Stockland Development Pty Ltd v Townsville City Council
[2013] QCA 210
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Stockland Development Pty Ltd v Townsville City Council[2013] QCA 210
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Stockland Development Pty Ltd v Townsville City Council[2013] QCA 210
Stockland Development Pty Ltd v Townsville City Council[2013] QCA 210
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Application for Leave Sustainable Planning Act |
ORIGINATING COURT: | |
DELIVERED ON: | 2 August 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 July 2013 |
JUDGES: | Chief Justice and Muir JA and Douglas J |
ORDERS: |
|
CATCHWORDS: | ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – GENERAL MATTERS – the second respondent developer applied to the first respondent council for approval of proposed extensions to its shopping centre and other building works, which was granted – the extension included a new supermarket, which was to be constructed on a lot falling within the Commercial 3 (City Centre Support) sub-area (C3) of Thuringowa City Centre – the Character Statement for C3 describes it as being intended for development with an integrated commercial and residential focus – the proposed development was solely commercial and did not have a residential component – the applicant submitted that the development approval conflicted with the statements of intention expressed in the Character Statements for the sub-area, which was rejected by the primary Judge – whether the Judge erred in law by failing to conclude that the proposed development conflicted with the Planning Scheme – whether each individual development proposed for C3 was required to include both residential and commercial components – whether the Judge’s determination bore a factual character APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING AN ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – the applicant submitted that the primary Judge failed to give sufficiently explanatory and comprehensive reasons for judgment – whether the primary Judge failed to give adequate reasons for judgment ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – GENERAL MATTERS – notwithstanding his conclusion that there was no conflict with the Planning Scheme, the primary Judge also concluded that sufficient grounds would have existed to warrant approval under s 326 of the Sustainable Planning Act 2009 (Qld) – the applicant submitted that this was inconsistent with the primary Judge’s conclusion that there was no conflict with the planning scheme – whether the primary Judge’s treatment of the “sufficient grounds” issue was factual in character Sustainable Planning Act 2009 (Qld), s 7, s 326 Atkinson v Ipswich City Council [2006] QPELR 550; [2006] QPEC 37, cited |
COUNSEL: | D R Gore QC, with B D Job, for the applicant |
SOLICITORS: | Clayton Utz for the applicant |
[1] CHIEF JUSTICE: Introduction In February 2012, Townsville City Council approved a development application made by the second respondent Dexus for a material change of use – extensions to “The Willows” shopping centre at Thuringowa, and preliminary approval for building works on land at 13 Hervey Range Road. The present applicant, Stockland, appealed against the Council’s decision, to the Planning and Environment Court. That court dismissed the appeal. The applicant seeks leave to appeal on the ground of error of law.
Scheme provisions
[2] The development is subject to the City of Thuringowa Planning Scheme. The largest element of the proposed extension, a new supermarket, will increase by 532 square metres, to 4,580 square metres, the space available for supermarket operations by Woolworths or another operator. The new structure is to be constructed on lot 2 (on registered plan 865794), fronting Carthew Street, on land which is presently a car park. It will be connected to one of the malls, incorporating new specialty stores.
[3] Lot 2 falls within the “Commercial 3 (City Centre Support)” sub-area of the Thuringowa City Centre, which is a sub-regional centre. The “Character Statement” says that the Commercial 3 sub-area is “intended for development that has an integrated commercial and residential focus”, with heights of buildings “predominantly 12 metres or less”. Much has turned on the differences between that description, and that of the complementary “Commercial 1 (City Centre Core)” sub-area. The Character Statement says that is “intended for development that has a dominant commercial focus”. The height limitation applying to that sub-area is “predominantly 20 metres or less”.
[4] That part of the Character Statement concerning the sub-regional centres provides in full:
“(iv)The identified Sub-Regional Centres are Mt Low-Deeragun and the Thuringowa City Centre.
The establishment of a Sub-Regional Centre in the Mt Low-Deeragun area is intended beyond the life of this Planning Scheme. This centre will start as a Neighbourhood Centre, progress towards a District Centre and ultimately develop into a Sub-Regional Centre.
The Thuringowa City Centre is intended as the primary focus for the City catering for the needs of locals and visitors. This centre is completely integrated, directly linked to Riverway and characterised by five sub-areas that complement each other – the Commercial 1 sub-area; the Commercial 2 sub-area; the Commercial 3 sub-area; the Commercial 4 sub-area; and the Commercial 5 sub-area. These sub-areas are shown on map 3.3A – Thuringowa City Centre and –
A.the Commercial 1 (City Centre Core) sub-area is intended for development that has a dominant commercial focus. This sub-area is expected to expand up to 55,000m2 GLA. The height of buildings and other structures is predominantly 20 metres or less;
B.the Commercial 2 (Cannon Park) sub-area is intended for development that has a dominant recreational and entertainment focus. All development is designed and located to avoid detrimental impacts on Residential Development. The height of building and other structures is predominantly 16 metres or less;
C.the Commercial 3 (City Centre Support) sub-area is intended for development that has an integrated commercial and residential focus. The height of buildings and other structures is predominantly 12 metres or less;
D.the Commercial 4 (Kirwan Traders Area) sub-area is intended for development that is a mix of Commercial Development and Light and Service Industry. Development contains a high level of visual amenity by incorporating design elements recognising the sub-area’s ‘gateway’ location. The height of buildings or other structures is predominantly 10 metres or less; and
E.the Commercial 5 (City Centre Frame) sub-area is intended for development that has an integrated commercial and residential focus. Development in this sub-area is set back from the street, incorporates street furniture and landscaping. The height of buildings or other structures is predominantly 10 metres or less.”
The primary Judge’s principal conclusions
[5] The intended development does not include any residential component: it is solely commercial. Referring to the Character Statement’s description of the Commercial 3 sub-area, the primary Judge held that the reference to “integrated commercial and residential focus” did not require that an approval application for that sub-area must necessarily include both commercial and residential components. His Honour pointed out that this development would not preclude further residential development on Dexus land within the Commercial 3 sub-area. In relation to the conjunction of the two complementary sub-areas, Commercial 1 and Commercial 3, the Judge rejected Stockland’s contention that Commercial 3 was “subordinate” to Commercial 1.
[6] Having approached the planning scheme in that way, the learned Judge concluded that the development approval did not conflict with the statements of intention expressed in the Character Statement in relation to sub-areas Commercial 1 and Commercial 3.
[7] He then dealt with Stockland’s further contention, that if there was conflict, there were no sufficient grounds to justify the approval despite the conflict. He rejected that contention.
“Support”: His Honour’s approach
[8] It is convenient to mention here a submission of Counsel for Dexus that His Honour concluded that the Commercial 3 description, “(City Centre Support)”, “refers to location rather than function, or role”. I do not consider His Honour clearly held to that effect. He said this:
“[13]Not too much should be made of the bracketed description (City Centre Support). The corresponding descriptions for C2 (Cannon Park), C4 (Kirwan Traders Area) and C5 (City Centre Frame) tell us nothing useful about what development is intended. ‘Frame’ is encountered in many planning schemes to delineate locations surrounding an important central area. The term is not particularly helpful or enlightening here; it was suggested ‘City Centre Entry’ would be better. Included is essentially the northern side of Ross River Road and, for the relevant stretch, both sides of Thuringowa Road, excluding very large parcels turned to other uses, such as the school and the former Thuringowa City Council premises.”
[9] But then he went on to deal with the meaning of the word “support”, and concluded that in fact the new development in Commercial 3 would support the City Centre Core sub-area. He said:
“[13]… The characters/intents indicated for the sub-areas are replete with expressions whose meaning is elusive or vague, such as support, integrated, focus and mix, also development. I have found dictionary definitions in the Oxford and Macquarie dictionaries generally less helpful than those that can be found in Webster. Support, as a verb, it tells us, may mean to uphold by aid, countenance or adherence; to provide means, force or strength that is secondary to; to bid in bridge so as to show support for (one’s partner or his suit); to provide a basis for the existence or subsistence of. Synonyms offered include bolster and buttress. One of the meanings of the noun is ‘a supporting means, agency, medium, proof or reserve’. The notion of a supporting actor is well known and enshrined in the Academy Awards (Oscars) of ‘leading’ and ‘supporting’. The view might be held that, these days, there is often not much to choose between the categories. The Oxford gives an example of a support group ‘of musicians taking a subordinate part in a concert’, defining support as:
‘f.The provision or availability of services that enable something to fulfil its function or help to keep it operational.
…
b.The action of contributing to the success of maintaining the value of something.’
[14]I accept that in planning law, a location that is expressly designated to provide ‘support’ to some other area or for some desired outcome ought not to be allowed to supplant or overtake it: Atkinson v Ipswich City Council [2006] QPELR 550. In my opinion, Dexus’ proposal comes nowhere near doing that. C3 would emerge with the larger supermarket (more or less balanced by the relatively modest Coles one in C1, which may well be suitable for expansion) and the existing Big W DDS, which may be thought balanced by the smaller Target in C1 and some of the specialities. Everything else except for a limited amount of parking, is in C1. In my opinion it is a perfectly natural use of the notion of support to admit the new supermarket, although coming as it does with the existing Big W already in C3. It should not be forgotten that the proposal does include expansion of specialities and introduction of mini-majors, within C1, whose offering is thus strengthened.”
[10] Acknowledging that this development will extend in that way the development in Commercial 1, His Honour’s conclusion that it will “support” the City Centre Core was plainly open.
Ground 1: Whether the development would conflict with the Planning Scheme
[11] The first reason advanced as justifying a grant of leave to appeal is expressed in ground one of the application as follows:
“Ground 1The primary judge erred in law in his interpretation of the 2003 City of Thuringowa Planning Scheme (TPS) in failing to conclude that the development approval:
(a)conflicts with the intention for the Commercial 3 (City Centre Support) Sub-Area that development have an integrated commercial and residential focus;
(b)conflicts with the intention of the TPS that development of the kind proposed be undertaken in the Commercial 1 (City Centre Core) Sub-Area, rather than in the Commercial 3 (City Centre Support) Sub-Area.”
An integrated commercial and residential focus?
[12] Stockland’s contention is that the proposed development is “consistent only with the nature and scale of commercial development intended for C1 and was not of a type intended for C3”; “the outcome of the Dexus approval did not represent ‘development that has an integrated commercial and residential focus’, or development of a ‘support’ nature, but rather was indistinguishable from ‘development that has a dominant commercial focus’, as intended for C1”.
[13] In fact, after implementation of this proposed development, the floor space in Commercial 1 would increase to approximately 45,000 square metres, with the supermarket components in Commercial 3 occupying approximately 13,000 square metres, hardly a challenge to any commercial dominance for Commercial 1, if that had been intended by the author of the planning scheme.
[14] But this application invites attention to the correctness in law of His Honour’s interpretation of the Character Statement’s description of the intent behind Commercial 1 and Commercial 3 and its application to the instant approved development.
[15] The Character Statement expresses the intent behind the development of the respective sub-areas, which are to “complement each other”. As has been seen, Commercial 1 is intended for development with a dominant (though I would add, not necessarily exclusive) commercial focus. Commercial 3 is intended for development with an integrated commercial and residential focus.
[16] His Honour interpreted the Character Statement so that for Commercial 1, not every individual development need be commercial, and for Commercial 3, not every individual development must include both a commercial and a residential component.
[17] I reproduce para 26 of His Honour’s reasons. (P 21 and P 25 appear in the “Centres Planning Area Code”.)
“[26]As suggested already, ‘development’ is used with various shades of meaning in the planning scheme in provisions set out in these reasons. One is to pick up the existing development that had occurred by the time when the planning scheme commenced. A second is to describe in a collective way the development that might occur next, that is once the planning scheme came into effect; another sense aggregates this with the ‘existing development’. Yet another may be to describe the development proposed by a particular development application, which is the sense most coinciding with ‘development’ in the Integrated Planning Act 1997 (IPA) s 1.3.2 and now in the Sustainable Planning Act 2009 (SPA) s 7. I consider it untenable to apply this last interpretation in a way that would require every development proposal in C3 to include both residential and commercial components. The latter are, it seems, less regulated; at the most strict, development in the commercial category must contribute to an integrated commercial and residential focus in its locality. Under P21 ‘Residential Development’ in the sub-area must ‘integrate[…] with Commercial Development’, the capitalised expressions being defined terms; in my opinion this creates a requirement of a proposal for residential development: absent integration internally (which may well be the expectation), the proposal must surely integrate with nearby existing or anticipated Commercial Development. For purposes of P25, the ‘focus’ in my opinion is assessed by looking at the pattern of development in the relevant locality, not limited to the developer’s site alone. P25 is satisfied if commercial uses (not necessarily restricted to Commercial Development as defined) and the residential ones are both represented.”
[18] His Honour concluded, in my view correctly, that this approved development, though confined to commercial development, does not conflict with the Character Statement, because the “desired” “integrated commercial and residential focus” may be achieved through the relationship between that development and other existing or future development in the sub-area.
[19] It seems unlikely, furthermore, that the drafters contemplated that each individual development must include, in itself, both components; whereas a commercial development might relate well to other residential development to produce an integrated overall focus.
[20] Counsel for Dexus accepted before us that the word ‘development’ as used in the Character Statement bears it statutory definition, namely, the development provided for in a development application. That this development is commercial does not however exclude its having an “integrated commercial and residential focus” because of its existing and prospective relationship with other development in the Commercial 3 sub-area.
[21] His Honour provided considerable discussion of the meaning of words including ‘support’, ‘integrated’ and ‘focus’, which are ordinary English words, and he did not misdirect himself as to their meaning.
[22] That led to his consideration of the question whether this approved development should be regarded as having an “integrated commercial and residential focus”. He answered that essentially factual issue in the affirmative.
[23] The tenor of His Honour’s approach may be gathered from these extracts from his reasons:
“[21]Confirmation that it could not have been intended that every development proposal in C3 must comprise both commercial and residential components comes from considering corresponding performance criteria in other sub-areas, particularly C4, Kirwan Traders and C5, City Centre Frame, where development is to be a “mix” of no less than three defined uses (“development terms”). The land parcels are modest in size, traditional residential or smaller, so that without amalgamations (which the planning scheme does not call for), a “mix” would rarely be feasible in practice. It was accepted, by Mr Gore at least, that there was no distinction able to be made between a mix of uses and an integrated focus involving them. My view is that a development for any one of the listed uses alone is acceptable, provided that in its particular situation it does not preclude developments for the other(s) listed, indeed provided there is compatibility.
[22]The acceptance of residential uses in C3 and also in C5 may be by way of acknowledgment that they are already there and should be permitted to persist and, if there is demand, expand. Commercial and residential developments/uses are expected to be compatible and operate harmoniously together – which I take to be the point of references to integration.
…
[27]“Focus” has been defined by Webster as a centre of activity or attraction or one drawing the greatest attention and interest or “a point of concentration”. The Macquarie says “a central point, as of attraction, attention or activity”. Arguably it is odd to have a double or combined focus, but that may be what is desired. It is attained if both kinds of development are in evidence, as they are in Carthew Street, to the exclusion of others. I can see no reason why the two sides of the street should be required to be considered separately, anymore than the eastern and western ends should. My impression is that the curve of Carthew Street (which is convex towards the north) serves to focus the attention of those traversing it upon the northern side, which overwhelmingly features detached residences, most of two storeys set well back from the street and, typically, elevated above it, given the (natural or artificial) ground level where buildings are.
[28]For the moment, if one counts them up, the number of separate residential uses or structures (in C3) would exceed that of commercial ones, with or without the proposal. It is unnecessary at this time to say whether there is any point at which the “integrated focus” disappears, so that some owners may find their sites rendered sterile if unwilling to propound a development proposal in the “endangered” category – alternatively wait in hope that another developer will step in and re-establish the threatened species. Such reflections suggest to me that the planning scheme could not have been intended to have effects of that kind.
…
[31]The Thuringowa Planning Scheme begins with a declaration that it has been prepared in accordance with IPA. Underlying all of this and pertinent to understanding the Planning Scheme in my view is a concept of integration as avoidance of separation of matters, processes, uses or things that can advantageously be brought or kept together. I do not think that it requires anything like some homogenous combination or amalgamation of them. My view is that the intended character of C3 “can be achieved over time and at a broad level”, to seize on a statement in the joint report…”
[24] Earlier in his reasons, the Judge had referred, with apparent agreement, to the view of some of the expert witnesses that:
“[16]… the Commercial 3 intention for ‘development that has an integrated commercial and residential focus’ along Carthew Street can be achieved over time and at broad scale, and does not require that each site on Carthew Street be developed as a mix of commercial and residential development. Rather, they consider this integrated focus would be achieved in the future if residential properties along the northern side of the street…”
[25] I consider that approach to the application of the scheme to this application involved a correct interpretation of the language of the scheme, and a factual conclusion as to the absence of conflict which was reasonably open.
[26] It is a mistake to think the construction of town planning schemes can or should be attended by the precision and certainty which should characterize the construction of contracts and statutes. That is because good town planning, basic principles aside, depends on a large element of fluidity and flexibility.
[27] Unsurprisingly, these applications are not infrequently veneered attempts at presenting ultimately factual determinations as involving material error of law.
[28] The legislation limiting appeals to this Court rightly denies this Court the power to gain-say the Planning and Environment Court’s determination of factual issues, a determination which is informed by both experience and established expertise.
[29] The instant application involved an inappropriately rigid approach to the planning scheme, and sought to minimize the significance of the ultimately factual character of the Judge’s determination, a matter to which I now turn.
The character of the Judge’s determination
[30] The case as developed before this court was somewhat reminiscent of aspects of the judgment in Redland City Council v Aldi Stores and Others [2009] QCA 346:
“[13]Accordingly, that was not a purely factual exercise, because it involved some construction of the Scheme but neither solely nor extensively so. The exercise was of an evaluative character. I am not in that context satisfied that the applicant has raised any substantial ground for considering that His Honour’s conclusion was not a conclusion open to him. In other words, I am not satisfied that the Judge was by law constrained to come to a different conclusion. That being so, the applicant has not demonstrated any substantially arguable error of law in respect of the primary plank in the Judge’s approach. Compare Harburg Investments Pty Ltd v Brisbane City Council [2000] QCA 398 and Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council [2009] QCA 237 paras 21, 31.
[14]Determining the ordinary meaning of a word in everyday use (eg ‘centre’, ‘district centre’) is not a matter of law (H A Bachrach Pty Ltd v Caboolture Shire Council [1993] QPLR 33, 38; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 335, 342-3; Harrow Trust v Adelaide Hebrew Congregation Inc [2002] SASC 308 paras 19, 20). This Scheme does not identify the centre. The Judge referred to provisions of the Scheme, and it is true that any misconstruction of the Scheme would have involved error of law (Weightmann v Gold Coast City Council (2002) 121 LGERA 161, 175). But reference to those provisions did not, and could not, of itself conclude the issue. Hence my conclusion that the process was in the end evaluative, and His Honour’s conclusion being reasonably open, it must be upheld (cf. Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 451; Regional Land Development Corporation (No 1) Pty Ltd v Banana Shire Council [2009] QCA 140 para 12 ff).”
[31] The process followed by this Judge bore both a factual and an evaluative character. His interpretation of the language of the plan being unexceptionable, his conclusion as to the absence of conflict would not therefore disclose error of law unless simply not reasonably open, and that was not the case.
The issue of Code Assessment
[32] The provision in relation to Code Assessment, on which Counsel for Stockland relied, did not exclude His Honour’s approach.
[33] That a code assessable application for further development in Commercial 1 may be made in the future, does not bear upon the impact assessable application in relation to the Commercial 3 development. His Honour referred to the correct statutory position in that regard in para 42 of his reasons (although he referred to the wrong section and Act); and rightly observed that “where a developer pursues ‘properly made’ applications, it is wrong for the court to seek to create opportunities that would not otherwise arise for community involvement in the decision making process by associating the proposal with another the developer might pursue in respect of which there would be entitlement to make submissions”.
Ground 1: conclusion
[34] This court should not grant leave to appeal because the primary judgment is not attended by error of law. Stockland’s emphasis on the scale of the development rests, then, on factual not legal considerations.
Ground 2: adequacy of the reasons for judgment
[35] Other submissions advanced by Counsel for Stockland, critical of His Honour’s reasons for judgment, do not in some respects fairly represent or respect the purport of those reasons. There is for example a bold claim that in para 44 of his reasons, the Judge is to be seen as accepting Stockland’s contention as to conflict with the planning intent. A fair reading of the reasons indicates that His Honour was plainly dealing with the matters raised in the lettered sub-paras of para 43 of Stockland’s submission, not its introductory words.
[36] Counsel for Stockland went on to submit that the learned Judge erred in law by failing to provide sufficiently explanatory and comprehensive reasons for judgment. Counsel submitted Stockland was left not knowing why its appeal had failed. This ground is expressed as follows:
“Ground 2The primary judge erred in law in failing to give adequate reasons:
(a)for concluding that there was no conflict with the TPS, despite:
(i)upholding (in paragraph [44] of his reasons) contentions by the Applicant that there was conflict;
(ii)concluding (in paragraph [46]) that the approval represented an extension of the Commercial 1 (City Centre Core) Sub-Area into the Commercial 3 (City Centre Support) Sub-Area;
(iii)apparently accepting (in paragraph [37]) that the proposed new supermarket would be on a site ‘where the planning scheme does not want it to be’;
(b)for concluding that there were sufficient grounds to warrant approval, despite:
(i)upholding the Applicant’s contention that need for the proposal was not available as a sufficient ground (in paragraph [37]);
(ii)his statement that it was not necessary to resolve the sufficient grounds issue by deciding whether the community need could be held to be satisfied (in paragraph [38]);
(iii)upholding the Applicant’s contention that it was a countervailing consideration that the approval would have the effect of denying community involvement in the development of a further 10,000m2 of retail floor space in the Commercial 1 (City Centre Core) Sub-Area (in paragraphs [39]-[42]).”
[37] His Honour apparently went to considerable lengths to deal carefully with all of the raised and relevant considerations.
[38] As to (a)(i) of ground 2 above, His Honour did not express a view there was conflict. As to (a)(ii) and (iii), the applicant elevates into pivots, mere staging posts in His Honour’s analysis, and seizing on particular isolated words of description is overall unhelpful.
[39] In the oral submissions, Counsel submitted His Honour did not adequately justify his conclusion as to absence of conflict with his acceptance of some of the expert views; that, for example, Commercial 3 is an “area in transition”, that “the proposed development will…act as a logical expansion of the Commercial 1 sub-area”, and that “Carthew Street forms a more logical boundary between the Commercial 1 and Commercial 3 sub-areas”.
[40] As to the last point, the Judge plainly worked on the basis of the scheme boundaries. See para 23 of his reasons:
“Rather than adopt the street as a planning boundary, commercial to the south, residential to the north, the drafters opted to set boundaries at the conveniently neat continuum of the rear alignments of the parcels with street frontages, rather than follow a philosophy of having different planning areas on different sides of the street. Thus the C3 area came about.”
[41] As to the other points, His Honour also adopted this convenient synthesis provided by the experts:
“The proposed development provides a logical transition from commercial use on the south of Carthew Street to residential/commercial use on the north of Carthew Street. Together, these uses achieve the integrated commercial and residential focus.”
[42] None of these criticisms exposes inadequacy in His Honour’s reasons for judgment.
[43] Under the heading “Some curious features of the RJ” (reasons for judgment), Counsel refer in their written outline to the aspect raised in paragraph [28] above (whether His Honour really did appear to accept Stockland’s contention as to conflict), and also aspects bearing on His Honour’s treatment of the “sufficient grounds” issue, to which I now turn (see para (b) of this ground above).
Ground 3: “sufficient grounds” notwithstanding (assumed) conflict
[44] This ground is expressed as follows:
“Ground 3The primary judge erred in law in concluding (in paragraph [46]) that sufficient grounds were shown to warrant approval under section 326 of the Sustainable Planning Act 2009, because:
(a)having found that there was no conflict with the TPS, it was impossible for the primary judge to approach the issue correctly, as the ‘sufficiency’ of a ground is related to the nature and extent of the conflict which it is designed to overcome;
(b)there was no evidence to support the finding of the primary judge (in paragraph [46] that ‘The Sub-Regional Centre of Thuringowa City Centre is ideally located to serve a large and growing population, probably the principal one in Greater Townsville in both respects’;
(c)the assertion (in paragraph [46]) that there is ‘no planning instrument in effect…that would require it to be held back’:
(i)is consistent only with the assumption that there is no conflict with the TPS;
(ii)was accordingly an irrelevant consideration to the issues of sufficient grounds;
(d)the primary judge did not deal with the countervailing consideration (which, in paragraph [42], he had upheld) that the approval would preclude future community involvement in a 10,000m2 expansion in the Commercial 1 (City Centre Core) Sub-Area;
(e)the primary judge did not reconcile his finding of sufficient grounds with his acceptance (in paragraph [37]) of the Applicant’s proposition that need was not available as a sufficient ground.”
[45] Counsel for Stockland primarily contended that it was inconsistent with his primary conclusion, as to the absence of conflict, for His Honour then to deal nevertheless with the “sufficient grounds” issue. The Judge was in truth responding to Stockland’s contention, and he was right to address that prospective subsequent issue, and he did so assuming the conflict for which Stockland contended. He said (para 46): “If the conflict asserted had existed, being the absence of a residential component from the proposal…” Although he did not mention the ‘scale’ of the development, a point raised by Counsel by way of criticism, his following analysis must be read as taking account of all aspects of the proposed development.
[46] Such analysis would ordinarily be expected, in part to accommodate an appeal court’s possibly later taking a different view on the primary issue as to conflict.
[47] Then there was criticism of His Honour’s treatment of that issue in any event, but in view of my acceptance of the legitimacy of His Honour’s approach to the scheme in the context of the application, his treatment of the “sufficient grounds” issue should be regarded as factual in character.
[48] In any event, on my judgment there is no need to address that issue further.
Orders
[49] I would refuse the application for leave to appeal on the basis that the primary judgment is not attended by error of law.
[50] I would order that the applicant pay the second respondents’ costs of and incidental to the application, to be assessed as necessary on the standard basis. Costs were not sought by the other respondents who played no active part in the hearing before us (the third respondent was actually excused).
[51] MUIR JA: I agree that the application for leave to appeal should be refused for the reasons given by the Chief Justice. I also agree with his Honour’s proposed costs order.
[52] DOUGLAS J: I agree.