In brief

The case of King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 64 concerned an appeal to the Planning and Environment Court by King of Gifts (Qld) Pty Ltd against the decision of the Redland City Council (Council) to refuse a development application for a material change of use to develop a degraded and disused farm for a combined service station, drive through restaurant and associated effluent treatment system.

The Council alleged conflict with more than 120 provisions of the Redlands Planning Scheme Version 4 (Planning Scheme) and 20 provisions of the draft Redland City Plan 2015 (Draft Planning Scheme). By the second day of the hearing, the Council reduced the number of alleged conflicts to 93 which broadly concerned the following subject matters:
  • visual amenity impacts;
  • ecological impacts;
  • nature and location of the use and character of the built form.
The Court did not consider the nature and extent of the identified conflicts as serious, and ultimately held that the economic need for a service station in the location of the proposed development provided sufficient grounds to justify approval.

The Court found that approval of the proposed development would not compromise the ability to implement the Draft Planning Scheme

The Court's consideration of the nature and extent of the identified conflicts was focused on the Planning Scheme as the provisions of the Draft Planning Scheme effectively replicated the provisions of the Planning Scheme. Therefore, the Draft Planning Scheme did not amount to a shift in planning policy that would justify the refusal of the proposed development.

The Court found that the development had been designed to limit the adverse visual amenity impacts occasioned by the proposed development

The Council submitted that, if approved, the proposed development would be at variance with the existing built form and character of the area which reflected a "non-urban or rural landscape setting" and for which the Planning Scheme contemplated "low key" development "akin to a detached dwelling, within a native habitat area, and as part of a fauna movement corridor" (see [30]).

The Court accepted the evidence of the Council's expert that the type and scale of the proposed development would change the existing built form and character of the location, as it would involve an "intensively developed complex … with a distinctly urban character" and in particular, because of the night time glow created as a result of the 24 hour a day use (see [31] - [33]).

The Court held that the incompatibility between the proposed development and the semi-rural landscape setting gave rise to a conflict with the Planning Scheme. However, the Court did not consider the conflict as serious and held that it was tempered by, among other things, the existing vegetation and topography of the subject site, the low rise appearance of the building height being markedly less than the "height that could be achieved by a compliant two storey house", and the ability to screen the proposed acoustic fence with attractive landscaping (see [34]).

In assessing the effluent treatment system, the Court was satisfied that the cropped grass, intended for irrigation, did not present a conflict with the provisions relevant to visual amenity because parts of the subject area would include patches of native grass and some trees. Further, the proposed development would not prevent the local waterway on the subject site from providing natural urban separation envisaged by the Planning Scheme.

The Court found that the Planning Scheme did not require that development enhance the environmental values of the subject area
It was submitted by the Council that the Planning Scheme required that development enhance, protect and maintain the ecological values in the area, in particular the existing fauna corridor, and anything less would give rise to a conflict.

The Court did not construe that requirement as requiring strict compliance and held that it was enough that development maintain the "ecological processes and community wellbeing" (see [46]). Further, the strategic framework under the Planning Scheme, while seeking to encourage enhancement of environmental values, "left open the prospect that enhancement would be coupled with development" (see [53]).

The Court found that the Planning Scheme did not prescribe the extent to which habitat and native vegetation is to include trees and shrubs

The northern portion of the subject site required over 5,000 square meters of irrigated grassland to accommodate the effluent treatment system. The Council submitted that the irrigated grassland was not sufficient to meet the requirements of the Planning Scheme because it did not constitute native habitat or enhance the fauna corridor as it lacked "diversity of either flora or fauna" (see [71]).

The Court was satisfied that the grassed area was the type of habitat sought by the Planning Scheme and therefore held there was no identifiable conflict in terms of ecological impacts.

The Court held that approval of the proposed development would give rise to a conflict with the Planning Scheme in terms of the nature and location of the use and character of the built form

The Appellant's town planning expert conceded that a service station and drive through restaurant on the subject site was not a low-key use, although he did contend that "as far as a service station goes it's a low-key service station" (see [80]).

The Court did not consider this description as relevant as the use of a service station was fundamentally inconsistent with the types of low-key uses envisaged by the Planning Scheme and for that reason, incompatible with the locality.

The Court found that the extent and nature of the identified conflicts were tempered by a number of design considerations

In addition to the low rise appearance of the proposed development, the effluent treatment system would have a negligible visual impact as a consequence of, among other things, its location set below the tree-line and its park like appearance.

Having regard to the planning rationale underpinning the Planning Scheme, the Court concluded that the overall visual amenity and environmental goals of the Planning Scheme would not be materially compromised by the proposed development.

The Court found a clear and strong level of economic need for a service station and drive through restaurant

The number of residents and the limited number of service stations in the area demonstrated an existing and unsatisfied demand for the proposed development. Further, the projected population increase in Redland City and the projected growth of the fuel market in the primary trade area highlighted the importance to provide for an additional two service stations.

The Court held that the co-location of the proposed service station and drive through restaurant would satisfy the existing need by providing "increased convenience, choice and competition" in the growing market (see [102]).

The Court accepted that other relevant grounds supported approval of the proposed development, in particular the absence of ecological impacts and the minimal visual impact, however it did not consider these at length as the economic need was sufficient to justify the approval.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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