Middle Pond Pty Ltd v Whitsunday Regional Council & Ors [2024] QPEC 45

ss 45Middle Pond Pty Ltd v Whitsunday Regional Council & Ors [2024] QPEC 45 | Case summary | Zoe

[25]

[1] Middle Pond Pty Ltd wants to reconfigure land at 82 Shute Harbour Road, Cannonvale ("the subject land") into several new lots ("the proposed reconfiguration") and to commence using one of the new lots for a self-storage facility ("the proposed self-storage facility").
[2] To facilitate its goal, Middle Pond Pty Ltd made a single development application to Whitsunday Regional Council ("the Council") in which it sought a development permit for the reconfiguration of lots and a development permit for the material change of use of one of those lots for the purpose of a self-storage facility.
[3] The subject land is in the Low-medium density residential zone of the Whitsunday Regional Council Planning Scheme 2017 ("the Planning Scheme"), which is intended to provide for various residential uses. There is a stated exception that permits certain non-residential uses in the Low-medium density residential zone. A self-storage facility does not fit within the exception.
[4] The proposed reconfiguration was code assessable, whereas the application for the material change of use was impact assessable.
[5] As Shute Harbour Road is a State-controlled road and a State transport corridor, both components of the development application required referral to the Co-respondent, namely the Chief Executive, Department of State Development, Infrastructure, Local Government and Planning ("the Chief Executive") as a referral agency. In the referral agency response, the State Assessment and Referral Agency, as delegate of the Chief Executive, directed the Council to impose conditions on any approvals given by the Council.
[6] The development application was publicly notified. The Council received 31 properly made submissions about it. One expresses conditional support while the rest oppose the proposed self-storage facility. Most express the view that the proposed self-storage facility should be in an industrial area. The First Co-respondents by Election, Catherine Dryland and Hamish Reid, live near the subject land and made a properly made submission opposing the proposed self-storage facility.
[7] The Council gave a development permit authorising the reconfiguration of lots subject to conditions but refused that part of the development application that related to the proposed self-storage facility.
[8] This is an appeal by Middle Pond Pty Ltd against:

[29]

[13] Under s 43 of the Planning and Environment Court Act 2016, the appeal proceeds by way of hearing anew, subject to ss 46(2) and (5). The Court has a broad discretion in determining the appeal. It is to be exercised judicially and subject to the limitations in the relevant statutes. The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect.
[14] The Court must assess the relevant part of the development application, being the impact assessable material change of use, under s 45(5) of the Planning Act 2016 as if it were the assessment manager: Planning and Environment Court Act 2016 s 46(2). The Court's decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 59(3) and 60 of the Planning Act 2016.
[15] Sections 45(5)(a)(i) and (7) of the Planning Act 2016 mandate assessment against assessment benchmarks in a categorising instrument in effect when the development application was properly made. In this case, that is version 3.7 of the Planning Scheme. Weight can be given to version 4.7 of the Planning Scheme, which took effect on 3 October 2023 and is still in effect: s 46(2) of the Planning and Environment Court Act 2016 and s 45(8) of the Planning Act 2016. Middle Pond Pty Ltd contends that there are no relevant amendments to be considered. The Council drew my attention to the change in mapping in version 4.7 with respect to nearby land fronting Shute Harbour Road. Those parcels containing commercial uses have been rezoned from the Low-medium density residential zone to the Local centre zone. That said, like Middle Pond Pty Ltd, the Council submits that there are no material differences in the drafting of provisions, or mapping, between versions 3.7 and 4.7 that are relevant to the determination of this appeal. No party contends otherwise. As such, references to the Planning Scheme should be read as references to version 3.7 unless otherwise specified.
[16] The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309.
[17] Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at 803-13 [35]- [86]. That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328 at 333-7 [12]‑[22].
[18] As is explained in those authorities:

[35]

[22] The subject land is a 15,298 square metre parcel of land that is comprised of lots properly described as Lots 1 and 4 on RP737339. It has an irregular shape with frontages of approximately 190 metres to Shute Harbour Road, approximately 40 metres to Barnes Place and approximately 200 metres to Tropic Road.
[23] The subject land is predominantly vacant. It contains some established vegetation along the south-western boundary. Its highest point is in the south-western corner of the subject land and is approximately 19 metres Australian Height Datum. The lowest point is in the north-eastern corner and is approximately 8 m Australian Height Datum.
[24] The subject land is on the southern side of Shute Harbour Road, which is a two-lane, two-way road under the control of the Department of Transport and Main Roads. Shute Harbour Road serves as the main road linking Airlie Beach to the Bruce Highway and Proserpine. The subject land also has frontages to Tropic Road and Barnes Place, both of which are two-lane, two-way Council-controlled roads. There is currently no formalised vehicular access onto the subject land from any of these roads.
[25] There is disagreement between Middle Pond Pty Ltd and the Council about the character of the locality in which the subject land sits.
[26] Middle Pond Pty Ltd relies on opinions expressed by Mr Simon Forsyth and Mr Curtis, the town planner and visual amenity and architecture experts retained by it, to attribute a strong commercial character to the surrounding area. I do not accept Middle Pond Pty Ltd's characterisation for three reasons.
[27] First, Middle Pond Pty Ltd relies on opinions expressed by Mr Curtis, but fails to confront the concessions made by Mr Curtis during cross-examination that detract from the reliability of his opinions.
[28] Second, I do not accept Mr Forsyth's opinions about the character of the area. His opinions are founded, in large measure, on a desktop analysis of the uses along Shute Harbour Road that ignores:

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[29] Third, the evidence on which Middle Pond Pty Ltd relies does not accord with views I have formed having regard to other evidence that I accept, including the many photographs of the area, the evidence of Mr Chris Buckley, the town planner retained by the Council, and the concessions made by Mr Curtis. The evidence that I accept reveals the following.
[30] The broader locality is characterised by an urban settlement pattern that is primarily structured around Shute Harbour Road, which meanders from Cannon Valley to the south-west through Cannonvale and on to Airlie Beach to the north-east.
[31] Within that broader context, the subject land sits in a locality that is characterised by the picturesque backdrop that is provided by the vegetated slopes of Conway National Park to the south-east. The topography climbs from the southern side of Shute Harbour Road towards Conway National Park. Between the subject land and the National Park are vegetated slopes containing a scattering of houses on moderate sized lots.
[32] Immediately opposite the subject land, on the northern side of Shute Harbour Road, there is low-density residential development comprising single detached dwellings on moderate sized lots. Further north is the coastline. The residential development to the north of Shute Harbour Road turns its back on the road and is substantially screened from view by landscaping. As was accepted by Mr Curtis during cross-examination, the residential development on the northern side of Shute Harbour Road presents a landscaped character to Shute Harbour Road: it does not have a commercial appearance. During cross-examination, Mr Forsyth also accepted that the area to the north of Shute Harbour Road presents as a vegetated area with glimpses of residential rooves and has no commercial appearance.
[33] To the west of the subject land, there is a smattering of commercial uses fronting Shute Harbour Road. The closest is a small cluster of commercial uses about 200 metres to the west of the subject land. Those commercial uses are contained in several buildings. Apart from one, they are of a residential scale. The largest building is about the size of a residential shed. It is not visible from Shute Harbour Road because of extensive, lush vegetation. Further to the west, on the corner of Shute Harbour Road and Valley Drive, is a veterinary surgeon. From the aerial photographs, it appears to be of a house scale and surrounded by dense vegetation. Yet further to the west along Shute Harbour Road, approximately 800 metres from the subject land, is the Reef Gateway Hotel.
[34] Each of these commercial uses to the west is separated from the other commercial uses by a large, vacant parcel of land that is zoned for residential use. There is also existing residential development between the closest commercial cluster and the veterinary surgeon.
[35] Along Shute Harbour Road, to the east of Tropic Road, there are some commercial uses. The nearest is separated from the subject land by Tropic Road. It is a Reece Plumbing store. It sits on an isolated parcel that is separated from the balance of the commercial uses to the east and the constructed carriageway of Shute Harbour Road by a wide, unconstructed, and vegetated road reserve known as Coyne Road. The store is setback from the Tropic Road frontage behind a low hedge. As can be seen in the photographs, the store does not present a large expanse of wall in a single plane. Rather, the visual mass of the building is broken down by stepping and recessing of the external walls. The combination of articulation and the adoption of a predominance of dark colours that blend with the vegetated backdrop result in a building with a small-scale appearance.
[36] On Tropic Road, the Reece Plumbing store is adjoined to the south by a vacant parcel zoned for residential use. Further south along Tropic Road, opposite the subject land, is a childcare centre. It is setback from the frontage of Tropic Road behind a small hedge and a hardstand area that serves as a carpark. Apart from the hardstand area, the childcare centre has the appearance of a sprawling, low-set house.
[37] Returning to Shute Harbour Road, to the east of the unconstructed road reserve of Coyne Road, the orientation of Shute Harbour Road deviates. The turn in the road creates a visual disconnect between land uses to the west of the roundabout and those to the east. To the east of the unconstructed road reserve of Coyne Road, there is a strip of commercial uses interspersed with residential uses fronting Shute Harbour Road. The largest of the commercial uses to the east of the intersection is Bunnings Warehouse. It is on the corner of Shute Harbour Road and Pandanus Drive. It is approximately one kilometre from the subject land and presents a façade approximately 94-metres-long to Shute Harbour Road. It is visually disconnected from the subject land by reason of the winding nature of Shute Harbour Road. The balance of the commercial uses between the subject land and Bunnings Warehouse are of a modest scale, with facades fronting Shute Harbour Road in the order of 20 to 25 metres in width.
[38] I accept the opinion of Mr Buckley, and Mr Curtis's concession during cross-examination, that the roundabout at the intersection of Shute Harbour Road, Tropic Road and the unconstructed road reserve of Coyne Road marks a noticeable and material change in character between land to the west of the roundabout, including the subject land, and land to the east of Tropic Road.
[39] Mr Buckley opines that the locality surrounding the subject land does not have a commercial use character. Having regard to the photographs before me, I agree. Although there are commercial uses that front Shute Harbour Road, they do not convey that the locality has a commercial, or a mixed-use, character. This is because of the combined effect of the distance between the subject land and the other commercial uses, the intervening vacant parcels of land, the extensive vegetation that screens the proximate commercial uses to the west, the intervening road reserve to the east, and the bend in Shute Harbour Road proximate the roundabout intersection with Tropic Road. The absence of commercial character is also informed by the visible land use pattern that rises behind the subject land to the south and across Shute Harbour Road to the north. Those areas present as residential areas.
[40] Overall, the existing land uses in the surrounding area are predominantly characterised by a mix of low density, single detached dwellings. The residential uses are punctuated with limited commercial uses. The land uses, both residential and commercial, present a low intensity built form with significant landscaping that provides an attractive setting.

[43]

[42] A Warehouse use in turn forms part of the "Industry activities" defined activity group.
[43] Additionally, the proposed self-storage facility is to include ancillary uses of showroom, office and caretaker's accommodation. Each of those ancillary components are not sought to be established as separate and distinct uses. They are integral to the proposed self-storage facility use.
[44] In this case, the uses described above, and their appropriateness on the subject land, are informed by aspects of the proposed self-storage facility that define its location, built form parameters, design, landscaping and access.
[45] The proposed self-storage facility is to be located on proposed lot 100, which comprises 8,685 square metres of the subject land. Proposed lot 100 extends across the entire frontage of the subject land to Shute Harbour Road, which is approximately 190 metres. It also occupies the entire frontage to Barnes Place and approximately 75 metres of the frontage to Tropic Road.
[46] The proposed self-storage facility is to be developed across two stages. Stage 1 is to comprise Building A, which will locate near the corner of the intersection of Shute Harbour Road and Tropic Road. It is to contain a self-storage facility of 3,294 square metres comprising 230 storage units, an ancillary showroom of 111 square metres and a caretaker's accommodation of 131 square metres. Stage 2 is to comprise Building B, which is proposed at a higher elevation at the corner of Shute Harbour Road and Barnes Place. It is to contain a self-storage facility of 3,874 square metres comprising 262 storage units.
[47] The total self-storage facility floorspace across the two stages of development is 7,168 square metres, which is to provide a total of 492 storage units. The proposal plans provide an indicative storage layout. Middle Pond Pty Ltd proposes to use a modular internal construction so that the storage unit sizes can change in response to customer demand.
[48] The proposal plans show an offering of 14 different storage unit sizes ranging from two square metres to 21 square metres, with an average unit size of 10.8 square metres. The internal layout would allow for the storage of jet skis, small boats and small camper trailers, but not medium to large boats or caravans.
[49] The built form of the proposed self-storage facility involves:

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[88] I accept each of these matters. However, they present an incomplete picture.
[89] The Low-medium density residential zone code identifies that it is residential character and amenity that is planned for land in the Low-medium density residential zone: see, for example, ss 6.2.10.2(3)(b), (c), and (d)(iii) of the Planning Scheme. The residential character and amenity is to be protected. The residential development in the zone is intended to have a low to medium rise built form, with a maximum height of 12 metres.
[90] Although non-residential development is anticipated in the immediate locality, Middle Pond Pty Ltd's submissions do not confront that the Planning Scheme restricts the type of non-residential use and its form, scale and function: see ss 6.2.10.2(1) and (3)(d) of the Planning Scheme (paragraphs [59], [60] and [63] above).
[91] Further, the amendment of the Planning Scheme to include the commercial development along Shute Harbour Road in the Local centre zone is indicative that the character of those uses is not to be expected in the Low-medium density residential zone.
[92] As for the relevant guidance provided by the Multi-unit uses code, the purpose of the code is to ensure that low-medium density residential uses are of a high-quality design that appropriately responds to local character and amenity considerations: s 9.3.10.2(1) of the Planning Scheme. That purpose is to be achieved through the overall outcomes.
[93] The overall outcomes require that a multi-unit use is visually attractive with a built form that addresses the street and integrates with surrounding development: s 9.3.10.2(2)(a) of the Planning Scheme. A multi-unit use must also incorporate a building design that responds to the character of the local area: s 9.3.10.2(2)(b) of the Planning Scheme. To achieve that purpose, a multi-unit use must incorporate high quality landscaping and well-designed, useable, communal and private open space areas that provide visual relief from the built form: s 9.3.10.2(2)(c) of the Planning Scheme.
[94] An alternative means of achieving the purpose of the Multi-unit uses code is through compliance with the performance outcomes or the acceptable outcomes: s 5.3.3(4)(c) of the Planning Scheme.
[95] The acceptable outcomes include some built form metrics that provide a guide to the scale and mass of buildings that may be expected. For example:

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[101] Middle Pond Pty Ltd contends that when the built form of the proposed self-storage facility, and its character and visual impacts, are assessed against relevant assessment benchmarks of the Low-medium density residential zone code, the proposed self-storage facility performs favourably.
[102] The overall outcome in s 6.2.10.2(3)(d)(ii) of the Low-medium density residential zone code calls for consideration of whether a non-residential use is small-scale and low intensity. The overall outcomes in ss 6.2.10.2(3)(b), (c), and (d)(iii) of the Low-medium density residential zone code each call for a broader assessment of a proposed development's compatibility with residential character.
[103] As I have already mentioned, Middle Pond Pty Ltd concedes that the proposed self-storage facility is not small-scale but submits that it is low intensity.
[104] Relevant indicia of the intensity of the use include the hours of operation, the extent and duration of lighting and the volume of traffic associated with the proposed development: Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32; [2018] QPELR 1026, 1036 [43].
[105] I am satisfied that the proposed self-storage facility is low intensity. The size of the proposed buildings coupled with extensive hardstand manoeuvring and parking areas creates an intense built form. That said, there are no emissions-based amenity or traffic issues raised against the proposed self-storage facility. The traffic volumes are expected to be low, with estimated daily trip generation rates of 96 vehicles on a weekday and 83 vehicles on a weekend, being much less traffic than a multiple dwelling would generate. There is expected to be minimal foot traffic. It is also unlikely that the proposed self-storage facility will attract industrial users. The proposed regular hours of operation are between 6 am and 7 pm, with access outside those hours only by arrangement with the onsite manager. This is a matter that lends weight to its approval. With that in mind, I turn to the broader assessment of the proposed self-storage facility's compatibility with residential character.
[106] The term "compatible" is not defined in the Planning Scheme. The Macquarie Dictionary defines it as, relevantly:[1]

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[107] It is a term with a degree of elasticity and flexibility. Development is compatible with local residential character and amenity if it is capable of existing in harmony with that character and amenity: Andema Pty Ltd v Noosa Shire Council [2020] QPEC 46; [2021] QPELR 783, 790 [28] citing Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPEC 25; (2017) 224 LGERA 166; [2017] QPELR 628.
[108] The character of a locality is the aggregate impression formed having regard to the individual features and traits of the existing development, landscaping and natural environment in the street or locality. It is also informed by the perceptions or expectations that people hold about a place, which may be influenced by the existing attributes of the area and the planning intentions for the area: North Harbour Holdings Pty Ltd v Moreton Bay Regional Council & Anor [2024] QPEC 21, [237]-[240]; McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, 984 [49]; Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521, 524 [20].
[109] I have considered the existing scale and character of surrounding development and its contribution to the streetscape in paragraphs [22] to [40] above. I have addressed the intended visual amenity and character impacts for development on the subject land and the surrounding area in paragraphs [84] to [98] above. The proposed self-storage facility does not perform well when considered in that context.
[110] I accept the evidence of Mr Buckley that modern self-storage facilities are generally designed to accommodate many storage units. Consequently, they are either land consumptive or involve multiple levels. Their built form is often large and quite different in scale and composition to acceptable design outcomes in residential areas. The same is true of the proposed self-storage facility.
[111] I have already made findings about several parameters that inform the visual and character impacts of the proposed self-storage facility in paragraphs [45] to [54] above. To those findings, I add the following.
[112] It is unsurprising that Middle Pond Pty Ltd accepts that the proposed self-storage facility use is not small scale given the evidence of the experts. Mr Forsyth acknowledges that the proposed self-storage facility does not have a small-scale built form. Mr Buckley is of a similar view. Mr Curtis accepts that the built form would be significantly larger than residential buildings in the area and is not small scale.
[113] As I have already mentioned, the proposed self-storage facility has more than 7,400 square metres in gross floor area and a site cover of more than 3,750 square metres. In those respects, it is comparable in scale to the Bunnings Warehouse, which has an indoor floor area of less than 3,400 square metres.
[114] Mr Curtis accepts that most people will perceive the proposed built form as a single building and acknowledges that the length of the built form is greater than the length and width of typical houses. During cross-examination, he also acknowledged that:

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[120] As to the first, Mr Curtis says that variations in the external cladding, fenestration and external colourations create legible segments and a visual rhythm that animates the façade's appearance and modulates the length of the built form. He says that these design features create an assemblage of smaller scale elements that have approximate widths like existing building forms in the surrounding area, being in the order of 12 to 18 metres. In his view, these design features prevent the buildings having a singular, monolithic appearance.
[121] When pressed about the design elements that reflect, and are compatible with, residential development, the only elements that Mr Curtis identified were "potentially the corner feature" of the showroom and the caretaker's office in proposed Building A and the fenestration provided by the large fixed-pane windows.
[122] I am not persuaded that these elements are compatible with existing or intended development in the surrounding area. Mr Curtis was unable to identify any building in the locality with windows of a scale like that proposed. He acknowledged that the windows were themselves the scale of some houses. In addition, on my review of the plans, projections and elevations of the proposed self-storage facility, the caretaker's component of proposed Building A to which Mr Curtis referred is coloured a vibrant yellow and has a prominent parapet at the top that gives that part of the building a three-storey appearance.
[123] I accept that, in some cases, design features such as those identified by Mr Curtis, may animate the appearance of a façade, modulate the length of the built form, and reduce the extent to which a building has a singular, monolithic appearance. On my review of the plans, projections and elevations depicting the proposed self-storage facility, I am not persuaded that the design attributes effectively do so in this case.
[124] As I have mentioned, Mr Curtis also relies on landscaping to inform his view that the visual impact is acceptable.
[125] The details on the landscaping plan show that the planting along most of the Shute Harbour Road frontage is to involve shrubs interspersed with medium columnar trees. Medium to large spreading shade trees are only proposed on the corners of proposed lot 100. As such, the landscape concept plans demonstrate that the proposed landscaping will only partially screen the built form. This was accepted by Mr Curtis, who acknowledged that there was no intention to hide the proposed buildings behind landscaping. To the contrary, the proposed self-storage facility is likely to seek to promote itself to the public to some degree, such as through the adoption of the vibrant yellow colouring on the façade of Buildings A and B. In those circumstances, I am not persuaded that the proposed landscaping will appropriately mitigate the unacceptable visual and character impacts occasioned by the proposed self-storage facility.
[126] I prefer the evidence of Mr Buckley to that of Mr Curtis (other than the concessions made by Mr Curtis identified in paragraph [114] above, which I accept). Mr Buckley provides a cogent explanation for his opinion, and his opinion accords with the views I have formed having regard to the plans, projections and elevations depicting the proposed self-storage facility and the photographs of the surrounding area.
[127] Relevantly, Mr Buckley opines that the proposed self-storage facility does not make a positive contribution to the streetscape nor is it sympathetic to the scale and character of surrounding development. He explains that although height is an indicator of the acceptability of the form of a building, it is but one dimension of a building. Here, when the height is combined with the other lineal dimensions, the consequential outcome in volume, scale and appearance is that of an industrial building. Mr Buckley says that, even with the proposed landscaping, the buildings are obvious and are obviously not residential in nature. He says that such an outcome has no connection with the predominant residential character of the area.
[128] The unacceptable impact is exacerbated because the subject land:

[103]

[140] Middle Pond Pty Ltd accepts that its proposed self-storage facility is not a use that is included within the defined activity groups of "Business activities", "Community activities" and "Other activities" and, as such, it is not identified as a non-residential use that is anticipated in the Low-medium density residential zone. It says that it does not necessarily follow that it is inappropriate to locate the proposed self-storage facility in the Low-medium density residential zone. Middle Pond Pty Ltd contends that careful consideration of the nature of the use, and its alignment with controls on the location of anticipated non-residential uses, demonstrate that the proposed self-storage facility is appropriately located.
[141] The fact that a self-storage facility use is not within the identified non-residential uses expressly contemplated in the Low-medium density residential zone does not, by itself, demonstrate that it is inappropriate to locate such a use on the subject land. To appreciate the planning consequence of a proposed use that is not an anticipated non-residential use, it is necessary to assess the use with regard to provisions of the Planning Scheme that guide the nature, scale and appropriate built form of non-residential uses that might be anticipated in the zone and their character and amenity impacts: Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2021] QPEC 29; [2022] QPELR 608, 622 [60]; Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899, 928-9 [166] - [174]. It also assists to consider the relevant provision that expressly identifies those anticipated uses to ascertain whether it reflects a deliberate planning policy to limit the non-residential uses to those identified.
[142] Middle Pond Pty Ltd submits that the non-residential uses that are anticipated include those that are commercial in nature. It says that the proposed self-storage facility has a nature and character that is more closely aligned with retail and commercial uses than with industrial uses and, as such, it is reasonable to anticipate its location in the Low-medium density residential zone.
[143] In support of its contentions, Middle Pond Pty Ltd relies on the evidence of:

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[145] This industry information is supported by the evidence of Mr Parker. He has approximately 28 years of involvement with the storage industry. Mr Parker explains that he has observed that the self-storage industry has changed over time from being an industry-driven requirement to being a domestic and commercial driven requirement. For that reason, he considers it necessary to locate these uses in non-industrial locations and to change design outcomes to better suit the requirements of the users.
[146] Mr Parker considers that the proposed self-storage facility is easily accessible from, and has excellent exposure to, Shute Harbour Road. Shute Harbour Road is a major carriageway. It is the only access road into Cannonvale and Airlie Beach. In 2022, it had an average annual daily traffic count of 18,600 vehicles. Presently, the Department of Transport and Main Roads is in the design phase of an upgrade to Shute Harbour Road that will add two lanes to the road proximate the subject land.
[147] Mr Parker also gave evidence that the proposed self-storage facility has been designed to cater for a range of domestic and business users but not industrial users. It is anticipated that there will be a variation in the size of units between two square metres and 27 square metres. As the proposed facility is not intended to facilitate the storage of large commercial quantities of goods and will not permit the storage of toxic, hazardous or combustible materials, Mr Parker considers that the proposed self-storage facility is unlikely to attract industrial users.
[148] Having regard to, amongst other things, the evidence of Mr Parker, Mr Forsyth opines that the proposed self-storage facility is not industrial in nature.
[149] Mr Buckley disagrees with the need experts and Mr Forsyth.
[150] Mr Buckley opines that whatever technical characterisation may be given to the nature of the use, self-storage facilities are inherently and fundamentally non-residential. He considers that whether one refers to the Planning Scheme or first principles, such uses fairly sit within a traditional light industrial land use definition. Mr Buckley's opinion in that respect is founded on four town planning considerations.
[151] First, regardless of the size of the individual space or unit used for the purpose of self-storage, storage or warehousing is an activity that is well understood. It involves the keeping of goods for both short and long periods of time within a building that is fit for that purpose. Mr Buckley explains that the town planning definition focuses on the activity being one of storage. In that sense, there is a commonality between the proposed use and warehouse activities undertaken by logistical companies. Mr Buckley acknowledges that planning schemes are never perfect, but he says that the town planning strategy of grouping like uses is the foundation to definitional characterisations adopted in planning schemes.
[152] Second, given the planning purpose for which self-storage facilities are designed, the buildings are usually utilitarian and functional. In Mr Buckley's opinion, consistent with the use that they accommodate, the built form for self-storage facilities usually presents as a non-residential use.
[153] Third, Mr Buckley opines that the scale of modern self-storage facilities is material to understanding the use. He says that modern facilities are usually designed to accommodate large numbers of units. Consequently, they are either land consumptive or the buildings contain multiple levels and, as such, they are often of a materially different scale and composition to acceptable design outcomes in residential areas.
[154] Fourth, according to Mr Buckley, the locational considerations for self-storage facilities are not as pressing as other land use categories that provide a service to residential communities. This is because, in general, patrons do not visit them as regularly as a supermarket, take away food outlet or even medical services. As such, Mr Buckley opines that there is no planning need to locate self-storage facilities close to residential users. In his view, if they can be co-located with identified centres or industrial hubs, that is an added benefit as it optimises existing infrastructure. However, Mr Buckley opines that it does not follow that such uses should be located within a residential zone.
[155] When confronted with Mr Parker's evidence about the changing profile of users of self-storage facilities, Mr Buckley was not dissuaded from his view about the appropriate town planning characterisation of such uses. He explained that although the predominant users of self-storage facilities may have changed, so have modern industrial areas. Not all industrial areas are intimidating to people or contain uses that generate significant noise or other atmospheric omissions. Mr Buckley explains that across Queensland, industrial areas have become more refined. For example, there are local government areas that accommodate uses at the light industrial end of the scale and other local government area that provide for their location in areas designated for service industries or in mixed use zones in which there is infiltration of commercial uses. Mr Buckley considers that the proposed self-storage facility would sit very comfortably in those types of environments.
[156] I accept the evidence of the need experts and Mr Parker to which I have referred in paragraphs [144] to [147] above. I also accept the cogency of Mr Buckley's observations to which I have referred in paragraphs [150] to [155] above and prefer Mr Buckley's evidence to that of Mr Forsyth. The evidence persuades me that certain aspects of the proposed self-storage facility use lend support to its co-location with other commercial uses while other characteristics indicate that it is appropriately located in an industrial area.
[157] In those circumstances, I am prepared to assume that the proposed self-storage facility has a commercial character and will proceed to assess it on that basis.

[114]

[160] I have already addressed the overall outcome in s 6.2.10.2(3)(d)(ii) to the extent that it informs visual and character impacts in paragraphs [102] to [105] above.
[161] The assessment benchmark in s 6.2.10.2(3)(d)(i) calls for analysis of the planning need for the non-residential use. That is a multi-faceted concept that raises for consideration matters that include the community and economic need: Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at 817 [112].
[162] Whether a non-residential use will directly support the day to day needs of the immediate residential community for the purposes of the overall outcome in s 6.2.10.2(3)(d)(i) of the Low-medium density residential zone code is a question of fact and degree. It is informed by a range of considerations, including the nature of the use proposed and relevant context in the Planning Scheme.
[163] Here, relevant context includes the purpose of the Low-medium density residential zone code, which describes the nature and intended function of non-residential uses anticipated in the zone as "community uses and small-scale services and facilities that cater for local residents".
[164] Although the overall outcome in s 6.2.10.2(3)(d)(i) of the Low-medium density residential zone code is expressed to focus on the needs of the immediate residential community, the mere fact that it will attract patrons from beyond the immediate residential community is not fatal. It has long been recognised that planning schemes are to be read as a whole and in a way that is practical and intended to achieve a balance between the individual outcomes: AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58].
[165] In this respect, I agree with the tenor of the observations made by His Honour Judge Rackemann in Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council & Ors [2005] QPEC 70, [2006] QPELR 85, wherein His Honour observed at 87:

[116]

[166] These observations were endorsed by the Court of Appeal in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309 at 338 [81]. As was clarified by Brown J, that is not to suggest that phrases that call for a use to serve a local area should be treated as having an open-ended meaning.
[167] Leaving aside that the proposed use is not anticipated in the zone, Middle Pond Pty Ltd contends that the proposed self-storage facility will function appropriately as it will cater for local residents and directly support the day to day needs of the immediate residential community. It relies on three matters to support its contention.
[168] First, Messrs Norling and Ganly agree that the proposed self-storage facility will be convenient for all residents of their agreed catchment, which is described further below.
[169] Second, Middle Pond Pty Ltd says that the use has an element of essentiality. In this respect, the economics experts say that approximately 10 per cent of the Australian population currently uses storage, 40 per cent have used storage at some point, and 20 per cent have used storage in the last five years. The high demand for storage in the catchment is consistent with such figures. In addition, based on their review of industry data, the economics experts say that self-storage facilities are used where there has been a death in the family and by those experiencing the breakdown in domestic or family relationships.
[170] As to these first two matters, I accept the evidence of the economics experts about the characteristics of the self-storage industry, including the profile of the customer base, customer preferences and drivers for demand identified in paragraphs [144] , [168] and [169] above. I also accept the evidence of the economics experts that customers are typically prepared to travel up to 10 kilometres to access self-storage facilities. This evidence from the economics experts is consistent with evidence given by Mr Parker, which I accept.
[171] Relevantly, Mr Parker explains that the most dominant type of users of self-storage facilities nowadays are people who own property in the local area and store some of their personal belongings at the facility. He says that small businesses represent a smaller proportion of users. According to Mr Parker, customers access their stored items on a semi-regular basis. He says that, consequently, his experience is that customers prefer the facility to be in a convenient, secure and easily accessible location.
[172] In Mr Parker's experience, the self-storage facilities that are in higher demand and that are better utilised are those that are close to, and provide easy access to, residents of the local area. Mr Parker says that the feedback he gets from domestic and local business users is that they do not want self-storage facilities that are in industrial areas.
[173] The third matter relied on by Middle Pond Pty Ltd is the opinion of Mr Forsyth that the proposed self-storage facility on the subject land, by its nature and operation, will support the day to day needs of the immediate residential community. Mr Forsyth's opinion in this regard is premised on the evidence of Mr Parker that the dominant users of self-storage facilities are domestic and that users seek convenience and storage facilities close to where they live. During cross-examination, Mr Forsyth clarified that he considers that a use will satisfy the day to day needs of the immediate residential community if it is able to be accessed when desired, even if that happens to be only a little more frequently than once a month. He then acknowledged that every conceivable use with operating hours that include every weekday would comply with his approach to a use that directly supports the day to day needs of the immediate residential community. I do not accept Mr Forsyth's evidence on this issue. It lacks cogency.
[174] I am satisfied that the proposed self-storage facility is of a scale that goes well beyond a non-residential use that directly supports the day to day needs of the immediate residential community. My finding in this respect is informed by the combination of four aspects of the evidence.
[175] First, the economics experts' evidence about the need for the proposed self-storage facility is founded on the facility drawing custom from an extensive agreed catchment area.
[176] With the benefit of the industry data about the attributes of the self-storage industry, Messrs Norling and Ganly agree a catchment area for the proposed self-storage facility. They describe the agreed catchment area as comprising a discrete urban area that is separated from the nearest urban area of Proserpine by 18 kilometres. The economics experts opine that the road network is configured such that residents from the agreed catchment area represent a captured market, with the subject land being convenient for persons living in the agreed catchment and not convenient for residents located outside of it.
[177] The agreed catchment area covers an extensive geographical area that is coincident with the Australian Bureau of Statistics' Census Statistical Area Level 2 of Airlie - Whitsunday. It includes the immediate suburb of Cannonvale, the adjoining suburbs to the east and west, other suburbs in the broader locality, and nearby islands such as Hamilton and Hayman Islands. It includes land that is more than ten kilometres from the subject land.
[178] There is disagreement between Mr Norling and Mr Ganly about the extent of demand for self-storage facilities. That said, each experts' analysis is founded on the estimated resident population of the entire agreed catchment area. Neither of the economics experts analyse the need generated by the "immediate residential community", nor do they provide population projections for an area other than the entire agreed catchment area. Although Mr Norling says that most residents of the catchment area live in Cannonvale, he does not provide a map that indicates the area to which he refers, nor does he give a quantitative indication of the proportion of the population of the agreed catchment area that resides in Cannonvale. On my review of the aerial photographs of the area, the aerial extent of land proximate the subject land that appears to be developed with residential development is significant. However, there also appears to be sizeable residential communities at more distant locations, such as at Jubilee Pocket.
[179] Second, if the proposed self-storage facility was approved and constructed, it would be the largest such facility in the agreed catchment area.
[180] Third, for reasons that are discussed below when addressing the issue of need, the existing and approved supply of self-storage facilities exceeds the demand projected by both economics' experts well into the future. Even if I were to accept the assessment that is most favourable to Middle Pond Pty Ltd, being that provided by Mr Norling, if the recently approved self-storage facilities are constructed, supply will exceed projected demand in 2026 by 114 units. This is without the additional 492 storage units that would be supplied by the proposed self-storage facility. On Mr Norling's analysis, it is not until about 2053 that there would be sufficient demand to fully support the proposed self-storage facility. During his cross-examination, Mr Norling described the need as non-existent for several years.
[181] Fourth, the evidence of the economics experts is a strong indicator that, if approved, to be viable the proposed self-storage facility would be reliant on serving the needs of much more than just the immediate residential community.
[182] In those circumstances, I am not persuaded that the proposed self-storage facility is a non-residential use that will directly support the day to day needs of the immediate residential community for the purpose of the overall outcome in s 6.2.10.2(3)(d)(i) of the Low-medium density residential zone code. As such, if approved and constructed, it will function in a way that is not encouraged or anticipated in the Low-medium density residential zone.

[121]

[184] Although the outcome in s 6.2.10.2(3)(d)(iv) is expressed to be one that is desirable, rather than mandatory, Middle Pond Pty Ltd contends that it provides support for the proposed self-storage facility. Middle Pond Pty Ltd submits that the proposed self-storage facility is co-located with uses of a similar nature and will deliver a modern built form within a landscaped setting that is compatible with the character of the surrounding area.
[185] In support of its submissions, Middle Pond Pty Ltd relies on the evidence of Mr Forsyth and Mr Curtis to which I have already referred above. It also relies on Mr Parker's evidence that the Reece Plumbing store, the childcare centre on the opposite corner of Tropic Road and other nearby commercial activities are likely to use the self-storage facility.
[186] For reasons already explained, I do not accept that evidence of Mr Forsyth and Mr Curtis relied on by Middle Pond Pty Ltd. Even assuming that the proposed self-storage facility is commercial in nature, I am not persuaded that the proposed self-storage facility is similar to other activities in the Low-medium density residential zone.
[187] That said, the proposed self-storage facility does perform more favourably when assessed against the other locational requirement, namely the requirement in s 6.2.10.2(3)(d)(v).
[188] Further, there is no doubt that the proposed self-storage facility will be accessible to the residents of the agreed catchment area. The subject land has significant exposure to passing traffic as it fronts Shute Harbour Road, which is the main road linking Airlie Beach to the Bruce Highway and Proserpine.
[189] In addition to fronting Shute Harbour Road, the proposed self-storage facility fronts two residential streets, being Tropic Road and Barnes Place. The proposed access is from Tropic Road. There is a dispute about whether, in those circumstances, the proposed self-storage facility is located on the major road network.
[190] It is unnecessary to resolve this dispute as the outcome is not determinative. In terms of the access for the proposed self-storage facility, it is of greater significance that:

[170]

[239] Middle Pond Pty Ltd accepts the cogency of the supply and demand assessment undertaken by Mr Norling but says that the proposed self-storage facility should be approved in full or in part for seven reasons.
[240] First, need is not a relevant assessment benchmark. This is undisputed. It does not materially advance the case for approval given Middle Pond Pty Ltd relies on need as a relevant matter that supports approval. The real issue is whether the evidence demonstrates a need for the proposed self-storage facility in whole or in part.
[241] Second, there is an existing quantitative need for self-storage, with an undersupply of 224 units in 2023 on Mr Norling's analysis. Considered in isolation, this lends some support to an approval. However, the current, latent unsatisfied demand loses considerable force as a basis for approval when one considers that, even if approved, the proposed self-storage facility would not commence operation immediately. It would be unlikely to commence operation until 2026, by which stage the need experts opine the current shortfall in demand will be more than adequately addressed by the three recent approvals. Those recent approvals, together with the eleven facilities already in operation in the catchment area, demonstrate that the Planning Scheme continues to make adequate provision for self-storage facilities in the catchment.
[242] Third, Middle Pond Pty Ltd says that there is no certainty that the competing developments will proceed to construction and, if so, that all would be open for trading by 2026. In this respect, Middle Pond Pty Ltd relies on the evidence of Mr Norling that the construction industry continues to face labour and material shortages, price escalations and difficulties for developers in obtaining acceptable tenders from construction companies.
[243] Mr Norling's evidence in that respect was highly generalised. It was not underpinned by any investigations about the state of the construction industry in the Whitsunday Region. To the extent that it has force, it is a consideration that also applies to the proposed self-storage facility.
[244] Further, the persuasiveness of this consideration is undermined by Mr Norling's agreement that his analysis, set out in paragraph [235] above, is the appropriate basis for analysing need. His analysis assumes that the three recent approvals will be operational by 2026. This is an assumption that Mr Norling clearly accepts as reasonable, despite his evidence about the construction industry. Its reasonableness is supported by the fact that three separate entities have spent money pursuing a development application for self-storage facilities in the last few months. This supports a reasonable inference that there is confidence that the facilities can be delivered.
[245] In those circumstances, I am not persuaded, to the requisite standard, to afford considerable weight to this consideration.
[246] The fourth reason advanced by Middle Pond Pty Ltd relates to the qualitative benefits provided by the proposed self-storage facilities. Middle Pond Pty Ltd says the supply and demand assessment undertaken by the need experts does not take account of the qualitative differences between different facilities. It contends that the proposed self-storage facility is consistent with modern community preferences and provides a superior standard of facility and service to those that presently exist within the catchment area. As such, Middle Pond Pty Ltd says that there remains a strong community need for the proposed self-storage facility that is not adequately accommodated by the Planning Scheme.
[247] In support of these contentions, Middle Pond Pty Ltd relies on the evidence of Mr Norling and Mr Parker.
[248] Mr Norling opines that the proposed self-storage facility would provide a standard of facility and service that is superior to all the existing self-storage facilities in the catchment area. He says that it will provide an improved level of choice. He also says that the subject land offers a more accessible location for most residents of the catchment area. He considers Jubilee Pocket to be less accessible, particularly when traffic through Airlie Beach is heavy. Mr Norling also opines that the proposed self-storage facility would provide an improved amenity for most customers because it is not located within an industrial area where customers would have to negotiate around large trucks and navigate potentially difficult access arrangements.
[249] In his statement, Mr Parker identifies those features of the proposed self-storage facility that he considers set the proposed self-storage facility apart from its competitors. The relevant features are:

[176]

[252] Despite these reservations, for the purpose of my assessment I am prepared to assume that the proposed self-storage facility will offer all those community benefits asserted by Middle Pond Pty Ltd.
[253] Fifth, Middle Pond Pty Ltd says that there is an element of unfairness to it by reason of the effluxion of time since its development application was properly made. It says that the Court is entitled to consider the unfairness when exercising its discretion. Middle Pond Pty Ltd's submission is difficult to follow. The cases cited by Middle Pond Pty Ltd to support its submission do not assist. They relate to the weight to be attributed to amendments to the relevant planning instruments. No party asserts that weight should be afforded to amendments to the Planning Scheme in this case. In any event, the effluxion of time is a product of Middle Pond Pty Ltd's election to pursue a development application on land that is not appropriately zoned for the use sought.
[254] Sixth, Middle Pond Pty Ltd says that there is insufficient vacant and appropriately zoned land within the catchment area to accommodate the proposed self-storage facility. It says that the reality is far from the Council's case that any demand is eminently capable of being met by the Planning Scheme.
[255] I am not persuaded that this is a matter that lends meaningful support to the case for approval. It is premised on an assumption that there is an unsatisfied demand for the extent of self-storage facilities proposed such that there is a need to accommodate a facility of the size proposed. This is not borne out on the evidence.
[256] Finally, Middle Pond Pty Ltd says that approval of the proposed self-storage facility would not have an adverse impact on the availability of land in the Low-medium density residential zone. In this respect, Middle Pond Pty Ltd relies on the evidence of Mr Norling that the proposed self-storage facility would occupy less than one hectare of land in the Low-medium density residential zone, which represents 0.7 per cent of the vacant land in that zone in the catchment area.
[257] The Council says that although the quantum of land that would be lost is small, the loss is important and would have a relevant impact on the Planning Scheme's ability to accommodate residential development. The Council relies on evidence of Mr Ganly and Mr Buckley in support of its submission.
[258] Mr Ganly opines that the vacant land in the Low-medium density residential zone in Cannonvale represents a key source of the supply of multiple dwellings. He says that the vacant land is along Shute Harbour Road, where it is close to commercial and community facilities and has access to local bus services. He opines that multiple dwelling development on sites such as the subject land represent an important opportunity for more affordable housing product to be introduced into the market. He considers this to be an important consideration in the current climate where there is declining affordability and increased rental stress.
[259] Mr Buckley says that it is easy to appreciate that the subject land would play a role in providing housing choice for the local community over time given its size, street frontages and amenity. He explains that there is always a balance inherent in the allocation of zones in a planning scheme. He says the balance struck by the Planning Scheme is critical in this locality because the supply of potentially developable land is limited. This is because it is not a location where there is plentiful flat land or where there are ample opportunities for new development. To the contrary, the locality generally is heavily constrained. The corridor from Cannonvale through to Jubilee Pocket is constrained topographically.
[260] The evidence of Mr Ganly and Mr Buckley presents a compelling counterpoint to the evidence of Mr Norling. On balance, I am not persuaded that the loss of the subject land adds meaningful weight to the case for approval or refusal.

[183]

[264] Middle Pond Pty Ltd's case was advanced on the basis that the Court would accept all these propositions and that, collectively, they justify approval of the proposed self-storage facility, or at least part of it (being stage 1 in proposed Building A).
[265] As would be evident from my findings above, Middle Pond Pty Ltd has demonstrated that the proposed self-storage facility is of a commercial nature and that it performs favourably when assessed against the requirements in the Low-medium density residential zone code in terms of its accessibility.
[266] In terms of need, there is no latent unsatisfied demand for further self-storage facilities that cannot be adequately met by existing approvals and the Planning Scheme. That said, the proposed self-storage facility would offer a superior standard of facility and service to that provided by the existing and approved developments.
[267] Those matters lend support to the case for approval.
[268] Against those matters, I must weigh the non-compliances with the Planning Scheme. The non-compliances are occasioned by the inappropriate scale of the proposed self-storage facility and its associated inappropriate visual amenity and character impacts.
[269] On balance, I am not persuaded that all the matters that favour approval that I have identified throughout these reasons, taken collectively, are sufficient to provide a sound town planning basis to depart from the Planning Scheme. They do not render the impacts on amenity and character acceptable. Moreover, there is no sound town planning reason to not give the Planning Scheme its full force and effect insofar as it seeks to protect residential character and amenity.
[270] Although the scale of the facility, and the consequential extent of the adverse character and amenity impacts, would be lessened if I only approved stage 1 and the use of proposed Building A, I am not persuaded that outcome is appropriate either. Even considered in isolation, proposed Building A is of an inappropriate scale and would occasion unacceptable visual amenity and character impacts such that approval of that part of the development application would result in non-compliance with the assessment benchmarks in ss 6.2.10.2(1), (2), (3)(a), (d), (h)(iv) and (i) of the Low-medium density residential zone code and the purpose in s 9.3.8.2(1), the overall outcome in s 9.3.8.2(2)(a) and performance outcome PO1 of the Industry activities code. The non-compliances with the assessment benchmarks of the Low-medium density residential zone code are serious and represent a compelling reason not to grant a partial approval.

At a glance

Court

Decision date

Source

Judgment (185 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)