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Trinity Park Investments Pty Ltd v Cairns Regional Council[2021] QCA 95

Trinity Park Investments Pty Ltd v Cairns Regional Council[2021] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION:

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95

PARTIES:

In Appeal No 6189 of 2020

TRINITY PARK INVESTMENTS PTY LTD

ACN 123 732 525 ATF AND L’ARMONIA PTY LTD

ACN 140 784 756

(applicant)

v

CAIRNS REGIONAL COUNCIL

(first respondent)

FABCOT PTY LTD

ACN 002 960 983

(second respondent)

DEXUS FUNDS MANAGEMENT LIMITED

ACN 060 920 783

(third respondent)

CAIRNS COMBINED BEACHES COMMUNITY ASSOCIATION INC

(fourth respondent)

In Appeal No 6288 of 2020

DEXUS FUNDS MANAGEMENT LIMITED

ACN 060 920 783

(applicant)

v

FABCOT PTY LTD

ACN 002 960 983

(first respondent)

CAIRNS REGIONAL COUNCIL

(second respondent)

CAIRNS COMBINED BEACHES COMMUNITY ASSOCIATION INC

(third respondent)

TRINITY PARK INVESTMENTS PTY LTD

ACN 123 732 525 ATF AND L’ARMONIA PTY LTD

ACN 140 784 756

(fourth respondent)

FILE NO/S:

Appeal No 6189 of 2020

Appeal No 6288 of 2020

P & E No 201 of 2018

P & E No 221 of 2018

P & E No 223 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane – [2020] QPEC 17 (Everson DCJ)

DELIVERED ON:

7 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2020

JUDGES:

Philippides and Mullins JJA and Brown J

ORDERS:

In Appeal 6189 of 2020 and 6288 of 2020:

  1. Application for leave to appeal granted.
  2. Appeal allowed.
  3. Set aside the orders made by the Planning and Environment Court on 30 April 2020 and 13 July 2020.
  4. Remit the appeal to the Planning and Environment Court for determination by the primary judge.
  5. The first and second respondents must pay the costs of Trinity Park Investments Pty Ltd and L’Armonia Pty Ltd and Dexus Funds Management Limited of the application and the appeal to this court.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the grant of a development permit for a childcare centre, service station, food and drink outlet and shopping centre was sought – where orders were sought that the development be refused – where orders seeking that the development permit be refused were dismissed – where the site the subject of the development permit is within the low-medium density residential zone and within the Smithfield Local Plan – whether approval of the proposed development would compromise the planned role and function of the land – whether the primary judge misinterpreted or misapplied sections 45 and 60 of the Planning Act 2016 (Qld) – whether the primary judge misinterpreted or misapplied the Cairns Plan 2016 – whether the primary judge erred in finding that there was a town planning need for the proposed development – whether the primary judge erred in finding the only non-compliance with the low-medium density residential Zone Code and the Smithfield Local Plan was that the proposed development was not small scale – whether the primary judge erred in concluding that the proposed development complied with section 3.3.2.1(1) of the Cairns Plan 2016 – whether the primary judge erred in dismissing sub-precinct 3b as an obstacle in the path of an approval of a development application – whether the primary judge failed to take into account the hierarchy of shopping centres under the Cairns Plan 2016 – whether the primary judge took into account irrelevant considerations – whether the primary judge prejudged a code assessable development application

Acts Interpretation Act 1954 (Qld), s 14B

CairnsPlan 2016

Far North Queensland Regional Plan 2009

Planning Act 2016 (Qld), s 45, s 60

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

Statutory Instruments Act 1992 (Qld), s 15

Sustainable Planning Act 2009 (Qld), s 326

AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1; [2012] QCA 44, cited

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, cited

Ashvan Investment Units Trust v Brisbane City Council [2009] QPELR 793; [2019] QPEC 16, cited

Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QPELR 608; [2008] QCA 157, cited

Bell v Brisbane City Council (2018) 230 LGERA 374; [2018] QCA 84, cited

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, cited

Flori v Winter (2019) 3 QR 22; [2019] QCA 281, cited

Gerhardt v Brisbane City Council (2017) 226 LGERA 257; [2017] QCA 285, cited

Gold Coast City Council v K & K (GC) Pty Ltd [2020] QPELR 631; [2019] QCA 132, cited

Isgro v Gold Coast City Council [2003] QPELR 414; [2003] QPEC 2, cited

Kline v Official Secretary to the Governor General (2013) 249 CLR 645; [2013] HCA 52, cited

Lewis v Townsville City Council [2012] QPELR 575; [2012] QCA 99, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, cited

Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328; [2019] QPEC 46, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited

R v A2 (2019) 93 ALJR 1106; (2019) 373 ALR 214; [2019] HCA 35, cited

Redland City Council v King of Gifts (Qld) Pty Ltd (2020) 3 QR 494; [2020] QCA 41, cited

Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85; [2005] QPEC 70, cited

Sheezel v Noosa City Council [1980] QPLR 130, cited

Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, cited

Ugarin Pty Ltd v Logan City Council [2004] QPELR 392; [2004] QPEC 1, cited

WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126, cited

Wilhelm v Logan City Council [2020] QCA 273, cited

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

Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; [2014] QCA 147, cited

COUNSEL:

G A Thompson QC, with E J Morzone, for the applicant in Appeal No 6189 of 2020

No appearance for the fourth respondent in Appeal No 6288 of 2020

D R Gore QC, with J G Lyons, for the applicant in Appeal No 6288 of 2020 the third respondent in Appeal No 6189 of 2020

B D Job QC, with M J Batty, for the first respondent in Appeal No 6288 of 2020 and second respondent in Appeal Number 6189 of 2020

R Litster QC, with K J Buckley, for the first respondent in Appeal No 6189 of 2020 and the second respondent in Appeal Number 6288 of 2020

No appearance for the third respondent in Appeal No 6288 of 2020

SOLICITORS:

HopgoodGanim for the applicant in Appeal No 6288 of 2020 and for the third respondent in Appeal No 6189 of 2020

Keir Steel Waldon Lawyers for the first respondent in Appeal No 6288 of 2020 and for the second respondent in Appal No 6189 of 2020

McCullough Robertson Lawyers for the second respondent in Appeal No 6288 of 2020 and for the first respondent in Appeal No 6189 of 2020

Emanate Legal for the fourth respondent in Appeal No 6288 of 2020 and for the appellants in Appeal No 6189 of 2020

  1. [1]
    PHILIPPIDES JA:  I agree with the orders proposed by Brown J for the reasons given by her Honour.
  2. [2]
    MULLINS JA:  I agree with Brown J.
  3. [3]
    BROWN J:  On 30 April 2020, the learned primary judge allowed an appeal, subject to the imposition of appropriate lawful conditions, for the grant of a development permit of Fabcot Pty Ltd (“Fabcot”) for a childcare centre, service station, food and drink outlet and shopping centre.  His Honour dismissed appeals by Trinity Park Investments Pty Ltd and L’Armonia Pty Ltd (“TPI”) and Dexus Funds Management Limited (“Dexus”), who sought orders that the proposed development be refused.  Both TPI and Dexus seek leave to appeal his Honour’s decision.  Fabcot seeks to uphold the decision.  That position is supported by the Cairns Regional Council (“the Council”).
  4. [4]
    Numerous grounds of appeal have been raised in the proposed grounds of appeal by each of Dexus and TPI.

Background

  1. [5]
    The site in respect of which the development permit was sought, is an area of 4.092 hectares and contains frontages to the Captain Cook Highway, Trinity Beach Road and Navigation Drive (“Fabcot Site”).  It is located approximately mid-way between the Smithfield Shopping Centre, a centre operated by Dexus, and the Clifton Village Shopping Centre.
  2. [6]
    The Smithfield Shopping Centre is approximately four kilometres south of the Fabcot Site and is designated a major centre pursuant to the Council’s planning scheme, CairnsPlan 2016 (“CP 2016”).  It is a centre of approximately 28,500 square metres and contains a Coles supermarket of 3,010 square metres and a Woolworths supermarket of 4,130 square metres.
  3. [7]
    The Clifton Village Shopping Centre is approximately four and a half kilometres north of the Fabcot Site and is a centre of 7,905 square metres and contains a Coles supermarket of 3,210 square metres.  The operators of Clifton Village Centre are not a party to this appeal.
  4. [8]
    Approximately one kilometre north of the Fabcot Site is the Trinity Beach Shopping Centre.  It primarily serves a convenience shopping role and contains a NightOwl mini supermarket of 660 square metres.  The operators of the Trinity Beach Shopping Centre are not a party to this appeal.
  5. [9]
    TPI has lodged a code assessable development application for a shopping centre on land between Smithfield Shopping Centre and the Fabcot Site, which includes a supermarket of 4,200 square metres and two other shops.  TPI’s site is within sub-precinct 3b of the Smithfield Local Plan under CP 2016 and it is two kilometres north of the Fabcot Site.  The application is code assessable pursuant to CP 2016.  No decision had been made in respect of that application at the time that this matter was heard by Everson DCJ.  The TPI land is located approximately two kilometres north of the Smithfield Shopping Centre.
  6. [10]
    The Fabcot Site is in the low-medium density residential zone (“LMDR Zone”).  It is also located within the Smithfield Local Plan.  Fabcot is the development arm of Woolworths.
  7. [11]
    The proposed Fabcot development includes the following components:
    1. (a)
      a shopping centre with gross floor area of 4,680 square metres, consisting of a 3,600 square metre full line supermarket and nine small retail tenancies;
    2. (b)
      a medical centre with a gross floor area of 900 square metres;
    3. (c)
      a childcare centre with a gross floor area of 670 square metres; and
    4. (d)
      a service station and food and drink outlet with a gross floor area of 360 square metres and an associated forecourt area.
  8. [12]
    Originally, Fabcot had been granted a preliminary approval for the shopping centre and healthcare services on the condition that there was, at the time, a valid supermarket approval located in sub-precinct 3b and the existing planning scheme lends itself to a retail and commercial intent for the site.  By the time of the hearing, that approval had lapsed and TPI had lodged a fresh code assessable development application for a shopping centre, including a supermarket of less than 5,000 square metres.  Fabcot’s development application was an impact assessable development.

Principal Provisions of CP 2016

  1. [13]
    The principal provisions of CP 2016 identified by the primary judge were as follows:

“[19] “… The hierarchy of assessment criteria is addressed in s 1.5 which relevantly provides:

‘1.5 Hierarchy of assessment criteria

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

…

  1. (d)
    local plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency;
  1. (e)
    zone codes prevail over use codes and other development codes to the extent of the inconsistency.’

[20] The Strategic framework includes the Settlement pattern theme which includes the strategic outcome that the region grows and evolves in a way that maintains the hierarchy of centres.  This strategic outcome is then developed in s 3.3.2, which relevantly states:

‘3.3.2 Element – centres and centre activities

…

3.3.2.1 Specific outcomes

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

…

  1. (ix)
    The Principal centre is the highest order centre in the region, supported by all other centres within the hierarchy of centres.
  1. (b)
    Major centres: Earlville, Edmonton and Smithfield
  1. (i)
    The major centres are concentrations of a mix of activities that consist of higher order retail, employment, commercial, administrative, community, cultural, education, higher density housing and entertainment.

…

  1. (iv)
    Local plans have been developed for each major centre to ensure the orderly and strategic development of these centres.

…

  1. (vi)
    Major centres do not compromise the role and successful function of the Principal centre and other Major centres within the hierarchy of centres.
  1. (c)
    District centres: Babinda, Gordonvale, Manoora, Manunda, Mount Sheridan, Redlynch and Westcourt
  1. (i)
    The district centres are concentrations of predominantly retail, business and community activities focussed on the weekly and fortnightly shopping and service needs of the surrounding communities.

…

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

…

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

…

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

[21] Part of s 3.3.5 is also relevant:

‘3.3.5 Element – residential areas and activities

3.3.5.1 Specific outcomes

…

  1. (3)
    Residential areas are used for residential purposes. Non-residential uses are provided where they are appropriate, support the local community, do not detract from the residential amenity of the area or compromise the role and successful function of centres within the hierarchy of centres.’

[22] Part of the Economy Theme is also relevant:

‘3.5.2 Element – strong and diverse economy

3.5.2.1 Specific outcomes

  1. (1)
    Existing economic activities continue to be facilitated in and around existing allocated areas and where possible are consolidated or colocated with similar or complementary activities.’

[23] As noted above, the site is within the Low-medium density residential zone and the following provisions of the Low-medium density residential zone code are relevant:

‘6.2.10 Low-medium density residential zone code

6.2.10.2 Purpose

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

…

  1. (3)
    The purpose of the code will be achieved through the following overall outcomes: …
  1. (g)
    non-residential uses are established where they serve the local community and do not detract from the residential amenity of the area.

…

6.2.10.3 Criteria for assessment

Performance outcomes

Acceptable outcomes

…

PO3

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

…

AO3.1

No acceptable outcomes are provided.

PO4

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

  1. (a)
    being located in highly accessible locations;
  1. (b)
    being co-located with other similar uses;
  1. (c)
    providing for the identified convenience  needs of the local community;
  1. (d)
    not impacting on the role and function of the hierarchy of centres within the region;
  1. (e)
    resulting in positive economic and social benefits for the local community;
  1. (f)
    small scale extensions to existing non- residential uses.

AO4.1

No acceptable outcomes are provided.

…

PO7

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

…

AO7.1

No acceptable outcomes are provided

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

‘6.2.14 Mixed use zone code

6.2.14.1 Application

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

…

6.2.14.2 Purpose

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

…

Mixed use precinct 1 – Commercial

  1. (4)
    In addition to 6.2.14.2(3), the overall outcomes sought for the precinct are:
  1. (a)
    development within the precinct provides a mix of land uses where the predominant land use is for commercial purposes;’

[25] The following provisions of the Smithfield local plan code have been identified as relevant:

‘7.2.8.3 Purpose

…

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

…

Precinct 1 – Smithfield Major centre

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

…

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

…

Precinct 3 – Future employment

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

…

  1. (d)
    Precinct 3 – Future employment contains the following subprecincts:

…

  1. (ii)
    Sub-precinct 3b – Future retail and commercial area;

…

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

…

7.2.8.4 Criteria for assessment

…

Performance outcomes

Acceptable outcomes

PO1

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

AO1.1

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

PO2

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

  1. (a)
    within a walking distance or catchment of predominantly residential neighbourhoods;
  1. (b)
    adjacent to a higher order road(s);
  1. (c)
    in proximity to public transport routes.

AO2.1

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

  1. (a)
    have less than 250m² total gross floor area;
  1. (b)
    are located within 400 metres of existing or future residential land uses;
  1. (c)
    are located on a collector road or sub-arterial road;
  1. (d)
    are located within 400 metres of a public transport route.

…

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

PO13

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

  1. (a)
    establishes a structure plan allowing for a mix of uses, focussed on shopping, showrooms, low-scale industry and commercial activities;
  1. (b)
    ensures the transition of impacts and uses from the adjacent employment areas to the residential land to the east, considering the impact of infrastructure to be established in the area in line with growth demands.

AO13.1

A structure plan supports development proposing reconfiguration of land or material change of use.

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

‘9.4.2 Centre design code

9.4.2.1 Application

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

…

9.4.2.2 Purpose

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

…

9.4.2.3 Criteria for assessment

…

Performance outcomes

Acceptable outcomes

PO3

Development is located within:

  1. (a)
    an existing Centre zone;
  1. (b)
    Mixed use zone precinct 1 - Commercial;
  1. (c)
    Mixed use zone precinct 2 – trades and services; or
  1. (d)
    a building containing an existing centre activity; or
  1. (e)
    an identified centre precinct within a Local plan.

AO3.1

No acceptable outcomes are provided.

PO4

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

  1. (a)
    a community need is demonstrated for the centre activity;
  1. (b)
    the centre activity does not compromise the establishment of consolidated activity centres with distinct roles and functions across the Region;

…

AO4.1

No acceptable outcomes are provided.”

Decision of the Planning and Environment Court

  1. [14]
    In the original hearing, Fabcot appealed the Council’s decision and sought a development permit for those parts of the development, namely the shopping centre and health care services and reconfiguration of a lot into 14 lots, which were only the subject of the preliminary approval.  Both Dexus and TPI sought orders that the proposed development be refused.  In the course of the hearing, it emerged that the preliminary reconfiguring of a lot into 14 lots and the development permit for the operational work for an Advertising Device and the appropriateness of the Service Station, Food and Drink Outlet component were not the subject of serious challenge.[1]  Further, the Council conceded that a development permit rather than a preliminary approval was appropriate for the shopping centre and health care services.[2]
  2. [15]
    The Planning and Environment Court hears appeals by hearing them anew as if it is the assessment manager considering the application.[3]
  3. [16]
    Section 45(5) of the Planning Act 2016 (Qld) provides that an “impact assessment” is an assessment that:

“(a) must be carried out –

  1. (i)
    against the assessment benchmarks in a categorising instrument for the development; and
  1. (ii)
    having regard to any matters described by regulation for this subparagraph; and
  1. (b)
    may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.”
  1. [17]
    Under s 43 of the Planning Act, a planning scheme, namely CP 2016 in this case, is a categorising instrument.
  2. [18]
    Section 60(3) of the Planning Act relevantly states:

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

  1. (a)
    to approve all or part of the application; or
  1. (b)
    to approve all or part of the application, but impose development conditions on the approval; or
  1. (c)
    to refuse the application”.

Reasoning of the trial judge

  1. [19]
    Given the extensive matters raised by Dexus and TPI, and the fact that issue was taken in respect of a number of aspects of the judgment, it is necessary to set out his Honour’s reasoning in some detail, notwithstanding that any appeal is limited to grounds of law.
  2. [20]
    In determining to allow the appeal of Fabcot, his Honour:
    1. (a)
      considered that s 60 of the Planning Act conferred a wide discretion;
    2. (b)
      acknowledged that in undertaking the task required by s 60, it was important to have regard to the observations of McMurdo JA in Bell v Brisbane City Council & Ors that:

“a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.”[4]

  1. (c)
    accepted the observations of Williamson QC DCJ in Ashvan Investment Units Trust v Brisbane City Council & Ors, [5] in relation to s 60(3) of the Planning Act and that the exercise of discretion is more flexible than existed prior to the introduction of s 60(3) of the Planning Act;[6]  and
  2. (d)
    referred to the decisions of the Court of Appeal in Redland City Council v King of Gifts (Qld) Pty Ltd & Anor,[7] and Gold Coast City Council v K & K (GC) Pty Ltd,[8] which were given in the context of the requirements of s 326(1)(b) of the Sustainable Planning Act 2009 (Qld) (which had been repealed), noting that those cases suggested that a degree of precision is required to establish a need for a particular development on a particular site.  His Honour, however, stated that under the current legislative scheme, the assessment process undertaken by the Court on an appeal is far less restrictive by reference to the observations of Williamson QC DCJ in Ashvan Investments Unit Trust v Brisbane City Council & Ors,[9] and Kefford DCJ in Murphy v Moreton Bay Regional Council & Anor.[10]  The primary judge also noted that relevantly CP 2016 provides for the establishment of a new centre on the site provided certain preconditions, which included that there is a need for the development, are met.[11]
  1. [21]
    Having identified the issues in dispute between the parties, which his Honour was required to determine, the primary judge considered each of those issues.[12]
  2. [22]
    In relation to whether there is a need for the development, his Honour:
    1. (a)
      Recognised that “need” was a significant issue, given provision was made for the establishment of new centres where it is demonstrated that there is a need for the development, and reference is made to need in a number of different provisions of the planning code.
    2. (b)
      Adopted the definitions of community need, economic need and planning need agreed by the four experts,[13] which his Honour considered was supported by established principles.  Of particular relevance to the present appeal is the fact that “Planning Need” was agreed by the experts to be “an assessment of the extent to which the proposed development can be accommodated by existing planning provisions. This necessarily involves an assessment of the existence of competitive approvals and the availability of suitably zoned and/or designated lands to accommodate the proposed development.”
    3. (c)
      In relation to the concept of “planning need” the primary judge referred to the decision of Carter DCJ in Williams McEwans Pty Ltd v Brisbane City Council,[14] and Wilson SC DCJ in Isgro v Gold Coast City Council & Anor.[15]  Based on those decisions his Honour considered “need,” when used without qualification in the CP 2016, is to be interpreted as a reference to planning need.
  3. [23]
    The primary judge accepted the evidence of Mr Stephens, the expert appearing on behalf of Fabcot, and in particular his evidence that a three kilometre distance from a major supermarket is an appropriate benchmark which reflected the realistic expectations as to accessibility to major supermarkets in an outer urban area of a regional city, such as Cairns.  The primary judge further accepted that a population of 8,000 – 10,000 persons was required to support a full line supermarket, which in the present case was satisfied.[16]  His Honour accepted the evidence that there were more than 10,800 permanent residents outside of the three kilometre radius of Clifton Village Shopping Centre and Smithfield Shopping Centre, and that the Fabcot Site is centrally located to service the demand of those residents for a full-line supermarket.  The primary judge also accepted the evidence of Mr Stephens that the proposed supermarket would likely trade at a level of $11,000 per square metre, which is a relatively strong trading level for a Woolworths of the size proposed and in line with average industry benchmarks, which indicated most full line supermarkets in Australia achieved sales between $9,000 per square metre and $13,000 per square metre.  His Honour accepted the evidence of Mr Stephens, supported by Mr Norling, that there was a sufficient economic need for an additional supermarket to service the main trade area at the time the proposed development would commence trading.[17]  His Honour further considered that the confidential trading figures for the supermarkets trading at Smithfield and Clifton confirmed the strong level of need for an additional full line supermarket.[18]
  4. [24]
    The primary judge found that there was a significant economic, community and planning need for the supermarket component of the proposed development of the Fabcot Site which is centrally located to service the demand for a supermarket within the Primary Trade Area, which is not presently being met.[19]
  5. [25]
    While the primary judge recognised the fact that the proposed development was to be anchored by a full line Woolworths supermarket of approximately 3,600 square metres was such that the need for retail use lay at the heart of whether or not the proposed development as a whole is justified, his Honour recognised that the need for each of the separate uses had to nonetheless be assessed.[20]  His Honour was satisfied on the basis of the evidence presented, particularly of Mr Stephens who undertook an audit of all medical centres in assessing the need for a healthcare centre, that there was a sufficient need for the service station and food and drink outlet, the general practitioner services and the childcare services.[21]
  6. [26]
    The primary judge considered whether the proposed development was contrary to, and would compromise, the existing and ongoing hierarchy of centres, contrary to what was intended by the CP 2016.  The primary judge stated that none of the economists were ultimately of the view that the proposed development would have that effect on the major centre at Smithfield.[22]  His Honour found that the major centre at Smithfield would remain the focus of employment and economic activity and remain the dominant retail centre.[23]  The primary judge further accepted the views of Mr Stephens and Mr Norling that the anticipated impacts on the Clifton Village Shopping Centre and Trinity Beach Shopping Centre would be within the normal competitive range, and would not lead to adverse impacts as to the viability of each centre.[24]
  7. [27]
    The primary judge considered approval of the proposed development would maintain the hierarchy of centres as contemplated by s 3.3.2.1(2)(d) in the strategic framework.  His Honour noted that it was agreed by economists that the proposed development, if approved, would constitute a new Local centre in the hierarchy.
  8. [28]
    The primary judge found that there was compliance with PO1 of the criteria for assessment in s 7.2.8.4 based on his Honour’s findings of need.  His Honour also found that given his Honour’s findings as to need and impacts on other centres, s 4.2.2.2(1)(a), which clearly was meant to be s 9.4.2.2(1)(a), of the purpose of the Centre Design Code was complied with.[25]  His Honour also found that it was impossible to create a new centre to comply with the criteria assessment in PO3 but that there was compliance with PO4.[26]
  9. [29]
    In considering function and scale, the primary judge considered whether the development on the site was “small scale” and whether the focus would be “local.”  His Honour accepted the evidence of the town planners that the proposed development was not “small scale.”
  10. [30]
    As to the meaning of “local,” the primary judge considered that was a flexible concept.[27]  His Honour considered that adopting the approach that it referred to a single suburb was too narrow.  The primary judge stated that on the facts before his Honour, it must refer to an area identified by the experts as the Primary Trade Area which encompassed the suburbs of Trinity Beach where the site is located and Kewarra Beach (the “PTA”).[28]  The primary judge therefore found that, while the proposed development would not be a small scale facility, it would cater for local residents, including providing a supermarket for their weekly shopping needs.[29]
  11. [31]
    His Honour also found that the proposed development is in an appropriate location, according to fundamental planning principles.  In addition to the locational attributes agreed by the town planners, his Honour stated that there was excellent access to the Captain Cook Highway, it was a suitable location with respect to walking and cycling and it presented an advantage to local residents in that they could access the proposed development without having to travel along the highway, and that it enabled the prospect of high density residential living around it.[30]  His Honour therefore concluded that there was compliance with PO7 and the relevant parts of criteria for assessment in PO4 in the LMDR Zone Code.  His Honour considered the only non-compliance was that it was not small scale both from the perspective of s 6.2.10.2(1) and PO3.  His Honour concluded that this was the only aspect of the proposed development that constituted non-compliance with PO2 of the Smithfield Local Plan.[31]
  12. [32]
    His Honour found that s 3.3.2.1(10) of the strategic framework was complied with in relation to the proposed centre on the basis that:
    1. (a)
      there is a need for each of the components;
    2. (b)
      it is of a scale required to serve the surrounding catchment; and
    3. (c)
      it will be centrally located and it will not compromise the character and amenity of adjoining premises.
  13. [33]
    The primary judge found that where the development complied with the strategic framework, such compliance prevails over all other components of the CP 2016, in the event of inconsistency, pursuant to s 1.5(1)(a).  In any event, his Honour stated that, given the flexible approach to the exercise of the Court’s discretion in deciding an appeal, the fact that the proposed development is not small scale did not warrant refusal of it.[32]
  14. [34]
    In considering whether the proposed development would result in unacceptable impacts on the role, function and economic viability of sub-precinct 3b in the Smithfield Local Plan, the primary judge stated that it was important to distinguish between the planning status of sub-precinct 3b and the development application that had been lodged by TPI.  In particular, the primary judge referred to Skoien DCJ and the observations in Ugarin Pty Ltd v Logan City Council,[33] where his Honour noted that in the context of former consent application appeals, it was not the function of the Court to consider whether a better site existed for the proposed use, but to decide whether consent should be given to the particular use on the particular site.  However, his Honour noted that for former rezoning application appeals, it was recognised that it was relevant to consider whether there was another available site, suitably zoned on which the particular use could be carried out.
  15. [35]
    The primary judge stated that sub-precinct 3b was not identified as being part of a centre in CP 2016 and was currently undeveloped.  His Honour noted that it was located in a mixed use zone and that the table of assessment provided that a shopping centre not greater than 5,000 square metres total gross floor area in sub-precinct 3b was code assessable.  However, the primary judge stated that the requirements of such a code assessable application are onerous, as was demonstrated by the information that had been requested by the Council from TPI in respect of its application.[34]
  16. [36]
    The primary judge found that:

“Not only will the proposed development not have unacceptable impacts on the role, function and economic viability of Sub-Precinct 3b in the Smithfield local plan, but there is no evidence before me of any intention by any supermarket operator to conduct such a use within Sub-Precinct 3b.”[35]

  1. [37]
    The primary judge further found that to the extent it could be asserted that land in sub-precinct 3b was already appropriately designated for use of a shopping centre, which was contemplated by Fabcot’s proposed development, there was no evidence before the primary judge that it was likely to be used as such.  The primary judge also found it was not currently able to meet the pressing need that his Honour had identified.  His Honour then made reference to the fact the application was “seriously wanting in several respects,” which was the subject of concessions by TPI’s expert Mr Schomburgk.
  2. [38]
    The primary judge took into account several matters which his Honour found were relevant considerations pursuant to s 45(5) of the Planning Act, namely that:
    1. (a)
      the proposed development would bring price benefits, employment opportunities, choice, competition and convenience in circumstances where the only significant retail outlet for the necessities of life within the PTA was the NightOwl store in the Trinity Beach Shopping Centre;
    2. (b)
      the development would provide a second Woolworths store for the Northern Beaches Region where there is a community benefit associated with the existence of a committed anchor tenant;
    3. (c)
      the proposed development would be centrally located to meet the 10,800 residents outside of the three kilometre radius of an existing supermarket;
    4. (d)
      there would be various efficiencies achieved by the co-location of the uses in the proposed development, all of which his Honour found were well located to serve the growing community identified in the PTA;
    5. (e)
      the need for the uses in the proposed development, coupled with the gap in the provision of a full line supermarket to provide for the need, justifies the creation of a new centre on the site as contemplated in the strategic framework of the CP 2016 which could be met by the Fabcot Site;
    6. (f)
      the fact that the Fabcot Site was ideally located to meet the need identified above, together with the fact it would provide the local community with the opportunity of shopping for the necessities of life and utilising the ancillary uses, without having to journey along the, at times, congested Captain Cook Highway, clearly justified the proposed development, despite the fact that it was not small scale; and
    7. (g)
      the potential impacts of any un-actioned approval to extend shopping facilities at Smithfield Shopping Centre was irrelevant  given his Honour found that the proposed development would not compromise each role and function in the region.
  3. [39]
    His Honour concluded:

“The proposed development is justified as being ideally located to meet the identified need for a shopping centre including a full-line supermarket, a Health Care Service, a Child Care Centre, and a Service Station and Food and Drink Outlet in a part of the Northern Beaches region of Cairns which lacks a centre to suitably co-locate the above uses.  Where the proposed development is ideally located to meet the need for these uses without adverse character and amenity impacts, it can be justified as the establishment of a new centre pursuant to s 3.3.2.1(10) of the Planning Scheme.  To the extent that the function and scale of the proposed development is not small scale as is contemplated by various provisions in the Planning Scheme, it is significant that the Strategic framework prevails over all other components to the extent of inconsistency and this fact does not, in any event, warrant a refusal of it.  Each of the proposed uses will cater for local residents but not compromise the existing hierarchy of centres pursuant to the Planning Scheme.”[36]

Nature of appeal

  1. [40]
    There are two applications for leave to appeal, one made by Dexus and one by TPI, and if granted two separate appeals.  An appeal to this Court can only be made with leave, and is restricted to an error or mistake in law.[37]
  2. [41]
    TPI contends that the present case is an appropriate one for leave because:
    1. (a)
      the primary judge erred in law in respects which materially affected his Honour’s decision;
    2. (b)
      the questions of law raised by TPI are of general importance because they concern:
      1. (i)
        the proper interpretation of s 45 and s 60 of the Planning Act, and the approach to be taken in the decision-making process under those provisions;
      1. (ii)
        the application to the Planning Act of principles established by three decisions of this Court known as the trilogy,[38] that a planning scheme is the embodiment of what, in the public interest, is the appropriate development of land; and
    3. (c)
      the issues are of special importance to TPI as approval of the proposed development will compromise the planned role and function of TPI’s land under CP 2016 and a code assessable development application made by it for a shopping centre on TPI’s land currently before the Council.
  3. [42]
    TPI relies on three errors of law, which it seeks to raise in this appeal, namely:
    1. (a)
      the primary judge misinterpreted or misapplied s 45 and s 60 of the Planning Act;[39]
    2. (b)
      the primary judge misinterpreted or misapplied CP 2016;[40]  and
    3. (c)
      the primary judge took into account irrelevant considerations, denied TPI procedural fairness and prejudged TPI’s code assessable development application.[41]
  4. [43]
    Dexus contends that it should be granted leave to appeal because:
    1. (a)
      the primary judge erred in law in respects which were material to his Honour’s decision; and
    2. (b)
      the correctness or otherwise of the decision is a matter of considerable public interest.
  5. [44]
    Dexus groups a number of errors which it alleges were made by the learned primary judge into five categories, which it contends involved misconstruing the CP 2016, or erring in principle, or an element of both, and which it contends are errors of law.  Those categories in relation to which it is said that his Honour erred are described as:
    1. (a)
      the oversized development areas;[42]
    2. (b)
      the wrong locations errors;[43]
    3. (c)
      the adverse planning impact errors;[44]
    4. (d)
      the predetermination error;[45] and
    5. (e)
      the discretion miscarried.
  6. [45]
    Both Fabcot and the Council contend that leave should not be granted to TPI and Dexus to appeal, on the basis that the primary judge did not err in law, that the exercise of discretion was open to the primary judge, that the appeals do not raise any questions of general importance and when reasons are read properly and as a whole, the result could not have been different.[46]
  7. [46]
    The Council originally granted preliminary approval for the Fabcot Site subject to a condition which attempted to control when and under what circumstances a development permit might be issued for the shopping centre in light of other approvals.  The Council, in that regard, had accepted that at that stage, Council had granted approval for a shopping centre for TPI’s site.  TPI’s approval had lapsed by the time of hearing.  Information had been requested by the Council, receipt of which was pending.  Although TPI lodged a fresh application for a shopping centre at the site, that had yet to be considered by the Council at the time of hearing.  During the hearing of this matter, the Council changed its position in relation to Fabcot’s proposal and supported a development permit for the shopping centre on the Fabcot Site.  While some criticism was sought to be levelled against the Council due to its change in position, that criticism was unwarranted and irrelevant to this appeal.

TPI contentions

  1. (a)
    Misinterpretation of the s 45 and s 60 of the Planning Act
  1. [47]
    Section 45(5) of the Planning Act provides for an impact assessable development to be carried out against benchmarks in a categorising instrument for the development.  TPI contends that in the present case the primary judge erred in failing to find the proposed development was inconsistent with some of the relevant assessment benchmarks.  In particular:
    1. (a)
      TPI contends that the Fabcot Site is in the LMDR Zone, which is not recognised under CP 2016 for retail development.  It contends that the non-residential uses were to be “small scale” and provide for the needs of the “local community” and that the primary judge erred insofar as his Honour found the proposed development, while not “small scale,” would serve the need of the “local community”.  His Honour interpreted the expression “local community” as extending to the PTA of the proposed development, which TPI contends consists of several communities under CP 2016.  It contends that “local residents” and “local community” in the LMDR Zone Code are to be understood and read consistently with each other.  As a result, it contends that his Honour therefore made an error of law in interpreting CP 2016 and, in doing so, failed to address the requirements of s 45(5) of the Planning Act.  It further contends the primary judge did not take into account the planning intention with respect to sub-precinct 3b.
    2. (b)
      TPI further contends that in adopting the above interpretation, the primary judge departed from the principles established by the Court of Appeal in Gold Coast City Council v K & K (GC) Pty Ltd,[47]  Bell v Brisbane City Council,[48] and Redland City Council v King of Gifts,[49] which have been described as “the trilogy.”  TPI contends that the Planning Act does not legislate a departure from the principles in the trilogy, and that his Honour erred in failing to consider whether the “public interests would not be served by requiring that the land be developed according to the Planning Scheme.”[50]
  2. [48]
    TPI further contends that the primary judge erred in determining that the proposed development would not have any unacceptable impacts upon the role, function and economic viability of sub-precinct 3b in failing to accurately identify the specific planned role and function of sub-precinct 3b in the Smithfield Local Plan.  According to TPI:
    1. (a)
      The primary judge failed to take into account or give effect to the more specific provisions of CP 2016 applicable to the TPI land in sub-precinct 3b by emphasising the “wide mix” or “wide variety” of uses contemplated under the mixed use zone and sub-precinct 3b and that it is not part of the centre hierarchy under CP 2016, thereby misconstruing the precise designation of TPI’s land.  TPI also contends that the primary judge failed to identify and give effect to the role and function of sub-precinct 3b in the Smithfield Local Plan as a future “retail and commercial area,” the overall outcomes in s 7.2.8.3(5)(b) and s 7.2.8.3(5)(f) and PO13(a).  It submits the role and function of the TPI land is also supported by the provisions of the Far North Queensland Regional Plan 2009 (“The Regional Plan”).
    2. (b)
      Upon proper construction of the CP 2016, sub-precinct 3b should have been found to have been a part of the planned hierarchy of centres.  According to TPI, that ignores the specific land use intentions for sub-precinct 3b which, under the Smithfield Local Plan, has been made clear as being intended for future retail use, focussed on “centre activities” and “shopping.”  In particular, it relies on the fact that it provided that the shopping centre of not greater than 5,000 square metres was designated as code assessable under the table of assessment as demonstrating it was to be part of the Northern Beaches area.
    3. (c)
      The finding that sub-precinct 3b did not form part of the hierarchy of centres ignored the fact that if the Council approved the code assessable TPI application, or any application for a shopping centre in sub-precinct 3b, practically it would be part of the centre activities network.
  3. [49]
    TPI further contends that his Honour, as a matter of construction, erred in allowing s 3.3.2.1(10) of the strategic framework in CP 2016 to be leveraged against other scheme provisions in favour of an unanticipated out of centre development with the consequence of fettering already anticipated development under CP 2016.
  1. (b)
    No planning need
  1. [50]
    TPI contends that his Honour erred in principle in finding that there was a town planning need for the proposed development.[51]  TPI’s contention is that while the primary judge accepted that the reference to “need” for a further shopping centre in s 3.3.2.1(10) refers to town planning need, the primary judge erred in principle in failing to recognise that the need for an additional full line supermarket could be met by development on appropriately designated land in sub-precinct 3b, which did not give rise to a conflict with the CP 2016.  There was therefore no unsatisfied demand which is not able to be met adequately or at all by the CP 2016 in its present form.  According to TPI, the decision compromises the planning intentions for sub-precinct 3b under the Smithfield Local Plan including the intended strategy for retail uses to be located as part of the “pattern of local activity” and amongst a cluster of other activities at the location of sub-precinct 3b.
  1. (c)
    Pre-judgment of TPI’s application
  1. [51]
    TPI also complain that the primary judge erred in prejudging the TPI application which was, and remained at the time of hearing, pending.  TPI complains that notwithstanding the intimation to the contrary by the primary judge, his Honour did make findings that the TPI application was “seriously wanting in several respects.”  Further, a finding by the primary judge that there was no evidence of any intention by any supermarket operator to conduct such a use within sub-precinct 3b was unsupported by any evidence.  It contends his Honour erred in prejudging the adequacy of the TPI code assessable development application and further denied TPI procedural fairness in making the findings his Honour did when the TPI development application was not in issue.  It further contends that his Honour took into account irrelevant considerations by considering which site was the better site.
  2. [52]
    TPI further submitted that even if it was open for his Honour to consider the merits of the TPI development application, his Honour failed to address evidence that there was a likelihood of a supermarket operator taking up a shopping centre use within sub-precinct 3b, and that his Honour acted upon evidence from the regional property manager from the Woolworths Group, which was irrelevant to any issue.
  3. [53]
    TPI contends that his Honour’s discretion miscarried in acting upon wrong principles and erring as to matters of law.

Contentions of Dexus

  1. (a)
    Oversized Development Errors
  1. [54]
    The first category of errors alleged by Dexus are described as the “oversized development errors.”
  2. [55]
    Dexus contends that the primary judge therefore erred in finding that the only non-compliance with the LMDR Zone Code and the Smithfield Local Plan was that it was not “small scale,” when given the size of the proposed development, his Honour should have found that the PTA extended beyond the area of “local residents,” and served several communities.  Dexus relies on the non-residential provisions in the LMDR Zone Code, the strategic framework of CP 2016 and the Smithfield Local Plan.  The development proposal was not therefore in accordance with CP 2016 and therefore prima facie not in the public interest.
  3. [56]
    Dexus further contends that as a result of that initial error, his Honour also erred in concluding that the proposed development complied with s 3.3.2.1(10) of the CP 2016.  Dexus contends that the primary judge erred in applying s 3.3.2.1(10) in isolation, and without regard to other aspects of the CP 2016. As a matter of construction, the provisions of s 3.3.2.1(10) are said to be vague and unbounded unless read with the other provisions of CP 2016, particularly those which ensure a centre does not compromise the role and function of other centres within the hierarchy, as well as provisions as to the Smithfield Shopping Centre and the consolidation of existing centres.  It further contends that s 3.3.2.1(10) did not provide for a new centre to be approved on the basis of economic evidence, which was relied upon by the primary judge, and further, that the primary judge failed to recognise that CP 2016 did not contemplate a full line supermarket in a “Local Centre.”  Dexus contends that the primary judge was in error insofar as there was no relevant inconsistency to which s 1.5(1)(a) of CP 2016 could apply such that the strategic framework prevailed over all other components of CP 2016.[52]  When read with the other provisions, Dexus contends that it does not authorise approval of a new and very large mixed use centre in a residential zone regardless of compliance or non-compliance with other provisions of CP 2016 or of the context of other provisions.
  1. (b)
    Wrong Location Errors
  1. [57]
    The second category of errors are described as “wrong location errors.”  Dexus contends that the primary judge erred in his Honour’s dismissal of sub-precinct 3b, which was the subject of TPI’s application, as an obstacle in the path of an approval of the Fabcot application.[53]
  2. [58]
    His Honour erred in finding that there was a “planning need” for the Fabcot development, as CP 2016 catered for any planning need for a development in the nature of the proposed Fabcot development by the provision of sub-precinct 3b.  His Honour erred in being influenced by the non-identification of sub-precinct 3b as a centre.  If a shopping centre was approved in sub-precinct 3b, it would be a centre that needed to be taken into account for any out-of-centre development applications.  Further, the primary judge gave no weight to the designation of a shopping centre of less than 5,000 square metres in sub-precinct 3b as code assessable.
  3. [59]
    Dexus further contends that the primary judge incorrectly had regard to the state of TPI’s application, rather than the provisions of CP 2016 in considering the impact on sub-precinct 3b.  Further, Dexus contends that the primary judge’s approach preferred the Fabcot Site over sub-precinct 3b, contrary to established principles in planning cases and the role of the court.
  1. (c)
    The adverse planning impact errors
  1. [60]
    In relation to what are described as “adverse planning impact errors,” Dexus contends that his Honour erred in failing to take into account the hierarchy of shopping centres under CP 2016 and the need to avoid prejudice to the viability of the established hierarchy.  In addition it contends that the primary judge failed to take into account that CP 2016 intends consolidation within existing centres.  According to Dexus, the primary judge failed to take into account the excessive size of the Fabcot development and incorrectly relied upon s 3.3.2.1(10) and a misconstruction of s 1.5(a) of the Strategic Framework in determining that the role and function of Smithfield Shopping Centre would not be compromised.  It also contends that his Honour failed to take into account the monetary impact on Smithfield Shopping Centre and the Clifton Village Shopping Centre.
  1. (d)
    The pre-determination error
  1. [61]
    As to the “predetermination error,” Dexus contends that his Honour prejudged the TPI application in finding that it was “seriously wanting in several respects.”[54]  Dexus contends that the finding was even more problematic given the evidence of the Council’s economist that the approval of the Fabcot Site would deprive the TPI application of any prospect of approval.  Dexus contends that in the circumstances, it would be wrong in principle for the primary judge to render TPI’s application worthless in favour of an out-of-centre application.
  1. (e)
    Discretion miscarried
  1. [62]
    Finally, Dexus contends that the primary judge’s discretion miscarried on the basis of the “oversized development errors,” which had a cascading effect such that the primary judge would have viewed other issues quite differently had those errors not been made.  In those circumstances the intervention by the Court on the basis that the decision below “might have been different” was satisfied.
  2. [63]
    Dexus request that the matter should be remitted to a different judge because of the necessity to ensure the appearance of impartiality is maintained.

Misinterpretation of local residents/ local community?

Summary of Contentions

  1. [64]
    As set out above, Dexus and TPI contend that the proposed development serves several communities and properly construed, particularly in the context of the purpose of non-residential uses in the LMDR Zone Code being “small scale” and which serve the needs of “local residents,” the primary judge had misconstrued the reference to “local” in the LMDR Zone Code .  They emphasise other provisions in CP 2016 which refer to “small scale” in terms of non-residential uses and provisions which they contend demonstrate that, in the context of the CP 2016, it was not intended that there be a large supermarket of the scale proposed in the LMDR Zone Code.
  2. [65]
    The applicants emphasise the reference in the LMDR Zone Code to the provision of “small scale services and facilities” that cater for local residents.  Dexus contends that the meaning of local is driven by the words “small scale” set out in the purpose of the LMDR Zone Code, which is mandatory to comply with, and which refers to “local residents” rather than “local community.”[55]  The non-residential uses must be “small scale,” which serve local residents in the local community.
  3. [66]
    Dexus makes particular reference to “small scale” in other parts of the LMDR Zone Code and the Smithfield Local Plan, as demonstrating that it is a prominent feature of the intent of the CP 2016.  According to Dexus, once it is accepted that a development is not small scale, as intended by CP 2016, it follows that its primary trade area will extend beyond the area of “local residents.”
  4. [67]
    According to TPI, the reasoning of the primary judge leads to the concepts of “local residents” and “local community” being regarded as elastic concepts which expand to accommodate the scale of the proposed development.  TPI states that his Honour erred in his Honour’s interpretation of “local” and that when one analyses the relevant provision in the LMDR Zone Code, “local community” takes its meaning from “local residents.”  It submits that the terms are co-extensive and the words “cater for” in s 6.2.10.2(1) and “serve” in s 6.2.10.2(3) should be given the same meaning.  TPI contends that the expression “local residents” and “local community” are implicitly defined as those residents or community members who would be catered for or served by the particular small-scale services and facilities to which the section refers.  It contends that the determination of the meaning of “local community” is not assisted by looking at a dictionary, because the determination of the “local community” depends on the context in which they appear in each relevant zone.  Unlike the TPI site in sub-precinct 3b, the Fabcot Site doesn’t have any higher purpose under the Smithfield Local Plan suggesting any broader interpretation.  TPI contends that the primary trade area comprises of several local communities, which demonstrates the error in his Honour’s approach.  The proposed development is large scale which goes beyond servicing local residents and the local community.
  5. [68]
    Conversely, Fabcot and the Council refer to the provisions in the LMDR Zone Code which refer to serving the needs of a local community.  They point to various provisions which they contend support the fact that “local community” is not confined, as TPI and Dexus contend.  Fabcot and the Council contend that the primary judge was correct and that his Honour’s construction was supported by the references to “local community” when used in the context of “Local centres” in CP 2016, which confined a local centre to serving a “local community” catering for weekly needs.
  6. [69]
    The Council and Fabcot both contend that the meaning of “local” is not driven by the words “small scale.”  Fabcot contends that it does not follow that because a development is not small scale, the primary trade area extends beyond serving a local community.  It refers to the fact that while the overall purpose refers to development that is “supported by community uses and small scale services and facilities to cater for local residents,” the other references to non-residential uses refer to serving the local community but do not refer to “small scale.”  In particular, Fabcot points to s 6.2.10.2(3)(g) of the LMDR Zone Code.
  7. [70]
    Fabcot contends the contentions of Dexus and TPI fail to consider the provisions as to Local Centres in CP 2016, which is what Fabcot proposed.  According to Fabcot, the strategic framework confirms that a Local Centre is to serve a local community and provides for non-residential uses which include retail focussed on the daily and weekly shopping and service needs of the surrounding local community.  The LMDR Zone Code contemplates non-residential uses which serve the local community which is the role of a Local Centre.  It further contends that on its proper construction, CP 2016 contemplates that a Local Centre can include a supermarket of a scale that can meet those weekly needs.  According to Fabcot the language used in relation to neighbourhood centres which are to serve surrounding neighbourhood communities and “immediate neighbourhood catchments,” rather than the local community which is referred to in the LMDR Zone Code, suggests that neighbourhood centres were directed at non-residential uses of a smaller scale than the local community, whose needs were to be met under the LMDR Zone Code.  According to Dexus, the Smithfield Local Plan does not support a different construction, also relevantly referring to the local communities in the overall outcomes.  In any event, Fabcot contends that the LMDR Zone Code does not state that the “non-residential uses” only serve the local community.

Consideration

  1. [71]
    The question is whether his Honour erred in determining that the only non-compliance with the relevant assessment benchmark was that the proposed development was “small scale,” and whether his Honour erred in construing “local” to include the residents in the PTA.
  2. [72]
    The resolution of this question depends on the statutory construction of “local” when used in the LMDR Zone Code in relation to “local residents” and “local community.”  Either phrase is a term capable of broad meaning.  As was recognised by the primary judge and also in argument by the parties, little assistance is to be derived from the dictionary and the ordinary meaning of “local.”
  3. [73]
    The definition of the word “local” relevantly includes “belonging to or existing in a particular place or places” or “peculiar to or only encountered in a particular place or places”.[56]  The Macquarie Dictionary defines it to include:

“Relating to or characterised by place, or position in space… relating to a town or a small district rather than the entire state or country”.[57]

  1. [74]
    “Community” is defined in the Australian Oxford Dictionary as “all the people living in a specific locality.”[58]  Similarly, the Macquarie Dictionary defines “community” to include “all the people of a specific locality or country.”[59]  “Resident” is similarly non-descript: “someone who resided in a place.”[60]
  2. [75]
    “Small scale” is defined to be “of limited size or extent,”[61] in the Oxford Dictionary and, relevantly, is defined in the Macquarie Dictionary as “unambitious, or of small extent, as an enterprise.”[62]
  3. [76]
    The scope of “local residents” and “local community” is to be determined by looking at the words used in the relevant provision itself as well as the terms of the CP 2016 as a whole to determine what meaning those terms were intended to have in CP 2016.
  4. [77]
    In Zappala Family Co Pty Ltd v Brisbane City Council,[63] Morrison JA, with whom McMurdo P and Douglas J agreed, stated that the same principles which apply to statutory construction applied to the construction of planning documents.  In particular, his Honour referred to the principles set out by the majority in Project Blue Sky Inc v Australian Broadcasting Authority,[64] in the following terms:

“The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:

[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume, Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.

…

[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning …” (underlining added)

  1. [78]
    Morrison JA in Zappala Family Co Pty Ltd v Brisbane City Council also referred to the decision of AAD Design Pty Ltd v Brisbane City Council,[65] where Chesterman JA stated in relation to planning schemes, they can “often lack clarity, contain ambiguities and sometimes appear contradictory,” and noted that the Court should adopt a common sense approach and endeavour to give words meaning.  Justice Morrison stated that the approach should start and end with the text, seen in its context in the way suggested by Project Blue Sky.[66]  His Honour also referred to High Court decision often cited as setting out the modern approach to statutory interpretation, CIC Insurance Ltd v Bankstown Football Club Ltd,[67] where the majority stated that the modern approach to statutory interpretation insists that the context be considered in the first instance, and context is to be used in its widest sense.
  2. [79]
    In the context of a planning scheme, such as CP 2016, the hierarchy of provisions is a matter of particular relevance in determining the correct construction, particularly where terms are not always consistently used throughout the planning scheme.
  3. [80]
    Section 1.5 of the CP 2016 provides for the hierarchy to be applied in the event that there is inconsistency between provisions within the planning scheme, such that the Strategic Framework prevails over all other components to the extent of the inconsistency.  Statewide codes prevail over all other components to the extent of the inconsistency, then in order of priority there are overlay codes, local plan codes, zone codes and use codes and other development codes.[68]
  4. [81]
    Two constructions of “local residents” and “local community” were essentially argued before this Court.  Firstly, that the meaning of “local community” and “local residents” is interchangeable and driven by the reference to small scale.  Thus, according to this construction, “local community” refers to that group of people who would be served by small scale non-residential uses.  According to Dexus, this could be as small as residents living in part of a suburb.  The alternative construction that was adopted by the primary judge is that “local” refers to the PTA on the basis that the “local community” is the community whose weekly shopping needs are met by the proposed shopping centre.  On either interpretation there is no bright line to define who falls within or outside the group who are the “local residents” or the “local community.”  Nor could there be, since it is a phrase which is incapable of a precise definition.  As was noted by Rackemann DCJ in Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council,[69] when referring to the term “local area,” it is unrealistic in the modern context to expect that the services will not be used by people beyond the local area.  As his Honour stated “Catchment areas are not borders within which patrons are quarantined.”[70]  That is not to suggest however that the phrase is treated as having an open ended meaning but rather the fact people may be served outside a catchment does not mean it does not serve the local area.  To the extent that Fabcot relies on Seven Eleven Stores Pty Ltd to contend that the LMDR Zone Code reference to serving the local community is flexible and not limited to only serving the local community, it may be accepted that if some people are served beyond those within the “local community” that would not necessarily result in a finding of non-compliance.  While there is no provision in the LMDR Zone Code, similar to that found in the Strategic Framework in respect of Local centres providing that the proposed non-residential uses do not exceed the needs of the local community, the phrase “local community” must be construed to have some meaning and not be left open ended.
  5. [82]
    The Fabcot Site is located within the LMDR Zone and the area that falls within the Smithfield Local Plan, which has priority over the LMDR Zone Code.  According to s 6.2.10.2(1) the purpose of the LMDR Zone Code is to provide for a range and mix of dwelling types, including dwelling houses and multiple dwellings, supported by the community uses and “small-scale services and facilities that cater for local residents.”  Section 6.2.10.2(3)(g) provides that the purpose is achieved through a number of outcomes, including non-residential uses where they serve the local community and do not detract from the residential amenity of the area.
  6. [83]
    In the performance outcomes for assessable developments in the LMDR Zone Code, PO3 (for which no acceptable outcomes are provided) requires that development is consistent with the purpose and overall outcome sought for the zone.  PO4 ( for which no acceptable outcomes are provided) requires that non-residential uses that serve the local community are established in appropriate locations and subject to detailed development requirements including:
    1. (a)
      being located in highly accessible locations;
    2. (b)
      being co-located with other similar uses;
    3. (c)
      providing for the identified convenience needs of the local community;
    4. (d)
      not impacting on the role and function of the hierarchy of centres within the region;
    5. (e)
      resulting in positive economic and social benefits for the local community; and
    6. (f)
      small scale extensions to existing non- residential uses.
  7. [84]
    The reference to “small scale” and “local residents” in the stated purpose for the zone does lend support to the construction contended by TPI and Dexus.  Any proposed development is required by PO3 to be consistent with the purpose set out in s 6.2.10.2 and the overall outcomes for the zone, which would include s 6.2.10.2(3)(g).  However, PO4 does not refer to the non-residential uses being “small scale,” but only to “small scale extensions” of existing uses.  Fabcot and the Council particularly rely on the fact that PO4 provides for non-residential uses being established that “serve the local community” and which provide for “the identified convenience needs of the local community.”  Fabcot also relies upon the fact that PO4 contemplates that the non-residential use may be of a scale that would affect the hierarchy of centres, given it provides that it is subject to “not impacting on the role and function of the hierarchy of centres within the region.”  The Strategic Framework provides that a local centre is to serve the needs of the surrounding local community.
  8. [85]
    The role and hierarchy of centres is provided for in the Strategic Framework s 3.3.2.1.  According to s 3.3.2.1(1):

“Centres are concentrations of activity that may comprise of retail, business and employment, administration, research, residential, education, and health and community services consistent with the identified role and function of the centre.”

  1. [86]
    Section 3.3.2.1(2) provides that: “A hierarchy of centres is established and maintained, where each centre is characterised by its scale and function, and performs a defined role within the hierarchy.”  The hierarchy of centres that are provided for consist of a principal centre, major centres and district centres which are nominated in particular locations.  It also provides for Local Centres and Neighbourhood Centres:

“(d) Local centres

  1. (i)
    Local centres provide a small cluster of uses including retail, employment nodes, cafes and dining, and community services that are focussed on the daily and weekly shopping and service needs of their surrounding local community.
  1. (ii)
    Showrooms, department stores and other large floor space land uses are not located in Local centres.
  1. (iii)
    Development within Local centres provides a high level of amenity and minimise (sic) the impacts on the surrounding residential areas.
  1. (iv)
    Local centres do not exceed the needs of their surrounding local community.
  1. (v)
    Local centres do not compromise the role and successful function of the Principal centre, Major centres, District centres and other Local centres within the hierarchy of centres.
  1. (e)
    Neighbourhood centres
  1. (i)
    Neighbourhood centres contain a limited range of small scale convenience or retail facilities that meet the basic, daily convenience needs of a surrounding neighbourhood community and encourage walkable neighbourhoods.
  1. (ii)
    Neighbourhood centres do not exceed the needs of their immediate neighbourhood catchment.
  1. (iii)
    Showrooms, department stores, full-line supermarkets and other large floor space land uses are not located in Neighbourhood centres.
  1. (iv)
    Neighbourhood centres do not exceed the needs of their surrounding neighbourhood community.
  1. (v)
    Neighbourhood centres do not compromise the role and successful function of the Principal centre, Major centres, District centres, Local centres and other Neighbourhood centres within the hierarchy of centres.”
  1. [87]
    Local centres are not to exceed the needs of the surrounding local community being met by the centres.  Reference is also made to a “small cluster of uses.”  Those matters bear some similarity to the language used in the LMDR Zone Code in respect of non-residential uses.  Local centres are also to minimise the impact on the “surrounding residential areas.”  Neighbourhood centres are also described using the phrase “small scale” similar to the purpose of non-residential uses in the purpose of the LMDR Zone Code, however the phrase is used in a specific context, of “small scale convenience or retail facilities” which are to meet the “daily convenience needs” of “surrounding walkable neighbourhoods.”
  2. [88]
    The language used in the LMDR Zone Code does not mirror either the language used in Local Centres or Neighbourhood Centres, such that it could be concluded that either centre is specifically contemplated as potentially being a centre within the LMDR Zone on the basis that the same phrases are used with respect to the same subject matter from which one would infer they bear the same meaning.[71]
  3. [89]
    Section 3.3.2.1(10) of CP 2016 does however specifically contemplate the establishment of new centres as part of the hierarchy of centres:

“New centres are only established where it is demonstrated that:

  1. (a)
    there is a need for the development;
  1. (b)
    the development is of a scale that is required to service the surrounding catchment;
  1. (c)
    the development is highly accessible within the catchment it serves and not located on the periphery;
  1. (d)
    the development does not compromise the character and amenity of adjoining premises and surrounding areas.”
  1. [90]
    The new centres are not zone specific, nor expressly limited to any particular type of a centre.
  2. [91]
    The Strategic Framework applies to CP 2016 and has primacy.  It sets out “the policy direction for the planning scheme and forms the basis for ensuring appropriate development occurs within the planning scheme area for the life of the planning scheme.”
  3. [92]
    It includes a provision in relation to residential areas which supports the fact that some sort of centre could be established within the residential area in the nature of the centres to which the hierarchy of centres applies, providing that:

“3.3.5.1 Specific outcomes

…

  1. (3)
    Residential areas are used for residential purposes. Non-residential uses are provided where they are appropriate, support the local community, do not detract from the residential amenity of the area or compromise the role and successful function of centres within the hierarchy of centres.”
  1. [93]
    The Fabcot Site falls within the Smithfield Local Plan Code area being at the northern point of the boundary.  The purpose of the Smithfield Local Plan set out in s 7.2.8.3(1):

“…to facilitate development that contributes to an integrated community consisting of existing and transitioning residential neighbourhoods, a consolidated Major centre, new mixed use development and new employment nodes and the growth and integration of the James Cook University with the wider community.”

  1. [94]
    Under the Smithfield Local Plan there are four defined precincts – The Smithfield Major Centre (Precinct 1), James Cook University (Precinct 2), Future Employment, which includes the Future mixed use area (3a) and Future retail and commercial area (3b), and Residential Uses (Precinct 4).
  2. [95]
    The Fabcot Site is not within any of the defined precincts.  General provisions for assessable development under the Smithfield Local Plan would however apply to any proposed development of the Fabcot Site.[72]  Fabcot contends however that it is free of the constraints otherwise imposed on residential areas, such as those found in Precinct 4, which provides that non-residential development “establishes at a scale consistent with a Neighbourhood centre.”  Both Dexus and TPI however contend that the terms of the Smithfield Local Plan support the construction they contend should have been adopted by his Honour of “local,” and that the provision for non-residential use in the LMDR Zone Code does not contemplate development of the scale proposed by Fabcot.
  3. [96]
    Under the Smithfield Local Plan, the Smithfield major centre consists of two sub-precincts: the Smithfield Shopping Centre and employment (s 7.2.8.3(3)(a)).  Smithfield Shopping Centre is one of the designated major centres in the Strategic Framework of CP 2016.  The Smithfield Shopping Centre is to remain the dominant retail centre for the Cairns Northern Beaches under s 7.2.8.3(3)(c).  According to s 7.2.8.3.2(a), one of the overall outcomes to achieve the purpose of the Smithfield Local Plan code is that “the structure of the Smithfield local plan establishes a pattern of activity and an economy, based on two key nodes being the James Cook University at the north and the Smithfield Major centre to the South.”  The position of the Smithfield Shopping Centre as the “dominant focus of retail opportunities for the Cairns Northern Beaches” is expressly stated in the extrinsic evidence set out in s 7.2.8.2.
  4. [97]
    Both the applicants and the respondents seek to rely upon s 7.2.8.2 of the Smithfield Local Plan, which is stated to be extrinsic material intended to assist in the interpretation of the Smithfield Local Plan.  Extrinsic evidence is relevant under s 14B of the Acts Interpretation Act 1954 (Qld) as modified by s 15 of the Statutory Instruments Act 1992 (Qld) if it is capable of assisting in the interpretation, if the provision is ambiguous or obscure, or the ordinary meaning of the provision leads to a result that is manifestly absurd or unreasonable and the extrinsic material provides for an interpretation that avoids such a result, or to confirm the interpretation conveyed by the ordinary meaning of the provision.  Extrinsic evidence is also relevant to the context of the provision insofar as it indicates the purpose of the Smithfield Local Plan.[73]
  5. [98]
    Dexus contends that the first paragraph of s 7.2.8.2 supports the fact that the Cairns Northern Beaches was not intended to extend beyond Reed Road, and therefore does not include the area where the Fabcot Site is located in terms of economic activity.  However, what is described as being limited to the area up until Reed Road is a community of interest said to be established by the Smithfield Local Plan, which forms “part of a greater community commonly known as the Cairns Northern Beaches.”
  6. [99]
    Dexus also seeks to draw further support for the limitations on new centres based on the Smithfield Local Plan from the fact that the first paragraph of the extrinsic evidence refers to the Smithfield Major Centre as providing “an activity and employment node for the daily and weekly needs of the Cairns Northern Beaches residents,” contending it is Major Centres, such as Smithfield Shopping Centre, which are intended to cater for the weekly needs of the residences encapsulated by the Smithfield Local Plan.  Given Local Centres are to expressly provide for daily and weekly needs, the words used in the Strategic Framework do not support a contention that the legislative intention of CP 2016 was that Smithfield Shopping Centre was the only centre which was to provide for the daily and weekly needs of the Cairns Northern Beaches residents.  Clearly Local Centres would not contain higher order retail, such as department stores, which were provided for in Major Centres under the hierarchy of centres.
  7. [100]
    Section 7.2.8.2 states that “The Smithfield shopping centre remains the dominant focus of retail opportunities for the Cairns Northern Beaches.  Small scale and boutique retail markets may be established elsewhere to support local communities and tourist markets, although it is anticipated that these do not occur in significant shopping centre developments.”  That suggests that the businesses contemplated are not large retail outlets such as a full line supermarket.  The Smithfield Local Plan does not however exclude the possibility of other centres being established, given the reference to “anticipated.”
  8. [101]
    Fabcot points out that there is a reference to a variety of centres within the community, which is said to support the fact that it is contemplated there will be centres within the hierarchy of centres other than the Smithfield Major Centre providing retail.  That is given some support by referring to examples such as “child care centres, small-scale convenience, business and café style developments” which arguably extend to small cluster uses within Local Centres.
  9. [102]
    The only specific reference to the Fabcot Site in s 7.2.8.2 is to “mixed residential densities” extending north to Trinity Beach Road where the Fabcot Site is located.  The extrinsic evidence states that “(w)hile (sic) development approvals may exist in these areas, an opportunity exists to review these development outcomes and establish a community form that has greater significance in the Smithfield area…..Within Low medium density residential zoned areas non-residential uses are established where they serve the local community and do not detract from the residential amenity of the area.”  That does suggest that the purpose of the Smithfield Local Plan is intended to provide some flexibility in anticipation of growth in the future.  That is consistent with the fact that non-residential uses in the nature of one of the hierarchy of centres is contemplated by the LMDR Zone.
  10. [103]
    The extrinsic evidence provided in s 7.2.8.2 does not provide any great assistance in determining the meaning of “local community” but, consistent with the LMDR Zone Code, contemplates small scale retail being established.  However, it also supports an intention that the new centres may be established within the area of the Smithfield Local Plan beyond those in the defined precincts and Smithfield Shopping Centre.  It does not support the contention of TPI that because the Fabcot Site is not within the defined precincts that it is not intended to have Local or Neighbourhood centres established in the residential area where the Fabcot Site is located.
  11. [104]
    While the Smithfield Local Plan does not specifically provide for non-residential developments in the residential area where the Fabcot Site is located, it does not exclude the possibility of such development.  The primary judge found there was non-compliance with PO2 of the Smithfield Local Plan insofar as his Honour found the proposed development was not small scale.[74]  In that context, the reference to “small scale” was “retail, businesses and restaurants establish to support local communities,” rather than referring to “community” (emphasis added).
  12. [105]
    Dexus contends that PO1 (which his Honour found was satisfied by the Fabcot proposal, and which Dexus contends is the product of misinterpretation)[75] and AO1.1 of the Smithfield Local Plan of the criteria for assessable development are intended to protect Smithfield Shopping Centre.  PO1 requires that “Development achieves a consolidated, dominant retail centre on the existing Smithfield shopping centre site and ensures new and additional floor space for the sale and supply of retail goods and services develops in line with the need of the Cairns Northern Beaches communities to 2025”.  In the acceptable outcomes section, AO1.1 states “Development with a cumulative floor area of greater than 2,500m2 on any one or adjacent sites, outside Precinct 1 – Smithfield Major centre demonstrates an economic and community need for the development which will not compromise the effect or function of the Smithfield shopping centre site.”  Dexus contends AO1.1 is referring to sub-precinct 3b.  The difficulty with Dexus’ argument is that AO1.1 and PO1 apply generally to all land within the Smithfield Local Plan, rather than being confined to particular precincts or areas other than the precinct.  Further, both AO1.1 and PO1 explicitly make provision for the protection of the Smithfield Shopping Centre.  That interpretation does not undermine the purpose set out in s 7.2.8.3, as submitted by Dexus.
  13. [106]
    The Criteria for Assessable Development in s 7.2.8.4 does appear to contemplate new centres in the Smithfield Local Plan area, including a development with a cumulative floor area of greater than 2,500 square metres in AO1.1.  The terms of AO1.1 do not support Dexus’ contention that it is referring to sub-precinct 3b and not to any other area in the Smithfield Local Plan.  The language used in AO1.1 is not constrained so as to indicate it is directed to sub-precinct 3b.  Further, such an interpretation is not supported by the inclusion of such a provision in the general criteria when there are express criteria for assessment for sub-precinct 3b in which it is not included.  This is also consistent with s 7.2.8.3(2)(b) of the Smithfield Local Plan which provides for the purpose of the code to be achieved by, amongst other things, an outcome which provides “economic and employment activity, supports local communities and activity and strengthens self-containment in the suburbs of the Cairns Northern Beaches” (emphasis added).  The Fabcot Site is centrally located within the Northern Beaches.
  14. [107]
    Dexus contends that PO2 of the Smithfield Local Plan is consistent with the provisions in the LMDR Zone Code providing for a performance outcome of “small scale retail… to support local communities where they are within a walking distance or catchment of predominantly residential neighbourhoods…”  However, it refers the “local communities” in the context of “small scale” not a “local community”.  That is consistent with the reference to small scale and boutique retail markets being established “elsewhere” to support local communities in s 7.2.8.2.
  15. [108]
    The primary judge found that PO2 was not satisfied as the development was not small scale.
  16. [109]
    AO2.1 provides for land uses in residential areas, other than for residential activities, “have less than 250m2 total gross floor area…”  Both Dexus and TPI also seek to rely on the area of 250 square metres to give meaning to “small scale” as demonstrating a shopping centre of the scale proposed by Fabcot is not contemplated by CP 2016.  Fabcot accepts the reference to 250 square metres does give an indication of what may be “small scale” but states that it does not establish any benchmark as to what is small scale.
  17. [110]
    While acceptable outcomes in a planning scheme may be relevant in ascertaining the legislative intention of a planning scheme in a particular area,[76] it depends on the terms of the provision itself.  In the present case, AO2 does not serve as a benchmark as to what is meant by “small scale” in the LMDR Zone Code or PO2, given it is not mandatory to comply with its terms.  Compliance under CP 2016 is satisfied by either the performance outcome or acceptable outcome, but does not have to comply with both.[77]  This is also supported by the fact that AO1.1 contemplates that there can be a cumulative area of greater than 2500 square metres.  While PO2 and AO2 apply to development of non-residential uses in the Smithfield Local Plan, which includes the Fabcot Site, unlike Precinct 4, which is also residential, non-residential uses are not prescribed to be “at a scale consistent with a neighbourhood centre.”[78]  Consistent with AO1.1, the absence of such a constraint gives additional support to the fact that there is no intention in CP 2016 that centres are not to be established in the Residential area where the Fabcot site is located which are of the scale of Local centres providing for weekly needs of the local community.
  18. [111]
    Although the Local Centre Zone Code does not apply to the Fabcot site, Fabcot contends it is relevant in ascertaining the legislative intention given what is proposed would be a “Local centre.”  I accept that it has relevance to the construction of the relevant terms insofar as it is part of CP 2016, given the stated purpose in s 6.2.7.2 and that regard must be had to the planning scheme as a whole.  Caution needs to be exercised, however where the same or similar words are used in a different context.
  19. [112]
    Relevantly, s 6.2.7.2 of the Local Centre Zone Code states that:

“(1) The purpose of the Local centre zone code is to provide for a limited range of retail, commercial and community activities to service local needs.

It includes local shopping…..where it can integrate and enhance the fabric of the centre.

  1. (2)
    The local government purpose of the code is to ensure development is consistent with the identified role and function of Local centres within the hierarchy of centres.
  1. (3)
    The purpose of the code will be achieved through the following outcomes:
  1. (a)
    a small range of uses including retail, business, cafes and dining, and community activities are provided that are focussed on the daily and weekly shopping and service needs of their surrounding local community; Showrooms, department stores and other large floor space land uses, other than supermarkets, are not located in Local centres.” (underlining added)
  1. [113]
    Fabcot emphasises that supermarkets are not excluded, notwithstanding other large floor spaces are excluded from being located in such centres, and Local Centres in the Strategic Framework should similarly be read as permitting supermarkets but not other large floor spaces, notwithstanding it is not expressly included in s 3.3.2.1(d).
  2. [114]
    Dexus, however, emphasises that the purpose in s 6.2.7.2 is consistent with the provisions in the LMDR Zone Code with respect to non-residential uses.  It further submits that the performance outcomes and acceptable outcomes PO6 and AO6.1 in the Local Centre Zone Code reinforces the fact that the Fabcot development is of a scale proposed that still exceeds that which is contemplated within the meaning of a Local centre.  PO6 states that the development reinforces the role and function of Local centres within the hierarchy of centres while AO6.1 states that the development for a shop or single tenancy within a shopping centre, excluding a supermarket, does not exceed 200 square metres GFA.  AO6.2 refers to “Showrooms or department stores are not established in the Local centre zone.”  AO6.1 is however referring to an individual tenancy not the Local Centre as a whole.
  3. [115]
    In my view although Fabcot and the Council put forward persuasive arguments, “local residents” and “local community” in the LMDR Zone Code should be construed consistently with how they are used in the LMDR Zone Code, having regard to the fact that the stated purpose is to provide for “small scale services and facilities that cater for local residents.”  Although “small scale” is used only in the context of the extension in PO4 of the LMDR Zone Code, PO3 of the LMDR Zone Code requires a development to be consistent with the purpose and overall outcomes.  Construing the meaning of “local community” to be comparable to non-residential uses of a small scale is consistent with and supported by:
    1. (a)
      PO4 of the LMDR Zone Code providing for “non-residential uses that serve the local community” including “providing for the identified convenience needs of the local community” (emphasis added);
    2. (b)
      PO4 of the LMDR Zone Code contemplates non-residential uses being established in more than one area given the reference to “locations”;
    3. (c)
      PO2 in the Smithfield Local Plan which refers to “small scale retail, business and restaurants establish (sic) to support local communities where they are within a walking distance or catchment of predominantly residential neighbourhoods”;
    4. (d)
      the extrinsic evidence in s 7.2.8.2 which supports the fact that the Smithfield Local Plan is to provide for two anchors in the Smithfield local area to achieve its stated purpose but otherwise “Small scale and boutique retail markets may be established elsewhere to support local communities and tourist markets, although it is anticipated that these do not occur in significant shopping centre developments”;
    5. (e)
      while Local Centres refers to “local community,” the relevant provisions refer to “small cluster” of uses as opposed to scale and “small scale of uses”, the former referring to the nature of uses as opposed to size of the  non-residential use which is relevant to scale, indicating “local community” is to be interpreted differently to the LMDR Zone Code; and
    6. (f)
      the reference to not compromising the hierarchy of centres can be read consistently as a reference to either a neighbourhood centres insofar as it refers to small scale convenience shopping or Local centres which refers to a small cluster of uses serving not just weekly needs but daily needs of  the surrounding local community.
  4. [116]
    However, while the meaning of “local residents” or “local community” must still be consistent with the reference to “small scale,” it is not confined to a part of a suburb or even a single suburb.  The fact that a shop is “small scale” does not mean it necessarily may only serve people in a particular suburb depending upon the speciality of the shop concerned.  Thus it may serve people beyond the immediate suburb in which the shop is located to an adjacent or surrounding suburb, which supports the fact that “local community” or “local residents” has a broader meaning.  The reference to “small scale” development in PO4 of the LMDR Zone Code contemplates the establishing of centres within the meaning of the hierarchy and is not defined by a 250 square metre benchmark.  That is consistent with PO2 in the Smithfield Local Plan which provides for “small-scale retail, businesses, and restaurants” to support “local communities.”
  5. [117]
    In the present case however the size of the proposed Fabcot development, particularly the supermarket, and its PTA extends beyond what could be regarded as serving the “local community” within the meaning of the LMDR Zone Code given the large scale of the development.  That is different from what is contemplated by a Local Centre which contemplates uses which can meet the daily and weekly shopping and service needs of their surrounding local community which suggests, at least in relation to retail, something larger than small scale non-residential uses.  The primary trade area identified as being served by the proposed development spans two suburbs or part thereof with an estimated population in 2022 of 13,130.  There was evidence accepted by the primary judge that the Fabcot shopping centre would be centrally located to serve an estimated 8,000-10,000 people located outside a radius of three kilometres from other shopping centres.[79]
  6. [118]
    The definition adopted by the primary judge adopted the area that would be primarily be met by a full line supermarket which could meet weekly shopping needs by reference to Local centres in the Strategic Framework rather than examining the scope of “local community” in the context of the LMDR Zone Code.  In doing so the primary judge asked the wrong question by reference to the provision for the Local centres assuming the meaning of “local community” was the same as when it was used in the LMDR Zone Code.  In doing so, his Honour adopted a meaning of “local community” consistent with meeting weekly needs of a local community rather than commensurate with “small scale” development.
  7. [119]
    The use of such general words such as “local residents” and “local community” made the task before his Honour a difficult one, particularly when the same phrase is used in different contexts in other provisions.  While his Honour noted “local” is a flexible concept, his Honour erred insofar as his Honour acted upon the basis that the PTA defined the area which was a “local community” or “local residents,” in relation to the LMDR Zone and did not have sufficient regard to the reference to “small scale,” used in connection with catering for the needs of local residents.
  8. [120]
    TPI contends that the non-compliance with the LMDR Zone Code, insofar as the Fabcot development was not small scale and did not service “local residents,” resulted in an error in addressing the requirements of s 45(5) of the Planning Act and departed from the principles established by the Court of Appeal in the cases referred to as the Trilogy.  This is addressed further below.
  9. [121]
    Dexus contends that as a result of his Honour erring in failing to determine that the proposed development did not comply with the requirement that it serve the local community, his Honour proceeded to apply s 3.3.2.1(10).

Construction of s 3.3.2.1(10) of the Planning Scheme

Contentions

  1. [122]
    As part of its contentions in relation to oversized development errors referred to above, Dexus contends that while that s 3.3.2.1(10) can apply to any land in any zone in any part of the local area and is not centre specific s 3.3.2.1(10) needs to be construed by reference to other provisions of CP 2016 that are zone specific, and centre type specific.
  2. [123]
    Dexus also contends that the omission in s 3.3.2.1(10) of a provision which seeks to ensure that a centre does not compromise the role and successful function of other centres within the hierarchy, such as found in other provisions in CP 2016 particularly the Strategic Framework  is the result of poor drafting and should be implied by the Court.  In that respect, it referred to the CP 2016 policy on “Centres and Centre activities” where paragraph 2(1)(b) provided that development involving the establishment of a new centre is only established where it is established that the proposed development “does not compromise the role and successful function of the hierarchy of centres within the region,” as supporting the fact that there had been such an omission.  In addition, it points to the various codes which contained a similar provision.
  3. [124]
    Dexus contends that in construing s 3.3.2.1(10), it is unlikely to extend to a principal or major centre given the structure of a hierarchy and regard has to be had to provisions in CP 2016 show that it is intended that the Smithfield Shopping Centre will be “vibrant, engaging and active” and that there be consolidation within existing centres relying in particular on s 3.3.2.1(3) and (7).  It further contends there was no warrant in any language in CP 2016 for regarding sub-paragraph 10 as authorising approval of any new centre on the basis of economic evidence, and that the primary judge treated the proposal as constituting a new “Local centre” in the hierarchy in CP 2016 and failed to recognise that CP 2016 did not expressly contemplate full line supermarkets in local centres.
  4. [125]
    TPI submitted a different approach applied in relation to the construction of subparagraph 10.  It submitted that the primary judge misinterpreted subparagraph 10 because the provision did not authorise new centres to be established in locations which were inconsistent with the intent of CP 2016.  As a matter of interpretation, TPI contends that it serves as a limitation or prequalification on the establishment of new centres, which is supported by the word “only” in the chapeau of s 3.3.2.1(10).  His Honour erred insofar as TPI contends that his Honour allowed s 3.3.2.1(10) to be leveraged against the scheme provisions with respect to sub-precinct 3b and the provisions protecting the hierarchy of centres in favour of out of centre development.
  5. [126]
    TPI however contends that as a matter of interpretation, any new centre established must necessarily become one of the centres which are identified in CP 2016, such that if one passes through the “gateway” contained in s 3.3.2.1(10) for establishing a new centre, the centre has to then satisfy the criteria or indicia of one of the specific centres set out in s 3.3.2.1(2).  Thus, it contends it is not an omission that s 3.3.2.1(10) does not to refer to the hierarchy of centres, but rather s 3.3.2.1(10) is a precondition to moving into one of those categories which provide for a hierarchy of centres.  TPI contends that this is supported by the fact that there are no other descriptions of a centre, other than the centres which are identified in the hierarchy in CP 2016.  Dexus adopts TPI’s construction in the alternative.
  6. [127]
    Fabcot submits that the Fabcot proposal would constitute a new Local Centre, and that was accepted by the primary judge.  It contends that the provision for any proposed development not to compromise the hierarchy of centres was provided for in the various zone codes which applied to the Fabcot proposed development.  It contends that there is also protection for existing centres in s 3.3.2.1(7) when a new centre is proposed on the basis that if a new centre is proposed, it would necessarily involve the development of centre activities.  As such, the new centre is required to comply with s 3.3.2.1(7), which incorporates the fact that development of centre activities are not to compromise the existing and ongoing hierarchy of centres by either competing with and compromising the economic viability of centres, or adversely affecting the achievement of consolidated centres.  Counsel for Fabcot conceded that the interpretation proposed by TPI is open, but contended it was unnecessary because, in the present case, the LMDR Zone Code provided for the protection of the hierarchy of centres in PO4.  Fabcot contends that, in any event, it does not matter, as the primary judge considered the effect of the proposed development on the hierarchy of centres on the basis that it was a relevant consideration.
  7. [128]
    The Council similarly submitted that the hierarchy of centres would apply to a new centre because s 3.3.2.1(7) would apply, given it applies to the development for centre activities.[80]
  8. [129]
    The Council accepted the submission of Dexus that s 3.3.2.1(10) needs to be read with other provisions in CP 2016 that are zone specific and that are centre type specific.[81]  However, it contends that the primary judge did not apply s 3.3.2.1(10) in isolation, but considered the full spectrum of need and whether the proposed development would compromise the existing and ongoing hierarchy of centres.

Consideration

  1. [130]
    I will deal first with the argument that the Court should imply in s 3.3.2.1(10) a provision requiring the new centre not to compromise the role and successful function of other centres.
  2. [131]
    The majority of the High Court in Taylor v Owners-Strata Plan No 11564,[82] stated that purposive construction may allow a reading of a provision as if it contained additional words.  However, the Court emphasised that whether a court would be justified in doing so is a matter of degree.  The majority stated that the judgment was readily answered in favour of additional or omitted words in the case of simple grammatical drafting errors which, if uncorrected, would defeat the object of the provision.  That was not the case, however, with respect to a construction that fills “gaps disclosed in legislation,” or makes an insertion which is too big or is too varied when compared with the language in fact used by the legislature.  The implication of a provision in effect mirroring that found in respect of a specific centre which provides that the centre is not to compromise the role and successful function of other centres within the hierarchy of centres falls within the latter category.
  3. [132]
    While the Policy for Centre and Centre Activities in CP 2016 suggests that Parliament intended to include the provision as to centre hierarchy in s 3.3.2.1(10), it may equally be explained by the fact that the centre hierarchy is included in each of the zone codes.
  4. [133]
    More relevantly, such an implication is not required on a proper reading of s 3.3.2.1 which makes it clear that its omission in s 3.3.2.1(10) is not the result of any inadvertence, but rather because it was unnecessary on a proper construction of the strategic framework.
  5. [134]
    TPI’s contention as to the construction of s 3.3.2.1(10) should be accepted as a correct one.  Section 3.3.2.1(10) should be read in context with the other provisions in CP 2016.  There are no provisions which apply to “new centres.”  Other zone codes, such as the LMDR Zone Code, which contemplate the creation of a centre provide that any non-residential use under the LMDR Zone Code, pursuant to PO4, must not impact on the role or function of the hierarchy of centres within the region.  The hierarchy must refer to the hierarchy in s 3.3.2 of the Strategic Framework and to one of the centres within the hierarchy in order for the Strategic Framework to operate as intended.  Section 3.3.2.1(2) provides that for each of the different types of centres identified, the centre does not compromise the role and successful function of the centres higher in the hierarchy or at the same level but not for a centre below it in the hierarchy.  Thus, to be able to apply the hierarchy of centres, a centre must fall within one of the categories described in the hierarchy.  Therefore, to establish a new centre an applicant would have to satisfy the requirements in s 3.3.2.1(10) and the requirements for one of the centres in the hierarchy which is the subject of the application.  This is consistent with the fact that zone codes apply to the various centres identified in the hierarchy of centres in s 3.3.2.1, namely the Principal Centre, the Major Centres, the Local Centres and Neighbourhood Centres which are to ensure development is consistent with the identified role and function of the particular type of centre.  There is no code for new centres established under s 3.3.2.1(10).  The Centre design code also has a stated purpose of ensuring activities are amongst other things “developed to support community need and reinforce the hierarchy of centres” and ensure they meet design requirements.
  6. [135]
    The above construction is further supported by the fact that:
    1. (a)
      s 3.3.1 of the strategic outcomes of the Strategic Framework provides that the region grow and evolve in a way that maintains the hierarchy of centres;[83]
    2. (b)
      s 3.3.1(7) provides that development is located, designed and operated to ensure that any potential adverse or detrimental impacts are, in order of priority, avoided, mitigated or managed;
    3. (c)
      the CP 2016 policy for Centres and Centre Activities, which extends to applications for a new centre, and s 3.3.2.1(10) refers to the establishment of a new centre where the proposed development does not compromise the role and successful function of the hierarchy of centres within the region;[84] and
    4. (d)
      the criteria in s 3.3.2.1(10) differs from the criteria for each of the centres in s 3.3.2.1(2)(a)-(e) and are of a more general nature even though there is some overlap in the requirements.
  7. [136]
    The above construction accords with the overall purpose of CP 2016 to maintain the hierarchy of centres and has regard to CP 2016 as a whole, reading it in a harmonious way that achieves the purpose of CP 2016 and with s 3.3.1(7) of the Strategic Framework which provides for “development is located, designed and operated to ensure that any potential adverse impacts are in order of priority avoided, mitigated and managed.”
  8. [137]
    The contentions of Fabcot and the Council that provision is made for the protection of the centre hierarchy where there is a proposed new centre through s 3.3.2.1(7) is not without merit.  However, it is directed to “development of centre activities.”  Centre activities are defined and extend to a broad range of activities, although not to as broad a range of activities as the concentrations of activities identified in s 3.3.2.1(1).  It refers only to particular activities and does not refer to “new centres.”  This is in contrast to s 3.3.2.1(9) and s 3.3.2.1(10), both of which expressly refer to the development in new centres and the circumstance in which new centres are established.  The better view is that, given the difference in language used in s 3.3.2.1(7) and ss 3.3.2.1(9) and (10), s 3.3.2.1(7) was not intended to apply to new centres.
  9. [138]
    CP 2016 does provide for new centres to be established which satisfy the relevant criteria for centres in s 3.3.2.1, as outlined above, and any other specific provisions which apply to the proposed development.
  10. [139]
    However, the contention of Dexus that a centre of the scale proposed by Fabcot cannot be established within the LMDR Zone Code cannot be accepted.  The provisions of CP 2016 do not support an intention to include the possibility of a new centre which includes a supermarket as being a local centre being established in the LMDR Zone, if the proposal meets the preconditions of a Local Centre as well as a new centre (which I consider further below).  Notwithstanding the limited nature of development for non-residential uses provided for in the LMDR Zone Code, the new centre and local centre is not confined to any particular zone, nor is there any intention not to permit any development of a Local centre within the residential area where the Fabcot site is established under the Smithfield Local plan if the preconditions are satisfied including due to the existence of sub-precinct 3b.  Such a construction is consistent with the following:
    1. (a)
      The Strategic Framework applies to the whole of the area the subject of CP 2016 and prevails to the extent of any inconsistency with any of the Codes by the operation of s 1.5 of CP 2016;
    2. (b)
      Local Centres apply to non-residential development which serves the surrounding Local Community;
    3. (c)
      Any non-residential uses established in the LMDR Zone Code must not impact on the role and function of the hierarchy of centres within the region;
    4. (d)
      The reference to “anticipated” and “variety of centres” in the Smithfield Local Plan is consistent with providing for new centres to be established under s 3.3.2.1(10) if the preconditions are satisfied;
    5. (e)
      the general criteria for assessment in PO1/AO1.1 of the Smithfield Local Plan which contemplate a larger non-residential use area which is not only intended to apply to sub-precinct 3b;
    6. (f)
      the Strategic Framework, which in s 3.3.5.1(3), states that “Non-residential uses are provided where they are appropriate, support the local community…” also provides for such a development not to compromise the role and successful function of centres within the hierarchy of centres;
    7. (g)
      The Centre Design Code envisages new centre and centre activity development outside existing centre zones or the mixed use zone in PO3 and PO4;
    8. (h)
      There is no provision such as found in relation to precinct 4 which seeks to confine the nature of the centre or exclude centre development that may be provided in the residential area where the Fabcot site is located for non-residential uses; and
    9. (i)
      While local centres are not to include “Showrooms, department stores and other large floor space land uses,” a supermarket may be included given the uses include “retail” which meets weekly shopping needs of the surrounding local community.[85]  That is supported by the Local Centre Code and the fact that a full-line supermarket, is not excluded as is the case with neighbourhood centres albeit that a full line supermarket generally requires a larger floor space.[86]
  11. [140]
    The fact that the intention of s 3.3.2.1(10) is to provide for new Centres “out of centre” is also supported by the policy on Centres and Centre Activities which outlines information to be provided for new centres, and the acknowledgment that development may be inconsistent with other provisions.  Paragraph 2(2) states that:

“Where the development is inconsistent with the planning scheme, the assessment may form part of the basis for determining whether sufficient grounds exist to approve such a development.”

  1. [141]
    The specific acknowledgement that the proposed development may be inconsistent with CP 2016 in the policy supports the interpretation that the establishment of new centres pursuant to s 3.3.2.1(10) is not confined to existing zones for centres and may be included within the LMDR Zone Code even though it may conflict with other parts of CP 2016.  The above construction gives effect to the CP 2016 as a whole and the primary position of the Strategic Framework while protecting the hierarchy of centres.  The approach of Dexus fails to give effect to the clear legislative intention to include a provision for new centres without limiting it to any particular zone.
  2. [142]
    It is plain from the reasons of the primary judge that his Honour did consider the impact of the proposed development on the existing and ongoing hierarchy of centres, and whether it would compromise the existing and ongoing hierarchy of centres.  His Honour accepted the evidence of expert economists in concluding that the hierarchy would not be compromised, in relation to surrounding shopping centres.[87]  In that regard, his Honour stated that approval of the proposed development would maintain the hierarchy of centres as contemplated by s 3.3.2.1(2)(d) in the strategic framework, and that the proposed development would constitute a new Local centre in the hierarchy.[88]  His Honour also considered the reference to “local community” by reference to s 3.3.2.1(2)(d) in his reasons at [50] by reference to weekly shopping needs of local residents, albeit assuming the same meaning for “local community” when referred to in the LMDR Zone Code.  His Honour also considered the Centre Design Code and the impact sub-precinct 3b.
  3. [143]
    As is evident from the discussion above, I do not accept Fabcot’s argument that the reference to “local community” in the LMDR Zone Code bears the same meaning as “local community” in relation to Local Centres, which contemplates a larger section of the community.  However, his Honour did not approach the application of s 3.3.2.1(10) in isolation from other provisions in CP 2016 as contended by Dexus.
  4. [144]
    The Strategic Framework prevails over all other components to the extent of any inconsistency (see 1.5(1)).  His Honour appeared to consider that there was potentially a conflict between the strategic plan and the reference in the LMDR Zone Code to “small scale.”[89]  If the centre satisfies s 3.3.2.1(10), and the requirements for Local centres, Local Centres do permit non-residential development of the scale that provides for weekly shopping.  In the present case his Honour found that the Fabcot proposed development served the weekly needs of a local community within the PTA.  The provision as to new Centres in combination with Local Centres is not confined to small scale development.  Nor is the local community limited by the development only being small scale.  There is an inconsistency between the LMDR Zone Code and the Strategic Framework in the scale of development permitted for Local Centres which is permitted under CP 2016 given the inclusion of s 3.3.2.1(10).  That was the apparent basis of his Honour considering s 1.5 could apply and was not in error.
  5. [145]
    Notwithstanding the reference to s 1.5 his Honour however still found that “in any event” the proposal did not warrant refusal in the exercise of the Court’s discretion consistent with the approach his Honour earlier stated applied in considering s 45(5) and s 60 of the Planning Act.  The extent of any non-compliance with CP 2016 is to be considered in the exercise of the Court’s discretion as correctly identified by his Honour and which is discussed further below.
  6. [146]
    However as stated above, his Honour erred insofar as his Honour considered that the only extent of non-compliance was limited to the Fabcot proposal not being small scale and not the non-compliance with PO4 insofar as it was not limited to serving the needs of the local community.

Sub-Precinct 3b and Planning Need/Wrong Location errors

  1. [147]
    An overview of the contentions of TPI and Dexus has been outlined above.  TPI submits that his Honour erred in failing to take account or give effect to provisions in CP 2016 which provided for sub-precinct 3b to have a distinct and preferred position under CP 2016 for the development of a shopping centre borne out by s 7.2.8.3(5)(f) of the Smithfield Local Plan, and PO13(a) of the Smithfield Local Plan.  That is said to be further supported by the Shopping Centre of less than 5,000 square metres being code assessable.  It contends that the finding by his Honour that the proposed development would not unacceptably impact on the role, function and economic viability of sub-precinct 3b in the Smithfield Local Plan failed to accurately identify the specific plan, role and function of sub-precinct 3b in the Smithfield Local Plan.  It contends that upon a proper construction of CP 2016, sub-precinct 3b should, by implication, have been found to have been part of the hierarchy of centres, or at least a location where CP 2016 intended or planned for a shopping centre less than 5,000 square metres total gross area, including a supermarket, to be located in the Northern Beaches area.  It contends that if the TPI application for a shopping centre in sub-precinct 3b was approved, that approval would constitute a centre development.  It further contends that the reference to “need” in s 3.3.2.1(10) is a reference to town planning need.  That concept of planning need is that there is an unsatisfied demand which is not able to be met adequately or at all by CP 2016 in its present form.
  2. [148]
    TPI contends that the provisions applicable to sub-precinct 3b demonstrate a legislative intention that under CP 2016, particularly the Smithfield Local Plan, sub-precinct 3b is intended to have the function of a centre and form part of the retail and centre activities in the network in the Northern Beaches area and meet any planning need for a Shopping Centre which includes a supermarket.  In contrast the Fabcot Site was assigned no higher purpose under CP 2016.
  3. [149]
    Under CP 2016, local plans provide for localised planning responses and development outcomes for discrete areas.[90]  TPI also places some importance on the Regional Plan as supporting its contention that sub-precinct 3b was to be the primary site for a supermarket and other business activities.  The Regional Plan prevails over a planning scheme to the extent of any inconsistency.  The Regional Plan recognised that in relation to the James Cook University (“JCU”), there are opportunities in the future for “additional centre activities,” a technology park at JCU and additional industrial land.  While the Regional Plan prevails over CP 2016 to the extent of any inconsistency, no apparent inconsistency is identified and, in terms of context, it adds little  to the  terms of CP 2016 itself, particularly given the lapse in time between the Regional Plan and CP 2016 and that the reference is contained in Part D.[91]  It is of no real relevance in resolving the proper construction of the provisions in respect of sub-precinct 3b in the context of the question of the planning need or the relationship with a new centre.
  4. [150]
    Dexus also contends that the primary judge erred in dismissing sub-precinct 3b as an obstacle in the path of the approval of the Fabcot application in what are described as the wrong location errors.  These errors have been referred to above and do not differ in any significant way from the contentions of TPI.
  5. [151]
    Fabcot and the Council contend that the primary judge did not err in finding there was a planning need for the new centre notwithstanding the inclusion of sub-precinct 3b in CP 2016.  They contend his Honour’s approach was consistent with the fact that provision is made in sub-precinct 3b for uses other than shopping and that it is not part of the identified hierarchy of centres.  According to the Mixed Use Zone Code the predominant land use was to be commercial.[92]  Under the Smithfield Local Plan it was to have a mix of uses focussed on centre activities and mixed use developments.  The definition of “centre activities” provides for a broad range of activities including a shopping centre.  While a shopping centre will often contain a supermarket, it is a broadly defined use and does not necessarily have to contain a supermarket, as is borne out by the definition of “Shopping centre.”[93]

Consideration

  1. [152]
    Sub-precinct 3b is part of the Mixed Use Zone and within the Smithfield Local Plan.  The Smithfield Local Plan states that sub-precinct 3b is to be a future retail and commercial area with development establishing a structured plan allowing for a mix of uses, focused on centre activities and mixed use activities as part of its purpose.  That is supported by the criteria for assessment in relation to sub-precinct 3b, which provides a performance outcome in similar terms to the purpose, but which refers to it establishing “a structure plan allowing for a mix of uses, focussed on shopping, showrooms, low-scale industry and commercial activities,” (emphasis added).[94]  Sub-precinct 3b is in a Mixed Use Zone and subject to the Mixed Uses Zone Code, although the Smithfield Local Plan prevails over the Mixed Uses Zone Code.  Under the Mixed Uses Zone Code, the purpose is stated to be to provide for a “mix of activities that may include business, retail, residential, tourist accommodation and associated services, service industry and low impact industrial uses.”[95]  Section 6.2.14.2(2) states that the local government purpose of the code is to recognise the presence of areas of mixed land use outside the hierarchy of centres that contain a wide variety of uses.  However, s 6.2.14.2, which states how the purpose will be achieved through overall outcomes, states that the development in the mixed use zone does not compromise the role and successful function of centres within the hierarchy of centres.[96]  The overall outcome sought for the sub-precinct 3b under the Mixed Use Zone Code is stated to include “development within the precinct provides a mix of land uses where the predominant land use is for commercial purposes,”[97] and that “medium density residential and short term accommodation uses are provided in a mixed use setting involving commercial or retail uses on the lower and ground floor storeys.”[98]  The TPI site was designated Precinct 1 of the Mixed Use Zone Code, but sub-precinct 3b under the Smithfield Local Plan Code.  The latter prevails to the extent of any inconsistency.
  2. [153]
    The use of Sub-precinct 3b for future retail use is supported by the outcomes in the Smithfield Local Plan for sub-precinct 3b (s 7.2.8.3(5) and PO13(a)), which refer to a structure plan allowing for a mix of uses focused on shopping, showrooms, low-scale industry and commercial activities.  The table of assessment in respect of sub-precinct 3b provides that a shopping centre of less than 5,000 square metres is code assessable.  This is in contrast to the position of other shopping centres, which are impact assessable if greater than 500 square metres in the mixed use zone.
  3. [154]
    The fact that sub-precinct 3b provides for “centre activities” and the table of assessment provided for a shopping centre of less than 5,000 square metres to be code assessable was a relevant consideration in determining Fabcot’s application which was taken into account by the primary judge.  Given that it provides for a shopping centre, which could include a supermarket, to be established within sub-precinct 3b, it was relevant to the consideration of planning need.  The inclusion of a supermarket of greater than 500 square metres however was impact assessable as is evident from the Table of Assessment for “shop.”  TPI contends that the provision for the shop being impact assessable does not apply in the face of the specific provision for the shopping centre to be code assessable.  However, as Fabcot points out the Tables of Assessment do not delete the mixed use zone code as applicable to the assessment of sub-precinct 3b.  That does not however need to be decided for the purpose of this decision insofar as while a supermarket could be included in the proposed shopping centre it is not designated as being used for a supermarket given the range of uses which could be included.
  4. [155]
    While TPI contends that sub-precinct 3b effectively has the function of a centre, and forms part of the retail and centre activities network, that is contrary to the express terms of CP 2016.  Further, sub-precinct 3b may be used for a shopping centre, which could include a full line supermarket, however it need not be.
  5. [156]
    The primary judge did consider sub-precinct 3b in his Honour’s reasons, including by reference to its purpose and provided outcomes under the Mixed Use Zone Code and the Smithfield Local Plan and the reference to a shopping centre of not greater than 5,000 square metres being code assessable.  His Honour also considered the provision for a shopping centre in the context of meeting a pressing need.[99]
  6. [157]
    There is no contention that his Honour did not outline the correct test as to “need” or that the primary judge did not correctly consider it was a requirement of s 13.3.2.1(10).  Dexus had contended however that his Honour only referred his consideration to “economic need.”  That is incorrect as the experts referred to had identified as relevant the planning need, economic need and community need, which were accepted by his Honour.[100]
  7. [158]
    The fact that there was provision that a shopping centre in sub-precinct 3b be code assessable does not dictate that the primary judge should have concluded that there was an unsatisfied demand which could not be met adequately, or at all, by CP 2016 in its present form due to the provisions made with respect to sub-precinct 3b.[101]  There are advantages in the shopping centre being code assessable under CP 2016 however its status was considered by the primary judge.  The fact that the primary judge considered that the requirements for code assessable developments can be onerous was however based on the requests for information from TPI made by the Council.  This was a finding of fact, and could be taken into account as a relevant matter, and does not demonstrate legal error.  His Honour was clearly aware of the distinction between a development being code assessable as opposed to impact assessable.
  8. [159]
    However, the question of planning need must focus on the provisions in CP 2016 and whether it provides for the unmet need to be satisfied or adequately satisfied.[102]  It has however been observed that unless there is an economic need for a shopping centre, there will be no planning need.[103]  Thus the reference to economic need having been identified did not indicate error in circumstances where his Honour proceeded to find a planning need.  While the provision for a code assessable shopping centre shows a preference for a shopping centre of considerable size which could include a supermarket, under CP 2016 that does not lead to a conclusion that it would meet any unmet demand.  That use was a distinct possibility which would be facilitated under CP 2016, however it was only one of the possibilities provided for under the Smithfield Local Plan.  Sub-precinct 3b was not limited to shopping.  His Honour had identified the correct test for the planning need.  His Honour had the benefit of expert opinion which considered the community need, economic need and planning need.
  9. [160]
    The primary judge had considered the statements of McMurdo JA in Redland City Council v King of Gifts (Qld) Pty Ltd,[104] as to whether there was a need for the development in a location where the planning scheme provided it should not occur.  While his Honour noted the current legislative regime was less restrictive than that considered in Redland City Council v King of Gifts (Qld) Pty Ltd, his Honour also noted that CP 2016 made provision for new centres where there was, amongst other things, a need for the development.  In that context, his Honour had also had regard to s 7.2.8.3(5) and PO13 with respect to sub-precinct 3b.  Although not considered under the heading of “need,” his Honour’s consideration of “impacts on sub-precinct 3b” clearly extended to whether it could meet the planning need for a development in the nature of the Fabcot proposed development.  The reference to sub-precinct 3b by the primary judge not only referred to the Mixed Use Zone Code but the provisions relied upon by TPI including the fact that the shopping centre was code assessable.  There was no mischaracterisation of the provisions that applied.  Given the fact that CP 2016 did not require TPI to develop a shopping centre[105] but provided that it could be included as one of the uses for the land, it was relevant for his Honour to consider the TPI Application as well as the absence of a structure plan which was required for precinct 3b and has its own policy requirements.[106]  Although the consideration of need and impact by reference to sub-precinct 3b were somewhat conflated, it did not give rise to error.  The primary judge was not in error in finding there was a planning need as contemplated by s 3.3.2.1(10) for the new centre on the Fabcot site nor did his Honour’s approach allow s 3.3.2.1(10) of CP 2016 to be leveraged against other scheme provisions relating to the planned role and function of sub-precinct 3b for the purposes of an out of centre development.
  10. [161]
    The contention that the primary judge erred in not treating sub-precinct 3b as if it was a part of the hierarchy of centres cannot be sustained.  CP 2016 does not provide that it is part of the hierarchy of centres,[107] and the Mixed Use Zone provides it is outside the hierarchy of centres.  Further, it is contended that sub-precinct 3b is located amongst a cluster of other activities, including mixed use activities in sub-precinct 3a, the JCU in sub-precinct 2, future employment opportunities in sub-precinct 3, and residential communities in sub-precinct 4, such that it is to provide a focus for the local community in the mix of retail, commercial and community activities consistent with the rationale of a centre hierarchy strategy.  That might be so in relation  to the areas within the JCU precinct but  this does not lead to a conclusion that any shopping centre established in sub-precinct 3b should be treated as a centre within the centre hierarchy, when it is expressly provided it does to not form part of such a hierarchy.  If it was to be a centre it would have to satisfy the relevant provisions of CP 2016.
  11. [162]
    There are a variety of uses provided for in sub-precincts 2 – 4 under the Smithfield Local Plan.  Further, under s 7.2.8.2, the extrinsic evidence indicates, in terms of purpose, that the structure of the growth and activity will revolve around the growth of the JCU in the future business, local employment and opportunities for residential high densities along the McGregor Road corridor.  JCU and Smithfield Major Centre would form the two key activity nodes.  It does not, however, suggest that retail activity was to be a major focus around JCU.  This is consistent with the extrinsic evidence in s 7.2.8.2 which states inter alia that “Professional services, business and research aligned industries are encouraged to establish on and opposite the university.”  However, to the extent it was to be established the intent under the Smithfield Local Plan was that it would be established in sub-precinct 3b.  While TPI submit that there is a distinction to be drawn between the role and function of the Mixed Use Zone generally, as compared to the specific role and function of sub-precinct 3b, the points of distinction are not such that it should be treated as a “centre,” based on the fact that it could be developed as a shopping centre.  Nor are the predominant uses provided for precinct 3b necessarily in the nature of a shopping centre that would perform the role and function of a centre within the hierarchy of centres within the region.  While Dexus and TPI sought to emphasise the reference to one of the uses for sub-precinct 3b being shopping in the Smithfield Local Plan, it is only part of the mix of uses provided for development in sub-precinct 3b.  The primary judge’s reference to a broad range of uses is consistent with the uses provided in relation to sub-precinct 3b is consistent with the uses provided in relation to sub-precinct 3b, particularly when account is taken of the broad definition of “centre activities”.
  12. [163]
    Nor is there any inconsistency[108] between the Mixed Use Zone which provides that development is outside of the hierarchy of centres and the provision of uses provided for in sub-precinct 3b providing for one of the uses to include a shopping centre which was code assessable such that it is to be implied a shopping centre in sub-precinct 3b would be protected by the centre hierarchy.  Given the constraint on development in precinct 4 to non-residential uses of a scale “consistent with a Neighbourhood centre”, the hierarchy of centres was a matter considered in the Smithfield Local Plan.
  13. [164]
    While it is true, as TPI contends, that the Fabcot Site is not within any of the defined precincts, the primary judge did not err in failing to find that it was not intended to provide the function of any of those precincts or sub-precincts including the retail and commercial function of sub-precinct 3b or conversely that sub-precinct 3b was intended to meet any planning need for a shopping centre to service the Fabcot residential area.  That contention is unsupported by the fact that the PO1 and AO1 apply to the Fabcot Site and the fact that the “new centres” in s 3.3.2.1(10) is not zone specific.  The defined precincts consisting of the Smithfield Major Centre and the area around JCU are consistent with the intention that they will form “two key activity nodes.”  However, the Smithfield Local Plan does not exclude new centres, at least in the nature of Local Centres or Neighbourhood centres, being established to the North, if the preconditions for a new centre and Local Centre were satisfied.  Further, while CP 2016 provided a shopping centre in sub-precinct 3b with some preferential treatment insofar as it was code assessable, given there was no obligation upon TPI to develop it as a shopping centre nor to include a supermarket in such a shopping centre, that does not support a specific intention under the CP 2016 that sub-precinct 3b was to serve as a shopping centre for the area of the precincts extending north to the residential area where the Fabcot site was located to satisfy any unmet planning need.  His Honour did not err in his Honour’s characterisation of sub-precinct 3b.
  14. [165]
    It follows from the above that the primary judge did not err in his Honour’s consideration of the importance of hierarchy of retail shopping centres in not considering sub-precinct 3b as outlined in Australian Capital Holdings Pty Ltd v Mackay City Council.[109]  Notably the present case is quite different from Australian Capital Holdings insofar as the inclusion of s 3.3.2.1(10) is a distinguishing feature from the restrictive provision considered in that case.[110]  Nor did his Honour err in not determining that sub-precinct 3b was a location where CP 2016 intended or planned for a shopping centre less than 5,000 square metres including a supermarket to locate in the Northern Beaches area.  Any proposed shopping centre could have included a supermarket but under CP 2016 it was only a possibility such that it would necessarily meet any planning need.  Given the presence of s 3.3.2.1(10) and the nature of sub-precinct 3b, the decision did not cut across the planning intentions of the scheme and intrude upon the integrity of sub-precinct 3b.
  15. [166]
    Finally, TPI and Dexus contend that the primary judge, by his Honour’s decision, determined to prefer the Fabcot Site over sub-precinct 3b.  It is a well-established principle that in considering an application, it is not the role of the Court to determine whether it is the better site over and above another site.
  16. [167]
    Given the nature of sub-precinct 3b, which provided for a mix of uses, it was relevant to consider the application by TPI, not just the provisions in CP 2016 with respect to sub-precinct 3b.  Any adverse impact upon sub-precinct 3b and its role, function and viability or prejudice to its future development required consideration of whether there was a competing use which was going to be impacted upon by the Fabcot proposal and whether it could meet any need for a shopping centre within the timeframe identified.  His Honour found it could not meet the pressing need he had identified.  Whether his Honour erred in making the evaluation in [57] of his Honour’s reasons is a matter to be considered in the context of the issue of predetermination.
  17. [168]
    Given that sub-precinct 3b contemplated the possibility of a shopping centre with a full line supermarket being established within the precinct, it was relevant, as the primary judge did, to have regard to the fact that there was in fact an application by TPI to develop the site to include a full line supermarket.  However, that exercise is limited to deciding the present application and did not permit deciding some wider question.[111]
  18. [169]
    In the primary judge’s reasons it is apparent that his Honour was conscious of not determining which was the better site, by reference to the cases referred to by his Honour.[112]  The terms of his Honour’s reasons do not reflect such a determination.  Dexus contends his Honour’s decision was analogous to a de facto rezoning such that it offended the principles referred to in Sheezel v Noosa City Council (“Sheezel’s Case”).[113]
  19. [170]
    In Sheezel’s Case, the question was whether the Council should be ordered to allow an application for rezoning by excluding land from the residential zone and including it in the residential “A Zone” to secure the construction of a multiple dwellings.  In identifying the factors for consideration in an application for rezoning, Carter DCJ identified five factors relevant to rezoning, which included “the availability or otherwise in the area of other land of the same zoning as that which is sought in respect of the subject site and which might be put to the proposed use.”[114]  His Honour refused the application on the basis that there was no lack of suitably zoned land for multiple dwellings.  His Honour was conscious to reject an argument which could have resulted in considering the effect on other land which had not been excluded from the decision to rezone land as residential, particularly where a question of spot zoning arose.  His Honour was cognisant that a decision to rezone the land would affect other land zoned as residential.  In those circumstances, his Honour considered it was not appropriate for the Court to deal with the rezoning in a way determinative of the wider question.  That is not the case in the present case under consideration.
  20. [171]
    In the present case, unlike the planning scheme considered in Sheezel’s Case, there is an express provision for the establishment of a new centre, on land that may not be otherwise zoned for it.
  21. [172]
    Sheezel’s Case was quite a different case from the present case involving a different planning regime.  The decision does not offend the principles considered in that case.

Consideration of Public Interest

  1. [173]
    Dexus and TPI particularly rely on the cases which are referred to as the “trilogy,” namely Bell v Brisbane City Council,[115] Gold Coast City Council v K & K (GC) Pty Ltd,[116] and Redland City Council v King of Gifts (Qld) Pty Ltd.[117]
  2. [174]
    TPI contends that the trilogy of cases held that, prima facie, CP 2016 must be accepted as a comprehensive expression of what will constitute the appropriate development of land in the public interest.  It submitted that 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 the site that does not give rise to the conflict.[118]  It further submits that merely to prove the existence of a need is insufficient.  It submits that unless there is a matter of public interest that overrides the public interest in maintaining a planning scheme, the need for a development should be met by a development on a site that does not give rise to a conflict.[119]  TPI referred to the statement by Sofronoff P in Gold Coast City Council v K & K (GC) Pty Ltd:[120]

“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 met by a development on a site that does not give rise to a conflict.”

  1. [175]
    TPI also directed the Court to the statements in Redland City Council v King of Gifts,[121] where the Court of Appeal emphasised that it was necessary to demonstrate that there is a need for the particular development on the particular location that the relevant planning scheme provided that it should not occur, as distinct from more generally in the area or part of the area governed by the planning scheme.[122]
  2. [176]
    It was submitted by TPI that, contrary to the position stated by the primary judge that the trilogy of cases were given in the context of the requirements of s 326(1)(b) of the Sustainable Planning Act 2009 (Qld) whereas the current legislative scheme under the Planning Act provided for an assessment process to be undertaken by the Court that is far less restrictive,[123] the Planning Act does not legislate a departure from principles stated in the trilogy of cases, which are said to have a long history in planning law jurisprudence.
  3. [177]
    Fabcot, however, contends that his Honour correctly considered that a planning scheme is accepted as expression of public interest, but s 45 and s 60 of the Planning Act changed the previous regime.  In that regard, it particularly relied upon the approach outlined in the decision of Ashvan Investments Unit Trust v Brisbane City Council.[124]
  4. [178]
    The decision of Ashvan Investments Unit Trust v Brisbane City Council, the trilogy and the approach to be adopted in light of s 60 of the Planning Act was recently considered by this Court in the decision of Abeleda v Brisbane City Council.[125]  Mullins JA provided the leading judgment.[126]  While the approach set out in the trilogy of cases still has relevance under the Planning Act particularly the fact, as stated by McMurdo JA,[127] that “a planning scheme must be accepted as a comprehensive expression of what will constitute in the public interest the appropriate development of land,”[128] in other respects the approach now to be adopted is quite different.  As her Honour carefully set out in her judgment, s 60(3) of the Planning Act no longer incorporates what was described as the two step test and it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved.[129]
  5. [179]
    For the reasons set out by Mullins JA set out in Abeleda,[130] the statements of Sofronoff P, Philippides JA and McMurdo JA and in the trilogy of cases referred to in paragraphs 20 and 21 of the submissions of TPI that it is necessary to demonstrate that it is in the public interest it is necessary to override the scheme as it applies to the land[131], no longer represent the approach to be adopted under s 45 and s 60 of the Planning Act.  As her Honour at [42] stated:

“…..The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.”

  1. [180]
    At [43], her Honour noted that in view of the fact that s 60(3) of the Planning Act reflects a deliberate departure on the part of the legislature from the two part test under s 326(1)(b) of the Sustainable Planning Act 2009 (Qld), it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved.[132]  The process adopted by a decision-maker may now be one which involves balancing a number of factors to which consideration was permitted under s 45(5) of the Planning Act in making a decision under s 60(3) of the Planning Act where the factors in favour of approval have to be balanced with the factors in favour of refusal of the application.  The weight that is given to each factor is a matter for the decision-maker.
  2. [181]
    Having analysed the trilogy of cases, Mullins JA at [51] pointed out the distinction from the decision-making process under s 60(3) of the Planning Act as opposed to that adopted in relation to s 326(1)(b) of the Sustainable Planning Act 2009 (Qld) as follows:[133]

“The focus in K & K and King of Gifts in respect of s 326(1)(b) of the SPA was whether the planning need for the proposed development overrode the planning scheme in relation to the development of that particular site. Under s 60(3) of the Act, the decision is made in respect of the development application for a particular site, but the parameters of the impact assessment undertaken by the decision-maker do not necessarily suggest that, where planning need is a relevant matter, the planning need must be limited to the need for the proposed development on that particular site only and no other site, rather than a planning need for that type of proposed development that would be appropriately satisfied by the development on that site. The weight to be given to the planning need may be greater if the evidence showed that the need would be satisfied only by the proposed development on the particular site. The process of decision-making provided for by the Act under s 45(5), s 59(2), s 59(3) and s 60(3) does not restrict planning need to the proposed development of the specific site in the manner discussed in Bell, K & K and King of Gifts for the purpose of s 326(1)(b) of the SPA, but the existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter.”

  1. [182]
    In analysing the decision of Ashvan, her Honour stated that, subject to the recognition that status of the Planning Act has not changed as the embodiment of the community interest, her Honour agreed with the observations of Williamson QC DCJ at [53]-[54] as to the approach with respect to non-compliance with a planning scheme in the exercise of planning discretion.  Having referred to the observations of McMurdo JA in Bell v Brisbane City Council in relation to a planning scheme being the embodiment of community interest, her Honour agreed with the observations of Williamson QC DCJ at [53] subject to the caveat to which I have referred.[134]  That passage was referred to by the primary judge in his Honour’s reasons.[135]
  2. [183]
    The primary judge’s approach as now provided for under s 45 and s 60 of the Planning Act, set out at [16]- [18] of his Honour’s reasons, was not in error.  In particular, the fact that there are non-compliances with CP 2016 in relation to the proposed development does not exclude it from being a matter that a decision-maker may determine should be approved, notwithstanding the points of departure in the exercise of  discretion.
  3. [184]
    However, given the finding above that his Honour erred in this consideration of the meaning of “local community” in the LMDR Zone Code, his Honour did not consider the relevant non-compliances of the assessment benchmarks in his Honour’s consideration.
  4. [185]
    For the reasons set out above the primary judge was not required to find a non-compliance with the planning scheme on the basis that any existing or imminent need for a supermarket could be met on the sub-precinct 3b site as contended by TPI.  Given that, there was not a failure to consider “whether the public interest would not be served by requiring that the land be developed (sic) according to the planning scheme” as contended by TPI, aside from the fact that the approach to consideration of public interest under the Planning Act provisions provides for the approach outlined above.
  5. [186]
    While Dexus did not seek to depart from the approach set out in the decision of Ashvan,[136] it contended that his Honour erred by not taking into account the fact that the TPI site was appropriately zoned and available to satisfy the planning need.  His Honour clearly did consider sub-precinct 3b in his Honour’s assessment of the planning need.  The primary judge also quite rightly noted that the consideration of the legislative scheme requires consideration of the fact that it also provides for the establishment of a new centre on the site, provided certain preconditions, including the need for development are met.  Even aside from the changes brought about by the Planning Act, the inclusion of s 3.3.2.1(10) is a further point of distinction from the position considered in the trilogy of cases.
  6. [187]
    Further for the reasons set out above, CP 2016 did not designate that sub-precinct 3b in the Smithfield Local Plan was the site for any future retail development in the nature of a shopping centre, although provision was made for that possibility.  Sub-precinct 3b did not prevent determination that there was an unmet planning need.
  7. [188]
    In that respect, Gold Coast City Council v K & K (GC) Pty Ltd supports the fact that consideration of public interest demonstrates that consideration of whether the Fabcot development was in the public interest was appropriate particularly where CP 2016 did not intend sub-precinct 3b to have the role and function of a centre and the provision for new centres:[137]

“It may be accepted that the need for a particular development in a particular place may constitute a matter of public interest because an identified section of the public has an interest in seeing that need satisfied by a development in the particular location. Whether that is so is a question for the decision maker to consider in the circumstances of the case.”

  1. [189]
    The submission by Dexus and TPI that the Fabcot application should not be considered until the question of how sub-precinct 3b is to be developed is resolved cannot be accepted, either on the basis that it necessarily met an unmet need, or having regard to the approach to be adopted under the Planning Act.

Assessment Planning Impact Errors

  1. [190]
    Dexus complains that the trial Judge did not deal with matters outlined in [22] of its submissions.[138]  Those that are material to the status of the Smithfield Shopping Centre set out in s 6.2.11.2(3)(j) under CP 2016 and that CP 2016 intends “consolidation” within existing centres.[139]
  2. [191]
    Dexus complains that his Honour failed to take into account that the Fabcot development was oversized, and had a significant monetary impact on the Smithfield Shopping Centre and Clifton Village Shopping Centre.  There is no issue that the primary judge correctly identified the size of the Fabcot development.  There is no logical connection between why the “oversized development errors” and s 1.5 impacted on his Honour’s consideration of the adverse impact on the Smithfield Shopping Centre or the Clifton Village Shopping Centre.  His Honour considered the impact on both centres in assessing whether the proposed development is contrary to and would compromise the existing and ongoing hierarchy of centres.  That consideration extends to the creation of new centres that is specifically provided for in s 3.3.2.1(10).
  3. [192]
    Section 6.2.11.2(3)(j) only applied to major centres and was not a provision that required specific consideration in the context of the Fabcot application.  In any event, Fabcot correctly submits, the statement that the Smithfield Shopping Centre was to be “vibrant, engaging and active” does not provide any criteria by which compliance could be judged.[140]  Failing to take into it account does not constitute a failure to take into account a relevant consideration having regard to the terms of the well known test set out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[141]  The other provisions were identified in exhibit 10A as relevant provision for consideration as part of the dispute.  His Honour identified the material provisions providing for consolidation of centres and centre activities.[142]  He considered that PO4 of the Centre design code which provided, amongst other things that the centre activity does not compromise the establishment of consolidated activity centres with distinct roles and functions across the regions.[143]
  4. [193]
    The fact that his Honour did not deal with every aspect of the evidence or identify every provision referred to before his Honour in his reasons does not support a contention that his Honour failed to take into account a relevant consideration.  The primary judge plainly considered the impact on Smithfield Shopping Centre and Clifton Village Shopping Centre including the financial impact upon them and the opinions of the economists.[144]  His Honour plainly refereed to the Joint Expert Report which contained the reference to the loss of turnover but where the experts concluded that the impacts were acceptable.  In his reasons at [48] he referred to the relevant Planning Scheme Provisions noted above and in [49]  referred to s 7.2.8.3 in finding the position of Smithfield Major Centre would still represent the focus of employment and economic activity in the Cairns Northern Beaches.  In the circumstances, there is no basis to infer his Honour failed to take into account relevant considerations.  This ground is not made out.

Prejudgment of issue

  1. [194]
    His Honour considered whether the proposed development would result in unacceptable impacts on the role, function and viability of sub-precinct 3b on the Smithfield Local Plan.  His Honour found that the proposed development would not result in unacceptable impacts on the role, function and viability of sub-precinct 3b given the broad range of uses that were contemplated.  The primary judge, however, went further and found that there was no evidence of any intention by any supermarket operator to conduct such a use within sub-precinct 3b and commented that “to the extent it could be asserted that the land in Sub-Precinct 3b already is appropriately designated for the use of a shopping centre as contemplated by the proposed development, there is no evidence that is likely to be used as such and it is certainly not currently able to meet the pressing need…”[145]  The primary judge further commented on the fact that the TPI development application was seriously wanting in several respects.  Dexus and TPI contend that by the primary judge’s comments, his Honour pre-judged the development application.
  2. [195]
    While TPI has framed its case by reference to a number of errors, its principal contention is that his Honour denied TPI natural justice in making the above findings.  It also complains that the primary judge took into account an irrelevant consideration in determining which site was a better site, and by considering evidence from the Regional Property Manager for the Woolworths group.
  3. [196]
    Notwithstanding that it is only TPI affected by such an issue, Dexus also complains that the primary judge made an error in prejudging TPI’s application.  This was particularly so, given the evidence of the economists that if Fabcot’s application was successful, it would deny the TPI application any prospect of approval.  In particular, Dexus contends that given CP 2016 makes provision for a code assessable application for a shopping centre to be made on sub-precinct 3b, it was wrong in principle for the primary judge to render the application worthless in favour of an out-of-centre shopping centre proposal.
  4. [197]
    Fabcot and the Council contend there was no pre-judgment by the primary judge nor did he otherwise err in law given how the case unfolded before the primary judge, relying on the issues in disputes between the parties and evidence led.

Consideration

  1. [198]
    At the time of the hearing TPI had made a development application which was at the information request stage.  The matter proceeded in an unusual way insofar as on the first day of trial, the Council submitted to his Honour that it did not want his Honour to engage in a prejudgment of the merits of the TPI application.  That submission was made in the context of TPI initially not providing all information in respect of its application that had been requested, and that the Council was awaiting that further information having granted an extension.  His Honour agreed to that course, and TPI contends it did not produce any evidence in support of the merits of the application.
  2. [199]
    It is evident there was much confusion before his Honour as to how the TPI application should be viewed.  While both Dexus and TPI contend that Fabcot’s application, should not have been considered, beyond the fact of it having been made which was relevant to its intention as to the sub-precinct, there was evidence led at trial relevant to it.  Further, as Fabcot submitted a number of live issues in relation to sub-precinct 3b which had been agreed for consideration by his Honour.  His Honour had provided a summary of the issues at [27] of his reasons.
  3. [200]
    There were a number of exchanges during the cross-examination, particularly by experts, as to the TPI site.  The primary judge emphasised on a number of occasions that it was not his Honour’s role to engage in an assessment of TPI’s proposal.  The primary judge stated, however, that whether TPI was likely to be able to meet the need, particularly for a supermarket, in the timeframe that the experts have given in evidence was a matter that needed to be considered.  That was disputed by Counsel for TPI.  Counsel for TPI, however, conceded that if it was a timing issue, Counsel could understand the relevance of that.  In re-examination, the expert appearing on behalf of TPI was then asked by Counsel for TPI as to whether the tasks of meeting information requests and the structure planned within the timeframes proposed created any difficulty following concessions made by him in cross-examination that TPI’s application was at that time wanting in a number of respects.  The expert stated he knew of no reason why the extended time frame could not be met.
  4. [201]
    Prior to the hearing, the parties prepared a list of issues in dispute, which included as “Relevant Matters”:
    1. (a)
      whether the Council’s decision will prejudice the potential for, and vitality of, any future development on other suitably zoned land (in particular, land in sub-precinct 3b in the Smithfield Local Plan area); and
    2. (b)
      whether there is a need to approve the shopping centre and healthcare services elements of the development application if a full line supermarket is developed in sub-precinct 3b by 2022.
  5. [202]
    In relation to the assessment benchmarks, issue 3 identified whether the proposed development would result in unacceptable impacts on the role, function and economic viability of sub-precinct 3b in the Smithfield Local Plan.
  6. [203]
    At the end of the hearing, a consolidated list of issues was prepared, which included item 8b, which was whether the approval of the proposed development would unacceptably prejudice the potential for and vitality of any future development on land located in sub-precinct 3b of the Smithfield Local Area Plan.
  7. [204]
    Fabcot also points to issue 5b, which referred to whether there is a community benefit associated with the existence of a committed anchor tenant as demonstrating whether TPI had an anchor tenant was a live issue.  However, that was in the context of whether there was a need for a proposed development not in respect of precinct 3b.  However, evidence was led before the primary judge in relation to whether there was an anchor supermarket operator for the TPI proposal which was also the subject of cross-examination.  There was also cross-examination of whether Fabcot would restart negotiations to establish itself in sub-precinct 3b if the Fabcot application was unsuccessful.
  8. [205]
    In reply, Counsel for TPI particularly focussed on his Honour’s findings in [57] from line 5 and stated insofar as his Honour made comments about the quality of TPI’s application, that had not been in issue.  TPI also contended that the question of whether there was an anchor tenant in relation to TPI’s proposed application was relevant only to its application not the Fabcot application.
  9. [206]
    In the present case, the TPI application was not the subject of determination by the Court, as his Honour expressly noted.[146]  His Honour’s consideration of sub-precinct 3b was expressly in the context of whether the proposed development would result in unacceptable impacts on the role, function, and economic viability of sub-precinct 3b in the Smithfield Local Plan or would be prejudiced and whether TPI’s proposed development could meet a pressing need.  In that regard, the pressing need was identified by Mr Stephens, an expert whose evidence his Honour accepted, as showing there was an economic need for a full line supermarket to locate in the Northern Beaches by about 2022.  While Dexus contends that the question of a “pressing need” was not in the issues outlined, the question of need and when a supermarket in the nature of the Fabcot proposal was required, was plainly an issue in the proceedings, albeit Dexus and TPI sought to limit its consideration to the terms of CP2016 only.  His Honour noted that the evidence suggested that Mr Stephens and Mr Norling were of the view that there is a sufficient need for an additional supermarket servicing the main trading area at the time the proposed development would commence trading.[147]  The TPI applications were tendered to the Court together with an agreed chronology.[148]  His Honour noted the chronology in relation to TPI’s application and the lapse of a previous approval and absence of evidence as to any intention at that time as to a supermarket operator to conduct business within sub-precinct 3b.  His Honour found there was no evidence that the proposed shopping centre in sub-precinct 3b could meet the pressing need he had identified.[149]  It was in that context that his Honour then noted that the TPI development application was seriously wanting in several respects.[150]  The fact that the application was wanting in the respects which his Honour identified was clearly based on the evidence before his Honour, particularly the evidence of Mr Schomburgk.  However, his Honour did not refer to Mr Schomburgk’s clarification in re-examination that he was not aware of any reason why the information requested could not be provided.
  10. [207]
    The primary judge’s finding that sub-precinct 3b was not likely to be used for the use of a shopping centre and not capable of meeting a pressing need which he had identified was based on evidence before his Honour.  His Honour’s statements were not an ultimate determination by the Court of the application, but rather whether were made in the context of considering whether there was a likelihood that such a development could proceed in time to be trading in 2022.  His Honour’s reasons were commenting on the state of the application of TPI at that time, not that the application had no prospect of success.
  11. [208]
    Notwithstanding the subject of objection, counsel for TPI did re-examine its expert in relation to the capacity of TPI to be able to meet the various matters which would, at that point in time, still needed to be addressed in terms of information and investigations with respect to the application (albeit in response to cross-examination to which he had objected and had agreed timing was in issue).
  12. [209]
    While contending it was only the provisions of CP 2016 which were relevant for the Court’s consideration in relation to sub-precinct 3b TPI specifically addressed in its submissions the question that the approval of the TPI development application may not deliver a full line supermarket in a timely manner to meet the need established.  It had also submitted there had been no delay in the development of sub-precinct 3b.
  13. [210]
    Given his Honour’s finding that sub-precinct 3b was in a Mixed Use Zone outside the hierarchy of centres and contained a variety of uses, it was relevant in the context of the assessment of whether the proposed development would result in unacceptable impacts on the role, function and economic viability of sub-precinct 3b or prejudice future development, that if it was to be used for a supermarket, as proposed, to consider whether it would be in a position to meet the need in the timeframe identified, which was relevant to the determination as to need.
  14. [211]
    The present case is not one in which the comments by his Honour could be regarded as a predetermination of the judgment.[151]
  15. [212]
    While the comments of his Honour at [57] as to TPI’s application being wanting were unnecessary, those comments were in the nature of a comment.[152]  In that regard the present case is not unlike that considered in Lewis v Townsville City Council & Ors,[153] where the Court did not find there had been a denial of natural justice when the judge in question did not raise concerns about proposed conditions from the only witness.[154]
  16. [213]
    While the determination of the primary judge in favour of Fabcot’s proposal may practically mean it was not in TPI’s interest to pursue developing a supermarket is an effect of the decision, it does not follow that his Honour’s comments and findings were a predetermination or prejudgment of its application.  In any event that was only a matter of expert opinion.[155]
  17. [214]
    His Honour’s comments were not a prejudgment of TPI’s application nor in the context of the way the case unfolded before his Honour involved the taking account of an irrelevant consideration.
  18. [215]
    His Honour had specifically raised the question of timing being relevant in the context of the TPI Counsel’s objection to which Counsel had sought to address the issue by way of re-examination and while the appellants and respondents differed as to the approach to be adopted it was clearly in issue and in that regard the question of an anchor tenant had some relevance.
  19. [216]
    In the circumstances, there was no denial of natural justice, nor predetermination of the TPI application, which resulted in an error in the exercise of his Honour’s discretion.  For the reasons set out above his Honour’s determination was not approached on deciding which site was the better site.
  20. [217]
    As to the suggestion that his Honour erred in law because even if he could have regard to the matters in question there was no evidence that TPI did not have a supermarket operator on board at that time, there was evidence to that effect from the Regional Manager of Woolworths in circumstances where Woolworths had previously been a possible tenant for development of precinct 3b in 2012.  Nor did the primary judge fail to properly address the matter of likelihood of an operator taking up a Shopping Centre use within sub-precinct 3b.  Fabcot’s previous interest in sub-precinct 3b and that interest not being an ongoing one had been a matter which was the subject of evidence, contrary to that of expert evidence.  Further Counsel for Dexus had cross-examined Mr Duggan as to the prospect of Fabcot taking up negotiations with sub-precinct 3b.  It was not a matter of Court accepting personal preferences of a major supermarket retailer particularly in the absence of evidence of any other supermarket retailer being likely to operate the supermarket in sub-precinct 3b.  There was no error in this regard.
  21. [218]
    I have dealt with the submission of Dexus that the TPI application should not have been considered at all above.  For the reasons outlined, it was relevant for his Honour to have regard to the existence of the application and his Honour did not pre-determine the application by his decision.
  22. [219]
    This ground of appeal is not made out.

Conclusion

  1. [220]
    I would order that leave should be granted for each of the appeals.  This is appropriate on the basis that the primary judge erred in law as identified above in failing to consider the question of non-compliance with the requirements of a “local community” in the LMDR Zone which may have caused his Honour’s discretion to miscarry,[156] and the questions of law raised are of general importance.
  2. [221]
    I would further order that the decision be set aside and that the matter be remitted to the Planning and Environment Court to be determined according to law.  The matter should be remitted to the primary judge given his Honour’s understanding of the evidence in the case.  I find no good reason for a different judge to rehear the case or any good reason to make an order remitting it to a different judge as was sought by the appellants.  While his Honour did make comments about TPI’s application given the context in which they arose they do not indicate that his Honour cannot hear the matter impartially.
  3. [222]
    No submissions were made by the parties in relation to costs.  Both Dexus and TPI have been successful in relation to the ground which I have determined was made out.  Costs should therefore follow the event and the respondents should pay the appellants’ costs of the application and appeal.

Proposed orders

  1. [223]
    The orders that should be made are that:
  1. Application for leave to appeal granted.
  2. Appeal allowed.
  3. Set aside the orders made by the Planning and Environment Court on 30 April 2020 and 13 July 2020.
  4. Remit the appeal to the Planning and Environment Court for determination by the primary judge.
  5. The first and second respondents must pay the costs of Trinity Park Investments Pty Ltd and L’Armonia Pty Ltd and Dexus Funds Management Limited of the application and the appeal to this court.

Footnotes

[1]  At [6] of the Reasons.

[2]  At [6] of the Reasons.

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

[4]  (2018) 230 LGERA 374 at 391.

[5]  [2009] QPELR 793.

[6]  Particularly his Honour’s judgment at 806 – 807.

[7]  (2020) 3 QR 494; [2020] QCA 41.

[8]  [2020] QPELR 631; [2019] QCA 132.

[9]  [2019] QPELR 793 at 806-807.

[10]  [2019] QPEC 46 at [22].

[11]  At [33] of the Reasons.

[12]  Issues identified at [27] of the Reasons.

[13]  Summarised at [29] of the Reasons.

[14]  [1981] QPLR 33 at 35.

[15]  [2003] QPELR 414 at 418.

[16]  At [37] of the Reasons.

[17]  At [38] of the Reasons.

[18]  At [40] of the Reasons.

[19]  At [41] of the Reasons.

[20]  At [43] of the Reasons referring to s 5.3(7) of CP 2016.

[21]  At [44] – [45] of the Reasons.

[22]  At [46] of the Reasons.

[23]  At [49] of the Reasons.

[24]  At [46] of the Reasons.

[25]  At [49] of the Reasons.

[26]  At [49] of the Reasons.

[27]  Having referred to the Macquarie Dictionary definition of “local.”

[28]  At [35] of the Reasons.

[29]  Referring to the low-medium density residential zone code section 6.2.10.2(1).

[30]  At [51] – [52] of the Reasons.

[31]  At [52] of the Reasons.

[32]  At [53] of the Reasons.

[33]  [2004] QPELR 392 at 400.

[34]  At [55] by reference to the information requested by the Council in relation to TPI’s application.

[35]  At [56] of the Reasons.

[36]  At [60] of the Reasons.

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

[38] Gold Coast City Council v K & K (GC) Pty Ltd [2020] QPELR 631 and Bell v Brisbane City Council (2018) 230 LGERA 374 and Redland City Council v King of Gifts (2020) 3 QR 494.

[39]  Draft Grounds 1(a) – (e) and Ground 3(e).

[40]  Draft Grounds 2(a) – (f), 3(c) and (d).

[41]  Draft Grounds 3(a) and (b).

[42]  Draft Grounds 1(a) and (b).

[43]  Draft Grounds 1(c), 2(a), 2(b) and 2(c).

[44]  Draft Grounds 3.

[45]  Draft Grounds 2(d).

[46]  Cairns Regional Council Outline of Submissions, [1]; Fabcot Amended Combined Outline of Argument, [2].

[47]  [2020] QPELR 631; [2019] QCA 132.

[48]  (2018) 230 LGERA 374.

[49]  (2020) 3 QR 494; [2020] QCA 41.

[50]  Relying upon Redland City Council v King of Gifts (2020) 3 QR 494; [2020] QCA 41 at [173].

[51]  At [41] of the Reasons.

[52]  At [53] of the Reasons.

[53]  At [54] – [57] of the Reasons.

[54]  At [57] of the Reasons.

[55]  Section 5.4(1)(c)(iii).

[56]The Australian Oxford Dictionary (2nd ed, 2004) ‘local.’

[57]Macquarie Dictionary Online, 2021, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au.

[58]The Australian Oxford Dictionary (2nd ed, 2004) ‘community.’

[59]Macquarie Dictionary Online, 2021, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au.

[60] Macquarie Dictionary Online, 2021, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au.

[61] The Australian Oxford Dictionary (2nd ed, 2004) ‘small scale.’

[62] Macquarie Dictionary Online, 2021, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au.

[63]  (2014) 201 LGERA 82 at [52], followed in Gerhardt v Brisbane City Council (2017) 226 LGERA 257 and Wilhelm v Logan City Council [2020] QCA 273 at [54].

[64]  (1998) 194 CLR 355 at [69] – [71].

[65]  [2013] 1 Qd R 1.

[66] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[67]  (1997) 187 CLR 384 at 408.

[68]  CP 2016, s 1.5.  It also provides provisions of part 10 may override any of the above.

[69]  [2005] QPEC 70.

[70] Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council [2005] QPEC 70 at [10].

[71]  See for example: Kline v Official Secretary to the Governor General (2013) 249 CLR 645 at [32].

[72]  Section 7.2.8.1.

[73] R v A2 (2019) 373 ALR 214; [2019] HCA 35 at [31]- [37]; Flori v Winter [2019] QCA 281 at [22].

[74]  At [52] of the Reasons.

[75]  Although not the subject of a separate ground of appeal.

[76] WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126 at [35]-[38]; McMurdo JA in Bell v Brisbane City Council (2018) 230 LGERA 374 at [20] and [70].

[77]  Section 5.4.1(c )(iii).

[78]  Section 7.2.8.3(6)(b).

[79]  At [36] of the Reasons.

[80]  T2-41/1-5.

[81]  Council outline at [22].

[82]  (2014) 253 CLR 531.

[83]  Section 3.3.1(1)(d).

[84]  Section 1.2(2)(1)(b).  The policy does, however, contemplate in paragraph 2(2) that a development may be inconsistent with the Planning Scheme.  Paragraph 1.2(2) provides that the Planning Scheme policies support the Planning Scheme which includes “centres and centre activities”.

[85]  Cf s 6.2.7.2 of the Local Centre Code which does not apply to the Fabcot site but specifically preserves a supermarket as an exception while excluding other large floor space uses and provides for the development.  The Strategic Framework has primacy over the Local Centre Code.

[86]  Table Sc1.2b definition of supermarket.

[87]  At [46]–[48] of the Reasons.

[88]  At [48] of the Reasons.

[89]  At [53] of the Reasons.

[90]  Section 3.3.1(13) of the Strategic Framework.

[91]  Part E is the relevant part stated to be relevant to guiding land use in planning decisions and to be reflected in all relevant plans, policies and codes.

[92]  Section 6.2.14.2(4).

[93]  Schedule 1, SC1.1.2.

[94]  PO13(a).

[95]  Section 6.2.14.2(1).

[96]  Section 6.2.14.2(4)(c).

[97]  Section 6.2.14.2(4)(a).

[98]  Section 6.2.14.2(4)(c).

[99]  Section 6.2.14.2(4)(c).

[100]  At [41] of the Reasons.

[101] Williams McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33 at 35; Isgro v Gold Coast City Council [2003] QPELR 414 at 21.

[102] Williams McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33 at 35.

[103] Elfband Pty Ltd & Vanhoff Pty Ltd v Maroochy Shire Council [1995] QPLR 290 at 313, referred to by Morrison J in Lipoma Pty Ltd v Redland City Council [2020] QCA 180 at [59] without considering it to be in error.

[104]  (2020) 3 QR 494; [2020] QCA 41.

[105]  Although it was its intention to do so.

[106]  Section 7.2.8.3(5)(f).

[107]  Section 3.3.2 Strategic Framework.

[108]  In which case the Smithfield Local Plan would prevail.

[109]  [2008] QPELR 608; [2008] QCA 157.

[110]  Cf [2008] QPELR 608; [2008] QCA 157 at [22].

[111]Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 at 211.

[112]  At [55] of the Reasons.

[113]  [1980] QPLR 130.

[114]Sheezel v Noosa City Council [1980] QPLR 130 at 208 and 211.

[115]  (2018) 230 LGERA 374.

[116]  [2020] QPELR 631; (2019) 239 LGERA 409.

[117]  (2020) 3 QR 494; [2020] QCA 41.

[118] Gold Coast City Council v K & K (GC) Pty Ltd [2020] QPELR 631; (2019) 239 LGERA 409; [2019] QCA 132 at [68], per Sofronoff P.

[119]  Referring to Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41, per Philippides JA at [122].

[120]  (2019) 239 LGERA 409; [2019] QCA 132 at [48].

[121]  (2020) 3 QR 494; [2020] QCA 41.

[122]  At [116], per Philippides JA; McMurdo JA at [169]-[171].

[123]  At [33] of the Reasons.

[124]  [2019] QPELR 793 at 806-7.

[125]  [2020] QCA 257 which was followed in Wilhelm v Logan City Council [2020] QCA 273.

[126]  With whom Brown and Wilson JJ agreed.

[127]  With whom Sofronoff P and Philippides JA agreed in Bell v Brisbane City Council (2018) 230 LGERA 374.

[128] Bell v Brisbane City Council (2018) 230 LGERA 374 at [66].

[129] Bell v Brisbane City Council (2018) 230 LGERA 374 at [40]; Abeleda v Brisbane City Council [2020] QCA 257 at [43].

[130] Abeleda v Brisbane City Council [2020] QCA 257.

[131]  See Abeleda at [41]-[42] in relation to Gold Coast City Council v K & K (GC) Pty Ltd referred to at [20] of TPI’s outline; Abeleda at [43] and [45] in relation to similar comments in Gold Coast City Council v K & K (GC) Pty Ltd to the statements of Redland City Council v King of Gifts referred to in 21(b) – (d) insofar as they refer to one aspect of the public interest overriding another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved and Abeleda at [51] however the fact that the planning scheme still represents the embodiment of community interest remains and must be given appropriate weight.

[132] Bell v Brisbane City Council (2018) 230 LGERA 374 at [43].

[133]  [2020] QCA 257 at [51].

[134]  At [54] of the Reasons.

[135]  At [17] of the Reasons.

[136]  T1-37/41-46.

[137]  At [68].

[138]  The provisions are referred to at footnote 37 of Dexus’ outline: s 3.3.2.1(3) and (7); section 3.5.2.1(1); section 7.2.8.3(1) PO1 in the Smithfield Local Plan, section 9.4.4.2.2(2)(b) and PO4 of the Centre Design Code.

[139]  Section 3.3.2.1(3).

[140]Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council (2009) 175 LGERA 126 at [30].

[141]  (1986) 162 CLR 24.

[142]  Reasons at [20] and [26].

[143]  Reasons at [49].

[144]  At [46]-[47] and [49] of the Reasons.

[145]  At [57] of the Reasons.

[146]  At [55] of the Reasons.

[147]  At [38] of the Reasons.

[148]  Exhibit 26 and 26A.

[149]  At [57] of the Reasons.

[150]  At [57] of the Reasons.

[151]  Cf Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.

[152] Lewis v Townsville City Council & Ors [2012] QCA 99 at [92].

[153]  [2012] QCA 99.

[154]Lewis v Townsville City Council & Ors [2012] QCA 99 at [92] at [69] and [90].

[155]  Which was a matter of opinion evidence of an expert not as a matter of law.

[156] HA Bachrach v Caboolture Shire Council (1992) 80 LGERA 230 at 237-8.

Close

Editorial Notes

  • Published Case Name:

    Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors

  • Shortened Case Name:

    Trinity Park Investments Pty Ltd v Cairns Regional Council

  • MNC:

    [2021] QCA 95

  • Court:

    QCA

  • Judge(s):

    Philippides JA, Mullins JA, Brown J

  • Date:

    07 May 2021

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDetermination of Cairns Regional Council10 Oct 2018Cairns Regional Council issued preliminary approval for a Shopping Centre and Health Care Services and reconfiguration of a lot into 14 lots together with a development permit for a Child Care Centre, Service Station, Food and Drink Outlet and other other related permits at Trinity Beach.
Primary Judgment[2020] QPEC 1730 Apr 2020Appeal 201 of 2018 (by Fabcot Pty Ltd) for a development permit of those matters the subject of preliminary approval allowed subject to the imposition of appropriate lawful conditions; appeal 221 of 2018 (Dexus Funds Management) that the proposed development be refused dismissed; appeal 223 of 2018 (Trinity Park Investments Pty Ltd and L'Armonia Pty Ltd) that the proposed development be refused dismissed: Everson DCJ.
Appeal Determined (QCA)[2021] QCA 9507 May 2021-

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
AAD Design Pty Ltd v Brisbane City Council[2013] 1 Qd R 1; [2012] QCA 44
3 citations
Jump To
Cite 1 - [2012] QCA 44
Cite 2 - [2013] 1 Qd R 1
Cite 3 - [2013] 1 Qd R 1
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
5 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Cite 3 - [2020] QCA 257
Cite 4 - [2020] QCA 257
Cite 5 - [2020] QCA 257
Ashvan Investment Units Trust v Brisbane City Council [2009] QPELR 793
2 citations
Jump To
Cite 1 - [2009] QPELR 793
Cite 2 - [2009] QPELR 793
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
1 citation
Jump To
Cite 1 - [2019] QPEC 16
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
2 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157
3 citations
Jump To
Cite 1 - [2008] QCA 157
Cite 2 - [2008] QCA 157
Cite 3 - [2008] QCA 157
Australian Capital Holdings Pty Ltd v Mackay City Council (2008) QPELR 608
3 citations
Jump To
Cite 1 - (2008) QPELR 608
Cite 2 - (2008) QPELR 608
Cite 3 - (2008) QPELR 608
Bell v Brisbane City Council [2018] QCA 84
1 citation
Jump To
Cite 1 - [2018] QCA 84
Bell v Brisbane City Council (2018) 230 LGERA 374
10 citations
Jump To
Cite 1 - (2018) 230 LGERA 374
Cite 2 - (2018) 230 LGERA 374
Cite 3 - (2018) 230 LGERA 374
Cite 4 - (2018) 230 LGERA 374
Cite 5 - (2018) 230 LGERA 374
Cite 6 - (2018) 230 LGERA 374
Cite 7 - (2018) 230 LGERA 374
Cite 8 - (2018) 230 LGERA 374
Cite 9 - (2018) 230 LGERA 374
Cite 10 - (2018) 230 LGERA 374
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
2 citations
Jump To
Cite 1 - (1997) 187 CLR 384
Cite 2 - (1997) 187 CLR 384
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
1 citation
Jump To
Cite 1 - [1997] HCA 2
Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209
1 citation
Jump To
Cite 1 - (1990) QPLR 209
Elfband Pty Ltd and Vanhoff Pty Ltd v Maroochy Shire Council and Ors [1995] QPLR 290
1 citation
Jump To
Cite 1 - [1995] QPLR 290
Fabcot Pty Ltd v Cairns Regional Council [2020] QPEC 17
1 citation
Jump To
Cite 1 - [2020] QPEC 17
Flori v Winter(2019) 3 QR 22; [2019] QCA 281
3 citations
Jump To
Cite 1 - [2019] QCA 281
Cite 2 - [2019] QCA 281
Cite 3 - (2019) 3 QR 22
Gerhardt v Brisbane City Council [2017] QCA 285
1 citation
Jump To
Cite 1 - [2017] QCA 285
Gerhardt v Brisbane City Council (2017) 226 LGERA 257
2 citations
Jump To
Cite 1 - (2017) 226 LGERA 257
Cite 2 - (2017) 226 LGERA 257
Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132
5 citations
Jump To
Cite 1 - [2019] QCA 132
Cite 2 - [2019] QCA 132
Cite 3 - [2019] QCA 132
Cite 4 - [2019] QCA 132
Cite 5 - [2019] QCA 132
Gold Coast City Council v K & K (GC) Pty Ltd (2019) 239 LGERA 409
3 citations
Jump To
Cite 1 - (2019) 239 LGERA 409
Cite 2 - (2019) 239 LGERA 409
Cite 3 - (2019) 239 LGERA 409
Gold Coast City Council v K&K (GC) Pty Ltd [2020] QPELR 631
6 citations
Jump To
Cite 1 - [2020] QPELR 631
Cite 2 - [2020] QPELR 631
Cite 3 - [2020] QPELR 631
Cite 4 - [2020] QPELR 631
Cite 5 - [2020] QPELR 631
Cite 6 - [2020] QPELR 631
Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council & Anor (2009) 175 LGERA 126
1 citation
Jump To
Cite 1 - (2009) 175 LGERA 126
H A Bachrach P/L v Caboolture SC (1992) 80 LGERA 230
1 citation
Jump To
Cite 1 - (1992) 80 LGERA 230
Isgro v Gold Coast City Council [2003] QPEC 2
1 citation
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Cite 1 - [2003] QPEC 2
Isgro v Gold Coast City Council (2003) QPELR 414
3 citations
Jump To
Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Cite 3 - (2003) QPELR 414
Kline v Official Secretary to the Governor General [2013] HCA 52
1 citation
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Cite 1 - [2013] HCA 52
Kline v Official Secretary to the Governor General (2013) 249 CLR 645
2 citations
Jump To
Cite 1 - (2013) 249 CLR 645
Cite 2 - (2013) 249 CLR 645
Lewis v Townsville City Council [2012] QCA 99
4 citations
Jump To
Cite 1 - [2012] QCA 99
Cite 2 - [2012] QCA 99
Cite 3 - [2012] QCA 99
Cite 4 - [2012] QCA 99
Lewis v Townsville City Council [2012] QPELR 575
1 citation
Jump To
Cite 1 - [2012] QPELR 575
Lipoma Pty Ltd v Redland City Council [2020] QCA 180
1 citation
Jump To
Cite 1 - [2020] QCA 180
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
1 citation
Jump To
Cite 1 - [1986] HCA 40
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
1 citation
Jump To
Cite 1 - (2001) 205 CLR 507
Murphy v Moreton Bay Regional Council [2019] QPEC 46
2 citations
Jump To
Cite 1 - [2019] QPEC 46
Cite 2 - [2019] QPEC 46
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
1 citation
Jump To
Cite 1 - [2020] QPELR 328
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
1 citation
Jump To
Cite 1 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
3 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Cite 3 - (1998) 194 C.L.R 355
R v A2 [2019] HCA 35
2 citations
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Cite 1 - [2019] HCA 35
Cite 2 - [2019] HCA 35
R v A2 (2019) 93 ALJR 1106
1 citation
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Cite 1 - (2019) 93 ALJR 1106
R v A2 (2019) 373 ALR 214
2 citations
Jump To
Cite 1 - (2019) 373 ALR 214
Cite 2 - (2019) 373 ALR 214
Redland City Council v King of Gifts (Qld) Pty Ltd(2020) 3 QR 494; [2020] QCA 41
17 citations
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Cite 1 - [2020] QCA 41
Cite 2 - [2020] QCA 41
Cite 3 - [2020] QCA 41
Cite 4 - [2020] QCA 41
Cite 5 - [2020] QCA 41
Cite 6 - [2020] QCA 41
Cite 7 - [2020] QCA 41
Cite 8 - [2020] QCA 41
Cite 9 - (2020) 3 QR 494
Cite 10 - (2020) 3 QR 494
Cite 11 - (2020) 3 QR 494
Cite 12 - (2020) 3 QR 494
Cite 13 - (2020) 3 QR 494
Cite 14 - (2020) 3 QR 494
Cite 15 - (2020) 3 QR 494
Cite 16 - (2020) 3 QR 494
Cite 17 - (2020) 3 QR 494
Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council [2005] QPEC 70
3 citations
Jump To
Cite 1 - [2005] QPEC 70
Cite 2 - [2005] QPEC 70
Cite 3 - [2005] QPEC 70
Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85
1 citation
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Cite 1 - [2006] QPELR 85
Sheezel v Noosa Shire Council (1980) QPLR 130
3 citations
Jump To
Cite 1 - (1980) QPLR 130
Cite 2 - (1980) QPLR 130
Cite 3 - (1980) QPLR 130
Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531
2 citations
Jump To
Cite 1 - (2014) 253 CLR 531
Cite 2 - (2014) 253 CLR 531
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
1 citation
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Cite 1 - [2014] HCA 9
Ugarin Pty Ltd v Logan City Council [2004] QPEC 1
1 citation
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Cite 1 - [2004] QPEC 1
Ugarin Pty Ltd v Logan City Council (2004) QPELR 392
2 citations
Jump To
Cite 1 - (2004) QPELR 392
Cite 2 - (2004) QPELR 392
WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126
2 citations
Jump To
Cite 1 - [2010] QCA 126
Cite 2 - [2010] QCA 126
Wilhelm v Logan City Council [2020] QCA 273
3 citations
Jump To
Cite 1 - [2020] QCA 273
Cite 2 - [2020] QCA 273
Cite 3 - [2020] QCA 273
Williams McEwans Pty Ltd v Brisbane City Council (1981) QPLR 33
4 citations
Jump To
Cite 1 - (1981) QPLR 33
Cite 2 - (1981) QPLR 33
Cite 3 - (1981) QPLR 33
Cite 4 - (1981) QPLR 33
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
1 citation
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Cite 1 - [2014] QCA 147
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
2 citations
Jump To
Cite 1 - (2014) 201 LGERA 82
Cite 2 - (2014) 201 LGERA 82

Cases Citing

Case NameFull CitationFrequency
1335 Waterford Tamborine Rd Pty Ltd v Logan City Council [2024] QPEC 142 citations
427 Beckett Rd Pty Ltd v Brisbane City Council (No. 2) [2024] QPEC 241 citation
Aesthete No. 15 Pty Ltd v Council of the City of Gold Coast & Cielo Property Group Pty Ltd [2025] QPEC 182 citations
Archer v Council of the City of Gold Coast [2022] QPEC 597 citations
Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 224 citations
Banner S&C (Logan Village) Pty Ltd v Logan City Council [2024] QPEC 292 citations
Bowyer Group Pty Ltd v Cook Shire Council [2022] QPEC 335 citations
Bronco Dino Pty Ltd v Cassowary Coast Regional Council [2023] QPEC 151 citation
Cannon Hill Investments Pty Ltd and Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor; Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 164 citations
Casinco Pty Ltd v Council of the City of Gold Coast [2022] QPEC 502 citations
Cheung v Brisbane City Council [2021] QPEC 393 citations
Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2023] QPEC 444 citations
Clarry v Brisbane City Council [2024] QCA 391 citation
Desbois v Chief Executive, Department of Transport and Main Roads; Chief Executive, Department of Transport and Main Roads v Desbois [2022] QLAC 12 citations
Development Watch Inc. & Anor v Sunshine Coast Regional Council [2023] QPEC 243 citations
DVB Projects Pty Ltd v Council of the City of Gold Coast [2022] QPEC 402 citations
Edie v Brisbane City Council [2023] QPEC 92 citations
Edith Pastoral Company Pty Ltd v Somerset Regional Council & Ors [2021] QPEC 522 citations
Emmanuel Drivas v Brisbane City Council [2021] QPEC 682 citations
Fabcot Pty Ltd v Cairns Regional Council (No. 3) [2022] QPEC 125 citations
Fabcot Pty Ltd v Ipswich City Council [2022] QPEC 112 citations
Fabcot v Cairns Regional Council (No 2) [2021] QPEC 403 citations
G R Construction & Development Pty Ltd v Brisbane City Council [2022] QPEC 92 citations
Griffith Capital Pty Ltd v Redland City Council [2022] QPEC 214 citations
GTH Project No. 4 Pty Ltd v Noosa Shire Council [2024] QPEC 262 citations
I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 362 citations
Jezreel Pty Ltd v Brisbane City Council [2023] QPEC 76 citations
JSFNQ 1 Pty Ltd v Townsville City Council [2021] QPEC 283 citations
Kelly Consolidated Pty Ltd v Ipswich City Council [2024] QPEC 124 citations
Kenfrost (1987) Pty Ltd v CRC [2024] QPEC 155 citations
McEnearney v Council of the City of Gold Coast [2024] QPEC 322 citations
McKay v Brisbane City Council [2021] QPEC 424 citations
Middle Pond Pty Ltd v Whitsunday Regional Council [2024] QPEC 453 citations
Nairn v Brisbane City Council [2024] QPEC 462 citations
Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council [2021] QPEC 775 citations
North Harbour Holdings Pty Ltd v Moreton Bay Regional Council [2024] QPEC 213 citations
Northern Sands Pty Ltd v Cairns Regional Council [2023] QPEC 311 citation
Palmer v Council of the City of Gold Coast [2023] QPEC 472 citations
Ramsay Health Care Australia Pty Limited v Brisbane City Council [2024] QPEC 492 citations
Robertson v Brisbane City Council [2021] QPEC 442 citations
Southway Services No. 2 Pty Ltd v Brisbane City Council [2022] QPEC 87 citations
The Body Corporate for 62 Pacific Community Titles Scheme 45586 v Council of the City of Gold Coast [2025] QPEC 132 citations
The Corporation of the Synod of the Diocese of Brisbane v Brisbane City Council & Anor [2025] QPEC 112 citations
Tricare (Bayview) Pty Ltd v Council of the City of Gold Coast [2022] QPEC 313 citations
Trinity Park Investments Pty Ltd v Cairns Regional Council [2022] QPEC 153 citations
Trinity Park Investments Pty Ltd v Fabcot & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd [2021] QCA 2765 citations
1

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