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  • Unreported Judgment

Lipoma Pty Ltd v Redland City Council

 

[2019] QPEC 43

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Lipoma Pty Ltd & Ors v Redland City Council & Nerida Pty Ltd [2019] QPEC 43

PARTIES:

LIPOMA PTY LTD ACN 002 203 581

(Appellant)

and

LANREX PTY LTD ACN 010 740 191

(Appellant No. 2 of 2016)

and

VICTORIA POINT LAKESIDE PTY LTD ACN 106 781 757

(Appellant No. 44 of 2016)

and

REDLAND CITY COUNCIL

(Respondent)

and

NERINDA PTY LTD ACN 001 325 720

(Co-Respondent)

FILE NO/S:

4940 of 2015, 2 of 2016 and 44 of 2016

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

4 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

27, 29 & 30 September 2016, 7 October 2016, 4, 5 & 6 March 2019.

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal dismissed.
  2. The Council’s decision of 18 November 2015 is confirmed to approve an application for a development permit to reconfigure a lot (1 into 2), and a preliminary approval for material change of use for a mixed use development, including a shopping centre on the corner of Panorama Drive and Boundary Road in Thornlands.
  3. I will hear the parties as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Appeal against approval of major commercial development including a “full–line” supermarket; specialty shops, including retail warehouse (discount chemist); family tavern; medical centre; service station; and parking – retail/commercial component of the appeal – 5.4 km of the major centre – Partly in the Medium Density Residential Zone, Urban Residential Zone, Open Space Zone and the Community Purposes Zone – Designated as partly Medium Density Residential Housing, partly Urban Residential Housing and partly Greenspace Network.

OUT OF CENTRE DEVELOPMENT – Conflict with the scheme – at serious end of spectrum – provision of the necessities of life (food and groceries) – whether unacceptable adverse impacts on the centre network and centre's hierarchy.

GROUNDS — whether the proposal will meet an existing community, economic and planning need – whether the scheme provisions “overtaken by events” – whether sufficient grounds to approve the application despite the conflicts.

Legislation

Acts Interpretation Act 1954, s 14A.

Redlands City Plan 2018.

Redlands Planning Scheme 2006.

Sustainable Planning Act 2009 (Qld), ss 242, 314, 316, 324, 326, 329, 462, 493, 495, 759.

Cases

Abacus Funds Management v. Sunshine Coast Regional Council [2012] QPELR 669.

Aldi Stores (A Limited Partnership) v Grounds Redland City Council [2009] QPELR 602.

All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155.

Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157.

Bird v Logan City Council [2012] QPELR 502.

Bunnings Building Supplies Pty Ltd v. Redland Shire Council and Ors [2000] QPELR 193.

Cut Price Stores Retailers Caboolture Shire Council [1984] QPLR 126.

Degee v Brisbane City Council [1998] QPELR 287.

Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209.

Elfband Pty Ltd and Vanhoff Pty Ltd v Maaroochy Shire Council [1995] QPLR 290.

Fabcot Pty Ltd v Cairns Regional Council [2013] QPEC 38

Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208.

Friend v Brisbane City Council [2014] QPELR 24.

Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435.

Grosser v Gold Coast City Council [2001] 117 LGERA 153.

Handley v Brisbane City Council [2005] QPELR 80.

Harbug Investments Pty Ltd v Brisbane City Council [2000] QPELR 313.

Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] 1 QdR 372.

Hydrox Nominees Pty Ltd v Sunshine Coast Regional Council [2014] QPEC 18.

Intrafield Pty Ltd Redland Shire Council [2001] 116 LGERA 350.

JPF Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359.

Kangaroo Points Residents Association Inc v Brisbane City Council [2015] QPELR 230.

Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271.

Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council [2003] QPELR 385.

Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266.

Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302.

Luke v Maroochy Shire Council [2003] QPELR 447.

Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPELR 661.

Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333.

Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368.

Overton Redcliffe City Council [2000] QPELR 250.

Parmac Investments Brisbane City Council [2008] QPELR 480.

Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143.

R v Brisbane City Council ex parte Read [1986] 2 Qd R 22.

Roosterland Pty Ltd & its agents Brisbane City Council [1986] QPLR 515.

Scurr v Brisbane City Council (1973) 133 CLR 242.

Sellars Holdings Pty Ltd v Pine River Shire Council [1988] QPELR 12.

SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36.

Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85.

Skateway Pty Ltd Brisbane City Council [1980] QPLR 245.

Stappen Pty Ltd Brisbane City Council [2005] QPELR 466.

Viridian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council [2013] QPEC 54.

Weightman v Gold Coast City Council [2003] Qd R 441.

Westfield Management Limited Pine Rivers Shire Council [2004] QPELR 337.

Wheldon & Armview Pty Ltd v Logan City Council [2015] QPELR 640.

Wilispap Pty Ltd Mulgrave Shire Council [1992] QPLR 51.

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

Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306.

Zappala Family Co v Brisbane City Council [2014] 201 LGERA 82. 

ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352.

COUNSEL:

C Hughes QC and M Batty for the Appellant

K W Wylie for the Respondent

D R Gore QC and J G Lyons for the Co-Respondent

SOLICITORS:

McCullough Robertson solicitors for the Appellant

Redland City Council for the Respondent

Anderssen Lawyers for the Co-Respondent

  1. [1]
    The co-respondent applicant developer seeks to uphold the respondent Council’s decision of 18 November 2015 to approve an application for a development permit to reconfigure a lot (1 into 2), and for a preliminary approval for material change of use for a mixed-use development, including a shopping centre on the corner of Panorama Drive and Boundary Road in Thornlands.
  1. [2]
    The Council defends its decision. The three appellants, who submitted against the application, own and operate three nearby shopping centres, which provide retail, commercial and entertainment facilities in a major centre within the hierarchy of centres located about 3.8km from the land. 
  1. [3]
    After first hearing the appeal in 2016, I allowed the appeals for the reasons delivered on 6 September 2017.[1]  By order of the Court of Appeal made on 29 June 2016 the decision was set aside and the appeals were remitted to this Court for rehearing.[2]
  1. [4]
    On remittal, this court is required to determine the appeal according to the facts and circumstances existing at the time of the hearing of the appeal,[3] and further evidence permitted,[4] but subject to the requirement in s 495(2) of the Sustainable Planning Act 2009 () (‘SPA’) that the court must decide the development application by applying the laws and policies in force when the application was made, giving weight to any new laws and policies the court it considers appropriate, including the new Redland City Plan that came into force on 8 October 2018 (‘2018 scheme).  Although the whole matter in the appeals has been remitted, it is unnecessary to revisit all my previous findings of fact, but only those findings, directly or indirectly, affected by the decision of the Court of Appeal,[5] critically dealing with the weight afforded to the then draft Redlands City Plan 2015 (‘draft scheme’), and sufficiency of grounds to justify a decision approving the development in the public interest, despite conflict with the Redlands Planning Scheme 2006 (“2006 scheme”)
  1. [5]
    After hearing the further evidence, assisted with a view, and considering further written and oral submissions, I have decided to dismiss the appeals for the following reasons, which consolidate unchanged parts of my earlier reasons.

Proposed development

  1. [6]
    The development application seeks:
  1. a development permit to reconfigure a lot (1 lot into 2 lot subdivision); and
  2. a preliminary approval pursuant to s 242 of SPA for a material change of use for a mixed use development, including residential and shopping centre uses as well as a large green space precinct, and sought to vary the effect of parts of the 2006 scheme, by altering the levels of assessment for development within the various precincts comprised within the development, and specifying the assessment criteria for such development.
  1. [7]
    The focus of the appeal was on the retail/commercial component of the appeal, as encapsulated by the expert town planners who agreed:[6]

The application involves a number of elements, being the proposed retail/commercial centre, the residential component and the reconfiguration component.  We agree that there is no issue with the residential component, and we agree that the reconfiguration component is an ordinary consequence of the Preliminary Approval, such that if the appeals were upheld, the reconfiguration component falls away.  In essence, it is the retail/commercial component of the application that is of concern in these appeals.

  1. [8]
    The “retail/commercial” component is intended to comprise:
  1. (a)
    a 4,100m2full-line” supermarket (proposed as 3,840m2 in an agreement to lease with Coles);
  1. (b)
    1,600m2 of specialty shops, including a 500m2 retail warehouse (discount chemist);
  1. (c)
    a 850m2 family tavern;
  1. (d)
    a 225m2 medical centre;
  1. (e)
    a 100m2 service station; and
  1. (f)
    parking for 374 vehicles.
  1. [9]
    For the part of the preliminary approval seeking to vary the effect of any 2006 scheme, the variations are targeted at the Kinross Road Structure Plan Code as follows:
  1. (a)
    The introduction of a new precinct, being the “Neighbourhood Centre Precinct”;
  1. (b)
    A variation of the precincts applicable to the Site to those described in Figure 1 – Paradise Gardens Precinct Plan;
  1. (c)
    Amendment of the tables of assessment, as they apply to development on the Site;
  1. (d)
    Amendment to the Overall Outcomes, as they apply to development on the Site; and
  1. (e)
    Amendment to the Specific Outcomes and Probable Solutions, as they apply to development on the Site.
  1. [10]
    The proposed Paradise Gardens Plan of Development shows the various precincts of the proposed development and its layout (subject of evolving commercial negotiations with Coles).[7]  The components of the proposed precincts are:[8]

Proposed zone/precincts

Approximate area (ha)

Percentage of site area

Proposed components

Neighbourhood Centre

2.4

38

Supermarket and specialty shops comprising 5,700m2 retail and associated uses totalling 1,175m2 (tavern, service station and medical centre).  Total floor space of 6,875m2.

Medium Density Residential Housing – 3b Boundary Road and Panorama Drive

1.4

23

A mixture of 35 (approx.) two-storey, attached and semi-detached terraces, townhouses and duplexes on small lots.

Urban Residential Housing – 4b Panorama Drive

0.2

3

Larger lots along the northeast boundary.

Greenspace – 7e Eastern Wetlands Corridor

1.4

22

Rehabilitated watercourse, detention basin, retained vegetation, market garden, outdoor cafe, “common”, northern boundary buffer.  The irrigation dam would be drained

Access Road

0.85

14

Collector Road.  To be a public road.

TOTAL

6.25

100

  1. [11]
    In effect, the proposed centre development will require code assessable development applications to the Council, and may be refused or approved subject to conditions necessary to mitigate any potential impacts. Of particular relevance in this case are:
  1. (a)
    a “hotel” use is code assessable if in the Neighbourhood Centre precinct and 850m2 or less (otherwise it is impact assessable);
  2. (b)
    a “shop” is in certain circumstances self-assessable, code assessable (if less than 5,700m2 and in the Neighbourhood Centre precinct) and otherwise impact assessable; and
  3. (c)
    a “service station” is code assessable in the Neighbourhood Centre precinct (otherwise impact assessable).
  1. [12]
    The co-respondent seeks to vary the 2006 scheme by altering the levels of assessment for development within the various precincts, and specifying the assessment criteria for such development.

Land

  1. [13]
    The land subject of the proposal has an area of 6.254 hectares. It is located at 128-144 Boundary Road, Thornlands, on the north-western corner of Panorama Drive and Boundary Road, and is described as Lot 3 on SP 117065.
  1. [14]
    The land is situated at the junction of two major roads, namely Boundary Road (a four lane divided State controlled road) and Panorama Drive (with two to four lanes). These roads facilitate bus routes 270, 273, 274, 276, 279, 280, 281 and N250, and bus stops outside the land.
  1. [15]
    The land is currently used for a market garden. Nostalgically, the proposal includes a market garden and café in acknowledgment of the history of the land.
  1. [16]
    The surrounding land uses comprise:
  1. (a)
    To the north - Established low density residential development with blocks vary from 1800m2 to 4,000m2 accessed by Milner Place. 
  1. (b)
    To the east - Panorama Drive and low density residential subdivisions in the Park Residential Zone and Low Density Residential Zone. 
  1. (c)
    To the south - Boundary Road, larger rural residential blocks zoned Rural and Sheldon College.  Designated as an Integrated Employment Area under the 2006 scheme and as a Future Urban Growth Investigation Area under the draft scheme.  It is also within the Rural Landscape and Regional Production Area under the South East Queensland Regional Plan 2009-2031.
  1. (d)
    To the west - Land zoned for urban development under the Kinross Road Structure Plan.  Current flower production occurs in greenhouses immediately to the west.  Opportunity for future westerly connection with the development of sites adjoining the Nerinda site.
  1. [17]
    Since these appeals were first heard:
  1. (a)
    Other development approvals have been granted over the land the subject of the Kinross Road centre.  On 15 January 2018 the Council approved a development application for a preliminary approval for a material change of use and a development permit for a reconfiguration of a lot (to create 68 standard lots, 3 balance lots, road and park) over the poultry farm land. The Council approved a child centre and multiple dwellings application on 12 December 2018;
  1. (b)
    Further residential development has occurred within the locality (including as a result of the removal of the poultry farms within the Kinross Road structure plan area and the removal of the poultry overlay);
  2. (c)
    A supa IGA opened at Mt Cotton being “the first full-line supermarket to be constructed in Redland City since the addition of the Woolworths store at Town Centre Victoria Point in 2003”;[9] and
  3. (d)
    There have been increases in population growth, and some delay in realising the proposed development will afford existing centres the benefit of the growth.
  1. [18]
    The land is about 3.8 km west of the Victoria Point Major Centre, which includes:[10]

Centre Name

Estimated lettable area (m2)

Major tenants

Total Shops (No.)

Vacancies as at May 2016

Shops (No.)

Area (m2)

Vacancy rate (%)

Victoria Point Shopping Centre

26,936

Kmart, Coles, Woolworths

110

10

1,042

3.9

Town centre Victoria Point

26,080

Bunnings, Woolworths

36

2

534

2.0

Victoria Point Lakeside

25,000

Cineplex Cinemas, Aldi, Lincraft

85

12

1,312

6.6

  1. [19]
    Upon a reconnaissance of the existing trade area in January 2019, since the appeals were heard, there have been minor changes in tenancy mix and vacancy levels and no new centres have appeared.
  1. [20]
    The land is 5.4 km south of the Cleveland Town Centre; and more broadly, 25km east of the Brisbane central business district.

Planning Treatment

  1. [21]
    The development application was made under the Sustainable Planning Act 2009 (Qld) (‘SPA’) in August 2014 when the 2006 Scheme was in force.  Therefore, the proposed development fell to be assessed against the provisions of the 2006 scheme.
  1. [22]
    Under the provisions of the 2006 scheme, the land is:
  1. (a)
    Partly in the Medium Density Residential Zone – Sub Area MDR5; partly in the Urban Residential Zone – Sub Area UR1; and partly in the Open Space Zone and the Community Purposes Zone – Sub Area CP7 (road); and
  1. (b)
    Designated under the Kinross Road Structure Plan as partly Medium Density Residential Housing, partly Urban Residential Housing and partly Greenspace Network.
  1. [23]
    The land has, since the commencement of the 2006 scheme on 30 March 2006, been identified for centre uses either by way of zoning or development approvals except for 14 months.  Part of the land, at the corner of Panorama Drive and Boundary Road, has the benefit of a development approval of 3 April 2013 for a commercial centre of 1,000m2 gross floor area mixed use centre (shop/service industry/refreshment establishment/commercial office/health care centre) (‘2013 approval’). 
  1. [24]
    The draft scheme was on public exhibition between 20 September 2015 and November 2015, being a year after the Council issued the acknowledgement notice for the development application on 29 September 2014.  It remained in draft from when Council approved the proposed development on 18 November 2015, and also when the appeals were before this court and subject of appeal in the Court of Appeal. 
  1. [25]
    The new Redland City Plan has since been adopted, and came into force on 8 October 2018.  In broad terms, the 2018 scheme replicates the planning intent found in the 2006 scheme.  It also incorporates the Kinross Road Structure Plan, and thereby retains the mixed zoning pattern of medium density residential, low-medium density residential, and open space.

Scope of dispute

  1. [26]
    The appellants have identified the issues in their various notices of appeal, including issues of: general amenity; acoustic and lighting; landscaping treatment; ecology including koala issues; traffic including traffic safety; town planning and need.
  1. [27]
    As to the issues about landscaping and acoustic treatment along Boundary Road and Panorama Drive frontages, amenity, impact on local koala populations, and traffic, the appellants properly acknowledge that they are not enough to warrant refusal.
  1. [28]
    No issue is taken with the proposed residential component and reconfiguration of a lot, but the retail/commercial component is disputed. In that context, these reasons particularly focus on the proposed full-line supermarket based centre with associated retail and tavern uses, but cognisant of the review by the Court of Appeal and the rehearing for determination according to law.

Legal framework

  1. [29]
    The appeals were commenced pursuant to s 462 of SPA, and the appeals are by way of a hearing anew.[11] 
  1. [30]
    Pursuant to s 495(2)(a) of SPA the court must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate.
  1. [31]
    Clearly, the assessment must be based on the 2006 scheme[12] in force when the application was made and the South East Queensland Regional Plan 2009-2031 (“Regional Plan”) is also applicable to the assessment to the extent not identified as being appropriately reflected in the scheme.[13]  But the court may give weight to the new 2018 scheme that the court considers appropriate.

Assessment of application, other than the part seeking to vary the effect the scheme

  1. [32]
    For the preliminary approval component subject of s 242 (except that part seeking to vary the scheme), the assessment process is governed by ss 314, 316(1) & (2), and 495, relevantly here by:
  1. (a)
    Basally assessing against the 2006 scheme and the Regional Plan to the extent required;
  1. (b)
    Consider the 2018 scheme tempered by the appropriate weight afforded it (if any);[14] and
  1. (c)
    Having regard to the common material, 2013 Approval, and approvals and uses of adjacent land.[15]
  1. [33]
    Based on that assessment, the decision for this part must accord with ss. 323, 324 and 326 of SPA
  1. [34]
    In particular, by virtue of s 326(2)(b) the decision must not conflict with the planning instrument unless there are “sufficient grounds” to justify the decision, despite the conflict. “Relevant instrument” is defined in s 326(3) as “a matter or thing mentioned in section … 314(2), other than a State planning regulatory provision, against which code assessment or impact assessment is carried out.”
  1. [35]
    Accordingly, for s 326(2)(b) the relevant instruments are the 2006 scheme, and Regional Plan to the extent not identified as being appropriately reflected in the scheme.[16]  The court may also have regard to the 2018 scheme tempered by the weight afforded it.[17]

Assessment of application seeking to vary the effect of the scheme.

  1. [36]
    The part of the preliminary approval seeking to vary the effect of any local planning instrument for the land, the assessment process is governed by ss 316(3) & (4), relevantly here having regard to:[18]
  1. (a)
    The common material;[19]
  1. (b)
    The result of the impact assessment of the other parts not sought to be varied pursuant to ss 314 & 495 (described above);[20]
  1. (c)
    The Regional Plan to the extent relevant;[21]
  1. (d)
    The consistency of the proposed variations with aspects of the 2006 scheme, except those to be varied;[22]
  1. (e)
    Consider the 2018 scheme tempered by the appropriate weight afforded it (if any);[23] and
  1. (f)
    The effect of the proposed variations on any submitter for following applications having regard to available supporting material.[24]
  1. [37]
    Accordingly, the assessment against the 2006 scheme is one of consistency (or otherwise) of the proposed variations with the scheme (except those Kinross Road Structural Plan Code sought to be varied), being the higher-order DEO provisions and the zone-code provisions.
  1. [38]
    The concept of “consistency” was considered by Bowskill QC DCJ (as she then was), in the context of s 388(1)(a) of SPA in Lake Maroona Pty Ltd v Gladstone Regional Council[25] (references omitted):

“[14]   The phrase “consistency of the approval … with the current laws and policies applying to the development” in s 388(1)(a) is to be contrasted with the language of s 326(1), that an assessment manager’s decision “must not conflict with a relevant instrument”.  In planning law conflict is accepted as meaning “to be at variance or disagree with”.

[15]   There do not appear to be any decisions which address the meaning of consistency in the context of s 388.

[16]   The ordinary meaning of the word “consistency”, as reflected in the Macquarie Dictionary, is “agreement, harmony, or compatibility”.  The definition in the Oxford English Dictionary is to the same effect (the “quality, state, or fact of being consistent; agreement, harmony, compatibility (with something, of things, or of one thing with another”). “Consistent” is relevantly defined in the former as “agreeing or accordant; compatible; not self-opposed or self-contradictory” and, similarly, in the latter as “agreeing or according in substance or form; congruous, compatible”.

[17]   In New South Wales there are two lines of authority as to the meaning of consistent, in the context of planning instruments requiring the opinion by a consent authority that a proposed development be “consistent with the zone objectives”.

[18]   One stems from a decision of Pearlman CJ in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27 where her Honour said:

‘The guiding principle, then, is that a development will be generally consistent with the objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.’

[19]   The other stems from the decision of Bignold J in Gillespies v Warringah Council (2002) 124 LGERA 147; [2002] NSWLEC 224 (Gillespies) at [65]–[74], in which the phrase was interpreted, in accordance with what was said to be its natural and ordinary meaning, to mean “compatible” or “capable of existing together in harmony”. Bignold J observed that “antipathetic” suggests a much stronger and narrower connotation than “inconsistent” and is thus not a true synonym of the term (at [73]).

[20]   A brief survey of decisions of the New South Wales Land and Environment Court since Gillespies indicates different approaches have been taken by different members of that court.

[21]   However, I note that in Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45] Biscoe J agreed with the Gillespies approach, noting the definition of “consistent” in the Macquarie Dictionary as above. In Friends of Malua Bay Inc v Perkins (2014) 203 LGERA 14;  [2014] NSWLEC 95 Craig J also expressed a preference for the Gillespies approach, saying, at [42] to [43]:

‘… In Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 Clarke JA stated that, in the context of the provisions there being considered, the paragraph was intended to prohibit ‘antipathetic development’. Subsequently, that meaning was attributed to provisions of local environmental plans requiring development to be ‘consistent’ with identified objectives (Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21; Mackenzie v Warringah Council [2002] NSWLEC 131at [98] and the cases there cited). More recently, the ordinary meaning of ‘consistent’ has been applied to such provisions. In Gillespies v Warringah Council (2002) 124 LGERA 147;  [2002] NSWLEC 224, Bignold J considered the meaning of the word in the context of planning instruments requiring the opinion by a consent authority that a proposed development be ‘consistent with the zone objectives’. In that context, his Honour considered at [70] that the word ‘consistent’ should assume its ordinary meaning and should not be confined to the notion of a proposed development that is ‘not antipathetic’ to a zone objective.

According to the Macquarie Dictionary (online) that meaning is: ‘1. agreeing or accordant; compatible; not self-opposed or self-contradictory.’ It seems to me that, in the present context, it is appropriate to regard ‘consistent’ as being synonymous with ‘compatible’ (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45]).’

[24]   I prefer the approach taken in Gillespies, and followed in the cases referred to at paragraph [21] above. I am unable to discern any reason why a narrower meaning, than the natural and ordinary meaning of the word “consistency”, ought to be adopted in construing s 388(1)(a).

[25]   It seems to me that meaning is, even if only subtly, different from the notion of “conflict”. In this regard, I respectfully adopt the observation of Sackville J in Flanagan v Australian Prudential Regulation Authority (2004) 138 FCR 286;  [2004] FCA 1321 at [47] that “there is a certain elasticity about the expression “consistency … with””.

[26]   In my view, the approach to be taken, under s 388(1)(a), in considering the consistency of the approval with current laws and policies, is to consider whether the approved development is compatible with, in the sense of being capable of existing in harmony with, current laws and policies. This may well be a more flexible concept than the concept of whether the development conflicts with the planning scheme, the consideration required in the primary assessment phase. Development may still be compatible, even if at variance with some aspect of the planning scheme.”

  1. [39]
    Based on the assessment, the decision must accord with ss 327 and 329 of SPA
  1. [40]
    In particular, by virtue of s 329(2)(b) the decision must not conflict with a “relevant instrument” unless there are “sufficient grounds” to justify the decision, despite the conflict. “Relevant instrument” is defined in s 329(3) as “a matter or thing mentioned in s 316(4)(c) or (d), other than a State planning regulatory provision, the assessment manager must have regard to in assessing the part of the application.” 
  1. [41]
    Like s 326(2)(b), the relevant instruments for s 329(2)(b) are the 2006 scheme, and Regional Plan to the extent not identified as being appropriately reflected in the scheme.[26]  Again, the court may also have regard to the 2018 scheme tempered by the weight afforded it.[27]

“Sufficient Grounds”

  1. [42]
    By virtue of ss 326(1)(b) and 329(1)(b) of SPA the relevant decision must not conflict with a “relevant instrument” unless there are “sufficient grounds” to justify that decision despite the conflict. 
  1. [43]
    Ascertaining the seriousness or nature of the conflict involves discerning from the verbiage of the instrument, the degree of importance it attaches to compliance with particular principles, requirements or Codes and, then, analysis of the particular proposal within that regime.[28]
  1. [44]
    Grounds”, for ss 326(1)(b) and 329(1)(b), is defined in Schedule 3 of SPA as:

1. Grounds means matters of public interest.

2. Grounds does not include the personal circumstances of an applicant, owner or interested party.

  1. [45]
    In Weightman v Gold Coast City Council,[29] when considering a similar requirement to s 326 in the repealed Local Government (Planning and Environment) Act 1990, Atkinson J said:[30]

“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s. 4.4(5A)(b) of the P&E Act, the decision maker should:

  1. examine the nature and extent of the conflict;
  2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
  3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
  1. [46]
    Her Honour elaborated on the courts task saying:

“[35]  The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict.  The discretion, as White J observed in Grosser v Council of the City of the Gold Coast is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds.  This is a mandatory requirement.  If there is a conflict, then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict.  The primary judge wrongly held that it was directory only.  …

[37]  The first task required of the decision maker, as the learned primary judge recognised, is to consider the nature and extent of the conflict.  The conflict may be minor or major in nature or indeed anywhere in the continuum between those two extremes.  The conflict in this case is a major one, arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys.  …

[44] The second question the decision maker has to consider is whether there are any planning grounds on which to approve, or which militate against approval of, that part of the application which is in conflict with the planning scheme. The nature and extent of the conflict may be such as to suggest that there are significant planning considerations against that part of the application.

[45] The decision maker should then consider other aspects of the development and determine whether they are consistent with proper planning grounds. Those are the planning grounds which apply whether or not the conflict exists.

[46] It is only after consideration of all of these matters that the decision maker is able to properly assess whether or not the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”

  1. [47]
    The test, as described by Atkinson J in Weightman, has been applied with fidelity in relation to successive analogous provisions.  In Lockyer Valley Regional Council v Westlink Pty Ltd,[31] the Court of Appeal discussed and affirmed that the Weightman test remained relevant under the amended s 3.5.14, save that the expression “planning grounds” required a narrower inquiry than that entailed in assessment of the unqualified and broadly defined “grounds” which had become relevant.[32]  Both Weightman and Lockyer, were applied in relation to s 326 of SPA in Zappala Family Co Pty Ltd v Brisbane City Council.[33]
  1. [48]
    The different term ‘public interest’ is used in SPA without any legislative definition.  The term and the application of s 326(1)(b) was the subject of recent the unanimous decision of the Court of Appeal in Bell v Brisbane City Council & Ors,[34] and recently in Gold Coast City Council v K & K (GC) Pty Ltd.[35]  In the most recent case of K & K, Sofranoff P (with whom Fraser JA and Flanagan J agreed) distinguished the term from “planning grounds” in the former legalisation saying:

“[36] It has been said that the expression “matters of public interest” has a wider scope than “planning grounds”.15 That is undoubtedly true. Although planning grounds would always serve the public interest, matters of public interest might be constituted by matters that are not planning grounds.

[37]   The expression “in the public interest”, when used in a statute, imports a discretionary value judgment to be made by reference to factual matters confined only by the subject matter, the scope and the purpose of the statutory enactment.16 The range of matters that can, potentially, be included within the scope of “matters of public interest” is very wide although the particular legislation in which the expression appears will enable some matters to be regarded as definitely extraneous to any objects the legislature could have had in view.”

  1. [49]
    His Honour illustrated the matter by referring to the five matters listed in the Ministerial Guidelines made in 11 December 2009, as “matters that may be considered when determining whether there are sufficient grounds to justify a decision that conflicts with a relevant instrument”, namely:[36]

“(a)  The relevant instrument is out of date because, for example, the construction of a new railway station has enabled land previously intended for low density residential development to sustain a higher density or because a Planning Scheme is now inconsistent with current design principles, methods for addressing climate change or demographic shifts;

  1. The relevant instrument is incorrect because, for example, a Scheme was based upon an assumption of low growth but that assumption has been falsified or “constraint mapping in the Planning Scheme does not reflect the physical site circumstances”;
  2. The relevant instrument inadequately addressed development, for example, because a proposal involves alternative technologies and ideas that are still in the research and development stage or that are not yet established in common practice;
  3. The relevant instrument does not anticipate specific or particular development because the proposed development may be of international, national, state or regional significance and may not have been anticipated, such as a large infrastructure development proposed for an area envisaged to be residential;
  4. There is an urgent need for the proposal, such as an undersupply of residential care accommodation such that there is likely to be a significant shortfall in the next five years and, although changes to the Scheme are being studied, finalisation of any changes would unduly delay the delivery of the need for accommodation.”
  1. [50]
    His Honour then observed at [39] that:

“It can be seen that the kinds of factors identified in the guidelines are matters that are, by their nature, capable of overriding the intent of a Planning Scheme, or capable of overriding a conflict with particular provisions contained within it, because they are matters that are now said to justify an exception to the Scheme but which were unavailable for consideration when the Scheme was formulated. The matters stated in the guidelines are matters that may be taken into account by a decision maker. They are not mandatory. Nor are they exhaustive.”

  1. [51]
    Returning to the seminal case of Bell, the central issue for the court was the application of s 326 when considering a conflicting development proposal which exceeded 15 storeys contrary to provisions of the planning scheme, in particular:[37]
  1. (a)
    The overall outcome (3)(h) of the Toowong-Auchenflower Neighbourhood Plan, which provided that:

“Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.”

  1. (b)
    The corresponding performance outcome was expressed within s 7.2.20.3.3.A as follows:

“Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and:

(a) ...

(b) is aligned to community expectations about the number of storeys to be built[.]”

  1. (c)
    In turn, the corresponding acceptable outcome is expressed within the same provision as follows:

“Development complies with the number of storeys, building height and the minimum site frontage in Table 7.2.20.3.3.B”, with the notation that:

‘Neighbourhood plans will mostly specify maximum number of storeys where zone outcomes have been varied in relation to building height. Some neighbourhood plans may also specify height in metres. Development must comply with both parameters where maximum number of storeys and height in metres are specified.’”

  1. (d)
    Table 7.2.20.3.3.B did not specify a maximum height, but it did specify a maximum number of storeys for a site of that kind, being a limit of 15 storeys.
  1. [52]
    In Bell, the Court of Appeal explained that s 326(1)(b) will only be engaged in exceptional cases where there is a tension between the application of the relevant instrument and the public interest embodied in the scheme.  McMurdo J (who wrote the judgment with unanimous support) said:

“[66] Section 326(1)(b) will be engaged only where there is a tension between the application of the relevant instrument, here a planning scheme, and the public interest.  If that tension exists, it will be for the decision maker to consider whether there are sufficient grounds, in the public interest, to depart from the instrument.  Necessarily, cases where that tension exists will be exceptional, because a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.  In Clark v Cook Shire Council,[38] Keane JA, with the agreement of the other members of this Court said:

‘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.’ (Emphasis added.)

[67] It is not for the decision maker (including in this context a Court), to gainsay the expression of what constitutes the public interest that is in a planning scheme.  A decision maker might think that a limit of 15 storeys is too restrictive, and the public would be better served by a higher limit.  But this decision maker must accept that it is in the public interest that the limit be 15 storeys, because that is what the planning scheme effectively provides.”

  1. [53]
    The court identified the types of exceptional circumstances where a decision maker may conclude that the planning scheme did not accurately reflect what was in the public interest saying:

“[68] Cases could arise where relevant circumstances have changed since the planning scheme was made, or where it can be seen that there is a factual error in the scheme itself. Cases of that kind were identified in the explanatory notes for s 3.5.14 of the Integrated Planning Act 1997 (Qld). There might also be cases where it is evident that the planning scheme has not anticipated the existence of circumstances which have created a need for a certain development in the public interest. In exceptional cases of all of these kinds, the decision maker might be able to conclude that the planning scheme is not, in the particular case, an embodiment of what is in the public interest.”

  1. [54]
    As to the primacy of the expression of public interest in the scheme, the court said:

“[70] Consequently, any consideration of the application of s 326(1)(b) of SPA must proceed upon the premise that it is in the public interest that the planning scheme, in each relevant respect, be applied, unless the contrary is demonstrated.  Thus in the present case, it had to be assumed that the public interest would be served by confining the development of this land to buildings of a height that accorded with community expectations that buildings would not extend, or at least significantly extend, beyond 15 storeys.  That was not an arbitrary limit; it was an expression of a means by which, in the public interest, the scale of any development would be kept in alignment with community expectations.  The Scheme was unambiguous in providing, within AO1.1, that “[d]evelopment must comply with both parameters where maximum number of storeys and height in metres are specified.”

  1. [55]
    In the absence of any circumstances displacing the assumption that the public interest was not reflected in the scheme provisions, the court said:

“[77] At no point did the judge refer to the Scheme as an embodiment of what represented the public interest.  The judge did not identify any way in which the Scheme’s specification of an acceptable height was to be disregarded as the result of an error in drafting, a change in relevant circumstances from those which existed when the Scheme was prepared or a failure of the Scheme to anticipate a need, in the public interest, for a development on this site with buildings of this height.  In essence his Honour formed his own judgment of what was in the public interest without recognising the relevance of the Scheme to that question.  The same may be said of his conclusion that the public interest justified the conflict between the decision and overall outcome (4)(h).

[78] Ultimately, by the judge substituting his own view of the public interest for that which was expressed in the Scheme, there was a legal error which affected his conclusion under s 326.  Further, that was also affected by the legal error in the interpretation of overall outcome (3)(h).”

  1. [56]
    The court rejected, as part of an assessment under s 326(1)(b), some “balancing exercise” by “a balancing consideration of all positive and negative attributes of the proposed development (for example, particular community benefits might weigh in favour of approval even where a proposal is not consistent with the community expectations)”.[39]  As I apprehend it, such a ‘balance exercise’ is to be distinguished from the exercise in the last stage of the Weightman test when determining whether planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.[40]  Further, I do not read the decision as relegating as irrelevant considerations, other favourable planning scheme provisions as part of the examination of the nature and extent of conflict and sufficiency of grounds.[41]
  1. [57]
    Each case will necessarily turn on its own facts in the context of the relevant instrument and the public interest. It seems to me that the ‘sufficient grounds’ consideration required by ss 326(1)(b) and 329(1)(b) as refined by the contemporary Court of Appeal authority, involves four tasks (with some overlap between them) in conjunction with the assessment applicable to the part of the application:
  1. Examine the nature and extent the proposed development conflicts with the terms of the relevant instrument as the comprehensive expression and embodiment of what is in the public interest,[42] having regard to the common material, any development approval and lawful use of the land or adjacent land, and any referral agency response.[43]
  1. Examine whether there is any tension with the application of the relevant instrument and the public interest; such that the relevant instrument is not, in the particular case, an embodiment of what was in the public interest because for example:[44]
  1. (a)
    Relevant circumstances have changed since the planning instrument was made; or
  1. (b)
    There is a factual error in the instrument itself; or
  1. (c)
    The planning instrument inadequately addressed development; or
  1. (d)
    The planning instrument does not anticipate specific or particular development; or
  1. (e)
    There is an urgent need for the proposal;
  1. If there is tension, examine any grounds that are relevant to the part of the application in conflict with the relevant instrument but otherwise in the public interest;[45] and
  1. Determine whether the grounds are sufficient, in the public interest, to depart from the relevant instrument and justify approving the application notwithstanding the conflict.[46]
  1. [58]
    The co-respondent bears the onus of establishing that the appeal should be dismissed.[47]

Appeal Issues

  1. [59]
    In the context of the rehearing, the questions to be determined were included as Attachment A to the Order of 5 October 2018 and can be broadly summarised as follows:
  1. (a)
    Whether the proposed development ought to be refused in the event that the Court gives no weight to what was the 2015 draft scheme and what is now, as a matter of law the 2018 scheme;
  1. (b)
    Whether the proposed development should be approved having regard to:
    1. the reasons for judgment of the Court of Appeal;
    2. the findings of this Court from the previous hearing;
    3. the new evidence admitted at this hearing;
    4. the fact that the “draft planning scheme” has now taken effect (and the weight that therefore should be afforded to that planning scheme); and
  2. (c)
    If the Court were to refuse the commercial / retail component of the proposed development, whether the Court should approve the balance of the development?
  1. [60]
    In my reconsideration of the whole matter, I have incorporated my previous unchanged findings to expose consolidated and comprehensive reasons for this decision.

Appropriate weight to the new 2018 scheme

  1. [61]
    Pursuant to s 495(2)(a) of SPA the court may give weight to the 2018 scheme that the Court considers appropriate in the context of the assessment and decision rules.  In that way, any assessment will be tempered by the weight afforded it.
  1. [62]
    In my past judgment, it seemed to me that the draft scheme’s maintenance of full-line supermarkets in the centres hierarchy and centre zoning, after a whole scheme review, diluted the credibility of the Council’s arguments and expert opinion of a planning deficiency to meet population growth in the Kinross Road Structure Plan area, and the broader Thornlands area.[48]  Clearly both the old and new schemes support the identified hierarchy and discourage out of centre development.  Mr Ovenden opined that the draft scheme (and therefore the resultant 2018 scheme):[49]

 “…has perpetuated an identified gap in the retail hierarchy that has been carried through from the current planning scheme.  It is appropriate that this gap in centre allocation be filled to meet a strong community need in this part of the City and in doing so satisfy the higher order strategic outcomes of the draft scheme.

 The planning authority may take action to review the draft scheme following review of submissions or choose to amend the scheme to reflect the subject proposal, should the Court be of a mind to approve this application.”

  1. [63]
    At the last hearing, I thought this was very sound and timely advice (for Council to review the draft scheme), and distinguished the Courts role from the legislative function of the Council.  As Quirk DCJ said Elan Capital Corporation Pty Ltd v Brisbane City Council:[50]

“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 chosen to adopt (Brazier v. Brisbane City Council 26 L.G.R.A. 322 at 327).”

  1. [64]
    I afforded the draft scheme considerable weight, essentially decisive, pursuant to the principles established in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117.[51]  However my approach was wrong,[52] as borne out by the further evidence adduced in the rehearing summarised below.
  1. [65]
    The 2018 scheme is a “planning scheme”,[53] being a statutory instrument under the Statutory Instruments Act 1992 with the force of law as provided under SPA.[54]  Whilst not subject of the base assessment, it is a “planning scheme”,[55] therefore a “planning instrument”,[56] “local planning instrument”,[57] and, prima facie, a comprehensive expression of what will constitute, in the public interest, the appropriate development of land into the future.[58]  Like the draft scheme, the 2018 scheme effectively replicates the current zoning pattern generally, and particularly replicates the current zoning pattern of the Kinross Road area with the subject land zoned a mixture of: medium density residential; low-medium density residential; and open space.[59]  One difference is that “Neighbourhood Centres” will be called “Local Centre” to conform to Queensland Planning Provisions centre zone designations. 
  1. [66]
    At the first hearing, it seemed to me that that the approval sought in this case would cut across to a substantial degree the considered conclusion of the Council as expressed in the draft scheme in a Coty sense. The Council has since adopted the 2018 scheme on 6 July 2018 without any holt, explanation or reservation about the looming perpetuated an identified gap in the retail hierarchy carried through from the 2008 scheme.[60]  It also had the option of adopting the 2018 scheme yet expediting potential future amendments dealing with the centres hierarchy.[61]  And at first blush, it seems that by adopting the 2018 scheme the Council has legislatively entrenched the same planning strategy found in the 2006 scheme and draft scheme despite a whole scheme review, community consultation, and expert advice of perceived flaws. When the matter was returned to this Court, I remained concerned that the Council continued to speak with a ‘forked tongue’ by maintaining one position in public but another to this Court. 
  1. [67]
    But my former view and reticence has well quelled, and indeed reversed, by further unchallenged evidence adduced in the rehearing and I am persuaded that Council’s dichotomy of supporting its decision to approve the development application whilst implementing the new scheme is entirely explicable, even without any reservation in the Council’s minutes of meeting. Put simply, the Council’s appreciation of the scheme deficiencies was too late to enable it to effect any change to the draft scheme prior to its implementation as the 2018 scheme.  The appropriateness of its action is further buttressed by the “damned if you do, you’re damned if you don't” insoluble quandary facing a Council changing a scheme (or not) during a contested development proposal.[62]  
  1. [68]
    In the rehearing, I had the benefit of a historical explanation for the Council’s parallel support of the application, and its new scheme process leading to the 2018 scheme in the unchallenged evidence of Ms Kerwin[63] and Mr Jeanes.[64]
  1. [69]
    Ms Kim Kerwin was the project manager responsible for development of the draft scheme through to implementation of the 2018 scheme.[65] Her evidence was not challenged or contradicted.  In particular, Ms Kerwin’s evidence shows that:
  1. (a)
    the Council apprehended that in creating the 2018 scheme it could not affect any development entitlements or development obligations under the Kinross Road structure plan in an adverse or material way;[66] and
  1. (b)
    as a result, in creating the 2018 scheme the Council did not contemplate amending or changing the draft document to reflect the approval subject of these appeals as the Council had been directed by the State that it was required to implement the zoning intent of the Kinross Road structure plan and that any variation from the zoning intent was not allowed (and could only be resolved by subsequent amendment to the scheme).[67]
  1. Similarly, the evidence of Mr Jeanes highlights that:
    1. (a)
      the zoning of the land in the 2018 scheme was effectively a carry-over from the zoning under the Kinross Road structure plan and was required to be carried over in the 2018 scheme because it was implemented as part of a declared master planning process;[68]
    2. (b)
      the Council is supportive of the proposed development largely due to the need for a full-line supermarket type centre and the lack of negative impacts that would arise from approval;[69] and
    3. (c)
      any centres review to the planning scheme could potentially take effect in mid 2020 but it is expected that it could take longer.[70]
  1. [70]
    It was not until the subject development application was received, and associated studies were undertaken, that the Council became acutely aware of the deficiency in the centres planning strategy.[71]  This culminated in the earlier advice from Mr Norling (for need) and Mr Ovenden (for town planning) who were retained to undertake an ‘arms length’ review of the application.[72]  Whilst the advice was sound, it was not so timely to enable the Council to change its course regarding the draft scheme.  Council was bound to carry out the assessment of the application in parallel to continuing its legislative function of drafting and implementing a new scheme.  The draft scheme was subject of review and public consultation between 14 September 2015 and 27 November 2015, which attracted 5000 properly made submissions.[73]  In the meantime, the Council officers recommended approval of application, and the application was approved by the Council on 18 November 2015.[74]  In due course, the 2018 scheme was adopted, and came into force on 8 October 2018.[75] 
  1. [71]
    The Council’s scheme review was controlled by the Statutory Guideline 04/14 – Making and amending local planning instruments.  It prescribed that if, following public consultation, a change to the draft scheme made it “significantly different”, public consultation would have to be repeated having regard to the guideline’s criteria.[76]  Plainly, the introduction of a new district centre in the Thornlands area would meet this threshold.  In this regard, Mr Ovenden opines that were the Court to allow this appeal and refuse the application, Council should undertake a network of centres review as suggested by Mr Jeanes.  I anticipate any subsequent scheme amendment would result in the introduction of a full-line supermarket based local or district centre in the approximate location of the site the subject of this appeal.[77]  I’m inclined to agree.
  1. [72]
    It seems to me that the chronology bears out that the adopted 2018 scheme (replicating the draft scheme) ought not be regarded as the Council’s most recent statement of position about a supermarket-based shopping centre on the subject site.  I now accept that the converse is true given the elucidated chronology, and the Council’s active support for the proposal in the Court of Appeal in 2018, and in the Court in 2019.
  1. [73]
    Therefore, I consider it appropriate to afford no weight to the 2018 scheme in the assessment of the application subject of the appeal.

Nature and extent of conflict with the relevant instruments

  1. [74]
    It is necessary to identify any conflict between an approval and with the relevant instrument, and if so, consider the nature and extent of the conflict taking a sensible approach and regarding the instrument as a whole, and as a comprehensive expression and embodiment of what is in the public interest.[78]
  1. [75]
    Any conflict must be “plainly identified”.[79]  The term “conflict” was considered by the Court of Appeal in Woolworths Ltd v Maryborough CC (No. 2),[80] where Fryberg J said:

‘Conflict’ in this context means to be at variance or disagree with.  It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme).  Unlike ‘compromise’ in para. (a), it implies no particular impact by a subject upon an object.  A determination that there has been a breach of the requirement that ‘the assessment manager’s decision must not … conflict with the planning scheme’ requires 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 decision whether the former conflicts with the latter.  Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.

  1. [76]
    In Lockyer Valley Regional Council v Westlink Pty Ltd,[81] the Court of Appeal discussed and affirmed the Weightman test.  Later, in Kangaroo Point Residents Association Inc v Brisbane City Council,[82] the Court held at [69]-[70]:

“A useful starting point for such interpretation is to consider the approach of de Jersey CJ, with whom Muir JA and Douglas J agreed, in Stockland Development Pty Ltd v Townsville City Council & Ors.  There, after noting that the first instance approach to the application of the scheme to the developer’s proposal involved ‘a correct interpretation of the language of the scheme’ and ‘a factual conclusion as to the absence of conflict,’ de Jersey CJ stated that it was a mistake to think that the construction of town planning schemes can or should be attended by the precision and certainty which should characterise the construction of contracts and statutes, because good town planning, basic principles aside, depends on a large element of fluidity and flexibility: at 324 [25]-[26].

But that approach does not mean that the same general principles which apply to statutory construction do not apply to the construction of planning documents.  This was the concern of the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council & Ors.  There, Morrison JA, with the concurrence of McMurdo P and Douglas J, authoritatively stated that the correct approach to statutory interpretation must begin and end with the text itself, while at the same time bearing in mind that the modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, using ‘context’ in its widest sense: at 95 [55] (with citations omitted). Where the flexibility and fluidity must then occur, consistently with Morrison JA’s analysis, is by appreciating that such documents need to be read in a way which is practical, to be read as a whole, and to be read as intending to achieve balance between outcomes: at 95 [56].  In this understanding of such need, Morrison JA expressly adopted statements by Chesterman JA in AAD Design Pty Ltd v Brisbane City Council, to the effect that: planning schemes, and the definitions found in them, often lack clarity, contain ambiguities, and sometimes appear contradictory; and attempts to make sense of them gives rise, on occasions, to ‘expressions of judicial exasperation:’ at 96 [57].”

  1. [77]
    In considering the principles relevant to the construction of planning schemes, the matters enunciated by Britton SC DCJ in Westfield Management Ltd v Pine Rivers Shire Council[83] remain apposite:
  1. (a)
    They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach;[84]
  1. (b)
    They should be construed as a whole;[85]
  1. (c)
    They should be construed in a way which best achieves their apparent purpose and objects;[86]
  1. (d)
    In the light of the proscription against prohibiting development;[87]
  1. (e)
    Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate;[88]
  1. (f)
    A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved;[89]
  1. (g)
    A Strategic Plan should be read broadly and not pedantically;[90]
  1. (h)
    Although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;
  1. (i)
    A conflict alone may not have the effect of ruling out a particular proposal.[91]
  1. [78]
    I now examine the nature and extent the proposed development conflicts with the terms of:
  1. (a)
    2006 Scheme including: Desired Environmental Outcomes; Strategic Framework; Kinross Road Structure Plan; and zones including Neighbourhood Centre Zone, Medium Density Zone, Open Space Zone, Urban Residential Zone and the Community Purposes Zone; and;
  1. (b)
    Regional Plan,

having regard to the common material, the 2013Approval, lawful use of the land and adjacent land.[92]

2006 Scheme

  1. [79]
    The 2006 scheme took effect from 20 March 2006.  Section 3.1.1 provides, rather unusually, that the “effective life” of the scheme is a “period of 8 years from the date of commencement”.[93]  That is, March 2014, but of course it remains in force until repealed when a new scheme is in force.
  1. [80]
    The 2006 scheme is divided into 12 parts.  Of particular relevance are the higher order provisions in Part 3, including the Desired Environmental Outcomes and Strategic Framework, and also Part 4 containing the zones.

Desired Environmental Outcomes

  1. [81]
    DEO no. 6 which relates to economic development and relevantly provides:[94]

(1) Redland Shire has a diverse, dynamic and sustainable economy with increasing levels of employment opportunity through -

(a)  a network of multi-purpose centres where -

(i)  development occurs in accordance with Redland Shire’s Centre network, where,

a.  Capalaba and Cleveland are recognised as Principal Activity Centres under the South East Queensland Regional Plan, and together with Victoria Point are located within the Major Centre zone to accommodate the key concentrations of higher order retail, commercial, residential, administrative, community and entertainment uses and employment mix;

b.  Birkdale and Alexandra Hills are district centres;

c.  Wellington Point, Redland Bay, Mount Cotton Village, Dunwich and Colburn Avenue, Victoria Point are neighbourhood centres.

  

(iii)  the City centres are geographically defined by the extent of the Centre zones in the case of District, Neighbourhood and Local Centres and Diagram 12 Capalaba Principal Activity Centre, Diagram 13 Cleveland Principal Activity Centre and Diagram 14 Victoria Point Major Centre.

(iv) the primacy of the City’s centres network shall be protected by discouraging out of centre development outside of the centre areas identified in (i) above.  …

  1. [82]
    A “Centre” is defined to mean “the City Centres geographically defined by the extent of the Centre Zones in the case of District, Neighbourhood, Local, Point Lookout and SMBI Centres and Diagram 12 Capalaba Principal Activity Centre.  Diagram 12 Cleveland Principal Activity Centre and Diagram, 14 Victoria Point Major Centre as depicted in Part 3: Division 2 Strategic Framework of the Redlands Planning Scheme.”[95]
  1. [83]
    In DEO 6 the “Redland City’s Centre network” prescribes for different levels of centres, including Major, District, Neighbourhood and Local centres. Here, the co-respondent characterises the proposed centre as a “Neighbourhood Centre” with a total floor space of 6,875m2, comprising a full-line supermarket and specialty shops comprising 5,700m2 retail and associated uses totalling 1,175m2 (tavern, service station and medical centre). 
  1. [84]
    In s 4.15.7(2) of the Overall Outcomes for Neighbourhood Centre Zone Code, the characteristics of the Neighbourhood Centre includes:
  1. (a)
    Centre uses to service residential and tourist catchments up to 5000 people in sub-area NC1 and 10,000 people for other areas in the zone;
  1. (b)
    Meet community needs to serve neighbourhood catchments;
  1. (c)
    Limited size and scale of retailing activities, proportionate to catchment zone;
  1. (d)
    Includes mini supermarket, speciality stores, refreshment establishments, limited commercial activities and limited community services.
  1. [85]
    By comparison, a District Centre (which sits between a Neighbourhood Centre and a Major Centre servicing catchments greater 50,000 people), according to s 4.4.7(2) Overall Outcomes for District Centre Zone Code , has characteristics to provide for a range of uses that (among other things):
  1. (a)
    Meet demonstrated community needs to serve a district sized catchment;
  1. (b)
    Includes supermarket, specialty stores, commercial activities and community services.
  1. [86]
    More like a District Centre, the proposal seeks to develop the largest Coles full-line supermarket, and the second largest full-line supermarket, in the Redland City local government area.  It will be smaller than the Woolworths at Capalaba Central,[96] which is part of a Principal Regional Activity Centre under the South East Queensland Regional Plan 2009-2031 and is designated as a Major Centre in the 2006 scheme.
  1. [87]
    The term “Out of centre development” is defined in the 2006 scheme as ‘A location that is clearly separate from a centre’, with the notation that ‘land is zoned with the word “centre” in the title is a centre for the purposes of the planning scheme'.[97]  The subject land is not included within any geographically defined centre zones and can only be characterised as out of centre development. 
  1. [88]
    The appellant argues that the proposed development conflicts with DEO 6, because the proposed development does not protect the City’s centres network in the manner required in that it involves out of centre development; and retail development of a size and function not supported in the locality.
  1. [89]
    Whilst, the co-respondent accepts that the proposed development would represent out of centre development, it argues that the proposed development does not affect the “primacy” of the centres network, as the centres referred to in the DEO will retain their role and function as higher order centres, regardless of whether the Court grants the approval the subject of this appeal.  Further, it points to the term – “discouraging”, (in relation to out of centre development in DEO 6) as not the strongest possible language, the stated eight year “effective life” of the scheme, Council’s earlier approvals of out of centre development, and approvals of large centres for existing centres.
  1. [90]
    I agree that the discouragement of out-of-centre development in DEO 6 in the terms of s 3.1.7(1)(a)(iv) coupled with the other relevant factors does provide scope for consistency such that the proposed development may exist in harmony with the prescribed network of centres.
  1. [91]
    Even so, it seems to me that the conflict with the 2006 scheme is plain and significant since the proposed centre is not contemplated by the scheme in its location, scale or function and is ‘out of centre development’.  The proposed development would:
  1. Result in an additional centre not contemplated by the 2006 scheme’s planned centre network;[98] and
  1. Potentially impact upon the City’s planned centre-driven economic and employment opportunities at Cleveland and Victoria Point.[99]

Strategic Framework

  1. [92]
    The appellants also assert conflict with provisions of the strategic framework, particularly, ss. 3.2.3 and 3.2.4(5), and diagrams 2 & 3.[100]
  1. [93]
    Section 3.2.3 of the Strategic Framework, which relevantly states (using the appellant’s bolding):

3.2.3  Strategies for the City

(1) Urban Settlement Pattern and Population Growth -

(k) The development of centres is in accordance with a functional network, with the major centres at Capalaba, Cleveland and Victoria Point.  These areas will accommodate the primary concentrations of higher order commercial, retail, administrative, community and entertainment facilities.  Both Capalaba and Cleveland are recognised in the Regional Plan as Principal Activity Centres which service catchments of sub regional significance and accommodate key concentrations of employment.

(3) Centres -

(a) The Redlands Planning Scheme encourages the development of centres in accordance with a functional network, with individual centres of varying level differentiated from one another on the basis of a centres matrix that distinguishes centre role and function, scale and use composition.  The geographical extent of each of the larger centres is defined by Diagram 12 Capalaba Principal Activity Centre, Diagram 13 Cleveland Principal Activity Centre and Diagram 14 Victoria Point Major Centre.  The extent of other smaller centres is determined solely by the extent of the relevant centre zoning(s) in that area.

(h) District centres at Birkdale, Alexandra Hills and Redland Bay provide for the commercial and retail needs of surrounding district catchment population of approximately 15,000 persons.  The extent of these District Centres are geographically defined on the zoning maps by the District Centre zone.

(i) Neighbourhood centres are located at Wellington Point, Redland Bay, Mount Cotton Village, Dunwich and Colburn Avenue – Victoria Point.  These centres are intended to fulfil a traditional village centre role.  They provide for neighbourhood commercial and retail needs of a catchment population generally up to 7,500 persons, except Mount Cotton Village and Colburn Avenue – Victoria Point where the catchment size is reduced to reflect location circumstances.  Retail and commercial activity within these centres is to encompass mini-markets, specialty shops, and limited commercial premises.  Full-line supermarkets are inconsistent with the intended role and function of these centres and accordingly are not considered appropriate.  The extent of Neighbourhood Centres are geographically defined on the zoning maps by the Neighbourhood Centre zone.

(j) All remaining centres in the City are local centres.  Local centres are encouraged to develop in locations zoned for such purposes.

(k) The Redlands Planning Scheme actively protects the primacy of the City’s centres by discouraging out of centre development – that is, development outside of the geographical extents of the larger centres as shown in Diagrams 12-14 and the extent of the centre zonings in other centres – and ensuring no existing centre expands to the next level in the centre’s matrix by virtue of size or function.

  1. [94]
    Section 3.2.4(5)(b), with respect to the Kinross Road Structure Plan Area[101] provides as follows (using the appellant’s bolding):

3.2.4 Local Level Strategies applying to certain parts of the City

(5) Kinross Road Structure Plan Area

 (b) Overall development intent and vision statement

(i) Vision for the Kinross Road Structure Plan Area – The Kinross Road Structure Plan Area is a sustainable, integrated and well planned urban community accommodating a range of dwelling types, integrated movement and public open space networks and a range of local community, commercial and retail facilities.  The Kinross Road Structure Plan Area has a distinct sense of place and community built upon a strong respect for the natural environment including Hilliards Creek, flood affected areas, bushland habitats and fauna movement corridors.

The integration and land uses and transport infrastructure ensures the community enjoys a range of travel choices including pedestrian and cycle networks, public transport and private vehicles.  Internal linkages ensure good access to the Mixed Use Local Centre Precinct, Community Facilities Precinct and Greenspace Precinct.  External linkages ensure strong connectivity to higher order retail, employment and community facilities at Cleveland, Capalaba and Victoria Point.

Urban areas within the Kinross Road Structure Plan Area are attractive and functional neighbourhoods with convenient walkable access to public transport.  The Mixed Used Local Centre Precinct, in combination with the Community Facilities Precinct and local recreation park creates a community hub and focal point for the urban community.

Urban form in the Kinross Road Structure Plan Area is typified by a range of residential densities and building heights, with the greatest densities located in proximity to the Mixed Use Local Centre Precinct.  A diversity of dwelling types provides housing choice and improved affordability within a unique urban form that enjoys the amenity and values of the surrounding environment.

….

(e) Land Use Precincts Strategy – Mixed Use Local Centre Precinct (Precinct 1)

(i) The Mixed Use Local Centre Precinct will provide convenience shopping catering for the local resident’s day to day convenience needs, commercial employment opportunities and residential accommodation in a vibrant central hub of community activity.

(ii) Outcomes for the Mixed Use Local Centre Precinct include:

a. providing limited retail and commercial services to meet the convenience needs of surrounding residents;

b. providing for small scale commercial offices or service industry activities that encourage and support local employment opportunities while respecting and protecting the amenity of adjoining housing precincts;

c. exhibiting the basic characteristics of a transit orientated community by integrating land uses and public transport infrastructure;

d. providing, in association with the adjoining Community Facilities Precinct, local recreation park, pedestrian and cycle network and bus stop, a focal point for the urban community;

e. providing opportunity for medium density housing above the ground story;

f. ensuring the built form incorporates:

  • sustainable sub-tropical building design in a mid-rise form; and
  • active street frontages on the ground level.

g. ensuring site planning and building design addresses the Greenspace Precinct and facilitates connections to the adjoining local recreation park;

h. demonstrating principles of Water Sensitive Urban Design;

i. managing urban stormwater and wastewater quality and flows to protect receiving water quality and improve waterway stability through construction and operational phases to meet the design objective.

….

(g) Sub-Precinct 3a Medium Density Residential Housing – Kinross Road:

  • is designed to maximise views and outlook across the adjoining Greenspace Precinct;
  • supports an increased density of dwelling units in proximity to the Mixed Use Local Centre and Community Facilities precinct;
  • incorporates pedestrian and cycle pathways which provide convenient linkages to the Mixed Use Local Centre Precinct, Community Facilities Precinct, Greenspace Precinct and bus stops; and
  • supports development in a mid-rise (3 storeys) built form.

(h) Sub-Precinct 3b Medium Density Residential Housing – Boundary Road and Panorama Drive:

  • provides low-rise medium density residential development in close proximity to line haul bus services along Boundary Road and Panorama Drive;
  • provides physical breaks in the built form to facilitate convenient pedestrian access to the public transport services along Boundary Road and Panorama Drive;
  • incorporates acoustic treatments and building setbacks which mitigate noise impacts from Boundary Road and Panorama Drive;
  • ensures consistent acoustic treatments incorporate high quality landscaping design and façade treatments that are visually attractive to address acoustic requirements and provide a transition to the rural land to the south of Boundary Road included in the Regional Landscape and Rural Production Area of the Regional Plan 2009-2031; and
  • limits development to a low-rise (1-2 storeys) built form.
  1. [95]
    The proposed development is inconsistent with the 2006 scheme’s Strategic Framework as identified by the appellant, in that:
  1. The development would result in an additional centre inconsistent with the Scheme’s planned centre network;[102]
  2. The development would potentially jeopardise the ability of higher order centres to function at the level intended by the centres hierarchy;[103]
  3. The development is inconsistent with the intention for the land to be utilised for medium density residential housing (sub-precinct 3b), urban residential housing (sub-precinct 4b) and green space network (sub-precinct 7(e));[104] and
  4. The development would potentially jeopardise the ability for the planned local centre in the Kinross Road Structure Plan area to properly function.[105]
  1. [96]
    However, I accept the co-respondent’s argument that the 2006 scheme expressly and effectively excludes these Strategic Framework provisions from the assessment of the proposed development.  Section 3.2.1(2) of the 2006 scheme provides:[106]

The Strategic Framework does not have a role in the development assessment under the Redlands Planning Scheme.

  1. [97]
    In Viridian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council,[107] Robin QC DCJ considered a similar provision in circumstances where a Council alleged conflict with the Strategic Framework.  His Honour said at [20]:

The Council relies on 1.7.8 Visitor Facilities in the strategic framework which introduces the planning scheme.  It provides that ‘(a) Noosa Heads and Noosaville will remain the principal focus of visitor accommodation with some sites protected for the exclusive use of visitor accommodation.’  Telling against that provision constituting a relevant basis for a finding of conflict is 1.3.2: ‘This division does not have a role in development assessment under the planning scheme.’  Conflict is something to be established with reasonable clarity, and in the circumstances, I do not consider that it exists with either of the provisions set out above, although the Council sought to rely on it in that regard…

  1. [98]
    I agree. Since the Court in a merits appeal “stands in the shoesof the local government as the assessment manager,[108] I conclude that the appellants’ reliance upon conflict with the Strategic Framework provisions is rendered impotent by s 3.2.1(2) of the 2006 scheme.  I do not rely upon any conflict in this regard.

The zones

  1. [99]
    The appellants also contend conflict with the zone provisions as follows:
  1. (a)
    overall outcomes for the Community Purposes Zone, particularly ss 4.2.7(2)(a)(i)g. and 4.2.7(2)(a)(ii), and Specific Outcomes S1.1 and S1.2 for the Community Purposes Zone; and
  1. (b)
    overall outcomes for the Medium Density Residential Zone, particularly ss 4.14.7(2)(a)(i)i. and j, and overall outcomes for the Kinross Road Structure Plan Area Overlay, particularly ss 5.15.8(2)(b)(i)k.
  1. [100]
    The Overall Outcomes for Medium Density Residential Zone Code, include (using the appellant’s bolding):
  1. (i)
    Section 4.14.7(2)(a)(i) i and j:[109]

“Provide for a range of residential uses that -

i. in sub area MRD5 – provide for permanent residential uses including multiple dwellings, tourist accommodation and aged and special needs housing with no direct vehicular access from Boundary Road.

j. in sub area MDR5 – non-residential uses are highly restricted to protect the higher order function of Boundary Road as a primary road link between the City’s southern districts and Brisbane.”

  1. (ii)
    Section 4.14.7(2)(a)(ii):[110]

“Provide for a range of non-residential uses that -

a. fulfil a local community need and provide opportunities for social interaction and activity;

b. are highly accessible to the residents served;

c. do not compromise the role and function of centres;

d. are not large land consumers that by their scale and nature will diminish the quantity of land within this zone;

e. are located on the major road network rather than local residential streets;

f. do not result in commercial ribbon development;…”

  1. [101]
    The Overall Outcomes for the Major Centre Zone Code, includes s 4.12.7(3)(a)(v) (again using the appellants’ bolding):[111]

“Sub-areas MC9, MC10, MC11 and MC12 comprise the Victoria Point Major Centre which provides for a range of uses that –

b. serves a catchment of less than 50 000 people;

c. include one (1) discount department store, supermarkets, specialty stores and commercial activities;

f. provide entertainment facilities such as cinemas, nightclubs, restaurants and other like activities;

g. incorporates a public transport interchange;

h. has high accessibility by private transport with driving time of less than 15 minutes to the majority of its catchment and provides higher order services to the Southern Moreton Bay Islands; …”

  1. [102]
    The Overall Outcomes for the District Centre Zone Code, relevantly states in s 4.4.7(2)(a)(i) (with the appellants’ bolding):[112]

Provides for a range of uses that

  1. enhance and protect the primacy, vitality and vibrancy of the City’s network of centres;
  2. meet demonstrated community needs to serve a district sized catchment;
  3. includes supermarkets, specialty stores, commercial activities and community services;
  4. provides employment opportunities;
  5. provides focus for community interaction and activity;
  6. are located near schools, parkland and community facilities to form part of a district community node and support the function of retail and commercial activities to be located in the district centre zone;
  7. are conveniently accessible to the district catchment area they serve by private vehicle, public transport and pedestrian and cycle routes;
  8. in sub-area DC1 – are predominantly for residential and tourism accommodation uses where part of a mixed use development;
  9. in sub-area DC2 – provide opportunity for the redevelopment or expansion of existing hotel.
  1. [103]
    The Overall Outcomes for the Neighbourhood Centre Zone Code, includes in s 4.15.7(2)(a)(ii) (with the appellants’ bolding):[113]

Provides for a range of centre uses that

  1. enhance and protect the primacy, vitality and vibrancy of the City’s network of centres;
  2. fulfil a traditional village centre role;
  3. meet community needs to serve neighbourhood catchments;
  4. limit the size and scale of retailing activities, proportionate to catchment size;
  5. includes mini-supermarket, specialty stores, refreshment establishments, limited commercial activities and limited community services;
  6. provide for employment opportunities;
  7. are conveniently accessible by private vehicle, public transport and pedestrian and cycle routes to the neighbourhood they serve;
  8. in sub-area NC1 – provide local convenience shopping for the day to day needs of the local catchment.
    1. (c)
      the Overall Outcomes for the Local Centre Zone Code, includes s 4.10.7(2)(a)(i) (with the appellants’ bolding):[114]

Provides for a range of centre uses that

  1. enhance and protect the primacy, vitality and vibrancy of the City’s network of centres;
  2. serve a local catchment;
  3. provide local convenience shopping for day to day needs;
  4. provide for local employment opportunities;
  5. provide a focus for local community interaction and activity;
  6. are located near schools, parkland and community facilities to form part of a local community node;
  7. are conveniently accessible to the catchment area they serve by private vehicles, public transport and pedestrian cycle routes.
  1. [104]
    As discussed above, the proposed development is more accurately characterised as functioning more like a District Centre, or at least, a larger centre than a Neighbourhood Centre (so called by the co-respondent).
  1. [105]
    It seems to me that the proposed development and proposed variations conflict with the zone provisions as contended by the appellants. It involves uses that are inconsistent with the zone and use of the planned road. The proposed road connection, in an alternative location, will also affect the adjacent land because it does not align with the land that is in the zoned road on the land to the immediate west. Further, the proposed development involves direct vehicular access from Boundary Road.
  1. [106]
    In any event, the Kinross Road Structure Plan overlay code provides that it prevails over any other provisions within the 2006 scheme to the extent of any inconsistency.[115]  As to the zoning of the road shown in the Kinross Road Structure Plan, it is true that a reconfiguration will cause a change of the level of assessment under the 2006 scheme,[116] however, this is dissipated by the 2018 scheme which does not identify or zone roads differently to the rest of the parcel.[117]  Further, the road network for the Kinross Road Area is shown more indicatively.[118]

Kinross Road Structure Plan

  1. [107]
    The land is within the Kinross Road Structure Plan Area. The provisions of the structure plan overlay code prevail over any other provisions within the 2006 scheme to the extent of any inconsistency.[119]
  1. [108]
    The structure plan area comprises 7 precincts: mixed used local centre precinct (precinct 1); community facilities precinct (precinct 2); medium density residential housing precinct (precinct 3); urban residential housing precinct (precinct 4); low density residential housing precinct (precinct 5); bushland living precinct (precinct 6); and green space precinct (precinct 7).[120]  There are also sub-precincts within some precincts.
  1. [109]
    The Kinross Road Structure Plan Area is subject to the Kinross Road Structure Plan overlay code. Map 1 of that overlay code shows the precincts and sub-precincts.[121]  It contains overall outcomes which are the purpose of the code,[122] and specific outcomes that contribute to achieving the overall outcomes.[123]  Development that is consistent with the specific outcomes will comply with the Kinross Road Structure Plan overlay code.[124]
  1. [110]
    Section 5.15.8(2)(a)(ii) of the Kinross Road Structure Plan Overlay, relevantly provides:[125]

Uses and other development reinforce the specific development intent for each Land Use Precinct, depicted on Map 1 – Kinross Road Structure Plan Area – Land Use Precincts, as follows –

a. Mixed Use Local Centre Precinct – (Precinct 1)

  • provides limited retail and commercial services to meet the convenience needs of surrounding residents;
  • provides for small scale commercial offices or service industry activities that encourage and support local employment opportunities while respecting and protecting the amenity of adjoining Housing Precincts;
  • exhibits the basic characteristics of a transit orientated development by integrating land uses and public transport infrastructure;
  • provides, in association with the adjoining Community Facilities Precinct, local recreation park, pedestrian and cycle network and bus stop, a focal point for the surrounding housing precincts;
  • provides opportunity for medium density housing above ground level;

c. Medium Density Residential Housing Precinct – (Precinct 3)

  • provides a range of housing types including apartment buildings, multiple dwellings, town houses, terraces, and aged care and special needs housing to meet the community’s diverse housing needs;
  • takes advantage of the views and amenity offered by the Greenspace Precinct ensuring development addresses and provides passive surveillance of public open spaces;
  • provides a higher density of dwelling units in proximity to the Mixed Use Local Centre Precinct and Community Facilities Precinct;
  • incorporates pedestrian and cycle pathways which provide convenient linkages to the Mixed Use Local Centre Precinct, Greenspace Precinct and bus stops;
  • Sub-Precinct 3a Medium Density Residential Housing – Kinross Road
    • ensures building design maximises views and outlook across the adjoining Greenspace Precinct;
    • provides for a higher density of dwelling units in proximity to the Mixed Use Local Centre and Community Facilities Precinct;
    • incorporates pedestrian and cycle pathways which provide convenient linkages to the Mixed Use Local Centre Precinct, Community Facilities Precinct, Greenspace Precinct and bus stops;
    • supports a mid-rise built form;
  • Sub-Precinct 3b Medium Density Residential Housing – Boundary Road and Panorama Drive
    • provides for low-rise medium density residential development in close proximity to line haul bus services along the public transport corridors on Boundary Road and Panorama Drive;
    • provides physical breaks in the built form to facilitate convenient pedestrian access to the public transport services along Boundary Road and Panorama Drive
  1. [111]
    In Aldi Stores (A Limited Partnership) v Redland City Council,[126] Wilson SC DCJ said:

“[39] It is accepted by both parties that although ALDI stores have a limited range of products, they sell a much larger range of goods than anticipated to meet a local community need. Council also argues that, due to the location of the proposed ALDI store vis a vis the existing Shopping Centre, as well as the positioning of its entry and exit points, social interaction or activity would not be promoted.

[40] The fact that paragraph (c) of Specific Outcome S1.3(1) (‘providing only for the identified convenience needs of the local community’) is not able to be met by this proposal has been properly conceded by Mr Schomburgk, ALDI’s town planning expert.  This concession is necessarily qualified by the observation that the Court has been commonly confronted with this type of problem, and accepted that the provision of services to a community wider than the local community is not necessarily a disqualifying factor.”

  1. [112]
    For the latter proposition, referred to in Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council,[127] where Rackemann DCJ emphasised that provisions within planning schemes which seek to limit retail uses to the needs of the local community “should be construed and applied in a practical rather than pedantic way”.  That approach to the construction of planning schemes has more recently been endorsed by the Court of Appeal in Zappala Family Co v Brisbane City Council.[128]  But in doing so, the court ought not usurp the role of the local authority.[129]
  1. [113]
    The appellants point to these provisions to demonstrate conflict with the overall outcomes for the Kinross Road Structure Plan Area Overlay Code, particularly ss 5.15.8(2)(a)(ii) a. and c.  The appellants have, accurately in my view, seized upon the following conflicts between the proposed development and the Code in that:
  1. The development is inconsistent with that proposed for the land use precincts that apply to the site;[130]
  1. The only precinct type that deals with provision of retail and commercial services, being precinct 1 (noting that this does not apply to the land), envisages delivery of “limited retail and commercial services to meet the convenience needs of surrounding residents” from a centralised location within the structure plan area, whereas the proposed development will provide broader services to a larger catchment, and in a location different to that proposed in the structure plan;[131] and
  1. The proposed development would impact the ability for the planned local centre with adjoining community facilities in the Kinross Road Structure Plan area to properly function.[132]
  1. [114]
    The co-respondent accepts that the proposed development conflicts with the provisions of the Structure Plan, in that it will use the land for centre uses instead of its designated use for housing uses; other land is designated in the structure plan to be used for centre uses; and it also provides a centre that is a larger in scale than that anticipated within the structure plan area.
  1. [115]
    This part of the assessment goes to the consideration of the preliminary approval for the material change of use for the mixed-use development other than the part of the application seeking to vary the effect of the scheme. That result also informs the assessment of consistency of those parts of the preliminary approval application seeking to vary the effect of scheme.[133]

South East Queensland Regional Plan

  1. [116]
    One appellant relies on the State perspective through the South East Queensland Regional Plan 2009-2031 (“Regional Plan”) as strengthening the importance of the centres hierarchy and planned network of centres in the 2006 scheme, in particular, at page 31:[134]
  1. The Regional Plan refers to the Kinross Road local development area to provide a residential community in combination with additional employment opportunities, together with local retail and commercial functions and community services;
  1. It notes the low self-containment levels of employment in Redland City and indicates that employment growth is to be focused within the planned network of multi-purpose activity centres;
  1. It records that Victoria Point is a major regional activity centre and notes that there are lower-order centres across Redland City that otherwise accommodate the remaining centre-based employment growth; and
  1. It notes that timely provision of transport infrastructure, including quality public transport infrastructure is essential to support Redland City’s expected population and employment growth and that plans to support such growth include ‘bus priority measures between Cleveland and Capalaba principal regional activity centres and Victoria Point’.
  1. [117]
    The Regional Plan is in the nature of a higher order strategic planning document expressed in broad terms and ought be considered with that in mind.[135]  Mr Ovenden opined that the development is consistent with desired regional outcomes 3 and 8 of the Regional Plan.[136]   On the contrary, Mr Schomburgk opined that the Regional Plan was not supportive of out of centre development.[137]  It is also apparent that the Regional Plan deals mainly with higher order centres, save that it includes the district centre of Victoria Point.
  1. [118]
    It seems to me that the nature and extent of the conflicts identified by the appellant, add little, if anything, to the issues raised about the 2006 scheme (and draft scheme).  Even so, conflict with the Regional Plan does not mandate refusal in the absence of sufficient grounds.[138] 

Tension applying the planning instrument & the public interest

  1. [119]
    The Council acknowledges that the 2006 scheme fails to adequately promote development of the type proposed to serve the Kinross Road Structure Plan Area, as well as the broader southern Thornlands area having regard to DEO 3(1)(f).[139]  In these circumstances it is permissible for the Court to place weight on the Council’s approval in forming its own view of whether the application ought to be approved despite the conflicts with the scheme.[140]
  1. [120]
    In Kangaroo Point Residents Association Inc v Brisbane City Council,[141] Dorney QC DCJ referred to the various earlier decisions, and said:

“[100] In Scurr v Brisbane City Council[142] Stephen J, with whom Barwick CJ, McTiernan, Menzies and Gibbs JJ agreed, outlined the principle that a decision on a planning issue was one to which the court ‘would no doubt ordinarily wish to pay some regard as to the expression of the views of the responsible planning authority’: at CLR 257; ALR 431.

[101]  In this court in Wingate Properties Pty Ltd v Brisbane City Council[143] Brabazon QC DCJ identified the Scurr principle as permitting ‘weight’ to be placed ‘on an approval by a local authority, as that represents an expression of the views of the response of the planning authority’: at [22].  Earlier, in R v Brisbane City Council; Ex parte Read,[144] in the then Full Court, McPherson J (as he then was) remarked that the principle did give rise to a consideration of the weight to be attached to the relevant Council decision: at Qd R 28; LGRA 9.

[102]  More recently, local first instance decisions applying the principle were made by Robin QC DCJ and Robertson DCJ in Mackay Shopping Centres Pty Ltd v Mackay Regional Council[145] and Friend v Brisbane City Council,[146] respectively.

[103]  Nevertheless, as remarked by Robin QC DCJ in Mackay Shopping Centre, what counts, in the end, is the persuasiveness of the Council’s case, from the standpoint of assisting the developer to satisfy the onus the developer bears: at [44].

[104]  It should be noted that the Brisbane City Council, as the ‘responsible planning authority’, has made submissions which are distinctly harmonious with those made by Metro.  That regard is recognised.”

  1. [121]
    In Mackay Shopping Centre Pty Ltd v Mackay Regional Council,[147] Robin QC DCJ said (excluding references):

“[44] Although this appeal is a rehearing, in which the co-respondent must establish before the court a case for approval of its proposal (that is that the appeal should be dismissed), uninfluenced by the Council’s favourable determination, the Council is the planning authority, and its persistence in advocating strongly for the proposal in the appeal is a factor the court is entitled to take some notice of in line with certain judicial utterances … as might have been strong Council opposition.  A developer with Council support would usually be in a better situation.  Of course, what counts in the end is the persuasiveness of the Council’s case, from the standpoint of assisting the developer to satisfy the onus the developer bears.”

  1. [122]
    The Council has conducted a positive case, called evidence from independent experts, made submissions in support of the proposed development, conceded the 2006 schemeis inadequate”, and acknowledged the “deficiency” of the centres hierarchy.[148]  During the opening of the case Mr Wylie for the Council said:[149]

With respect to the grounds that Council says would support this development, notwithstanding the conflict with the scheme, the relevant grounds are the fact that this scheme is inadequate in that it fails to provide convenient and proximate full-line supermarket services of the type proposed by the subject development to the residents of the Kinross Road Structure Plan Area and the broader Thornlands area.  And that’s the area identified in the trade areas by the need experts.  In particular, what is relevant is that the development that is proposed would fall within the category of the district centre.  The main difference between a district centre and a neighbourhood centre in this context is that the scheme says that neighbourhood centres should not have full-line service – sorry, full-line supermarkets whereas a district centre should.  And so it’s Council’s position that this is a district centre and that a – and that the normal course should be that when one is not immediately proximate to a major centre, one should have access to a – one should have relevantly convenient access to a district centre, which is what this proposal provides.

And an example of where that is provided in other areas of the scheme, if one turns to page 30 of exhibit 1, and you’ll see that there’s the major centres to the north of the Capalaba Park and the Stockland Cleveland, the two major centres.  For the areas immediately proximate to those within, say, two to three kilometres, they will rely upon those for both their major centre and their district centre needs.  But for outside that immediate area, the scheme has provided for the Alexandra Hills Shopping Centre, which is a district centre, which provides full on [sic] supermarkets.  To the north outside the immediate proximity of the Capalaba Park and Stockland Cleveland major centres, we’ve – Council’s provided the Birkdale Fair district centre.  To the south – to the area to the southeast of the Victoria Point centre, the Redland Bay district centre.  No similar district centre has been provided by the planning scheme in the vicinity of the Kinross Road Structure Plan and Council acknowledges that is a deficiency of the current planning scheme that unfortunately has been carried over to the draft scheme.”

Scheme deficiency & zoning has been “overtaken by events

  1. [123]
    The co-respondent argues that this appeal is within a very rare category of cases where a respondent Council accepts that its centres hierarchy is not “soundly based or logically conceived”, that being a reason which the courts have accepted for not according weight to a relevant aspect of a planning scheme.[150]
  1. [124]
    The 2006 scheme has not been left derelict.  It has been amended over 15 times in its life.[151] The Major Amendment Package 01/2013 upgraded the Redland Bay Neighbourhood Centre to a District Centre.  That amendment demonstrates that the Council is attentive to some changes in population that justify revision of its centres network strategy and has made such amendments to its centres network.[152]
  1. [125]
    However, the co-respondent argues that the 2006 scheme is deficient in that it has been overtaken by events and is no longer in step with the needs of the community.  It is submitted this is demonstrated through:
  1. (d)
    departures from the Council’s planning intent by granting the development approvals referred to above;
  2. (e)
    the Council’s notified grounds for approval;[153]
  3. (f)
    the evidence of Mr Ovenden;[154]
  4. (g)
    the evidence of Mr Norling;[155]
  5. (h)
    the submissions made on behalf of the Council.[156]
  1. [126]
    Support for the argument is also found in the 2006 scheme itself where it expressly provides that it has an “effective life” of eight years.[157]  It is also argued that the 2006 scheme contains some errors or inconsistencies which further highlight the shortcomings of the document.  For example, the planning experts noticed that the DEOs classify Redland Bay as a Neighbourhood Centre whereas it is zoned a district centre.[158]  Another error was identified in s 5.15.2(8) of the Kinross Road Structure Plan overlay, which purports to prohibit development applications for preliminary approvals varying the effect of the 2006 scheme
  1. [127]
    The co-respondent also points to the population and centre equation to highlight that the centres hierarchy is not soundly based. For example, the 2006 scheme effects an intention of the appellants’ centres to serve a catchment of less than 50,000 people,[159] whereas at 2016 they are serving a catchment of 60,651 people.[160]  Mr Schomburgk acknowledged so much during his cross examination.[161] 
  1. [128]
    Other problems with the centres hierarchy are highlighted in the need experts’ joint report about the reports prepared by SGS and Urbis dealing with the retail needs of the local government area. For example, when considering the SGS report the economists agreed that (with the co-respondent’s bolding):[162]

Despite identifying a need for nearly 286,000m2 of additional in-centre retail and commercial floorspace by 2031, SGS made no recommendations for additional neighbourhood or local centres, other than to note that Council would need to plan and designate land for local centres within areas not served by neighbourhood or other higher order centres.  The only substantial changes to the centre hierarchy recommended by SGS was that the Redland Bay Neighbourhood Centre be re-designated as a District Centre on the basis that its future population should reach 15,000 by 2026 and 16,000 by 2031, and that the Victoria Point Major Activity status should be recognised as such in the SEQ Regional Plan (page vi).

  1. [129]
    Similar Urbis reports also identified population increases but made no specific recommendations for new centres to serve the identified future growth.
  1. [130]
    The need JER records that both Mr McCracken and Mr Norling:[163]

… consider it extraordinary that, despite identifying significant increases in Redland City’s population (42,000 to 50,000 additional people), neither the two Urbis reports nor the SGS report identified or recommended the potential need for additional shopping centres capable of incorporating full-line supermarkets to service this growth.  Under past and current Planning Scheme Centre Hierarchies for Redland City, the introduction of additional full-line supermarkets to serve Redland City’s current and future populations (to 2031) can only be accommodated within existing Major Centres (Cleveland, Capalaba and Victoria Point) and in designated District Centres (Alexandra Hills, Birkdale and Redland Bay).

  1. [131]
    This is consistent with the evidence of the Council’s planning expert, Mr Ovenden who stated:[164]

It is important not to read the planning scheme too rigidly, particularly in circumstances where the planning authority has not got the planning quite right.  In this particular instance, I am of the opinion the departure from the very prescriptive retail hierarchy in the scheme is in the interest of the community and will not undermine the integrity of the planning scheme.  More specifically, it will assist in achieving Desired Environmental Outcomes of the Planning Scheme, it will not undermine the roles and function of other existing and planned centres in the City, nor will it compromise the delivery of the Kinross Road Structure Plan.  Therefore, I believe sufficient grounds can be advanced to justify a decision to approve this proposal, despite the conflict.

  1. [132]
    Mr Ovenden also opined that the current centres hierarchy fails to satisfy DEO 3 of the 2006 scheme,[165] and he testified that there was a gap in the hierarchy, and remained of this view when being cross-examined.  Mr Norling, also called by the Council, was of a similar view.  He said:[166]

The development of supermarkets in Redland City has not kept pace with this population growth, nor has the centre hierarchy been amended to cater to the needs of the emerging Thornlands population.

  1. [133]
    There is significant force in this body of expert opinion discrediting the contemporary planning for the area.
  1. [134]
    The Kinross Road local centre contemplated under the Structure Plan was also the subject of evidence about its planning and prospects of realisation.[167]  
  1. [135]
    Mr McCracken’s explained how the plan evolved as follows:[168]

And so you’re saying that the centre’s hierarchy is wrong.  That is that the Council got it wrong – weren’t prepared to see this hierarchy?Well, my involvement in the Kinross Road structure plan in 2006 – a centre was envisaged there but so were access from Kinross Road through to Panorama Drive at Goddard Road and another crossroad, which I think is still shown in the cadastral maps, but they’re not to be built is my understanding.  Which would’ve opened that area up so that people to the – I mean even the people who live in Kinross Road structure plan now on the Panorama Drive cannot access that centre without having to – well, they can’t drive to it.

Mr McCracken, can you go to page 16 of exhibit 1?  Am I correct in saying that that shows a future road network that will be built as and when the urban areas, particularly those precincts 4A are built throughout the Kinross structure plan area?Yes.

Am I correct in saying that if once that road system is in place and once that area is developed the mixed-use local centre shown in blue in the centre will be indeed conveniently centrally located to all of that population in where they live?If the road through our site is – the subject site is built they would be able to – my point is, that when these centres were being talked about this Kinross Road area had – it wasn’t a cul-de-sac.  It had access through to – I think it was through Goddard Road and one other road which I’ll see a name for.  So I don’t know what happened after our input as part of the Parsons Brinckerhoff team that did the structure plan, but something went awry.  It seems they’ve lost – left a big local centre in there but with no way of accessing, even the part of the structure plan area that exists.

  1. [136]
    Mr Ovenden, who was the planner called by the Council, opined, that the Kinross Road centre would have more localised and convenient retail products, and a different form and function to the proposed development, but he accepted that the Council hasn’t got the planning “quite right”.[169]  Mr Norling emphasised that the designated centre was poorly located in respect of servicing the needs of the community.  Indeed, Mr Zeller on behalf of Coles has explained that the designated location for retail is not a location of interest for Coles.  In contrast, Mr Schomburgk posited that the structure plan provided for a local centre for residents to undertake a ‘top-up shop’ or for ‘day to day needs’, and they would undertake ‘chore’ shopping at the major centres at Cleveland to the north and Victoria point to the south.
  1. [137]
    It is also relevant that the Council has previously approved a centre on the subject land, which would have impacted the structure plan local centre. Further, at the time that Mr Fiteni entered into a call option to purchase 53-65 Kinross Road (which is now the subject of a centre designation), that parcel was not the subject of a centre designation and instead the subject land had the benefit of a centre designation.
  1. [138]
    Since the first hearing Council has approved development over the land the subject of the Structure Plan, including the Kinross Road centre.  On 15 January 2018 the Council approved a development application for a preliminary approval for a material change of use and a development permit for a reconfiguration of a lot (to create 68 standard lots, 3 balance lots, road and park) over the poultry farm land.  The Council then approved a child centre and multiple dwellings application on 12 December 2018.[170]  Further residential development has occurred within the locality (including as a result of the removal of the poultry farms within the Kinross Road structure plan area and the removal of the poultry overlay).[171] 
  1. [139]
    As Mr McCracken reported:[172]

[37] In February 2017 Andiworth Pty Ltd lodged an application with Council (MCU013930) for preliminary approval over the poultry farm land (Lot 139 on S312585, part lot 3 on RP220126) to Reconfigure a Lot  Stage 1 - 1 into 68 lots, 3 balance lots, park and road, which includes the land designated for the Local Centre.  The Andiworth application did not seek to provide a local centre as per the Structure Plan.  In response to Council’s Information Request of 28 March 2017, Andiworth submitted an Economic and Need Assessment Kinross Road Local Centre Retail Development report (June 2017) prepared by Leyshon Consulting Pty Ltd.  The findings of the Leyshon Consulting report, summarised in Andiworth’s Information Request Response (dated 13 June 2017), were that:

  • If the Court approves the proposed Paradise Gardens Neighbourhood Centre within the KRSPO Area, the prospects for effective retail development on the subject site will be extinguished. Simply put, the Paradise Gardens centre is too close to the subject site and will contain a much superior range of convenience retail facilities compared with those that could be developed on the subject site and trade viably.
  • Even if the Court does not approve the proposed Paradise Gardens Neighbourhood Centre, there are significant concerns about the long-term viability of retailing on the subject site, even if a suitable complement of retailers could be attracted at the initial stage of the development. Even without additional competition, it is not considered that the subject site will be particularly attractive to retail tenants.
  • It is therefore considered that the Neighbourhood Centre identified in the Kinross Road Structure Plan Overlay (KRSPO) is not required, and more specifically, would not be economically viable (IR Item 3, page 5).

[38] Council issued a Decision Notice approving the Andiworth development application (MCU013930) on 15 January 2018.

[39] In May 2018, Andiworth lodged an application for a Material Change of Use for a Child Care Centre and Multiple Dwellings (55 units) (MCU18/0117) over part of the Structure Plan area that included the designated Local Centre site.  In response to Council’s Information Request dated 28 June 2018, Andiworth submitted a report Kinross Road Long Day Care Centre Economic Needs Assessment dated 5 September 2018, prepared by CDM Smith in support of the child care centre within the Local Centre zone (I note that Marcus Brown was a co-author of that report).  

[40] Council issued a Decision Notice approving the Child Care and Multiple Dwellings application on 12 December 2018. 

[41] Consequently the prospects of a future retail centre on the designated Structure Plan site would appear to be now virtually nil.  

  1. [140]
    Mr Cumming similarly concluded saying:[173]

…because the Kinross Road centre site as designated in the Kinross Road Structure Plan (KRSP) in the 2006 Scheme and the 2018 Scheme zone maps, has changed ownership and a childcare centre has been approved for the centre site, together with medium density development.  Therefore, the designated centre site will not be used for retail facilities and a theoretical impact of the Nerinda proposal on the designated centre is no longer a consideration.”

  1. [141]
    I accept Mr Norling’s evidence that the Kinross Road centre site is dislocated and isolated, which would have impacted its development in any event.  It is favourably proximate to prospective residential development, a district park and Community Facility.
  1. [142]
    And, after considering matters that have occurred since these appeals Mr Norling says:[174]

It is my opinion that the subsequent events described in the previous paragraph are consistent with the views I expressed in para 199 of the Joint Experts Report: Need, where I stated that the designated local centre on Kinross Road was too small and poorly located to service the retail needs of the local community and that there was some doubt as to whether it would be developed as prescribed.  The above evidence strengthens my view that it is very unlikely that is Local Centre would deliver anything other than a Childcare Centre.  It is relevant to note that the approved Childcare Centre is likely to perform better on this small Local Centre site than a shopping centre.

  1. [143]
    In relation to the Kinross Road local centre, the development of that land for non-retail uses is currently underway.[175] In his oral evidence, Mr Brown accepted that the delivery of a local centre on the site designated under the Structure Plan has been lost due to the childcare and multi-unit dwelling approval; leaving an unfilled “gap” in the centres hierarchy. Despite the Structure Plan, I think there is no realistic prospect of that centre developing to include retail uses for the reasons explained by the evidence of Mr McCracken, Mr Norling,[176] Mr Ovenden[177] and Mr Cumming.[178] 

Council’s departures

  1. [144]
    The co-respondent also relies upon the Council’s own departures from the Centres hierarchy as being, I suppose, symptomatic of the scheme deficiencies.
  1. [145]
    In Grosser v Gold Coast City Council,[179] White J said:

“44 It is well recognised that a town planning appeal court may depart from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remained invalid, Beck v Atherton Shire Council [1991] QPLR 56 at 59, quoted with approval by Newton DCJ in Pacific Exchange Corporation Pty Ltd v Gold Coast City Council [1998] QPELR 335 at 339 and following. …”  

  1. [146]
    Mr McCracken highlighted the importance of the provision of retail facilities to the public when conditions dictate:[180]

Retail industry and retailing is a dynamic industry. It’s always in a state of flux to some extent.  The – there’s really no ideal balance – it’s not like an equation that can be balanced. It’s – there’s always – new  things come along. Growth shifts to another area not anticipated.  So I – my view is you need a centre’s hierarchy but it can’t be so rigid as to fossilise that hierarchy.  There’s always new things coming along, conditions change, and we’ve, effectively, just removed two lower order centres out of the hierarchy and that seems okay, but, you know, you’ve also got to be able to add new centres to it as the times and conditions dictate.

  1. [147]
    It seems that the Council has departed from the planning intent in the 2006 scheme when conditions dictated by:
  1. (a)
    previously approving centre uses on the subject land, contrary to the structure plan designations and zoning designations that apply to the subject land;[181]
  1. (b)
    approving a full-line supermarket at the Neighbourhood Centre in Mt Cotton,[182] in circumstances where the strategic framework does not encourage full-line supermarkets within a Neighbourhood Centre;[183]
  2. (c)
    approving the “Shoreline” preliminary approval which includes a district centre on land not identified in the centres hierarchy.[184]
  1. [148]
    Of course, these departures do not provide some licence to ignore a planning scheme, but rather, each application must be considered on its merits and in the public interest. It is also not appropriate that this court conduct a meritorious review of past decisions, but there is no suggestion that these previous decisions were other than appropriate based on the merits of the case and in the public interest. They are practical indicia of scheme deficiency; such that the instrument was not, in the particular case, an embodiment of what was in the public interest.

Community Need

  1. [149]
    The notion of need in this context is the enhancement of community wellbeing, and has been analysed by this court in the past, including:
  1. “In ordinary parlance, one hears reference to phrases such as, ‘a person in need’, which conveys as a matter of objective fact the idea that that person, if not in distress, is nonetheless deprived to the extent that his wellbeing is at risk.  One cannot sensibly translate that concept into the town planning context.  ‘Need’ in planning terms is a relative concept … (It) is firstly a community need, not in the sense that there is an element of urgent community necessity for a facility or for land so zoned on which the facility can be provided.  Rather, it connotes the idea that the physical wellbeing of a community or some part of it can be better and more conveniently served by providing the means for ensuring that the provision of that facility, subject always to other considerations of the town planning kind, including all consideration that the wellbeing of a community also depends significantly on an acceptable residential amenity.”[185]
  1. “‘Need’ in cases such as this does not mean pressing need, critical need, widespread desire or anything of that nature.  A thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community”.[186] 
  1. “‘Need’, in planning terms, is a relative concept.  It does not connote pressing urgency, but rather relates to the general wellbeing of the community.  A use is needed if it would, on balance, improve the services and facilities available in a locality.”[187]
  1. “To provide competition and choice where none exists can represent the filling of a need”.[188]
  1. [150]
    No issue has been taken with any component of the proposed development other than the “retail/commercial” component.[189]  The question is whether the residents can be better and more conveniently served with appropriate access to a full-line supermarket and complementary stores, and a tavern.
  1. [151]
    In my view, the consideration of need ought not be undertaken in a vacuum and ought always be cognisant of other town planning considerations and controls.[190]  In Luke v. Maroochy Shire Council [2003] QPELR 447 at 459, Wilson SC DCJ said at [55]:

“The undeniable purpose of a town planning scheme is to regulate, within reasonable limits, consonant with the personal liberties of landowners, the provision and distribution of appropriate community facilities, both private and public, with a view to promoting the general wellbeing of the occupants of the relevant local government area.”

  1. [152]
    Consideration of need is determined from the perspective of the community and not that of the developer, commercial competitors or submitters. In relation to the facilities supplying the necessaries of life Wilson SC DCJ said in Luke, at [35]:

“…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.”

  1. [153]
    His Honour made similar remarks in Parmac Investments v. Brisbane City Council,[191] where he said, albeit in the context of the phrase ‘overwhelming community need’, at [30]:

“…and when, as here, the need to be satisfied involves the daily essentials of ordinary life, the bar should not be set too high; and when the planning scheme indicates a deliberate planning decision to provide an opportunity for convenience retail facilities to satisfy those needs, and there are no unacceptable impacts on amenity, the efforts required to demonstrate need at that level are not onerous.”

  1. [154]
    Further, in JPF Australia Pty Ltd v Livingstone Shire Council,[192] Britton SC DCJ held that considerable weight should be given to the question of need where the need to be satisfied involves shopping for the essentials of life mainly food and groceries as well as associated convenience goods.
  1. [155]
    In the context of a full-line supermarket, Rackemann DCJ in Fabcot Pty Ltd v Cairns Regional Council,[193] said:

“When the need of the community under consideration involves the daily essentials of life such as food and groceries, questions of convenience and availability of choice to the public are significant considerations. The proposal would deliver a full-line supermarket to a growing area which needs one, can support one, but currently has none.”

  1. [156]
    The 2006 scheme provides for ‘top up’ convenient shopping at a number of small centres within the primary trade area, and travel access to full-line supermarkets within District and Major Centres.[194]  There are no such larger centres in the identified trade area, which means that those residents must travel outside the area to shop at a full-line supermarket.  The case involves consideration of the distance and reasonableness of that travel in the circumstances that a resident should travel to access a full-line supermarket.  The relative proximity of supermarket facilities in the vicinity include:
  1. the full-line Coles and Woolworths supermarkets at Cleveland, to the north;
  1. two full-line Woolworths and a full-line Coles, together with an ALDI at Victoria Point, to the south; and
  1. a substantial IGA at Crystal Waters for a ‘top-up shop’ at a small local centre, particularly for those in Messrs McCracken and Norling’s secondary east trade area.
  1. [157]
    Mr Viney in the joint traffic expert report sets out the public benefits by improving the existing situation in relation to traffic capacity and safety as well as other matters of public interest which can be delivered without any unacceptable impacts on amenity, traffic maintenance or traffic safety.
  1. [158]
    An arterial road network provides access to those supermarkets north and south of the primary trade area.[195]  Residents in Messrs McCracken and Norling’s secondary east trade area can access a choice of full-line supermarkets at Cleveland and Victoria Point[196] and residents of Messrs McCracken and Norling’s secondary west trade area can access at least four full-line supermarkets at Capalaba.[197]
  1. [159]
    Mr Brown on behalf of the appellants accepted a strong need for fuel retailing along the Boundary Road corridor on which the subject land is located, but concluded there is “limited” demand for the tavern[198] and no need for the development “as a whole”.[199]  It seems to me that Mr Brown’s approach is more stringent than the lower bar for the daily essentials of life.  In contrast to the evidence of Mr Brown, both Mr Norling and Mr McCracken are of the view that there is a “strong” level of need for the proposed development.[200]
  1. [160]
    Mr Brown opined that a five-minute drive time radius, compared to Mr McCracken’s two-kilometre radius, was reasonable to access a full line supermarket. Mr Zeller from Coles also acknowledged that the residents of the primary trade area would have reasonable access to the Coles and Woolworths at Cleveland.  Mr Norling preferred a metric shorter than a five-minute drive, but longer than a two-kilometre radius, as more likely to be a reasonable distance for people to expect to drive to for a supermarket shop.  Based on Mr Norling’s metric, and by reference to the two kilometre range circles around existing full-line supermarkets depicted on page 20 of Exhibit 1, and the “five minute drive time” ranges depicted on page 4 of Exhibit 14, it is clear that the majority of the Primary Trade Area north of Boundary Road would fall outside reasonable catchment areas, as would significant parts of the secondary trade areas. 
  1. [161]
    Mr Cumming, planning expert for the co-respondent, described the subject site as falling within a “geographic hole” of centres.[201]  He also averred to the affordability of weekly shopping at small convenience stores associated with higher prices compared to larger supermarkets, and that centres provide a community focus and that many people, including young and elderly people as well as people with single cars need convenient access to centres.  Mr Ovenden also favoured the proposal as filling a community need.
  1. [162]
    The fresh evidence adduced at the rehearing, particularly of Mr Norling, Mr McCracken, Mr Ovenden and Mr Cumming, highlight changes that have occurred since the hearing of the appeals. For example, as Mr McCracken opined that the community need for the proposed development has been strengthened by the growth that has occurred in the past few years particularly in the Kinross Road structure plan area and further growth is expected over the next several years in the defined trade area.
  1. [163]
    I also bear in mind that the hierarchy of centres relative to the land has not been fully delivered. There are a number of local centres yet to be constructed, as well as an upgrade to a district centre to occur at Redland Bay.[202] Such investment decisions will rely upon the centres hierarchy in the planning documents, and will be driven by the need to serve existing and future populations.
  1. [164]
    Whilst I’m not persuaded that there is an urgent community need for the proposal, my analysis of the evidence does expose a change in circumstances that remains inadequately addressed under the 2006 Scheme nor the 2018 Scheme.
  1. [165]
    Finally, with respect to community need for a hotel, there are no hotels within the primary and secondary trade areas, and none within five kilometres of the land, whereas a per-capita analysis would indicate that the trade areas may support up to four hotels.[203]  I accept that there is a greater community need for the establishment of a hotel.

Economic Need

  1. [166]
    In circumstances where community need may not warrant out-of-centre development, economic need ought to be demonstrated. This involves consideration of whether there is ‘unsatisfied economic demand’ and the development is necessary to cater for that demand,[204] without unduly disrupting or prejudicing other current or planned centres.
  1. [167]
    A fundamental element of economic need is that the development, if approved, would be financially viable.[205] 
  1. [168]
    Broadly speaking, the need experts determined that in its first year of operation the centre as a whole would achieve a total turnover in the order of $42.4 million and $39.86 million, which is sufficient to ensure the development would be economically viable.
  1. [169]
    The experts agreed that a useful starting point is that a catchment containing 8,000 to 10,000 people warranted real consideration for a full-line supermarket to service that catchment. Here, the Primary Trade Area, being the proposed development’s most likely trade area, indicates a 2018 population of 8,020. That population base is at the low end of the range considered appropriate to support a full-line supermarket on the land and arguably insufficient in itself to justify the development. Therefore, passing trade will form a significant contributor to the developments viability. That is, further indicia that the proposed development will function more like a District Centre, rather than as a Neighbourhood Centre to service up to 10000 people.
  1. [170]
    Mr Brown estimated that passing trade will contribute 28.6 per cent of the trade, as compared to the 17.5 per cent estimated by Mr McCracken and Mr Norling.
  1. [171]
    The differences between Mr Brown, and Mr McCracken and Mr Norling result from the different methodologies used by those experts. In particular, Mr Brown used motor vehicle turn-in rates, which was considered by the other experts as quite unusual and unorthodox in relation to supermarkets.[206]  From a commercial perspective, Mr Zeller (on behalf of Coles) testified that:[207]

Coles bases decisions to locate a store on any particular site on its location and accessibility to the existing planned population.  In particular, Coles defines its catchments by primary and secondary locations from the site to the surrounding residential population.  Coles does not use assumptions that volumes of passing traffic make a decision to shop at a centre as the basis for locating stores in similar developments to the proposed Thornlands development”.

  1. [172]
    Mr Norling explained:[208]

I have been involved in the analysis of prospective property developments for more than 30 years.  I have utilised a range of methodologies in projecting future performance levels for property developments and observed a range of methodologies adopted by other consultants.

It has been my experience that the motor vehicle turn-in rate methodology has been adopted for service stations and fast food outlets, on the basis that these facilities primarily target passing motorists rather than a specific trade area.  It is my view that this methodology is particularly relevant for those larger service centres that are located remote from populations and other services and hence rely upon the motoring public.

In all my years of experience, this is the first time I have seen a motor vehicle turn-in rate applied to project the turnover of a shopping centre and I can find no reference to this approach in the literature.  It is therefore my opinion that Marcus Brown has adopted a novel approach to projecting turnover for the proposed shopping centre on this occasion.

  1. [173]
    Since the first hearing the primary trade area considered by the need experts has experienced an increase in population beyond that originally anticipated. Mr Norling explained in his report:

“9.  The Joint Experts Report: Need (para 79) stated that I considered that the projected growth rate for the Primary Trade Area (as set out in Table 3) was conservative. That statement has subsequently been proven correct, with the 2016 estimated resident population of the Primary Trade Area (based upon the 2016 Census) being 8,190 persons and the 2018 estimated resident population estimated at 8,580 persons. The Primary Trade Area population has therefore grown faster than previously projected (already surpassing the 2022 projection), strengthening the argument about need for the proposed commercial/retail elements of the Application.”

  1. [174]
    During cross-examination in the first hearing, Mr McCracken explained that his criticism of Mr Brown’s methodology “is the entire external trade for this centre comes from the south, from Redland Bay and Victoria Point is my understanding of Mr Brown’s methodology.  That’s simply not plausible in my view.[209] Nevertheless, Mr McCracken acknowledged that the characteristics of the land relevant to the extent of passing trade, include:
  1. (a)
    the population of this part of Redland City is spread out in a linear fashion, with the spine of that population being Cleveland-Redland Bay Road;
  1. (b)
    Boundary Road is a major carrier of commuter traffic;
  1. (c)
    there are many people that commute from south of the land, from Victoria Point, Redland Bay and Mount Cotton, past the land to go to the Brisbane CBD;
  1. (d)
    until the population south of Redland Bay matures to the extent that they have their own full-line supermarket, many of the commuters from the area will likely stop at the supermarket during their long journey home; and
  1. (e)
    in terms of homebound traffic, there is no easier access to a supermarket than the left-hand turn in that is proposed off Boundary Road onto the land.
  1. [175]
    Mr Brown’s analysis seems to account for these matters and refers to available empirical data. However, in cross-examination, Mr Brown accepted that:
  1. (a)
    the 17,500 vehicles relied upon by him was drawn from two-way flow, and the more relevant figure homeward traffic;
  1. (b)
    he had not previously interpreted traffic for the purposes of determining need for a shopping centre;
  1. (c)
    the impacts identified in Table 20 of the joint report would not realistically occur at one time; and
  1. (d)
    the trade area for the current Mt Cotton centre is well removed from that for the development, as would be the case for the proposed 3,200m2 supermarket at Mt Cotton.[210]
  1. [176]
    I prefer the evidence of Mr McCracken and Norling and their methodology. The growth in the primary trade area has exceeded the growth projected in the 2016 joint experts report, and it is prevalent in that Kinross Road area. Further, in their original joint expert report, those economists used lower growth levels for the Kinross Road Structure Plan Area, mainly because of the then uncertainty with the poultry farm. The poultry farm is now subject of approvals for further development within the structure plan area. The extent to which passing trade may draw from, and therefore impact the planning of other centres, is discussed below.
  1. [177]
    As to the proposed tavern use, I also prefer the forecast sales proposed by Messrs McCracken and Norling,[211] and note that their figures do not rely on any gaming machine profits (which may be installed in the future). 
  1. [178]
    On my reckoning of the economic need evidence, I am persuaded that there is unsatisfied economic demand and the development is necessary to cater for that demand, without unduly disrupting or prejudicing other current or planned centres. This is again demonstrative of a change in circumstances that is not adequately addressed under the 2006 Scheme nor the 2018 Scheme.

Planning need

  1. [179]
    Planning need, and its relationship with economic need, was considered by McLauchlan QC DCJ in Elfband Pty Ltd and Vanhoff Pty Ltd v Maroochy Shire Council,[212] as follows:

“Planning need is no doubt a more general issue than economic need, but it seems to be obvious in cases such as this that unless there is an economic need there will be no planning need. It is therefore essential that the evidence establish, as I consider it has, that there is an economic need for a shopping centre such as Maroochydore Marketplace within the Sunshine Coast retail network.  The issue of planning need then focuses upon the question whether the particular development proposed should be permitted, involving as it does an amendment to the planning scheme.”

  1. [180]
    There is little dispute that the land is physically ideal for the proposed development. Mr Schomburgk accepted that the land, being proximate to the main road network, was a highly strategic location for retail and commercial development. Indeed, he described the suitability of the subject site for the proposed development as follows:[213]

If you were to accept that proposition that a district centre is warranted in this area, it’s an excellent location for a district centre, isn’t it?I don’t disagree with you there.  I mean, it’s a good location.  It’s accessible, easy.  It’s on the left-hand side of the homeward journey, as we heard Mr Lancini say, and as this court has heard so many times before about larger-scale centres, convenience centres.  That’s the preferred sort of location.  It’s a very busy road, it’s visible – all of those things.  Yes.

  1. [181]
    This is not altogether surprising since the Council has already accepted that the subject land is suitable for centre type activities with development approval and permit (which has not lapsed) for a shopping centre with a gross floor area of over 1,000m2.  The land has, since the commencement of the 2006 scheme on 30 March 2006, been identified for centre uses either by way of zoning or development approvals except for a period of 14 months.
  1. [182]
    The appellants do not rely upon the availability of alternative land for the proposed ‘out of centre’ development. Although, they acknowledge that ‘out of centre’ development may be justified in appropriate circumstances, they argue that this is not such a case having regard to the hierarchy of centres established by the 2006 scheme.
  1. [183]
    The consideration of planning need ought not be undertaken in a vacuum and ought always be cognisant of other town planning considerations and controls.[214] 
  1. [184]
    This court has from time to time acknowledged proper planning of locating centres. So much is consistent with the approach taken by Skoien SJDC in Provincial Securities Pty Ltd v Brisbane City Council,[215] when considering a more generic provision of a scheme.  The approach was explained by Wilson SC DCJ (as he then was) in Luke v Maroochy Shire Council:[216]

“Faced with a statement of intent in the planning scheme for Brisbane requiring consideration whether a shopping proposal would ‘mainly serve residents in the immediate locality’, his Honour determined that this was not a critical point or an absolute requirement but, merely, a consideration to be taken into account – and referred, as authority for that conclusion, to Prime Group Realty v. Brisbane City Council (1995) QPLR at 173, at 176; and Phil Fletcher Planning and Investment Services v. Brisbane City Council (1991) QPLR 16, at 18.  The Brisbane planning scheme also contained another requirement that shopping centres should be ‘on neighbourhood access roads’ and, at 145, His Honour suggested that centres located in these places would very likely wither and die for lack of custom, and the requirement was:

‘…an example of the drafter’s wishful thinking and admirable as may be the wish it is unlikely to be met in today’s real world.’” 

  1. [185]
    The courts have afforded no or less weight to an aspect of a planning scheme if that planning is not “soundly based or logically conceived”.[217]  Such matters are a matter of context of the scheme, and the approach ought be tempered in these circumstances where a centres hierarchy has been deliberately planned and zoned. 
  1. [186]
    In Wilispap Pty Ltd v. Mulgrave Shire Council,[218] Quirk DCJ emphasised the strategic planning importance of locating and ordering retail centres:

“The location and order of retailing facilities in developing areas is no doubt a very important part of strategic planning. This is a matter appreciated by (and to which careful attention has been given by) the Respondent Planning Authority for this area in its recently exhibited Development Control Plan. The Respondent's opposition to this proposal is in my opinion quite consistent with the planning strategies found in the Development Control Plan and no real basis for any serious questioning of the strategies has been shown. I fully appreciate that Draft Development Control Plan does not yet have the force of a statutory planning instrument. It does, however, constitute a recent expression of planning strategy formally made public as required by the Act. In a matter of this kind it would, in my view, be entirely inappropriate for this Court to make a decision which would run contrary to such a considered and carefully expressed planning strategy of a Local Authority.”   

  1. [187]
    Later, in Overton v. Redcliffe City Council[219] Quirk DCJ consistently observed that:

“The provisions with which we are concerned have fundamental importance to the establishment of a suitable and ordered hierarchy of commercial development. As I have indicated to ignore these provisions could have fundamental and far reaching consequences for expectations based on the Strategic Plan as it is presently drawn.” 

  1. [188]
    Beyond the planning, Newton DCJ remarked about the vitality of a centres hierarchy to a functioning City in Lewiac Pty Ltd and ING Real Estate, Joondalup BV v. Gold Coast City Council[220] as follows:

“It does not appear to be in dispute that the achievement of a sustainable and effective centre hierarchy should be recognised as a good town planning principle for reasons of orderly development, increased accessibility and convenience, greater economic efficiency and investment opportunities. Indeed, in his written submissions Senior Counsel for the Respondent observed that it is remarkable that not one witness criticised the town planning principles requiring a hierarchy of centres and not one witness criticised the appropriateness of the specific hierarchy put in place for this region by the relevant planning documents.

It may be accepted then, that a centre hierarchy is vital to the functioning of a City in order to ensure the efficient, equitable and adequate provision of goods and services to all communities having regard to their needs, size and location.  This evidence was given by Professor Brannock, a consultant town planner who testified on behalf of the Fourth Co-Respondent, and it accords in general with the evidence of all the town planning experts. A successful and well-implemented centre hierarchy correlates the economic and social functions of a centre with the needs and interests of its catchment.” 

  1. [189]
    This was reinforced by the Court of Appeal in Australian Capital Holdings Pty Ltd v Mackay City Council,[221] Muir JA (with whom the others agreed) said:

“[58]  The importance of the hierarchy of retail shopping centres or precincts established by planning schemes and the necessity of not acting so as to prejudice the viability of the established hierarchy has been recognised in a number of planning decisions. In Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council & Ors,[222] Newton DCJ observed:

‘[15] It does not appear to be in dispute that the achievement of a sustainable and effective centre hierarchy should be recognised as a good town planning principle for reasons of orderly development, increased accessibility and convenience, greater economic efficiency and investment opportunities.

 

[16] It may be accepted then, that a centre hierarchy is vital to the functioning of a City in order to ensure the efficient, equitable and adequate provision of goods and services to all communities having regard to their needs, size and location.’

[59]  Newton DCJ referred with approval to passages from the reasons of Quirk DCJ in Wilispap Pty Ltd v Mulgrave Shire Council [1992] QPLR 51 at 52-53 and in Overton & Anor v Redcliffe City Council & Anor [2000] QPELR 250 at 253. In Wilispap Quirk DCJ, referring to the potential impact of an application, after remarking that it would ‘prejudice the feasibility of the hierarchy of shopping facilities proposed by the plan’ said, ‘In a matter of this kind, it would, in my view, be entirely inappropriate for this Court to make a decision which runs contrary to such a considered and carefully expressed planning strategy of a local authority.’ In Overton Quirk DCJ drew attention to the fundamental importance of such provisions to (at 253) ‘a suitable and order hierarchy of commercial development’ and commented that ‘to ignore these provisions could have fundamental and far-reaching consequences for expectations based on the Strategic Plan as it is presently drawn.”

  1. [190]
    In terms of the benefit of centres hierarchies, Mr McCracken gave evidence that hierarchies:
  1. (a)
    encourage consolidation of existing centres;
  1. (b)
    encourage investment and re-investment in the existing centres that have been located in appropriate locations to serve the public;
  1. (c)
    discourage out of centre development in order to maintain the vitality, trading vigour and viability of existing centres; and
  1. (d)
    ensure planning for a relatively equitable distribution of facilities at different levels.
  1. [191]
    Centres are also focal points for investment in infrastructure and transport road systems. It is in the community’s best interest to both establish and protect focal points for retail, commerce, community infrastructure, transport and social discourse.
  1. [192]
    There has been significant growth in dwellings and population in the southern Thornlands area, and the growth is predicted to continue in the future in such areas as Kinross Road and Woodlands Drive. The area has been recognised by the respondent as being suitable for residential development.

Public Interest

  1. [193]
    It seems to me that this is an exceptional case where there is tension with the application of the planning instruments and the public interest; such that the planning scheme is not, in the particular case, an embodiment of what was in the public interest, because:
  1. (a)
    Relevant circumstances have changed since the 2006 scheme was made and it is out of date according to its own terms;
  1. (b)
    The 2006 scheme inadequately addressed development of shopping centres in the area;
  1. (c)
    The 2006 scheme did not adequately anticipate specific or particular development in the Kinross Road Structure Plan area and surrounds; and
  1. (d)
    There is strong community, economic and planning need for a shopping centre and hotel in the planned area, which while not urgent, does demonstrate the factors above.

Grounds relevant to the conflict

  1. [194]
    Having regard to the above finding, and the tension in the application of the scheme and the public interest, I turn to what grounds are relevant to the part of the application in conflict with the planning scheme but otherwise in the public interest.
  1. [195]
    Relevant grounds are matters of public interest, and do not include the personal circumstances of a party.[223] Here the parties have focused on the need for the development; commercial, traffic and amenity impacts of the development; and overtaking by events.
  1. [196]
    The co-respondent relies upon the following:[224]

1. There is need for the proposed neighbourhood centre development on the site, because

  1. (a)
    the provision of additional neighbourhood level retail facilities in the Thornlands area is needed to service existing and future populations;
  2. (b)
    the proposed development will provide the growing trade area population with retail facilities that are not conveniently available within a reasonable proximity of the site;
  3. (c)
    the proposed development will provide a more geographically balanced distribution of retail and community services in the local government area;
  4. (d)
    there has been significant growth in dwellings and population in the southern Thornlands area, and the growth is predicted to continue in the future in such areas as Kinross Road and Woodlands Drive;
  5. (e)
    the proposed development will be convenient to the large volumes of vehicular traffic travelling east along Boundary Road;
  6. (f)
    the proposed development will be convenient to a major industry and healthcare employment precinct to its north;
  7. (g)
    the proposed development will involve a vibrant and accessible centre, which will provide a commercial and community focal point for the Kinross Road growth area;
  8. (h)
    the proposed development will provide choice and variety with the introduction of a full-line supermarket based centre, and will provide most trade area residents with access to a greater range and variety of convenient shopping options, and promote competition in a price and service;
  9. (i)
    the proposed development will provide a significant community benefit by providing healthcare services in a convenient location.
  1. There is need for the proposed residential development on the site, because:
  1. (a)
    there has been significant growth in population in the southern Thornlands area, and the growth is predicted to continue in the future;
  2. (b)
    the proposed development is a logical extension of;
    1. existing residential development on the northern boundary;
    2. future residential development to the west;
  3. (c)
    the site has been recognised by the respondent as being suitable for residential development;
  4. (d)
    the proposed development will add to the provision of choice in relation to available housing stock and will provide the community with residential development that is proximate to and within walking distance of shopping, health and community services.
  1. The proposed development will contribute to and promote transport network efficiency, because
  1. (a)
    it is at the intersection of two main roads (Boundary Road and Panorama Drive) which provide convenient and safe vehicular access to the site;
  2. (b)
    it will facilitate vehicular and pedestrian movements between Boundary Road and Panorama Drive by the inclusion of a link road;
  3. (c)
    it is centrally located to serve trade area residents, and will reduce vehicular trips, travel times and distances presently experienced in accessing retail centres more removed from the trade area of the proposal;
  4. (d)
    it will provide an east-to west road link through the site that will ultimately connect Panorama Drive to Kinross Road, as contemplated by the Kinross Road Structure Plan (including the signalisation of the intersection of that east-west link with Panorama Drive);
  5. (e)
    it is proximate to an existing and future local population and so will encourage pedestrian and cycle trips.
  1. The proposed development will result in yet further community benefits, because:
  1. (a)
    it will provide a hub for social and community interaction in a family friendly environment (with the proposed tavern also providing a family friendly leisure/entertainment venue);
  2. (b)
    it will enhance the potential for convenient, multi-purpose trips to a single location;
  3. (c)
    it will provide facilities that are complementary to the future land uses envisaged for the Kinross Road Structure Plan area;
  4. (d)
    it will contribute to the amenity of a growing residential area (including by the provision of a central community and recreational area along the waterway in the north-western part of the site);
  5. (e)
    it will establish a neighbourhood centre that is likely to stimulate residential development in the Kinross Road Structure Plan area and to assist in achieving the residential outcomes envisaged for the area;
  6. (f)
    it will result in the rehabilitation of the dam in the north-western part of the site, the improvement and rehabilitation of onsite vegetation, and the provision of central community parkland;
  7. (g)
    it will result in the provision of a useable open space area in close proximity to the residential and neighbourhood centre uses (it being likely that the open space area would be used for walking, recreation, a market garden and other community uses);
  8. (h)
    it will promote interaction between the open space, residential and retail uses by the particular layout proposed;
  9. (i)
    it will require over 200 part-time and full-time employment positions.
  1. The proposed development is in the public interest, because:
  1. (a)
    it represents an efficient and appropriate use of the site to satisfy the need for retail facilities to serve a growing population;
  2. (b)
    it will complement Redland City’s existing and planned hierarchy of network of centres;
  3. (c)
    it can achieve the outcomes referred to in subparagraph 5(a) and (b) without threatening the viability of any existing supermarket or retail centre;
  4. (d)
    it remedies a deficiency in the centres hierarchy in the planning scheme (as it was not suitably updated to account for the Kinross Road Structure Plan Area being incorporated into the planning scheme);
  5. (e)
    it will satisfy a need in circumstances where there is no unacceptable impact on amenity, traffic movements or competing retail outlets;
  6. (f)
    of the matters referred to in paragraphs 1 to 4 (above) ….
  1. [197]
    These grounds can be synthesised as follows:[225]
  1. The site is an excellent site, from all relevant perspectives, for the development of a full-line supermarket based centre of the size and the type proposed; 
  1. There is a strong community and economic need for the proposal, having regard to the location of the site with respect to its trade area, and significant growth in population that has occurred, and is likely to occur, in that trade area; 
  1. Part of the subject land has been earmarked for retail development since the commencement of the 2006 scheme (save for a period of c.14 months);
  1. The development of the proposal will not give rise to any adverse impacts, with respect to either amenity or centres hierarchy issues.
  1. [198]
    Informed by the analysis of the nature and extent the proposed development conflicts with the terms of the relevant instrument, and the requisite tension with the application of the relevant instrument and the public interest, the ground relied upon by the co-respondent are plainly relevant to the part of the application in conflict with the relevant instrument and otherwise go to the public interest.

Sufficient Grounds

  1. [199]
    Against this analysis, it must be considered whether the grounds are sufficient, in the public interest, to depart from the planning instrument and justify approving the application notwithstanding the conflict.
  1. [200]
    In light of the nature and extent of the identified conflicts with the respective schemes, I think the co-respondent needs strong grounds to overcome the identified conflicts.
  1. [201]
    The Council supports approval of the development, notwithstanding conflict with the 2006 scheme because:
  1. There is community, economic and planning need for the development the subject of the appeal;
  1. The 2006 scheme fails to adequately promote development necessary to enable Desirable Environmental Outcome No. 3(1)(f), in particular, provision of development of the type proposed to service the Scheme’s Kinross Road Structure Plan Area, as well as the broader southern Thornlands Area; and 
  1. The development would not result in negative impacts or detrimental effects, including such impacts or effects on the existing and planned hierarchy of multi-purpose retail district and neighbourhood centres.[226]
  1. [202]
    The fresh evidence particularly of Mr Norling, Mr McCracken, Mr Ovenden and Mr Cumming highlight that the changes that have occurred since the hearing of the appeals favours approval of the proposed development in the public interest.  For example, as Mr McCracken observes, the community need for the proposed development has been strengthened by the growth that has occurred in the past few years particularly in the Kinross Road structure plan area and growth is expected to occur over the next several years in the defined trade area.[227]
  1. [203]
    Having regard to the evidence now before the Court (particularly of Mr Norling[228] and Mr McCracken[229]), approval of the proposed development would not result in an overall adverse effect upon the extent and adequacy of facilities available to the local community.  On the contrary, given that the Kinross Road local centre will not develop in a way that incorporates any retail uses, the proposed development results in an overall benefit to the community without inflicting any unacceptable impacts upon other centres.             

Community Need

  1. [204]
    On balance, it seems to me that the proposed development would provide a focal point in the Kinross Road growth area and it would better and more conveniently serve local residents with appropriate access to a full-line supermarket and complementary stores, and a tavern. It is also likely to provide greater convenience to large volumes of traffic travelling on Boundary Road, and people in the major industry and healthcare precinct to the north. I was concerned that the betterment and shopping convenience for local residents was marginal because of access to existing and proximate full-line supermarket retail facilities, and access to ‘top up’ shopping facilities. These will provide most trade area residents with additional access to a greater range and variety of shopping options, and promote competition in a price and service.
  1. [205]
    In the context of this principle, Mr Norling’s evidence was:

“25. The current Local Community population of 15,800 persons is considered too large to be only serviced by these three (and possibly four) small Local Centres. Further significant population growth is now expected due to the Kinross Road poultry farm ceasing to operate and several residential developers actively developing this area.

  1. There is a clear and strong need for this Local Community to be served by a full-line supermarket-anchored District Centre whose role is to provide the daily essentials of life, as set out in paras 188 and 189 of the Joint Experts Report: Need. This is due to strong population growth, providing a more geographically balanced supply of retail facilities, improving choice, improving accessibility, providing a commercial and community focal point and hub for social interaction and enhancing the potential for convenient, multi-purpose trips.
  2. The centres hierarchy in Redland City cannot accommodate this demonstrated need, as set out in paras 210 and 211 of the Joint Experts Report: Need. The proposed centre would fill an obvious gap in the hierarchy.
  3. It is my opinion that the existing and likely future centres are insufficient and do not adequately service the existing and likely future needs of the emerging Local Community. The centres hierarchy and planning in the Kinross Road area is deficient.
  4. For the above reasons, it is my view that the subject development would not lead to an overall adverse effect upon the extent and adequacy of the centres available to the Local Community. The concern I expressed in para 199 of the Joint Experts Report: Need (that it would contribute to the failure of the Kinross Road Local Centre) no longer applies due to the subsequent events described above. However, I maintain the view expressed in the last sentence of para 199 of the Joint Experts Report: Need, that any resulting community loss (if it were to occur) would be more than made good by the nature, scale and locational benefits of the proposed shopping centre.”
  1. [206]
    My concerns originally expressed have quelled and I am satisfied that the proposed development will not have an adverse effect on the extent and adequacy of the shopping facilities available in the community.
  1. [207]
    I can conclude that there is demonstrated community need for the proposed shopping centre, and I accept that there is a greater community need for a hotel to be established.

Economic Need

  1. [208]
    A fundamental element of economic need is that the development, if approved, would be financially viable.[230] 
  1. [209]
    As discussed above, I prefer the evidence of Messrs McCracken and Norling and their methodology. It seems to me that there is sufficient population in the Primary Trade Area, supplemented by passing trade, to assure financial viability of the centre., and the proposed tavern will also be financially viable.

Impact upon other centres

  1. [210]
    Viability of the proposed centre must be demonstrated without unduly compromising the extent and adequacy of the shopping facilities available in the community. Only in that limited sense does consideration of the economic functionality of current and planned nearby centres may be relevant.
  1. [211]
    It was agreed between the need experts that, with respect to detrimental impact, anything more than 15% impact on turnover would give rise to real concern. However, the effect of impacts upon existing centres is irrelevant in circumstances where community need for the development has been established. In Landel Pty Ltd & Anor v Redland Shire Council,[231] Quirk DCJ held that with respect to potential prejudice to other centres:

“Economic need is only one component of “need” as it is understood in a planning sense. Weight must be attributed to the interests of the community and to a greater extent than to those of existing operators of retail facilities.”

  1. [212]
    In Kentucky Fried Chicken Pty Ltd v Gantidis,[232] Barwick CJ said “economic competition feared or expected from a proposed use is not a planning consideration within the terms of the planning ordinance governing this matter”.  In this context, Stephen J said:[233]

“If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resulting community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning.  It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development.  However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.”

  1. [213]
    Since, I am satisfied that the proposed development will not have an adverse effect on the extent and adequacy of the shopping facilities available in the community, it is not necessary for the co-respondent to show that the proposed centre will not detrimentally impact the economic functionality of current and planned nearby centres, in particular, the existing Victoria Point Major Centre, the Crystal Waters Local Centre, and the proposed Kinross Road Local Centre.
  1. [214]
    However, for the reasons which follow, even if I am wrong about the proposed development not having an adverse effect on the extent and adequacy of the shopping facilities available in the community, it will not detrimentally impact other existing and planned centres.

Victoria Point

  1. [215]
    The three full-line supermarkets at Victoria Point are trading at healthy and profitable levels, with the supermarket at Town Centre performing well.
  1. [216]
    The need experts assessed the impact of the subject development, in the first year of operation (2018), would be in order of 5.7% (Mr Norling), 6.5% (Mr McCracken) and 7.28% (Mr Brown), being less than the benchmark 15% threshold.
  1. [217]
    However, Mr Brown also relied upon cumulative impacts on the Victoria Point Major Centre summarised in Table 20 of the need experts’ joint report. All economists acknowledge that it is normal to assess cumulative impact, in particular, the proposed full-line supermarkets for Mt Cotton and Redland Bay will, in turn, have an impact on the supermarkets at Victoria Point. Mt Cotton has an approval for a 3,200 square metre supermarket. Mr McCracken acknowledged that the 2006 scheme was recently amended, and there would be a sufficient population to support a full-line supermarket at Redland Bay. The developer is likely to develop with a major retail anchor.
  1. [218]
    Even so, I accept the evidence of Mr McCracken and Mr Norling to the effect that any impact ought be considered in the context of commensurate future population increases, which effectively neutralise any concern. I think it unlikely that the prospective development will all become operational simultaneously or before 2018. Therefore, I think that any material impact upon the performance of the Victoria Point Major Centre will be relatively small.
  1. [219]
    Further, the Victoria Park Shopping Centre has an approval for a 9,000 square metre extension. Such expansion will likely involve a second Discount Departure Store, Mini-Major and additional specialty shops. I do not accept that the proposed development would by itself unduly delay expansion plans for the Victoria Point Shopping Centre. However, it will nevertheless contribute to the delay. In my view, the economic impact of the proposed centre upon the Victoria Point Major Centre is within tolerable limits, and would lessen over time.
  1. [220]
    With respect to the hotel or tavern, the experts were in agreement that detrimental impacts of that development on other hotels would not be significant.

Crystal Waters Local Centre

  1. [221]
    Mr Brown’s evidence about the impact on Crystal Waters differs to the evidence of the other need experts. Mr Brown assessed a 2018 impact of some $2.16M (or -18.35%), whilst Mr Norling assessed the impact as $0.8M (or -6.7%).
  1. [222]
    Mr Brown accepted that the local centre presented well, appeared to carry a reasonable range, and had a trade area that lies outside the proposal’s trade area. Additionally, Mr Norling explained the different assessments this way:[234]

“Again, that is a matter of professional judgment, and he’s entitled to apply the factors that he thinks are appropriate.  But when I applied the factors here, that is, that Crystal Waters – so the relevant factors I’ve applied, (1) Crystal Waters is the best performing neighbourhood centre in Thornlands at the moment; it is well located on that north-south road; it has a suite of pretty good tenants.  As a negative, I took into account, it doesn’t have great exposure to that road, in – in the sense that it faces to the rear, so that’s – that’s a negative.  But I felt that once this – if this court approves, and it’s developed, this supermarket-based centre is to be developed, it is my view that it would take trade more away from the supermarket-based centres, and that there was a sufficient geographical distance between the subject site and Crystal Waters such that the Crystal Waters centre would continue to act as a – in that neighbourhood role for that top-up shopping trip, and that the tenants – and the suite of tenants that were there would largely be able to continue to trade to that north-eastern quadrant of the primary trade area and the secondary trade area east.  So – so I – I considered that a relatively low amount of trade would be taken from that centre, and those are the reasons that I factored into my professional judgment.”

  1. [223]
    During his cross-examination, Mr McCracken remarked about the distinctive functions, roles and markets of the respective centres, as follows:[235]

How can you – well, can I suggest to you?  Is it the case that Crystal Waters with its IGA will not be able to compete with a Coles full-line supermarket in terms of range of product, range of packaging products and offer in terms of range of bakery items, range of meat items, range of fish items, range of delicatessen items.  It will simply not compete?   No.  They compete for different markets.  Different – different functions.

And it won’t compete in terms of price?   Well, the IGA’s tend to be a – a bit more expensive than the – the majors.”

  1. [224]
    The events subsequent to the original hearing demonstrate that the impact on the Crystal Waters Local Centre will be less than originally anticipated, and that the need for the proposal has strengthened. I prefer the assessment of Mr McCracken and Mr Norling that any adverse impact in that respect is made good by the proposal, in keeping with the principle established in Kentucky Fried Chicken Pty Ltd v Gantidis.[236]  There is well-founded optimism about the likely impact on the local centre.  I find that the Crystal Waters local centre will be insulated from an impact of the proposed development because of its location, size, nature, convenience and dislocation from the land.

Kinross Road Local Centre

  1. [225]
    I have already remarked about this mixed use local centre contemplated under the Kinross Road Structure Plan, and realistic prospect of that centre developing to include retail uses. 

Planning Need

  1. [226]
    I am also satisfied that there is a strong planning argument supporting the need for an additional neighbourhood centre level of retail facilities in the Thornlands area to service existing and future populations in the Kinross Road growth area, with more convenient and proximate retail shopping facilities. Such a centre will provide a more geographically balanced distribution of retail and community services in the local government area, despite the distribution of scheme network and centres hierarchy. An additional neighbourhood centre will add to the provision of choice in relation to available housing stock and will provide the community with residential development that is proximate to, and within walking distance of shopping, health and community services.
  1. [227]
    The proposed development is of the nature of a vibrant and accessible centre, which will provide a commercial and community focal point for the Kinross Road growth area. The proposed development will provide a significant community benefit by providing healthcare services in a convenient location. It will provide a hub for social and community interaction in a family friendly environment (with the proposed tavern also providing a family friendly leisure/entertainment venue).
  1. [228]
    The co-respondent characterises the proposed centre as a “Neighbourhood Centre” with a total floor space of 6,875m2, comprising a full-line supermarket and specialty shops comprising 5,700m2 retail and associated uses totalling 1,175m2 (tavern, service station and medical centre).  In my view, the proposal will have a higher function than a Neighbourhood Centre with its full-line supermarket, size and scale of retailing activities, and reliance on passing trade extending beyond the neighbourhood catchment.  It would function more like District Centre (at a lower order).  It would service local residents and well as large volumes of vehicular traffic travelling east along Boundary Road.  Albeit at a lower order District Centre, the full-line supermarket, specialty stores, commercial activities and community services, would service a wider district sized catchment.  In that way, it would enhance the potential for convenient, multi-purpose trips to a single location.
  1. [229]
    The proposed development would not impact on transport network efficiency. It would reduce local residents’ vehicular trips, travel times and distances presently experienced in accessing retail centres, and be conducive to pedestrian and cycle trips. The intersection of two main roads (Boundary Road and Panorama Drive) would provide convenient and safe vehicular access to the land. Vehicular and pedestrian movements between Boundary Road and Panorama Drive would be facilitated by a link road. An east to west road link through the site that would ultimately connect Panorama Drive to Kinross Road, as contemplated by the Kinross Road Structure Plan (including the signalisation of the intersection of that east-west link with Panorama Drive).
  1. [230]
    The proposed development would be of a higher order and provide facilities and generally complement the future land uses envisaged for the Kinross Road Structure Plan area, the population growth in the area, and may stimulate further residential development and employment in the area.
  1. [231]
    The co-respondent has shown relatively community, economic and planning need for the development commensurate with population growth in the area. It will be viable, without inflicting adverse impacts on the viability of the larger existing and planned supermarket or centres. I think that the development would fill an obvious gap in the Redland City’s existing and planned hierarchy and network of centres. I am now persuaded that it larger size and function (more than a Neighbourhood Centre and more like District Centre) will not improperly erode and prejudice the existing and planned smaller proximate centres, and the centres hierarchy, given its size, location, overlap and function.
  1. [232]
    In am satisfied that the grounds are sufficient, in the public interest, to depart from the relevant instrument and justify approving the application notwithstanding the conflict.

Conclusion

  1. [233]
    The proposed development significantly conflicts with the 2006 scheme especially in respect of the shopping centre component of the development. 
  1. [234]
    There are deficiencies in the 2006 scheme, which are replicated in the zoning pattern, maintenance of full-line supermarkets in the centres hierarchy and centre zoning in the former draft scheme (subject of public notification) and now 2018 scheme.  But the Council’s appreciation of the perpetuated scheme deficiencies was too late to enable it to effect any change to the draft scheme prior to its implementation as the 2018 scheme.  Therefore, I have afforded no weight to the 2018 scheme in the assessment of the application subject of the appeal.
  1. [235]
    Looking at the 2006 scheme, I now conclude that this is an exceptional case where there is tension with the application of the planning instruments and the public interest.  The 2006 scheme (like the new 2018 scheme) does not embody what was in the public interest, because its deficiencies rendered it inadequate to anticipate or address the changed circumstances of residential development and population growth in the area giving rise to community, economic and planning need for a shopping centre with a proposed full-line supermarket based centre with associated retail and tavern uses in the planned area.
  1. [236]
    There are relevant grounds going to the conflicts with the scheme and otherwise go to the public interest, which I conclude are sufficient, in the public interest, to depart from the relevant instrument and justify approving the shopping centre and tavern uses application notwithstanding the conflicts. Otherwise, there is no issue with the proposed residential component and reconfiguration of a lot.
  1. [237]
    Therefore, I dismiss the appeals and approve the application for a development permit to reconfigure a lot (1 into 2), and for the preliminary approval for material change of use for a mixed use development, including a shopping centre on the corner of Panorama Drive and Boundary Road in Thornlands.
  1. [238]
    I will hear from the parties about any consequential orders consistent with this decision.

Judge DP Morzone QC

Footnotes

[1]Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2017] QPEC 53.

[2] Nerinda Pty Ltd v Redland City Council & Ors [2018] QCA 146.

[3]R v Lukin; Ex parte Sunshine Pty Ltd (1967 QdR 49); Behrens v Caboolture SC (1979 39 LGERA 138); Octopus Media Pty Ltd v BCC 2006 QPELR 678, 680-681; The Avenues Highfields Pty Ltd v Toowoomba RC (2017 QPEC 48 at [5];) see also Alati v BCC (1994 QPLR 112, 115-116).

[4] Morales v Minister for Immigration & Multicultural Affairs (1998 82 FCR 374 at 386C, 387C, 387E).

[5]  Cf. Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009 168 LGREA 1) at [118] per Young JA.

[6]  Exhibit 7 town planning JER p. 14, para 24.

[7]  Exhibit 7 town planning JER pp. 10 and 11, Figures 2-3 and 2-4.  Exhibit 8 appendix AZ-1.

[8]  Exhibit 7 town planning JER p. 9, Table 2.3.

[9]  Exhibit R6 p.14 para 47.

[10]Exhibit 6 need JER p. 36, Table 5.

[11]SPA ss 462 & 495.

[12]SPA, s 314(1)(g).

[13] SPA, s 314(1)(b).

[14] SPA, ss 314(2)(g) and 495(2)(a).

[15]SPA, s 314(3)(b).

[16] SPA, ss 314(1)(b) & (g).

[17]SPA, s 495(2)(a).

[18] SPA, s 324(2).

[19] SPA, s 316(4)(a).

[20] SPA, s 316(4)(b).

[21]SPA, s 316(4)(c)(i).

[22] SPA, s 316(4)(d).

[23]SPA, ss 314(2)(g) and 495(2)(a).

[24]SPA, s 316(4)(e).

[25] Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPELR 628 at [14]-[26].

[26]  SPA, ss 314(1)(b) & (g).

[27]SPA, s 495(2)(a).

[28] Stappen Pty Ltd v. Brisbane City Council [2005] QPELR 466, 473 [31] per Wilson DCJ.

[29] Weightman v Gold Coast City Council [2003] Qd R 441.

[30] Weightman v Gold Coast City Council [2003] Qd R 441 at [36], with whom others agreed, at [8] de jersey CJ, and at [16] per McMurdo P.

[31]Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302 at 322-323.

[32]Lockyer, at 323–324. 

[33]Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82.

[34]Bell v Brisbane City Council & Ors [2018] QCA 84, per McMurdo JA with whom Sofronoff P and Philippides JA agreed.

[35]Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 at [36] & [37] (references omitted).

[36]Guidelines made 11 December 2009 pursuant to s 759 Sustainable Planning Act 2009. 

[37] Bell, at [10]-[13].

[38] Clark v Cook Shire Council [2008] 1 Qd R 327 at 338.

[39] Bell, at [73] & [74].

[40]Weightman, at [35], [36] & [46]; Bell, at [66].

[41]Bell, at [59], [73] & [74]; Weightman, at [36] & [37].

[42]Weightman, at [36] & [37]; Clark v Cook Shire Council [2008] 1 Qd R 327 at 338; Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; Bell, at [66], [68], [70], & [75].

[43]SPA, ss 314(2) & (3).

[44]Bell, at [66], [68], [70], & [75]; Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Anor (2002) 121 LGERA 390 at [105].

[45]Sustainable Planning Act 2009 (Qld), s 326(1); Weightman, at [36], [44] & [45]; Lockyer, at 322–324; Bell, at [66].

[46] Weightman, at [35], [36] & [46]; Bell, at [66].

[47] SPA, s 493(1).

[48]  Exhibit 7 town planning JER p. 48, paras 143-144; Council’s Submission para 6(6), 75, 76.

[49]  Exhibit 7 town planning JER p. 48, paras 143-144.

[50]Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209, 211.  Affirmed by the Court of Appeal in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] 1 QdR 372, Grosser v Gold Coast City Council [2001] 117 LGRA 153, [6] & [38], Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271, [23], Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157, [55]. 

[51]  Contrast Nerinda Pty Ltd v Redland City Council & Ors [2018] QCA 146 at [29], per Bowskill J.

[52] Nerinda Pty Ltd v Redland City Council & Ors [2018] QCA 146 at [20] - [31].

[53]SPA, s 79, Schedule 3 definition “planning scheme”.

[54] SPA, s 80.

[55] SPA, s 79, Schedule 3 definition “planning scheme”.

[56]  SPA, Schedule 3 definition “planning instrument”.

[57]  SPA, Schedule 3 definition “local planning instrument”.

[58]  Cf. Bell v Brisbane City Council & Ors [2018] QCA 84, per McMurdo JA (Sofronoff P and Philippides JA agreed) affirming Clark v Cook Shire Council [2008] 1 Qd R 327 at 338, per Keane JA.

[59]  Exhibit 7 town planning JER p. 47, para 136.

[60]  Exhibit R9 at p.5.

[61]  Contrasts, Exhibit R19 at pp. 10 and 11 – where it was resolved immediately upon the adoption to expedite certain amendments.

[62]  Cf. LEDA Holdings v Caboolture Shire Council [2006] QCA 271 [2006] QCA 271 at [26] – [27]; Mackay Shopping Centre v Mackay City Council [2013] QPEC 29 at 510, 511, 662 – 664; Bird v Logan City Council [2011] QPEC 145; Property Estate v Brisbane Council [1988] QPLR; Duncan v Brisbane City Council 58 LGRA.

[63]  Exhibit R11.

[64]  Exhibit R12.

[65]  Exhibit R11, para 5.

[66]  Exhibit R11 paras 14-18, 22-24, 28.

[67]  Exhibit R11 p.8 para 41.

[68]  Exhibit R12 p.2 para 4(c).

[69]  Exhibit R12 p.2 para 4(d).

[70]  Exhibit R12 p.5 para 17.

[71]  Exhibit R12, para [6].

[72]  Exhibit 7, para [10]; Exhibit 6, para [8].

[73]  Exhibit 7, para [42]; Exhibit R11, para [30].

[74]  RJ [4].

[75]  Exhibit R10 p.8 para 1.1 (2).

[76]  See Step 7 text at p.54.

[77]  Exhibit R13 p.7 para 3.1.4.

[78] Weightman, at [36] & [37]; Clark v Cook Shire Council [2008] 1 Qd R 327 at 338; Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; Bell, at [66], [68], [70] & [75].

[79]Fitzgibbon Hotel Pty Ltd v Logan City Council [1997] QPLER 208, [212].

[80]Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 QdR 273, [23].

[81] Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 QdR 302, 322-323; Hydrox Nominees Pty Ltd v Sunshine Coast Regional Council [2014] QPEC 18, [14].

[82] Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64.

[83] Westfield Management Ltd v Pine Rivers Shire Council [2009] QPELR 337.

[84] ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352, 360; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 340, 342, 345; Harbug Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 318.

[85]Luke v Maroochy Shire Council [2003] QPELR 447.

[86]Luke v Maroochy Shire Council [2003] QPELR 447; Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368, 370; Acts Interpretation Act 1954, s 14A.

[87]  IPA, s 6.1.2(3).

[88]Degee v Brisbane City Council [1998] QPELR 287.

[89]Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266, 272; (1994) 83 LGERA 224, 230; [1994] QPLR 318, 322.

[90] Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306.

[91] Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, 212.

[92]  SPA, ss 314(2) & (3).

[93]  Exhibit 4, vol 1, p. 26: 2006 planning scheme s.3.1.1(3).

[94]  Exhibit 4, vol 1, p. 30: 2006 planning scheme part 3, division 1, p. 5 (with my bolding).

[95]  Exhibit 4, vol 1, p. 30: 2006 planning scheme part 3, division 1, p. 6.

[96]  T2-2/L44-47 (McCracken).

[97]  Exhibit 4, vol 1, p. 285 - 2006 planning scheme, part 9, division 2, p. 16 - “Out of centre development”.

[98]  Lanrex Grounds [13(a)]; Victoria Point Grounds [8(a)]; and Lipoma Particulars [2(a)].

[99]  Victoria Point Grounds [8(g)].

[100]  Exhibit 3: p. 8, para 13(b); Exhibit 3: pp. 21-23, paras 1(b) & (c) and 2(b) & (c); and Exhibit 3: p. 14, para 8(a).

[101]  Exhibit 4 Planning Scheme Extracts, Vol 1 p 54 (emphasis added).

[102]  Lanrex Grounds [13(b)(i)-(ii)]; Lipoma Grounds [2(b)(i)-(ii)].

[103]  Lipoma Grounds [(2)(b)(iv)].

[104]  Lanrex Grounds [13(b)(iii)-(iv)]; Lipoma Grounds [2(b)(iii)].

[105]  Lipoma Grounds [2(c)].

[106]  Exhibit 4, vol 1, p. 32: 2006 planning scheme part 3, division 2, p. 1.

[107]Viridian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council [2013] QPEC 54.

[108]Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333, [59]-[60]; see also Wheldon & Armview Pty Ltd v Logan City Council [2015] QPELR 640, [40]-[44].

[109]  Exhibit 4 Planning Scheme Extracts, Vol 1 p 93 (my bolding).

[110]  Exhibit 4 Planning Scheme Extracts, Vol 1 pp 93 – 94 (my bolding).

[111]  Exhibit 4B Planning Scheme Extracts, pp 6 - 7.

[112]  Exhibit 4B Planning Scheme Extracts, p 1 (emphasis added).

[113]  Exhibit 4B Planning Scheme Extracts, p 9 (emphasis added).

[114]  Exhibit 4B Planning Scheme Extracts, p 3 (emphasis added).

[115]  Exhibit 4, vol 1, p. 192: 2006 planning scheme part 5, division 15, p. 1, s.5.15.2(4).

[116]  T4-67/25-34.

[117]  Exhibit 4, vol 2, p. 480.

[118]  Exhibit 4, vol 2, pp. 398-399.

[119]  Exhibit 4, vol 1, p. 192: 2006 planning scheme part 5, division 15, p. 1, s.5.15.2(4).

[120]  Exhibit 4, vol 1, pp. 212-217: 2006 planning scheme part 5, division 15, pp. 21-26, s.5.15.8(2).

[121]  Exhibit 1 p. 16; Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 57.

[122]  Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 20, s.5.15.7(8).

[123]  Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 20, s.5.15.7(3).

[124]  Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 20, s.5.15.7(4).

[125]  Exhibit 4 – 2006 Scheme extracts, Tab 7 pp 212 – 213 (bolding added).

[126]Aldi Stores (A Limited Partnership) v grounds Redland City Council [2009] QPELR 602.

[127] Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85 at [10].

[128]Zappala Family Co v Brisbane City Council [2014] 201 LGERA 82 at [56]. 

[129] Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209, 211.  Affirmed by the Court of Appeal in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] 1 QdR 372, Grosser v Gold Coast City Council [2001] 117 LGRA 153, [6] & [38], Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271, [23], Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157,  [55]. 

[130]  Lanrex grounds 13(d)(iii)-(iv) and 13(e); Victoria Point grounds 8(b); Lipoma grounds 2(h)(iv); and Order of Rackemann DCJ dated 22 July 2016.

[131]  Lanrex grounds 13(d)(i)-(ii); Victoria Point grounds 8(b)-(d).

[132]  Lipoma grounds 2(h)(i) and (iii) grounds.

[133] SPA, s 316(4)(b).

[134]  Exhibit 25.

[135]  Cf. Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 318.

[136]  Exhibit 7 town planning JER p. 64, para 202(e); see also Exhibit 25 p. 55 (Desired Regional Outcome 3) and p. 90 (Desired Regional Outcome 8).

[137]  Exhibit 7 town planning JER p. 49, para 147; Exhibit 13: Individual Report of Mr Schomburgk p. 7, paras 39-40.

[138] Bird v Logan City Council [2012] QPELR 502, [44]-[45].

[139]  Exhibit 3 Documents identifying issues in dispute, Tab 7 [2].

[140] Mackay Shopping Centre Pty Ltd v Mackay RC [2013] QPELR 661; Friend v Brisbane City Council [2014] QPELR 24; Kangaroo Points Residents Association Inc v Brisbane City Council [2015] QPELR 230; Scurr v Brisbane City Council (1973) 133 CLR 242; R v Brisbane City Council ex parte Read [1986] 2 QdR 22.

[141] Kangaroo Points Residents Association Inc v Brisbane City Council [2015] QPELR 230.

[142]  [1973] 133 CLR 242.

[143]  [2001] QPELR 272.

[144]  [1986] 2 Qd R 22.

[145]  [2013] QPELR 661, 689 [44].

[146]  [2014] QPELR 24, 50 [103].

[147] Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPELR 661.

[148]  T1-17/20-45.

[149]  T1-17/20-45.

[150] Sellars Holdings Pty Ltd v Pine River Shire Council [1988] QPELR 12, 17; SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36, 50 line a.

[151]  Exhibit 4C.

[152]  T3-97/42 – T3-98/2 (Ovenden); T4-53/30-44 (Schomburgk).

[153]  Exhibit 3: p. 36, para 2.

[154]  For example Exhibit 11: Individual Report of Mr Ovenden, pp. 3-4, paras 3.4 and 3.9; Exhibit 7 town planning JER p. 18, para 38; T3-100/25, T3-101/5, T3-101/20-25.

[155]  Exhibit 6 need JER p. 71, para 189.

[156]  Eg T1-17/20-45.

[157]  Exhibit 4, vol 1, p. 26: 2006 planning scheme s.3.1.1(3).

[158]  Exhibit 6 need JER pp. 10-11, paras 23-24.

[159]  Exhibit 4, vol 1, p. 36: 2006 planning scheme part 3, division 2, p. 5, s.3.2.3(3)(g)(i).

[160]  T4-62/10-T4-63/30.

[161]  T4-62/10-T4-63/30.

[162]  Exhibit 6 need JER p. 20, para 54.

[163]  Exhibit 6 need JER p. 23, para 64.

[164]  Exhibit 11: Individual Report of Mr Ovenden, p. 3, para 3.4.

[165]  Exhibit 7 town planning JER p. 18, para 38; Exhibit 11: Individual Report of Mr Ovenden p. 4, para 3.9; T3-100/25 and T3-101/5.

[166]  Exhibit 6 need JER p. 71, para 189.

[167]  For example at the first hearing, see - T2-13/40-T2-14/5, T2-36/25-40; Exhibit 6 pp. 76-77, paras 197-198; T2-79/5-20; Exhibit 6 p. 77, para 199; T3-94/40-T3-95/5; Exhibit 7 pp. 40-41, paras 110-113; T4-22/20-25, T4-23/20-45; Exhibit 7 pp.39-40, paras 106-107.

[168]  T2-14/15-40 (bolding to emphasise).

[169]  T1-17/20-45; Exhibit 11: Individual Report of Mr Ovenden, p. 3, para 3.4.

[170]  Exhibit R6 p.13 para 40.

[171]  See e.g. Statement of Mr Norling, Exhibit R14. paras 11-12.

[172]  Exhibit R6 pp.12-13 paras 37-41.

[173]  Exhibit R5 p.5 para 12

[174]  Exhibit R 14 p.4 para 12.

[175]  Exhibit R14 p.3 para11.

[176]  Exhibit R14  p.5 paras 20-21.

[177]  Exhibit R13 pp.4-7 paras 2.1.1-2.1.14.

[178]  Exhibit R5 pp.8-11 paras 26-34.

[179]Grosser v Gold Coast City Council [2001] 117 LGERA 153.

[180]  T2-24/35-45.

[181]  Exhibit 7 town planning JER p. 35 para 91(f) and p. 13, Table 2.4; Cf. Handley v Brisbane City Council [2005] QPELR 80, [14].

[182]  Exhibit 7 town planning JER pp. 40-41, paras 102-103.

[183]  Exhibit 4, vol 1, p. 37: 2006 planning scheme part 3, division 2, p. 6.

[184]  Exhibit 6 need JER p. 25, para 70; Exhibit 7 town planning JER p. 60, para 148 and Exhibit 1A.

[185]Skateway Pty Ltd v. Brisbane City Council [1980] QPLR 245, 249-250.

[186] Cut Price Stores Retailers v. Caboolture Shire Council [1984] QPLR 126, 131.

[187] Roosterland Pty Ltd & its agents v. Brisbane City Council [1986] QPLR 515, 517.

[188] Bunnings Building Supplies Pty Ltd v. Redland Shire Council and Ors [2000] QPELR 193, [21].

[189]  Exhibit 7 town planning JER p. 14, para 24.

[190]  Cf. Intrafield Pty Ltd v. Redland Shire Council [2001] 116 LGERA 350, [5].

[191]Parmac Investments v. Brisbane City Council [2008] QPELR 480, 485.

[192]JPF Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359, [43].

[193] Fabcot Pty Ltd v Cairns Regional Council [2013] QPEC 38, [108].

[194]  Exhibit 4B, pp.1, 5.

[195]  T2-10/31-32 (McCracken).

[196]  T2-11/16-28 (McCracken).

[197]  T2-11/39-44 (McCracken).

[198]  Exhibit 6 need JER p. 58, para 154; p. 84, para 215(j).

[199]  Exhibit 6 need JER p. 83, para 215(a).

[200]  Exhibit 6 need JER p. 40, para 138 and p. 81, para 213.

[201]  Exhibit 7, para [156].  See also pp. 15-17, paras 30-33.

[202]  T2-32/44 – T2-32/3 (McCracken); T2-45/33 – T2-46/17 (Brown); T3-97/26-43 (Ovenden).

[203]  Exhibit 6, para [142].

[204]  Cf. Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435, [53].

[205]All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155, 158.

[206]  See for example Exhibit 9 pp. 3-13, paras 7-35 and 40; Exhibit 12 pp. 3-4, paras 11-18; T1-34/10-20, T1-35/45, T1-38/10-20, T1-39/35-T1-40/5, T2-20/5-20, T2-26/5-20.

[207]  Exhibit 8: Statement of Mr Zeller p. 3, para 16.

[208]  Exhibit 12: Individual Report of Mr Norling p. 3, paras 13-15.

[209]  T2-20/10-20.

[210]  T3-35/10-15.

[211]  Exhibit 6, Table 15.

[212] Elfband Pty Ltd and Vanhoff Pty Ltd v Maaroochy Shire Council [1995] QPLR 290, 313.

[213]  T4-65 ll 5-12.

[214]Cf. Intrafield Pty Ltd v. Redland Shire Council [2001] 116 LGERA 350 at [5].

[215]Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143.

[216] Luke v Maroochy Shire Council [2003] QPELR 447, [48].

[217] Sellars Holdings Pty Ltd v Pine River Shire Council [1998] QPELR 12, 17 and SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36, 50 line (a).

[218]Wilispap Pty Ltd v. Mulgrave Shire Council [1992] QPLR 51, 52-53.

[219] Overton v. Redcliffe City Council [2000] QPELR 250, 253.

[220] Lewiac Pty Ltd and ING Real Estate, Joondalup BV v. Gold Coast City Council [2003] QPELR 385, 389.

[221]Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157 per Muir JA, with whom the others agreed at [1] and [73].

[222] Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council [2003] QPELR 385, 389.

[223]    SPA, Schedule 3; s. 326(1).

[224]  Exhibit 3: pp. 31-35.

[225]  Co-respondent’s Outline of Argument, para 145.

[226]  Exhibit 3, p.36.

[227]  Exhibit R6 p.20 para 70.

[228]  Exhibit R14 p.6 para 29.

[229]  Exhibit R6 p.20 para 71.

[230]All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155, 158.

[231]Landel Pty Ltd & Anor v Redland Shire Council [2002] QPELR 402.

[232] Kentucky Fried Chicken Pty Ltd v Gantidis (1977-1978) 140 CLR 675 at 681 per Stephen J.

[233]Kentucky Fried Chicken Pty Ltd v Gantidis (1977-1978) 140 CLR 675 at 678 per Stephen J.

[234]  T2-76.

[235]  T2-15/30-40.

[236]Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675.

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Editorial Notes

  • Published Case Name:

    Lipoma Pty Ltd, Lanrex Pty Ltd and Victoria Point Lakeside Pty Ltd v Redland City Council and Nerinda Pty Ltd

  • Shortened Case Name:

    Lipoma Pty Ltd v Redland City Council

  • MNC:

    [2019] QPEC 43

  • Court:

    QPEC

  • Judge(s):

    Morzone DCJ

  • Date:

    04 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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