Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •   Notable Unreported Decision

Lipoma Pty Ltd v Redland City Council

 

[2020] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

Lipoma Pty Ltd & Anor v Redland City Council & Anor [2020] QCA 180

PARTIES:

LIPOMA PTY LTD
ACN 002 203 581
(first applicant)
LANREX PTY LTD
ACN 010 740 191
(second applicant)
v
REDLAND CITY COUNCIL
(first respondent)
NERINDA PTY LTD
ACN 001 325 720
(second respondent)

FILE NO/S:

Appeal No 12762 of 2019
P & E Appeal No 4940 of 2015
P & E Appeal No 2 of 2016
P & E Appeal No 44 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Planning and Environment Application

ORIGINATING COURT:

Planning and Environment Court at Brisbane – [2019] QPEC 43 (Morzone QC DCJ)

DELIVERED ON:

28 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

30 April 2020

JUDGES:

Morrison and McMurdo JJA and Ryan J

ORDERS:

1. Grant leave to appeal.

2. Dismiss the appeal.

3. The applicants pay the first respondent’s costs of the application for leave to appeal.

4. Grant leave to the second respondent to make submissions as to costs, and direct:

(a) within 7 days of today, the second respondent file and serve written submissions as to costs, together with any related affidavit material;

(b) within 7 days of service of the second respondent’s material, the applicants file and serve written submissions in response;

(c) within 3 days of service of the applicants’ submissions, the second respondent file and serve any reply, not exceeding one A4 page;

(d) the second respondent’s application as to costs be determined on the papers.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the first respondent approved an application for a development permit – where the developer was the second respondent – where the permit sought to reconfigure a lot, and a preliminary approval for material change of use – where the change was for a mixed-use development, including a shopping centre – where the applicants opposed the second respondent’s application in the Planning and Environment Court – where that challenge was upheld – where this Court remitted the matter to the Planning and Environment Court based on certain errors in approach – where, on the second hearing, the Planning and Environment Court came to the opposite conclusion, supporting the first respondent’s position and dismissing the appeal to it by the applicants – where the development application was made under the Sustainable Planning Act 2009 (Qld) when the 2006 Scheme was in force – where the 2018 Redland City Plan (“2018 Scheme”) has been adopted since the matter was before this Court in 2018 – where the learned trial judge concluded that the proposal was in conflict with the 2006 Scheme – where the learned trial judge concluded that it was appropriate to give no weight to the 2018 Scheme in the assessment of the subject application – where that conclusion was attacked as an error before this Court – whether the 2018 Scheme is the Council’s current statement – whether the 2006 Scheme and the 2018 Scheme are an expression of the “public interest” – whether the learned trial judge erred in finding that there were “sufficient grounds”, in the public interest, to depart from the planning instrument

Planning and Environment Court Act 2016 (Qld), s 63
Sustainable Planning Act 2009 (Qld), s 242, s 326, s 329

Bell v Brisbane City Council (2018) 230 LGERA 374; [2018] QCA 84, cited
Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2000] QPELR 193; [2000] QPEC 1, cited
Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126, cited
Elfband Pty Ltd & Vanhoff Pty Ltd v Maroochy Shire Council [1995] QPLR 290; [1995] QPEC 21, cited
Fabcot Pty Ltd v Cairns Regional Council [2013] QPEC 38, cited
Gillion Pty Ltd v Scenic Rim Regional Council (2018) 235 LGERA 23; [2018] QPEC 47, applied
Gold Coast City Council v K & K (GC) Pty Ltd [2020] QPELR 631; [2019] QCA 132, cited
JPF Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359, cited
Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2020] QPELR 148; [2019] QPEC 43, approved
Luke v Maroochy Shire Council [2003] QPELR 447; [2003] QPEC 5, cited
Parmac Investments Pty Ltd v Brisbane City Council [2008] QPELR 480; [2008] QPEC 7, cited
Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, distinguished
Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515, cited
Skateway Pty Ltd v Brisbane City Council [1980] QPLR 245, cited

COUNSEL:

C Hughes QC, with M Batty, for the applicants
R Litster QC, with K Wylie, for the first respondent
D R Gore QC, with J G Lyons, for the second respondent

SOLICITORS:

McCullough Robertson Lawyers for the applicants
Gadens for the first respondent
Anderson Lawyers for the second respondent

  1. [1]
    MORRISON JA:  On 18 November 2015 the Redland City Council approved an application for a development permit.  The developer was Nerinda Pty Ltd.  The permit sought to reconfigure a lot (from one lot into two), and a preliminary approval for material change of use.  The change was for a mixed-use development, including a shopping centre, on the corner of Panorama Drive and Boundary Road in Thornlands.
  2. [2]
    Since that time the application for preliminary approval has been the subject of appeal proceedings in the Planning and Environment Court,[1] then in this Court on appeal, when it was remitted to the Planning and Environment Court.[2]  Then again in the Planning and Environment Court for a second hearing,[3] and now into this Court again.
  3. [3]
    That complicated progression has had a number of factors behind it.  The first is that Nerinda’s application is opposed by the applicants in the Planning and Environment Court, Lipoma Pty Ltd and Lanrex Pty Ltd.  Those companies own shopping centres with which the proposed shopping centre will compete.  The second is that the Council approved the preliminary approval, but the Planning and Environment Court upheld the challenge against that on the first hearing.  Then this Court remitted the matter to the Planning and Environment Court based on certain errors in approach.  Thirdly, on the second hearing (the subject of this application for leave to appeal), the Planning and Environment Court came to the opposite conclusion, supporting the Council’s position and dismissing the appeal to it by Lipoma and Lanrex.
  4. [4]
    Notwithstanding that long and winding road, the issues before this Court are more constrained than would appear to be the case.  In part, that is due to the number of factual findings made by the Planning and Environment Court on the second hearing.

The proposed development

  1. [5]
    The development application sought a permit to reconfigure a lot, in the form of converting one lot into a two-lot subdivision.  It also sought preliminary approval pursuant to s 242 of the Sustainable Planning Act 2009 (Qld),[4] for a material change of use for a mixed-use development, including residential and shopping centre uses, as well as a large green space precinct.  The preliminary approval also sought to vary parts of the Redlands Planning Scheme 2006,[5] by altering the levels of assessment for development within various precincts comprised within the development, and specifying the assessment criteria for that development.
  2. [6]
    The only part of the preliminary approval which is the subject of contention is the retail/commercial component.  In that respect the various expert town planners agreed:[6]

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

  1. [7]
    To understand the retail/commercial component more fully, one can note that it is intended to comprise:
    1. (a)
      a 4,100m² “full-line” supermarket;
    2. (b)
      1,600m² of specialty shops, including a 500m² retail warehouse (discount chemist);
    3. (c)
      an 850m² family tavern;
    4. (d)
      a 225m² medical centre;
    5. (e)
      a 100m² service station; and
    6. (f)
      parking for 374 vehicles.
  2. [8]
    That part of the preliminary approval seeking to vary the effect of the 2006 Scheme specifies variations that are targeted at the Kinross Road Structure Plan Code[7] as follows:
    1. (a)
      the introduction of a new precinct, being the “Neighbourhood Centre Precinct”;
    2. (b)
      the variation of the precincts applicable to the site to those described in Figure 1-Paradise Gardens Precinct Plan;
    3. (c)
      amendment of the tables of assessment, as they apply to development on the site;
    4. (d)
      amendment to the Overall Outcomes, as they apply to development on the site; and
    5. (e)
      amendment to the Specific Outcomes and Probable Solutions, as they apply to development on the site.
  3. [9]
    The land the subject of the proposal has an area of 6.254 hectares.  It is located at 128-144 Boundary Road, Thornlands, on the north-western corner of Panorama Drive and Boundary Road.  It is described as Lot 3 on SP 117065.
  4. [10]
    The land is situated at the junction of two major roads, namely Boundary Road (a four lane divided State controlled road) and Panorama Drive (which has two to four lanes).  Those roads facilitate a variety of bus routes and bus stops.  The land is currently used as a market garden.
  5. [11]
    Surrounding land uses largely concentrate on residential development of one sort or another, or more general urban development under the Kinross Road Structure Plan.
  6. [12]
    In the decision under challenge in this Court, the learned primary judge noted that since the appeals were first heard by the Planning and Environment Court there had been a number of changes in the area.  Those changes included:
    1. (a)
      other development approvals which had been granted over the land the subject of the Kinross Road Centre; in January 2018 the Council approved a reconfiguration of a lot over a poultry farm (to create in excess of 68 lots, a road and a park); the Council also approved a childcare centre and multiple dwellings application in December 2018;
    2. (b)
      further residential development had occurred within the locality;
    3. (c)
      a Supa IGA opened at Mount Cotton, being the first full-line supermarket to be constructed in Redland City since 2003; and
    4. (d)
      there had been increases in population growth, the benefit of which had gone to existing centres because of the delay in the progress of the subject application.
  7. [13]
    The land is about 3.8 kilometres west of Victoria Point, which includes three Major Centres, each exceeding 25,000m² of lettable area, and each containing major supermarkets leased by Coles, Woolworths or Aldi, as well as other major retailers such as Kmart and Bunnings.
  8. [14]
    In terms of general location the land is 5.4 kilometres south of the Cleveland town centre, and 25 kilometres east of the Brisbane central business district.

Planning schemes

  1. [15]
    The development application was made under SPA in August 2014, when the 2006 Scheme was in force, and thus fell to be assessed against the provisions of that scheme.
  2. [16]
    Under the 2006 Scheme the land is partly within four different zones, medium density residential, urban residential, open space and community purposes zones.  Its designation under the Kinross Road Structure Plan was partly as Medium Density Residential Housing, partly as Urban Residential Housing, and partly as Greenspace Network.
  3. [17]
    Since the commencement of the 2006 Scheme (on 30 March 2006), for all but 14 months of that time the land has been identified for centre uses either by way of zoning or development approvals.  Part of the land, at the corner of Panorama Drive and Boundary Road, had an existing development approval (dating from April 2013) for a commercial centre of 1,000m² gross floor area mixed-use centre.
  4. [18]
    Since the matter was before this Court in 2018, the 2018 Redland City Plan[8] has been adopted, coming into force on 8 October 2018.  It is uncontroversial that the 2018 Plan replicates the planning intent found in the 2006 Scheme.  It also incorporates the Kinross Road Structure Plan, and thereby retains the mixed zoning pattern for this land, namely Medium Density Residential, Low-Medium Density Residential, and Open Space.

Conflict with the 2006 Scheme

  1. [19]
    The learned trial judge gave considerable attention to the nature and extent of conflict between the approval and the relevant planning instruments.[9]  His Honour’s conclusion was that the proposal was in conflict with the 2006 Scheme:[10]

“Even so, it seems to me that the conflict with the 2006 scheme is plain and significant since the proposed centre is not contemplated by the scheme in its location, scale or function and is ‘out of centre development’.  The proposed development would:

  1. Result in an additional centre not contemplated by the 2006 scheme’s planned centre network; and
  2. Potentially impact upon the City’s planned centre-driven economic and employment opportunities at Cleveland and Victoria Point.”
  1. [20]
    His Honour also concluded that there was conflict with the 2006 Scheme’s Strategic Framework:[11]

“The proposed development is inconsistent with the 2006 scheme’s Strategic Framework as identified by the appellant, in that:

  1. The development would result in an additional centre inconsistent with the Scheme’s planned centre network;
  2. The development would potentially jeopardise the ability of higher order centres to function at the level intended by the centres hierarchy;
  3. The development is inconsistent with the intention for the land to be utilised for medium density residential housing (sub-precinct 3b), urban residential housing (sub-precinct 4b) and green space network (sub-precinct 7(e)); and
  4. The development would potentially jeopardise the ability for the planned local centre in the Kinross Road Structure Plan area to properly function.”
  1. [21]
    However, his Honour concluded that the 2006 Scheme excluded the Strategic Framework provisions from the assessment of the particular development and therefore the conflict which existed was irrelevant to any determination by the Planning and Environment Court.[12]
  2. [22]
    The learned trial judge also considered the various contentions that there was conflict with the zone provisions, and in particular the Community Purposes Zone and the Medium Density Residential Zone.  His Honour concluded that there was a conflict:[13]

“[104] As discussed above, the proposed development is more accurately characterised as functioning more like a District Centre, or at least, a larger centre than a Neighbourhood Centre (so called by the co-respondent).

[105] It seems to me that the proposed development and proposed variations conflict with the zone provisions as contended by the appellants.  It involves uses that are inconsistent with the zone and use of the planned road.  The proposed road connection, in an alternative location, will also affect the adjacent land because it does not align with the land that is in the zoned road on the land to the immediate west.  Further, the proposed development involves direct vehicular access from Boundary Road.”

  1. [23]
    Further, the learned trial judge accepted the contention that there was demonstrated conflict with the overall outcomes for the Kinross Road Structure Plan Area Overlay Code.  In in the proceedings below, Nerinda conceded the three respects in which his Honour found that there was demonstrated conflict.[14]

Is the 2018 Scheme the Council’s current statement?

  1. [24]
    The learned trial judge concluded that it was appropriate to give no weight to the 2018 Scheme in the assessment of the subject application.  This was attacked as an error before this Court.  The reasons for his Honour’s conclusion require some consideration.
  2. [25]
    Under s 495(2)(a) of SPA the court may give such weight to the 2018 Scheme that the court considers appropriate in the context of the assessment and decision rules.  The learned trial judge referred to the fact that in his Honour’s first decision the then draft scheme, which later became the 2018 Scheme, was given considerable weight.  It was that which this Court declared as an error in approach.[15]
  3. [26]
    Having observed that the 2018 Scheme, like the draft scheme, replicated the zoning patterns that were evident in the 2006 Scheme, his Honour then identified why he had come to the opposite conclusion.  This was because of further unchallenged evidence adduced in the second hearing, which persuaded his Honour that there was good reason to conclude that the Council’s implementation of the new scheme was not destructive of its decision to support the development application.  That evidence was critical to his Honour’s finding, as a matter of fact, that the 2018 Scheme should not be regarded as the Council’s most recent statement of position about supermarket-based shopping centres on the subject site.  It is therefore appropriate to set out his Honour’s findings as to that evidence:[16]

[68] In the rehearing, I had the benefit of a historical explanation for the Council’s parallel support of the application, and its new scheme process leading to the 2018 scheme in the unchallenged evidence of Ms Kerwin and Mr Jeanes.

[69] Ms Kim Kerwin was the project manager responsible for development of the draft scheme through to implementation of the 2018 scheme.  Her evidence was not challenged or contradicted.  In particular, Ms Kerwin’s evidence shows that:

  1. (a)
    the Council apprehended that in creating the 2018 scheme it could not affect any development entitlements or development obligations under the Kinross Road structure plan in an adverse or material way;  and
  1. (b)
    as a result, in creating the 2018 scheme the Council did not contemplate amending or changing the draft document to reflect the approval subject of these appeals as the Council had been directed by the State that it was required to implement the zoning intent of the Kinross Road structure plan and that any variation from the zoning intent was not allowed (and could only be resolved by subsequent amendment to the scheme).
  1. Similarly, the evidence of Mr Jeanes highlights that:
  1. (a)
    the zoning of the land in the 2018 scheme was effectively a carry-over from the zoning under the Kinross Road structure plan and was required to be carried over in the 2018 scheme because it was implemented as part of a declared master planning process;
  1. (b)
    the Council is supportive of the proposed development largely due to the need for a full-line supermarket type centre and the lack of negative impacts that would arise from approval; and
  1. (c)
    any centres review to the planning scheme could potentially take effect in mid 2020 but it is expected that it could take longer.

[70] It was not until the subject development application was received, and associated studies were undertaken, that the Council became acutely aware of the deficiency in the centres planning strategy.  This culminated in the earlier advice from Mr Norling (for need) and Mr Ovenden (for town planning) who were retained to undertake an ‘arms length’ review of the application.  Whilst the advice was sound, it was not so timely to enable the Council to change its course regarding the draft scheme.  Council was bound to carry out the assessment of the application in parallel to continuing its legislative function of drafting and implementing a new scheme.  The draft scheme was subject of review and public consultation between 14 September 2015 and 27 November 2015, which attracted 5000 properly made submissions.  In the meantime, the Council officers recommended approval of application, and the application was approved by the Council on 18 November 2015.  In due course, the 2018 scheme was adopted, and came into force on 8 October 2018.

[71] The Council’s scheme review was controlled by the Statutory Guideline 04/14 – Making and amending local planning instruments.  It prescribed that if, following public consultation, a change to the draft scheme made it “significantly different”, public consultation would have to be repeated having regard to the guideline’s criteria.  Plainly, the introduction of a new district centre in the Thornlands area would meet this threshold.  In this regard, Mr Ovenden opines that “were the Court to allow this appeal and refuse the application, Council should undertake a network of centres review as suggested by Mr Jeanes.  I anticipate any subsequent scheme amendment would result in the introduction of a full-line supermarket based local or district centre in the approximate location of the site the subject of this appeal.”  I’m inclined to agree.”

  1. [27]
    It was accepted by all parties before this Court that the evidence that the learned trial judge referred to was unchallenged, and that his Honour’s conclusion based upon that evidence was a finding of fact which could not be challenged before this Court.  The finding was expressed in paragraph [72] of the Reasons below:[17]

“It seems to me that the chronology bears out that the adopted 2018 scheme (replicating the draft scheme) ought not be regarded as the Council’s most recent statement of position about a supermarket-based shopping centre on the subject site.  I now accept that the converse is true given the elucidated chronology, and the Council’s active support for the proposal in the Court of Appeal in 2018, and in the Court in 2019.”

2006 Scheme and 2018 Scheme – expression of the “public interest”?

  1. [28]
    Sections 326 and 329 of SPA are relevantly in the same terms.  They deal with the situation where there is conflict between the assessment manager’s decision and the relevant planning instrument.  Section 326 provides:

“326 Other decision rules

  1. (1)
    The assessment manager’s decision must not conflict with a relevant planning instrument unless –
    1. the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or
    2. there are sufficient grounds to justify the decision, despite the conflict; or
    3. the conflict arises because of a conflict between –
  1. (i)
    2 or more relevant instruments of the same type, and the decision best achieves the purposes of the instruments; or

Example of a conflict between relevant instruments

conflict between 2 State planning policies

  1. (ii)
    2 or more aspects of any 1 relevant instrument, and the decision best achieves the purposes of the instrument.

Example of a conflict between aspects of a relevant instrument

a conflict between 2 codes in a planning scheme

  1. (2)
    In this section –

relevant instrument means a matter or thing mentioned in section 313(2) or 314(2), other than a State planning regulatory provision, against which code assessment or impact assessment is carried out.”

  1. [29]
    Section 326 applies to the part of an application for preliminary approval which does not seek approval to vary the effect of the applicable local planning instrument.  Section 329 applies to the part of an application which does seek approval to so vary the local planning instrument.  Both applied here.
  2. [30]
    In Bell v Brisbane City Council[18] this Court referred to the application of s 326(1)(b), examining the question of whether there are sufficient grounds to justify a decision notwithstanding that there is a conflict with the relevant planning instrument.  McMurdo JA[19] said:[20]

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

“The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.” (Emphasis added)

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

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

[69] The submissions for the respondents emphasise that in Elan Capital, Quirk DCJ used the expression “planning strategies”, which they distinguish from the relevant provisions of the Scheme in this case. However, what must be applied here are the terms of s 326(1)(b) of the SPA, for which there was no legislative equivalent when Elan Capital was decided.

[70] Consequently, any consideration of the application of s 326(1)(b) of the SPA must proceed upon the premise that it is in the public interest that the planning scheme, in each relevant respect, be applied, unless the contrary is demonstrated. ....”

  1. [31]
    Importantly for the present case, this Court endorsed the conclusion that a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.  As regards the development of the subject land, that cannot be the case given the finding of the learned trial judge in paragraph [72] of the Reasons below.  Before this Court the parties accepted that his Honour’s finding was to that effect, and was a finding of fact which cannot be challenged in this Court.  An appeal to this Court is limited to error or mistake in law or want of jurisdiction.[21]
  2. [32]
    For those reasons the appropriate point from which to commence consideration of the issues is that the 2006 Scheme and the adopted 2018 Scheme do not reflect an expression of the public interest in respect of development of the subject land.  For that reason also, the finding by the learned trial judge that the 2018 Scheme should be given no weight cannot be shown to have been in error.  Once it ceases to be a statement of the public interest as to the appropriate development of the subject land, it is difficult to see what weight could be given to it.
  3. [33]
    Rather, that finding by the learned trial judge means that the central question for this Court to determine is whether his Honour erred in finding that there were “sufficient grounds”, in the public interest, to depart from the planning instrument.

Sufficient grounds

  1. [34]
    The question of “sufficient grounds” has been addressed in a number of authorities.  The source of the discussion is the definition of “grounds” for the purposes of s 326(1)(b) of SPA.  Schedule 3 of SPA defines those “grounds” as “matters of public interest”, which do not include the personal circumstances of an applicant, owner or interested party.
  2. [35]
    The grounds are not confined to planning grounds, as was recognised by this Court in Gold Coast City Council v K & K (GC) Pty Ltd.[22]  There this Court said:[23]

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

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

  1. [36]
    Sofronoff P[24] identified a non-exhaustive list of matters that might be considered when determining whether there were sufficient grounds to justify a decision that conflicted with the relevant instrument.[25]  They included that:  the relevant planning instrument might be out of date by reason of further developments; the planning instrument is incorrect because, for example, it was based on incorrect assumptions of growth; the planning instrument inadequately addressed development; the planning instrument did not anticipate specific or particular development; and there was an urgent need for the proposal in question, and that urgent need could not be met by waiting for changes to the planning scheme.
  2. [37]
    As to those matters, Sofronoff P said:[26]

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

  1. [38]
    A similar approach to the type of exceptional circumstances which would justify a decision that conflicts with the relevant planning instrument were noted by this Court in Bell.[27]  Without meaning to constrain the type of exceptional circumstances, the Court referred to cases where relevant circumstances had changed since the planning scheme had been made, where there was a factual error in the scheme itself, or where the planning scheme had not anticipated the existence of circumstances which have created a need for a certain development in the public interest.
  2. [39]
    In the proceeding below the parties did not suggest that the test of “sufficient grounds” under s 329(1)(b) of the SPA was any different from that under s 326(1)(b).[28]  The same position was taken in this Court.[29]  There was no real challenge to the primary judge’s statement of what was required for a consideration of “sufficient grounds” whether under s 326(1)(b) or 329(1)(b).  His Honour took the test straight from Gillion Pty Ltd v Scenic Rim Regional Council:[30]

[57] Each case will necessarily turn on its own facts in the context of the relevant instrument and the public interest. It seems to me that the 'sufficient grounds' consideration required by ss 326(1)(b) and 329(1)(b) as refined by the contemporary Court of Appeal authority, involves four tasks (with some overlap between them) in conjunction with the assessment applicable to the part of the application:

  1. Examine the nature and extent the proposed development conflicts with the terms of the relevant instrument as the comprehensive expression and embodiment of what is in the public interest, having regard to the common material, any development approval and lawful use of the land or adjacent land, and any referral agency response.
  1. Examine whether there is any tension with the application of the relevant instrument and the public interest; such that the relevant instrument is not, in the particular case, an embodiment of what was in the public interest because for example:
  1. (a)
    Relevant circumstances have changed since the planning instrument was made; or
  1. (b)
    There is a factual error in the instrument itself; or
  1. (c)
    The planning instrument inadequately addressed development; or
  1. (d)
    The planning instrument does not anticipate specific or particular development; or
  1. (e)
    There is an urgent need for the proposal;
  1. If there is tension, examine any grounds that are relevant to the part of the application in conflict with the relevant instrument but otherwise in the public interest; and
  1. Determine whether the grounds are sufficient, in the public interest, to depart from the relevant instrument and justify approving the application notwithstanding the conflict.”
  1. [40]
    Senior Counsel for the applicants criticised those findings for the first time in oral address, and only the basis that they omitted consideration of “the requirement for the need to be sufficient to overcome the specific planning for the site”.[31]  However, as will appear, the learned primary judge gave detailed consideration to the question of need.
  2. [41]
    I have referred earlier to the findings by the learned trial judge, none of which could be the subject of challenge, as to the ways in which the proposed development conflicted with the planning instruments: see paragraphs [19] to [23] above.  Having done so, his Honour then noted that the Council had expressly acknowledged that the 2006 Scheme failed to adequately promote development of the type proposed to serve the Kinross Road Structure Plan Area, as well as the broader southern Thornlands area having regard to Desired Environmental Outcome (“DEO”) 3(1)(f).[32]  Referring to Kangaroo Point Residents’ Association Inc v Brisbane City Council[33] and Mackay Shopping Centre Pty Ltd v Mackay Regional Council,[34] his Honour found that in those circumstances it was permissible for the court to place weight on the Council’s approval, in forming its own view of whether the application ought to be approved despite the conflicts with the planning scheme.  In my respectful view, his Honour was right to reach that conclusion, and it is one that is not challenged by the parties before this Court.
  3. [42]
    His Honour also referred to the fact that the Council had, in the second hearing in that court, conducted a positive case, called evidence from independent experts, made submissions in support of the proposed development, conceded the 2006 Scheme was inadequate, and acknowledged the deficiency of the centres hierarchy.  His Honour was, respectfully, right to characterise the Council’s case in that way, supported as it was by what was said on behalf of the Council during the opening of the case.[35]
  4. [43]
    That being the case, one must note that the Council originally approved this development application in 2015 and has maintained that position ever since.  That is all the more significant when one takes into account the explanation for how the 2018 Scheme came to be promulgated without any modification designed to accommodate the present development application.  In other words, the Council’s position in respect of the present development application has not waivered nor been diluted.
  5. [44]
    The learned trial judge conducted an examination of the “sufficient grounds” which were suggested to justify approval of the development application notwithstanding conflict with the planning scheme.  These were examined under the following heads:
    1. (a)
      scheme deficiency and zoning has been “overtaken by events”;
    2. (b)
      Council’s departures by its approvals;
    3. (c)
      community need;
    4. (d)
      economic need; and
    5. (e)
      planning need.
  6. [45]
    In each case the learned trial judge either accepted planning evidence from the witnesses or made particular findings as to the existence and probative nature of that ground.  What follows is a summary of his Honour’s much more detailed analysis.

Scheme deficiency & zoning has been “overtaken by events”

  1. [46]
    The learned trial judge found that there was significant force in the expert opinions which were advanced at the second hearing, discrediting the contemporary planning for the area where the development is proposed.[36]  That evidence was drawn from the Joint Expert Report on the question of need, in turn dealing with expert reports by SGS Economics & Planning (“SGS”) and Urbis on that question.  One criticism advanced by the joint experts was that, despite identifying a need for about 286,000m² of additional in-centre retail and commercial floor space by 2031, SGS had made no recommendation for additional neighbourhood or local centres.[37]  The same was the case with the Urbis reports.
  2. [47]
    The Joint Expert Report expressed the opinion that it was “extraordinary that, despite identifying significant increases in Redland City’s population (42,000 to 50,000 additional people), neither the two Urbis reports nor the SGS report identified or recommended the potential need for additional shopping centres capable of incorporating full-line supermarkets to service this growth”.[38]  That, his Honour found, was consistent with the evidence of the Council’s planning expert, Mr Ovenden, who expressed the opinion that the planning scheme should not be read too rigidly in circumstances where the Council “has not got the planning quite right”.  His opinion was that the departure from the very prescriptive retail hierarchy in the scheme was in the interest of the community, and would not undermine the integrity of the planning scheme overall.[39]  Both Mr Ovenden and Mr Norling (also called by the Council) expressed the view that there was a gap in the centre hierarchy, and that the current centre’s hierarchy failed to satisfy DEO 3 of the 2006 Scheme.[40]
  3. [48]
    The learned trial judge accepted the evidence of Mr Norling and Mr Cumming that a development approval for a local centre on another site was unlikely to ever deliver anything other than the childcare centre, and certainly not a local centre, let alone a district centre.[41]
  4. [49]
    The implicit finding in that part of his Honour’s reasons, is that there was a deficiency in the planning scheme, and in particular the centres hierarchy, and therefore the 2006 Scheme had been overtaken by events, and was no longer aligned with the needs of the community.  The same could be said of the 2018 Scheme, in that it replicated the 2006 Scheme.

Council’s departures

  1. [50]
    The learned trial judge identified several areas where the Council’s approvals had departed from the planning intent in the 2006 Scheme.  These included the approval on the subject land, approval of a full-line supermarket at the neighbourhood centre in Mount Cotton, and another preliminary approval which included a district centre on land not identified in the centres hierarchy.[42]  Plainly, the learned trial judge found that the departures had been demonstrated in each case.  As his Honour noted, there was no suggestion that those previous decisions were other than appropriate and based on the merits of the case and in the public interest.  His Honour found that they were a “practical indicia of scheme deficiency”, such that the planning instrument was not, in each case, an embodiment of what was in the public interest.[43]

Consideration of community need by the primary judge

  1. [51]
    On this issue the learned trial judge noted that the only component of the proposed development with which issue was taken was the retail/commercial component.  The learned primary judge commenced his consideration of the issue of need by turning to community need first, and observing[44] that the “notion of need in this context is the enhancement of community wellbeing”, and that courts had said of it:[45]
    1. (a)
      “the idea that the physical wellbeing of a community or some part of it can be better and more conveniently served by providing the means for ensuring the provision of that facility, subject always to other considerations of the town planning kind”;
    2. (b)
      “‘Need’ in cases such as this does not mean pressing need, critical need, widespread desire or anything of that nature.  A thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community”;
    3. (c)
      “A use is needed if it would, on balance, improve the services and facilities available in a locality”; and
    4. (d)
      “To provide competition and choice where none exists can represent the filling of a need”.
  2. [52]
    His Honour then framed the question as “whether the residents can be better and more conveniently served with appropriate access to a full-line supermarket and complementary stores, and a tavern”.[46]
  3. [53]
    What followed was a synopsis of the principles applicable to an assessment of community need, drawn from Luke v Maroochy Shire Council,[47] Parmac Investments v Brisbane City Council,[48] JPF Australia Pty Ltd v Livingstone Shire Council,[49] and Fabcot Pty Ltd v Cairns Regional Council.[50]
  4. [54]
    His Honour proceeded to examine the expert evidence on the question of community need.  In doing so his Honour noted that the 2006 Scheme did not provide for centres larger than “top up” convenience shopping at small centres.[51]  That consideration focused on the particular development application, the particular site, and acknowledged that what was proposed was in conflict with the town planning scheme.  That aspect of need was evidently considered in that context.
  5. [55]
    The learned trial judge accepted the evidence of Mr Norling and Mr McCracken, to the effect that there was a “strong” level of need for the proposed development.[52]  Once again, his Honour was focussing on the issue of need for the particular development in its non-conforming location.
  6. [56]
    Having examined the evidence, his Honour’s findings were that whilst there was not an urgent need for the proposal, the evidence exposed a change in circumstance that remained inadequately addressed under the 2006 Scheme, as well as the 2018 Scheme.[53]

Consideration of economic need by the primary judge

  1. [57]
    The learned primary judge commenced his consideration of economic need by observing two principles were applicable:[54]
    1. (a)
      economic need involves consideration of whether there is “unsatisfied economic demand” and the development is necessary to cater for that demand, without unduly disrupting or prejudicing other current or planned centres;[55] and
    2. (b)
      a fundamental element of economic need is that the development, if approved, would be financially viable.[56]
  2. [58]
    In respect of this area, the learned trial judge identified the question as being whether there was unsatisfied economic demand and that the development in question was necessary to cater for that demand.  His Honour then referred to the expert evidence, which focused on questions to do with: whether the proposed centre would achieve an appropriate turnover, service the trade area near the site, whether there had been an increase in population in the primary trade area since the first hearing and the opposing views on each of those issues.  Having examined the competing expert views, his Honour preferred evidence of Mr McCracken and Mr Norling, and the methodology they adopted.  On that basis his Honour made the following finding:[57]

“On my reckoning of the economic need evidence, I am persuaded that there is unsatisfied economic demand and the development is necessary to cater for that demand, without unduly disrupting or prejudicing other current or planned centres.  This is again demonstrative of a change in circumstances that is not adequately addressed under the 2006 Scheme nor the 2018 Scheme.”

Consideration of planning need by the primary judge

  1. [59]
    The learned primary judge commenced his consideration of planning need by adopting what was said by McLauchlan DCJ in Elfband Pty Ltd & Vanhoff Pty Ltd v Maroochy Shire Council:[58]

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

  1. [60]
    In respect of this aspect of the case, the learned trial judge noted that there was little dispute that the land in question was physically ideal for the proposed development.[59]  As his Honour observed, that was not altogether surprising in view of the fact that the Council had already accepted that the subject land was suitable for the proposed development.  Further, that land had been identified for centre uses either by way of zoning or development approvals for all but 14 months of the period since the commencement of the 2006 Scheme.[60]
  2. [61]
    His Honour then focused on the contentions advanced by the applicants, namely that whilst “out of centre” development may be justified in appropriate circumstances, this was not such a case having regard to the hierarchy of centres established by the 2006 Scheme.[61]
  3. [62]
    The learned primary judge accepted that the consideration of planning need “ought not be undertaken in a vacuum and ought always be cognisant of other town planning considerations and controls”.[62]
  4. [63]
    The learned primary judge also referred to a number of authorities which explain, in a way not challenged before this Court, the approach courts should take in acknowledging proper planning of the locating of centres, and the weight to be given to that aspect of a planning scheme.[63]  As to that, his Honour also observed that courts have afforded no or less weight to an aspect of a planning scheme if that planning is not “soundly based or logically conceived”.[64]
  5. [64]
    His Honour also referred to the evidence of Mr McCracken, as to the benefit of centre hierarchies.  His Honour then expressed his findings in respect of planning need in this way:[65]

[191] Centres are also focal points for investment in infrastructure and transport road systems.  It is in the community’s best interest to both establish and protect focal points for retail, commerce, community infrastructure, transport and social discourse.

[192] There has been significant growth in dwellings and population in the southern Thornlands area, and the growth is predicted to continue in the future in such areas as Kinross Road and Woodlands Drive.  The area has been recognised by the respondent as being suitable for residential development.”

Error in the ultimate finding on need

  1. [65]
    The applicants submitted that the central error of law was that the learned primary judge did not proceed to determine the proceedings on the basis that it is in the public interest to maintain the terms of the 2018 Scheme that had only recently been adopted by the Council, unless the contrary was demonstrated.
  2. [66]
    Where a proposed development conflicts with the relevant planning scheme because of the proposal to locate uses that are inconsistent uses at the development location, the question of “sufficient grounds” under s 326(1)(b) of SPA involves consideration of the need for the development at that location.  As was said in Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor:[66]

[169] ... Unless it was demonstrated that, in the relevant respects, the planning scheme, as it applied to this site, no longer represented what was required in the public interest, it could not be said that there were “grounds” (meaning matters of public interest) for permitting the development. 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. It had to be shown that, in the public interest, it was necessary to override the scheme as it applied to this land.”; and

“[171] … Counsel for the respondents were unable to demonstrate that the primary judge did consider whether there was a need for the development in a location where the planning scheme provided that it should not occur, as distinct from more generally in the area, or a part of the area, governed by the planning scheme.”

  1. [67]
    On the approach urged by the applicants, supported by King of Gifts, the question of need for this development had to be assessed on the basis that it was a need for the development in a location where the 2006 Scheme or 2018 Scheme provided that it should not occur.  However, in my respectful view, that is not where the consideration ends.
  2. [68]
    It is true to say, as the applicants submitted, that the learned primary judge’s recitation of legal principle did not refer to the test stated in King of Gifts.  His Honour could hardly have done so as King of Gifts was handed down after the decision below was delivered.  However, it remains the case that his Honour did not express that the assessment of need had to be done on the basis that there was a need for the development in a location where the planning scheme provided that it should not occur.
  3. [69]
    However, in my respectful view, his Honour was not in error in the approach taken.  That was because it was demonstrated, and held by his Honour to be fact, that the 2006 Scheme and 2018 Scheme was not the Council’s most recent statement of position about supermarket-based shopping centre on the subject site.  In other words, the planning scheme might have provided that such a development should not occur in that location but in that respect the scheme was not an expression of the public interest in the way referred to in King of Gifts.  In fact, this was a case falling within the exception referred to in paragraph [169] of King of Gifts.
  4. [70]
    There are findings by his Honour which reflect the fact that, specifically on the question of need, the planning scheme was inadequate or overtaken in respect of the proposed development at the subject site.  Thus, as to community need his Honour said his “analysis of the evidence does expose a change in circumstances that remains inadequately addressed under the 2006 Scheme nor the 2018 Scheme”.[67]  As to economic need, his Honour found that the subject development was necessary to cater for an unsatisfied economic demand, which was “demonstrative of a change in circumstances that is not adequately addressed under the 2006 Scheme nor the 2018 Scheme”.[68]  As to planning need, I have referred to the findings that the 2006 Scheme and 2018 Scheme had such deficiencies that they could no longer be regarded as an embodiment of what was in the public interest for the subject site.
  5. [71]
    The findings set out in paragraphs [24] to [31] above demonstrate that the 2006 Scheme and the 2018 Scheme are not the embodiment of what was in the public interest for this particular site because they are not regarded as the Council’s most recent statement of position about supermarket-based shopping centre on the subject site.  Consequently, it cannot be said to be in the public interest to maintain the 2018 Scheme as it applies to the subject site.
  6. [72]
    On the question of need, the learned trial judge’s ultimate finding, which is a finding of fact and which cannot be challenged in this Court, was that there was strong community, economic and planning need for a shopping centre and hotel in the planned area, which, while not urgent, demonstrated that the 2006 Scheme had been overtaken by events, was out of date, inadequately addressed the development of shopping centres in the area and did not adequately anticipate particular development in the area of the subject development.[69]

Consideration of sufficient grounds

  1. [73]
    The learned trial judge proceeded upon the basis that because of the nature and extent of the identified conflicts with the planning scheme, Nerinda “needs strong grounds to overcome the identified conflicts”.[70]  I respectfully agree with his Honour’s approach.
  2. [74]
    The learned trial judge referred to the Council’s support of the development approval, notwithstanding conflict with the 2006 Scheme, and the reasons for the Council’s support:  there is community, economic and planning need for that development; the 2006 Scheme fails to adequately promote development necessary to enable DEO 3(1)(f), and in particular, provision of the development of the type proposed to service the Kinross Road Structure Plan area, as well as the broader southern Thornlands area; and the development would not have negative impacts or detrimental effects on the existing and planned hierarchy of retail and neighbourhood centres.  His Honour also referred to the evidence, evidently accepted, that changes had occurred since the hearing of the first appeal, which favoured approval in the public interest.[71]
  3. [75]
    His Honour, accepting that evidence, found that “approval of the proposed development would not result in an overall adverse effect upon the extent and adequacy of facilities available to the local community”, but would develop in a way to the overall benefit of the community, without inflicting unacceptable impacts on other centres.[72]  On the question of community need, the learned trial judge found that there was demonstrated community need for the proposed shopping centre, and a greater community need for a hotel to be established.[73]  In making that finding, his Honour went into detail as to how the conclusions that he drew at the first hearing had been altered by the evidence called at the second hearing, and in particular that of Mr Norling.  That evidence outlined the particular reasons supporting a conclusion that there were sufficient grounds to approve the particular development notwithstanding the conflict with the planning scheme.[74]
  4. [76]
    His Honour again referred to the question of economic need, and his acceptance of the evidence of Mr McCracken and Mr Norling, and their methodology, in preference to the other experts called on that issue.  Based on that evidence his Honour found that “there is sufficient population in the Primary Trade Area, supplemented by passing trade, to assure financial viability of the centre, and the proposed tavern will also be financially viable”.[75]
  5. [77]
    His Honour also found, based on the experts’ evidence dealing with economic need, that the proposed development would not have an adverse effect on the extent and adequacy of the shopping facilities available in the community.[76]
  6. [78]
    Dealing with the question of planning need, his Honour made a number of findings that the proposed development was supported by strong planning need.  There is no necessity to set out those findings[77] as his Honour’s ultimate finding comprehends them all:[78]

“The co-respondent has shown relatively community, economic and planning need for the development commensurate with population growth in the area.  It will be viable, without inflicting adverse impacts on the viability of the larger existing and planned supermarket or centres.  I think that the development would fill an obvious gap in the Redland City’s existing and planned hierarchy and network of centres.  I am now persuaded that it [sic] larger size and function (more than a Neighbourhood Centre and more like [a] District Centre) will not improperly erode and prejudice the existing and planned smaller proximate centres, and the centres hierarchy, given its size, location, overlap and function.”

  1. [79]
    Given that the learned trial judge’s findings on the questions of community, economic and planning need are all findings of fact which cannot be challenged in this Court, and no error in principle has been identified in his Honour’s approach to those questions, the ultimate conclusion that there were sufficient grounds to overcome the conflict with the planning scheme, cannot be demonstrated to be in error.  In my respectful view, his Honour was right to characterise this as an exceptional case where the 2006 Scheme (and to the extent it matters, the 2018 Scheme) does not embody what is in the public interest.
  2. [80]
    The finding by the learned trial judge on that aspect of the case was expressed in these terms:[79]

[193] It seems to me that this is an exceptional case where there is tension with the application of the planning instruments and the public interest; such that the planning scheme is not, in the particular case, an embodiment of what was in the public interest, because:

  1. (a)
    Relevant circumstances have changed since the 2006 scheme was made and it is out of date according to its own terms;
  1. (b)
    The 2006 scheme inadequately addressed development of shopping centres in the area;
  1. (c)
    The 2006 scheme did not adequately anticipate specific or particular development in the Kinross Road Structure Plan area and surrounds; and
  1. (d)
    There is strong community, economic and planning need for a shopping centre and hotel in the planned area, which while not urgent, does demonstrate the factors above.”
  1. [81]
    Given that finding, the demonstrated strong need for this particular development, and the absence of any reason to conclude that it would inflict adverse impacts upon other large existing or planned centres, compels the view that his Honour was right to dismiss the appeals and approve the application for development.

Conclusion and orders

  1. [82]
    For the reasons set out above I propose the following orders:
  1. Grant leave to appeal.
  1. Dismiss the appeal.
  1. The applicants pay the first respondent’s costs of the application for leave to appeal.
  1. Grant leave to the second respondent to make submissions as to costs, and direct:
  1. (a)
    within 7 days of today, the second respondent file and serve written submissions as to costs, together with any related affidavit material;
  1. (b)
    within 7 days of service of the second respondent’s material, the applicants file and serve written submissions in response;
  1. (c)
    within 3 days of service of the applicants’ submissions, the second respondent file and serve any reply, not exceeding one A4 page;
  1. (d)
    the second respondent’s application as to costs be determined on the papers.
  1. [83]
    McMURDO JA:  I agree with the orders proposed by Morrison JA.  I gratefully adopt his Honour’s discussion of the course of this litigation, the evidence and the reasoning of the primary judge. 
  2. [84]
    An appeal to this Court from the Planning and Environment Court is limited to an error or mistake in law or jurisdictional error.[80]  The applicants contend that the primary judge erred in law in five ways.  Before going to those arguments, it is necessary to discuss s 329 of the Sustainable Planning Act 2009 (Qld) (“SPA”) (now repealed), which is at the heart of most of the applicants’ arguments.

Section 329

  1. [85]
    Section 329 relevantly provides:

“(1) The assessment manager’s decision must not conflict with a relevant instrument unless–

  1. (b)
    there are sufficient grounds to justify the decision, despite the conflict ….”
  1. [86]
    This is one of the “decision rules” which, by Chapter 6, Part 5, Division 3, Subdivision 3 of the SPA, apply to an application for a “preliminary approval”.
  2. [87]
    Under the SPA, a preliminary approval approves development, but it does not authorise assessable development to take place.[81]  It is a development permit which does that.[82]  A preliminary approval can vary the operation of a local planning instrument for a proposed development, so as to affect the assessment of an application for a development permit or permits.  In essence, a preliminary approval establishes the framework under which applications for development permits are to be assessed.[83]
  3. [88]
    This potential for a preliminary approval to vary the effect of a planning instrument appears from s 242 of the SPA, which relevantly provides:

“(1) This section applies if—

  1. (a)
    an applicant applies for a preliminary approval; and
  1. (b)
    part of the application states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land.
  1. (2)
    Subsection (3) applies to the extent the application is for—
  1. (a)
    development that is a material change of use; and
  1. (b)
    the part mentioned in subsection (1)(b).
  1. (3)
    If the preliminary approval approves the material change of use, the preliminary approval may, in addition to the things an approval may do under part 5, do either or both of the following for the material change of use or development relating to the material change of use—
  1. (a)
    state that the development is—
  1. (i)
    exempt development; or
  1. (ii)
    self-assessable development; or
  1. (iii)
    development requiring compliance assessment; or
  1. (iv)
    assessable development requiring code or impact assessment, or both code and impact assessment;
  1. (b)
    identify or include codes for the development.

…”

  1. [89]
    Under the SPA, the assessment of an application must occur according to Chapter  6, Part 5, Division 2, of which the following provisions are presently relevant.
  2. [90]
    Section 313(2) provides that an application requiring code assessment is to be assessed against, amongst other things:

“(e) any applicable codes in the following instruments–

  1. (i)
    a temporary local planning instrument;
  1. (ii)
    a preliminary approval to which section 242 applies;
  1. (iii)
    a planning scheme.”
  1. [91]
    Section 314(2)(e), (f) and (g) contain the same requirements for the impact assessment of an application.
  2. [92]
    Section 316 applies to the assessment of an application for preliminary approval under s 242.  By s 316(2), ss 313 and 314 apply to such an application where it requires code or impact assessment. 
  3. [93]
    However particular rules apply to the assessment of an application for a preliminary approval where it seeks to vary the effect of any applicable local planning instrument.  In such a case, s 316(4) provides:

“(4) The assessment manager must assess the part of the application having regard to—

  1. (a)
    the common material; and
  1. (b)
    the result of the assessment manager’s assessment of any parts of the application requiring code or impact assessment; and
  1. (c)
    all of the following to the extent they are relevant to the application—
  1. (i)
    the State planning regulatory provisions;
  1. (ii)
    the regional plan for a designated region, to the extent it is not identified in the planning scheme as being appropriately reflected in the planning scheme;
  1. (iii)
    State planning policies, to the extent the policies are not identified in—
  1. (a)
    any relevant regional plan as being appropriately reflected in the regional plan; or
  1. (b)
    the planning scheme as being appropriately reflected in the planning scheme; and

(d) the consistency of the proposed variations with aspects of the local planning instrument, other than the aspects sought to be varied; and

  1. (e)
    the effect the proposed variations would have on any right of a submitter for following applications, with particular regard to the amount and detail of supporting material for the current application available to any submitters; and
  1. (f)
    any referral agency’s response for the application.”

(Emphasis added.)

  1. [94]
    Sections 327 to 329 contain “decision rules” for an application under s 242.  Section 329(1) is as follows:

329 Other decision rules

  1. (1)
    The assessment manager’s decision must not conflict with a relevant instrument unless—
  1. (a)
    the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or
  1. (b)
    there are sufficient grounds to justify the decision, despite the conflict; or
  1. (c)
    the conflict arises because of a conflict between—
  1. (i)
    2 or more relevant instruments of the same type, and the decision best achieves the purposes of the instruments; or

Example of a conflict between relevant instruments—

a conflict between 2 State planning policies

  1. (ii)
    2 or more aspects of any 1 relevant instrument, and the decision best achieves the purposes of the instrument.

Example of a conflict between aspects of a relevant instrument—

a conflict between 2 codes

  1. (2)
    In this section—

relevant instrument means a matter or thing mentioned in section 316(4)(c) or (d), other than a State planning regulatory provision, the assessment manager must have regard to in assessing the part of the application.”

  1. [95]
    A decision to grant a preliminary approval, varying the effect of the scheme in a certain respect, will not cause a conflict which would engage s 329 in many, and perhaps most cases.  If there would be no conflict between one part of the scheme as varied and any other part of the scheme, s 329 would not be engaged.
  2. [96]
    In this case, save for the matter about to be mentioned, the variations to one part of the scheme[84] would result in a conflict with other parts of the scheme.  It was on the assumption that this was a conflict which engaged s 329 that the primary judge found it necessary to consider whether there were “sufficient grounds to justify the decision, despite the conflict”.
  3. [97]
    However, as the judge noted,[85] the planning scheme anticipated an inconsistency between these two parts of the scheme, and provided as follows:[86]

(4) The Structure Plan Area Overlay Code assessment criteria prevail over any other provisions within the Redlands Planning Scheme to the extent of any inconsistency.”

  1. [98]
    In my opinion, very arguably, this was not a case which engaged s 329.  Absent that clause of the scheme, there would be a clear conflict between the Structure Plan Area Overlay Code and other parts of the scheme.  But the effect of that clause is that those other parts of the scheme were not to apply if they were inconsistent with the Structure Plan Area Overlay.  The consequence of this preliminary approval would be that the planning scheme would be varied, so that the proposed development might be permitted according to, rather than inconsistently with, the scheme.
  2. [99]
    However, the question I have just discussed was not raised before the primary judge, or indeed in this Court.  This Court is asked to proceed upon the basis that s 329 was engaged, and that sufficient grounds to justify the decision had to be shown.  Accepting that to be so, care must be taken in the application of recent decisions of this Court which involve the operation, not of s 329, but of s 326 of the SPA, namely Bell v Brisbane City Council,[87] Gold Coast City Council v K & K (GC) Pty Ltd,[88] and Redland City Council v King of Gifts (Qld) and HTC Consulting & Anor.[89]  Those cases did not involve an application for preliminary approval.  In each of them the proposed development, if permitted, would have been undertaken in conflict with the terms of the planning scheme.
  3. [100]
    Sections 326(1) and 329(1) are in identical terms.  But they are rules for the exercise of different powers having different consequences, and a consideration of the sufficiency of grounds under s 326 will not be identical to a consideration of the sufficiency of grounds under s 329.
  4. [101]
    This difference must be understood in considering the question of whether there was a demonstrated need in this case.  In K & K, Sofronoff P, with the agreement of Fraser JA and Flanagan J, said:[90]

“That means that it can never be enough to satisfy a provision like s 326(1)(b) of the SPA for a party merely to prove that “there is a need” for a proposed development. The existence of a need for a particular kind of development is the starting point. If the placement of a development in a particular location would conflict with a Planning Scheme, then it must be accepted that it is the intent of the Scheme that, subject to there being a matter of public interest that overrides the public interest in maintaining a Scheme, the need should [be] met by a development on a site that does not give rise to a conflict. An applicant must identify reasons why the terms of the Planning Scheme should not prevail. Otherwise, there is a risk that, rather than applying s 326(1)(b), the decision maker will be doing no more than performing a general weighing of factors in order to determine whether, in the decision maker’s own view, it would or it would not be better to permit a development on the site to go ahead.”

(Emphasis added.)

In K & K, the President referred to the tension which can exist between the public interest to be satisfied by the proposed development and what he described as “the public interest in certainty that the terms of a Planning Scheme will be faithfully applied.”[91]  It will be apparent that in a case such as the present one, development could proceed without compromising that confidence in the consistent application of the terms of a planning scheme.  And that “public interest in certainty that the terms of a Planning Scheme will be faithfully applied” is not compromised by the scheme being susceptible to a variation in its effect by the issue of a preliminary approval.

The first ground of appeal

  1. [102]
    The first of the suggested errors of law is that his Honour failed to give any weight to the 2018 planning scheme, inconsistently with what is said to be the effect of s 495(2) of the SPA.
  2. [103]
    Section 495(2)(a) is as follows:

“(2) However, if the appellant is the applicant or a submitter for a development application, the court–

  1. (a)
    must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate …”
  1. [104]
    The relevant law “applying when the application was made” was the 2006 planning scheme.  By the time of this judgment, the 2018 scheme had come into force, and it was a “new law” to which “appropriate” weight could be given.
  2. [105]
    The suggested relevance of the 2018 scheme was that it was a very recent expression of what constituted, in the public interest, the appropriate development of this land.  However, his Honour found that this prima facie relevance was displaced by evidence, which he accepted, to the effect that the relevant provisions of the scheme were the result of drafting errors.  The evidence was that these errors were identified too late in the process of review and public consultation for the draft scheme to be amended before it became law.  It is a matter of some concern that this occurred, when the Council did not intend to act consistently with the law which it was putting in place.  Nevertheless, it was open to his Honour, on the evidence, to find that the 2018 scheme in relevant respects was a mistake, which should not be given any weight as an indication of what, in the public interest, was the appropriate development of this land.
  3. [106]
    Counsel for the applicants submitted that the 2018 scheme, as a statutory instrument having the force of law, could not be amended by proof of what the Council, or its officers, intended should be its effect.  But his Honour did not hold that the 2018 scheme lacked the force of law.  Rather, the prima facie relevance of the scheme, as evidence of what was in the public interest, was displaced.  That factual conclusion being open, this ground of appeal cannot be accepted.

The second ground

  1. [107]
    The second ground of appeal criticises the judge for departing from the terms of the 2006 planning scheme (and the 2018 scheme), and substituting what is said to have been “his own strategy” with respect to the distribution of various scales of shops and supermarkets.
  2. [108]
    Within that broad contention, there are essentially two arguments.
  3. [109]
    The first is a complaint of inconsistency between findings by the judge in this judgment, and findings in his previous judgment in this proceeding.  There was further evidence given in the subject hearing.  The applicants say that it did not warrant a departure from his Honour’s previous finding that there was only a “marginal community, economic and planning need for the development”.  In the subject judgment, as Morrison JA has explained, the judge made detailed findings to the effect that there was a planning, community and economic need for the proposal.
  4. [110]
    The applicants’ dissatisfaction with this change in the judge’s view of the facts is understandable.  However his Honour was not bound by his previous findings, and the present findings were made upon further evidence.  Ultimately, this argument complains about errors of fact, and thereby does not raise a competent ground of appeal.
  5. [111]
    The other argument, within this ground, is based upon a passage from the President’s judgment in K & K, to which I have referred earlier.[92]  The argument emphasises the President’s statement that “[t]he public interest that is to be satisfied by the proposed development must be greater than the public interest in certainty that the terms of a Planning Scheme will be faithfully applied.”  It also relies upon the statement in the following paragraph of that judgment that “it is necessary for the decision maker to go on to consider whether the identified public interest in satisfying the need overrides the conflict with the Planning Scheme, which it is generally in the public interest to avoid.”
  6. [112]
    As I have explained, care must be taken in the application of these passages to this case, because of two matters.  The first is that it is a case involving the application of s 329, and not s 326.  Secondly, it is a case where the proposed preliminary approval would vary a part of the planning scheme, which the scheme itself had expressed should prevail over other parts of the scheme which were inconsistent with it.
  7. [113]
    This second ground of appeal cannot be accepted.

The third ground

  1. [114]
    By this ground, the applicants say that the primary judge erred by failing to apply a number of decisions of this Court, which have emphasised the importance of the protection of intended hierarchies of retail shopping centres or precincts established by planning schemes.  Particular reference is made to Australian Capital Holdings Pty Ltd v Mackay City Council,[93] and to these passages:

“The importance of the hierarchy of retail shopping centres or precincts established by planning schemes and the necessity of not acting so as to prejudice the viability of the established hierarchy has been recognised in a number of planning decisions.[94]

[T]here were insufficient planning grounds to justify approval of the development application by the Judge below departing, as he did, from the well-established principle that a planning court ought not substitute its own preferred planning strategies in place of carefully developed schemes of the planning authority, particularly where the schemes have recently been reviewed.”[95]

  1. [115]
    The argument also cites the decision of this Court in Grosser v Council of the City of the Gold Coast[96] and the previous decision of this Court in the present matter.[97]
  2. [116]
    Those statements of principle are not in question.  What is in question is whether, in his Honour’s findings of fact, he misapplied or disregarded them.  His reasoning does not show that he did so, and nor does it appear that he did so from the findings themselves.
  3. [117]
    This ground cannot be accepted.

The fourth ground

  1. [118]
    It is argued that the judge erred in law by placing “decisive weight” on the facts that the Council had approved this development and conducted a positive case in support of it in the hearing.
  2. [119]
    It fairly appears that his Honour did regard the Council’s conduct in these respects as having some significance for whether the 2018 scheme expressed what would constitute the appropriate development of this land in the public interest.  However, that was not the only basis for his Honour’s factual finding on the question.  It is incorrect to describe the judge’s reasoning as placing “decisive weight” on the facts that the Council had approved the development and conducted a positive case in support of it.  Rather, his Honour cited Mackay Shopping Centre Pty Ltd v Mackay Regional Council,[98] where Robin QC DCJ said that whilst a Council’s support for a proposal is a fact which can be relevant, “what counts in the end is the persuasiveness of the council’s case”.
  3. [120]
    This fourth ground cannot be accepted.

The fifth ground

  1. [121]
    By this ground, the applicants criticise this passage from the judgment:

[148] Of course, these departures [from the planning scheme] do not provide some licence to ignore a planning scheme, but rather, each application must be considered on its merits and in the public interest. It is also not appropriate that this court conduct a meritorious review of past decisions, but there is no suggestion that these previous decisions were other than appropriate based on the merits of the case and in the public interest. They are practical indicia of scheme deficiency; such that the instrument was not, in the particular case, an embodiment of what was in the public interest.”

  1. [122]
    His Honour was there referring to instances where the Council had departed from relevant provisions of the 2006 scheme, when approving developments of other sites or other proposed developments of the subject land.  It is submitted that his Honour was wrong to regard these approvals as indicating that the planning scheme had become “deficient”.
  2. [123]
    Respectfully, I would not agree with his Honour that the Council’s expression of its views, by approving other development proposals, itself indicated a deficiency in the planning scheme.  However, the actual development of other sites, which had been allowed to be undertaken inconsistently with relevant provisions of the planning scheme, could be relevant in showing a change in circumstances from the time that the 2006 scheme commenced.
  3. [124]
    As with the fourth ground of appeal, his Honour’s reasoning in this respect was not critical to his conclusion that the planning schemes no longer represented the public interest in the development of this land.  Morrison JA has described the extensive reasoning of the judge as to why that was so.
  4. [125]
    This fifth ground cannot be accepted.

Conclusion

  1. [126]
    For these reasons, none of the proposed challenges to the judgment can be accepted.  The orders proposed by Morrison JA should be made.
  2. [127]
    RYAN J:  I agree with the orders proposed by Morrison JA for the reasons given by his Honour and for the reasons given by McMurdo JA.

Footnotes

[1]Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2017] QPEC 53 (“first hearing”).

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

[3]Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2019] QPEC 43.  It is this decision to which I will refer as the “Reasons below”.

[4]  To which I will refer as “SPA”.

[5]  To which I shall refer as “the 2006 Scheme”.

[6]  Reasons below [7].

[7]  The land the subject of the approval in in the Kinross Road Structure Plan Area.  The provisions of the Kinross Road Structure Plan Overlay Code prevail over other provisions in the 2006 Scheme to the extent of any inconsistency: 2006 Scheme, part 5, div 15, s 5.15.2(4).

[8]  To which I shall refer as the “2018 Scheme”.

[9]  Reasons below [74]-[118].

[10]  Reasons below [91]; internal references omitted, emphasis in original.

[11]  Reasons below [95]; internal references omitted, emphasis in original.

[12]  Reasons below [96]-[98].

[13]  Reasons below [104]-[105].

[14]  Reasons below [113]-[114].

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

[16]  Reasons below [68]-[71]; internal citations omitted, emphasis in original.

[17]  Emphasis in original.

[18]  [2018] QCA 84.

[19]  With whom Sofronoff P and Philippides JA concurred.

[20]Bell at [66]-[70]; internal footnotes omitted; emphasis in original.

[21]  See s 63(1) of the Planning and Environment Court Act 2016 (Qld).

[22]  [2019] QCA 132 at [36].

[23]K & K at [36]-[37]; internal footnotes omitted.

[24]  With whom Fraser JA and Flanagan J concurred.

[25]  By reference to the guidelines issued on 11 December 2009 under s 759 of the Sustainable Planning Act 2009.

[26]K & K at [39]; emphasis in original.

[27]Bell at [68].

[28]  The applicant’s written submissions did not refer to either section.  The Council’s written submissions referred to s 326(1)(b) in paragraphs 10 and 11 (AB 159) and s 329(1)(b) as to that part of the application which sought to vary the planning instrument (paragraphs 13-14, AB 160-161), but without suggesting any distinction.  Nerinda’s written submissions cited Gillion Pty Ltd v Scenic Rim Regional Council [2018] QPEC 47 at [39], for the applicable test, namely the test set out at paragraph [57] of the Reasons below: paragraphs 32-33, AB 187-188.  Nerinda also urged the adoption of Bell v Brisbane City Council [2018] QCA 84: paragraph 35, AB 189.

[29]  The applicant’s outline did not refer to s 329, but contended leave to appeal should be granted as the proper construction of s 326 was involved: paragraph 5(c).  The Council’s outline submitted that the primary judge had applied both s 326(1)(b) and 329(1)(b) but did not suggest the test was any different: paragraphs 12 and 31.  Nerinda’s outline also submitted that the primary judge had applied both s 326(1)(b) and s 329(1)(b) but did not suggest the test was any different: paragraph 25.

[30]  [2018] QPEC 47 at [39]; Reasons below [57]; internal citations omitted.

[31]  Transcript T1-13 line 32.

[32]  Reasons below [119].

[33]  [2015] QPELR 230.

[34]  [2013] QPELR 661 at [44].

[35]  Quoted in the Reasons below [122].

[36]  Reasons below [133].

[37]  Reasons below [128].

[38]  Reasons below [130].

[39]  Reasons below [131].

[40]  Reasons below [132].

[41]  Reasons below [139]-[143].

[42]  Reasons below [147].

[43]  Reasons below [148].

[44]  Reasons below [149].

[45]  Referring to Skateway Pty Ltd v Brisbane City Council [1980] QPLR 245, 249-250; Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126, 131; Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515, 517; Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2000] QPELR 193, [21].

[46]  Reasons below [150].

[47]  [2003] QPELR 447, 459.

[48]  [2008] QPELR 480, 485.

[49]  [2006] QPELR 359, [43].

[50]  [2013] QPEC 38, [108].

[51]  Reasons below [156].

[52]  Reasons below [159].

[53]  Reasons below [164].

[54]  Reasons below [166].

[55]  Referring to Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435, [53].

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

[57]  Reasons below [178]; emphasis in original.

[58]  [1995] QPLR 290, 313.

[59]  Reasons below [180].

[60]  Reasons below [181].

[61]  Reasons below [182].

[62]  Reasons below [183].

[63]Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143; Luke v Maroochy Shire Council [2003] QPELR 447 at [48]; Wilispap Pty Ltd v Mulgrave Shire Council [1992] QPELR 51 at 52-53; Overton v Redcliffe City Council [2000] QPELR 250 at 253; Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council [2003] QPELR 385 at 389; Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157.

[64]  Citing Sellars Holdings Pty Ltd v Pine Rivers Shire Council [1988] QPELR 12 at 17; SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36 at 50 line (a).

[65]  Reasons below [191]-[192].

[66]  [2020] QCA 41 at [169], [171]; emphasis added.

[67]  Reasons below [164].

[68]  Reasons below [178].

[69]  Reasons below [193].

[70]  Reasons below [200].

[71]  Reasons below [201]-[202].

[72]  Reasons below [203].

[73]  Reasons below [207].

[74]  The evidence of Mr Norling is set out in paragraph [205] of the Reasons below, and need not be rehearsed further.

[75]  Reasons below [209].

[76]  Reasons below [213].

[77]  In reasons below [226]-[230].

[78]  Reasons below [231].

[79]  Reasons below [193]; emphasis in original.

[80]Planning and Environment Court Act 2016 (Qld), s 63(1).

[81]  SPA, s 241(1)(a).

[82]  SPA, s 243.

[83]Gold Coast City Council v Sunland Group Limited & Anor [2020] QCA 89 [16], [17].

[84]  That part described as the Kinross Road Structure Plan Overlay.

[85]  At [115] of the Judgment.

[86]  Part 5, Division 15, s 5.15.2(4) of the 2006 scheme.

[87]  [2018] QCA 84.

[88]  [2020] QPELR 631; [2019] QCA 132.

[89]  [2020] QCA 41.

[90]  [2019] QCA 132 [48].

[91]  [2019] QCA 132 [67].

[92]  [2019] QCA 132 [67].

[93]  [2008] QPELR 608; [2008] QCA 157.

[94]  [2008] QCA 157 [58] (Muir JA).

[95]  [2008] QCA 157 [73] (White J).

[96]  (2001) 117 LGERA 153 [38]; [2001] QCA 423.

[97]Nerinda Pty Ltd v Redlands City Council & Ors [2018] QCA 146 [28].

[98]  [2013] QPELR 661 [44]; [2013] QPEC 29.

Close

Editorial Notes

  • Published Case Name:

    Lipoma Pty Ltd & Anor v Redland City Council & Anor

  • Shortened Case Name:

    Lipoma Pty Ltd v Redland City Council

  • MNC:

    [2020] QCA 180

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Ryan J

  • Date:

    28 Aug 2020

  • White Star Case:

    Yes

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.