The case of Fort Street Real Estate Capital Pty Ltd v Redland City Council  QPEC 59 concerned an appeal to the Planning and Environment Court (Court) against the decision of the Redland City Council (Council) to refuse a development application for a development permit for a material change of use and for reconfiguring a lot to create an access easement and subdivision by lease, in order to redevelop a part of a car park located within a shopping centre precinct to include a McDonald's restaurant with a drive-through (Proposed Development).
The parties agreed that the Court's assessment of the development application for reconfiguring a lot would follow the outcome of the Court's assessment with respect to the development application for the development permit for the material change of use.
The Court considered the following issues in assessing the Development Application under section 45(3) of the Planning Act 2016, and section 43, section 45, and section 46 of the Planning and Environment Court Act 2016:
Issue 1 – whether the proposed building, drive-through facility, and retaining wall complied with the relevant overall and performance outcomes of the District Centre Zone Code of the Redland City Plan 2018 (version 3) (Planning Scheme).
Issue 2 – whether the Proposed Development complied with the relevant overall outcomes of the District Centre Zone Code and the Landscape Code of the Planning Scheme.
The Court assessed the appropriateness of the Proposed Development against the assessment benchmarks in the Planning Scheme, having regard to the setting and context of the Proposed Development. The Court stated that it is the acceptability of the use of the subject land, rather than a concept of the best possible use for the subject land, which is to guide an assessment of appropriateness.
The Court was satisfied that the Proposed Development complied with each of the relevant, "generally worded" assessment benchmarks, and held that even if it were wrong about compliance, any non-compliance would not justify refusal because the use proposed is expressly contemplated by the Planning Scheme and the Proposed Development, including the proposed landscaping, is appropriately designed.
The Court held that the use of the subject land as a McDonald's restaurant was uncontroversial under the Planning Scheme and ordered that that appeal be allowed and the Proposed Development be approved subject to the imposition of a condition with respect to the material and design of the retaining wall.
Subject land and Proposed Development
The subject land is located within the Birkdale Fair Shopping Centre at Birkdale (Shopping Centre), which is anchored by a Woolworths supermarket and a range of other commercial and specialty shops.
The area surrounding the subject land includes a wide variety of commercial, retail, residential and open space land.
The Proposed Development was proposed on the south-eastern corner of the Shopping Centre car park, with landscaping to be used to soften the built-form of the McDonald's restaurant. The current ingress and egress points to the subject land were proposed to be reconfigured to allow for drive‑through access to the McDonald's restaurant, with a retaining wall to be built to screen the drive-through facility and associated traffic.
The Proposed Development also included the reconfiguration of car parking to the east and north of the subject land and a 10-year lease to enable the McDonald's business to operate.
Issue 1 – The proposed building, drive-through, and retaining wall of the Proposed Development complied with the District Centre Zone Code
Section 5.3.3(4) of the Planning Scheme states that code assessable development that complies with the purpose and overall outcomes of a code, complies with that code.
The purpose of the District Centre Zone Code included the creation of district centres, "which contain a diverse mix of residential accommodation, businesses, services and facilities to meet the weekly needs of a district population in the order of 15,000 people".
The following overall and performance outcomes of the District Centre Zone Code were relevant to the Court's decision that the building, drive-through, and retaining wall of the Proposed Development complied with the District Centre Zone Code:
Overall outcomes 2(f) and 2(g) and performance outcomes 11, 12 and 14 – The Court held that the Proposed Development would have three frontages with facades to face two main roads and the main car park, would use a satisfactory design and building materials, and that the perpendicular‑angled built form of the Proposed Development would not dominate the locality, but would rather break up the rigid built form of the existing Shopping Centre.
Overall outcomes 2(f), 2(g), 2(i), and 2(j) and performance outcome 14 – The Court held that the drive-through satisfied the general words of the District Centre Zone Code of the Planning Scheme because the proposed retaining wall and vegetation would provide sufficient concealment and screening, the proposed design minimised vehicle access as far as possible for the intended use, provided safe and integrated pedestrian access, and the car parking was located behind or beside the building as required by the Planning Scheme.
Overall outcomes 2(f), 2(g), and 2(i), performance outcome 11 and overall outcomes 2(a) and (b) and performance outcome 1, 3, and 4 of the Landscaping Code – The Court held that the retaining wall complied with the Planning Scheme, however, to soften the edge between the boundary and built form of the Proposed Development, the Court held that a condition ought to be imposed requiring the retaining wall to be painted or clad with attractive materials.
The Court noted in respect of Issue 1 that a drive-through is not what is contemplated by the requirement in performance outcome 11 of the District Centre Zone Code of the Planning Scheme to "[minimise] non-active elements such as vehicle access". In the event the Court was wrong in its interpretation, it was satisfied that the architectural design of the drive-through minimised vehicle access to an adequate extent given that a drive-through is an integral part of the use.
Issue 2 – The Proposed Development positively contributes to the surrounding streetscape and complied with the Landscaping Code
The purpose of the Landscaping Code is relevantly to ensure landscaping of a high standard, which contributes to Redlands' image, local character, and remains fit for purpose in the long-term.
The Court observed that the vicinity surrounding the subject land has an eclectic range of landscaping and that the Proposed Development would result in the removal and replacement of five unremarkable trees.
The Council submitted that the Appellant would not be permitted to plant on the Council-owned road reserve verge area as proposed in the Appellant's design drawings.
The Court acknowledged its inability to lawfully condition the planting on the road reserve, but noted that the Council's position would render the proposed retaining wall more visible from Mary Pleasant Drive than pursuant to the design drawings, and would restrict the Council from taking the position that the retaining wall and landscaping are non-compliant with the Planning Scheme due to a lack of planting on the road reserve.
The Court held that the proposed landscaping was superior to that existing on other corners and frontages of the District Centre and accepted evidence that the landscaping was "appropriate for a prominent corner of a shopping centre, where higher levels of screening would conflict with commercial imperatives and [crime prevention through environmental design] principles".
The Court held that the Proposed Development was appropriate having regard to the setting and context of the Proposed Development and its compliance with the relevant assessment benchmarks in the Planning Scheme.
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