In brief

The case of United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 008 concerned an appeal by United Petroleum Pty Ltd against the Gold Coast City Council's refusal of the Appellant's development application for a development permit for a material change of use for a service station and a shop on land situated at Hilda Street and the Gold Coast Highway, Mermaid Beach.

The site was located between a neighbourhood centre, a cluster of mixed use developments and residential streets.

The proposed development included a proposal for a twenty-four hour service station, trading seven days a week. The plans depicted a modern service station with illuminated signage comprising of three fuel pumps with a canopy structure of 6.5 metres. The shop component of the proposal was to be located on the eastern boundary near the Gold Coast Highway and would face the adjoining residential dwellings.

Issues

The Council refused the decision on the grounds that the development application conflicted with the following provisions of the 2003 Gold Coast City Council Planning Scheme (2003 Planning Scheme):
  • the intent for the Residential Choice Domain;
  • the performance criteria in the Residential Choice Domain Place Code;
  • the Service Station Code; and
  • the Retail And Related Establishments Code.

The Court afforded significant weight to the 2016 Gold Coast City Council Planning Scheme (2016 Planning Scheme) as it came into force shortly after the development application was made. Relevantly, the Council argued that the development application conflicted with the following provisions of the 2016 Planning Scheme:
  • the Strategic Framework;
  • the Medium Density Residential Zone Code;
  • the Commercial Design Code; and
  • the Service Station Code.
The Court summarised the conflicts to broadly concern conflicts with the applicable Domain, amenity, location and need.

Issue 1 - Conflicts with the Residential Choice Domain

Under the 2003 Planning Scheme, the subject land was included in the Residential Choice Domain. The purpose of this Domain is stated to be "[to] support the development of a residential pattern comprising mixed dwelling types, including detached dwellings and apartment buildings that relate well to each other" (see [21]).

The Court held that this Domain did not restrict the development of a service station as it is a "support service". The Court noted that the Domain sought to support residential densities that were moderately higher than traditional detached dwelling areas and to provide for support services commensurate with local residents' needs.

The Court noted that the shop component of the development application did in fact conflict with the Domain as a "shop" did not appear in the "table of development" in the Domain provisions, unlike a service station. The town planners opined however that if approval of the service station was acceptable there should be no difficultly also approving the shop use.

Issue 2 - Amenity

The Court attributed significant concern to the impact that the proposed development would have on the visual amenity of the residential area.

The Court accepted that the locality within which the proposed development is located is comprised of four 'character units', being as follows:
  • beachside interface;
  • beachside neighbourhood;
  • highway corridor; and
  • canal estate interface.

The Court found that the proposed development fell within the beachside neighbourhood, beachside interface and the highway corridor.

In relation to the highway corridor, the Court contended that the proposed development was not incompatible with the "image and identity" of the corridor given its mixed use character.

In relation to the beach neighbourhood, the Respondent contended that the proposed development would sharply contrast with the characteristics of the beachside neighbourhood, particularly the adjacent streets of Hilda Street and Seaside Avenue.

The Court focused its attention on the units which directly faced the proposed service station on Hilda Street and Seaside Avenue. The Court found that those occupants would be subject to significant visual amenity impacts.

In particular, the Court was concerned about the impact the proposed development would have on the dwelling owned by one of the Co-respondents. The Court found that the proposed development would impact on the Co-respondent's property in two ways. Firstly, a substantial part of the underside of the service station's canopy would cause a negative visual impact. Secondly, an acoustic barrier would be erected around the Co-respondents property, also causing a significant visual impact. The Co-respondent gave evidence that the proposed development will cause a sense of enclosure to the surrounding neighbours and would seriously detract from the amenity of the area. The Court accepted this evidence and noted that even though the 2003 Planning Scheme did not preclude a service station use in the Residential Domain, the built form of the proposed development would cause significant and unacceptable visual impacts on the immediate neighbours and ultimately warranted the refusal of the development application.

Issue 3 - Location

The Court considered the range of dwellings which neighboured the proposed development. In relation to the apartments to the north of the proposed development, the Court found that it would have an incremental effect on the residents. The Court found however that the effect was not significant as these residents are already subjected to exposure from Hilda Street.

In relation to noise, pollution and lighting, the Court found that the proposed development complied with the relevant provisions in the 2003 Planning Scheme.

Issue 4 - Need

The Court noted that need in these circumstances would be established if on balance the proposed development would improve the services and facilities available to the community.

The Court accepted the evidence presented by the Appellant's expert economist Mr Duane. Mr Duane noted that at the time of the proceeding, residents of the relevant catchment area travel up to 15 minutes for a service station. The Court accepted that this was not convenient for the modern consumer. The Court was therefore satisfied that the subject site was conveniently located for a service station, however the economic evidence with respect to the expectant growth of trade of the service station demonstrated that the need for a service station was insignificant.

2016 Planning Scheme

The Court also afforded significant weight to the provisions under the 2016 Planning Scheme. Under the 2016 Planning Scheme, a service station is impact assessable development within the relevant zone. The Court noted that the relevant assessment criteria included the following:
  • Strategic Framework;
  • Medium Density Residential Zone Code;
  • Commercial Design Code; and
  • the Service Station Code.
The Court referred to section 3.4.5.1(14) of the Strategic Framework, and relevantly found that the development was a stand-alone, small scale commercial use development under the Strategic Framework. The Court held that development meeting the following criteria is supported in the subject location:
  • does not undermine the existing or new neighbourhood centres;
  • provides a direct service to the immediate neighbourhood;
  • maintains a compatible form and scale to nearby development;
  • does not unduly detract from local character; and
  • is not a service station, bar, hotel, nightclub, or supermarket use.
The Court held that the proposed development plainly did not meet the criteria and was therefore in conflict with the Strategic Framework.

The Court noted that at the time the appeal was commenced, the Medium Density Residential Zone Code contemplated the development of a service station if it was appropriately designed and did not detract from the residential amenity of the area. The Medium Density Residential Zone Code was subsequently amended to remove this provision and subsequently did not support the development of a service station within the area. The Court noted however that, in any event, the proposed development would conflict with the Overall Outcomes of the unamended version of the Medium Density Residential Zone Code as the proposed development diminished the residential amenity of the locality.

The Court also noted that the proposed development conflicted with Performance Outcome 4 of the Service Station Code because it would abut a residential land use and was inconsistent with the local amenity characteristics.

The Court therefore held that the proposed development was in conflict with the 2016 Planning Scheme, in particular the relevant provisions in the Strategic Framework.

Findings

The Court was satisfied that the proposed development conflicted with the 2003 Planning Scheme and the 2016 Planning Scheme, particularly because of the visual amenity impacts, and there were not sufficient grounds to warrant 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.

Related Articles