Planning and Environment Court of Queensland refuses a submitter appeal against a gymnasium and rock climbing facility in a locality approved for warehouse and industry uses

In brief

The case of Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 16 concerned a submitter appeal to the Planning and Environment Court of Queensland against a decision of the Brisbane City Council (Council) to approve a development application for a development permit for a material change of use to facilitate a gymnasium and rock climbing facility (Proposed Development) in an existing building which forms part of the "The Depot" on the south-eastern corner of Colmslie, Lytton, and Junction Roads at Morningside (Premises).

There are three large buildings on the Premises with approvals for warehouse, low impact industry, and medium impact industry uses. The Premises is adjacent to operators of an abattoir and a bulk shipping terminal, who each lodged a submission with the Council opposing an approval of the development application (Submitters). The Applicant sought to carry out the Proposed Development for only a period of two years.

The Submitters argued that the Proposed Development is an inappropriate use of the Premises and will result in unacceptable traffic impacts and adverse impacts on existing industrial uses. The Applicant argued that there is a need for the Proposed Development, and its approval is supported given its temporary nature and other relevant matters, and the Council supported the Applicant's position. The Court considered the issues that were in dispute between the parties and reached the following conclusions:

• The Proposed Development satisfies many relevant assessment benchmarks, and there is no unreasonable risk of constraint on industrial uses, impacts on the road network, or inadequate car parking.

• Other relevant matters supported the approval of the Proposed Development.

Court finds that the Proposed Development satisfies substantive assessment benchmarks

The Submitters contended that the Proposed Development is inconsistent with several assessment benchmarks in the South East Queensland Regional Plan 2017 (SEQ Regional Plan), Brisbane City Plan 2014 (version 18) (City Plan), and Temporary Local Planning Instrument 02/21 – Colmslie Road Industry Precinct (TLPI). The assessment benchmarks and the Court's consideration of them was as follows.

Proposed Development is of neutral appropriateness

The Submitters argued that the Proposed Development is an inappropriate land use because of the type of use, and the scale and form (at [15]). The Submitters relied on chapter 3, part A, goal 2 of the SEQ Regional Plan, and the "core" provisions of the City Plan in particular the Strategic Framework, Industry Zone Code, River Gateway Neighbourhood Plan Code, and Indoor Sport and Recreation Code as "core" provisions (at [20]). The Court's consideration and conclusions of these provisions is set out below.

Proposed Development is neutral with the purpose of the Industry Zone Code

The purpose of the Industry Zone Code is described in section 6.2.5.2.1 of the City Plan as follows: 

"The purpose of the industry zone is to provide for:
a. a variety of industry activities; and
b. other uses and activities that: 

i. support industry activities; and
ii. do not compromise the future use of premises for industry activities."

The Court held that the Proposed Development is not for an industrial or warehouse use and is therefore inconsistent with section 6.2.5.2.1(a) of the City Plan (at [27]).

In assessing whether the Proposed Development complies with section 6.2.5.2.1(b) of the City Plan, the Court examined overall outcomes OO4(f) and OO4(g) in section 6.2.5.2, which excludes stand-alone offices and identifies anticipated uses. The Submitters conceded that the proposed use is not a use anticipated in overall outcome OO4(g) as the Proposed Development is not an ancillary use to any other use on the Premises (at [38]). The Court held that the assessment equally does not support the approval of the Proposed Development, but also does not reveal the use to be non-compliant with the Industry Zone Code.

River Gateway Neighbourhood Plan Code does not support the approval of the Proposed Development

The Submitters argued against the Applicant's interpretation that the River Gateway Neighbourhood Plan Code, which contains five distinct precincts, encourages development that supports additional facilities (at [41]).
The Court observed that under section 7.2.18.3.2.2 of the City Plan, "[t]he purpose of the River gateway neighbourhood plan code is to be achieved through the overall outcomes, including overall outcomes for each precinct of the neighbourhood plan area" (see [42] and [44]).

The Court held that there are no non-compliances between the Proposed Development and the River Gateway Neighbourhood Plan Code because the Proposed Development does not involve the consolidation of existing uses as encouraged by the City Plan (at [53]). However, the Court went on to find that the assessment against the River Gateway Neighbourhood Plan Code did not give weight to an approval of the Proposed Development.

Proposed Development offends the planning policy in the Strategic Framework

The Applicant argued that the support provided by the Proposed Development for business and workers within industrial areas is within the scope of the Strategic Framework (at [55]).

The Court examined the Strategic Framework and found that it places emphasis on the industrial economy (see strategic outcome 1(g) in section 3.3.1) and on the preservation of industrial land for its intended use (see specific outcome SO7 in section 3.3.4). The Court held that the Strategic Framework has a "…strongly expressed planning policy to preserve and protect land in the Major Industry Area from encroachment by non-industrial use and to prioritise and maximise its use for industrial purposes" (at [72]).

The Court held that the Proposed Development is "at odds" with the planning policy in the Strategic Framework, but that this was significantly reduced by the proposed condition to limit the duration of the approval to a two-year period (at [72]).

The Court also held that the Proposed Development would not pose an unacceptable risk to existing or future industrial uses by reason of reverse amenity impacts for the following reasons:

• The Applicant's town planning expert conceded that the potential for odour nuisance from passing cattle trucks is low (at [199]).

• There is limited risk in introducing the Proposed Development to an industrial area when there are existing sport and recreation facilities in the immediate locality, and the cattle trucks pass within 18 to 30 metres of residential areas classified as sensitive uses under the City Plan of which there have been no complaints pertaining to odour nuisance (see [200] to [201]).

• There is minimal risk to the Submitters that they would be required to adjust operating hours as the potential odour nuisance is "…within the reasonable expectations of individuals at a location proximate to a cattle haul route" (at [202]).

Indoor Sport and Recreation Code supports the Proposed Development

The Submitters argued that the Proposed Development is an inappropriate land use when assessed against overall outcome OO2(b) in section 9.3.11.2 of the Indoor Sport and Recreation Code, which "…ensures that facilities are appropriately located and designed" (at [74]).

The Court held that the Proposed Development would not provide for unacceptable impacts on the privacy and amenity of residents because it is separated from residential dwellings and that the Indoor Sport and Recreation Code supports its approval (at [78]).

Proposed Development aligns with the mixed-use context anticipated in the SEQ Regional Plan

The Applicant argued that the SEQ Regional Plan supports the Proposed Development because it accommodates a mix of commercial uses in major enterprise and industrial areas (at [80]). The Court held that the strategies in the SEQ Regional Plan seek to protect Regional Economic Clusters and to accommodate a mix of commercial uses in major enterprise and industrial areas. The Court rejected the premise of inferring that the zonings in the City Plan ought to reflect the competing strategies of the SEQ Regional Plan and stated it is a "…question of fact to be determined by reference to the circumstances of this case" (see [93] to [96]).

The Court held that the Proposed Development represents an appropriate support use that aligns with the mixed-use context anticipated in the SEQ Regional Plan for the following reasons:

• The Proposed Development does not involve an incompatible land use on the Premises when considering the existing and planned industrial uses in the locality. The Court accepted the expert evidence from the Applicant's and the Council's town planners that "...there is no inherent incompatibility between large format indoor sport and recreation uses and industrial uses, and that the co-location of large scale indoor recreation uses and industrial uses is not uncommon" (at [151]).

• The Proposed Development will provide to local workers convenient access to recreational opportunities, and will support and serve the industry area (at [159]).

• There is an appropriate level of accessibility as the Premises is on the edge of the industrial area and complies with overall outcome OO2(b) in section 9.3.11.2 of the Indoor Sport and Recreation Code (see [161] to [163]).

• The two-year period of operation means that the Proposed Development does not compromise the role and function of the industrial area (see [164] to [181]).

Conclusion as to the appropriateness of the land use

The Court held that the Proposed Development is an appropriate use of the Premises having particular regard to the two-year period of operation from an existing building (at [186]).

Court finds that the Proposed Development will not adversely impact the safety, efficiency, and function of the road network

The Submitters argued that the Proposed Development will result in unacceptable impacts on freight routes and relied on the assessment benchmarks in the SEQ Regional Plan and the Strategic Framework in the City Plan. Whilst the "strong language" of safety and efficiency are present in the assessment benchmarks relied upon by the Submitters, the Court held that the "…provisions should be construed in a way that is practical, recognising that City Plan contemplates that development will occur" (at [222]).

The Court accepted the evidence from the Applicant's traffic engineer as he provided a "cogent explanation" (at [243]) and "…gave appropriate regard to what might be considered reasonable or tolerable traffic arrangements…" (at [252]) to reach the following conclusions:

• The Proposed Development will not have an unacceptable impact on the roundabout adjacent to the Premises since the generated traffic will not "materially affect freight movements" or operate during the Submitters' peak operating hours (at [246]).

• The Proposed Development will not create a traffic safety issue since "…the geometry and topography of [the locality] provides ample sight distance for vehicles" (at [251]).

The Court held that the Proposed Development complied with the assessment benchmarks in the SEQ Regional Plan and the Strategic Framework in the City Plan relevant to sensitive land use, impacts on freight movements, the road network, the road hierarchy, and the safe and efficient operation of development and its surrounds (see [256] to [259]).

Court finds that the adequacy of car parking is not an issue that warrants refusal

The Submitters argued that the Proposed Development does not provide adequate car parking and does not accord with the overall outcomes in sections 9.4.11.2 2(a) and (j) and performance outcomes PO1, PO13, and PO14 of the Transport, Access, Parking and Servicing Code. The Court was satisfied that a condition limiting the number of patrons within the Proposed Development at any one time to 300 would adequately deal with the car parking demands (see [269] and [270]), and that there is compliance with the relevant provisions of the Transport, Access, Parking and Servicing Code (at [271]).

Court finds that the TLPI is a relevant consideration but did not give it decisive weight

The Submitters argued that the TLPI introduced on 29 June 2021, 14 months after the development application was lodged and seven months after it was approved, tells against the approval of the Proposed Development and should be given weight (at [275]). The Court held that whilst the TLPI "is a relevant consideration and deserving of weight", the inconsistency between the Proposed Development and the TLPI ought not be given determinative or decisive weight (at [317]). The Court's reasons included that "…the obligation to assess the [P]roposed [D]evelopment against the assessment benchmarks relates to those that were in effect when the development application was properly made" (at [277]), and the Proposed Development does not offend the provisions of the TLPI because it will cease operation within two years and preserve "…the integrity of the land in the Industry zone for industry use…" (at [303]).

Court considers other relevant matters and exercises its planning discretion

The Court considered other relevant matters relied upon by the parties and reached the following conclusions:

• There is a discernible need for the Proposed Development that will serve a catchment wider than the industrial locality, but in this case need is not decisive on its own (at [382]).

• The Proposed Development is an efficient use of an existing industrial building that will provide an economic benefit to the community without jeopardising the long-term planning intent for the Premises (see [383] to [386]).

• The balance between the Proposed Development not being within the community's reasonable expectations as informed by the City Plan and the overall benefit to the community is an issue that "…does little to advance the case for approval or refusal as compared to the substantive issues that have already been addressed" (at [426]).

The Court held that matters telling against approval "…should not stand in the way of an approval given the considerations that…identified that support approval" (at [436]).

Court's decision

The Court dismissed the appeal and the decision notice was amended to include a condition that limits the patrons to no more than 300 at any one time.

Appeal against the Court's decision

The Submitters sought leave from the Queensland Court of Appeal (Court of Appeal) to appeal the decision of the Court. The Court of Appeal's decision is set out in the case of Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd trading as Australian Country Choice Group v Brisbane City Council & Anor [2022] QCA 246.

The Submitters argued before the Court of Appeal that there were nine errors of law which were summarised into the following two "central issues" (at [5]):

1. The Court erred in law, in a material way, in failing to find that the Applicant held the intention to change the two-year temporary approval condition.

2. The Court erred in law, in a material way, in failing to find that the Proposed Development would be the largest gymnasium in Australia.

Court of Appeal finds that the two-year condition was not an irrelevant consideration and that it was open to the Court to make factual findings

The Court of Appeal noted that the Submitters did not appeal the Council's imposition of the condition that limited the duration of the approval to a two-year period and held that the Court was required to consider the condition (at [13]). The Court of Appeal further held that the Submitters' argument was not an error of law, but rather a complaint about a fact (at [16]), and that the Court was not required to consider the subjective intention of the Applicant since "…such future intention can only be implemented by an application lawfully made under the statutory scheme and determined on its merits at that time" (at [17]).

Court of Appeal finds that the primary judge made no error of law when assessing the Proposed Development

The Submitters argued that the primary judge did not make findings regarding the large scale of the Proposed Development (at [18]). The Court of Appeal held that the primary judge adequately addressed the size and scale of the Proposed Development in the context of the proposed land use and need, and concluded that there had been no error of law (at [18]).

Conclusion

The Court of Appeal held that no error of law was identified and dismissed the application for leave to appeal with costs.