In brief

The case of Navara Back Right Wheel Pty Ltd v Logan City Council and Ors; Wilhelm v Logan City Council and Ors [2019] QPEC 67 concerned submitter appeals to the Planning and Environment Court against a development approval given by the Logan City Council (Council) to Citimark Properties Pty Ltd (Developer). The approval authorised the development of a service station, shop, and food and drink outlet on land in Cornubia. 

The submitter appellants (Submitters) argued that the development did not comply with the Logan Planning Scheme 2015 (Planning Scheme) because it comprised "centre activities", which should not be located on land zoned as rural residential. The Submitters argued that the centre activities would have unacceptable impacts on traffic and the character and amenity of the area. The Submitters also argued that the relocation of an existing bus stop in accord with the conditions imposed by the concurrence agency would be unsafe and detrimentally impact on the privacy of one of the Submitters.

The Court dismissed the appeals but set the development approval aside and ordered that it be replaced with a new decision incorporating updated conditions. In particular, the Court found as follows:

  • when the Planning Scheme was read as a whole, it was clear that it did not limit the location of "centre activities" to areas designated as "centres" within the Planning Scheme;

  • if the Court was wrong to conclude that centre activities were not limited to designated centres, the proposed development substantially complied with the requirements contained in the Planning Scheme for centre activities; and

  • the proposed development would meet an identified need for affordable fuel in the area, provide an opportunity to increase competition and choice in the fuel market, and improve elements of the local road network.

Proposed development

The proposed development was for a service station, shop, and food and drink outlet, which would operate 7 days a week, 24 hours a day. 

The land is located on the corner of a four lane arterial road, which carries approximately 22,000 vehicles per day, and a smaller two lane road. The amenity of the land and area generally is significantly impacted by noise from road traffic. Although the land is zoned as rural residential, the evidence was that the land had a "more urbanised character" (at [23] and [26]). 

Planning Scheme does not limit the location of centre activities to areas designated as "centres" within the Planning Scheme

The Submitters asserted that the proposed development materially departed from the provisions relating to "centre activities" in the Planning Scheme. It was argued that because the Planning Scheme was to be treated as an expression of the public interest, it should not be readily departed from. 

The Submitters relied on section 3.5.8.1(1)(a) of the Strategic Framework, which stated that centre activities had to be: (i) located in a centre; (ii) consistent with the intent of the centre; and (iii) at a scale compatible with the role and function of the centre in the centre hierarchy. 

The Submitters argued that the development did not fall within the exception to subsection (1)(a) contained in section 3.5.8.1(1)(b). Subsection (1)(b) relevantly provided that subsection (1)(a) did not apply if: there was a community and economic need for the use; the use did not have unacceptable adverse effects on an existing or planned centre; the use could not be located in a principal, major, district, local or neighbourhood centre; and, the use has a specific locational need requiring its location outside of a centre and is located in accordance with that need. 

The Court said that although centre hierarchy planning was an important forward planning tool in a planning scheme, it was necessary to read the planning scheme as a whole before drawing conclusions as to the limits of a planning strategy (at [45]).

The Court concluded that when the Planning Scheme was read as a whole, it was clear that the proposed development did not have to be located in a designated centre. The Court relevantly stated as follows:

  • The centre strategy had to be read with other parts of the Planning Scheme, which allow uses that are centre activities to be located in out-of-centre locations without having to comply with section 3.5.8.1(1) (at [74]). The particular uses in this case were anticipated within and outside of the centre hierarchy (at [85]).  

  • Section 3.5.8.1 applied to new and expanded centres. The word "centre" was understood to mean a centre identified in section 3.5.1(1) of the Planning Scheme and by reference to the other indicators of a centre contained in section 3.5.1(2) of the Planning Scheme, as well as the broader context of the Planning Scheme. 

  • The proposed development was too small to fall within the identified hierarchy of centres set out in section 3.5.1(1), and therefore was not captured by section 3.5.8.1(1) (at [130]). 

If the Court's finding was wrong, the Developer established that the proposed development substantially complied with section 3.5.8.1(1)(b)

The Court said that if it was incorrect in concluding that the proposed development was not captured by section 3.5.8.1(1), the development in any event substantially complied with the exception in section 3.5.8.1(1)(b). That conclusion was based on the following:

  • The service station would satisfy a community and economic need. Although the evidence did not demonstrate an economic need for the shop and food and drink outlet, or for 24/7 trading, the evidence established there would be no unacceptable impact on amenity or character, and that 24/7 trading had identifiable benefits to the public. 

  • The proposed development would have no material adverse effect on existing and proposed centres in or adjacent to the trade area. Although the Court found that land to the west of the Loganholme local centre could theoretically accommodate a service station, this development scenario was unrealistic and impractical (at [153], [158]). 

  • The zone code anticipated non-residential uses and the development could be conditioned to ensure it did not offend the amenity and character of the zone code, and to protect the privacy of the first submitter. This was particularly so given the surrounding area was more urban in character. 

The Court also referred to Broad v Brisbane City Council [1986] 2 Qd R 317, in which the Court stated that the Court could "have regard to the views of residents of the area" when determining the likely effects on amenity, but that such views had to "find justification in specific, concrete likely effects" of the development. Although Council in this case received submissions from the public which raised concerns about the impact of the development on the feel and amenity of the area, such views could find no direct support in the expert evidence. 

Proposed development would not adversely impact traffic conditions and met an identified need for affordable fuel 

In relation to whether the proposed development would adversely impact traffic conditions, one of the Submitter's experts asserted that the service station would complicate the intersection. In particular, the expert emphasised that the service station traffic would compete with local traffic, who would be focussed on the intersection as opposed to traffic from the service station. 

The Court found that the safety of the intersection would not be compromised and had regard to evidence which demonstrated that red light queues during peak hours reduced traffic speed, and the manoeuvres required to navigate the intersection were safe and simple. The Court agreed with evidence that the works would, in fact, improve the safety and efficiency of the road network.  

Finally, in relation to "need", the Court gave significant weight to economic evidence which demonstrated that the proposed service station would result in benefits to the public arising from increased choice, competition and convenience. This was particularly relevant given the surrounding population was car dependent and known to pay higher prices for fuel.

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 2020.

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