The case of ML Parkway Pty Ltd v Townsville City Council [2024] QPEC 53 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Townsville City Council (Council) to refuse a development application for a development permit for a material change of use to facilitate a modern self-storage facility comprising a site office and 135 self-storage units on land in the low density residential zone.

The Council's reasons for refusal relevantly included that the proposed development is inconsistent with the character and amenity outcomes and land use intentions for the zone and there are relevant matters which support a refusal of the development application (at [48]).

The proposed development is low rise, is consistent with local streetscape character, will not alter the character of the residential neighbourhood, will not result in adverse visual impacts, and is compatible with the local character and amenity (at [69]).

The Court was satisfied that there are sufficient reasons, including relevant matters, in support of approval of the proposed development, despite it being a non-residential use in a residential zone that will serve more than the day-to-day needs of the immediate residential community contrary to the planning strategy for the low density residential zone in the Townsville City Plan (version 2022/01) (Planning Scheme). The Court considered that the Low Density Residential Zone Code in the Planning Scheme (Zone Code) has been overtaken by events because the Council has given development approvals for a number of non-residential uses in the area which have greater character and amenity impacts than the proposed development (at [12]).

The Court approved the development application subject to conditions.

A precursor to deciding whether to approve or refuse the development application was the correct characterisation of the proposed warehouse use under the Planning Scheme.

The Court rejected submissions that the proposed self-storage facility, which is included as an example of a warehouse use under the Planning Scheme, is an industrial use or industrial in nature for the following reasons:

• The definition of warehouse use explicitly includes self-storage facilities and excludes industrial uses and the proposed use is not captured by the definitions or thresholds for industrial uses in the Planning Scheme (see [18] and [29]).

• The Planning Scheme encourages storage uses in industrial zones, but that does not mean it is an industrial use. Whether a use is an industrial use is a matter of fact and degree (see [30] and [31]). In this case, the nature, kind, and scale of the proposed development is not industrial (at [31]).

• Whilst warehouses may historically be regarded as industrial uses, self-storage facilities "…are a modern iteration of warehousing…designed to serve, and be attractive, to a range of customers, including residential users" (at [32]).

The Court observed that the Planning Scheme requires a balancing exercise between protecting character and amenity in the low density residential zone and ensuring communities in the zone are well-serviced, which includes being serviced by non-residential uses but those non-residential uses are not to predominate the zone (see [43], [45], and [133]).

The Court held that the character and amenity of the locality includes a mixture of non-residential uses that adversely impact on the residential uses near the subject land (at [57]).

The Court was satisfied that the proposed development complies with the assessment benchmarks in the Zone Code relating to character and amenity in that the proposed development maintains residential amenity and is consistent with the local character and local streetscape character (see [48]), [63], and [73]). The proposed development can be conditioned such that there are no adverse "hard impacts", being impacts arising from noise, hours of operation, traffic, and privacy. Any visual impact of the proposed development will be limited given its limited visual catchment, multiple built form components, and landscaping screening (see [53], [55], and [69(d)]).

Furthermore, the assessment benchmarks in the Zone Code relating to character and amenity establish a reasonable expectation that the subject land may be developed for a multiple dwelling, residential care facility, or retirement facility with a greater scale and intensity and greater impacts than the proposed development (see [39], [40], and [63(c)]).

The Court held that there is no vacant land in the nearby centre to accommodate the proposed development and that the evidence does not establish that vacant land in the industrial zone is a more appropriate location than the subject land (see [82], [90], and [117]).

Overall outcome 3(h) and performance outcome 18 of the Zone Code state that non-residential uses are to primarily support the "day-to-day" needs of the immediate residential community and local community respectively.

The Court held that self-storage is not a "day-to-day" need of a residential community and in this limited respect there is non-compliance with these assessment benchmarks and that this attracts significant weight in favour of refusal of the development application (see [81], [87], and [95]).

The Court held as follows in respect of the relevant matters relating to the proposed development:

• Ordinarily non-compliance with a planning scheme strategy will attract significant decisive weight in favour of refusing a development application, but the character and amenity planned for the low density residential zone has in part been overtaken by the Council granting approvals for non-residential development of a scale and appearance that has greater adverse character and amenity impacts than the proposed development and this is a matter in favour of approving the development application (see [97(a)] and [132]).

• That the impact of the proposed development is "benign" and the proposed development does not cause adverse character or amenity impacts are matters in favour of approving the development application (see [97(b)] and [97(c)]).

• That the location of the proposed development accords with sound town planning practice and principles in that it involves the co-location of non-residential uses near a local centre, which has benefits of convenience, muti-purpose trips, and containment of impacts, are matters in favour of approving the development application (at [99]).

• That there is an existing shortfall of self-storage facilities in the identified catchment which the proposed development will conveniently meet will enhance community well-being is a matter in favour of approving the development application (see [102] and [103]). The weight to be afforded to this relevant matter is relatively modest in the circumstances because the proposed development is not for "necessaries of life" and only a small proportion of the resident population is expected to use the self-storage facility (at [104]).

• That an approval of the proposed development will not result in adverse town planning consequences is a matter in favour of approving the development application (at [142]).

• That an approval will result in a loss of residential land to meet housing supply is not a matter in favour of refusing the development application (at [100]).

The Court also considered properly made submissions but decided that they attract little weight largely because they are premised on the proposed development being an industrial use with industrial impacts (see [126] to [128]).

The Court approved the development application subject to conditions despite the proposed development introducing a non-residential use in a predominately residential area and it serving more than the day-to-day needs of the local community contrary to the relevant assessment benchmarks.

The reasons for the Court's decision included that the development application significantly complies with the relevant assessment benchmarks in all other respects, the proposed development has limited adverse impacts, development conditions can be imposed to ensure that there are no unacceptable amenity impacts, there is a need for the proposed development and its proposed location is convenient, and the Council has departed from the planning strategy in the Zone Code by permitting non-residential uses of a scale and appearance with greater adverse impacts than the proposed development (at [130]).

The decision is a reminder that decisions to approve development applications that do not comply with the relevant assessment benchmarks in the applicable planning scheme have the potential to undermine the planning strategies in the planning scheme and may enable the Court to make findings in planning appeals that the planning strategies in the planning scheme have been overtaken by events.