Arksmead Pty Ltd v Gold Coast City Council & Ors [2000] QCA 60

LOCAL GOVERNMENT - TOWN PLANNING - CONSENT AND APPROVAL OF COUNCILS (DEVELOPMENT AND LIKE APPLICATIONS) - MATTERS FOR CONSIDERATION OF COUNCIL - AMENITY - NEED - MORAL AND SOCIAL MATTERS - whether factors taken into account during appeal are appropriate town planning considerations

LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - OTHER MATTERS - PUBLIC BUILDINGS, THEATRES AND PLACES OF AMUSEMENT - OTHER CASES - whether provisions of the Liquor Act 1992 determine need for licensed premises

Liquor Act 1992 (Qld)

Local Government (Planning and Environment)Act 1990 (Qld)

Allen v Atherton Shire Council (1997) 4 Q.L. 266, cited

Bell & Ors v. Brisbane City Council & Anor [1982] Q.P.L.R. 375, cited

W.H. Bowden v. Pine Rivers Shire Council & Anor [1986] Q.P.L.R. 268, cited

Broad v. Brisbane City Council & Anor [1986] 2 Qd. R. 317, cited

Ecovale Pty Ltd v. Gold Coast City Council [1998] QCA 67; [1999] 2 Qd. R. 35, cited

Hughes & Ors v. Emerald Shire Council & Ors [1996] Q.P.E.L.R. 110, cited

Jenk Holdings Pty Ltd v. Whitsunday Shire Council [1998] Q.P.E.L.R. 151, cited

Kentucky Fried Chicken Pty Ltd v. Gantidis [1979] HCA 20; (1978) 140 C.L.R. 675, cited

Ogilvy v. Redland Shire Council & Ors [1996] Q.P.E.L.R. 205, cited

Poir Hotels Pty Ltd v. Brisbane City Council & Anor [1989] Q.P.L.R. 188, cited

The Readymix Group Ltd v. Brisbane City Council & Ors [1982] Q.P.L.R. 46, cited

Theodorou v. Redland Shire Council [1987] Q.P.L.R. 11, cited

Ex parte Tooth Co. Ltd; Re Parramatta City Council (1955) 55 S.R. (N.S.W.) 282, cited

Trio Pearl Pty Ltd & Anor v. Council of the City of Gold Coast & Anor [1996] Q.P.E.L.R. 179, cited

Walker v. Noosa Shire Council [1983] 2 Qd. R. 86, cited

Whitehead & Ors v. Hervey Bay City Council & Ors [1998] Q.P.E.L.R. 55

Zaini & Anor v. Caboolture Shire Council [1984] Q.P.L.R. 223, cited

Mr D.R. Gore Q.C, with him Mr T. Trotter for the appellant

Mr J.D. Houston, with him Mr A.J. Knox for the first respondent

Mr D.F. Jackson Q.C, with him Mr C. Hughes for the second respondents Ecovale Pty Ltd and D.A. and C.E. Murphy

The second respondent Mrs E Simpson appeared on her own behalf

McDonald, Balenda & Associates for the first respondent

Connor O'Meara McConaghy for the second respondents Ecovale Pty Ltd & D.A. Murphy and C.E. Murphy

The second respondent Mrs E. Simpson appeared on her own behalf

[1] THE COURT: This is an appeal from a judgment given in the Planning and Environment Court at Southport on 23 April 1999. The formal order was dated 13 May 1999.

[2] On 21 October 1997 the appellant, the owner of vacant land at 2 Bell Place, Mudgeeraba village, applied to the first respondent under s. 4.12(1) of the Local Government (Planning and Environment) Act 1990 for town planning consent to use the land, 8,030 square metres in area, for a tavern, a drive-through bottle shop, showrooms, and a car wash. The first respondent failed to make a decision on the application in the required time and so was deemed to have refused it. The appellant then instituted its appeal to the Planning and Environment Court in which it was unsuccessful. We shall set out in greater detail later his Honour's reasons for dismissing the appeal, but, in summary, they were that the tavern, the bottle shop and the car wash, for which there was no proved need in Mudgeeraba village, would adversely affect the amenity of the village. His Honour made it clear that the 'need' he was referring to was community need 'in the planning sense', and not the commercial need of a developer or the needs of those who oppose a development.

[3] 'Amenity', as Dr Alan Fogg wrote in his Land Development Law in Queensland (1987), is 'one of the most over-employed words in the vocabulary of planning jargon ...' (p. 430), but it is accepted that the word refers to 'that element in the appearance and layout of town and country which makes for a comfortable and pleasant life rather than a mere existence': Ex parte Tooth & Co. Ltd; Re Parramatta City Council (1955) 55 S.R. (N.S.W.) 282 at p. 306. The concept of amenity is wide and flexible, and intangible factors and subjective considerations may be relevant to a decision on the effect of a proposed use on the amenity of the area affected: see Broad v. Brisbane City Council & Anor [1986] 2 Qd. R. 317. Such factors and considerations were relevant in this case.

[4] His Honour's decision was then that, if the sought-after consent were to be given, the comfort and pleasure of residents of, and visitors to, Mudgeeraba would be diminished by the intrusion of activities for which there was no need.

[5] By operation of s. 6.1.25 of the Integrated Planning Act 1997 the Local Government (Planning and Environment) Act, now repealed, continues to apply to this proceeding. Under s. 7.4(3) of the latter Act an appeal to this court may be made only on the grounds of error or mistake in law, or absence of, or exceeding, jurisdiction.

[6] The appellant contends that his Honour made three errors of law: first, in considering the question of need, secondly in dealing with the question of whether the amenity of the village would be affected by the appellant's proposal, and thirdly in confining his attention to the appellant's final proposal for the development rather than considering as well a proposal accepted after the institution of the appeal by the first respondent.

[7] The first step in the appellant's argument on the question of need was to refer to decisions of the Local Government Court and the Planning and Environment Court in which it had been held that it was not essential for success on an application for town planning consent to establish need for the proposed use: Zaini & Anor v. Caboolture Shire Council [1984] Q.P.L.R. 223 at p. 225; W. H. Bowden Pty Ltd v. Pine Rivers Shire Council & Anor [1986] Q.P.L.R. 268, at pp. 269-270; Theodorou v. Redland Shire Council [1987] Q.P.L.R. 11 at p. 14; and Ogilvy v. Redland Shire Council & Ors [1996] Q.P.E.L.R. 205 at p. 210. That proposition is not in doubt - so far as it applies to a case in which the question of need has not become an issue. There are, it may be accepted, many cases in which consent is applied for in which an issue of need does not arise. When that is so there is no reason to conclude that the applicant should be required to establish need.

[8] We see no reason in principle, however, why an issue of need, or its absence, cannot properly arise on an application for consent. As Quirk D.C.J. said in Zaini & Anor v. Caboolture Shire Council, an appeal arising out of the respondent's refusal of an application for consent to use land for a catering shop and fruit stall:

"I am not at all sure that it is essential, where an application for approval for a consent use is being dealt with, that it be shown that a "need" (as it is properly understood in a town planning context) for the proposal exists. In many cases it may well be a relevant consideration . . ." (p. 225, our emphasis)

The same judge said this in Theodorou v. Redland Shire Council, an appeal against the respondent's refusal of an application for consent to construct a service station:

"I should say something about "need" as the matter was raised in the appeal and was the subject of some evidence. The relevance of 'need' where a discretionary use is being considered has been the matter of some debate. I regard it as a factor which (while by no means being determinative) can at times be considered. For example, the absence in an area of a particular facility which would be of benefit to the community might be a matter which would favour an approval of a development that would lead to the provision of such facility. It is in the context of 'community interest' that such matters are judged." (p. 14)

Here the argument for the appellant was that while proved need for 'licensed facilities' can work in favour of an application, proved absence of need cannot work against a proposal.

[9] For that proposition we were referred to a passage in the reasons of Quirk D.C.J. in Hughes & Ors v. Emerald Shire Council & Ors [1996] Q.P.E.L.R. 110, an objectors' appeal against approval of an application for consent for the 'development' of an hotel:

"The matter of need may, in some circumstances, work in favour of a particular application (Theodorou v. Redland Shire Council (1987) Q.P.L.R. 11). Usually however, the fact that a particular proposal might give rise to commercial difficulties for competitors is not relevant unless it is 'accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community' (Kentucky Fried Chicken Pty Ltd v. Kantidis (sic) [1979] HCA 20; (1978) 140 C.L.R. 675 at 687)." (p. 112)

There was in this case no issue of the kind referred to in the passage cited by Quirk D.C.J. from Kentucky Fried Chicken Pty Ltd v. Gantidis, which comes from the reasons of Stephen J., but the question of need was an issue. It may be noted that Quirk D.C.J. did not explicitly say that proved absence of need cannot work against a proposal, nor does it necessarily follow from what his Honour said. It was submitted to us on behalf of the appellant that the principle it sought to draw from the passage from Quirk D.C.J.'s words in Hughes & Ors v. Emerald Shire Council & Ors was applied in Jenk Holdings Pty Ltd v. Whitsunday Shire Council [1998] Q.P.E.L.R.151, in which consent for use of land for a tavern was the subject of the appeal, but as we read the reasons given in that case it was the principle drawn from Kentucky Fried Chicken Pty Ltd v. Gantidis that was applied.

[10] In Whitehead & Ors v. Hervey Bay City Council & Ors [1998] Q.P.E.L.R. 55, an appeal arising from the approval of an application for consent for the construction of a child care centre, the primary judge in the present matter took the view that evidence directed to the question of need was irrelevant:

"During the hearing, I ruled that the evidence directed towards the question of need in this case was irrelevant. The matter of need might, in some circumstances, work in favour of a particular development. See, for example, the decision in Hughes & Ors v. Emerald Shire Council & Ors (1996) Q.P.E.L.R. 110, which accepted that a clearly demonstrated and unmet need might be a positive reason in favour of consent. At the other end of the scale, it may be shown that a proposed development is 'accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community'. See the decision of the High Court in Kentucky Fried Chicken Pty Ltd v. Gantidis [1979] HCA 20; (1978) 140 C.L.R. 675.

It became apparent that the question of need here was in neither of those extreme categories." (p. 59)

With respect, we do not think it follows from Quirk D.C.J.'s words in Hughes & Ors v. Emerald Shire Council & Ors that the question of need can arise only in the two 'extreme categories'. At all events his Honour appears to have taken a different view in the present matter from that he expressed in Whitehead & Ors v. Hervey Bay City Council & Ors, and it is his analysis in this case with which we are concerned. This court is of course not bound by any decision of the Planning and Environment Court on a question of law, although decisions of that court are entitled to respect.

[11] The respondents include Ecovale Pty Ltd, which owns the Wallaby Hotel in Mudgeeraba, and Donald and Celia Murphy, who own and operate a licensed restaurant in the area. On their behalf we were referred to quite a long list of cases in which need, or its absence, had been an issue. It will suffice to refer to two of the cases, which demonstrate clearly how the issue of need, or its absence, can be relevant. The Readymix Group Ltd v. Brisbane City Council & Ors [1982] Q.P.L.R. 46, an appeal against the Council's refusal of consent for a use which could not be made of the land without consent, came before Byth D.C.J. in the Local Government Court at Brisbane. The appellant had sought permission to operate a quarry in the non-urban zone. His Honour dismissed the appeal. He found that the community had a continuing need for aggregates and road-base materials, but, having regard to the 'opposing factors in the case', did not find that the community need was such that the land in question should be quarried. His Honour said, 'it would be convenient to the operators to work this site. I find that the resources and the reserves of road-base material and aggregate in and near Brisbane are such that it cannot be said that public need requires the quarrying of this particular site, in all the circumstances' (p. 54). The 'opposing factors' included 'detriment to the present and future amenity of the area, and damaging effects on roads by heavy haulage operations' (p. 55).

[12] A more recent decision that turned on considerations of need and effect on amenity was Trio Pearl Pty Ltd & Anor v. Council of the City of Gold Coast & Anor [1996] Q.P.E.L.R. 179 before Newton D.C.J. in the Planning and Environment Court at Southport. It was an objectors' appeal against a decision of the Council to approve the use of land in a residential-dwelling house zone for a child care centre. His Honour allowed the appeal, concluding that there would be an unacceptable impact on the amenity of the surrounding residential properties by the noise from children and traffic expected to result from the proposed use and that no sufficient need had been demonstrated that would warrant the proposal's proceeding (pp. 184, 190).

[13] In each of those cases the effect on amenity and need were considered and in each a detrimental effect on amenity together with an absence of need was decisive. It is difficult to see how it could be said that their Honours proceeded upon a wrong principle in treating the absence of need as a relevant consideration. In such a case, if it is decided that the proposed development would have a detrimental effect on the amenity of the area in question, the judge must then decide whether, notwithstanding the detrimental effect on the amenity of the area, there has been shown to be a need for the proposed use which would render the effect on the amenity of the area justifiable.

[14] Neither the Readymix case nor the Trio Pearl case was a case in which 'licensed facilities' were part of the proposed use. On behalf of the appellant it was asserted that cases in which a liquor licence is required are in a special category. It was argued that their being in a special category adds weight to the proposition that the proved existence of need is something which may bring about a result favourable to an applicant but that consideration of absence of need was denied to the Planning and Environment Court. For that proposition reliance was placed on a number of provisions of the Liquor Act 1992 applicable to a general licence, which was what was required by the appellant.

[15] Section 116(2) of the Liquor Act provides that an applicant for a general licence must satisfy the chief executive of the department that the licence applied for is 'necessary to provide for reasonable requirements of the public for liquor and related services in the locality to which the application relates'. Section 116(3) provides that an applicant must give certain specified information to the chief executive for the purpose of satisfying him or her about the reasonable requirements of the public as mentioned in subsection (2). Subsection (4) provides that in 'deciding the reasonable requirements of the public' the chief executive must take into account information about the matters mentioned in subsection (3) and must have regard to:

"(a) the population and demographic trends in the locality; and

(b) the number and kinds of persons residing in, resorting to or passing through the locality, or likely in the foreseeable future to do so, and their respective requirements or expectations; and

(c) the extent to which any requirement or expectation-

(i) varies during different periods or at different times; and

(ii) is lawfully met by other premises, licensed or unlicensed; and

(d) the likely health and social impact that granting the application would have on the population of the locality."

Section 118A provides that, in relation to such an application, a member of the public may make a written submission to the chief executive about:

"(a) the reasonable requirements of the public in the locality to which the application relates; and

(b) the matters to which the chief executive must have regard under section 116."

The effect of s. 29A and s. 30 is, however, to exclude from those entitled to appeal against a decision of the chief executive to the Liquor Appeals Tribunal members of the public who have made written submissions to the chief executive under s. 118A.

[16] It was argued on behalf of the appellant that those provisions constituted a code in accordance with which questions of need for premises requiring a general licence are to be decided. If that is correct then the question of need or the absence of it would, one might think, be completely removed from the purview of the Planning and Environment Court.

[17] How the existence of need and not its absence could then be considered relevant by the Planning and Environment Court, as contended on behalf of the appellant, is difficult to comprehend. His Honour the primary judge referred to that difficulty in the following passage in his reasons:

In this case, town planning need has been an actual issue between the parties. It was Arksmead's case at the hearing that there was a positive need for this hotel and bottle shop at Mudgeeraba. Its opponents resisted that claim, and led evidence to the contrary. It is said for Arksmead that, while a demonstration of need would work in its favour, the absence of need is not a factor which could work against its proposal. It is true that the presence of need does not have to be demonstrated here to succeed in the application for consent. However, once the issue becomes the subject of evidence, the applicant always runs the risk that there may be a finding that there is no need. If that happens, it is disingenuous to say that the question of need should be disregarded, as it cannot work against the proposal. If the evidence shows that there is no need, then that can ill be a reason for rejecting the application for consent.

The appellant's argument in reliance of the Liquor Act nonetheless has we think some merit, for to reject it results in acceptance that need may be an issue in two fora. There is, however, nothing express in either the Liquor Act or the Local Government (Planning and Environment) Act to that effect. The result of accepting the appellant's argument would be to eliminate an obvious issue that in the ordinary course of things could arise in a case in which a detrimental effect on amenity is the principal issue, as in the Readymix and the Trio Pearl cases - and of course in this case. Such cases would then be unnaturally circumscribed. There is also the important consideration that members of the public cannot have their legitimate concerns aired on appeal from a decision of the chief executive. To construe the provisions of Acts in the way contended for by the appellant would be to deprive them of an avenue of appeal. Furthermore, the approval of more than one authority is a common feature in commercial projects that require town planning authority approval: Walker v. Noosa Shire Council [1983] 2 Qd. R. 86, at p. 90.

[18] Taking those matters into account, we conclude that the legislature did not intend to deprive the Planning and Environment Court of the authority to consider the question of need or the absence of it in a case like the present one; and see also: Bell & Ors v. Brisbane City Council & Anor [1982] Q.P.L.R. 375, at p. 378, and Power Hotels Pty Ltd v. Brisbane City Council & Anor [1984] Q.P.L.R. 188, at p. 190. His Honour made no error of law on that subject. After a detailed analysis of the evidence including that of Mr Peter Kleineberg, hotel and tavern consultant, the only witness who gave evidence on the question of need on behalf of the appellant, his Honour concluded that the appellant had failed in its attempt to demonstrate that there was a need for the proposed tavern and bottle shop - and indeed there was what his Honour called a 'positive absence of need'. Such a conclusion was open on the evidence and relevant to his Honour's final determination. We should add that the appellant's case was argued in such a way as to treat the issues of need and amenity as discrete. To divide his Honour's reasons into separate compartments is to misconstrue them: the amenity issue and the need issue were necessarily related.

[19] We now pass to the argument on the amenity issue.

[20] In the reasons his Honour gave for his decision he discussed the community of Mudgeeraba and its character:

The evidence established that Mudgeeraba is a village whose origins lie in the last century. It is unique on the Gold Coast. Physically, it is characterised by buildings in the distinctive colonial style. Emotionally, its inhabitants show a sense of pride in the village, with strong community feeling.

A number of local witnesses gave evidence, in addition to the town planners. In particular, Mrs Goff and Pastor Magee spoke of the strong sense of community among its residents. Mrs. Simpson gave evidence to the same effect. As well as appearing on her own behalf she appeared on behalf of the Mudgeeraba Community Association. Her presence throughout the trial was a constant reminder of the community's rejection of Arksmead's proposal.

His Honour referred to another nearby centre on the Gold Coast, Robina:

Mudgeeraba can be compared to Robina, which lies only three kilometres to the east. It is a very large and recent development. It is a business centre, while Mudgeeraba remains a district centre.

A development control plan for Mudgeeraba shows, consistently with the relevant strategic plan, that one of its objectives was to 'maintain and promote a colonial village atmosphere in the Mudgeeraba Business Centre'.

[21] His Honour referred to objections to the proposal:

This project has resulted in many objections. There are 240. They concentrate on the perceived problems of increased noise from the hotel bottle shop, the increase in traffic to the development, conflicts with the D.C.P. 3, and the impact of the development on the "village" atmosphere of Mudgeeraba.

A petition was collected. There are some 1,300 names in it. The grounds of objections are these:

1. Undue offence, annoyance, disturbance and inconvenience to persons who reside or work or do business in the locality, and travel to or from church and school in the locality, and
2. If the application is granted the amenity, quiet or good order of the locality would be lessened.

The evidence revealed that Ecovale had given support to the organized opposition. That is not surprising. A public meeting was chaired by Mr David Anderson, from the Wallaby Hotel. An advertisement against the proposal was funded by Ecovale. It is necessary to discount the level of objections, and the number of petitioners, because of such self-interested activities. Even when that is done, it is clear that there is a high level of local opposition to this proposal. The opposition centres on the proposed hotel and bottle shop.

That opposition should be given weight for two reasons. It is relevant to the question of amenity, and also to the question of need. Amenity does not include just the physical appearance of the surroundings. It also includes the emotional or sentimental feelings that people may have about a place.

An explanation for the amount of opposition can be found in the evidence about the village character of Mudgeeraba. Not only does it have physical characteristics based on its colonial background, it also has generated a strong community feeling about its future. Those strong feelings have given rise to much of the present opposition. Those feelings should be taken into account, with respect to the amenity issues.

[22] His Honour recorded his conclusions as follows:

Here, the evidence shows that the tavern, the bottle shop, and the car wash, will have a detrimental impact on the amenity of the Mudgeeraba village. Some of the physical impacts are slight and have already been discussed - such as traffic. Inevitably, there would also be some impact from noise and the occasional unruly behaviour of patrons, no matter how well designed the building, or well managed its operation. Such impacts are out weighed by those of a more intangible kind. It is the very presence of a development including a tavern and bottle shop which will be a detriment. Its location, which overlooks the playing fields of Firth Park, should also be kept in mind. That is an area which is enjoyed by many families and children. Overall, the evidence demonstrates that the amenity of the Mudgeeraba village will be diminished by this proposal, including as it does a tavern and bottle shop. The proposed car wash will have a slighter impact on amenity.

The question of the midblock pedestrian linkage has been dealt with. The question of a "contribution to the village" is to be judged by requirements of the town planning scheme. While there may be other functions which could be introduced onto this land (as Mr Vann observes) that is not a conclusive objection. The topography, and the absence of any residences immediately nearby, greatly reduces the impact of the criticism, that this proposal turns its back on the village.

From a design point of view, it is the car wash which attracts criticism. The proposal here is to engraft a mock colonial design on a piece of contemporary machinery designed to assist the owners of motor vehicles. The hotel and the showrooms might readily be given a suitable colonial design. The bottle shop might just be included in that list. However, it is not easy to see that the car wash is a "visually appropriate" structure.

It is necessary to keep steadily in mind the planning provisions in para 2.4.5.3 - the development that might be permitted in this precinct. The hotel and car wash (the latter accepted to be within the meaning of "service industry") have to be considered on merit in that precinct. This court has the advantage of evidence not available to the Council. It is apparent that the positive absence of need, the duplication of facilities, and the detrimental impact on amenity which would be caused by the tavern, the bottle shop and car wash, and the undesirable appearance of the car wash, mean that the application should be rejected. There is not "sufficient merit" to enable approval to be given.

On behalf of the appellant it was submitted that his Honour's conclusion concerning the effect of the proposal on the amenity of the area was flawed in that he took into account two matters which he ought not to have taken into account: first, Mrs Eunice Simpson's presence throughout the hearing of the appeal, which, as can be seen in a passage from his Honour's reasons quoted above, he described as 'a constant reminder of the rejection of Arksmead's proposal'; and secondly, the petition with some 1,300 names on it.

[23] His Honour's comment concerning Mrs Simpson's attendance at the hearing does not reveal that his Honour made the suggested error of law. It goes no further than recording, in an innoxious comment, that her attendance for the whole of the hearing was a reminder of the substantial body of evidence before his Honour showing community opposition to the appellant's proposal. It was a reminder of that evidence, but not evidence in itself.

[24] The submission as to his Honour's making an error of law in taking into account the petition is similarly without merit in our view. Reliance for that proposition was placed upon the decision of Mylne D.C.J. sitting in the Local Government Court at Cairns in Allen v. Atherton Shire Council (1977) 4 Q.L. 266. In that case there were two appeals by objectors against the proposal of the respondent Council to use a recreation reserve for the 'development' of a library. There was tendered in evidence a petition signed by a large number of people seeking a poll on whether the open space of the recreation reserve should be used for the building of a library. It was argued that until such a poll was held there was good reason not to give a decision that might result in frustrating the opinion of the electors expressed in the poll. The poll was sought under s. 53 of the Local Government Act 1936-1977 which provided that a local authority might at any time, and should when so directed by the relevant minister, 'take a poll' of electors on certain specified questions. The respondent had not decided, and the minister had not directed, that such a poll be held. Mylne D.C.J. concluded that the decision of the court should not be delayed until a poll were held, adding, '[t]he petition is not a factor to be considered in determining the merits of the appeal if the Local Government Act prescribes the method whereby objectors to a proposed development may be heard' (p. 272). That case is clearly distinguishable from the present case in that what was in question in that case was a petition to put machinery in motion to ascertain the views of electors, whereas in this case the petition was a clear expression of opinion by those who signed it on an issue which was before the Planning and Environment Court.

[25] The petition is headed 'To Object to the Grant of Application for General Liquor License made by Arksmead Pty Ltd ATF Marshall Trust, by its Nominee Anthony Whitcroft', indicating that the people who signed it did so in relation to an application under the Liquor Act. But the grounds of objection set out in the petition show that it is relevant to the amenity issue before his Honour. The grounds were these:

1. Undue offence, annoyance, disturbance and inconvenience to persons

[a] who reside or work or do business in the locality

[b] travelling to and from church and school in the locality

1. If the application is granted the amenity, quiet or good order of the locality concerned would be lessened.

The coincidence of issues before the liquor licensing authorities and the Planning and Environment Court renders the petition relevant and admissible before the latter in our view. There is always a question of weight to be considered when reliance is placed upon a petition, and, in this case, the fact that the petition was signed in connexion with an application for a liquor licence is perhaps a further matter to be considered when assessing its weight. Its relevance to the issues before his Honour, however, justifies his Honour's reception of it in evidence and his consideration of it in reaching his decision. We see no error of law in his having done so.

[26] It was argued on behalf of the appellant that the third error of law his Honour made was in concluding that it was open to him to consider only the plan of the appellant's proposal, which was exhibit 20 (drawing SK2E). Exhibit 20 was the appellant's preferred plan at the hearing, but there were two other plans in evidence before his Honour: exhibit 1 (drawing SK2A), the plan that was included in the application for town planning consent and available for inspection by any potential objector, and exhibit 2 (drawing SK2D) which was the only plan of the proposed development the first respondent supported. At the hearing it became obvious that the appellant would accept the plan supported by the first respondent, although exhibit 20 remained its first preference. There was a difference between exhibits 1 and 2 which caused an issue to arise before his Honour. There was, however, no difference of any moment between exhibits 1 and 20.

[27] The Local Government (Planning and Environment) Act did not expressly confer on the Planning and Environment Court power to approve a proposed development which was different from that which accompanied the initial application to the local authority. This Court held, however, in Ecovale Pty Ltd v. Gold Coast City Council [1998] QCA 67; [1999] 2 Qd. R. 35, that the Planning and Environment Court had a limited power to do so, and that the limits of that power were to be derived by implication - or analogy - from s. 4.15 of the Local Government (Planning and Environment) Act.

[28] Section 4.15 provides for modification of certain applications and approvals. Subsection (1)(a) provides that an application may be made to a local government seeking modification of an application to which the section applies, and subsection (1A) provides that the section applies to an application for town planning consent under s. 4.12(1), as this application was. Subsection (2) imposes restrictions on the power of a local government to approve an application to modify made under subsection (1). Two of those restrictions were relevant in this case. A local government is not to approve an application to modify where:

(a) in its opinion the modification is not of a minor nature;

(b) in its opinion the modification would adversely affect any person to a degree which would, if the circumstances allowed, cause that person to make an objection;

His Honour found that this was not a case to which (b) applied, but found that the modification in question was not of a minor nature. It was argued on behalf of the appellant that that finding proceeded from an error of law. The modification was the removal of access at the north-western corner of the land. Bearing in mind the conclusions we have reached on the other points raised by the applicant in this appeal, we conclude that it is not necessary to decide this point. That is because his Honour's conclusions concerning the detrimental effect on amenity and on need were based on broader considerations than that of whether or not there was access at the north-western corner of the land. But in any event his Honour's conclusion on this point involved no error of law.

[29] In reaching the conclusion that the modification was not of a minor nature his Honour was guided - as he was bound to be - by subsection (3), which is as follows:

(3) For the purposes of subsection (2), a proposed modification is of a minor nature if -

(a) the proposed use to be made of the land the subject of the modification is not varied by the addition of different uses;

(b) the gross floor area of buildings or proposed buildings on the site is to be increased by less than 5%;

(c) the number of storeys above ground level to be contained in any building or proposed building or part thereof on the site is not to be increased;

(d) the locations of the proposed ingress to or egress from the site are not to be substantially altered;

(e) any altered ingress to or egress from the site is to be to or from the roads -

(i) approved by the local government in dealing with the relevant application; or

(f) the amenity or the likely future amenity of the locality would not, in the opinion of the local government, be adversely affected by the proposed modification.

Here, the ingress might involve from between 4% to 10% of the total generated traffic to the new development. The Council sees important differences between access at the north-west corner, compared to no such access. Bearing in mind the standard already set in subsection 3(d), it should be concluded that this modification is not of a minor nature. It follows that the Council's preferred position is untenable - drawing number SK2D cannot form the basis of an approval.

It is therefore necessary to consider Arksmead's preferred position, contained in drawing SK2E - Exhibit 20.

[30] It is inherent in his Honour's reasoning that the pertinent provision was subsection (3)(d): that since the locations of the proposed ingress to the site were not such as not to be substantially altered, the modification of exhibit 1 made in exhibit 2 was not of a minor nature. The removal of one of two places of ingress to a site is clearly enough capable of being found to be an alteration which does not fall into the not-substantial category, so we detect no error of law in his Honour's doing so.

[31] It was also argued on behalf of the appellant that in failing to consider subsection (3)(f), as he was urged to do on behalf of the appellant, his Honour fell into error. We are not persuaded that that was an error. Subsection (3)(d) is the relevant provision in setting a standard to be applied to alterations of the locations of the proposed ingress to a site, just as subsection (3)(b) sets a standard for alterations of gross floor area of buildings or proposed buildings on a site, and (3)(c) sets a standard for alterations of the number of storeys above ground level to be contained in any building or proposed building or part of such a building on a site. It follows that the other provisions of subsection (3) were not germane to his Honour's deliberations. If subsection 3(f) were to have been considered relevant, its relevance would have been so slight when compared with subsection 3(d) as to justify his Honour's disregarding it. We therefore conclude that the appellant has failed on its third point.

[32] The appeal should therefore be dismissed and the appellant ordered to pay the second respondents' costs of the appeal.