Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council

[4] Pursuant to the Transitional Planning Scheme for Pine Rivers, the subject land is included in the Special Facilities (service station and late night shop) zone and is within the Urban Area designation within the Strategic Plan. It also falls within Development Control Plan 8 for the Central Pine Area.

[5] The use of the site for a service station was the subject of a town planning consent permit in 1976. The Special Facility zoning was effected by a re-zoning upon application in 1991. At that time, the applicant indicated that it did not wish to alter the then existing hours of operation, being 5am to 9pm. A condition was imposed confining the operation to those hours except with the permission of council. Permission is now sought, by way of a development application, for 24 hour trade. This would bring the operation into line with other facilities operated by the appellant elsewhere.

[6] The Respondents reasons for refusal asserted non-compliance with the Strategic Plan and the DCP as well as detrimental impact on residential character and amenity.

[7] It was submitted, on behalf of the respondent, that need had not been established. I do not regard that as a determinative issue in the present context. This case concerns only the hours of operation for an existing facility on land currently appropriately zoned for the purpose. Although, as was pointed out, those wishing to access service station/shop premises beyond the operating hours of the subject facility can do so by travelling further afield, (the nearest 24 hour facility is some 1.8 km away), the provision of extended operating hours at the existing facility, situated within a node of non residential development at intersection of two streets which play a significant role in distributing local traffic, is likely to make a positive contribution to meeting the community's needs in terms of accessibility and convenience.

[8] The evidence on need was not however, particularly strong. No detailed market analysis was carried out. While extended hours would make a positive contribution of the type referred to, the evidence does not establish a need which is so strong as to outweigh any otherwise unacceptable impact on residential amenity. This was the basis upon which Mr Traves SC, for the respondent, ultimately put his argument on need[1]. Mr Hinson SC, for the appellant frankly conceded that "If I lose on amenity, need doesn't save me"[2].

[9] Senior Counsel for the Respondent pointed to evidence that the existing service station is patronised by a proportion of customers who reside outside the local area. It was submitted that the proposal would conflict with provisions of the DCP which variously refer to further development maintaining the character of existing Residential A and ancillary purposes of the precinct,[3] additional development of retail facilities being limited to the local level only[4] and complying with the intent of Precinct R2 in the DCP which, in turn, provides that an application for the expansion of the existing local neighbourhood retail/community centre will only be favoured by council if expansion "provides a useful addition to and compliments the a range of services, i.e. local convenience shopping and local community needs only, offered to the population catchment of that local centre" [5]

[10] It is unrealistic, in dealing with facilities such as service station/shop uses, in the modern context, to expect that they will not be used by a proportion of people from beyond the local area. Catchment areas are not borders within which patrons are quarantined. It would be surprising if the Kensington Village Shopping Centre did not also attract some custom from beyond the local area. Provisions of this kind should be construed and applied in a practical rather than pedantic way[6]. I do not consider that the custom from further afield disentitles this facility from properly being considered as a local level facility, a facility which usefully adds to a range of services offered to the population catchment of the local centre and which is consistent with the character of the precinct. The use is not one which conflicts with the evident planning intent of those provisions.

[11] It might be debatable whether, notwithstanding the broad definition of development in the scheme, an application to, in effect, change a condition, so as to permit extended trading hours for an existing facility, is something to which the particular provisions dealing with "further development", "additional development" or "an application for the expansion of an existing local neighbourhood retail/community centre" are directed. It should, in any event, be noted that this non local custom is already associated with the existing service station and late night shop use of the subject site, which is authorised under its existing zoning. Approval of the subject application would simply extend the hours of operation which are currently constrained by condition.

[12] Even if some conflict were thought to exist, I would be prepared, subject to a consideration of potential amenity impacts, to approve the proposal notwithstanding such conflict, having regard to the nature and extent of the "conflict" and the overall merit of the proposal otherwise.

[13] The determinative issue in the appeal was the likely impact on amenity. It is unnecessary to traverse the detail of the planning scheme provisions in relation to amenity expectations. It was not suggested by the Appellant that anything in the planning scheme would justify the proposal if it had an otherwise unreasonable impact on the amenity of residents.

[14] In addition to specific impacts on amenity, Ms Wellington, a town planning consultant called by the Respondent, expressed a concern that operation beyond 9:00pm would be contrary to reasonable expectations and would have an adverse impact upon the character of the locality.

[15] The subject site is currently included in a zone which permits a service station and a late night shop. The conditions currently attached to that approval have, to this point, confined its operating hours. The Kensington Village Shopping Centre also does not trade beyond 9pm. That does not however, create a reasonable expectation that things will never change or, more particularly, that operating hours will never be sought to be altered or that any such application would necessarily be refused.

[16] The alteration, over the years, of operating hours for retail facilities, particularly local retail facilities such as service station/ convenience shop uses, to accommodate demand for later trade, is a common experience. In this case the subject condition itself contemplated that a request for trade outside the existing hours might be made.

[17] A resident is entitled to hold a reasonable expectation that such an application will not be approved unless it passes the scrutiny of a merits based assessment, including as to the reasonableness of any impact on amenity. However, it would be unreasonable to expect that the history of operating hours or the current condition precludes the prospect of an application being made for extended hours for an existing service station and late night shop on land otherwise appropriately zoned and located, or, precludes its approval, subject to an assessment of the merits of the proposal.

[18] Approval of the subject application would result in greater lighting and activity beyond 9pm. That would have an effect upon the appearance of the site in those extended hours. I do not consider however, that would have an undue adverse impact on the character of the locality.

[19] The subject site is a part of a community node at the Kensington Way / Sovereign Avenue intersection. This provides a focus of community activity serving the local needs of the community. This results in activity involving vehicular and pedestrian movements.

[20] The location of this node is, as Mr Buckley attested, consistent with standard well accepted principles of planning. It has not occurred by accident. Kensington Way and Sovereign Avenue play an important role in distributing traffic from the suburb to the intersection and to and from the employment areas and business areas of Strathpine, Brendale and into Brisbane. Kensington Way, in particular, is a major distributor of traffic into and out of the local community. The development of a node of facilities to service the local community at this intersection has resulted in an intersection dominated by non residential use and activity. This currently extends into the evening, at least until 9pm. While the subject application would extend the operating hours (and lighting and activity) relating to one of those facilities (i.e. the service station / convenience shop), it would not, I am satisfied, significantly change the character of the locality in a way which is inappropriate or unduly adverse.

[21] An important consideration in an assessment of the merits of this application is the specific amenity impacts which might be occasioned to neighbouring residential uses. Issues considered in the appeal included noise, light and anti-social behaviour.

[22] Matters concerning lighting were the subject of careful examination by Mr King, who called by the appellant. The other parties did not call any corresponding expert. I accept Mr King's conclusion that the development can comply with appropriate standards with respect to lighting, such that operation in the period from 9pm to 5am would not result in adverse amenity impacts on surrounding land uses. Indeed, approval of the subject development would present an opportunity to address the current excess light spill occurring beyond the boundaries of the site.

[23] Concerns were raised, particularly by the co-respondents, that with 24 hour operation, the site would become a meeting place for teens and juveniles and would attract a share of undesirable elements, with consequent noise and antisocial behaviour, both on and off site. The possibility of such behaviour occurring from time to time cannot be excluded. That does not, in my view, provide a sufficient basis for refusal of the current application.

[24] If the facility were to trade after 9pm the site would be well illuminated, highly visible and subject to ongoing staff supervision. The prevention or management of anti-social behaviour would be in the interests of the proprietor. The Appellant referred to a management plan the subject of a condition of approval at another site. A similar management plan could be required in this case. The management plan refers to measures including the use of monitoring equipment, the elimination of dark spots on site, the maintenance of a register of incidents and consultation with the local police and security provider.

[25] While off-site behaviour is beyond the management of the proprietor, the evidence does not establish that the area has a particularly high incidence of trouble makers or that the subject site is likely lead to ongoing antisocial behaviour problems to such an extent as would warrant refusal on that ground.

[26] Noise issues were examined by Mr Moore, who was called by the appellant and Mr Borgeaud, who was called by the respondent. The experts participated in a conclave and produced minutes which recorded their agreement with respect to a number of matters.

[27] It was agreed that, while the roof top plant exceeded the appropriate criterion, the required attenuation could be achieved. There is currently an ice refrigeration plant on site, which, it was agreed, would be more difficult to treat. Although it could be addressed (perhaps by relocation within the store), the ice refrigeration plant currently operates 24 hours a day in any event. The extension of hours sought by the current application does not have any impact on the ice refrigeration plant.

[28] As to other noises, the experts agreed that the World Health Organisation sleep disturbance criterion can be used to access the night time noise impacts. It was also agreed that on site noise levels will be typically below the criteria at adjoining residences, however, less frequently, less typical noise levels, in excess of the level referenced in the criteria, would be experienced. It was agreed that driveway and off-site noise could not be controlled to meet the criteria. It was agreed that one of the key considerations was the likelihood of these events occurring.

[29] The evidence did not permit any particularly definitive or confident conclusions to be drawn in relation to the extent of activity after 9:00pm. Mr Moore conducted a noise assessment adjacent to the BP service station / 7-Eleven convenience store at Graceville on one morning[7]. There was very little site visitation (only three vehicles) in the particular two hour period surveyed and the noise criterion was easily complied with. It is unclear however, how representative that would be of the subject site or of the level of visitation at other times within the extended hours sought. Mr Moore also reported on a survey at a facility (not operated by the appellant) at Oxley over three consecutive nights for the period generally between midnight and 2am. The vehicle movements were relatively low. The highest number was recorded for the period from midnight to 2 am Sunday morning when there were eight movements associated with the shop only and three associated with fuel. The trading patterns of that facility are not known to the appellant.

[30] The appellant produced data in relation to transactions at four locations namely the subject site, and sites at Graceville, Algester and River hills. At the later 3 locations the 9pm to 5am trade represents about 10%, 17% and 20% respectively of the 5am to 9pm trade. If one assumed that the same percentages would apply to the subject site, then nightly transactions in the range (depending on which day of the week) of approximately 59-76 (based on 10%), 101-128 (17%) or 107-136 (18%) could be expected.

[31] In considering the data for Graceville, it should be borne in mind that the site only commenced trade as a 24 hour shop business in recent times. Ms Ball, the national property development manager for the Appellant, stated that the data produced for Graceville related to a period about 1 month after it had commenced 24 hour trade and that one would hope for (and expect) a rise in trade as awareness of the site increased[8].

[32] In considering the transaction data, it must be borne in mind that the figures relate to the number of transactions over the whole of the relevant period. Further, not every transaction necessarily corresponds with one visit by a motor vehicle. The transaction data includes transactions by pedestrians. Multiple transactions would be recorded if different occupants of a single vehicle made separate transactions. On the other hand, it should also be borne in mind that, for every visit by a vehicle, there would be two movements (one to enter and one to exit). Given the configuration of the driveways, it seems likely that, for each vehicle visit, at least one, if not both, of those movements would occur by use of the driveways closest to the nearest adjacent residences[9]. Many of those would or could result in noise levels, at neighbouring residences, which exceed the sleep disturbance criterion[10].

[33] The World Health Organisation document dealing with sleep disturbance states that, for a good sleep, it is believed that indoor sound pressure levels should not exceed the criterion of 45 dB(A), which typically relates to an external level of 55 dB(A), more than 10-15 times per night. Mr Borgeaud was concerned that activities, on and off site, associated with the extended trading hours of the subject facility would likely, of itself, produce more than 10-15 incidents above the criterion on a regular basis. I do not consider that necessarily concludes the matter. It is necessary to also consider what significance or weight should be attributed to that, in the overall assessment of the impact on amenity in the circumstances.

[34] The significance of the generation of certain number of events above the criteria could vary depending upon the existing acoustic environment. For example, the likely generation of say, two dozen events above the criteria per night, might have a far greater impact upon the existing amenity of residents of a quiet area, which currently experiences little or no events at such levels, than would be the case in an environment in which residents have already become accustomed to hundreds of events, at levels as high or higher, on a nightly basis, as a consequence of other noise sources in the locality. (See Harburg Investments Pty Ltd v Brisbane City Council [2000] QPEC 32; [2000] QPELR 313, Church of Jesus Christ Later Day Saints v Gold Coast City Council [2005] QPEC 62).

[35] Mr Borgeaud also placed some reliance on the prospect that residents would be more offended by disturbance due to noise from the subject site, than from other sources. Such subjective reactions can be of relevance, but I would not place great weight on them in the present context if the evidence demonstrated that, viewed objectively, the noise[11] associated with extending the hours of the existing facility made no significantly adverse difference.

[36] Each of the experts carried out some monitoring of the existing acoustic environment. The data shows that, in the late night and early morning period, the existing background noise (L90) is relatively low[12]. Both the background and the L10 are below the sleep disturbance criterion in that period. As Mr Moore pointed out however, the maximum noise levels exceed the criterion. In each sampling period there was at least one such event. Noise levels associated with the proposed use would be within the range of those existing maxima. That is a matter of relevance, but, as Mr Moore accepted, consideration should also have been given to the relative frequency of the events[13]. Mr Moore's support for the proposal was influenced by his view, supported by his observations of other facilities, that there would not be a significant number of additional events which exceed the criterion[14]. In submissions Senior Counsel for the appellant also pointed to statements in Mr McGinley's submission to the effect that, on the basis of his enquiries and observations of other facilities, trade between 10pm and 4.30am is "very limited".

[37] The monitoring data does not establish the frequency with which the criterion is already exceeded within each sampling period. Where relatively high maximum noise levels are recorded, through the night, on a site which, for example, adjoins, or is in close proximity to, a major road, carrying high volumes of traffic throughout the day and night, it might be easier to conclude that the existing amenity of the area is characterized by relatively frequent intrusive noise or, to adopt the expression used in the Harburg case, is "constantly noisy". I am unable to draw that conclusion here. While Kensington Way and Sovereign Avenue play an important role in the distribution of local traffic, there is nothing in the evidence which establishes that they are particularly busy in the late night and early morning period. Such traffic counts as do exist[15] suggest Kensington Way carries far more traffic than Sovereign Avenue[16]. A traffic count carried out on Kensington Way 300 metres north of Sovereign Avenue on 22-23 January 2003 showed traffic volumes in the order of only a dozen vehicles per hour in the period from 1am to 4pm[17]. It is not clear how many of those vehicles would produce noise levels at the recorded L (max) levels. The 'comments' in the report of Mr Moore's monitoring data for 5 April 2005 notes the "noise of infrequent passing traffic".

[38] On the evidence, it seems likely that, were the hours of operation to be extended, residents in the nearest houses would be subject to noise from vehicles entering and leaving the site and from less typical onsite noises which would exceed the levels referenced in the sleep disturbance criteria. While the frequency of those events cannot be predicted with accuracy, the evidence, including the transaction data, suggests that there is at least a reasonable potential for a not insignificant number of such events, by reason of a combination of off-site driveway noise and less typical on-site noises. The evidence called by the appellant does not persuade me to the contrary, even on the balance of probabilities. While the noise monitoring data suggests that the area is one in which the are already some noise sources which exceed the sleep disturbance criteria, that evidence does not establish how frequent such events are, beyond the fact that at least one was recorded in each sampling period. While the subject premises is at an intersection of two significant streets, they are not streets which appear to be particularly busy in the critical period.

[39] On the whole of the evidence I am left short of being persuaded, that the potential frequency of noise events or the existing acoustic environment are such that the potential for on-site and off-site noise associated with the proposed extended operating hours would be acceptable in the circumstances. The merits of the proposal otherwise do not outweigh the potential adverse noise impact. The appellant has failed to discharge the onus. The appeal is dismissed.

[5] To precinct R7 (vii) (D), Precinct R2 (ii) (E)

[6] Phil Fletcher Planning and Investment Services Pty Ltd v Brisbane City Council [1991] QPLR 16, Mallcap Properties Ltd v Brisbane City Council [1992] QPLR 208, Provincial Securities Pty Ltd v Brisbane City Council [2001] OPLR 143, Prime Group Realty Ltd v Brisbane city Council [1995] OPLR 173, Craig v Brisbane City Council [1998] OPLR 281, The Shell Company Australia v Gold Coast City Council [1993] OPLR 293, Cooloola Ratespayers and Residents Assoc Inc v Cooloola Shire Council [2004] OPLR 544

[9] Borgeaud T225 line 50, Moore T119 line 20

[11] Which is of the same type as that currently experienced, by reason of the existing development, at least to 9pm.

[13] Mr Moore thought that a further 40 events per night was likely to have an impact, but another 10 or 20 would not - T146-147

[17] T176 - there were 31 between midnight and 1am, 43 between 4 and 5am and 40 between 11pm and the following midnight.