Harburg Investments Pty Ltd v. Brisbane City Council & Anor. [2000] QPEC 32 (5 May 2000)

Planning and Environment Court of Queensland|2000-05-05

[1] This is an appeal by Harburg against the decision of the Council to approve Ecovale's application to use land at 1261 Gympie Road, Aspley for a shop of 500 m5 gross floor area and business premises of 110 m5 gross floor area. Harburg operates a nearby shopping centre which would compete with the Ecovale development if it were to proceed.

[2] The appeal is brought under s.4.1.28 of the Integrated Planning Act 1997, the onus being placed on Ecovale by s.4.1.50(2e), and the appeal being a hearing anew by virtue of and prescribe that the pre-existing town plan for Brisbane is a transitional planning scheme which continues to apply and requires the matter to be decided under the provisions of the 1990. So, effectively, this was an application to re-Zone the land from its current Residential A Zone to a Particular Development Zone.

[3] The site, which is on the eastern side of Gympie Road contains 2056 m5. It is vacant land and has been vacant for many years. It is used from time to time for car parking. It has a frontage of about 35 metres to the Gympie Road reserve but does not have direct access to Gympie Road. Its access is to a service road which is parallel to Gympie Road and which itself gains access to Gympie Road via a signalised intersection at Darwin Street. Gympie Road is a six lane arterial road with outbound and inbound lanes separated by a median strip. It carries very heavy traffic.

[4] The site is predominantly surrounded by land in the Residential A Zone. It is located to the south of the Aspley business centre, the focus of which is the Aspley Hypermarket. That centre contains considerable retail and commercial development which mostly faces Gympie Road. In total this Aspley business centre contains about 70,000 m5 of lettable space.

[5] The Aspley Hotel adjoins the site to its north on the corner of Gympie Road and Nevin Street. It has recently been refurbished and is on land in the Particular Development Zone. Beyond Nevin Street to the north is a small corner block, also included in the Particular Development Zone. The building constructed on this site is currently being used as a solicitors office.

[6] To the north of this block are two residential properties which are included in the Residential A Zone. Beyond these residential blocks, properties with a frontage to Gympie Road are included in the Business Zone and comprise office, retail and commercial premises. This commercial centre extends north to and past Robinson Road, a major east-west road which crosses Gympie Road. Most of the land to the north of that comprises detached dwellings and is in the Residential A Zone.

[7] Land to the east of the site is in the Residential A Zone and comprises mainly single storey detached dwellings. Immediately to the south of the site is a residential house on land with an area of approximately 3490m5. This land, and land further south, is in the Residential A Zone. Land to the west of Gympie Road is in the Residential A Zone and comprises single and double storey detached dwellings.

[8] The proposed building is to be two storeys in height with the retail component at the lower level and the office component above. The total carparking proposed is 34 spaces with 14 provided at the lower level and 20 at the upper level reached by a ramp. Vehicular access is proposed by means of the existing service road and by a new combined access driveway serving the proposed development and the adjoining hotel. Extensive landscaping is proposed for the development with retention, where possible, of existing trees.

[9] The issues which were actively litigated can be summarised thus:

(a) Amenity, particularly noise and light nuisance;

[10] The amenity of the area is partly that of the business centre of Aspley which adjoins the site to the north and partly that of the pleasant residential area which lies on the other three sides of the site. However the evidence as a whole, supported by the inspection I had of the site, establishes that the immediate presence of Gympie Road, with its concomitant nuisance of noise, provides a substantial degradation of the amenity.

[11] The two aspects of amenity which were raised related to possible light pollution from the site and the likelihood of noise nuisance from activities on it. It seemed to me that the evidence was clear that the proposed activities would create no light nuisance and ultimately Harburg's counsel made no submission to the contrary.

[12] The issue of noise was more seriously contested. Although it was raised initially, any dispute about noise from plant, machinery, deliveries and garbage removal was tacitly conceded by Harburg.

[13] The most likely cause of on-site noise would be the engines and doors of vehicles and the personal behaviour of patrons. In order to minimise the effects of this, Ecovale proposes (in accordance with conditions laid down by the Council) to build a 1.8 m. high acoustic fence along the northern side of the upper level car park and along the southern side of the ramp giving access to it.

[14] Evidence in relation to the disputed questions of noise was given by three consultant experts each of whom supported his opinions by reference to measurements taken of actual noise now experienced at neighbouring residential properties. The opinions also took into account the acoustic shielding which would be provided by the proposed building, by the relevant land levels and by the proposed acoustic fences.

[15] The measured noise readings show that except in the early hours of the morning, the area is a constantly noisy one. That is not surprising given the traffic volume which Gympie Road carries. The readings show not just considerable generalised background noise (L90) but also frequent, high, peaks of noise on the L10, L1 and Lmax scales and some of such peaks occur in the early hours of the morning. While it is possible that some of those peaks represent noises caused by things other than traffic (such as mowers, barking dogs, playing children) I think it is obvious that most of them would be traffic related. But perhaps it does not matter what causes the noise; whatever the source it is part of the ambient noise audible in the neighbourhood. The three local residents who gave evidence, Messrs Savage and Lawton (who neighbour the site to its east) and Mr. Pilon (who neighbours the site to its south) all said that they were used to and undisturbed by that noise.

[16] So the evidence is that at present even the intrusive noise (L90, L1 and Lmax) does not disturb the local residents who are closest to and would thus be most affected by the proposed development. Given the land levels, the presence of the building itself and the noise attenuation measures required by the Council's condition, the expert evidence is that the intrusive noises on the site created by engine start-ups, slamming doors, thoughtless conversations and the like will be no more intrusive than currently are experienced and it is probable that they will be less intrusive. This was the clear opinion of Mr. Brown (called by Ecovale) and Mr. Kamst (called by the Council) and was ultimately not seriously contested by Mr. King (called by Harburg).

[17] The bedrooms of Messrs Savage and Lawton are on the sides of their houses which are away from the site. The bedrooms of Mr Pilon's residence are air-conditioned and so the windows are ordinarily shut. Thus the noise levels actually experienced within the bedrooms will be reduced below that measured by the meters which were outside the houses on walls proximate to the site. So I can comfortably find that the development will not disturb sleep. Again Mr Brown and Mr Kamst were of that view and I took Mr King, finally, to agree.

[18] Mr. King expressed concern that the proposed development will create noise of a different character from that which now exists, and he thought that it would annoy the neighbours. I do not accept that. I consider it overlooks the frequency and intensity of the existing intrusive noise and the palliative effect of the noise attenuation which will be provided by the screen fences, the land levels and indeed the building itself. The times when intrusive noises might be expected to be created which could annoy would be late at night. A boom gate is to operate after 10 pm to prevent access to, but not egress from, the upper deck. So after 10 pm there will be at most only 20 cars on the upper deck. Thus it is highly probable that any intrusive noises relating to those cars and their occupants would be infrequent. So both in frequency and in intensity noises from the site will not be different in character from those presently experienced.

[19] I conclude, therefore, that the proposed development will not create a noise nuisance so as to degrade the amenity of the neighbourhood.

[20] Mr Beard, the consultant engineer called by Harburg, criticised the proposed development from the point of view of a number of matters relating to traffic. These were difficulty for pedestrians crossing Gympie Road and negotiating the service road, difficulty of access for vehicles from Gympie Road to the service road, insufficiency of queue space for vehicles leaving the service road for Gympie Road causing likely traffic congestion in the service road, the likelihood of traffic entering and leaving the site via the hotel's rather hazardous access point to Nevin Street and the inadequacy of car parking given the likelihood of overflow parking on the site by hotel patrons. On the other hand, Mr. Brameld, the consultant called by Ecovale and Mr. Mogg, the Council's traffic engineer, while both accepting that each of those aspects of the development was less than perfect, were of the view that the overall traffic situation would be within the tolerances of safety and convenience of use appropriate to a development such as this.

[21] Indeed it seemed to me that Mr. Beard's criticisms were (and he candidly said as much) directed to the convenience of customers and patrons of the proposed development rather than strictly to matters of traffic engineering. Given that candour, and the evidence of Mr. Brameld and Mr Mogg, I have concluded that the proposed development adequately caters for likely vehicular and pedestrian traffic.

[22] The case for Harburg on this issue was based first on the present availability of convenience shopping in the Aspley business centre, pointing to the existing Hypermarket, convenience stores, newsagents, liquor stores, hardware shops and the like. Then there was a mathematical and statistical approach, taking into account the availability of vacant lettable floor space in the Aspley business centre (6-10% of a gross lettable floor are of some 70,000 m²) and the fact that the population of the suburb of Aspley is unlikely to increase much and tends to be made up of people in early middle age and over.

[23] It cannot be doubted on the evidence that there is a large array of premises in the Aspley business centre and other centres within reasonable driving distance (particularly for people homeward bound from the city) in which "convenience" goods and services can be obtained. And equally it cannot be doubted that there is more than the 610 m5 lettable floor area planned by Ecovale which is now available in the Aspley business centre. So in the strictest sense it could be said that there is no need at all for the proposed development.

[24] But the planning law does not apply that strict test. Rather:

"need does not mean pressing need, critical need, widespread desire of anything of that nature rather, a thing is needed if its provision, taking all things into account would improve the physical well-being of the community" (Cut Price Stores Retailers v. Caboolture City Council [1984] Q.P.L.R. 126 at p131);

"need in planning terms is a relative concept and does not connote pressing urgency but rather relates to the general well being of the community; a use would be needed if it would, on balance, improve the services and facilities available in a locality" (Rooster Land Pty Ltd v. Brisbane City Council [1986] 23 A.P.A.D. 58 at p60).

[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 warehouse, 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 laid on the convenience to the likely patrons of those developments. 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 the other busy 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 probable 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.

[27] Two aspects of the statutory considerations contained in the Strategic Plan, were debated namely commercial ribbon development and out of centre development. The submissions of Harburg also raised under this heading the question of suitability of the site.

[28] The chief planning concern in relation to commercial ribbon development is its impact upon the capacity and safety of arterial and sub-arterial roads (s. 3.2.2.2(c) of the Strategic Plan and Planning Policy 19.17). It is for that reason that the statement of intent in relation to development in centres refers to commercial ribbon development being discouraged on arterial or sub-arterial roads (s.3.3.4.1). In this case there is no acceptable evidence of any adverse impact by the proposed development on the capacity or safety of any arterial or sub-arterial roads. In fact, the development, in a practical sense, fronts the service road rather than Gympie Road and the service road intersection with Gympie Road is controlled by traffic lights.

[29] Insofar as it might be thought that commercial ribbon development is discouraged for other reasons, for example, visual amenity, the proposal does not offend. The effect of the "linear form of development", said to be comprised by the hotel and the subject site together, can hardly be seen to be out of place in the context of the Aspley business centre which itself features a lengthy section of linear development along Gympie Road. Further, the development itself clusters onto one site more than half a dozen businesses. It would be difficult to categorise a development which achieves such a clustering on the one site as being commercial ribbon development.

[30] In my view, the proposal neither represents commercial ribbon development nor has any of the adverse consequences of commercial ribbon development.

[31] It is appropriate to set out some recorded judicial comments in relation to the application of statements in planning documents, which include Strategic Plans:-

(a) "It is seldom appropriate in matters such as these to rely on any specific statement of intent or of aims or objectives in the planning documents as determinative. It is rare that an express imprimatur or injunction can be found in them for a particular proposal. Almost invariably a diligent search of the planning documents can unearth in such statements passages which appear to argue for or against the proposal but generally speaking it would be unwise to place too much weight on such a passage. The planning documents, while they are given the force of law by s.2.15(9) of the Local Government (Planning and Environment) Act 1990 [see now s.2.1.23 of IPA] are not drawn with the precision of Acts of Parliament and the statements of intent or of aims or of objectives are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular proposal should be approved or rejected. So such statements should be read broadly." Degee & Anor. v. Brisbane City Council & Anor [1998] QPELR 287 at p289.

(b) A strategic plan only sets out broad desired objectives and not every objective in the plan has to be met before the proposal of an applicant may be accepted (see Lewiac Pty Ltd v. Gold Coast City Council [1994] 83 LGERA 224 at p230; the interpretation of the strategic plan ought to involve a "common sense approach" (see Z.W. Pty Ltd v. Hughes & Partners Pty Ltd [1992] 1 Qd.R. 352 at p360); in interpreting a strategic plan the document should not be read too narrowly; it should be read broadly rather than pedantically; and one should adopt a sensible practical approach (see Yu Feng Pty Ltd v. Maroochy Shire Council [1996] 92 LGERA 41 at p.73, 75 and 78); to enliven the provisions of s. 4.4(5A) [of the P&E Act] a conflict must be plainly identified and, in any event, such a conflict alone may not have the result of ruling out a particular proposal (by virtue of s.4.4(5A) see Fitzgibbons Hotel Pty Ltd v. Logan City Council [1997] QPELR 208 at p212.

[32] Section 3.3.4.1 of the Strategic Plan records an intention "to promote a hierarchy of centres based on existing and potential population catchments, access and servicing requirements, and consumer demands...". Section 3.3.4.2 identifies a specific hierarchy of centres which includes minor neighbourhood centres and convenience centres (described as "lower order centres"). In respect of lower order centres, s.3.3.4.1 provides:-

"New centres will only be allowed at the lower end of the hierarchy, where it can be demonstrated that they are required to meet community needs, (and) that these needs cannot be met from an expansion of existing centres..."

[33] It was argued on behalf of Harburg that the proposed new centre (undoubtedly a lower order centre) falls foul of s.3.3.4.1 (above). That, of course, depends on the meaning of "needs" and what is meant by the requirement that those needs cannot be met from an expansion of existing centres.

[34] It would be strange indeed if the Brisbane Town Plan used the expression "needs" in a sense other than that which had been well and truly accepted as applicable to town planning considerations at the time the plan was adopted, 1987. I have decided in paras [22]-[26] above that there is a need (i.e. there are "community needs") for the proposed development and while I have not said so expressly in that section of these reasons it is implicit in my findings that those needs cannot be met from existing centres. That follows from paras [25] and [26] where I emphasise the convenience and choice provided by this proposed development.

[35] It is noteworthy that s.3.3.4.1 expressly contemplates an "expansion" of existing centres. In my opinion that term cannot be restricted to the provision of extra lettable floor areas within an existing centre but must also contemplate an outward expansion of an existing centre for a needed new commercial development. I have found that this Ecovale development is needed so if, strictly speaking, the site in fact falls outside the existing centre, the strategic plan does not forbid the centre expanding to take it in.

[36] Whether or not the site falls outside the Aspley business centre is a matter of fact on which minds may differ. It does not coincide with the coloured dot on the Strategic Plan map, but the map is not cadastrally based so that is not determinative of the matter. The relevant text of the plan, when read following the principles set out in para [31] above seems to me to set out a broad intent to cluster lower order centres rather than have them scattered. This proposed development does attach itself to the cluster of commercial business which make up the Aspley business centre, admittedly to its southern extremity. On the other hand there is the existence of the two residential properties referred to in para [6] above, which interrupt the continuity of the line of commercial properties to the north of the site.

[37] It seems to me that a broad commonsense view of the area would locate the Aspley Hotel, a large and long established commercial building, within the Aspley business centre, and the site gives the appearance of being an adjunct to it. I would think that most people travelling Gympie Road over the past decades would so regard it. So my factual conclusion is that the site falls within the Aspley business centre and therefore does not offend the Strategic Plan provisions.

[38] It is debatable whether the proposed development falls within the Plan designation of "minor neighbourhood centre" or "convenience centre" but in my opinion nothing turns on the result. It was pointed out in evidence that each is preferred to be located on a "neighbourhood access road" and the service road does not seem to fall within that category when the conceptual plan for road hierarchies is looked at (s.3.3.6.4 of the Strategic Plan). But that is a conceptual plan only and in any event the service road and the neighbourhood access road concept are not, to my mind, very different in function.

[39] From the point of view of traffic I have accepted that the site, while not ideal, is adequate. I have found a positive need for the development and I have interpreted the Strategic Plan as permitting the establishment of a small convenience shopping centre on this site, whether it falls within the existing Aspley business centre or is a minor extension of it to the south.

[40] The site itself, it seems to me, offers two substantial arguments in favour of the proposed development. For as long as any witness can remember it has been vacant. Thus despite its residential zoning it seems that there has been no demand for it for residential purposes. It presents as an unsightly parking lot. It is ripe for development. While residential development of some type is no doubt possible, I consider that unlikely based on its history and on the problems presented by Gympie Road. On the other hand its proximity to the long established and well known Aspley Hotel suggests some form of development which would complement the hotel and that would be some form of commercial use. The Ecovale proposal is such a form of development.

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Judgment (46 paragraphs)