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Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor

 

[2019] QPEC 46

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46

PARTIES:

TOSH ORDY MURPHY

(appellant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

and

BGM PROJECTS PTY LTD (ACN 102 165 328)

(co-respondent)

AND

AUSTRALIAN NATIONAL HOMES PTY LTD (ACN 020 903 189)

(appellant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

and

BGM PROJECTS PTY LTD (ACN 102 165 328)

(co-respondent)

FILE NO/S:

340 of 2018 and 694 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

8 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11-15 June, 18-22 June, 25-29 June, 7 and 19 September and 3 December 2018 and 8 – 10 April, 15-18 April and 13-17 May 2019, further exhibit received 20 May 2019, further written submissions received 19 September 2019, further written submissions and further hearing on 4 October 2019

JUDGE:

Kefford DCJ

ORDER:

Appeal No 694 of 2018 is dismissed.

Appeal No 340 of 2018 is dismissed.  I will hear from the parties as to the need for any consequential orders, including with respect to conditions.  The appeal will be mentioned at 9 am on 30 October 2019 for that purpose.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where BGM seeks a development permit to authorise it to carry out a material change of use to use its land for a proposed local centre – where the council approved BGM’s application –whether BGM’s proposed development complies with the relevant assessment benchmarks – whether BGM’s proposed development is appropriately located – whether BGM’s proposed development is appropriately designed – whether BGM’s proposed development would result in unacceptable headlight glare – whether there is a need for an additional local centre – whether in exercise of the discretion the proposed development ought be approved

PLANNING AND ENVIRONMENT – APPEAL – where ANH sought a preliminary approval for a local centre – where the council refused ANH’s application – where ANH now seeks a preliminary approval generally in accordance with a design – whether ANH’s proposed development complies with the relevant assessment benchmarks – whether ANH’s proposed development is appropriately located – whether ANH’s proposed development is appropriately designed – whether ANH’s proposed development would result in unacceptable noise impacts – whether ANH’s proposed development was unacceptable having regard to traffic engineering considerations – whether in exercise of the discretion the proposed development ought be approved

LEGISLATION:

Planning Act 2016 (Qld), s 45, s 59, s 60, s 61, s 311

Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 47

Planning Regulation 2016 (Qld), s 31

CASES:

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, approved

Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPEC 34, approved

Garyf Pty Ltd v Maroochy Shire Council [2008] QPEC 101; [2009] QPELR 435, approved

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved

Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, considered

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved

Jedfire Pty Ltd v Logan City Council [1995] QPLR 41, approved

Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17, cited

Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, approved

Mirani Solar Farm Pty Ltd v Mackay Regional Council 7 Anor [2018] QPEC 38, cited

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2018] QPEC 63, cited

SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24, approved

Smout v Brisbane City Council [2019] QPEC 10, approved

Vidakovic & Anor v Brisbane City Council [2009] QPEC 53; [2009] QPELR 739, approved

William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, approved

COUNSEL:

D R Gore QC and B D Job QC for the appellants

R Bain QC and J Ware for the respondent

C L Hughes QC, J G Lyons and M Batty for the co-respondent

SOLICITORS:

Connor O’Meara for the appellants

Moreton Bay Regional Council Legal Services Department for the respondent

McCullough Robertson for the co-respondent

TABLE OF CONTENTS

Introduction7
The decision framework7

How should the decision under s 60 of the Planning Act 2016 be approached?

9
What are the issues in this case?12
What is the nature of BGM’s proposed development?13
What are the relevant assessment benchmarks for BGM’s proposed development?14
Will BGM’s proposed development be appropriately located?16

What are the locational requirements in the Planning Scheme?

16

Will BGM’s proposed local centre provide convenient accessibility by motor vehicle?

17

Will BGM’s proposed local centre provide convenient accessibility by active transport?

19

Will BGM’s proposed local centre be at a location that is conducive to provision of access by public transport?

20

Will BGM’s proposed local centre “service an unserviced catchment”?

21

Conclusion regarding the appropriateness of the location of BGM’s proposed local centre

23
Will BGM’s proposed development be appropriately designed?23

What are the design requirements in the Planning Scheme?

23

What are the general design features of BGM’s proposed local centre?

27

Will BGM’s proposed local centre be in a predominantly main-street format?

28

Will BGM’s proposed local centre have active frontages and street-fronting retail?

30

Will BGM’s proposed local centre avoid a parking-lot dominant retail format?

33

Will BGM’s proposed local centre provide quality urban design outcomes and attractive, high-amenity public spaces?

34

Will BGM’s intended design for street activation and an attractive centre be thwarted by noise attenuation measures?

38

Conclusion regarding the appropriateness of the design of BGM’s proposed local centre

40
Will BGM’s proposed development result in unacceptable headlight glare?41
Conclusion regarding the assessment of BGM’s proposed development against the assessment benchmarks43
What is the nature of ANH’s proposed development?43
What are the relevant assessment benchmarks for ANH’s proposed development?44
Will ANH’s proposed development be appropriately located?45

What are the locational requirements in the Planning Scheme?

45

Will ANH’s proposed local centre provide convenient accessibility by motor vehicle?

46

Will ANH’s proposed local centre provide convenient accessibility by active transport?

47

Is there an appreciable prospect that pedestrian and cyclist connectivity will be improved in the future?

48

How important is convenient accessibility by active transport?

51

Conclusion regarding convenient accessibility by active transport?

53

Will ANH’s proposed local centre be at a location that is conducive to provision of access by public transport?

54

Conclusion regarding the appropriateness of the location of ANH’s proposed local centre

55
Will ANH’s proposed development be appropriately designed?55

What are the design requirements in the Planning Scheme?

56

What are the general design features of ANH’s proposed local centre?

57

Will ANH’s proposed local centre be in a predominantly main-street format?

58

Will ANH’s proposed local centre have active frontages and street-fronting retail?

59

Will ANH’s proposed local centre avoid a parking-lot dominant retail format?

60

Will ANH’s proposed local centre provide quality urban design outcomes and attractive, high-amenity public spaces?

61

Conclusion regarding the appropriateness of the design of ANH’s proposed local centre

65
Will ANH’s proposed development result in unacceptable acoustic impacts?65

Will ANH’s proposed development unacceptably affect residences on the Satterley land?

66

Will noise sensitive uses in ANH’s proposed development be unacceptably impacted by the use of the quarry haul route on Raynbird Road?

68
Is ANH’s proposed development unacceptable having regard to traffic engineering considerations?70

Will ANH’s proposed development provide satisfactory pedestrian connectivity and create a walkable catchment?

72

Is the proposed Raynbird Road access intersection adequate to accommodate ANH’s proposed development?

72

Does the district collector street or road typology cross section apply?

74

Is strict adherence required?

75

Can ANH comply with the applicable street or road typology cross section?

77

Will the design of the loading dock create an unacceptable safety issue?

79

Will upgrades to the intersection of Oakey Flat Road and Raynbird Road affect ANH’s proposed development?

80

Will ANH’s proposed development unacceptably affect sight lines for the Raynbird Road and Oakey Flat Road roundabout?

82

Is ANH’s proposed access from Oakey Flat Road acceptable?

83

Is it acceptable to permit access from Oakey Flat Road?

83

Is ANH’s Oakey Flat Road access design acceptable?

85

Will ANH’s proposed development provide acceptable on-site servicing arrangements?

87

Are ANH’s traffic arrangements internal to its site acceptable?

88

Does the absence of a traffic impact assessment warrant refusal?

89

Will ANH’s proposed local centre comply with s 3.14.5.6(3) of the Strategic framework?

90

Conclusion regarding the traffic engineering considerations

90
Conclusion regarding the assessment of ANH’s proposed development against the assessment benchmarks91
ANH’s preliminary approval overriding the planning scheme91
Is there an economic, community and town planning need for an additional local centre and would it be appropriately met by the proposed development?92

Will the proposed local centres provide appropriate services?

93

Will the proposed local centres address an identified economic need?

96

Conclusion regarding need

98
What are the comparative benefits of the proposed local centres and how should the planning discretion be exercised?99

Do the relevant matters relied on by ANH favour approval of its proposed local centre?

99

Architecture and urban design

99

Traffic planning

100

Visual amenity

103

Economic need

104

Town planning and the exercise of the planning discretion in relation to ANH’s proposed local centre

106

Do the relevant matters relied on by BGM favour approval of its proposed local centre?

109

Timing and certainty

109

Quarry haul route

110

Accessibility

111

Site constraints

111

Design

111

Infrastructure

112

Preliminary approval

112

The exercise of the planning discretion in relation to BGM’s proposed local centre

112
Conclusion113

Introduction

  1. [1]
    Approximately 30 kilometres north of the Brisbane CBD is the suburb of Narangba. Parts of Narangba, particularly east of Oakey Flat Road, have long established low-density residential development. An existing local convenience centre, Narangba Valley Shopping Centre, serves those residences. More recently, extensive residential development is underway west of Oakey Flat Road. There is a need for an additional local centre to serve that emerging population.
  1. [2]
    BGM Projects Pty Ltd (“BGM”) and Australian National Homes Pty Ltd (“ANH”) have each proposed to develop a shopping centre to address that need.  Moreton Bay Regional Council approved BGM’s application for a local centre at Sovereign Drive, Narangba, but Mr Murphy (a director of ANH) appealed that decision.  The Council refused ANH’s application for a local centre at 96 Raynbird Road.  ANH appealed that decision.
  1. [3]
    The question for me to determine is whether the need for an additional local centre in the area should be addressed by approving one of the proposed shopping centres and, if so, which one.

The decision framework

  1. [4]
    The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) apply to the appeals.[1]  In deciding the appeal, the court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the court considers appropriate.[2]
  1. [5]
    The appeals proceed by way of hearing anew.[3]  BGM and ANH each bears the onus with respect to its proposed local centre.[4]
  1. [6]
    The nature of the approval sought by each of BGM and ANH differ.
  1. [7]
    BGM seeks a development permit to authorise it to carry out a material change of use of its site from its presently vacant use to use for a proposed local centre generally in accordance with the design reflected in the plans provided as Exhibit 4.
  1. [8]
    ANH’s development application, as originally made, did not contain a detailed design of its proposed local centre. As such, ANH did not seek a development permit to authorise it to carry out a material change of use. Rather, it sought a preliminary approval for a local centre with the full range of uses typically found in such centres and with a maximum retail gross floor area of 7 000 square metres.  ANH provided a concept plan to show, in general terms, one way its site might be developed for the type of local centre it proposed.  During the trial, ANH refined the design of its proposed local centre.  It now seeks a preliminary approval for a local centre generally in accordance with the design reflected in the plans provided as Exhibit 111.  It also seeks approval to vary the effect of the Moreton Bay Regional Council Planning Scheme 2015 (“the Planning Scheme”).  This is to obviate the need for public notification of future applications for development of a local centre, provided it is generally in accordance with ANH’s proposed plans.[5]
  1. [9]
    There is a broad discretion in determining the appeals.[6]  The exercise of the discretion must be based on an assessment that:[7]
  1. (a)
    must be carried out:
  1. (i)
    against the assessment benchmarks in the Planning Scheme to the extent relevant;[8]
  1. (ii)
    having regard to, relevantly, any development approval for, and any lawful use of, the premises or adjacent premises.  For BGM’s development application, this includes an approval of a neighbourhood centre on part of its site.  For ANH’s development application this includes an approval for development of the adjacent premises for low density residential development that provides access via a new intersection on Raynbird Road;[9]
  1. (b)
    may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise).
  1. [10]
    As ANH’s application also sought to vary the effect of the Planning Scheme, the discretion can be exercised to approve all or some of the variations sought; or to approve different variations from those sought; or to refuse the variations sought.[10]
  1. [11]
    The exercise of that discretion must be based on an assessment that considers:[11]
  1. (a)
    the result of the assessment of that part of the application that sought a preliminary approval for a material change of use;
  1. (b)
    the consistency of the variations sought with the rest of the Planning Scheme;
  1. (c)
    the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and
  1. (d)
    any other matter prescribed by regulation.

How should the decision under s 60 of the Planning Act 2016 be approached?

  1. [12]
    It was common ground between the parties that how impact assessable development applications are to be assessed and decided is comprehensively, and correctly, analysed by His Honour Judge Williamson QC in Ashvan Investments Unit Trust v Brisbane City Council[12].  I agree.
  1. [13]
    The observations of Judge Williamson QC in Ashvan[13] accord with the more recent observations of the Honourable President Sofronoff in Gold Coast City Council v K&K (GC) Pty Ltd.[14]  President Sofronoff compares the decision-making process under the Local Government Act 1936 (Qld) with that under the Sustainable Planning Act 2009 (Qld).  He described the former process as a flexible one where the applicable statutory criteria would vary from case to case.[15]  That is not what s 326 of the Sustainable Planning Act 2009 requires.[16]
  1. [14]
    Under the Planning Act 2016, there has been a change in the decision-making process from that which existed under its predecessor in s 326 of the Sustainable Planning Act 2009.  For impact assessable development, s 60 of the Planning Act 2016 affords greater flexibility than its immediate predecessor does.  Both the decision of Judge Williamson QC and the later decision of President Sofronoff cite the decision of Judge Carter in William McEwans Pty Ltd v Brisbane City Council[17] when describing the exercise involved in a more flexible decision-making process.  The explanation by Judge Carter about the nature of the balancing exercise required by that flexible decision-making process entails, while lengthy, bears repeating.  Judge Carter said:

“Any zoning scheme must have as its basis the desire to so order land use as to best satisfy the needs and the physical well being of the community for whose benefit the zoning scheme is constructed. The enormously difficult task confronting the framers of a town planning scheme is to try to control land use in such a way that the needs of the community and its ability to enjoy life within that community are best served. This involves the subjection of the individual will to the overall good of the community, as it is perceived to be by those who frame, and by those who ultimately adopt, the scheme thereby giving it legal efficacy. The scheme, once it becomes law, must be seen to be an expression of the will of the community that its various needs are best provided for in the manner, by which the scheme controls the use to which land might be put. The scheme, in turn seeks to serve the need in the community for an agreeable residential amenity, the need to ensure adequate and suitably located land for heavy and light industry and for the manufacture and the retailing of consumer goods, the need for open space, the need for facilities for public purposes and so on. In respect of the scheme in its final form, the assumption is that these various needs are provided for in such a way that the physical well being of the total community is guaranteed. But is (sic) cannot be validly asserted that the needs of a community remain static and immutable. Rather, the concept of need in a community, in town planning terms, is a variable and is perhaps as volatile as human nature itself. The desire, perhaps the need, for change in a certain land use must be assessed in the first place, with a view to determining the justification for the change, which in turn involves a value judgment as to whether the people in the community will be positively advantaged by the change, and, in the second place, with a view to determining what effect the change will have on the other zoned land use, which in turn involves a value judgment as to whether the people in the community will be disadvantaged by the change. The ultimate task must be to ensure a proper balance which at a particular time adequately expresses the community will. My point is to emphasise, on the one hand, the necessity for control or the necessity for rigidity in a planning scheme, and on the other, the necessity to recognise the need for adjustment of that scheme if needs be or, the necessity for flexibility.”

  1. [15]
    Judge Carter’s observations remain relevant for planning schemes under the Planning Act 2016.  The purpose of the Planning Act 2016 is to establish an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning.  Adopted statutory planning controls are an important element in that system.  They provide a mechanism to achieve an orderly system of development and, conversely, avoid haphazard development.  They facilitate the integration of land use and infrastructure planning, and the cost-effective provision of infrastructure to service development.  Planning schemes strike a balance between the protection of ecological processes and natural systems; economic development; and the maintenance of the cultural, economic, physical, and social wellbeing of people and communities.  Like planning schemes under the Local Government Act 1936, current planning schemes try to control land use in a way that best serves the needs of the community while maintaining the ability to enjoy life within that community.  They continue to involve the subjection of the individual will to the overall good of the community (and the environment).
  1. [16]
    Judge Carter’s observation about planning schemes representing an expression of the will of the community also holds true under the current planning legislation. Planning schemes are given the force of law after an extensive preparation process that includes public notification and State interest checks.[18]  As was observed by Judge Carter in Martin Dillon & Associates v Townsville City Council[19], the very raison d’être of a planning scheme is to best serve the needs of a community.[20]  As such, where a planning scheme expresses a clear and deliberate policy about the appropriate development of land, one should not readily depart from it. 
  1. [17]
    Judge Williamson QC explains the rationale underlying the need for rigid application of adopted planning controls in Ashvan.[21]  Planning controls serve the wholesome purpose of building a community’s confidence in a planning scheme.  This is a matter of importance as a planning scheme is a statutory document.  It can inform public investment decisions, such as decisions about delivery of infrastructure.  It can also inform private investment decisions, including decisions made by individuals about where to live and decisions made by corporations seeking returns on commercial development. 
  1. [18]
    As was noted by Judge Carter in Martin Dillon & Associates v Townsville City Council,[22] control is inevitable for the good of all.  However, it must also be recognised that blind adherence to that part of a planning scheme that is rigid is apt to obscure the fact that the need and the wellbeing of the community, or a significant part of it, may sometimes be better served by permitting an outcome that does not strictly comply with those controls.  That flexibility may, in some instances, better serve the interests of the public is apparent when one considers the complexity of the task confronting a local government in preparing a planning scheme.
  1. [19]
    As I have mentioned in paragraph [15] above, a planning scheme seeks to strike a balance between ecological protection, economic development, and community well-being in a manner that expresses the will of the community.  The Planning Scheme reflects how a local government strikes the balance, on behalf of its community, through the identification of strategic outcomes for the local government area.[23]  To allow promulgation of the document in the manner provided by the legislation, the elected officials determine these forward planning policy decisions at a particular point in time.[24]  As was noted by Judge Williamson QC in Ashvan,[25] it is not possible to forecast the will of the community, in land use terms, with scientific precision.  The needs of a community are not static and immutable.[26] 
  1. [20]
    The legislation requires a planning scheme to include measures to facilitate the achievement of the strategic outcomes.[27]  The local government must draft them in circumstances where the available information is limited.  For example, while a local government may have studies that provide a reasonable indication of the ecological values present in a particular locality, or natural features that pose a constraint for development, it does not have detail about every attribute of every piece of land within its local government area.  The available information reflects the position at a particular point in time.  Further, a planning scheme expresses the controls that guide the parameters of development in performance-based terms.[28]  They do not advance a particular design option or solution for a particular site.  They are drafted without the benefit of a particular development option or design.  While planning controls are generally drawn by town planners with experience of a great variety of applications, the combination of criteria applicable in any one case can differ, depending on the particulars of the development proposed and the location it is proposed.  A local government could not possibly foresee every combination of controls that might apply, and their impact on every potential development scenario that individuals may seek to advance on every site across its local government area. 
  1. [21]
    When viewed in that context, one can appreciate that development that differs from that encouraged by the planning controls, or that fails to comply with benchmarks set in a planning scheme, does not necessarily result in haphazard development. Development may differ from the planning controls but be compatible with, ancillary to or designed to complement the planning outcome sought by the planning controls, or otherwise advance the needs of a community in a particular area without undue adverse town planning consequence, because of its own merits and the particular combination of facts and circumstances relevant to it.[29]  This underscores the importance of flexibility in the decision-making process. 
  1. [22]
    I agree with Judge Williamson QC’s observation that a planning decision, and the inherent balancing exercise it entails, is invariably complicated and multifaceted. It must strike the balance between the maintenance of confidence in a planning scheme on the one hand and dynamic land use needs and recognition that town planning is not an exact science on the other. The Sustainable Planning Act 2009 gave primacy to the planning scheme in the striking of the balance.  That is not what s 60 of the Planning Act 2016 requires.  Under the Planning Act 2016, the discretion is to be exercised based on the assessment carried out under s 45.  Its exercise is not a matter of mere caprice.  The decision must withstand scrutiny against the background of the planning scheme and proper planning practice.[30]  Not every non-compliance will warrant refusal.  It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them.  The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.[31] 

What are the issues in this case?

  1. [23]
    In this case, the relevant assessment benchmarks require evaluation of the proposed local centres by reference to:[32]
  1. (a)
    for each of BGM and ANH’s development applications:
  1. (i)
    whether the proposed development is appropriately located;
  1. (ii)
    whether the proposed development is appropriately designed;
  1. (b)
    for BGM’s development application only, whether BGM’s proposed development will result in unacceptable headlight glare for residences in Sovereign Drive;
  1. (c)
    for ANH’s development application only:
  1. (i)
    whether ANH’s proposed development would result in unacceptable noise impacts; and
  1. (ii)
    whether ANH’s proposed development is unacceptable having regard to traffic engineering considerations.
  1. [24]
    BGM and ANH each also rely on relevant matters to contend their development application should be approved, namely:
  1. (a)
    the need for an additional local centre; and
  1. (b)
    the comparative benefits of their proposed local centre.
  1. [25]
    The Council supports approval of BGM’s proposed development, but not ANH’s.

What is the nature of BGM’s proposed development?

  1. [26]
    BGM seeks a development permit to facilitate a local centre on land located at the corner of Oakey Flat Road and Sovereign Drive and with a development area of approximately 3.973 hectares. The site is within the Narangba Heights residential estate, which is to be developed over 26 stages and is currently under construction. Part of the site is the subject of a development permit granted in August 2016 for a material change of use to facilitate a “Neighbourhood hub” of approximately 1 090 square metres comprising a restaurant, shop and takeaway food outlet.  That approval has not been acted upon.
  1. [27]
    The local centre for which the Court’s approval is now sought is depicted in Exhibit 4.  It has a gross floor area of 6 646 square metres comprised of a supermarket of 3 946 square metres, specialty retail of 2 149 square metres, a 170 square metre fast food outlet, and a service station with a building of 201 square metres and a fuel canopy over three petrol bowsers.  The potential uses to be accommodated in the specialty retail area includes shops, veterinary services and indoor sport and recreation.
  1. [28]
    The building containing the supermarket is to be located at the rear of BGM’s site. Part of the specialty retail (described as Specialty Shop 1 and Specialty Shop 4 with areas of 1 389 and 200 square metres respectively) is proposed to be located in areas that sleeve either side of the supermarket.  One of those areas is two storeys, with lift and stair access to the upper level tenancy and terrace area.  Specialty retail is also proposed in two freestanding buildings that adjoin Sovereign Drive (described as Specialty Shop 2 and Specialty Shop 3 with areas of 350 and 201 square metres respectively).  The service station is to be located adjoining the Oakey Flat Road frontage, although no direct access is proposed from that road.  The food and drink outlet (fast food) is to be located centrally on BGM’s site.  It will include a drive through facility. 
  1. [29]
    A total of 300 car parking spaces are proposed. The majority of on-grade car parking is located between the supermarket and Specialty Shops 1 and 2. Additional parking is located to the north-west of the supermarket and between specialty shop 3 and the food and drink outlet. There is also car parking immediately adjacent the service station building.
  1. [30]
    Access is proposed from Sovereign Drive by way of two separate driveways. One is centrally located along the frontage and predominantly provides access to the supermarket and specialty retail facilities. The other predominantly provides access to the service station, food and drink outlet and Specialty Shop 3. No access is proposed from Oakey Flat Road.

What are the relevant assessment benchmarks for BGM’s proposed development?

  1. [31]
    Under the Planning Scheme, BGM’s site is mapped as part of the Next generation neighbourhood place type for the Strategic framework. That place type applies to new greenfield areas that have potential, and are suitable, to accommodate new residential development. BGM’s site is also located in the General residential zone (Next generation neighbourhood precinct).
  1. [32]
    The Planning Scheme contemplates development of new local centres in areas mapped in the Strategic framework as part of the Next generation neighbourhood place type and on land in the Next generation neighbourhood precinct of the General residential zone. Section 3.6.2(6) deals with activity centres in the region generally.  It contemplates the development of new viable local centres “in appropriate locations in walkable neighbourhoods with street-fronting retail and non-retail commercial layouts instead of enclosed or parking-lot dominant retail formats”.  Each of s 3.14.9, s 3.14.9.4(6) and s 3.14.9.4(7) also make specific provision for the establishment of new local centres in areas mapped Next generation neighbourhood place type, provided those centres meet specified location and design criteria.  Further, s 6.2.6.3.1(1)(f) of the General residential zone code contemplates the provision of local centres in the Next generation neighbourhood precinct. 
  1. [33]
    ANH does not dispute that new local centres are contemplated in the Next generation neighbourhood place type and the General residential zone (Next generation neighbourhood precinct). Rather, it alleges that BGM’s proposed local centre departs from the provisions of the Planning Scheme that guide the locational and design criteria for the establishment of new local centres, in particular:
  1. (a)
    s 3.6.2 (introductory unnumbered paragraph), s 3.6.2(1), (6) and (7), s 3.13.3.4(11), s 3.14.9 (5th para), s 3.14.9.4(6) and (7), s 3.14.11.3(2) and (7) and s 3.14.11.4(1) of the Strategic framework;
  1. (b)
    s 6.2.1.2(4)(c) of the Centre zone code;
  1. (c)
    s 6.2.1.6.1(1)(k)(iii) and (ix) and (l) and performance outcome PO2 of the Local centre precinct provisions of the Centre zone code; and
  1. (d)
    with respect to headlight glare:
  1. (i)
    performance outcome PO23 of the Local centre precinct provisions of the Centre zone code; and
  1. (ii)
    s 6.2.6.3.1(1)(m) and performance outcome PO11 of the Next generation neighbourhood precinct provisions of the General residential zone code.
  1. [34]
    ANH submits that the departures from the Planning Scheme are a consequence of BGM’s proposed development resulting in unacceptable town planning outcomes, architecture and urban design outcomes and unacceptable headlight glare.
  1. [35]
    Leaving aside the provisions that relate to headlight glare, ANH submits that the relevant assessment benchmarks advance six planning “themes”, namely:
  1. (a)
    a “main street theme”, whereby local centres are to be designed in a main street retail format;
  1. (b)
    a “clear separation/walkable neighbourhood theme”, which requires a distribution of centres that reduces catchment overlap and provides a centre at a location that is central to a 15-minute walkable neighbourhood;
  1. (c)
    an “anti-parking lot dominant theme”, whereby the Planning Scheme seeks to avoid a parking-dominant retail format;
  1. (d)
    an “active frontage theme”, which requires local centres to be designed to address and activate streets and public spaces;
  1. (e)
    a “quality design theme”, whereby the Planning Scheme requires centres to be vibrant and attractive with well-designed public and civic spaces; and
  1. (f)
    a “quality accessibility theme”, which requires centres to be located to provide convenient accessibility by vehicle and active transport.
  1. [36]
    Counsel for ANH helpfully identified each of these themes in exhibit 171. That exhibit reproduced the text of the assessment benchmarks and identified, by colour coding, the parts of each benchmark that ANH submits relate to each of its “themes”. 
  1. [37]
    Counsel for the Council also provided helpful written submissions about the key matters that arise for consideration in relation to each of the identified provisions. As is noted in the Council’s written submissions, the key matters it identifies “are not significantly different from the ‘six themes’ postulated in ANH’s document exhibit 171.
  1. [38]
    Counsel for BGM did not assist in the identification of the themes or key matters that arise for consideration when assessing the proposed development against the identified assessment benchmarks.
  1. [39]
    Mr Schomburgk and Mr Vann, the town planners retained by BGM and ANH respectively, agreed with the themes identified by ANH.  Mr Buckley, the town planner retained by the Council, generally agreed, except with respect to the main street theme.  In his view, while the references to “main street” seek a design that involves a main street environment, those parts of the provisions that refer to “main through street” set a location requirement.  They require local centres to be conveniently located on a street that has a thoroughfare function to them. 
  1. [40]
    While I generally accept ANH’s characterisation of the planning goals sought by the identified assessment benchmarks, I agree with the qualification expressed by Mr Buckley. 
  1. [41]
    The “themes” can be grouped into two overarching considerations, namely:
  1. (a)
    whether BGM’s proposed development is appropriately located;[33] and
  1. (b)
    whether BGM’s proposed development is appropriately designed.[34]

Will BGM’s proposed development be appropriately located?

  1. [42]
    The Planning Scheme recognises the potential establishment of new local centres in the General residential zone (Next generation neighbourhood precinct). It does not map the intended location of each new local centre for a Next generation neighbourhood. Rather, it stipulates criteria that guide the appropriate location of such new centres.

What are the locational requirements in the Planning Scheme?

  1. [43]
    The Planning Scheme stipulates new local centres are to:
  1. (a)
    only occur where they are “located on a sub-arterial or collector road”;[35]
  1. (b)
    be conveniently located on a main through street (or on central intersections) and/or adjoin or be opposite to a public transport node;[36]
  1. (c)
    be developed “in appropriate locations in walkable neighbourhoods”;[37]
  1. (d)
    be at locations that encourage and support healthy and active lifestyles;[38]
  1. (e)
    in combination with neighbourhood hubs, “create a series of 15 minute walkable neighbourhoods”.  The Planning Scheme identifies that convenient locations for local centres and neighbourhood hubs are “on main through streets or on central intersections and within a 15 minute walking distance and responsive to active transport”;[39]
  1. (f)
    service an unserviced catchment and [be] located to form 15 minute walkable neighbourhoods, with the local centrecentral to that neighbourhood”;[40] and
  1. (g)
    only occur where “clear separation from existing … centres within the network are maintained to reduce catchment overlap and to establish 15 minute walkable neighbourhoods”.  In support of that, the Planning Scheme states that “generally, local centres should be separated from other centres by 2400m … measured from the centre of each centre”.[41]
  1. [44]
    These requirements are consistent with the stated planning goals that:
  1. (a)
    there be a strong network of activity centres that are provided with “convenient access by a quality public transport and active transport system”;[42]
  1. (b)
    local centres within Next generation neighbourhoods are to “generally be located on central intersections with good accessibility and visibility” and “in locations that support active transport”;[43]
  1. (c)
    activity centres are to be vibrant and attractive places “arranged within a public realm that provides ease of access”;[44] and
  1. (d)
    the Local Centre Precinct in the Centre Zone have “good local accessibility, particularly active transport”.[45]
  1. [45]
    The Planning Scheme defines “active transport” as “a form of manual transportation, including walking and cycling”.
  1. [46]
    These assessment benchmarks reveal two planning policies at play. The first is a planning objective to ensure new local centres provide convenient accessibility by motor vehicle and active transport modes, at a location that is conducive to provision of access by public transport (either now or in the future). The second is a planning objective directed at reducing overlap between catchments served by centres.

Will BGM’s proposed local centre provide convenient accessibility by motor vehicle?

  1. [47]
    BGM’s site is located within the Narangba Heights development. Narangba Heights is a master planned residential development that extends from Oakey Flat Road in the east, to Burpengary Creek in the north and towards Raynbird Road in the south. It is being developed over 26 stages and is currently under construction. It includes approximately 653 lots. A large balance lot remains at the intersection of Sovereign Drive and Oakey Flat Road. BGM proposes to develop it for a local centre (which is the subject of this appeal) and a possible future retirement village and childcare centre, subject to development approvals being obtained.
  1. [48]
    To the north and east of BGM’s site are more established parts of Narangba. Those areas have primarily been developed for single detached dwellings. Further to the west is rural residential development. Immediately south-east of BGM’s site, on the other side of the vegetated environmental corridor, is vacant land. The land was previously used for a quarry. South of that is ANH’s proposed local centre site.
  1. [49]
    BGM’s local centre is proposed to be located on the south-western corner of the intersection of Oakey Flat Road, Young Road and Sovereign Drive. That intersection is comprised of a four-leg roundabout. Oakey Flat Road forms the north-south connections to the roundabout. The Overlay Map – Road Hierarchy in the Planning Scheme classifies Oakey Flat Road as a Council arterial road. The eastern connection to the roundabout is Young Road. It is classified as a Council sub-arterial road. Leading west from the roundabout is Sovereign Drive, which is a two-lane median divided road. It is not identified on the Overlay Map – Road Hierarchy as having an arterial or collector status. As such, it is an access street for the purpose of the Planning Scheme.
  1. [50]
    BGM’s proposed local centre site has a frontage of approximately 70 metres to Oakey Flat Road and 400 metres to Sovereign Drive.  Two vehicular access points are proposed to the local centre.  Both are from Sovereign Drive.  One is a left in – left out access approximately 20 metres west of the Oakey Flat Road, Young Road, and Sovereign Drive roundabout.  The other is an all movement access about 60 metres from the roundabout.  There is to be no access from Oakey Flat Road.
  1. [51]
    ANH submits that BGM’s proposed development does not comply with the requirement of s 6.2.1.6.1(1)(l)(v) that “for a new centre, it is located on a sub-arterial or collector road”.  It says Mr Pekol, the traffic engineer retained by the Council, ultimately conceded as much.
  1. [52]
    The Council submits that while Sovereign Drive is not identified as a sub-arterial or collector road on the Council’s road hierarchy maps, the non-compliance with s 6.2.1.6.1(1)(l)(v) of the Planning Scheme should be given no weight in the assessment process.  Counsel for ANH conceded this during oral submissions. 
  1. [53]
    I consider the non-compliance with s 6.2.1.6.1(1)(l)(v) of the Planning Scheme to be of little significance in this case for three reasons. 
  1. [54]
    First, the overlay map is reflective of the road hierarchy at a particular point in time. This is significant because Sovereign Drive is still being formed. The proposal plan for the future reconfiguration of the greenfield area to the west of Oakey Flat Road (designated Next generation precinct in the Planning Scheme) shows Sovereign Drive as a main through street. It is ultimately intended to connect Oakey Flat Road to Raynbird Road.
  1. [55]
    Second, the traffic engineers accept Sovereign Drive functions as a collector street. As was explained by Mr Viney, the traffic engineer retained by ANH, Sovereign Drive has been constructed as a two-lane median-divided local collector road and functions as such.
  1. [56]
    Third, I am satisfied BGM’s proposed development will not offend the underlying planning policy that local centres provide convenient accessibility by motor vehicle. I accept the evidence of Mr Buckley and Mr Schomburgk.  They opine that BGM’s proposed development is located at the intersection of two locally recognisable main thoroughfares, on a site that is central and conveniently accessible to the intended catchment.  Similarly, Mr Vann was of the opinion that BGM’s proposed local centre is in an accessible location to serve the catchment identified by the economic need experts.  The economic need experts also all agree that BGM’s local centre is central to the catchment it will serve.  The primary catchment includes areas generally west of Oakey Flat Road, including land in the Next generation precinct of the General residential zone and land on the eastern side of Oakey Flat Road, whose residents will also have access to the Narangba Valley Shopping Centre. 
  1. [57]
    Mr Viney was of the opinion that access off a higher order road other than Sovereign Drive was preferable. He is of the view that the access arrangements from Sovereign Drive are unacceptable in the form approved by the Council and need to be modified. He does not say those concerns warrant refusal of the proposed development or materially affect the convenient accessibility of the proposed local centre. Mr Pekol and Mr Douglas, the traffic engineer retained by BGM, do not share Mr Viney’s concerns regarding the access. Ultimately, all of the traffic engineers were of the view that BGM’s local centre could be approved with suitable conditions. Accordingly, the proposed access off Sovereign Drive is appropriate.
  1. [58]
    For the reasons provided above, I am satisfied that BGM’s proposed local centre provides convenient accessibility by motor vehicle.

Will BGM’s proposed local centre provide convenient accessibility by active transport?

  1. [59]
    The established residential area to the east of Oakey Flat Road is served by formal pedestrian paths along Oakey Flat Road (north of Young Road) and Young Road, as well as pedestrian path links to Wedgetail Circuit, Coronata Crescent, Lily Pilly Court, Facer Road and Tuckeroo Street. That existing pedestrian network extends to the Oakey Flat Road and Sovereign Drive roundabout, which already has formed pedestrian crossing facilities on three of its four approaches. In addition, Sovereign Drive and connecting streets in the Narangba Heights estate include a pathway network to the west of BGM’s site. Photographs of the pathway network in the Narangba Heights estate show it to be of very high standard. There is a network of 2.5 metre wide paths along the major streets, which are suitable for shared cycle and pedestrian access. There are also paths of between 1.5 and two metres width along minor streets. There is no footpath provision along Oakey Flat Road south of Sovereign Drive.
  1. [60]
    Sovereign Drive also has on-road cycle paths in each direction, although they are not marked for cycle use. They connect into the Young Road on-road cycle paths.
  1. [61]
    In the first joint expert report of the traffic engineers, Mr Viney accepts that pedestrians and cyclists in the existing and future residential area to the west of BGM’s site will have relatively easy access to BGM’s proposed local centre. He does not consider that the residential area to the east of Oakey Flat Road allows pedestrians and cyclists easy access to Oakey Flat Road or to Young Road. However, during cross-examination, Mr Viney accepted that there were extensive, high quality footpaths in proximity to BGM’s site, other than along that section of Oakey Flat Road located south of the Sovereign Drive and Oakey Flat Road roundabout. 
  1. [62]
    Mr Pekol and Mr Douglas are of the view that the established residential area to the east of Oakey Flat Road is relatively permeable by pedestrians. As such, they say BGM’s site is well placed to take advantage of the existing pedestrian network. They are also of the view that BGM’s site has very good pedestrian accessibility from residential areas to the west.
  1. [63]
    The town planners expressed similar views. Mr Buckley and Mr Schomburgk agree BGM’s site enjoys good pedestrian access from its catchment, including the developing Narangba Heights estate. Mr Vann also accepts BGM’s site could readily connect with the footpaths and road network of the Narangba Heights estate. Like Mr Viney, Mr Vann expressed reservations about the extent of convenient access by active transport from areas to the east given the heavily car-based nature of the design of that existing residential area.
  1. [64]
    I generally accept these opinions of the experts, though I do not share the concerns of Mr Viney and Mr Vann. Convenient accessibility by active transport is well demonstrated by Exhibit 63 and 65 prepared by Mr Douglas. Those exhibits map the location of paths in the area and provide photographs of the quality of those paths. The photographs demonstrate there is a very good walk and cycle network, other than along Oakey Flat Road south of the BGM site. The network provides quality pedestrian and cyclist accessibility to the BGM site.
  1. [65]
    The lack of footpaths on the section of Oakey Flat Road south of the Sovereign Drive and Oakey Flat Road roundabout does not prevent access from the neighbourhood to the east of that. It reduces its convenience because access by established paths involves a route that is less direct. Although that area is less permeable by active transport than the area to the west, this limitation is reflective of the age of that development. The Planning Scheme, in s 3.1.3, acknowledges that improving connectivity is a matter that will take time.  It is to be achieved by giving existing and future residents a greater range of convenient travel choices in more walkable communities.  Consistent with the Planning Scheme intent, the newly developed (and developing) areas to the west of Oakey Flat Road is being developed as a walkable neighbourhood. 
  1. [66]
    For the reasons outlined above, I am satisfied BGM’s proposed local centre will provide very good pedestrian accessibility from residential areas to the west, and less convenient, but reasonable, accessibility by active transport from residential areas to the east. I am satisfied that it complies with the active transport and walkable neighbourhood requirements in s 3.6.2 (introductory paragraph), s 3.6.2(6), s 3.13.3.4(11), s 3.14.9 and s 6.2.1.2(4)(c) of the Planning Scheme.
  1. [67]
    I accept the opinions of Mr Pekol and Mr Viney that pedestrian accessibility to BGM’s site could be enhanced by conditions requiring:
  1. (a)
    the extension of the existing pedestrian footpath along the southern side of Young Road, west toward the Oakey Flat Road and Sovereign Drive roundabout for a distance of about 270 metres; and
  1. (b)
    the provision of a new pedestrian crossing facility on the southern (Oakey Flat Road) approach to the roundabout.
  1. [68]
    Mr Douglas recommends relocating the existing pedestrian refuse across Sovereign Drive immediately east of the right-turn egress from the shopping centre to a new location that is to the west of the shopping centre access intersection. This is to minimise vehicle and pedestrian conflicts and to improve sight lines for pedestrian crossings from north to south. A condition could address this.
  1. [69]
    These issues with respect to conditions do not alter my view about the overall merit of BGM’s proposed local centre. The Council can consider whether it wishes to impose the conditions at a later stage.

Will BGM’s proposed local centre be at a location that is conducive to provision of access by public transport?

  1. [70]
    BGM’s proposed local centre currently has poor access to public transport. The nearest bus stop is about 1.2 kilometres from BGM’s site. Despite this, I am satisfied that the proposed location of BGM’s local centre on a main through street and at a central intersection is conducive to the provision of access by public transport. I also accept the unchallenged evidence of Mr Douglas that the indented bus stops currently provided on Sovereign Drive, approximately 350 metres west of BGM’s site, have been provided in anticipation of future bus services through the expanding residential catchment. BGM’s proposed local centre is sufficiently proximate to those bus stops to make it conducive to provision of access by public transport.
  1. [71]
    Mr Douglas further notes that there is room to provide an indented bus bay (or bays) on Oakey Flat Road adjacent to BGM’s site and opposite BGM’s site. Mr Pekol agrees and says a condition should be imposed requiring the provision of an indented bus lay-by on Oakey Flat Road. The Council can consider whether it wishes to impose the conditions at a later stage.

Will BGM’s proposed local centre “service an unserviced catchment”?

  1. [72]
    ANH does not submit that BGM’s proposed local centre would not provide convenient accessibility by active transport. However, it submits that the 15-minute walkable catchment for BGM’s proposed local centre involves a very considerable overlap with the existing walkable catchment for the Narangba Valley Shopping Centre on Young Road. It says much of BGM’s proposed local centre catchment is not “unserviced”, and BGM’s proposed local centre does not achieve the “clear separation” that is unambiguously intended to “reduce catchment overlap.
  1. [73]
    Section 3.14.9.4(7)(d) of the Strategic framework requires that a new local centre service an unserviced catchment and be located to form 15 minute walkable neighbourhoods, with the local centre central to that neighbourhood.  Section 6.2.1.6.1(1)(l)(iii) of the Centre zone code requires a new local centre only occur where there is clear separation from existing centres within the network.  This is to reduce catchment overlap and to establish 15-minute walkable neighbourhoods.  In support of that requirement, the Planning Scheme states that, generally, local centres should be separated from other centres by 2 400 metres, measured from the centre of each centre.
  1. [74]
    Neither of these provisions require the “walkable” catchment of a new local centre to be exclusively served by the new local centre.  The provisions admit of the potential for some catchment overlap.  Compliance with them is a matter of fact and degree. 
  1. [75]
    Mr Buckley acknowledged that a planning policy for separation is important. The greater the separation, the greater the ability for centres to serve the catchments they are intended to serve. The requirement for separation is consistent with the stated planning goals, noted in paragraph [44] above, that there be a strong network of activity centres and that activity centres are to be vibrant and attractive places.  Section 3.6.2(6) of the Planning Scheme also anticipates that any new local centre will be viable.
  1. [76]
    The Centre and Neighbourhood Hub Design Planning Scheme Policy explains that, to remain economically viable, vibrant and attractive, existing centres need to evolve with time. It also notes that local centres (and neighbourhood hubs) are essential elements in the establishment of walkable neighbourhoods. Accordingly, the Planning Scheme allows for the establishment of new local centres provided they are well designed, located and distributed within the region. The Policy also says new local centres and neighbourhood hubs should not affect existing centres and should be provided centrally within the residential neighbourhood and not on the urban fringe.
  1. [77]
    In considering the issue of compliance, there is a need to strike a balance between, on the one hand, providing convenient accessibility to local centres by active transport and, on the other hand, ensuring existing centres remain economically viable, vibrant, and attractive. 
  1. [78]
    BGM’s proposed local centre is 1.5 kilometres by road from the Narangba Valley Centre.  The Planning Scheme designates that centre as a local centre.  Mr Douglas accepts that his walkable catchment for BGM’s local centre stops just short of that existing centre.  As such, a significant component of the walkable catchment for BGM’s local centre, being that part east of Oakey Flat Road, is already within the 15-minute walkable catchment for the Narangba Valley Centre.  Each of the town planners also acknowledge this.  The overlap approximates the primary east trade area identified by the economists.
  1. [79]
    BGM’s proposed local centre will also serve a developing, and presently unserviced, “walkable” catchment, being that located west of Oakey Flat Road.  That unserviced catchment roughly coincides with that part of the primary west trade area located in the Next generation neighbourhood precinct of the General residential zone.
  1. [80]
    The combined effect of the following five aspects of the evidence satisfies me that the extent of catchment overlap for BGM’s proposed local centre is not unacceptable and BGM’s proposed local centre will service an unserviced “walkable” catchment to an appropriate degree.
  1. [81]
    First, the economists agree that the vast majority of growth in the primary trade area will be to the west of Oakey Flat Road. As Mr Duane explained, minimal growth is predicted in the primary trade area to the east as that land is effectively fully developed. The growth will occur in the land to the west of Oakey Flat Road that is in the Next generation precinct of the General residential zone. By 2026, the population in the primary trade area west of Oakey Flat Road will exceed the population in the primary trade area to the east by close to 2 000 residents.  By 2031, the economists predict the population in the primary trade area to the west will be 8 500 – almost double that to the east.  By 2031, the predicted population of the primary trade area west of Oakey Flat Road alone will be approaching the catchment population the Planning Scheme intends will generally be served by a local centre.[46]  As such, as the trade area of BGM’s local centre matures, the greater balance of the population in the primary trade area will be in the primary trade area west (rather than east) of Oakey Flat Road. 
  1. [82]
    Second, I accept the evidence of Mr Duane that the aerial extent of the “walkable catchment” to the west, as shown on Exhibit 163 prepared by Mr Douglas, will increase as connections are established within new development in the Next generation precinct.  I accept it is reasonable to assume, as both Mr Duane and Mr Brown do, that such development will include connections between the Narangba Heights estate and the land south of BGM’s site.  That land is the subject of a development approval obtained by Satterley Property Group Pty Ltd.  The masterplan prepared by Satterley Property Group Pty Ltd shows a possible future connection.  As such, I am satisfied that although BGM’s proposed local centre is on the eastern extent of the primary trade area west, it is roughly central (north south) to the likely “walkable” catchment for residential development of the Next generation precinct west of Oakey Flat Road.
  1. [83]
    Third, although the economic need experts do not agree on the extent of impact on other centres, they agree that approval of BGM’s proposed local centre would not impact on the viability or vitality of the Narangba Valley Shopping Centre or Excelsior Park Village (the neighbourhood hub within the catchment). This is because of the significant growth anticipated in the primary trade area west of Oakey Flat Road. The economic need experts also agree that there would not be any unacceptable economic impact on the existing network of centres beyond the catchment. 
  1. [84]
    Fourth, the economic need experts agree that there is need for an additional local centre within the catchment. As such, I am satisfied that, were it to be approved, BGM’s local centre would be viable.
  1. [85]
    Fifth, BGM’s proposed local centre is conveniently located on a main through street and central intersection. It is conveniently accessible by motor vehicle and active transport modes. It is at a location that is conducive to provision of access by public transport. I accept the evidence of Mr Schomburgk that there is little prospect that a more suitable intersection might be found somewhere further to the west and towards the centre of the Next generation precinct.

Conclusion regarding the appropriateness of the location of BGM’s proposed local centre

  1. [86]
    For the reasons set out above, I am satisfied that the evidence establishes that BGM’s proposed local centre, if approved, will be well located. It will be highly accessible by motor vehicle and active transport modes. Its location, on a central intersection and main through road into the Next generation precinct, is also conducive to future provision of access by public transport. The location does not achieve the preferred 2 400 metres for separation of centres and there is a degree of catchment overlap between BGM’s proposed local centre and Narangba Valley Shopping Centre.  However, as the Next generation precinct is developed, the extent to which trade will be drawn from that part of the catchment near the Narangba Valley Shopping Centre will diminish because of the extent of growth that will occur west of Oakey Flat Road.  As such, the proposed location is reasonably well aligned with the requirement that new local centres be viable and service an unserviced catchment.  BGM’s proposed local centre is consistent with the planning goals that there be a strong network of activity centres and that activity centres be vibrant and attractive places.  The location of BGM’s proposed local centre favours approval.

Will BGM’s proposed development be appropriately designed?

  1. [87]
    ANH submits that BGM’s proposed local centre is non-compliant with the requirements that local centres have a main street format, active frontages, attractive and activated public spaces, and a design that avoids visually dominant carparking and enclosed formats.

What are the design requirements in the Planning Scheme?

  1. [88]
    The Planning Scheme intends that:
  1. (a)
    centres, including local centres, include a broad mix of land uses, and are structured as mixed use centres “in a predominantly main-street format to best serve their surrounding communities”;[47]
  1. (b)
    new viable local centres are to be developed with “street-fronting retail and non-retail commercial layouts instead of enclosed or parking-lot dominant retail formats”;[48]
  1. (c)
    activity centres have “attractive, high-amenity public spaces”;[49]
  1. (d)
    in the Next generation place type in the Strategic framework, “non-residential uses have active frontages”;[50]
  1. (e)
    new local centres only occur if they are “appropriately designed to have high quality urban design outcomes”;[51]
  1. (i)
    the design, siting and construction of buildings within a local centre are “centred around a main street”, and parking, manoeuvring and servicing areas are designed, located and aesthetically treated to “not be visually dominant features from the streetscape and public spaces”;[52]
  1. (f)
    the establishment of a new centre only occurs where it is designed to include “active frontages around a main street core”;[53]
  1. (g)
    development “addresses and activates streets and public spaces” by:
  1. (i)
    establishing and maintaining interaction, pedestrian activity and casual surveillance through appropriate land uses and building design (for example through the use of windows or glazing and by avoiding blank walls with the use of sleeving);
  1. (ii)
    ensuring buildings and individual tenancies address street frontages and other areas of pedestrian movement;
  1. (iii)
    locating new buildings to adjoin, or be within three metres, of a primary street frontage, civic space or public open space;
  1. (iv)
    locating car parking areas behind or under buildings so they do not dominate the street environment;
  1. (v)
    providing visual interest to the façade (for example by windows or glazing, variations in colours, materials, finishes, articulation, recesses or projections);
  1. (vi)
    establishing a human scale;[54] and
  1. (h)
    development ensures that the “amenity of the area and of adjacent sensitive land uses” is protected.[55]
  1. [89]
    Main street” is defined as “a street having a primary role to facilitate and foster opportunities for formal and informal social and economic exchange framed within the realm of a civic space”.
  1. [90]
    The Planning Scheme defines “active frontage” as a building that ensures interactivity and encourages cross-movement between the public and private domains at ground level and above ground levels by the way buildings are designed and oriented.  An active frontage is one that avoids blank walls and façades.  Instead, it:
  1. (a)
    includes windows, openings, entry statements, balconies and awnings;
  1. (b)
    uses a variety of materials, textures and colours;
  1. (c)
    creates opportunities for surveillance and interface between different user groups; and
  1. (d)
    provides a variety of activities to occur along the building front.
  1. [91]
    The design requirements for new local centres referred to in paragraph [88] above are consistent with provisions that outline planning goals regarding activity centres generally.  They require:
  1. (a)
    there be a strong network of activity centres with well-designed public and civic spaces and active frontages that provide a focal point for compact, self-contained and diverse communities;[56]
  1. (b)
    activity centres are to be “vibrant and attractive places” with a comprehensive variety of mixed uses arranged within a public realm that provides ease of access and space for activity and public events, important meeting places and focal points for the community;[57]
  1. (c)
    in activity centres, “the street itself is the focus” of the public realm, providing the place for public interaction and exchange and the pathway for pedestrian movement and connection to the uses at the edge;[58]
  1. (d)
    activity centres are designed “around a main street central core” that provides the focus of the centres’ employment and business activity; and
  1. (e)
    land in the Local centre precinct of the Centre zone act as a focal point and meeting place for the local community.  Local centres are generally to serve a catchment of 10 000 to 15 000 people and “are generally defined by the presence of a full-line supermarket or a fully functioning main street that caters for a catchment of the same size”.[59]
  1. [92]
    The Centre and Neighbourhood Hub Design Planning Scheme Policy provides guidance about how to satisfy the assessment benchmarks. It encourages more innovative and site-specific design solutions and less “cookie cutter” development.  It explains that the Planning Scheme places a high degree of importance on the policy that main streets form the core of centres.  The shift is aimed at creating places for people. 
  1. [93]
    The Policy explains that, in terms of urban structure, a main street usually refers to a vibrant and active street with a continuous row of shops, small office spaces, and restaurants. They are usually located along a major thoroughfare though preferably not an arterial or sub-arterial road, and often run perpendicular to a sub-arterial road. Local centres generally only contain active retail and commercial use buildings on one side of the street. In terms of local centres, and the achievement of a “main street”, the Policy also recognises that local centres are generally defined by the presence of a full-line supermarket or a fully functioning main street that caters for a catchment of the same size.
  1. [94]
    The Centre and Neighbourhood Hub Design Planning Scheme Policy also provides guidance on the intended urban form in centres. It explains that traditional shopping centres conflict with the type of centres that the Strategic framework, and the Planning Scheme more generally, are trying to encourage. It notes that the Planning Scheme seeks centres that provide:
  1. (a)
    a diversity of activities, rather than retail centres with limited entertainment or community activities;
  1. (b)
    a broad spectrum of hours of operation and activity, rather than traditional centres with an insular focus, large blank walls to external streets and a sea of at grade car parking;
  1. (c)
    permeable environments, as opposed to controlled movement through the centre that is non-permeable after hours;
  1. (d)
    smaller compact centres offering diversity;
  1. (e)
    internal and external pedestrian environments, rather than a focus on an internal pedestrian environment and external vehicular environments;
  1. (f)
    prioritisation of public and active transport over private motor vehicle; and
  1. (g)
    emphasis on connections to surrounding neighbourhoods, rather than poor connections.
  1. [95]
    Design considerations noted in the Policy emphasise the importance of walkability and legibility for pedestrians and a design that fosters activity. Active frontages are intended to assist with walkability and access by public transport, as well as vibrancy of a centre, by facilitating natural surveillance of footpaths, bus stops and taxi ranks. The Policy indicates that those issues can also be addressed by a design that locates uses with extended hours to the street and around public spaces.[60]
  1. [96]
    The Policy provides examples of potential building design responses to the Planning Scheme’s design requirements. Consistent with the Planning Scheme definition of active frontages, the Policy notes that the requirement for active frontages can be addressed by glazing, openings (such as doors and windows), and balconies. The Policy describes an active frontage as a concentration of activity or goings-on at the front of a site or building adjoining a public area such as a street or park. Active frontages are intended to make public spaces interesting and encourage people to linger. The Policy explains that many elements must combine to make a space interesting, inviting, walkable, and safe. A key component to active frontages is the use itself, involving activities such as shops, small offices and cafés.[61]
  1. [97]
    Other planning scheme provisions also demonstrate the link between the Council’s design requirement for street activation and its goal with respect to active transport and walkable neighbourhoods. For example, the land use strategy in s 3.10.4(2) of the Planning Scheme seeks the activation of areas “to encourage a sense of community, creating a feeling of safety and encouraging more people to walk”.  That land use strategy is directed at achieving the strategic outcome in s 3.10.4, which is to “influence sustainable travel behaviour by creating attractive places to walk and cycle”. 
  1. [98]
    Another example of the interconnected nature of the policies is evident in performance outcome PO64 for the Next generation neighbourhood precinct in the General residential zone code. That outcome relates to “Retail, commercial and community uses”.  It requires all buildings to exhibit a high standard of design and construction so as to, amongst other things, add visual interest to the streetscape; locate and orient to favour active and public transport usage by connecting to pedestrian footpaths on the street frontage and adjoining sites; and facilitate casual surveillance of all public spaces.
  1. [99]
    The provisions of the Planning Scheme identified above, as supported by the Centre and Neighbourhood Hub Design Planning Scheme Policy, reveal that the Planning Scheme’s design requirements for local centres are directed at two planning policies. The first is the provision of vibrant and attractive centres to promote social interaction and community identity. The second is creating an environment that encourages access to local centres by active transport and public transport.

What are the general design features of BGM’s proposed local centre?

  1. [100]
    The proposed design of BGM’s local centre is depicted in plans, elevations, and perspectives. The drawings provide details of:
  1. (a)
    the size and proportions of the various tenancy areas;
  1. (b)
    the extent of glazing;
  1. (c)
    the architectural finishes proposed for the otherwise blank walls;
  1. (d)
    the external (or open air) pedestrian environment, including:
  1. (i)
    the proposed pedestrian access links from Sovereign Drive and between each of the standalone buildings;
  1. (ii)
    the extent of cover proposed for the pedestrian access links;
  1. (iii)
    the areas proposed for outdoor seating and outdoor dining;
  1. (iv)
    a proposed plaza area;
  1. (v)
    proposed surface finishes, furnishings and landscaping; and
  1. (e)
    the location and architectural treatment of proposed amenities and service areas.
  1. [101]
    Those drawings show that BGM’s proposed local centre consists of five standalone building envelopes. Mr Lynch, the architect retained by BGM, explains that the design breaks up the buildings to facilitate the creation of a series of smaller-scale elements. This delivers smaller-scale buildings with full height glazing and covered and landscaped outdoor areas to the Sovereign Drive road frontage, whilst placing the bulk of the full-line supermarket, with its blank walls, to the rear of the site where it will have minimal impact upon the streetscape.
  1. [102]
    BGM proposes two vehicular crossovers along the Sovereign Drive frontage. One is centrally located along the frontage and predominantly provides access to the supermarket and specialty retail facilities. The other is located at the north-west end of Sovereign Drive and predominantly provides access to the service station, food and drink outlet and one of the standalone retail buildings. Each of the buildings has immediately adjacent carparks, but the majority of the on-grade car parking is located between the supermarket building and Specialty Shop 2. There are extensive pedestrian paths traversing the car park and internal roads and connecting the various standalone buildings. 

Will BGM’s proposed local centre be in a predominantly main-street format?

  1. [103]
    ANH submits BGM’s proposed local centre does not accord with the assessment benchmarks that require a predominantly main-street format or a local centre designed around a main street core.
  1. [104]
    As I have noted in paragraph [56] above, I am satisfied that BGM’s proposed development is located at the intersection of two locally recognisable main thoroughfares, being Oakey Flat Road and Sovereign Drive.  It does not follow that it is designed in a predominantly main-street format or around a main street core.  Those considerations do not relate simply to the location of the centre.  They relate to the experience the centre provides to pedestrians in terms of its level of activity, vibrancy, and “walkability”.  The extent of active frontages is relevant in this regard.
  1. [105]
    The pedestrian experience along Oakey Flat Road and Sovereign Drive can be described by reference to a “walk” along each of those roads.  The entire frontage of BGM’s site, for both Oakey Flat Road and Sovereign Drive, is to be improved by a pedestrian footpath. 
  1. [106]
    BGM’s site has a frontage of about 68 metres to Oakey Flat Road. Mr Lynch accepts that BGM’s proposed local centre does not achieve a pedestrian connection from that road frontage and there is no active frontage to that road. His evidence is consistent with the plans and elevations, and the evidence of Mr McGowan (the visual amenity expert retained by BGM) and Mr Peabody (the architect retained by ANH).
  1. [107]
    During cross-examination, Mr McGowan accepted that the presentation to Oakey Flat Road is confined to the proposed service station. It is the only building interface. It is to comprise a building with a gross floor area of 201 square metres, and an associated awning over four fuel bowsers. The length of the service station building is to run parallel to Oakey Flat Road. It is to be located on a suspended slab that is between 2.7 and four metres above the level of the Oakey Flat Road footpath, with the smallest elevation proximate the corner of Oakey Flat Road and Sovereign Drive. Some glazing is proposed along the Oakey Flat Road elevation.
  1. [108]
    The visual perspective gives an indication of the view from Oakey Flat Road. I accept that the visual perspectives involve a degree of artistic licence, including with respect to the depiction of landscaping, the presentation of retail signage and branding, and the absence of appropriate depiction of the impact of retaining walls. I have placed little reliance on the perspectives, instead preferring the details shown in the plans and elevations, and the evidence of the experts about the visual presentation of the development.
  1. [109]
    I accept the evidence of Mr McGowan that the void underneath the slab will be partially screened from view by batten screening and landscaping. Mr Peabody accepts that the service station will present an attractive frontage to Oakey Flat Road but opines that it is not an activated frontage.  I accept that there is only limited activation proposed along the Oakey Flat Road frontage.  It comprises some glazing on the southern and northern corners of the building.  The glazing at the southern end is unlikely to generate a sense of activity or much opportunity for surveillance of Oakey Flat Road as it is associated with the loading dock.  The shop windows at the northern end of the Oakey Flat Road elevation may provide a limited opportunity for casual surveillance. 
  1. [110]
    I accept the evidence of Mr McGowan that the service station and the centre signage will be visually prominent to those approaching the Oakey Flat Road and Sovereign Drive roundabout from the north or the east. It accords with the photographs forming Exhibits 121 and 122 and the site plans and elevations. However, as is explained by Mr McGowan during cross-examination, the activity associated with car movement will likely be screened from the view of motorists by landscaping proposed on the corner. There is otherwise no form of activation to the corner as the shop front is a reasonable distance back from the road. Mr McGowan’s evidence in this respect accords with the view Mr Vann expressed during cross-examination.  He says the design of BGM’s proposed local centre does not create a sense of activity at the street corner. 
  1. [111]
    The overall activation to Oakey Flat Road and the corner is described well by Mr Peabody.  He opines that the service station is “significantly elevated above the public road frontage, offers no pedestrian connection and the activity associated with the facility is oriented internally to the site”.  There is no material active frontage to Oakey Flat Road.  The centre is not designed to allow its frontage to Oakey Flat Road to facilitate and foster opportunities for formal and informal social and economic exchange.
  1. [112]
    BGM’s site also fronts Sovereign Drive. That frontage is about 170 metres.  BGM’s design incorporates two specialty retail buildings, described as Specialty Shops 2 and 3.  They occupy about 60 metres of the Sovereign Drive frontage.[62] 
  1. [113]
    During his cross-examination, Mr Peabody provided a description of the “walk” along Sovereign Drive.  Supplementing his description with details that are apparent from the plans, the “walk” can be described as follows.  Starting at the corner of Oakey Flat Road and heading generally west along Sovereign Drive, the footpath runs alongside a landscaped entry statement for the centre.  It includes a feature wall of about 30 to 40 metres length (around the corner into Oakey Flat Road) that extends about 1.5 metres above a 1.5 metre high landscape batter.  The first pedestrian entrance starts about two metres below the centre platform.  A gently graded path connects Sovereign Drive to the service station building.  Continuing along Sovereign Drive, the pedestrian would next cross the first driveway entrance, before continuing along the footpath in front of the building described as Specialty Shop 3.  One pedestrian path connects the terrace that surrounds Specialty Shop 3 to the footpath.  It is about midway along the building.  The footpath along Sovereign Drive continues along the frontage of BGM’s site until the main entry to the site.  At that point, the path turns the corner into the site, providing pedestrian access to the site adjacent the main vehicular access.  A crossing over the main entry driveway allows a pedestrian to follow further pedestrian paths that lead to the supermarket building and the specialty shops that sleeve it.  Alternatively, a pedestrian can cross the main vehicular crossover and continue further along Sovereign Drive.  Immediately following the vehicular crossover, and parallel to the internal roadway, there is a ramp at 1:21 grade up to Specialty Shop 2.  The footpath continues along Sovereign Drive, in front of the length of Specialty Shop 2, with another pedestrian access path provided, at-grade, connecting the north-western end of Specialty Shop 2 to Sovereign Drive.  The balance of the Sovereign Drive frontage is occupied by landscaping in front of carparks and a final pedestrian path at the most north-western extent of the Sovereign Drive frontage.  That pedestrian path runs parallel to the north-western boundary and connects, across the carpark, to a pathway leading to the building containing the supermarket and Specialty Shops 1 and 4.
  1. [114]
    Although Specialty Shops 2 and 3 are oriented to Sovereign Drive, the proposed local centre does not present the vibrancy to Sovereign Drive or Oakey Flat Road that one would expect of, for example, a continuous row of shops, small office spaces, and restaurants. This is apparent from the plans and Mr Peabody’s description of the “walk” along the Sovereign Drive frontage.  The architects agree that BGM’s proposed local centre is not designed or centred around a public road that may be considered a “main street”.  I agree. 
  1. [115]
    Having regard to the evidence referred to above, the proposed development does not comply with the various assessment benchmarks that require a design centred around a main street. Nevertheless, the architects consider that the internal road network (and associated car parking areas) and the adjoining retail tenancies offer similar opportunities for formal and informal social and economic exchange framed within the realm of a civic space. The town planners expressed similar opinions. I accept their opinions. They accord with the features of the design apparent from the drawings as discussed further below with respect to the issue of activation.

Will BGM’s proposed local centre have active frontages and street-fronting retail?

  1. [116]
    ANH submits that the Planning Scheme’s requirement for “active frontage” is not exclusively concerned about interface with the street network.  Rather, the way buildings are designed and oriented is to ensure interactivity and encourage cross-movement between the public and private domains.  Blank walls and façades are to be avoided, and there is to be provision for a variety of activities to occur along the building front.  I agree.  However, it is still relevant to consider the extent of street-fronting retail and activation to the street.  It informs the extent to which a development might provide a vibrant and attractive centre and create an environment that encourages access by active and public transport. 
  1. [117]
    ANH submits that BGM’s proposed local centre does not achieve a pedestrian connection from the more major of its road frontages, Oakey Flat Road. It says there is no active frontage to that road. As I have already noted in paragraph [111] above, I accept there is no material active frontage to Oakey Flat Road.
  1. [118]
    ANH also submits that BGM’s proposed local centre provides unsuccessful active frontages to Sovereign Drive. It says there are obvious constraints to activation of the Sovereign Drive frontage by Specialty Shops 2 and 3, namely:
  1. (a)
    the inability for cars to park on Sovereign Drive, and the consequent need to access the internal car parking area;
  1. (b)
    the fact that the tenancies themselves are only 10 metres in width;
  1. (c)
    the width of the covered terrace for Specialty Shop 3 addressing Sovereign Drive is noticeably narrower than the space addressing the carpark, reinforcing the suggestion of a preference for concentration of public space fronting the car park; and
  1. (d)
    there is a separation in grade between the footpath and Specialty Shops 2 and 3.  Specialty Shop 2 is approximately 1.2 metres above the verge on its eastern corner, and at a similar grade at the western corner.  Specialty Shop 3 is approximately 0.8 metres above the verge at the eastern corner, and 0.5 metres below the verge at the western corner.  
  1. [119]
    During examination in chief, Mr Peabody explained why he regarded these matters to present a constraint to activation of the Sovereign Drive frontage.  He started from the premise that the majority of customers will arrive by car, as local centres are effectively car-centric developments that rely on a relatively large portion of car parking.  Having started from that premise, Mr Peabody considers it reasonable to anticipate that customers who want to visit a tenancy within Specialty Shop 2 will generally arrive by car and park close to the building.  This means they will approach the building from its southern elevation.  Consequently, Mr Peabody considers that a retailer would generally plan their space from the car parking area.  He considers that, for a small shop staffed by one or two people, two entrances may present operational difficulties, for example in managing security.  He sought to demonstrate the potential adverse outcome that may eventuate by reference to photographs of established centres at three other locations.  The photographs showed pavilion-type buildings with activation to the carpark and blank facades to the street.
  1. [120]
    Mr Vann expressed similar concerns to those voiced by Mr Peabody. During his examination in chief, Mr Vann expressed the view that BGM’s proposal attempts an active design but that it represents “the worst of both worlds”.  He is of the view that Specialty Shops 2 and 3 will “trade inwards, not outwards … leveraging off the car parks, not off the street.”  Although Mr Vann considers that BGM’s design reflects the Planning Scheme intent, he does not regard it as a successful outcome because it does not reflect the sorts of facilities he has encountered in the past.  That is insufficient to persuade me that BGM’s design will not achieve activation as intended.
  1. [121]
    ANH also relies on Mr McGowan’s concession that the tenancies may have advertising material facing Sovereign Drive unless there are controls preventing that outcome.   
  1. [122]
    During cross-examination, Mr Lynch agreed that Specialty Shops 2 and 3 would not have any active connection with motorists who want to stop on that road as there is no parking on Sovereign Drive. He accepts that it may be sensible for tenants of those shops to have their main entry fronting the adjacent car parks. He also accepts it is common for structures in a local centre, such as Specialty Shops 2 and 3, to front a carpark rather than an adjacent street. However, it is clear that Mr Lynch considers that such an outcome is not the only likely retail design response. When presented with Mr Peabody’s visual aids, Mr Lynch noted that Specialty Shops 2 and 3 have a lovely north-facing aspect, particularly with their immediately adjoining terraces. It would be a poor use of the building by tenants to turn their back on Sovereign Drive. Mr Lynch regards the northern terrace as the preferable location for any outdoor dining or seating associated with those specialty retail shops.
  1. [123]
    Mr Lynch also explained how the tenancies could be designed to avoid presenting blank walls to Sovereign Drive. A single tenancy could place its back of house area along the western end of the building, proximate the loading bay. If the area is occupied by more than one tenancy, those tenancies could maximise their exposure (and activation of their frontage to both Sovereign Drive and the carpark) by locating their back of house along the internal partition walls that would divide the building into separate tenancies. Mr Lynch considers this to be the logical solution, and preferable to the location of back of house along the glazed external elevations.  He does not consider that the outcome would be influenced by the location of the carparks along the southern elevation given the short distance a customer would need to walk to get to the Sovereign Drive frontage of the building.  He is also of the view that an opening to the front is preferable, as it would align with the intended centre design strategy that the centre be part of a neighbourhood where walking and other active transport modes are encouraged.
  1. [124]
    I do not find Mr McGowan’s evidence on this issue compelling. He was retained to give evidence on visual amenity. His curriculum vitae does not disclose any relevant expertise in retail design. I prefer the evidence of Mr Lynch to that of Mr Peabody, Mr Vann, and Mr McGowan.  Mr Lynch has extensive experience in shopping centre design, having been involved in more than 60 retail projects of varying scale delivered over four decades. 
  1. [125]
    The plans show that Specialty Shops 2 and 3 open out onto covered and pergola roofed areas that are designed to function to address both Sovereign Drive and the internal car parking areas. The building frontages for Specialty Shops 2 and 3 are oriented generally parallel to the street alignment and present full-height clear glazed shopfronts that open onto landscaped terraces adjacent the street. Mr Lynch explains that this offers both activation and passive surveillance opportunities. For reasons already explained above, I accept the evidence of Mr Lynch that it is reasonable to expect the tenants in those buildings to take commercial advantage of that exposure.
  1. [126]
    In certain locations, there is a difference in levels between the terraces and shops in Specialty Shops 2 and 3 and the adjoining footpath. At its greatest, the difference is 1.2 metres.  That is a factor of the changing level of Sovereign Drive along the frontage to BGM’s site.  BGM’s proposed design makes appropriate provision for the change in levels by ensuring that each of Specialty Shops 2 and 3 has at least one pedestrian access that is at the same general level as the footpath.  This will facilitate easy pedestrian and cyclist access to those shops. 
  1. [127]
    The landscape masterplan records an intent to provide enhanced pedestrian entry points from Sovereign Drive and to keep plantings in front of the buildings low to allow street activation. This will ensure legible, direct, and attractive pedestrian access from Sovereign Drive to Specialty Shops 2 and 3. I also accept the opinion of Mr Lynch that internal pedestrian movements are clearly identified and reflect desire lines. His opinion accords with the detail on the plans.
  1. [128]
    For the reasons outlined above, I am satisfied that the design of Specialty Shops 2 and 3 will achieve active frontages as intended by the Planning Scheme. I am also satisfied that the design of BGM’s proposed local centre, with Specialty Shops 2 and 3 fronting Sovereign Drive, will enhance Sovereign Drive and encourage pedestrian access to the local centre. The location of active uses on the Sovereign Drive frontage to BGM’s site, proximate to the level of the footpath, will facilitate natural surveillance of the footpaths. The activity created by the specialty shops in close proximity to the footpath will encourage pedestrians into the site, where they can use the integrated pedestrian network of covered and uncovered walkways connecting the various buildings within the site. 
  1. [129]
    Given the achievement of active frontages informs some of the Council’s broader planning goals, the Council may wish to consider imposing conditions to ensure any use of Specialty Shops 2 and 3 respects the design intent for activation. For example, conditions could require provision of access to the building from the Sovereign Drive frontage and maintenance of a high percentage of unobscured glazed frontage. Such conditions would likely limit the longer-term prospect of design creep away from the original intent through modifications made “generally in accordance” with the plans.

Will BGM’s proposed local centre avoid a parking-lot dominant retail format?

  1. [130]
    The Planning Scheme seeks to avoid parking, manoeuvring, and servicing areas that are visually dominant from the streetscape and from public spaces. 
  1. [131]
    The architects and town planners all acknowledge that typically, a suburban shopping centre is reliant on the majority of patrons arriving by car and, as such, extensive car parking areas are required. The Centre and Neighbourhood Hub Design Planning Scheme Policy recognises this but notes that car parking needs to be carefully considered to ensure it does not prevent the achievement of compact, active, and walkable centres. The Planning Scheme Policy provides possible design solutions to address the visual impact of extensive car parking. One solution is to locate car-parking areas to the rear of the site, away from the street frontage.
  1. [132]
    It is apparent from the approved plans that parts of the car parking areas for BGM’s proposed local centre will be visible from Sovereign Drive. However, BGM’s proposal is not a typical internal shopping mall arrangement with a sea of car parking out the front. 
  1. [133]
    The plans show that only about 10 per cent of the combined street frontages for the site (and about 15 per cent of the site’s frontage to Sovereign Drive) has car parking adjacent.  The largest area of car parking adjacent the street is at the western-most frontage to Sovereign Drive.  At that location, the car parking area has been set back from the street.  Landscaping is proposed in front of it.  The car parking areas are otherwise generally set behind the specialty shops that front Sovereign Drive, with the largest expanse behind Specialty Shop 2. 
  1. [134]
    The potential dominance of the car parking areas is also alleviated by providing some smaller pockets of car parks proximate each of the buildings, rather than a single consolidated mass of car parks.
  1. [135]
    Landscaping is proposed along the edges of the internal roads. This will soften the appearance of the car parking areas as one enters the site. It also provides an appropriate aesthetic treatment to the manoeuvring and servicing areas, which will improve the amenity for pedestrians as they traverse the site.
  1. [136]
    The servicing areas for each of the buildings have been located and aesthetically treated to reduce their dominance. Mr McGowan explained that this was achieved by having them “tucked away behind the buildings or behind acoustic screens”.
  1. [137]
    For those reasons, I am satisfied that the parking, manoeuvring and servicing areas will not be visually dominant. 

Will BGM’s proposed local centre provide quality urban design outcomes and attractive, high-amenity public spaces?

  1. [138]
    The town planning experts agree that BGM’s proposed local centre does not fully comply with performance outcome PO2 of the Centre zone code. The proposed buildings do not adjoin, and are not within three metres of, a primary street frontage, civic space, or public open space. The town planners and the architects disagree about whether BGM’s proposed local centre will provide quality urban design outcomes and attractive, high-amenity public spaces.
  1. [139]
    ANH submits that because of its unfortunate configuration, disjointed arrangement, and topographical “split”, BGM’s proposed local centre does not provide high quality urban design outcomes nor a vibrant and attractive place with high amenity public spaces.  ANH relies on the evidence of Mr Peabody.  He considers BGM’s local centre to be disjointed.  In his opinion, the physical distance between each of the building elements, their separation by large expanses of carpark hardstand and internal roads and the level changes across the site (in the order of four metres) would erode any sense of connectivity within the centre.  Mr Vann agrees with Mr Peabody’s assessment.  Mr Vann is of the view that the design dilutes the opportunity to successfully activate the site and contribute to a sense of place or identity.
  1. [140]
    I do not accept the views expressed by Mr Vann and Mr Peabody. They ignore the design philosophy adopted by BGM and the resulting character of BGM’s local centre. The design is different to that of a traditional shopping centre, but that is what the Planning Scheme seeks.
  1. [141]
    I accept Mr Lynch’s explanation of the design intent for BGM’s proposed local centre. He describes it as a neighbourhood shopping “village”, where the separate retailing and commercial destinations are located around the site to create an appropriately scaled group of buildings.  He explains that the grouping of buildings seeks to break up the destinations within a “village” environment, which by its layout will slow down vehicles and have the feeling of a shared pedestrian and vehicle zone. 
  1. [142]
    The plans show that the design includes glazed frontages and covered terraces or awnings towards the street, as well as glazed frontages along pedestrian walkways and facing outdoor dining areas and seating areas. I accept the opinion of Mr Schomburgk and Mr Buckley that this seeks to create a pedestrian friendly “market-style” centre with separate buildings and pleasant pedestrian areas.  The combination of the following seven design features supports that view.
  1. [143]
    First, the design appropriately locates the largest building element (the “box” containing a 3 946 square metre supermarket) to the rear of the site.  At that location, the bulk of the supermarket will be screened from adjoining land by embankments, landscaping and acoustic screening.  The supermarket is to be sleeved by retail areas described as Specialty Shops 1 and 4.  Those two specialty retail areas flank the entry to the supermarket and conceal the large box.  Together the specialty shop areas create an “L” shape frontage to an open-air, but covered, walkway with carparks beyond. 
  1. [144]
    The area described as Specialty Shop 1 has a gross floor area of 605 square metres at ground level and an additional 784 square metres on a second storey. Its configuration is long and narrow, such that it presents an extensive glazed frontage to the adjacent walkway. Access to the tenancies to comprise Specialty Shop 1 are direct from the external walkway. The walkway between the ground floor specialty shops and the carpark area is at the same level as both. Outdoor seating is proposed along the walkway. The second storey of Specialty Shop 1 can be accessed from a terrace or verandah that runs the length of the tenancy area. Access to the terrace is via either stairs or a lift.
  1. [145]
    Specialty Shop 4 has a gross floor area of 200 square metres. Like Specialty Shop 1, it presents a glazed frontage to the adjacent covered walkway and carpark beyond, with access to the tenancy area provided from the external walkway.
  1. [146]
    This design avoids the typical internalised pedestrian shopping centre mall. Instead, it activates the adjoining walkways by presenting an opportunity for smaller tenancies with extensive glazed shopfronts and active uses (such as retail, restaurants and cafes) to locate immediately adjacent some of the covered pedestrian walkways that permeate the site. It creates points of interest and activity along the external edge of the supermarket building.
  1. [147]
    Second, for reasons I have explained in paragraphs [116] to [129] above, BGM’s proposed local centre will achieve active frontages through the location of Specialty Shops 2 and 3 fronting Sovereign Drive with a design that includes full height glazed shopfronts and covered and landscaped outdoor areas.  The activity these retail areas will create, in close proximity to the footpath, will encourage pedestrians into the site.
  1. [148]
    ANH submits that Specialty Shops 2 and 3 and the Food and drink outlet are not of a domestic scale and would have little association or sense of streetscape with the existing houses on Sovereign Drive. ANH notes that Specialty Shops 2 and 3 each have a maximum height of 12 metres. ANH also relies on the evidence of Mr Peabody that the length of Specialty Shops 2 and 3 (33.5 and 26 metres respectively), coupled with their maximum height, does not offer a scale of development that could be considered sensitive.  He also does not consider the scale to be an integrated part of the residential neighbourhood when viewed in the context of the existing, typically single storey dwellings on Sovereign Drive.
  1. [149]
    I do not consider that the combined height, bulk and form of Specialty Shops 2 and 3 represents a poor-quality urban design outcome. The existing houses address Champion Circuit to the north. They have minimal sense of address to Sovereign Drive due to the location of high fences along that elevation. As such, they present little opportunity for association with a local centre on BGM’s site. As for the scale of BGM’s proposed local centre and the associated sense of streetscape, the elevation drawings for Specialty Shops 2 and 3 show those buildings are of a single storey with a maximum height of 12 metres. The maximum height of 12 metres is not a uniform height across the frontage of the building. It corresponds to treatments of the roof form that provide visual interest to the façade. Most of each building is much lower in height than the maximum parapet height. Mr Peabody accepts that the buildings incorporate other design elements that provide a human scale. The northern elevation drawings (being the view from Sovereign Drive) demonstrate how the use of a variety of building materials and architectural treatments, including the pergolas, create a human scale to the buildings. Those drawings depict the use of panels of glazing and vertical and horizontal elements in differing building materials to break the building into modules. I am satisfied that the design of Specialty Shops 2 and 3 represents a high-quality urban design outcome.
  1. [150]
    Third, there is no direct access from the service station building to the corner. The service station is setback from the Sovereign Road frontage. It sits on an elevated platform. The southern end of the platform is approximately four metres above the level of Oakey Flat Road. Screening is proposed to the undercroft areas and landscaping is proposed along the frontage to Oakey Flat Road. The design creates an attractive sense of arrival through proposed landscape treatment of the corner with a retaining wall that provides an entry statement. A level of activity is invited by a walkway, with an enhanced pedestrian entry treatment, that connects the Sovereign Drive footpath to the service station building. I accept the opinion of Mr Lynch that the service station will be visible and able to be accessed easily and directly, which is a good design outcome for any such facility. I do not accept Mr Peabody’s opinion that the location of the service station at the north-eastern corner of BGM’s site presents an unfortunate sense of arrival for BGM’s proposed local centre from the roundabout intersection at Sovereign Drive, Youngs Road and Oakey Flat Road.
  1. [151]
    Fourth, BGM’s proposed local centre includes a nominated plaza area on the south-eastern corner of Specialty Shop 2 that will function as a focal point or meeting space as envisaged by the Planning Scheme. It also provides a number of other publicly accessible open spaces, including informal spaces along the covered pedestrian footpaths adjoining the retail spaces. Specialty Shops 2 and 3 open out onto covered and pergola roofed areas designed to function addressing both Sovereign Drive and the internal car parking area. The architects agree that these design elements offer opportunities for public and civic spaces within the development. As such, while BGM’s design is not one that involves a continuous row of shops on a main street, it provides an open air, permeable environment that includes opportunities for informal gathering and social interaction. It facilitates opportunities for formal and informal social and economic exchange.
  1. [152]
    I do not accept Mr Peabody’s opinion that the nominated plaza area is unlikely to be successfully utilised and is not of high amenity, as I do not accept his premise that it is inconvenient to access.  It is proximate the main entry to the site, adjacent the covered terrace and attractively landscaped pergola roofed area adjoining Specialty Shop 2.  It is also at a location that intersects a clearly identifiable pedestrian pathway that connects Sovereign Drive directly to the building containing the supermarket and specialty shops. 
  1. [153]
    Fifth, BGM’s design incorporates a clearly identifiable and integrated pedestrian network that provides multiple connections to Sovereign Drive. It has the potential to achieve a pedestrian connection with adjoining sites as they develop. It connects the various buildings on BGM’s site by a network of covered and uncovered walkways.
  1. [154]
    Mr Peabody regards the pedestrian connectivity to be undesirable due to the distances between buildings, the level change across the site and the need for pedestrians to cross a number of internal roads to traverse between the various standalone buildings. I do not share his concerns. I prefer the evidence of Mr Lynch.  Mr Lynch notes that the levels reflect the gradient of Sovereign Drive and the pedestrian footpath that adjoin it.  As such, connection to the site is at grade.  The grades within the site are within normal ranges of comfortable gradients for a shopping centre.  Mr Lynch also explains that pedestrian accessibility into the centre and around the centre is designed to be highly visible and to work in a shared vehicle and pedestrian or cyclist environment.  Clear sightlines are provided and there is a variety of path types, including covered and uncovered.  The plans show that there are access points to the site and paths throughout the site that would cater for all users, including older people, parents with strollers and people with disabilities.  Some lengths of pathways include places to stop and rest.  Landscaping along the paths provide for an attractive journey. 
  1. [155]
    Sixth, while the site rises from RL35m adjoining Sovereign Drive up to RL50m AHD at the south-west boundary of the site, the distance and grade separation between the two ends of BGM’s site have been thoughtfully addressed in the groupings of buildings on the site. 
  1. [156]
    The food and drink outlet, Specialty Shop 3 and the service station are all to the east of the main vehicular access. They are separated from the western end of the site by the main vehicular access and a landscaped batter. They sit about two metres lower than the level of the main vehicular access. Vehicular access to the area is predominantly provided by way of a left-in, left-out access from Sovereign Drive. The separate access off Sovereign Drive provides easy access to the motorcar centric uses, being the service station and the food and drink outlet with associated drive through facility.
  1. [157]
    The main vehicular access is a more convenient separate driveway providing access to the major supermarket and related specialty shop elements.
  1. [158]
    Vehicular and pedestrian connectivity is provided between these two areas. For example, at grade access is available between Specialty Shops 2 and 3 along the activated footpath. Further, as is noted in paragraph [154] above and evident from the plans, there are multiple pedestrian connections to the site at grade and the pedestrian paths within the site can be provided with comfortable gradients. 
  1. [159]
    I accept the Council’s submission that the use of pedestrian connections is consistent with the focus in the Next generation precinct of the General residential zone on active transport and walkable neighbourhoods. As outlined above, BGM’s proposed local centre provides numerous safe, clearly marked paths, including covered paths adjoining retail buildings.
  1. [160]
    For the reasons provided in paragraphs [155] to [159] above, I do not accept Mr Peabody’s opinion that BGM’s design unacceptably dilutes the legibility of the centre and detracts from convenience, particularly in summer or during rain events. 
  1. [161]
    Seventh, for reasons I have explained in paragraphs [130] to [137] above, BGM’s proposed local centre design ensures the parking, manoeuvring and servicing areas will not be visually dominant. 
  1. [162]
    Having regard to the matters outlined above, I am satisfied that BGM’s proposed local centre will provide high quality urban design outcomes and attractive, high-amenity public spaces.

Will BGM’s intended design for street activation and an attractive centre be thwarted by noise attenuation measures?

  1. [163]
    ANH initially alleged that BGM’s proposed local centre would have unacceptable acoustic impacts.
  1. [164]
    In the Joint Report of Experts in Noise and Air Quality, Ms Richardson and Mr King (the acoustic engineers retained by BGM and ANH respectively) agree that the Noise Impact Assessment Report prepared by Ms Richardson’s firm identifies the necessary noise control and operational measures that should be imposed by way of conditions.  Those measures included the provision of noise barriers at various locations on BGM’s site.  The identified barriers include:
  1. (a)
    a three-metre-high barrier along the boundary of the land to the west;
  1. (b)
    a two-metre-high noise barrier along the Sovereign Drive frontage between the north-westernmost point and the primary access road, including along the entire frontage of Specialty Shop 2 and curving around that building and along the driveway;
  1. (c)
    a three-metre-high noise barrier wrapping around the northern and eastern edges of the outdoor dining area proximate Specialty Shop 3; and
  1. (d)
    a three-metre-high noise barrier along the eastern side of the pedestrian access from Sovereign Drive to the entry for the service station building.
  1. [165]
    In her individual report, Ms Richardson identifies options to reduce the visibility of these acoustic barriers. One option was the use of alternative barrier materials such as frameless, laminate glass. Mr King accepts that this can achieve the necessary noise attenuation.
  1. [166]
    In addition, Ms Richardson considers the possibility that the necessary noise attenuation could be achieved with a significantly reduced extent of noise barrier. The amended barrier requirements for Specialty Shop 2 are shown on Figure 2.3 of Ms Richardson’s report.  They show a much more limited extent of noise barrier along the Sovereign Drive frontage.  The revised barriers are limited to three-metre-high barriers around the service bays for Specialty Shops 2 and 3 and two-metre-high barriers around the outdoor dining precincts.  During cross-examination, Mr King acknowledged that the revised extent of noise barriers would be acceptable.  They would achieve compliance with appropriate noise criteria.  However, Mr King does not consider the deletion of the barrier between the car parking area adjacent to Shop 2 and residents in Sovereign Drive to be a good outcome.  He says it is desirable to provide that additional noise attenuation for the benefit of residents opposite given the car parking area could be used at any time of the day, evening or night. 
  1. [167]
    Ms Richardson also investigated the possibility of removing the acoustic barriers proximate the outdoor dining areas by conducting revised acoustic modelling. She took further attended noise measurements on the evening of 7 June 2018. They indicate that the nearest residents may be affected by higher background noise levels than previously assumed. Based on the new noise measurements, Ms Richardson opines that compliance with the necessary noise standards could be achieved without barriers around the outdoor dining area.
  1. [168]
    During cross-examination, Ms Richardson accepted that she would want to verify her work through further measurements to ensure that the one-night reading that she took was representative of the overall acoustic environment. Mr King similarly considers that the minimal further monitoring undertaken by Ms Richardson does not provide enough certainty to adopt a new criterion and allow the removal of noise barriers from the outdoor dining areas. He is of the opinion that, absent greater certainty, the barriers around the outdoor dining areas should remain. He explains that outdoor dining areas are common problems in many areas. He considers that providing screening between such areas and residences “to block the line of sight in terms of noise” is a suitable outcome, and a required outcome. 
  1. [169]
    ANH submits that Ms Richardson’s departure from her original position, and her agreement in the joint expert report, should not be treated lightly. It submits that BGM’s proposed local centre should be assessed based on the need for the acoustic measures identified and agreed in the joint expert report, rather than Ms Richardson’s “revisited” work.  One of the reasons advanced by ANH is that Ms Richardson’s departure from the joint expert report was at the request of BGM’s legal and expert team.  It is regrettable that Ms Richardson’s further analysis was not the subject of a further joint expert report.  That is the consequence of BGM insisting on hearing dates that left insufficient time for preparation of further joint expert reports addressing interdisciplinary issues revealed upon receipt of the joint expert reports.  ANH did not object to receipt of the individual report.  It does not suggest that Ms Richardson was inappropriately influenced in her opinions.  As such, I do not accept that I should disregard the contents of her individual report.
  1. [170]
    I accept the evidence of Ms Richardson and Mr King that the provision of laminate glass barriers proximate the outdoor dining areas and the otherwise more limited noise barriers shown on Figure 2.3 of Ms Richardson’s report would achieve compliance with appropriate noise criteria.  I am not persuaded that it is necessary to impose a condition requiring additional acoustic treatment between the carpark and Sovereign Drive.  While the line of sight from the residences to the carpark is not entirely “blocked” by the rear fencing along those properties, there will be additional landscaping between them and any noise source.  That will acceptably reduce the impact associated with being able to see noise generating activities.
  1. [171]
    I accept the opinion of Mr Lynch that laminate glass barriers would not diminish the activation of the frontage of Specialty Shops 2 and 3. As such, it is unnecessary for me to resolve whether the barriers could be removed entirely.
  1. [172]
    Having regard to the evidence referred to above, I am satisfied that appropriate noise attenuation measures can be achieved without compromising the achievement of street activation and an attractive centre.

Conclusion regarding the appropriateness of the design of BGM’s proposed local centre

  1. [173]
    For the reasons set out above, I am satisfied that the design of BGM’s proposed local centre is acceptable.
  1. [174]
    BGM’s design does not achieve a “main street” format or the extent of street-fronting retail activation that the Planning Scheme encourages.  In particular, there is a lack of activation along the Oakey Flat Road frontage.  However, this does not unsatisfactorily compromise the proposed local centre’s ability to achieve the associated planning goals with respect to social interaction and encouraging access by active transport for four reasons. 
  1. [175]
    First, BGM’s site is rectangular, with the long axis extending in a north-east / south-west orientation such that its frontage to Oakey Flat Road is only 68 metres, compared with 170 metres to Sovereign Drive. As such, Oakey Flat Road is not the predominant frontage for BGM’s site.
  1. [176]
    Second, Oakey Flat Road is an arterial road. The Integrated Design Planning Scheme Policy indicates that the primary function of arterial roads includes providing for through traffic, regional cycle movements, line haul public transport, primary freight routes, intra-regional movements and longer distance travel to regional destinations, and connections to highways and motorways. Consistent with this, the Planning Scheme expresses a clear preference that new centres be located on sub-arterial or collector roads. The Integrated Design Planning Scheme Policy also indicates that vehicular access from an arterial road is not preferred. Given the intended function of an arterial road, and the Planning Scheme preference for location of new centres, the lack of activation to Oakey Flat Road is of little significance.
  1. [177]
    Third, the environment of Oakey Flat Road is not generally conducive to pedestrian activity, particularly south of BGM’s site. There are no footpaths along Oakey Flat Road south of the Young Road, Sovereign Drive, and Oakey Flat Road intersection. The land to the immediate south of BGM’s site is a disused quarry. Immediately opposite the BGM frontage, on the corner of Oakey Flat Road and Young Road, a treed area is in the Recreation and Open Space zone. In the general vicinity of BGM’s site, such land that adjoins Oakey Flat Road and is developed for residences turns its back on Oakey Flat Road.
  1. [178]
    Fourth, despite the environment of Oakey Flat Road not being generally conducive to pedestrian activity, BGM’s proposed local centre, to some extent, will encourage pedestrian movement along the Oakey Flat Road frontage. It provides a footpath adjacent an attractive, landscaped area.
  1. [179]
    For the reasons outlined in paragraphs [87] to [178] above, I am satisfied that the evidence establishes that the design of BGM’s proposed local centre will result in a vibrant and attractive centre that promotes social interaction and community identity.  I am also satisfied that BGM’s proposed local centre will create an environment that encourages the public to access it by active transport and public transport.  The design of BGM’s proposed local centre favours approval.

Will BGM’s proposed development result in unacceptable headlight glare?

  1. [180]
    BGM’s proposed development will be a significant traffic generator. It is predicted to have well over 700 vehicles in the pm peak hour. The only vehicular access is via the main driveway and the service station driveway onto Sovereign Drive. At the service station driveway, it is likely that customers will be coming and going 24 hours a day.
  1. [181]
    ANH alleges that the headlights from the vehicles leaving BGM’s proposed development will result in unacceptable headlight glare impacts on residents of Sovereign Drive. It says every vehicle that leaves BGM’s site during the afternoon (in winter) and the evening (year-round) will exit via the driveways. It says it will result in headlight beams shining onto and into the houses of residents of Sovereign Drive. Customers will be coming and going 24 hours a day to access the service station and fast food outlet. Existing traffic on the road would not have that impact. ANH alleges BGM’s proposed development therefore departs from performance outcome PO23 of the Local centre precinct provisions of the Centre zone code and s 6.2.6.3.1(1)(m) and performance outcome PO11 of the Next generation neighbourhood precinct provisions of the General residential zone code. 
  1. [182]
    Lighting experts Mr Forbes and Mr King, retained by BGM and ANH respectively, gave evidence about the potential impact from lighting, including headlight glare of vehicles leaving BGM’s proposed local centre.
  1. [183]
    BGM submits that the lighting experts agree that BGM’s proposed development could be conditioned, designed, installed, and operated to minimise lighting impacts. This overstates the evidence. The agreement related only to future fixed lighting on BGM’s site.
  1. [184]
    The provisions relied on by ANH require development to protect the amenity of the area and adjacent sensitive land uses from the impacts of environmental nuisances. The Planning Scheme does not define the term “environmental nuisance”.  Under the Environmental Protection Act 1994 (Qld), the term represents an unreasonable interference with an environmental value caused by, relevantly, light.  I accept ANH’s submission that this definition provides a useful guide to the meaning of the phrase in the Planning Scheme.[63]
  1. [185]
    In the Joint Report of Lighting Engineers, Mr Forbes and Mr King agree that approval of BGM’s proposed development will result in vehicle headlights being directed towards the existing houses on Sovereign Drive throughout the turning movement. They also agree that those houses have fencing and landscaping that provides some screening of headlight impacts.
  1. [186]
    In a later individual report, Mr Forbes expresses the view that the only residence potentially affected by headlights exiting BGM’s site is located at 11 Champion Circuit. He also says that existing fencing, in combination with landscaping and natural topography, will completely obstruct the visibility of headlights from the property at 11 Champion Circuit and will mitigate headlight glare emitted from vehicles exiting BGM’s site. In forming his opinions, Mr Forbes relied on the National Transport Commission Australia – Australian Light Vehicle Standards Rules 2015, as well as a series of plans showing sections through the shopping centre driveway and the service station driveway. He uses these to predict the height at which the low-beam headlights of vehicles exiting BGM’s site would project onto residences opposite. He also assumes that the fence between the residence at 11 Champion Circuit and the footpath on Sovereign Drive is a solid visual barrier.
  1. [187]
    During cross-examination, Mr Forbes conceded that even if his assumptions were correct, there would be illumination above the nominated height. He says the residences in Sovereign Drive would not be affected by an unacceptable “level of intensity” of light from headlights shining in their direction.
  1. [188]
    Mr King maintains his opinion that there would be some impact from headlights on the residences opposite BGM’s site.
  1. [189]
    As was identified during cross-examination of Mr Forbes’ and the evidence of Mr King, Mr Forbes’ analysis does not account for eight matters.
  1. [190]
    First, most car headlights have a slight “kicker” on the left side, such that lighting is slightly above the horizontal to light the verge side of the road. 
  1. [191]
    Second, light does not stop at the “horizontal”.  As was accepted by Mr Forbes, at a distance of 25 metres, a “reasonable degree of light” would still be seen above the height he assumed to be the limit of impact. 
  1. [192]
    Third, before a car exiting BGM’s site reaches the point depicted in the section relied on by Mr Forbes, it approaches the exit whilst facing the house at 11 Champion Circuit, and at a more elevated position. As a result, headlights are 1.5 metres higher than those identified by Mr Forbes.  The headlight beam would be 1.5 metres higher on the fence, putting it on and over the fence that Mr Forbes had suggested would screen the headlight beam.
  1. [193]
    Fourth, the road slopes up from the edge of the verge crossover. Consequently, entering the road would result in another “lift” in the headlight beams.
  1. [194]
    Fifth, a vehicle leaving BGM’s site necessarily executes a turn, either left or right, such that the sweep of headlights then passes over other houses in Sovereign Drive.
  1. [195]
    Sixth, there is the potential for more than one vehicle to leave BGM’s main driveway, as there are two lanes – one turning left and one turning right. That would result in two sets of headlight beams facing the fence opposite and the bedrooms and living areas behind it.
  1. [196]
    Seventh, the fence between the residence at 11 Champion Circuit and the footpath on Sovereign Drive is not a solid visual barrier. It is an open-slat fence with horizontal gaps between it. The vegetation behind it is not well established. There is nothing intervening in the road reserve that would screen the lights shining in that direction. As such, the headlights will shine through the fence.
  1. [197]
    Eighth, in terms of the service station driveway, before the vehicle depicted in the section in Mr Forbes’ report gets to the location identified, it travels parallel to the line of trees in the driveway. Headlights from that path would take in both of the houses below the red line depicted on Mr Forbes’ figure. In addition, Sovereign Drive slopes up from the verge. Mr Forbes’ plans do not reflect that.
  1. [198]
    Despite these deficiencies in Mr Forbes’ analysis, Mr King does not consider that the impact of headlight glare warrants refusal of BGM’s proposed development.  As Mr King fairly observed during his oral evidence, the impact on 11 Champion Circuit will be reduced over time as vegetation behind the fence matures.  The impact on other residences is more fleeting.  It occurs when the headlights sweep over the houses as vehicles exiting BGM’s proposed local centre turn onto Sovereign Drive.   
  1. [199]
    There may be some impact from headlight glare on the residences opposite. The interference is not unreasonable. The area around Sovereign Drive is already well lit. Vegetation and existing fences will mitigate the impact on residences.
  1. [200]
    Having regard to the matters outlined above, particularly the evidence of Mr King, I am satisfied that BGM’s proposed development would not result in unacceptable headlight glare. 

Conclusion regarding the assessment of BGM’s proposed development against the assessment benchmarks

  1. [201]
    For the reasons provided above, I am satisfied that BGM’s proposed development complies with the requirements in the assessment benchmarks that regulate the appropriate location of local centres. It does not comply with every requirement about the intended design of local centres, but it achieves the planning policy that underlies those provisions. I am also satisfied that BGM’s proposed development will not result in unacceptable amenity impacts on nearby residences.

What is the nature of ANH’s proposed development?

  1. [202]
    ANH seeks a preliminary approval to change the use of land located at the corner of Oakey Flat Road and Raynbird Road from vacant to use for a local centre. The site has a development area of approximately four hectares.  To achieve this, ANH’s application seeks a preliminary approval of a material change of use and approval of a variation request.  If ANH’s development application is approved, any future application for a development permit to authorise use of ANH’s site for particular uses will be code assessable development, provided the uses form part of a local centre development that is generally in accordance with the drawings in Exhibit 111.[64]  Those uses are a food and drink outlet, health care services, indoor sport and recreation, office, service industry, service station, shop, shopping centre and veterinary services.
  1. [203]
    The local centre for which approval is now sought is depicted in Exhibit 111. It is generally consistent with other plans and visualisations contained within Exhibit 25A. ANH’s proposed local centre is to have a gross floor area of 6 975 square metres.  It comprises a 3 410 square metre supermarket, 2 185 square metres of specialty shops, a 680 square metre medical centre, a 350 square metre gym, a service station with a building of 200 square metres and a fuel canopy over three petrol bowsers, and a 150 square metre fast food outlet.
  1. [204]
    ANH’s proposed local centre consists of two building envelopes. The supermarket and specialty retail (including medical centre, gym, and shops) with associated amenities and service area are located in the south-east corner of ANH’s site. The second building envelope is located on the northern corner and is proposed to contain the service station and fast food outlet.
  1. [205]
    A total of 351 car parking spaces are proposed. The majority of on-grade car parking is located to the north of the supermarket and specialty retail building. There are additional carparks extending to the west and south, adjacent to the medical centre, gym, and future development portion of the site.
  1. [206]
    Access is proposed from both Oakey Flat Road and Raynbird Road. The former is by way of an all movements entrance and a left-out exit. Access from Raynbird Road is via a new road intersecting Raynbird Road adjacent ANH’s site. One leg of a roundabout on that new road will provide access into the proposed local centre and another into its loading dock.
  1. [207]
    ANH’s site adjoins a large vacant parcel (“the Satterley land”), which has the benefit of a development approval granted on 1 August 2018.  There are 628 dwellings contemplated for the Satterley land.  The Concept Master Plan for that development proposes additional accesses to Raynbird Road to the west of ANH’s site.

What are the relevant assessment benchmarks for ANH’s proposed development?

  1. [208]
    Under the Planning Scheme, ANH’s site is mapped as part of the Next generation neighbourhood place type for the Strategic framework. It is located in the General residential zone (Next generation neighbourhood precinct). As I have mentioned in paragraph [32] above, the Planning Scheme contemplates development of new local centres in such areas. 
  1. [209]
    BGM alleges that ANH’s proposed local centre departs from the provisions of the Planning Scheme that guide the locational and design criteria for the establishment of new local centres, in particular:
  1. (a)
    s 3.6.2 (introductory unnumbered paragraph), s 3.6.2(1), (6) and (7), s 3.13.3.4(11) (last sentence), s 3.14.9 (5th para), s 3.14.9.4(6) and (7), s 3.14.11.3(7) and s 3.14.11.4(16)(e) of the Strategic framework;
  1. (b)
    s 6.2.1.2(2)(e) and (4)(c) of the Centre zone code;
  1. (c)
    s 6.2.1.6.1(1)(i) and (k)(iii) to (ix) and performance outcome PO2(a) and (b) of the Local centre precinct provisions of the Centre zone code;
  1. (d)
    performance outcome PO63(a) of the General residential zone code;
  1. (e)
    with respect to acoustic impacts:
  1. (i)
    s 3.14.5.6(3) of the Strategic framework;
  1. (ii)
    s 6.2.1.6.1(1)(p) and (q)(vii) and performance outcome PO24 of the Local centre precinct provisions of the Centre zone code; and
  1. (f)
    with respect to traffic engineering impacts:
  1. (i)
    s 3.10.2(3), s 3.13.3.4(11) (last sentence), s 3.14.5.6(3), s 3.14.9 (5th para), s 3.14.9.4(6) and (7) of the Strategic framework;
  1. (ii)
    s 6.2.1.6.1(1)(f), (h), (i) and (m)(iii) and performance outcomes PO7, PO16, PO38(a)-(d), PO41 and PO42 of the Local centre precinct provisions of the Centre zone code; and
  1. (iii)
    s 6.2.6.3.1(1)(j)(ii), (iii), (iv) and (v) of the Next generation neighbourhood precinct provisions of the General residential zone code.
  1. [210]
    BGM submits that the departures from the Planning Scheme are a consequence of:
  1. (a)
    unacceptable town planning outcomes;
  1. (b)
    unacceptable architecture and urban design outcomes;
  1. (c)
    a failure to demonstrate that there will be no unacceptable acoustic impacts on nearby residential development or that noise sensitive uses in the proposed development would not be unacceptably impacted by the use of the quarry haul route on Raynbird Road; and
  1. (d)
    unacceptable traffic engineering impacts. 
  1. [211]
    Counsel for BGM did not provide any assistance about the interpretation of the provisions it relies on, other than in relation to the provisions with respect to walkable neighbourhoods, which it dealt with as part of the traffic reasons for refusal. They did not identify the key matters or “themes” that BGM says the provisions raise.  While BGM alleges non-compliance with some provisions that were not in issue in ANH’s appeal about BGM’s proposed development, the same general themes arise.  They again raise two overarching considerations, namely:
  1. (a)
    whether ANH’s proposed development is appropriately located;[65] and
  1. (b)
    whether ANH’s proposed development is appropriately designed.[66]

Will ANH’s proposed development be appropriately located?

  1. [212]
    As I observed in paragraph [42] above, the Planning Scheme does not map the intended location of each new local centre for a next generation neighbourhood.  Rather, it stipulates criteria that guide the appropriate location of such new centres. 

What are the locational requirements in the Planning Scheme?

  1. [213]
    Paragraphs [43] to [45] outline requirements of the Planning Scheme that are relevant to an assessment of ANH’s proposed local centre.[67] 
  1. [214]
    In addition to those considerations, BGM alleges non-compliance with provisions that stipulate:[68]
  1. (a)
    the Centre zone code is to recognise, foster and encourage the development of vibrant, multi-functional centres that form a network within the region to provide enhanced opportunities for land use and transport integration, particularly in respect of active (pedestrian, bicycle) and public transport networks;[69] and
  1. (b)
    all people in the Region have access to a range of travel options that reflect their budget, needs and lifestyle.[70]  This is intended to be achieved by ensuring the planning and development of urban areas supports walking, cycling and public transport.[71]
  1. [215]
    As I have noted in paragraph [46] above, the assessment benchmarks require consideration of whether a proposed new local centre will provide convenient accessibility by motor vehicle and active transport modes at a location that is also conducive to provision of access by public transport (either now or in the future). 

Will ANH’s proposed local centre provide convenient accessibility by motor vehicle?

  1. [216]
    ANH’s site is located at the north-western corner of the Oakey Flat Road and Raynbird Road intersection. The intersection comprises a three-leg roundabout. Oakey Flat Road forms the north-south connections to the roundabout. Proximate ANH’s site, the road is classified as a Council arterial road. The western connection to the roundabout is Raynbird Road. It is identified as an extractive resources transport route (haul route). ANH’s site has frontage of approximately 178 metres to each of Oakey Flat Road and Raynbird Road. The town planners agree that these roads represent the edge of the well-established residential estates to the east and south respectively. 
  1. [217]
    The trade area for ANH’s proposed local centre is the same as that for BGM’s proposed local centre. It consists of two primary sectors and two secondary sectors. The primary west sector incorporates areas generally west of Oakey Flat Road, including land in the Next generation neighbourhood precinct of the General residential zone and the well-established residential development to the south. The primary east sector is generally on the eastern side of Oakey Flat Road and includes well-established residential estates.
  1. [218]
    Having regard to the existing and likely future development of the area, I accept the evidence of Mr Ganly that, in this locality, Oakey Flat Road is the main north-south route through the main trade area and Young Road and New Settlement Road are the main east-west routes. In terms of the primary trade area west, Raynbird Road and Sovereign Drive are the main east-west routes. The evidence of the other economic need experts supports this. The economic need experts agree that ANH’s site is central to the defined trade area given they consider that most people will access the site by car.
  1. [219]
    At the time the first town planning joint report was prepared, ANH’s site did not connect to any residential development. The town planners say it will connect to residential development to the west over time. I accept their opinion. As I have noted in paragraph [82] above, there is likely to be permeability between the Narangba Heights estate and the Satterley land as they are each developed.  In addition, the masterplan for the Narangba Heights estate shows an intention to provide vehicular connection from that estate to Raynbird Road by continuing the construction of Sovereign Drive as a collector road through the estate.  This will enhance the convenience of vehicular access to ANH’s site for residents of the Narangba Heights estate.  Further, by the end of the trial, residential development had been approved and was under construction on the Satterley land.  Vehicular access to that residential development is to be gained from Raynbird Road via a new road adjacent the ANH site.  That new road will also provide vehicular access to ANH’s site.
  1. [220]
    Having regard to the matters referred to above, I am satisfied that ANH’s proposed local centre is located on a site that is central to and conveniently accessible by motor vehicle from the intended catchment.

Will ANH’s proposed local centre provide convenient accessibility by active transport?

  1. [221]
    The Council submits that ANH’s proposed local centre suffers from a lack of meaningful pedestrian and cyclist connections. BGM similarly submits that the location of ANH’s proposed local centre fails to deliver on an important planning policy that development support active transport and walkable neighbourhoods.
  1. [222]
    Currently, ANH’s site has poor pedestrian and cyclist connectivity to its closest communities. None of the experts who address the issue of accessibility by active transport suggest otherwise. Exhibit 66 (and the updated map showing the effect of the approval over the Satterley land) shows the location of paths in the area. It provides photographs of the quality of those paths. It demonstrates the poor connectivity that presently exists. The established residential areas to the east of Oakey Flat Road and to the south of Raynbird Road are relatively impermeable with respect to pedestrian access to the ANH site. As was noted by Mr Pekol and Mr Douglas, they do not include formal pedestrian paths running along or linking to Oakey Flat Road or Raynbird Road.  There are no crossing facilities at the roundabout of Raynbird Road and Oakey Flat Road.  There are also no footpaths presently available along Highlands Drive or New Settlement Road near ANH’s site.  Those footpaths that do exist are small pieces of disconnected path.  Mr Viney accepts that the walking catchment is presently very limited.  In the Town Planning Joint Expert Report, Mr Vann notes that the overall area has significant challenges to its walkability and access by bicycle and public transport arising from historical development patterns that are heavily car dominated in design. 
  1. [223]
    There is also an absence of accessibility for pedestrians from the nearest public transport facilities to ANH’s site.
  1. [224]
    Further, as was observed by Mr Douglas and Mr Schomburgk, the relatively steep topography along Raynbird Road and the Highlands Drive precinct is likely to discourage walking and cycling to and from ANH’s proposed local centre for many of those living closest to it. 
  1. [225]
    ANH does not contest these matters. Instead, it relies on two things. First, the prospect that pedestrian and cyclist connectivity will improve in the future. Second, the car-oriented nature of shopping centres, which it relies on to suggest that the failure to provide convenient accessibility by active transport is not a critical shortcoming.

Is there an appreciable prospect that pedestrian and cyclist connectivity will be improved in the future?

  1. [226]
    ANH’s proposed development provides formal pedestrian footpaths along its Oakey Flat Road and Raynbird Road frontages. Its proposed design also includes pathways connecting the proposed external paths to ANH’s proposed local centre.
  1. [227]
    Mr Douglas says the paths proposed along Oakey Flat Road and along Raynbird Road are too narrow. This issue could be addressed by imposition of a condition by the Council if it so desires.
  1. [228]
    In the Supplementary Joint Report of Traffic Engineers, Mr Douglas also identifies issues with the grading of pathways linking the frontages of ANH’s site to the external path network. The path linking the proposed plaza and Oakey Flat Road is at a 1 in 3 graded slope. The path located near the loading dock is graded at approximately 1 in 10. The path adjacent to the left turn in from Oakey Flat Road lacks detail but appears to reach grades of 1 in 8. ANH’s design does not show any Disability Discrimination Act compliant path linking the proposed development to the external pathway network.  Mr Viney accepts that aspects of ANH’s proposed development, in terms of pedestrian connectivity, are “a little bit untidy”.  However, he believes that it would not be a major operation to design a Disability Discrimination Act compliant walkway near the roundabout.  He also considers that the grade for the access ways with Oakey Flat Road could be made to work.
  1. [229]
    The absence of detailed analysis demonstrating that appropriate grades are achievable is not necessarily determinative. The Court acts on probabilities. Full detailed design is often left for later, once the Court has decided that a proposed development should proceed.  However, some proposed development has to be refused because engineering or other detail to show that design aspects are feasible has not been provided.[72]  The degree of detail and certainty required will depend upon the type of approval sought and the matters of relevance that the decision maker is called upon to assess in granting or withholding approval in the particular case.[73] 
  1. [230]
    In this case, ANH only seeks a preliminary approval. I accept Mr Viney’s evidence about the potential solutions for the path proximate the roundabout and access paths from Oakey Flat Road. It is reasonable to expect that detailed design of those paths would be left to a later stage. However, that is not the only relevant consideration.
  1. [231]
    The provision of pedestrian paths along the frontage of ANH’s site and the prospect of their connection to the proposed local centre by Disability Discrimination Act compliant paths does not demonstrate there is convenient accessibility by active transport to ANH’s site.  As I have noted in paragraph [224] above, ANH’s proposed development is located on a site that presents topographical challenges for active transport.  There is a significant level difference between Oakey Flat Road and the proposed level of ANH’s local centre.  There is also a steep grade on Raynbird Road.  ANH has not demonstrated that the broader topographical challenges presented by its site could be satisfactorily resolved through design in a manner that would encourage access by active transport. 
  1. [232]
    Further, ANH’s proposed pedestrian paths will not of themselves provide any meaningful improvement to pedestrian and cyclist connectivity to existing residential development to the east and south. They would not connect to an existing path network.
  1. [233]
    In the Supplementary Joint Report of Traffic Engineers, Mr Viney suggests that the lack of pedestrian connectivity to the existing residential communities could be addressed by the imposition of conditions. For example, Mr Viney says the Council could impose conditions requiring:
  1. (a)
    a connection between ANH’s site and Needletail Court at an identified crossing point on Oakey Flat Road;
  1. (b)
    a new path on the south-western side of Oakey Flat Road between Raynbird Road and the park opposite Culcross Drive; and
  1. (c)
    a pedestrian path along Raynbird Road between ANH’s site and the intersection with Highlands Drive.
  1. [234]
    In terms of a potential future connection to residential development east of Oakey Flat Road, Mr Douglas expresses concern that it is “tight” in some parts of the road reserve along Oakey Flat Road.  The existing road reserve proximate ANH’s site is 30 metres wide.  ANH proposes to dedicate an additional five metre wide strip.  I accept the evidence of Mr Viney that this provides sufficient width proximate ANH’s site to accommodate cycle lanes and a verge width of 4.5 metres.  I am not otherwise satisfied on the evidence that there is sufficient room within the balance of the Oakey Flat Road reserve to accommodate pedestrian and cycle connections along Oakey Flat Road from Young Road to Settlement Road.  Further, the evidence indicates that connections to existing residential areas east of Oakey Flat Road would require access through land in the Council’s private ownership.  There is no evidence that consent to this would be forthcoming. 
  1. [235]
    In any event, the mere existence of sufficient road reserve width to accommodate pedestrian paths and cycle lanes does not demonstrate an appreciable prospect that pedestrian and cyclist connectivity will improve in the future. There is no certainty the topography would readily allow for the construction of pedestrian paths. There is limited evidence about the topography along Oakey Flat Road and the adjacent land owned by the Council. Mr Douglas describes it as “lumpy” and says that there would need to be “fairly extensive” earthworks to form a decent pathway network along Oakey Flat Road and Raynbird Road.  There is no evidence indicating that the Council plans to commit the necessary resources to such works along this area in the foreseeable future.  Accordingly, there is a considerable degree of doubt attendant whether a connection conducive for use by pedestrians and cyclists would be provided.
  1. [236]
    Mr Viney suggests pedestrian access to the existing residential area to the south-west of ANH’s site could be facilitated by a path on the south-western side of Oakey Flat Road between Raynbird Road and the park opposite Culcross Drive. There is no pedestrian connectivity at present because there is a solid fence between the park and Oakey Flat Road. A gate or opening in that fence would be required to provide connectivity. There is no evidence the Council would allow a break in that fence. There is a perceptible risk it would not because there is a playground within the park adjacent to the fence and Oakey Flat Road is an arterial road and designated quarry haul route. In addition, the evidence does not establish that there is sufficient room within the Oakey Flat Road reserve to accommodate such a path. There is also no evidence about the topography along this section of Oakey Flat Road or between Oakey Flat Road and the park. Accordingly, I have doubt about whether a connection is achievable and, if it is, whether it would be conducive for use by pedestrians and cyclists. 
  1. [237]
    The potential to address accessibility issues by the provision of a pedestrian path along Raynbird Road between the ANH site and the intersection with Highlands Drive is also attendant with considerable doubt. There is no provision in ANH’s proposed design for pedestrians to cross Raynbird Road, nor does the Satterley development make any provision for this. I doubt whether such a connection would be achieved given Raynbird Road’s status as a haul route. Further, a pedestrian path along Raynbird Road between the ANH site and the intersection with Highlands Drive would not address the problems associated with the relatively steep topography along Raynbird Road and the Highlands Drive precinct, which is likely to discourage walking and cycling to and from the centre for many of those living closest to it. 
  1. [238]
    Even if conditions were imposed requiring the construction of the paths identified by Mr Viney, the extent to which that would achieve appropriate active transport connections is hampered by the limitations in the existing established residential areas proximate ANH’s site.  As Mr Pekol stated when asked if he would support the conditions power being used to require ANH to provide some pedestrian linkages:

“Yes, but it can only go – the benefit of that – of any additional pedestrian facilities – concrete footpaths – is going to be limited by the inherent connectivity of those legacy residential developments to the south and to the east of the ANH site. They’re just not set up with the same level of permeability, through block connections – some of these stub roads that you were taking me to in an earlier exhibit. They’re just not set up to allow pedestrians to filter through the network apart from walking on roads.”

  1. [239]
    The responsible authority has provided no comfort that the difficulties identified above could be satisfactorily addressed or that it plans to provide additional infrastructure in this small section of its local government area in the foreseeable future. To the contrary, the Council relies on these difficulties to resist approval of ANH’s proposed local centre. It does so even though Oakey Flat Road is mapped on its Overlay Map – Active Transport as “Primary Active Transport Network”.
  1. [240]
    For the reasons outlined above, I am not satisfied that there is an appreciable prospect that Mr Viney’s suggested connections will be achieved in the foreseeable future.
  1. [241]
    There is greater prospect of connectivity to the emerging residential development to the west. The Satterley development makes provision for a footpath connection from that residential development to ANH’s site. Further, as I have mentioned in paragraph [82] above, I accept that it is reasonable to assume that further pedestrian and cyclist paths will be provided as new development occurs in the Next generation precinct to the west of Oakey Flat Road.  It is likely that such development will include connections between the Narangba Heights estate and the Satterley development. 
  1. [242]
    The establishment of connections to the west does not demonstrate that there will be convenient accessibility. Mr Buckley considers the connectivity provided to the residential development to the west to be at odds with the Planning Scheme requirement for convenient accessibility. He notes that the pedestrian link between ANH’s site and the Satterley development does not even deliver the public to a back door in the proposed local centre. Mr Vann accepts the interface between ANH’s proposed development and the Satterley development is “a little clunky” and that the connection is not ideal.  That evidence demonstrates that the proposed connection is a poor one that does not encourage access to ANH’s centre by active transport. 
  1. [243]
    For the reasons provided above, I am not satisfied that there will be a meaningful improvement in pedestrian connectivity from existing residential areas to ANH’s site in the future. In addition, I am not satisfied that the connections to the emerging residential development will encourage access by active transport. I accept the opinions of Mr Vann and Mr Buckley in this regard. Mr Vann opines that efforts to introduce paths for walking and cycling will struggle to have any significant effect on walkability.  Mr Buckley expresses similar views. 

How important is convenient accessibility by active transport?

  1. [244]
    In its written submissions, ANH accepts that the Planning Scheme seeks quality accessibility in terms of both access by vehicle and access by active transport. However, it submits when catering for the need of the community to be served by a local centre, it is indisputable that the majority of customers will access the centre by car rather than active transport. It notes that there is unanimity between the experts about that.
  1. [245]
    Each of the economic need experts opine that the majority of shoppers to the proposed local centre would visit by car. Mr Schomburgk agrees with the basic proposition that users of the local centre generally would be in cars.  Other users would be in a significant minority. 
  1. [246]
    ANH submits that access via motor vehicle is by far the most important mode of transport in terms of convenience today and into the foreseeable future. In this respect, it relies on the evidence of Mr Ganly that walkability is not a big issue in a market such as this. Mr Duane evidently agrees.  Although walkability may not be a big issue in terms of the economic considerations for a local centre, it does not follow that the proposed local centre’s shortcomings in terms of convenient accessibility by active transport are of little significance.
  1. [247]
    Mr Buckley accepts that if you did a survey across south-east Queensland at this point in time, most people would drive.  However, he notes that in his professional career, shopping patterns have changed.  There was a point in time where everyone was driving.  That was understandable given shopping hours were previously quite restricted.  As shopping hours have expanded, that has eased that pressure.  Mr Buckley notes that over time there has been an erosion of the previous pattern of the weekly shopping trip.  People are visiting the shops several times a week.  That reduces the volume of groceries that shoppers need to carry, as do changing household sizes.  Mr Buckley does not suggest that cars will disappear, but he notes the need to recognise that as the demographics shift in communities, there are variances in access trends.  There are increasing trends for people to walk to centres, particularly in high-density areas.  Mr Buckley notes that when young students are living in walkable communities, they will walk a reasonable distance carrying their groceries in recyclable bags.  I accept Mr Buckley’s evidence. 
  1. [248]
    Mr Buckley also opines that the Planning Scheme is trying to arrest the inevitability of access to local centres being by car. I accept his evidence. Convenient accessibility to local centres by active transport and the creation of walkable neighbourhoods is a recurrent theme in the Planning Scheme.  I accept BGM’s submission that the theme is evident in s 3.10.2(3), s 3.10.4(2), s 3.13.3.4(11), and s 3.14.9.4(6) of the Strategic framework; s 6.2.1.6.1(1)(h) and (i) and performance outcome PO7 of the Local centre precinct provisions of the Centre zone code; and s 6.2.6.3.1(1)(j) of the General residential zone code.  Those provisions of the Planning Scheme seek outcomes that include:
  1. (a)
    ensuring that the planning and development of urban areas supports walking, cycling, and public transport;[74]
  1. (b)
    seeking development that promotes walking and cycling;[75]
  1. (c)
    requiring the location of local centres on central intersections that have “good accessibility and visibility, in locations that support active transport”;[76]
  1. (d)
    requiring local centres to locate to “create a series of 15 minutes walkable neighbourhoods”;[77]
  1. (e)
    requiring development to provide improvements to support active transport usage and to contribute to improved pedestrian connectivity and walkability between key destinations;[78]
  1. (f)
    requiring development to provide pedestrian connections to integrate the development with the street, public spaces and the surrounding areas;[79] and
  1. (g)
    requiring the design, siting and construction of non-residential uses provide attractive, active frontages that maximise pedestrian activity along road frontages, movement corridors and public spaces and promote active transport options.[80]
  1. [249]
    Other provisions that apply to land in the Next generation neighbourhood precinct reinforce the focus on promoting active transport in this precinct.[81]
  1. [250]
    These provisions do not simply require new local centres provide paths to facilitate connection. They encourage them to establish in a location that will promote active transport.
  1. [251]
    The development of active transport options and the creation of walkable neighbourhoods is a planning strategy that permeates all levels of the Planning Scheme. It features in many of the “Themes” in the Planning Scheme, which together articulate the Council’s complete policy direction.[82] 
  1. [252]
    The Planning Scheme explains the rationale for, and the importance of, this planning strategy. It is a strategy that responds to the Council’s identified need to adopt a new approach to planning for and managing growth, given the strain population growth places on infrastructure networks and facilities.[83]  It is also a planning objective directed at achieving strong communities with social interaction and a community identity. 
  1. [253]
    The Council’s vision for the region is supported by its planning scheme policies. Section 3.1 of the Integrated Design Planning Scheme Policy records that the Strategic framework in the Planning Scheme has set a new vision for the Moreton Bay Region that will allow future generations to live, work and play within the local government area. It explains that at the heart of the vision is the desire for walkable communities. It speaks of the need to foster the creation of living streets and public spaces that actively encourage healthy lifestyles, economic prosperity, and environmental stewardship. It notes that to meet the challenge, there is a need to transform streets so that they no longer purely serve the needs of those confined to vehicles.
  1. [254]
    The support for the walkable communities planning strategy that is provided by Integrated Design Planning Scheme Policy is multi-faceted. It recognises that the provision of connected paths alone will not suffice. The amenity of the street must also be addressed through measures such as activation, landscaping and the incorporation of water sensitive and climate responsive design. 
  1. [255]
    Having regard to the matters referred to in paragraphs [248] to [254] above, I accept Mr Buckley’s evidence that the Planning Scheme is seeking to achieve a structural shift away from car-dominated travel patterns.  The requirement that new local centres be located to provide convenient accessibility by active transport is part of that structural shift. 

Conclusion regarding convenient accessibility by active transport?

  1. [256]
    For the reasons outlined above, I accept that, to the extent it can despite the inherent constraints of the site, ANH’s proposed development will comply with the requirement in s 6.2.1.6.1(i) of the Local centre precinct provisions of the Centre zone code to provide pedestrian connections that integrate with the street. I am not satisfied ANH’s proposed local centre is at a location, and has a design, that will provide acceptable accessibility by active transport from existing or developing residential areas. I am not satisfied that it complies with the active transport and walkable neighbourhood requirements in s 3.6.2 (introductory paragraph), s 3.6.2(6), s 3.13.3.4(11), s 3.14.9 and s 3.14.9.4(6) of the Strategic framework and s 6.2.1.2(4)(c) of the Centre zone code.  As such, ANH’s proposed local centre works against the structural shift to walkable communities sought to be achieved in the Next generation precinct.

Will ANH’s proposed local centre be at a location that is conducive to provision of access by public transport?

  1. [257]
    The nearest existing bus stop is 650 metres from ANH’s site. It is near the intersection of Florence Court and Rifle Range Road. The site is poorly connected to that bus stop, as there is no usable pedestrian or cycle route between ANH’s site and that bus stop.
  1. [258]
    In the Joint Report of the Traffic Engineers, Mr Viney and Mr Douglas express the view that there are suitable locations closer to ANH’s site to construct a bus stop. Mr Pekol disagrees.  He does not consider that ANH’s site could be conveniently serviced by public transport. 
  1. [259]
    In its amended design, ANH proposes an indented bus lay-by on Oakey Flat Road, towards the northern end of the site frontage. Mr Pekol considers that the design would compromise the safety of public transport users to an unacceptable degree. He notes that traffic lanes on three sides surround the proposed bus indent bay.  This would unnecessarily expose persons waiting at the bus stop to traffic passing from three different directions.  Bus passengers would also be required to cross the site entry/exit lanes to access the site, without the aid of a priority crossing.  Once on-site, pedestrians are not provided with a dedicated or priority route to the plaza entry.  This means they will meander through the busiest part of the car park, increasing vehicle and pedestrian conflicts.  There was no challenge to these aspects of Mr Pekol’s evidence.  They indicate that the design is not compliant with various provisions of the Planning Scheme that require development not cause unacceptable traffic impacts.  One such provision is s 6.2.6.3.1(l)(iii), which requires that general works associated with the development not result in unacceptable impacts on the capacity and safety of the external road network. 
  1. [260]
    Mr Douglas also suggests that the bus lay-by shown on ANH’s proposed plans is unacceptable. He says parked buses will obscure sight lines for vehicles exiting ANH’s site. During cross-examination, Mr Viney expressed the view that this could be addressed by paint marking on the ground so that a petrol tanker would exit at a 45-degree angle and a car would exit at a 90-degree angle. It is not clear how a car would know that it is to stop at a 90-degree angle based on paint markings when the driveway is otherwise angled to permit a petrol tanker to exit at a 45-degree angle.
  1. [261]
    In addition to the issues with the design shown on ANH’s proposed plan, Mr Pekol notes that there is no provision for a bus stop on the opposite side of Oakey Flat Road catering for southbound buses.  ANH does not propose a priority pedestrian connection between its site and opposite side of Oakey Flat Road, should others provide a southbound bus lay-by at some time in the future.
  1. [262]
    Further, while Raynbird Road has greater scope for a bus indent bay, there is a level difference in the order of seven metres between Raynbird Road and the supermarket. This would prove challenging for pedestrians.
  1. [263]
    I accept that there are issues with the present design shown on ANH’s proposed plan and an absence of current provision for a bus lay-by proximate ANH’s site. I do not accept the Council’s submission that these matters demonstrate that it is highly doubtful that an indented bus lay-by could be located adjacent ANH’s site.  Although ANH’s proposed plan shows the location of a bus set down area, as it is not on ANH’s site, I consider the notation indicative only.  The location of a bus set down area is a matter that will ultimately be determined by the relevant authorities (i.e. Translink and the Council).  As such, these difficulties may not need to be resolved.  Alternatively, they may be able to be resolved during detailed design. 
  1. [264]
    ANH’s proposed local centre is proposed on a central intersection and a main through road in the locality. While there is currently no bus stop on Oakey Flat Road, it was not suggested that there was some attribute of the road that would inhibit the provision of a bus stop proximate ANH’s site in the future. As such, the siting of ANH’s proposed local centre on Oakey Flat Road proximate emerging residential development is sufficient to demonstrate that it is at a location that is conducive to future provision of access by public transport.

Conclusion regarding the appropriateness of the location of ANH’s proposed local centre

  1. [265]
    For the reasons set out above, I am satisfied that ANH’s proposed centre is located on a site that is central to, and conveniently accessible by motor vehicle from, the intended catchment. I am also satisfied that its siting on Oakey Flat Road proximate emerging residential development demonstrates it is at a location that is conducive to future provision of access by public transport.  However, I am not satisfied ANH’s proposed local centre is at a location, and has a design, that will provide convenient accessibility by active transport from existing or developing residential areas.  Although the majority of customers are likely to access the proposed local centre by car, ANH’s proposed local centre is not well located to encourage a shift to greater access by active transport.  The combination of matters set out in paragraphs [222], [224] to [231] and [234] to [256] above do not support a conclusion that ANH’s proposed local centre is appropriately located.

Will ANH’s proposed development be appropriately designed?

  1. [266]
    BGM submits that ANH’s proposed local centre is the antithesis of what is sought in the planning scheme in that:
  1. (a)
    it is a parking lot dominated centre;
  1. (b)
    there are no effective active frontages (due to topography, design issues and significant retaining walls);
  1. (c)
    there are no tenancies addressing the street front and no surveillance;
  1. (d)
    there is no design attempt to address the existence of the quarry route (which inhibits activation and the ability for the development to act as a pleasant focal point for community interaction); and
  1. (e)
    there are significant issues with walkability between ANH’s proposed local centre and the community it is intended to serve.

What are the design requirements in the Planning Scheme?

  1. [267]
    The provisions of the Planning Scheme relied on by BGM include some of those provisions considered in paragraphs [88] to [99] above.  In addition, BGM alleges non-compliance with other provisions, which stipulate:
  1. (a)
    new local centres are to be designed to have high quality urban design outcomes;[84]
  1. (b)
    the design, siting and construction of buildings within a local centre are to:
  1. (i)
    contribute to a high quality centre consistent with the desired character of the centre and surrounding area;
  1. (ii)
    maintain a human scale through appropriate building heights and form;
  1. (iii)
    be centered around a main street;
  1. (iv)
    provide attractive, active frontages that maximise pedestrian activity along road frontages and public spaces;
  1. (v)
    provide for active and passive surveillance of the public spaces, road frontages and movement corridors;
  1. (vi)
    not result in internalised shopping centres with large external blank walls and tenancies only accessible from within the building;
  1. (vii)
    locate tenancies at the street with car parking at the rear;
  1. (viii)
    ensure expansive areas of surface car parking does not dominate road frontages or public spaces;
  1. (ix)
    ensure parking, manoeuvring and servicing areas are designed, located and aesthetically treated to not be visually dominant features from the streetscape and public spaces;
  1. (x)
    include buffers or other treatment measures to respond to the interface with residential zoned land;[85]
  1. (c)
    development is to address and activate streets and public spaces by:[86]
  1. (i)
    establishing and maintaining interaction, pedestrian activity and casual surveillance through appropriate land uses and building design (e.g. the use of windows or glazing and avoiding blank walls with the use of sleeving);
  1. (ii)
    ensuring buildings and individual tenancies address street frontages and other areas of pedestrian movement; and
  1. (d)
    non-residential uses address and activate streets and public spaces by ensuring buildings and individual tenancies address street frontages, civic space and other areas of pedestrian movement.[87]
  1. [268]
    BGM’s submissions on these allegations were of no assistance. The only evidence referred to in the submissions was the plan depicting the development, evidence of Mr Lynch during examination in chief, and the conclusions expressed by Mr McGowan in his individual statement of evidence about ANH’s original proposed development.  The submissions do not contain any analysis of the relevant evidence.  They do not identify how the very limited evidence to which they refer demonstrates non-compliance with the provisions of the Planning Scheme as alleged.  They do not address why the evidence referred to should be preferred to other evidence.  Rather, BGM’s submissions seek to establish the alleged non-compliances by making bald assertions that repeated, or in some instances misstated the effect of, the Planning Scheme provisions relied upon.  Submissions of this nature do not assist.  BGM’s failure to address or analyse the evidence in a meaningful way on the design issues[88] left me with the time-consuming task of attempting to ascertain why the evidence highlighted by BGM should be preferred over the substantial body of evidence given on the issue.  Most of the oral evidence was given in June 2018, prior to ANH’s change to its proposed development.
  1. [269]
    The Council also submits that ANH’s proposed local centre results in unacceptable architecture, urban design, and visual amenity outcomes and therefore departs from various planning scheme provisions. It submits that the key outcomes sought by the relevant provisions are a predominantly main street format, active frontages, a design that avoids visually dominant carparks and enclosed formats and a design that provides attractive, high amenity, activated public spaces. This is a fair summary of the issues. The Council in its submissions helpfully addressed each of these outcomes.

What are the general design features of ANH’s proposed local centre?

  1. [270]
    The proposed design of ANH’s local centre is depicted in two plans that form Exhibit 111. In addition, although based on an earlier plan, a visual perspective at page 11 of Exhibit 25 provides a general representation of the proposed local centre. The drawings forming Exhibit 111 provide details of the size and proportions of the various tenancy areas, the location and general dimensions of the open-air plaza area and the areas proposed for outdoor seating and outdoor dining. They also identify the proposed pedestrian access links from Oakey Flat Road and Raynbird Road. They provide the proposed site levels across the site. The plans give an impression about the likely extent of glazing and blank walls. They do not provide detail of the architectural finishes proposed, the extent of cover proposed for the pedestrian access links, proposed surface finishes, furnishings and landscaping, or the architectural treatment of proposed amenities and service areas.
  1. [271]
    The plans show that ANH’s proposed local centre consists of a large building in the south-eastern corner of the site and a small building in the northern corner of the site proximate the Oakey Flat Road frontage. The large building is to contain a full-line supermarket, medical centre, gym, and shops. The smaller building is to contain a service station and fast food outlet. The architects explain that the large supermarket-building envelope will be recessed into ANH’s site. This will reduce the impact of its height, bulk and scale on the neighbouring road and the Satterley development. The supermarket-building envelope will also be concealed from the internal access roads by the specialty shops, medical centre, and gym.
  1. [272]
    ANH proposes three vehicular crossovers along the Oakey Flat Road frontage to facilitate all turns ingress to the site and left-out egress. It also proposes vehicular access to the rear of the site via an all-turns intersection with Raynbird Road and the new road that will provide access to the Satterley development. The majority of the carparks are proposed to the north of the supermarket building, with additional carparks extending to the west adjacent the medical centre and gym.

Will ANH’s proposed local centre be in a predominantly main-street format?

  1. [273]
    The Council submits that ANH’s proposed local centre does not meet the main street criteria set out in the Centre and Neighbourhood Hub Design Planning Scheme Policy for two reasons. First, the Policy discourages location of a main street on an arterial or sub-arterial road. That part of Oakey Flat Road adjacent ANH’s site is mapped as a Council arterial road. Although Raynbird Road is not an arterial or sub-arterial road, it is a designated haul route and ANH’s proposed local centre turns its back on that road. Second, the Council submits ANH’s proposed local centre does not achieve any activation towards either road.
  1. [274]
    The architects agree that ANH’s proposed local centre is not designed or centred around a public road that may be considered a “main street”.  I accept their evidence. 
  1. [275]
    The main street format requirement relates to the experience the centre provides to pedestrians in terms of the level of activity, vibrancy, and “walkability”.  The extent of active frontages is relevant in this regard.
  1. [276]
    ANH’s site has a frontage of about 178 metres to each of Oakey Flat Road and Raynbird Road. It also has frontage to the road being constructed to provide access to the Satterley development. A pedestrian footpath is proposed along about two thirds of the Oakey Flat Road frontage, as well as along the entire frontage to Raynbird Road and the Satterley development access road. These footpaths do not assist in creating a “main street” design as, for reasons explained in more detail below, there is little opportunity for interaction between the proposed footpaths and the local centre.
  1. [277]
    Along the Satterley development access road, the pedestrian environment will be strongly influenced by the adjacent service area. The footpaths in this area skirt the proposed supermarket loading dock, and standing bays for other vehicles servicing the development. Mr Vann describes the area as “clunky” and concedes that it is “not what you’d ideally want to design”.
  1. [278]
    There will be no activity or vibrancy associated with the centre along the footpath on Raynbird Road. Mr Vann accepts that ANH’s proposed local centre “turns its back” (or side) on Raynbird Road.  ANH’s design has no tenancies facing Raynbird Road and makes no provision for surveillance of the area.  Along that frontage, the bulk of the building is cut down below the level of the adjoining footpath.
  1. [279]
    The possibility for interaction arises at the corner of ANH’s site adjacent the roundabout intersection of Raynbird Road and Oakey Flat Road. At that corner, ANH proposes a plaza area and two shop tenancies, being 280 square metres and 385 square metres respectively. There is potential for those shop tenancies, and the plaza area adjacent them, to address about one third of the Oakey Flat Road street frontage. Mr Peabody opines that the retail presence at the intersection of Oakey Flat Road and Raynbird Road will create a sense of visual and physical connection that will enhance the activation of the centre. I accept this is a positive feature of the design. However, two factors detract from the local centre’s ability to successfully generate activity and encourage interaction and “walkability”.  First, the shops face Oakey Flat Road, which is an arterial road.  As Mr Vann explains, Oakey Flat Road is not the type of road that encourages activity and interaction.  Its function is to cater to through traffic, not local traffic.  Second, as has already been discussed above, ANH’s site is not well located for access by active transport.
  1. [280]
    Once one passes the shops proximate the corner of Oakey Flat Road and Raynbird Road, the topography and proposed finished levels of the development preclude interaction. Exhibit 140, prepared by Dr Johnson, contains sections along the Oakey Flat Road frontage.  They demonstrate the extent of level differences between the street and that part of the site occupied by the service station and fast food outlet.  The level differences exceed four metres.
  1. [281]
    Mr McGowan describes the overall difficulties with ANH’s proposed local centre well. The topography of ANH’s site and the centre’s design do little to facilitate and foster opportunities for formal and informal social and economic exchange along external road frontages.  As such, the capacity of ANH’s proposed local centre to serve as a focal point is challenged by the fact that, apart from at the roundabout, it would not present a vibrant and activated frontage to its external setting.  The buildings (and now the acoustic barriers) and parking areas are likely to be elevated above or sunken below street level and the supermarket and shops appear to turn their back to the street. 
  1. [282]
    Having regard to the evidence referred to above, the proposed development does not comply with the various assessment benchmarks that require a design centred around a main street. Despite this, the architects consider that the internal road network (and associated car parking areas) and the adjoining retail tenancies offer opportunities for formal and informal social and economic exchange framed within the realm of a civic space. I accept their opinions. They accord with the features of the design apparent from the drawings.[89] 

Will ANH’s proposed local centre have active frontages and street-fronting retail?

  1. [283]
    The extent of street-fronting retail and activation to the street informs the extent to which a development might provide a vibrant and attractive centre and create an environment that encourages access by active and public transport. For reasons provided in paragraphs [279] to [281] above with respect to the provision of a “main street” design, I accept ANH’s proposed local centre will create a retail presence at the intersection of Oakey Flat Road and Raynbird Road.  However, I do not consider that it will encourage access by active transport to any significant degree.
  1. [284]
    I accept that the Planning Scheme’s requirement for “active frontage” is not exclusively about interface with the street network.  The Planning Scheme intends buildings be designed and oriented to ensure interactivity and to encourage cross-movement between the public and private domains.  Blank walls and façades are to be avoided.  Development is to provide for a variety of activities to occur along the building front. 
  1. [285]
    ANH’s proposed local centre is not an internally focussed shopping centre. As the architects explain, ANH’s proposed local centre is designed with specialty retail tenancies opening onto continuous covered external footpaths adjoining the internal road network and car parking spaces. I accept the unchallenged joint opinion of the architects that the interface between the retail building and the internal road network and continuous pedestrian walkway in ANH’s proposed local centre would achieve desirable active frontages and streetscapes within the development. The activation provided within the site is assisted by the proposed plaza.
  1. [286]
    There is limited opportunity to observe the activation and centre vibrancy created by the interface between the retail building and the internal road network from the surrounding local area because of the topographical constraints that I have already described. The only section of street frontage that is activated is proximate to the Oakey Flat Road and Raynbird Road roundabout. For reasons detailed at paragraphs [297] to [299] and [306] to [309] below, I accept that the activation at the corner of Oakey Flat Road and Raynbird Road would present an attractive and quality design outcome.  However, activation of that area is not likely to provide significant encouragement for access by active transport due to the locational constraints identified in paragraphs [222] to [243] above and for the reasons identified in paragraphs [279] and [281] above.
  1. [287]
    For the reasons provided above, ANH’s design is consistent with Council’s policy to encourage vibrant and attractive centres that promote social interaction and community identity (to the extent that it achieves those matters on-site), but the presentation to the street will do little to encourage access by active transport.

Will ANH’s proposed local centre avoid a parking-lot dominant retail format?

  1. [288]
    The Planning Scheme seeks to avoid parking, manoeuvring, and servicing areas that are visually dominant from the streetscape and from public spaces.
  1. [289]
    BGM submits ANH’s proposed local centre will have expansive areas of surface parking dominated road frontages and that the parking will be the visually dominate feature. It does not identify evidence that substantiates its allegations.
  1. [290]
    The Council submits that the streetscape of ANH’s proposed local centre will be dominated by carparks and manoeuvring area. It relies on Mr Buckley’s opinion that the proposed plans show a car-dependant concept that dominates the environment on site. The Council also relies on Mr Lynch’s opinion that:

“The overall design is a repetition of a layout first conceived in the early 1970’s which co-locates a Full-Line Supermarket with supporting Specialty Shops, and in this case with the addition of a Medical Centre, Gym and Fuel and Fast Food Outlet. It creates an internally focussed outcome with the Supermarket and Shops opening on to a large carpark which is clearly visible and accessible from the road customers gain access from. Sensibly, the Fuel and Fast Food Outlet are also clearly seen and accessible from the access road, in this case being Oakey Flat Road. The overall layout is not compatible with the intent of the Planning Scheme with respect to addressing the issues of Main Street Core, Public and Civic Spaces, Active Frontages, Streetscapes and Pedestrian Connectivity.”

  1. [291]
    I accept that as customers drive up the access ramp from Oakey Flat Road and onto the site, the carparks dominate the environment. However, I do not accept that the parking will be visually dominant from Oakey Flat Road. As was acknowledged by Mr McGowan during cross-examination, the car parking area sits above Oakey Flat Road. It is the vehicle access and acoustic barriers associated with the proposed development that will be seen from Oakey Flat Road. In addition, there is between five metres and more than ten metres from the proposed new boundary of Oakey Flat Road to the car parking. I accept the evidence of Mr McGowan that there would be space for landscaping in that setback.  Due to the absence of detailed design of matters such as appropriately graded access pathways, the extent of landscaping that will be incorporated is unclear.  Despite that, I accept that the space is sufficient to ensure that the car parks will not visually dominate Oakey Flat Road.  The car parking will also not be visible from Raynbird Road as it will be behind the landscaped interface and set down from it.
  1. [292]
    I am satisfied that the parking, manoeuvring and servicing areas will not be visually dominant from the streetscape.

Will ANH’s proposed local centre provide quality urban design outcomes and attractive, high-amenity public spaces?

  1. [293]
    BGM’s reasons for refusal include provisions of the Planning Scheme that require a new local centre to provide quality urban design outcomes and attractive, high-amenity public spaces. BGM’s submissions do not address how the evidence supports its allegations of non-compliance. The submissions quote the following conclusions expressed by Mr McGowan in his individual expert report:

“a) the proposed supermarket box and shops will form a hard edge to Raynbird Road and are likely to turn their back to the road, thereby resulting in a poor contribution to the quality of the local visual environment and to the character of the area;

b) the presentation to Oakey Flat Road comprises an expansive entry/exit arrangement, with parking (and now acoustic barriers) likely to be set atop retaining walls, as well as the hardstand over the proposed fuel outlet – all of which constitutes a poor contribution to the quality of the local visual environment and to the character of the area;

d) the capacity of the proposal to serve as a focal point is challenged by the fact that it would not present particularly well to its setting, with the buildings (and now the acoustic barriers) and parking areas likely to be elevated above or sunken below street level and the supermarket and shops appearing to turn their back to the street;

e) the proposal does not incorporate attractive, high quality, high amenity public spaces particularly because the primary spaces are generally located near the round-about intersection at Oakey Flat Road and Raynbird Road – to busy roads, with Raynbird Road and the round-about accommodating frequent heavy vehicle traffic;

g) the proposed development presents retaining walls and/or blank walls (and now acoustic barriers to the adjacent streets), which constitutes a poor visual amenity outcome.

I ultimately maintain the view that these concerns are significant enough to warrant refusal of the ANH proposal.”

  1. [294]
    Those conclusions related to ANH’s original application, not the changed proposal that I must now consider.
  1. [295]
    BGM’s submissions do not explain why these conclusions from Mr McGowan’s report are quoted. It seems that BGM principally relies on them to support its allegations of non-compliance with the Planning Scheme requirements that local centres provide quality urban design outcomes and attractive, high-amenity public spaces. BGM’s submissions fail to address why this evidence from Mr McGowan should be accepted despite concessions he made during cross-examination and in preference to his more recent evidence in the Second Visual Amenity Joint Expert Report.  The more recent report related to ANH’s amended development proposal.
  1. [296]
    I accept that the plans demonstrate that ANH’s proposed supermarket box and shops will turn their back to Raynbird Road.  They also show that there will be an expansive entry/exit arrangement along Oakey Flat Road, with parking and acoustic barriers set atop retaining walls.  For reasons already explained, I also accept that the capacity of ANH’s proposed local centre to serve as a focal point is challenged by the fact that the buildings (and now the acoustic barriers) and parking areas are likely to be elevated above or sunken below street level and the supermarket and shops turn their back to the street.  I do not otherwise accept Mr McGowan’s opinions from his individual expert report. 
  1. [297]
    Subsequent evidence given by Mr McGowan detracts from the opinions he expresses in his first individual report about the poor visual amenity outcome. For example, in the Second Visual Amenity Joint Expert Report Mr McGowan volunteers that, in terms of the plaza area, further design could enhance the quality of those spaces.  In addition, during cross-examination, Mr McGowan explained that things such as furnishing, screens and landscaping in the plaza area could easily be implemented to make the amenity of those spaces more interesting and comfortable.  Further, while ANH’s proposed plans do not contain details of the landscape treatments, Mr McGowan accepts that appropriate treatments could readily be implemented.  The absence of the detail is not determinative given the application was one for preliminary approval only.
  1. [298]
    I am satisfied that ANH’s proposed development complies with the relevant assessment benchmarks with respect to the provision of quality urban design outcomes and attractive, high-amenity public spaces for six reasons.
  1. [299]
    First, I accept the evidence of Mr Peabody that ANH’s proposed local centre would provide a cohesive, connected and easily legible shopping centre arrangement.  The location of the medical centre and gym along the north-west elevation would ensure that those uses remain part of the centre, whilst offering a slight distinction in functional use, and avoiding interruption of the line of retail frontage.  Mr Lynch also expresses support for the quality of the design outcomes on-site.  During cross-examination, Mr Lynch acknowledged that ANH’s proposed local centre presents as an attractive development that is a sensible response to site constraints.  He accepts that the sleeve of shops that continues from the north-eastern corner of the supermarket to the plaza areas has clear potential to provide an attractive, active area.  Further, as Mr Peabody explains, ANH’s proposed development would provide convenient and easily accessed public carparks, with easily traversed on-site pedestrian paths to the continuous covered pedestrian walkway in front of the supermarket, shops, medical centre, and gym.  The shops located on the eastern corner of ANH’s site would provide a visually inviting sense of arrival and address when approaching the roundabout by car.  Mr Lynch accepts that the design provides an efficient car parking layout and that it would achieve acceptable active and passive surveillance of roads, corridors, and public spaces.  As such, ANH’s design would result in a cohesive suburban shopping centre.  It would provide clear, safe, and direct access to all retail facilities in the main building from a continuous north facing pedestrian pathway. 
  1. [300]
    Second, the evidence of Mr Peabody satisfies me that the design appropriately achieves a human scale. As was well explained by Mr Peabody, the aerial visual representation of the development at page 11 of Exhibit 25A does not reflect how an individual would perceive the development.  I accept his evidence that although there is articulation and additional height in the parapets that identify the location of the supermarket entrance and the plaza areas, the design successfully achieves a human scale along the covered walkways.  Along those walkways, the awnings are approximately four metres in height.  The introduction of landscaping in the plaza that is central to the covered walkway area will also achieve a human scale to the development.
  1. [301]
    Third, the proposed location of ANH’s supermarket adjacent the Raynbird Road frontage recesses the blank walls of the building behind terraced retaining walls that would provide a tiered landscaped buffer. I accept the evidence of Mr Peabody that although the landscaped buffer does not provide an active frontage, it represents an attractive outcome that mitigates the undesirable impact of a continuous “blank walk” fronting Raynbird Road.  The landscaped buffer zone along Raynbird Road tapers down to a narrower width where the scale of the building is smaller and where there is practical opportunity for activation.  This is towards the corner of Raynbird Road and Oakey Flat Road, where the shops start to address the street frontage.
  1. [302]
    In the Second Visual Amenity Joint Expert Report, Mr McGowan accepts that landscaping could screen part of the built form and improve the interface with Raynbird Road. However, he is of the view that it is unclear how viable and effective such landscaping would be given the lack of detailed design on that issue and other issues such as traffic engineering. He opines that there is a reasonable risk that sufficient landscaping could not be accommodated. I am not persuaded that the lack of detailed design with respect to this issue warrants refusal of the application for a preliminary approval. It is important to bear in mind that the impact sought to be ameliorated is not an impact on residences that overlook the area. It is the impact on motorists who might catch glimpses of the building as they travel along Raynbird Road. It is also the impact on pedestrians or cyclists (to the extent that there are pedestrians and cyclists who might choose to traverse the area despite the features that make the area less than ideal for their use). To the extent that people might glimpse the walls or roof of the supermarket, the visual impact would not be jarring because of the emerging visual character along that road. Development is typically set down from, and turns its back on, the road. Acoustic fences or walls are also a persistent component of the existing and emerging character.
  1. [303]
    Further, I accept the evidence of Mr Powell that the topography is likely to screen views of the proposed buildings from vehicles travelling along the road and that even modest shrubs of less than a metre in height will ensure positive visual screening and softening. Mr Powell’s opinions on that issue are well explained by reference to diagrams and photos. I also accept Mr Powell’s opinion that there will be sufficient room available for landscaping along Raynbird Road. His opinion is supported by a cogent explanation about the potentially available terrace widths and the Council’s standards for landscaped terraces. I find Mr Powell’s opinions on these issues compelling.
  1. [304]
    Fourth, the architects agree that ANH’s proposed local centre offers opportunities for public and civic spaces within the development. There are informal spaces along the north facing continuous and uninterrupted covered pedestrian walkway. The design also includes distinctive public and civic spaces. Mr Peabody identifies three “civic nodes” that create a main street link, visually and physically, from the roundabout intersection to the supermarket entry. 
  1. [305]
    Fifth, in terms of the amenity of the plaza itself, BGM submits that it is fanciful to suggest that active street frontage is provided by the prospect of café patrons sitting adjacent to or nearby the roundabout that forms part of a quarry haul route. It submits the area will have an unpleasant amenity because of the levels of traffic on the quarry haul route and the arterial function of Oakey Flat Road. The submission was not supported by references to evidence. These aspects certainly present a challenge. However, I do not accept that the amenity will be unpleasant nor that these matters demonstrate a failure to provide a quality urban design outcome and attractive, high amenity public spaces. The evidence in this regard does not support BGM’s submissions.
  1. [306]
    As I have already noted in paragraph [297] above, Mr McGowan accepts that the quality of the outcomes provided by the proposed civic spaces could readily be enhanced through further detailed design.  Mr Powell considers that the public spaces at the eastern part of the ANH site allow patrons to choose whether they enjoy the north-easterly aspect nearest the roundabout, the northerly aspect from the internal plaza, or the more shaded areas between the buildings.  He says this is a positive design outcome.  I agree.  Mr Powell also notes that the eastern most point of the shops is about a metre below ground level.  As such, with a small low-height fence and some vegetation planting, Raynbird Road could be screened, while maintaining an open area to the west and exposure to views to the north.  Patrons could make an informed decision as to whether they sat with their back against that screening or on the western side where they would have a northerly aspect and be more than 30 metres from the roundabout.  Mr Powell’s evidence on these issues demonstrated a command of the positive attributes and constraints of the area and how landscape design could address the constraints to provide positive design outcomes.  I found his evidence compelling.
  1. [307]
    I also accept Mr Powell’s description of the amenity of the north-easterly aspect of ANH’s plaza.  He describes the location as a well-treed outlook.  Mr Powell explains that the plaza has a good aspect for passive solar design of outdoor spaces.  He considers that it presents quite an attractive visual outlook.  Mr Powell also opines that, given the nature of the use of the site (i.e. a shopping centre with carparks), people attending the centre would be less sensitive towards seeing vehicles from outdoor spaces. 
  1. [308]
    Mr Powell’s descriptions of the area accord with other evidence. Photographs of the area show there are substantial trees in the road reserve around the Raynbird Road roundabout. Mr McGowan also gave evidence that the location could be fairly described as somewhat of a vegetated corridor and accepts that the general location of the plaza enjoys a pleasant outlook.  Although there will be heavy trucks nearby, Mr McGowan acknowledges that it is common for coffee shops and cafés to have outdoor dining areas which face relatively busy roads, including more urbanised and developed roads than the Raynbird Road roundabout locality.  Mr Vann describes the areas as one having quite a lot of vegetation.  He considers it “quite a pleasant spot”.  He notes that traffic on Oakey Flat Road tends to slow down for the roundabout in that location.  
  1. [309]
    Sixth, I am satisfied that the setbacks to carparks along the Oakey Road frontage are generous enough to allow for a combination of retaining structures, batters and landscaping to visually soften the proposed development and create an attractive, semi-formal green landscaped edge. I accept Mr Powell’s opinions in this regard. During cross-examination on the issue, he again demonstrated a commanding knowledge of the existing design parameters and how further detailed design could provide a quality urban design outcome. He accepts that the outcome would not be an active frontage but says it would be attractive.
  1. [310]
    Overall, I am satisfied that an appropriate landscape design could be achieved. With such a design, ANH’s proposed local centre would provide high amenity public spaces and achieve a positive urban design outcome.

Conclusion regarding the appropriateness of the design of ANH’s proposed local centre

  1. [311]
    For the reasons outlined above, I am satisfied that the design of ANH’s proposed local centre will result in a vibrant and attractive centre that promotes social interaction and community identity within the site itself. The design of ANH’s proposed local centre also makes a concerted effort to work with the constraints of ANH’s site to provide some active frontage. However, given the constraints of the site, ANH’s proposed local centre impresses me as one that is more suited to access by car. It does not achieve the “main street” format or the extent of street-fronting retail activation that the Planning Scheme encourages.  It does not achieve an active frontage that would encourage walkability in any meaningful way.

Will ANH’s proposed development result in unacceptable acoustic impacts?

  1. [312]
    BGM originally alleged that ANH’s proposed development does not comply with 13 provisions of the Planning Scheme because of acoustic impacts. On the final hearing day, during its oral submissions, BGM amended its reasons for refusal to raise the following allegation:

“In the exercise of the Court’s discretion to approve or refuse the proposed development it is relevant that ANH has failed to demonstrate:

A. that unacceptable acoustic impacts will not be caused by the proposed development on lots in the Satterley development, up to 12m and 4 storeys in height (consistent with the Height Overlay in the planning scheme); and

B. that “noise sensitive uses” in the ANH development would not be unacceptable impacted on by the use of the quarry haul route on Raynbird Road.

In such circumstances, it has not been demonstrated that the ANH development complies with the following provisions of the planning scheme:

  1. (a)
     Strategic Framework – s.3.9.4(1), s3.14.5.6(3);
  1. (b)
     Local Centre Precinct – s.6.2.1.6.1(1)(d), (o), (p), (q)(vii), PO23, PO24
  1. (c)
     General Residential Zone Code – s.6.2.6.3.1(1)(n), (o), (q), PO11, PO12”
  1. [313]
    BGM abandoned reference to non-compliance with s 6.2.1.6.1(1)(n) of the Local centre precinct provisions of the Centre zone code and s 6.2.6.3.1(1)(m) and performance outcomes PO13 and PO74 of the General residential zone code. 
  1. [314]
    After the conclusion of the hearing, BGM delivered a further amended list of disputed issues, further narrowing the issues it says the Court must consider.[90]  It now says that there is no need to consider any of the allegations of non-compliance if the Court is of the view that ANH has appropriately demonstrated those two matters referred to in paragraphs A and B of the acoustic issues above. 
  1. [315]
    At the time BGM delivered its further issues document, ANH had already provided written submissions addressing each of the originally alleged non-compliances. It is apparent from ANH’s written submissions that if ANH can demonstrate the two issues now identified by BGM as the key issues, it can discharge its onus with respect to each of the provisions that BGM had identified in its earlier iteration of the disputed issues. As such, BGM’s concession in the document delivered 20 May 2019 is appropriate, albeit very late.[91]

Will ANH’s proposed development unacceptably affect residences on the Satterley land?

  1. [316]
    BGM alleges that ANH has not demonstrated that its proposed development will not unacceptably affect residences on the Satterley land. It says the acoustic analysis prepared by Mr King, the expert retained by ANH, is insufficient.
  1. [317]
    BGM submits Mr King’s analysis is wanting in a material respect because he did not document the characteristics (including height) of each of the nearby sensitive receptors. BGM notes that Ms Richardson undertook such an exercise for BGM’s proposed development. BGM also submits that Mr King approached his assessment of the most recent iteration of ANH’s proposed development incorrectly by failing to address the potential of four-storey residential development on those approved lots in the Satterley development closest to ANH’s site.  Before the proposed development was changed, Mr King considered development up to four storeys in height.  BGM notes that this was consistent with the approach of Ms Richardson, who assessed BGM’s proposed development based on nearby sensitive receptors being up to four storeys and 12 metres in height. 
  1. [318]
    I am satisfied that ANH’s proposed development will not have unacceptable acoustic impact on future residences on the Satterley land for four reasons.
  1. [319]
    First, I do not consider the absence of a list of nearby sensitive receptors to be detrimental in this case. During examination in chief, Mr King explained that he did not consider it necessary to provide an analysis for each individual receptor. His analysis adopts an alternative approach. He identifies the nearest receptors for both existing and future residential development. For the existing residential development, he identifies those receptors that are single storey and those that are two storey. For the potential future residential receptors, Mr King provides an assessment of one, two, and three-storey development. His report includes noise contours, which show the aerial extent of impact for each maximum noise criteria contour. Mr King presents the results of his analysis in a manner that provides sufficient clarity for me to appreciate whether any parcels of land external to the ANH site may be affected by noise that exceeds the maximum criteria and, if so, which parcels.
  1. [320]
    Second, I do not consider Mr King’s analysis to be deficient because of its failure to consider the potential impact on a house of four storeys and 12 metres in height on the approved lots in the Satterley development closest to ANH’s site for the following reasons.
  1. [321]
    In his supplementary noise assessment report, Mr King reports the results of updated noise modelling that represent the topographical design of ANH’s proposed development and the approved Satterley development. He opines that, based on the revised noise modelling and recommended revised noise barriers, the development would comply with noise criteria agreed with Ms Richardson as appropriate for existing and future dwellings, including the agreed daytime noise criteria of 40 dB(A).
  1. [322]
    The acoustic barriers proposed by Mr King include a three-metre-high barrier above adjacent ground level of lots 151 and 152 in the Satterley development. The barrier is to be built on retaining walls in the ANH site. They can be offset from the common boundary by five metres so that landscaping can be established between the barriers and the boundary.
  1. [323]
    During cross-examination, Mr King accepted his modelling indicates that proposed lots 112, 151 and 153 in the Satterley development would be at the maximum 40 dB(A) criteria during the daytime, assuming three-storey development.  Mr King does not provide any analysis for a four-storey residential development.  He accepts that if the subject lots were developed for four storeys, ANH’s proposed development may exceed the daytime noise criteria. 
  1. [324]
    Despite the potential for exceedance of the daytime noise criteria were a four-storey house constructed, Mr King maintains his view that ANH’s site could be designed and operated to comply with appropriate noise limits. Mr King provided a cogent explanation for doing so.  In his opinion, it would be difficult to fit a four-storey development into the 12 metre maximum height dimension contemplated by the Planning Scheme for code assessable residential development.  Mr King explains that in most residential houses, a storey is three metres in height.  Allowing for a roof, four storeys would be quite difficult to achieve in modern residential construction.  In addition, it would be difficult to fit a four-storey house on a 500 square metre lot.  Further still, Mr King explains that he is familiar with the locality.  He does not recall seeing any three-storey development, let alone four-storey development, in the area.  I accept Mr King’s evidence.
  1. [325]
    Third, I am satisfied that the modelling is conservative. It is based on ambient noise levels previously measured near the roundabout in the entry roadway to the Satterley development. The measured ambient noise levels at that location are very low. As the Satterley development occurs, ambient noise levels will increase. I accept the unchallenged evidence of Mr King that the scale and extent of noise barriers required by ANH will decrease as the ambient noise levels increase. There is a prospect that no noise barrier will be required adjacent lots 151 and 152 in the Satterley development.
  1. [326]
    Fourth, ANH only seeks a preliminary approval. The Council will have further opportunity to consider the extent of the noise impact, and the measures required to address such impact, when assessing any future development application.[92]  ANH has provided sufficient evidence to demonstrate, on the balance of probabilities, that its proposed development could be designed and operated to comply with appropriate noise limits.

Will noise sensitive uses in ANH’s proposed development be unacceptably impacted by the use of the quarry haul route on Raynbird Road?

  1. [327]
    ANH’s site is located on Raynbird Road, which is a designated haulage route for the Boral quarry. Its proposed development includes a medical centre. That use is defined in the Planning Scheme as a “health care service”, which in turn falls within the definition of a “noise sensitive use”. 
  1. [328]
    ANH has not identified the extent to which its proposed development is within the Planning Scheme’s transport route buffer area or the State Planning Policy’s transport route separation area for the Key Resource Area (“KRA”) associated with the Boral quarry.  During cross-examination, Mr King accepted that the proposed medical centre appears to be within 100 metres of the centerline of Raynbird Road and, as such, within the transport route separation area.[93] 
  1. [329]
    BGM submits that ANH has not demonstrated that the proposed noise sensitive use will not be unacceptably impacted by the use of the quarry haul route on Raynbird Road.
  1. [330]
    In the Joint Report of Noise and Air Quality Experts, Mr King expresses the view that the haulage of materials on Raynbird Road will not adversely affect the development. He says the detailed design of the development can readily account for any noise impacts associated with passing traffic. There was no evidence from Ms Richardson to the contrary.
  1. [331]
    Mr King considers the issue again in his most recent report, which he prepared in response to ANH’s changed development proposal. In that report, Mr King explains the analysis undertaken by him in relation to road noise. He identifies the model used to predict noise impact associated with traffic on the haul route, as well as the source of information input into the model. The source information included modelled future traffic flows from the Traffic Noise Impact Assessment Report prepared for the Satterley development. Having regard to the results of his noise modelling, Mr King opines that the nominated criterion would not be exceeded at the proposed medical centre tenancy, nor at the majority of shop tenancy areas (even without any noise mitigation measures). He says compliance with the internal noise criteria would be achieved in any location with “relatively standard” building façade construction materials.  He concludes that the impact on future uses from traffic noise on Raynbird Road caused by the quarry traffic and traffic from the Satterley development is not a constraint to ANH’s proposed development.  BGM did not call any evidence from Ms Richardson challenging this opinion or the basis on which the opinion was formed.
  1. [332]
    BGM submits that Mr King has not undertaken a proper assessment of the acoustic impacts of the haulage route. It criticises Mr King’s reliance on the Traffic Noise Impact Assessment Report prepared by ATP Consulting Engineers for the Satterley development and his failure to undertake independent noise logging or data collection. BGM notes that the report applies residential acoustic criteria for its assessment, applies the Queensland Development Code rather than the Council’s noise policy, relies on traffic data from a one-week survey in 2015, and contains no assessment of whether that traffic data is consistent with the normal operations of the Boral quarry. I do not accept the criticisms as valid. There is no suggestion that Mr King used residential criteria or applied the Queensland Development Code. He relied on the report for its traffic data.
  1. [333]
    Mr King explains that in assessing road traffic noise with a noise model, the primary noise input is the volume of traffic and the mix of traffic (including the extent of heavy vehicles in the mix). To be conservative, Mr King took the traffic estimates from the report about the Satterley development and placed them in his noise model. He explains that this was done to ensure that the modelled traffic included the traffic generated by that future development in addition to the quarry traffic. He also explains that the ultimate projections for traffic were in the order of 8 000 vehicles per day, with 17 per cent heavy vehicles.  Leaving aside the results of his noise modelling, based on his own experience, Mr King was confident that compliance with the internal noise criteria would be achieved through design and construction.  He says the volume of traffic in question does not involve a particularly busy road in terms of noise conditions.  I accept Mr King’s opinion.
  1. [334]
    I am satisfied that the noise sensitive uses in ANH’s proposed development will not be unacceptably impacted by the use of the quarry haul route on Raynbird Road. Although the Planning Scheme encourages development to avoid areas subject to constraint, it also permits development instead to establish effective mitigation measures that minimise adverse noise impacts on sensitive land uses.[94]  The Planning Scheme anticipates that mitigation measures can involve design, siting and construction measures.[95]

Is ANH’s proposed development unacceptable having regard to traffic engineering considerations?

  1. [335]
    BGM identifies numerous traffic issues that it submits result in non-compliance with the Planning Scheme and warrant refusal of the proposed development. It raises the following issues for consideration:
  1. (a)
    whether ANH’s proposed development satisfactorily addresses the Council’s planning strategy with respect to pedestrian connectivity and walkable catchments;
  1. (b)
    whether the proposed Raynbird Road access intersection is adequate to sufficiently accommodate ANH’s proposed development;
  1. (c)
    whether the design of the loading dock for ANH’s proposed development creates an unacceptable safety issue;
  1. (d)
    whether upgrades to the intersection of Oakey Flat Road and Raynbird Road would affect ANH’s proposed development;
  1. (e)
    whether ANH’s proposed development unacceptably impacts on sight lines for the roundabout at the intersection of Oakey Flat Road and Raynbird Road;
  1. (f)
    whether ANH’s proposed access from Oakey Flat Road is acceptable;
  1. (g)
    whether ANH’s proposed development provides acceptable on-site servicing arrangements;
  1. (h)
    whether ANH’s traffic arrangements internal to its site are acceptable; and
  1. (i)
    whether the absence of a traffic impact assessment warrants refusal.
  1. [336]
    BGM now alleges that as a consequence of its unacceptable traffic engineering impacts, ANH’s proposed development departs from provisions of the Planning Scheme that require:
  1. (a)
    the planning and development of urban areas to support walking, cycling and public transport;[96]
  1. (b)
    new local centres to be:
  1. (i)
    located on central intersections with good accessibility and visibility in locations that support active transport;[97]
  1. (ii)
    conveniently located on a main through street (or on central intersections) and/or to adjoin or be opposite to a public transport node;[98]
  1. (iii)
    located to form 15 minute walkable neighbourhoods, with the local centre central to that neighbourhood;[99]
  1. (c)
    the design, siting and construction of non-residential uses to:
  1. (i)
    provide attractive, active frontages that maximise pedestrian activity along road frontages, movement corridors and public spaces;
  1. (ii)
    provide for active and passive surveillance of road frontages, movement corridors and public spaces;
  1. (iii)
    promote active transport options and ensures an oversupply of car parking is not provided;
  1. (iv)
    avoid large internalised shopping centres (e.g. large blank external walls with tenancies only accessible from within the building) surrounded by expansive areas of surface car parking;[100]
  1. (d)
    development to contribute to improved pedestrian connectivity and walkability between key destinations and an attractive and walkable street environment through the provision of streetscape features (e.g. footpaths, lighting, bins, furniture, landscaping, pedestrian crossings etc), as outlined in the Integrated Design Planning Scheme Policy;[101]
  1. (e)
    pedestrian connections to be provided to integrate the development with the street, public spaces and the surrounding area;[102]
  1. (f)
    the safety and efficiency of pedestrian movement to be prioritised in the design of car parking areas and the size, frequency and location of vehicle crossovers,[103] including by providing pedestrian paths in car parking areas that are:
  1. (i)
    located along the most direct pedestrian routes between building entrances, car parks and adjoining uses;
  1. (ii)
    protected from vehicle intrusion through the use of physical and visual separation (e.g. wheel stops, trees etc);
  1. (iii)
    of a width to allow safe and efficient access for prams and wheelchairs;[104]
  1. (g)
    development to provide functional and integrated car parking and vehicle access that:
  1. (i)
    prioritises the movement and safety of pedestrians between car parking areas at the rear through to the “main street” and the entrance to the building (e.g. rear entry, arcade etc.);
  1. (ii)
    provides for the safety and security of people and property at all times;
  1. (iii)
    does not impede active transport options;
  1. (iv)
    does not impact on the safe and efficient movement of traffic external to the site;
  1. (v)
    consolidates and shares vehicle access points with adjoining sites, where possible;[105]
  1. (h)
    safe access to be provided for all vehicles required to access the site;[106]
  1. (i)
    general works associated with the development not result in unacceptable impacts on the capacity and safety of the external road network;[107]
  1. (j)
    upgrade works (whether trunk or non-trunk) to be provided where necessary to:
  1. (i)
    ensure the type or volume of traffic generated by the development does not have a negative impact on the external road network;
  1. (ii)
    ensure the orderly and efficient continuation of the active transport network;
  1. (iii)
    ensure the site frontage is constructed to a suitable urban standard generally in accordance with the Integrated Design Planning Scheme Policy;[108] and
  1. (k)
    the environmental and amenity impacts arising from transport of materials to be minimised.[109]
  1. [337]
    The requirements referred to above reflect the narrowed list of issues delivered by BGM after the conclusion of the hearing and final submissions. BGM relies on the evidence of Mr Douglas with respect to these issues. Mr Douglas does not identify how his concerns relate to the provisions.  In light of that, and given the identified traffic issues would be a relevant matter in any event, it is convenient to address the traffic considerations by reference to the traffic issues raised by Mr Douglas.

Will ANH’s proposed development provide satisfactory pedestrian connectivity and create a walkable catchment?

  1. [338]
    I have addressed this issue in paragraphs [221] to [256] above. 

Is the proposed Raynbird Road access intersection adequate to accommodate ANH’s proposed development?

  1. [339]
    ANH’s proposed development provides for access to the site at the rear of the supermarket building via a road that intersects with Raynbird Road. The Council approved the creation of the road, and its intersection with Raynbird Road, as part of the Satterley development.
  1. [340]
    The approved roadworks include a new road intersecting Raynbird Road adjacent to the south-western boundary of ANH’s site. That road will provide the primary access to the Satterley development. It is about 40 metres long and runs between Raynbird Road and a proposed roundabout. The new road is about 27 metres wide and is proposed to accommodate two verges, each five metres wide. The road carriageway will have two egress lanes to Raynbird Road, providing separate left and right turn lanes. The approval also provides for roadworks on Raynbird Road to provide a short channelised right-turn lane into the new road.
  1. [341]
    Travelling from Raynbird Road along the new road, the first exit from the roundabout connects to roads within the approved Satterley development. ANH proposes to construct two other legs to the roundabout – one providing access to its carpark and the other providing access to the loading bay associated with the supermarket.
  1. [342]
    BGM submits that the intersection between Raynbird Road and the new road is inadequate to provide access to ANH’s proposed development. It submits that the inadequacies relate to issues of public safety. BGM relies on the evidence of Mr Douglas in this respect.
  1. [343]
    The Council is less definitive about the technical design issues. It submits there is uncertainty about whether any necessary upgrading can be accommodated in the available road reserve.
  1. [344]
    In the Supplementary Joint Report of Traffic Engineers, Mr Douglas opines that the intersection between Raynbird Road and the new road is inadequate. He is of the view that it should adhere to the requirements for a district collector road set out in Appendix A to the Council’s Integrated Design Planning Scheme Policy. In particular, Mr Douglas says the intersection fails to provide:
  1. (a)
    two metre wide shoulders for cyclists; 
  1. (b)
    a 3.3 metre wide protected right turn lane;
  1. (c)
    2.5 metre wide pathways along both sides of the road, within 5.5 metre wide verges; and
  1. (d)
    potential for future signalisation.
  1. [345]
    In support of his position, Mr Douglas attached an extract from Appendix A to the Integrated Design Planning Scheme Policy.  The extract included a table that lists various road types in the first column and lists design attributes across the top.  It then contains notes in each “box” that guide the requirements for particular types of road.  Mr Douglas also attached a copy of the road typology cross-section for the district collector road.  Those parts of the Policy extracted by Mr Douglas include reference to cycle lanes, pathways, and verges with the dimensions referenced by Mr Douglas.  They also note that traffic lanes are to be 3.3 metres wide but make no specific reference to the width of protected right turn lanes or the provision for future signalisation.  During cross-examination on 28 June 2018, Mr Douglas was of the view that the Council would likely require strict adherence to the technical standards and guidelines referenced in the Integrated Design Planning Scheme Policy, or possibly higher standards, because Raynbird Road is a haul route. 
  1. [346]
    In June 2018, Mr Douglas provided a sketch to demonstrate the upgrading he says is required to provide the missing attributes. It indicates that a road reserve of about 30 metres would be required.  Mr Douglas suggests that the road reserve proximate the proposed intersection is presently in the order of 17 metres – a dimension that he appears to have obtained by using a measuring tool and cadastral details on Google earth.  In June 2018, Mr Douglas also explained how, on his design, there would be difficulty achieving appropriate grades along the access road.
  1. [347]
    The sketch provided by Mr Douglas, and most of the cross-examination of the witnesses about the necessity for upgrades to Raynbird Road and potential grading issues with the access road occurred in June 2018. This was before ANH’s change to its development proposal and before the Council approved the Satterley development.
  1. [348]
    ANH’s current proposed development provides a greater setback between the existing boundary and the proposed supermarket building than the version addressed during cross-examination of the experts in June 2018. The current plan does not indicate an intention to upgrade the intersection on Raynbird Road approved by the Council for the Satterley development.  
  1. [349]
    The intersection approved as part of the Satterley development was designed to fit within the existing road reserve. It does not provide cycle lanes. It terminates the south-bound shoulder where the road is being widened, forcing any cyclists to move into the through traffic lane.  The design also provides a three metre wide unprotected right turn lane.  Mr Douglas says that this is a particularly poor outcome given Raynbird Road is a quarry haul route.
  1. [350]
    Mr Douglas considers that an upgraded intersection of the nature shown in his sketch tendered in June 2018 would be very difficult to achieve with the design approved as part of the Satterley development. He considers the grading of the new road down to the new roundabout makes road widening along ANH’s site frontage to Raynbird Road problematic. In light of the design adopted for the Satterley development, Mr Douglas is unable to see a solution for the intersection that makes safe and appropriate provision for pedestrians, cyclists, and motorists. 
  1. [351]
    Mr Douglas’ opinions are premised on three assumptions. First, that the applicable street or road typology cross section in the Integrated Design Planning Scheme Policy is that of a district collector. Second, strict adherence with the technical standards and guidelines for the applicable street or road typology cross section is required. Third, ANH cannot comply with the applicable street or road typology cross section.

Does the district collector street or road typology cross section apply?

  1. [352]
    Mr Douglas’ sketch of the required works was introduced during his examination-in-chief on 27 June 2018. At that time, he explained that the dimensions in his sketch were “basically, out of council’s cross-sections”.  In the Supplementary Joint Report of Traffic Engineers, Mr Douglas explains that as Raynbird Road is a district collector road, in his opinion ANH’s proposed development should undertake upgrade works on Raynbird Road that adhere to the attributes in the “District Collector” road or street typology cross section (attached in Appendix 6 to that report). 
  1. [353]
    Appendix A to the Policy relates to Streets, Roads and Urban Utilities. Section 1 of Appendix A explains that it provides a process for determining the appropriate road and street design standards for new roads and streets. Three different processes are provided for determining the applicable road or street typology cross section.
  1. [354]
    In this case, as Raynbird Road is an existing road but there is no applicable local plan, the process to be followed is that in section 1.1.2. Raynbird Road is identified on the Planning Scheme Overlay Map – Road Hierarchy. As such, the flow chart in section 1.1.2 directs the reader to section 3 of Appendix A to determine the applicable street and road typology cross section. This is to be determined by reference to the zone and road function in section 3, not by reference to the designation ascribed on the Planning Scheme Overlay Map.
  1. [355]
    Section 3 of Appendix A provides a table that ascribes the applicable street and road typology cross section. The applicable road type is determined firstly by reference to the applicable zone or precinct and then by the role, function or location of the road.
  1. [356]
    ANH’s site is in the Next generation neighbourhood precinct. Note 3 at the start of section 4 indicates that if development is proposing a new centre outside of the existing centre zone, the applicable road type for the adjoining road is taken to be as if it were proposed in a centre.  As such, the options to be considered are those applicable for the Local centre precinct of the Centre zone.  There are two potentially applicable cross sections for that zone.  They are “Business Laneway”, which applies to roads that are for service, loading or rear parking access; and “Urban Fringe”, which applies to all other roads where the centre is on one side of the road only.  Either way, the applicable cross section design to be adopted proximate ANH’s site is not that of a district collector.  

Is strict adherence required?

  1. [357]
    The table and cross section in the Integrated Design Planning Scheme Policy relied on by Mr Douglas are not, on their face, expressed as mandatory or minimum requirements. In understanding whether strict adherence is required, it is necessary to read the table and cross section in the context of the Policy as a whole.
  1. [358]
    Section 1 of the Integrated Design Planning Scheme Policy explains that the purpose of the Policy is to, amongst other things, identify the roads, street, public spaces, and landscaping standards, and associated infrastructure design standards, for development expected within the region.
  1. [359]
    Section 2 outlines how the Policy is to be used. It notes that technical standards and guidelines have a key role in the delivery of good design, but when used over prescriptively can compromise the achievement of wider objectives and good integrated design outcomes. It states that designers are expected to use their professional judgment. It emphasises the need to design in a context sensitive manner to reflect user needs.
  1. [360]
    Section 3 explains the Council’s strategy that underpins the design philosophy reflected in the standards and guidelines. It notes that the Strategic framework in the Planning Scheme has set a new vision for the Moreton Bay Region. At the heart of that vision is the desire for walkable communities that foster the creation of living streets and public spaces that actively encourage healthy lifestyles, economic prosperity, and environmental stewardship. To meet that challenge, the Policy notes that streets need to transform so that they no longer purely serve the needs of those confined to vehicles. They are to provide space for all users in a safe environment that successfully integrates the built form of the private domain within the broader street environment.
  1. [361]
    Section 5 of the Integrated Design Planning Scheme Policy explains the purpose of the Street Typology Cross Sections in Appendix A, including the cross section relied on by Mr Douglas. The cross sections are based primarily on a classification system that defines a street by the type of place that it helps to form. In section 5 it is noted that classifying a street by its hierarchical function, such as sub-arterial (or in this case district collector), still has significance in determining traffic carrying capacity and the applicable cross section, but it will not be the sole attribute or determining factor in considering the appropriate design. The Policy notes that streets and roads do not necessarily serve the same user needs along their entire length. They need to be designed to support adjoining land uses. Important design principles are the provision of a permeable and connected network and context sensitive design solutions. Context sensitive design solutions are to balance user needs with competing factors such as capital and maintenance costs, and environmental, economic, and social outcomes.
  1. [362]
    Accordingly, the Integrated Design Planning Scheme Policy reinforces the importance of active transport considerations, sets guidelines and standards for achieving the Council’s goals, but recognises that the implementation of the guidelines and standards are to be informed by the context.
  1. [363]
    Section 4 of Appendix A contains tables describing the relevant cross-section attributes and section 10 contains the cross sections.
  1. [364]
    Section 7 of Appendix A recognises that the desired road or street typology cross sections provide a guide only, particularly where it involves retrofitting an existing reserve. That section indicates which elements of the road or street typology cross section are to be prioritised if the existing road reserve is inadequate. It provides a hierarchy of modifications. Which modifications are to be undertaken first depends on whether the road has a “place” function or a “movement” function. 
  1. [365]
    For roads with a “place” function, the Policy states that modifications can be made in the following order:

“1. Reduce lane width to 3.3 metres

  1. Reduce cycle lanes (to a minimum of 1.5 metres where speed is not in excess of 60kph)
  2. Convert cycle lanes to Cycle Awareness Zones (in conformance with technical standards)
  3. Reduce or remove “rear” verge (whilst maintaining a minimum 4.5 metre total verge width)
  4. Reduce kerbside parking width (to a minimum of 2.4 metres)
  5. Remove kerbside parking from one side
  6. Remove kerbside parking from both sides”
  1. [366]
    For roads with a “movement” function, the hierarchy of modifications is as follows:

“1.  Reduce kerbside parking width (to a minimum of 2.4 metres)

  1. Remove kerbside parking from one side
  2. Remove kerbside parking from both sides
  3. Reduce or remove “rear” verge (whilst maintaining a minimum 3.5 metre total verge width)
  4. Reduce footpath (to a minimum of 2.0 metres whilst maintaining a minimum 3.5 metre total verge width)
  5. Reduce cycle lanes (to a minimum of 1.5 metres where speed is not in excess of 60kph)
  6. Reduce lane width to 3.3 metres”
  1. [367]
    The function of the road is to be determined by reference to section 2 of the Appendix A.  Pursuant to that section, Raynbird Road proximate the site has a place function, regardless of whether the applicable cross section is district collector, urban fringe or business laneway.  As such, the Policy contemplates that strict compliance is not necessary.  Cycle lanes may be sacrificed in favour of cycle awareness zones, the verge may be reduced to 4.5 metres and kerbside parking may be sacrificed.

Can ANH comply with the applicable street or road typology cross section?

  1. [368]
    The “Business Laneway” cross section has a two metre wide pathway on one side of the road, with no additional verge, and a seven metre wide carriageway with no provision for on-street parking or cycle lanes.  The “Urban Fringe” cross section has a five metre wide verge adjacent the centre, on street parking (2.4 metres wide), a two metre wide cycle lane, and 3.3 metre wide traffic lanes.
  1. [369]
    ANH has not provided a detailed design showing the proposed upgrade works intended in the road reserve. Nor has it provided a plan demonstrating how the elements of any street or road typology cross section might be accommodated either solely within the existing road reserve or with dedication of part of the ANH site. Although such information would have assisted, I do not consider its absence to be fatal in this case for the following reasons.
  1. [370]
    The Council does not assert that a particular standard of upgrade would be required. This is unsurprising given ANH only seeks a preliminary approval. Before ANH’s proposed local centre could proceed, it would require a development permit. Were ANH successful in this appeal, a development application seeking a development permit for the proposed local centre would be code assessable. It would require assessment against, amongst other things, performance outcome PO42 of the Local centre precinct provisions of the Centre zone code. As part of that assessment, the Council would have the opportunity to consider the extent of upgrade works required.
  1. [371]
    Further, on the evidence available, I am satisfied that there is a reasonable likelihood that ANH could achieve appropriate upgrade works.  ANH’s plans indicate an intention to utilise the intersection approved by the Council as part of the Satterley development and to provide a footpath within the existing road reserve immediately adjacent its site.  This design accords with the “Business Laneway” cross section.  There also appears to be sufficient space on the plans to achieve a five metre wide verge adjacent the centre, on street parking (2.4 metres wide), a two metre wide cycle lane and 3.3 metre wide traffic lanes consistent with the “Urban Fringe” cross section should the Council determine such works to be appropriate. 
  1. [372]
    Although there may be difficulty achieving the full “Urban Fringe” or “District Collector” cross section within the road reserve for the full frontage of ANH’s site, there are four aspects of the evidence that lead me to conclude that the Council would be unlikely to require strict adherence in this case.
  1. [373]
    First, I accept the evidence of Mr Viney that it is the residences in the Satterley development that are likely to attract pedestrians and cyclists to use Raynbird Road as they travel to and from their residences for work or recreation.  To the extent that ANH’s proposed local centre will attract pedestrians and cyclists from the north, south or east, it is reasonable to expect that they would enter ANH’s site proximate the plaza.  Common sense suggests that they would not proceed up the steep incline of Raynbird Road and enter the local centre at its rear near the loading dock.  Similarly, common sense suggests that pedestrians and cyclists approaching the local centre from the Satterley development would enter the centre proximate the roundabout rather than proceeding past the centre to enter from Oakey Flat Road.  Likewise, given the residences opposite ANH’s site turn their back on Raynbird Road, provision of a footpath on that side of Raynbird Road will make no practical difference.  The provision of a path at that location would not noticeably enhance the attractiveness of ANH’s proposed local centre to active transport users for reasons already explained in paragraphs [236] to [238] above.
  1. [374]
    Second, the evidence of Mr Viney satisfies me that any potential hazard to cyclists already exists.  There is a reasonable prospect that ANH’s proposed development would ameliorate the risk by providing cycle lanes or a shared pedestrian and cycle path or cycle awareness zones.
  1. [375]
    Third, the Council’s approval of the Satterley development suggests it is of the view that, in this location, it is not appropriate to require the upgrade of Raynbird Road to provide a full cross section in strict adherence with the “District Collector” cross section in its Integrated Design Planning Scheme Policy.   
  1. [376]
    Fourth, I am not satisfied that upgrade works of the type suggested by Mr Douglas are reasonably required to achieve compliance with performance outcome PO42 of the Local centre precinct provisions of the Centre zone code. Such works are redolent of a counsel of perfection. It has long been recognised by this Court that it is unrealistic to expect traffic arrangements to be Utopian or perfect.[110] 
  1. [377]
    Performance outcome PO42 requires upgrade works to be provided where necessary to:
  1. (a)
    ensure the type or volume of traffic generated by the development does not have a negative impact on the external road network;
  1. (b)
    ensure the orderly and efficient continuation of the active transport network; and
  1. (c)
    ensure the site frontage is constructed to a suitable urban standard generally in accordance with the Integrated Design Planning Scheme Policy.
  1. [378]
    There is no evidence that the type or volume of traffic generated by ANH’s proposed development would have a negative impact on Raynbird Road absent the extent of intersection upgrade advocated by Mr Douglas. The traffic on Raynbird Road is not limited to quarry traffic. As was accepted by Mr Pekol during cross-examination, the Satterley development changes the vehicular usage of Raynbird Road by introducing significant volumes of residential traffic turning to and from Raynbird Road. Further, in the Supplementary Joint Report of Traffic Engineers, the traffic engineers agree that there is no suggestion that ANH’s proposed development will diminish the safety and efficiency of the designated Key Resource Area transport route on Raynbird Road. The intersection design approved for the Satterley development provides a three metre wide channelised right turn into the access road. I accept the evidence of Mr Viney that the width is acceptable (if not desirable). It is sufficient to allow vehicular traffic turning right across Raynbird Road (whether destined for ANH’s proposed local centre or for the Satterley residential estate) to rest without obstructing through traffic such as quarry trucks destined for the Boral quarry.
  1. [379]
    ANH’s proposed local centre makes provision for a pedestrian path along its Raynbird Road frontage. No detail is provided about the width of the path. Despite that, having regard to my findings in paragraph [371] above, I am satisfied that it is reasonably likely that upgrade works can be achieved to ensure the orderly and efficient continuation of the active transport network and to ensure the site frontage is constructed to a suitable urban standard.
  1. [380]
    For the reasons provided above, I am satisfied that ANH’s proposed access via the Raynbird Road intersection would be appropriate. At an appropriate time, ANH’s proposed development could be conditioned to require necessary upgrade works.
  1. [381]
    For those same reasons, I do not accept BGM’s submission that Mr Douglas’ evidence on this issue demonstrates that ANH’s proposed local centre does not comply with s 3.13.3.4(11) and s 3.14.9 of the Strategic framework and performance outcomes PO38, PO41 and PO42 of the Local centre precinct provisions of the Centre zone code.

Will the design of the loading dock create an unacceptable safety issue?

  1. [382]
    As I have mentioned in paragraph [341] above, ANH proposes access to and egress from its loading dock by way of a roundabout that also provides access to the Satterley development.  BGM takes issue with the safety of that proposed access. 
  1. [383]
    In the Supplementary Joint Report of Traffic Engineers, Mr Douglas suggests that the design would create a likely blind spot for truck and van drivers departing the loading dock area.  He is of the view that the blind spot may result in the drivers having very little time to see vehicles exiting from the ANH car park.  As such, he considers there is a risk of collision. 
  1. [384]
    Mr Douglas identified two factors that create the potential blind spot. First, ANH’s proposed design indicates the potential location of noise barriers across mandatory (and desirable) sight lines. Second, on the currently available design details, the observation angle for a driver leaving the loading dock area would be 130 degrees. This exceeds the maximum 120-degree observation angle stipulated in Austroads Part 4A.
  1. [385]
    Mr Douglas acknowledged during his examination in chief on 15 April 2019 that the Supplementary Noise Report prepared by Mr King with respect to ANH’s changed proposal indicates that changes to the recommended noise barriers may have addressed the problem he raised with respect to mandatory sight lines. Although there may still be a need to construct a noise barrier across the desired sight line, the sight line could be maintained by ensuring the barrier is constructed using a transparent material, such as perspex or glass, and by the careful placement of support posts. Both Mr Douglas and Mr Pekol ultimately accepted this.
  1. [386]
    The impact of the observation angle was represented diagrammatically in Exhibit 156. It shows the extent of the approach lane that would be in the driver’s blind spot and that part of the approach lane that would be visible for a driver leaving the loading dock area. Mr Douglas prepared the diagram. Mr Viney accepts it accurately depicts the extent of the blind spot.
  1. [387]
    The blind spot is not absolute. For two sections of the approach road, there is visibility of an approaching vehicle. One area is immediately before the approaching vehicle moves into the intersection. At that point, the driver would have visibility of the approaching vehicle in its side mirror. Prior to then, the driver has another opportunity to glimpse the approaching vehicle, albeit at an angle where vision becomes increasingly difficult.
  1. [388]
    Mr Douglas opines that an observation angle of this nature results in a driver experiencing three times the risk of an accident as compared to a driver who has forward vision at 40 degrees. He considers that presents an unacceptable traffic safety issue, particularly as it involves the risk of a car and a truck colliding.
  1. [389]
    Mr Viney accepts that, all other things being equal, the likelihood of a motorist having an accident increases with the observation angle.  However, in this case Mr Viney says that does not equate to a significant safety issue.  He considers the design to be acceptable.  There would be extremely low frequency of entry or exit from the loading dock area.  Further, while the driver exiting the loading dock area will have some blind spots, the vehicle will be departing at a very low speed – about walking pace.  The driver of the vehicle departing the loading dock area and the driver of the vehicle coming from the shopping centre will both have good visibility of all other traffic on the roundabout.  Neither has cause to collide with other vehicles on the roundabout because they can see them adequately.  In addition, as the driver of the vehicle coming from the shopping centre approaches the give way line, that driver will be able to see the vehicle accelerating slowly out of the loading dock area.  These circumstances reduce the risk of an accident.  Further, if there were an accident, it would happen at a very low speed.  Common sense suggests it would only involve minor damage.
  1. [390]
    Mr Douglas’ evidence on this issue seems to me to be excessively cautious. Mr Viney’s evidence accords with common sense and I accept it.  Further, as Mr Douglas acknowledged during cross-examination, design measures such as cameras and screens can be used to improve visibility.  This issue strikes me as capable of being addressed as part of future detailed design.
  1. [391]
    For the reasons provided above, I do not accept BGM’s submission that the roundabout, as presently designed, has unacceptable observation angles and that significant doubt remains whether acceptable sight lines could be achieved.

Will upgrades to the intersection of Oakey Flat Road and Raynbird Road affect ANH’s proposed development?

  1. [392]
    Mr Viney prepared a traffic impact assessment for ANH’s proposed development in September 2018. His analysis was prepared based on revised traffic counts taken in July 2018. It assumes a design horizon of 2030, background growth of 3 per cent per annum compound, full development of the 628 lots proposed by Satterley Property Group Pty Ltd, full development of the remaining 900 lots in the Narangba Height development by 2030 and ANH’s proposed local centre.  I accept that these assumptions are conservative.  They adopt a 3 per cent compound growth rate on top of the predicted residential growth.  They also assume a faster rate of residential development than historical aerial photographs suggest has occurred to date.
  1. [393]
    The experts agree that the Oakey Flat Road and Raynbird Road roundabout would require upgrading by approximately 2030. The need to upgrade the roundabout will arise independent of ANH’s proposed development. In the Supplementary Joint Report of Traffic Engineers, Mr Pekol says that the roundabout would need to be upgraded to include a short (30 metre) left turn lane on the southern approach and a second circulating lane on the south-west portion of the roundabout, even without ANH’s proposed local centre. 
  1. [394]
    The Council has expressed some interest in replacing the roundabout with traffic signals at the appropriate time. The experts agree Oakey Flat Road could be upgraded to four lanes and the intersection with Raynbird Road signalised within the existing road reserve and the five metre wide land dedication across the Oakey Flat Road frontage proposed by ANH. There is less certainty about the ability to achieve upgrades if the intersection remains a roundabout.
  1. [395]
    Mr Pekol undertook an independent analysis. His analysis assumed an additional 40 or 50 lots may be developed in the area, based on revised designs of the Satterley development and an additional block of land. His analysis otherwise produced similar results to that provided by Mr Viney. Mr Pekol opines that the works required to mitigate the traffic impact of ANH’s proposed development are an additional northbound lane on Oakey Flat Road between the roundabout and the proposed site access and an additional (short) approach lane on Raynbird Road.  He says such works should be imposed as a condition on any approval.  These works assume the Council approves a right turn into ANH’s site from Oakey Flat Road.  Absent that approval, additional works may be required. 
  1. [396]
    Mr Douglas also undertook his own analysis. He is of the view that a second lane on Oakey Flat Road approaching Raynbird Road (at least 30 metres long) from the south-east is required if the right turn into ANH’s site is permitted. If not, he says there will also be the need for a second lane on Oakey Flat Road approaching Raynbird Road from the south-west. Mr Douglas also says the upgrading would need to meet the requirements of the Council’s four-lane cross section. He prepared a plan demonstrating such an upgrade. Based on that plan, Mr Douglas says the five metre wide land dedication provided in ANH’s proposed design is insufficient. He also considers that some of the park owned by the Council may be required. On Mr Douglas’ analysis, it would be necessary to redesign the shops near the roundabout. 
  1. [397]
    In his second Statement of Evidence, Mr Viney provided a rough sketch showing the approximate roadworks suggested by Mr Pekol.  The sketch indicates that such roadworks may be accommodated in the existing road reserve.  During cross-examination, Mr Viney accepted he has not examined whether those works suggested by Mr Douglas would fit within the area comprised of the existing road reserve and the proposed five metre wide dedication.  That could not be known without a complete analysis.  However, Mr Viney did not accept that the uncertainty warrants refusal of the proposed development.  He makes two relevant observations in this regard.  First, a study of the area undertaken by Bornhorst and Ward indicates that Oakey Flat Road could be upgraded to four lanes and provide two metre wide cycle lanes within the road reserve.  That study was based on survey information.  The Council may accept a design such as that proposed in that study.  Second, the Council has not sought any contribution to the upgrade of the roundabout from BGM or Satterley, even though their residential developments would have significantly greater impact on the roundabout than ANH’s proposed local centre.  As such, it is reasonable to assume that the Council would not require a disproportionate contribution from ANH.
  1. [398]
    BGM submits that ANH’s failure to prepare a solution for roadworks reasonably required prior to 2030 is unacceptable.  It submits that ANH has not demonstrated that a revised roundabout could be achieved without affecting its plan of development or land beyond its control.
  1. [399]
    I do not accept BGM’s criticism. As I have already noted in paragraph [229] above, it is common for full detailed design to be left until a later stage.  Further, Mr Douglas’ evidence on this issue seems to me to be excessively cautious.  Mr Douglas’ report does not identify the source of the four-lane cross section to which he refers.  The notations on his plan reflect the dimensions of the cross section referred to in paragraphs [344] to [345] above.  It fails to recognise the design flexibility permitted by s 7 of Appendix A of the Integrated Design Planning Scheme Policy referred to in paragraphs [364] to [366] above.  It also fails to recognise that Oakey Flat Road could be upgraded to four lanes and the intersection with Raynbird Road signalised without affecting ANH’s proposed development.  This was a matter of agreement between the experts. 
  1. [400]
    Having regard to the agreement of the experts about signalisation, the evidence of Mr Viney, and my concerns about Mr Douglas’ evidence, I am satisfied that there is a reasonable likelihood that suitable upgrades to the intersection of Oakey Flat Road and Raynbird Road could be achieved without affecting ANH’s proposed development. 

Will ANH’s proposed development unacceptably affect sight lines for the Raynbird Road and Oakey Flat Road roundabout?

  1. [401]
    Austroads’ Guide to Road Design Part 4B Roundabouts explains that roundabouts need to be designed to provide approach sight distance.  It provides for three criteria.  Criterion 1 sets a desirable approach sight distance that would allow a driver to see the stop line or give way line at the roundabout as they approach it.  Criterion 2 requires clear lines of sight from about a car length back from the give way line.  This is to allow a driver to detect an acceptable gap of four or five seconds.  Criterion 3 provides a sight triangle that would allow a driver to see vehicles approaching the roundabout along the approach road to the right.  This provides a greater opportunity to recognise the potential for conflict. 
  1. [402]
    Criteria 1 and 2 are mandatory requirements. The experts agree they can be achieved.
  1. [403]
    Mr Douglas prepared a plan that reflects his interpretation of the criteria. He appended it to the Supplementary Joint Report of Traffic Engineers. He says it shows that criterion 3 cannot be achieved as ANH’s shops obscure the visibility within the sight triangle. He regards this as unacceptable given Raynbird Road is a quarry haul route. He says that to achieve compliance with criterion 3, the shops closest to the roundabout would need to be removed. During his examination in chief on 15 April 2019, Mr Douglas suggested that compliance was required by the Council’s design manual.
  1. [404]
    Under Austroads’ Guide to Road Design, criterion 3 is not mandatory.  During the hearing, the Council tendered a document titled “Design and Development Manual Part A Roadworks and Stormwater Drainage”.  That document indicates that all three criteria are to be achieved for roundabouts at intersections of collector and arterial roads.  This is the document referred to by Mr Douglas as evidencing that criterion 3 is mandatory.  Mr Douglas was unaware of the document when he first gave evidence.
  1. [405]
    I am not persuaded that this issue of itself warrants refusal of the proposed development for three reasons.
  1. [406]
    First, I do not accept that criterion 3 should be regarded as mandatory. The Planning Scheme does not call up the document tendered by the Council. On its face, the document appears to have been created in March 2008 for Caboolture Shire Council. It details guidelines for the design of roadworks. Although it states that the “desirable” design criteria from Austroads’ publications are taken to be mandatory, the document permits the Council to approve exceptions. 
  1. [407]
    Second, Mr Viney explained at least one basis on which the Council should consider approving an intersection that does not provide sight lines as required by criterion 3. He explained that if the criterion 3 sight line was available, a driver approaching the roundabout along Oakey Flat Road might speed up in order to enter the roundabout ahead of a quarry truck. This explanation has merit. Whether the Council would ultimately accept the explanation is a matter that is appropriately left for determination by the Council when assessing future development applications.
  1. [408]
    Third, Mr Douglas’ plan demonstrating the lack of available sight lines is premised on a particular roundabout design. It is clear from the evidence of the traffic engineers referred to in paragraphs [393] to [397] above that the intersection will require changes.  The ultimate intersection may be a signalised intersection. 
  1. [409]
    For the reasons provided above, whether modifications are required because of the need to provide particular sight lines is a matter that is appropriately left for consideration by the Council when it assesses any future development applications. It does not warrants refusal of the preliminary approval.

Is ANH’s proposed access from Oakey Flat Road acceptable?

  1. [410]
    ANH’s proposed design provides for left-in and left-out access and right turn entry from a protected right turn lane from Oakey Flat Road. BGM raises two issues with ANH’s proposal in this regard. First, it takes issue with the acceptability of the provision of access from Oakey Flat Road as an arterial road. Second, it takes issue with the design details.

Is it acceptable to permit access from Oakey Flat Road?

  1. [411]
    Oakey Flat Road is classified as an arterial road under the Council’s road hierarchy.
  1. [412]
    The Council submits that access off an arterial road is inconsistent with the Integrated Design Planning Scheme Policy. It refers to the list of cross section attributes in s 4 of Appendix A in support of its submission.  It also notes that the Policy is one of the planning scheme policies that supports the Planning Scheme.  The Council says it is called up in matters relating to access and frontage design of premises in performance outcomes PO24 and PO25 of the Next generation neighbourhood precinct provisions of the General residential zone code.
  1. [413]
    The performance outcomes referred to by the Council do not seek to regulate access from an arterial road. They do not call up the Policy for that purpose. The purpose of the Integrated Design Planning Scheme Policy and the nature of its contents are outlined in paragraphs [357] to [367] above.  A reading of the policy as a whole does not support the Council’s submission. 
  1. [414]
    Further, a broader consideration of the Planning Scheme suggests that the Council’s policy of avoiding direct vehicle access from arterial roads is predominantly directed at residential development. The relevant requirements for access are set out, for example, in performance outcome PO40 of the Local centre precinct provisions of the Centre zone code and performance outcome PO23 of the Next generation neighbourhood precinct provisions of the General residential zone code. Those provisions require development to have a layout that does not compromise the development of the road network in the area, the function or safety of the road network, or the capacity of the road network. The related examples provide that direct vehicle access for residential development is not to occur from an arterial road. I was not directed to any equivalent requirement in relation to access to a local centre.
  1. [415]
    Mr Pekol and Mr Douglas both accept that an appropriately designed left-in, left-out access would be an acceptable traffic-engineering outcome at this location.
  1. [416]
    As for the proposed right-turn into ANH’s site, Mr Viney opines that the existing and future traffic flows on Oakey Flat Road would permit the safe operation of a protected right turn entry from that road. Mr Douglas opines that such a movement is contrary to sound traffic engineering policy. He says it sets an undesirable precedent and disrupts through traffic. As a matter of general principle, I accept the advisability of minimising the disruption to through traffic on higher order roads. However, I do not consider it appropriate to determine such matters by blindly applying general principles in fear of the creation of a precedent. Each development must be assessed on its own merits. Mr Viney recommends the construction of a right-turn lane in a median. Provided the design is appropriate, this would leave the through traffic lane unobstructed.
  1. [417]
    It is also important to bear in mind that ANH only seeks a preliminary approval. Before a shopping centre could proceed, ANH would need to apply to the Council for a development permit. In assessing that development application, the Council will be able to assess whether the proposed right turn would unacceptably affect the function or capacity of the road network.
  1. [418]
    If the Council did not ultimately approve right turn access from Oakey Flat Road, ANH’s proposed local centre might still operate acceptably. Residents approaching from the north could access the centre from Raynbird Road or by travelling around the roundabout. Common sense also suggests that local residents would quickly become familiar with the access limitations and would use the broader road network to approach the centre from a direction that was most convenient.
  1. [419]
    For those reasons, I do not accept that primary access off Oakey Flat Road is necessarily unacceptable. Whether access is ultimately permitted is a matter that should be left to determination by the Council as part of its assessment of any future development application.

Is ANH’s Oakey Flat Road access design acceptable?

  1. [420]
    BGM alleges that the design of ANH’s Oakey Flat Road access is unacceptable and that the design alone warrants refusal of ANH’s application. BGM relies on the evidence of Mr Douglas in this regard. He says there are six deficiencies in the design.
  1. [421]
    First, Mr Douglas opines the width of the proposed right turn lane is too narrow.  ANH’s proposed plan of development shows it as approximately 2.9 metres wide.  Mr Douglas says it should be 3.5 metres wide. 
  1. [422]
    Mr Viney agrees the lane should be 3.5 metres wide. He says this can be accommodated in an appropriately designed cross section. The existing road reserve at this location is 30 metres wide. ANH proposes to dedicate an additional five metres to the road reserve. Mr Viney says that road reserve would be sufficient to accommodate a retrofitted cross section comprising:
  1. (a)
    two verges with a width of 4.5 metres;
  1. (b)
    four lanes with a width of 3.5 metres;
  1. (c)
    a 4.7 metre wide median that incorporates a 3.5 metre wide right turn lane into ANH’s site;
  1. (d)
    two cycle lanes with a width of two metres; and
  1. (e)
    a 3.3 metre wide left turn deceleration lane into ANH’s site. 
  1. [423]
    Mr Viney opines that such a cross section is appropriate in the locality, particularly having regard to the low number of pedestrians using Oakey Flat Road. The Council could impose a condition requiring such roadworks if it considered them appropriate.
  1. [424]
    Second, Mr Douglas says a raised traffic island is required instead of the proposed painted traffic island shown on ANH’s proposed design. Mr Viney agrees. It is accommodated in Mr Viney’s suggested cross section and could be conditioned if the Council considers it appropriate.
  1. [425]
    Third, Mr Douglas says there is presently no provision for two metre wide sealed cycle lanes (nor a three-metre wide pathway suitable for cycling). If the Council requires the cycle lanes, it could impose a condition requiring them.
  1. [426]
    Fourth, Mr Douglas says the proposed bus stop on Oakey Flat Road will restrict sight lines for exiting motorists. In the opinion of Mr Douglas, sight lines for existing motorists will be restricted by standing buses and potentially, at times, waiting passengers. Mr Viney says that the analysis prepared by Mr Douglas should be taken as indicative only. He notes that the bus stop may be relocated. Although ANH’s proposed plan shows the location of a bus set down area, as it is not on ANH’s site, I consider the notation indicative only. The location of a bus set down area is a matter that will ultimately be determined by the relevant authorities (i.e. Translink and the Council). As such, these difficulties may not need to be resolved. Alternatively, as I have observed at paragraph [263] above, they may be able to be resolved during detailed design. 
  1. [427]
    Fifth, Mr Douglas says the angle and width of the exit lane does not accommodate the swept path of a 19 metre articulated vehicle, such as a tanker serving the service station. He regarded this as particularly problematic given the exit lane will be constructed with retaining walls on each side. Mr Douglas demonstrated the alleged inadequacies on a plan that showed the edge of the retaining wall in blue and the swept path of a 19 metre articulated vehicle in red. Although the difference between the two lines was minimal, Mr Douglas does not consider it appropriate to leave this matter to be dealt with as part of any detailed design. He is of the view that the retaining walls required on ANH’s site reduce the flexibility to change the design without affecting the location of buildings on the site. Mr Viney disagrees that the ramp is inadequate. He says that while the space is tight, the plotted swept path shown on ANH’s proposed plan allows for clearance to walls. He also says that, in any event, any widening of the egress path would be a minor change. He says that, with current technology, retaining walls can be designed to fit within 200 millimetres. I prefer the evidence of Mr Viney on this issue. Mr Douglas’ position seems unduly pessimistic.  It also reflects an insistence on an unnecessary level of detail given ANH only seeks a preliminary approval.  I do not consider the absence of detailed design on this issue of itself warrants refusal.  
  1. [428]
    Sixth, Mr Douglas says the currently proposed grading for access into the ANH site is inadequate. Mr Douglas prepared two plans to demonstrate the nature of the inadequacies and the impact on the design of ANH’s site. He annotated each of those plans with the minimum grading requirements under Australian Standard 2890.2, assuming the access ramp starts at the new site boundary he says would be necessary for the relevant cross section shown in the plan. He says that in order to accommodate the changes to the grade shown by him on his plans, there would need to be reasonably significant changes to the layout.
  1. [429]
    The new site boundary shown by Mr Douglas in Annexure A to his Supplementary Expert Witness Statement assumes the Council will require Oakey Flat Road to be upgraded in accordance with the arterial road street and road typology cross section from the Integrated Design Planning Scheme Policy. That cross section differs from that suggested by Mr Viney in that it would require the provision of a 5.5 metre wide front verge, a three metre wide pedestrian zone, and a 1.5 metre wide rear verge. The total required road reserve width for such a cross section is 42.7 metres. Having regard to s 7 of Appendix A of the Integrated Design Planning Scheme Policy, I am not satisfied that the assumption is appropriate.  The Council’s decision to approve the BGM development without requiring an upgrade to its Oakey Flat Road frontage consistent with the arterial road street and road typology cross section also causes me to doubt the reasonableness of Mr Douglas’ assumption.
  1. [430]
    The new site boundary shown in the other plan prepared by Mr Douglas, Exhibit 145, assumes a cross section in accordance with that suggested by Mr Viney, but also makes provision for an indented bus set down area.  As I have already noted in paragraph [426] above, the location of a bus set down area is a matter that will ultimately be determined by the relevant authorities.  As such, there is doubt that the matters assumed by Mr Douglas will eventuate.
  1. [431]
    Mr Viney does not accept that appropriate gradients could not be achieved. He accepts that the grades may not be in accordance with the recommended grades and transitions in the applicable table in Australian Standard AS2890. However, Appendix A to Australian Standard AS2890.2:2018 provides for there to be a manual check of the vertical alignment for adequacy of ground clearance. By following that process, Mr Viney was able to design a transition that permitted ground clearance for a 20 metre long semi-trailer. Mr Viney also noted that an alternative means of addressing the ramp grade issue is to arrange delivery twice per week by a smaller fuel tanker that would access the site via Raynbird Road. Although Mr Pekol considers it preferable on a “greenfield” site to aim to accommodate the appropriate design vehicle, he agrees with Mr Viney that a smaller fuel tanker would address the potential ramp issue.  Delivery in that manner could be the subject of a condition.  I accept Mr Viney and Mr Pekol’s evidence. 
  1. [432]
    Further, and in any event, even if changes to the layout are required to accommodate appropriate ramp grades, I am not persuaded that they would result in significant changes to the layout. Having regard to the impact shown on Mr Douglas plans, there is a reasonable prospect that necessary changes could be accommodated by moving some of the carparks from in front of the shops to the area marked “future development”. 
  1. [433]
    Accordingly, having regard to Mr Viney’s evidence and the reasonable prospect that any necessary changes could be accommodated without significant changes, I do not consider Mr Douglas’ concerns about ramp grades, of itself, warrants refusal of ANH’s proposed development. It is appropriate to leave this issue for the Council to consider at a later stage when it has the benefit of detailed design.
  1. [434]
    Having regard to s 7 of Appendix A to the Integrated Design Planning Scheme Policy, the evidence of Mr Viney and the reservations I have about Mr Douglas’ evidence as noted above, I do not accept BGM’s submission that the design of ANH’s proposed access is so unacceptable as to warrant refusal of its preliminary approval.

Will ANH’s proposed development provide acceptable on-site servicing arrangements?

  1. [435]
    BGM identifies two aspects of the on-site servicing arrangements that it says are inadequate: the proposed location of the medium rigid vehicle (“MRV”) service bay and the servicing arrangements for the fuel tanker.
  1. [436]
    ANH’s proposed design shows a medium rigid vehicle service bay outside the shops fronting Raynbird Road. Mr Douglas and Mr Viney both agree that location is unsuitable. Mr Douglas does not suggest that the site was such that it would not be feasible to provide an appropriately located service bay. Rather, he criticises the lack of certainty on the issue. Mr Viney suggested alternative locations, including the articulated vehicle service bay at the rear of the supermarket and a new service bay replacing several of the car parks adjacent the shops at the Raynbird Road frontage.  This issue does not warrant refusal of a preliminary approval.  It is another matter about which Mr Douglas insists on an unreasonable level of detail.  The evidence of Mr Viney satisfies me that a suitable location for a medium rigid vehicle service bay can be determined when design that is more detailed is carried out.
  1. [437]
    ANH’s proposed plan shows the swept path for a 19 metre long articulated vehicle delivering fuel to the proposed service station. It shows a tanker would have to reverse about 40 to 50 metres through a complex traffic area adjacent to the proposed fast food and service station tenancies.
  1. [438]
    Mr Douglas’ considers this service arrangement to be unsatisfactory. He also expresses concern that, while fuel is being delivered, there may be a need to establish an exclusion zone with an eight-metre radius, which would require closure of the service station and fast food outlet during delivery. Based on the condition recommended by the acoustic experts, the delivery would be between 7 am and 6 pm.  Mr Douglas considers such an arrangement to be unworkable.  Mr Douglas’ opinion on this issue is premised on an assumption he has made about the likely fill point on the ground.
  1. [439]
    Mr Viney does not accept that the exclusion zone would necessitate closure of the fast food premises. The impact of the exclusion zone can only be determined once the proposed location of the fill point is known. That information is not presently available. Mr Viney accepts that the service station would need to either adopt out of hours servicing by the fuel tanker or require the reverse manoeuvre to take place under supervision with the service station closed while being resupplied. He indicates that the closure of service stations within shopping centres during resupply is a reasonably common practice.
  1. [440]
    I prefer the evidence of Mr Viney on this issue. Mr Douglas’ opinions about the likely extent of impact on operations are founded on speculation about the fill point for the service station. At this point, it is impossible to know the precise extent of any exclusion zone and the impact of such a zone on the operation of tenancies in the centre. The Council will have an opportunity to assess this matter in any future development application. It is reasonable to defer consideration of the issue until then. I am satisfied on the evidence of Mr Viney that the issue, of itself, does not warrant refusal of a preliminary approval.

Are ANH’s traffic arrangements internal to its site acceptable?

  1. [441]
    BGM takes issue with three aspects of ANH’s internal arrangements. They are the excessive number of four way internal intersections, the poor definition to the entrance to the proposed drive-through, and the absence of design detail demonstrating that appropriate grading can be achieved between the car park and Oakey Flat Road. BGM submits that these issues demonstrate non-compliance with the requirements of performance outcomes PO38 and PO41 of the Local centre precinct provisions of the Centre zone code.[111]
  1. [442]
    ANH’s proposed plan depicts a number of four-way intersections. Mr Douglas says such intersections are typically discouraged in shopping centres as they involve a greater number of conflict points than a three-way intersection. Mr Pekol and Mr Viney do not consider the intersections to be unacceptable given the environment is a low speed environment and the crossing distance at each intersection is small.  Mr Pekol accepts that four-way intersections are quite a common arrangement in shopping centres.  The community would regard them as acceptably safe.  Further, as was observed by Mr Pekol, little would be required to change this aspect of the design. 
  1. [443]
    Mr Douglas’ position seems unduly pessimistic. It smacks of a counsel of perfection. I prefer the evidence of Mr Pekol and Mr Viney on this issue.
  1. [444]
    At the entrance to the proposed drive-through, motorists can approach from at least three different directions. Mr Douglas considers this design poor. He opines that it should be amended to better prioritise and channelise traffic entering the drive-through queue. Mr Viney accepts that the design is untidy. He says that is a common feature of service stations proximate fast food outlets. Mr Douglas’ position again smacks of a counsel of perfection. Common sense suggests that, with the benefit of signage, patrons would become familiar with the arrangements.
  1. [445]
    I have already considered the grading issue in paragraphs [428] to [433] above.  To the extent that compliance with the Planning Scheme is dependent on acceptable ramp grades, this issue is appropriately left for the Council to further assess as part of a future development application.  Mr Viney’s evidence satisfies me that there is sufficient probability of a solution such that this issue does not warrant refusal of a preliminary approval.
  1. [446]
    For the reasons provided above, I am satisfied that ANH’s traffic arrangements internal to its site do not, of themselves, warrant refusal.

Does the absence of a traffic impact assessment warrant refusal?

  1. [447]
    BGM submits that it is relevant that the traffic engineering assessment of the ANH proposal has been less than satisfactory during both the IDAS process and in this appeal.
  1. [448]
    There was no traffic impact assessment lodged with ANH’s development application. The development application was accompanied by an assessment prepared by Lambert & Rehbein that was about three pages. This is not surprising. At that stage, ANH was seeking a preliminary approval to change the use of the site from vacant to use for a local centre with the detailed design of the local centre, including its form and operational aspects, to be addressed in subsequent development applications.[112]
  1. [449]
    Mr Viney prepared a traffic impact assessment in September 2018, shortly prior to ANH’s application to change its development application. That traffic impact assessment assessed the changed proposal and utilised traffic counts obtained in July 2018.
  1. [450]
    Mr Douglas criticises the analysis because it was prepared using a superseded version of SIDRA, namely version 5.1 of SIDRA rather than the current version 8. He says the SIDRA modelling software is continually refined and upgraded and, in his experience, road authorities would reject an analysis prepared using such an outdated version of SIDRA. Mr Douglas opines that this alone should result in the refusal of ANH’s application.
  1. [451]
    I reject Mr Douglas’ opinion. Mr Douglas did not explain how the SIDRA program informs an overall traffic impact assessment, the nature of the differences between the versions, nor why version 5.1 would produce unreliable results. It is difficult to accept the criticism as valid when Mr Douglas himself did not use the current version in his assessment.
  1. [452]
    In the Supplementary Joint Report of Traffic Engineers, Mr Viney explains that the SIDRA program is a tool used to standardise the way intersections are analysed and reported. He explains that the intersections concerned are uncomplicated and do not require the use of a sophisticated computer program such as SIDRA to produce the critical results. They can be calculated from first principles. Mr Viney opines that the variation in SIDRA outcomes between version 5.1 and version 8 would be trivial in this case. This evidence from Mr Viney was not challenged. Mr Douglas did not contradict Mr Viney.
  1. [453]
    I accept Mr Viney’s evidence on this issue. He has practised as a traffic engineer since 1977. He has given evidence in this Court on numerous occasions. He has an abundance of professional experience in traffic engineering. It is not limited to the operation of computer programs to assess traffic impacts. I accept his opinion that the variation in SIDRA outcomes between version 5.1 and version 8 would be trivial in this case.
  1. [454]
    Further, and in any event, it must be remembered that ANH has applied for a preliminary approval only. Even if it is approved, the Council will have an opportunity to assess traffic impacts as part of future development applications. At that stage, it can request an assessment based on a more recent version of SIDRA, if it wishes. It can also request such further information as it requires to determine whether, for example, a right turn access into ANH’s site from Oakey Flat Road should be permitted.

Will ANH’s proposed local centre comply with s 3.14.5.6(3) of the Strategic framework?

  1. [455]
    The traffic issues dealt with above do not raise issues that are relevant to the alleged non-compliance with s 3.14.5.6(3) of the Strategic framework. BGM did not address the nature of the alleged non-compliance with this provision. The provision requires the environmental and amenity impacts arising from transport of materials to be minimised.[113]  It is a provision that is concerned with the impact of extractive industry operations.  It is irrelevant to ANH’s proposed development. 
  1. [456]
    The other paragraphs in s 3.14.5.6 of the Strategic framework are also not offended by ANH’s proposed local centre.  The traffic engineers agree that ANH’s proposed development is not likely to have an adverse effect on the safe and efficient transportation of the extractive resource along the designated haul route on Raynbird Road.

Conclusion regarding the traffic engineering considerations

  1. [457]
    In the absence of information about the Council’s requirements for future upgrading of Oakey Flat Road, Raynbird Road and the intersection of those two roads, the experts have attempted to assess the likely future requirements. The evidence suggests that there may need to be changes to ANH’s proposed design to accommodate the Council’s ultimate requirements. There are also other aspects of ANH’s proposed development that will need to be considered as part of the detailed design process. However, for reasons explained above, I am satisfied that there is sufficient scope to carry out the changes that are likely to be required. As such, I do not consider the numerous traffic-engineering issues raised by BGM and the Council are sufficient, of themselves, to warrant refusal of a preliminary approval.

Conclusion regarding the assessment of ANH’s proposed development against the assessment benchmarks

  1. [458]
    For the reasons provided above, ANH has satisfactorily demonstrated compliance with the Planning Scheme requirements with respect to acoustic and traffic engineering issues such that these issues do not warrant refusal of its development application. It has also demonstrated that its proposed development aligns with the Planning Scheme requirements with respect to convenient accessibility by motor vehicle and that it is at a location that is conducive to future provision of access by public transport.  ANH’s proposed local centre is well separated from the Narangba Valley Shopping Centre.  The design of ANH’s proposed local centre would result in a vibrant and attractive centre that promotes social interaction and community identity within the site itself.  However, ANH’s proposed development does not align with the planning strategy with respect to creation of walkable communities.  I am not satisfied ANH’s proposed local centre is at a location, and has a design, that will provide convenient accessibility by active transport from existing or developing residential areas or that it encourages walkability in any meaningful way.

ANH’s preliminary approval overriding the planning scheme

  1. [459]
    As I have mentioned in paragraph [202] above, ANH seeks a preliminary approval to change the use of ANH’s site from its presently vacant use to use for a local centre.  To achieve this, ANH’s application seeks a preliminary approval of a material change of use and approval of a variation request.  If ANH’s development application is approved, any future application for a development permit to authorise use of ANH’s site will be code assessable development, provided the proposed use forms part of a local centre development that is generally in accordance with the drawings in Exhibit 111.[114] 
  1. [460]
    BGM submits that if ANH’s application for a variation request is approved, the public will be shut out from properly considering ANH’s proposed development because of the lack of detail available during the public notification of ANH’s application. It says ANH’s present development intentions were not the subject of detailed information included in, attached to, or given with the application and available to potential submitters (including commercial competitors and local residents). It submits that, for those reasons, s 61(2)(c) of the Planning Act 2016 presents a major hurdle to approval of ANH’s development application. 
  1. [461]
    If the variation request is approved, future applications for development that is generally in accordance with the drawings in Exhibit 111 will not be subject to the public notification process associated with an impact assessable development application. As such, ANH’s proposed local centre will not be subject to further input from the public. I do not consider that this is sufficient to warrant refusal of ANH’s variation request for five reasons.
  1. [462]
    First, the application, as publicly notified, sought a local centre containing a full-line supermarket, specialty shops, medical centre, fast food premises and service station. That continues to be the case.
  1. [463]
    Second, ANH’s publicly notified application made it clear that ANH proposed to vary the Planning Scheme such that the detailed design of the local centre, including its form and operational aspects, would be subject to code assessment only. That continues to be the case. The development depicted in the concept plan available during public notification was only one of the options that could have been pursued as a code assessable option under the publicly notified variation request. Although the development shown in Exhibit 111 was not available, such a development was also an option that could have been pursued as a code assessable option under the publicly notified variation request.
  1. [464]
    Third, the concept plan included in the application and available during public notification closely resembles Exhibit 111 (albeit as a concept plan with the indication that approval of it was not sought).
  1. [465]
    Fourth, I accept ANH’s submission that if an absence of detail was a cause for concern, a submission could have been made about that. A concerned commercial competitor would not resile from making a submission on the basis that the proposal lacked detail about matters such as the scale of the supermarket. Similar considerations apply to potential residential submitters. In fact, BGM made a submission in which it said there was insufficient information about the proposed development. A few residents expressed support for the proposal but concern about the traffic impact on Oakey Flat Road or other roads nearby. One expressed a desire for more footpaths in the area. None of the submissions raised a concern about the lack of detail about the tenancy mix. Of the 216 submissions received in relation to ANH’s development application, 209 submissions supported the development (although a few of those in support expressed qualifications about some aspects of the proposed development). Many of the submissions were in a standardised form, but they demonstrate a clear understanding of the type of development that was proposed.
  1. [466]
    Fifth, Exhibit 43Q demonstrates there is a high degree of commonality between the assessment benchmarks against which ANH’s proposed development has been assessed, and those against which a future code assessable development application would be assessed. Approval of the preliminary approval for material change of use and the variation request would not avoid the need to undertake that further assessment.
  1. [467]
    I am satisfied that the nature and extent of ANH’s proposed development was sufficiently identified to enable any concerned person to lodge an informed submission.

Is there an economic, community and town planning need for an additional local centre and would it be appropriately met by the proposed development?

  1. [468]
    BGM and ANH each submit that there is a need for its proposed local centre.
  1. [469]
    The Planning Scheme recognises that new local centres may be established to appropriately serve the needs of communities in Next generation neighbourhoods. It contains provisions that address the nature of the services to be provided by local centres. It also requires that the economic need for a new local centre is to be sufficient to ensure it is viable, and that the establishment of a new local centre does not affect the vitality of other centres.
  1. [470]
    With respect to compliance with such requirements, I had the benefit of evidence from three economic need experts, Mr Duane, Mr Brown and Mr Ganly.  They agree about many key economic issues.

Will the proposed local centres provide appropriate services?

  1. [471]
    The purpose of a local centre is to meet the community’s needs for the day-to-day necessities of life. The Planning Scheme provides that residents of the local government area are to have convenient access to local centres that provide day to day convenience services, including retail, commercial and community activities. The services are to be clustered together. A local centre is to have a gross floor area between 5 000 and 7 000 square metres and provide a full-line supermarket, local specialty shops and lower order commercial uses.[115]  The Planning Scheme defines a full-line supermarket as a supermarket generally stocking more than 18 000 line items and having a gross floor area between 2 500 and 4 000 square metres. 
  1. [472]
    The economic need experts agree that either of the proposed developments would provide a local centre as envisaged in the Planning Scheme. Each provides for a full-line supermarket, shops that can include a range of retail and commercial (non-retail) facilities, a food and drink outlet and a fuel outlet. Each could incorporate medical and gym facilities.
  1. [473]
    ANH submits that its centre would provide a material advantage to the community that BGM’s proposed local centre would not. It says the material advantage stems from Coles’ commitment to be its anchor tenant, as compared to BGM’s proposed development only having the possibility of securing Cornetts to operate an IGA of an undetermined size. ANH says doubt surrounds whether a supermarket operated by IGA will eventuate. It also says that there would be greater activation of a Coles based centre and, as such, a Coles based centre would have a better ability to support, in the community’s interests, other retailers and service providers within the centre.
  1. [474]
    Coles’ interests in the ANH site has spanned about 10 years. Mr Zeller, the State Manager – Property for Coles explained that Coles have never wavered from the ANH site being the correct location for Coles. Mr Zeller attended a meeting with the Council in 2016 to confirm its commitment to that land. Coles originally executed a letter of offer about ANH’s site on 23 August 2011. An updated letter of offer was provided on 22 May 2018, confirming Coles’ continuing support for ANH’s proposed local centre. The Board endorsement of Coles Group was given on 6 June 2018. The most recent letter of offer with respect to ANH’s site was provided on 3 April 2019. Despite that, ANH’s agreement for lease with Coles is not absolute. It is subject to conditions, including ACCC clearance. 
  1. [475]
    BGM called evidence from Mr Booysen to address the probability that it could secure a suitable full-line supermarket operator. Mr Booysen holds a master’s degree in business administration from the Henley of London Business School. He has been the Chief Executive Officer of Cornetts IGA supermarkets since 2011 and a major shareholder since 2014. Cornetts has independently owned and operated supermarkets since 1973. It currently has 31 supermarkets in Queensland that are branded as either Supa IGA or IGA stores.
  1. [476]
    Mr Booysen gave evidence that it was “most certainly” his intention to develop a Supa IGA on BGM’s site if an approval was granted.  He formed that intention having undertaken an inspection of BGM’s site and the surrounding area, and having considered BGM’s proposed development plans and a demographic report about the area.  Mr Booysen also confirmed during cross-examination that the Board had given approval to investigate further the prospect of a Supa IGA on BGM’s site.  It has not progressed those investigations as it is awaiting the outcome of this appeal.
  1. [477]
    In addition, Mr Duane opines that a rational supermarket operator would be interested in operating from BGM’s site. As he explains, they would be enticed to do so by the current demand for a further supermarket in the trade area and the likely strong growth in the residential catchment west of Oakey Flat Road. The evidence of Mr Zeller that Coles is very keen to open further stores in the Moreton Bay Region supports the cogency of this opinion. Coles does not have an outlet within six kilometres of Narangba, nor any stores under construction in the area. Since at least 2015, Mr Zeller has recommended to the board of Coles that it should have a presence in this locality. Further, while Mr Zeller has some concerns about the design of BGM’s site and would not locate anywhere simply to fill a gap in the network, he confirmed that were BGM’s proposed centre approved and ANH’s proposed centre refused, BGM’s site “absolutely would come into … consideration”.  He accepted that if Coles did not proceed on BGM’s site, another full-line supermarket operator likely would.
  1. [478]
    Having regard to those aspects of the evidence referred to in paragraphs [474] to [477] above, I am satisfied that whichever proposed local centre is approved, it is likely that the relevant developer will be able to secure a full-line supermarket operator.  I accept that it is likely that ANH’s supermarket operator will be Coles.  However, I am not persuaded that ANH has a materially greater likelihood of securing a supermarket operator than BGM.  BGM is likely to secure Supa IGA, if not Coles.  Further, common sense suggests that other appropriate tenants will follow.  The expressions of interest tendered during the hearing suggest that neither site is likely to have difficulty securing a range of tenants that would attract custom to the respective sites and serve the public interest.
  1. [479]
    ANH submits that a Coles-based local centre would represent a superior outcome for the community than a Supa IGA. It says that a Supa IGA will inevitably be of a smaller scale than a Coles on the ANH site.  ANH submits that its proposed development also better serves the public interest as Coles is more popular with consumers than IGA. 
  1. [480]
    Mr Ganly gave evidence that Coles is a preferred brand to IGA having in the order of 30 per cent of the national grocery market compared to 8 per cent for IGA. This is unsurprising given the market penetration of Coles as compared to Supa IGA stores. Mr Ganly says that price difference is one of the key reasons that people prefer to shop at Coles and Woolworths compared to IGA.
  1. [481]
    In terms of the size of supermarkets and their product range, during cross-examination Mr Duane accepted that major supermarket operators typically tend to operate larger supermarkets than 3 000 square metres.  In particular, Coles and Woolworths prefer to have supermarkets of 3 200 square metres or greater.  That is the area they require to accommodate the range of goods they offer, which equates to about 30 000 lines or stock keeping units in the modern supermarkets.  Mr Zeller confirmed Coles’ need for such space.  He says that Coles could not presently offer a similar level of service in a 3 000 or 3 200 square metre store to that offered in a 3 400 square metre store. 
  1. [482]
    Despite that evidence of Mr Ganly and Mr Duane, having regard to the following three aspects of the evidence, I am satisfied that the residents of the defined trade area will be equally well served by a modern full-line Supa IGA as they would be by a Coles supermarket.
  1. [483]
    First, although I accept the evidence of the economic need experts that IGA is not as price competitive as Coles, the report from Choice indicates that, if you include specials, the IGA basket price is on par with the regular basket price (excluding specials) at the major chains. This is a testament to IGA’s “price match promise”.
  1. [484]
    Second, Mr Booysen was not challenged about his evidence that the Supa IGA stores can be the same size as Woolworths and Coles supermarkets, carry the same range, and offer prices that are highly competitive. Mr Booysen explained that Cornetts Supa IGA stores have a footprint between 2 500 and 3 000 square metres.  They stock between 18 000 and 24 000 line items on average.  Mr Booysen described the Supa IGA stores as comparable to the major supermarket operators in that they have deli, bakery, butchery, grocery, supermarket, freezer and chiller departments. 
  1. [485]
    In his oral evidence, Mr Booysen described how it was his intention to develop a supermarket on the BGM site similar to the Supa IGA at Mt Cotton.  Mr Booysen described that supermarket in the following way:

“First of all, it’s a big supermarket, close to 3000 square metres of supermarket. It’s got a number of categories and a number of service departments that other supermarkets don’t necessarily have. It has a free cut butchery. That means that not all meat is packaged. It has cheese cold rooms. It has olive oil cold rooms. It’s probably the best supermarket that’s landed on the ground in the last 10 years and it’s just an – it’s got – it’s got a cafeteria inside the supermarket. It’s got a little coffee shop. It’s just an amazing piece of work from an independent retailer.

And - - -?--- And as I said, in my opinion it’s probably one of the best supermarkets in the last 10 years.

And when you’re talking about supermarkets, you’ve not just talking about IGA supermarkets?---No. Coles, Woolworths, I don’t believe they’ve put anything like this on the ground. I haven’t seen every one they’ve opened, but the ones that I have seen – I do believe that this supermarket is an incredible piece of work.”

  1. [486]
    Photographs of the store supported Mr Booysen’s description.
  1. [487]
    Mr Booysen also explained that in considering the range of goods offered by different supermarket operators, one could not simply compare the gross floor area of the supermarkets. It depends on the way the store is operated. Traditionally the percentage of Coles and Woolworths stores dedicated to back of house operations as compared to selling area is split 30/70. In comparison, the independent stores dedicate less space to back of house as they utilise taller stock racks within the store.
  1. [488]
    Mr Booysen also explained how a Supa IGA store can offer greater product differentiation than Coles and Woolworths. As Supa IGA stores are independently operated, they are able to source goods direct from producers. Supa IGA stores can also customise the offer in any store based on the demographic profile for the area and the requests of customers. Mr Brown gave evidence that these benefits offered by Supa IGA stores are not available in the large supermarket chains. Coles and Woolworths offer a generic range of goods nationwide.
  1. [489]
    Mr Zeller’s evidence supports that of Mr Booysen. Mr Zeller says that while Coles could not offer its current range in a store of about 3 000 square metres, there is a trend towards reducing the back of house area as compared to the area dedicated to displaying stock keeping units.  He says that the ability to provide a similar range in a smaller footprint has a lot to do with how fast the store can be restocked and the relationship between the back of house and selling floor areas.  Mr Zeller accepts that a Supa IGA could “absolutely” provide the same range of offer as a Coles.  He acknowledges that there are some very good Supa IGA operators in Queensland.
  1. [490]
    Third, a Supa IGA can offer more advantageous trading hours than Coles and Woolworths. Some stores open from 6 am to 9 pm. 
  1. [491]
    Having regard to the evidence referred to in paragraphs [483] to [490] above, I am satisfied that the community will be well served, regardless of whether the full-line supermarket operator is one of the major chains or a Supa IGA.  Each has their respective benefits.  ANH has not established that its commitment from Coles means the public interest is far better served by ANH’s proposed local centre.

Will the proposed local centres address an identified economic need?

  1. [492]
    The Planning Scheme seeks to ensure that any new local centre is subordinate to higher order and district centres within the region.[116]  It is to be central to the catchment it serves and separated from existing centres.  The Planning Scheme states that, generally, local centres should be separated from other centres by 2 400 metres, measured from the middle of each retail centre.  This is to reduce the extent of catchment overlap.[117]  That requirement is consistent with the stated planning goals that there be a strong network of activity centres and that activity centres are to be vibrant and attractive places.[118]  The Planning Scheme also anticipates that any new local centre will be viable.[119]
  1. [493]
    The proposed sites are approximately 600 metres apart. Neither local centre is separated from the Narangba Valley Shopping Centre on Young Road by 2 400 metres.  BGM’s proposed local centre is 1.5 kilometres by road from the Narangba Valley Shopping Centre and ANH’s proposed local centre is 2.1 kilometres from it. 
  1. [494]
    The economic need experts agree on the defined trade area for the proposed local centres. The same defined trade area applies to both centres. It comprises two primary sectors and two secondary sectors. The primary west sector incorporates areas generally west of Oakey Flat Road from which the subject sites would be the first opportunity for residents’ local shopping. The area includes the land in the Next generation neighbourhood precinct of the General residential zone. The primary east sector is land that is generally on the eastern side of Oakey Flat Road. Residents of that area have convenient access to the subject sites and to Narangba Valley Shopping Centre.
  1. [495]
    The economic need experts agree that the defined trade area is anticipated to contain 20 480 people at June 2018, with almost 40 per cent of residents living within the two primary sectors.  The experts forecast that this will grow to 22 173 by 2021 and 24 673 by 2026.
  1. [496]
    The defined trade area currently contains one local centre, Narangba Valley Shopping Centre. That centre is anchored by a Woolworths supermarket, which was expanded about five years ago to 3 300 square metres.  It also contains other retail, commercial, and community uses. 
  1. [497]
    There is one neighbourhood hub in the defined trade area, Excelsior Park. It contains a small IGA X-press supermarket of approximately 300 square metres and a further 300 square metres of food-based retail uses.
  1. [498]
    There are two further neighbourhood hubs further afield at Burpengary Station and Narangba Village. There is a district centre at Burpengary and specialised and higher order centres further afield at Morayfield.
  1. [499]
    The two centres within the trade area are well tenanted and have a low vacancy rate (2.8 per cent). Beyond the trade area, the neighbourhood hubs at Burpengary Station and Narangba Village are thriving with no vacancies. Further afield, Burpengary Plaza underwent a major expansion recently, adding almost 10 000 square metres of floorspace, including a Kmart discount department store.
  1. [500]
    The economic need experts also identify that the Narangba East Local Development Area Plan indicates that the neighbourhood hub at Narangba Village is to expand to a district centre and a new local centre is to be developed at the intersection of Callaghan and Morgan Roads, Narangba East. There is also an approval to expand the neighbourhood hub centre at Burpengary Station.
  1. [501]
    Each of the economic need experts undertook their own retail analysis of the need for a local centre and its potential impact on existing and planned centres. Although there are differences in the analyses, each expert opines that there is a need for one further local centre in this locality, but not two. In their Joint Expert Report dated 21 May 2018, the experts predict an initial sizeable impact on Narangba Valley Shopping Centre – in the order of 13 to 22 per cent. This impact assumes the approved centre would commence trading in 2020. The experts made that assumption at a time when it was anticipated the hearing would conclude in June 2018. In any event, each expert opines that the impact would not affect the viability or vitality of the Narangba Valley Shopping Centre as that centre is trading very strongly and there is significant growth anticipated within the primary west trade area. The growth will largely ameliorate the predicted trading impact. Each expert also opines that approval of one of the proposed local centres would not affect the vibrancy or vitality of the other existing and planned centres.
  1. [502]
    I accept the evidence of the experts that either centre would fulfil the role of a local centre and that the residents of the defined trade area need one further local centre in this locality, but not two. The opinions are underpinned by detailed analysis and cogent explanations. The neighbourhood hub approved for BGM’s site is insufficient to meet the economic need identified by the experts.
  1. [503]
    There is a degree of catchment overlap between the defined trade area for the proposed local centres and the catchment for the Narangba Valley Shopping Centre on Young Road. Despite that, having regard to the evidence of the economic need experts, including that referred to in paragraphs [81], [83] and [84] above, I am satisfied that each proposed local centre is sufficiently separated from the Narangba Valley Shopping Centre to be viable and to ensure that the Narangba Valley Shopping Centre remains economically viable, vibrant, and attractive.  I also accept the opinion of the economic need experts that approval of one local centre would not have an unacceptable impact on the vitality and vibrancy of other existing and planned centres. 
  1. [504]
    ANH submits that its site is superior as it is a greater distance by road from the Narangba Valley Shopping Centre than BGM’s site. Mr Ganly opines that the impacts on the Narangba Valley Shopping Centre caused by BGM’s proposed local centre would be higher than those caused by ANH’s proposed local centre. This is because BGM’s proposed local centre is closer to Narangba Valley Shopping Centre. This opinion does not sit comfortably with Mr Ganly’s opinions that ANH’s site serves the Next generation neighbourhood to the west as well, or better than, the BGM site and that ANH performs even better with respect to existing residential areas to the east and south. Mr Duane and Mr Brown say that the likely trading performance of each of the two proposed centres and their impact on the Narangba Valley Shopping Centre would be similar. They give three reasons for their opinion. First, the sites are within 600 metres of each other. Second, many customers would visit the centres by car. Relevant to that, both centres have visibility to Oakey Flat Road and are located on a site that is central to and conveniently accessible by motor vehicle from the intended catchment. Third, the proposed composition of the centres is very similar.  I prefer the evidence of Mr Duane and Mr Brown.
  1. [505]
    For the reasons provided above, I am satisfied that there is an economic need for an additional local centre.

Conclusion regarding need

  1. [506]
    Need, in planning terms, is widely interpreted as indicating a facility that will improve the ease, comfort, convenience and efficient lifestyle of a community.[120] 
  1. [507]
    The economic analysis demonstrates that there is an economic need for the development. The existing and approved centres do not adequately address that need.
  1. [508]
    The Planning Scheme recognises that as the Next generation neighbourhoods are developed, they will have a legitimate need, in a land use sense, for a local centre. The Planning Scheme does not map the intended location of such centres, rather it sets criteria that guide the selection of a location that would advance the planning goal to shift away from car-dominated centres and encourage healthy lifestyles and strong communities through opportunities for social interaction. These location and design requirements have already been addressed above.
  1. [509]
    The Narangba Valley Shopping Centre is too distant from the emerging community west of Oakey Flat Road to be conveniently accessible by active transport for the residents of the trade area west of Oakey Flat Road. Presently, there is no local centre within a 15-minute walk for those residents. The Planning Scheme does not identify a particular site that would address the planned provision of the social and lifestyle benefits associated with having a centre located in a walkable neighbourhood. Either of the proposed local centres would address that unsatisfied need to some extent.
  1. [510]
    There is a prospect that a site further to the west, towards the middle of the Next generation precinct, may achieve greater separation from the Narangba Valley Shopping Centre on Young Road, and thus better achieve the requirement for separation of centres. However, I accept the evidence of Mr Buckley that any such site would not be as accessible to the residents of the defined trade area. As such, it would not address the aims of the Planning Scheme with respect to convenient accessibility.
  1. [511]
    A new local centre on either of the proposed sites would also improve the well-being of the community by providing increased competition and choice. Many of those in the community who lodged submissions about ANH’s proposed development made particular reference to that benefit. So did a number of lay witnesses who provided statements in support of BGM’s proposed local centre.
  1. [512]
    The respective location and design strengths and weaknesses of the local centres proposed by each of BGM and ANH have been addressed already above. So has the importance the Planning Scheme places on its planning strategy regarding walkable neighbourhoods. Although either proposed local centre would improve the services and facilities accessible by active transport and provide opportunities for social interaction, for reasons already identified above, ANH’s site is not as well placed to deliver those community benefits as the BGM site.
  1. [513]
    For the reasons provided above, I am satisfied that there is an economic, community and town planning need for one additional local centre to serve the residents of the defined trade area, particularly those in the emerging residential catchment to the west of Oakey Flat Road. This factor favours approval of either proposed local centre. It more strongly favours approval of BGM’s proposed local centre given it more closely aligns with the Planning Scheme’s requirements that any need be met by new local centres have convenient accessibility by active transport.

What are the comparative benefits of the proposed local centres and how should the planning discretion be exercised?

  1. [514]
    BGM and ANH each allege that its proposed development is superior in numerous respects to that advanced by the other. They identified a number of relevant matters that they each contend favour approval of their proposed local centre.

Do the relevant matters relied on by ANH favour approval of its proposed local centre?

Architecture and urban design

  1. [515]
    ANH contends that from an architectural and urban design perspective, BGM’s proposed local centre is inferior for two reasons. 
  1. [516]
    First, ANH contends that BGM’s site involves physical limitations and constraints that result in a disjointed site planning arrangement, a poor sense of arrival and an expanse of car park hardstand and internal roads, all of which result in disadvantages and inefficiencies for customers. It has not established those contentions for the reasons provided in paragraphs [130] to [162] above.
  1. [517]
    Second, ANH contends that the BGM proposal is fundamentally a car-based design, which lacks legibility and does not achieve a main street development identity or a village atmosphere. It has not established those contentions for the reasons provided in paragraphs [59] to [69] and [100] to [162] above.

Traffic planning

  1. [518]
    ANH contends that its proposed local centre is superior from a traffic engineering perspective for six reasons.
  1. [519]
    First, it has a frontage to, and can be accessed from, a sub-arterial road. This has not been established. The Planning Scheme Overlay Map – Road Hierarchy maps that part of Oakey Flat Road adjacent ANH’s site as a Council arterial road and Raynbird Road as a collector road.
  1. [520]
    Second, ANH says BGM’s proposed local centre has inadequate provision of car parking spaces. ANH submits that its proposed local centre is superior in that regard.
  1. [521]
    BGM provides car parks at a rate of 4.51 spaces per 100 square metres of gross floor area. ANH’s proposed local centre provides car parks at a rate of 5.03 spaces per 100 square metres of gross floor area.
  1. [522]
    Mr Viney opines that a minimum of 5 spaces per 100 square metres of gross floor area is required to accommodate the 85th percentile demand.  He says that it would not be acceptable to have overflow or employee parking in Sovereign Drive or Champion Circuit.  Mr Zeller gave evidence that Coles is generally concerned about the rate of car parking on BGM’s site and that car parking rates at or below 5 cars per 100 square metres is inadequate to provide for the convenience needs of its customers. 
  1. [523]
    Mr Pekol is of the view that there is a shortfall of 24 car parks. He says this shortfall could be made good through minor adjustment to the car park design.
  1. [524]
    Mr Douglas considers that the number of car parks provided is adequate given the mix of uses proposed in BGM’s centre. He provides a cogent explanation in support of his opinion.
  1. [525]
    Having regard to the mix of uses proposed on BGM’s site and the accessibility of the centre by active and public transport, I am not persuaded that BGM’s proposed local centre has inadequate provision of car parking spaces.  Nevertheless, if the Council is concerned about the shortfall, it can address the matter through the imposition of conditions.  Both Mr Pekol and Mr Douglas demonstrate how further carparks could be provided while maintaining a design that is generally in accordance with BGM’s proposed plans.  The Council can consider whether it wishes to impose a condition at a later stage.
  1. [526]
    In any event, ANH has not demonstrated that its proposed local centre is superior in this regard. Its proposal is for a preliminary approval only. There is a reasonable prospect that the ultimate number of car parks provided on ANH’s site may change as part of the detailed design process.
  1. [527]
    Third, ANH says the eastern access arrangements for the BGM’s proposed local centre is unacceptable in the form currently proposed and needs to be modified.
  1. [528]
    Mr Viney says the eastern access should provide a short left turn lane of approximately 30 metres in length commencing at the tangent point of the future left turn lane from Oakey Flat Road.  He says this modification is appropriate because there is only a single westbound lane in Sovereign Drive.  Mr Viney says that without the modification, site entry traffic would slow all westbound traffic.  Mr Pekol and Mr Douglas disagree.  They say the width of the adjoining section of Sovereign Drive is approximately 5.5 metres, which is sufficient to allow a through vehicle on Sovereign Drive to pass another vehicle slowing down to turn left into BGM’s site.  I accept the evidence of Mr Pekol and Mr Douglas.
  1. [529]
    Mr Viney also says the eastern access should permit entry only.  He says all egress traffic should use the all-movements access point.  His opinion is founded on his concern that the egress driveway would generate some U-turn traffic at the intersection of Champion Circuit, which could not be undertaken by a standard B85 car.  Mr Viney is also concerned that the proximity of the egress to the roundabout would require drivers turning left from BGM’s site to concentrate attention on the limited sight distance to traffic entering Sovereign Drive from the roundabout rather than the safety of pedestrians in the vicinity.  Mr Pekol and Mr Douglas disagree.  They say the concern about U-turns at Champion Circuit could be addressed by signage and that there is otherwise a convenient opportunity to turn around at the roundabout at Splendid Parade and Grace Crescent.  I prefer the evidence of Mr Pekol and Mr Douglas in this regard.  Common sense also suggests that local residents would quickly become familiar with the access limitations and would use the all turns access point if they wished to exit the centre and head east.  With respect to the proximity issue, I also prefer the evidence of Mr Pekol and Mr Douglas that there is ample sight distance given vehicles would be exiting the Oakey Flat Road and Sovereign Drive roundabout at relatively low speeds.
  1. [530]
    In any event, should the Council hold concerns about these matters, it appears that the design issues could be addressed by the imposition of conditions. The Council can consider whether it wishes to impose a condition on this issue at a later stage.
  1. [531]
    Fourth, ANH says its site is of a shape that allows a more conventional arrangement between the built form and location of retail space and car parking areas needed to support that retail space.
  1. [532]
    Mr Viney expresses concern that the first internal intersection within BGM’s proposed local centre, located approximately 30 metres from the all movements access to Sovereign Drive is too complex.  Mr Pekol and Mr Douglas agree that it should be modified.  Mr Pekol believes this could be achieved without materially altering the balance of the proposal.  Mr Douglas expects it to be resolved as part of the operational works processes.  I accept the evidence of Mr Pekol and Mr Douglas.  It is consistent with Mr Viney’s view that the matter does not warrant refusal.
  1. [533]
    Mr Viney also considers that the layout of BGM’s centre will result in unnecessary on-site circulation by vehicles and unnecessary exposure to excess vehicle movements for those who choose to walk between the buildings. Mr Pekol disagrees. In his opinion, the layout is typical of developments of this type and does not result in any more on-site vehicle circulation than at other similar sites. Mr Douglas is of the view that the layout is similar to many comparable sites and the internal connectivity is beneficial because it avoids the need for trips between uses to unnecessarily impact Sovereign Drive. I prefer the evidence of Mr Pekol and Mr Douglas.  I do not regard the layout of the centre to be unacceptable for the reasons provided in paragraphs [139] to [162] above. 
  1. [534]
    In addition, while ANH’s site is of a shape that allows a more conventional arrangement, I am not persuaded this demonstrates its proposed local centre is more favourable.  As was explained by Mr Buckley, the Planning Scheme is seeking to shift away from conventional shopping centre design.
  1. [535]
    Fifth, ANH contends that BGM’s proposed local centre involves widely separated retail areas with resultant disadvantages and inefficiencies for pedestrians. ANH has not established those contentions for the reasons provided in paragraphs [139] to [162] above.
  1. [536]
    Sixth, ANH says BGM’s proposed local centre requires the export of a large volume of excess fill onto the traffic network.
  1. [537]
    The excess soil to be removed from BGM’s site to facilitate the earthworks required for its proposed local centre is approximately 30 000 to 40 000 cubic metres.  ANH’s proposed local centre requires the importation of fill in the order of approximately 15 000 cubic metres of fill.
  1. [538]
    In the Joint Expert Report of Civil Engineering Expert Witnesses, Mr McAnany (the civil engineer retained by ANH) disagreed with Mr Collins (the civil engineer retained by the Council) that the details of the haulage of soil off BGM’s site can be appropriately managed by conditions. He considered there to be unacceptable uncertainty about the ability to find an acceptable haulage route.
  1. [539]
    Mr Pekol is of the view that the issue can be managed with appropriate conditions. His opinion is informed by the fact that the movement of soil from construction sites occurs over a finite time period. The traffic impacts of such movements are typically mitigated by the preparation of a construction traffic management plan. He says it is common for such a plan to be required by a condition of a development approval and for it to be prepared after the grant of a development permit for a material change of use. Mr Douglas agrees with Mr Pekol.
  1. [540]
    Mr Viney does not raise the export of fill as a traffic engineering matter in any of his written reports or statements. When cross-examined about it, Mr Viney said he thought the associated truck movements may be a concern for local residents. However, he accepts that the existing approval of a neighbourhood hub on the BGM site is relevant in terms of the reasonable expectations a local resident would have in this regard. It would also entail construction vehicle movements. The existing and ongoing work within the Narangba Heights residential estate is also relevant to the reasonable expectations of local residents. It involves significant earthworks and construction vehicles utilising Sovereign Drive. During cross-examination, Mr Viney also agreed that the transport of the soil would be subject to a traffic-management plan and that it was not unusual to have heavy machinery and work undertaken on a particular site for a period of time to construct a centre. 
  1. [541]
    I am satisfied that the issue can be satisfactorily addressed by way of conditions. Condition 33 of the Council’s decision notice addressed the issue. It required a construction management plan to ensure that the development works (including all construction, demolition and excavation) do not adversely affect the health, safety, amenity, traffic or environment in the surrounding area. The plan is to include a proposed haulage route for fill exported from the site. I accept the evidence of Mr Pekol that BGM’s operational works approval for bulk earthworks (dated 1 March 2018) also addresses the issue.  It includes conditions that address the haulage of soil from the BGM site.
  1. [542]
    I would expect any approval of ANH’s proposed local centre would be subject to a similar condition to BGM’s proposed local centre.  As such, the movement of fill is not a point of difference between the proposed local centres.

Visual amenity

  1. [543]
    ANH contends that its proposed local centre is superior from a visual amenity perspective for two reasons.
  1. [544]
    First, ANH contends that BGM’s proposed local centre has greater potential to generate visual amenity impacts, including light impacts, on existing sensitive receptors.
  1. [545]
    Exhibit 125 illustrates this difference in proximity and intensity of existing residential development between BGM’s site and ANH’s site. Nine of the ten houses on Sovereign Drive are located within 25 to 29 metres of BGM’s site.  For ANH’ site, the closest residents live at least 60 metres away.
  1. [546]
    I accept that BGM’s proposed local centre would change the outlook for residents who live opposite it on Sovereign Drive.  I have already considered the visual impact of BGM’s proposed development in paragraphs [100] to [172] above.  The visual impacts from a retail centre on BGM’s site must be within the reasonable contemplation of the residents of Sovereign Drive.  This is because a neighbourhood hub retail centre of approximately 1 090 square metres has already been approved over part of the site.  In addition, the Planning Scheme provides for new local centres on central intersections in the Next generation neighbourhood precinct of the General residential zone.  As such, I do not consider the visual impact of BGM’s proposed local centre to be unacceptable.
  1. [547]
    I have already considered the visual impact of ANH’s proposed development in paragraphs [270] to [310] above.  There is no unacceptable visual impact on residents associated with ANH’s proposed local centre because of the substantial separation between ANH’s site and existing houses.  During cross-examination, Mr McGowan agreed that ANH’s proposed local centre is better located to avoid the potential for adverse visual amenity or character impacts on existing residents.  In addition to the separation distances of at least 60 metres, there is extensive areas of vegetation in between ANH’s site and the residences on Oakey Flat Road and Raynbird Road.  For the Raynbird Road residents, the intervening topography is such that they will not get a view into the ANH site at all.  Mr McGowan agreed that ANH’s proposed local centre is well separated visually from existing residences, and that “no existing residents will be affected, not in any unacceptable way”.
  1. [548]
    The potential lighting impacts on sensitive receptors relate to fixed lighting of the premises and signage, headlight glare within the car park and headlight glare from vehicles exiting the premises.
  1. [549]
    Mr King and Mr Forbes agree suitable conditions could be applied to both sites to achieve suitable lighting amenity outcomes in relation to the lighting of the premises and signage. I accept their evidence.
  1. [550]
    For the reasons provided in paragraphs [180] to [200] above, I am satisfied that BGM’s proposed local centre will not result in unacceptable impacts from headlight glare.  I accept the evidence of Mr King and Mr Forbes that there will be minimal impact of headlight glare occasioned by ANH’s proposed local centre.
  1. [551]
    Although BGM’s proposed local centre is closer to existing residences, the sensitive receptors along Oakey Flat Road and Raynbird Road proximate ANH’s site presently enjoy a darker environment.  Street lighting introduced because of ANH’s proposed local centre will change that.  I accept the evidence of Mr King that the impact will not be unacceptable.  Separation distances, topography and vegetation will mitigate the impacts.  Nevertheless, I accept the evidence of Mr Forbes that there may be a more noticeable impact on the residents of houses proximate to ANH’s site from the introduction of street lighting than to the residences on Sovereign Drive because of lighting introduced as part of BGM’s proposed local centre.  In addition, lighting impacts from a retail centre on BGM’s site must be within the reasonable contemplation of the residents of Sovereign Drive given a neighbourhood hub has already been approved over part of the site.
  1. [552]
    For the reasons provided above, I am not persuaded that there is any material difference between the acceptability of the proposed local centres with respect to visual and lighting impacts.
  1. [553]
    ANH’s second reason for contending its proposed local centre is superior is that BGM’s proposed local centre requires substantial earthworks. The earthworks will involve a greater overall vertical variation in topography, a greater depth of cut, and a steep section of retaining wall at the western end of the car park.
  1. [554]
    Broad quantitative comparatives of this nature are unhelpful in determining impacts. They ignore that BGM’s proposed local centre will present vastly more significant retaining walls along its road frontages and that the retaining walls required by BGM’s proposed local centre are not highly visible from the street or adjoining properties.  For reasons provided in paragraphs [139] to [160] above and paragraphs [270] to [310] above, BGM’s proposed local centre will achieve a better interface with the street through active building frontages and less significant differences in the levels at the street edge.  Further, the retention and enhancement of the natural waterway and the associated vegetation in the environmental corridor within BGM’s site ensures the main natural features of the site are maintained.  In contrast, ANH’s proposed local centre will completely remove the natural gully that runs through the centre of the site.

Economic need

  1. [555]
    ANH contends that its proposed local centre is superior from an economic need perspective for four reasons.
  1. [556]
    First, ANH’s says its proposed local centre is accessible from a sub-arterial road, being Oakey Flat Road, and is prominent from the intersection of that road with Raynbird Road.
  1. [557]
    As I have already noted, the Planning Scheme Overlay Map – Road Hierarchy shows that part of Oakey Flat Road adjacent ANH’s site as a Council arterial road, not a sub-arterial road.  Regardless, I accept that ANH’s proposed local centre is prominent from the intersection of that road with Raynbird Road.  That is a positive feature of ANH’s proposed local centre.
  1. [558]
    Second, ANH says its proposed local centre is generally more accessible to the catchment population. ANH submits that because the locality and each of the proposed local centres are vehicle dependent, a vast majority of patrons will attend either centre by car.  As such, it says its proposed local centre is better located to more conveniently cater for that great majority of customers.  It submits that any advantage of BGM’s proposed local centre in terms of walkability (in isolation) is marginal and also relates to a far more minor portion of the community that the centre is intended to serve.  Consequently, ANH submits its proposed local centre better fulfils the intent of the nominated assessment benchmarks with respect to accessibility.
  1. [559]
    With respect to its site’s greater accessibility by car, ANH relies on evidence about accessibility for residents on the homebound journey. During cross-examination, Mr Brown accepted that the homebound journey is an important one in terms of retail offer.  It is associated with convenience.  Mr Brown accepts that residents returning from the south are likely to exit the Bruce Highway and use Oakey Flat Road.  A significant proportion of residents would undertake that journey.  For those residents, the first centre they would reach would be the ANH site.  For the residents to the south of Oakey Flat Road, New Settlement Road, and Raynbird Road, the ANH site would be as far as they need to travel.  All residents in the Next generation neighbourhood precinct would have the option of turning into Raynbird Road, and then north into the developing estates, be it the Satterley land or the Narangba Heights estate.  Mr Brown accepts that only residents living in the northern part of the primary west catchment would head further north and into Sovereign Drive.  By way of contrast, Mr Brown accepts that a centre on BGM’s site would require residents in the southern part of the primary west catchment to travel further to BGM’s site, and then back to their residences to the south.  Mr Vann also gave evidence about the advantage of ANH’s site being on the main road on the way home.  Mr Duane accepts that BGM would pull customers into Sovereign Drive in circumstances where they would not otherwise enter that road network.
  1. [560]
    The evidence about the homeward journey assumes the majority of residents would approach their residences from the south. Even accepting that to be so, it is apparent from the UBD map showing the road network in the broader locality that there is little difference in the accessibility of BGM’s site by motor vehicle. Common sense suggests that local residents would quickly become familiar with the most convenient means of accessing BGM’s site and would use the broader road network to approach the centre from a direction that was most convenient.
  1. [561]
    In terms of accessibility overall, whilst Mr Vann considers BGM’s site is slightly better on the walkability score, when accessibility is rated overall, he considers that the ANH proposal is better for the catchment. I have considered the accessibility of the respective proposed local centres by motor vehicle, active transport and public transport, and the importance of walkability, in paragraphs [47] to [71] and paragraphs [216] to [265] above.  For the reasons explained in those paragraphs, ANH has not demonstrated that its proposed local centre better fulfils the intent of the nominated assessment benchmarks with respect to accessibility.
  1. [562]
    ANH’s third contention is that its proposed local centre achieves better separation from the existing Narangba Valley Shopping Centre and will have a lower impact on that centre. Although it achieves better separation, I do not accept that it will have a lower impact on the Narangba Valley Shopping Centre for the reasons provided in paragraphs [503] and [504] above.
  1. [563]
    Fourth, ANH says its proposed local centre is capable of satisfying the established need for a local centre in the locality, as it involves a committed full line supermarket anchor tenant (Coles). It says it is not known whether BGM will secure a supermarket tenant. ANH also says it is not known whether any tenant secured by BGM would require the full gross floor area of the supermarket the subject of BGM’s proposal plans.
  1. [564]
    I have already addressed ANH’s contention about the respective level of commitment by supermarket tenants in paragraphs [473] to [478] above.  ANH has not demonstrated that it is in a materially better position in this regard.  As for ANH’s suggestion that there is uncertainty about BGM requiring the full gross floor area of the supermarket, the evidence does not demonstrate that the uncertainty is such that approval of BGM’s proposed local centre is futile.  Should BGM seek to reduce the size of its proposed supermarket, it will need to demonstrate that the reduction is generally in accordance with the plans or that it involves no more than a minor change.  That is not a matter for me to consider.  That matter is appropriately left for consideration at the relevant time.  I am to assess BGM’s local centre as proposed. 
  1. [565]
    In addition to those four matters, in its submissions ANH notes that both ANH and BGM have an expansion area that could be the subject of future development applications. Mr Duane considered that feature of BGM’s site to be a public benefit as it provides an opportunity to accommodate further community facilities. ANH submits the benefit is amplified on its site because with Coles as an anchor tenant, its site will have superior success with activation of the centre. Having regard to the location and design constraints of ANH’s proposed local centre that I have already mentioned, I am not persuaded that ANH has any material advantage in this respect.

Town planning and the exercise of the planning discretion in relation to ANH’s proposed local centre

  1. [566]
    ANH contends that its proposed local centre is superior from a town planning perspective for three reasons.
  1. [567]
    First, approval of ANH’s proposed local centre still permits the development of the BGM site for its approved neighbourhood hub. Although the approval will not be subsumed by ANH’s proposed local centre, I accept the evidence of Mr Duane that BGM’s approved neighbourhood hub would not likely proceed if ANH’s proposed local centre is approved.  The proximity of the ANH site would make it difficult to entice quality tenants to BGM’s site.  Despite that, this matter is of little weight given any loss to the community associated with the extent and range of services offered by the neighbourhood hub would be offset by approval of ANH’s proposed local centre.
  1. [568]
    Second, ANH says its proposed local centre complies with the principal Planning Scheme requirements for a new local centre, including s 6.2.1.2(5) of the Centre zone code, whereas BGM’s proposed local centre does not.  For reasons already provided, while ANH has established compliance with many of the assessment benchmarks against which its development is to be assessed, there are also material non-compliances.
  1. [569]
    Third, ANH contends its proposed local centre is superior in the respects relating to architectural and urban design, traffic planning, visual amenity and economic need addressed above.
  1. [570]
    ANH submits that Mr Vann encapsulated many of those matters in the original planning joint expert reports.  ANH submits, by way of summary, that Mr Vann considers:
  1. (a)
    BGM’s proposed local centre is fundamentally a car-based design; is not in any way a main street development; and is of a design that raised challenges for its overall usability, functionality, and therefore convenience for users;
  1. (b)
    ANH’s proposed local centre, by its location in the road network, separation from the existing Narangba Valley Shopping Centre, and the ability for pedestrian access from new development to the west, represents a somewhat superior location to fulfil properly the local centre role to the catchment identified by the economic need experts.  Additionally, it is the subject of long-term interest by Coles, and the very firm nature of Coles’ commitment to the ANH site is supportive of it being a better location to serve the catchment than the BGM site;
  1. (c)
    ANH’s proposed local centre is well placed to be a community focal point.  It is in a prominent location on the major thoroughfare serving the catchment;
  1. (d)
    ANH’s proposed local centre is able to successfully deal with its amenity impacts;
  1. (e)
    although ANH’s proposed local centre has a more traditional local centre design, it is a good response to providing the range of facilities required in a well-located site, and in a way that can provide pedestrian amenity and people-oriented civic areas;
  1. (f)
    ANH’s proposed local centre would provide an attractive built form, particularly to the key view from the intersection Oakey Flat Road and Raynbird Road.  Conversely, BGM’s proposed local centre, while attempting to achieve some level of street focus to Sovereign Drive, ends up with the “worst of both worlds”, resulting in a disjointed layout involving a car-dominated appearance and a prominent big box, and difficulties with its internal operations and practical street activity outcomes; and
  1. (g)
    ANH’s proposed local centre would be on a prominent, central intersection with good accessibility and visibility.  It would be well-connected to the catchment it would serve.
  1. [571]
    Looking at the competing proposals overall, Mr Vann opines that neither of the sites is “great” in terms of how it can be designed and respond to all of the themes in the Planning Scheme.  He acknowledges though that there is a clear public interest in providing a centre to meet the needs of the community, and that the economic need experts all agree that there is a need for another centre.  He considers that “neither is a lay down misere one way or another – there are pros and cons”.  Altogether though, he considers ANH’s site to be preferable.  One reason for that is the clear commitment from Coles.  It is a recognised brand, and a type of facility that is very well accepted in the market.  It is likely to be bigger than a Supa IGA and have a bit of a price advantage.  Mr Vann considers that is likely to drive a more successful centre, which would create conditions for a good range of other tenancies to leverage off the activity that Coles creates.  He considers that to be a public interest benefit.
  1. [572]
    These submissions by ANH provide a helpful summary of its position as to why, in the exercise of the planning discretion, its proposed development should be approved. I accept that each of Mr Vann’s observations are relevant to the exercise of the discretion. The extent to which they are established, and the weight to be afforded to them in the exercise of the discretion, is another matter.
  1. [573]
    Although I have already addressed each of the matters the subject of Mr Vann’s summary, it is convenient to provide a brief comment in response to each of them again here.
  1. [574]
    I accept that BGM’s proposed local centre will rely heavily on trade from customers accessing it by motor vehicles. I do not otherwise accept Mr Vann’s opinion in paragraph [570](a)
  1. [575]
    I do not accept the matters referred to in paragraph [570](b).
  1. [576]
    With respect to paragraph [570](c), I accept ANH’s proposed local centre is in a prominent location on the major thoroughfare serving the catchment.  This matter favours approval.  However, it is of limited weight in this case for three reasons.  First, the attributes of ANH’s site relative to its surrounds constrain the ability of ANH’s proposed local centre to provide an appropriate community focal point, particularly because of the challenges they present in terms of encouraging active transport.  Second, providing a local centre that is located and designed to encourage active transport is an important planning goal in the Planning Scheme.  Third, the economic, community and town planning need for a new local centre in this locality can be met by BGM’s proposed local centre, which better addresses the planning goal with respect to active transport and walkable neighbourhoods. 
  1. [577]
    I accept the matter referred to in paragraph [570](d).  This matter favours approval, but is of diminished significance in this case given BGM’s proposed local centre is also able to successfully deal with its amenity impacts.
  1. [578]
    With respect to paragraph [570](e), I accept that ANH’s proposed local centre is a more traditional local centre design.  It is not a wholly unacceptable response to the community’s need for a range of facilities.  The design would provide pedestrian amenity and people-oriented civic areas.  This matter favours approval, but is of diminished significance in this case given BGM’s proposed local centre is of a design that more closely aligns with the Planning Scheme design goals.
  1. [579]
    With respect to paragraph [570](f), I accept that ANH’s proposed local centre would provide an attractive built form, particularly to the key view from the intersection of Oakey Flat Road and Raynbird Road.  This matter favours approval, but its weight is diminished given I do not accept the criticisms of BGM’s proposed local centre as valid.
  1. [580]
    I accept the matters referred to in paragraph [570](g), other than with respect to accessibility by active transport.  In this case, the benefits of accessibility by motor vehicle are insufficient to overwhelm the underperformance of ANH’s proposed local centre with respect to active transport. 
  1. [581]
    I do not accept all of Mr Vann’s opinions as noted in paragraph [571] above.  The subject of his opinions have already been discussed by me elsewhere in this judgment. 
  1. [582]
    I am not satisfied that ANH has discharged its onus.

Do the relevant matters relied on by BGM favour approval of its proposed local centre?

  1. [583]
    The relevant matters relied on by BGM can be grouped into seven broad subject matters. They relate to:
  1. (a)
    timing and certainty;
  1. (b)
    the quarry haul route;
  1. (c)
    accessibility;
  1. (d)
    site constraints;
  1. (e)
    design;
  1. (f)
    infrastructure; and
  1. (g)
    ANH’s preliminary approval.

Timing and certainty

  1. [584]
    BGM contends that its proposed development is superior because it seeks a development permit, whereas ANH only seeks a preliminary approval.
  1. [585]
    BGM submits that there are many design issues that have been identified with the ANH proposal that would need to be resolved by the assessment of future development applications for the material change of use component.  It asserts that it may take a long time to find solutions for these matters (particularly the planning and traffic issues), which would need to be addressed in the application material lodged in support of such future development applications.  BGM also submits there is a prospect that the issues may not be able to be resolved satisfactorily to both the Council and ANH and there may be protracted litigation about them.
  1. [586]
    While there are a number of aspects that need to be addressed by way of detailed design, BGM has not pointed to any evidence that the issues are such that they will be time consuming to resolve. I reject its submissions in that regard.
  1. [587]
    The Council submits that the time associated with the further code assessment process that ANH would need to engage in is not necessarily significant. However, the process adds to the matters ANH must navigate before it could realise its proposed local centre. BGM does not face that same hurdle.
  1. [588]
    The Council submits that the preliminary approval sought by ANH also adds to the uncertainty surrounding the final form of any subsequent development should ANH’s proposed local centre be approved. It says that such an approval will not tie ANH’s proposed local centre, in an absolute sense, to the plans relied on in these appeals. A future developer could propose a centre that is not in accordance with the proposal plan. It would be impact assessable, but ANH would have the comfort of a determination that a local centre is appropriate on its site. While the preliminary approval gives ANH that comfort, it gives the public no certainty about the timing and form of any development on the site. The Council also notes that assuming those matters could eventually be overcome, ANH would still need to obtain operational works approval.  In contrast, BGM already has the operational works approval it needs to carry out the earthworks for its proposed local centre.
  1. [589]
    I accept that ANH’s proposed local centre is less advanced than BGM’s in terms of its planning approvals. Any approval of ANH’s proposed local centre would require navigation of an extra layer of process before a local centre could be delivered. These matters may affect when the current need for the local community could be satisfied.  Despite that, I do not consider the issue of timing and certainty to be a matter that significantly favours approval of BGM’s proposed local centre.  The commencement of trading on either site is not only dependent upon the existence of a development permit.  It requires finalisation of design.  In that respect, there is a prospect that BGM still has work to do in relation to redesign of the supermarket with consequential amendment to the layout overall, as well as in relation to its access arrangements.  In addition, BGM’s negotiations with an anchor tenant are less advanced than ANH’s.  Cornetts still has its own investigations to carry out before its board considers approval.  It also wants substantial incentives and to pay a low rent.  Although Coles may be enticed to occupy BGM’s site, present indications are that it would require “pretty major changes”.  Common sense suggests that negotiations of that type would take time.  It is uncertain whether the changes would be such as to require another impact assessable application.

Quarry haul route

  1. [590]
    BGM contends that its proposed local centre is superior to ANH’s because BGM’s site is free of the important public safety issues that plague ANH’s site. It says the issue stems from the location of ANH’s site on a quarry haul route. The location necessitates turning movements across oncoming traffic on that route.
  1. [591]
    As I have already noted, Raynbird Road is a designated quarry haul route. Mr Vann explains that the purpose of the planning provisions related to that designation is to ensure that the haul route can continue to operate without development impinging on its operation.  The main issue, in that respect, is the potential impingement caused by introducing sensitive receptors in terms of noise.  I have already addressed that issue in paragraphs [327] to [334] above.  ANH complies with the provisions of the Planning Scheme that are directed to the haul route.
  1. [592]
    Further, I accept the evidence of Mr Vann that the design of ANH’s proposed local centre is a sensible response to the haul road and the site’s topography. It is a sensible rationalisation of the site use to have the back wall of the centre on its southern boundary adjoining Raynbird Road.  It allows the centre to be well below the road frontage and to be landscaped so that it is not dominant and not impacted by traffic on that road.  Mr Schomburgk agrees that orientation to Raynbird Road is a sensible response by ANH.  I accept it is preferable to locate a non-sensitive land use in that location than, for example, residences.  As is evidenced by the Satterley development, residences would need to be set behind acoustic barriers.  They may also require construction from materials that provide acoustic treatment.
  1. [593]
    Whilst Mr Schomburgk says it is undesirable to locate a centre adjacent to the Raynbird Road haul route, I do not accept his opinion. There is no unacceptable traffic engineering or acoustic amenity issue. As I have already found above, the proposed plaza area near the roundabout with Raynbird Road will have a pleasant outlook.
  1. [594]
    BGM has not established that there is a public safety issue. There is no evidence that ANH’s proposed local centre creates a safety issue. The quarry operators did not make a submission opposing the development. Additionally, the Council approved an access point onto Raynbird Road for the Satterley development. That access will direct residential traffic onto that part of Raynbird Road directly adjacent ANH’s site. The approved intersection is proposed to be used to access ANH’s site. This factor tells against any finding of an adverse safety impact.

Accessibility

  1. [595]
    BGM contends that its proposed local centre is in a superior position on the road network. It says, by way of contrast, ANH’s proposed local centre is located in a poor and inconvenient position on the road and pedestrian network. BGM contends that ANH’s proposed local centre has poor active transport connections whereas BGM’s proposed local centre has excellent active transport connections to the existing and developing community that it is designed to serve. BGM contends that the relevant trade area can more conveniently access BGM’s site.
  1. [596]
    For the reasons explained in paragraphs [558] to [561] above, I accept that BGM’s proposed local centre better fulfils the intent of the nominated assessment benchmarks with respect to accessibility.

Site constraints

  1. [597]
    BGM contends that ANH’s proposed local centre is poorly located and sited in terms of its topography, land area, shape, road frontages and configuration.  It submits that the topography and other site specific features and constraints of ANH’s site make it a poor location for a shopping centre, particularly having regard to the desires of the Planning Scheme for activation and connectivity.  I accept BGM’s submission for reasons already provided in paragraphs [221] to [256] and [270] to [311] above.

Design

  1. [598]
    BGM contends that, having regard to the intended function of the centre and the provisions of the Planning Scheme, the design and layout of BGM’s proposed local centre is superior.
  1. [599]
    For reasons provided in paragraphs [100] to [179] and [270] to [311] above about the design of the respective proposed local centres, I am satisfied that BGM’s proposed local centre better fulfils the intent of the nominated assessment benchmarks with respect to the appropriate design of a new local centre. 
  1. [600]
    BGM also contends that the car park for ANH’s proposed local centre is inferior to that in BGM’s proposed local centre in terms of access, legibility and distribution of car parks convenient to the components of the respective proposed local centres. It says ANH’s proposed local centre has inferior and unacceptable external vehicle, internal vehicle, bicycle and pedestrian connections.
  1. [601]
    The basis for BGM’s assertion that car parking considerations favour BGM’s proposed local centre is unclear.  ANH provides car parks at a similar rate and in close proximity to the two accesses to the Coles supermarket.  I do not accept BGM’s submission in this respect.  The constraints with respect to active transport connections have already been addressed in paragraphs [221] to [256] above. 

Infrastructure

  1. [602]
    BGM contends that it has not been demonstrated that ANH’s proposed local centre can be serviced by infrastructure. It submits that, although the approval of the Satterley development has made it easier for ANH to obtain infrastructure servicing, an infrastructure agreement will still need to be negotiated with the relevant infrastructure providers.  This submission was not supported by reference to any evidence.  As is noted by ANH, the engineers all agree that the ANH site will be able to be serviced appropriately given the development of the Satterley land.  As such, I reject BGM’s submissions. 

Preliminary approval

  1. [603]
    BGM contends that approval of ANH’s proposed local centre would materially affect the community’s ability to make a properly made submission on later development applications. In particular, it notes the limited amount and detail of information included in, attached to, or given with the application and available to submitters. It contends that approval of ANH’s proposed local centre would deny the public the opportunity to make informed and meaningful submissions with respect to the local shopping centre intended to serve their convenient shopping needs.
  1. [604]
    BGM has not established those contentions for the reasons provided in paragraphs [459] to [467] above.

The exercise of the planning discretion in relation to BGM’s proposed local centre

  1. [605]
    BGM’s proposed development does not comply with all aspects of the Planning Scheme. It does not comply with every requirement about the intended design of local centres. Despite that, it achieves the planning policy that underlies those provisions. As such, the nature and extent of the non-compliance is not, of itself, a compelling reason to refuse BGM’s application.
  1. [606]
    I am satisfied that, in the exercise of the planning discretion, BGM’s application should be approved because of the combined effect of the following matters:
  1. (a)
    BGM’s proposed local centre complies with the requirements in the assessment benchmarks that regulate the appropriate location of local centres;
  1. (b)
    while BGM’s proposed local centre does not comply with every requirement about the intended design of local centres, it achieves the planning policy that underlies those provisions;
  1. (c)
    BGM’s proposed local centre, if approved and constructed, will not result in any unacceptable impacts on the amenity or character of the local area;
  1. (d)
    the Planning Scheme intends that Next generation neighbourhoods, such as that which is emerging to the west of Oakey Flat Road, are walkable neighbourhoods that contain a centre that will provide it with necessary goods and services and that will act as a focal point for the community.  That community and town planning need is presently unsatisfied;
  1. (e)
    there is an economic need for an additional local centre to serve the defined trade area; and
  1. (f)
    BGM’s proposed local centre is appropriately located and designed to meet the economic, community and town planning need.

Conclusion

  1. [607]
    ANH has not discharged the onus in Appeal No 694 of 2018. That appeal is dismissed.
  1. [608]
    BGM has discharged the onus in Appeal No 340 of 2018. That appeal is dismissed. I will hear from the parties as to the need for any consequential orders, including with respect to conditions. The appeal will be mentioned at 9 am on 30 October 2019 for that purpose.

Footnotes

[1]  The appeal against the Council’s decision to approve BGM’s application was filed on 30 January 2018, after the commencement of the Planning Act 2016.  As such, even though BGM’s application was made under the Sustainable Planning Act 2009, the applicable regime is that in the Planning Act 2016.  See s 311 of the Planning Act 2016 and Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, [16] – [89].  ANH’s application was made under the Planning Act 2016 (Qld).

[2] Planning and Environment Court Act 2016 (Qld), s 47.

[3] Planning and Environment Court Act 2016 (Qld), s 43.

[4] Planning and Environment Court Act 2016, s 45.

[5]  The variation request is described in more detail in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2018] QPEC 63.  Particular uses are proposed to be code assessable, provided they form part of a shopping centre that is generally in accordance with ANH’s proposed plans (i.e. Exhibit 111).

[6]Planning and Environment Court Act 2016 (Qld), s 47; Planning Act 2016, s 60(3).

[7]Planning Act 2016, s 59 and s 45(5).

[8]  Version 2 of the Moreton Bay Regional Council Planning Scheme was the categorising instrument for the development in effect when BGM’s application was properly made on 23 June 2017.  Version 3 of the Moreton Bay Regional Council Planning Scheme was the categorising instrument for the development in effect when ANH’s application was properly made on 28 September 2017.  See s 45(6) of the Planning Act 2016.  It is common ground that there is no material differences between version 2 and version 3.  Version 3 aligns the Planning Scheme with the terminology in the Planning Act 2016.

[9]  See s 31(1)(f) of the Planning Regulation 2016.

[10] Planning Act 2016, s 61(3). 

[11] Planning Act 2016, s 61(2).

[12]  [2019] QPEC 16, [35]-[86].

[13] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16.

[14]  [2019] QCA 132.

[15]  citing William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, 35.

[16] Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [60].

[17]  [1981] QPLR 33, 35.

[18] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, [57].

[19]  (1981) 2 APA 134.  This was cited by President Sofronoff in Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132 at [47].

[20] Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, 139.

[21] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, [57].

[22]  (1981) 2 APA 134, 139.

[23] Planning Act 2016, s 16.

[24]  The legislation provides a process for amendment, but the process takes time.

[25]Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, [59].

[26] Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, 139.

[27] Planning Act 2016, s 16.

[28] Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026, 1033 [26].

[29] Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, 139-40.

[30] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, [60] citing Hua Sheng Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99, 102.

[31]Smout v Brisbane City Council [2019] QPEC 10, [54].

[32]  Over the course of the trial, there was a narrowing of the issues in dispute.  The parties agreed that the issues of bushfire, air quality, flooding, civil engineering and ecology do not warrant refusal of either BGM’s proposed development or ANH’s proposed development.  Rather, they are matters that can be addressed by the imposition of conditions.  They also agree that the matter of appropriate conditions with respect to the issues will be a matter between the successful applicant and the Council without the involvement of the other applicant or its agents or experts.  In addition, lighting is no longer a reason for refusal of the ANH’s application and issues about visual amenity, acoustic and traffic impacts are no longer a reason for refusal of BGM’s application.

[33]  This issue encompasses the “clear separation/walkable neighbourhood theme”, the “quality accessibility theme” and the “main street theme” to the extent that the provisions require local centres to be located on main through streets.

[34]  This issue encompasses the “active frontage theme”, the “anti-parking lot dominant theme”, the “quality design theme” and the “main street theme” to the extent that the provisions require centres to be designed in a main-street format.

[35]  See s 6.2.1.6.1(l)(v) of the Local centre precinct provisions of the Centre zone code.

[36]  See s 3.14.9, s 3.14.9.4(6) and s 3.14.9.4(7)(b) of the Strategic framework.

[37]  See s 3.6.2(6) of the Strategic framework.

[38]  See s 3.6.2(7) of the Strategic framework.

[39]  See s 3.14.9.4(6) of the Strategic framework.

[40]  See s 3.14.9.4(7)(d) of the Strategic framework.

[41]  See s 6.2.1.6.1(l)(iii) of the Local centre precinct provisions of the Centre zone code.

[42]  See s 3.6.2 (unnumbered introductory paragraph).

[43]  See s 3.13.3.4(11) of the Strategic framework.

[44]  See s 3.14.11.3(2) of the Strategic framework.

[45]  See s 6.2.1.2(4)(c) of the Centre zone code.

[46]  See s 6.2.1.6.1(l)(v) of the Local centre precinct provisions of the Centre zone code.

  See s 3.14.9, s 3.14.9.4(6) and s 3.14.9.4(7)(b) of the Strategic framework.

  See s 3.6.2(6) of the Strategic framework.

  See s 3.6.2(7) of the Strategic framework.

  See s 3.14.9.4(6) of the Strategic framework.

[47]  See s 3.6.2(1) of the Strategic framework.

[48]  See s 3.6.2(6) of the Strategic framework.

[49]  See s 3.6.2(7) of the Strategic framework.

[50]  See s 3.14.9 of the Strategic framework.

[51]  See s 3.14.9.4(7)(e) of the Strategic framework.

[52]  See s 6.2.1.6.1(k)(iii) and (ix) of the Local centre precinct provisions of the Centre zone code.

[53]  See s 6.2.1.6.1(l)(vi) of the Local centre precinct provisions of the Centre zone code.

[54]  See s 6.2.1.6.2, Table 6.2.1.6.1 performance outcome PO2 of the Local centre precinct provisions of the Centre zone code.

[55]  See s 6.2.1.6.2, Table 6.2.1.6.1 performance outcome PO23 of the Local centre precinct provisions of the Centre zone code.

[56]  See s 3.6.2 of the Strategic framework.

[57]  See s 3.14.11.3(2) of the Strategic framework.

[58]  See s 3.14.11.3(7) of the Strategic framework.

[59]  See s 6.2.1.2(4)(c) of the Centre zone code.

[60]  See s 7.2(6) and (8) of the Policy.

[61]  See s 8.3 of the Policy.

[62]  ANH’s submissions suggest the length is approximately 55 metres, but in his individual statement, Mr Peabody measures the length of the covered roof of the buildings excluding the pergola for Specialty Shops 2 and 3 as 33.5 metres and 26 metres respectively.  Mr Lynch accepted these dimensions during cross-examination.

[63]  See Vidakovic & Anor v Brisbane City Council [2009] QPEC 53; [2009] QPELR 739, 742 [18] citing Lennon v Gibson & Howes Ltd (1919) AC 709, 711-2; [1919] HCA 15; (1919) 26 CLR 285, 287, referred to in R v Caldwell & Kinross Ex Parte Makin [1987] 2 Qd R 437 at 439 per Connolly J.

[64]  ANH’s proposed development is described in more detail in Murphy v Moreton Bay Regional Council & Anor; ANH Pty Ltd v Moreton Bay Regional Council & Anor [2018] QPEC 63.

[65]  This issue encompasses the “clear separation/walkable neighbourhood theme”, the “quality accessibility theme” and the “main street theme” to the extent that the provisions require local centres to be located on main through streets.

[66]  This issue encompasses the “active frontage theme”, the “anti-parking lot dominant theme”, the “quality design theme” and the “main street theme” to the extent that the provisions require centres to be designed in a main-street format.

[67]  BGM does not allege that ANH’s proposed development does not comply with the criteria referred to in paragraphs [43](a), [43](g) and [44](c) above.

[68]  After conclusion of the hearing, BGM further refined its issues in Exhibit 143C.  Some provisions referred to in its Written Submissions were abandoned.

[69]  See s 6.2.1.2(2)(e) of the Centre zone code.

[70]  See s 3.10.2 of the Strategic framework.

[71]  See s 3.10.2(3) of the Strategic framework.

[72] Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, 775 citing Terton Corporation v Gold Coast City Council [2004] QPELR 260, 266–7.

[73]Garyf Pty Ltd v Maroochy Shire Council [2008] QPEC 101; [2009] QPELR 435, 453 [131]; SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24, 28 [24].

[74]  See s 3.10.2 of the Strategic framework.

[75]  See s 3.10.4 of the Strategic framework.

[76]  See s 3.13.3.4(11) of the Strategic framework.

[77]  See s 3.14.9.4(6) of the Strategic framework.

[78]  See s 6.2.1.6.1(1)(h) of the Local centre precinct provisions of the Centre zone code.

[79]  See s 6.2.1.6.1(1)(i) of the Local centre precinct provisions of the Centre zone code.

[80]  See s 6.2.6.3.1(1)(j) of the General residential zone code.

[81]  See, for example, s 6.2.6.3.1(1)(c) and performance outcome PO65(c) in Table 6.2.6.3.2.

[82]  See, for example, s 3.1.3, s 3.3.4(1)(a), s 3.6, s 3.10, s 3.10.4(2), s 3.13.3.4(11) and s 3.14.9 of the Strategic framework.

[83]  See s 3.1.2 of the Strategic framework.

[84]  See s 3.14.11.4(16)(e) of the Strategic framework.

[85]  See s 6.2.1.6.1(1)(k)(iii) to (ix) of the Local centre precinct provisions in the Centre zone code.

[86]  See performance outcome PO2(a) and (b) of the Local centre precinct provisions in the Centre zone code.

[87]  See performance outcome PO63(a) of the General residential zone code.

[88]  BGM’s submissions on traffic and acoustic issues were distinctly different in nature.  They contained detailed analysis of the evidence and the applicable provisions of the Planning Scheme.

[89]  See the discussion about activation in the paragraphs below.

[90]  Exhibit 143C.

[91]  The late delivery of the refined issues in dispute is disappointing.  At a mention of the matter on 20 March 2019, I indicated that, before evidence resumed, parties should identify those Planning Scheme provisions that were fundamental to the outcome.  At the resumption of the hearing on 8 April 2019, ANH provided a document in which it appropriately confined its case to the real issues.  BGM did not.  Some of those allegations maintained by BGM until after the conclusion of the hearing were not arguable.  A good example of such a provision was provided by ANH in its written submissions at paragraph 353. 

[92]  For example, a code assessable application for the shopping centre will require assessment against the Centre zone code, including performance outcome PO24.

[93]  The State Planning Policy defines a transport route separation area as the area measured 100 metres from the centre line of the transport route of a KRA, which is needed to maintain separation of people from undesirable levels of noise, dust and ground vibration produced as residual impacts from the transportation of extractive resources.

[94]  See s 6.2.1.6.1(1)(q)(vii) of the Local centre precinct provisions of the Centre zone code and s 6.2.6.3.1(1)(q)(vii) of the General residential zone code, which are in identical terms

[95]  See s 6.2.1.6.1(1)(p) in the Local centre precinct provisions of the Centre zone code and s 6.2.6.3.1(1)(o) of the General residential zone code.

[96]  See s 3.10.2(3) of the Strategic framework.

[97]  See s 3.13.3.4(11) of the Strategic framework.

[98]  See s 3.14.9, s 3.14.9.4(6) and s 3.14.9.4(7)(b) of the Strategic framework.

[99]  See s 3.14.9.4(7)(d) of the Strategic framework.

[100]  See s 6.2.6.3.1(1)(j)(ii), (iii), (iv) and (v) of the Next generation neighbourhood precinct provisions of the General residential zone code.

[101]  See s 6.2.1.6.1(1)(h) and performance outcome PO7 of the Local centre precinct provisions of the Centre zone code.

[102]  See s 6.2.1.6.1(1)(i) of the Local centre precinct provisions of the Centre zone code.

[103]  See s 6.2.1.6.1(1)(f) of the Local centre precinct provisions of the Centre zone code.

[104]  See performance outcome PO16 of the Local centre precinct provisions of the Centre zone code.

[105]  See performance outcome PO38 of the Local centre precinct provisions of the Centre zone code.

[106]  See performance outcome PO41 of the Local centre precinct provisions of the Centre zone code.

[107]  See s 6.2.1.6.1(1)(m)(iii) of the Local centre precinct provisions of the Centre zone code.

[108]  See performance outcome PO42 of the Local centre precinct provisions of the Centre zone code.

[109]  See s 3.14.5.6(3) of the Strategic framework.

[110]Jedfire Pty Ltd v Logan City Council [1995] QPLR 41, 43.

[111]  The requirements are set out in paragraphs [336](g) and [336](h) above.

[112]  The nature of the original development application is described in more detail in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2018] QPEC 63 at [78] – [100].

[113]  See s 3.14.5.6(3) of the Strategic framework.

[114]  ANH’s proposed development is described in more detail in Murphy v Moreton Bay Regional Council & Anor; ANH Pty Ltd v Moreton Bay Regional Council & Anor [2018] QPEC 63.

[115]  See, for example, s 3.14.9.4(7)(a) of the Strategic framework, s 6.2.1.2(4)(c) and (5)(a) and Table 6.2.1.1 of the Centre zone code and s 6.2.1.6.1(1)(l)(i) of the Local centre precinct provisions of the Centre zone code.

[116]  See s 3.14.9.4 of the Strategic framework.

[117]  See s 6.2.1.6.1(1)(l)(iii) of the Local centre precinct provisions of the Centre zone code.

[118]  See, for example, s 3.14.11.3(2) of the Strategic framework.

[119]  See s 3.6.2(6) of the Strategic framework.

[120] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 [21]. 

Close

Editorial Notes

  • Published Case Name:

    Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor

  • Shortened Case Name:

    Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor

  • MNC:

    [2019] QPEC 46

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    08 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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