Wheldon v Logan City Council[2015] QPEC 22

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

1. [1]
   The applicants, by their Amended Originating Application, seek declaratory and consequential relief pursuant to s. 456 of the Sustainable Planning Act 2009 (“SPA”).  They challenge the validity of a negotiated decision notice granted by the delegate of the first respondent, council, on 29 August 2014 in respect of land owned by the second respondent, developer.

Background

2. [2]
   The developer owns land bounded by Mt Lindesay Highway Service Road, Jedfire Street and Park Ridge Road at Park Ridge, more particularly described as Lots 1, 3 and 4 on SP107750.

3. [3]
   The applicants own land on the other side of Jedfire Street, opposite the developer’s land, described as Lot 1 on SP 199421 and Lot 11 on SP 246325.  The area of applicants’ land is in excess of 5.4 hectares.

4. [4]
   The developer’s land is improved by an existing shopping centre with a gross lettable area of 5,148m².  The shopping centre includes a Woolworths supermarket, specialty shops and car parking.

5. [5]
   After a pre-lodgement meeting with the first respondent council, the developer lodged a code assessable development application on 21 October 2013.^[1]  The development application sought approval for a material change of use (Shopping Centre) and an associated preliminary approval for building work, to extend and refurbish the existing centre.^[2]

6. [6]
   The development application sought to expand and refurbish the existing shopping centre to one with a gross lettable area of 13,095m² comprising:

1. An extension to the Woolworths supermarket by 600m² of gross floor area, being an increase in the gross lettable area of 580m²;

2. A new Coles supermarket with a gross lettable area of 3,800m²;

3. A “mini-major” with a gross lettable area of 845m²;

4. Additional and reconfigured specially shops and services (including a medical precinct) with a gross lettable  area of 1,932m²; and

5. 344 new car parking spaces.

7. [7]
   The development application was supported by several reports dealing with town planning, acoustic issues, traffic engineering and storm water management. Various other supporting documentation included landscaping plans and other relevant information. The developer also provided further information in response to an information request. This all formed part of the common material.

8. [8]
   In a “Delegate Assessment Report” dated 24 January 2014, a council officer, Ms Yu provided a report with respect to the development application

9. [9]
   The IDAS decision-making period was extended on two occasions before a decision was made on 4 April 2014 by the council delegate, Ms Lim. The application was approved subject to conditions, and the original decision notice was issued on 8 April 2014.^[3]

10. [10]
    The appeal period was suspended to make representations under s. 361 of SPA, which were supported by further traffic engineering evidence. By a report incorrectly dated 21 October 2013^[4] the council officer, Ms Yu, considered the Request for the Negotiated Decision Notice.  On 29 May 2014, Ms Lim agreed to change the conditions and a negotiated decision notice with revised conditions issued on 29 May 2014.^[5]

11. [11]
    The applicants challenged this negotiated decision notice by Originating Application 2930 of 2014.^[6]  That proceeding was resolved between the parties.  Accordingly, the court declared that s. 363 of SPA had not been complied with and the negotiated decision notice was set aside.  The matter was returned to the council to decide according to law.

12. [12]
    On 29 August 2014 another council delegate, Mr Cullen, made a further decision, and a further negotiated decision notice issued on 29 August 2014.

13. [13]
    In this proceeding, the applicants challenge this further negotiated decision.

Issues

14. [14]
    The disputed issues requiring determination in relation to the further negotiated decision notice subject of this proceeding have been identified by the parties in the applicants’ amended originating application, the respondents’ responses, the applicants’ reply and particulars, as follows:

1. Whether condition 1.2 of the further negotiated decision notice is beyond power and invalid; and if so, whether the condition can be severed;

2. Whether the delegate made inconsistent findings of fact;

3. Whether the delegate failed to take into account relevant considerations when determining conflict with the Planning Scheme;

4. Whether the delegate made findings about which there was no evidence;

5. Whether the delegate erred by finding no conflict with a Desired Environmental Outcome (“DEO”);

6. Whether the delegate erred in his identification of the nature and extent of the conflict with the Planning Scheme;

7. Whether the delegate erred in finding that there were “sufficient grounds” to overcome conflict with the planning scheme;

8. Whether the delegate’s decision was unreasonable having regard to the purpose of SPA.

15. [15]
    These also give rise to discretionary considerations in the relief sought. If the challenges are made out, it will be necessary to consider whether the relief claimed by the applicants should be allowed, or otherwise, and whether any non-compliance with SPA should be excused pursuant to s 440 of SPA.

16. [16]
    The applicants have never challenged the original decision notice.

Jurisdiction

17. [17]
    The relief sought by the applicants is for a declaration and consequential orders under s. 456 of SPA. 

18. [18]
    Unlike appeal proceedings, the court is not concerned with the merits of the approval as in a hearing anew.^[7]  Proceedings of this type are analogous to judicial review proceedings having regard to the material before the council.^[8] 

19. [19]
    Of judicial review proceedings, the High Court said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002:^[9]

“[114]  Regardless of the supervisory jurisdiction invoked in a particular case, judicial review is said to be limited to reviewing the legality of administrative action. Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision. The grounds of judicial review ought not be used as a basis for a complete re-evaluation of findings of fact, a reconsideration of the merits of the case or a re-litigation of the arguments that have been ventilated, and that failed, before the person designated has the repository of the decision making power.”

20. [20]
    By analogy, in Chan v Minister for Immigration & Ethnic Affairs,^[10] Mason CJ said:

“In exercising its function of judicial review under the AD(JR) Act, the Full Court was not entitled to go beyond the material before the delegate.  By introducing its own view of the state of affairs in China the Full Court seems to have trespassed into the forbidden field of review on the merits.”

21. [21]
    The inquiry must be strictly limited to ensure that the court is not drawn into a quasi-merits review.^[11]  Care must be taken to ensure that the court does not exceed its supervisory role whilst undertaking the review.^[12]  The decision ought not be “construed minutely and finely with an eye keenly attuned to the perception of error.”^[13]

22. [22]
    In Cox v Maroochy Shire Council,^[14] at [63] Skoien SJDC explained the rationale this way:

“The rationale behind the principles applying to the approach adopted by courts to the decisions of administrative authorities, as it seems to me, depends not just on the fact that the legislature reposed in the administrative authority the power and the duty to make the decision.  It must also have been, at least in part, based on pragmatism.  These administrative decisions are made on many occasions.  It would be intolerable if each of them could be reversed by litigation after microscopic examination by experts and advice by lawyers.  The orderly progression of a Council’s duties could grind to a halt if each administrative decision were delayed whilst each possible error was considered minutely before the next step was undertaken.  Some authorities might decline to make, or defer making, a decision which had any possibility of a challenge, perhaps fearing the cost and inconvenience of that challenge.  So, to paraphrase, perhaps in exactly, the approach adopted by the law, so long as the authority’s decision was legally and factually defensible the courts decided that it should stand.”

23. [23]
    The applicant asserts the council’s delegate made several forms of jurisdictional error. Jurisdictional error was considered in Craig v. South Australia,^[15] where the High Court held:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore all relevant material, to rely on irrelevant material or, at least in some circumstances, to exercise or purported exercise of powers is thereby effected, it exceeds its authority or power.  Such an error of law is a jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

24. [24]
    It will not be sufficient for the applicants to simply identify an irrelevant consideration taken by the delegate.  They must show that it materially affected the decision.^[16]

25. [25]
    As to the assertions about the delegate’s fact finding, there will be no reviewable error simply in making a wrong finding of fact.^[17]  In Endfield City Corp v Development Assessment Commission,^[18] Gaudron J said:

“Of course, other considerations apply with respect to non-jurisdictional facts for there is no legal error involved if an administrative body simply makes a wrong finding of fact.  And, again, different considerations apply where what is an issue is not a jurisdictional fact, but the decision maker's opinion as to the existence of that fact.  In that situation, the question is whether, on the available material, it was reasonably open for the decision maker to form the opinion in question.”

26. [26]
    The applicants also assert that the delegate’s decision was an unreasonable exercise of discretion in the Wednesbury sense, referring to Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223.

27. [27]
    In that regard, the approval of the council, through its delegate, must be accepted unless it can be shown to have been one that no reasonable council could have formed or that it was based on irrelevant considerations, or that it was unjustifiable. If it is justifiable it stands whether or not others may disagree with it.^[19]

28. [28]
    In Parramatta City Council v Pestell^[20] the court made the important distinction between a “justifiable decision” and a “sound decision” holding that:

“The former is one open to a reasonable man; the latter is one that is not merely defensible – it is right.  The validity of a local rule does not depend upon the soundness of a Council’s opinion; it is sufficient if the opinion expressed is one reasonably open to a Council.  Whether it is sound or not is not a question for decision by a Court”.

29. [29]
    The principles were set out by Skoien SJDC in Lyons v. Misty Morn Developments Pty Ltd & Anor,^[21] where he said:

“There have been many cases in which a court has been asked to review something done by a person or body under an Act of Parliament where the authority to do that thing is expressed by the Act to be dependent on that person reaching a specified state of satisfaction.  This is such a case.  The decision was made by Veal as the Council's delegate that he was satisfied that ‘no reasonable objection, whether or not it would ultimately be upheld, may be expected were an application to rezone the land to Residential ‘A’ made’.

The law on this topic is clear. The opinion of the Council must be accepted unless it can be shown to have been one that no reasonable Council could have formed or that it was based on irrelevant considerations, or that in some other way it was unjustifiable.  If it is justifiable it stands whether or not others may disagree with it.  See Parramatta City Council v Pestrell (1972) 128 CLR 305 at 323, per Menzies J where he said:

‘There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible — it is right. The validity of a local rule does not depend upon the soundness of a Council's opinion; it is sufficient if the opinion expressed be one reasonably open to a council. Whether it is sound or not is not a question for decision by the Court.’”

30. [30]
    In Eschenko v. Cummins & Ors,^[22] Newton DCJ added:

“In these circumstances it is not open to this Court to substitute its own opinion for that of the second respondent unless its approval is shown to have been unjustifiable, based on irrelevant considerations or one that no reasonable Council could have granted: MLC Properties and Anor v. Camden Council and Orsu [1997] NSWLEC 130; (1997) 96 LGERA 52 at 56 per Lloyd J. Thus, this Court is not entitled to disregard the fact that the legislature has vested the power to exercise a discretion in the Council. The role of the Court when reviewing the exercise of an administrative decision was considered by Mason J (as he then was) in Minister for Aboriginal Affairs v. Peko Wallsend Ltd [1986] HCA 40; (1985-6) 162 CLR 24 at 40-42:

‘Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [1948] 1 K.B., at p.228.

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd v. MacKellar (1981) 38 A.L.R. at p.375: Reg v. Anderson: Ex Parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 C.L.R. 177, at p.205: Elliott v. Southwark London Borough Council (1976) 2 All E.R. 781, at p. 788: Pickwell v. Camden London Borough Council (1983) Q.B. 962, at p. 990. I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’. The ground of review was considered by Lord Greene M.R. in Wednesday Corporation (46) in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.”

31. [31]
    In Cox v Maroochy Shire Council,^[23] at [34] Skoien SJDC emphasised that the unreasonableness test should be:

“… confined to extreme cases, its application should not involve the courts in trawling through the fine details of the administrations work, looking for errors.  Rather, it amounts to the sort of low level quality control which most management systems should maintain in any event ... there would be serious credibility costs to the system if demonstratively absurd decisions were allowed to go unchecked ...” (citing Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707)

32. [32]
    Later in Bon Accord Pty Ltd v Brisbane City Council & Ors,^[24] Rackemann DCJ collated the relevant principles as follows:

“The applicant relies on what is commonly referred to as ‘Wednesbury unreasonableness.’  The test has been described as ‘stringent’ and ‘extremely confined.’ It is not sufficient to establish that, as a matter of merit, a different decision ought to have been preferred.  What must be established is that no decision maker, acting reasonably, could have made that decision.  In applying that standard, a court must proceed with caution, lest it exceed its supervisory role, by reviewing the decision on the merits.  Whilst this court is often charged with the responsibility of reviewing a planning authority’s decision on the merits in the context of an appeal, that is not its role in proceedings of this kind.  In Associated Provincial Picture Houses Ltd v Wednesbury Corporation itself, it was said that ‘to prove a case of that kind would require something overwhelming’.

In Lillywhite v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry, the Court of Appeal referred, with approval, to the principles expressed by Gibbs J in Buck v Bavone in which, after discussing other grounds for review, it was said:

‘Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.  However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.  In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.’”

33. [33]
    The applicants bear the onus of proving that the approval is indefensible.^[25]  Conversely, the respondents do not have the burden of excluding error.^[26]

Town Planning Assessment

34. [34]
    The applicable planning scheme is the Logan Planning Scheme 2006 prepared under the Integrated Planning Act 1997 (Qld).  It continues to have effect by virtue of s. 778 of SPA.

35. [35]
    The planning scheme includes the developer’s Land within the Park Ridge zone, and more specifically sub-area PR1 of the Centre Locality. A major retail centre is intended and the retail hierarchy contemplates a centre of up to 40,000 m²  (i.e. over 3 times the GLA of the extended centre).^[27]

36. [36]
    The development application was code assessable.^[28] 

37. [37]
    Code assessable applications must be assessed against each of the “applicable codes” in the planning scheme (s 313(2)(e)(iii)), and having regard to the following matters listed in s. 313(3) of SPA:^[29]

1. (a)
   the common material;

2. (b)
   any development approval for, and any lawful use of, premises the subject of the application or adjacent premises;

3. (c)
   any referral agency’s response for the application;

4. (d)
   the purposes of any instrument containing an applicable code.

38. [38]
    The term “applicable codes” for development is defined in Schedule 10 of SPA, to mean “a code, including a concurrence agency code, that can reasonably be identified as applying to the development.”

39. [39]
    Section 313(5) of SPA dictates that a council must not assess a code assessable application against, or have regard to, anything other than a matter or thing mentioned in s. 313 of SPA.

40. [40]
    Each code in the planning scheme comprised:^[30]

1. Overall Outcomes – a statement of desired outcome that is the purpose of a code;

2. Specific Outcomes – a statement of desired outcome that contributes to the achievement of an Overall Outcome; and

3. Probable Solutions – an assessment criteria that provides a guide to achieving a Specific Outcome in whole or part, but does not necessarily establish compliance with the Specific Outcome.

41. [41]
    The applicable codes relevant to this case are the Centres Locality and Zones Code and the Work Code.^[31]

42. [42]
    The Centres Locality and Zones Code expressly confines assessment of the development application against the Specific Outcomes only. Section 3.3.8(b) provides:^[32]

“Development complies with the centres locality and zones code if in the case of – …

(b) code assessable development, there is compliance with the specific outcomes of the centres locality and zones code applicable to the development; …”

43. [43]
    This provision can be contrasted with impact assessment where compliance is required with both the Specific Outcomes, and the purpose and Overall Outcomes.^[33]

44. [44]
    Therefore, it seems to me that the proper construction of the legislative provisions governing the assessment, required an assessment of the application against the applicable specific outcomes in the Centres Locality and Zones Code having regard to, inter alia, the purpose of the Planning Scheme.  This means that the DEOs and Overall Outcomes could not render the application non-compliant or in conflict with the code.

Decision

45. [45]
    The decision rules are identified in Chapter 6, Part 5, Subdivision 2 of SPA.  Section 324 of SPA relevantly provides

46. [46]
    The reference in s. 324(2) to the assessment made under Division 2, includes s. 313 of SPA discussed above.

47. [47]
    Section 326 of SPA provides that the council’s decision must not conflict with a relevant instrument, namely an applicable code, unless (relevant here) “there are sufficient grounds to justify the decision, despite the conflict.”

48. [48]
    If, after an assessment, the development application is found to comply with the applicable code, then it may be approved in whole or part. If the application is found to be non-compliant or in conflict with the code, then consideration must be given to the matters listed in s. 326 of SPA, including sufficient grounds.

Grounds

49. [49]
    Statutory Guideline 05/09 – Sufficient Grounds for Decisions that Conflict with a Relevant Instrument” was published under s. 759(1)(a) of SPA.  It provides “guidance on matters that may be considered in determining if there are sufficient grounds”.  It suggests a list of matters that may be considered in determining whether grounds exist subject to their applicability to the particular circumstances of the application subject of assessment.

50. [50]
    Matters relevant to consideration of relevant grounds must obviously go beyond the specific outcomes canvassed in an applicable code subject of the conflict. If it were otherwise, the inquiry would be a circular futility. It seems to me that at this stage of the assessment, the DEO’s and Overall Outcomes may well be relevant considerations for the council, through its delegate, to determine whether there are sufficient grounds to justify the decision, despite the conflict.

Decision about representations

51. [51]
    Section 361 of SPA entitled the developer to make written representations to an assessment manager about a matter stated in the decision notice.  The council must consider any such representations.

52. [52]
    If a council agrees with any of the representations made about a decision notice, s. 363(1) of SPA required the council to give a new notice to the developer.  Before an assessment manager agrees to change a decision notice, it must pursuant to s. 363(2) “…. consider the matters the assessment manager was required to consider in assessing the application, to the extent the matters are relevant.”

53. [53]
    A negotiated decision notice must comply with s. 335 of SPA, and only one may be published (s. 363(3) of SPA).

Beyond Power

54. [54]
    The first issue is whether condition 1.2 is beyond power and invalid; and if so, whether the condition can be severed.

55. [55]
    Condition 1.2 of the development approval stipulates sunset and transition of the “mini major” use in these terms:^[34]

56. [56]
    The Applicants challenge the validity of condition 1.2 as being beyond power on two grounds: Firstly, that it constitutes approval of temporary retail development; and secondly that it offends against the finality principle.

Temporary Retail Development

57. [57]
    The applicants contend that “the condition purports to approve development which was not the subject of the development application, namely temporary retail development which will not cease until November 24, being some three years after the date contemplated by Map 2.15B of the LPS.”^[35]

58. [58]
    I am unable to accept that the mini major can be characterised as temporary retail development. It comprises 845m² of a 7,947m² extension, with a resultant centre of 13,095m².^[36]  All that the condition purports to do is place a time limit on the use in that location.

59. [59]
    The development application was proffered as the first stage of overall development for the centre and foreshadowed that the Mini Major “can be relocated as part of the future development of the Town Centre”.^[37]  It seems to me that it was properly part of the application.

60. [60]
    In certain circumstances it might be desirable for a council to grant development approvals for uses that are limited in time.^[38]  The power to do so is contained in s. 346(1)(a) of SPA which provides that:

61. [61]
    The power is not novel, having been a feature of the predecessor to SPA in s. 3.5.31(1)(a) of the IPA.  It applies to both the use and the associated works (i.e. the buildings or other structures within which a use occurs)^[40] and would include parts of a use or parts of works by operation of s. 32C of the Acts Interpretation Act 1954 (Qld).

62. [62]
    The applicants’ contention seems to criticise the exercise of the power to allow a period of “three years after the date contemplated by Map 2.15B”.  In doing so, I think the weight attributed to the map is misplaced.  That map merely identifies the very large extent of the total structure plan area, identifies existing developed areas to the east and allocates the balance to three broader areas with an intended sequence of development.^[41]  The Map does not mandate the completion of Padston Road or any particular feature of the major centre within that sequence.  Further, it does not form part of the assessment code and therefore cannot give rise to any relevant conflict.

63. [63]
    In my view, this is an ideal situation for the council, through its delegate, to exercise the power to place a time on the mini major proposed.  On a proper construction of condition 1.2, the mini major must cease by November 2024 to create a north-south pedestrian link, unless earlier removed or relocated in accordance with any approval processes and applicable law at the time.

64. [64]
    This approach is a proper exercise of the power and this ground must fail.

Finality

65. [65]
    The second ground of contention is that “condition 1.2.2 lacks finality in that it leaves a material or matter to be determined at a point in the future, namely the appropriate location of the so-called mini major and assessment of whether that location complies with the LPS or a future planning instrument applying to the same land.”^[42]

66. [66]
    After referring to the authorities regarding the ‘finality principle’ Robertson DCJ in Caloundra City Council v Pelican Links Pty Ltd & Anor^[43] said at [51]:

“It seems to me therefore that there are, as it were, two aspects to the ‘test,’ and if the condition infringes either or both it is invalid. These can be stated relevantly to the facts here in the following way.  Firstly, if a condition imposed (on an approval) by Council has the effect of significantly altering the development in respect of which the development application is made, then the proposed approval is no approval at all.  Secondly, where a condition leaves for later decision an important aspect of the development, and the decision on that aspect could alter the proposed development in a fundamental way, then the approval with that condition cannot be regarded as final.”

67. [67]
    It addition, such a condition ought not circumvent an appropriate assessment process, including proper public notification, and thereby block the rights of submitters.^[44]

68. [68]
    Condition 1.2 (including condition 1.2.2), requires the mini major to be either removed or relocated by no later than November 2024 to create a north-south pedestrian link.  Its relocation, or removal, will not alter the development in respect of which the application was made, and will not alter the proposed development in a fundamental way.  It was foreshadowed by the application, and comprises a relatively small component of the centre and will, in any event, facilitate pedestrian access in a north-south direction.  Further, s. 346 of SPA empowered the council to condition how long a use may continue or works may remain in place.

69. [69]
    Condition 1.2 (including condition 1.2.2), is not like that considered in McBain v Clifton Shire Council (1994) 2 Qd R 493 where the approval of the council effectively excluded public notification of applications for future extensions of the development.  The condition here does not seek to excuse or truncate the need for the developer to comply with any approval processes.  Any relocation (or removal) of the “Mini Major” will need to comply with the law and approval processes and public notification applicable at the time at which permission for relocation (or removal) is sought. 

70. [70]
    For these reasons, I conclude that condition 1.2 was not beyond power and is valid.

71. [71]
    Even if, I had found the condition invalid, I agree with the submissions of the second respondent that the condition can be severed;^[45] but having reached the conclusion I have, it is unnecessary to further deal with severance. 

Inconsistent findings

72. [72]
    The applicants assert that, in determining whether a decision to approve the development application would conflict with the planning scheme, the council (through its delegate) made inconsistent findings of fact in relation to the assessment of the proposed development against:^[46]

73. [73]
    In relation to Overall Outcome 20(e) in the context of whether the centre would function as an integrated centre, the applicants point to the finding of the council officer that:^[47]

“… the development integrates with existing shopping centre, service station and other retail shops to the immediate east … there is no new development occurring to the immediate north or east of the site.”

74. [74]
    The applicants then rely upon the council officer’s report containing a similar finding with respect to Specific Outcome O39(a).^[48]

75. [75]
    The applicants seek to contrast this finding made by the council officer, “and by extension the delegate”,^[49] with respect to Specific Outcome O8(a) of the PR1 Sub-Area Code, that:

“The site cannot be specifically integrated with adjoining development at this time due to the limited development occurring on adjacent sites, and also the development was not representative of the full development of the site.”

76. [76]
    The applicants argued that these are inconsistent findings and were relevant to the exercise of the power to conclude there was no conflict with the planning scheme with respect to integration.

77. [77]
    It seems to me that the applicants approach is flawed for several reasons.

78. [78]
    Firstly, the findings relied upon by the applicants are of the reporting council officer, and not those of the delegate.  I do not accept that a precursor report of the council officer can be attributed to the council (through the delegate) in the ultimate decision.  There was no evidence that the delegate adopted the earlier report, or incorporated any part by reference.  Even so, the officer makes an erroneous slip by referring to “east” when it ought to have been “west”.

79. [79]
    Secondly, the Overall Outcomes are not determinative of conflict; instead, it is the Specific Outcomes which are relevant to the assessment. This I’ve discussed above.

80. [80]
    Thirdly, in any event, the findings are not materially inconsistent when considered in their full context:

81. [81]
    Considered in their full context, in my view the remarks tend to show that integration was considered to be achieved to a degree presently appropriate, in that not all adjacent or adjoining sites have been developed, nor has the whole of the developer’s land been fully developed.

82. [82]
    Even if these findings can be attributed to the council (through its delegate), the grounds identified by the delegate in in sub-paragraphs 14 (b), (e), (h), (i) and (k) affirm consistency.^[51]

83. [83]
    For these reasons, I think this is a situation where reasonable minds may differ in relation to integration, and I am not satisfied that they are unreasonable in the Wednesbury sense.  Further, I am not satisfied that these matters materially affected the decision.

Failure to take account of relevant considerations

84. [84]
    I turn now to the issue of whether the delegate failed to take into account relevant considerations when determining conflict with the Planning Scheme.

85. [85]
    The applicants assert that the council (through it’s delegate) in determining whether a decision to approve the development application would conflict with the planning scheme did not have regard to a relevant consideration, namely:

1. Section 2.1.5(5), insofar as the provision requires consideration to be given to infrastructure networks specified in the Priority Infrastructure Plan;

2. Overall Outcome 34(b), said to be relevant “given the delegate’s findings of conflict with Chapter 3, Part 3, s. 3.3.75, Table 3.3.75, Specific Outcomes 07, 08, 09, 010 and 011”; and

3. Specific Outcome 023 said to be relevant given the findings in relation to s. 3.3.10, Table 3.3.10, Items 11, 20, 24 and s. 3.3.11, Table 3.3.11, Specific Outcomes 033, 034, 038 and 039.

86. [86]
    Counsel for the applicants develops his argument again in reliance upon findings made by the Council officer, and seeks to attribute them by extension to the delegate.^[52]  I have already considered the flaw in this approach.  Unless expressly incorporated by reference, I do not accept that the contents of the officer’s report can reliably show the delegate’s deliberations or the decision of the council through the delegate.

87. [87]
    The applicants will only succeed where a decision-maker fails to take into account a consideration which the decision-maker was bound to take account of in reaching a decision.^[53]  They must show that the scheme provisions (s. 2.1.5(5), Overall Outcome 34(b); and Specific Outcome O23) were “relevant considerations”. 

88. [88]
    For the reasons discussed above, the relevant considerations for the assessment required by s. 313 of SPA were the Specific Outcomes in the Centres Locality and Zones Code having regard to, inter alia, the purpose of the Planning Scheme.  For the same reasons, whilst s. 2.1.5(5) and Overall Outcome 34(b) may be considered in determining whether there are “sufficient grounds” to overcome any conflict, they were not relevant to whether the development application was in conflict with the Planning Scheme.

89. [89]
    The applicants’ contention is therefore limited to Specific Outcome O23, being a relevant consideration.

90. [90]
    Specific Outcome O23 of the Planning Scheme provides:

“Development is in accordance with the retail centre hierarchy specified in the Overall Outcomes for the Centre’s Locality and Zone Code.”

91. [91]
    The applicants argue that, in determining consistency with the retail hierarchy as expressed with the Overall Outcomes in the Centres Locality Code, the assessment manager was required to assess the proposal against the Overall Outcomes in Table 3.3.10, including Overall Outcome 011 and 034. 

92. [92]
    In my view the argument puts an unnecessary gloss on Specific Outcome O23 to cast too wide a net to incorporate by reference the whole of 3.3.10, including Overall Outcome 011 and 034.

93. [93]
    Specific Outcome O23 only incorporates that part of the Overall Outcomes for the Centre’s Locality and Zone Code wherein the “retail centre hierarchy” is “specified”.  This can be found in Overall Outcome 19 which  specifies a “retail centre hierarchy” that provides for service centres, local retail centres, district retail centres and major retail centres located in centres zones and sub-areas of major centres limited to identified in the specified columns of Table 3.3.10B and maximum GLA.  In turn, for the PR1 sub-area of the Park Ridge zone Table 3.3.10B of the Centre’s Locality and Zone Codes, identifies a major retail centre and prescribes that the total maximum GLA of the retail activities in that major retail centre not exceed 40,000 m². 

94. [94]
    The proposed GLA of the extended shopping centre is only 13,095 m², well within the maximum GLA.  It is so obviously compliant, it may have gone without expressly saying so, and I am unable to draw the inference that the council (through its delegate) did not take Specific Outcome O23 into account.

95. [95]
    Even if a failure to have regard to Specific Outcome O23 was established, in my view, it would have had no bearing on the ultimate result. The development obviously accords with the Retail Centre Hierarchy identified in the Overall Outcomes for the Centres Locality and Zones Code. It would not warrant intervention by this court.

Findings without Evidence

96. [96]
    The applicants next assert that the delegate made two findings about which there was no evidence, in particular:^[54]

1. In finding that a decision to approve the proposed development would not conflict with s  s. 2.1.5(2), the delegate found that ‘Development is of a suitable scale to cater for the surrounding catchment’; and

2. In finding that a decision to approve the proposed development would not conflict with s  s. 3.3.11, Table 3.3.11 and Specific Outcome O28, the delegate found that the proposed development ‘provides a benefit to and satisfies both a community need and an economic need of the residents of the planning scheme area’.

97. [97]
    Again, the Applicants attribute to the delegate “findings” set out in the development assessment report prepared by the council officer, Ms Yu.  For the reasons discussed above, I am unable to accept the foundation of the appellants’ submission, and it will fail on that point alone.

98. [98]
    In any event, I should deal with some more matters.

99. [99]
    As I canvassed above, DEO 2.1.5 was not a relevant consideration for the assessment required by s. 313 of SPA.  In so far as it might be relevant to consideration of ‘sufficient grounds’ it is not difficult to see that the proposed development was consistent with the pattern of land use and infrastructure networks specified on Map 2.1.5A.  That Map depicts the Park Ridge Town Centre on the land and the Trunk Road Network.  An adjunct finding about the related DEO could not be said to be unreasonable in the Wednesbury sense.

100. [100]
     Section 3.3.11, Table 3.3.11 and Specific Outcome O28 are different. Specific Outcome O28 is a relevant consideration in relation to considering conflict with the planning scheme. It is tolerably clear that the delegate was satisfied there was no such conflict as evidenced by the absence of Specific Outcome O28 in paragraph 13 of the 2^nd Negotiated Decision Notice.  Indeed, the applicants do not assert that there is a conflict.  They merely assert the absence of evidence to support the “finding”.

101. [101]
     In Waratah Coal Pty Ltd v Coordinator-General, Department of State Development, Infrastructure and Planning [2014] QSC 36, Applegarth J surmised the principles of a ‘no evidence’ challenge this way (excluding references):

102. [102]
     The Planning Scheme contemplates up to 40,000 m² of GLA for retail activities in the major retail centre in the PR1 sub-area.  It is trite to say that an expanded centre will increase the range of retailers at the centre and thereby benefit the public in terms of choice, competition and convenience.  These are obvious matters which can be gleaned without the need for strict proof of evidence as was acknowledged by the Council in its pre-lodgement meeting when the developer was told that it did not require an economic needs analysis within the scope of the local area plan and Centres Code.^[55]

103. [103]
     In any event, the delegate was entitled to rely upon the town planning opinion contained in the town planning report supporting the development application that Specific Outcome was complied with because: “The proposed development will provide employment and a development which services a specific need for the residents in the nearby areas”.^[56] 

104. [104]
     Even if the “finding” can be attributed to the delegate, I am not satisfied that it was unreasonable in the Wednesbury sense.  Accordingly, the appellants’ challenge fails.

Desired Environmental Outcome

105. [105]
     The next issue is whether the delegate erred by finding no conflict with a DEO.

106. [106]
     The applicants’ allegation is that:^[57]

107. [107]
     The simplicity of this issue is distorted by the multipronged submissions on behalf of the applicants, premised on these questions:

1. (a)
   Was s. 2.1.5 a relevant consideration?
2. (b)
   Was compliance with s. 2.1.5 determined, in part, with an absence of evidence?
3. (c)
   Did the decision maker err in determining conflict with s. 2.1.5(1)?
4. (d)
   Did the decision maker err in determining no conflict with s. 2.1.5(2)?
5. (e)
   Did the assessment manager have proper regard to s. 2.1.5(5)? And
6. (f)
   Was a finding of compliance inconsistent with other findings

108. [108]
     For the same reasons that I have repeated often above, the applicants’ contention is fatally flawed for its unsupported attribution to the delegate of “findings” in the council officer’s report.

109. [109]
     Even so, since DEO 2.1.5 was not a relevant consideration for the assessment of conflict with the scheme as required by s. 313 of SPA, a finding that there was no conflict is benign to the final decision. Consideration of the DEO may be appropriate for the purposes of considering whether there are “sufficient grounds” to justify a decision otherwise in conflict with the Planning Scheme.  However, it is not necessary that every DEO be satisfied to justify approval.  The delegate’s consideration of the identified DEO’s in paragraphs 14 b) and 14 c) of the Negotiated Decision Notice is consistent with relevant consideration having occurred and does not suggest misconstruction of those DEOs.

110. [110]
     I am not satisfied that the applicants have demonstrated that the findings made by Mr Cullen relevant to the identified DEOs were unreasonable in the Wednesdbury sense.

Nature and Extent of Conflict

111. [111]
     The next issue is whether the delegate erred in his identification of the nature and extent of the conflict with the planning scheme.

112. [112]
     The applicants’ assertion is that:

“Further, or in the alternative, the delegate in the exercise of the discretion under s. 363(1) of the SPA erred in law because the errors pleaded in paras 22 above meant that the nature and extent of the conflict with the [Logan Planning Scheme] was not properly identified, which is a precondition to the proper and lawful exercise of the discretion.”

113. [113]
     I have discussed and determined above each of the grounds pleaded in paragraph 22 of the originating application. Further, whilst minds may differ, it seems to me that the delegate’s findings reasonably and appropriately deal with the nature and extent of conflict, and as matters of fact they are not susceptible to challenge.^[58]

114. [114]
     I therefore conclude that the applicants have not satisfied the burden of establishing any material error or unreasonableness in the Wednesbury sense.

Sufficient Grounds

115. [115]
     The applicants’ challenge that the delegate’s error in finding that there were “sufficient grounds” to overcome conflict with the planning scheme, suffer a similar fate.

116. [116]
     The applicants rely upon the following matters already considered and disposed of earlier in these reasons dealing with the various individual issues raised in paragraph 22 of the originating application.

117. [117]
     The applicants have not demonstrated that the council’s decision (through the delegate) as to the existence of sufficient grounds was unjustifiable. I therefore conclude that the applicants have not satisfied the burden of establishing any material error or unreasonableness in the Wednesbury sense.

Unreasonableness

118. [118]
     For all these reasons, I conclude that the applicants have failed to show that the decision was one that no reasonable decision maker could have formed or that it was based on irrelevant considerations, or that in some other way it was unjustifiable.

Discretionary Considerations

119. [119]
     Having regard to the conclusions reached in respect of each issue, it is unnecessary to consider whether the relief claimed by the applicants should be allowed, or otherwise, and whether any non-compliance with the Sustainable Planning Act should be excused pursuant to s. 440 of the act.

Conclusion

120. [120]
     The application is dismissed.

121. [121]
     I will hear further submissions on the appropriate orders and the future conduct of the proceedings.

Judge D. P. Morzone QC