PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

Transcription

1 PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: K & K GC Pty Ltd v Gold Coast City Council [2018] QPEC 9 PARTIES: FILE NO/S: 20 of 2017 DIVISION: PROCEEDING: ORIGINATING COURT: K & K GC PTY LTD AS TRUSTEE FOR K & K FAMILY TRUST (appellant) v GOLD COAST CITY COUNCIL (respondent) Planning and Environment Appeal DELIVERED ON: 1 March 2018 DELIVERED AT: HEARING DATE: JUDGE: ORDER: CATCHWORDS: Planning and Environment Court, Brisbane Brisbane 6, 7, 8, 9, 10 and 22 November 2017, 14 December 2017 and 1 and 2 February 2018 Kefford DCJ The appeal will, in due course, be allowed. I will adjourn the further hearing to allow for the formulation of conditions. PLANNING AND ENVIRONMENT APPEAL appeal against refusal of a development application seeking a development permit for material change of use for a service station, coffee shop with drive-through lane and takeaway food premises whether there is conflict with the planning scheme whether the use will have unacceptable impacts on the adjoining residential uses whether the proposed development will have unacceptable impacts on the character and amenity of the area whether there is a need for the proposed development whether there are sufficient grounds to approve the development despite conflict with the planning scheme whether the new planning scheme ought be given determinative weight LEGISLATION: Planning Act 2016 (Qld), s 311 Sustainable Planning Act 2009 (Qld), s 95, s 314, s 317, s 324, s 326, s 461, s 493, s 495, s 496 s 704

2 2 CASES: Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311, approved Body Corporate for Kelly s Beach Resort v Burnett Shire Council & Ors [2003] QPEC 23; [2003] QPELR 614, approved Brencorp Properties Pty Ltd v Pine Rivers Shire Council [1997] QPELR 12, approved Broad v Brisbane City Council & Baptist Union of Queensland [1986] 2 Qd R 317, applied Cass v Gold Coast City Council & Anor [2008] QPEC 32; [2008] QPELR 556, approved Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, cited Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35, distinguished Everson v Beaudesert Shire Council [1992] QPEC 22; [1992] QPLR 129, approved Fitzgibbons Hotel Pty Ltd & Ors v Logan City Council [1997] QPELR 208, approved Gillion v Scenic Rim Regional Council & Ors [2013] QPEC 15; [2013] QPELR 711, approved Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332; (2011) 185 LGERA 55, considered Golder v Maranoa Regional Council & Ors [2014] QPEC 68; [2015] QPELR 292, approved Gorman & Ors v Brisbane City Council & Anor [2003] QPEC 035; [2004] QPELR 29, approved Harburg Nominees Pty Ltd v Brisbane City Council & Anor (No 2) [2016] QPEC 56; [2016] QPELR 979, approved Hawkins v Ipswich City Council [1998] QPEC 26; [1999] QPELR 55, approved Heath v Brisbane City Council & Anor [2008] QPEC 33; [2008] QPELR 566, approved Intrafield Pty Ltd v Redland Shire Council [2000] QPEC 070; [2000] QPELR 337, distinguished Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved Jedfire Pty Ltd v Council of the City of Logan & White [1995] QPLR 41, approved

3 3 Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64; [2015] QPELR 203, approved Knight v FP Special Assets Ltd [1992] HCA 29; (1992) 174 CLR 178, applied K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, approved Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, applied Main Beach Progress Association Inc & Ors v Gold Coast City Council & Anor [2008] QPEC 37; [2008] QPELR 675, approved Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, applied Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, cited MPR Constructions Pty Ltd v Redland Shire Council [2001] QPEC 68; [2002] QPELR 256, distinguished Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2014] QPEC 024; [2014] QPELR 479, approved Parmac Investments v Brisbane City Council [2008] QPEC 7; [2008] QPELR 480, approved Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPEC 20; [2004] QPELR 593, approved PMM Group Pty Ltd v Noosa Shire Council [2005] QPEC 79; [2006] QPELR 144, approved Prime Group Properties Limited v Caloundra City Council and Darracott & Ors [1995] QPLR 147, distinguished Ross Nielson Properties Pty Ltd v Brisbane City Council & Anor; Yu Feng v Brisbane City Council & Ors [2007] QPEC 3; [2007] QPELR 323, cited Thomas Holdings Pty Ltd v Gold Coast City Council & Ors [1991] QPLR 32, distinguished United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8, approved Vanglow Pty Ltd v Council of the Shire of Albert (1991) QPLR 68, distinguished WBQH Developments Pty Ltd v Gold Coast City Council [2009] QPEC 54; [2009] QPELR 746, approved

4 4 WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126, considered Weightman v Gold Coast City Council & Anor [2002] QCA 234; [2003] 2 Qd R 441, applied Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337, approved Westlink Pty Ltd v Lockyer Valley Regional Council (No 4) [2013] QPEC 35; (2014) 198 LGERA 1, cited Wincam Developments No 3 Pty Ltd v Brisbane City Council [2004] QPEC 5; [2004] QPELR 474, cited Woolworths Ltd v Maryborough City Council (No 2) [2005] QCA 262; [2006] 1 Qd R 273, applied Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82; [2014] QPELR 686, applied COUNSEL: SOLICITORS: M A Williamson QC with M J Batty for the appellant M F Johnston with T Jackson for the respondent Connor O Meara Solicitors for the appellant Hopgood Ganim Lawyers for the respondent Table of contents Introduction... 6 The subject site and the locality... 6 The proposed development... 7 The issues... 8 The decision framework Gold Coast Planning Scheme Undesirable nature of the fast food premises and take-away food premises uses Appropriateness of the service station use Setbacks Impact on residential character and amenity Meaning of amenity Identification of the local area Submissions and evidence of the residents Will amenity be unreasonably degraded? Noise, air quality and lighting Visual amenity and character Traffic... 42

5 5 Litter, crime and congregation of undesirable individuals Conclusion regarding amenity impacts Traffic impacts The proper construction of performance criterion PC13 and the nature of the dispute.. 47 Traffic safety issue Demonstrable need required by the 2003 Planning Scheme Conclusion regarding appropriateness of the service station use Nature and extent of conflict Grounds Need General principles The evidence Other grounds City Plan Relevant provisions of City Plan Strategic framework Low Density Residential Zone Code Medium density residential zone code Service station code Conclusion regarding City Plan Other considerations relevant to the exercise of the discretion History of the application Evolution of the issues in dispute Relevance of history and evolution of the issues to the weight to be placed on City Plan Residual discretion Conclusion

6 6 Introduction [1] The appellant seeks a development permit for a material change of use to facilitate development of land situated on Ferry Road at Southport for a service station, fast food premises (being a drive-through coffee shop) and takeaway food premises. Gold Coast City Council ( Council ) refused the appellant s development application, contrary to the recommendations of its officers. The subject site and the locality [2] The subject site is located at Ferry Road, 24 Skiff Street and 21 York Street at Southport, on the south-eastern corner of the signalised intersection of Ferry Road, Cotlew Street East and Skiff Street. It has an area of square metres. 1 It has frontages to Skiff Street (of approximately 36 metres), Ferry Road (of approximately 84 metres) and York Street (of approximately 6 metres). 2 [3] The subject site is currently vacant, and has been since about It is devoid of vegetation. 4 [4] Ferry Road is a defining feature in the locality. It is a six lane divided State-controlled road administered by the Department of Transport and Main Roads. It carries approximately vehicles per day. 5 [5] The site forms part of a discrete and predominantly residential enclave located to the east of Ferry Road, bounded by a waterway to the north (just north of Korong Street), Regatta Parade to the east and south, and Ferry Road to the west. Each of Skiff Street and York Street contains, in large part, detached dwellings of one and two storeys in height. There is a two storey multiple dwelling complex directly opposite the site on Skiff Street, also fronting Ferry Road. 6 [6] The enclave also contains non-residential uses. All four dwelling houses to the north and one of the two dwelling houses to the south accommodate commercial uses, including a sleep therapist, business broker, hypnotherapist, realty and orthodontist. 1 Appeal Book Exhibit 1 Volume 2 Tab 9. 2 Town Planning Joint Expert Report Exhibit 7 p 5 [4]. 3 Town Planning Joint Expert Report Exhibit 7 p 5 [5]. 4 Book of Plans - Exhibit 2 p Traffic Joint Expert Report Exhibit 5 p 2 [5]. 6 Town Planning Joint Expert Report Exhibit 7 p 5 [7].

7 7 A large childcare centre also operates from the north-eastern corner of Ferry Road and Yacht Street. 7 [7] The western side of Ferry Road, between the waterway to the north of Durham Street and Shaw Street, is a strip of commercial uses that includes: directly opposite the subject site, the shopping centre O on Ferry with cafés, retail tenancies and services; and a Night Owl convenience store, coffee drive-through, restaurants, cafés, bottle shops, a Toyota car dealership, a BP service station and the Ferry Road Tavern. 8 The proposed development [8] The proposed development is for a combined service station with convenience store, takeaway food premises and fast food premises (drive-through coffee shop). It incorporates: 9 (c) (d) a service station with three bowser positions to serve six cars, with payment facilities within the convenience store; a convenience store with a gross floor area of approximately 200 square metres, including 92 square metres of retail sales area; fast food premises with a gross floor area of 80 square metres, plus 20 square metres of outdoor dining and a drive-through facility. Toilet facilities, with an area of 75 square metres, are connected to the service station; and takeaway food premises with a gross floor area of 100 square metres; and (e) 21 car parking spaces and nine bicycle spaces. 10 [9] The building height of the proposed development is: to the top of the fuel canopy 5.5 metres; 7 Visual Amenity Joint Expert Report Exhibti 4B p 4 [9]. 8 Town Planning Joint Expert Report Exhibit 7 p 5 [8]. 9 Town Planning Joint Expert Report Exhibit 7 p 7 [14] and [18]. 10 Mr Viney recommended the number of car spaces be reduced from 22 to 21 and the appellant has adopted that recommendation, as noted in Written Submissions on behalf of the Appellant p 5 [22].

8 8 to the top of the main building 6.06 metres; and (c) to the top of the signage 7.25 metres. 11 [10] The proposed hours of operation are: 24 hours a day, seven days a week for the service station and convenience store; and between 6am and 8pm Monday to Saturday and 7am to 8pm on Sundays and public holidays for the drive-through component of the fast food premises and otherwise between 6am and 10pm, seven days a week. 12 [11] Vehicular access is proposed via a combined ingress and egress crossover on Skiff Street, as well as separate ingress and egress crossovers on Ferry Road. Onsite manoeuvring is to be provided for a refuse vehicle and fuel tanker, with fuel and waste deliveries proposed to be limited to the hours between 7am and 6pm, seven days a week. 13 [12] The proposal includes various acoustic barriers, including (but not limited to): an acoustic fence of 4.5 metres in height situated 1.6 metres from the side boundary and up to 3.5 metres back from the Skiff Street frontage, proximate the adjoining dwelling on Skiff Street, with landscaping provided between the acoustic fence and the boundary; and an acoustic fence of 2.6 metres height situated 1.4 metres from the side boundary, adjacent to the property at 19 York Street, with landscaping between the acoustic fence and the boundary. 14 The issues [13] It is not unusual for the issues in dispute to evolve, and typically contract, during the course of preparation for a hearing of an appeal in the Planning and Environment Court. In this case, the timing of the contraction of issues was particularly late. 11 Town Planning Joint Expert Report Exhibit 7 p 7 [15]. 12 Town Planning Joint Expert Report Exhibit 7 p 7 [16] and [17]. 13 Town Planning Joint Expert Report Exhibit 7 p 7 [19]. 14 Town Planning Joint Expert Report Exhibit 7 pp 7-8 [20]; Joint Report of Experts in Noise, Air Quality and Lighting Exhibit 3A p 21 [53] and p 29 Figure 4; Exhibit 21.

9 9 [14] At the beginning of the second day of the hearing, Counsel for Council indicated that, subject to instructions, he may seek leave to amend Council s grounds for refusal. An adjournment for several hours followed. When court resumed after midday on the second day, Council sought leave to rely on a document that identified the substantive grounds it relied on to submit that the development should not be approved. 15 This late amendment, and the consequent loss of time, is unfortunate. This is particularly so given the number of occasions on which Council amended its grounds for refusal. 16 [15] Ultimately, the issues to be determined in this appeal are: whether approval of the proposed development conflicts with the 2003 Planning Scheme by reason of: (i) (ii) the nature of the use as the proposed Fast Food Premises and Take- Away Food Premises are undesirable uses; the proposed Service Station being an inappropriate use because of: (A) (B) (C) (D) inadequate setbacks; unacceptable impact on residential character and amenity; unacceptable traffic impacts; the absence of a demonstrated need; (c) the nature and extent of the conflict and whether there are sufficient grounds to justify approval of the proposed development notwithstanding conflict with the 2003 Planning Scheme; and whether City Plan 2016 ought be given significant and overwhelming weight. [16] I appreciate that these reasons for judgment are unusually lengthy, particularly having regard to the limited issues in dispute, the length of the hearing and the nature of the 15 T2-4/L3 T2-18/L See details at paragraphs [388] to [395] below.

10 10 case. As will become evident below, these reasons are lengthy so that the Council can fully understand the reason for my decision and because: (c) the Council s written submissions, which were 100 pages in length, raised countless arguments with respect to each issue; almost every argument advanced by the Council was advanced on the basis that it alone justified refusal of the proposed development; and although many of the arguments, in my respectful opinion, had no proper foundation, either because there was no evidentiary basis for them or because they involved a misapprehension of the case law and its applicability, having been raised, they nevertheless needed to be addressed. The decision framework [17] The appeal was commenced under s 461 of the now repealed Sustainable Planning Act 2009 (Qld) and is to be decided under that Act. 17 [18] Under s 495 of the Sustainable Planning Act 2009, the appeal proceeds by way of hearing anew. It must be decided based on the laws and policies applying when the application was made, but the court may give weight to any new laws and policies the court considers appropriate. [19] At the time the development application was made, Gold Coast Planning Scheme 2003 ( 2003 Planning Scheme ) was in force. 18 On 2 February 2016, Gold Coast City Plan 2016 ( City Plan 2016 ) commenced. 19 [20] The appellant bears the onus of proof. 20 [21] As the development application was impact assessable, it is to be assessed having regard to s 314 of the Sustainable Planning Act 2009 and decided in accordance with s 324 and s 326. Pursuant to s 326, a decision must not conflict with the 2003 Planning Scheme unless, relevantly, there are sufficient grounds to justify the decision despite the conflict. 17 Planning Act 2016 (Qld), s Town Planning Joint Expert Report Exhibit 7 p 8 [21]. 19 Report of Mr Schomburgk Exhibit 8 p 1 [4]. 20 Sustainable Planning Act 2009, s493.

11 11 [22] Conflict means at variance or disagree with. 21 Any conflict must be plainly identified. 22 [23] The appropriate approach to the interpretation of planning instruments is summarised in Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337. The approach was confirmed in Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82; [2014] QPELR 686. [24] The word grounds is defined in Schedule 3 of the Sustainable Planning Act 2009 as: 1. Grounds means matters of public interest. 2. Grounds does not include the personal circumstances of an applicant, owner or interested party. Gold Coast Planning Scheme 2003 [25] Under the 2003 Planning Scheme, five of the six lots that comprise the subject site are located in the Residential Choice Domain and the other lot is in the Detached Dwelling Domain. The subject site is also located in the urban residential land use theme in the Strategic Framework. [26] Section A of the Table of Development for each of the Detached Dwelling Domain and the Residential Choice Domain listed Service Station as an impact assessable use. [27] Service station is defined to include the use of premises for: 23 The sale by retail of maps, tobacco, confectionary, patent medicines, soft drinks, milk products, newspapers and periodicals, where any such sale is to a person travelling by motor vehicle This term does not include a Shop. [28] The fast food premises use and take-away food premises use are not listed in Section A of the Table of Development in either domain, but are taken to be impact assessable uses Woolworths Ltd v Maryborough City Council (No 2) [2005] QCA 262; [2006] 1 Qd R 273, 286 [23]; Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63, 72 [16]. 22 Fitzgibbons Hotel Pty Ltd & Ors v Logan City Council [1997] QPELR 208, Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 166 pt 4 div 1 ch Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 97 pt 5 div 1 ch 2 cl 4.0 sub-cl

12 12 [29] For impact assessable development, the 2003 Planning Scheme requires development to comply with the relevant parts of the whole of the 2003 Planning Scheme. 25 [30] The codes that are relevant to an assessment of the proposed development in the context of this appeal are the Detached Dwelling Domain Place Code, the Residential Choice Domain Place Code and the Service Station Code. [31] Insofar as codes are concerned, the 2003 Planning Scheme stipulates that: compliance is required with all codes to the extent that they are relevant to the development application; 26 development must comply with performance criteria in relevant codes to meet the objectives of the 2003 Planning Scheme and to ensure that the desired environmental outcomes are not compromised; 27 (c) all performance criteria are considered separate and distinct; 28 (d) (e) (f) development that is consistent with the acceptable solutions of a code is considered to have complied with the code s requirements; 29 it is desirable that impact assessable development comply with the acceptable solutions to ensure that each performance criterion is met; however, impact assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant performance criterion; 30 undefined terms are intended to have the meaning assigned to them in common usage, unless the context otherwise indicates or requires; 31 and 25 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 100 pt 5 div 1 ch 2 cl 6.0 and p 128 pt 7 div 1 ch 2 cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 126 pt 7 div 1 ch 1 cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 127 pt 7 div 1 ch 2 cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 127 pt 7 div 1 ch 2 cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 100 pt 5 div 1 ch 2 cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 128 pt 7 div 1 ch 2 cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 128 pt 7 div 1 ch 2 cl 4.0.

13 13 (g) the provisions of the relevant Place Code always take precedence over the provisions of any other code, including any Specific Development Code (such as the Service Station Code). 32 Undesirable nature of the fast food premises and take-away food premises uses [32] Council alleges that the proposed development conflicts with the 2003 Planning Scheme on the basis that: the proposed fast food premises and take-away food premises are uses that are not listed in Section A of the Table of Development for the Detached Dwelling Domain and the Residential Choice Domain; and the 2003 Planning Scheme states: 33 Any use not listed in Section A of the Table of Development, should be considered as undesirable or inappropriate in the domain to which the Table of Development applies. 34 [33] It alleges that the conflict is clear. 35 [34] The appellant accepts that a decision to approve the proposed development would conflict with the 2003 Planning Scheme in this respect. 36 It joins issue, however, with Council s submission that the conflict is serious. [35] I accept that a decision to approve the proposed development would result in clear conflict with the 2003 Planning Scheme. The nature and extent of the conflict are considered in paragraphs [202] to [233] below. Appropriateness of the service station use [36] Council alleges that a decision to approve the proposed development, insofar as it includes a 24 hour, 7 days a week service station, would conflict with the 2003 Planning Scheme on the basis that: the proposed service station does not meet the relevant assessment criteria; and 32 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 126 pt 7 div 1 ch 1 cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 97 pt 5 div 1 ch 2 cl 4.0 sub-cl Exhibit Written Submissions for the Gold Coast City Council p 21 [73] and T7-4/L37 T7-5/L Written Submissions on behalf of the Appellant p 9 [44].

14 14 the 2003 Planning Scheme states: 37 All uses included in Section A of the Table of Development, may be considered as appropriate for the domain to which the Table of Development applies, subject to each use meeting the relevant assessment criteria. 38 [37] The relevant assessment criteria referred to by Council include criteria about: (c) (d) setbacks; impacts on residential character and amenity; traffic impacts; and need. [38] I deal with each in turn below. Setbacks [39] Council alleges that the proposed development is in conflict with performance criterion PC1 of the Service Station Code because: (c) (d) by reasons of cl 4.0 of Part 7, Division 1, Chapter 2 of the 2003 Planning Scheme, it is desirable that impact assessable development comply with the Acceptable Solution to ensure that each Performance Criteria is met ; the streetscape character of Skiff Street and York Street is of residential properties and of a residential community character; the proposed service station does not comply with acceptable solution AS1.2.2 of the Service Station Code because it abuts an existing residential area, and its buildings are not set back a minimum of ten metres from the side and rear boundaries ; the appellant has not, and cannot, provide an alternative solution to comply with performance criterion PC1; and 37 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 97 pt 5 div 1 ch 2 cl 4.0 sub-cl Exhibit 32.

15 15 (e) the buildings and structures are not setback from the side and rear boundaries which are appropriate to the streetscape character of the local area resulting in non-compliance with PC1, including having regard to the minimum setback stated in acceptable solution AS [40] Performance criterion PC1 of the Service Station Code states: All buildings, structures and car parking must provide for setbacks from the street frontage and the side and rear boundaries which are appropriate to the efficient use of the site and the streetscape character of the local area. [41] The related acceptable solutions state: AS1.1 The fuel pumps and canopies are set back a minimum of 7.5 metres from the road frontage/s. AS1.2.1 All buildings and other structures are set back: a) a minimum of ten metres from the road frontage/s; b) a minimum of two metres from the side and rear boundaries. OR AS1.2.2 The site abuts an existing or future residential area, and all buildings, fuel pumps and structures are set back a minimum of ten metres from the side and rear boundaries. [42] The proposed development does not comply with either acceptable solution because it includes: (c) (d) a fuel canopy located, at its closest point, metres from the Ferry Road road frontage; a 4.5 metre high acoustic barrier located 1.6 metres from the eastern boundary adjacent 22 Skiff Street; a canopy over the fuel pumps located metres from the eastern boundary adjacent 22 Skiff Street; and a 2.6 metre high acoustic barrier (stepping down to 2 metres at the southern end) located 1.7 metres from the eastern boundary adjacent 19 York Street Exhibit Book of Plans Exhibit 2 pp 11 and 25-7; Visual Amenity Joint Expert Report Exhibit 4B p 5 [15].

16 16 [43] It is not necessary for the proposed development to comply with the acceptable solutions. Part 7, division 1, chapter 2, clause 4.0 of the 2003 Planning Scheme states: It is desirable that impact assessable development comply with the Acceptable Solutions to ensure that each Performance Criterion is met. However, impact assessable development may comply with an alternative solution, provided that the alterative solution can be demonstrated to meet the relevant Performance Criterion, to Council s satisfaction. [44] Council submits that the minimum 10 metre setback evinces an obvious planning intention to adequately separate an incompatible land use from residential properties where daily life is played out. 41 It placed heavy emphasis on the alternative solution as the desirable solution. It submitted that the setback of the 4.5 metre acoustic barrier from 22 Skiff Street is only 16 per cent of the minimum setback; and the setback of the canopy is only around 52 per cent of the minimum setback. 42 Council submits that such setback distances are clearly not appropriate and accordingly performance criterion PC1 is not satisfied. It describes the setbacks as spitting distance for a hard and incompatible use of a service station proposed to operate 24 hours a day. 43 It submits that there is no valid reason to depart from the objective standard of a minimum of 10 metres. 44 [45] I do not accept Council s approach to consideration of compliance with performance criterion PC1 to be the appropriate approach. I regard the appropriate approach to be that espoused by Rackemann DCJ in Cass v Gold Coast City Council & Anor [2008] QPEC 32; [2008] QPELR 556 at 559, where he stated (with respect to the 2003 Planning Scheme): [16] The proposal does not adopt some of the acceptable solutions in applicable codes under the planning scheme. The Appellant pointed to that as evidence of conflict. That is not necessarily so. The codes for the planning scheme are performance based. Development requirements take the form of performance criteria and corresponding acceptable solutions. Development that is consistent with the acceptable solutions is considered to have complied with the requirement, but development which does not accord with an acceptable solution may present an alternative solution, to demonstrate compliance. As the Court said in SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74 ([2007] QPELR 24): the performance criteria are generally outcome focussed, while acceptable solutions include a desirable way to ensure compliance. The acceptable solutions however, are not the only solutions. Performance criteria generally ought not be 41 Written Submissions for the Gold Coast City Council p 29 [102]. 42 Written Submissions for the Gold Coast City Council pp [103]-[104]. 43 Written Submissions for the Gold Coast City Council p 30 [105]. 44 Written Submissions for the Gold Coast City Council p 31 [109].

17 17 interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution. 48. It is not legitimate to regard departure from the acceptable solution as necessarily indicating noncompliance with the code. In this regard, acceptable solutions differ from development standards which were often feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, an acceptance of an alternative solution does not represent a relaxation or dispensation. It is another way of achieving compliance with the relevant performance criterion. [17] Accordingly, a proposal which departs from an acceptable solution may still be in compliance with the requirements, by the adoption of an alternative solution. In this case, the Co-Respondent contends that the large site area has afforded the opportunity to so design and locate the proposed buildings as to meet the performance criteria in a different way. (footnotes omitted, emphasis added) [46] Here, performance criterion PC1 does not call for an assessment of the setbacks in numerical terms. It calls for an assessment of whether the setback of the proposed acoustic barriers and canopy from the side and rear boundaries are appropriate to the streetscape character of the local area. [47] On the question of the local area and its streetscape character, Council submitted that the focus should be on the residential pocket to the east of Ferry Road. In doing so, it again encouraged the court to read down the plain meaning of PC1 by reference to acceptable solution AS It submitted: 45 AS1.2.2 is referring to setbacks from an existing or future residential area. It is not concerned with a setback from a busy road such as Ferry Road, nor is PC 1 on its proper construction. 46 [48] In oral submissions, Council submitted for an even more limited approach. It submitted that the local area was limited to the area adjacent the side and rear boundaries because that is the area that the acceptable solution was concerned about. 47 [49] I do not agree that a proper construction of performance criterion PC1 requires the local area to be confined only to those lots adjacent the road frontage and side and rear boundaries, nor do I accept that it is limited to residential areas. 45 Written Submissions for the Gold Coast City Council p 31 [107]. 46 This submission was reiterated in oral submissions See T7-13/L32 T7-18/L T7-16/L45 T7-17/L18.

18 18 [50] Performance criterion PC1 is contained within the Service Station Code. It applies to any code or impact assessable development application for a service station at any location across the whole of the Gold Coast local government area. [51] In each case it will be necessary to make a factual determination about the extent of the relevant area to be considered. [52] Performance criterion PC1 calls for: (c) an identification of local area ; an assessment of the streetscape character of that area; and a finding as to whether the proposed development would, in terms of setback, be appropriate to that character. 48 [53] In any given case, the local area to be considered in an assessment of streetscape character will turn on the facts and circumstances of the case. Its definition is assisted by experts who identify, from a visual amenity perspective, the likely visual influence of the proposed development. [54] In this case, I do not consider that the assessment of the local area is confined to the residential pocket to the east of Ferry Road. Both Mr McGowan (visual amenity expert engaged by Council) and Mr Powell (visual amenity expert engaged by the appellant) agree the visual catchment of the subject site is geographically limited, 49 but includes a stretch of Ferry Road. They agree the proposed development would be seen in the context of existing commercial development on the western side of Ferry Road See K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPEC 1; [2011] QPELR 406, [40]-[43]. The decision was not disturbed on appeal to the Court of Appeal in Gold Coast City Council v K Page Main Beach Pty Ltd [2011] QCA 332; (2011) 185 LGERA 55. As was noted at 59 [16], there was no suggestion on appeal that Rackemann DCJ had misconstrued any particular provisions of the planning scheme when dealing with it. See also Main Beach Progress Association Inc & Ors v Gold Coast City Council & Anor [2008] QPEC 37; [2008] QPELR 675, 691 [100]; WBQH Developments Pty Ltd v Gold Coast City Council [2009] QPEC 54; [2009] QPELR 746, [25]-[27] and WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126, all of which considered the 2003 Planning Scheme. 49 Visual Amenity Joint Experts Report Exhibit 4B p 9 [31] and p 14 [71]. 50 Visual Amenity Joint Experts Report Exhibit 4B p 9 [34] and p 14 [72].

19 19 [55] In examination-in-chief, Mr Powell defined the visual catchment as the area at or about the main intersection and surrounding the subject site. 51 Mr McGowan took a similar approach. During cross-examination, Mr McGowan confirmed that, for the purpose of performance criterion PC1, he regarded the local area as the visual catchment of the subject site. The catchment extends for several hundred metres along Ferry Road, partially along Skiff Street, partially along York Street and partially along Cotlew Street East. Mr McGowan accepted that the local area was not limited to residential development; and that it included commercial development on the western side of Ferry Road and Ferry Road itself. 52 [56] Council submits that the evidence of Mr Powell about the visual catchment should be rejected as he seemed to try and step back from that clear evidence when crossexamined. It also submits that Mr Powell looked the wrong way as he should have been focussing on the residential pocket to the east of Ferry Road. I do not accept either of these submissions. [57] The criticism with respect to the consistency of Mr Powell s evidence is unjustified. During cross-examination, it was suggested to Mr Powell that his focus was on the intersection at Ferry Road and not on the residential properties to the east. The transcript confirms that Mr Powell s evidence during examination-in-chief was that he regarded the primary area for consideration is at or about the main intersection and surrounding the subject site. There was no inconsistency in his evidence. [58] In this case, I regard the local area as the area defined by the visual catchment as identified by the experts. It extends several hundred metres along Ferry Road, partially along Skiff Street, partially along York Street and partially along Cotlew Street East. As such, it includes residential development on the eastern side of Ferry Road, commercial development on the western side of Ferry Road and Ferry Road itself. [59] Council submits that the relevant streetscape character to be considered for the setbacks is a strong residential character. 53 Council s submissions are premised on its inappropriately restrictive approach to the local area. 51 T2-21/L34 T2-22/L6 (Powell). 52 T2-69/L20-40 (McGowan). 53 Written Submissions for the Gold Coast City Council p 31 [108].

20 20 [60] As was identified by the experts, the streetscape character of the local area as identified by them is a mix of commercial and residential. 54 [61] In my view, the proposed setbacks are appropriate to the streetscape character of the area. As is evident from the photomontages, 55 the development does not create a jarring effect. It does not crowd the street or the development that it adjoins. The 4.5 metre high acoustic barrier is of similar (in fact lesser) height than the sidewall of the two storey home at 22 Skiff Street. It is setback a similar distance from the side boundary and the road frontage as the sidewall of that house. 56 The same is true of the setback of the acoustic barrier adjacent 19 York Street. 57 [62] Further, the setbacks of the other built form and the car parks sit comfortably with the streetscape character of the local area. As can be seen from Exhibit 45, the proposed setback of the canopy and car parks from the road frontages of Skiff Street and Ferry Road is visually consistent with the setback of the multi-unit dwelling opposite. [63] During examination-in-chief, Mr Powell explained that the design of the proposed development does well to address the mixed character of the local area. The streetscape character that faces Ferry Road is more commercial in its presentation, including setbacks, and is reflective of the Ferry Road context. The development transitions as one moves into the Skiff Street and York Street. The setbacks and streetscape character, when viewed from those locations, include finer grain residential scale elements such as semi-open style fences, the integration of advanced plant species and the use of arbours and vegetated trellises. 58 [64] I am satisfied that the proposed development complies with performance criterion PC1 of the Service Station Code. The proposed development impresses me as an exceptional design that not only respects the existing streetscape character, but also enhances it. 59 The setbacks of the structures are appropriate in their context. 54 Visual Amenity Joint Experts Report Exhibit 4B p 20 [94] and T2-22/L15-22 (Powell); T2-69/L31-45 and T2-70/L21-3 (McGowan). 55 Book of Plans Exhibit 2 pp 31, 35 and Exhibit 21. See also Book of Plans Exhibit 2 pp 26 and 27 for relative setbacks of adjoining houses (although acoustic barrier height is different to that proposed). The relative setbacks can also be calculated from the distances provided in the Visual Amenity Joint Experts Report Exhibit 4B p 5 [15]. 57 Exhibit 21. See also Book of Plans Exhibit 2 pp 26 and 27 for relative setbacks of adjoining houses (although acoustic barrier height is different to that proposed). 58 T2-22/L15 T2-23/L48; Book of Plans Exhibit 2 pp 25, 33 and See particularly Book of Plans - Exhibit 2 pp 36 and 37.

21 21 Impact on residential character and amenity [65] Council alleges that the proposed development conflicts with: (c) (d) (e) (f) (g) (h) the purpose of the Detached Dwelling Domain Place Code, on the basis that the proposed development does not preserve and enhance the suburban character and residential amenity of these low density residential neighbourhoods ; performance criterion PC13 of the Detached Dwelling Domain Place Code, on the basis that the proposed development detracts from the amenity of the local area, being a residential neighbourhood and community; performance criterion PC8 of the Detached Dwelling Domain Place Code, on the basis that the buildings do not complement or enhance the character of the local area, being of a low density residential character; the intent of the Residential Choice Domain, on the basis that, as a commercial operation, the proposed development does not achieve a high standard of residential amenity; performance criterion PC13 of the Residential Choice Domain Place Code, on the basis that the proposed development detracts from the amenity of the local area, being a residential neighbourhood and community; performance criterion PC9 of the Residential Choice Domain Place Code, on the basis that the buildings do not complement or enhance the character of the local area, being of a low density residential character; performance criterion PC1 of the Service Station Code, for the reasons advanced with respect to setbacks; and performance criterion PC10 of the Service Station Code, on the basis that the buildings and structures are not in keeping with the appearance of the local area, being that of residential properties in Skiff Street and York Street. [66] I have already addressed compliance with performance criterion PC1 of the Service Station Code in paragraphs [39] to [64] above.

22 22 [67] The provisions of the 2003 Planning Scheme relating to character and amenity relied on by Council are as follows: clause 1.0 of the Detached Dwelling Domain, which states: 60 The purpose of this domain is to provide for low density residential areas that consist predominantly of low rise, detached dwellings, in a garden landscape, that are well serviced in terms of urban facilities and transport. It is intended to preserve and enhance the suburban character and residential amenity of these low density residential neighbourhoods. This domain also seeks to enhance and promote the residential lifestyle attributes of privacy and quiet enjoyment of family life, with opportunities for residential based leisure pursuits. 61 (c) the purpose of the Detached Dwelling Domain Place Code, which states that the code seeks to preserve and enhance the suburban character and residential amenity of these low density residential neighbourhoods ; 62 performance criterion PC13 of the Detached Dwelling Domain Place Code, which states: 63 The proposed use must not detract from the amenity of the local area, having regard, but not limited, to the impact of: a) noise; b) hours of operation; c) traffic; d) lighting; e) signage; f) visual amenity; g) privacy; h) odour and emissions. (d) performance criterion PC8 of the Detached Dwelling Domain Place Code, which states: 64 All buildings must be designed and constructed to a high aesthetic standard, and complement or enhance the character of the local area. 60 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 102 pt 5 div 2 ch 4 cl This provision was referred to in Written Submissions for the Gold Coast City Council p 33 [116], but there is no allegation of conflict with it. 62 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 110 pt 5 div 2 ch 4 cl 5.0 sub-cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 111.

23 23 (e) the intent of the Residential Choice Domain, which states, in part: 65 This domain seeks to: achieve a high standard of residential amenity across the range of dwelling types in the domain. (f) (g) performance criterion PC13 of the Residential Choice Domain Place Code, which is in identical terms to performance criterion PC13 of the Detached Dwelling Domain Place Code; 66 performance criterion PC9 of the Residential Choice Domain Place Code, which is in identical terms to performance criterion PC8 of the Detached Dwelling Domain Place Code; 67 (h) the purpose of the Service Station Code, which states, in part: 68 The code encourages modern, attractive appearance and design, whilst contributing to the local character and protecting the amenity of the surrounding areas. 69 (i) performance criterion PC10 of the Service Station Code, which states: 70 Meaning of amenity The design of all buildings and structures must be in keeping with the appearance of the local area and utilise a design theme that expresses a modern and functional appearance. [68] Council in its written submissions noted: 71 The word amenity is defined in the Macquarie Dictionary in part as: 1. (pl.) agreeable features, circumstances, ways, etc. 2. (pl) features, facilities, or services of a house, estate, district, etc., which make for a comfortable and pleasant life. 3. The quality of being pleasant or agreeable in situation, prospect, disposition, etc.; pleasantness (underlining added). 65 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 113 pt 5 div 2 ch 5 cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 132 pt 7 div 2 ch 31 cl This provision was referred to in Written Submissions for the Gold Coast City Council p 34 [116(c)], but there is no allegation of conflict with it. 70 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p Written Submissions for the Gold Coast City Council p 35 [117].

24 24 [69] I accept that amenity is a wide-ranging concept. As was observed by Thomas J in Broad v Brisbane City Council & Baptist Union of Queensland [1986] 2 Qd R 317 at : The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be likely to have an effect in the way of atmosphere. Whether this is described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary resident. [70] In that same case, De Jersey J observed at 326: There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident s subjective perception of his locality. Knowing the use to which a particular site is or may be put, may affect one s perception of amenity. [71] As is apparent from these observations, the assessment of character and amenity impacts does not only involve a consideration of the existing character and amenity of the area. Regard must also be had to the reasonable expectations of a neighbourhood, as informed by the planned character and amenity of the area, i.e. the use to which land in a particular zone or domain may be put. [72] Reasonable expectations must be judged by reference to the planning controls in place. 72 As was observed by Skoien DCJ in Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311 at 313: Some general remarks can appropriately first be made. Because the proposed use is a consent use, it obviously is one which, in the overall scheme of the Town Plan, should be permitted in an appropriate case. Otherwise it would have been made a prohibited use. In my opinion an appropriate case is one in which one can give effect to the ancient right of a landowner to use his land for any lawful use he desires while at the same time protecting the modern rights (given by Town Planning Schemes) of the other landowners in the vicinity not to have the enjoyment of their land detrimentally affected to an unreasonable extent. The qualification to an unreasonable extent is obviously a necessary one, because any development of land almost certainly will have some detrimental effect on other land in 72 Gorman & Ors v Brisbane City Council & Anor [2003] QPEC 035; [2004] QPELR 29, 32 [18].

25 25 the vicinity. Under a town planning scheme, a landowner must be taken to contemplate that a nearby parcel of land will be put to one of the uses to which that land may be put as of right. He must also be taken to contemplate that such a parcel of land may come to be put to one of the uses permitted with the consent of the Local Authority. The consent use is always possible: the real question is whether if the proposed use is established on the subject land, it will substantially degrade the area, whether it would unreasonably disrupt the lives of the occupants of the neighbourhood. Identification of the local area [73] A number of the provisions relied on by Council require identification of the local area in order to assess the character or amenity impacts. [74] In the context of these provisions, given the wide-ranging nature of the concept of amenity, I do not regard the local area as limited to the area defined by the visual catchment of the subject site. 73 [75] I regard the local area as including the area to the east of Ferry Road, which is predominantly but not exclusively residential in character, as well as the commercial development on the western side of Ferry Road and Ferry Road itself. [76] As the commercial development and Ferry Road are part of the visual catchment of the subject site, they contribute to the character of the local area, including in terms of its atmosphere. Submissions and evidence of the residents [77] Council notes that the intent and the purpose of the Detached Dwelling Domain Place Code expressly state This domain also seeks to enhance and promote the residential lifestyle attributes of privacy and quiet enjoyment of family life. It submits that the proposed development does not do that. 74 [78] Council notes that there was strong local opposition to the proposed development. It says that there were 87 properly made submissions objecting to the proposed development, as well as a petition with 83 signatures. 75 In doing so, it cites a statement in the Town Planning Joint Expert Report. This information contradicts 73 The more limited nature of the local area for the assessment of appropriateness of setbacks to streetscape character is informed by the visual focus to that assessment. Setbacks relate to built form, as opposed to use. 74 Written Submissions for the Gold Coast City Council p 39 [128]. 75 Written Submissions for the Gold Coast City Council p 39 [129].

26 26 the information in the Appeal Book, which records that there were 94 submissions of which 81 were properly made, five were not properly made and eight submitters made more than one submission. 76 Either way, I do not find it persuasive to refer only to the number of submissions. What is relevant is their content. The submissions were not in evidence before the court. [79] Statements of evidence were received from a number of individuals opposed to the development. 77 All individuals are residents or owners of property in the residential pocket to the east of Ferry Road. It is clear from the statements that the proposed development is seen as one that would detract from the residential character of the area, particularly because of the residents fear of impact from rat-running, increased traffic and car parking issues (including safety impacts), noise, light spill, air pollution, visual impact of unattractive acoustic fences, litter and congregation of individuals. 78 [80] Despite the residents describing the area as a quiet pocket 79 and as having a community feel, 80 many described attributes of the area that highlight that the area is not a pristine residential area. The residents describe how the character of the area is presently affected by: (c) (d) (e) cars rat-running through this residential pocket in order to avoid the intersection of Skiff Street and Ferry Road; cars queuing down Skiff Street; employees of the businesses on the western side of Ferry Road parking in Skiff Street; noise from trucks refuelling and making deliveries at the BP service station on the other side of Ferry Road; noise from Ferry Road; 76 Appeal Book Exhibit 1 Vol 3 Tab 18 p Respondent s Bundle of Lay Witness Statements - Exhibit See, for example, Respondent s Bundle of Lay Witness Statements - Exhibit 18 Tab 1 [20]-[32], Tab 2 [22]-[28], Tab 3 [19]-[34], Tab 4 [22]-[29], Tab 5 [10]-[21], Tab 6 [16]-[23], Tab 7 [18]-[28], Tab 8 [16]. 79 Respondent s Bundle of Lay Witness Statements - Exhibit 18 Tab 1 [6], Tab 4 [9]. 80 Respondent s Bundle of Lay Witness Statements - Exhibit 18 Tab 1 [8], Tab 2 [7], Tab 3 [8].

27 27 (f) (g) noise from the outdoor garden area at the Ferry Road Tavern; noise from commercial rubbish trucks on the opposite side of Ferry Road; and (h) lighting from commercial uses on the western side of Ferry Road. 81 [81] The residents nevertheless enjoy living in the area, particularly it seems due to its proximity to good schools, surf, and Harry Bond Park; and due to the well-presented and maintained nature of the houses in the area. 82 These features are unaffected by the proposed development. [82] As was observed by Skoien SJDC in Body Corporate for Kelly s Beach Resort v Burnett Shire Council & Ors [2003] QPEC 23; [2003] QPELR 614 at 622 [60]: It is trite to recall that probably all uses of land have some adverse effects on the occupants of a neighbouring residence. Even the most desirable neighbour must occasionally create noise or other activity which to some extent, even minor, is an annoyance to others. Less desirable neighbouring residences may be the site of barking dogs, noisy children, over-loud television or stereo sets, over-frequent lawn mowing, a noisy vehicle. Human activities which disturb others may be annoyingly early or annoyingly late. The perfect neighbour does not exist except for the most tolerant person. So the test is not whether the amenity would be degraded but whether it would be unreasonably degraded. Will amenity be unreasonably degraded? [83] As was observed by Dorney QC DCJ in Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64; [2015] QPELR 203 at 240 [176]: While realistic expectations do, to some extent, at least, depend upon the expectations of the local community, a selection of expectations of particular opponents to a development does not necessarily inform the true content of such expectations. [84] Community expectations are to be derived from the statutory planning controls and the community must be taken to consider the possibility that development may include that which a local government may permit in an appropriate case Respondent s Bundle of Lay Witness Statements - Exhibit 18, Tab 1 [10], [18] and 27, Tab 2 [26], Tab 3 [11] and Attachment B, Tab 4 [14]-[15], Tab 5 [8], [13] and [20], Tab 6 [10], Tab 7[10]. 82 Respondent s Bundle of Lay Witness Statements - Exhibit Everson v Beaudesert Shire Council [1992] QPEC 22; [1992] QPLR 129, 133; Brencorp Properties Pty Ltd v Pine Rivers Shire Council [1997] QPELR 12, 16; Hawkins v Ipswich City Council [1998] QPEC 26; [1999] QPELR 55, 60.

28 28 [85] In terms of the zoning of the subject site: (c) both domains list a service station as a use that may be established in the domain, subject to meeting the relevant assessment criteria; the purpose of the Detached Dwelling Domain is to provide for low density residential areas that consist predominantly, but not exclusively, of low rise, detached dwellings; and the Residential Choice Domain is to support the development of a residential pattern comprising mixed dwelling types, but also seeks to facilitate a wide variety of residential support services. In the context of the listing of service station in the Table of Development, such a use would be regarded as within the wide variety of residential support services. [86] In light of these provisions, a service station is one of the uses that should be regarded as within contemplation in the relevant domains, subject to meeting relevant assessment criteria. 84 [87] Council submits that the proposed development is located on land that is zoned for residential purposes and is completely out of character with the existing residential community. 85 In doing so, Council urged the court to adopt findings made by this court about the inappropriate impact of service stations in Vanglow Pty Ltd v Council of the Shire of Albert (1991) QPLR 68; Prime Group Properties Limited v Caloundra City Council and Darracott & Ors [1995] QPLR 147; Thomas Holdings Pty Ltd v Gold Coast City Council & Ors [1991] QPLR 32 and MPR Constructions Pty Ltd v Redland Shire Council [2001] QPEC 68; [2002] QPELR 256. [88] Council recently sought to place reliance on these same cases in United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8. That case also involved a developer appeal against Council s refusal of an application for a service station on land in the Residential Choice Domain under the 2003 Planning Scheme. In that case, the service station and associated convenience shop was proposed on the Gold Coast Highway at Mermaid Beach. 84 It is the equivalent of a use that may be permitted by a local authority as referred to in Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311 at Written Submissions for the Gold Coast City Council p 50 [164].

29 29 [89] Rackemann DCJ observed at [38]: The cases relied upon by the respondent and referred to above were cases in which service stations were prohibited uses in the zone. The situation with the Residential Choice domain is different. Whilst it was pointed out, on behalf of the respondent, that the 2003 Planning Scheme gave no express encouragement for service stations in the Residential Choice Domain or in the Urban Residential Land Use Theme, in the way it did for service stations in various centres, an whilst reference was made to the evidence of some residents as to their actual expectations concerning development, the fact remains that service stations were nevertheless one of the uses which may be considered appropriate in the Residential Choice domain, under the 2003 Planning Scheme subject to meeting the relevant assessment criteria. Reasonable expectations under that Planning Scheme must therefore have included the possibility of land within the domain being developed for a service station subject to meeting the assessment criteria. The residents subjective perceptions that the sense of place would be diminished by the mere presence within their area of a service station, should not be regarded as reasonably held, under the 2003 Planning Scheme, far less determinative, if the assessment criteria are otherwise met. [90] Those observations are equally applicable here with respect to the proposed service station use. [91] The same cannot be said with respect to the proposed fast food premises and takeaway food premises. However, as I have already noted, the appellant accepts conflict in that regard. [92] I have no doubt that the views expressed by the residents are honestly held. Residents of the area may well prefer that the proposed development not proceed, but it is necessary to have regard to all of the evidence, and whether the proposed service station complies with the relevant assessment criteria, to determine whether their expectations are reasonable. [93] The concerns expressed by the residents relate to amenity impacts occasioned by: (c) (d) noise, air quality and lighting; visual amenity and character; traffic; and litter and congregation of undesirable individuals.

30 30 Noise, air quality and lighting [94] There are two joint expert reports with respect to noise, air quality and lighting. 86 It is apparent from those reports that both Mr King (the expert retained by the appellant) and Ms Richardson (the expert retained by Council) agree that the proposed development will meet appropriate health and amenity goals subject to the imposition of appropriate conditions. The conditions require: (c) (d) (e) (f) (g) (h) (i) (j) (k) acoustic barriers of a particular design; roofed enclosures being installed above the drive-through ordering, payment and collection points; restricted opening hours of the drive-through and the food tenancy; fixed plant items being designed and selected to meet particular noise levels; the tyre air compressor being located at a particular point in the proposed development, acoustically screened and not being used between 10pm and 7am; deliveries being restricted in terms of the hours of the day that they occur; insulation and maintenance of plant and equipment, including the bowser vapour recovery system; location of tank breather pipes in the north-west corner of the subject site with a minimum discharge height; the installation of appropriate landscaping; the installation of appropriate kitchen cooking exhaust systems, pursuant to AS1668.2; and completion of a compliance audit during the commissioning stage of the development Exhibit 3A and Exhibit 3B. 87 Noise, Air Quality and Lighting Joint Expert Report Exhibit 3A pp 21-2 [53].

31 31 [95] The appellant agrees to, and adopts, the recommendations of the noise, air quality and lighting experts. [96] The experts both expressed the opinion that the proposed development does not conflict with performance criteria PC13 of the Detached Dwelling Domain Place Code and PC13 of the Residential Choice Domain Place Code. 88 [97] I accept the unchallenged views expressed by those experts. It is apparent from the comprehensive joint reports that the opinions had been expressed only after careful consideration of relevant issues. The experts had regard to: relevant provisions of the 2003 Planning Scheme and City Plan 2016; 89 (c) (d) the views of residents opposed to the development as expressed in their submissions to Council; 90 acoustic reports provided as part of the development application and Council s information request; 91 further acoustic assessment undertaken by Mr King, which involved conducting ambient background noise monitoring; 92 (e) the odour management plan provided as part of the development application; 93 (f) detailed air quality assessment prepared under the supervision of Mr King; 94 (g) the conceptual lighting design plan provided as part of the development application; 95 and (h) results of additional lighting measurements and inspection Second Noise, Air Quality and Lighting Joint Expert Report Exhibit 3B p 2 [2]. 89 Noise, Air Quality and Lighting Joint Expert Report Exhibit 3A pp Noise, Air Quality and Lighting Joint Expert Report Exhibit 3A p Noise, Air Quality and Lighting Joint Expert Report Exhibit 3A pp Noise, Air Quality and Lighting Joint Expert Report Exhibit 3A pp Noise, Air Quality and Lighting Joint Expert Report Exhibit 3A p Noise, Air Quality and Lighting Joint Expert Report Exhibit 3A pp Noise, Air Quality and Lighting Joint Expert Report Exhibit 3A p Noise, Air Quality and Lighting Joint Expert Report Exhibit 3A pp

32 32 [98] The reports do not demonstrate that there will be no noise, air quality and lighting impacts from the proposed development. 97 I am nevertheless satisfied that there is no adverse amenity impacts in terms of such matters given: the unchallenged evidence of the experts that the proposed development will meet appropriate health and amenity goals subject to the imposition of appropriate conditions. 98 The empirical benchmarks and standards assume a standard designed to ensure impacts are not unacceptable to a reasonable person who does not have undue sensitivity; 99 and as is noted in paragraph [80] above, the existing character of the area is already affected by noise from traffic and commercial uses in the local area and lighting associated with commercial uses in the area. Visual amenity and character [99] The proposed development presents with prominent signage, commercial lighting and extensive areas of hardstand. It has a definite commercial character. 100 [100] Mr Reynolds, the town planner engaged by Council, acknowledged that building height and building site cover are not a concern in this case. 101 In his opinion, however, several other matters were of concern. These include setbacks, immediately abutting residential properties, 4.5 metre acoustic wall, views onto a site of lit expanse at night, commercial appearance, signs, canopy, hardstands, traffic in Skiff Street, drive-through fast food, trucks and commercial vehicles for fuel and servicing, and the 24 hour operation. [101] In order to assess whether the aspects of the proposed development referred to by Mr Reynolds demonstrate an unacceptable impact, it is appropriate to have regard to relevant provisions of the 2003 Planning Scheme. The relevant provisions are outlined in paragraph [67] above. They call for a consideration of: the amenity and character of the local area; 97 T3-41/L11-30 (Richardson). 98 T3-32/L40 T3-35/L18 (King) and T3-38/L41 T3-40/L46 (Richardson). 99 T3-40/L38-46 (Richardson). 100 Visual Amenity Joint Experts Report Exhibit 4B p 14 [74]. 101 Town Planning Joint Expert Report Exhibit 7 p 19 [83].

33 33 (c) whether the proposed development detracts from that amenity; 102 and whether the buildings are designed to complement or enhance the character of the local area and are in keeping with the local area. 103 [102] I have already dealt with the extent of the local area with respect to character and amenity issues generally in paragraphs [74] to [76] above. The local area to be considered when assessing character and amenity impacts is more extensive than that which might be considered when assessing impacts on streetscape character. The geographical limitations of the visual catchment of the subject site are, however, relevant to an assessment of visual amenity (as opposed to character) impacts. [103] As is noted in paragraph [54] above, the visual amenity experts agree that the visual catchment of the subject site includes a stretch of Ferry Road and that the proposed development would be seen in the context of the existing commercial development. 104 [104] There is also no dispute that: there are clusters of uses and different intensities of activity on Ferry Road; 105 near the land, on the eastern side of Ferry Road, a number of commercial uses are present, generally in a residential built form that has been adapted for commercial purposes; 106 (c) commercial development dominates the western side of Ferry Road; 107 (d) commercial development is not an insignificant contributor to the character of the local area; Performance criterion PC13 of the Detached Dwelling Domain Place Code and Performance criterion PC13 of the Residential Choice Domain Place Code. 103 Performance criterion PC8 of the Detached Dwelling Domain Place Code; performance criterion PC9 of the Residential Choice Domain Place Code and performance criterion PC10 of the Service Station Code. 104 Visual Amenity Joint Experts Report Exhibit 4B p 14 [72] (McGowan). 105 Visual Amenity Joint Experts Report Exhibit 4B p 14 [72] (McGowan) and p 10 Figure 2 description of nodes (Powell). 106 Visual Amenity Joint Experts Report Exhibit 4B p 14 [73] (McGowan) and p 12 [47] (Powell). 107 Visual Amenity Joint Experts Report Exhibit 4B p 4 [9], p 14 [74] (McGowan) and p 11 [43] (Powell). 108 T2-69/L34-40 (McGowan) and Visual Amenity Joint Experts Report Exhibit 4B p 10 Figure 2 description of nodes and p 11 [35]-[41] (Powell).

34 34 (e) Ferry Road is a road that is six lanes wide and is a large hardstand area; 109 (f) (g) (h) (i) (j) the non-residential development on the western side of Ferry Road has building materials, patterns, textures and colours that are similar to the buildings proposed; 110 building height, building setback and site coverage are indicia of the massing and proportions of a building; 111 the massing and proportions of the buildings comply with applicable performance criteria in the Detached Dwelling Domain Place Code in terms of building height, building setback and site coverage; 112 the proposed development has a fence and landscaping that are residential in appearance; 113 once the proposed landscaping has matured, so long as it is appropriately maintained, the proposal will not generate unacceptable lighting or privacy impacts on neighbouring residents; 114 (k) planned character of an area is important in a visual assessment; 115 (l) (m) (n) it would be wrong to describe the planned character of the Residential Choice Domain as only residential; 116 the planned character of the domain admits of non-residential uses that, in the right circumstances, include a service station; 117 and if a service station is contemplated by the planning documents, such a use would necessarily include a service station form with a canopy, hardstand, lighting and would be of a commercial appearance Book of Plans Exhibit 2 pp 3, 30 and 32; Visual Amenity Joint Experts Report Exhibit 4B p 14 [72] and T2-70/L7-16 (McGowan). 110 T3-26/L28-35 (McGowan); Visual Amenity Joint Experts Report Exhibit 4B p 12 [48] (Powell). 111 T3-25/L35-47 (McGowan). 112 T3-26/L1-7 (McGowan). 113 T3-26/L37-41 (McGowan); T2-22/L28 T2-23/L47 (Powell); Visual Amenity Joint Experts Report Exhibit 4B p 12 [48]-[49] (Powell). 114 Visual Amenity Joint Experts Report Exhibit 4B p 17 [84] (McGowan) and p 20 [95]. 115 T2-77/L20-21 (McGowan). 116 T2-77/L1-15 (McGowan). 117 T2-77/L20-30 (McGowan); Visual Amenity Joint Experts Report Exhibit 4B p 11 [44] (Powell). 118 T2-74/L1-13 (McGowan).

35 35 [105] Nevertheless, the visual amenity experts express different opinions about the visual impact of the proposed development on the amenity of the local area and the impact of the building design on the character of the local area. [106] Mr McGowan s primary approach to the character issues appears to mirror the approach he took in United Petroleum Pty Ltd v Gold Coast City Council & Anor [2017] QPEC Rackemann DCJ s description of his evidence, at [61], is apt in this case: Mr McGowan took a strong stand against any notion of a service station on the subject site. He saw the fact that the subject development would be identifiable as a service station as a negative, even if it were thought to be the best designed service station on the planet. He appeared to be influenced by a misreading of the planning scheme provisions. It is difficult to see how any amount of set-back would overcome his objections, which were rooted in a fundamental objection to the sight of a service station in this context. I do not accept that strict approach, but that is not to say that I accept Mr Curtis view either. [107] I similarly do not accept Mr McGowan s approach. As I have already noted, a service station is a use that ought reasonably be expected as a possible use in the applicable domains. [108] Leaving aside Mr McGowan s fundamental objection to the sight of a service station use on the subject site, Mr McGowan otherwise opines that Ferry Road functions as an edge dividing two distinctly different character areas. To the extent that there is commercial development on the eastern side of Ferry Road, he regards it to be of a different character as it involves less signage. He also considers it to have a finer grain of built form, resulting from a residential lot pattern, smaller building footprints and less hard stand. 120 [109] Mr Powell, on the other hand, says the subject site would be experienced more as a node of mixed residential and commercial development surrounding an intersection, 121 particularly as residents traverse the area. [110] There is, to my mind, some merit in what both experts say. I do not, however, regard it as necessary to resolve the differences between the experts in terms of whether there is a relevant edge or node. To my mind, the pertinent matters are as follows. 119 TT2-72/L31 T2-74/L29 (McGowan). 120 Visual Amenity Joint Experts Report Exhibit 4B p 14 [72]-[73]. 121 Visual Amenity Joint Experts Report Exhibit 4B pp 9-11 [32]-[41].

36 36 [111] The existing character of the non-residential development on the eastern side of Ferry Road generally involves less signage and a finer, residential, grain of built form, although the childcare centre and the swim school are notable exceptions. [112] The commercial development on the western side is, on the other hand, dominated by larger buildings and expanses of hardstand (carparking and manoeuvring areas). This more dominant commercial character does not presently exist on the eastern side of Ferry Road. [113] The dominant commercial character of development on the western side of Ferry Road nevertheless has a perceptible influence on the character and visual amenity of the predominantly residential pocket on the eastern side of Ferry Road. The residents of the area would be aware of its presence. They traverse past the commercial development to access their homes. It is also visible from the subject site and would dominate the view as residents wait at the lights at Skiff Street. The commercial development on the western side of Ferry Road is also clearly visible, during the day and at night, from the residences at 23 Skiff Street, 19 York Street and 22 Skiff Street. 122 [114] As is noted in some statements from the residents, the commercial development on the western side of Ferry Road has a lighting impact on residences on the eastern side. 123 [115] The presence of the intense commercial development on the western side of Ferry Road also affects the character of the area to the east of Ferry Road through its audible presence (with a number of residents referring to the noise from commercial vehicles and the tavern); and by virtue of employees of the commercial development parking in the streets to the east of Ferry Road. 124 [116] Having regard to those matters, I do not regard the character and visual amenity of the area to the east of Ferry Road to be a pristine residential pocket. As a whole, it has a strong residential character, but the character of the area is one that involves a mix of residential and commercial uses along the Ferry Road edge. 122 Book of Plans - Exhibit 2 pp 36, 38, 40, 42, 4, 46, 48 and Exhibit Exhibit 18.

37 37 [117] The proposed development is not discordant with that character and visual amenity. Although the proposed development involves a 24 hour a day, 7 days per week service station with hardstand areas, floating roof canopy, signage, fuel trucks and high levels of vehicle activity, careful design has been employed to reduce the visual amenity and character impact. Noteworthy design elements include: extensive landscaping along the Skiff Street frontage, including: (i) arbours and vegetated trellises over the car parking spaces located along Skiff Street; (ii) four (advanced planting) spreading shade trees capable of reaching 4 metres in height adjacent the driveway, between the car parking and Skiff Street; (iii) (iv) fences of a residential character, being a short length of mm high lapped timber fence stepping down to a mm high semi-open fence towards the corner of Ferry Road, with a garden area surrounding it, located between the car parking and Skiff Street; low and dense planting wrapping around the Skiff Street and Ferry Road corner, 125 the effect of which is to largely screen, and almost obliterate, the view from Skiff Street of the canopy, hardstand and car parking associated with the proposed development, during the day and at night; 126 in place of the existing solid boundary fence (approximately 2 metre high) between the subject site and 22 Skiff Street, 127 on the common boundary: (i) a 2 metre high acoustic barrier that starts at the point proximate to the existing fence and continues to a point adjacent to the north-western corner of the house at 22 Skiff Street,; Book of Plans Exhibit 2 pp 25 and Book of Plans Exhibit 2 pp 37 and Book of Plans Exhibit 2 pp 34 and Exhibit 21.

38 38 (ii) a mm high pool fence or semi-open fence located along that part of the boundary proximate the ground storey windows in the house at 22 Skiff Street and behind which there is: (A) (B) (C) a landscape buffer that includes five columnar screening trees, such as Elaeocarpus eumundii, capable of reaching 4.5 metres in height within 3-4 years of planting. The trees are to be planted at two metre spacing with shrubs underneath; a 4.5 metre high acoustic barrier; then a further landscape buffer with columnar screening trees, such as Elaeocarpus eumundii, capable of reaching 4.5 metres in height within 3-4 years of planting, with shrubs underneath; 129 (iii) a 2.4 metre high acoustic barrier along that part of the boundary proximate the private open space for 22 Skiff Street, behind which there is: (A) (B) a landscape buffer that includes five columnar screening trees, such as Elaeocarpus eumundii, capable of reaching 4.5 metres in height within 3-4 years of planting. The trees are to be planted at two metre spacing with shrubs underneath; and arbours with climbers over the roof element that covers the drive-through in the location of the order point or pay booth, 130 the combined effect of which is to replace the existing views of Ferry Road, and the Toyota dealership and O on Ferry shopping centre on the western side of Ferry Road 131 with a view of lush landscaping through which one catches glimpses, during the day, of parked cars, the canopy and the top of the proposed building; Exhibit 21 and Book of Plans Exhibit 2 pp 25, 26 and Exhibit 21 and Book of Plans Exhibit 2 pp 25, 26 and Book of Plans Exhibit 2 pp 40, 46, 48 and Book of Plans Exhibit 2 pp 41, 47, 49 and 51.

39 39 (c) in place of the existing solid boundary fence (approximately 2 metre high) between the subject site and 19 York Street, 133 a mm high pool fence or semi-open fence on the common boundary behind which there is: (i) (ii) (iii) large upright trees and three columnar screening trees, such as Elaeocarpus eumundii, capable of reaching 4.5 metres in height within 3-4 years of planting. The trees are to be planted at two metre spacing with shrubs underneath; then a 2.6 metre high acoustic barrier; then for the length of the house and part of the backyard, arbours with climbers over the drive-through and the roof element that covers the drive-through in the location of the order point or pay booth, 134 the combined effect of which is to replace the existing views of Ferry Road, the O on Ferry shopping centre and the tavern 135 with a view of lush landscaping through which one catches glimpses, during the day, of built form; 136 (d) landscaping along the York Street frontage, including: (i) (ii) large shrubs and trees to screen the appearance of the acoustic barrier from York Street; a number of street trees; and (iii) a mm high semi-open fence with a garden surrounding it. 137 [118] The photomontages demonstrate that the overall effect of this careful design is that the proposed development will create a sensitive and thoughtful transition between the more commercially intense character perceived along Ferry Road and the more relaxed suburban character of the residential area to the east. The Ferry Road frontage, with its low and dense feature planting and turfed footpaths, involves a pleasant, but open, visual presentation, with a strong commercial character. As one 133 Book of Plans Exhibit 2 p Exhibit 21 and Book of Plans Exhibit 2 pp 25, 27 and Book of Plans Exhibit 2 pp 38 and Book of Plans Exhibit 2 pp 39 and Book of Plans Exhibit 2 pp 25 and 34.

40 40 moves around into Skiff Street and York Street, the landscape elements transition to a higher and more dense, and lush, form of landscaping that screens (and from some viewpoints hides) the overtly commercial elements of the proposal, such as the canopy and large expanse of hardstand. [119] In the Second Joint Report, Mr Powell described the transition in the following terms: 138 The transition is achieved by utilizing perimeter landscaping and fencing of a residential scale and form, coupled with the use of advanced tree specimens in order to further reduce the already compliant bulk and scale of the buildings. It will also ensure that the highest acoustic screen (4.5m high and 1.6m from the boundary) is also screened on both sides by advanced plants [120] This description accords with the view I have formed having regard to the landscape plan, the photos of the area (my understanding of which was aided by a site inspection) and the photomontages. [121] In its written submissions, Council outlined five reasons why I should not accept the evidence of Mr Powell. It is not necessary for me to address those criticisms. Two relate to matters that have no influence on my opinions, such as Mr Powell s node theory and the comparison to a hypothetical residential development. (The proposed development will, of course, introduce elements that are not present in a residential development, such as 24 hour operation, commercial vehicles, higher volumes of traffic and commercial signage. The issue is whether they unacceptably impact the existing and planned character of the local area.) The other relates to the character of the area and the extent to which there has been a bleeding of incompatible commercial character across to the eastern side of Ferry Road and whether the proposed development creates a thoughtful transition. With respect to these matters, I have found the expert reports useful in describing the situation that presently exists. I have, however, formed my own opinion, taking account of those factual matters and having regard to the photos, photomontages and the landscape plan. [122] The base photos used to produce the photomontages show the existing outlook from each of 19 York Street, and 22 and 23 Skiff Street. For each of the adjoining residences, the present outlook is dominated by the commercial development on the 138 Visual Amenity Joint Experts Report Exhibit 4B p 12 [49].

41 41 western side of Ferry Road, both during the day and at night. 139 In my opinion, the photomontages demonstrate that the outlook from the ajoining residences will be significantly improved by the proposed development. 140 The proposed development replaces the largely commercial outlook with a vegetated one and removes, if not completely obliterates, the illuminated vision of commercial development at night. 141 One only has to view the photomontages (three of which are annexed to these reasons, together with the associated base photos) to appreciate the positive visual impact of the proposed development. [123] In terms of the Skiff Street streetscape, Mr McGowan expresses the opinion that the 4.5 metre high acoustic barrier will be a prominent feature of the Skiff Street streetscape. 142 The photomontages do not support this. They indicate that the acoustic barrier will be well-screened by vegetation which, itself, will be a prominent feature in the Skiff Street streetscape. [124] Mr McGowan s concern, expressed in the Second Joint Report, 143 that landscaping of the quality depicted in the photomontages will not be maintained can be addressed by conditions. Landscaping similar in extent and quality appears to be maintained at the residential interface of an existing service station located at the intersection of Crombie Avenue and Bundall Road. 144 [125] On the issue of character and visual amenity impact, Council ultimately submits that the proposed development would: 145 significantly detract from the residential character and amenity because the proposal will intrude and destroy the pleasant and strong sense of a riverside residential community that the area presently enjoys, and unacceptably impact on visual amenity. [126] The evidence does not support the submission. [127] The proposed development will, of course, have an impact. No development of a vacant site is without impact. However, even with the proposed development, the 139 Book of Plans Exhibit 2 pp 34, 36, 38, 40, 42, 46, 48 and Book of Plans Exhibit 2 pp 35, 37, 39, 41, 43, 45, 47, 49 and The impact appears to be vastly different to the impact on adjoining residents described by Rackemann DCJ in United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8, [73]-[76] and represented in the annexed photomontage. 142 Visual Amenity Joint Experts Report Exhibit 4B p 14 [74] and [75]. 143 Visual Amenity Joint Experts Report Exhibit 4B p 7 [25]. 144 Visual Amenity Joint Experts Report Exhibit 4B p 7 [25] and p 45 photos 26 and Written Submissions for the Gold Coast City Council p 50 [164].

42 42 area to the east of Ferry Road will, in my view, continue to be characterised by wellpresented and maintained low density residential dwellings that enjoy proximity to the river. The proposed development does not unacceptably detract from that amenity. To the contrary, with the landscaping proposed, I consider it will enhance the streetscape that currently exists. Traffic [128] In the Joint Report of Traffic Engineers, Mr Williams (traffic engineer retained by Council) opined that the proposed development would result in increased queues on Skiff Street, with the potential to adversely impact on existing residents gaining access to and from their driveways. 146 [129] Mr Viney, the traffic engineer retained by the appellant, accepts that by 2027, with the development in place, the signal queue in Skiff Street would extend past the access to the subject site at peak demand times. He notes that the impact could be minimised by banning parking for the full length of the site frontage to Skiff Street (on the southern side of Skiff Street only) and painting a Keep Clear area on Skiff Street at the subject site entry/exit crossover. 147 [130] Mr Williams agrees with the recommendation by Mr Viney. Although Mr Williams notes further measures that he believes are warranted, he does not consider the impact to be sufficient to warrant refusal of the proposed development. 148 [131] Despite Mr Williams views with respect to the acceptability of the outcome in traffic engineering terms, Council alleges that conflict also arises with the amenity provisions by reason of traffic queueing. It says queuing will occur on Skiff Street as a consequence of the proposed development. 149 Council submits that the extent of the queue will be that shown in Exhibit 34. [132] Exhibit 34 was prepared by Mr Williams on the basis of analysis prepared by Bitzios Consulting in the report lodged with the development application. It shows that with the development, queue lengths will increase in the peak hour such that the queue 146 Traffic Engineering Joint Expert Report Exhibit 5 p 5 [29]-[30]. 147 Traffic Engineering Joint Expert Report Exhibit 5 p 6 [33]-[34]. 148 Traffic Engineering Joint Expert Report Exhibit 5 pp 5-6 [31]; Report of Mr Williams Exhibit 14 p 14 [54]. 149 Written Submissions for the Gold Coast City Council p 50 [165].

43 43 blocks three driveways on the southern side of Skiff Street. It also shows the queue extending past an additional three driveways on the northern side of Skiff Street compared to the queue without the proposed development. [133] Mr Viney accepts that Exhibit 34 shows the worst case scenario. 150 He notes, however, that the Bitzios analysis was premised on a much higher usage of the Skiff Street access than will occur in practice. He says it does not take account of the fact that some of the cars from the proposed development that utilise the Skiff Street access will queue on the subject site rather than joining the queue. 151 Mr Viney s evidence on this issue was not challenged by Mr Williams. The explanation about the conservative nature of the analysis is cogent and I accept it. [134] Council submits that resident driveways will be blocked during peak times in circumstances where they are not presently blocked. It submits that when combined with the other impacts and conflicts, this impact supports a refusal. 152 [135] With respect to the impact, Council relies Mr Schomburgk s (the town planner retained by the appellant) evidence during cross-examination that traffic queuing past driveways would detract from the amenity of those properties. 153 However, during cross-examination Mr Schomburgk was not questioned about the extent of the delays, nor about whether the detraction was an unacceptable impact. In re-examination, Mr Schomburgk clarified that the negative amenity impact would only arise should residents be blocked for in excess of five to ten minutes. 154 [136] Mr Viney gave unchallenged evidence about the extent of the delays. Using the conservative Bitsios analysis of queues, the potential delay to residents seeking to leave their driveway and join the queue at the Skiff Street intersection will be, at its worst, between 36 and 114 seconds. 155 The longest wait time will be experienced by the first driveway on the northern side of Skiff Street. That driveway is blocked even without the proposed development. 150 T6-65/L1-40 (Viney). 151 Traffic Engineering Joint Expert Report Exhibit 5 p 6 [33]; Report of Mr Viney Exhibit 36 p 4 [28]; T6-10/L26-36 and T6-65/L1-40 (Viney). 152 Written Submissions for the Gold Coast City Council pp 50-1 [166]. 153 T5-91/L32-39 (Schomburgk). 154 T5-98/L1-24 (Schomburgk). 155 Report of Mr Viney Exhibit 36 pp 4-5 [28] and Table 1, plus 22 seconds for the cars in the queue to discharge T6-67/L26-40 (Viney).

44 44 [137] It was the unchallenged evidence of Mr Viney that delays of this magnitude are typical for side street access to arterial roads in urban areas. 156 [138] I accept Mr Viney s evidence with respect to the impact. I do not regard the impact to be of such a magnitude as to have a material adverse impact on the amenity of the local area. Litter, crime and congregation of undesirable individuals [139] In addition to the potential amenity impacts already addressed, the statements of the residents also express concern regarding the prospect of an increase in littering, crime and the congregation of undesirable people. Council does not reference these statements as supporting refusal. There is no admissible evidence that demonstrates that the concerns of the residents have any proper foundation. Conclusion regarding amenity impacts [140] For the reasons outlined above, I am satisfied that: there are no material adverse impacts from the proposed development; and a decision to approve the proposed development would not result in conflict with any of the provisions identified in paragraphs [65] and [67] above. Traffic impacts [141] Council alleges that the proposed development conflicts with performance criterion PC13 of the Service Station Code because the proposed development does not comply with: acceptable solution AS13 in that it does not provide for the construction of a six metre wide deceleration lane along any frontage of the site ; and performance criterion PC13 because it results in unacceptable safety impacts on adjacent road users and local road users by reason of the proximity of the northern access on Ferry Road to the intersection of Ferry Road and Skiff Street Report of Mr Viney Exhibit 36 p 5 [28]. 157 Exhibit 32.

45 45 [142] Performance criterion PC13 of the Service Station Code states: 158 The traffic and parking generated by the proposed Service Station on the surrounding road network must not result in unacceptable impacts on adjacent land and local road users. [143] Acceptable solution AS13 states: 159 A traffic impact analysis, which has been undertaken by suitably qualified and experienced person, identifies the expected traffic movements generated by the proposal, any associated impacts on the road network, and any work that will be required to address the identified impacts. The traffic impact analysis includes, but is not limited to, the following recommendations: a) construction of concrete kerb and channelling, road widening, pavement and footpaths; b) construction of a six metre wide deceleration lane along any frontage of the site; c) provision of a corner truncation of nine metres by three equal chords at a right angled corner; d) dedication of all land required for corner truncations and/or deceleration lanes. [144] There is no dispute between the parties that the proposed development does not provide for a six metre wide deceleration lane along the frontage of the site, nor does the traffic impact analysis provided as part of the development application include a recommendation for one. As such, acceptable solution AS13 has not been satisfied. [145] With respect to compliance with performance criterion PC13, Council relies on three design aspects of the proposed development that it says will have an unacceptable impact on the safe and efficient movement of vehicles. The design aspects Council submits are unacceptable are: the location of the proposed northern access from Ferry Road to the subject site, which Council submits is too close to the intersection of Ferry Road and Cotlew Street East; the proposed crossovers on Ferry Road involving access across a shared pedestrian and cyclist path that is designated as part of the State Government s Principle Cycle Network; and 158 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 135 pt 7 div 2 ch Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 135 pt 7 div 2 ch 31.

46 46 (c) the location of a number of car parking spaces, which Council submits create significant internal conflict within the subject site and around the southern access point on Ferry Road. 160 [146] Each of these is a design issue. The evidence focussed on the adequacy of the design in these respects. [147] While Council noted the third design issue, its submissions with respect to difficulties with the southern access point were limited. It submits that the introduction of the southern crossover would present a similar situation in terms of safety concerns from cars queuing and manoeuvring to exit at the southern access on Ferry Road as is present for the northern access. 161 In this regard, Council made reference to the evidence of the residents that the shared pedestrian and cyclist path is used frequently. [148] Council did not, however, cavil with the appellant s submissions that: 125. Council s traffic expert, Mr Williams, confirmed in his oral evidence that the only traffic engineering issues warranting refusal, in his view, were limited to 162 : the proximity to Skiff Street of the proposed site entry from Ferry Road; and the need for deceleration lane at the site entry; (which Mr Williams confirmed in cross-examination were appropriate to treat as a single package ) 163. Mr Williams said that he had no real bones about the other things In light of the sensible concession made by Mr Williams, it is submitted that the only traffic issues that remain in dispute relate to the proximity to Skiff Street of the proposed site entry from Ferry Road and the need for a deceleration lane at the site entry which are, in effect, capable of being disposed of as one issue. [149] In oral submissions Counsel for Council submitted that the issue about traffic is about safety. Counsel confirmed that he had been very careful to address Council s grounds of refusal in the written submissions, and it is the written and oral submissions that Council relies on Written Submissions for the Gold Coast City Council p 51 [167]. 161 Written Submissions for the Gold Coast City Council p 67 [215]-[216]. 162 T6-90, L T6-90, L T6-91, L T7-54/L38 T7-55/L15.

47 47 [150] During cross-examination, Mr Williams also confirmed that he did not have any concern about a point of conflict between pedestrians and cyclists at the southern access, or at the access on Skiff Street. 166 [151] Having regard to Mr Williams oral evidence, and the appellant s agreement to delete a car park to address the concern initially raised by Mr Williams, I am satisfied that the third design issue is not one that warrants refusal of the proposed development. [152] Before turning to the evidence about the adequacy of the design in terms of traffic safety, it is appropriate I make some observations about the proper construction of performance criterion PC13 and the nature of the dispute. The proper construction of performance criterion PC13 and the nature of the dispute [153] Council submits: In construing performance criteria 13, it is necessary to keep in mind the purpose of the code which seeks to facilitate the provision of service stations at suitable locations throughout the city and to ensure that the location of service stations is limited to sites of a sufficient area to accommodate the development, vehicle access, car parking and any necessary buffers (underlining added). Although not expressly relied upon by the Council in its Exhibit 32, as a matter of construction, it is also relevant to note that PC 14 provides that traffic and pedestrian access to the site must be safe and convenient. Similarly, PC 3 of the 2003 Service Stations Code provides [t]he service station site must have safe and convenient access to and from the site. [154] There was no further explanation of the submission. [155] It is difficult to appreciate how this submission assists Council s case. Performance criterion PC13 calls for consideration of: the extent of traffic and parking generated by the proposed service station; and whether the traffic and parking generated by the proposed service station will have an unacceptable impact on adjacent land and local road users. [156] It calls for consideration of issues such as traffic generation rates as compared to existing volumes of traffic. Here, Council s complaint is about whether the design of the access is safe and convenient. 166 T6-80/L27-30 (Williams).

48 48 [157] Reference to performance criteria PC3 and PC14 of the Service Station Code serves to highlight the distinction between impacts from traffic generation and design issues. Performance criterion PC13 is concerned with impacts from the volume of traffic generated, and how that volume of traffic impacts on the road network and might warrant particular design measures such as deceleration lanes. By way of contrast, performance criteria PC3 and PC14 are concerned with whether there is safe and convenient access to and from the site 167 and whether the traffic and pedestrian access to the site [is] safe and convenient, 168 which is an issue with respect to the adequacy of the design. [158] It seems that, in truth, Council s concerns relate to compliance with performance criteria PC3 and PC14 of the Service Station Code, not PC13. Yet, as is noted by the appellant, 169 Council does not allege conflict with performance criteria PC3 or PC14, nor does Council allege conflict with: (c) (d) performance criterion PC9 of the Service Station Code, which stipulates that the design and layout of the site must ensure that the Service Station provides safe and easy vehicle movement on the site ; performance criteria PC3 and PC4 of the Car Parking, Access and Transport Integration Code, which relate to the design of car parking areas and spaces; 170 performance criterion PC7 of the Car Parking, Access and Transport Integration Code, which relates to the interaction between the design of car parking areas and the road system; 171 performance criteria PC10 and PC11 of the Car Parking, Access and Transport Integration Code, which relate to the number of access points and the safe design of access points; Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 133 pt 7 div 2 ch Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 135 pt 7 div 2 ch Written Submissions on behalf of the Appellant pp [128]. 170 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 137 pt 7 div 3 ch Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 138 pt 7 div 3 ch Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 pp pt 7 div 3 ch 4.

49 49 (e) (f) performance criterion PC16 of the Car Parking, Access and Transport Integration Code, which relates to the number of car parking spaces; 173 and performance criteria PC5 of the Detached Dwelling Domain Place Code and PC5 of the Residential Choice Domain Place Code, which require vehicular crossing associated with the development to be designed and constructed to ensure, inter alia, a safe footpath environment and safe vehicular access. 174 [159] Counsel for Council acknowledged 175 that where there is no allegation of conflict with a particular provision of its planning scheme, the court should assume Council admits that a decision to approve the proposed development would not result in conflict with those provisions. 176 [160] As such, it seems there is no relevant allegation of conflict that requires determination. There is no remaining allegation that the traffic generated by the proposal will have an unacceptable impact on adjacent land and local road users. [161] It would therefore seem unnecessary to deal with the substance of Council s allegations that the proposed development would result in unacceptable safety impacts. I nevertheless consider it important to do so because: despite the deficiency in Council s identification of relevant performance criteria, with respect to the safety issue, the appellant called evidence and cross-examined about the substance of the issue; 177 and as was observed by Searles DCJ in Harburg Nominees Pty Ltd v Brisbane City Council & Anor (No 2) [2016] QPEC 56; [2016] QPELR 979 at 987 [33], safety is an important matter not to be disregarded lightly by the Courts. In similar vein, in Heilbronn and Partners Pty Ltd v Brisbane City Council 173 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 142 pt 7 div 3 ch Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 111 pt 5 div 2 ch 4 and p 122 pt 5 div 2 ch after specifically taking instructions with respect to the issue 176 T7-136/L22 T7-138/L When one considers the objections taken to the report of Mr Williams and statements made by Counsel for the appellant throughout the hearing about the issues in dispute (such as at T4-9/L4 T4-10/L44) and the case it had come to meet, it could not be said that the appellant was electing to disregard Council s identified issues and fight the case on the issues as addressed in the evidence. Cf. Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, 576-7; Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658. Rather, it seems the appellant thought it prudent to address the issue given the serious nature of the allegation.

50 50 [1997] QPELR 368, Quirk DCJ observed, at 370, In dealing with matters of traffic safety it may well be that a conservative approach is warranted. That the safety of road users is an extremely important consideration could hardly be denied. Traffic safety issue [162] The traffic safety issue was described by Council as follows: 178 There is an unacceptable safety issue for motorists heading south on Ferry Road and motorists attempting to enter the site via the northern access point on Ferry Road. Vehicles entering the site have a very short distance in which to decelerate before turning across a shared pedestrian and cyclist path (which is part of the principal cycle network) and into the site. Ancillary to those issues is that vehicles turning into the site would be obliged to give way to pedestrians or cyclists, and in doing so would cause vehicles to prop and even queue into the curb-side lane of Ferry Rd. Mr Williams explained the ripple effect of vehicles travelling in sequence (or in a platoon ). Accordingly, it is appropriate to have regard to what is a reasonable sight stopping distance. There is certainly not a proper basis to disregard Mr Williams views on these issues. If a vehicle entering the site did not stop for a pedestrian of cyclist, it would at best cut off the pedestrian or cyclist, or at worst have an accident with the pedestrian and cyclist. [163] In the first Traffic Engineering Joint Expert Report, Mr Williams identified the issue as one that impacts on the safety and efficiency of the State-controlled (as opposed to local) road network. 179 In his first individual statement, Mr Williams opines that the proposed access to the subject site from Ferry Road is too close to the intersection of Ferry Road, Cotlew Street East and Skiff Street. The safety issue identified by Mr Williams is the risk of a rear-end collision between vehicles that have decelerated in order to enter the subject site and following through traffic. 180 [164] In reaching his opinion, Mr Williams had regard to Austroads Guide to Road Design 2017, Part 4, Appendix E, section E It states: 182 E.3 Stopping Sight Distance Desirably, a driver can clear the intersection or access connection and have at least stopping sight distance available to react to a potential conflict and come to a stop. Thus a downstream access connection should not be less than the stopping sight distance from the downstream side of the previous connection or intersection. Details of stopping sight distance are available 178 Written Submissions for the Gold Coast City Council p 54 [179]. 179 Traffic Engineering Joint Expert Report Exhibit 5 p 4 [21]. 180 Report of Mr Williams Exhibit 14 pp 7-8 [23]-[32] and pp12-13 [44]-[45]. 181 Report of Mr Williams Exhibit 14 p 8 [32]. 182 Austroads Guide to Road Design 2017 Exhibit 28 part 4 p 181.

51 51 in AGRD Part 3 (Austroads 2016c). It is numerically equal to approach sight distance that is described in AGRD Part 4A (Austroads 2017a). [165] In his first individual statement, Mr Williams evidence was that: 183 based on a 70km/hr design speed, the stopping distance for the subject section of road would be an absolute minimum of 71 metres. This distance was calculated using: (i) a design speed of 10km/hr above the posted limit; 184 (ii) a driver reaction time of 1.5; 185 (iii) a coefficient of deceleration of 0.46; 186 and in exercising his engineering judgment, it is appropriate to measure the sight stopping distance from a point on the stop bar on the northern side of the intersection, rather than at a point clear of the intersection. This was an approach that Mr Williams regarded as generous to the proposal given section E.3 refers to the measurement being taken from the downstream side of the previous connection or intersection. 187 [166] The proposed access to the subject site from Ferry Road would be within the 71 metres. 188 [167] Following the second joint expert report, Mr Viney conducted a speed survey on Ferry Road. Both traffic experts accepted that it demonstrated the 85 th percentile free flow speed was 62.6km/hr, 189 which is the appropriate speed to adopt for any calculation of stopping sight distance. 190 On Mr Williams calculations, this would reduce the distance required to stop to 59.6 metres. 191 [168] During cross-examination, Mr Viney agreed that the assumptions adopted by Mr Williams with respect to driver reaction time and coefficient of deceleration were 183 See also Second Traffic Engineering Joint Expert Report Exhibit 35 p 11 [55]. 184 Report of Mr Williams Exhibit 14 p 7 [24]. 185 T6-51/L T6-52/L Report of Mr Williams Exhibit 14 p 7 [25]; T6-76/L30 T6-77/L7 (Williams). 188 Exhibit 42 p Report of Mr Viney Exhibit 36 p 2 [12]. 190 Report of Mr Viney Exhibit 36 p 2 [13]; T6-76/L22-8 (Williams). 191 Exhibit 45; T6-60/L25 T6-61/L4 (Viney).

52 52 reasonable. In fact, he would have adopted a deceleration rate of 0.36, which would have resulted in a length of 68.9 metres required for stopping. 192 [169] The distance between the Skiff Street stop bar and the centre line of the proposed entry driveway is 55 metres. 193 It falls short of the stopping sight distance calculated by each of the traffic engineers. There was a dispute between the traffic engineers about the significance of this deficiency. [170] In the second joint expert report, Mr Viney opines that Mr Williams is misapplying Austroads Guide to Road Design. 194 Mr Viney says that section E.3 of Appendix E to Part 4 of Austroads Guide to Road Design does not apply to the situation where there is an entry-only access downstream from traffic signals and that the document only deals with that scenario where it states Ideally, no access connection will be located in the functional area of an intersection. 195 [171] Council submits that Mr Viney s evidence, in this respect, was inconsistent and ought be rejected. Council refers to the evidence of Mr Viney that the considerations referred to on pages 38 and 39 of Part 4 of Austroads Guide to Road Design apply. 196 Those pages contain section and Table 7.2, which lists Locate new entrances away from intersections (Appendix E) as a consideration for urban divided arterial roads. I do not regard this concession as inconsistent with Mr Viney s evidence that section E.3 of Appendix E to Part 4 of Austroads Guide to Road Design does not apply. As Mr Viney attempted to explain on a number of occasions, when he reads section E.3 of Appendix E to Part 4 of Austroads Guide to Road Design in conjunction with other parts of Austroads, he regards that section as applying only to egress. 197 [172] In any event, I agree with the interpretation adopted by Mr Viney. I do not accept that the references to entrances in section 7.2.2, or the statement in Table 7.2 Locate new entrances away from intersections (Appendix E) demonstrate that section E.3 in Appendix E applies to access points that are for egress alone. On Council s 192 Exhibit 45; T6-60/L25 T6-61/L4 (Viney). 193 Report of Mr Viney Exhibit 36 p 2 [14]. 194 Second Traffic Engineering Joint Expert Report Exhibit 35 pp 3-4 [9]-[13]. 195 Second Traffic Engineering Joint Expert Report Exhibit 35 pp 4 [13]; Austroads Guide to Road Design 2017 Exhibit 28 part 4 p See Written Submissions for the Gold Coast City Council pp 61-4 [206]-[209]; T6-32/L4 T6-37/L25 (Viney). 197 See the totality of Mr Viney s evidence on this issue from T6-32/L4 T6-47/L20, but particularly T6-44/L1 T6-46/L45 (Viney).

53 53 construction, the reference to Appendix E is sufficient to require the whole of Appendix E to apply to every access point, regardless of whether it is a combined egress and ingress, an ingress only or an egress only. It is apparent from consideration of other parts of Appendix E that such a construction is not intended. Section E.7, for example, deals with egress capacity. 198 While it may have application to access points that are combined egress and ingress or egress only, it would have no application to an access point that is an ingress only. [173] Turning then to a consideration of section E.3, which is concerned with ensuring there is a sufficient stopping sight distance to react to a potential conflict and come to a stop. 199 Mr Viney explained that he regards the potential conflict to be a car leaving the site. 200 His view is informed by section of Part 4, which deals with the functional area of an intersection. 201 It states: 202 The functional area of an intersection is the area beyond the physical intersection of two roads that comprises decision and manoeuvre distances on the approaches and departures, plus any required vehicle storage length. Wherever possible, this area should be protected from interference by traffic from accesses. The upstream functional area is that length over which vehicles on the through road are manoeuvring to execute a right or left-turn at the intersecting road. This length is the greater of the distance required for the right or left turn, including storage of the queue length. The downstream distance is that required for a driver to avoid a collision with a vehicle entering the road from an access connection. (emphasis added) [174] I accept Mr Viney s interpretation. The interpretation is logical when one also considers: section 5.3 in Part 3, which defines stopping sight distance as the distance to enable a normally alert driver, travelling at the design speed on wet pavement, to perceive, react and brake to a stop before reaching a hazard on the road ahead; 203 section in Part 3, which explains that the hazard is regarded as a stationery object on the road and the stopping sight distance is calculated as an 198 Austroads Guide to Road Design 2017 Exhibit 28 Part 4 Appendix E p Austroads Guide to Road Design 2017 Exhibit 28 Part 4 Appendix E p T6-46/L17-29 (Viney). 201 T6-45/L35 T5-46/L5 (Viney). 202 Austroads Guide to Road Design 2017 Exhibit 28 Part 4 p Austroads Guide to Road Design 2017 Exhibit 28 Part 3 p 126.

54 54 agglomeration of the reaction distance, having first seen the stationary object, and the braking distance; 204 (c) (d) a vehicle proposing to enter the site may have no need to come to a complete stop in the road, 205 and nor would a vehicle trailing it; 206 if there was a need to stop on Ferry Road, for example due to a pedestrian or cyclist crossing the ingress: (i) (ii) (iii) (iv) the vehicle entering the subject site would not, in any event, be travelling at 62.6 km/hr it would be slowing to enter the subject site; and as was accepted by Mr Williams, any vehicle trailing the vehicle entering the site will have its speed governed by the vehicle that is entering the site. The trailing vehicle could not go any faster than the vehicle entering the subject site; 207 as was, again, accepted by Mr Williams, the trailing driver would be alert to the need to slow down by the use of the indicator by the vehicle in front; 208 and the trailing driver would have a greater reaction time than that allowed for in the calculation as, in addition to the time they have to react to seeing the vehicle in front completely stopped, the driver first has the reaction time provided by observing the brake lights activated by the vehicle in front. In any event, this potential need to stop is one that can arise at any time when driving on the road. A driver must always be alert, and ready to stop if necessary, to avoid colliding with a vehicle that suddenly stops in front of it. Drivers adopting a driving distance to the car in front that allows a safe stopping distance accounts for that particular risk. 204 Austroads Guide to Road Design 2017 Exhibit 28 Part 3 p T6-78/L41-5 (Williams). 206 T6-79/L1-22 (Williams). 207 T6-79/L1-7 (Williams). 208 T6-79/L9-13 (Williams).

55 55 [175] Despite my view that section E.3 of Appendix E to Part 4 of Austroads Guide to Road Design does not apply, having regard to the cases referred to in paragraph [161] above, it is nevertheless appropriate to have regard to the particular traffic risk that is of concern to Mr Williams. [176] Mr Williams identified that the deficiency in stopping sight distance, in his view, gave rise to the risk of a nose to tail accident at the northern access only. That risk was limited to two circumstances: first, where a vehicle turning left from Ferry Road into the northern access point is required to come to a complete stop to allow a pedestrian or cyclist to cross the access, giving rise to the potential for a nose to tail accident with a vehicle travelling behind the turning vehicle; 209 and second, as a consequence of a platoon or ripple effect closely related to the first factual scenario, but having a more significant effect in a northerly direction along Ferry Road. 210 [177] Mr Williams acknowledged that the risk he identified arises where a vehicle entering the site happens to do so at the same time a pedestrian or cyclist seeks to cross the northern access point. In his view, Mr Williams said this circumstance was likely to arise a couple of times in the peak hour only. 211 [178] Even adopting a cautious approach, as I accept I should, I do not regard the concern expressed by Mr Williams as sufficient to warrant refusal of the development application. I do not regard the impact on the safety and efficiency of the Statecontrolled road network and its users to be unacceptable given, as was acknowledged by Mr Williams during his cross-examination: calculations of stopping sight distance and application of provisions of Austroads Guide to Road Design 2017 are only tools that assist in assessing safety considerations and are not to be rigidly applied without exercising engineering judgment; T6-81/L22-42 (Williams). 210 T6-81/L44 T6-82/L5 (Williams). 211 T6-81/L22-42 (Williams). 212 T6-78/L9-33 (Williams).

56 56 (c) (d) (e) (f) (g) the number of cyclists and pedestrians using the footpath is low. 213 Taking account of the low frequency of pedestrian or cyclists utilising the path, there is a limited opportunity for the risks identified by Mr Williams to crystallise; the site layout proposed offers clear visibility of pedestrians and cyclists on the path to vehicles entering or exiting the subject site; 214 the traffic environment is such that drivers need to anticipate that other vehicles travelling in the left hand lane of Ferry Road in a southerly direction may execute left turns at intersections with adjoining roads and driveways, including driveways for commercial development located further to the north. This expectation will mean drivers are alert to the prospect of having to brake for a turning vehicle and will drive according to the conditions; 215 the northern access enjoys reasonable visibility 216 in circumstances where the Ferry Road and Skiff Street intersection is a wide intersection and drivers would, as they approach an intersection, be assessing the situation past the intersection. 217 This large intersection provides a greater distance that vehicles need to traverse before approaching the proposed northern access; the free flow of traffic in the left hand lane of Ferry Road, travelling south, is interrupted by bus stops. This is relevant to the expectations of drivers in the left hand lane travelling south along Ferry Road. It will contribute to drivers being alert and driving to the conditions, which may call for the driver to brake or reduce speed for a turning vehicle; 218 and Ferry Road is a six lane road. This allows the left-hand lane, as Mr Viney said, can function as a de facto slip or deceleration lane without impeding the other two lanes of traffic. The left-hand lane already has interruptions to free traffic flow. These interruptions include stopping buses and vehicles turning left into other driveways and side streets. These interruptions are not present in the other two southbound lanes Second Traffic Engineering Joint Expert Report - Exhibit 35 pp 6-7 [32]; T6-80/L43-5 (Williams). 214 Second Traffic Engineering Joint Expert Report - Exhibit 35 pp 6-7 [32]; T6-80/L43-5 (Williams). 215 T6-83/L20-8 (Williams). 216 T6-84/L5-15 (Williams). 217 T6-85/L1-24 (Williams). 218 T6-86/L3-20 (Williams). 219 T6-85/L26 T6-86/L20 (Williams).

57 57 [179] At the end of the day, having listened to the evidence of each of the traffic engineers, Mr Williams seemed concerned to ensure the proposed ingress was as safe as possible. exchange occurred: 220 He acknowledged this during cross-examination when the following But, Mr Williams, can I get you this far: it s not a question of whether or not this access will be safe; it s you d like to see it safer, wouldn t you?---that s fair. And that s a statement that also applies to the deceleration rate. It s a package, isn t it?---that s fair, yep. 221 [180] The safety issue identified by Mr Williams is not one that is peculiar to the development. During re-examination, Mr Williams explained that the issue also arises when vehicles turn into Skiff Street across the pedestrian crossing. 222 [181] Whether the access design could be made safer is not the appropriate test. As was observed by Skoien SJDC in his oft cited passage 223 in Jedfire Pty Ltd v Council of the City of Logan & White [1995] QPLR 41 at 43: The raw words of the section have to be taken with a grain of salt. Any rezoning for a proposed development might be said in some degree to create or increase a traffic problem and to affect detrimentally the efficiency of the roads if it creates any extra traffic, which is what almost all developments will do. One must inject a qualifying adverb such as "unreasonably" or "intolerably" into the section. Traffic in modern urban settings is not assessed in Utopian terms. In Utopia all cars, driven only by skilful, courteous drivers, would carry the maximum number of passengers at reasonable speeds on roads perfectly designed for safe swift travel. But the legislature must be taken not to have been acting with Utopia in mind. So in this case I consider that what I have to do is to decide whether the proposal is for a reasonable or tolerable traffic arrangement in the context of modern urban motor vehicle movement. [182] Having regard to the evidence referred to above, particularly the evidence referred to in paragraph [178], I am satisfied that the proposed development would not result in an unreasonable or intolerable increase in the safety risk that drivers presently 220 T6-90/L39-43 (Williams). 221 At the time this exchange took place, Mr Williams response struck me as a frank response to a question to which he was paying careful attention. He showed no sign of being distracted at the time. He was looking at Mr Williamson QC and engaging with him no doubt because of the apparently deliberate pause taken by Mr Williamson QC after he said can I get you this far. Mr Williams later sought to distance himself from this exchange see T6-93/L Observing Mr Williams demeanour during that later exchange, I was not impressed that the exchange involved the same openness and honesty as the earlier exchange. I was unconvinced by his claim that he probably misinterpreted [the] question. 222 T6-94/L27-39 (Williams). 223 Parmac Investments v Brisbane City Council [2008] QPEC 7; [2008] QPELR 480, [16]; Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPEC 20; [2004] QPELR 593, [20]-[22].

58 58 confront when driving in the kerb side lane on Ferry Road in the vicinity of the subject site. I am satisfied that the concerns expressed by Mr Williams do not warrant refusal of the proposed development. [183] In reaching my conclusions, I am comforted by the fact that: Austroads Guide to Design 2017 Part 4 was drafted with the assistance of, amongst others, Mr Mike Whitehead of the Department of Transport and Main Roads. It records: 224 This Guide is produced by Austorads as a general guide. Its application is discretionary. Road authorities may vary their practice according to local circumstances and policies. Austroads believes this publication to be correct at the time of printing and does not accept responsibility for any consequences arising from the use of information herein. Readers should rely on their own skill and judgment to apply information to particular issues. (emphasis added) the design criteria in Part 4 of Austroads Guide to Road Design 2017 are normal design domain values. Austroads states: These are road design values suitable for the design of all unsignalised and signalised intersections, including the installation of new intersections on new roads (greenfield sites). In most cases, these design values will also be suitable for new intersections on existing roads and for modifications to existing intersections (both are examples of brownfield sites). In constrained locations (particularly at brownfield sites), it may not always be practical or possible to achieve all of the relevant NDD values. In these constrained locations, road agencies may consider the use of values outside of the NDD. In applying this guide: 1. NDD values given in the body of this guide should be used wherever practical. 2. Design values outside of the NDD are only to be used if approved in writing by the delegated representative from the relevant road agency. The relevant road agency may be a state or territory road agency, municipal council or private road owner. 3. If using EDD values, the reduction in standard associated with their use should be appropriate for the prevailing local conditions. Generally, EDD should be used for only one parameter in any application and not 224 Austroads Guide to Road Design 2017 Exhibit 28 Part 4 Acknowledgments.

59 59 be used in combination with any other minimum or EDD value for any related or associated parameters. The use of an EDD value should not result in a reduction in the safety performance and may need to be supported by other treatments. (emphasis added) (c) (d) (e) Department of Transport and Main Roads, being the relevant road authority charged with ensuring that any development does not have an unacceptable impact on the safety and efficiency of the State-controlled road network, is aware of the requirements of Austroads Guide to Road Design; 225 despite having been provided with a copy of the reports by Mr Williams that identify his concerns about the proposed development, and being invited by Council to play an active role in these proceedings, Department of Infrastructure, Local Government and Planning has confirmed that it does not wish to amend its concurrence agency response or be heard in this matter. 226 Mr Williams accepts that Department, when making its decision, would have been assisted by Department of Transport and Main Roads; 227 and the concurrence agency response approved the proposed development. The response was from the entity responsible for assessing the impact of the proposed development on the safety, structural integrity and operation of State transport corridors and State transport infrastructure and its impact on the safety, function and operational efficiency of the State-controlled road network, 228 including Ferry Road. 229 [184] Although the matters referred to in paragraph [183] above were of comfort to me, they are not determinative. I do not, however, accept Council s submission that I should limit my consideration to the evidence of Mr Williams and Mr Viney. 230 The concurrence agency response is a matter to which regard must be had pursuant to 225 T6-87/L30 T6-88/L5 (Williams). 226 Affidavit of Thomas Gordon McKeown - Exhibit 37 p T6-90/L9-17 (Williams). 228 See s 255B and s 255C of the Sustainable Planning Act 2009, s 10A of the Sustainable Planning Regulation 2009 (Qld) and State Development Assessment Provisions version 1.6 module 18 and module Appeal Book Exhibit Written Submissions for the Gold Coast City Council p 55 [180].

60 60 s 314(3)(c) of the Sustainable Planning Act I cannot abrogate my duty to assess the development, 231 but the concurrence agency response is, nevertheless, relevant. 232 Demonstrable need required by the 2003 Planning Scheme [185] The issue of need is relevant, in the context of this appeal, in two respects. [186] First, it is relevant to determining whether a decision to approve the proposed development would conflict with the 2003 Planning Scheme. [187] Second, it is relevant in determining whether there are sufficient grounds to warrant approval of the proposed development despite conflict with applicable planning instruments. [188] In this section, I will deal only briefly with the first issue. The extent of the need demonstrated and the question of whether there is need sufficient to justify approval will be dealt with further below under the heading Grounds. [189] At the outset, I note that Council accepts the evidence of Mr Leyshon that there is a low level of need for the proposed service station. However, it contends that a low level of need is insufficient to satisfy performance criterion PC12 of the Service Station Code. 233 [190] Performance criterion PC12 of the Service Station Code states: 234 The Service Station must be in a location where there is a demonstrable need for the Service Station use. [191] The 2003 Planning Scheme does not define demonstrable need. Something is demonstrable if it is clearly apparent or capable of being logically proved. [192] The meaning of this provision was recently considered by Rackemann DCJ in United Petroleum Pty Ltd v Gold Coast City Council & Anor [2017] QPEC 8. Rackemann DCJ observed at [81]: There was some debate as to what constitutes a demonstrable need for the purposes of PC12 and, in particular, whether even a low level of need, as found by Mr Leyshon, would meet that description. The ordinary meaning 231 Golder v Maranoa Regional Council & Ors [2014] QPEC 68; [2015] QPELR 292, 307 [55]. 232 See s 314(3)(c) of the Sustainable Planning Act 2009; Westlink Pty Ltd v Lockyer Valley Regional Council (No 4) [2013] QPEC 35; (2014) 198 LGERA 1, [54]. 233 Written Submissions for the Gold Coast City Council p 69 [222]. 234 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 134 pt 7 div 2 ch 31.

61 61 of demonstrable is something which is capable of being shown or logically proved. That says nothing of the strength of what is shown or proved. A need does not have to be particularly strong to be a demonstrable need. The provision ought however, consistently with the ordinary principles of construction, as they are applied to planning schemes, be interpreted as referring to a real or substantive (rather than trivial, immaterial, minor or insignificant) need which is capable of being shown or logically proved. [193] Despite the evidence of Mr Leyshon that there is a clear (but low level) need, Council submits the proposed service station fails the test set by performance criterion PC12 of the Service Station Code. It submits: 235 It would be absurd to read PC12 as meaning any level of need, ranging from a low level of need to overwhelming need. The proper construction is to read PC12 as requiring a reasonable level of need and something more than a low level of need, and to satisfy a latent unsatisfied demand. [194] Council did not explain why a low level of need would result in an absurdity. [195] The appellant submits that on the evidence of Mr Leyshon alone, the need for the proposed service station is not trivial, nor is it so insignificant as to be irrelevant and, as such, there is demonstrable need. In his evidence, Mr Leyshon was clear that it was his position that there was a need for the proposed development. He accepted that the matters in the agreed part of the joint report demonstrated that need. He simply assessed it as lower in its extent. 236 [196] In my view, the evidence of Mr Leyshon demonstrates compliance with performance criterion PC12. Mr Leyshon identified a need by reference to the economic analysis in the joint report. This analysis was agreed. Although he characterised need as low in strength, he nevertheless opines that there is a clear need. [197] In any event, for reasons canvassed in more detail below under the heading Grounds, I am of the view that the need is somewhat higher than that expressed by Mr Leyshon. [198] I am satisfied that a decision to approve the proposed development would not conflict with performance criterion PC12 of the Service Station Code. 235 Written Submissions for the Gold Coast City Council p 69 [224]. 236 T4-75/L12-30; T4-76/L25-6; T4-78/L46-7; T4-79/L41-2; T4-80/L12-21; T5-20/L42-4; T5-21/L8-10; T5-23/L10-3.

62 62 Conclusion regarding appropriateness of the service station use [199] As I identified earlier in paragraphs [36] and [37], Council alleged that a decision to approve the proposed development, insofar as it includes a service station proposed to operate 24 hours a day, 7 days per week, would conflict with the 2003 Planning Scheme. [200] For the reasons identified under each relevant heading above, I am satisfied that the proposed development does not offend the relevant assessment criteria referred to by Council with respect to: (c) setbacks; impacts on residential character and amenity; traffic; and (d) need. 237 [201] As such, I am satisfied that, under the 2003 Planning Scheme, the proposed development, insofar as it includes a service station, is appropriate on the subject site. Nature and extent of conflict [202] The appellant accepts that a decision to approve the proposed development would conflict with the 2003 Planning Scheme because fast food premises and take-away food premises are categorised as undesirable uses in both the Residential Choice Domain and the Detached Dwelling Domain. 238 This is the only conflict with the 2003 Planning Scheme. [203] The approach of this court in assessing the nature and extent of any conflict is well documented in previous decisions of this court, as well as the Court of Appeal in cases such as Weightman v Gold Coast City Council & Anor [2002] QCA 234; [2003] 2 Qd R 441; Woolworths Limited v Maryborough City Council (No 2) [2005] QCA 262; [2006] 1 Qd R 273, 286; Gillion v Scenic Rim Regional Council & Ors [2013] QPEC 15; [2013] QPELR 711 and Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA See my conclusion at paragraphs [64], [98], [127], [138], [139], [140], [160], [182], [196] and [196]. 238 Written Submissions on behalf of the Appellant p 9 [44].

63 63 [204] As is noted earlier, part 5 division 1, chapter 2, clause 4.0, subclause of the 2003 Planning Scheme states: 239 Any use not listed in Section A of the Table of Development, should be considered as undesirable or inappropriate in the domain to which the Table of Development applies. [205] Taken at face value, this provision indicates clear policy that take-away food premises and fast food premises not be located in either the Detached Dwelling Domain or the Residential Choice Domain. [206] The categorisation of take-away food premises and fast food premises as inappropriate uses in the Detached Dwelling Domain and the Residential Choice Domain is deliberate. The deliberate nature of the strategy is highlighted when one considers the stated purpose of domains. Part 5, division 1, chapter 1, clause 1.0 of the 2003 Planning Scheme states: 240 The purpose of the domains is to signal that the City is divided into land units with common characteristics, for the purposes of land use and development control. The term domain is introduced to identify those areas of the City with a particular use mix or development character (or that have potential in this context) that will benefit from the application of consistent planning guidance and development control. Domains provide for the distribution, mixing and segregation of different types of development. Each domain is intended to provide for compatible development within identified parts of the City and to segregate incompatible development. Importantly, each domain is intended to include planning measures to achieve the Planning Scheme s Desired Environmental Outcomes (DEOs). (emphasis added, original bolding of Desired Environmental Outcomes removed) [207] Part 5, division 1, chapter 1, clause 4.0 of the 2003 Planning Scheme explains the relationship between domain and land use themes identified in part 3, division 3. It states, in part: 241 The domains are the key to the assessment status of individual development proposals within their subject areas. The controls included in each domain provide guidance for the assessment of a development proposal, and translate the objectives and intent of the Land Use Theme into land use and development provisions. Each domain contains a specific code 239 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 97 pt 5 div 1 ch 2 cl 4.0 sub-cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 93 pt 5 div 1 ch 1 cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 94 pt 5 div 1 ch 1 cl 4.0.

64 64 (place code) for the purposes of assessing development applications within its subject area. (emphasis added) [208] The Table to Clause nominates the Urban Development as the Directly Relevant Land Use Theme(s) for the Detached Dwelling and Residential Choice domains. [209] The specific code (place code) for the Detached Dwelling Domain is the Detached Dwelling Domain Place Code and for the Residential Choice Domain is the Residential Choice Domain Place Code. [210] The Land Use Themes are in part 3, division 3 of the 2003 Planning Scheme. In introducing Land Use Themes, the 2003 Planning Scheme states: 243 The Land Use Themes are not domains or Local Area Plans (LAPs). Rather, they are indicative of the types of domains or LAPs that could be expected in the areas described. Implementation of the stated planning intent will occur through the provisions of the applicable domains or LAPs and any other relevant development code. However, Council will also have regard to the Land Use Themes as expressions of broad planning policy when considering proposals for impact assessable development that do not fully accord with applicable codes. (emphasis added) [211] These provisions indicate that when assessing the acceptability of a type of use, the Table of Development for the relevant domain will provide an indication of the types of uses that are compatible, as well as those types of uses generally regarded as incompatible and that ought be segregated from the uses encouraged in the domain. However, other relevant development codes are also used to achieve the stated planning intent for the land use themes. [212] With respect to the Urban Residential Land Use Theme, the 2003 Planning Scheme states: 244 This Land Use Theme acknowledges residential uses and a range of other land uses that support local community needs. It identifies where the majority of the city s population will live, and encompasses a wide diversity of housing types and styles, as well as the provision of local and neighbourhood services and facilities. Open space, recreation and nature 242 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 95 pt 5 div 1 ch 1 cl 4.0, table to cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 76 pt 3 div 3 ch Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 79 pt 3 div 3 ch 7.

65 65 conservation areas are also acknowledged, as these form important elements of local character and neighbourhood amenity within urban areas. (emphasis added) [213] The planning intent for the Urban Residential Land Use Theme provides: 245 These areas will be characterised by extensive residential use, generally at medium to low densities. Other uses will include local and neighbourhood centres, parks, reserves and recreational facilities, religious, cultural and health facilities, and home based employment. (emphasis added) [214] While acknowledging the potential for uses that provide local and neighbourhood services and facilities, no express mention is made of service stations, take-away food premises or fast food premises. In contrast, provisions about the Major Activity Centres Land Use Theme indicate that: (c) (d) Key Metropolitan Centres or Key Regional Centres, with a potential catchment of between and people, will ultimately provide the majority of the following components... service station facilities ; 246 Regional Centres, with a catchment of around to people, are envisaged to ultimately provide the majority of the following components... service stations ; 247 Sub-Regional Centres, which cater for a catchment of between and people, will ultimately provide most of the following components... service stations ; 248 District Centres, catering to an ultimate catchment of approximately to people, could ultimately provide the following range of facilities... a service station local restaurant and dining facilities Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 79 pt 3 div 3 ch 7, cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 83 pt 3 div 3 ch 12, cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 84 pt 3 div 3 ch 12, cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 85 pt 3 div 3 ch 12, cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 83 pt 3 div 3 ch 12, cl 5.0.

66 66 [215] These provisions expressly contemplate the provision of service stations in the identified centres. However, that does not demonstrate that all service stations and dining facilities (such as restaurants, take-away food premises and fast food premises) are intended to be located in those identified centres. As the planning intent for the Major Activity Centres Land Use Theme notes: 250 Neighbourhood centres and local centres, which are part of the Urban Residential Land Use Theme, support the identified centres. Such centres are intended to provide convenience goods and services for a relatively small catchment. It is not intended that these centres expand to an extent that they significantly compete with those on Planning Strategy Map PS1. [216] The proposed development involves a small format service centre. It includes not only a service station and an associated convenience shop, but also separate tenancies for take-away food premises and a fast food premises with outdoor dining and a drivethrough facility. [217] The experts agree that the main trade area for the proposed service station extends two to five kilometres around the subject site, and is restricted by waterways throughout the surrounding area and the pattern of urban development. 251 The trade area considered for each of the take-away food premises use and the fast food premises use was identical. 252 [218] The population of the trade area is currently estimated at , including in the primary sector, increasing to by 2019 and (with in the primary trade area) by The size of the catchment approximates that intended to be served by a District Centre. This might, at first blush, suggest that the conflict is serious. Council does not allege conflict with these provisions. Further, the economic experts agree that the proposed development will have no significant impact on the hierarchy of centres identified throughout the Gold Coast. 254 As such, I do not consider there to a significant conflict occasioned by these provisions Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 82 pt 3 div 3 ch 12, cl Economic Need Joint Expert Report Exhibit 6 p 20 [50]. 252 Economic Need Joint Expert Report Exhibit 6 p 41 [87] and p 45 Map Economic Need Joint Expert Report Exhibit 6 p 22 [53] and [54]. 254 Economic Need Joint Expert Report Exhibit 6 p 41 [86].

67 67 [219] Returning to the domains, the intent statement for each domain sets out the primary objectives of this Planning Scheme for the land that is included within the particular domain. 255 [220] The Intent of the Detached Dwelling Domain 256 and the Purpose of the Detached Dwelling Domain Place Code 257 are in very similar terms. The Intent of the Detached Dwelling Domain states: 258 The purpose of this domain is to provide for low density residential areas that consist predominantly of low rise, detached dwellings, in a garden landscape, that are well serviced in terms of urban facilities and transport. It is intended to preserve and enhance the suburban character and residential amenity of these low density residential neighbourhoods. This domain also seeks to enhance and promote the residential lifestyle attributes of privacy and quiet enjoyment of family life, with opportunities for residential based leisure pursuits. Key objectives include: providing for some variety in dwelling size and style, within the context of a relatively homogeneous residential environment; providing for extensive areas of both private and public open space, and promoting the landscaping of these areas to achieve a green and attractive residential environment and to contribute to the City wide landscape character themes; providing for a limited range of home based activity where the scale and intensity of the activity will not impact on the high level of residential amenity expected within this domain; and facilitating home based business activity where this has no adverse impact on the residential amenity of the neighbourhood. (emphasis added) 255 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 96 pt 5 div 1 ch 2, cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 102 pt 5 div 2 ch 4, cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 110 pt 5 div 2 ch 4, cl 5.0, sub-cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 102 pt 5 div 2 ch 4, cl 1.0.

68 68 [221] The Intent of the Residential Choice Domain, 259 and the Purpose of the Residential Choice Domain Place Code, 260 are also in very similar terms. The Intent of the Residential Choice Domain states: 261 This domain seeks to support the provision of a range of housing choice that is responsive to the changing demographic structure of the City, whilst maintaining an efficient land use pattern. The purpose of this domain is to support the development of a residential pattern comprising mixed dwelling types, including detached dwellings, attached dwellings and apartment buildings that relate well to each other. This domain seeks to: support residential densities that are moderately higher than traditional detached dwelling areas; facilitate a wide variety of home office, home occupation and residential support services to be located within the domain, commensurate with local residents needs; and achieve a high standard of residential amenity across the range of dwelling types in the domain. (emphasis added) [222] Council submits that a sensible reading of the intent and purpose of the Detached Dwelling Domain and the Residential Choice Domain is that a service station, serving a wide trade area and which abuts residential land uses, is at odds with the primary planning objectives of the areas. 262 It submits that there is no express support for a service station in the Detached Dwelling Domain and the Residential Choice Domain, and certainly not one that serves needs that are greater than the needs of the local residents. 263 [223] I do not consider a decision to approve a service station abutting residential land uses to be at odds with Council s planning objectives for the Detached Dwelling Domain and the Residential Choice Domain. [224] The primary objective of the Detached Dwelling Domain is to provide low density residential areas, but this does not equate to an intention that all the land in that domain be developed only for residential purposes. The Table of Development identifies that it may be possible to establish identified non-residential uses (including 259 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 113 pt 5 div 2 ch 5, cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 121 pt 5 div 2 ch 5, cl 5.0, sub-cl Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 113 pt 5 div 2 ch 5, cl Written Submissions for the Gold Coast City Council p 27 [94]. 263 Written Submissions for the Gold Coast City Council pp 26-7 [91]-[92].

69 69 a service station) in the Detached Dwelling Domain, provided such uses respect the intent of the domain. As I have already noted above, a decision to approve the proposed development would not conflict with the intent to preserve and enhance the suburban character and residential amenity of these low density residential neighbourhoods. [225] The primary objective of the Residential Choice Domain is to support the provision of a range of housing choice and to support the development of a residential pattern. The area is generally to be characterised by extensive residential use. As with the Detached Dwelling Domain, this does not equate to an intention that all the land in that domain be developed only for residential purposes. To the contrary: the Residential Choice Domain expressly encourages a wide variety of residential support services to be located within the domain commensurate with local residents needs. The context suggests that the type of residential support services located within the domain should reflect those services that the local residents need. For reasons detailed below, I accept there is a need for the proposed development; and the Table of Development for the Residential Choice Domain identifies that it may be possible to establish identified non-residential uses, including a service station, if such uses respect the intent to achieve a high standard of residential amenity across the domain. In my view, for reasons already explained, I consider the proposed development respects this intent. [226] Turning then to Council s submission that the intent and purpose of the Detached Dwelling Domain and the Residential Choice Domain do not support a service station that serves needs that are greater than the needs of the local residents. [227] I accept that, when read in context with the provisions of the Major Activity Centres Land Use theme, it may be difficult to characterise the proposed development as one that provides residential support services commensurate with local residents needs given the trade area population for the main trade area is within the range for a District Centre.

70 70 [228] On the other hand, the provision should be construed having regard to the provisions of the Service Station Code. The purpose of that code is to ensure that service stations are established to meet the needs of local residents, visitors and travellers, through convenient points of service. [229] Further, the population of the primary trade area is less than that planned to be served by a District Centre and, to the extent that there is a need, its satisfaction on the subject site would not have any significant impact on the hierarchy of centres. 264 [230] It is not necessary for me to reach a concluded view about the effect of these provisions, as Council does not allege there is conflict with the intent of the domain occasioned by the extent of the catchment served by the service station. It only alleges conflict with the intent on the basis that the proposed development, by nature of its commercial operations, does not achieve a high standard of residential amenity. 265 In any event, I would not refuse the proposed development on this basis given the views I have formed about the community benefit to the local residents and the absence of significant impact on the hierarchy of centres. [231] Having regard to the matter referred to in paragraphs [204] to [230] above, the conflict is not simply technical or trivial. The evident policy intention to segregate take-away food premises and fast food premises uses, as a broad category of use, as inappropriate uses for the Detached Dwelling Domain and Residential Choice Domain points to a conflict at the more serious end of the spectrum. [232] That does not necessarily equate to an insuperable hurdle. However, it calls for careful consideration of the impacts of the particular development, and the context in which the particular development is proposed. This is to ascertain whether, despite the clearly enunciated planning policy against the location of such uses in these domains, the extent of the conflict overall is such that there are grounds that warrant its approval. 264 Economic Need Joint Expert Report Exhibit 6 p 41 [86]. 265 Exhibit 32.

71 71 [233] Here, the serious conflict occasioned by the proposal for take-away food premises and fast food premises uses, being categories of uses generally regarded as inappropriate, is significantly reduced because the proposed development: would not result in material adverse amenity impacts; 266 does not conflict with the Detached Dwelling Domain Code, the Residential Choice Domain Code or the Retail and Related Establishments Code (being the specific development code applicable to take-away food premises and fast food premises); 267 (c) in accordance with the Service Station Code: 268 (i) (ii) (iii) (iv) will provide a service station at a suitable location; will ensure that a service station is established to meet the needs of local residents, visitors and travellers through convenient points of service; is on a site of sufficient area; and will be a modern, attractive service station in its appearance and design. Grounds [234] The grounds relied on by the appellant to justify approval of the proposed development can be broadly described as need and other matters of merit. Need General principles [235] The general principles with respect to need are well-settled. 266 See, in particular, my findings in paragraphs [98], [116], [117], [118], [127], [138] and [140] above. 267 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 129 pt 7 div 2 ch 27. It can be assumed that compliance is achieved as Council conceded that compliance can be assumed where no conflict is alleged by it. 268 Book of Planning Scheme Extracts Gold Coast Planning Scheme 2003 Exhibit 11 p 132 pt 7 div 2 ch 31. It can be assumed that compliance is achieved as Council conceded that compliance can be assumed where no conflict is alleged by it.

72 72 [236] Many of the relevant principles are referenced in Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, wherein Wilson DCJ provided a thorough analysis of the authorities at as follows: [20] In Watts & Hughes Properties Pty Ltd v. BCC (1998) Q.P.E.L.R. 273 at 275 the Court said: Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire. A thing is needed if its provision, taking all things into account, improves the physical well-being of the community (see Cut Price Stores Retailers v. Caboolture Shire Council (1984) Q.P.L.R. p.126 at 131). Need does not connote a pressing urgency but relates to the well-being of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality (see Roosterland Pty Ltd v. Brisbane City Council (1986) 23 A.P.A.D. p.58 at p.60). [21] Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community (Fitzgibbons Hotel Pty Ltd v. Logan City Council (1997) Q.P.E.L.R. 208 at 213; Bunnings Building Supplies Pty Ltd v. Redland Shire Council (2000) Q.P.E.L.R. 193 at 198C). Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met (Indooroopilly Golf Club v. BCC (1982) Q.P.L.R. 13 at 32-35, William McEwans Pty Ltd v. BCC (1981) 1 Q.P.L.R. 33 at 35). [22] The question whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors: Sempf v. Gatton Shire Council (1997) Q.P.E.L.R. 198, at ; Arksmead Pty Ltd v. Gold Coast City Council (1989) Q.P.L.R. 322 at 330. Nor is the impact of a proposed development on existing like businesses a matter which is to be taken into account adversely to the proposed new facility unless, as Ms Scally noted in her report, the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community: Kentucky Fried Chicken Pty Ltd v. Gantidis (1979) 140 C.L.R. 675, at 687. [23] Any possible adverse effects on an existing business will only be relevant to the extent that there is a risk of a reduction in the level of services enjoyed by the community by depressing one provider, and not replacing it with another: Zieta No. 59 Pty Ltd v. Gold Coast City Council (1987) 2 Qd. R. 116, at 120; Whitehead v. Hervey Bay City Council (1999) Q.P.E.L.R. 131, at 132. Indeed, providing competition and choice can be a matter which also provides for a need, in the relevant sense: Bunnings Building Supplies Pty Ltd v. Redland Shire Council (2000) Q.P.E.L.R. 193, at 198. [24] The weight to be given to the question of need, in assessing the merits of an application, is not fixed. As Moynihan J said in Intrafield Pty Ltd v. Redland Shire Council (2001) Q.C.A. 116, at para.[20]:... Need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account.

73 73 In some instances public or community need for a service or facility may not be great, and other considerations may be of greater moment. [25] It is also relevant to have regard to the nature of the proposed development. In Harburg Investments Pty Ltd v. Brisbane City Council (2000) Q.P.E.L.R. 313, the Court said at 317: (25) To state a truism, in assessing need when a development is being proposed, one must bear in mind the nature of that development. What is proposed here is not a specialised development such as a liquor barn, a hardware house, a hospital, a cinema complex or the like which attract custom from people with one specific purpose in mind. In such a case one would look more critically at the availability of like institutions elsewhere in reasonable proximity to the site. The benefit of more competition and choice would seldom justify having two liquor barns, two hardware warehouses, two hospitals or two cinema complexes cheek by jowl. (26) However, less stringent tests would apply in a case such as this, where convenience retail centres are under consideration. Stress must be paid on the convenience to the likely patrons of those development. Some patrons will prefer to visit one centre rather than another for idiosyncratic reasons which may relate to such things as the perceived convenience of access, the atmosphere of the development, the range of goods and services available and the personalities of the people employed there. While the access to this site is not entirely convenient, many may prefer it to negotiating the heavy traffic likely to be encountered in the Aspley business centre; the atmosphere at the proposed centre is likely to be more relaxed than at the Hypermarket or other business centres (including the centre where the Harburg premises are); the range of goods and services to be offered at the Ecovale development are at this stage undefined, other than a convenience store, but it is likely that there will be a mix which will particularly suit and attract some patrons; friendships of greater or lesser degrees are likely to be struck up between patrons and those who work there. It is in this sense that convenience, and thus need, should be judged and in my view it is probably that a need will be filled by the establishment of this small convenience centre for many of those people who live in the catchment areas identified by Mr Abnett, the economic consultant who was called by Ecovale. [26] This Court has been prepared to find that a need exists, despite the presence of similar businesses in the locality. Generally speaking, however, those decisions have been confined to circumstances where the proposals were likely to provide benefit by way of a greater level of convenience to patrons: Harburg Investments (supra); Provincial Securities Pty Ltd v. Brisbane City Council [2001] Q.P.E.L.R At the other end of the spectrum are cases in which such facilities as a new service station, or cinema complex would add to a consumer s area of choice but not noticeably improve the wellbeing of the community, or improve the services and facilities available in a locality where existing businesses plainly met demand: Prime Group Properties Ltd v. Caloundra City Council [1995] Q.P.L.R. 146, at 150; and, Queensland Investment Corporation v. Toowoomba City Council [2000] Q.P.E.L.R. 362.

74 74 [27] As to the question of the weight to be ascribed to need here, while this is a development of a special kind with a specific purpose, suggesting the issue should be looked at fairly critically (as Skoien SJDC suggested in Harburg (supra)) the proper care of children, and the provision of adequate facilities for that purpose are of manifestly greater importance, and of a more critical kind for the wellbeing of an important group in the community (parents of young children), than such things as service stations, liquor barns, hardware houses and cinemas, or the like. On any view, the existence or otherwise of a latent unsatisfied demand for childcare facilities is a matter of greater significance to the community than, say, having to drive a few extra miles or minutes to fill a car with petrol, or reach a cinema complex. The presence of other existing child care centres in the area of the proposed development, and the competition it might provide to them, is to be considered in this light. [28] Relevantly, too, need is but one of a large number of issues Council is required to consider in an application of this kind and is not, on any view, paramount. In the context of this scheme, its proper position in the spectrum of matters of greater or lesser importance was fairly set out by Council's own planner, Ms Scally, in the passage already transcribed at para[14]: ie unless approval of the proposal is likely to have an obvious detrimental effect, need is a matter of relevance, but no great moment. Here, where the proposed development provides an important service to the community, is permissible in the area in which it is to be located, and is largely consonant with surrounding facilities, need is not a matter to which great weight should be given. In particular, it was not incumbent upon the applicant here to establish existing facilities were inadequate, or that approval might potentially impact upon them. Rather, it was only required to show that, in the existing marketplace there was still a reasonably apparent, discernible need for extra childcare places. [29] When a Council comes to consider issues of this kind, it is a relevant matter that nothing in the legislation suggests local authorities are intended, or required, to actively manage and oversee private enterprise in their areas, or assume a planning role which requires them to protect existing businesses from competition. There must, too, be some reasonable, practical limits to the quality and detail of information an applicant must adduce to satisfy a Council about the matters raised, here, under s , and.3. As Skoien DCJ recognised so long ago as Cut Price Stores Retailers & Ors v. Caboolture Shire Council (1984) Q.P.L.R. 126 at 131, an obligation to provide information about the likely economic impact of a proposed development upon similar existing businesses could, strictly speaking, involve crippling amounts of time, and money. For these reasons need has never been defined, in this jurisdiction, as reflecting an economic imperative, or one which (by extension) requires an applicant to establish an overwhelming demand by means of very strong supporting evidence: Cut Price Stores Retailers (supra) at 131; Roosterland Pty Ltd v. Brisbane City Council (1986) 23 A.P.A.D. 58 at 60; William McEwans Pty Ltd v. Brisbane City Council (1981) 2 A.P.A.D [30] Within those parameters the central question is whether or not there is evidence of an existing, latent unsatisfied demand of the kind discussed in Queensland Investment Corp (supra, at 373) and Arksmead Pty Ltd v. Council of the City of the Gold Coast [2000] Q.P.E.L.R (emphasis added)

75 75 [237] In PMM Group Pty Ltd v Noosa Shire Council [2005] QPEC 79; [2006] QPELR 144 Robertson DCJ observed at 168 [129]: It is trite that any established need has to be considered by the decision maker against the background of the relevant planning provisions in the particular case. Senior Judge Skoien said in Skateway Pty Ltd v Brisbane City Council & Ors [1980] QPLR 24 that a consideration of the extent of need is subject always to other considerations of the town planning kind.... [238] Although Council s written submissions made reference to some of these general principles, Council also refers to other statements that it submits are general principles relevant to need. As was noted by Robertson DCJ in Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council [2014] QPEC 024; [2014] QPELR 479 at 532 [244]: Care must be taken in extracting and applying descriptions of town planning need and/or community need from the cases without understanding the context in which those general statements were made. [239] Paragraph 225 of the Written Submissions for the Gold Coast City Council are an example of the error that can occur if such care is not taken. There, Council submits that the general principles relevant to need include: As a planning concept, need is not solely a factor of economics or of supply and demand it is considered to be a planning circumstance which is the outcome of all relevant planning considerations be they economic, social, environmental or strategic. 269 [240] In support of this submission, Council cites Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35, 46 (Fryberg J). However, the observations of Fryberg J at 46 do not contain a reference to economic, social, environmental or strategic considerations. [241] Further, Fryberg J s observations related to the concept of need as referred to in s 4.4(3) of the Local Government (Planning and Environment) Act That provision required local governments, in considering an amendment to a planning scheme, to assess the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment. 270 Although Fryberg J noted that the statutory consideration might involve overlap with the general consideration of need 269 Written Submissions for the Gold Coast City Council p 69 [225]. 270 Emphasis added.

76 76 to which the Planning and Environment Court often had regard, he said that it was not necessary for him to consider whether the concept of need in the statutory provision was identical to that formulated by judicial exegesis. He then focussed his observations on the requirements of the statute. That statute does not apply here. [242] By way of contrast, although the planning legislation applicable in cases referred to in Isgro 271 have since been repealed, the observations cited with approval were statements of general principle. They were not observations about the meaning and effect of a specific, and now repealed, legislative provision. [243] Care should also be taken in extracting findings of fact from the cases and relying on them to urge the court to reach the same ultimate conclusion in a different case where the nature of the evidence is different. Council s submissions at paragraph 226 demonstrate the difficulties of adopting such an approach. In that paragraph Council submits: In the first instance decision in Intrafield Pty Ltd v Redland Shire Council [2000] QPELR 337, which was with respect to a service station, McLauchlan QC DCJ: found that there was no real evidence of inadequacy in respect of the existing service stations; for example, there was "no evidence of queuing or overcrowding at existing outlets" (which is also the present case), and the evidence did "not go further than to show that the proposal would be an attractive and additional choice for some of those motorists" which "falls short of showing that the needs of motorist are not at present adequately catered for"; said further at [7]: "The fact that a number of these commuters would be likely to purchase their petrol supplies and convenience goods at the proposed service station instead of at outlets currently patronised by them no doubt indicates a degree of convenience offered by the proposed outlet in comparison with the existing 271 Watts & Hughes Properties Pty Ltd v Brisbane City Council [1998] QPELR 273; Cut Price Stores Retailers & Ors v Caboolture Shire Council [1984] QPLR 126; Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515; (1986) 23 APAD 58; Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208; Bunnings Building Supplies Pty Ltd v Redland Shire Council [2000] QPELR 193; Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13; William McEwans Pty Ltd v Brisbane City Council [1981] 1 QPLR 33; Sempf v Gatton Shire Council [1997] QPELR 198; Arksmead Pty Ltd v Gold Coast City Council [1989] QPLR 322; Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675; Zieta No. 59 Pty Ltd v Gold Coast City Council [1987] 2 Qd R 116; Whitehead v Hervey Bay City Council [1999] QPELR 131; Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350; Harburg Investments Pty Ltd v Brisbane City Council & Anor [2000] QPELR 313; Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143; Prime Group Properties Ltd v Caloundra City Council [1995] QPLR 146; Queensland Investment Corporation v. Toowoomba City Council [2000] QPELR 362.

77 77 outlets. This does not, however, in my opinion, of itself demonstrate that there is a demand for the provision of a new facility in the vicinity of the proposed service station. Given an addition to existing choices a number of consumers are likely to avail themselves of it as a matter of human experience. While this indicates a consumer preference, to an extent which is, however, debatable, it does not demonstrate inadequacy in the existing arrangements and therefore falls short of showing a planning need for the development." (underlining added) [244] It is true, as is submitted by Council, that in this case there was no evidence of queuing or overcrowding at existing outlets. However, that is because, in discharging their obligations as expert witnesses to make all enquiries they considered appropriate, neither expert regarded it as necessary to make such enquiries. The economic experts, as a matter of professional judgment, adopted different methods of analysing need than that adopted by the experts in Intrafield Pty Ltd v Redland Shire Council [2000] QPEC 070; [2000] QPELR 337. Here, in forming their opinions, the experts had regard to: 272 pertinent information on the Australian Fuel Industry; and a detailed analysis of: (i) (ii) (iii) (iv) (v) (vi) the trade area that would be served by the proposed development; the population and projected population of the trade area; fuel market size in the trade area; the impact of passing traffic; the impact of tourism; and the importance of 24 hour trade in the current consumer environment. [245] There is no suggestion by McLauchlan QC DCJ in Intrafield Pty Ltd v Redland Shire Council [2000] QPEC 070; [2000] QPELR 337 that the experts in that case, in forming their opinions, had regard to those types of considerations. Consequently, the conclusions reached in that case are of little assistance here. 272 See Economic Need Joint Expert Report - Exhibit 6.

78 78 [246] Each case must be decided on its own facts having regard to the evidence available. It is not appropriate to conclude that there is no evidence of need on the basis that the experts opinions are expressed without having considered one particular method of assessing need referenced by experts in another case, such as a survey of queuing or overcrowding at existing outlets. That particular factual findings are open in one case does not demonstrate that the same findings should be made in a different case where the nature of the evidence on need is different. 273 The evidence [247] The economic experts, Mr Duane retained by the appellant and Mr Leyshon retained by Council, produced a joint expert report. It contains extensive points of agreement between the experts, including: the Australian Industry of Petroleum is the key body representing Australia s oil industry. Its website records that: (i) (ii) the retail fuel market is highly competitive (not a concentrated market) and has been undergoing significant change for the past three decades; the average customer base per service station is around people in regional areas (and well below in many towns) whereas metro/city sites have a customer base of around to people; 274 the annual report titled The Monitoring of the Australian Petroleum Industry prepared by the Australian Competition and Consumer Commission reports on investigations about prices, profits and costs of unleaded petrol in Australia. The report indicates that there is in the range of to petrol outlets in Australia since the mid-2000s. Having regard to the Australian Bureau of Statistic estimated resident population at June 2014, there is about one service station per to people; The same difficulties attend Council s submissions in the Written Submissions for the Gold Coast City Council pp 71-2 [229] and [230]. 274 Economic Need Joint Expert Report Exhibit 6 pp 16-7 [36]. The significant change in the market also tells against placing reliance on findings in dated decisions of the Planning and Environment Court that related to service stations. 275 Economic Need Joint Expert Report Exhibit 6 p 17 [41].

79 79 (c) the trade area that the proposed development would serve extends between two and five kilometres around the subject site, restricted by waterways throughout the surrounding area and the pattern of urban development. It can be described as: (i) (ii) a primary sector comprising parts of Southport and Bundall; a secondary south sector containing parts of Broadbeach; and (iii) a secondary west sector including parts of Southport and Ashmore; 276 (d) (e) (f) the skew of the trade area in a southerly direction reflects the higher degree of southbound traffic compared to northbound traffic that the proposed development is likely to attract, as well as the existence of service stations to the north; 277 the total fuel market is estimated at 26.7 million litres per year in 2016 and is projected to increase to 31.8 million litres per year by 2031, an increase of 5.1 million litres. The estimated increase over the next (now) 13 year period takes account of jointly agreed key considerations and assumptions that the experts considered reasonable in their professional opinion; 278 the average daily volumes of traffic along Ferry Road include: (i) (ii) vehicles in both directions approximately two kilometres to the north of the subject site, near the intersection of Ferry Road and Minnie Street; vehicles in both directions approximately three kilometres to the south along Bermuda Street near the intersection with Monaco Street; 279 (g) Ferry Road is one of the busiest roads on the Gold Coast. It is on a major north-south connection road to a significant employment and shopping precinct; Economic Need Joint Expert Report Exhibit 6 p 20 [49]-[50]. 277 Economic Need Joint Expert Report Exhibit 6 p 20 [50]. 278 Economic Need Joint Expert Report Exhibit 6 p 29 [60]. 279 Economic Need Joint Expert Report Exhibit 6 p 32 [64]. 280 Economic Need Joint Expert Report Exhibit 6 p 32 [65].

80 80 (h) (i) (j) (k) the subject site is accessible in all directions, but would primarily serve southbound traffic along Ferry Road, eastbound traffic turning from Cotlew Street into Ferry Road and traffic along Skiff Street; 281 the Gold Coast is a very popular tourist destination and the defined trade area includes tourist attracting facilities such as the Gold Coast Arts and Cultural Centre, the Gold Coast Racecourse and large format and destination shopping precincts. As such, in addition to local residents and passing traffic, the subject site would serve tourists visiting the Gold Coast; 282 the location of the proposed development along Ferry Road would result in a much lower proportion of tourism, but a higher proportion of other residents on the Gold Coast passing the subject site along Ferry Road, travelling to and from major employment and leisure nodes; 283 the proposed development would be a service station located on a heavily trafficked road serving local residents as well as passing traffic/tourists. This is consistent with City Plan 2016 identifying that service stations should be located along major roads. Consequently, the subject development would serve: (i) (ii) local residents in the immediate area; other customer segments including tourists, workers and other residents of the Gold Coast travelling south along Ferry Road and also east along Cotlew Street East; 284 (l) within the trade area, there is: (i) a BP service station located diagonally opposite the subject site, within 100 metres, serving northbound traffic along Ferry Road. It forms part of a precinct including food catering facilities, Ferry Road Tavern and large format liquor premises; 281 Economic Need Joint Expert Report Exhibit 6 p 32 [66]. 282 Economic Need Joint Expert Report Exhibit 6 p 34 [68]-[70]. 283 Economic Need Joint Expert Report Exhibit 6 p 34 [71]. 284 Economic Need Joint Expert Report Exhibit 6 p 36 [74].

81 81 (ii) (iii) (iv) a Coles Express facility at Bundall (1.5 kilometres to the south) serving southbound traffic near the intersection of Crombie Avenue and Bundall Road; a 7 Eleven petrol station at Soutport/Ashmore provided as part of the Bronburg Plaza Shopping Complex along Slayter Avenue, which is a 24 hour operation that primarily serves westbound traffic but is accessible to eastbound traffic as well; a Puma service station located at 75 T E Peters Drive in Broadbeach Waters, which is a more internally located facility serving residents of the defined secondary south sector; 285 (m) on the edge of the trade area, and technically within the trade area due to the ABS statistical data area boundaries used to obtain data, are: (i) (ii) a BP at Benowa, which is a 24 hour operation; and a 7 Eleven near Pacific Fair, on the southern side of Nerang- Broadbeach Road; 286 (n) (o) expressions of interest have been received for the proposed service station from 7 Eleven, United Petroleum, Puma, Freedom Fuels and Liberty, a number of whom are not represented in the catchment or are not represented for southbound traffic on this very busy road; 287 a recently conducted audit of the provision of service stations on the Gold Coast indicates that there are approximately 119 service stations serving a population of people, representing one service station for every persons. This is in line with the typical provision of one service station for every to persons in a metropolitan area, those persons being residents and not accounting for the large number of tourists on the Gold Coast; Economic Need Joint Expert Report Exhibit 6 p 38 [76]; Exhibit Economic Need Joint Expert Report Exhibit 6 p 38 [77]; Exhibit Economic Need Joint Expert Report Exhibit 6 pp [80]-[81]. 288 Economic Need Joint Expert Report Exhibit 6 p 40 [82].

82 82 (p) (q) (r) (s) (t) it is not uncommon for service stations to be co-located with take-away food or drive-through facilities given those types of facilities also serve local residents and passing traffic along heavily trafficked routes; 289 expressions of interest for the proposed drive-through facility have been received from Gloria Jeans and Oporto, and a Persian restaurant has expressed interest in the take-away food premises; 290 drive-through coffee facilities in the region are predominantly Zaraffa s, which has stores at the BP Southport site 100 metres north-west of the subject site, Southport Park Shopping Centre and on the new Freedom Fuels site at the corner of Southport Burleigh Road and Currumbura Street; 291 there are existing take-away food facilities opposite the subject site as part of the BP Southport facility. That centre has one vacancy. Those facilities would mainly serve northbound traffic, whereas the proposed development would predominantly serve southbound traffic; 292 the vast majority of service stations in the surrounding area operate 24 hours, except for the Coles Express Bundall and Puma Broadbeach. The convenience stores at those locations typically offer: (i) (ii) (iii) (iv) (v) (vi) (vii) an extensive range of fresh food such as homemade sandwiches; freshly ground coffee; hot pastries and sweet treats; ATM; moneygram money transfer; e-services; gift cards; 289 Economic Need Joint Expert Report Exhibit 6 p 41 [87]. 290 Economic Need Joint Expert Report Exhibit 6 p 41 [88]. 291 Economic Need Joint Expert Report Exhibit 6 p 41 [88]. 292 Economic Need Joint Expert Report Exhibit 6 pp 41-2 [89].

83 83 (viii) a range of snacks, drinks and top-up grocery staples such as milk and bread; 293 (u) (v) in Queensland, the importance of convenience stores operating 24 hours is increased due to the limitations of trading hours on the operation of supermarkets. Supermarkets have restricted hours through Queensland as compared with other states of Australia and, as such, smaller convenience stores offer an important late night or early morning shopping facility across elements of the day when other facilities are closed; 294 and key trends reflecting the importance of convenience and service station stores opening 24 hours include: (i) (ii) (iii) work hours have changed substantially in Australia, with many people leaving home in the early hours of the morning, particularly tradesman and the like. Service stations open at such times provide a high level of convenience; shift work has become increasingly important as part of the Australian environment and means people are travelling on the roads at earlier or later times; Australians have become more time poor. In households where both parents work, 24 hour shopping provides a range of convenience goods to meet their everyday needs. 295 [248] The experts also agree that there is a need for the proposed development. They disagree about the strength of the need. Mr Duane opines that the need is clear and strong, whereas Mr Leyshon says there is a low level of need for the proposed service station and no significant need for the proposed convenience retail facility and fast food outlets Economic Need Joint Expert Report Exhibit 6 p 46 [90]-[91]; Exhibit Economic Need Joint Expert Report Exhibit 6 p 46 [92] and p 48 [94]. 295 Economic Need Joint Expert Report Exhibit 6 p 48 [95]. 296 Economic Need Joint Expert Report Exhibit 6 p 58 [122]-[123].

84 84 [249] Council accepts the position of Mr Leyshon that there is a low level of need. 297 However, it submits that the need is insufficient to justify approval. It raises eight substantive arguments to support its submissions. [250] Council s first substantive argument is that there is no relevant demonstrated need for a 24 hour service station. It submits: 298 it is not enough to demonstrate a need for only some of the time during day light hours. K&K must demonstrate a need for a service station at the Site for 24 hours a day, 7 days a week. This is the "elephant in the room" that K&K has not properly confronted. K&K has not met its onus of proof. [251] In support of this submission, Council raises five matters it says undermine the veracity of the opinions expressed by Mr Duane. [252] First, Council notes that Mr Duane concedes that the relevant need to be considered is a service station that operates 24 hours a day. However, it says that Mr Duane does not, in the paragraph in which he expresses his opinion that there is a clear and strong level of economic need for the service station, state that the proposal is for a 24 hour service station. 299 This point is unmeritorious. [253] There can be no doubt that both Mr Duane and Mr Leyshon knew the proposed service station is intended to operate 24 hours a day. There is an entire section in the report dedicated to the topic of 24-hour trade. 300 As noted in paragraphs[247](u) and [247](v) above, the report included points of agreement about the key trends reflecting the importance of convenience shops and petrol stations opening 24 hours. Mr Duane drew attention to this matter immediately after making the concession to which Council refers. 301 Like Mr Duane, during cross-examination Mr Leyshon accepted that he was aware that the service station involved a 24-hour use and that he considered that when expressing the opinion that there was a low level of need. 302 [254] The second point made by Council is: 303 Mr Duane at paragraph 110 of the Joint Economic Report says that the "majority of service stations in the surrounding areas operate 24 hours...". One can rhetorically ask, "so what, how is that relevant to need?". That other 297 T1-39/L43-4; Written Submissions for the Gold Coast City Council p 72 [231]. 298 Written Submissions for the Gold Coast City Council p 73 [234]. 299 Written Submissions for the Gold Coast City Council p 73 [236]. 300 Economic Need Joint Expert Report Exhibit 6 pp 46-8 [90]-[97]. 301 T4-19/L24-35 (Duane). 302 T4-78/L42-7 (Leyshon). 303 Written Submissions for the Gold Coast City Council p 73 [237].

85 85 service stations operate 24 hours a day has no relevance or bearing on whether this proposal is needed, in a planning sense, 24 hours a day. All it does show is that there are plenty of other options in the trade area if a motorist requires fuel late at night or early in the morning. The fact that there are already plenty of 24 hour operations is indicated by reference to the map, Exhibit 19. [255] This submission is also unpersuasive. Council s submission omits that part of Mr Duane s sentence in which he identified the relevance of his observation. The entire sentence reads: 304 GD also says the majority of service stations in the surrounding area operate 24 hours, reflective of trends and expectations of communities in relation to the ability to access petrol stations and their associated convenience stores. [256] This sentence is in a section of the report that draws together, in a concise way, the divergent opinions of the experts, with a brief indication of the basis for the opinion. The underlying rationale that supports the opinions is canvassed in greater detail in the earlier (agreed) parts of the report. [257] Points of agreement between the experts recorded in section 9 with respect to 24-hour trade support Mr Duane s opinion. 305 The points of agreement include those matters referred to in paragraphs [247](t), [247](u) and [247](v) above. Those matters are relevant to the issue of need in terms of whether access to a service station with 24- hour trade will improve the physical well-being of the community. [258] I accept, having regard to those matters agreed by the economic experts, that access to a service station with 24-hour trade would improve the physical well-being of the community. It provides shift workers, other workers who travel in off-peak times such as construction workers, and many other time poor people ready access to fuel and the other necessities of life, 306 such as milk and bread, at a time when access is otherwise generally constrained. [259] Council s third point relates to the second half of the sentence that it omitted when quoting Mr Duane in its second point. 307 For reasons explained in paragraphs [256] and [258] above, I do not accept that the matter identified by Mr Duane is not relevant to whether there is a need for the proposed service station. 304 Economic Need Joint Expert Report Exhibit 6 p 56 [110]. 305 Economic Need Joint Expert Report Exhibit 6 pp 46-8 [90]-[97]. 306 T4-66/L30-43 (Leyshon). 307 Written Submissions for the Gold Coast City Council p 73 [238].

86 86 [260] Council also submits that Mr Duane s point goes nowhere. It says 5 of the 7 existing (or soon to be constructed with respect to Bundall) service stations in the trade area already operate 24 hours a day and, as such, there is ample access to petrol stations and their associated convenience stores 24 hours a day in the trade area. 308 I do not accept that Mr Duane s observation goes nowhere. The evidence is part of the overall analysis of whether there is a need for the proposed development. Part of Mr Duane s analysis involves a consideration of whether the proposed development would improve the well-being of the community by providing increased choice, competition and convenience. I address those matters further below. [261] Overall, these three points made by Council cherry-pick parts of the evidence to paint a picture that does not resemble the totality of the evidence. I do not find them to be persuasive. [262] Council s fourth point involves a criticism of Mr Duane for [falling] back on the mantra of choice and convenience and for not confronting the low traffic volumes on Ferry Road at night. 309 The traffic volume data reveals that between 8pm and 7am, only 13.1 per cent of the total traffic count passes the subject site and that between 10pm and 6am, the average traffic count per hour does not exceed 500. [263] Council submits that the traffic data demonstrates a negligible need for a service station operating 24 hours a day. Council does not refer to any evidence in support of its submission. [264] The only evidence about the existence, or otherwise, of a need for a service station operating 24 hours a day was that of Mr Duane and Mr Leyshon. There is no evidence contradicting their expert opinions that there is a need for the proposed service station and associated convenience shop operating 24 hours a day. [265] There was no suggestion that Mr Duane and Mr Leyshon were not qualified to express expert opinions about such matters or that they proffered opinions other than on their own expert knowledge and observable facts. [266] Each of Mr Duane and Mr Leyshon provided an explanation of the intellectual basis of the conclusions they reached. I regard their explanations as intelligible. 308 Written Submissions for the Gold Coast City Council p 73 [238]. 309 Written Submissions for the Gold Coast City Council pp 74-5 [239]-[241].

87 87 [267] On this issue of the need for a 24-hour operation, as with many aspects of the joint report on which there was agreement: (c) (d) Mr Duane was cross-examined at length about the basis of his opinion; Council sought to undermine the validity of the jointly agreed expert analysis that formed the basis for Mr Duane s opinions; despite the rigorous testing and criticisms of Mr Duane s assumptions and analysis, Mr Duane maintained his position with respect to the validity of the jointly agreed analysis. He provided cogent explanations that reinforced the validity of the assumptions and that persuaded me of their fundamental soundness; and the criticism of the analysis levelled by Council were not supported by Mr Leyshon, nor are they otherwise borne out by the evidence. [268] In particular, with respect to their opinions that there is a need for a 24-hour operation: both experts had regard to agreed traffic data that they appended to the joint report; 310 Mr Duane confirmed he had considered the lower traffic volumes at the late hours of the night and the early hours of the morning and provided a cogent explanation as to why the lower volumes did not change his view that there is a strong need for a service station that operates 24 hours a day. He explained that: (i) (ii) (iii) the proposed development would extend the choice available at those hours; the traffic volumes between the hours of 8pm and 7am account for about 13 per cent of the overall traffic volume, an amount that he did not consider to be insignificant; the need to have access is not reduced by lower customer visitation at certain times of the day. He explained, by way of analogy, that when 310 Economic Need Joint Expert Report Exhibit 6 p 48 [97] and Appendix 3.

88 88 you assess the need for a supermarket, you do not determine that there is no need at 9pm simply because there are less customers at that time of the day. There are people who want access to the facilities and who want that choice, convenience and competition, regardless of the time of day. In fact, in the late hours of the night and the early hours of the day, close facilities provide greater convenience; 311 and (c) Mr Leyshon accepted that there is a general market acceptance of the provision of convenience stores in association with service stations and, having regard to the traffic volumes on Ferry Road between 8pm and 6am there is a low level of need. 312 [269] As such, I am satisfied that there is a demonstrated need for the proposed service station and associated convenience shop to operate 24 hours a day. 313 [270] The fifth point raised by Council is that Mr Duane s opinions are under the heading Convenience Shop and not under Service Station. Council refers to performance outcomes in the 2003 Planning Scheme and City Plan 2016 that stipulate that retail components of the service station are to have an ancillary function to the service station. In this regard, Council submits: 314 A 24 hour use of the subordinate retail and convenience aspect is not the only need that is required to be established. It is the primary function of selling fuel for which a need must be demonstrated for a 24 hour operation. The "tail" of the convenience shop cannot "wag the dog" of the service station when it comes to establishing a need for a 24 hour use. The correct conclusion is that K&K has not met its onus in that regard. [271] This submission ignores that, under the heading Overall Need, both Mr Duane and Mr Leyshon conclude there is an economic need for the proposed development. [272] In any event, I do not accept Council s approach to assessment of need as appropriate. It is axiomatic that different elements of a development will offer different benefits to the community. The question for the court is whether there is a need for the proposed development that warrants its approval when one considers all of the benefits of all of the components of the proposed development as a whole. 311 T4-21/L40 T4-26/L18 and T4-38/L19 T4-40/L29 and T4-64/L37 T4-65/L4 (Duane). 312 Economic Need Joint Expert Report Exhibit 6 p 48 [97] and p 56 [112]; T4-78/L42-7 (Leyshon). 313 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, [85]- [87]. 314 Written Submissions for the Gold Coast City Council p 75 [242].

89 89 [273] The second substantive argument by Council is that the projected growth in the fuel market referenced by Mr Duane does not demonstrate a need. 315 [274] I do not take the appellant or Mr Duane to assert, as suggested by Council, 316 that the evidence on projected growth alone automatically translates to need. I understood the analysis to be but one of several touchstones used by Mr Duane to inform the conclusions he reached. [275] With respect to this issue, Mr Duane states: 317 The growth in the fuel market is projected at 5.1 million litres over the period to A modern service station typically requires around million litres to be successful. The growth in the fuel market alone would support at least one additional station. [276] The analysis that underlies this conclusion is contained in part 5 of the joint expert report. That part records the joint opinion of Mr Duane and Mr Leyshon. [277] Council criticises Mr Duane for his reliance on the analysis on the basis that it relies on a 14 year horizon, which Council submits is irrelevant to an analysis of the need for the proposed development. It submits that the nature of the fuel market 14 years from now is very uncertain, particularly given the likely increased use in electric cars and use of shared cars. It criticises the use of minimum sales rather than an average. Council submits a relevant horizon is four years. 318 [278] Council did not refer to any evidence to support its submission that the relevant horizon for an analysis is four years, nor to support its other criticisms of the fuel market size analysis. applicable to this issue. My observations at paragraph [267] above are equally [279] In particular, with respect to the fuel market size analysis: both experts, in their professional experience, regarded it as appropriate to have regard to growth in the fuel market from 2016 to 2031; Written Submissions for the Gold Coast City Council p 76 [246]-[247]. 316 Written Submissions for the Gold Coast City Council p 76 [248]. 317 Economic Need Joint Expert Report Exhibit 6 p 53 [106(d)]. 318 Written Submissions for the Gold Coast City Council p 76-9 [250]-[262]. 319 Economic Need Joint Expert Report Exhibit 6 p 29 [60] and p 31 Table 6; T4-80/L43 T4-82/L2 (Leyshon).

90 90 (c) both experts had regard to the likelihood that electric cars, and more fuel efficient cars, would form a greater proportion of cars over time. However, they noted that the take up of such vehicles was limited, with only 219 of cars sold in Australia in the last year being electric (i.e per cent) and being hybrid; 320 during cross-examination, Mr Duane: (i) (ii) (iii) confirmed that he considered a 14 year horizon to be an appropriate period for the analysis even though it might be possible for a service station to be operating within 12 to 18 months of approval. This is because a 14 year horizon is a typical period for analysing retail facilities like a petrol station having regard to matters such as the period that a service station would operate and, as such, provide benefit to public; 321 expressed strong disagreement with the suggestion that it is inappropriate to look at growth in the market when assessing need for facilities. He explained that it has always been a consideration in assessing need, whether it is the need for a service station, supermarket, shopping centre, child-care facilities. 322 Mr Duane s position makes sense given, if there was a projected population decline, such as might occur in a resource driven area, one would expect there to be a decline in demand (and need); explained that facilities like service stations and retail facilities are lumpy by nature. They involve a large investment and are sometimes provided ahead of a pressing need. The nature of industry is such that one does not wait until there is a definite demand before one commences the process of getting approval as, if one did, the growth in the market alone would justify acting sooner than 2031; 323 and 320 Economic Need Joint Expert Report Exhibit 6 p 29 [61]; T4-79/L1 T4-80/L21 (Leyshon). 321 T4-27/L10-47 (Duane). 322 T4-28/L1-15 (Duane). 323 T4-32/L26 T4-33/L6 (Duane).

91 91 (d) Mr Leyshon accepted that the growth in population alone between 2016 and 2031 would justify an additional service station to meet the need of that population. 324 [280] Mr Duane provided cogent explanations that justified his analysis. They were not contradicted by Mr Leyshon. Council s criticisms of his analysis are not borne out by the evidence. [281] Current planning legislation also supports the legitimacy of considering a horizon beyond four years. It recognises the potential for lengthy delays between approval and commencement of operation (leaving aside the additional delay associated with the application process, particularly if there is an appeal). Section 85 of the Planning Act 2016 provides that the currency period for development approvals relating to a material change of use is six years (compared to four years provided under s 341 of the Sustainable Planning Act 2009). As is recorded in the Explanatory Notes for the Planning Bill 2015 at 94: The default period for a material change of use is longer than for a reconfiguration of a lot or for other development, because in many circumstances the establishment of a new use will require other development approvals to be obtained after the material change of use has been approved. For example, the establishment of a new use may also involve the carrying out of building work and it is necessary for the currency period of the material change of use approval to be long enough to cover the work approvals being obtained and acted upon before the use actually starts. [282] The third substantive argument by Council is that the estimated population does not demonstrate a need. 325 [283] With respect to this issue, Mr Duane states: 326 a. A service station typically requires a catchment population of around 4,000 5,000 persons in metropolitan locations and 2,000 persons in regional locations. The Australian average is one service station for every 3,600 3,900 persons. b. The existing main trade area population is currently in-excess of 30,000 persons and projected to increase to almost 35,000 persons by Using a conservative rate of 5,000 persons per station indicates demand increasing from six to seven stations. This indicates potential for at least one additional facilities over the next 12 years, assuming 5,000 persons per station, in-line with a typical metropolitan location. 324 T4-81/L37-9; T4-82/L37-41 and T4-84/L7-34 (Leyshon). 325 Written Submissions for the Gold Coast City Council pp [263]-[278]. 326 Economic Need Joint Expert Report Exhibit 6 p 53 [106(d)].

92 92 If a provision of 4,000 persons per station was used, a higher provision would be required. c. Currently, there are six service stations provided within the trade area, noting that the BP at Benowa and the 7 Eleven at Broadbeach are only included as part of the trade area due to the availability of the geographies based on statistical data for the ABS, clearly indicating demand for at least one further service station based on the provision of one store for every 5,000 persons. This does not take into account the contribution from tourists and passing traffic on a busy road where there is a high level of traffic from the broader Gold Coast region due to major employment, shopping and entertainment nodes. A high provision is most likely to be required in this area. At a provision of one station for every 4,000 residents, this would indicate demand for almost nine stations. [284] The analysis that underlies this conclusion is contained in parts 4 and 8 of the joint expert report. Those parts record the joint opinion of Mr Duane and Mr Leyshon. [285] The economic experts agreed that a recently conducted audit of the provision of service stations on the Gold Coast indicates that there are approximately 119 service stations, which represents one station for every persons. 327 The audit was conducted during the joint reporting process. 328 This is in line with the typical provision of one station for every to persons in a metropolitan area. 329 [286] Council, in its submissions, urges me to apply, in a rigid manner, the Gold Coast average of persons. It submits that if the average is applied: in four years time, the existing provision of seven service stations in the trade area (with the approved Bundall station) will result in one service station per persons, which is above the Gold Coast average; and in nine years time, with seven service stations in the trade area there will be one service station per persons, which is only then aligning with the Gold Coast average. 330 [287] Council also submits that in 13 years from now, with the existing seven service stations, the ratio will be one per 5 048, which is just beyond the higher end of the national average for metropolitan areas Economic Need Joint Expert Report Exhibit 6 p 40 [82]. 328 T4-63/L40 T4-64/L9 (Duane). 329 Economic Need Joint Expert Report Exhibit 6 p 40 [82]. 330 Written Submissions for the Gold Coast City Council p 80 [268]. 331 Written Submissions for the Gold Coast City Council p 81 [271].

93 93 [288] Council submissions undertake a similar analysis assuming the approval of the proposed development. It submits that: in four years time, the average will be one service station per 3 880; in nine years time, the average will be one service station per 4 117; and (c) in 14 years time, the average will be one service station per [289] Again, as with other issues traversed with Mr Duane during cross-examination, my observations at paragraph [267] above are apt. [290] Despite Council s submission, I am not persuaded to reject Mr Duane s evidence as: Mr Leyshon conceded that: (i) (ii) (iii) (iv) the addition of the service station does not, in the agreed modelling horizon, push the provision of service stations at the Gold Coast outside the typical range for metropolitan areas. It just pushes it closer to the provision he would have expected given the large number of tourists on the Gold Coast; 333 the Gold Coast average of should not be rigidly applied, rather it is a benchmark that assists in the analysis; 334 it is necessary to look at the attributes of the trade area to determine whether the area will be under-serviced or over-serviced. The attributes are a more compelling indicator of need then whether the provision of the proposed service station results in provision above or below the average; 335 in terms of the attributes of the trade area: (A) the car ownership levels in the main trade area are higher than average and the average household income levels are slightly 332 Written Submissions for the Gold Coast City Council p 82 [275]. 333 T5-13/L18-27 (Leyshon). 334 T4-76/L1-11; T5-27/L19-36 (Leyshon). 335 T4-76/L13-8 (Leyshon).

94 94 lower and, as such, the population of the trade area is likely to be sensitive to fuel prices; 336 (B) (C) (D) there is no independent service station (existing or approved) in the trade area on the eastern side of Ferry Road; 337 the introduction of an independent service station provider to the trade area on the eastern side of the road would increase competition and add another choice for fuel and fast food and drive-through coffee. It would be conveniently located; 338 the proposed development would be conveniently located to serve the residents of the residential pocket to the east of Ferry Road, who would otherwise have to deviate significantly from their end destination to access fuel. It also provides that residential enclave with the benefit of access to convenience retail on their doorstep; 339 Mr Duane provided a cogent explanation, which I accept, as to why a rigid application of the Gold Coast average did not alter his opinion. In particular, he noted: (i) (ii) the Gold Coast average falls within the nationwide range for metropolitan areas of one service station per to persons; 340 the provision of service stations may vary at different geographic locations across the Gold Coast. Clearly, by virtue of it being an average, there will be areas with higher provision and areas with lower provision. 341 The average is a relevant benchmark to take into consideration as a guide; Economic Need Joint Expert Report Exhibit 6 p 22 [55]; T4-67/L25-35 (Leyshon). 337 T4-76/L28-33 (Leyshon). 338 T4-76/L35-47 (Leyshon). 339 T4-77/L32 T4-78/L40 (Leyshon). 340 T4-42/L11-23 (Duane). 341 This was accepted by Mr Leyshon also T4-75/L T4-42/L25-43 (Duane).

95 95 (iii) (iv) it is nevertheless appropriate to have regard to the attributes of the particular trade area to determine whether it might be appropriate to have a provision that is higher or lower than the benchmark; 343 and there is a high level of traffic in the area due to major employment, shopping and entertainment nodes. That warrants a higher provision in this trade area a provision that is closer to the rate of one service station per persons. 344 [291] Council also submits that the existence of service stations just beyond the trade area undermines the appellant s asserted level of need. 345 [292] Mr Leyshon identified a number of service stations close to the boundary of the trade area. 346 He regards these service stations as relevant to an assessment of need for the proposed development, and had regard to their existence in forming his opinion that the level of need was low. In particular, he opines: 347 the current level of provision of service stations in the trade area and those just beyond the trade area does not suggest a significant level of need for an additional service station facility to meet the needs of the resident population. (emphasis added) [293] Mr Duane accepted that any person heading north and south to and from the trade area would have convenient access to the service stations identified by Mr Leyshon. 348 [294] Mr Leyshon accepted that the further area identified by him is not an area that should have been included in the trade area. 349 Further, it seems to me that Mr Leyshon s trade area for those further service stations is unduly constrained. Mr Duane s evidence about the likely trade area for those service stations. 350 I accept 343 T4-43/L28-34 (Duane). 344 T4-45/L23 T4-48/L7 (Duane). 345 Written Submissions for the Gold Coast City Council p 83 [276]-[278]. 346 Report of Mr Leyshon Exhibit 15 pp Economic Need Joint Expert Report Exhibit 6 p 54 [107e]. 348 T48/L15-36 (Duane). 349 Report of Mr Leyshon Exhibit 15 p 9 [3.15]. 350 T4-15/L15 T4-18/L35 (Duane).

96 96 [295] As such, I do not regard this consideration as one that undermines the analysis of need undertaken by Mr Duane. Rather, the fact that Mr Leyshon placed reliance on it suggests to me that he has underestimated the need for the proposed development. [296] Council s fourth substantive argument is that tourism and a busy road does not alter the conclusion that there is no demonstrated need. 351 [297] Council submits: 352 [298] Council notes: 353 Mr Duane seems to have a general fall back position of relying on tourists and passing traffic to argue a strong level of need. (c) (d) the Gold Coast average reflects that various pockets of the Gold Coast are a tourist hub; Mr Duane has not analysed actual tourism numbers in the area of the subject site; all of the identified tourist attractions have service stations on their approach or departure routes; and all of the tourism destinations in the trade area are well serviced by multiple options for service stations. [299] I accept all of those matters. However, I do not accept that they undermine Mr Duane s analysis. I do not accept that he relies on the impact of tourists and passing traffic as a general fall back position. As I have already identified, these factors form part of his analysis and consideration of the appropriateness of the relevant trade area being supplied with more service stations at a rate greater than the Gold Coast average. [300] I consider Mr Duane s approach to the Gold Coast average to be a legitimate approach. It is self-evident that residents will not be the only users of any service station on Ferry Road. At every service station on this road, residents will need to wait in queues that include cars carrying tourists, as well as those passing through the 351 Written Submissions for the Gold Coast City Council pp 83-5 [279]-[284]. 352 Written Submissions for the Gold Coast City Council pp 83 [279]. 353 Written Submissions for the Gold Coast City Council pp 84-5 [280]-[284].

97 97 area, such as those travelling home from the Southport business area. That is part of the demand on the service station. The extent to which that rogue (or non-resident) trade will be experienced at other service stations throughout the Gold Coast will be dependent on their particular location. Service stations on lower order roads within residential estates are not likely to experience the same volume of rogue trade. In such areas, one would expect there to be less justification for provision of service stations above the Gold Coast average. [301] Council s fifth substantive argument is that 88 per cent of the resident workers leave the trade area. 354 [302] I have no doubt that residents of the trade area would have opportunities to purchase fuel from service stations outside the trade area were this development refused. 355 This is but one consideration. It fact it demonstrates why it is equally relevant to have regard to rogue trade, such as that from residents outside the trade area who may likewise stop at the proposed service station on their way home from Southport and Surfers Paradise. [303] As was observed by Rackemann DCJ in United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8 at [96]: The fact that it would be possible for them to buy fuel beyond their local area however, does not mean that there is no need, in a planning sense, for a conveniently located facility within their area as well. Need in planning terms is a relative concept. It does not connote pressing urgency but rather relates to the general wellbeing of the community. A use would be needed if, it would, on balance, improve the services and facilities available in a locality. [304] The subject site would be conveniently located for those accessing it travelling southbound on Ferry Road. Mr Leyshon accepted that residents nearby would be conveniently served by the proposed development. 356 In fact, the need experts agree that: 357 the subject proposal would be a service station located on a heavily trafficked road serving local residents as well as passing traffic/tourists. This is consistent with information in the Gold Coast Planning Scheme 2016 outlining that service stations should be located along major roads. Consequently, the subject development would serve: 354 Written Submissions for the Gold Coast City Council p 85 [285]-[286]. 355 T4-40/L32 T4-41/L34 (Duane). 356 T4-76/L46 T4-78/L40 (Leyshon). 357 Economic Need Joint Expert Report Exhibit 6 p 36 [74].

98 98 a. Local residents in the immediate area; b. Other customer segments including tourists, workers and other residents of the Gold Coast travelling south along Ferry Road and also east along Cotlew Street East. [305] Council s sixth substantive argument is that Choice seems to be the fall back position when the numbers do not stack up and the correct conclusion is fuel is fuel is fuel. [306] In support of its submission, Council refers to the observations of Skoien SJDC in Prime Group Properties Limited v Caloundra City Council and Darracott & Ors [1995] QPLR 147 at 150 that: There is no evidence that products of any different or better type, would be available there. [307] Council submits that this reflects the present case. [308] Prime Group Properties Limited v Caloundra City Council and Darracott & Ors [1995] QPLR 147 involved an application to rezone land as a service station use was a prohibited use on the site in question. As such, the court accepted that: 358 The basic assumption must be that there must be in existence at the time of the application for rezoning a latent unsatisfied demand on the part of the persons affected by the planning scheme, which his not being met at all, or not being adequately met, by the planning scheme in its present form. [309] The weight to be given to the question of need in assessing the merits of an application is not fixed. 359 Here, given a service station is a use contemplated in the applicable domains, and there is no conflict occasioned by the use, it is not necessary for the appellant to demonstrate a latent unsatisfied demand. [310] Further, and in any event, that case was decided on the evidence available to the court. The pertinent observations about the evidence of need were recorded at : Mr Hodge, a petroleum consultant, estimated in his report that the service station would attract some 35 per cent of the residents of Battery Hill (874 dwellings), some 30 per cent of the slightly more distant precinct of Aroona (745 dwellings) and some 25 per cent of the even more distant precinct of Currimundi (881 dwellings). He then estimated that 2 per cent of the passing motorists, that is non-residents of the locality, would become customers and he concluded that the service station would be a successful commercial venture. 358 At 149, citing William McEwans Pty Ltd v Brisbane City Council (1981) 2 APAD Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [20].

99 99 While it seemed to me that Mr Hodge s assessment of possible use lacked any real scientific basis it must be said that his lengthy experience in assessing projects of this type is worthy of respect. There is also the fact that Mr Wieland of Prime, also well experienced in the field, is confident of commercial success. Ampol s apparent confidence is also worthy of weight. So I conclude that if established the service station and shop would trade successfully. The difficulty, from Prime's point of view however, is that I have no basis for concluding that the residents of the three mentioned precincts of Battery Hill, Aroona and Currimundi or the passing motorists (comprised no doubt partly of Caloundra residents and partly of visitors to the city) suffer any present difficulty or inconvenience in obtaining petroleum products or goods of the type likely to be sold at the convenience store. There is the Shell station just to the south of the site. It is a large modern station which serves the local residents and northern traffic on the Nicklin Way. Within three kilometres to the north on the Nicklin Way there are another two service stations serving northbound motorists, and one serving southbound motorists. Another two for southbound motorists on the Nicklin Way are within eight kilometres of the site to the north. In the general area of the central business and beach areas of central Caloundra there are another five service stations. On the road leading from central Caloundra towards Brisbane there are another two. Some of the evidence was critical of the design, size and location of some of these thirteen existing service stations. I accept that some are old and on small sites. Their long term future may be doubtful. Others are perhaps not ideally located. But there was no evidence of inaccessibility, delay or substandard service. I cannot assume that any of them will close because it is unprofitable now or will become so soon. It also seemed to me that the two appropriately zoned vacant sites (one on the Nicklin Way, one on the Caloundra-Brisbane Road) are reasonably placed to attract custom if developed. The conclusion I draw from that is that the residents of Caloundra and the visitors (the well-being of whom are also the legitimate concern of the Council) are quite adequately served at this time. So if this service station were to be built it would simply lead some consumers to buy from it rather than from another adequate outlet. A similar conclusion can be reached in relation to the convenience store, there being no evidence of problems with the existing facilities. It seems to me therefore, that all that would happen is that motorists would have the opportunity to patronise one extra service station and convenience store. There is no evidence that products of any different or better type, would be available there. I do not consider that this mere addition to the consumers area of choice falls into the category of improving the physical well-being of the community (Cut Price Stores, supra), nor improve the services and facilities available in the locality (Roosterland, supra). See also William McEwans Pty Ltd v Brisbane City Council, supra. In my judgment, need has not been established. (emphasis added) [311] Here, there is evidence that the proposed development represents more than a mere addition to the consumers area of choice.

100 100 [312] The evidence indicates that the proposed development is likely to have its service station tenancy filled by 7 Eleven. In the Brisbane market, 7 Eleven is consistently the cheapest retailer. 360 Similarly, in the Sydney market 7 Eleven sells petrol at lower than average prices compared with other experienced operators, including Shell, Coles Express, BP and Caltex. 361 In those circumstances, it was Mr Duane s opinion that the addition of an independent petrol provider such as 7 Eleven in the key Bundall Road/Ferry Road precinct serving south-bound traffic would add to competition. 362 [313] Mr Leyshon did not contradict Mr Duane s views. To the contrary, as is noted in paragraph [290] above, Mr Leyshon accepted that: the proposed development would introduce an independent service station provider on the eastern side of the road, in the trade area, which would not only add another choice, but also increase competition and add to the level of convenience; and the introduction of an independent service station is important as the population of the trade area is likely to be sensitive to fuel prices. [314] The community focus on competitive fuel prices is certainly more heightened today than it was 23 years ago when Skoien SJDC made his observations in Prime Group Properties Limited v Caloundra City Council and Darracott & Ors [1995] QPLR 147. [315] In this case, in addition to evidence of the addition of a choice, there is also evidence of need derived from the quantitative analysis with respect to growth in the fuel market and population growth. [316] As such, the circumstances of this case are materially different to that which pertained in Prime Group Properties Limited v Caloundra City Council and Darracott & Ors [1995] QPLR 147. [317] Council s seventh substantive argument is that there is no relevant increase in competition Report of Mr Duane Exhibit 9 p 8 [4.2]. 361 Report of Mr Duane Exhibit 9 p 8 [4.3]. 362 Report of Mr Duane Exhibit 9 p 8 [4.5]. 363 Written Submissions for the Gold Coast City Council pp 86-9 [291]-[300].

101 101 [318] Council submits that there is no analysis or evidence of actual competition in the Joint Economics Report. 364 [319] Mr Duane accepted that he had not undertaken an independent price survey. 365 However, as was accepted by Mr Leyshon, the absence of a price survey is not fatal to the ability to demonstrate that the proposed development will likely involve an increase in competition. Mr Leyshon accepted that, whilst there was not absolute certainty that the operator would be 7 Eleven, it would most likely be an independent and, in his professional experience having regard to his experience in assessing service stations, the proposed development would put downward pressure on petrol prices. 366 [320] The final substantive argument raised by Council is that there is no latent unsatisfied demand not met by the 2003 Planning Scheme or indeed City Plan [321] Council notes that there is no evidence of: queuing or overcrowding at existing service station facilities; people not having reasonable access to service stations; or (c) inadequacy of the existing arrangements in the planning scheme. 368 [322] As is noted already at paragraph [244] above, these observations are of little assistance in this case given the nature of the need evidence. [323] In support of its submission that there is no latent unsatisfied demand, Council refers to evidence of a number of the residents. 369 I accept that the five residents referred to personally hold the views that they each individually have sufficient access to service stations. Their views are not, however, evidence of the sufficiency of access for all residents of the trade area, nor do they detract from the expert evidence that there is a need for the proposed development. 364 Written Submissions for the Gold Coast City Council p 86 [293]. 365 T4-54/L5-19 (Duane). 366 T4-80/L23-41 (Leyshon). 367 Written Submissions for the Gold Coast City Council pp [301]-[314]. 368 Written Submissions for the Gold Coast City Council pp [302]. 369 Written Submissions for the Gold Coast City Council pp [303]-[308].

102 102 [324] Council also, again, relies on observations by Skoien SJDC in Prime Group Properties Limited v Caloundra City Council and Darracott & Ors [1995] QPLR 147, which it submits are of equal force in this case. I have already explained why I do not accept that submission in paragraphs [308] to [316] above. [325] Council also relies on the finding of Quick DCJ in MPR Constructions Pty Ltd v Redland Shire Council [2001] QPEC 68; [2002] QPELR 256 at 259 [14] that:... other than offering an additional choice, there would not be any substantial community benefit that would result from this development. [326] Council submits this is also the present situation. Obviously, as with the observations of Skoien SJDC in Prime Group Properties Limited v Caloundra City Council and Darracott & Ors [1995] QPLR 147, this observation by Quirk DCJ was expressed having regard to the evidence available in that case. For the reasons already outlined in paragraphs [311] to [315] above, I do not accept that the observation reflects the situation here. [327] Having regard to the quantitative and qualitative aspects of need referred to above, I am satisfied that the extent of the need is greater than the extent assessed by Mr Leyshon, particularly given his reliance on service stations outside the trade area in forming his conclusion. I do not, however, regard the need to be a strong need, as opined by Mr Duane. This is particularly so having regard to the quantitative analysis. [328] I also accept that there is a need for the take-away food and fast food premises given: in respect of the take-away food premises, Gloria Jeans have expressed interest in the tenancy. 370 There is no other Gloria Jeans located in the immediate area; 371 Mr Leyshon agreed that there would be advantages from Gloria Jeans colocating with the proposed service station it will add to the customer s choice and convenience; It was accepted by Skoien SJDC in Prime Group Properties Limited v Caloundra City Council and Darracott & Ors [1995] QPLR 147 that the views of potential traders is relevant. 371 T5-21/L20-25 (Leyshon). 372 T5-22/L1-11 (Leyshon).

103 103 (c) as was noted in paragraph [247] above, the experts agree that: (i) (ii) it is not uncommon for petrol stations to be co-located with take-away food/drive-through facilities given these types of facilities also serve local residents and passing traffic along heavily trafficked routes; and Gloria Jeans would provide a different offer to the other drive-through facilities serving coffee in the region, which are presently dominated by Zaraffa s; (d) (e) (f) the proposed development would provide a point of difference to other facilities in the trade area due to its co-location, convenient offer and southbound traffic location; 373 the proposal would add to a cluster of take-away or fast food facilities and that the size of the trade area and worker population, as well as passing traffic, would be large enough to sustain such a facility in the south-bound direction; 374 and approval of the proposed development would add to choice, competition and convenience in terms of the fast food/take-away food offer in its precinct. 375 [329] I also accept that there is a need for the convenience store. I accept the joint opinion of the economic experts that smaller convenience stores offer an important late night and early morning shopping facility across important elements of the day when other facilities are closed. 376 There are also advantages to the community, in terms of convenience, derived from the co-location of the convenience store with a service station, fast food premises and take-away food premises. [330] I am satisfied that the extent of need for the proposed development is sufficient to demonstrate compliance with performance criterion PC12 of the Service Station Code and to justify approval of the proposed development given the nature and extent of the conflict identified. 373 Economic Need Joint Expert Report Exhibit 6 p 56 [115]. 374 Economic Need Joint Expert Report Exhibit 6 p 57 [116]. 375 Economic Need Joint Expert Report Exhibit 6 p 57 [116]. 376 Economic Need Joint Expert Report Exhibit 6 p 48 [94].

104 104 Other grounds [331] The appellant relies on the following grounds to justify approval of the proposed development: there is a need for the proposal this proposition was at the heart of Mr Reynolds concession that the applicable performance criterion with respect to need in the 2003 planning scheme, service station code, had been satisfied in this case; (c) (d) (e) (f) (g) (h) (i) the need can be met in circumstances where: (i) (ii) (iii) (iv) the proposal will be conveniently located to serve the public; the proposal will be readily accessible on the road network; there will be no unacceptable impacts on amenity arising from the proposal; the proposal is consistent with reasonable community expectations. the proposal will enhance the physical well-being of the community by providing additional choice and convenience; the proposal will not jeopardise the economic viability of existing or planned centres or service stations; the proposal will ensure appropriate utilisation of the land, in circumstances where it is currently vacant; approval of the proposal will not compromise the strategic planning of the Council; the proposal exhibits high quality design, appropriate setbacks, and will add to the amenity and character of the locality; the proposal will not result in any discernible impacts, including adverse character and amenity impacts; the proposal is consistent with the building height and bulk of other development in the locality. [332] The first four grounds relate to the issue of need, which has already been considered above. For the reasons given, I accept that there is a need, but it is not a strong need. [333] The last three grounds relate to visual and character issues, which have been dealt with above. By itself, the absence of adverse effect would not amount to a sufficient ground; however, it is still a relevant consideration. It is a matter of public interest Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, at [25].

105 105 [334] I accept that the proposed development will ensure appropriate utilisation of the land, in circumstances where it is currently vacant. However, I do not regard this as a sufficient ground in itself to overcome the conflict identified in this case. [335] In light of my findings regarding amenity impacts, I also accept, contrary to Council s submissions, 378 that approval of the proposal will not compromise the strategic planning of Council contained in the 2003 Planning Scheme. I address City Plan 2016 below. [336] Even without these additional grounds, the need for the proposed development is sufficient to justify approval of it notwithstanding the identified conflicts with the 2003 Planning Scheme. City Plan 2016 [337] Council contends that, in the proper exercise of the court s discretion under s 495 of the Sustainable Planning Act 2009, the court should afford City Plan 2016 significant and overwhelming weight and refuse the proposed development because: 379 City Plan 2016 is a very recent statement of planning intention for the area, which the court would be slow to cut across; the draft City Plan was publicly notified between June and July 2014, approximately 15 months prior to the development application on 14 October 2015, and that draft contained materially similar provisions to those now relied on by Council as provisions that directly discourage the proposed service station on the subject site; (c) (d) in the premises of paragraph [337], the appellant was able to discern the publicly notified planning intention for the subject site by reference to the draft City Plan; members of the public, prior to the lodgement of the development application, were also able to discern the draft planning intention for the subject site from the publicly notified draft City Plan; 378 Written Submissions for the Gold Coast City Council pp 96-7 [324]. 379 Respondent s Points of Refusal Exhibit 32 p 4 [12].

106 106 (e) (f) (g) the Planning Assessment Report lodged with the development application indicates awareness of the draft City Plan; City Plan 2016 first came into effect on 1 February 2016, around 3 and a half months after the development application was lodged; and particular identified provisions of City Plan 2016 directly discourage the proposed service station at the subject site. [338] The appellant did not cavil with the matters raised in paragraphs [337] to [337](f) above. [339] The appellant submits that, should the court give determinative weight to City Plan 2016: approval of the proposed development would not cut across or undermine the planning intent in City Plan It specifically notes that Council abandoned those allegations; 380 and the departure is not so significant as to call for the proposed development to be refused. The appellant submits that the proposed development achieves a significant degree of compliance with City Plan [340] The appellant also submits that the weight to be given to City Plan 2016 should be considered having regard to the context in which the issue arose. [341] The court s discretion to give weight to a new planning instrument is a wide one. However, it must be exercised judicially. 382 Relevant provisions of City Plan 2016 [342] Under City Plan 2016: the subject site is located in both the low density residential zone and the medium density residential zone and in the suburban neighbourhood for the purposes of the Strategic framework; See MFI A as compared to Exhibit Written Submissions on behalf of the Appellant p 12 [55]-[57]. 382 Knight v FP Special Assets Ltd [1992] HCA 29; (1992) 174 CLR 178, Town Planning Joint Expert Report Exhibit 7 p 13 [53] and [58]; p 39 figure 6 and p 41 figure 8.

107 107 (c) the uses are defined as a service station, shop, and food and drink outlet. Those uses are within the business activities defined activity group; 384 the proposed development constitute a neighbourhood centre, which is defined as follows: 385 Neighbourhood centres provide day-to-day goods and services and diverse business opportunities. Neighbourhood centres differ from mixed use centres and specialist centres as they are smaller and comprise a mix of smaller scale uses. Neighbourhood centres must comprise a minimum of five separate commercial or retail tenancies, located within a single centre or comprising a consolidation of separate but interconnected uses. (emphasis added) (d) (e) in both the low density residential zone and the medium density residential zone, uses for a shop, a food and drink outlet and service station are all impact assessable; 386 and the relevant assessment criteria include the strategic framework, the low density residential zone code, the medium density residential zone code and the service station code. 387 Strategic framework [343] The strategic framework sets the policy direction for City Plan The policy direction is structured as follows: 389 the strategic intent; the six city shaping themes that play an important role in shaping future growth and managing change across the city, and collectively represent the policy intent of the City Plan; 384 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 pp 183 and 191 sch 1 table SC1.1.2 and p 194 table SC Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 210 table SC Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 pp 98 and 103 table and pp 105 and 111 table Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 pp 98 and 103 table and pp 105 and 111 table Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 8 s 3.1(1). 389 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 8 s 3.1(3).

108 108 (c) (d) (e) the strategic outcomes proposed for development in the City Plan area for each theme; the elements that refine and further describe the strategic outcomes; and the specific outcomes sought for each of the elements. [344] Together, these matters set the policy direction for City Plan and: will help to protect and enhance the Gold Coast s outstanding lifestyle by ensuring appropriate and sustainable development occurs within the City Plan area for the life of the City Plan. 391 [345] The strategic framework is a critical part of the 2016 City Plan. [346] Where there is inconsistency between provisions of City Plan 2016, the strategic framework prevails over all other components of City Plan 2016 to the extent of the inconsistency for impact assessment. 392 [347] A note in the introduction to the strategic framework states: 393 The whole of the planning scheme is identified as the assessment benchmark for impact assessable development. This specifically includes assessment of impact assessable development against this strategic framework. The strategic framework may contain intentions and requirements that are additional to and not necessarily repeated in the zone, overlay or other codes. In particular, the performance outcomes in the zone codes address only a limited number of aspects, predominantly related to built form. Development that is impact assessable must also be assessed against the overall outcomes of the code as well as the Strategic framework. [348] Section (9) of the Element Suburban neighbourhoods of the strategic framework states: 394 Uses that compromise the amenity of suburban neighbourhoods, including service stations, short-term holiday accommodation, hotels or medium-tolarge scale places of worship are not established. [349] Council submits that one would not logically read s (9) as only applying to a situation where a service station is found to compromise amenity, rather it is a clear statement that service stations are treated as being a use that compromise amenity, and are not to be established in suburban neighbourhoods Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 8 s 3.1(4). 391 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 8 s 3.1(1). 392 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 4 s 1.4(1). 393 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Written Submissions for the Gold Coast City Council p 14 [42].

109 109 [350] In Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147., Morrison JA observed at 94 [52] that [t]he same principles which apply to statutory construction apply to the construction of planning documents. As such, it is necessary to consider the context of the provisions that are being construed. 396 [351] At 95 [56] of that judgment, Morrison JA also observed that: The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes. (footnotes omitted) [352] Other provisions relevant to the context in which the text of s (9) of the strategic framework should be considered are: s 3.2.2, which forms part of the strategic intent and states: 397 This City Plan encourages the growth and expansion of the city s network of small-scale neighbourhood centres, recognising these places can deliver cohesive and liveable neighbourhoods. As this network increases, most urban households will be within walking distance of a neighbourhood centre, allowing independence for those who do not or choose not to drive and creating local economic activity (refer Figure 7). The growth and expansion of the city s network of neighbourhood centres is planned to occur in:... Urban neighbourhoods, including light rail urban renewal area; Suburban neighbourhoods; (emphasis added) s 3.3.1(8), which forms part of the strategic outcomes for creating liveable places and states: 398 Neighbourhood design maximises walking and cycling and improves access by providing local community facilities and services, public transport and jobs close to homes. (emphasis added) 396 Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82 at 95 [55]; [2014] QPELR Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 22.

110 110 (c) s 3.3.1(11), which forms part of the strategic outcomes for creating liveable places and states: 399 Suburban neighbourhood areas are maintained as lowintensity, low-rise residential environments that retain and enhance local character and amenity (d) s (1), which forms part of the specific outcomes for the urban neighbourhoods element and states: 400 Urban neighbourhoods are compact, pedestrian-friendly, offer housing choice and high amenity and provide access to facilities, services, public transport, employment and essential infrastructure. A note in this part of the 2016 City Plan records that urban neighbourhoods include locations in the medium density residential zone, but not locations in the low density residential zone. 401 (e) notes in s 3.3.3, relating to the specific outcomes for the element for suburban neighbourhoods, which state: 402 And: 403 Suburban neighbourhoods are locations included in the Low density residential zone. Unless stated otherwise, Suburban neighbourhoods may also include location in other zones, such as the Neighbourhood centre and Community facilities zone depending on context. Suburban neighbourhoods are not locations included in the medium density residential zone and high density residential zone. (f) s 3.4.1(3), (5) and (7), which form part of the strategic outcomes for Making modern centres and state: 404 (3) Centre categories differ in role and function based on the mix of uses and the specific market pressures that influence each. This is an important feature of the Gold Coast s centre network where: mixed use centres are population-serving centres and comprise a varied scale and mix of high order 399 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 pp

111 111 (c) uses and services in response to their broad catchments; 405 neighbourhood centres comprise a mix of small scale uses and services in response to the specific needs of their immediate neighbourhood. (5) Mixed use centres are compact, pedestrian-oriented and vibrant areas with major concentrations of business, employment, community, cultural, retail and residential uses to support the vision of a world-class city. They support the greatest intensity and range of activity in the city, including major international events. (7) Neighbourhood centres complement mixed use centres and specialist centres. They are pedestrian-orientated areas with smaller scale concentrations of business, employment, community, cultural, retail and residential uses. They provide a focal point for the local community and support neighbourhood identity and sense of place. Neighbourhood centres serve an important local role within the centres network. These centres respond to specific local needs and provide convenience and accessibility within neighbourhood areas. They do not undermine the orderly development of nearby mixed use centres or specialist centres, or the viability of existing neighbourhood centres. (emphasis added) (g) s (1) and (2), which form part of the specific outcomes for the neighbourhood centres element and state: 406 (1) Neighbourhood centres differ from mixed use centres and specialist centres as they are smaller and comprise a mix of smaller-scale uses. While the potential land use options for neighbourhood centres vary, the scale of individual centres is limited to the specific needs of their neighbourhood. (2) Neighbourhood centres provide day-to-day goods and services and diverse business opportunities that directly support their immediate neighbourhood. They will vary from small groupings of shops to larger centres that may include shops and a supermarket. They provide for: retail facilities, such as neighbourhood stores and newsagents; 405 They are locations in the Centre zone. See Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 50.

112 112 food and beverage outlets (not including drive through facilities); (c) cultural uses, medical and community facilities; (d) small-scale entertainment and licensed premises and service stations (where operated during the standard trading hours of the centre); (e) (f) (emphasis added) educational establishments and indoor recreation; and local services such as post offices. (h) s (14), which forms part of the specific outcomes for the neighbourhood centres element and states: 407 Standalone, small-scale commercial uses (e.g. neighbourhood store, medical centres) may be appropriate in suburban and urban neighbourhoods (including light rail urban renewal area), new communities, Merrimac/Carrara flood plain special management area, townships and marine and general industry areas, where these uses: are of a type and size that will not undermine the viability of existing, or new neighbourhood centres; provide a direct service to the immediate neighbourhood/industry area or a high frequency public transport stop; (c) (d) (e) maintain a compatible form and scale to nearby development; do not unduly detract from local character and amenity; and are not service station, bar, hotel, nightclub or supermarket uses. (emphasis added) (i) notes in s 3.4.5, relating to the specific outcomes for the element for neighbourhood centres, which state: 408 Note: Neighbourhood centres are not identified on any strategic framework map. Note: Urban neighbourhoods (including light rail urban renewal area), suburban neighbourhoods, new communities, Merrimac/Carrara flood plain special management area, townships, and general and marine industry areas are conceptually shown on strategic framework maps 2 and 5. Note: Neighbourhood centres consistent with the outcomes for this element occur in locations included in the following zones: 407 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 pp 51-2.

113 113 Neighbourhood centre; High density residential; Medium density residential; Low density residential; Editor s note - Where land is not included within the Neighbourhood centre zone but is appropriate for a neighbourhood centre, this land is identified and considered through the development assessment process or as an amendment to the City Plan. (emphasis added) (j) s 3.8.1(11), which forms part of the strategic outcomes for a safe and well designed city and states: 409 Activities that generate emissions or impacts are adequately separated, designed and managed to avoid environmental harm or nuisance to residential or other sensitive use areas. [353] Consideration of those provisions reveals that: (c) (d) (e) (f) neighbourhood centres are not intended to be limited to land in the neighbourhood centre zone; neighbourhood centres may be located in the medium density residential zone or the low density residential zone if they are consistent with the outcomes of the Neighbourhood Centres Element; neighbourhood centres may be located in urban and suburban neighbourhoods, within walking distance of residents; it is important that local character and amenity is retained and enhanced; service stations are not a type of use considered appropriate as a stand-alone facility. They may, however, be included as part of a neighbourhood centre, if their hours are limited to the standard trading hours of the centre and they serve the needs of the immediate neighbourhood; and residential amenity is sought to be protected by ensuring adequate separation, design and management for activities that generate emissions or impacts. In many cases, one might expect that adequate separation would 409 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 80.

114 114 require service stations not adjoin residential premises. However, in some cases, the particular attributes of the neighbourhood and its amenity may be such that adequate separation can be achieved using setbacks. [354] This context is not supportive of a construction of s (9) that discourages service station uses per se, as opposed to service station uses that compromise the amenity of suburban neighbourhoods. [355] Council also submits that there is evident conflict with s (14) of the strategic framework, which it submits provides a clear statement of planning intention that a service station should not be established on the subject site. 410 I disagree. That provision deals with a stand-alone service station, which is not proposed here. [356] The evidence about the size of the trade area makes it difficult to characterise the proposed development as one of a scale that is limited to the specific needs of [the] neighbourhood. However, Council does not rely on that provision as ones that directly discourage(s) the proposed service station on the subject site. This is, perhaps, unsurprising given the economic experts agree that the proposed development will have no significant impact on the hierarchy of centres. 411 In any event, I consider that the need for the proposed development would justify approval despite the extent of the trade area that would be served by the proposed development, particularly given the absence of adverse character and amenity impact. Low Density Residential Zone Code [357] Council alleges that the proposed service station is in direct conflict with s (2)(vi) of the Low density residential zone code of City Plan That provision states that the purpose of that code will be achieved through an overall outcome that Land uses that are incompatible, such as Service stations are not located in the zone. 413 [358] This statement of planning intent must be read in the context of the other provisions of City Plan In particular, regard should be had to those provisions, identified in paragraph [352] above, that admit of the possibility of land in the low density 410 Written Submissions for the Gold Coast City Council p 15 [44]. 411 Economic Need Joint Expert Report Exhibit 6 p 41 [86]. 412 Written Submissions for the Gold Coast City Council p 15 [47]. 413 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 114.

115 115 residential zone being developed for a neighbourhood centre that includes a service station, provided it supports the immediate neighbourhood and has operating hours limited to the standard trading hours of the centre. [359] Given the primacy provided to provisions of the strategic framework, this provision in the low density residential zone code should properly be regarded as a statement that stand-alone service stations are incompatible and are not to be located in the zone. The proposed development is not a stand-alone service station; rather it is a neighbourhood centre. As such, there is no clear conflict as alleged by Council. Further, and in any event, I regard the grounds as sufficient to overcome any such conflict, should it exist, particularly given the absence of adverse amenity impacts. [360] Council submits that s (2)(vi) is also reinforced by performance outcome PO5 of the Low density residential zone code, which states: 414 [361] Council submits: 415 Development is low density to complement the existing residential development of the neighbourhood and protects its Dwelling house character. On any sensible and balanced view, a proposed 24 hour service station, drive through fast food and take-away premises directly abutting low density residential dwellings is neither low density, nor complementary to the existing residential development or protection of the dwelling house character. [362] In response, the appellant submits that this provision is not relevant to land use conflict as it relates to matters of residential density. Mr Reynolds, the town planner retained by Council, accepted this. 416 The context in which the provision appears supports the appellant s construction. [363] However, even if the provision is not concerned only with residential density, it does not follow that a 24-hour service station, drive-through fast food and take-away premises directly abutting low density residential dwellings is not low density. 414 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Written Submissions for the Gold Coast City Council p 16 [49]. 416 T5-107/L1-17.

116 116 [364] Only one of the lots forming part of the subject site is within the low density residential zone. Features of the service station that are located on, or occur on, the land in the low density residential zone include: (c) (d) (e) (f) the canopy and bowsers of the service station; the entry and exit point from Skiff Street; the acoustic barrier (including the 4.5 metre high barrier); fuel truck filling station and the fuel filling point; manoeuvring points for customers through the Site; and hardstand areas of the service station. [365] These aspects of the development do not involve a density that will unacceptably impact on the character of the neighbourhood. For reasons already identified above in relation to setbacks and character and amenity impacts, I am satisfied that the proposed development incorporates setbacks and building height that complement the existing residential development of the neighbourhood. The proposed development does not adversely affect the dwelling house character of the area. Medium density residential zone code [366] The purpose and overall outcomes of the medium density residential zone code of City Plan 2016 also apply. [367] Section of that code states that the purpose of the code is: 417 to provide for a range and mix of dwelling types including Dwelling houses and Multiple dwellings supported by Community uses and small-scale services and facilities that cater for local residents. [368] Council submits the proposed development is neither small-scale, nor a service that caters only for local residents. 418 I accept that to be so. The provision does not require that the facilities cater only to local residents. Other provisions in City Plan 2016 do, however, place emphasis on limiting the scale to that which serves the immediate 417 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Written Submissions for the Gold Coast City Council p 17 [57].

117 117 neighbourhood. As I have already identified, I consider the grounds to be sufficient in this case to overcome any such conflict. [369] Section (2)(v) of the medium density residential zone code states: 419 Land uses which carry higher potential for impacts on amenity such as Car washes, Childcare centres, Health care services, Food and drink outlets, Shops (other than a supermarket), Veterinary services, Community care centres, Community uses, Emergency services, Educational establishments, and Places of Worship may be considered if appropriately designed and located and not detract from the residential amenity of the area. [370] Until the adoption of City Plan 2016 Version 4, the listed uses included reference to Service stations. 420 Council submits that this amendment means service stations are not expressly considered. 421 However, as with the overall outcomes of the low density residential zone code, this provision is to be construed in light of the provisions of the strategic framework. The strategic framework provides the material consideration in this case. Service station code [371] Council submits that performance outcome PO4 of the service station code also provides a direct and strong statement of discouragement of the proposed development at the subject site. 422 It states Service stations do not abut a residential land use. No acceptable outcome is provided. 423 [372] This performance outcome should be read, as a matter of construction, with: the purpose of the Service station code to: 424 facilitate the design and safe operation of Service stations while avoiding any environmental impacts on neighbouring properties. overall outcome (2), which states: 425 Service stations are designed and located to avoid any adverse impacts on residential land uses. 419 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 3 Exhibit 12 p Written Submissions for the Gold Coast City Council pp 17-8 [58]. 422 Written Submissions for the Gold Coast City Council p 17 [53]. 423 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 137.

118 118 [373] The proposed service station use directly abuts residential land uses to the east. As such, there is clear conflict with performance outcome PO4. [374] Council submits that this should be afforded significant and overwhelming weight in the assessment, and would lead the court to a refusal of the proposed development. 426 In this respect, Council notes that modern service stations situated in the trade area and beyond are not located immediately adjoining residential land uses, consistent with the planning intention of performance outcome PO4. That may well be the case, but each development application must be assessed on its own merits. The approval of the proposed development would not cut across the implementation of Council s planning policy. The policy is still equally achievable in other cases, regardless of whether the proposed development is approved. [375] In any event, I do not accept that the non-compliance with performance outcome PO4 should be afforded significant and overwhelming weight in the assessment given: there is no allegation of conflict with performance outcomes PO5 or PO6, which state: 427 PO5 The Service station location does not adversely impact the environmental values, habitat values or public open space. PO6 The Service station is located: (c) (d) as part of a as part of a neighbourhood or mixed use centre (where operated during the standard trading hours of the centre); to complement established non-residential uses in urban areas; on a higher order road; or adjacent to a highway or motorway interchange at a service node. (c) there is no allegation of conflict with the purpose of the service station code or the overall outcomes; and s 5.3.3(4)(c), which provides for code assessable development, states that development that complies with the purpose and overall outcomes of the code 426 Written Submissions for the Gold Coast City Council p 17 [55]. 427 Book of Planning Scheme Extracts City Plan 2016 Version 4 Exhibit 31 p 138.

119 119 complies with the code. Although the proposed development is impact assessable under City Plan 2016, it is difficult to see why the service station code should be interpreted differently in the context of impact assessment. 428 Conclusion regarding City Plan 2016 [376] In summary, I do not consider that an assessment of the proposed development against the provisions of City Plan 2016 indicates that the proposed development should be refused. [377] Under City Plan 2016, the proposed development would constitute a neighbourhood centre. The strategic framework admits of the possibility of neighbourhood centres in the low density residential zone and the medium density residential zone. [378] Although the extent of the trade area served by the proposed development and the drive-through component of the fast food premises may create conflict with City Plan 2016, no such conflict is relied on by Council and the significance of any such conflict is, in any event, reduced given: there is no unacceptable impact on the centre hierarchy; and there are no adverse impacts occasioned by the proposed development. [379] As such, I do not consider that a decision to approve the proposed development would: cut across or undermine the planning intent in City Plan 2016; or result in a significant conflict with City Plan 2016 that would warrant refusal despite the identified grounds in this case. Other considerations relevant to the exercise of the discretion [380] Ordinarily, the history of the application and evolution of the issues is of no particular moment. However, in this case the appellant submits it is relevant to the question of whether weight should be placed on the current planning scheme, Gold Coast City Plan 2016 (Version 4, effective 3 July 2017). 428 See United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8, [118].

120 120 History of the application [381] The development application was made on or about 14 October At that time, the 2003 Planning Scheme was in force. 430 [382] The Chief Executive under the Sustainable Planning Act 2009 (Qld) ( Chief Executive ) was a referral agency for the development application due to the subject site being located on Ferry Road, which is a State-controlled road. 431 [383] On 2 February 2016, City Plan 2016 commenced. 432 [384] The development application was publicly notified between May and June [385] In a report presented to a meeting of Council on 7 December 2016, Council officers: noted that the application had been: (i) (ii) lodged under the 2003 Planning Scheme; and carefully reviewed having regard to s 317 of the Sustainable Planning Act 2009, which permits an assessment manager to give weight it is satisfied is appropriate to a planning scheme that comes into effect after the development application is made but before the day the decision stage for the application started; 434 (c) opined that the outcome is not materially different than what may be achieved under City Plan 2016 and, as such, the application would be assessed under the 2003 Planning Scheme; 435 concluded that an assessment of the proposal has determined that the proposed development does not compromise the achievement of the Desired Environmental Outcomes (DEO s) and satisfies the intent and applicable codes of the Planning Scheme, subject to conditions relating to the on-going operation of the proposal ; 436 and 429 Town Planning Joint Expert Report Exhibit 7 p 8 [21]. 430 Town Planning Joint Expert Report Exhibit 7 p 8 [21]. 431 Appeal Book Exhibit 1 Volume 3 Tab Report of Mr Schomburgk Exhibit 8 p 1 [4]. 433 Report of Mr Schomburgk Exhibit 8 p 1 [4]. 434 Appeal Book Exhibit 1 Volume 3 Tab 22 p Appeal Book Exhibit 1 Volume 3 Tab 22 p Appeal Book Exhibit 1 Volume 3 Tab 22 p 863.

121 121 (d) recommended approval subject to identified conditions of approval. 437 [386] The Council Officer report included a copy of the amended concurrence agency response dated 7 October 2016, 438 which: noted the Chief Executive s decision that the development should be approved subject to conditions in Attachment 1; and recorded the reasons for the Chief Executive s decision, including that the approval with conditions would ensure the road access location to the Statecontrolled road from the site does not compromise the safety and efficiency of the State-controlled road. [387] In its decision notice dated 12 December 2016, Council notified its decision, made 7 December 2017, to refuse the proposed development. 439 The reasons for refusal specified in the decision notice related to alleged conflict with 11 identified provisions of the 2003 Planning Scheme and an absence of sufficient grounds to justify a decision to approve the proposed development in light of the identified conflicts. The decision notice contained no reference to City Plan Evolution of the issues in dispute [388] On 9 January 2017, the appellant filed its Notice of Appeal in which it took issue with Council s reasons for refusal. 440 [389] The Chief Executive did not elect to join the appeal. 441 [390] On 12 May 2017, pursuant to an order of this court, 442 Council amended its reasons for refusal. 443 The document detailing the amendments was 12 pages in length (single spaced) and contained allegations of conflict with an additional 27 provisions of the 2003 Planning Scheme, as well as over 50 provisions of Gold Coast City Plan 2016 (Version 3, effective 17 May 2016) Appeal Book Exhibit 1 Volume 3 Tab 22 p Appeal Book Exhibit 1 Volume 3 Tab 22 pp Appeal Book Exhibit 1 Volume 3 Tab Appeal Book Exhibit 1 Volume 1 Tab As a referral agency, the Chief Executive was entitled to elect to join. 442 Appeal Book Exhibit 1 Volume 1 Tab Appeal Book Exhibit 1 Volume 1 Tab Appeal Book Exhibit 1 Volume 1 Tab 3.

122 122 [391] Council further amended its reasons for refusal on 28 July Those amendments deleted reference to two alleged conflicts with the 2003 Planning Scheme and five allegations of conflict with Gold Coast City Plan 2016 (Version 3, effective 17 May 2016). [392] Council again amended its reasons for refusal on 7 September in a document titled Respondent s Second Amended and Further Issues. That document maintained the alleged conflicts with the 2003 Planning Scheme and Gold Coast City Plan 2016 (Version 3, effective 17 May 2016), but added allegations of conflict with seven provisions of Gold Coast City Plan 2016 (Version 4, effective 3 July 2017). An order of this court made 20 October 2017 permitted Council to rely on those issues in dispute. 447 [393] On the first day of the hearing, Council produced a document titled Respondent s Consolidated Grounds for Refusal, 448 which it submitted consolidated the grounds in the decision notice and the other documents. 449 It contained allegations of conflict with 31 provisions of the 2003 Planning Scheme, 43 provisions of City Plan 2016 Version 3 and seven provisions of City Plan 2016 Version 4. [394] The Respondent s Consolidated Grounds for Refusal contained no allegation that weight (let alone determinative weight) should be placed on City Plan At best, the issue Council had put in dispute prior to commencement of the trial was whether weight should be afforded to City Plan 2016 because a decision to approve the proposed development would conflict with identified provisions of City Plan 2016 and could not be conditioned to satisfactorily mitigate the conflict. [395] Following a number of exchanges with the court on the first day of the hearing, it seems Council considered the real issues in dispute. Council reviewed its position and, on day 5 of the hearing, with the agreement of both parties, 450 I made an order 445 Appeal Book Exhibit 1 Volume 1 Tab Appeal Book Exhibit 1 Volume 1 Tab Appeal Book Exhibit 1 Volume 1 Tab Exhibit It is unfortunate that Council had not produced a consolidated document at the start as by maintaining separate documents the experts were confused about the issues in dispute See T1-33/L See T5-4/L1 T5-6/L6 and T5-99/L16 T5-103/L11.

123 123 redefining the issues in dispute by reference to a document titled Respondent s Points of Refusal. 451 Relevance of history and evolution of the issues to the weight to be placed on City Plan 2016 [396] The appellant submits that the weight to be given to City Plan 2016 should be considered against the background of: 452 (c) (d) (e) (f) the view expressed by Mr Reynolds that, in determining the weight to be given to a planning instrument, fairness to the applicant is relevant; 453 City Plan 2016 commenced after the development application the subject of this appeal was lodged with Council; City Plan 2016 has been amended during the life of the appeal, including as late as July Some of the latest amendments to the planning scheme make the position more difficult for the appellant and were not in force at the time the application was made. For example, Council amended the medium density residential zone code to remove service station from the list of uses that may be considered if appropriately designed and located and not detract from the residential amenity of the area ; 454 Council officers recommended that the proposed development be approved with knowledge of the contents of the 2016 planning scheme; 455 Council did not identify City Plan 2016 as warranting refusal of the development in the decision notice, in circumstances where the decision to refuse was made contrary to the Council officers recommendation to approve subject to conditions; 456 after the commencement of City Plan 2016, the appellant still had the ability to lodge a development application (superseded planning scheme) with respect to the latest round of amendments to that scheme. Such an application would 451 Exhibit 32. The document contained handwritten amendments. See T5-4/L1 T5-6/L6 452 Written Submissions on behalf of the Appellant pp 11-2 [53]. 453 T5-121/L26 T5-122/L Compare Exhibit 31 p 121 to Exhibit 12 p Appeal Book Exhibit 1 Volume 3 Tab 22 p Appeal Book Exhibit 1 Volume 3 Tab 23.

124 124 require Council to ignore the contents of City Plan 2016 planning scheme, in particular those that are now relied on by Council to defeat the proposed development; 457 and (g) City Plan 2016 was first raised as a reason for refusal, not by Council itself during the IDAS process, but by Council s lawyers in the context of this appeal. 458 [397] Council did not cavil with these matters, nor submit that they were not relevant to the court s exercise of discretion. [398] I accept that fairness to the applicant is relevant to the exercise of the discretion. [399] As I have noted at paragraph [379] above, I do not consider that a decision to approve the proposed development would: cut across or undermine the planning intent in City Plan 2016; or result in a significant conflict with City Plan 2016 that would warrant refusal despite the identified grounds in this case. [400] In any event, having regard to the matters referred to in paragraph [396] above, were the provisions of City Plan 2016 such to call for a refusal of the proposed development, it would be unfair to give them significant and determinative weight. This is particularly so because of the manner in which Council conducted the litigation. [401] Council only put compliance with City Plan 2016 in issue after the appellant had lost its right to make a development application (superseded planning scheme) or otherwise pursue compensation. 459 Had the appellant made a development application (superseded planning scheme), the application would have only been assessed against the 2003 Planning Scheme. 460 I can appreciate why the appellant may not have pursued those rights. Until Council put City Plan 2016 in issue, it 457 T5-124/L3-24 (Reynolds). In other words, a development application (superseded planning scheme) could still be lodged pursuant to version 3 of City Plan T5-128/L25-36 (Reynolds). 459 See Report of Mr Schomburgk Exhibit 8 pp 1-2 [4] and [5]. See also s 95 and s 704 of the Sustainable Planning Act See s 317 of the Sustainable Planning Act 2009.

125 125 appeared that Council held the same view as its officers, namely that City Plan 2016 was materially the same in its application to the proposed development. [402] Absent the loss of rights by the appellant, it may well have been appropriate to give significant weight to City Plan given the development application was made in its shadow and at a time where its contents were well known. 461 Residual discretion [403] Council submits that in the event I find that there are sufficient grounds to overcome any conflict with the 2003 Planning Scheme: 462 the court is nevertheless required to exercise its residual discretion in order to decide whether to confirm or set aside the Council s decision. This requires a balancing exercise. [404] Council relies on two factors that it submits weigh against setting aside Council s decision, namely: the 2003 Planning Scheme and City Plan 2016 in combination evince a clear and consistent planning policy against the establishment of service stations in residential zones or abutting residential uses. It submits the court is not the planning authority and should not substitute a different policy position; and the weight of evidence is against approval of the development application. [405] Council provided no authority for its submission that there is a residual discretion. It seems Council has assumed that the reference in s 496 of the Sustainable Planning Act 2009 to the court s ability to confirm or set aside the decision appealed against confers a residual discretion. However, that provision must be construed in the context of s 495 of the Sustainable Planning Act 2009, which stipulates that the appeal is by way of hearing anew. The consequence is that the court stands in the shoes of the assessment manager and, as is noted in paragraph [21] above, assesses and decides the appeal by reference to s 314 and s 326 of the Sustainable Planning Act The framework of the legislation does not admit of a residual discretion to make a decision contrary to the result of that assessment. 461 See United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8, [109]. 462 Written Submissions for the Gold Coast City Council p 97 [327].

126 126 [406] Even if there is a residual discretion, I do not accept that, in this case, the two factors cited by Council weigh against an approval. [407] For the reasons already canvassed, I do not regard the weight of evidence to be against approval of the development application. [408] As for Council s other factor, I acknowledge the observations of White J (with whom Thomas and Williams JJA agreed) in Grosser v Council of the Gold Coast [2001] QCA 423; (2001) 117 LGERA 153 at [38] that: The proper approach of the Planning and Environment Court and of its predecessor, the Local Government Court, to matters of planning policy has long been recognised as one of restraint. Most recently this Court affirmed the desirability of a self-limiting approach, at least when considering town planning matters in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268 unreported decision of 14 July The Court quoted with apparent approval at [42] the following passage from the judgment of Quirk DCJ in Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 at 211: It should not be necessary to repeat it but his (sic) Court is not the Planning Authority for the City of Brisbane. It is not this Court's function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper has to adopt (sic) (Brazier v Brisbane City Council (1972) 26 LGRA 322 at 327). As was observed by Carter J in Sheezel v Noosa Shire Council [1980] QPLR 130 (when he then constituted this Court), it would be quite inappropriate for this Court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to cut across in quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment. This stated a proposition which the Court said was common sense... for which no authority was required. (emphasis added) [409] However, a decision to approve this particular service station would not cut across Council s planning strategy, evident particularly in City Plan 2016, to ensure service stations are designed and located to avoid any adverse impact on residential land uses and ensure residential amenity is protected from any adverse impacts. The strategy will remain as a relevant and applicable strategy for the assessment of all future service stations. The approval of the proposed development will not cut across Council s ability to implement that policy in the future.

127 127 [410] Unlike in Grosser v Council of the Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, my decision to approve the proposed development is not founded on a conclusion that the subject site should not have been included in the domain under the 2003 Planning Scheme or the zone in City Plan 2016 in which it was included. 463 My conclusions are based on my assessment of the merits of this particular proposed development in the context in which it sits. Conclusion [411] For the reasons provided above, I am satisfied that the appellant has discharged its onus. The appeal will, in due course, be allowed. I will adjourn the further hearing to allow for the formulation of reasonable and relevant conditions. 463 Grosser v Council of the Gold Coast [2001] QCA 423; (2001) 117 LGERA 153, 163 [37] and [41]-[43]. The observation in Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 was similarly made in a context where the planning strategy was being criticised as inappropriate or lacking in some material respect.

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