In brief
The case of Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32 concerned an appeal to the Planning and Environment Court by Parmac Investments Pty Ltd against the refusal by the Brisbane City Council (Council) of a development application for a branded service station and convenience store in respect of land located at 1562 Old Cleveland Road and Stanbrough Road, Belmont (subject site).
The issues in dispute were as follows:
1. whether the proposed development is an appropriate use in the zone;
2. whether the proposed development will have unacceptable amenity impacts;
3. whether the proposed development can achieve an acceptable traffic outcome; and
4. the extent to which other relevant matters support approval of the proposed development.
The Court determined that the proposed development did not strike an appropriate balance in terms of other planning considerations, such as respect for the existing and planned character and amenity of the area. The appeal was dismissed.
Consideration of Court of Appeal statements within Bell v Brisbane City Council [2018] QPEC 84 results in Court finding that Bell was not determinative in this case
The Council submitted that the Court of Appeal's statements in Bell v Brisbane City Council & Ors [2018] QCA 84 that the assessment manager should regard the planning scheme as an embodiment which represents the public interest should be applied, and that the statement represents a reduction in the Courts' discretion to approve a proposed development in circumstances where there is conflict found with a relevant planning instrument.
The Court disagreed and determined that as the statutory assessment process under the Planning Act 2016 differs from that in the Sustainable Planning Act 2009, the ratio decidendi of the Court of Appeal decision was not determinative in this case.
Proposed development did not satisfy the relevant requirements in overall outcome (4)(g) of Environmental management zone due to its proposed location and impacts
Under the Brisbane City Plan 2014 (Planning Scheme), the proposed development was located in the Environmental management zone. Overall outcome (4)(g) of the Environmental management zone relevantly states as follows:
“(g) Development for an agricultural supplies store, animal keeping, bulk landscape supplies, emergency services, garden centre, service station, or wholesale nursery:
(i) is of a scale which is compatible with the Environmental management zone;
(ii) is located on a district road or suburban road (or motorway or arterial road only, if a service station);
(iii) supports existing concentrations of centre-type activities;
(iv) is not located within an area of high or general ecological significance on the Biodiversity areas overlay map.”
The Court determined that the proposed development did not satisfy subparagraphs (i), (ii) and (iii) for the following reasons:
1. The Court concluded that the scale of the proposed development was not compatible with the existing rural residential use of the area because the proposed development would have a high level of activity as it would be operating 24 hours a day, and it would involve over 100 square metres of illuminated signage and branding.
2. The Court concluded that the impacts from illumination and traffic generation were greater because the proposed development would be located on the corner of an arterial road and a district road, not on an arterial road as per the requirements of overall outcome (4)(g)(ii).
3. The Court concluded that the location for the proposed service station was not sufficiently close to any established centre or concentration of "centre-type activities" and it therefore conflicted with overall outcome (4)(g)(iii).
There was no dispute about overall outcome (4)(g)(iv) as the subject site was not within an area of high or general ecological significance on the Biodiversity areas overlay map.
Court determined that the proposed development would have an unacceptable visual amenity impact as it would be highly visible and in stark contrast to the rural residential surroundings
The Court determined that the proposed development will be "highly visible", "in stark contrast" with the character of the surrounding rural residential area and "inconsistent and out of scale with the surrounding rural landscape" (at [120] - [122]).
The Court accepted the uncontested evidence from the Appellant's expert that there would not be an unacceptable "adverse acoustic amenity impact" and was therefore satisfied that the proposed development complies with the relevant Planning Scheme codes (at [152]).
The Court, however, determined that it was not satisfied that the proposed development would not have an unacceptable amenity impact due to the proposed development's 24-hour lighting and the "dark environment" which exists at the subject site (at [157]).
Two of the issues relating to traffic outcomes were considered matters for conditions, while the remaining issues were determined to have acceptable traffic outcomes
The following four issues were raised in respect of traffic outcomes:
1. Whether access was acceptable given the layout of the relevant intersection that would provide access to the proposed development.
2. Whether suitable access would be achieved from the relevant intersection that would provide access to the proposed development with an extended shared cyclist/left turn facility.
3. Whether the width of the parking spaces are acceptable.
4. Whether the manner in which fuel tankers would access the subject land as part of the proposed development were acceptable.
The conclusions relating to the traffic outcomes were as follows:
1. The Court was satisfied that the access to the proposed development was acceptable because the Court accepted the Appellant traffic engineer's opinion that the relevant nearby intersection is not a major intersection.
2. After considering the rationality of drivers and the vulnerability associated with cyclists in the relevant proposed cycle lane, the Court determined that the impacts were not so material as to warrant refusal of the proposed development.
3. The Court held that the issues relating to parking width and fuel tanker access could be dealt with via conditions on the proposed development, should the Court allow the appeal, and therefore that they did not warrant refusal of the proposed development.
In considering these issues, the Court did not accept the Council's approach being that the safest "option" for the Court was to restrict access to one entry point on Stanbrough Road. The Court stated that "it is not this Court's role to redesign a particular proposal or conduct an injury as to whether a better proposal might possibly be formulated" (at [162]).
The Court went on to say that the Court is not required to determine whether the proposal ought to be conditioned, instead it is the Council's role is to determine "whether the Appellant's proposed design is acceptable" (at [194] and [199]).
Appellant unsuccessfully submitted that there were other relevant matters in support of approval of the proposed development
The Appellant submitted that the following relevant matters supported approval:
1. There was a significant gap between service stations around the subject site.
2. The subject site represents a logical location to serve the population.
3. The proposed development will introduce price competition.
4. Car ownership in the primary trade area is higher than average.
5. The proposed development would offer 24-hour-a-day access to convenience items.
The Court did not accept the Appellant's submissions and instead found as follows:
1. The significant gap was a result of a clearly expressed planning strategy within the Environmental management zone.
2. There were many other routes upon which potential customers could access service station facilities.
3. The proposed development may assist in increasing competition but will not provide a material impact on fuel prices.
4. The proposed development would not be reliant on the primary trade area. Instead, the economic demand for the proposed development would be from population growth in the tertiary trade area, which is located between 10 and 25 kilometres away.
5. There is no shortage of 24-hour service station facilities and therefore there is not a material lack of convenience for residents in the primary trade area.
Conclusion
The Court was not persuaded that there was a need for the proposed development and that as it did not strike an appropriate balance in terms of other planning considerations, such as respect for the existing and planned character and amenity of the area, the appeal was dismissed.