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Fabcot Pty Ltd v Cairns Regional Council

 

[2020] QPEC 17

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17

PARTIES:

FABCOT PTY LTD ACN 002 960 983

(Appellant)

v

CAIRNS REGIONAL COUNCIL

(Respondent)

AND

DEXUS FUNDS MANAGEMENT ACN 060 920 783

(First Co-Respondent by Election)

AND

CAIRNS COMBINED BEACHES COMMUNITY ASSOCIATION INC

(Second Co-Respondent by Election)

AND

INDIGENOUS BUSINESS ASUTRALIA AS TRUSTEE FOR THE IREIT SUB-TRUST

(Third Co-Respondent by Election)

AND

TRINITY PARK INVESTMENTS PTY LTD ACN 123 732 525 ATF AND L’ARMONIA PTY LTD ACN 140 784 756 ATF

(Fourth Co-Respondent by Election)

FILE NO/S:

201 of 2018, 221 of 2018, 223 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeals

ORIGINATING COURT:

Planning and Environment Court, Cairns

DELIVERED ON:

30 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 – 20 March 2020, 23 March 2020 and 30 – 31 March 2020     and written submissions received on 1 April and 2 April 2020

JUDGE:

Everson DCJ

ORDER:

  1. Appeal 201 of 2018 will be allowed subject to the        imposition of appropriate lawful conditions;
  2. Appeal 221 of 2018 is dismissed; and
  3. Appeal 223 of 2018 is dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEALS – appeals against a preliminary approval for a Shopping Centre and Health Care Services and a development permit for a Child Care Centre, Service Station and Food and Drink Outlet and reconfiguring a lot and operational work in the Low-medium density residential zone

ASSESSMENT – COMPLIANCE WITH THE PLANNING SCHEME – whether the proposed development complies with the planning scheme – whether there is a need for the proposed development – whether the proposed development would compromise the existing hierarchy of centres – whether there are relevant matters which justify approval

LEGISLATION:

Planning Act 2016

Planning and Environment Court Act 2016

CASES:

Ashvan Investments Unit Trust v Brisbane City Council & Ors (2019) QPELR 793

Gold Coast City Council v K & K (GC) Pty Ltd [2009] QCA 132

HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230

Hervey Bay Projects v Hervey Bay City Council [1993] QPLR 104

Isgro v Gold Coast City Council & Anor [2003] QPELR 414

Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447

Murphy v Moreton Bay Regional Council & Anor [2019] QPEC 46

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 480

Redland City Council v King of Gifts (Qld) Pty Ltd & Anor [2020] QCA 41

Ugarin Pty Ltd v Logan City Council [2004] QPELR 392

Williams McEwans Pty Ltd v Brisbane City Council [1981] QPELR 33

COUNSEL:

BD Job QC and MJ Batty for the Appellant

RS Litster QC and K Buckley for the Respondent

DR Gore QC and JG Lyons for the First Co-Respondent by Election

EJ Morzone for the Fourth Co-Respondent by Election

SOLICITORS:

Keir Steele Lawyers for the Appellant

McCullough Robertson for the Respondent

Hopgood Ganim for the First Co-Respondent by Election

Emanate Legal for the Fourth Co-Respondent by Election

Introduction

  1. [1]
    On 10 October 2018, the respondent (“the Council”) issued a preliminary approval for a Shopping Centre and Health Care Services and reconfiguration of a lot into 14 lots together with a development permit for a Child Care Centre, Service Station, Food and Drink Outlet, operational work for an Advertising Device and reconfiguring a lot into four lots and an access easement (“the proposed development”) on land situated at 171-173 and 175 Trinity Beach Road, Trinity Beach (“the site”).[1]
  1. [2]
    The decision of the respondent in the above terms resulted in four appeals to the Planning and Environment Court at Cairns. On 18 April 2019, the court ordered that all of the appeals be joined and that Appeal 201 of 2018 be the carriage appeal for each of them. Accordingly, in the course of this judgment I refer to each of the parties by the designations they have in Appeal 201 of 2018 which is an appeal by the applicant for the proposed development.
  1. [3]
    In Appeal 201 of 2018, the appellant (“Fabcot”) seeks a development permit for those parts of the proposed development which were the subject of a preliminary approval. In Appeal 221 of 2018, the First Co-Respondent by Election (“Dexus”) seeks an order that the proposed development be refused. In Appeal 223 of 2018, the Fourth Co-Respondent by Election (“Trinity Park Investments”) also seeks orders that the proposed development be refused. Appeal 225 of 2018 also sought an order that the proposed development be refused, however, it was the subject of a notice of discontinuance dated 24 January 2020 by the Third Co-Respondent by Election and it did not participate further in any of the appeals.
  1. [4]
    Each Co-Respondent by Election has a commercial interest which may be adversely affected by the proposed development with the exception of the Second Co-Respondent by Election (“the Community Association”). Dexus owns the Smithfield Shopping Centre, approximately 4 kilometres to the south of the site, and Trinity Park Investments has lodged a code assessable development application for a shopping centre on land between the Smithfield Shopping Centre and the site. These appeals concern the suitability of the site for the proposed development, however, not the merits of any other development application.
  1. [5]
    The Community Association called no evidence, cross examined no witnesses,[2] did not tender any evidence,[3] and merely made some general submissions at the end of the hearing that essentially there was no need for the proposed development, that it would adversely affect local businesses in the nearby Trinity Beach Shopping Centre and that the proposed development “should be amalgamated within the existing shopping centre hierarchy”.[4]
  1. [6]
    In the course of opening the case, Fabcot conceded that the preliminary approval for reconfiguring a lot into 14 lots for residential development was appropriate at this point in time.[5]  An uncontested order that the proposed development proceed in accordance with changed plans was also made by me in the course of the opening.[6]  Ultimately, the reconfiguring of a lot components of the proposed development were not, of themselves, contentious from this point.  Neither was the development permit for operational work for an Advertising Device.  The evidence before me also demonstrated the appropriateness of the Service Station, Food and Drink Outlet component and this use was not the subject of any serious challenge in the course of the hearing.  Finally, at the commencement of day six of the hearing on 30 March 2020, the Council conceded that a development permit rather than a preliminary approval was appropriate for the Shopping Centre and Health Care Services components and stated that it did not now contend that a mere preliminary approval was appropriate in respect of these proposed uses.[7]
  1. [7]
    In considering the components of the proposed development which remain contentious, unless I specifically state otherwise, the comments I make apply to all of the remaining components of the proposed development.

The site and the surrounding area

  1. [8]
    The site is an area of 4.092 hectares and contains frontages to the Captain Cook Highway, Trinity Beach Road and Navigation Drive. It also joins land contained within the newly developed Bluewater Estate.[8]  At this point on the Captain Cook Highway there is a significant roundabout which provides access to the suburb of Trinity Beach,[9] which is located in the northern urban corridor of Cairns, approximately 15 kilometres north of the CBD.[10]  Through this corridor the Captain Cook Highway links Cairns to Port Douglas in the north.  To the west are the forested slopes of the Macalister Range and to the east, the Coral Sea.[11] The site is located approximately midway between the Smithfield Shopping Centre to the south and the Clifton Village Shopping Centre to the north, being approximately 4 kilometres from each of them.[12]  The Smithfield Shopping Centre is designated a Major centre pursuant to the Council’s Planning Scheme, CairnsPlan 2016 (“the Planning Scheme”).[13]  It contains a Coles Supermarket of 3,010m² and a Woolworths Supermarket of 4,130m².  The Clifton Village Shopping Centre contains a Coles Supermarket of 3,210m².[14] The Trinity Beach Shopping Centre is approximately 1 kilometre to the north of the site. It primarily serves a convenience shopping role and contains a NightOwl mini-supermarket of 660m².[15]
  1. [9]
    The site is owned by Fabcot, the development arm of Woolworths.[16]
  1. [10]
    The site is in the Low-medium density residential zone.[17]
  1. [11]
    The site is also within the Smithfield Local Plan but not within a local plan precinct.[18]  Of significance to this appeal, the Smithfield Local Plan also includes Sub-Precinct 3b which is identified for future retail and commercial development.[19] Relevant to the resolution of the dispute before me, Trinity Park Investments owns a site at 10L Captain Cook Highway, Smithfield (“the Trinity Park Investments land”) in respect of which it has lodged a development application for a shopping centre which is code assessable pursuant to the Planning Scheme (“the TPI Development Application”).[20]  The Trinity Park Investments land is located approximately 2 kilometres north of the Smithfield Shopping Centre on the Captain Cook Highway.[21]

The proposed development

  1. [12]
    The proposed development includes the following relevant components:
  1. A Shopping Centre with a gross floor area of 4,680m², consisting of a 3,600m² full-line supermarket and nine small retail tenancies;
  2. A medical centre with a gross floor area of 900m²;
  3. A Child Care Centre with a gross floor area of 670m²; and
  4. A Service Station and Food and Drink Outlet with a gross floor area of 360m² and an associated forecourt area.[22]

The statutory assessment framework

  1. [13]
    Pursuant to the Planning and Environment Court Act 2016 the appeals are by hearing anew.[23] Fabcot must establish that Appeal 201 of 2018 should be upheld and that the other appeals should be dismissed.[24]  Section 46 of the Act addresses the nature of an appeal and relevantly provides:

46 Nature of appeal

  1. (3)
    The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if—
  1. (a)
    the P&E Court were the assessment manager for the development application; and
  1. (b)
    the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.”
  1. [14]
    As the proposed development was impact assessable, s 45 of the Planning Act 2016 (“PA”) relevantly provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances before me, are the relevant provisions of the Planning Scheme.[25]  Furthermore, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[26]
  1. [15]
    The court in determining an appeal about a development application is conferred a wide discretion pursuant to s 60 of the PA which relevantly states:

“(3) To the extent the application involves development that requires impact assessment… the assessment manager, after carrying out the assessment, must decide—

(a) to approve all or part of the application; or

  1. (b)
    to approve all or part of the application, but impose development conditions on the approval; or
  1. (c)
    to refuse the application.”
  1. [16]
    In undertaking this task it is important to have regard to the observations of McMurdo JA in Bell v Brisbane City Council & Ors that:

“…a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.” [27]

  1. [17]
    However, as Williamson QC DCJ recently observed in Ashvan Investments Unit Trust v Brisbane City Council & Ors:

“An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s 60(3) of PA. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question… It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s 60(3) of the PA.  It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.” [28]

  1. [18]
    The proper approach to non-compliance with the planning scheme in the decision making process was recently explained by Kefford DCJ in Murphy v Moreton Bay Regional Council & Anor in the following terms:

“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.  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.” [29]

The relevant provisions of the Planning Scheme

  1. [19]
    Although certain components of the proposed development such as the Child Care Centre are code assessable, the Planning Scheme provides that where a development “is comprised of a number of defined uses… the highest level of assessment applies”.[30] The proposed development is therefore impact assessable. Impact assessable development “must be assessed against the whole planning scheme to the extent relevant”.[31] The hierarchy of assessment criteria is addressed in s 1.5 which relevantly provides:

“1.5 Hierarchy of assessment criteria

  1. (1)
    Where there is inconsistency between provisions within the planning scheme, the following rules apply:
  1. (a)
    the strategic framework prevails over all other components to the extent of the inconsistency;

  1. (d)
    local plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency;
  1. (e)
    zone codes prevail over use codes and other development codes to the extent of the inconsistency.”
  1. [20]
    The Strategic framework includes the Settlement pattern theme which includes the strategic outcome that the region grows and evolves in a way that maintains the hierarchy of centres.[32]  This strategic outcome is then developed in s 3.3.2, which relevantly states:

3.3.2 Element – centres and centre activities

3.3.2.1 Specific outcomes

  1. (1)
    Centres are concentrations of activity that may comprise of retail, business and employment, administration, research, residential, education, and health and community services consistent with the identified role and function of the centre.
  1. (2)
    A hierarchy of centres is established and maintained, where each centre is characterised by its scale and function, and performs a defined role within the hierarchy. The identified hierarchy of centres and role and function of centres within the region is as follows:

  (a) Principal centre: Cairns city centre

  1. (ix)
    The Principal centre is the highest order centre in the region, supported by all other centres within the hierarchy of centres.

  (b) Major centres: Earlville, Edmonton and Smithfield

  1. (i)
    The major centres are concentrations of a mix of activities that consist of higher order retail, employment, commercial, administrative, community, cultural, education, higher density housing and entertainment.

  1. (iv)
    Local plans have been developed for each major centre to ensure the orderly and strategic development of these centres.
  1. (vi)
    Major centres do not compromise the role and successful function of the Principal centre and other Major centres within the hierarchy of centres.
  1. (c)
    District centres: Babinda, Gordonvale, Manoora, Manunda, Mount Sheridan, Redlynch and Westcourt
  1. (i)
    The district centres are concentrations of predominantly retail, business and community activities focussed on the weekly and fortnightly shopping and service needs of the surrounding communities.

  1. (vi)
    District centres do not compromise the role and successful function of the Principal centre, Major centres and other District centres within the hierarchy of centres.
  1. (d)
    Local centres
  1. (i)
    Local centres provide a small cluster of uses including retail, employment nodes, cafes and dining, and community services that are focussed on the daily and weekly shopping and service needs of their surrounding local community.
  1. (ii)
    Showrooms, department stores and other large floor space land uses are not located in Local centres.
  1. (iii)
    Development within Local centres provides a high level of amenity and minimise (sic) the impacts on the surrounding residential areas.
  1. (iv)
    Local centres do not exceed the needs of their surrounding local community.
  1. (v)
    Local centres do not compromise the role and successful function of the Principal centre, Major centres, District centres and other Local centres within the hierarchy of centres.
  1. (e)
    Neighbourhood centres
  1. (i)
    Neighbourhood centres contain a limited range of small scale convenience or retail facilities that meet the basic, daily convenience needs of a surrounding neighbourhood community and encourage walkable neighbourhoods.
  1. (ii)
    Neighbourhood centres do not exceed the needs of their immediate neighbourhood catchment.
  1. (iii)
    Showrooms, department stores, full-line supermarkets and other large floor space land uses are not located in Neighbourhood centres.
  1. (iv)
    Neighbourhood centres do not exceed the needs of their surrounding neighbourhood community.
  1. (v)
    Neighbourhood centres do not compromise the role and successful function of the Principal centre, Major centres, District centres, Local centres and other Neighbourhood centres within the hierarchy of centres.
  1. (3)
    Centres within the region are consolidated within existing identified areas. The expansion of centres only occurs where a community need can be demonstrated and the expansion does not compromise the amenity of surrounding areas or the role and successful function of other centres within the hierarchy of centres identified in section 3.3.2.1(2).

  1. (7)
    Development of centre activities is of a design, scale and intensity that does not compromise the existing and ongoing hierarchy of centres by:
  1. (a)
    competing with and compromising the economic viability of centres;
  1. (b)
    adversely affecting the achievement of consolidated centres.

  1. (10)
    New centres are only established where it is demonstrated that:
  1. (a)
    there is a need for the development;
  1. (b)
    the development is of a scale that is required to service the surrounding catchment;
  1. (c)
    the development is highly accessible within the catchment it serves and not located on the periphery;
  1. (d)
    the development does not compromise the character and amenity of adjoining premises and surrounding areas.” [33]
  1. [21]
    Part of s 3.3.5 is also relevant:

3.3.5 Element – residential areas and activities

3.3.5.1 Element – residential areas and activities

  1. (3)
    Residential areas are used for residential purposes. Non-residential uses are provided where they are appropriate, support the local community, do not detract from the residential amenity of the area or compromise the role and successful function of centres within the hierarchy of centres.” [34]
  1. [22]
    Part of the Economy Theme is also relevant:

3.5.2 Element – strong and diverse economy

3.5.2.1 Specific outcomes

  1. (1)
    Existing economic activities continue to be facilitated in and around existing allocated areas and where possible are consolidated or co-located with similar or complementary activities.” [35]
  1. [23]
    As noted above, the site is within the Low-medium density residential zone and the following provisions of the Low-medium density residential zone code are relevant:

6.2.10 Low-medium density residential zone code

6.2.10.2 Purpose

  1. (1)
    The purpose of the Low-medium density residential zone code is to provide for a range and mix of dwelling types including dwelling houses and multiple dwellings supported by community uses and small-scale services and facilities that cater for local residents.

  1. (3)
    The purpose of the code will be achieved through the following overall outcomes:

  1. (g)
    non-residential uses are established where they serve the local community and do not detract from the residential amenity of the area.

6.2.10.3 Criteria for assessment

Performance outcomes

Acceptable outcomes

PO3

Development is consistent with the purpose and overall outcomes sought for the zone.

AO3.1

No acceptable outcomes are provided.

PO4

Non-residential uses that serve the local community are established in appropriate locations and subject to detailed development requirements including:

(a)   being located in highly accessible locations;

(b)   being co-located with other similar uses;

(c) providing for the identified convenience  needs of the local community;

(d)   not impacting on the role and function of the hierarchy of centres within the region;

  1. (e)
    resulting in positive economic and social benefits for the local community;

(f) small scale extensions to existing non- residential uses.

AO4.1

No acceptable outcomes are provided.

PO7

Development does not adversely affect the residential character and amenity of the area in terms of traffic, noise, dust, odour, lighting or other physical or environmental impacts.

AO7.1

No acceptable outcomes are provided.”[36]

  1. [24]
    To the extent that it is argued that the proposed development is contrary to and would compromise the existing and ongoing hierarchy of centres in the Planning Scheme and would result in unacceptable impacts, the following provisions of the Mixed use zone code are relevant:

6.2.14 Mixed use zone code

 

6.2.14.1 Application

  1. (1)
    This code applies to assessing development in the Mixed use zone.

6.2.14.2 Purpose

  1. (1)
    The purpose of the Mixed use zone code is to provide for a mix of activities that may include business, retail, residential, tourist accommodation and associated services, service industry and low impact industrial uses.
  1. (2)
    The local government purpose of the code is to recognise the presence of areas of mixed land use outside the hierarchy of centres that contain a wide variety of uses.
  1. (3)
    The purpose of the code will be achieved through the following overall outcomes:
  1. (a)
    a mix of appropriate uses within the precincts are established;

Mixed use precinct 1 – Commercial

  1. (4)
    In addition to 6.2.14.2(3), the overall outcomes sought for the precinct are:
  1. (a)
    development within the precinct provides a mix of land uses where the predominant land use is for commercial purposes;”.[37]
  1. [25]
    The following provisions of the Smithfield local plan code have been identified as relevant:

7.2.8.3 Purpose

  1. (2)
    The purpose of the code will be achieved through the following outcomes:
  1. (a)
    the structure of the Smithfield local plan code establishes a pattern of local activity and an economy, based on two key nodes being the James Cook University at the north and the Smithfield Major centre at the south;
  1. (b)
    economic and employment activity supports local communities and activity, and strengthens self-containment in the suburbs of the Cairns Northern Beaches;

Precinct 1 – Smithfield Major centre

  1. (3)
    In addition to 7.2.8.3(2), the overall outcomes sought for the precinct are:

  1. (b)
    the Smithfield Major centre represents the focus of employment and economic activity in the Cairns Northern Beaches;
  1. (c)
    Smithfield Shopping Centre is to remain the dominant retail centre for the Cairns Northern Beaches;

Precinct 3 – Future employment

  1. (5)
    In addition to 7.2.8.3(2), the overall outcomes sought for the precinct are:
  1. (a)
    development is predominantly for professional commercial or industrial uses in the precinct;
  1. (b)
    a mix of retail, professional business, innovative and technology industries establishes in a finer grain model of development;

  1. (d)
    Precinct 3 – Future employment contains the following sub-precincts:
  1. (ii)
    Sub-precinct 3b – Future retail and commercial area;

  1. (f)
    Development in Sub-precinct 3b – Future retail and commercial area:
  1. (i)
    establishes a structure plan allowing for a mix of uses, focussed on centre activities and mixed use developments;
  1. (ii)
    ensures the transition of impacts and uses from the adjacent employment areas to the residential land to the east, considering the impact of infrastructure to be established in the area in line with growth demands.

7.2.8.4 Criteria for assessment

Performance outcomes

Acceptable outcomes

PO1

Development achieves a consolidated, dominant retail centre on the existing Smithfield shopping centre site and ensures new and additional floor space for the sale and supply of retail goods and services develops in line with the need of the Cairns Northern Beaches communities to 2025.

AO1.1

Development with a cumulative floor area of greater than 2,500m² on any one or adjacent sites, outside Precinct 1 – Smithfield Major centre demonstrates an economic and community need for the development which will not compromise the effective function of the Smithfield shopping centre site.

PO2

Small-scale retail, businesses and restaurants establish to support local communities where they are:

(a) within a walking distance or catchment of  predominantly residential neighbourhoods;

(b) adjacent to a higher order road(s);

(c) in proximity to public transport routes.

AO2.1

Land uses in residential areas, other than for residential activities:

(a) have less than 250m² total gross floor area;

(b) are located within 400 metres of existing or future residential land uses;

(c) are located on a collector road or sub-arterial road;

(d) are located within 400 metres of a public transport route.

Additional requirements for Sub-precinct 3b – Future retail and commercial area

PO13

Development in Sub-precinct 3b – Future retail and commercial area:

(a) establishes a structure plan allowing for a mix of uses, focussed on shopping, showrooms, low-scale industry and commercial activities;

(b) ensures the transition of impacts and uses from the adjacent employment areas to the residential land to the east, considering the impact of infrastructure to be established in the area in line with growth demands.

AO13.1

A structure plan supports development proposing reconfiguration of land or material change of use.” [38]

 

  1. [26]
    The following provisions of the Centre design code are identified as being relevant:

9.4.2 Centre design code

9.4.2.1 Application

  1. (1)
    This code applies to assessing development:
  1. (a)
    for Centre activities; or

9.4.2.2 Purpose

  1. (1)
    The purpose of the Centre design code is to ensure centre activities and activity centres:
  1. (a)
    are developed to support community need and reinforce the hierarchy of activity centres;
  1. (b)
    are of a high quality design and appropriately respond to local character, environment and amenity considerations.
  1. (2)
    The purpose of the code will be achieved through the following overall outcomes:
  1. (a)
    Development is established in accessible locations, consolidate development within existing centre zones and established areas of commerce, (sic) or meet an existing need identified within a local plan area.
  1. (b)
    Development complements and reinforces the role and function of the established hierarchy of activity centres across the region, and does not compromise the future of consolidated and cohesive activity centres.

9.4.2.3 Criteria for assessment

Performance outcomes

Acceptable outcomes

PO3

Development is located within:

(a) an existing Centre zone;

(b) Mixed use zone precinct 1 – Commercial;

(c) Mixed use zone precinct 2 – trades and services; or

(d) a building containing an existing centre activity; or

(e) an identified centre precinct within a Local plan.

AO3.1

No acceptable outcomes are provided.

PO4

A centre activity is only established outside an appropriately identified area where:

(a) community need is demonstrated for the centre activity;

(b) the centre activity does not compromise the establishment of consolidated activity centres with distinct roles and functions across the Region;

AO4.1

  1. (3)
    No acceptable outcomes are provided.” [39]

The disputed issues

  1. [27]
    The disputed issues narrowed considerably in the course of the hearing. Ultimately, they can be summarised as follows:
  1. Whether there is a need for the proposed development;
  2. Whether the proposed development is contrary to, and would compromise the existing and ongoing hierarchy of centres in a manner contrary to what is intended by the Planning Scheme;
  3. Whether the proposed development would have a function and scale which exceeds that intended by the Planning Scheme for the Low-medium density residential zone;
  4. Whether the proposed development would result in unacceptable impacts on the role, function and economic viability of Sub-Precinct 3b in the Smithfield local plan; and
  5. The significance of the following relevant matters:
  1. (1)
    The extent of the need for the proposed development including whether:
  1. (i)
    it would deliver price benefits, employment opportunities, choice, competition and convenience;
  1. (ii)
    it would achieve a balance of demand for retail floor space in the Northern Beaches region or would exceed it;
  1. (iii)
    it would exceed the convenience needs of the local community;
  1. (iv)
    there is a community benefit associated with the existence of a committed anchor tenant, namely Woolworths;
  1. (v)
    efficiencies are achieved by the co-location of the uses comprising the proposed development;
  1. (2)
    Whether the proposed development is well located to serve the community;
  1. (3)
    Whether the uses comprising the proposed development should be located in existing centres in the locality;
  1. (4)
    Whether approval of the proposed development would:
  1. (i)
    prejudice the implementation of an existing approval for an extension to the shopping facilities at the Smithfield Shopping Centre;
  1. (ii)
    unacceptably prejudice the potential for, and vitality of, any future development on land located in Sub-Precinct 3b in the Smithfield local plan;
  1. (5)
    Whether the design layout, amenity and traffic arrangements of the proposed development support its approval; and
  1. (6)
    Whether the reasonable expectations of the community are being adhered to.[40]

Need

  1. [28]
    Need is a significant issue in the resolution of these appeals. As noted above in the Strategic framework, the Planning Scheme makes provision for the establishment of new centres where it is demonstrated, inter alia, that there is a “need” for the development.[41] Furthermore, the Centre design code provides that “centre activities” and “activity centres” are developed to support “community need” amongst other considerations.[42] The term “community need” is again used in PO4 of the table of assessment for the Centre design code which states that a centre activity is only established outside an appropriately identified area where community need is demonstrated for the centre activity.[43] The terms “need” and “economic and community need” are both used in PO1 and AO1.1 in the Smithfield local plan code.
  1. [29]
    Four economists gave evidence at the hearing of the appeals. Mr Stephens gave evidence on behalf of Fabcot, Mr Norling gave evidence on behalf of Council, Mr Leyshon gave evidence on behalf of Dexus and Mr Brown gave evidence on behalf of Trinity Park Investments. In their joint experts’ report they stated the following:

“We have proceeded on the basis that:

  1. (a)
    Community Need refers to an assessment as to the extent to which the physical wellbeing of the community is improved. A range of qualitative factors are involved such as convenience, accessibility, choice, range, depth, competition, price, service, shopper amenity, etc;
  1. (b)
    Economic Need refers to an assessment as to whether the extent of demand for the proposal is sufficient to support it at a sustainable level. This assessment is typically more quantitative in nature; and
  1. (c)
    Planning Need refers to an assessment of the extent to which the proposed development can be accommodated by existing planning provisions. This necessarily involves an assessment of the existence of competitive approvals and the availability of suitably zoned and/or designated lands to accommodate the proposed development.” [44]
  1. [30]
    Their approach is supported by reference to established principles derived from case law. In Luke & Ors v Maroochy Shire Council & Anor, Wilson SC DCJ observed that the question of whether a community need exists “is to be decided from the perspective of a community and not that of the applicant for development, its competitors or objectors”.[45]
  1. [31]
    The concept of planning need was explained in Williams McEwans Pty Ltd v Brisbane City Council by Carter DCJ in the following terms:

“The basic assumption must be that there is in existence at the time of the application a latent unsatisfied demand on the part of the persons affected by the planning scheme which is not being met at all or not being adequately met by the scheme in its present form.” [46]

  1. [32]
    Much later in Isgro v Gold Coast City Council & Anor, Wilson SC DCJ comprehensively stated:

“Need in planning terms is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community… of course a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met”. [47]

  1. [33]
    Where the term “need” is used without qualification in the Planning Scheme it is to be interpreted as a reference to planning need as explained in Williams McEwans and Isgro referred to above. But that is not the end of the matter. Two recent decisions of the Court of Appeal which were given in the context of the requirements of s 326(1)(b) of the now repealed, and for present purposes, irrelevant Sustainable Planning Act 2009,[48] suggest that a degree of precision is required to establish a need for a particular development on a particular site. As McMurdo JA observed in Redland City Council v King of Gifts (Qld) Pty Ltd & Anor:

“What had to be established was not just that there was a need for such a development in the area, but that there was a need for the development in a location where the planning scheme provided that it should not occur.” [49]

As noted above, under the current legislative regime the assessment process undertaken by the court on an appeal is now far less restrictive.[50] Furthermore, the Planning Scheme provides for the establishment of a new centre on the site providing certain pre-conditions, including that there is a need for the development, are met.[51]

  1. [34]
    The economists analysed the need for each of the uses the subject of the proposed development, the most significant of which is the proposed full-line supermarket which is intended to be operated by Woolworths.[52]  It is the need for this use, together with the nine small retail tenancies, one of which will be operated by Woolworths under the BWS brand as a bottle shop,[53] which lies at the heart of the submission of Fabcot that it is appropriate to establish a new centre on the site.  In assessing the level of need required to justify such a use, Wilson SC DCJ made the following observation in Parmac Investments Pty Ltd v Brisbane City Council & Ors:

“when, as here, the need to be satisfied involves the daily essentials of ordinary life, the bar should not be set too high; and, when the planning scheme indicates a deliberate planning decision to provide an opportunity for appropriate convenience retail facilities to satisfy those needs, and where there are no unacceptable impacts on amenity, the efforts required to demonstrate need at that level are not onerous.” [54]

  1. [35]
    As a starting point, each of the economists agreed that the Northern Beaches region is primarily a dormitory region for Greater Cairns with 68 per cent of the labour force living there having a place of employment outside the Northern Beaches region.[55]  It is a region which has enjoyed significant population growth in recent times and this will continue, albeit at a slower rate as the supply of residential land becomes exhausted.[56]  The economic experts identified a Primary Trade Area (“PTA”) which encompassed the suburbs of Trinity Beach where the site is located and Kewarra Beach to the north, together with an adjoining secondary trade area to the north and a secondary trade area to the south, the latter of which included the suburb of Trinity Park and part of the suburb of Smithfield.[57]  These three areas form the Main Trade Area (“MTA”).[58]
  1. [36]
    There is an overlapping of these trade areas and those of the Smithfield Shopping Centre to the south and the Clifton Village Shopping Centre to the north, which is to be expected given the narrow linear catchment joined by the Captain Cook Highway and the significant number of workers who travel it every day. This is graphically illustrated in Exhibit 22 which shows that, as at 2018, there were more than 10,800 permanent residents outside of the 3 kilometre radii of the Clifton Village Shopping Centre and the Smithfield Shopping Centre, and that the site is centrally located to service the demand of these residents for a full-line supermarket.[59]
  1. [37]
    I found the analysis of Mr Stephens compelling. I accept his evidence that a three kilometre distance from a major supermarket is an appropriate benchmark reflecting the “realistic expectations of accessibility to major supermarkets in an outer urban area of a regional city such as Cairns”.[60]  Furthermore, within the MTA, just 47 per cent of the residential population live within three kilometres of a major supermarket, which results in a substantial dis-benefit to access to food and grocery shopping.[61]  The significance of this population without ready access to a full-line supermarket is significant in the context of the evidence of Mr Leyshon, which I accept “that a population of 8,000-10,000 persons is required to support such a store”.[62]  When allowance is made for the presence of tourists, students and other temporary visitors to the region, the relevant population is even greater.[63]
  1. [38]
    A detailed analysis of demand for an additional supermarket was undertaken by the economists from an expenditure perspective. I accept the evidence of Mr Stephens that the proposed supermarket would likely trade at a level of $11,000/m2 which is a relatively strong trading level for a Woolworths of the size proposed,[64] and “which is in line with average industry benchmarks which indicate most full-line supermarkets in Australia achieve sales in the range of $9,000/m2 to $13,000/m2”.[65] Mr Norling was supportive of this analysis undertaken by Mr Stephens, expressing the view that “this demonstrates that there is an economic need for an additional full-line supermarket-based centre to locate in the Northern Beaches by about 2022”.[66] The evidence suggests both Mr Stevens and Mr Norling are of the view that there is a sufficient need for an additional supermarket servicing the MTA at the time the proposed development would commence trading.[67]
  1. [39]
    Conversely, Mr Brown and Mr Leyshon relied upon figures produced by Mr Brown in concluding that an additional full-line supermarket would not be required in the Northern Beaches area before at least 2026.[68]  This analysis is based upon an arbitrary selection of a low retention figure for expenditure within the MTA.  I did not find Mr Brown a compelling witness.  He was very prepared to take a partisan position if it was available to him.[69]
  1. [40]
    In my view, the confidential trading figures for the supermarkets trading at the Smithfield Shopping Centre and the Clifton Village Shopping Centre confirm the strong level of need for an additional full-line supermarket.[70]  The Woolworths supermarket and the Coles supermarket at the Smithfield Shopping Centre were trading far above the sales range of $9,000/m2 to $13,000/m2 which is the average industry benchmark quoted above. Indeed, Mr Duggan, the Regional Property Manager for Woolworths gave evidence that Woolworths at Smithfield “is by far and away the best performing Woolworths supermarket in the Cairns region.  In fact, it is one of Woolworths’ top traders in Queensland”.[71] The Coles supermarket at the Clifton Village Shopping Centre also trades at a level significantly above the quoted benchmark range.[72]
  1. [41]
    I therefore conclude that there is a significant economic, community and planning need for the supermarket component of the proposed development at the site which is centrally located to service the demand for a supermarket within the PTA which is not presently being met.
  1. [42]
    Meeting the need for a full-line supermarket on the site was described by Mr Norling as “plugging a gap in the market” when regard is had to the analysed trade areas.[73] In the course of cross-examination, Mr Leyshon agreed with this proposition.[74]  I agree with the views of Mr Norling and Mr Stephens that the nearby Trinity Beach Shopping Centre does not have the capacity to deliver a full-line supermarket for the community, particularly given the strata-titling of two-thirds of the centre.[75]
  1. [43]
    As noted above, the proposed development is intended to be anchored by a full-line Woolworths Supermarket of approximately 3,600m2.[76]  Therefore, the need for the retail uses lie at the heart of whether or not the proposed involvement as a whole is justified.  As noted above, as a consequence of s 5.3(7) of the Planning Scheme,[77] the need for each of the separate uses has nonetheless been assessed.
  1. [44]
    Each of the economists is of the view that there is a sufficient need for the Service Station and Food and Drink Outlet on the subject site.[78] The need for the other co-located uses at the site is less clear, however nonetheless significant.  Whereas the other economists contented themselves with broad statistical analyses of the need for the Health Care Service and the Child Care Centre, Mr Stephens undertook a more specific analysis.  While it is true that the exact mix of medical and para-medical services proposed to be offered from the Health Care Service use (also referred to in the evidence as a medical centre) remains to be determined, the focus of the economists was on the provision of general practitioners in the Northern Beaches region.  Mr Stephens undertook a detailed audit of all relevant centres including making telephone calls to verify the numbers under consideration.[79]  This supported his view that the provision of general practitioner services in the Northern Beaches region is “below general expectations”,[80] and that there is a significant need for more general practitioners in the region aside from the need for other ancillary medical services.  I prefer the evidence of Mr Stephens in assessing the need for this use and am of the view that there is a sufficient need for health services to justify the proposed use at the site.
  1. [45]
    Again, there was a significant divergence of opinion as to the need for the proposed Child Care Centre. The approach of Mr Stephens was ultimately to move beyond the theoretical assessment by all of the economists in their joint experts’ report and undertake “an audit of existing child care providers in the region to identify current levels of availability for child care spaces”.[81]  Six of the 11 child care centres in the Northern Beaches region were found to at least have some availability restrictions.  One had no vacancies at all.[82]  One centre with availability restrictions was the Bluewater Village Centre which had only recently opened in the residential precinct proximate to the site.  Another child care centre, approximately 750 metres to the north-east, indicated availability restrictions including a lack of facilities to accommodate infants.[83]  In the circumstances I find that there is a sufficient planning need to justify the proposed the Child Care Centre on the site.

Hierarchy of centres

  1. [46]
    In assessing whether the proposed development is contrary to and would compromise the existing and ongoing hierarchy of centres, contrary to what the Planning Scheme intends, it is important to acknowledge that none of the economists were ultimately of the view that this would occur from the perspective of the Major centre at Smithfield.[84] The proposed development will not change the fact that the Smithfield Major centre will remain the focus of employment and economic activity in the Northern Beaches region and that the Smithfield Shopping Centre will remain its dominant retail centre. Insofar as other relevant identified centres are concerned, including the Clifton Village Shopping Centre and the Trinity Beach Shopping Centre, I accept the evidence of both Mr Stephens and Mr Norling that impacts will be within “the normal competitive range and would not lead to adverse impacts upon the viability of each centre”.[85] In respect of their conclusions concerning the Clifton Village Shopping Centre, they are supported by the confidential trading information referred to above.[86] So far as the Trinity Beach Shopping Centre is concerned I accept the explanation of Mr Stephens that this centre, which includes a NightOwl store of 660m²,[87] performs a very different role and function, providing a convenient and accessible location for surrounding residents and visitors “to undertake basic top-up shopping and other convenience visits”.[88]
  1. [47]
    The approach of Dexus relies significantly on the presence of a significant number of vacant speciality shops within the Smithfield Shopping Centre.[89] I agree with Mr Norling that this “is not necessarily an unusual circumstance in the current retail environment”.[90] I also note the explanation given for this current trend by Mr Stephens.[91] There are only nine small retail tenancies proposed, one of which is to be occupied by BWS, a company controlled by Woolworths. It is not suggested that these tenancies will, of themselves, have a significant impact but rather that residents shopping at the proposed development will result in less foot traffic and therefore less patronage of specialist stores in the Smithfield Shopping Centre and the Clifton Village Shopping Centre. The evidence before me does not establish that this has the consequence of compromising the role and successful function of either of these centres.
  1. [48]
    Turning to the relevant Planning Scheme provisions noted above. Approval of the proposed development would maintain the hierarchy of centres as contemplated by s 3.3.1(1)(d) in the Strategic framework.[92] It was agreed by each of the economists that the proposed development, if approved, would constitute a new Local centre in the hierarchy.[93]  Section 3.3.2.1(10) contemplates the establishment of centres in certain restricted circumstances including that there is a need for the development.[94] In the event of any inconsistency between provisions within the Planning Scheme, the Strategic framework prevails over all other components to the extent of the inconsistency.[95] Local centres are not identified in the Planning Scheme.[96]
  1. [49]
    In the event the proposed development is approved, the Smithfield Major centre will still represent the focus of employment and economic activity in the Cairns Northern Beaches region and remain the dominant retail centre for the Cairns Northern Beaches region as contemplated pursuant to s 7.2.8.3 of the Smithfield local plan code.[97]  Given the findings I have made in respect of need, there is compliance with PO1 of the criteria for assessment in s 7.2.8.4 thereof.[98]  So far as the Centre design code is concerned, the finings I have made with respect to need and the impacts on other centres are such that s 4.2.2.2(1)(a) of the purpose of this code is complied with.  Similarly, where it is impossible to create a new centre and comply with PO3 of the criteria for assessment, there is compliance with PO4.[99]

Function and scale

  1. [50]
    There are a number of references in relevant provisions of the Planning Scheme that development on the site be “small-scale” and that the focus be “local”. Neither of these terms are defined in the Planning Scheme. From a planning perspective I accept the unanimous view of the town planners who gave evidence, Mr Perkins, who gave evidence on behalf of the appellant, Mr Ovenden, who gave evidence on behalf of the Council, Mr Reynolds, who gave evidence on behalf of Dexus and Mr Schomburgk, who gave evidence on behalf of Trinity Park Investments that the proposed development is not small-scale. Given the context in which this wide-ranging term appears, I have no difficulty accepting the evidence of the town planners as to its meaning in this technical context.[100]  The meaning to be attributed to the word “local” is more contentious.  In the Macquarie Dictionary it is defined as inter alia “relating to or characterized by place”.[101]  It is clearly a flexible concept.  Mr Reynolds adopts the approach that it should refer to a single suburb, “such as Trinity Beach” or “part of Trinity Beach”.[102]  This is too narrow.  On the facts before me it must refer to the PTA.[103] In the Low-medium density residential zone code it states that dwellings are to be supported by “community uses and small-scale services and facilities that cater for local residents”.[104]  Accordingly, I find that while the proposed development will not be a small-scale facility, it will cater for local residents, including providing a supermarket for their weekly shopping needs.
  1. [51]
    In terms of fundamental planning principles,[105] I have no doubt that the proposed development is in an appropriate location.  Each of the town planners who gave evidence agreed about the following locational attributes of the proposed development:
  1. That it was “well located and physically suitable for a local centre”;[106]
  1. That, appropriately conditioned, it would not detrimentally affect the amenity and character of the surrounding residential area;[107]
  1. That it would “support the local community, cater for local residents and result in economic and social benefits for the local community”;[108] and
  1. That it “is of an acceptable contemporary design standard for a centre as large as this”.[109]
  1. [52]
    Other particular attributes of the proposed development I acknowledge, and which were readily conceded by Mr Reynolds in the course of cross-examination, were excellent access to the Captain Cook Highway, its suitable location with respect to walking and cycling, that it presented an advantage to local residents in that they could access the proposed development without having to travel along the highway, and that it enabled the prospect of high density residential living around it.[110]  In the circumstances there is compliance with PO7 and the relevant parts of the criteria for assessment in PO4 in the Low-medium density residential zone code.[111]  The only non-compliance arises with respect to the proposed development not being small-scale both from the perspective of s 6.2.10.2(1) and PO3.[112]  Again, it is only this aspect of the proposed development that constitutes a non-compliance with PO2 of the Smithfield local plan code.[113]
  1. [53]
    A new centre is going to be established in circumstances where I find that it complies with s 3.3.2.1(10) of the Strategic framework.[114] There is a need for each of the components, it is of a scale required to serve the surrounding catchment it will serve, it will be centrally located and it will not compromise the character and amenity of adjoining premises. Where such a development complies with the Strategic framework this prevails over all other components of the Planning Scheme in the event of inconsistency pursuant to s 1.5(1)(a).[115] This is unsurprising, where, in the circumstances before me, it is difficult to see how a new centre could be established of an appropriate size in this suitable location in response to such a clear need for each of its components in the local area if it had to be small-scale. In any event, given the flexible approach to the exercise of the court’s discretion in deciding an appeal, the fact that the proposed development is not small-scale does not warrant refusal of it.[116]

Impacts on Sub-Precinct 3b

  1. [54]
    The next issue identified for consideration is whether the proposed development will result in unacceptable impacts on the role, function and economic viability of Sub-Precinct 3b in the Smithfield local plan. As noted above, this is where Trinity Park Investments owns land which is the subject of a code assessable application for a shopping centre lodged on 6 November 2019.[117]
  1. [55]
    In considering this issue, it is important to distinguish between the planning status of Sub-Precinct 3b and the TPI Development Application. As Skoien SJDC observed in Ugarin Pty Ltd v Logan City Council in the context of an appeal concerning an application for a development permit for a material change of use for the establishment of a shopping centre:

“It was long ago established in the former consent application appeals it was not the function of this Court to consider whether a better site existed for the proposed use but to decide whether consent should be given to the particular use on the particular site… However it was otherwise in the former re-zoning application appeals where it was recognized that it was relevant to consider if there was another available site, suitably zoned, on which the particular use could be carried on.” [118]

As noted above, Sub-Precinct 3b lies about 2 kilometres north of the Smithfield Shopping Centre.[119] It is not identified as being part of a centre in the Planning Scheme and it is currently undeveloped.  It seeks overall outcomes including “a mix of retail, professional business, innovative and technology industries”.[120] Sub-Precinct 3b is in turn identified as a future “retail and commercial area”.[121]  It is located in the Mixed use zone.[122]  In the purpose of the Mixed Use zone code it is stated that it is to provide for a wide mix of activities including “business, retail, residential, tourist accommodation, service industry and low impact industrial uses” and “to recognise the presence of areas of mixed land use outside the hierarchy of centres that contain a wide variety of uses”.[123]  In the corresponding table of assessment a shopping centre of not greater than 5,000m2 total gross floor area in Sub-Precinct 3b is code assessable as it is in other nominated circumstances.[124] As is demonstrated by the information request in respect of the TPI Development Application, the requirements of such a code assessable application are onerous.[125]  It is not the only opportunity for a code assessable shopping centre in the table of development for the Mixed use zone.

  1. [56]
    That opportunity for code assessable development in Sub-Precinct 3b does not, in my view, mean that the proposed development would result in unacceptable impacts on the role, function and viability of Sub-Precinct 3b, given the broad range of uses contemplated for it. The observations of Row DCJ in Hervey Bay Projects v Hervey Bay City Council are apposite:

“The existence of appropriately zoned land may be of little consequence where that land has not been used for a purpose for which it could be used under the relevant Planning Scheme.” [126]

Not only will the proposed development not have unacceptable impacts on the role, function and economic viability of Sub-Precinct 3b in the Smithfield local plan but there is no evidence before me of any intention by any supermarket operator to conduct such a use within Sub-Precinct 3b.  A previous development approval for a supermarket, speciality shops and display facilities on the Trinity Park Investments land lapsed on 31 July 2019.[127]  This occurred where the only interested retailer, the Woolworths Group, terminated negotiations with Trinity Park Investments in April 2012.[128]  I accept the evidence of Mr Duggan, the Regional Property Manager for the Woolworths Group, that Woolworths has no interest in operating a supermarket on the Trinity Park Investments land as it is not considered a viable alternative.[129]

  1. [57]
    Accordingly, to the extent it could be asserted that land in Sub-Precinct 3b already is appropriately designated for the use of a shopping centre as contemplated by the proposed development, there is no evidence before me that it is likely to be used as such and it is certainly not currently able to meet the pressing need I have already identified. The TPI Development Application is seriously wanting in several respects including demonstrating satisfactory access, such that Mr Schomburgk, the planner who gave evidence on behalf of Trinity Park Investments, conceded during cross-examination that the material that accompanied the development application was not of a standard that he would normally expect for an application of this sort,[130] and further that it was so deficient that the Council could not assess the development application because it did not have enough information.[131]

Relevant matters

  1. [58]
    The first of the relevant matters identified for consideration is whether there is a need for the proposed development in the context of a number of considerations. It is clear that the proposed development would bring price benefits, employment opportunities, choice, competition and convenience in circumstances where the only significant retail outlet for the necessities of life within the PTA is the relatively expensive NightOwl store in the Trinity Beach Shopping Centre.[132]  It is also the case that it would provide a second Woolworths store for the Northern Beaches region where there is a community benefit associated with the existence of a committed anchor tenant. The proposed development would be centrally located to meet the 10,800 residents outside of a 3 kilometre radius of an existing supermarket.
  1. [59]
    I accept that there will be efficiencies achieved by the co-location of the uses in the proposed development, all of which are well-located to serve the growing community identified in the PTA. The need for the uses in the proposed development coupled with the gap in the provision of a full-line supermarket to provide for the need, justifies the creation of a new centre on the site as contemplated in the Strategic framework of the Planning Scheme.[133] The meeting of this need at a site which from the perspective of the planning evidence before me is ideally located to meet that need,[134] is a powerful consideration.  This consideration, together with the fact that it will provide the local community with the opportunity of shopping for the necessities of life and utilising the ancillary uses without having to journey along the at times congested Captain Cook Highway,[135] clearly justify the proposed development despite the fact that it is not small-scale. The potential impacts on any un-actioned approval to extend shopping facilities at Smithfield Shopping Centre is irrelevant in circumstances where I have that the proposed development would not compromise its role and function in the region.

Conclusion

  1. [60]
    The proposed development is justified as being ideally located to meet the identified need for a shopping centre including a full-line supermarket, a Health Care Service, a Child Care Centre, and a Service Station and Food and Drink Outlet in a part of the Northern Beaches region of Cairns which lacks a centre to suitably co-locate the above uses. Where the proposed development is ideally located to meet the need for these uses without adverse character and amenity impacts, it can be justified as the establishment of a new centre pursuant to s 3.3.2.1(10) of the Planning Scheme.[136]  To the extent that the function and scale of the proposed development is not small-scale as is contemplated by various provisions in the Planning Scheme, it is significant that the Strategic framework prevails over all other components to the extent of inconsistency and this fact does not, in any event, warrant a refusal of it.[137] Each of the proposed uses will cater for local residents but not compromise the existing hierarchy of centres pursuant to the Planning Scheme.
  1. [61]
    I therefore will allow Appeal 201 of 2018 subject to the imposition of appropriate lawful conditions. I dismiss Appeal 221 of 2018 and Appeal 223 of 2018.

Footnotes

[1]  Exhibit 3, p 886.

[2]  T1–2, Il 38–41.

[3]  T1–3, Il 20–25.

[4]  Closing submissions of the Community Association, p 7.

[5]  T1–16, ll 20–35.

[6]  T1–23, ll 30–40.

[7]  T6–5, ll 40–45.

[8]  Exhibit 16, para 11.

[9]  Exhibit 5, p 2.

[10]  Exhibit 14, para 10.

[11]  Exhibit 22.

[12]  Ibid.

[13]  Exhibit 18, p 22; Exhibit 14, para 209.

[14]  Exhibit 14, table 14.

[15]  Ibid, and para 190.

[16]  Exhibit 13, para 11.

[17]  Exhibit 16, para 20.

[18]  Ibid, para 30.

[19]  Exhibit 18, p 280.

[20]  Exhibit 26A; Trinity Park Investments Pty Ltd & Anor v Cairns Regional Council & Anor [2019] QPEC 68.

[21]  Exhibit 22.

[22]  Exhibit 16, para 16.

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

[24]  Ibid s 45(1)–(2).

[25]Planning Act 2016 (Qld) s 45(5)(a)(i).

[26]  Ibid s 45(5)(b).

[27]  [2018] 230 LGERA 374 at 391 [66].

[28]  (2019) QPELR 793 at 806–807.

[29]  [2019] QPEC 46 at [22].

[30]CairnsPlan 2016 Version 1.2 s 5.3(7); Exhibit 18, p 64.

[31]  Ibid s 5.4(1)(d); Ibid, p 65.

[32]CairnsPlan 2016 Version 1.2 s 3.3.1(1)(d); Exhibit 18, p 20.

[33]  Exhibit 18, pp 21–24.

[34]  Ibid, p 25.

[35]  Ibid, p 35.

[36]  Exhibit 18, pp 142–144.

[37]  Exhibit 18, p 146.

[38]  Exhibit 18, pp 160–166.

[39]  Exhibit 18, pp 189–190.

[40]  Exhibit 10A.

[41]CairnsPlan 2016 Version 1.2 s 3.3.2(10); Exhibit 18, p 24.

[42]  Ibid s 9.4.2.2(1)(a); Ibid, p 189.

[43]  Exhibit 18, p 190.

[44]  Exhibit 14, para 231.

[45]  [2003] QPELR 447 at 455 [35].

[46]  [1981] QPELR 33 at 35.

[47]  [2003] QPELR 414 at 418 [21].

[48]Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132; Redland City Council v King of Gifts (Qld) Pty Ltd & Anor [2020] QCA 41.

[49]Redland City Council v King of Gifts (Qld) Pty Ltd & Anor [2020] QCA 41 at [169].

[50]  Ibid at [17]–[18].

[51]CairnsPlan 2016 Version 1.2 s 3.3.2(10); Exhibit 18, p 24.

[52]  Exhibit 13, para 30.

[53]  Ibid, para 31.

[54]  [2008] QPELR 480 at 485 [30].

[55]  Exhibit 14, para 93.

[56]  Ibid, paras 94–97.

[57]  Exhibit 14, paras 98–99.

[58]  Ibid, para 100.

[59]  Exhibit 22.

[60]  Exhibit FG3, para 2.20.

[61]  Ibid, paras 2.23–2.35.

[62]  Exhibit 14, para 171.

[63]  Exhibit FG3, para 2.35.

[64]  Exhibit 14, para 234.

[65]  Ibid.

[66]  Exhibit 14, para 238.

[67]  Ibid, para 18.

[68]  Exhibit 14, paras 160–173, table 10.

[69]  T6–17, T6–84–85.

[70]  Exhibit 14, paras 337–338; Exhibits FG1 and FG2.

[71]  Exhibit 13, para 57.

[72]  Exhibit FG2.

[73]  Exhibit 14, para 257.

[74]  T5–22, ll 39–42.

[75]  Exhibit 14, paras 196–198.

[76]  Exhibit 14, para 14.

[77]  Exhibit 18, p 64.

[78]  Exhibit 14, paras 404–408.

[79]  Exhibit FG3, para 2.58.

[80]  Ibid.

[81]  Exhibit FG3, para 2.70. 

[82]  Ibid, para 2.73.

[83]  Exhibit FG3, para 2.74.

[84]  Exhibit 14, paras 336–338, 368–370, T5–13, ll 11–19, T6–67 ll 33–34.

[85]  Ibid, paras 336–338, paras 369–370.

[86]  Exhibit FG2.

[87]  Exhibit 14, para 190.

[88]  Ibid, para 342.

[89]  Exhibit FG4.

[90]  Exhibit 14, para 370.

[91]  Exhibit FG3, para 4.3.

[92]  Exhibit 18, p 20.

[93]  Exhibit 14, para 61.

[94]  Exhibit 18, p 24.

[95]CairnsPlan 2016 Version 1.2 s 1.5(1)(a), Ibid, p 13.

[96]  Exhibit 18, p 270.

[97]  Exhibit 18, p 160–161.

[98]  Ibid, p 162.

[99]  Exhibit 18, p 190–191.

[100]HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230 at 235.

[101]Macquiarie Concise Dictionary, University of Sydney, 4th ed, 2008, p 703.

[102]  Exhibit 16, para 69.

[103]  Exhibit 22.

[104]CairnsPlan 2016 Version 1.2 s 6.2.10.2(1); Exhibit 18, p 142.

[105]  Or what were put to Mr Reynolds as “first principles”, T7–78, Il 10–45.

[106]  Exhibit 16, para 303(a).

[107]  Ibid, para 303(b).

[108]  Ibid, para 303(c).

[109]  Ibid, para 303(d)

[110]  T7–78–79.

[111]  Exhibit 18, pp 142–144.

[112]  Ibid, pp 142–143.

[113]  Ibid, p 163.

[114]  Exhibit 18, p 24.

[115]  Exhibit 18, p 13.

[116]Ashvan Investments Unit Trust v Brisbane City Council & Ors (2019) QPELR 793 at 806–807; Murphy v Moreton Bay Regional Council & Anor [2019] QPEC 46 at [22].

[117]  Exhibit 26, p 5.

[118]  [2004] QPELR 392 at 400 [65].

[119] Exhibit 22.

[120]CairnsPlan 2016 Version 1.2 s 7.2.8.3(v)(b); Exhibit 18, p 162.

[121]  Ibid s 7.2.8.3(v)(d)(ii); Ibid.

[122]  Exhibit 18, p 272.

[123]  Ibid, p 146.

[124]  Ibid, p 100.

[125]  Exhibit 26A, pp 422–426.

[126]  [1993] QPLR 104 at 114.

[127]  Exhibit 26, p 4.

[128]  Exhibit 26, p 1; Exhibit 13, para 38.

[129]  Ibid, p 44 and T1–11, ll 29–30.

[130]  T8–37, ll 45–48.

[131]  T8–38, ll 34–40.

[132]  Exhibit 14, para 253 and table 14.

[133]CairnsPlan 2016 Version 1.2 s 3.3.2.1(10); Exhibit 18, p 24.

[134]  Exhibit 16, para 303.

[135]  T3–44, ll 30–45; T3–45 ll 1–10 and T6–95, ll 25–30.

[136]  Exhibit 18, p 24.

[137]CairnsPlan 2016 Version 1.2 s 1.5(1); Exhibit 18, p 13.

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Editorial Notes

  • Published Case Name:

    Fabcot Pty Ltd v Cairns Regional Council & Dexus Funds Management & Cairns Combined Beaches Community Association Inc & Indigenous Business Australia & Trinity Park Investments Pty Ltd & L'armonia

  • Shortened Case Name:

    Fabcot Pty Ltd v Cairns Regional Council

  • MNC:

    [2020] QPEC 17

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    30 Apr 2020

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDetermination of Cairns Regional Council10 Oct 2018Cairns Regional Council issued preliminary approval for a Shopping Centre and Health Care Services and reconfiguration of a lot into 14 lots together with a development permit for a Child Care Centre, Service Station, Food and Drink Outlet and other other related permits at Trinity Beach.
Primary Judgment[2020] QPEC 1730 Apr 2020Appeal 201 of 2018 (by Fabcot Pty Ltd) for a development permit of those matters the subject of preliminary approval allowed subject to the imposition of appropriate lawful conditions; appeal 221 of 2018 (Dexus Funds Management) that the proposed development be refused dismissed; appeal 223 of 2018 (Trinity Park Investments Pty Ltd and L'Armonia Pty Ltd) that the proposed development be refused dismissed: Everson DCJ.
Notice of Appeal FiledFile Number: Appeal 6189/2009 Jun 2020Application for leave to appeal by Trinity Park Investments Pty Ltd and L'Armonia Pty Ltd.
Notice of Appeal FiledFile Number: Appeal 6288/2011 Jun 2020Application for leave to appeal by Dexus Funds Management.

Appeal Status

Appeal Pending
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