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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Murphy v Moreton Bay Regional Council & Anor  QPEC 10
TOSH ORDY MURPHY
MORETON BAY REGIONAL COUNCIL
BGM PROJECTS PTY LTD (ACN 102 165 328)
340 of 2018
Planning and Environment
Planning and Environment Court, Brisbane
27 March 2020
25 March 2020
I order that the currency period for the development approval be limited to four years.
The matter will be mentioned at 9.15 am on 3 April 2020.
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 –where the court determined that in exercise of the discretion, the proposed development ought be approved – where, during the original hearing, BGM presented a case indicating it could deliver the shopping centre in a short time frame – where the submitter appellant contends that the contends that the currency period should be limited to two years – whether the court should make a consequential order in the appeal limiting the currency period to two years
Planning Act 2016 (Qld), s 60, s 85
Planning and Environment Court Act 2016 (Qld), s 47
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 46, considered
J J Ware for the Respondent
M J Batty for the Co-respondent
Connor O’Meara Solicitors for the Appellant
Moreton Bay Regional Council for the Respondent
McCullough Robertson Lawyers for the Co-respondent
- This proceeding was heard together with Appeal No 694 of 2018. The appeals related to development applications made by each of BGM Projects Pty Ltd (“BGM”) and Australian National Homes Pty Ltd (“ANH”) to develop a shopping centre to address an identified need for an additional local centre to serve the emerging population to the west of Oakey Flat Road at Narangba. The question for me to determine in those appeals was 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.
- On 8 October 2019, I delivered my reasons for judgment in Appeal No 340 of 2018 and Appeal No 694 of 2018.
- ANH had not discharged the onus in its appeal against the decision of Moreton Bay Regional Council (“the Council”) to refuse its development application. Its appeal was dismissed on 8 October 2019.
- BGM had discharged the onus in the appeal by Mr Tosh Murphy (a director of ANH). That appeal was against the Council’s decision to approve BGM’s development application for a local centre at Sovereign Drive, Narangba, subject to conditions set out in its decision notice. I dismissed Mr Murphy’s appeal and indicated that I would hear from the parties about the need for any consequential orders, including with respect to conditions. The Court has a broad discretion to impose such other orders that it considers appropriate.
- Since the delivery of my reasons, the parties have reached agreement about appropriate final orders, including the conditions that should be imposed on the development approval, save in relation to one issue: whether there should be a consequential order limiting the currency period for the development approval.
- The Appellant’s primary position is that the term of the currency period should be two years. His alternative position is that the currency period should be two years, with provision to extend the period automatically by a further year once construction of the approved buildings has substantially commenced. BGM contends that the currency period should be four years. The Council does not oppose a four-year currency period.
New expert evidence
- New evidence was led in this hearing about the appropriate timeframe for the currency period.
- In a joint town planning report prepared for this further hearing, Mr Perkins and Mr Buckley, the town planners retained by the Appellant and the Council respectively, opine that it is in the interests of the community that BGM’s proposed development proceed in a timely fashion. These opinions were not challenged. I accept the town planners opinion in this regard. As Mr Buckley explained, in development assessment there is a legitimate connection between the wider considerations of community need and the timeliness of development to meet that need.
- Mr Buckley further opines that it would be reasonable to impose a firm but brief timetable. That opinion is premised on the assumption that it is consistent with the evidence given in the original hearing. I do not accept that opinion by Mr Buckley as I did not accept the evidence given in the original hearing about the timeframe in which the development could be delivered.
- In support of its position that a currency period of four years is appropriate, BGM relies on the evidence of Mr Duane and Mr Lynch.
- Mr Duane is the economist retained by BGM. He gave evidence of the typical steps and time to construct and open a supermarket-based centre from approval. Having regard to those typical steps, he opines that BGM’s proposed local centre could not reasonably be achieved in a timeframe of two years. He says a minimum of three years would be a best-case scenario. Mr Duane further opines that the uncertainty that has been created around COVID-19 in relation to commitments from major tenants, construction and build periods, availability of supplies and the like, means that imposing a two-year period will ensure that there is no chance of it being completed. Mr Duane was not required for cross-examination.
- Although I accept the evidence of Mr Duane about the typical steps and the uncertainty created by COVID-19, I do not accept his evidence that there is no prospect of the development being complete within two years. There is no evidence of the extent to which BGM has undertaken those tasks that Mr Duane (and Mr Lynch) describe as typical steps in the process to delivery of a shopping centre development, nor does Mr Duane disclose his present understanding about such matters.
- Mr Lynch also gave evidence about the typical matters that affect the time required to construct and open a shopping centre after receipt of a development approval. In his report, Mr Lynch explains that in addition to his experience as an architect, he was a registered builder from 1975 to 2010. He has been involved in the design and construction administration of hundreds of buildings, but has specific shopping centre experience commencing in 1973 as the project architect responsible for the Cannon Hill K-Mart development. Since 1973, Mr Lynch has been the responsible architect for more than 60 retail projects of varying scale delivered over four decades. Mr Lynch gave evidence that he has also participated as a development partner in the acquisition of land, the design and approval process, project funding, tenancy leasing and on-sale of some of the completed centres. Mr Lynch identifies the various issues that must be addressed before a new shopping centre can open. He explains that many of the issues involve matters beyond the control of the shopping centre developer. He notes that a very topical example at present is the economic turmoil caused by the Coronavirus, which he opines may delay the finalisation of projects. The evidence of Mr Lynch was unchallenged and I accept it.
The Appellant’s submissions
- The Appellant advances five reasons in support of its position that there be a currency period of either two years or, alternatively, two years with an extension once construction has substantially commenced.
- First, the Appellant submits there is an identified economic, community and town planning need for the development, which it says should be met as soon as possible. It submits that Mr Duane gave evidence that, from an economic point of view, the additional local centre was needed as soon as possible. I accept that Mr Duane gave evidence to that effect during the trial.
- Second, the Appellant submits that specifically considered (and revised) evidence was given in the appeals on behalf of BGM that the shopping centre development could be delivered within approximately 18 months from the time judgment was given. It was the evidence of Mr Moffat. The Appellant says that BGM should be held to the evidence that it adduced during the trial. BGM disputes that the effect of Mr Moffat’s evidence was as submitted by the Appellant. During this hearing, Mr Connor, the advocate for the Appellant, submitted that the evidence of Mr Moffat should be considered in its full context, rather than individual statements made by him viewed in isolation. Having regard to the context of the evidence referred to by Mr Connor in his written submissions and during oral submissions, I accept his submission about the effect of the evidence of Mr Moffat. It accords with the impression I formed of the evidence during the hearing.
- The Appellant’s third reason is that BGM urged the court to find that an important matter supporting approval of BGM’s proposed local centre was that the recognised community need for a full line supermarket-based shopping centre would be satisfied in a more timely way if BGM’s proposed local centre was approved than if ANH’s proposed local centre was approved. The Appellant notes that BGM relied on Mr Moffat’s evidence to support the submission at the original hearing. He also says BGM relied on evidence from Mr Duane and Mr Schomburgk to similar effect. I accept that BGM advanced its case in this manner.
- Fourth, there has been no further evidence from any representative of BGM explaining why Mr Moffat’s evidence has proven to be inaccurate, or why a substantially longer period is now required. I accept this to be so.
- Fifth, there is at least one other alternative site available (the ANH site) to deliver the needed supermarket-based shopping centre in the event that it is not going to be delivered on BGM’s land either in a timely way, or at all. The Appellant submits that the approval of BGM’s proposed local centre arises from a “competing proposals” case in which the competing proposal, being ANH’s proposed local centre, would also address the need for an additional local centre. The Appellant further submits that a local centre could be provided promptly by ANH as it is prepared to accept a condition that its development approval would lapse if the ANH proposed development was not completed by December 2022. I accept that Mr Murphy has commenced preparing a development application for a development permit and hopes to be in a position to lodge it with design changes to address issues identified in my earlier judgment. His evidence that he has the financial capacity to fund delivery of a new local centre without borrowings and that he intends to do so as quickly as possible was not challenged. These are matters that I would expect ANH will likely urge the Council to consider in assessing ANH’s fresh development application. However, at present, there is no alternative local centre to be considered as I have dismissed ANH’s appeal. The ability of ANH’s site to “deliver” the needed supermarket-based shopping centre in the event that it is not going to be delivered on BGM’s land either in a timely way, or at all, is dependent on ANH securing a development approval permitting it to develop its land in that manner.
Should the currency period be limited to two years or four years?
- For the reasons provided in paragraph  above, I do not accept the fifth reason advanced by the Appellant justifies an order limiting the currency period to two years.
- The first four reasons advanced by the Appellant are premised on the evidence in the case, and the arguments of the parties. They do not accord with the findings made by me in the reasons for judgment.
- At paragraph  of my reasons for judgment, I found that there was 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. I did not find that the additional local centre was needed “as soon as possible”, despite having before me the evidence of Mr Duane to which the Appellant now refers.
- I addressed the issue of timing, and BGM’s assertions that it could deliver a local centre in a timelier manner than ANH, at paragraphs  to  of my reasons for judgment. I did not accept the evidence of Mr Moffat, nor the assertion of BGM with respect to timing. Rather, at  I found as follows:
“ 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.”
- My decision to dismiss the Appellant’s appeal, facilitating approval of BGM’s development application, was made for the reasons articulated in my earlier reasons for judgment, including those articulated in paragraph  of my earlier judgment. As would be apparent from paragraphs  to  of my earlier judgment, although I did not accept BGM’s position about timing, nor the evidence relied on in support of that position, my decision to dismiss the appeal was made cognisant of such matters. I made the decision with an appreciation that, absent other order by the court or the inclusion of an alternative currency period by agreement between the parties in preparation of the final conditions package, the Planning Act 2016 would govern the currency period for the development approval. It was unnecessary to refer to such matters given I did not accept BGM’s assertions with respect to timing, nor had I found that the additional local centre was needed “as soon as possible”. There was, to my mind, no reason to alter the default position.
- As I have noted in paragraph  above, I accept that it is in the interests of the community that BGM’s proposed development proceed in a timely manner. Nevertheless, having regard to the matters referred to in paragraph  of my earlier judgment, and for the reasons provided above, I am satisfied that a currency period of four years, as now sought by BGM, is appropriate.
- The recent evidence of Mr Lynch further supports the appropriateness of a currency period of four years. The evidence of Mr Lynch and that of Mr Duane about the uncertainty occasioned by the Coronavirus, a matter unknown at the time of the original hearing, further highlights the appropriateness of a currency period of four years rather than two.
- For the reasons provided above, I am not prepared to make a consequential order limiting the currency period in the manner sought by the Appellant.
- In light of BGM’s position, I will order that the currency period for the development approval will be four years.
- The parties have indicated that this was the only issue with respect to consequential orders that remained. I understand that the parties have otherwise agreed the terms of the conditions that should to attach to BGM’s development approval. In those circumstances, the appeal will be mentioned at 9.15 am on 3 April 2020 for final judgment.
 Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 46.
 Section 47(2) of the Planning and Environment Court Act 2016 (Qld). The discretion is to be exercised judicially.
 This is the period during which the first change of use has to have happened in order to avoid a lapse of part of a development approval.
 Section 85(1)(a) of the Planning Act 2016 (Qld). Although the development application was made under the Sustainable Planning Act 2009 (Qld), the currency period under the Planning Act 2016 will apply: s 288(5) of the Planning Act 2016.
 Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 46.
- Published Case Name:
Murphy v Moreton Bay Regional Council & Anor
- Shortened Case Name:
Murphy v Moreton Bay Regional Council
 QPEC 10
27 Mar 2020