Planning and Environment Court of Queensland fuels a proposed development in allowing an appeal against the decision of a local government to restrict the operating hours of a service station

In brief

The case of Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22 concerned an appeal to the Planning and Environment Court of Queensland (Court) by Ashanti Logistics Pty Ltd (Applicant) against conditions imposed by the Sunshine Coast Regional Council (Council) on a development permit for a material change of use.

The Applicant sought a development permit to facilitate the redevelopment of four lots containing a service station and a single storey detached house into a modern service station (Proposed Development). The Council approved the Applicant's development application by way of a negotiated decision notice which imposed conditions that relevantly related to the hours of operation, design, landscaping, and roadworks. At the time of the hearing, the only remaining condition in dispute related to the hours of operation, which stated as follows (Condition):

"The approved use must not operate outside the hours of 7am to 10pm Monday to Sunday."

The Council argued that the Condition is relevant to and is reasonably required to preserve the planning intent of the Sunshine Coast Planning Scheme 2014 (Version 21) (Planning Scheme) for the reason that it prevents the loss of amenity and seeks to ensure the Proposed Development only services the immediate area. The Applicant disagreed, and argued that the Condition is not lawful and should not be imposed. The Court allowed the appeal on the basis that the Condition is not relevant to or reasonably required by the Proposed Development as provided for under section 65 of the Planning Act 2016 (Qld).

Court finds that the Condition is not reasonably required in relation to the Proposed Development or the use of the premises as a consequence of the Proposed Development

The Council argued that the Condition is reasonably required because it mitigates unacceptable adverse amenity impacts from noise, light, and glare created by the Proposed Development. The Council relied on the evidence of its town planning expert, who opined that the amenity impacts will be caused by car doors, tyres, and noise in an otherwise quiet area (at [65]). The Council also argued that these concerns were shared by the local residents of the local area (at [57]).

The Court considered the Council's arguments and held that "…[the Condition] is not a reasonable response to a change that will be occasioned by the commencement of the [P]roposed [D]evelopment" (at [101]), and that the noise impact from the Proposed Development is acceptable and that the lighting and glare impacts from the Proposed Development are acceptable.

Noise impact from the Proposed Development is acceptable

The Court first considered the existing amenity of the local area. The Council argued that no use operated in the Local Centre Zone past 10.00 pm, giving the town a "small community feel" from the perspective of the local residents (at [51]). The Council conceded that the use rights of a service station are not constrained by operating hours, and that the existing service station had previously operated with extended hours (see [41] and [43]).

The Court rejected the amenity description of the area as quiet and instead preferred the evidence provided in a report from the Applicant's acoustic engineering expert. The Applicant's acoustic engineering expert recorded the night-time noise at 36 decibels and opined that the amenity could not accurately be described as "very quiet" (at [63]). Thus, the Court held that the ambient noise measurement does not reflect the acoustic amenity as argued for by the Council.

Both parties' acoustic engineering experts accepted that an appropriate noise criteria ranged between 35 to 52 decibels. The noise impact assessment prepared by the Applicant and submitted as part of the development application process demonstrated that the continuous operation of the Proposed Development would satisfy the appropriate noise criteria, with the adoption of controlled measures.

The Court accepted the Applicant's argument and held that the Proposed Development will not adversely impact the acoustic amenity of identified sensitive uses within the proximity of the Proposed Development if appropriate noise-control measures are implemented. The Court held that the Proposed Development therefore complies with the Performance Outcomes PO2 and PO9 of the Service Station Code, and Performance Outcome PO1 of the Nuisance Code in the Planning Scheme.

Lighting and glare impacts of the Proposed Development are acceptable

The Applicant's lighting expert submitted that the area surrounding the Proposed Development is currently heavily affected by light sources other than that of the Proposed Development. The Applicant's expert opined that the Proposed Development can comply with Australian Standard AS4282:2019 Outdoor Lighting Obtrusive Effects as stated in the Applicant's lighting impact assessment report.

The Council did not present any expert evidence on lighting and the Court accepted the Applicant's lighting expert's opinion. The Court held that the 24-hour operation of the Proposed Development will achieve compliance with Performance Outcome PO11 of the Nuisance Code in the Planning Scheme.

Court finds that the Condition is not relevant to the Proposed Development or the use of the premises as a consequence of the Proposed Development

The Council argued that the imposition of the Condition is supported by Performance Outcome PO9 of the Service Station Code, and ensures that the Proposed Development will only serve the local level convenience needs of residents and visitors in the immediate area.

The Council's first argument was that Performance Outcome PO9 of the Service Station Code is intended to minimise an unreasonable loss of amenity for existing and planned residential areas caused by retail business activities. The Council first raised the alleged amenity impact on planned residential areas in oral submissions during cross-examination.

The Court was not satisfied that the Council's oral submissions quantified any amenity impact on future planned residential uses. The Court relied upon its earlier findings in respect of the Proposed Development satisfying Performance Outcome PO9 of the Service Station Code and held that the Condition cannot be lawfully imposed to preserve the amenity of the surrounding area.

The Council's second argument was that retail business activities are intended under the Planning Scheme to only serve the local level convenience needs of residents and visitors in the immediate area. The Court held that the Condition was not justified by the assessment benchmarks relevant to the consistency of the use of the land for the following reasons:

• The Council approved the Proposed Development and maintains that a service station is appropriate even if the Condition is not imposed.

• The previous tenants of the service station had operated 24 hours and the existing lawful use rights do not constrain the hours of operation.

The Court held that the Condition could not be justified on the basis of the intensity or function of the Proposed Development when the relevant assessment benchmarks are "…viewed through the lens of the local context in which the development is proposed" (at [138]). The Court also held that the proposed 24-hour operation of the Proposed Development does not indicate a more intensive use than a service station with restricted operating hours because the Proposed Development will not provide for a wide range of local shopping and will not compete with retail offerings in more established centres (at [145]), and the Proposed Development will not attract traffic from outside the local area and will have low levels of usage during the night-time period (at [146]).

Court finds that the Condition is unreasonable

The Court held that even if the Condition was relevant to ensure that the Proposed Development protects the amenity of surrounding areas or to control the intensity of the use, the Condition would nevertheless be unreasonable because the Condition is not required to achieve compliance with the relevant assessment benchmarks, and therefore cannot be lawfully imposed (see [149] to [162]).

The Court held that the conditions reflected in the noise impact assessment were relevant and reasonably required to be imposed on the Proposed Development as agreed by the parties (at [87]). These conditions included the construction of acoustic walls, noise barriers, and limited the operating hours of delivery services and audio visual displays.

Conclusion

The Court allowed the appeal and ordered that the Council's decision on the development application be replaced with an approval, subject to the agreed conditions that minimise acoustic amenity impacts.