[3]

Planning Act 2016 (Qld), s 311

K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40 | Case summary | Zoe

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K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40

[2020] QPEC 40

Planning and Environment Court of Queensland|2020-08-07

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General information, not legal advice.

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Source facts

Court

Planning and Environment Court of Queensland

Decision date

2020-08-07

Source

Original judgment source is linked above.

Judgment (448 paragraphs)

[1]

PLANNING AND ENVIRONMENT - APPEAL - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY - PUBLIC INTEREST - where the appellant applied to the respondent for a material change of use permit to develop land for a service station, convenience store, take-away food premises and a fast food drive through premises - where the land was in the Detached Dwelling Domain and the Residential Choice Domain of the Gold Coast Planning Scheme 2003 - where the proposed use for fast food premises and take-away food premises conflict with the 2003 Planning Scheme and should be considered "undesirable or inappropriate" - where, under s 326(1)(b) of the Sustainable Planning Act 2009 (Qld), the uses can be approved provided there are sufficient matters of public interest to warrant approval - whether there are sufficient grounds to justify approval

[2]

PLANNING AND ENVIRONMENT - APPEAL - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF PLANNING AUTHORITY - CONSIDERATION OF WEIGHT TO BE GIVEN TO NEW PLANNING SCHEME - where City Plan 2016 commenced after the development application was made - where the proposed service station use was not supported by City Plan 2016 - where s 495 of the Sustainable Planning Act 2009 gives a broad discretion to afford weight to a new planning scheme - whether conflict with City Plan 2016 should be given determinative weight

[84]

[27] K&K owns land at 248-254 Ferry Road, 24 Skiff Street and 21 York Street at Southport ("the subject land"). It is bounded by Skiff Street on its northern boundary, Ferry Road on its western boundary and by York Street on its southern boundary and is 3 038 square metres in area. It is on the south-eastern corner of the signalised intersection of Ferry Road, Cotlew Street East and Skiff Street. Ferry Road is a six-lane, divided, and State-controlled road carrying approximately 36 000 vehicles per day. Cotlew Street East is also a major road in the locality. It is a four-lane, divided, sub-arterial road.
[28] To the west of the subject land is a predominantly residential enclave. It is bounded by the Nerang River to the east, a waterway to the north (just north of Korong Street), Regatta Parade to the east and south, and Ferry Road to the west. Along Skiff Street and York Street are detached dwellings of one and two storeys in height. There is a two-storey multiple dwelling complex directly opposite the site on the north-eastern corner of Skiff Street and Ferry Road. The area is predominantly residential, but it does contain some non-residential uses. They include a sleep therapist, a business broker, a hypnotherapist, a real estate agency, and an orthodontist. A large childcare centre also operates from the north-eastern corner of Ferry Road and Yacht Street. There is a strip of commercial uses on the western side of Ferry Road, between the waterway to the north of Durham Street and Shaw Street. There is a Toyota car dealership directly opposite the subject land on the western side of Ferry Road. On the south-western corner of the intersection, there is a shopping centre that contains cafés, retail tenancies and services. Diagonally opposite, on the north-western corner of the intersection, there is the Ferry Road Tavern, a BP service station, a Night Owl convenience store, coffee drive-through, restaurants, cafés and bottle shops.
[29] K&K wants to develop the subject land for a service station with associated convenience store. It also wants to include a take-away food premises and fast food premises with drive-through facility as part of the development. The service station would have three bowser positions to serve six cars, with payment facilities within the convenience store of about 200 square metres. The fast food premises would have a gross floor area of 80 square metres and an additional 20 square metres of outdoor dining and a drive-through facility. The take-away food premises would have a gross floor area of 100 square metres. The fast food premises and take-away food premises would be in a part of the building that is separated from the convenience store by a corridor to the amenities. Each proposed use is to have its own access from a pathway adjacent to the building. The tenancies are not proposed to be interconnected.
[30] There would be 21 car park spaces and nine bicycle spaces. The building heights would range between 5.5 and 6.06 metres, and signage associated with the businesses would rise to 7.25 metres. It is intended that the service station and associated convenience store would operate 24 hours a day and seven days a week. The drive-through component of the fast food premises would operate between 6 am and 8 pm Monday to Saturday and 7 am to 8 pm on Sundays and public holidays. The fast food premises and take-away food premises would otherwise operate between 6 am and 10 pm, seven days a week. Vehicular access would be from Skiff Street and Ferry Road. Acoustic barriers would be erected between the subject land and the adjoining houses, and landscaping would be established between the acoustic fence and the boundary.

[85]

[31] My earlier findings with respect to the nature and extent of the conflict with the 2003 Planning Scheme were not criticised by the Court of Appeal. As such, I will only provide a brief summary of them. Detailed reasons are set out in my earlier judgment.[40]
[32] Here, the conflict is confined to the proposed incorporation of about 200 square metres of floor space for fast food premises and take-away food premises as only a smaller part and mere adjuncts to the dominant and unobjectionable use of the land for a service station.[41] K&K 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. This is the only conflict with the 2003 Planning Scheme.[42]
[33] The conflict is at the more serious end of the spectrum as it is the result of an evident policy intention that take-away food premises and fast food premises not be located in the Residential Choice Domain and the Detached Dwelling Domain.[43] The policy to nominate these uses as "undesirable or inappropriate" was implemented by use of inclusion of the subject land in the Detached Dwelling Domain and the Residential Choice Domain. The domains are the key to the assessment status of individual development proposals within their subject areas. This includes their policy status of "undesirable or inappropriate" development. Domains provide for the distribution, mixing and segregation of different types of uses, and each domain is intended to provide for compatible development and to segregate incompatible development.[44]
[34] The 2003 Planning Scheme intends that the stated planning intent will be implemented through the provisions of the applicable domains and any other relevant development code.[45] The provisions of the applicable domains include a statement of intent for the domain; the tables of development, which indicate the level of assessment and (when read with other parts of the 2003 Planning Scheme) inform the reader of those types of development considered to be "undesirable or inappropriate"; and, in this case, the Detached Dwelling Domain Place Code and the Residential Choice Domain Place Code.
[35] The Detached Dwelling Domain is intended to preserve and enhance the suburban character and residential amenity of the low-density residential neighbourhoods contained within the domain. The 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.[46] The Table of Development contemplates that, subject to impact assessment, uses of land in the Detached Dwelling Domain may include a child care centre, convenience shop, medical centre and service station. The proposed development, including the conflicting land uses, does not conflict with the statement of intent for the domain or the Detached Dwelling Domain Place Code.[47] The proposed service station complies with all of the implementation provisions, including the Table of Development.
[36] The intent and purpose of the Residential Choice Domain is similar to that for the Detached Dwelling Domain, although it also seeks to facilitate a wide variety of residential support services to be located within the domain, commensurate with local residents' needs. The Table of Development contemplates that, subject to impact assessment, uses of land in the Residential Choice Domain may include a wider range of commercial uses, including a café. The proposed development complies with the Residential Choice Domain Place Code.[48] The proposed service station complies with all of the implementation provisions, including the Table of Development.
[37] In this case, the serious conflict occasioned by the proposed for take-away food premises and fast food premises uses arises because the uses are not listed in the Table of Development for the Detached Dwelling Domain or the Residential Choice Domain. As such, they are uses that are generally regarded as inappropriate in those domains. However, in this case the conflict is significantly reduced because the proposed development:

[153]

[59] At the remitted hearing, Mr Leyshon and Mr Duane, the economics experts retained by the Council and K&K respectively, gave further evidence about the nature and extent of need for, and community benefit provided by, the proposed fast food premises and the take-away food premises.
[60] With respect to the proposed development, Mr Leyshon confirmed that he still holds the view, expressed in evidence at the original hearing, that the subject land presents a good commercial opportunity for an independent fuel operator to service the needs of the community. He opines that it is an excellent site for the totality of what is proposed and acknowledges that the subject land has locational attributes that are not common for the eastern side of Ferry Road. The subject land is a highly visible site for motorists travelling south down Ferry Road or east along Cotlew Street and, if the development proceeds, it will be readily recognisable by regular motorists in the area as a new development in that part of the city. He opines that the service station would attract significant patronage. During cross-examination, Mr Leyshon also confirmed that the co-location of fast food and take-away food premises with the service station will add to the choice and convenience of customers. Mr Leyshon expects that the fast food and take-away food premises would be successful, provided the facilities are of good quality and are attractive to the public. The early interest expressed by Oporto and Red Rooster (proximate to the time when the development application was made) suggests that the proposed development would be of good quality and attractive to national operators.
[61] Mr Duane says that there is a significant developing trend for major fast food chains to typically operate in close proximity to, if not on the same site as, service stations. He says the co-location has become the "norm" in the last five years and that the provision of drive-through facilities by take-away food premises like Oporto and Guzman Y Gomez has become more prevalent in the past two or three (or perhaps five) years. Mr Duane identified numerous examples of such development within and beyond the trade area. Recently developed sites nearby include the United Petroleum service station and Pie Face site, the Coles Express service station and Hungry Jacks site, and the Woolworths service station and McDonalds service station site. They are all in Southport. In Ashmore, there is a combined Shell service station, KFC and Starbucks site, and a Freedom service station and Zarraffa's site. Another site nearby is the development at 88 Bundall Road. It was approved for a service station and drive through coffee shop. I accept the evidence of Mr Duane. It is consistent with the evidence of Mr Leyshon in relation to the co-location trend.
[62] Mr Duane explains that service stations and fast food and take-away food premises with drive-through operations require similar attributes from sites on which they locate. Key attributes are access from a major road, to ensure appropriate traffic operations and to provide good exposure; and operating hours that are more extended than those available when operating within a typical shopping centre. He says that in light of those requirements, it is not economically sensible for separate facilities to be constructed for each fast food outlet and service station. During cross-examination, Mr Leyshon agreed with these views. I accept this evidence.
[63] In addition, Mr Duane says that the benefits of co-location are not limited to private economic benefits enjoyed by the relevant traders. He opines that co-location of service stations with fast food and take-away food premises is to the benefit of the public. This is particularly so given, in his view, many fast food and take-away food premises do not have the capacity to operate as stand-alone facilities and, as such, absent opportunities to co-locate would not be available to the public. With the exception of McDonald's and KFC, Mr Leyshon agrees. During cross-examination, Mr Leyshon acknowledged that likely tenants for the proposed development, like Gloria Jean's Coffees, rely on co-locating with other traffic generating activities that they can trade off rather than locating on a freestanding site. The opinion of the economics experts on this issue is consistent with the information depicted on Map 1 in the Joint Report on Economic Need dated 4 November 2019, which documents the location of service stations and fast food and take-away food premises presently located within an approximate four-kilometre radius of the subject land. I accept this evidence about the public benefits generally afforded by co-location.
[64] Mr Duane opines that the public benefits of the proposed development include increased convenience for the customer, easy accessibility and visibility from major roads for such facilities, and extended trading hours for the fast food and drive-through facilities by virtue of their co-location with a service station. Mr Duane explains that motorists benefit by being able to purchase fast food at the same location as the service station, either on the same trip or on different trips. He is also of the view that the proposed development would offer increased choice, convenience and competition for southbound traffic along Bundall Road. Mr Duane notes that Gloria Jean's Coffees has expressed interest in the proposed drive-through facility on the subject land. He also notes that there are a number of other tenancies who typically operate drive-through facilities that are not represented in the trade area. They include Guzman Y Gomez, Oporto, Red Rooster and The Coffee Club. I accept Mr Duane's evidence in this respect also.
[65] Mr Duane says that the only vacant site in the primary sector of the trade area that would be able to incorporate the proposed take-away food premises and fast food premises with associated drive through facilities is the now vacant Crema Expresso tenancy at 88 Bundall Road. His evidence in this regard was unchallenged and I accept it. Mr Duane opines that the public benefits presented by the proposed development are different to the benefits afforded by the development of 88 Bundall Road, which is on the western side of Ferry Road and serves the northbound traffic.
[66] As I have already observed, Mr Leyshon was of the same opinion as Mr Duane about the recent trends with respect to co-location; the economic and operational considerations that inform the trend; and the public benefits associated with the co-location of the proposed service station with fast food and take-away food premises. Nevertheless, Mr Leyshon maintains his opinion that there is a very low level of need for the proposed drive-through coffee shop and fast food premises on the subject land. His opinion in that regard is premised on four matters. First, Mr Leyshon assumes that the need is relevant to only a very small proportion (less than ten per cent) of motorists travelling southbound on Ferry Road. Second, Mr Leyshon opines that the proposed fast food and take-away food premises will only meet the need of an extremely low proportion of those refuelling who wish to buy such items. In forming that opinion, Mr Leyshon relies on a 2017 survey by Australasian Convenience and Petroleum Marketers Association (2017 Monitor of Fuel Consumer Attitudes). He notes that the survey records that only 8.6 per cent of the total survey respondents purchased coffee or hot drinks while also purchasing fuel. Third, Mr Leyshon relies on the survey to opine that there is no evidence that the fast food and take-away food premises are necessary to provide a viable service station on the subject land. Fourth, Mr Leyshon considers that, to the extent that there is a need for a coffee vendor such as Gloria Jean's Coffees, that need can be met by the present opportunity to lease an existing, vacant drive-through coffee shop at 88 Bundall Road, Bundall.
[67] I do not accept the evidence of Mr Leyshon that the need for the proposed drive-through coffee shop and fast food outlet on the subject land should be characterised as "a very low level of need" for the reasons that follow.
[68] Even if the development only serves less than ten per cent of motorists travelling southbound on Ferry Road, that is a significant population. As I noted in my earlier judgment,[73] the economics experts agree that 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. The average daily volumes of traffic along Ferry Road include 35 837 vehicles in both directions approximately two kilometres to the north of the subject land (near the intersection of Ferry Road and Minnie Street) and 50 273 vehicles in both directions approximately three kilometres to the south along Bermuda Street near the intersection with Monaco Street.
[69] In addition, I do not accept that the proposed fast food and take-away food premises will only meet the need of an extremely low proportion of those refuelling who wish to buy such items. Mr Leyshon's opinion to this effect is founded on his views about the relevance of the findings of the 2017 Monitor of Fuel Consumer Attitudes report prepared by the Australasian Convenience and Petroleum Marketers Association, which I do not accept. Nor do I accept the Council's submissions about the proper construction of the document for the reasons provided below.
[70] A copy of the report is appendix D to the Joint Report on Economic Need prepared for the remitted hearing. It indicates that a survey of fuel consumers was conducted in August 2017 by way of an on-line survey of 1 042 respondents and video interviews with ten consumers. The survey is said to have been conducted on behalf of the Australasian Convenience and Petroleum Marketers Association by a well-recognised market research firm - Survey Matters. The report records findings in relation to the habits of people when purchasing fuel.
[71] As is noted by the Council in its written submissions, Mr Duane appears to discount the relevance of the findings of the survey to co-located facilities, such as the take-away food premises and the fast food premises components of the proposed development. He does so on the basis that the survey only considered consumer habits in relation to convenience stores associated with petrol stations. Mr Leyshon was of the view that it was not clear from the methodology of the survey that co-located facilities were excluded. The Council submits that I should find that they were not excluded because:

[157]

[72] When the report is read as a whole, these matters do not persuade me, on the balance of probabilities, that the survey lends support to Mr Leyshon's position in the manner he contends.[74] The questions asked of those who participated in the survey are not recorded in the report. As such, I am not persuaded of the soundness of Mr Leyshon's assumption that it is an extremely low proportion of those refuelling who will seek to use the proposed fast food premises and the take-away food premises.
[73] Although I accept Mr Leyshon's evidence that the 2017 Monitor of Fuel Consumer Attitudes provides no evidence that the fast food and take-away food premises are necessary to provide a viable service station on the subject land, that does not, of itself, persuade me that the need for the proposed fast food and take-away food premises is only "very low".
[74] I also do not accept Mr Leyshon's opinion that, to the extent that there is a need for a coffee vendor such as Gloria Jean's Coffees, or other such take-away food premises, the need can be met by the present opportunity to lease an existing, vacant drive-through coffee shop at 88 Bundall Road, Bundall. The tenancy in question was previously occupied by "Crema Expresso". They have been excluded from the Bundall Road site due to non-payment of their rent. The tenancy has been sitting vacant ever since. Mr Duane does not consider this facility to be of material benefit for southbound motorist. This is because typically purchasers of petrol would travel in and out of a site by travelling in the same direction before and after the purchase. I accept Mr Duane's evidence in this regard.
[75] It is evident from the maps and plans available during the hearing that a southbound traveller who wishes to use the facility would have to undertake two U-turns (one at Vespa Crescent and one at Crombie Avenue) to access the facility and then, having made the purchase, would have to cross three lanes of traffic in order to perform a U-turn at Crombie Avenue to continue their journey south. These U-turn movements would be at intersections controlled by traffic signals. They would involve extra travel of less than one kilometre. Nevertheless, I do not consider this to be convenient. The inconvenience associated with such manoeuvres is such that I do not regard the community benefits afforded by the 88 Bundall Road site to be of persuasive relevance to a consideration of the public benefit associated with the proposed development.
[76] I also accept the evidence of Mr Duane that the 88 Bundall Road site would not be attractive to national operators seeking to operate a drive-through tenancy. The tenancy has poor visibility. The drive through facility is also unattractive due to its location at the back of the development. Its location would require a motorist to drive through the service station to place a food order.
[77] In addition to relying on the evidence of Mr Leyshon referred to in paragraph [66] above, the Council advances a further six substantive arguments as to why I should find that the need for the proposed fast food and take-away food premises are very low.
[78] The Council's first substantive argument is that the evidence adduced at the remitted hearing reveals that there is significant doubt about whether Gloria Jean's Coffees would take up a tenancy for a fast food premises (drive through coffee shop) in the proposed development.
[79] The only evidence of Gloria Jean's Coffees' interest in the tenancy is a letter from the Retail Food Group dated 20 February 2017 under the hand of the national Portfolio Manager. The letter details the terms of a lease offer. At the start of the letter, Retail Food Group notes that the lease offer is subject to board approval. It is also subject to the lessee's legal advisor's satisfaction with the lease terms, and to securing a franchisee. Having set out those provisos, the letter details the terms and conditions for a lease to Gloria Jean's Coffees. The letter seeks confirmation that "the terms and conditions set out below are acceptable to the Lessor, so that we may submit the lease offer for RFG Board Approval". The letter then outlines Gloria Jean's Coffees' requirements in considerable detail across six pages. They include, amongst other things, requirements with respect to seating area, trading hours, after-hours access, tenancy design, fit-out contributions, drive-through arrangements, and car parking. The letter concludes that "Upon confirmation that Gloria Jean's Coffees terms and conditions are acceptable to the Lessor, we may submit the lease offer for Board Approval."
[80] The qualified nature of the offer is unsurprising given the letter is not a lease. I am not troubled by the dated nature of the letter. I would not expect a lease to have been signed, or an updated letter to be provided, when the question of planning approval is outstanding. Having regard to the extensive detail contained in the letter, I do not consider that there is significant doubt that Gloria Jean's Coffees would take up a tenancy.
[81] In any event, Mr Leyshon does not doubt that a tenant would be found. As such, I am persuaded on the balance of probabilities that a suitable national branded tenant will be found for the proposed take-away food premises. I do not consider the dated and qualified nature of the letter to be indicative of a very low need for the proposed fast food premises and take-away food premises.
[82] The second substantive argument advanced by the Council is that there is already an opportunity for a coffee vendor such as Gloria Jeans to lease an existing drive-through coffee shop at 88 Bundall Road, Bundall. The Council submits that such an outlet could serve the motorists who regularly use the Bundall Road / Ferry Road corridor as well as attracting custom from local residents and workers. I do not find the submission persuasive for the reasons outlined in paragraph [74] above.
[83] The Council's third substantive argument is that, even if the 2017 Monitor of Fuel Consumer Attitudes report is found to relate only to consumer habits in relation to the convenience store, the needs of the overwhelming majority of motorists travelling southbound on Ferry Road would be met simply by the provision of a service station and an associated convenience store that retails those items most commonly bought by motorists when refuelling their vehicle (namely drinks, chips, lollies, snacks, coffee/hot drinks and basic grocery items). In support of the submission, the Council refers to paragraph 55 of the Joint Report on Economic Need dated 4 November 2019. That paragraph is part of section 3.3, in which Mr Leyshon summarises the effect of the opinions that he otherwise expresses about the relevance of the 2017 Monitor of Fuel Consumer Attitudes report. I do not accept his opinions in this regard for the reasons already outlined in paragraphs [66] to [74] above.
[84] The Council's fourth substantive argument relies on the evidence of Mr Leyshon that there are numerous opportunities for motorists using Ferry Road to purchase fast food and coffee from existing establishments associated with service stations, particularly to the north of the subject land as depicted in Map 1 of the Joint Report on Economic Need prepared for the remitted hearing. Those opportunities include the recently opened Taco Bell (with drive-through facilities) at 80 Ferry Road, Southport, to the north of the subject land. The Council also submits that there is no reason why take-away food could not be provided at the convenience store, albeit with a reduced offer.
[85] I do not accept the Council's submission with respect to the convenience store use. The convenience store forms part of the defined service station use. Leaving aside the inconsistency between this submission and the Council's position that the proposed service station and associated convenience store should not be approved, either by way of approval of the whole of the proposed development or by a partial approval, the submission is not supported by the 2003 Planning Scheme. Under the 2003 Planning Scheme, a service station is defined as:

[171]

[88] The existence of other facilities is relevant to consideration of the extent of need. The relative convenience of those offers and the extent of choice provided by them is also relevant.
[89] The identified Taco Bell is the only fast food premises within the trade area located on the eastern side of Ferry Road. It is north of the intersection of Ferry Road and Cotlew Street. As such, I do not consider it convenient to those motorists who turn onto Ferry Road from Cotlew Street.
[90] Many of the identified opportunities for take-away coffee are outside of the trade area or on the western side of Ferry Road. For reasons already provided in paragraph [74] above, I do not consider the offer at 88 Bundall Road to be convenient to southbound motorists. Similarly, while the take-away coffee and food offer at the BP Night Owl centre and the O Centre and at Zarraffa's Coffee may provide choice to nearby residents seeking to walk to the centres, given their location on the western side of Ferry Road, I am not persuaded that they provide a comparable level of convenience to that offered by the proposed development.
[91] With respect to the extent of choice, Mr Duane says there are other operators who typically operate drive-through facilities that are not represented in the trade area and that could potentially locate at the subject land. He says that fact, coupled with the increasing population growth in the trade area and the high-profile location of Ferry Road for such facilities, indicates a need for the fast food and drive-through facility. Although there is no agreement for lease with the other operators, or any expressions of interest from them, that does not detract from the force of Mr Duane's opinions given Mr Leyshon's expectation that the fast food and take-away food premises would be successful.
[92] As such, while the existence of other opportunities detracts from the strength of the need for fast food premises and take-away food premises, I consider the lack of convenience associated with the alternative offer to be a countervailing consideration that is of greater weight. The significant public benefit associated with convenient facilities is highlighted by the evidence of the economics experts referred to in my earlier judgment.
[93] As I noted in my earlier judgment,[75] the economics experts agree that work hours have changed substantially in Australia, with many people leaving home in the early hours of the morning, particularly tradesman and the like. Shift work has become increasingly important as part of the Australian environment. It means people are travelling on the roads at earlier or later times. The economics experts agree that Australians have become more time poor, with two parents working. During his examination-in-chief at the most recent hearing, Mr Duane explained how these changes in society inform the public benefit associated with the provision of convenient access to fast food premises and take-away food premises with drive-through facilities. He said:

[177]

[98] I do not consider this submission to be persuasive. For reasons already provided in paragraph [74] above, I do not consider the vacancies at the 88 Bundall Road site to be of persuasive relevance. The third site identified by the Council is outside of the applicable trade area analysed by the economics experts. The Council did not refer to any evidence to support its position that the opportunity to provide further facilities outside of the trade area is relevant to the extent of need for the facilities to serve the residents of the trade area.
[99] The sixth substantive argument raised by the Council relates to why it submits I should not accept the opinions expressed by Mr Duane. The Council makes a further six submissions in support of its argument that Mr Duane's evidence should not be accepted.
[100] The first relates to Mr Duane's opinion that there is a need for, and public benefit associated with, the provision of the fast-food premises and take-away food premises co-located with the service station. Mr Duane says the need and public benefit is informed by the increased convenience associated with the proposed development coupled with its accessibility and visibility from a major road and its ability to provide extended trading hours. The Council submits that the increased degree of convenience is minute because of the many other take-away food and coffee options already available in the locality and because there is no reason why the convenience store associated with the proposed development cannot provide these offerings as well. It also submits that accessibility and visibility from major roads is not unique to facilities co-located with service stations and, in any event, is not an indicator of need. In addition, the Council submits that the extended trading hours of these facilities is not unique to co-location with service stations and is not an indicator of need.
[101] For the reasons already provided in paragraphs [74] and [84] to [90] above, I do not accept the Council's submission that the increased degree of convenience is minute. For the reasons outlined in paragraphs [92] to [96] above, I consider it to be a weighty consideration. Accessibility and visibility from major roads and extended trading hours inform the issue of convenience. They are also important considerations to which I attribute considerable weight. Given their relevance to convenience, I do not accept the Council&#821[76]s submission that they are not an indicator of need.76 The Council's submission about the proposed convenience store is disingenuous given the Council also says the proposed development should not be approved in part even though the proposed service station and associated convenience store use complies with the 2003 Planning Scheme. In any event, I do not accept the Council's submission for the reasons provided in paragraphs [85] and [86] above.
[102] The Council's second submission is that the existence of many examples of co-location of like facilities in the area and the demonstration of a trend does not assist K&K. The Council submits that it supports the Council's position that there is a very low need for further facilities of this nature in the locality, given their prevalence in the area. In addition, the Council says the trend is explicable as a good commercial opportunity rather than evidence of a need for the proposed co-location. I do not find this submission persuasive for the reasons provided in paragraphs [92] to [96] above.
[103] The Council's third submission is that Mr Duane does not explain why purchases of fuel and fast food on different trips benefits the public. It submits that "there is no apparent reason why it should be" and that "plainly it is not". The Council's submission is not supported by the evidence. As I have noted in paragraph [63] above, Mr Duane explained that the public benefit derives from the provision of facilities that would not otherwise be available to the public because they do not have the economic capacity to operate as a stand-alone facility. This was an opinion with which Mr Leyshon agreed. I accept the evidence of Mr Duane that the co-location of the fast food premises and take-away food premises with service stations enables the public to benefit from a greater choice of facilities.
[104] The Council's fourth submission is that there are a few vacancies at sites in the primary sector of the trade area. I have already addressed the substance of this submission in paragraphs [74] and [87] to [98] above. It is not persuasive.
[105] The Council's fifth submission relates to Mr Duane's evidence that Gloria Jean's Coffees has an ongoing interest in establishing a drive-through coffee shop and his evidence that there are a number of other tenancies who typically operate a drive-through facility not represented in the trade area. The Council submits there is no evidence that Gloria Jeans has any ongoing interest in taking up the drive-through tenancy at the subject land and there is no evidence of current interest from the other identified tenancies. For reasons outlined in paragraphs [78] to [81] and [91] above, I do not regard these to be matters that undermine the veracity of the opinions expressed by Mr Duane.
[106] The Council's sixth submission relates to Mr Duane's evidence about the increasing population growth in the trade area, as well as the high-profile location of Ferry Road for such facilities. It submits that the increasing population is well served by other facilities already available in the locality. In addition, it submits that even if the site is correctly described as "high profile", that fact does not create a need for the facilities. I accept that having a "high profile" site does not create a need for the facilities. I also accept that the presence of other similar businesses in the locality is relevant to the existence of a need. However, I do not accept that it is demonstrative of an absence of need or only a low level of need in this case for reasons that I have already given.
[107] For the reasons outlined in paragraphs [55] to [106] above, I do not accept the Council's submissions that the need for the proposed fast food premises and the take-away food premises is only "a very low level of need". Convenient access within the trade area to a choice of food and beverage facilities, including by way of drive-through facilities, is important to the well-being of a modern community.
[108] I am satisfied that the existing facilities do not adequately address the well-being of the residents of the trade area because they do not provide sufficient choice of facilities within the trade area. I am also satisfied that further facilities could not be provided within the trade area at a location that provides the level of convenient access that is appropriate for the well-being of the residents of the trade area. There is a need for the whole of the proposed development at the proposed location. The added convenience and choice provided by the proposed fast food and take-away food premises with associated drive through facilities is a matter of considerable public benefit in this case. As such, the approval of the proposed development is in the public interest.

[182]

[112] The Council's written submissions proceeded to approach the exercise by addressing each example given by the Court of Appeal. I do not accept the validity of the Council's approach to this issue. Each case must be determined by reference to its individual facts and circumstances. I do not regard the examples provided by the Court of Appeal in Bell v Brisbane City Council & Ors[79] and Gold Coast City Council v K&K (GC) Pty Ltd[80] to be an exhaustive list of the circumstances where there will be sufficient grounds that justify approval of a development despite conflict with a planning scheme. While I appreciate the force of McMurdo JA's observation at paragraph [66] of Bell v Brisbane City Council & Ors,[81] I do not regard His Honour's observations as intended to import into the statutory regime a higher hurdle than that reflected by the words of the legislation itself. Nevertheless, in considering the issue to be determined here, I deal with each of the five submissions made by the Council below.
[113] The Council's first submission is that there is no factual error in the 2003 Planning Scheme. It is difficult to appreciate why this submission has been made. It is not a ground advanced by K&K. This is not a matter of public interest that arises in this case.
[114] The Council's second submission is that the 2003 Planning Scheme did not fail to take into account, because it was unable to do so, later social developments of relevance to the proposed development. Again, this is not a ground advanced by K&K.
[115] The Council submits the trend is driven by private economics. It also submits that the 2003 Planning Scheme makes appropriate provision for co-location of service stations with other facilities, such as fast food premises and take-away food premises. It does so by providing for the location of service stations in shopping centres of various sizes.
[116] The economics experts agree that there is a "trend" to co-locate service stations with fast food premises (with and without drive-through facilities) over the last decade, and more particularly over the last five years. That post-dates the commencement of the 2003 Planning Scheme in or around 2003. I accept that private economics informs the trend. However, having regard to the evidence of Mr Duane, I consider the persistence of the trend reflects that co-location provides significant benefit to the public, which the public has embraced. There is a public interest in the co-location of such services.
[117] I do not accept that the 2003 Planning Scheme makes adequate provision for the benefits afforded to the public by co-location of service stations with fast food premises and take-away food premises by permitting service stations to locate within shopping centres demonstrates that. As was noted by Mr Duane, shopping centres operate less extensive hours than service stations. Here, the proposed development would operate more extensive hours than the shopping centres in the primary trade area. In addition, as Mr Duane explains, the fast food premises and take-away food premises within shopping centre complexes do not have drive-through facilities. As such, they do not afford the public benefit associated with the proposed drive-through facilities.
[118] Although I do not accept the Council's submissions, I do not afford weight to this ground. City Plan 2016 was promulgated around the time that the trend was becoming evident. It does not provide for co-location on the subject land. However, on the evidence before me, it is not clear whether that is because City Plan 2016 was promulgated without appreciating the significant public interest in the provision of such facilities; or because it is a public benefit that the local government has determined should not be addressed.
[119] Third, the Council submits that the extent of the need for the fast food premises and take-away food premises is marginal. It says K&K has not demonstrated that it is in the public interest (or even in the interest of a section of the public) to provide those facilities at this location to meet such a low level of need. In support of its submission, the Council relies on the evidence of Mr Leyshon that only ten per cent of the motoring public travelling south on Ferry Road who patronise the service station will benefit from purchasing fuel and, at the same time, items from the fast food premises and the take-away premises. They also assert that those items could in any event be provided within the convenience store attached to the service station, or at the many other facilities already provided in the primary catchment and beyond, which include co-located facilities of the type proposed here. In addition, the Council submits that any interest that local residents may have in the additional choice and convenience provided by the proposed fast food premises and take-away food premises is not exceptional. I do not accept the evidence of Mr Leyshon or the assertions of the Council for the reasons already provided in paragraphs [66] to [74], [83] to [96] and [100] to [103] above. As I have found in paragraph [108] above, the added convenience and choice provided by the proposed fast food and take-away food premises with associated drive through facilities is a matter of considerable public interest in this case.
[120] Fourth, the Council submits that, even if there is a need for the proposed development on the subject land, the question arises whether the public interest in approving the proposed development outweighs the public interest in applying the 2003 Planning Scheme. I agree.
[121] With respect to that question, the Council says that the Court of Appeal provided an example of when the public interest in approving a development application might outweigh the public interest in faithfully implementing the planning scheme, with particular reference to the circumstances of this case. The Council says the Court of Appeal reasoned that it may be that the public interest in having a need satisfied by a non-conflicting development, such as a service station, may override the conflict created by the inclusion of conflicting uses within that development, depending on:

[186]

[122] It was common ground between Mr Leyshon and Mr Duane that service stations can and do operate viably as standalone offers. The Council submits there was no evidence that the proposed development could not proceed in the absence of the fast food premises and take-away food premises. Its submission is curious given the Council's position that the Court could not approve that part of the proposed development that involves the service station, even though it complies with the 2003 Planning Scheme.
[123] With respect to the extent of need, the Council submits that the need for the non-conflicting uses is not compelling in this case. It says the need for the service station is not strong (although it is not low either) and there is "a need" for the convenience store because it provides a late night and early morning shopping facility when other facilities are closed, and it has community benefits derived from co-location. I accept the Council's characterisation of the need for the service station use, and the associated convenience facilities. However, for the reasons already provided in this judgment and my earlier judgment, I do not accept that the need for the non-conflicting uses is not compelling. As I have found in paragraph [108] above, the added convenience and choice provided by the proposed fast food and take-away food premises with associated drive through facilities is a matter of considerable public benefit. It demonstrates a compelling need.
[124] With respect to the ramifications of the conflict, I accept the Council's submission that the proposed development would result in the establishment of uses deemed inappropriate in the relevant domains of the 2003 Planning Scheme. As I noted in my earlier judgment, although the proposed service station is a use that ought reasonably be expected by the community, the same cannot be said with respect to the proposed fast food premises and take-away food premises.[83]
[125] The Council also submits that the proposed development results in the loss of the potential use of the subject land for residential uses in circumstances where the subject land is ideally located for those uses because it adjoins existing residential uses and is in close proximity to the existing facilities across Ferry Road. In that regard, the Council relies on the evidence of Mr Leyshon and Mr Reynolds, the town planner retained by the Council.
[126] Mr Leyshon opines that the subject land should preferably be developed for residential uses given it is adjacent to land zoned and used for residential purposes, and it is proximate to existing convenience retail and commercial services and the Bundall employment area. Mr Reynolds also opines that the subject land is very well suited for medium density residential development, being situated between the employment centre of Southport and Bundall, adjacent to public transport routes and adjacent to the existing retail and commercial facilities. In addition, Mr Reynolds says that the subject land is a vacant, multi-unit residential site that is amalgamated and cleared, ready for unit development. On that basis, Mr Reynolds opines that the subject land is ready to add to the housing stock now. He regards the amalgamated parcel as "unusual" and suggests that it distinguishes the subject land from other land so zoned. He says the ability to add to the housing stock now will be lost if the application is approved. He says that, for those reasons, the proposed development does not represent an efficient use of the land for its intended purpose.
[127] I do not regard the Council's submission, or the evidence of Mr Leyshon and Mr Reynolds to which the Council refers, to be persuasive for four reasons.
[128] First, although I accept that the 2003 Planning Scheme permits the subject land to be developed for residential development, I do not accept the subject land is "ideal" for such development. It is located on a six-lane divided State-controlled road that carries approximately 36 000 vehicles per day. This would significantly detract from the amenity provided to persons who might reside on the subject land. In addition, as I noted in my earlier judgment, I accept the evidence of the residents of the area that the character of the area is affected by cars queuing down 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, noise from the outdoor garden area at the Ferry Road Tavern, noise from commercial rubbish trucks on the opposite side of Ferry Road, and lighting from commercial uses on the western side of Ferry Road.[84] Those factors are likely to cause an even greater adverse amenity impact on anyone who would reside on the subject land, as the subject land is more proximate to the sources of impact than the residences of those who gave the evidence of the impacts.
[129] Second, were the proposed development refused, it does not follow that the subject land would be developed for residential development. Leaving aside the features of the area that would make the subject land unattractive for that nature of development, the character of uses intended for the subject land under the 2003 Planning Scheme is not limited to uses of a residential character. Five of the six lots that comprise the subject land are located in the Residential Choice Domain and the other lot is in the Detached Dwelling Domain.[85] As such, under the 2003 Planning Scheme, the land uses contemplated for the subject land include a range of commercial uses such as child care centres, convenience shops, medical centres, cafés, and service stations.[86] Under City Plan 2016, five of the six lots are located in the Medium density residential zone and the other lot is in the Low density residential zone. Although a service station is no longer a use contemplated for the subject land, City Plan 2016 contemplates use of land in those zones for a range of commercial and community purposes such as car washes, child care centres, health care services, a shop, veterinary services, emergency services, educational establishments and places of worship.
[130] Third, I do not accept Mr Reynolds opinions. They are premised on a flawed assumption, namely that the subject land is amalgamated. It is not. As I have already noted, the subject land comprises six separate allotments.
[131] Fourth, it has long been recognised that when considering whether a proposed deviation from a planning scheme is in the public interest, it is relevant to consider the impact of such a deviation on the balance of zones, given it must be assumed that at the time the planning scheme takes effect, the zoning decided upon, and the quantum of the land within each zone, is suitably balanced or in the right proportion for the proper control of land development in that area.[87] Here, there is no suggestion that the failure to require strict adherence to the 2003 Planning Scheme would result in a material reduction in either the quantity or spatial distribution of land available for that nature of development intended by the planning authority to occur in the Detached Dwelling Domain and the Residential Choice Domain. This is unsurprising given the economics experts agree that there are numerous sites which could accommodate future residential growth and the subject land, at 3 000 square metres, would only ever contribute a very small amount to the approximate 1 875 dwellings required to meet population growth in the primary sector. The economics experts also agree that, consequently, the loss of the subject land would probably have limited implications for achieving population targets. I accept this evidence. As such, I am satisfied there is no adverse impact likely to arise for the planning for the Gold Coast in terms of its balance of zones.
[132] The Council submits that a further ramification of approval of the proposed development would be an increase in amenity impacts. In this respect, the Council submits:

[193]

[134] As I have already found in my earlier judgment, although the proposed use of the land for fast food premises and take-away food premises conflicts with the 2003 Planning Scheme, the conflict is not accompanied by any consequent undue impact. When the proposed development is assessed on its merits, and in context, there is no adverse impact likely to arise in terms of noise, air quality and lighting, visual amenity, character, the centres hierarchy, or traffic.[91] In this respect, it is material that the character of uses intended for the subject land under the 2003 Planning Scheme is not limited to uses of a residential character. The land uses contemplated for the subject land include a range of commercial uses.[92] Insofar as the subject land has any residential character, the massing and proportions of the proposed development complies with expectations set by the applicable criteria in the Detached Dwelling Domain Place Code. The proposed development provides for a sensitive and thoughtful transition between the more commercially intensive character perceived along Ferry Road and the more relaxed suburban character of the residential area to the east. In addition, the proposed development, with its proposed landscaping, would enhance the streetscape.[93]
[135] I am satisfied that the fast food premises and take-away food premises would not add any prejudicial effects to the existing amenity beyond the effect caused by the proposed non-conflicting use, being the service station. The service station will operate 24 hours per day whereas the other uses will operate shorter hours.[94]
[136] I do not accept the evidence of Mr Reynolds quoted at paragraph 84 of the Council's submissions and set out in paragraph [132] above. That evidence is premised on the false assumption that the character expectations of the adjoining residents is limited to use of the subject land for residential purposes. Also, I do not accept Mr Reynold's assertion that there is a "different type of traffic". He provides no cogent explanation for it. I also do not accept his evidence that the noise, odour and lighting impacts will be noticeable. Mr Reynolds did not outline the basis for his opinion. It is no more than a bald assertion. In addition, his evidence is not consistent with the evidence of Mr King and Ms Richardson, the noise, air quality and lighting experts retained by K&K and the Council respectively, which evidence I accept.
[137] In my earlier judgment I outlined the reasons I accept the evidence of Mr King and Ms Richardson with respect to these matters. [95] Their evidence included detailed analysis of the potential impacts of the various components of the proposed development. For example, Mr King analysed the odour impacts from fuel vapours, as well as potential odour impacts from kitchen cooking exhaust systems. The evidence of Mr King and Ms Richardson satisfies me that there will be no adverse amenity impacts from the proposed development as a whole, and that the fast food premises and take-away food premises would not add any prejudicial effects to the existing amenity beyond the effect caused by the proposed non-conflicting use, being the service station.
[138] The absence of any prejudicial effects caused by the proposed fast food premises and take-away food premises to the existing amenity beyond the effect caused by the proposed service station is a matter that is only apparent having assessed the proposed development on its merits and in context, including with regard to the particular mix of uses proposed and the design attributes employed by the proposed development. It is a consideration that was unavailable when, in formulating the 2003 Planning Scheme, the local government determined that use of the subject land for fast food premises and take-away food premises would involve incompatible uses.
[139] Finally, in paragraph 89 of its written submissions, the Council says the following matters are also relevant to the public interest issue:

[203]

[145] It seems to me that there are a number of ways to approach whether approving the proposed development serves the public interest to a greater extent than "maintenance of the status quo".
[146] One approach is to consider the public interest in leaving the land in its current state. That is a narrow approach to the public interest served by "maintenance of the status quo".
[147] Here, the subject land is vacant. Photographs of the subject land demonstrate that, in its vacant state, it provides a poor visual amenity outcome for nearby residents. Further, as I have noted in paragraph [128] above, with the subject land in its vacant state, the character of the area is adversely affected by noise from trucks refuelling and making deliveries at the BP service station on the other side of Ferry Road, noise from Ferry Road, noise from the outdoor garden area at the Ferry Road Tavern, noise from commercial rubbish trucks on the opposite side of Ferry Road, and lighting from commercial uses on the western side of [98]rry Road.98 Those factors are likely to cause an even greater adverse amenity impact on anyone who would reside on the subject land as the subject land is more proximate to the sources of impact than the residences of those who gave the evidence of the impacts.
[148] Approval of the proposed development on the subject land would improve the character and amenity outcomes enjoyed by the public. As I noted in paragraph [134] above, the proposed development provides for a sensitive and thoughtful transition between the more commercially intensive character perceived along Ferry Road and the more relaxed suburban character of the residential area to the east. In addition, the proposed development, with its proposed landscaping, would enhance the s[99]eetscape.99
[149] For the reasons provided in paragraphs [147] and [148] above, I am satisfied that a decision to approve the proposed development serves the public interest to an extent greater than the maintenance of the land in its current vacant state. Having said that, I do not consider this to be the appropriate approach to the exercise. This narrow approach can be undertaken without having any regard to the 2003 Planning Scheme. That is not what is contemplated by s 326(1)(b) of the Sustainable Planning Act 2009, nor do I regard it as the exercise contemplated by Sofronoff P.
[150] At the other end of the spectrum is an approach that involves considering the public interest served by approval of the proposed development as compared to the public interest served by compliant development of the subject land. This begs the question: what is the compliant development that one must assume? How does one determine the parameters of such a development? What built form should be assumed? How are the defining characteristics of the compliant built form to be established? Are they determined by the Council advancing a hypothetical design that it says reflects a compliant design? Must the developer accept that the Council's hypothetical design is compliant, or can it challenge, as part of the appeal, any hypothetical advanced by the Council on the basis that it does not, in fact, comply and, as such, the Council's case is premised on a false basis? Is it for the developer to put forward a demonstrably "compliant" design as an alternative to its proposed development? What if the Council does not accept the developer's alternative is compliant? How does one choose the use that is to form the basis of the comparison? Is it one of the range of uses that is able to be implemented with the least amount of scrutiny, such as a use that is self-assessable, or one that is code assessable and meets all of the acceptable outcomes? If so, which of the range of self-assessable or code assessable uses is to be chosen as the basis for the comparison? If the comparison is to be made having regard to a self-assessable or code assessable use, what consideration is given to an impact assessable use that complies with the planning scheme? Does one disregard such a use even though it also is a form of development that accords with the planning scheme? What if there is a greater public need for a compliant impact assessable use than a code assessable use, but the impact assessable use affords less public benefit in terms of amenity considerations? In that circumstance, should the impact assessable "compliant" development form the basis for the comparison, or should the code assessable use form the basis? Does one undertake a full merits assessment of both alternatives in order to decide which compliant development represents the greater public interest before then deciding if there is an even greater public interest provided by the proposed development? How far down this rabbit hole must a developer go to discharge its onus? Does it need to present hypothetical designs for each type of use contemplated as appropriate in the applicable domain or zone and demonstrate the respective need for each hypothetical development? In developing hypothetical "compliant" developments, what, if any, regard should be had to whether it is commercially feasible to deliver the hypothetical developments? Should the "compliant" use be one that is demonstrated to be the highest and best use of the land?
[151] These questions highlight why it is impractical to approach the exercise in this manner. Such an approach ignores the reality that, in assessing the acceptability of a proposed development, a local government is not presented with a binary choice between a non-compliant development and an alternative compliant development. Planning schemes do not advance a particular design option or solution for a particular site. They articulate planning goals and stipulate controls that guide the parameters of development in performance-based terms.[100]
[152] It must also be remembered that the function of the Planning and Environment Court in an appeal is to resolve the issues in dispute between the parties in the individual case. If a party opposed to a development were to advance a case that the public interest of the proposed development is not greater than the public interest in a particular alternative design advanced by it on the basis that the alternative represented a "compliant" development, the developer (as the party with the onus) might feel obliged to present evidence that the supposedly compliant design is in fact not compliant and, as such, the public interest associated with that design is not relevant. Such an approach could turn the appeal into an inquiry into the acceptability of many alternative designs, rather than an assessment of the proposed development itself. One can readily imagine the resulting cost and delay.[101]
[153] In any event, it seems to me that when Sofronoff P's reference to "maintenance of the status quo" is read in the context in which it appears, this approach does not find favour. As Sofronoff P goes on to say:[102]

[208]

[157] The legislation does not require a developer to demonstrate the acceptability of its proposed development by reference to the number of submissions in support of it as compared to the number of submissions lodged objecting to it. This is a matter that the Council has raised in support of its position. As such, before K&K is required to discharge an onus of proof, the Council must first present sufficient evidence to raise the existence or non-existence of the fact it seeks to rely on as an issue, namely that there were a significant number of objections lodged against the proposed development. As I observed in my earlier judgment, in its written submissions the Council asserted that there were 87 properly made submissions objecting to the proposed development, as well as a petition with 83 signatures. In doing so, it cited a statement to that effect in the Town Planning Joint Expert Report. That information contradicts 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. The submissions are not in evidence before the Court. The Council has not established that there were a significant number of objections lodged against the proposed development. In addition, as I observed in my earlier judgment, I do not find it persuasive to refer only to the number of submissions. What is relevant is their content. The Council has not adduced evidence sufficient to properly raise this allegation as an issue that K&K needs to meet.[103]
[158] I accept that the proposed development cannot be conditioned to satisfactorily mitigate the conflicts against the 2003 Planning Scheme. K&K did not contend otherwise. The Council did not otherwise address the relevance of this allegation to the determination of whether the grounds relied on by K&K are sufficient.
[159] The Council did not particularise the allegations made in paragraphs 10 and 11, nor were particulars sought. That is unsurprising given the allegations were made on day 5 of the hearing, after much of the evidence had already been received. I have already addressed the Council's submissions with respect to these allegations.
[160] The only submission raised by the Council that touches on the issue of the public interest served by maintenance of the status quo was that referred to in paragraph [125] above. I do not accept it for the reasons provided in paragraphs [126] to [131] above. In addition, as the Council did not adduce any evidence to demonstrate that, were the proposed development refused, the subject land would be developed for residential development, it is difficult to accept that the public interest that K&K's development must overcome is the public interest in development of the land for a multi-unit residential development.
[161] Assuming it is appropriate to ask whether there is greater public interest in approving the proposed development as compared to the public interest served by a residential development on the subject land,[104] I am satisfied that, in this case, the answer is in the affirmative. The economics experts agree that there are numerous sites which could accommodate future residential growth and the subject land would only ever contribute a very small amount to the some 1 875 dwellings required to meet population growth in the primary sector. I accept this unchallenged evidence. I also accept the unchallenged evidence of Mr Duane that many sites are likely to be more appropriate for medium density residential development, offering greater amenity afforded by views to the water and proximity to surrounding parks and other facilities, as compared to the amenity offered by the subject land given its location along a busy road. The same cannot be said of land in the trade area able to accommodate the proposed development. As was acknowledged by Mr Leyshon, the subject land has locational attributes that are not common for the eastern side of Ferry Road.
[162] Another possible approach to determining whether approving the proposed development serves the public interest to a greater extent than "maintenance of the status quo" is to consider the public interest in the outcome that would follow from a decision to refuse, being a decision that would maintain the status quo in town planning terms.
[163] In this case, a decision to refuse the proposed development has the consequence of leaving the land in its vacant state and available, in a town planning sense, for development in a manner intended by the 2003 Planning Scheme. However, it is discordant with a decision that reflects that there is "public interest in certainty that the terms of a Planning Scheme will be faithfully applied".[105] If it is to be assumed that it is in the public interest to have confidence that the 2003 Planning Scheme will be faithfully applied, in this case the public would reasonably expect that the proposed fast food premises and take-away food premises would be refused and that the proposed service station would be approved.
[164] The consideration of the nature and extent of the conflict also highlights the extent to which a decision to approve of the proposed development would subvert the public interest in certainty that the terms of a Planning Scheme will be faithfully applied. As is evident from my findings in paragraphs [37] and [38] above, the proposed development accords with the public interest in certainty that the terms of the Detached Dwelling Domain Place Code, the Residential Choice Domain Place Code, the Retail and Related Establishments Code (being the specific development code applicable to take-away food premises and fast food premises) and the Service Station Code will be faithfully applied, as well as the strategic planning reflected in the 2003 Planning Scheme. The extent to which a decision to approve the proposed development departs from the public interest in certainty that the terms of the 2003 Planning Scheme will be faithfully applied is limited to the extent to which it involves the use of the subject land for fast food premises and take-away food premises. On the other hand, in this case a decision to refuse the proposed development is not entirely consistent with the public interest in certainty that the terms of the 2003 Planning Scheme will be faithfully applied. As I have already mentioned, on a faithful application of the 2003 Planning Scheme, the public would reasonably expect that the proposed service station would be approved. A decision to refuse the proposed development would deny the public of benefits that they would reasonably expect to enjoy, namely those associated with the provision of a service station at a location that complies with the 2003 Planning Scheme.
[165] The combined effect of the following eight matters persuade me that this is an exceptional case where the public interest in approval of the proposed development is greater than the public interest in upholding the 2003 Planning Scheme by refusing the development application.
[166] First, the development of the proposed service station (and its associated convenience store) on the subject land would not conflict with the 2003 Planning Scheme. There is a demonstrated need for that component of the proposed development. Consequently, it is in the public interest to satisfy the demonstrated need for the service station by its provision on the subject land. The 2003 Planning Scheme identifies the subject land as part of the land available to ensure the community's need for adequate access to service stations is met. The provision of a service station on the subject land would be reasonably anticipated were the 2003 Planning Scheme to be faithfully applied.
[167] Second, I am satisfied that there is a compelling need for the overall proposed development on the subject land.[106] There is a need for a further service station to serve the residents of the trade area. The well-being of those residents would also be improved by the proposed provision of fast food premises and take-away food premises with associated drive through facilities on the subject land. As I have already noted above, the added convenience and choice provided by the proposed development, including the proposed fast food and take-away food premises with associated drive-through facilities, is a matter of considerable moment. These facilities will increase the physical wellbeing of the community by providing convenient access and choice to those seeking food who are working longer hours or on shift work or who are otherwise time poor. The need of the residents of the trade area that the proposed development will address is not otherwise able to be met within the trade area.[107] Accordingly, I am satisfied that the residents of the trade area have an interest in seeing their need for the proposed development satisfied by its provision on the subject land, rather than at a location that would not conflict with the 2003 Planning Scheme.
[168] Third, the conflicting uses, being the fast food premises and the take-away food premises, are small parts of the overall proposed development, which also involves the unobjectionable use of the subject land for a service station.[108] As was recognised by the Court of Appeal, it is relevant that the conflicting uses of take-away food premises and fast food premises are mere adjuncts to the dominant aim of K&K to develop a profitable service station.[109]
[169] Fourth, even if there was land available in the trade area that could deliver the public benefits that would be delivered by the proposed development, which there is not,[110] I am satisfied that it is unlikely that the proposed fast food premises and take-away food premises with their associated drive-through facility would proceed as stand-alone uses. As such, if the subject land were only permitted to be developed in accordance with the 2003 Planning Scheme, the public would be denied the benefits to their well-being associated with the convenience and choice provided by the proposed fast food premises and take-away food premises. I do not consider this to be in the public interest.
[170] Fifth, although part of the proposed development conflicts with the 2003 Planning Scheme, the conflict is not accompanied by any consequent undue impact. As I have noted in paragraph [134] above, when the proposed development is assessed on its merits, and in context, there is no adverse impact likely to arise in terms of noise, air quality and lighting, visual amenity, character, the centres hierarchy, [111]traffic.111 To the contrary, the proposed development, with its proposed landscaping, would enhance the amenity o[112]he area.112 As has been acknowledged by the Court of Appeal, "it must be a matter of public interest ... that the project under consideration will not destroy local amen[113]."113
[171] Sixth, as I have found in paragraphs [135] to [138] above, the fast food premises and take-away food premises would not add any prejudicial effects to the existing amenity beyond the effect caused by the proposed non-conflicting use, being the service station. This is a matter that only became apparent having assessed the proposed development on its merits and in context, including with regard to the particular mix of uses proposed and the design attributes employed in the proposed development. It is a consideration that was unavailable when, in formulating the 2003 Planning Scheme, the local government determined that use of the subject land for fast food premises and take-away food premises would be incompatible uses.
[172] Seventh, as I have noted in paragraph [131] above, there is no suggestion that the failure to require strict adherence to the 2003 Planning Scheme would result in a material reduction in either the quantity or distribution of land available for that nature of development intended by the planning authority to occur in the Detached Dwelling Domain and the Residential Choice Domain. The evidence demonstrates there is adequate provision of such land. As such, there is no adverse impact likely to arise for the planning for the Gold Coast in terms of its balance of zones. This has long been recognised as a matter of public interest when considering whether to permit a proposed deviation from a plann[114] scheme.114
[173] Eighth, in this case one would be cautious about assuming that the 2003 Planning Scheme is a comprehensive expression of what will constitute, in the public interest, the appropriate development of the subject land. That is because although the 2003 Planning Scheme made it clear that it was not in the public interest to develop the subject land for fast food premises and take-away food premises, the contemporary expression of the public interest in the 2016 Planning Scheme suggests otherwise.
[174] In the circumstances outlined above, K&K has satisfied the requirements of s 326(1)(b) of the Sustainable Planning Act 2009 and demonstrated that it is appropriate to approve the proposed development.

[211]

[176] Section 495 of the Sustainable Planning Act 2009 stipulates that the Court must assess the development application against the planning scheme in force at the time the development application was lodged. It permits the Court to give weight to a new or amended planning scheme that comes into force after that time. In exercising the discretion, the provision does not require the Court to undertake a fresh assessment against a new or amended planning scheme. The Court's discretion is broad. It must be exercised judicially.[115]
[177] The effect of s 495 of the Sustainable Planning Act 2009 is similar to a provision introduced to the Local Government Act 1936 (Qld),[116] following a decision of the Local Government Court in Behrens v Caboolture Shire Council,[117] and to like provisions incorporated in the planning legislation in Queensland ever since.[118]
[178] Behrens v Caboolture Shire Council[119] involved an appeal against the local authority's refusal to allow a rural residential subdivision. After the third day of the hearing, the appeal had to be adjourned because of the illness of the presiding judge. During the adjournment, which was lengthy, the local authority amended the relevant by-law to prohibit subdivision of any land outside a 5 000 metre radius of the Caboolture Post Office (as the appellant's land was in that case).
[179] As Professor Fogg records in Fogg "Land Development Law in Queensland" (1987) p 101, the Judge "showed some restiveness with the course of action he felt obliged to follow". The law at that time required the Court to apply the law at the date of hearing, as well as the facts and circumstances relevant at that time.[120] Had that not been the law, Mylne DCJ would have approved the whole of the subject land for subdivision.[121]
[180] Absent s 311 and s 495(2)(a) of the Sustainable Planning Act 2009, a hearing anew would entail assessing and deciding the development application on the law at the time the court makes its decision, which would include changes to relevant planning instruments. The inclusion of s 311 and s 495(2)(a) of the Sustainable Planning Act 2009 makes it clear that the legislature intended that an outcome such as that which occurred in Behrens v Caboolture Shire Council[122] should be avoided. The effect of those provisions is to require the Court to assess the development application against the statutory instruments that applied at the time the development application was properly made. Although those provisions also permit the Court to give weight to later instruments, whether that occurs is a matter for the Court in the exercise of its discretion.

[267]

[210] For the reasons provided in paragraphs [205] to [209] above, I do not find the Council's submissions with respect to s 5.3.3(c) persuasive. In any event, it is not necessary to finally determine whether compliance with the purpose and overall outcomes of the Service station code demonstrates compliance with the Service station code as a whole for an impact assessable application. That is because s 495 of the Sustainable Planning Act 2009 does not require the Court to undertake the process contemplated by s 326(1)(b) in determining the weight to be afforded to a new planning scheme. Also, when considering the weight to be afforded to City Plan 2016, to the extent that the nature and extent of conflict is considered, it is relevant to have regard to the nature and extent of any non-compliance and the nature and extent of compliance. Together those matters provide important context when considering the nature and extent of conflict with City Plan 2016 overall.
[211] When the Service station code is read as a whole and in conjunction with the balance of City Plan 2016, it is apparent that the requirement in performance outcome PO4 that service stations not abut a residential land use is informed by the planning goal that service stations should be located to avoid adverse impacts on residential land uses. In this case, that goal is not compromised by the proposed development.
[212] Second, although the provision of a service station on the subject land results in conflict with one provision of the Low density residential zone code and one provision of the Medium density residential zone code, there is no allegation of conflict with any of the performance outcomes of the code. There is also no allegation of conflict with the many overall outcomes in City Plan 2016 that set standards to ensure the retention of a high level of residential amenity and the protection of the local character of the area.[134] As I have already noted, because of its particular design attributes, the proposed development will enhance the character and amenity of the locality in which it is proposed.
[213] Third, the significance of the potential conflict with City Plan 2016, in terms of the extent of the trade area served and the proposed drive-through facility, is reduced by the absence of unacceptable impact on the centre hierarchy and the absence of adverse impacts occasioned by the proposed development.[135]

[269]

[214] As I noted in my earlier judgment,[136] the Council contends that significant and overwhelming weight should be afforded to City Plan 2016 because it is a very recent statement of planning intention for the area, which the Court would be slow to cut across. K&K disputes that this justifies an exercise of the discretion in a manner that results in refusal of the proposed development. There are two considerations that K&K urges me to consider in that respect.
[215] The first is that K&K says approval of the proposed development would not cut across or undermine the implementation of Council's planning policies in City Plan 2016. The Council's planning policies are still equally achievable in other cases, regardless of whether the proposed development is approved.[137] I agree. This is relevant to the exercise of the discretion. I also consider it to be a consideration of particular significance given my observations in paragraphs [15] and [176] to [180] above.
[216] The second involves matters of fairness. The Council does not cavil with K&K's submission that fairness to an applicant has a role to play in determining the weight to give to a draft, or adopted, planning scheme amendment.[138]
[217] In my earlier judgment I determined that, in the circumstances of this case and having regard to matters referred to in paragraph [396] of that judgment, 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.[139]
[218] K&K submits that my determination about fairness was unaffected by the reasons for judgment delivered by the Court of Appeal. The Council does not dispute this. Nevertheless, the Council submits that the reasoning of the Court of Appeal invites me to exercise the discretion afresh, and the remittal order requires it. It says that involves a reconsideration of the discretion, taking into account the Court of Appeal's finding on the neighbourhood centre point. It says that also extends to a consideration afresh of the fairness point, which the Council submits I should reconsider for the multitude of reasons it now advances.
[219] The Council now submits that each of the seven matters raised by K&K, as recorded in paragraph [396] of my earlier judgment, do not support a finding that giving significant and determinative weight to CP2016 would be unfair to K&K. As I noted in my earlier judgment, at the original hearing the Council did not cavil with these matters, nor submit that they were not relevant to the Court's exercise of discretion.[140] The seven matters raised by K&K at the original hearing, and the Council's submission in response raised for the first time at the remitted hearing, are considered below. While I address them individually below, that is because the Council's submissions approach them in that manner. I am cognisant that K&K does not rely on each individually to support its position: it relies on their combined effect.
[220] The first background matter that K&K submits is relevant when considering the weight to be given to City Plan 2016 is the view expressed by Mr Reynolds that, in determining the weight to be given to a planning instrument, fairness to the applicant is relevant. The Council now submits:

[289]

[235] K&K did not allege that the Court should place weight on City Plan 2016.
[236] On 12 May 2017, pursuant to an order of this Court made on 27 April 2017, the Council amended its reasons for refusal. 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). The only allegations with respect to City Plan 2016 were allegations of conflict. The document was drafted in a manner that appeared to be ignorant of the effect of s 495 of the Sustainable Planning Act 2009. It appeared to assume that the Court was obliged to assess the development application against City Plan 2016 and that, to secure approval, K&K was required to demonstrate that there were matters of public interest that would justify approval despite conflict with the 2003 Planning Scheme and City Plan 2016. This is not what s 495 requires.
[237] The Council further amended its reasons for refusal on 28 July 2017. 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).
[238] The Council again amended its reasons for refusal on 7 September 2017 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 on 20 October 2017 permitted the Council to rely on those issues in dispute. As with the earlier documents, this document was drafted in a manner that appeared to be ignorant of the effect of s 495 of the Sustainable Planning Act 2009. Again, it appeared to assume that the Court was obliged to assess the development application against City Plan 2016 and that, to secure approval, K&K was required to demonstrate that there were matters of public interest that would justify approval despite conflict with the 2003 Planning Scheme and City Plan 2016. There is no such obligation under s 495.
[239] On the first day of the hearing, the Council produced a document titled "Respondent's Consolidated Grounds for Refusal", which it submitted consolidated the grounds in the decision notice and the other documents. 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. The Council's document did not allege that weight (let alone determinative weight) should be placed on City Plan 2016. As I found in my earlier judgment, at best, the issue the Council put in issue 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.[150]
[240] During the opening, K&K drew the Court's attention to the allegations made by the Council about City Plan 2016. It noted that the allegations were only allegations of conflict, which it said fell well short of the type of allegation required for one to consider City Plan 2016.[151] K&K raised the absence of an allegation that the new planning scheme should be given weight; and the absence of an allegation that this is a case that involves compromising some forward planning decision or that failure to give City Plan 2016 weight would make it more difficult to implement contemporary planning. K&K also indicated that, should the Council seek to allege, at that late stage, that City Plan 2016 should be given overwhelming weight, issues of fairness arise.
[241] Having heard the criticisms made by K&K about the inadequacy of the Council's allegation with respect to City Plan 2016, on 10 November 2017 (day 5 of the hearing), the Council sought, yet again, to change its position. With the agreement of both parties, I made an order redefining the issues in dispute by reference to a document titled "Respondent's Points of Refusal".[152] Although K&K agreed to an order permitting the Council to amend its issues in that manner, it indicated that it would seek to be heard later about the consequence of the late introduction of the new issues.
[242] The Council first alleged that significant and overwhelming weight should be given to City Plan 2016 pursuant to s 495(2)(a) of the Sustainable Planning Act 2009, and the basis for its allegation,[153] in the document produced on 10 November 2017. By that time, the only provision relied on by the Council that would be irrelevant to assessment of a development application (superseded planning scheme) then made would be s 6.2.2.2(2)(a)(v) of the Medium density residential zone code. It is in that context that K&K raised the history of the matter and the fairness point, and that I made my earlier findings.
[243] In addition to the submissions now made by the Council responding to matters raised by K&K addressed above, the Council now advances further submissions about why it is not unfair to give City Plan significant and determinative weight. The Council's further submissions are premised on a selective history of the matter and how the issues in dispute evolved. They are presented in a manner that is favourable to the Council but not truly reflective of the fairness as between the parties. The Council's submissions ignore many of the matters referred to in paragraphs [234] to [242] above. As such, I find them unpersuasive.

K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40

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Judgment (448 paragraphs)

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Legislation Cited (6)

Cases Cited (9)