Webster v Caboolture Shire Council [2008] QPEC 82

Broad v Baptist Union v BCC [1986] Qd R 317

Canbrai Pty Ltd v Greater Geelong City Council (2002) VCAT 1048

Chatres Construction Pty Ltd v Randwick Municipal Council (1971-1972) 25 LGRA 193

Holts Hill Quarries Pty Ltd v Gold Coast City Council [1999] QPELR 415

Isgro v Gold Coast City Council [2003] QPELR 414

Koerner & Ors v Maroochy Shire Council & Ors [2003] QPEC 054

Luke v Maroochy Shire Council and Watpac Developments Pty Ltd [2003] QPEC 5; [2003] QPELR 447

Pinder Architects v City of Sterling (1996) 92 LGERA 165

Ross Walmore Property Pty Ltd v Maroochy Shire Council [2008] QPEC 050

Weightman v Gold Coast City Council [2002] QCA 234; [2003] 2 Qd R 441

Wincam Developments No. 3 Pty Ltd v Brisbane City Council [2004] QPEC 5; [2004] QPELR 474

Woolworths Ltd v Maryborough City Council (No. 2) [2006] 1 Qd R 273

[1] This appeal is about the use of two blocks of land at the corner of Coutts Drive and Morayfield Road near Caboolture.

[2] Mr Webster, a principal of Kangaroo Bus Lines, wants approval to build a bus depot, with an office, a workshop, and a covered fuel storage area on that land. The council refused the application. At the hearing, the council no longer opposed the application. It called no evidence. Its counsel made no submissions, about the merits of the appeal.

[3] The appeal is opposed by a substantial group of local residents. There are 38 co-respondents. There were 43 properly made submissions, which opposed the development and two petitions with 78 signatures were against it.

[4] Some large issues dominated the hearing of the appeal. They were the impact of the Integrated Planning Act, the impact of the Shire Plan, the impact of the South East Queensland Regional Plan, the need for bus transport, the search for other possible sites for KBL's new depot, and the proposal's effect on the local residents.

[5] This is a fresh hearing. The duty of the court is to take into account all the evidence before it, and to give an impartial decision on the merits of the appeal. The court has all the powers of council, but considers the application quite independently of council. The court is not bound to accept or be influenced by the decision of council.

[6] Mr Webster bears the burden of establishing that the appeal should be allowed, and his application approved - see the IPA s 4.1.50(1).

[7] The court is in no sense a planning authority. That is the responsibility of council, or the state government. The court applies or takes into account the planning strategies, plans and policies adopted by council or government. It also must consider any objections which have been duly made against the proposal.

[8] The subject land includes two rectangular blocks, side by side. They are at the intersection of Coutts Drive and Morayfield Road, Burpengary. Their street addresses are 13 Coutts Drive and 698 Morayfield Road.

[9] The combined frontage to Morayfield Road is about 175 m. The frontage to Coutts Drive is about 275 m. The combined area of land is a fraction under 5 ha. It is 4.9565 ha.

[10] There is an established house on each of the two lots.

[11] There is a good deal of vegetation around the perimeter of the site. It is a combination of native trees and some introduced trees and shrubs. The native trees have been largely cleared from the blocks, but a good number remain scattered throughout the site. The grass is short, being mowed or kept down by horses. The overall appearance, making allowance for dry times, is one of green landscape. The appearance is consistent with the zoning, which is Rural Residential.

[12] Coutts Drive goes past the subject land, and loops around to a dead end on the south western side. It serves 28 dwellings. It is a well established area. More than half of the residents have lived there for more than 30 years. The timber or brick houses generally have neat gardens on their large lots, with scattered remnant native vegetation. A plant nursery and kennels are along Coutts Drive, past the subject land.

[13] The land is quite close to the Bruce Highway. See the plans attached to Mr Bullen's report, exhibit 16. The south eastern corner of the land is closest to the highway, which appears to be about 300 m away. The farthest corner seems to be about 600 m distance. The traffic noise from the highway varies with the time of day and the direction of the wind. At the time of the inspection, near Morayfield Road, around mid-day on a weekday, the constant noise was noticeable.

[14] The zoning map (Mr Bullen, appendix D) shows that the subject land is part of a much larger area of rural residential land. To the south, and separated by only one block of land, there is an area of residential A land. That land is between Burpengary Creek and the subject land. As Mr Bullen puts it, "it is noteworthy that land to the north of Burpengary Creek is undergoing a process of progressive urbanisation, with the incursion of land zoned and developed for urban purposes to the south of the site" (para 3.11).

[15] A triangle of land across Morayfield Road to the north east, opposite the subject land, is also zoned rural residential.

[16] The more detailed map, rural residential area 6 Morayfield, shows that this land is in a buffer area. To the north and west of Coutts Drive, there is a large area which is described as "transition".

[17] The purpose of the proposal is to keep all of the operations of KBL on the one site. That is, bus parking, a workshop, an administration building, parking for employees, parking for members of the public, and fuel storage. Those uses are illustrated on the plans, exhibit 6. There are car spaces for 92 employees, and 40 members of the public. The office is given 16 spaces, making a total of 148 spaces. There is room for parking 114 buses, with some substantial overflow bus parking on a grassed area to the west.

[18] The site has a gentle slope to the south west corner. The workshop is the largest building, to be situated roughly in the middle of the land. It would be a reinforced concrete tilt panel building, with a Colorbond roof. The top of the roof will be 11.3 m above ground. The workshop building is 97 m long, and 24 m wide.

[19] The administration building, (about 37 m x 33 m) contains the offices of the bus line. It includes a lunch room and amenities for the use of staff. It has a safe in a coin counting room. There are offices for senior staff members. There is a boardroom, and an interview room. There is a reception foyer and a general office. It has a floor area of 1,186 m2.

[20] Main Roads has refused to allow access directly to Morayfield Road. For that reason, vehicles entering and leaving the bus depot will do so from Coutts Drive. The proposed plan shows separate entrances for cars driven by employees and members of the public, and for buses. The aim is to avoid car drivers becoming confused by getting mixed up with buses entering or leaving the site. The result is that the car park entrance and exit will be about 70 m from the intersection with Morayfield Road, while the furthest bus exit will be some 200 m from Morayfield Road. Those distances are significant, because they control the length of the required upgrade along Coutts Drive, which will mean road widening and the addition of kerb and channel.

[21] The construction work would necessarily involve destruction of most of the vegetation along the frontage to Morayfield Road, and along Coutts Drive. The vegetation along the other two boundaries would be retained. Most of the trees on the land will have to go.

[22] Considerable attention has been paid to the treatment of the boundaries. Along the frontage to Morayfield Road, there will be a fence of metal railings, and vegetation which is thin enough to enable the public parking areas inside the fence to be visible. That is to be for reasons of public safety. More substantial plantings are planned for the boundary along Coutts Road. There would be an acoustic fence 1.8 m high, apart from any entrance and exit way. The plan is to have the fence 4 m inside the boundary, with 4 m of dense plantings outside the fence, along the edge of the road. Where possible, especially on the western end, there would be a metre of planting inside the boundary. The total of 5 m is designed to largely hide the acoustic fence.

[23] Along the rear boundary, there is likewise to be a fence 4 m in from the boundary. On the south east boundary, with a neighbouring block of land, there is to be a 7 m buffer of trees, adjoining the boundary. The existing vegetation on that boundary will be kept.

[24] It is expected that almost all KBL's buses will leave the site in the morning, the first from about 5 am, and return home in the evening, by around 9 pm. At present, around 25 buses leave before 7:30am.

[25] KBL was bought by the Webster family in 1978. It had 8 buses. KBL moved to its present site, at 382 Morayfield Road in about 1979. That land has an area of around 4,000 m2. It provided room for a workshop, an office, some parking for customers, and parking for the buses.

[26] KBL grew, and acquired more buses. In the mid 80's additional land next door, at 32 Anderson Road, was rented from the neighbours. Then, in the early 1990's more land was rented from other neighbours, at 388 Morayfield Road. Those informal arrangements continue at the present time. The neighbours' land is around 8,500 m2, making a total present area of around 12,500 m2, or 1.25 ha.

[27] Mr Webster had an understanding with one of his neighbours that he could buy a block of about 3 acres, to expand the current site. But Council introduced a new town plan, in 2005. That has now become the Shire Plan. All the land around the Webster's land was zoned residential A. That zoning effectively prevented any expansion of the existing bus depot onto the neighbours' land. The Webster's own land was zoned Special Facilities - Bus Depot.

[28] Council started enforcement proceedings to get KBL off the neighbours' land. KBL then applied to this court, to resist the enforcement proceedings. The proceedings have has been put on hold, pending the resolution of this appeal. Some different views were expressed about its prospects of success - they are quite uncertain. Understandably, the present proceedings did not involve any investigation of the merits of the other court proceedings.

[29] At present, KBL has 80 buses and 112 employees. Around 50 buses are used on the school routes. Twelve are used for urban routes. Four are rail buses, to link with Queensland Rail stations. There are three charter coaches, and the balance are spare buses.

[30] As buses leave the site between 5.00 am and 7.00 am, they have noise emission control, and the drivers are instructed to travel slowly until they are on the main road.

[31] All general servicing, maintenance and minor repairs to the buses are carried out on site. There are three bays in the workshop. Work extends from 6.30 am until around 9.00 pm. Tyres are changed by an outside tyre business that comes during normal business hours.

[32] Queensland Transport has a major influence on the provision of bus transport. It enters into contracts with bus operators to provide services that it approves. KBL secured a TransLink contract in 2004. That was for seven years plus an option for three more years. That contract controls the provision of urban and school services in the area between Caboolture, Strathpine, Narangba and Redcliffe. The main area is between Caboolture, Narangba and Redcliffe. There is also a contract with Queensland Rail, which requires KBL, at short notice, to provide coach transport in the event of closure of a railway station or an accident, such as a derailment.

[33] KBL also does work for the airlines carrying passengers between south-east Queensland Airports.

[34] Good management, the contract with TransLink, high fuel prices at the present time, and the increase in population in south-east Queensland, have all combined to provide strong growth by KBL over the past four years. Mr Webster expects that the bus fleet might grow by something like three to four buses each year. He expects to reach a fleet of 110-120 buses within the next 10 years.

[35] TransLink requires that buses operate 7 days a week between about 5.15 am and 9.00 pm at night.

[36] Mr Webster said that he selected the Coutts Drive land because of a number of desirable requirements, from the point of view of location:

(a) The site is near the centre of the area in which the majority of the services are operated, including school bus runs. In general, Morayfield Road is in the centre of the catchment.

(b) It is desirable that a bus depot be placed on a main urban service route. That enables shifts of drivers to change, that can be done at the depot site. Drivers do not have to go to a remote location to replace another driver. It also means that the depot is easily accessible to those who may not wish or not be able to drive to it - that is, they can catch a bus to the depot before catching a bus for a day trip.

(c) A central location minimises dead running and additional traffic movements. That means reduction in costs, especially fuel.

(d) Having the depot on the main route means that it is accessible to the general public by public transport. They do not have to drive to it.

(e) It is close to the Bruce Highway, for easy access to the main arterial road.

[37] Mr Webster undoubtedly would like to achieve all these desirable qualities, which are found in the proposed site. However, it is likely that his emphasis upon them is also because of his desire to justify KBL's use of that particular site. As Ms Hanelt said, she was retained to look for industrial land, and these criteria were developed to support the application for development at Coutts Drive, after KBL had bought that land. T(4) 31-32.

[38] Mr Webster also emphasised the need to have all the operations at one depot, rather than having them split into two or more locations, when there would have to be a duplication of facilities, and the inefficiencies of moving staff from one location to another. Late in the hearing, he provided an affidavit setting out his reasons for saying that. See exhibit 42. No doubt a split operation would not be the optimum one (Mr Webster's aim here is to achieve the ideal result for KBL). It would mean more cost to the operation. However, there was no persuasive evidence that KBL could not manage it, if forced to do so by the availability of land.

[39] Mr Webster explained that TransLink had been a party to his discussions about building a new depot on the subject land.

[40] Mr Webster says that, ideally, a site for the business now needs to be a minimum of 10 acres. That size would permit adequate space for the office, all necessary service areas, space for the parking of the buses, some space for future expansion of the business.

[41] There is no doubt, that KBL has been providing a significant public transport service in its areas of operation. It has been well managed to take advantage of an increasing demand for bus transport. It presently has the benefit of the TransLink contract. There is a public need, a planning need, for the services that it provides.

[42] Mr Webster gave some hesitant evidence about what would happen if KBL could not continue to offer its present services. There are two other bus operators in nearby areas. It seems likely that KBL's more distant routes could be taken over by others, while it would be harder for them to service KBL's core area, around Caboolture-Morayfield. In effect, some contraction of KBL's services would be unlikely to have an impact on bus passengers.

[43] The Council received a total of 87 submissions. Forty three were deemed to be properly made, and they opposed the development. There were two properly made petitions with 78 signatures. They also opposed the development.

[44] There are 38 co-respondents to the appeal, and they oppose the development. It seems that three of them do not live in the immediate area. The remainder, comprising 19 separate families or households, live in the neighbourhood surrounding the proposed development. Most of them live along Coutts Drive. Their daily travel by road takes them past the proposed development.

[45] Six of the co-respondents gave evidence. There is no reason to doubt the substance of their evidence, which was barely challenged.

[46] It is necessary to say something about the concept of amenity. As the present Chief Justice put it in Broad v Baptist Union v BCC [1986] Qd R 317 at 326:

"There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident's subjective perception of his locality. Knowing the use to which a particular site is or

may be put, may effect one's perception of amenity."

[47] Justice Thomas made some remarks in the same case, which was an application to rezone land from residential A to enable an existing building to be enlarged as an old person's home:

"I do not think that the concept admits of a tidy objective or subjective classification. Many statements can be found in the Local Government Reports indicating the relevance of subjective factors and many others can be found suggesting that the ultimate test is objective....descriptions or amenity of a neighbourhood as "the quality which it has of being pleasant or agreeable"...and as "that element in the appearance and layout of town and country which makes for a comfortable and pleasant life rather than mere existence" suggests that the ultimate test is an objective one at the same time recognising that it involves wide ranging and subtle criteria that may affect different individuals in different ways. It is inevitable that individual perceptions be received and evaluated in the course of ascertaining what the amenity is in a particular neighbourhood and what effect the relevant proposal will have upon it. ...

...The wide ranging concept of amenity contains many aspects which may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce..."

[48] See also the decision in Arksmead Pty Ltd v Council of the City of Gold Coast [2000] QPELR 285. Amenity does not just include the physical appearance of the surrounding land. It also includes the emotional or sentimental feelings that people may have about a place.

[49] It is clear that the witnesses have had very strong feelings about the proposed development. They see it as an unjustified departure from their expectations of living in an area which should continue to be rural residential. They fear that this development would lead to other commercial or industrial uses being approved. They are concerned about the greatly increased traffic on Coutts Drive, which, for most of them, is the only access to Morayfield Road. They are concerned about the impact of the development - its appearance, its 112 staff, its customers, and the noise and obtrusive appearance of around 100 buses, coming and going from the depot. There are concerns about the fuel to be stored at the depot, and the fumes of the diesel buses. No expert gave evidence about any effect of diesel fumes, but it can be accepted that those living nearby might be concerned and worried about the closeness of the diesel exhausts.

[50] While the constant background noise of the highway can be heard along Morayfield Road, most of the co-respondents live further away from that source of noise. Apart from the frontages to Morayfield Road, it can be seen that the properties surrounding the proposed development have a high level of amenity, for those who live there. It is also clear that this development would have a major impact on their perceptions about amenity. The careful efforts to soften the impact of the development (acoustic fences, vegetation, a noise management plan, care with lighting), will be significant, but they will not hide the development.

[51] In addition to the good level of amenity enjoyed by these residents, it should be accepted that they have "a distinct sense of place" which would be considerably damaged by the presence of this development.

[52] Three planners gave evidence - Mr Bullen, Ms Hanelt, and Mr Adams. When their reports are compared, it can be seen a significant difference lies in the emphasis given to the effect of this development on the amenity and character of the neighbourhood. It seems clear that Mr Adams had a better appreciation of the various impacts that this development will necessarily have. In evidence, Ms Hanelt did show an increasing appreciation of the impacts on amenity. As she said, the residents in the neighbourhood enjoy a high level of amenity.

[53] Because of the zoning, the residents have an expectation that the amenity will continue. As Mr Adams says, the establish of a transport depot on the site will create a diminution in the amenity in the immediate locality that cannot simply be mitigated by the imposition of conditions on the development. Buildings of such size and bulk and their visual impact cannot be effectively mitigated by setbacks or landscaping. The very presence of the bus depot will result in the reduction of amenity. The character of the immediate area will be changed. The industrial character will not be addressed with the implementation of conditions. The upgrading of Coutts Drive, at least for 90 metres, to an industrial standard would be a daily reminder to the residents of the change to the rural residential character. The views of the large buildings, security lighting, and increased traffic will reinforce the industrial appearance of the development. He is obviously correct.

[54] Mr Moore, an acoustic expert, gave evidence. The overall effect of his evidence was that the bus depot would not be a particularly noisy operation. Some aspects of his evidence should be taken into account. He explained that the noises from the workshop would comply with the usual daytime noise limit, with occasional exceptions for infrequent and very intermittent louder noises. However, the noise impact of the workshop would be such that there should be time limits on its hours of operation. He and Mr Kamst, another acoustic expert, agreed that the daily limits should be between 7am and 6pm. They did not agree about the weekend. There would be an issue about restricting Saturday operations to 12 noon or allowing them to continue to 6pm. Sunday would be a rest day.

[55] The buses might create some sleep disturbance up to 7am. A noise management plan is proposed, especially to deal with the noise of buses entering into Coutts Drive as they leave the site. The noise of acceleration, despite instructions to drivers, could produce some exceedance. Likewise, the noise of reversing beepers on the site could exceed noise limits before 7am.

[56] Overall, residents around the site would notice some additional noise. The efficiency of the noise management plan, naturally enough, would depend upon the diligent efforts of drivers and other staff to observe it over a long period of time.

[57] Security lighting, particularly in the winter months, would make an obvious difference. Even if lights are installed to the Australian standard, they would be quite noticeable.

[58] The visual impact necessarily will be considerable. The established trees on the Morayfield frontages will go. They will be replaced with new fences and new plantings. Even after some years, the proposed buildings are of such size and bulk that their visual impact will not be effectively mitigated by setbacks or landscaping. The workshop, in particular, will be visible as an industrial building from those passing the site. At night time, and in the early morning, the security lighting will add to its appearance as a non-residential site.

[59] The widening of the road surface in Coutts Drive, and the additional traffic from buses and passenger vehicles entering or leaving the site, will be permanent features of this operation. As Coutts Drive is the only entrance to the residences of all those who live in the neighbourhood, they must drive past the site in order to reach their homes.

[60] It is quite possible to reduce the extent of the bus traffic on Coutts Drive, and the extent of the road widening, by having a single driveway in and out of the site, closer to Morayfield Road. Mr Beard, the traffic expert, would have preferred that arrangement, compared to the separation between buses and smaller vehicles in the proposal. If his plan were adopted, then all the access could be accommodated within the first 90 metres from the intersection. The separation of vehicles would then be managed on the site.

[61] Mark Poole Properties Pty Ltd is a developer. It is interested in five properties along Morayfield Road, and on the northern side of Coutts Drive. That is, across the road from this proposed development.

[62] In June 2007 that company acquired options to purchase over the five properties. The options may be exercised within two years of the date of the option, with the possibility of extensions for a further six month period. The option agreements make no mention of this proposal. However, taking into account the written statements of Ms Crabb and Mr Salmucci, (neighbours of the proposed development) there is no doubt that the reason for the options was the expectation that an approval of this development would lead to other approvals for development of the other properties.

[63] In August 2007 Mr Webster wrote to the contract manager of TransLink. He explained his plans for a larger bus depot on the Coutts Drive site, and why that was necessary. There is no reason to doubt the contents of his letter. For present purposes, these are significant parts:

"At the commencement of the TransLink contract system, we informed TransLink that our current depot was already at capacity. We commenced our contract with a total of 35 TransLink vehicles.

We planned to purchase the next door property to provide the area required for the expansion of our business. This purchase would have enabled us to utilize our current administration facility, wash bay areas, fuelling area as well as the existing workshop, with planned extensions, into the future.

Having been informed by the Caboolture Shire Council that we could not expand our current operations, we started to look for other locations that would be suitable for our depot. We decided that our land across the road from our present site would be suitable to use as a parking area for our fleet. This would have enabled us to still utilize our existing facilities. The Department of Main Roads then informed us, that as part of the Morayfield Road upgrade, they would be resuming some of the land therefore this proposal was no longer an option.

We have now purchased land on Morayfield Road at Burpengary on which we plan to build our new depot. This site was chosen for its central location to our network and being large enough, not only for our future growth requirements, but it also is large enough for any possible amalgamations, which may happen in the future. ...

Once we settled on the land, we then proceeded to plan the new depot layout to ensure that our future requirements were taken into account. ...

This project is a considerable undertaking, but given the circumstances involving the Caboolture Shire Council's decision on the rezoning around the current depot, and including the surrounding area, we have no choice but to totally relocate our facilities.

The new depot will not only cater for our current fleet, the planned anticipated growth in the surrounding areas, but also caters for any future potential amalgamations that may arise in the future.

The construction of this new facility is another large commitment that our company is making to the future transport needs of this area, and this new depot is needed to support the already large investments our company has made into the public transport industry.

The current depot site, which is 4,527 sq metres, was valued at the commencement of our TransLink contract at $1.8 M returns a rent component, currently, of $132,145.

The new depot site consists of 4.95 ha of land, and has a value of $4 M, and with the cost estimates of approximately $9.5 M, the total cost of the project will be in the order of approximately $13.5 M to $14 M.

Since we submitted our Development Application to the Caboolture Shire Council, the Council has now issued our company with an Enforcement Notice to stop operating our business from the neighbouring properties. We have submitted, through our solicitors, an appeal to this notice, but it confirms the Council's intention to have us relocate.

As you can appreciate, we need to have a base from which to operate. It needs to be centrally located in our area of operations in order to reduce any additional costs that would be associated with any depot located outside our operating area." (emphasis added)

The first thing is to note his efforts to purchase the next door property. That would provide the area required for the expansion of the business. The existing infrastructure would be used, with an extension to the workshop, into the future.

[64] It was stated at the hearing, that the area of the present operation was 1.25 ha. That comprised 4,000 m2 of land zoned special facilities, and 8,005 m2 of land for which rent was being paid to the neighbours.

[65] This letter says that the current depot site is 4,527 m2. If that is correct, then the total area is 1.3 ha.

[66] A town planner, Ms Hanelt, became involved in the project from the middle of 2005. On 10 April 2007 she completed a report to support the present application. At paragraph 1.6, it said that KBL had spent considerable time sourcing suitable sites, and that the requirements of a new site included:

"Suitably sized (minimum of 2.5 ha) and shaped to accommodate future expansion and to contain any associated impacts on the site."

[67] At 2.5 ha, a site would have been almost double the area of the existing site, including the rented land. That would be enough to accommodate future expansion, and to contain any associated impacts on the site.

[68] Mr Webster's letter makes it clear that he had in mind that this proposed site would be large enough for possible amalgamations, which might happen in the future. That would be in addition to the planned anticipated growth of the present fleet of buses. An amalgamation presumably means the acquisition of an existing bus line, which is already in operation elsewhere. That is, all or part of the other bus lines' operation would be moved to this proposed site.

[69] In his statement, Mr Webster spoke of the requirements of a suitable site:

"13. Ideally, a site for the business needs now to be 10 acres minimum. That size permits adequate space for the office, all necessary service areas, and space for the parking of the buses. It permits some space for future expansion of the business. The area must be reasonably flat." (emphasis added)

[70] When cross-examined about the present plan, which shows the grassed area for "longer term bus parking and stormwater detention area". Mr Webster replied:

"The main reason we put that on the plan was we were advised that we need to put all potential future uses on it so that it covers all possibilities now and in the future so we don't have to go and revisit this whole experience again in another 10 years time to park buses. Now whether we ever use that area or not is crystal ball. I don't know. ...Well, we've been, we've been on our current site for nearly 30 (years) and I certainly would hope I don't have to go through this exercise every 10 years and yes, that is where our plans are, for it to be long term." (T49ll30-50).

[71] Ms Hanelt explained that the reference to a 2.5 ha minimum in her first report was with reference the situation at the time - a bus fleet in the high 50's which did fit on the existing site, but not very comfortably, and that there had been an increase since this application was made. In her view, the minimum site to accommodate the present application would be 4 ha.

[72] When cross-examined, Ms Hanelt agreed that the use of piping would mean that the detention basins would not be needed. She also agreed that the present application represented the optimum layout and the preferred layout for Mr Webster.

[73] During Mr Webster's examination-in-chief, his counsel asked him, "What are the requirements ideally for the location of a bus depot?" He replied, "From our point of view..."

[74] Ms Hanelt explained that, when she was looking for industrial land, she had a size of 5 ha in mind. As she put it:

"I was looking at that stage at about 5 ha ... because that was, you know, in an ideal situation and would have allowed for very long term growth of the depot. ..." (emphasis added)

[75] In 2005, when Mr Webster and the Council could not agree about the use of the neighbours' land, he looked elsewhere. His first choice was to make use of some land which he already owned, on Lindsay Road. That was very close to the existing operation, and would have been suitable for parking the buses. However, on investigation, it turned out that Main Roads planned to resume part of the land. He abandoned that possibility.

[76] Mr Webster looked for land further away. He involved Ms Hanelt. She looked for industrial land. He spoke to real estate agents. He approached the Council about the matter, but the Council officers could not suggest any available land, in the industrial and commercial centres. Industrial land, if available, was relatively expensive. There was some evidence here that the going rate for industrial land in the district is about $350.00 per m2.

[77] Mr Webster was constrained by his determination to find a location which suited KBL, especially something that was not too far from the Morayfield-Caboolture corridor. His aim was always to locate the whole operation on one piece of land, because of his conviction that splitting the operation would be a more expensive and less efficient exercise.

[78] For him, the locational requirements are important. The site has to be central to the catchment area of the service. That meant finding a site pretty close to the existing depot, as the service had grown out from that depot. The purpose was to minimise the time that buses spent travelling to commence their route, or to return home once a run had finished. It is important for him to try to minimise "dead time", when the buses would be travelling empty. He explained that Morayfield Road was central to the catchment of KBL - Morayfield was to the north, Deception Bay to the east, Burpengary to the south and west. There were services to all those areas.

[79] Secondly, he wanted a site on a main urban service route. From his perspective, it permitted shift changes of drivers to revolve around the depot site. It also ensured the depot would be easily accessible to those who may not wish, or not be able, to drive to it.

[80] It was also desirable, in his view, for the depot to be close to the Bruce Highway, for easy access to that main arterial road.

[81] Mr Webster found no suitable land, and certainly no land in the location which he wanted. He was then introduced to the present land. He bought the two blocks for $1.8 M in July 2006. The land had every desirable quality - except an appropriate zoning. He believes that he can sell his existing land for around the same price, of $1.8 M. From the point of view of price and location and the least impact on his existing operations, he agreed that the move to Cootes Drive would be "quite a neat move". It was a very attractive proposition, from a commercial point of view. The brief evidence about land values shows that a comparable area of industrial land might have cost around $12 M.

[82] Ms Hanelt was not involved in introducing him to the present land. She had been looking for industrial land. She was then retained to prepare the present application, which was lodged on 11 April 2007. As the preamble to her report said "this report has been prepared for Kangaroo Bus Lines to support the development application for a development permit for a material change of use ...". At the hearing, she agreed that the selection criteria, which demonstrated that Coutts Drive was appropriate, had arisen out of the effort of "putting KBL on Coutts Drive", and in the course of this appeal. (T4-31).

[83] She explained why KBL had to relocate. She then went on to say this:

KBL has spent considerable time sourcing suitable sites. The requirements for a new site include:

• Appropriately situated - with respect to the catchment at services to ensure the ongoing efficiency of the service and to maintain high levels of accessibility for residents of the Shire.

• Access to an existing arterial road network to reduce unnecessary traffic in local streets.

• Suitably sized (minimum of 2.5 ha) and shaped to accommodate future expansion and to contain any associated impacts on the site.

• Suitable topography - to make the use of the site practicable; and

• Appropriately located with respect to minimising impacts on neighbouring properties.

The relocation of the KBL operations to the subject site will cost approximately $10 M. Relocation to run strategically located is the preferred strategy for establishment and operational cost efficiency in the short and long term."

[84] Understandably, after July 2006, and the purchase of the Coutts Drive land, Mr Webster's aim has been to persuade the council, and now this court, that his proposal should be allowed. He had no interest in looking for land in the industrial or commercial zones. There is no evidence about the availability of appropriately zoned land, between April 2007 and August 2008, when Mr Adams found four pieces of land that he suggested were suitable.

[85] Ms Hanelt's report at paragraph 5.3.7 concluded by saying: "therefore, it is submitted, that given there are no other sites available or reasonably located particularly with respect to the prohibition of development outside of the Urban Footprint, that the balance of zones will not be compromised."

[86] Overall, it can be seen that Ms Hanelt's report is a persuasive exercise, designed to emphasise the reasons why the application might be permitted, notwithstanding its evident conflict with City Plan. She also suggested that the council was required to amend its planning scheme, to align with the SEQ Regional Plan. See p 33 of the report.

[87] The availability of other industrial land has become an issue in this appeal. That is because Mr Adams, a planner retained by the co-respondents, raised the issue in his report of August 2008. At p 16, he explained that he had made enquiries and identified four sites which were presently available, or in the very near future.

[88] This appeal is a re-hearing. That is, the factual situation up to the time of the hearing has to be taken into account. The availability of other land at the present time was considered at the hearing.

[89] The present availability of other land became a significant issue in the appeal. That is, the central issue relied upon by Mr Webster was the planning need for this development on this land. As Ms Hanelt said, if there were an available alternative site, when the application was made, then the appropriately zoned site would have been preferable. That remains the issue, at the present time.

[90] The Foster Road site of 5.5 ha is in the Burpengary Local Industry Zone. The maps show that it is on the other side of the Bruce Highway, about 2 kms to the south of the proposed site. Mr Webster had reservations about it, but his main one clearly enough was a concern about its cost. It was on the market for $15 M. He said, that KBL could not afford that level of capital investment. Surprisingly, he was concerned about its closeness to a small lot residential area. In the submissions of counsel for KBL, objections to this land were its cost (the principal objection) and its closeness to the residential area. A transport depot is a code assessable, consistent use in that zone.

[91] Attention was then paid to blocks of land further to the south, in Narangba. Across the highway on the eastern side there is the Narangba Regional Industry Zone. See exhibit 18A. There is vacant land there, but it can be immediately dismissed as a possibility. It was made clear by the authority in control of it, the Department of Industry, that it was reserved for hazardous industries, and would not be available for a bus depot.

[92] A suitable area of land was in the Gateway Business Park on the western side of the highway. Ms Hanelt pointed out that it had not been subdivided, and a title would not be available for six months or so. In any event there was a concern that all of the land might have been taken up by another business. It is about 8 km to the south of the proposed site. Mr Webster said that it did not meet his locational requirement (ie too far to the south). Ms Hanelt said that it was right at the southern end of the range of KBL services. There was no enthusiasm, to inquire further if it would be available, or to secure the land.

[93] Mr Adams identified a fourth site, in the New Base Enterprise Park, at Brendale. The land is zoned general industry, under the Pine Rivers Shire plan. It is fully serviced. A bus depot would be a consistent use within the zone. A 5 ha site is available for purchase. There was no mention of the price.

[94] Mr Webster believed that the site was 25-28 kms from KBL's current site. He believed that it was located south west of Strathpine. In that case, it would be very difficult for his staff to travel so far to and from work each day, to secure their current employment. It was "well and truly away from the area in which we operate". He also pointed out that there are existing bus companies down in the Strathpine area.

[95] Overall, its distant location does not make it a genuine candidate in this case.

[96] Ms Hanelt had previously looked at the industry zones in the Shire. She found no available land there. It was not suggested here that land was available, at that time.

[97] In Ms Hanelt's opinion, this bus depot would be appropriate in a district industry zone. The buses took up a large amount of room, but it was not a heavy industrial use. Ms Hanelt thought that the Boundary Road site was a suitable site for the bus depot apart from the closeness of the residential use across the road. See T91l30.

[98] Ms Hanelt expressed the view that there was no prospect of getting council approval to locate the bus depot in the rural zone. It would be possible to get approval on those parts of the rural zone which were inside the urban footprint. However, she explained that none of that land was available.

[99] The court is obliged to follow the laws which apply to the application for development. In this case, the starting point is the IPA, a statute applying to all development in Queensland. The court also has to apply any settled principles developed by earlier court decisions, in planning matters.

This application required impact assessment. Section 3.5.14 of IPA says:

"Decision if application requires impact assessment

(1) This section applies to any part of the application requiring impact assessment.

(2) If the application is for development in a planning scheme area, the assessment manager's decision must not -

(a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or

(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.

(3) If the application is for development outside a planning scheme area the assessment manager's decision must not compromise the achievement of the desired environmental outcomes for any planning scheme area that would be materially affected by the development if the development were approved.

(4) Subsections (2a) and (3) do not apply if compromising the achievement of the desired environmental outcomes is necessary to further the outcomes of any of the following if they are not identified in the planning scheme as being appropriately reflected in the planning scheme in:

(c) for the planning scheme of a local government in a designated region - the region's regional plan."

[100] Here, it is necessary to look at the SEQRP, and its outcomes for public transport. Are these outcomes identified in Caboolture's Shire Plan, as being appropriately reflected in that planning scheme? They are not so identified. The achievement of a DEO may be compromised, if that is necessary to further the public transport outcomes of the SEQRP.

[101] It is necessary to return to the difference between compromise and conflict in s 3.5.14(2). If a development application would compromise the achievement of the desired environmental outcomes for the planning scheme area, it must be rejected. On the other hand, if the development would conflict with the planning scheme, then it may be allowed if there are sufficient grounds to justify the decision, despite that conflict.

[102] It is helpful to refer to the explanatory note to the Bill which proposed s 3.5.14(2) to parliament. It was prepared by parliamentary counsel. See 1997 Explanatory Notes at page 1966;

"Decision if application requires impact assessment

Clause 3.5.14 sets out the decision rules for impact assessment. This clause also needs to be read together with clause 1.2.2 (Advancing Act's purpose). The clause is structured to place strong emphasis on the planning scheme. Achievement of the desired environmental outcomes must not be compromised and there must be no conflict with the planning scheme unless there are sufficient justifiable planning grounds. This is consistent with the significant role of the planning scheme under the Bill. The desired environmental outcomes may be regarded as the essence or core of a planning scheme, and this clause makes it clear that the impact assessment decision must not threaten their achievement. Planning grounds that may be sufficient to justify a decision which conflicts with a planning scheme may, for example, be on the basis of new information available since the scheme was made, incorrect information being included in the scheme, or a factual error of the scheme itself."

[103] That note refers to a decision which "threatens" the achievement of a DEO. The idea of a threat is consistent with the dictionary definition of "compromise": to expose to risk or danger, to imperil, to involve in a hazardous course...exposed to risk, danger or discredit - OED.

[104] The decision of this court in Koerner & Ors v Maroochy Shire Council & Ors [2003] QPEC 054 should be noted. An application to build a commercial complex containing show rooms, a service station, convenience restaurant, garden centre and supermarket at Coolum was opposed. The judge found that there was a strong town planning need for the development. Its opponents contended that the hierarchy of centres in the Maroochy Shire would be compromised, because the proposed site could not be considered to be the sort of centre envisaged by the strategic plan. The judge went on to discuss the role of the DEOs in this way:

"[23] Under IPA s 3.5.14(2)(a) an assessment manager in considering an application for development in a planning scheme area must not compromise the achievement of desired environmental outcomes for that area. DEO No. 3 relevantly provides...

[25] IPA 3.5.14 otherwise goes on to provide that the proposed developments must not conflict with the planning scheme unless there is sufficient planning grounds to justify the decision. There is, then, a distinction between compromising the achievement of DEOs and conflicts with the planning scheme. For a development to compromise the achievement of a DEO, there would, it is clear, have to be obvious and significant cutting across of that DEO in such a manner that its achievement on a shire-wide basis had plainly been compromised. The first part of the section, concerning DEOs, looks to the macrocosm of the entire planning area and the possibility that the "vision" for it is, as a whole, adversely affected. The other looks, comparatively speaking, to the microcosm of particular parts of this strategic plan and involves a much more pedantic exercise.

The DEOs simply form part of all of the relevant elements of the plan which the court must consider, including those matters to which the scheme itself pays significant obeisance; community need, and demand; the desirability of, and possible benefits from the proposal; the impact it would have, and of course prevailing realities - whether development in the area has advanced, or will advance, in accordance with the Plan.

[27] When Maroochy Plan 2000 is properly construed in that fashion, it is clear that it will be a relatively rare occasion in which "compromise" of the DEOs is manifest. ...

[28] ... very general provisions of this kind must be read in concert with the specific planning provisions of the precinct, and that exercise undertaken later. It shows there is, again, no evidence the DEO is 'compromised' in the sense there is plain damage to the 'vision' for the Shire and, rather, the proposal is consonant with the parts of Maroochy Plan 2000 directly touching this land." (emphasis added)

[105] In Ross Walmore Property Pty Ltd v Maroochy Shire Council [2008] QPEC 050, a judge of this court, in relation to an argument that a proposal conflicted with the DEO, said "this cannot be accepted, bearing in mind the stringent test to be applied namely, 'there would...have to be an obvious and significant cutting across of that DEO in such a manner that its achievement on a shire wide basis had plainly been compromised.'"

[106] In my respectful opinion, the statutory words in s 3.5.14(2)(a), "desired environmental outcomes for the planning scheme area" do not mean that the achievement of a DEO "on a shire wide basis" is the correct application of the statute. There are several considerations which support that view:

(a) The expression, "the desired environmental outcomes for the planning scheme area" comes from its introduction in s 2.1.3(1)(b) of IPA. That is, they are the DEOs for the planning scheme area in question, and not some other planning scheme area. As s 2.1.2(1) says, a local government's planning scheme applies to the whole of its planning scheme area.

(b) Section 3.5.14(3) (above) makes that clear enough, by referring to development outside the planning scheme area, that might affect outcomes inside that planning scheme area.

(c) The explanatory note says "...threaten their achievement," but does not go on to add the words, "on a shire wide basis".

(d) A planning scheme may identify DEO's for particular localities within the planning scheme area - s 2.1.3(3).

(e) The expression, "DEO's for the planning scheme area" appears to have the same meaning as the expression "DEO's stated in the planning scheme" - see ss 2.2.1(2) and 5.5.1(1)(a).

(f) A DEO may focus on a particular thing, rather than having shire wide application. For example - DEO 3.1(c)(ii) of this Shire Plan:

"There are no significant adverse effects on major natural features including...the Glasshouse Mountains...in terms of land, air or water quality, recreational use, scenic amenity or their use as open space links"

No doubt the degree of any significant adverse effects on the Glasshouse Mountains would be taken into account. If there were a significant adverse effect, then the achievement of the DEO would be compromised. There would be no reason to look at the entire planning area. There is no reason why the impact on the Glasshouse Mountains should be lessened, or scaled down in some way, by looking at it "on a shire-wide basis".

(g) Section 3.5.14(2) requires a definite question to be answered - whether or not the assessment manager's decision compromises the achievement of a particular DEO. The complexity of the town plan, and the many matters which have to be taken into account in construing and applying the planning scheme, and issues such as planning need, should not detract from the command of the section.

(h) The DEO is dominant. A planning scheme includes measures that facilitate the DEOs to be achieved. See s 2.1.3(1)(c) and (2).

(i) The contrast between "compromise" and "conflict" is significant. It was discussed, just after the introduction of IPA, in "Planning & Development Queensland", by Fogg, Meurling & Hodgetts at p 3535, in relation to the similar s 3.5.13(4),

"The second qualification, that DEO's not be compromised will require judicial interpretation. DEO's are novel in Queensland legislation. It is clear that the test is separate from the conflict test in s 3.5.13(2) and does not expressly permit the offsetting of compromise against planning benefits. It is tentatively suggested that the mandatory requirement to avoid compromise of DEO's without regard to offsets indicates that the legislature treats the issue as inherently more judgmental than the conflict issue in s 3.5.1.3(2).

The extent to which s 3.5.13(3)(b) is a constraint on the power will obviously depend on the nature and urgency of DEO's in an IPA - compliant scheme ...".

[107] Mention was made of local, specific DEO's in Stappen Pty Ltd v Brisbane City Council [2005] QPEC 3; (2005) QPELR 466 at 472. Referring to s 3.5.14, the judge went on to say:

"The subsection distinguishes between DEO's and their possible 'compromise' and 'conflict' with the scheme. Of the former, it has been said that city or shire-wide DEO's being very broadly based, may rarely be the subject of compromise, but here there are specific DEO's 'applying' to the area, ... it is appropriate to distinguish between the weight to be given to them as opposed to the broader city - wide provisions ... where there is an appearance of a compromise of the specific, smaller scale DEO's for a particular area were weight and importance should be attached to that than would ordinarily be attracted by the large scale, city wide DEO's ..."

In my respectful opinion, that approach continues a mistaken view of "city wide provisions." It devalues DEO's that should be given their intended meaning and application. It does not give effect to the proper meaning of s 3.5.14(2)(a), which forbids development which compromises the achievement of a DEO.

[108] If the achievement of a DEO is not compromised, then attention has to be paid to s 3.5.14(2)(b). Would the approval of this proposal conflict with the planning scheme query? If it does, it is necessary to identify the conflicts with the planning scheme.

[109] Once that is done, it is necessary to consider the planning grounds which are put forward to justify the decision. If they are sufficient, it may be approved. If they are not sufficient, then the application must be refused.

[110] That approach, in substance, has been considered by the Court of Appeal in Weightman v Gold Coast City Council [2002] QCA 234; [2003] 2 Qd R 441 and Woolworths Ltd v Maryborough City Council (No. 2) [2006] 1 Qd R 273. As the headnote in the latter report puts it:

(1) That in s 3.5.14(2)(b) "conflict" meant to be at variance or disagree with.

(2) The s 3.5.14(2)(b) required the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a determination whether the former conflicted with the latter. Only if such a determination had been made was it necessary to consider whether there were sufficient planning grounds to justify the decision.

(3) That the question of justification under s 3.5.14(2)(b) required the identification of planning grounds which might justify the decision and the determination of their sufficiency to do so. In making that determination regard would be had to the nature and extent of the conflict.

[111] Sufficient "grounds" do not include the personal circumstances of KBL. That word is defined to mean, "matters of public interest which do not include the personal circumstances of an applicant, owner or interested party". See the definition of "grounds" in Schedule 10 to IPA.

[112] In considering the sufficiency of planning grounds, the court must act with care and restraint. The Court of Appeal has recently mentioned the matters to be taken into account - see Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157. At paras 54-57 it confirmed earlier statements of principle, which can be repeated here in an abbreviated way:

The proper approach of the Planning and Environment Court .... to matters of planning policy has long been recognised as one of restraint. Most recently this court affirmed the desirability of a self-limiting approach, at least when considering town planning .... It should not be necessary to repeat it but this court is not the planning authority for the City of Brisbane. It is not this court's function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a planning authority in a careful and proper has to adopt .... It would be quite inappropriate for this court to deal (sic) with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to `cut across' in quite unacceptable manner, a planning strategy which has been adopted by the planning authority and publicly exhibited for community comment.

.... conflict between a development application and strategic plan was often fatal to the application, even prior to the introduction of s 4.13(5A) and its counterparts in 1992. .... "As has been said repeatedly, this court is not the planning authority for this area and it is my view that it would be inappropriate for the court to approve a proposal which is squarely in conflict with the formally expressed planning strategies of that authority."

"The strategic plan and the strategic plan map are legitimate planning tools adopted by a local authority for the future planning of the local authority area. The local authority in those circumstances is planning ahead and endeavouring to direct its future planning process in an orderly manner."

"The court has, however, repeatedly stressed the importance of strategic planning and the need to respect and support the integrity of the important planning tool which the strategic plan is. There may be cases where a departure from the strategic plan could be justified; where, for example, the planning strategies which it represents, having been overtaken by events (or for some other reason), clearly no longer have any application; or where it can be demonstrated plainly the land has been given a designation on the basis that was and remains invalid"

"The significance of strategic planning, particularly on rezoning applications, has been recognised by the court on many occasions. Since the forward planning documents of a local authority are indicative of the intent of a planning authority as to the future preferred form of development that it sees for its local authority area, considerable weight ought to be given to the provisions of forward planning documents of a local authority"

The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme. It is important not to minimise the force of this consideration. In the striking of the overall balance in a planning scheme, there will be 'winners and losers' so far as individual interests are concerned.

[113] Planning documents should not be interpreted in a legalistic or pedantic way. If their meaning is not immediately clear, then they should be interpreted in a way that seems best to achieve their purpose.

[114] The DEO's may be compromised, if that is necessary to further the outcomes of the SEQRP. In this case, attention was focussed on part 12 of the SEQRP, at p 106, under the title "Integrated Transport". The first 5 pages of that topic were referred to by counsel.

[115] Desired Regional Outcome 12 should be noted:

"A connected and accessible region based on an integrated transport system that supports more compact urban growth and efficient travel; connects people, places, goods and services; and promotes public transport use, walking and cycling."

[116] An aim is to make public transport more viable and attractive. The explanation continues:

"The foundations are in place for an integrated transport system in SEQ. A strong busway network has been started in the Brisbane area and TransLink is delivering an integrated public transport system to increase bus, ferry and train use across the region. Further planned investment in public transport infrastructure and services will make public transport a more attractive choice in the future. At the same time, new roads, better orbital road networks, and improvements to existing roads are being planned to address the most congested parts of the network and ensure effective regional connections."

[117] Paragraph 12.1 deals with Strategic Transport Planning. The principle is this:

"Support on a compact pattern of urban development and promote the self-containment of travel in sub-regions by integrating transport and land use planning."

[118] The policies to achieve that principle are these:

"12.11 Create an interconnected and co-ordinated transport system by integrating infrastructure and services planning and delivery across all modes of travel.

12.12 Support transit communities and regional activity centres with priority public transport network services.

12.13 Ensure planning and development of urban areas supports walking, cycling and public transport.

12.14 Develop strategic and integrated regional road, passenger transport and freight network plans.

12.15 Align transport plans, policies and implementation programmes at regional and local levels."

[119] The Notes to 12.1 emphasise the need for better integration of transport and land use. There is a wish to improve the public transport system in SEQ. There is a mention of structure planning in greenfield areas and the development of State Infrastructure Agreements, which will be used to ensure better integration of land use and transport planning in urban developments. It is said that transit oriented development and regional activity centres are essential components of urban structure and form. "Transport investment by the Queensland Government, particularly in public transport, will support transit oriented development and regional activity centres."

[120] Paragraph 12.2 deals with sustainable travel and improved accessibility. The principle is to "provide sustainable travel choices to support the accessibility needs for members of the community". The policies include these:

"12.2.1 Develop a high quality and accessible public transport network linked to regional and sub-regional centres and services.

12.2.2 Support walking, cycling and public transport use with new infrastructure, improved services and information.

12.2.3 Increase awareness of options for sustainable travel and influence travel behaviour to reduce dependence on private car travel."

"Access to a public transport system that conveniently connects people with goods, services, places and other people is essential in a large and vibrant urban region.

A high quality public transport network in SEQ will:

• Support increased urban densities around public transport nodes and along public transport corridors.

• Provide access to community services and employment.

• Reduce commuter travel time, travel stress and loss of productive work time.

• Improve environmental outcomes by reducing the number of private motor vehicle trips; and

• Improve travel choices, particularly for people disadvantaged in their access to transport."

[122] Paragraph 12.3 deals with effective transport investment. There is to be investment in the transport system to maximise community benefit. These policies are irrelevant:

"12.3.1 Support the preferred sequence and form of development through investment in transport infrastructure and services.

12.3.2 Support a range of measures to improve travel choices, including policy, education, infrastructure and services regulation, demand management, marketing and non-transport solutions.

12.3.3 Develop and manage strategic road and rail linkages to regional Queensland and other states.

Investment in transport infrastructure, public transport services and new policy measures will be a major component of the preferred future for SEQ.

The Regional Plan strongly supports public transport and active transport modes such as walking and cycling. The early planning and provision of public transport services and walking and cycling networks in emerging communities will ensure residents have access to sustainable transport choices from the outset.

For the road system, orbital road networks and new links that connect centres are needed to reduce traffic congestion and manage growth.

The Infrastructure Plan is the main instrument for co-ordinating the planning and delivery of regionally significant transport infrastructure within SEQ. ..."

[124] It is clear that the encouragement of public transport by bus, and by integrated bus-rail links is part of the SEQRP. The reference to "public transport infrastructure and services" is wide enough to include a bus depot, and the bus service based there.

The issue is whether or not the present proposal is necessary to further the transport outcomes of the SEQRP. If so, then it may compromise the achievement of the DEO's in the Shire Plan.

[125] The Shire Plan took effect on 12 December 2005. It was not suggested here that its provisions had been overtaken by events, or had been mistakenly adopted, or should otherwise be disregarded.

[126] The Shire Plan has the force of law. It may not prohibit the development of land, or the use of land. See s 2.1.23(2) of IPA. That is why the council or this court may agree to a material change of use, which is discouraged by the Shire Plan. That general limitation on its power, is subject to s 3.5.14(2)(a) - a DEO may have the effect of prohibiting certain development.

[127] This project is in the Rural Residential Zone. It is necessary to take into account the applicable provisions of the Shire Plan. It is appropriate to place the DEO's first.

(a) The desired environmental outcomes are based on ecological sustainability established by the IPA and are the basis for the measures of the planning scheme.

(b) Each desired environmental outcome is sought to be achieved to the extent practicable having regard to each of the other desired environmental outcomes.

(v) Commercial users are consolidated in centres and are located in accordance with the centre's hierarchy in which order commercial, retail and administrative uses are located in the Caboolture-Morayfield Metropolitan Centre. Middle order commercial uses are located in the Bellara, Burpengary and Deception Bay District Centres and single or a small number of convenience uses are located in the various local centres dispersed throughout the Shire.

(vi) Industrial uses are consolidated in industrial areas and are located in accordance with the industrial hierarchy in which large scale high impact industries are located in the regional industry zone at Narangba, medium scale low impact industrial uses are located in the district industry zone at Caboolture (Bribie Island Road/Bruce Highway Interchange) and Morayfield (Nolan Drive) and small, low impact industrial uses are located in the local industry zone dispersed throughout the Shire.

(viii) Rural lands are conserved as a fundamental and valuable element of the Shire's identity and character and are protected from incompatible non-rural land uses.

(ix) The efficient and effective use and provision of physical and social infrastructure in the Shire is maximised.

(xii) The valuable features, built environment and land use pattern of new, and the growth or redevelopment of existing communities provides areas with a distinct sense of place and local identity.

"1.3 (a) The Strategic Framework reflects the Shire

Plan's desired environmental outcomes and summarises the approach taken by the Shire Plan to achieve these outcomes.

(b) The intent of this division is to summarise the key strategies contained within the Shire Plan and does not have a role in development assessment under the planning scheme.

(a) The dominant pattern of new urban and rural residential development is the redevelopment of existing areas and infill development within existing urban boundaries.

(a) The Morayfield District Industry Zone is established as a high quality, master planned locator for environmentally responsible industries and support uses is [] to be a framework for managing development in a way that advances the purposes of IPA. It has to be read together with IPA (Introduction, at p 1).

(e) New development contributes to the creation of a distinct sense of place and identity for the Shire and individual locality through respect for natural features, local values and local climatic considerations and the use of traditional building materials and forms."

The use of premises for the transaction of business, the discharge of professional duties or the like. ...

The use of premises for the servicing, repairing or garaging of trucks, buses or similar large vehicles used to transport passengers or goods. ...

Buffer areas minimise the impact from other land uses on rural residential development and minimise the impact from rural residential development on sensitive environmental

Transition areas retain large land parcels for possible future residential

[131] At p 36 Table 4.2, the Assessment Table (MCU) for the District Industry Zone, shows that a transport depot is code assessable in that zone. Table 4.11, at p 113, the Assessment Table for the Rural Residential Zone says that a transport depot is an inconsistent use in that zone.

[132] There are Overall Outcomes for all planning areas. See p 158.

(A) Commercial uses are located in centres in accordance with the centre hierarchy expressed in descending order of importance (both in terms of physical size and function as follows):

(i) The Metropolitan Centre ... is intended to cater for a full range of commercial and retail uses ...

(ii) The District Centre zone generally caters for a catchment population of 5,000 - 8,000 households located within a number of communities. The zone is intended to cater for a broad range of commercial and retail uses, ... . District centres are located at Belara, Burpengary and Deception Bay.

(iii) The Local Centre Zone generally caters for 1,000 - 2,000 households located in one community. The zone is intended to cater for a limited number of predominantly food and personal services based retail and convenience stores. The zone generally has a gross nettable area of between 500 m2 and 4,000 m2. Local centre zones are located throughout the Shire and are consistent in scale and functioning with residential areas.

(A) Minimise impacts on the environment and the amenity of surrounding uses,

(B) Are located in industrial zones in accordance with the industrial hierarchy expressed in descending order of importance (both in terms of physical size and function) as follows:

(i) The Regional Industry Zone caters for industrial uses that are difficult to locate due to their size, scale or potential for significant adverse amenity and environmental impacts; the only Regional Industry Zone in the Shire is located in Narangba.

(iii) The Local Industry Zone caters for a broad range of small scale, low impact industries and support uses that are highly unlikely to cause significant adverse amenity or environmental impacts and that typically service a local catchment; local industry zones are located in a number of different locations throughout the Shire.

(v) The needs of the expanding community are supported by the provision of a range of easily accessible community services and recreational activities provided in appropriate locations.

(vi) Development improves the visual and physical integration of compatible uses and the separation of incompatible uses through the use of appropriate positioning, buffers and design.

(xi) Development optimises, but does not strain, social and physical infrastructure, facilities and services which are appropriately located in a cost effective manner, to meet the expectations of the users.

(xii) Development minimises urban sprawl while optimising the use of land through consolidation and infill development and by containing commercial, industrial and residential development within existing zone boundaries.

(xiii) Development achieves an appropriate urban form and appearance having regard to the existing and intended form of the area, whilst responding to the physical elements of the site and its surrounds.

(xiv) Building heights are in keeping with the preferred built form and are suitable for the character of the area.

[133] The overall outcome sought for the Central Planning Area (which contains this land) are the following:

"c(i) Development is consistent with the desired character of the planning area that comprises:

(A) Discrete, urban areas dominated by low density, low rise, single detached and dual occupancy dwellings separated by domestic green space ...

(B) Distinct, compact and mixed use centres having clearly defined edges, ...

(C) Distinct, compact industrial areas having clearly defined edges that contain a wide range of industrial and support uses suitable to their intended function and buffered from sensitive uses, including the Narangba Regional Industrial Zone. ...

(D) The urban areas of Caboolture-Morayfield-Burpengary-Narangba and Deception Area are separated by rural residential, rural, open space or nature conservation areas. ..."

[134] An overall outcome for the Morayfield locality, which contains this land, is that:

"(G) Commercial uses are of a scale that is compatible with a dominant built form of the surrounding area, are clustered on contiguous land and are located and function in a manner that services only the convenience needs of a clearly defined local resident catchment."

[135] At p 248, the assessment criteria for the Rural Zone, indicates that an appropriate use would be a transport depot, on a lot greater than 16 hectares. Consistently, a transport depot on a lot less than 16 hectares is described as an inconsistent use. See p 250.

[136] Assessment criteria for the District Industry Zone are at page 172-177. A transport depot is a "probable solution" in this zone - p 173.

[137] This land is in the Rural Residential Zone. The assessment criteria, at p 257, include these overall outcomes, which are sought:

(i) Development is consistent with single detached dwellings on large lots, with restricted agriculture and non-intensive animal husbandry activities contributing to a semi-rural setting.

(iv) A range of appropriate lot sizes are provided to maximise residential choice, retain areas for possible long-term residential development and accommodate required infrastructure, such as on-site effluent disposal areas.

(v) Commercial uses of a size and scale that provide only for the convenience of the local residents are appropriately located within the local catchment.

(vii) Adequate buffers exist to minimise the adverse impact of rural and other non-residential activities.

(viii) Development does not pre-empt or compromise the potential development of the Rural Residential (Transition Area Designation) for urban purposes beyond the life of the planning scheme.

[138] Table 5.14, at pp 258-9 says that an "office" or "transport depot" are included in a long list of inconsistent uses in the rural residential zone. It also goes on to say, with respect to building design, that the building scale form and bulk is to be consistent with that of a dwelling house, incorporating traditional Queensland design elements. In particular, the length of a wall is not to exceed 15 metres. Buildings are to incorporate large decks, sun shading devices and other building features traditionally used in the design of Queensland houses. (See s 504 at p 259).

[139] Section 09, at p 261, deals with long term development. Land in the Rural Residential (Transition Area Designation) is to be retained in large lot sizes and not developed for purposes that might conflict with or constrain possible future urban development. The lot sizes are set out in Table 7-21 at p 356.

[140] The Reconfiguring a Lot Code appears at p 345. Specific outcome s 07 is this:

(a) Lots have an appropriate area and dimensions for the establishment of uses consistent with the purpose of the relevant zone ...

(b) For the Rural Residential Zone the minimum lot size achieves the following:

(i) for land located within the "Buffer Areas Precinct" the impact of other land uses on rural residential development is minimised and the impact of the rural residential development on sensitive environmental and rural areas is minimised.

[141] There is a need to refer to the map after p 430, Residential Area 6 Morayfield, to see the extent of the transitional land. It shows that this land, on the north western side of Ogilvy Drive, is in the buffer area. Across Coutts Drive, to the north west the land is in the blue transition zone.

[142] The Shire Plan gives no support for this proposal. The proposal conflicts with the Plan in several ways:

(a) This would be mainly an industrial use, with a commercial component. This land is not in an industrial area - DEO 3.1(c)(vi).

(b) It is contrary to the ancillary aim of consolidating residential uses in the Morayfield Corridor (DEO (c) (xvi)).

(c) It will not provide an area with a distinct sense of place and local identity - DEO 3.1(c)(xii).

(d) The development would not contribute to the creation of a "distinct sense of place and identity for the area around (Coutts Drive) through respect for local values, and the use of traditional building materials and forms" - Strategic Framework (e).

(e) The location of the bus depot in this rural residential area will not minimise its impact on the amenity of the surrounding residential uses - Overall Outcome 5.4 (b)(iii)(A).

(f) It is an inconsistent use in the Rural Residential Zone - Table 4.11 at p 113.

(g) The industrial use will not be in an industrial zone - 5.4(b)(iii)(B) at p 158.

(h) The development would not achieve the separation of an incompatible use by appropriate positioning - 5.4(c)(vi), p 158.

(i) In the Rural Residential zone the development is inconsistent with single detached dwellings, and does not contribute to a semi-rural setting - Division 4 - Assessment Criteria for the Rural Residential zone, p 257, and Table 5.14, s 04, at p 259.

(j) The development will conflict with or constrain possible future urban development (Table 5.14 at p 261).

(k) The development does not optimise the case of the subject land through consolidation and infill development, and by containing this commercial and undertake development within existing your boundaries - 5.4(b) (xii).

(l) The bus depot will not achieve an appropriate urban form and appearance in a residential area - 5.4(b)(xiii).

(m) The development is of an incomparable scale with the surrounding houses, and it services much more than the convenience needs of the local catchment - 5.36(b)(xi) at p 257.

(n) There is no adequate buffer to minimise the impact of the industrial use - 5.36(b)(xii) at p 257.

(o) The development would compromise potential development for urban properties - 5.36(b)(xiii).

[143] Mr Webster's application relied heavily on planning need, in attempting to overcome conflicts with the Shire Plan. It is necessary to understand what planning need actually means, in the context of this case. The general principles are helpfully discussed in two texts. See Fogg Land Development Law in Queensland, Law Book Company, 1987, at p 367, and Principles of Planning Law, I Stein, Oxford University Press, 2008.

"A finding of a need for a community use may outweigh amenity issues. The reasoning is two-fold: uses of a public nature must be allocated across an entire region, so sooner or later some part of the community must make the sacrifice, and secondly, the degree to which the amenity is harmed is compensated for by the (possible) proximity of the lawful use." (at p 213)

[145] The approach of the courts in comparable situations can be seen in several Australian decisions. In Chatres Construction Pty Ltd v Randwick Municipal Council (1971-1972) 25 LGRA 193, the Land and Valuation Court of New South Wales was concerned with land which the Council proposed to rezone as residential A land, according to a draft for planning scheme, in an advanced stage of preparation. The applicant wanted to build a convalescent hospital, for which Council consent was needed. Council refused, on the basis of unacceptable impacts on the existing residential amenity.

[146] The court took into account the draft scheme, as it represented the Council's considered view. The scale and intensity of the proposal was found to be out of character with that scheme. As the judge put it:

"The appellant relied upon the need for convalescent hospital accommodation and the facilities in suburban areas such is this where public transport is available, and also upon the evidence that there is practically no such accommodation in this part of the Eastern Suburbs.

Those considerations must yield to the decisive effect of amenity and other town planning considerations."

[147] The developer's appeal was dismissed. There was no further explanation, to show why "amenity and town planning considerations" were decisive.

"If a use is public in nature, that factor can be significant in overcoming amenity concerns. In Canbrai Pty Ltd v Greater Geelong City Council (2002) VCAT 1048 a nursing home run entirely on a commercial basis was considered a public use in terms of need, because the ageing of the population was part of current social policy." (at p 212).

[149] Similar issues came before a Western Australian planning tribunal in Australian Retail Freeholds Pty Ltd v Shire of Kalamunda (1990) SR (WA) 294 at 303:

"The approach which has been laid down by this Tribunal necessarily requires the planning authority in the first instance, and this Tribunal on appeal, is first to identify any relevant need for the proposed development. ... If that need is established then an enquiry must be made into whether the advantages be derived from the satisfaction of the need overwhelm any ... disadvantages arising from the implementation of the development proposal."

[150] Also in Western Australia, the Town Planning Appeal Tribunal decided that the impact of a home for transient aboriginals should be considered only in the context of that particular locality. On appeal, the Supreme Court said that the need for the use should be judged by considering the general need for the use in the community. As the Chief Justice put it:

"... the public interest factor (whether expressed in terms of need or otherwise) is merely a factor which may be influential in the circumstances of a particular case, to be taken into account in the balance of the exercise ... . It follows that in the absence of a countervailing public interest consideration a substantial negative impact on amenity of locality would lead to a refusal of a proposal (Pinder Architects v City of Sterling (1996) 92 LGERA 165)."

[151] The extent of a need may be a significant factor. For a Queensland example, State Planning Policy 1/92, contains guidelines for development approval. An application for approval should be refused, unless there is an "overriding need in terms of public benefit for the proposal". As the policy itself says, at para 4.6, there would have to be "overriding need ... in benefit to the community". In Breadsell and Shaw v Bundaberg City Council [2004] QPEC 060, the court had to consider if there was an "overriding and demonstrable need" for the change of land use.

[152] Likewise, in Wincam Developments No. 3 Pty Ltd v Brisbane City Council [2004] QPEC 5; [2004] QPELR 474, this court had to consider the strategic plan and a commercial policy of the Brisbane City Council. Those documents required "an overwhelming community need" before a development would be acceptable.

[153] If no particular level of need is prescribed, then attention has to be paid to the facts of a particular case. The need may be weak, or strong, depending on the facts. It is also a relative concept, to be given greater or lesser weight, depending upon all of the circumstances which the planning authority has to take into account. See Isgro v Gold Coast City Council [2003] QPELR 414.

[154] Like "grounds", need is to be considered from an objective point of view, and not from the subjective positions of Kangaroo Bus Lines or the neighbours who object to its proposal. As a judge of this court has explained:

"Public or community need has always been highly material in this jurisdiction and, under Maroochy Plan 2000, is broadened to include community "benefit" as well as community "need" and the "public interest". The phrase "public need" involves the notion that the physical well-being of a particular community, or a measurable part of it, can better or more conveniently be served by providing the means for ensuring the provision of the proposed facility, subject always to other relevant town planning considerations.

The question where the need exists is to be decided from the perspective of a community and not that of the applicant for development, its competitors, or objectors. Otherwise, the weight to be afforded to it is not fixed, and where as here, the apparent public or community need for the proposed facility is strong and relates to a basic requirement of the resident population it is, plainly, a matter to which considerable weight must be given.

In this case, that strong need must however be weighed against other factors including, in particular, impact upon the amenity of the residents. At the same time of course the "community" consists of more than just particular members of it. As the court said in Holts Hill Quarries Pty Ltd v Gold Coast City Council [1999] QPELR 415 at 418-419:

'An attempt should be made to reconcile the various provisions where there is apparent conflict. However, there may be occasions when approval may properly be given to a proposal even though it may apparently conflict with some town planning objectives. Provisions exist for exceptions to be made to the general planning policy in appropriate circumstances, and this may mean that on occasions what may be regarded as genuine and legitimate concerns of some members of the community who may be adversely affected by a proposed development may have to be over-ridden by what is in the best interests of the community as a whole.'" (See Luke v Maroochy Shire Council and Watpac Developments Pty Ltd [2003] QPEC 5; [2003] QPELR 447.

[155] The Caboolture Shire Plan does not mention need or any level of need, as a consideration - except in para 3.1(c)(xiii).

[156] In this case, the availability of other suitable land has been an issue, in relation to the need for this proposal.

[157] The South East Queensland Regional Plan came into effect on 26 April 2005. It has the status of a statutory instrument. It expects that local governments, if required, will amend their planning schemes to reflect its aims. If there is an inconsistency between the Regional Plan, and any other plan, policy or code of a planning nature, then the Regional Plan prevails. See IPA s 2.5A.21(3).

[158] Under the plan, a substantial area of Urban Footprint is identified. In this case, the urban footprint largely follows the existing developed areas in the old Caboolture Shire area. Under the Regional Plan, the intent of the Urban Footprint is that it should identify land to provide for the region's urban development needs to 2026. It says, at p 16, that "local government planning schemes and detailed local structure plans will be the principal instruments for establishing the desired use of land and a preferred timing of development within the Urban Footprint."

[159] In this case, attention has also been paid to its emphasis on public transport. Part 12 shows that the plan places a strong emphasis on improving the public transport system in SEQ. The future planning and development of urban areas is meant to support walking, cycling and public transport. See 12.1.3. Regional road, passenger transport and freight network plans are meant to be integrated. (12.1.4). It is said that access to a public transport system that conveniently connects people with goods, services, places and other people is essential in a large and vibrant urban region. It is expected that a high quality public transport network in SEQ will have a number of community benefits. See 12.2.

[160] To achieve those aims, investment in the transport system is encouraged, to maximise community benefit. As 12.3 puts it, "the Regional Plan strongly supports public transport and active transport modes such as walking and cycling. ..."

[161] So, the Caboolture area is part of the much larger SEQ urban area, in which the provision and use of public transport is encouraged by the plan.

[162] Attention was also paid to the Regional Plan, because of the possibility of Kangaroo Bus Lines putting its bus depot, or at least bus parking, in the rural zone. Table 5.11 at pp 249-250 says that a transport depot on a lot greater than 16 ha is a consistent use with that zone. Ms Hanelt, the Town Planner retained by Mr Webster, maintained that land outside the urban footprint could not be potentially used for the bus depot, as it would be inconsistent with the SEQRP. In considering that view, it is necessary to start with the definition of an "urban activity". It includes industrial and commercial activities. See Schedule 2, Dictionary. An urban activity in the rural area can comply with the regulatory provisions, if some conditions are met.

[163] An application for a material change of use of rural land, for an urban activity, is assessable development which requires impact assessment. See sub-division 2.2. It has to comply with the regulatory provisions. Those conditions are set out in para 2.5(a) to (g). A development of this kind does not fit in to any of those categories. However, the proposal could be considered if:

"(i) The locational requirements for environmental impacts of material change of use necessitate its location outside the urban footprint; and

(ii) there is an overriding need for the material change of use in the public interests."

Here, if suitable land cannot be found in the urban area, then the locational requirements of the bus depot could lead to an application to allow its location outside the urban footprint.

[164] It is necessary to turn to the idea of "overriding need". It is defined in Schedule 3 to the Regulatory Provisions:

"How to Determine Overriding Need in the Public Interest

To determine an overriding need in the public interest an applicant must establish -

(a) The overall social, economic and environmental benefits of the material change of use weighed against -

(i) Any detrimental impact upon the natural values of the site; and

(ii) conflicts with the desired outcomes of the Regional Plan, but especially in relation to promoting consolidation of development within the Urban Footprint and preventing land fragmentation in the Regional Landscape and Rural Production Area or Investigation Area; and

(b) that the community would experience significant adverse economic, social or environmental impacts if the material change of use proposal were not to proceed.

This may require an assessment to determine if the material change of use could reasonably be located within the Urban Footprint.

The following do not establish an overriding need in the public interests -

(a) Activities with relatively few locational requirements such as residential development and shopping centres; or

[165] DEO 3.1(xiii) is also an obstacle - "Rural lands are considered as a fundamental and valuable element of the Shire's identity and character and are protected from incompatible non-rural land uses".

[166] As Ms Hanelt said, it would be difficult to get approval to put the bus depot outside the urban footprint.

[167] Would the achievement of a DEO be threatened? This development would replace two rural residential house properties over 5 ha with an industrial-commercial bus depot, with fuel storage. There would be around 80 buses, 112 staff, and substantial buildings.

[168] It would be outside an industrial area (DEO 3.1(c)(xi)), and it would not be a built environment, or redevelopment of an existing community, which would provide Coutts Drive with, "a distinct sense of place and local identity" (DEO 3.1(c)(xii)).

[169] It seems that there is interest in this application, as it may lead to other non-residential activities on nearby land (hence the options to purchase). Others would see it as a cheap way of putting an industrial use in an area outside the appropriate zone.

[170] There has been no suggestion that the 2005 Shire Plan has been overtaken by events, or ignored, or should be disregarded. There is no evidence of other industrial intrusions into rural residential areas.

[171] There has been a good deal of opposition to this proposal. It may be assumed the approval of the proposal would become well known in the Caboolture-Morayfield area.

[172] Considerations of amenity mean that there would be a loss of distinct sense of place, and local identity, throughout the neighbourhood of the development.

[173] The appropriate conclusion is that the achievement of both these DEO's would be threatened. For that reason, the council was right to refuse the application. It was bound to do that.

[174] In any case, it is necessary to consider the conflicts with the Shire Plan. They are substantial. No part of the Plan is in favour of this application.

[175] Planning need is relied on, to support Mr Webster's application. There is an important need for bus transport, throughout the community of SEQ. But it is the need of the community, and not KBL, that is important. Mr Webster, it is plain, has attempted to make the most of his difficulties by achieving an ideal result for KBL. The 5 ha, the room for "very long term growth", a possible amalgamation, the room for "all potential uses on it, so that it covers all possibilities now and in the future .... whether we ever use that area is a crystal ball....", the distinct possibility of a contraction of KBL's services, to be taken over by other bus operators, go well beyond a development that could be justified by appealing to planning need. There is no need for this development.

[176] There is another aspect of the need issue that is fatal to the application. It is the suitability and availability of the Foster Road land. Mr Webster said that it would cost too much money for KBL. However, it is appropriately zoned land, and the personal circumstances of KBL are not relevant to that issue. The principle of need, and the statutory meaning of sufficient "grounds" show that. It was submitted that evidence about the incapacity of KBL to buy that land was relevant. However, no decided case was mentioned, to support that submission.

[177] For the same reason, it is not necessary to achieve the transport outcomes of the SEQRP, to compromise the achievement of the two DEO's, above.

[178] Mr Webster hasn't been able to show that his application should be allowed. The council was correct to refuse the application. The appeal must be dismissed.