme in its decision notice. Additionally, the Court found that the decision to approve the proposed development would not cut across the 2016 Planning Scheme and therefore did not create significant conflict with the 2016 Planning Scheme so as to warrant refusal of the development application.
 
The Court therefore found that there were sufficient grounds to justify the approval of the development application despite the conflicts with the 2003 Planning Scheme.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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