Australia: Court found an overwhelming need for a service station with caretaker residence in Jimboomba

IN BRIEF

The case of Peet Flagstone City Pty Ltd v Logan City Council and anor [2016] QPEC 24 concerned an appeal in the Planning and Environment Court commenced by Peet Flagstone City Pty Ltd against the decision of the Logan City Council to approve a development application made by Bluestone Matthews Pty Ltd. The development application was for a 24-hour service station and caretaker's residence on land located at the corner of a busy intersection of Teviot Road and Cusack Lane, Jimboomba, which is in close proximity to the Flagstone Priority Development Area.

The Court was required to consider the nature and extent of conflict between the proposed development and the South East Queensland Regional Plan 2009 - 2031 (SEQ Regional Plan), the Beaudesert Shire Planning Scheme 2007 and the Logan Planning Scheme 2015, and determine whether there were sufficient grounds to warrant approval of the proposed development despite the conflict.

The Court found that the proposed development was in significant conflict with the council's planning schemes. However, there was overwhelming economic, public and community need which warranted an approval of the proposed development.

THE COURT FOUND THAT THE PROPOSED DEVELOPMENT WAS NOT IN CONFLICT WITH THE SEQ REGIONAL PLAN EVEN THOUGH IT WAS AN URBAN ACTIVITY OUTSIDE THE URBAN FOOTPRINT

The land is contained in the Rural Landscape and Regional Production Area, but outside the urban footprint under the SEQ Regional Plan.

The intent of the Rural Landscape and Regional Production Area was to protect land from inappropriate development, particularly urban or rural residential development. Peet contended that the proposed development was in conflict with the Rural Landscape and Regional Production Area, as the proposed development constituted urban development and would impact on the nearby activity centres.

The Court first found that the SEQ Regional Plan did envisage service stations being located outside the urban footprint and within areas such as the Rural Landscape and Regional Production Area. This was supported by the fact that service stations of a particular size did not require referral agency assessment in the Rural Landscape and Regional Production Area under the regulatory provisions and there were no identifiable conflicts with the provisions in the SEQ Regional Plan. The Court also found that the proposed development did not have an adverse effect on any centre or the character of the Rural Landscape and Regional Production Area.

THE COURT FOUND THAT THE SERVICE STATION COMPONENT OF THE PROPOSED DEVELOPMENT WAS INCONSISTENT DEVELOPMENT UNDER THE COUNCIL'S PLANNING SCHEMES

The land is contained in the Rural Residential Precinct of the Mount Lindesay Corridor Zone under the Beaudesert Shire Planning Scheme. Under this scheme, the service station component of the proposed development was not identified as consistent development within the Mount Lindesay Corridor Zone and as such it was inconsistent development.

Similarly, the land is contained in the Park Living Precinct of the Rural Residential Zone of the Logan Planning Scheme. The concept of "inconsistent development" was not used under that scheme and instead it identified preferred land uses in the overall outcomes of each precinct of a zone which were required to be met in order to meet the purpose of the zone. The service station component of the proposed development was not a use identified in the overall outcomes of the Park Living Precinct and therefore the purpose of the Rural Residential Zone was not met. As such the proposed development was in conflict with the Logan Planning Scheme.

The town planning expert witnesses called by the council and Bluestone contended that the level of conflict was substantive rather than merely technical. Whereas the town planning expert witness called by Peet contended that the level of conflict was significant.

The Court, however, found that under both of the Council's planning schemes the "inconsistent use" point was relevant and the level of conflict was significant.

THE COURT FOUND THAT THERE WOULD BE NO IMPACT ON THE STRUCTURE OR NETWORK OF PLANNED CENTRES DESPITE FINDING THAT THE PROPOSED DEVELOPMENT WAS 'OUT OF CENTRE' DEVELOPMENT UNDER THE COUNCIL'S PLANNING SCHEMES

Peet contended that the proposed development would impact on the planned structure of urban centres and compromise the network of planned centres, particularly in the Flagstone Priority Development Area.

The town planning expert witnesses called by the council and Bluestone contended that service stations were location-flexible land use types and accordingly, there should be flexibility in the sitting of service stations.

Whilst the Court found that the proposed development was out of centre development, there would be no impact on the structure or network of planned centres. This finding was supported by the fact that the proposed development was of an appropriate scale for its purpose, the proposed development was a use of a kind which did not have a specific locational need, there was both economic and community need for the proposed development and the existing opportunities within the Flagstone Priority Development Area were not likely to proceed in the short term.

THE COURT FOUND THAT THE PROPOSED DEVELOPMENT WOULD NOT IMPACT ON THE CHARACTER OF THE LOCALITY

Peet contended that the proposed development was in conflict with the provisions of the council's planning schemes in relation to character and identity.

The Court, however, resolved this issue expeditiously as Peet's town planning expert witness in a joint report stated that the building design and layout of the facility on the land was not a matter which would determine whether the proposed development would be ultimately approved or refused.

The Court found that proposed development would not significantly impact on the character of the locality as the proposed development was located on the corner of a busy intersection of two significant traffic routes and the building design and layout gave ample separation from adjacent rural residential development.

THE COURT FOUND THAT THERE WERE SUFFICIENT GROUNDS TO OVERCOME THE CONFLICT

Peet contended that there was no need for the proposed development as there was an approval for a service station at the nearby Flagstone Village and service stations had been earmarked to be accommodated in the Flagstone Priority Development Area, specifically a Coles Express.

Having regard to the evidence of the parties' need experts and a representative of Peet, the Court had little confidence that the service station at Flagstone Village would proceed within the life of the approval. In the Court's view, there was no prospect of a Coles Express service station operating at any time prior to 2018 in the Flagstone Priority Development Area.

The Court found that the proposed development was suitably located and of an appropriate size to cater for the need and there was an overwhelming economic, public and community need for a service station in the locality.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ben Caldwell
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