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McConaghy Properties Pty Ltd v Townsville City Council[2017] QPEC 11

McConaghy Properties Pty Ltd v Townsville City Council[2017] QPEC 11

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

McConaghy Properties Pty Ltd v Townsville City Council & Anor [2017] QPEC 11

PARTIES:

McCONAGHY PROPERTIES PTY LTD

ACN 108 353 331

(Appellant)

v

TOWNSVILLE CITY COUNCIL

(Respondent)

and

PARKSIDE DEVELOPMENT PTY LTD

ACN 009 802 233

(Co-Respondent)

FILE NO/S:

315 of 2016

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

10 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

15, 19, 20, 21, 22, 23 and 26 September 2016

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal allowed.
  2. The development application is refused.
  3. I will hear the parties as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Appeal against approval of major commercial development including a supermarket, specialty shops - land currently zoned open space, sport and recreation purposes – land owned and occupied by rugby union association – relocation of existing use to larger facilities subject of future application, assess and approval. 

OUT OF CENTRE DEVELOPMENT – provision of the necessities of life (food and groceries) - whether unacceptable adverse impacts on the centres network – whether unacceptable adverse impacts on the open space network - whether unacceptable adverse impacts on the traffic network.

CONFLICT – Conflict with the scheme – at serious end of spectrum - whether the proposal will meet an existing town planning and community need, and economic need, without unacceptable amenity or economic impacts; whether the proposal will create a definable node of uses; whether the proposal will result in improvements to the road network; whether proposal will provide additional employment opportunities during construction and operation; whether the zoning of the subject land has been “overtaken by events” - whether sufficient grounds to approve the application despite the conflicts.

Legislation

Sustainable Planning Act 2009 (Qld) (“SPA”)

Cases

Australian Capital Holdings v Mackay Regional Council & Anor [2008] QCA 157

Brown v Moreton Shire Council [1972] 26 LGERA 310

Bunnings Building Supplies Pty Ltd v Redland Shire Council and Ors [2000] QPELR 193

Calligaris v Bundaberg CC [2002] QPELR 210

Chelmer Bowls Pty Ltd v BCC [2006] QPELR 611

Cut Price Stores Retailers & Ors v Caboolture Shire Council [1984] QPLR 126

Elan Capital Corporation Pty Ltd & Anor v BCC & Ors [1990] QPLR 209

Elfband & Anor v Maroochy Shire Council & Ors [1995] QPLR 290

Fitzgibbon Hotel Pty Ltd v Logan CC [1997] QPLER 208 

Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 750

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QCA 021

Grosser v Gold Coast City Council [2001] 117 LGRA 153

Handley v BCC & Anor [2005] QPELR 80

Holts Hill Quarries Pty Ltd v Gold Coast CC & Ors [2001] 1 QdR 372

Hydrox Nominees Pty Ltd v Sunshine Coast Regional Council [2014] QPEC 18

Hymix Australia Pty Ltd v BCC & Ors [2014] QPELR 645

Intrafield Pty Ltd v Redland Shire Council [2001] 116 LGERA 350

JPF Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359

Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 064

Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271

Lewiac Pty Ltd & Anor v Gold Coast City & Ors [2003] QPELR 385

Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 QdR 302

McBain v Clifton Shire Council [1996] 2 QdR 493

Mison v Randwick MC (1991) 23 NSWLR 734

Roosterland Pty Ltd & its agents v Brisbane City Council [1986] QPLR 515

Skateway Pty Ltd v Brisbane City Council & Ors [1980] QPLR 245

Walker v Noosa Shire Council [1983] 2 Qd R 86.

Weightman v Gold Coast City Council [2003] QdR 441

Woolworths Ltd v Maryborough CC (No. 2) (2006) 1 QdR 273

COUNSEL:

D.R. Gore QC and J.G. Lyons for the Appellant

S Ure for the Respondent

C Hughes QC and M Williamson for the Co-Respondent

SOLICITORS:

Colin Biggers & Paisley for the Appellant

Townsville City Legal Services for the Respondent

Wilson, Ryan and Grose Lawyers for the Co-Respondent

  1. [1]
    The co-respondent/developer defends the respondent council’s decision to approve an out-of-centre shopping complex and fast food outlet, on land owned and occupied by a local rugby union club in Townsville.
  1. [2]
    The appellant/submitter who opposes the application, owns and operates a nearby shopping centre called “CastleTown”. The respondent council has taken a neutral position in the appeal.[1]

Proposed development

  1. [3]
    At the commencement of the hearing, the co-respondent applied to proceed on the proposed development with minor changes for the purposes of ss 350 and 495(2)(b) of the Sustainable Planning Act 2009 (“SPA”).  The application was not opposed. 
  1. [4]
    The changes involved insignificant internal rearrangement in relation to a deceleration lane, movement of the building footprint, minor increase in gross floor area, parking redistribution and an overall reduction from 365 car parks to 359, traffic circulation changes, trolley storage, dedicated bus and taxi areas, and access reconfiguration to two egress lanes and one ingress lane. The changes were diagrammatically shown by comparing the plans behind tabs 2 and 3 in exhibit 4.
  1. [5]
    The application was granted and the appeal proceeded on the basis that the proposed development included the minor changes.
  1. [6]
    The proposed shopping centre development is depicted in the amended plans behind tab 3 exhibit 4 and has a total gross floor area of 7042m2 comprising:[2]
  1. a full-line Coles supermarket with a gross floor area of 4,199m2;
  1. a range of specialty shops sharing a gross floor area of 378m2;
  1. a shop (discount store) a gross floor area of 642m2;
  1. a retail stores sharing a gross floor area of 1412m2;
  1. services comprising gross floor area of 197m2;
  1. a freestanding fast food outlet with a gross floor area of 214m2;
  1. signalised access via one ingress lane and two left-out egress lands; and
  1. adjacent ground level carparking for 359 vehicles.
  1. [7]
    The building footprint will not occupy the entire the land. An open space area is proposed for a off-leash dog area, open kick about space and walking/cycle paths to provide connectivity to a nearby lake.[3] 

Land

  1. [8]
    The land, described as Lot 10 on SP206744, is in Currajong, about 4km from the Townsville central business district and is generally located between industrial development and the CastleTown subregional complex.[4]
  1. [9]
    The land has frontage to Hugh Street which is an arterial road constructed to a four lane divided standard that connects major arterial roads further to the north and south.[5]  Woolcock Street is the major arterial road 350m north of land.  It’s a State controlled road.[6]  The major arterial road to the south is Bayswater Road which is located 240m south of the site access for the proposed development.
  1. [10]
    The land is framed:[7]
  1. to the north - by mixed use development, including a small retail premises and a caravan park over which approval exists for 226 multiple dwellings;
  1. to the east - by a caravan park and open space land;
  1. to the south - by open space land; and
  1. to the west - by Hugh Street, being adjacent to range of industrial uses have developed.
  1. [11]
    The land is owned and used by the Townsville District Rugby Union as sporting grounds for rugby union.[8]  It comprises: two lit fields and scoreboard; administration facilities including four change rooms, toilets, licensed bar and canteen; irrigation; parking for 173 cars; and boundary fencing.[9]  The land is capable of adaption for alternative sporting and recreation uses, for example - rugby league; soccer; hockey, baseball or softball; junior AFL; indoor cricket; court sports such as netball, tennis and outdoor basketball; and swimming pools.[10]

Planning Treatment

  1. [12]
    The development application was made SPA on 8 July 2014.
  1. [13]
    The City Plan 2005 (“2005 scheme”) was in force at the date the development application was made to the Council.  The land was included in the Green Space Precinct of District 2 - Townsville Inner Suburbs District.
  1. [14]
    The proposed City Plan 2014 was publicly notified before the appellant made the development application.[11]  The new scheme commenced on 27 October 2014 (“2014 scheme”) being about 12 months before of the respondent approved the application.[12]  The land is included in the Sport and Recreation Zone in the 2014 scheme.

Statutory framework

  1. [15]
    This appeal is by way of a hearing anew,[13] and must be decided based on the laws and policies applying when the development application was made, although weight may be given any new laws and policies that the court considers appropriate.[14]
  1. [16]
    The court must assess the application in accordance with ss. 314 and 317 of the SPA and decide the application in accordance with ss. 324 and 326 of the SPA.
  1. [17]
    Pursuant to s. 326 of the SPA the decision must not conflict with the 2005 scheme unless there are “sufficient grounds” to justify that decision despite the conflict.
  1. [18]
    Any conflict must be “plainly identified”.[15]  The term “conflict” was considered by the Court of Appeal in Woolworths Ltd v Maryborough CC (No. 2),[16] where Fryberg J said:

“‘Conflict’ in this context means to be at variance or disagree with.  It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme).  Unlike ‘compromise’ in para. (a), it implies no particular impact by a subject upon an object.  A determination that there has been a breach of the requirement that ‘the assessment manager’s decision must not … conflict with the planning scheme’ requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter.  Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.”

  1. [19]
    The word “Grounds” is defined in Schedule 3 of the SPA in respect of s. 326(1) as:

“1. Grounds means matters of public interest.

2. Grounds does not include the personal circumstances of an applicant, owner or interested party.”

  1. [20]
    In Weightman v Gold Coast City Council,[17] in considering a similar requirement to s. 326 of the SPA in the repealed Local Government (Planning and Environment) Act 1990, Atkinson J observed:

“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s 4.4(5A)(b) of the P&E Act, the decision maker should:

  1.  examine the nature and extent of the conflict;
  2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
  3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
  1. [21]
    In Lockyer Valley Regional Council v Westlink Pty Ltd,[18] the Court of Appeal discussed and affirmed the Weightman test.  Later, in Kangaroo Point Residents Association Inc v Brisbane City Council & Anor,[19] the Court held at [69]-[70]:

“A useful starting point for such interpretation is to consider the approach of de Jersey CJ, with whom Muir JA and Douglas J agreed, in Stockland Development Pty Ltd v Townsville City Council & Ors. There, after noting that the first instance approach to the application of the scheme to the developer’s proposal involved ‘a correct interpretation of the language of the scheme’ and ‘a factual conclusion as to the absence of conflict,’ de Jersey CJ stated that it was a mistake to think that the construction of town planning schemes can or should be attended by the precision and certainty which should characterise the construction of contracts and statutes, because good town planning, basic principles aside, depends on a large element of fluidity and flexibility: at 324 [25]-[26].

But that approach does not mean that the same general principles which apply to statutory construction do not apply to the construction of planning documents. This was the concern of the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council & Ors. There, Morrison JA, with the concurrence of McMurdo P and Douglas J, authoritatively stated that the correct approach to statutory interpretation must begin and end with the text itself, while at the same time bearing in mind that the modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, using ‘context’ in its widest sense: at 95 [55] (with citations omitted). Where the flexibility and fluidity must then occur, consistently with Morrison JA’s analysis, is by appreciating that such documents need to be read in a way which is practical, to be read as a whole, and to be read as intending to achieve balance between outcomes: at 95 [56]. In this understanding of such need, Morrison JA expressly adopted statements by Chesterman JA in AAD Design Pty Ltd v Brisbane City Council, to the effect that: planning schemes, and the definitions found in them, often lack clarity, contain ambiguities, and sometimes appear contradictory; and attempts to make sense of them gives rise, on occasions, to ‘expressions of judicial exasperation’: at 96 [57]”.

  1. [22]
    The co-respondent bears the onus of establishing that the appeal should be dismissed.[20]

Weight to be afforded to the 2005 scheme and 2014 scheme

  1. [23]
    Section 495(2)(a) of SPA provides that the appeal must be decided based on the laws and policies in force on the date the application was made, however the court may give the weight it considers appropriate to any new law or policy.
  1. [24]
    The 2005 scheme was in force when the application was made and is applicable to the assessment.
  1. [25]
    The 2014 Scheme was publicly notified before the appellant’s development application was made. During that period the council was cognisant of the proposal by a submission made by Brazier Motti advocating inclusion of the land within the Local Centre Zone.[21]  The submission:
  1. Sought the change of zoning to the Local Centre Zone on the basis that the long term potential of the TDRU was constricted and that alternative sites were being considered;[22]
  1. Attached an economic impact assessment report prepared by Mr Duane;[23]
  1. Attached a schematic drawing showing a 6370m2 shopping centre referred to as “stage 1” comprising[24]:
  1. (i)
    supermarket (4100m2);
  2. (ii)
    retail (1310m2);
  3. (iii)
    discounter (600-650m2);
  4. (iv)
    medical (360m2);
  5. (v)
    fast food (200m2); and
  6. (vi)
    318 car parks.
  1. [26]
    The 2014 planning scheme commenced on 27 October 2014, being about three months after the development application was lodged.[25]  Suffice to say that the land was not included within the Local Centres Zone, but it is within the Sport and Recreation Zone.[26]  The scheme has been in place 12 months after the decision and has now been in force for about two years. 
  1. [27]
    It is the most recent expression of the Council’s planning strategies for the local government area. Remarkably, the 2014 scheme “sets out Townsville City Council’s intention for future development in the planning scheme area over the next 25 years” subject to periodical reviews in accordance with the SPA.[27]
  1. [28]
    It seems to me that the 2014 scheme ought be afforded significant weight.

Appeal Issues

  1. [29]
    The issues in dispute in the appeal are distilled in paragraphs 9 and 10 in the notice of appeal as follows:[28]

“9. The Proposed Development:

(a)  is “out of centre” development;

(b)  will have unacceptable adverse impacts on the centres network;

(c)  will have unacceptable adverse impacts on the open space network; and

(d)  will have unacceptable adverse impacts on the traffic network.

10.  In particular, the Proposed Development seeks to use land that is part of a planned open space network in circumstances where:

(a)  the uses the subject of the Proposed Development are discouraged within this network;

(b)  the uses the subject of the Proposed Development are instead encouraged and promoted in centre locations within the centres network;

(c)  there is adequate capacity within centre locations to cater for the uses the subject of the Proposed Development;

(d)  using land that is part of a planned open space network for centre activities results in a suboptimal outcome in relation to the underlying transport planning (including in relation to public transport);

(e)  the level of need for the Proposed Development does not justify using the land for centre activities (and it is not otherwise in the public interest);

(f)  using the land for centre activities will negatively impact upon the open space network;

(g)  using the land for centre activities will negatively impact upon:

(i)  centres in both their existing and intended form; and

(ii)  the network of centres generally; and

(h)  the Proposed Development results in an unacceptable traffic impact and configuration both internal and external to the Land.”

Nature and extent of conflict with the planning scheme

  1. [30]
    The notice of appeal pleads that the proposed development conflicts with identified scheme provisions relating to the centres network, the open space network and traffic network.[29]

Centres Hierarchy under 2005 and 2014 Schemes

  1. [31]
    The town planning experts agree that the proposed development conflicts with both the 2005 scheme and 2014 scheme, but they disagree about the nature and extent of conflict.[30]  They have helpfully explained the underlying principles and rationale for centres hierarchies.[31] 
  1. [32]
    The experts agree that the centres hierarchy is a “central plank” or core policy position underpinning the planning and development of the city of Townsville.[32]  Mr Motti, who was called by the co-respondent, accepts that the maintenance of the centres network is an important planning consideration (but in his view is one that must be read in the context of circumstances and public benefit).[33]

2005 Scheme

  1. [33]
    The 2005 scheme contains six parts: introduction; interpretation; Desired Environmental Outcomes (“DEOs”); districts; overlays; and codes for particular development.[34] 
  1. [34]
    The DEOs form the basis of the measures in the planning scheme,[35] and they each have a number of strategies to achieve the DEO.  For example:
  1. (a)
    DEO 3.1(a) “Economic Vitality” seeks: “A prosperous, productive and sustainable economy that is diverse and equitable fulfilling a major servicing role for the North Queensland region.”[36] The strategies to achieve this DEO include: “A retail hierarchy to establish clear centres of economic activity within the City.”[37]
  1. (b)
    DEO 3.1(b) seeks, amongst other things, to provide the community with an appropriate level of access to services.[38] The related strategies confirm that the provision of such services and facilities occurs through existing service centres.[39]
  1. (c)
    DEO 3.1(e) relates to the sense of place and community and the related strategies include encouraging the redevelopment and reinvigoration of existing nominated commercial and community centres.[40]
  1. (b)
    The local government area is divided into eight districts,[41] and each of these districts are divided into precincts.[42] The scheme specifies different types of centres shown on the planning scheme maps for the 8 districts comprising:[43]
  1. (i)
    Central City - Regional Centre;
  2. (ii)
    Sub Regional Centres;
  3. (iii)
    District Centres;
  4. (iv)
    Neighbourhood Centres;
  5. (v)
    Local Centres; and
  6. (vi)
    Centre Frame;…
  1. [35]
    The land is within the Townsville Inner Suburbs District, which is divided into the following precincts:[44]
  1. (a)
    Traditional Residential Precinct;
  1. (b)
    Neighbourhood Residential Precinct;
  1. (c)
    Mixed Use Residential Precinct;
  1. (d)
    Local Centre Precinct;
  1. (e)
    Neighbourhood Centre Precinct;
  1. (f)
    Sub-Regional Centre Precinct;
  1. (g)
    Centre Frame Precinct;
  1. (h)
    Business and Industry Precinct;
  1. (i)
    Community and Government Precinct; and
  1. (j)
    Green Space Precinct.
  1. [36]
    The land is located in the Green Space Precinct. In contrast, the CastleTown shopping centre is aptly located in the subregional centre precinct.
  1. [37]
    Overall outcome 4.31(d) of the Townsville Inner Suburbs District Code provides that:[45]

“Commercial and retail land uses (such as shops, shopping complexes, catering shops and fast food outlets) are appropriately located within centres in terms of scale, role and function of the development and the hierarchal status of the centre.”

  1. [38]
    The specific outcome for each precinct specifies the location and types of centres. Within the Townsville Inner Suburbs District Code, the specific outcomes specify:
  1. (a)
    “local centres” are specified to occur only at 3 identified locations[46] and that the gross lettable area of any one centre does not exceed 1000m2;[47]
  1. (b)
    “neighbourhood centres” are to occur only at 10 identified locations[48] and are to be small scale shopping complexes (up to 10 tenancies) which provide for major weekly/fortnightly retail shopping with the retail gross lettable area in the centre not to exceed 5000m2;[49] and
  1. (c)
    the subregional centre precinct is to accommodate a wide range of retail and commercial uses including “shopping complexes” and “fast food outlets” with the retail gross lettable area not to exceed 55000m2.[50]
  1. [39]
    In summary, the 2005 planning scheme prescribes:
  1. (a)
    different types of centres within the local government area;
  1. (b)
    specific locations for the different centres;
  2. (c)
    different desired outcomes for each centre including by reference to tenancies and the gross lettable area; and
  3. (d)
    centre uses and “inconsistent uses”.
  1. [40]
    The proposed development is not in any of the identified centres and has a gross lettable area of 7,042 m2 being higherthan that specified for local centres and neighbourhood centres.  In my view the proposal represents a larger scale shopping centre and will function at a higher order than a “neighbourhood centre” under the 2005 Scheme.  It is not in an area identified for a centre by the scheme.  Further, the specific outcomes of the Townsville Inner Suburbs District Code make the use of “shopping complex” and “fast food outlet” inconsistent uses in the Green Space Precinct,[51] where the land is located.
  1. [41]
    It is plain that the co-respondent’s proposal is an out of centre development and conflicts with the 2005 scheme.[52]
  1. [42]
    The co-respondent properly conceded as much in the hearing.[53]  The co-respondent accepted that the conflict with the 2005 scheme sits towards the serious end of the spectrum because, amongst other things, the proposed development involves a retail land use (shopping complex and fast food outlet) that is not located in an identified centre in the retail hierarchy of the city.[54]

2014 Scheme

  1. [43]
    The 2014 scheme contains 10 parts: About the planning scheme; State planning provisions; Strategic framework; Priority infrastructure plan; Tables of assessment; Zones; Local plans; Overlays; Development codes; and other plans under the Economic Development Act 2012.
  1. [44]
    The 2014 scheme divides the local government area into a series of zones (as distinct from Districts in the 2005 scheme) and precincts,[55] to organise the location of preferred or acceptable land uses.[56]
  1. [45]
    The local government area comprises various zones and zone codes including, relevant here:[57]
  1. (a)
    Centres zone category:
  1. (i)
    neighbourhood centre zone code;
  1. (ii)
    local centre zone code;
  1. (iii)
    district centre zone code;
  1. (iv)
    major centre zone code;
  1. (v)
    principle (CBD) centre zone code;
  1. (vi)
    specialised centre zone code; and
  1. (vii)
    mixed use centre zone code.
  1. (b)
    Community facilities and open spaces zone category:
  1. (i)
    sport and recreation zone code;
  1. (ii)
    open space zone code;
  1. (iii)
    community facilities zone code; and
  1. (iv)
    environmental management and conservation zone code.
  1. [46]
    The zone codes specify the different aspirations for different centre zones and different centres within the planning scheme area. Assessment criteria for zones are contained in the applicable zone code.[58]  The tables of assessment for the different centre zones use gross floor area as a trigger for code assessment.[59]  For a development application for a shop or shopping centre (including an extension) in the Hyde Park Major Centre, if the use is below 6000m2, it is code assessable development.[60]  Such a development application does not attract third party appeal rights. 
  1. [47]
    Section 1.5(1)(a) of the 2014 scheme provides that the strategic framework prevails over all other elements of the planning scheme to the extent of any inconsistency between provisions in the planning scheme.[61]
  1. [48]
    The strategic framework specifies and intends the following centres:[62]
  1. (a)
    the principal centre - Townsville CBD[63];
  1. (b)
    major centres located in: Aitkenvale; Thuringowa Central; Hyde Park; Burdell (future); and Rocky Springs (future);[64]
  2. (c)
    district centres located at: Idalia; Deeragun; Rasmussen; and Annandale Shaw (future);[65]
  3. (d)
    local and neighbourhood activity centres at locations specified through zoning maps;[66] and
  4. (e)
    specialised centres.[67]
  1. [49]
    The Editor’s Notes to the planning scheme provide that:[68]

“Townsville’s hierarchy of activity centres is indicated on Strategic Framework Map SFM0.2.  Local and neighbourhood activity centres are numerous and not depicted on the map.  They are identified through zoning.”

  1. [50]
    The strategic outcomes within the strategic framework relevantly provides in s.3.3.1:[69]

“(1)  This planning scheme allocates land for housing, business and community uses, sufficient to meet Townsville’s needs for at least 25 years.

  1. (2)
    The shape of the city becomes more compact and efficient, led by intensified development in and around the principal centre (CBD) and the major activity centres at Aitkenvale, Thuringowa Central and Hyde Park. This makes public transport, walking and cycling more convenient and viable, and supports investment in community facilities and other infrastructure.  …
  1. (8)
    The city is structured around a network of activity centres, ranging from the principal centre (CBD) to small neighbourhood centres. These activity centres are focal points for the city and its community. They accommodate the majority of future employment, community and commercial activities. Activity centres are also the focus for transport systems.
  2. (9)
    A hierarchy of activity centres exists to ensure that the scale and form of development is appropriate to the location, and that the centre plays an appropriate role within the wider city. The hierarchy contributes to an efficient, well-functioning and accessible city. While the scale and form of activity centres varies, all activity centres are founded on a mix of land uses, and are supported by residential areas that enhance each centre’s viability.” (underlining added)
  1. [51]
    Section 3.3.4 of the strategic framework provides:[70]

“Nature of centres

  1. (1)
    A broad range of uses are encouraged at activity centres, appropriate to the identified hierarchy, to support vibrancy, community life and health and economic development and competition. Day and night-time activity is expected in Townsville’s larger, higher level activity centres: CBD, Aitkenvale, Thuringowa Central, Hyde Park and future centres at Rocky Springs and Burdell. Residential development is also promoted in activity centres, in a form and density appropriate to the scale of the centre.   …
  1. (3)
    The planning scheme adopts a hierarchy for activity centres in Townsville, the purpose of which is to ensure optimum access to employment, services and facilities across the city, including public transport services, to support the efficient provision of infrastructure and to optimise public investment.
  2. (4)
    The hierarchy is made up of:
    1. the principal centre (CBD);
    2. major centres;
    3. district centres;
    4. local centres;
    5. neighbourhood centres; and
    6. specialised centres.
  3. (5)
    Centres in newly developing areas expand commensurate with population growth in their primary catchments. While over the 25 year planning horizon of this planning scheme they may be expected to grow to a particular level in the hierarchy, they are not to perform at this level prematurely.
  4. (6)
    Development of retail and office activities occurs within the identified activity centres and mixed use areas.  These activities do not locate in an out-of-centre location, except where specifically intended in a particular zone or precinct.”
  1. [52]
    Section 3.3.4.1 in the strategic framework is also relevant to the proposed development:[71]

“(20) District centres provide a mix of activities and services that cater for the weekly and fortnightly needs of surrounding communities. Generally, they do not attract people from beyond the district. They contain a diversity of commercial, community and entertainment-related uses, with supermarket-based retailing. They may also include medium density housing. …

(26) Local centres are convenience-oriented centres focused on a full-line supermarket and complementary and ancillary activities servicing the needs of surrounding communities. New local centres will be established commensurate with the growth of new communities at Rocky Springs, Cosgrove and Mount Low (the latter to be located on Mt Low Parkway, directly opposite North Shore Boulevard).

(27) Neighbourhood centres are small-scale centres that provide a limited array of basic, lower order needs including convenience retail, local professional and community services. Existing centres in established suburbs are not anticipated to require significant expansion, although some minor expansion of uses may be warranted. New neighbourhood centres are anticipated in Burdell, Rocky Springs and elsewhere in newly developing areas where need can be demonstrated. …”

  1. [53]
    Broadly, the 2014 scheme prescribes:
  1. (a)
    different types of centres within the local government area;
  1. (b)
    specific locations of these centres;
  2. (c)
    different desired planning outcomes for each centre; and
  3. (d)
    out of centre retail activities are discouraged “except where specifically intended in a particular zone or precinct”.
  1. [54]
    The land is included in the Community Facilities and Open Spaces Zone and subject of the Sport and Recreation Zone Code but is not included within any relevant precinct or centre in the strategic framework under the 2014 scheme. In contrast, the CastleTown shopping centre is located in the Hyde Park Major Centre and subject to the Major Centre Zone Code.[72]
  1. [55]
    The co-respondent maintains that the proposal would most likely be characterised as a Local Centre under the 2014 scheme. While, that scheme allows new Local Centres, it directs them to specific locations. A local centre of this character is described in the following terms:[73]

“Local centres are convenience-orientated centres focused on a full-line supermarket and complementary and ancillary activities servicing the needs of the surrounding communities…”.

  1. [56]
    Mr Motti considered the local centre zone code before concluding that that the proposal responds favourably to the publically beneficial aspects of such a centre. He found that the characterisation of the proposal as a local centre assisted in determining the role it would play in the hierarchy.[74]  In particular, Mr Motti concluded that the proposal responded positively to the requirements of the Local centre zone code[75] which recognises that a local centre such as that proposed:
  1. (a)
    provides a range of retail activities that focus on grocery shopping and may include a single full-line supermarket;[76]
  1. (b)
    does not compromise the intended role or successful functioning of higher order centres;[77]
  1. (c)
    includes built form that creates a safe and pleasant community meeting place;[78]
  1. (d)
    includes buildings which are low rise;[79] and
  1. (e)
    facilitates accessibility and walking and cycling.[80]
  1. [57]
    It is difficult to quarrel with these observations, except that the proposal is of a larger scale than a local centre contemplated in the scheme.
  1. [58]
    Overall outcome 3(c) for the Local Centre Zone Code requires that “centres do not compromise the intended role or successful functioning of higher order centres or other local centres.  Local centre catchments are in the order of 3000 to 5000 households”.[81]
  1. [59]
    Section 3.3.4.1(26) of the strategic framework provides that new local centres will be established commensurate with growth at three specified locations and does not contemplate that such centres can be established elsewhere “where need can be demonstrated.”  This can be contrasted with s 3.3.4.1(27) which provides that: “New neighbourhood centres are anticipated in Burdell, Rocky Springs and elsewhere in newly developing areas where need can be demonstrated”.
  1. [60]
    The town planning experts agree:[82]

“The planners agree the proposed shopping centre development is not located within a planned or established centre identified in a centres hierarchy and is therefore an out-of-centre-location for the purposes of the identified hierarchy in both planning schemes.”

  1. [61]
    I agree with Mr Vann’s remarks that:[83]

“The proposed development represents an unplanned centre, in an out-of-centre location that would adversely affect the planned role and function of existing and planned centres and so would detract from, rather than complement, the centres hierarchy.  It would splinter, rather than consolidate, the services intended in the Hyde Park major centre.

The centres hierarchy is central to planning for Townsville to facilitate an efficient, compact, well-functioning and accessible city, integrated with an efficient transport network which offers more choices about how to access those services.  The proposed shopping centre development is an unplanned centre in an out-of-centre location which would dilute, rather than support, this important planning principle embedded in both City Plan 2005 and City Plan 2014.”

  1. [62]
    In oral evidence Mr Vann elaborated as follows (underlining the appellant’s emphasis):[84]

“Yes.  Yes?‑‑‑Well, I – I guess I start by saying that the nature of the conflict in this case is to – in my experience, you know, about as significant and serious a conflict as you experience – as you’ve come across in assessing something in a planning scheme.  It’s a – you know, I think it’s common ground and well documented that a centre’s hierarchy is a fundamental foundation for any planning scheme.  These planning schemes – and, in particular, the 2014 scheme – is very directive and clear about the – the implementation of that hierarchy.  In my view, the – the purpose of the scheme and the way it’s intended to operate is to clearly say centre uses are in – to go in centres, and it documents how that should occur, and so an out-of-centre location for centres is not intended and that’s a clear conflict with the – with the planning scheme.  So that’s a both clear and – and substantial conflict.  And so I – I imagine we’ll talk separately about whether or not this is a local centre in terms of the definitions under the 2014 schemes, but I don’t see how the fact that it might be claimed to be meeting a local centre definition is somehow the opportunity to step outside the hierarchy and the clear intention of the planning schemes.

Well, what I did want to ask you about next relates to paragraph 6.0.11, where Mr Motti expresses the view that: The proposal will not detract from the centre’s hierarchy. 

What do you say about that approach?‑‑‑Well, I – I think – well, I disagree, but the reason I disagree is that it seems to be – that point seems to be founded on an assumption that approval of that centre would not seriously deteriorate the – what Hyde park centre is doing now, and – and I know that’s open to some discussion about the – how that might fall on individual tenants and the turnover, and so on, all the matters the economists talk to, but fundamentally that’s not what the planning intent is for Hyde park centre.  It is actually to ensure that it becomes, you know, a – a – more of a focus, that it’s a place where retail is consolidated from a planning perspective, and that’s because it’s intended for it to be one of the major centres or the – in the 2014 scheme – for all the reasons why you have the centre’s hierarchy.  So I think it certainly – it’s open to, you know, how you’d interpret what the economists have told us as to whether it would have a particular impact on the current operation of the centre, but that’s not the end of the matter.  The scheme actually intends that centre to become, you know, more of a focus, to be a place where retail is consolidated.  I also think that the location of this centre so close to that centre will have a direct impact on the centre’s potential for the future, and that’s clearly not the intention of the planning scheme.

  1. [63]
    I am favourably disposed to these observations, which highlight the nature and extent of the conflict between the proposal with the location, role and function of centres and centre uses in the centres hierarchy subject of both schemes.
  1. [64]
    The proposed development is not in any of the identified centres. The trade area for the proposed development is approximately 16,500 households in 2016.[85]  Mr Vann remarked, logically in my view, that the words “catchment” and “trade area” were interchangeable.[86]  Mr Motti accepted in cross-examination that the trade area for the proposed development was “well beyond the catchment population intended for a local centre of 3,000 to 5,000 households”.[87]
  1. [65]
    In my view the proposal represents a larger scale shopping centre in the nature of a District Centre and will function at a higher order than a Local Centre under the 2014 Scheme. It is an out-of-centre development in conflict with the 2014 scheme.[88]
  1. [66]
    So to recap, both planning schemes establish a hierarchy of centres, expressly discourage out-of-centre development unless specifically intended in a zone or precinct,[89] and discourage the alienation of land zoned for Sport and recreation purposes.[90]  The proposal plainly conflicts with these matters.

Open space & recreation under 2005 and 2014 Schemes

  1. [67]
    In the 2005 scheme the land was included in the Green Space Precinct of District 2 - Townsville Inner Suburbs District, and it is included in the Sport and Recreation Zone in the 2014 scheme.

2005 Scheme

  1. [68]
    The open space and recreation strategy can be gleaned from the provisions of the 2005 scheme.
  1. [69]
    DEO 3.1(e) provides for: “An enriched feeling of sense of place through the recognition of the cultural diversity and identity of the community and inherent City character.”[91]  The strategies for achieving this DEO include:

“Provide a balanced range of recreational, sporting opportunities and natural environments to meet community needs.

Provide high quality, useable parks and recreation facilities that are diverse in terms of type, size and function.”

  1. [70]
    DEO 3.1(f) provides that: “All sectors of the community have convenient and equitable access to employment and recreation opportunities, commercial and community services, facilities and activities.”[92] Strategies for achieving this DEO include:

“Develop an accessible green space network incorporating passive and active recreational spaces and facilities to satisfy the needs of the entire community including the disabled and elderly.”

  1. [71]
    The designation of land is within the Green Space Precinct. Relevantly, the overall outcome 4.31(j) of the Townsville Inner Suburb District Code provides:

“The diverse open space and recreational resources of the district are protected and maintained, and adjoining land uses respect the primary green space values of the and the role of green space in providing visual and spatial relief from areas of built form.”

  1. [72]
    The specific outcomes for the Green Space Precinct also relevantly provide that:[93]

“Lands primarily accommodate parkland and recreational activities and ancillary structures.  …

Development contributes to the scenic, landscape and open space character of the City and provides a walking and cycling path network.”

  1. [73]
    The 2005 scheme also specifies that residential and business type uses (for example “shopping complex” and “fast food outlet”) are “inconsistent uses” within this precinct.[94]
  1. [74]
    The open space and recreation the experts agree that:
  1. The land is suitable for a wide range of formal sporting activities not just rugby union;[95]
  1. There is significant shortfall of district sport open space within the local government area.[96]  The proposed development “will only add to the deficit of sporting open space in the city”.[97]  (Mr Collins confirmed that this was still his view during cross-examination.)[98]
  1. The following dis-benefits will result from the proposal:[99]
  1. (a)
    There will be a loss of district level sporting open space.  There already exists a shortage of open space in the City for sport and if this development proceeds it will exacerbate the situation;
  1. (b)
    The embellishments and improvements will be lost.  The site is fully developed for the playing of field sport.  The site is “ready” for a new sport to take over - with very little modification required for a number of field sports; and
  1. (c)
    There are no existing facilities identified for the continued playing of rugby union.  Should the TDRU leave the site, and there is no replacement in place, then Townsville City Council may need (or be asked) to find facilities for playing rugby union. Council reports indicate that sites are in short supply and finding a new site may be a very difficult exercise.
  1. [75]
    In acknowledging that the conflict with the 2005 scheme sits towards the serious end of the spectrum, the co-respondent accepted that:
  1. The proposed development on its own will not protect and maintain a recreational resource to the extent it involves displacing a district sporting facility;[100] and
  1. The proposed development involves an inconsistent use (fast food outlet and shopping complex) in the Green Space Precinct.[101]
  1. [76]
    The co-respondent relies upon the prospect of relocating the TDRU on an alternative site to negate these dis-benefits. This will be addressed later.
  1. [77]
    It is also true that the proposed development includes an open space are adjacent to the carpark as depicted in the plan attached to Exhibit 9A. The co-respondent proposes that this area can be used as a off-leash dog area, kick about area and walking/cycle paths to provide connectivity to a nearby lake.[102]  Clearly enough, the proposal will not primarily accommodate parkland and recreational activities and ancillary structures.  Instead it will primarily accommodate shopping centre uses.
  1. [78]
    Suffice to say, the proposed use of the land for centre activities would not protect and maintain the open space and recreational resources of the district.
  1. [79]
    The conflict with the 2005 scheme is significant and obvious.

2014 Scheme 

  1. [80]
    The open space strategy is reaffirmed and continued in the 2014 scheme.
  1. [81]
    Strategic outcome 3.4.1(4) relevantly provides:[103]

“(4)  A high-quality network of open space and recreation opportunities provides for the needs of the community, supports social interaction, enables connections to natural assets and landscape features, and reinforces the city’s identity.”

  1. [82]
    Specific outcome 3.4.3.1 provides that:[104]

“Open space network

(1) Townsville has an open space network that:

(i) meets the community’s recreation and sporting needs;

(ii) offers a diverse range of recreation opportunities and landscape settings that encourage healthy lifestyles and physical activity;

(iii) is safe and attractive;

(iv) provides equitable and convenient access to sport and recreation facilities, particularly by walking and cycling;

(v) supports community groups and has the capacity to adapt to changing needs over time;

(vi) is cost efficient, with a focus on collocating sports in hubs;

(vii) is designed and maintained to a high standard, and is fit for purpose;

(viii) incorporates the natural landscape so that people may connect with nature in their recreation;

(ix) links recreation spaces and community hubs wherever possible; and

(x) has minimal negative impacts on surrounding communities and land uses.

Open space network

(1) The open space network provides for the following primary functions:

(i) local, district and regional recreation parks, and corridor or recreation linkages and amenity parks provide informal sport and recreation opportunities; and

(ii) district, regional and specialised sports parks provide for formal sports and boast a range of training and competition infrastructure.”

  1. [83]
    The land is within the Sports and Recreation Zone and the Sports and Recreation Zone Code is relevant. The purpose of that code relevantly provides[105]:

“(1) The purpose of the Sport and Recreation Zone Code is to provide for a range of organised activities that include sport, cultural and educational activities where the uses require a level of built infrastructure.

It includes built structures, such as clubhouses, gymnasiums, public swimming pools and tennis courts, and infrastructure to support the activities, safe access and essential management, where required to meet community needs.

(2) The particular purpose of the code is to ensure:

  1. (a)
    residents have convenient access to sport and recreation activities which are safe, attractive and appropriate for the community’s needs; and
  2. (b)
    development minimises impacts on surrounding land”.
  1. [84]
    The relevant overall outcomes to achieve the purpose provide:[106]

“(a) local, district, regional and specialised sports parks provide for a variety of formal sporting activities and a range of training and competition infrastructure;

  1. (b)
    development directly supports the primary recreational function of the site or provides for the colocation of a complementary and compatible community related activity;
  2. (c)
    development does not restrict public access and does not detract from the primary function of the site for sport and recreation activities”.
  1. [85]
    The performance outcomes of the Sports and Recreation Zone Code include:[107]

“PO8

The site predominantly accommodates sport and recreational activities and facilitates optimum use of the land for the intended sport or recreational purpose.

PO9

Non-recreation uses occur only where they:

  1. (a)
    directly support the primary function of the site; or
  2. (b)
    are a compatible community-related activity.

PO10

Development does not impede public access to and use of facilities.”

  1. [86]
    There are no acceptable outcomes indicated for these performance outcomes.
  1. [87]
    It is obvious that the proposal cuts across these provisions. I have already remarked about the inferior attributes of the proposed open space, which are also pertinent to the 2014 scheme.  Further, the evidence of the open space experts highlights that there is a deficit of land able to be used for organised sporting activities.  In stark contrast to the scheme intent, the proposed development will relegate the land to predominantly shopping centre uses rather than sport and recreational activities and facilitates. 
  1. [88]
    It seems to me, that the proposed development is in significant conflict with the open space strategies under both the 2005 planning scheme and the 2014 scheme.

Transport strategy under the 2005 & 2014 Schemes

  1. [89]
    I agree with the appellant’s submission, and it is not particularly controversial, that transport planning is interrelated to the creation and maintenance of a centres hierarchy. This was also recognised by the town planners in the joint report where they point out the obvious:[108]

“Many decisions of government and the private sector are based on the established hierarchy of centres to promote efficiency and economies of scale.  In particular, centres provide a focus for key infrastructure investment, especially transport investment, by the public sector generally which both facilitates accessibility to the hierarchy and provides efficiency of public investment.”

  1. [90]
    In the 2005 scheme, DEO 3.1(b) seeks, among other things, to provide the community with an appropriate level of access to services.[109] The strategies to achieve this include: “Protect the community’s investment in existing infrastructure by ensuring new development does not adversely affect its function or efficiency”.[110]  DEO 3.1(c) relates to transport and mobility and the strategies to achieve the DEO highlight that transport efficiency and maximising public transport viability which minimises travel costs are all part of the Council’s transport planning.[111]
  1. [91]
    In the 2014 scheme, the strategic framework highlights that centres are to be well-connected to the surrounding community maximising accessibility by walking, cycling and public transport.[112]  Section 3.3.5.1(2) of the 2014 scheme provides:[113]

“The shape of the city and activity centre network establishes the basis for optimum transport outcomes for the city.  The pattern supports consolidation around the principle centre (CBD) and major centres on the Ross River Road corridor, which is identified by the Council and State government as a core public transport corridor for the future”.

  1. [92]
    The 2014 scheme also seeks to protect the efficient operation for use of infrastructure, installations and corridors to.[114]
  1. [93]
    Mr Vann highlighted the importance of transport planning when he said:[115]

“Focusing transport infrastructure investment on centres means that these networks are more efficient and can service more people.  Choice in transport mode, particularly public transport, walking and cycling also reduces reliance on the private vehicle and reduces emissions.  The proposed shopping centre development, if approved, will be an unplanned centre in an out-of-centre location and would dilute, rather than support, this important planning principle embedded in both planning schemes relevant to this matter”.

  1. [94]
    He later said:[116]

“While a 400m walking distance is often used as a measure of (easy walking distance), on the basis that it is approximately a 5 minute walk, walkability depends on a number of considerations.  Distance is an important factor that contributes to the walkability of a place, and there is growing evidence to show that people will walk further distances to access high quality public transport such as high frequency train or bus services.  Other attributes that contribute to the walkability of a place encompasses other considerations that contribute to the pleasantness and practicality of the walk, such as footpaths, flat terrain, shade trees, sense of safety with buildings close to street, views or other interesting things to look at along the way.  The walk along Hugh Street does not have these characteristics.  Furthermore, given the hot climate in Townsville and lack of shade trees along Hugh Street, it is unlikely, in my opinion, that many people will walk to the bus or the shopping centre”.

  1. [95]
    There are no regulated passenger services along Hugh Street past the land.[117]  The proposed development is located 450m walking distance from the nearest existing bus stop.[118] 
  1. [96]
    Mr Douglas relied on prospective discussions with the council for the future restructure of the bus services.[119]  As to an internal bus route on the land, Mr Douglas said it “might be possibly okay” if the bus services were only infrequent.[120]  Mr Douglas suggested that a bus stop on the other side of Hugh Street could be obtained through development conditions on development opposite the proposal or through compulsory acquisition of land.[121]  Again, this is symptomatic of the unplanned centre.  In contrast, the CastleTown shopping centre includes three onsite public bus stops integrated with associated bus routes.[122]
  1. [97]
    Mr Holland said:[123]

“When planning the location of shopping centres, particularly supermarket-based centres and higher-order centres, it is important to consider whether efficient public transport can be provided.  The site is located within an established area that has a functioning transport system.  There are no bus routes past the site on Hugh Street, and Hugh Street is not identified in Council’s planning documents as planned public transport corridor.  The proposed development, which would require a provision of a bus route along Hugh Street, would therefore further decentralise public transport demand, and hence reduce the efficiency of existing services … To achieve satisfactory public transport access, there would need to be provision for busses to stop on both sides of Hugh Street at the site frontage, or the on-site bus route would need to follow a circulation road (a roadway that does not provide direct access to right angle parking spaces) through the site, as occurs at Annandale shopping centre.

For bus stops in the street, there would need to be a stop on both sides of Hugh Street in order to facilitate the typical two-way operation of the route, and while a stop could potentially be created within the proposed deceleration lane into the site access, it would not be possible for the developer to achieve a satisfactory bus stop on the opposite side of Hugh Street as there is not sufficient road reserve available”.

  1. [98]
    Mr Holland properly accepted that that proposal complied with Specific Outcome SO9 of the Parking and Access Code in the 2005 scheme,[124] which requires public transport parking spaces to be provided for the use of buses and/or taxis.[125]  Indeed, bus and taxi parking has been provided in the proposed design.  Access to public transport is thereby facilitated by the proposal to the extent it can be.[126]
  1. [99]
    Mr Holland conceded that the issue he raised with respect to public transport was not a reason for refusal in this case.[127]  While, that is a matter for the court, I am inclined to agree.
  1. [100]
    The remaining issues relate to signalising key intersections of Hugh Street.
  1. [101]
    A debate ensued about whether Hugh Street should be classified as an arterial road or an arterial main street compared to Ross River Road and Charters Towers Road.[128]  This was enlivened by the policy referred to in the editor’s note for the Transport Impact, Access and Parking Code under the 2014 scheme.[129]  That policy forms part of the 2014 scheme.  The policy designates Hugh Street as an Arterial Road.[130]  The Policy provides for two types of arterial road: (1) an arterial road and (2) an arterial main street.[131] The desirable spacing between arterial main street intersections is 500m.[132]  The policy emphasises that the arterial main street sub-category is “to provide for special cases, but it is not an option recommended for the future”.[133]
  1. [102]
    It seems to me that Hugh Street is an arterial main street with the following characteristics:[134]
  1. (a)
    direct lot access is provided from Hugh Street strikes a balance between a co-existing through traffic function and an access function;
  1. (b)
    intersections may be closely spaced along these roads; desirably a minimum of 150 metres apart to avoid queue interaction.  The proposed site intersection (including with Horwood Street) is separated from Atlee Street intersection by only 140m.[135]  In turn, the Atlee Street intersection is only 150m from the Woolcock Street intersection.[136]
  1. (c)
    speeds are kept low to provide for safe pedestrian crossing.  The speed limit along Hugh Street is 60 km/hr and not 70 or 80 km/hr.
  1. (d)
    pedestrian crossings are provided at control points; and
  1. (e)
    abutting land uses include commercial land uses which exist and are generally located on both sides.
  1. [103]
    Additionally, the through carrying function of Hugh Street is compromised, not just in this location, but also north of the intersection with Woolcock Street.[137]  As Mr Holland accepted, if Hugh Street is characterised as an arterial main street, the issue of spacing of intersections is practical rather than principled.[138]
  1. [104]
    Mr Holland considered that the proposal would compromise the ability to achieve a sufficient break between signalised intersections,[139] cause queuing and impact the intended function of Hugh Street.[140]  The appellant identified each issue as follows:
  1. Queuing:
  1. (a)
    a SIDRA analysis demonstrates that for the 2028 Saturday peak there will be a 78m queue waiting to depart from the land and a 124m queue in the right-turn lane turning into the land from Hugh Street south of the intersection;[141]
  1. (b)
    a 78m queue waiting to depart would extend back to the parking aisle at the eastern end of the proposed on-site bus stop which would block traffic attempting to turn into the aisle to access the fast-food outlet and would also block the traffic attempting to turn from the parking area located between Hugh Street and the shops back onto the main access road;[142]
  1. (c)
    both of the above situations could lead to blockage of traffic entering the land and potentially cause on-site congestion to extend unsatisfactorily back onto Hugh Street;[143]
  1. (d)
    a 124m queue of vehicles entering the site from Hugh Street in the south would extend a significant distance into the land so that if the entering queue is blocked by pedestrians using the pedestrian crossing or cars reversing from car parking spaces or by vehicles waiting to depart from the land this would cause on-site congestion to extend back onto Hugh Street;[144]
  1. Other impacts of the proposed signalised intersection:
  1. (a)
    due to the close spacing between the Horwood Street and Keane Street intersections along Hugh Street the Council would likely require the existing median break in Hugh Street at the Keane Street intersection to be closed which would have traffic movement impacts;[145]
  1. (b)
    Mr Holland also sets out how the proposed signalised intersection would impact upon the operation of the service station driveway onto Horwood Street;[146]
  1. (c)
    the path for an articulated vehicle turning left onto Horwood Street from Hugh Street would also exacerbate an exiting traffic problem by blocking northbound traffic while waiting to turn left onto Horwood Street;[147]
  1. Ameliorating the impact of the proposed development at the Woolcock Street intersection:
  1. (a)
    in Mr Holland’s view, the proposed development will worsen the operation of the Woolcock Street intersection and as the intersection is State controlled there is significant doubt as to whether it could be funded from priority infrastructure plan contributions and accordingly Parkside should be responsible for contributing funds where implementing works to the intersection to ameliorate the impact of the proposed development;[148]
  1. Other traffic issues:
  1. (a)
    Mr Holland is of the view that the opening year adopted for traffic impact assessment is too early which would impact upon the results of the modelling;[149]
  1. (b)
    the traffic generation rate adopted for the fast food outlet is lower than Mr Holland thinks is appropriate by 80 vehicles per hour;[150]
  1. (c)
    the queuing provision for the fast food drive-through is still too short;[151] and
  1. (d)
    further land dedication along Hugh Street would be needed to accommodate necessary traffic infrastructure.[152]
  1. [105]
    As to a matter of practicality, it seems to me that that part of Hugh Street between Woolcock Street and Bayswater Road is unlikely to operate any differently to the section of Hugh Street north of Woolcock Street.[153]  The arterial function of this section of Hugh Street is already compromised.[154]  The traffic consequence is one of mere delay in the road network and not a safety issue.[155]
  1. [106]
    I prefer Mr Douglas’ evidence that the cycle times of the intersections along the relevant part of Hugh Street can be co-ordinated to provide a sufficient break between the operation of existing and future intersections.[156]  This will address the concerns of Mr Holland.
  1. [107]
    As to vehicles queuing internally on the site, the issue relates to the Saturday AM peak in the year 2028 where queues will extend 74 metres into the subject site and extend 124 metres into the right hand turn lane from Hugh Street turning into the subject land.  These queue lengths assume the intersection will have a cycle time of 140 seconds;[157] there is a constant pedestrian traffic across at the centre access; and the shopping centre and fast food outlet will generate peak vehicle movements at precisely the same time.  I accept that the queues will reduce to a reasonably tolerable 47 metres and 82 metres respectively if the cycle time is reduced to 110 seconds.[158]  Even so, I think that the model predictions will be further ameliorated by everyday human behaviour to avoid irritation of queues and delays where possible.
  1. [108]
    It seems to me that the nature and extent of the traffic engineering conflicts are relatively insignificant, and the proposal will have minor impacts on the transport planning strategies under the 2005 and 2014 schemes.

Nature and extent of conflict

  1. [109]
    It is common ground between the town planning witnesses that planning for a network of centres (i.e. a hierarchy) is a central plank or core policy underpinning many planning schemes[159] and that is the nature of the conflict here.
  1. [110]
    The appellant argues that the proposed development goes against core concepts and strategies embedded in both the 2005 planning scheme and the 2014 scheme, and is the antithesis of what the planning documents intend for the subject land. It argues that the proposed development cuts across and is in conflict with the Council’s planning documents and strategies in relation to:
  1. the location, role and function of centres and centre uses;
  1. important matters related to transport planning; and
  1. the protection of open space, recreation and sporting facilities (in circumstances where there is agreement that there is a significant shortfall of land for sporting facilities within the local government area).
  1. [111]
    The co-respondent accepts that the conflicts sit towards the serious end of the spectrum given the application involves development outside of the identified retail hierarchy which is recognised as an important planning tool,[160] and because the proposed land uses are identified as inconsistent uses in the relevant precinct.[161] 
  1. [112]
    The co-respondent seeks to give historical and contemporary context to the nature of the conflicts by the following arguments, which I deal with in the course of these reasons:
  1. First, whilst the 2005 scheme promotes the protection and maintenance of the land for open space and recreation purposes, the land is privately owned by the TDRU, and is not publicly accessible for recreation purposes.[162] 
  1. Second, the development proposal has been formulated to facilitate the relocation of the TDRU to a new modern facility in circumstances where the existing facility is inadequate to meet the existing and future needs of its members volunteers, supporters and their families. 
  1. Third, the proposed development does not alienate land for publicly available open space purposes.  The proposal involves maintaining an area of the subject land as publicly available open space that will visually and physically merge with adjoining open space to the south.[163] 
  1. [113]
    As to the extent of the conflict the co-respondent argues that the proposal will not impact the planned retail hierarchy,[164] or otherwise not conflict that warrants refusal.
  1. [114]
    I prefer the appellant’s arguments. In light of the nature and extent of the identified conflicts with the respective schemes, the co-respondent needs very strong “grounds” to overcome the identified conflicts.  

Sufficient Grounds

  1. [115]
    Against this analysis, whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds.
  1. [116]
    The grounds relied upon by the co-respondent pursuant to the order made by Rackemann DCJ on 4 March 2016 can be summarised as:
  1. (a)
    The proposal will meet an existing town planning and community need,[165] and economic need,[166] without unacceptable amenity or economic impacts;[167]
  1. (b)
    The proposal will create a definable mode of uses;[168]
  1. (c)
    The proposal will result in improvements to the road network;[169]
  1. (d)
    The proposal will provide additional employment opportunities during construction and operation;[170] and
  1. (e)
    The zoning of the subject land has been “overtaken by events”.[171]
  1. [117]
    The co-respondent submits that while the level of conflict with the planning documents sits at the serious end of the spectrum, the balancing exercise required by s. 326(1)(b) of SPA tips in favour of approval of the development application particularly because amongst other things:[172] 
  1. the identified need in this case is for the provision of the necessities of life (food and groceries);
  1. the conflict is not accompanied by any consequent undue impact;
  1. it is, on balance, unlikely that the identified and agreed present need for a full-line Coles supermarket will be otherwise met elsewhere in the trade area in the foreseeable future, nor can it be met in a manner which provides the same level of convenience and choice as the proposal;
  1. the proposal may well facilitate the TDRU providing to its members, volunteers, supporters and families a level of facilities that are commensurate with their needs, as is promoted and encouraged by the planning documents[173]; and
  1. the proposal will provide some 1.5 Ha of publicly available open space, maintained as part of the shipping centre.

Need

  1. [118]
    The notion of need in this context is the enhancement of community well being, and as analysed by this court in the past, including:
  1. “In ordinary parlance, one hears reference to phrases such as, ‘a person in need’, which conveys as a matter of objective fact the idea that that person, if not in distress, is nonetheless deprived to the extent that his wellbeing is at risk.  One cannot sensibly translate that concept into the town planning context.  Need in planning terms is a relative concept … (It) is firstly a community need, not in the sense that there is an element of urgent community necessity for a facility or for land so zoned on which the facility can be provided.  Rather, it connotes the idea that the physical wellbeing of a community or some part of it can be better and more conveniently served by providing the means for ensuring that the provision of that facility, subject always to other considerations of the town planning kind, including all consideration that the wellbeing of a community also depends significantly on an acceptable residential amenity.”[174]
  1. “‘Need’ in cases such as this does not mean pressing need, critical need, widespread desire or anything of that nature.  A thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community”.[175] 
  1. “‘Need’, in planning terms, is a relative concept.  It does not connote pressing urgency, but rather relates to the general wellbeing of the community.  A use is needed if it would, on balance, improve the services and facilities available in a locality.”[176] and
  1. To provide competition and choice where none exists can represent the filling of a need.[177]
  1. [119]
    In Luke v. Maroochy Shire Council [2003] QPELR 447 at 459, Wilson SC DCJ said at [55]:

“The undeniable purpose of a town planning scheme is to regulate, within reasonable limits, consonant with the personal liberties of landowners, the provision and distribution of appropriate community facilities, both private and public, with a view to promoting the general well-being of the occupants of the relevant local government area.”

  1. [120]
    In JPF Australia Pty Ltd v Livingstone Shire Council,[178] Britton SC DCJ held that considerable weight should be given to the question of need where the need to be satisfied involves shopping for the essentials of life mainly food and groceries as well as associated convenience goods.
  1. [121]
    Consideration of need is determined from the perspective of the community and not that of the developer, commercial competitors or submitters. In relation to the facilities supplying the necessaries of life Wilson SC DCJ said in Luke, at [35]:

“…where, as here, the apparent public or community need for the proposed facility is strong and relates to a basic requirement of the resident population it is, plainly, a matter to which considerable weight must be given.”

  1. [122]
    His Honour made similar remarks in Parmac Investments v. Brisbane City Council & Ors,[179] where he said at [30]:

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

  1. [123]
    The co-respondent submits that consideration of whether an identified need can be met on land located in the Hyde Park Major centre, particularly in the appellant’s centre, invokes a wrong test. It submits that the test is not whether the planning scheme adequately provides for the community need, which was once argument applied to an application to rezone land or to amend a planning scheme under former legislation. Instead, the co-respondent argues that the question is whether there is a need for the proposal and whether that need (and other matters of public interest) are sufficient to overcome the conflict.
  1. [124]
    In my view, there is force in the argument, however the consideration of need ought not be undertaken in a vacuum and ought always be cognisant of other town planning considerations and controls.[180]  In Gaven Developments Pty Ltd v Scenic Rim Regional Council,[181] Robin QC DCJ observed:

“That alternative sites are available for a development proposal is a response frequently offered by opponents.  Alternative site arguments, in the court’s experience, are liable to be problematic because of uncertainty about the availability within a reasonable time or suitability (when there is a present need to satisfy).  If likely availability and suitability of some appropriately zoned alternative site(s) be shown, a proposal for out of centre development is highly unlikely to be acceptable, however suitable the site.”

  1. [125]
    The court ought not usurp the role of the local authority. As Quirk DCJ said Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors:[182]    

“It should not be necessary to repeat it but this Court is not the Planning Authority for the City of Brisbane. It is not this Court's function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper has chosen to adopt (Brazier v. Brisbane City Council 26 L.G.R.A. 322 at 327).”

Economic, Community & Planning Need

  1. [126]
    The need experts agree there is economic and community need for an improved supermarket offer in the trade area, but they disagree about the scope of the trade area, the level of need and whether there is any planning need.[183]
  1. [127]
    The trade area that would serve the proposal was assessed by the need experts in four sectors:[184]             
  1. A primary sector extending 1.5 – 2 cm around the site to include the suburbs of Currajong, Gulliver, Hyde Park, Mysteron, Pimlico and West End.  The majority of trade will be drawn from this area.
  1. A secondary north sector encompassing the suburbs of Caste Hill, Belgian Gardens and Rowes Bay;
  1. A secondary west sector containing Mount Louisa; and
  1. A secondary east sector including Hermit Park, Rosslea and part of Mundingburra.
  1. [128]
    Mr Duane considered that all three secondary sectors ought form part of the analysis, although the secondary north sector was less relevant with the conversion to a Coles supermarket at Northward.[185]  Mr Norling relied upon the primary and secondary east sectors as his trade area, and was dismissive of the secondary north and west sectors as trade areas.[186]  I prefer his rationale because: the secondary north sector is closer to the Coles in the redeveloped North Ward Shopping Village and is separated from the land by non-urban area; and the secondary west sector is closer to the Coles at the recently developed Thuringowa Village and is separated from the land by industrial area.
  1. [129]
    The co-respondent submits that the evidence establishes that there is a strong planning need as the community’s physical well-being would be enhanced by the subject proposal – the enhancement of community wellbeing is at the heart of the issue of need. The relevant need involves the daily essentials of ordinary life, namely food and groceries and associated convenience goods.[187] 
  1. [130]
    The co-respondent asserts that there is a large body of evidence that establishes that:
  1. (a)
    there is an economic need and community need for an additional full-line supermarket within the defined trade area to service the existing population;[188]
  1. (b)
    the full-line Coles supermarket proposed would be conveniently located within the trade area to serve the population and provide further choice and competition for the benefit of the public, particular for that significant proportion (about 30%) of the public who prefer Coles;[189]
  1. (c)
    the full-line Coles supermarket will provide an extensive offer at a convenient easily accessible location which will include:
  1. (i)
    a full range of groceries;
  1. (ii)
    a greater depth of stock;[190]
  1. (iii)
    attractive and consumer friendly livery and amenity[191];
  1. (iv)
    a large fresh food selection; and
  1. (v)
    the full compliment of supermarket departments (including bakery, delicatessen, seafood, and meat offer);[192]
  1. (d)
    the proposed development will include specialty stores that will complement the convenience offer of the Coles full-line supermarket;
  1. (e)
    the proposed development will provide a different and superior level of convenience and choice to the population of the trade area in contrast to the smaller supermarket facilities located at Hermit Park, Garbutt Central and Rising Sun; and
  1. (f)
    the proposed development will be more convenient for the supermarket shopping public in contrast to the major centre shopping experience provided at the CastleTown shopping centre where food and grocery shoppers compete with “higher order” shoppers attending the two discount department stores and the 140 high order specialty shops.
  1. [131]
    This is a fair general summary of the evidence, although the level of convenience is relative to the preferred trade area and the size, location and function of the proposal.
  1. [132]
    The full-line supermarket is likely to provide convenient and efficient one-stop shopping, including:[193] a full range of food and groceries; a great depth and range of packaging size of stock;[194] attractive and consumer friendly livery and amenity;[195] a large fresh food selection; and a full complement of departments (including bakery, delicatessen, seafood, and meat offer).[196]
  1. [133]
    The size, location and function of the proposed development will provide a lower order centre than the contended alternative sites in the Hyde Park centre including CastleTown Shopping World. This level of convenience is enhanced by it smallness and ready access from the car park at grade. However, it will be a higher order centre than a “neighbourhood centre” under the 2005 scheme and more than a “local centre” under the 2014 Scheme. The proposed Coles supermarket at 4,200m2 would become the largest Coles in Townsville.  I have already remarked that the centre is more like a smaller District Centre.
  1. [134]
    On either view of the trade area, the main trade area is smaller than the broader catchment served by the Hyde Park centre (including CastleTown) and is a subset of that broader catchment. The majority of the residential population live within 3 km of the Hyde Park centre, and there are a further four supermarket-based shopping centres (Garbutt Central, Hermit Park, Rising Sun and Mundingburra) located in relation to residents of the primary trade area. There are also eleven planned smaller centres scattered throughout this trade area.[197] 
  1. [135]
    Further, the secondary east trade area is well served by the Hyde Park centre located within 3 km of the majority of residents of this area, and three supermarket-based shopping centres (Hermit Park, Rising Sun and Mundingburra) are conveniently located to this population. There are also planned smaller centres in this trade area.[198] 
  1. [136]
    Against this background, I accept Mr Norling’s evidence that:[199]
  1. (a)
    there is a sufficient population to support an additional supermarket;
  1. (b)
    the full-line supermarket would increase the range, convenience and choice in the trade area;
  2. (c)
    Coles is under-represented in the trade area; and
  3. (d)
    the level of demand is tempered by the proliferation of small (older) neighbourhood centres and larger centres anchored by smaller supermarkets, which, whilst catering to the grocery shopping trip for many shopping trips, do not provide the full range of offer typically expected by shoppers in modern full-line supermarkets.
  1. [137]
    In addition, Mr Norling opined that “whilst there is a modest level of community and economic need for an improved supermarket offer in the trade area, there is no planning need for it to locate in the proposed out-of-centre location at Currajong”.[200]  His reference to “planning need” was to “whether the planning scheme can otherwise provide for the need”.[201]
  1. [138]
    There are two aptly zoned alternative sites located within the Hyde Park Major Centre (one of which is within the CastleTown Shopping Centre) and proximate to the land.
  1. [139]
    Mr Vann observed that:[202]

“Any additional retail choices and services, competition and employment opportunities provided by the proposed development is appropriately planned for and can be suitably accommodated by established centres consistent with the hierarchy envisaged in both planning schemes, in particular the Hyde Park Major Centres.”

  1. [140]
    In cross examination Mr Vann said:

“The scheme has a very clear view that that facility should be located in-centre.  There is the opportunity, clearly, for it to be located in-centre.  That would be a better outcome and better overall for the community because it would put more facilities in one location where they can be accessed readily, shared trips, where there is an existing public transport investment facility that is there.  So it would tick a number of the boxes that the scheme is intending to achieve through identifying a centres hierarchy.”[203]

“This would be a good site for Coles to have.  But equally, if this site wasn’t available and that it could be negotiated, I think they could readily negotiate an arrangement which would put them in the location which the scheme provides for.”[204]

  1. [141]
    The expert economists considered the alternative sites in the need joint expert report.[205] 
  1. [142]
    It seemed to me that the evidence negatived the prospect of a shopping centre development on the eastern end of the Hyde Park centre designated as a Sub-regional centre in the 2005 planning scheme.[206]  Mr Duane considered that this location lacked sufficient exposure and accessibility to accommodate the requirements of a major supermarket operator.[207]  Mr Zeller, the Coles representative, rejected this site because it was at the edge of the catchment with poor access.[208]  Mr Norling also accepted that development of the site for a full-line supermarket would represent an unfortunate outcome in a planning sense and for customer convenience.[209]  I accept that the proposal is contra-indicated for this part of the Hyde Park centre.
  1. [143]
    The further alternative sites were identified within the CastleTown centre operated by the appellant.
  1. [144]
    Whilst, the co-respondent accepts that it may be physically possible to create a tenancy within that facility for a full-line Coles supermarket, it argues that it is far from inevitable that Coles would ever take up that opportunity. In the joint expert report, Mr Duane opined that a second supermarket within CastleTown is “very unlikely”.[210]  However, he seemed to soften this view in cross-examination saying:[211] 

“I’m assuming they have potentially planned for a supermarket elsewhere in Hyde Park precinct because it’s zoned land.  So the implications of not having another supermarket I would have thought they would have thought about.  Whether it goes here or at Hyde Park, in my view, the implications are effectively the same for your client in terms of the loss of sales.  So I wouldn’t be – they would have been planning for another supermarket at some stage, given the demand for such a store as indicated by Mr McConaghy in his statement that they are looking around for another store since around 2012/2013.”

  1. [145]
    These assumptions were elucidated by Mr McConaghy who outlined the efforts to attract Coles and identified two potential locations for a second supermarket within the CastleTown Shopping Centre.[212]  Mr McConaghy explained why, in his view, there are benefits for the community by having a second supermarket in CastleTown as opposed to the on the land:[213]

“In my view a second supermarket will provide direct benefits for the community in the form of competition between the two supermarkets within CastleTown, whereby consumers will benefit through reduced prices and competition generally.

In contrast, it is my view that a Coles located at the site the subject of this appeal would not have to compete to the same extent with the Woolworths in CastleTown and as a result the community would not obtain the same benefits from competition between the two supermarket operators.”

  1. [146]
    In my view a second full line supermarket located within CastleTown is not far-fetched, fanciful, but there is some commercial and temporal uncertainty. In his report dated 20 November 2012,[214] Mr Duane acknowledged that it is highly unusual for a double discount department store based centre to include only one supermarket, with most double discount department stores based centres containing two or more major supermarket traders.  At present CastleTown cannot practically physically accommodate a full-line Coles supermarket of 4,100m2 without expansion[215] and negotiation of leasing arrangements with affected existing tenants and Coles itself.[216]  But I do not accept the co-respondent’s assertion that it is “highly speculative to suggest the existing need will be satisfied on other land in the foreseeable future”.  In that regard, Mr Zeller confirmed that if the proposed development was refused then Coles would re-look at the alternative sites albeit inferior to the proposal.[217]  Such is commercial pragmatism.  In any event, it is not the role of this court to determine what is the best site for a proposed use or whether a better site exists.[218]
  1. [147]
    I accept that the co-respondent has shown a modest economic and community need but a weak planning need for an additional full-line supermarket within the defined trade area to service the existing population. However, I do not accept that the need is “strong” as contended by the co-respondent.
  1. [148]
    As to whether this level of need amounts to a sufficient ground to overcome the identified conflict, without more, I think not.
  1. [149]
    The respondent points to the absence of adversity to argue that the proposal will satisfy the existing (and future) need in circumstances the proposal will have:
  1. (a)
    no unacceptable hard amenity impacts;
  1. (b)
    no unacceptable economic impacts on existing traders;[219]
  1. (c)
    no unacceptable economic impacts on the identified hierarchy of centres;[220] and
  1. (d)
    no impact that would cause the Appellant to cease promoting or investing in its centre, CastleTown (the major retail facility in the Hyde Park Major Centre), to ensure that it will be in a position to compete with a range of centres of different sizes performing different roles and functions (including the proposal) and, to ensure that the centre continues to provide an excellent amenity, range and service to the population whom it serves.[221]

Amenity

  1. [150]
    The opinion evidence supports the proposition that the proposal will have no unacceptable hard amenity impacts on existing or future residential development.[222]
  1. [151]
    However, the evidence of acoustic amenity was confined to a “desk top” exercise.[223]  Mr King agreed that “extensive” noise logging would need to be conducted on the subject land and the adjoining caravan park.[224]  The state of the evidence about this appeal ground is less than satisfactory and I am unable to elevate the issue as positive support for the proposal. 
  1. [152]
    In any event, I accept that amenity impacts may not warrant refusal by themselves, but they remain relevant when considering other grounds.[225]  At best, I think that any adverse acoustic impacts could be overcome by appropriate conditions. 

Any Impact on Existing retailers

  1. [153]
    The co-respondent relies upon the expert opinion that the proposal will have no unacceptable economic impacts on existing retailers.[226]
  1. [154]
    This is not to say that there are no adverse impacts. Mr Norling remarked in the need joint report that:[227]

“Whilst much of this impact would be directed at the Woolworths supermarket, which is expected to be able to continue to trade after impact, the consequential loss of shopper activity is expected to reduce the turnover and hence viability of supporting speciality stores.”

  1. [155]
    He elaborated upon this in his individual report. The evidence of Mr Norling, which I prefer, included an analysis of the impact of the proposal on the supporting specialty stores within CastleTown, as follows:[228] 
  1. (a)
    -10% impact on the total centre;
  1. (b)
    -29% impact on Woolworths;
  1. (c)
    -25% impact on the food retailing category;
  1. (d)
    -12% impact on the general retailing category;
  1. (e)
    -8% impact on the food catering category;
  1. (f)
    -6% impact on the leisure and retail services category; and
  1. (g)
    No impact on the discount department stores and mini-major apparel, jewellery, homewares and phone and mobile communication categories; …
  1. [156]
    This evidence is also tempered by the evidence about the difficulties faced by smaller businesses in CastleTown.[229]  In that regard, I accept Mr McConaghy’s testimony as follows:[230]

“I am concerned about the impact of the proposed development on the viability of the retail offering in CastleTown particularly the shops that rely on customers generated by the existing Woolworths.  Whilst the direct impact of the proposed development will be experience greatest by Woolworths, a reduction to the number of visitors to Woolworths would consequentially reduce the number of visitors to the surrounding small businesses, independent businesses, family businesses and one-off businesses that rely on that foot traffic to feed their businesses.

Whilst the experts acknowledge the impacts on Woolworths, my concern is the economic impact of the proposed development on the small independent businesses and family owned businesses that dominate the Kings Road Market Precinct and surrounds.  My desire is to create an environment where those businesses can survive and where we can provide business and employment opportunities in an already existing facility.

Whilst the proposed development may provide alternative businesses and alternate employment opportunities, it will be at the expense of those existing small businesses in CastleTown”.

  1. [157]
    It seems to me that the impact on retailers in CastleTown is not insignificant, and it is likely to have ripple effect throughout the centre, and the centre as a whole.

Any impact on CastleTown

  1. [158]
    Mr Duane acknowledged that the proposal will be a subset of the trade area of the Hyde Park centre and will compete directly with and have the largest monetary impact on the Hyde Park centre which includes Woolworths at CastleTown being the closest full line supermarket.[231]  I prefer Mr Norling’s opinion in the joint expert report that:[232]

“The projected -8% impact upon the Hyde Park major centre would all be borne by CastleTown Shopping World (-10%).  Whilst much of this impact would be directed at the Woolworths supermarket (which is expected to be able to continue to trade after impact) the consequential loss of shopper activities expected to reduce the turnover and hence viability of supporting specialty stores.  Vacancy levels would be expected to escalate and the ability of management to ‘mask’ vacancies over such a long period would be difficult.  It is most likely that three anchor tenants would not be able to continue to support the high number of specialty store tenancies, vacancies would increase, the centre would appear far less vibrant and the Major Centre would present as an under-achiever amongst the three Major Centres.”

  1. [159]
    He later observes in this individual report that the proposed development would undermine the ability of CastleTown to be further developed.[233]  I agree.
  1. [160]
    It seems to me that even though the forecast impacts upon CastleTown and other centres fall below the 15% ‘rule of thumb’ for economic blight, it will negatively impact the viability of, and future development, of CastleTown.

Prejudice to Hierarchy of Centres

  1. [161]
    I am also mindful of the ”necessity of not acting so as to prejudice the viability of the existing hierarchy”.[234]  The co-respondent argues that the proposed development will not prejudice the hierarchy of centres, nor any element in that hierarchy.  It points to these matters:
  1. The economists agree that the proposal will not have an adverse economic impact on the function of the Hyde park centre which is a Sub-regional centre for the purposes of the 2005 scheme;[235]
  1. The evidence of Mr Duane[236] and Mr Norling[237] (supported by the evidence of Mr Motti[238]) confirms that the proposed development will not cut across the Hyde Park centre fulfilling its role as a Sub-regional centre (or Major centre under the 2014 scheme); and
  1. Irrespective of the proposal, the appellant is likely to continue to invest in CastleTown to ensure that the centre is meeting the needs of the population it serves, and that it will support the Hyde Park major centre. Such future investment would:[239]
  1. (i)
    include a full range of goods and services;
  2. (ii)
    provide a vibrant tenancy mix;
  3. (iii)
    be accessible and provide convenient carparking;
  4. (iv)
    maximise, to the extent it is able, convenience for shoppers;
  5. (v)
    include and encourage local retailers with an individual or unique offer;
  6. (vi)
    maintain a user friendly layout and orientation; and
  7. (vii)
    be marketed as a facility which has a family-friendly nature.
  1. [162]
    The co-respondent also relies upon Mr Motti’s evidence to the effect that:[240]
  1. The proposal is located on a traffic route, being a major arterial road, co-located with a defined service area;
  1. The proposal will be conveniently located, readily accessible and easy to navigate;
  1. The proposal will not directly compete with CastleTown or the Hyde Park centre because it will have a different role and function in the hierarchy – Hyde Park will function not as a Local centre (as suggested the proposal will do), but as a Sub-regional or Major centre;
  1. In terms of form and function, the proposal will be an attractive modern Supermarket based facility that will provide a competitive offer to the population of the trade area, particularly for the substantial proportion of the public who prefer Coles; and
  1. The development is responsive to planning, which has earmarked surrounding land as suitable for Medium Density residential development – which it has promoted adjacent to other centres.
  1. [163]
    These things might be so, but they ought also be considered in a broader planning context.
  1. [164]
    The planned hierarchy of centres encourages consolidation and redevelopment of the centres, in particular and relevantly here, Hyde Park. Mr Norling qualified his view that the whilst Hyde Park centre including CastleTown will continue to operate in its role and function as a major centre, “it won’t achieve all of the outcomes and all of the policies contained in the planning scheme saying”.[241]
  1. [165]
    Mr Vann reported, as seems obvious given the proximity of the site to the Hyde park centre, that:[242]

 “The proposed development effectively splinters the services intended to be offered by centre like Hyde Park into another location which is sufficiently distant from that centre to operate as a separate, unplanned centre.  Rather than allowing Hyde Park to maintain its intended role and function it would detract from both the general intent that major centres are significant focal points for the city and community, and the specific intent that retail activities are planned to be consolidated there.”

  1. [166]
    In cross examination he further testified as follows:[243]

“Now, can I suggest to you that if this centre is approved, it will, in fact, fit comfortably into the hierarchy, albeit it hasn’t been contemplated by the existing hierarchy?‑‑‑I struggle with that a bit, I must say.  I – there’s a question about whether it’s local or district under the – you know, the scheme.  sBut putting that aside, this is a local centre being located almost directly next to – very close to a district centre or a – sorry – a higher order centre.  And it will have an impact on the intended future development of that centre.  So I do think it doesn’t coexist with the hierarchy.

Well, can I put this to you:  approving this centre will not damage the existing hierarchy because it would have to have an impact – an unacceptable impact on other elements within the hierarchy?‑‑‑I agree that – I agree with that point.  I think the fundamental difference between the proposition you’re putting to me and my position on this is that the planning framework for this development and for the major centre is not about just planning for an absence of unacceptable impact.  It’s actually an intention to reinforce the major centre role to ensure that it is the place where retail is consolidated in this location, and to ensure that it becomes a higher focus of activity which, in turn, supports public transport, etcetera.”

  1. [167]
    It seems to me that the proposal seeks to form its own node of uses with a key anchor supermarket tenant, and thereby arrogate the key for any redevelopment or reinvigoration of the proximate Sub-regional Centre/Major centre. The proposal will not consolidate development or retail facilities within existing centres. It is larger than a local centre (as the co-respondent would describe it) and will function as a higher order centre in very close proximity to the Hyde Park Sub-regional centre (or Major centre under the 2014 scheme). Put simply it is too close, too big and too disruptive to the centres hierarchy.
  1. [168]
    On my view of the evidence the proposal is likely to unduly erode and prejudice the planned centres hierarchy strategy given the proposal’s size, location, overlap and function.

Node of Uses

  1. [169]
    In relation to the next ground of appeal, the co-respondent asserts that the proposal will, as a matter of public interest, promote a compact urban form, consolidating compatible and complementary development within a definable node.[244]
  1. [170]
    This ground was not directly pressed in the co-respondent’s submissions. I understand the ground is subsumed in the issue of need and further emphasises the ideal to co-locate and consolidate uses and promote the interdependencies between activities in a centre commensurate with its size, location and function.
  1. [171]
    I have already remarked about these matters in my discussion about need. As to the establishment of a node of uses, I am unable to discern any additional public benefit from the proposal’s creation of a new and additional definable node of uses.

Improvements to the road network.

  1. [172]
    The co-respondent asserts that the proposal will improve the local road network at no cost to he community in that it will improve access arrangements and traffic management along Hugh Street between Woolcock Street and Bayswater Road.[245]
  1. [173]
    I have discussed the nature and extent of traffic matters in relation to the transport planning strategies under the 2005 and 2014 schemes. The proposal will necessitate the additional traffic controls to management access and movement along Hugh Street between Woolcock Street and Bayswater Road. These are necessary to mitigate the proposed use, and not currently required.
  1. [174]
    I am not persuaded that the necessary traffic mitigation will improve the existing road network and thereby favour approval of the proposal.

Employment

  1. [175]
    The co-respondent also asserts that the proposal will provide additional employment opportunities during construction and operation.[246]
  1. [176]
    It is true that employment will be generated by construction of the proposal, just as it would with any new built development. Otherwise, Mr Zeller confirmed that the employment benefits for the community in terms of new Coles staff would also occur if the Coles was located in CastleTown,[247] and that there would be similar benefits for local subcontractors.[248]
  1. [177]
    I am not persuaded that the employment benefits particularly favour approval of the proposal.

Zoning has been “overtaken by events”.

  1. [178]
    The co-respondent’s next ground of appeal is that the Sport and Reaction Zone of the land has been overtaken by events in that:[249]
  1. The zoning of the land is a reflection of its historical use for Sport and Recreation (namely privately owned rugby fields);
  1. The land is no longer suitable for the existing Sport and Recreation use in that it is of insufficient size to accommodate the needs, both now and in the future of the Townsville and District Rugby Union; and
  1. The exiting Sport and Recreation Use will relocate to an alternative site where it will have better facilities, not just for the present but for the future growth, leaving the subject land vacant and available for re-development.
  1. [179]
    I take each of these in turn.

Historical Context

  1. [180]
    As to the historical point, the co-respondent argues that:
  1. (a)
    Whilst the 2005 scheme promotes the protection and maintenance of the land for open space and recreation purposes, the land is privately owned by the TDRU, and is not publicly accessible for recreation purposes.[250]  There is little doubt that the planning controls have followed the TDRU’s ownership and use of the land, which it purchased from the Council over forty years ago.  There is no evidence that its designations were the result of some detailed forward planning exercise.
  1. (b)
    The TDRU, as the registered owner, is not obliged to maintain the land as a district sporting facility in perpetuity if that course is inconsistent with meeting the needs and legitimate interests of its members, volunteers, supporters and their families.[251]  A reasonable person would expect a sporting organisation to realise its real property asset in the event it was required to relocate.
  1. (c)
    In planning terms, the subject land does not form part of the Townsville City Council’s trunk infrastructure for district park purposes,[252] and its zoning as Green space in the 2005 scheme can only be seen as a product of its historical use over three decades, rather than any deliberate decision to set aside the land for trunk district sport purposes.[253]
  1. (d)
    As to the significance of the loss of the land for open space purposes, it should be remembered that it represents only 1.4% of the entire supply of land utilised for open space purposes.[254]  It is one of only three privately owned facilities.
  1. [181]
    These observations have particular strength in relation to the 2005 scheme. The issue is whether the later zoning of the land reflects the historical nature of the use.
  1. [182]
    I have already discussed that council received the submission made by Brazier Motti in relation to the draft 2014 scheme.[255]  In that way, the council was made aware of the proposal for the privately owned land and the aspirations of the TDRU.  Against his background, the council decided to keep the land within the Sport and Recreation Zone, in the 2014 scheme, which “sets out Townsville City Council’s intention for future development in the planning scheme area over the next 25 years” subject to periodical reviews in accordance with the SPA.[256]
  1. [183]
    The Court of Appeal in Australian Capital Holdings Pty Ltd[257] held:

 “On more than one occasion the primary judge questions the sufficiency of the provisions made in the Schemes for retail development in the subject locality and asserted or implied that the Schemes had been ‘overtaken by events.’ But a new scheme had just been adopted and there was no evidence that its provisions were based on inadequate or erroneous information about population, population growth, retail needs, distances between centres and travelling times to and from centres. As was submitted on behalf of the Council, some 12 hectares of land in Eulbertie Park was available for development.”

  1. [184]
    The case is different from those where the open space or sports zoning of land is a “hangover” from previous expired uses,[258] or where a sporting group disposing “of a part of its land which is not essential to its needs”.[259]
  1. [185]
    In my view, the zoning of the land will transcend the needs of TDRU. If the TDRU does indeed relocate, the land will remain available for a number of sporting uses in circumstances where there is a distinct lack of land available for that purpose. The open space experts agree that the land can be used for a variety of organised sporting use.[260]  They said that:[261]

“While the numbers of people playing rugby union are reportedly now too great for the complex, under the preferred management model, it does not mean that the site is not suitable for field sport - it only means that existing user group has outgrown the site”.

  1. [186]
    I am bound to conclude that the zoning of subject land has not been overtaken by events.

Relocation of Rugby Club

  1. [187]
    As to the relocation point, the co-respondent argues that:
  1. The development proposal has been formulated to facilitate the relocation of the TDRU to a new modern facility in circumstances where the existing facility is inadequate to meet the existing and future needs of its members volunteers, supporters and their families, as is promoted and encouraged by the planning documents;[262] 
  1. The 2005 planning scheme expressly recognises that sporting facilities are to meet the needs of the community;[263]
  1. The proposal opens up 1.5 ha of the site for publicly available open space, which will add to the existing open space and park facilities to the south. 
  1. This proposal, if fully implemented, will do so in a way which will result in a nett increase in the area of land (9.3 hectares) available for sporting and recreation purposes[264]in Townsville, where there is an identified shortage of such facilities.[265]
  1. [188]
    In contrast, the appellant argues that the possibility that the proposal will facilitate the development of a new rugby facility should not be regarded as a ground for approval because:
  1. The prospect of a new rugby facility involves too many uncertainties;
  1. The suggested condition would be invalid being contrary to s 345(1) of the SPA and the finality rule;[266]
  1. Reliance upon the new rugby facility as a ground would create delicate assessment issues or difficulties for the new rugby field application and for other development applications;
  1. The ground is, in any event, insufficient to overcome the serious conflicts. 
  1. [189]
    I have no doubt that the deal to relocate the TDRU presents as a commendable proposition and opportunity for the TDRU. It is clear that the TDRU has outgrown the use of the land and wishes to seize the prospect of relocation to land near existing open space and park facilities elsewhere. This may well meet the TDRU’s needs and those of the community,[267] but it remains subject to planning application and assessment.  With the exciting prospect of relocating for expansion and future growth, it is not surprising that the TDRU have not explored regressive alternative strategies such as “home and away” games and synthetic grass.[268]  That is a matter for TDRU.
  1. [190]
    The co-respondent and the TDRU have reached a commercial arrangement, which paves the way towards relocating the TDRU as contended with appropriate safeguards. The evidence of Mr Bell is that:[269]

 “The TDRU interests are protected and if the alternative facility is not established for the TDRU at Annandale then the sale of TDRU site at Hugh Street will not proceed to allow the proposed shopping centre.”

  1. [191]
    In my view it is not for this court to adjudicate upon the certainties or otherwise of the commercial transaction. These are matters best left to the parties. It is sufficient to observe that alternative land controlled by the co-respondent has been identified as a new site for the TDRU. Since the TDRU has outgrown the current land, I think any relocation to a larger site will benefit both TDRU and the wider the community.
  1. [192]
    The proposed relocation will be subject of planning applications, assessment and approval. Neither party suggests that such an application would be a futility.[270]  More importantly, neither party is asking this court to pre-judge any future planning requirements, and it is unnecessary for me to do so. Council’s proper consideration of future development applications related to the new rugby site ought remain completely unfettered.
  1. [193]
    In the event that I was concerned about these things, the co-respondent indicates that a condition could be imposed to the effect that the approved building works for this development are not to commence until the council is satisfied (which satisfaction will not unreasonably be withheld) that arrangements are in place for the relocation of the TDRU with all necessary approvals.[271]  I am no so concerned, and I think it is premature to debate the validity, nature or scope of any associated conditions. 
  1. [194]
    Whilst I am not without sympathy for the circumstances and unique opportunity for the TDRU, its position is underscored by “private economics”.[272]   This is a circumstance personal to the TDRU as the owner and interested party and is not a relevant ground for approval.[273]  Considered more widely, the proposal may well benefit the community with a 9.3 hectare nett increase in the area of land for sporting and recreation purposesin Townsville.[274]  However, I am not satisfied that there is sufficient certainty to weigh up that benefit with the loss of the current facilities to other sport and recreational use.

Balance Park Land

  1. [195]
    As to the balance park land, the co-respondent argues that the proposed development does not alienate land for publicly available open space purposes, and says it will maintain an area as publicly available open space that will visually and physically merge with adjoining open space.[275]  The co-respondent points to Mr Alston evidence and his remark that “more open space is always good”.[276]
  1. [196]
    It is true that the proposed development includes an open space adjacent to the carpark as depicted in the plan attached to Exhibit 9A. As mentioned above, this this area is proposed for a dog off-leash area, kick about area and walking/cycle paths to provide connectivity to a nearby lake.[277]  It is expected to visually and physically merge with, and function as part of, an existing area of open space located to the south of the land, including Hindley Street Park.[278]
  1. [197]
    Mr Alston has highlighted some issues related to crime prevention through environmental design and entrapment associated with the proposal, and organised sporting facilities.[279]   He reported that:[280]

“The design that has been shown to me and is attached in the JER at Figure 2 shows an extremely narrow road frontage – approximately 48m.  This represents approximately 6-7% of the boundary.  For a park of more than one hectare this is unusual.  Generally a road frontage of approximately 50% of the boundary is preferred for recreation parks.

The subject site is narrow being approximately 59m at its widest and 30m at its narrowest.  The suggested recreation park is an L-shape.  That section of the proposed stormwater detention area behind the proposed shopping centre (the eastern section of the subject site) is fenced on the northern and eastern boundaries where it abuts adjacent properties.  The western boundary of this section of the suggested recreation park will have a steep embankment or possibly a concrete wall to the proposed shopping centre.  The exact finish is not shown but as the area will be used for stormwater detention some form of barrier is expected.  Such a design could lead to issues of entrapment and endangerment and could not be recommended for a recreation park.

The suggested recreation park will have poor amenity as it will be close to either the proposed shopping centre car park or the back of house area of the proposed shopping centre.”

  1. [198]
    Mr Alston highlighted how a road frontage of 50% was important for safety and casual surveillance particularly in relation to child safety.[281]  Mr Collins accepted that such a small road frontage was “unusual” for a park of this size.[282]  In cross-examination he also accepted that there would be some crime prevention design and overseeing issues for the eastern part of the proposed recreation park.[283] 
  1. [199]
    It seems to me that the open space is less then optimum in terms of size and frontage, and is inferior to the current state of the land. The proposed development does not primarily accommodate parkland and recreational activities and ancillary structures. Instead it will primarily accommodate centre uses.
  1. [200]
    It could also be vulnerable to further depletion by expansion,[284] however, that is a matter of impermissible speculation and beyond the scope of this appeal.
  1. [201]
    It seems to me that the community benefit resulting from the parkland established adjacent to the proposed shopping centre is marginal.

Conclusion

  1. [202]
    The proposed development is in significant conflict with the 2005 planning scheme and also the 2014 planning scheme, which warrants significant weight.
  1. [203]
    Having considered the planning grounds in favour of the application as a whole, I am not satisfied that they are, on balance, sufficient to justify approving the application despite the conflicts.
  1. [204]
    I am bound to order that the appeal is allowed and the application is refused. I will hear from the parties about any consequential orders.

Judge DP Morzone QC

Footnotes

[1]  Exhibit 19

[2]  Exhibit 2, p. 572: planning JER, p. 6, para 4.1.2 as updated by the amended plans provided by Parkside

[3]  Open Space JER: Exhibit 2, Tab 18, p.528, para 31 and Collins: Exhibit 8, p.4, para 18.

[4]  Exhibit 2, p. 5: planning JER, p. 5, para 3.2.4

[5]  Exhibit 2, p. 571: planning JER, p. 3, para 3.1.1

[6]  Exhibit 2, p. 442: 1st traffic JER, p. 2, para 2.4

[7]  Exhibit 2, p. 4: planning JER, p. 4, para 3.2.2

[8]  Exhibit 2, p. 571: planning JER, p. 3, para 3.1.2

[9]  Exhibit 2, p. 525: open space JER, p. 6, para 17

[10]  Exhibit 2, pp. 526-527: open space JER, pp. 7-8, para 24

[11]  Exhibit 2, p. 575: planning JER, p. 7, para 4.2.7

[12]  Exhibit 1, p. 571: planning JER, p. 3, para 2.0.1

[13] SPA ss. 462 & 495

[14]  see SPA s. 495(2)(a)

[15]  Fitzgibbon Hotel Pty Ltd v Logan CC [1997] QPLER 208 at [212]  

[16] Woolworths Ltd v Maryborough CC (No. 2) (2006) 1 QdR 273 at [23]

[17] Weightman v Gold Coast City Council [2003] QdR 441 at [36]

[18] Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 QdR 302 at 322-323; Hydrox Nominees Pty Ltd v Sunshine Coast Regional Council [2014] QPEC 18 at [14]

[19] Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 064

[20] SPA s. 493(1)

[21]  Exhibit 17, pp. 69-134

[22]  Exhibit 17, pp. 69-73

[23]  Exhibit 17, pp. 75-127 (Appendix A)

[24]  Exhibit 17, p. 129 (Appendix B) and traffic assessment in Appx C

[25]  Exhibit 1, p. 571: planning JER, p. 3, para 2.0.1

[26]  Exhibit 17, pp 136-138: Report of Mr Vann

[27]  Exhibit 13, p. 3: 2014 Scheme, P1-1, s. 1.1(2) and (4)

[28]  Exhibit 1, pp. 13-14

[29]  Exhibit 1, pp. 14-22

[30]  Exhibit 2, p. 596: planning JER, p. 28, para 7.1.1

[31]  Exhibit 2, pp. 576-579: planning JER, pp. 8-11, paras 5.0.4-5.0.19

[32]  Exhibit 2, p. 578: planning JER, p. 10, para 5.0.15

[33]  Exhibit 2, p. 578: planning JER, p. 10, para 5.0.19

[34]  Exhibit 13A, pp. 1-6: pp. (i)-(vi) of the 2005 Scheme

[35]  Exhibit 13, p. 3: 2005 Scheme, p. 9, s. 3.1(1)

[36]  Exhibit 13, p. 3: 2005 Scheme, p. 9, s. 3.1(a)

[37]  Exhibit 13, p. 3: 2005 Scheme, p. 9, s. 3.1(a) (first point)

[38]  Exhibit 13, p. 4: 2005 Scheme, p. 10, s. 3.1(b) (ninth point)

[39]  Exhibit 13, p. 4: 2005 Scheme, p. 10, s. 3.1(b)

[40]  Exhibit 13, p. 6: 2005 Scheme, p. 13, s. 3.1(e) (thirteenth point)

[41]  Exhibit 13A, p. 7: 2005 Scheme, p. 1

[42]  Exhibit 13A, pp. 7-9: 2005 Scheme, pp. 1-3

[43]  Exhibit 13A, pp. 10-25

[44]  Exhibit 13, pp. 16-24: 2005 Scheme, pp. 128-136, specific outcome 1

[45]  Exhibit 13, p. 15: 2005 Scheme, p. 127

[46]  Exhibit 13, p. 18: 2005 Scheme, p. 130, specific outcome 1(d) (first point)

[47]  Exhibit 13, p. 18: 2005 Scheme, p. 130, specific outcome 1(d) (second point)

[48]  Exhibit 13, p. 19: 2005 Scheme, p. 131, specific outcome 1(e) (first point)

[49]  Exhibit 13, p. 19: 2005 Scheme, p. 131, specific outcome 1(e) (second point)

[50]  Exhibit 13, p. 21: 2005 Scheme, p. 132, specific outcome 1(f) (first and second point)

[51]  Exhibit 13, p. 24: 2005 Scheme, p. 136, specific outcome 1(j)

[52]  Cf. Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2013] 2 Qd R 302, [13] – [15]; Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QCA 021 at [8]-[9], and Australian Capital Holdings v Mackay Regional Council & Anor [2008] QCA 157, [58] – [59] per Muir J.

[53]  T1-3/20, T1-10/1-5, T1-14/5, T1-19/10, T4-69-T4-70/5, T5-4/10-35, T5-5/5-30, T5-7/5-10

[54]  2005 Scheme: Exhibit  13, Tab 2, p. 3, (a), first point and Tab 5, p. 15, s. 4.31(d).

[55]  Exhibit 13, pp. 4-6: 2014 Scheme, P1-2 - P1-4

[56]  Exhibit 13A, pp. 28-29: 2014 Scheme, P6-1 - P6-2, s.6.1(1), (5)-(6)

[57]  Exhibit 13A, pp. 28-292014 Scheme, P6-1 - P6-2, s.6.1(8)

[58]  Exhibit 13A, pp. 28-29: 2014 Scheme, P6-1 - P6-2, s.6.1(3)

[59]  Exhibit 13B, p. 2 (neighbourhood centre), p. 4 (local centre), p. 6 (district centre), p. 9 (major centre)

[60]  Exhibit 13B

[61]  Exhibit 13, p. 8

[62]  Exhibit 13, pp. 23-24: 2014 Scheme, P3-12 - P3-13

[63]  Section 3.3.4.1(8)-(13)

[64]  Section 3.3.4.1(14)-(19).  Note - Department stores are not expected in existing or future centres.

[65]  Section 3.3.4.1(20)-(25)

[66]  Exhibit 13, p. 22: 2014 Scheme, Editor’s Notes, P3-11, s.3.3.4.1(4); Section 3.3.4.1(26)-(27)

[67]  Section 3.3.4.1(28)-(29)

[68]  Exhibit 13, p. 22: 2014 Scheme, Editor’s Notes, P3-11, s.3.3.4.1(4), Editor’s Notes: Exhibit  13, p.7: 2014 Scheme P1-5, s.1.3.2(4)

[69]  Exhibit 13A, p.30: for impact assessable development a proposal is-be assessed against the scheme-the extent relevant: 2014 Scheme, P5-4, s. 5.3.3(5)(b); Exhibit 13 pp. 15-16: 2014 Scheme, P3-5 - P3-6

[70]  Exhibit 13, pp. 20-26: 2014 Scheme, P3-11 - P3-16

[71]  Exhibit 13, p. 23: 2014 Scheme, P3-13

[72]  Exhibit 13, pp. 69-75: 2014 Scheme, P6-157 - P6-163, s.6.3.4.2(3)(a) & (4).  Also Exhibit  13, p. 14: 2014 Scheme, P3-4, s.3.2.5

[73]  Exhibit 13, Tab 10, p.23, subsection (26).

[74]  T4-68/41-43.

[75]  Exhibit 13, Tab 11, p.45.

[76]  s.6.3.2.2(3)(a).

[77]  s.6.3.2.2(3)(c).

[78]  s.6.3.2.2(3)(e).

[79]  s.6.3.2.2(3)(f).

[80]  s.6.3.2.2(3)(g).

[81] Exhibit 13, p.45

[82]  Exhibit 2, p. 580: planning JER, p. 12, para 5.0.31

[83]  Exhibit 17: Individual Report of Mr Vann, p. 10, para 3.75

[84]  T5-24/10-T5-25/5

[85]  T5-7/30-40

[86]  T5-48/10

[87]  T5-8/10-15

[88]  Cf. Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2013] 2 Qd R 302, [13] – [15]; Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QCA 021 at [8]-[9], and Australian Capital Holdings v Mackay Regional Council & Anor [2008] QCA 157, [58] – [59].

[89]  2014 scheme: Exhibit 13, Tab 10, p.22, subsection (6).

[90]  2014 scheme: Exhibit 13, Tab 15, p.97, s.6.4.1.2(3)(c).

[91]  Exhibit 13, pp. 6-7: 2005 Scheme, pp. 12-13, s. 3.1(e)

[92]  Exhibit 13, p. 7: 2005 Scheme, p. 13, s. 3.1(f)

[93]  Exhibit 13, p. 23: 2005 Scheme, p. 135, specific outcome 1(j) (first and second points)

[94]  Exhibit 13, p. 24: 2005 Scheme, p. 136

[95]  Exhibit 2, pp. 526-527: open space JER, pp. 7-8, paras 23-24

[96]  Exhibit 2, p. 539: open space JER, p. 20, para 86

[97]  Exhibit 2, p. 545: open space JER, p. 26, para 121

[98]  T2-69/45-T2-70/5

[99]  Exhibit 2, p. 557: open space JER, p. 38, para 160

[100]  2005 Scheme: Exhibit  13, Tab 5, p. 16, s. 4.31(j).

[101]  2005 Scheme: Exhibit  13, Tab 5, p. 24, SO1 (j).

[102]  Open Space JER: Exhibit 2, Tab 18, p.528, para 31 and Collins: Exhibit 8, p.4, para 18.

[103]  Exhibit 13, p. 28: 2014 Scheme, P3-18

[104]  Exhibit 13, p. 29: 2014 Scheme P3-19

[105]  Exhibit 13, p. 97: 2014 Scheme, P6-277, s.6.4.1.2

[106]  Exhibit 13, p. 97: 2014 Scheme, P6-277, s.6.4.1.2(3)

[107]  Exhibit 13, p. 102: 2014 Scheme, P6-282

[108]  Exhibit 2, p. 577: planning JER, p. 9, para 6.0.6(v)

[109]  Exhibit 13, p. 4: 2005 Scheme, p. 10, s. 3.1(b) (ninth point)

[110]  Exhibit 13, p. 4: 2005 scheme, p. 10, DEO 3.1(b) (third point)

[111]  Exhibit 13, pp. 4-5: 2005 scheme, pp. 10-11, DEO 3.1(c) (third, eight and twelfth points); see also Exhibit 13, pp. 6-8:  2005 scheme, pp. 12-14, DEO 3.1(d) (fifth point), DEO 3.1(f) (sixth point), DEO 3.1(g) (fifth point).

[112]  Exhibit 13, p. 13: 2014 scheme, P3-3, s. 3.3.4.1(18)

[113]  Exhibit 13, p. 26: 2014 scheme, P3-16, s. 3.3.5.1(2)

[114]  Exhibit 13, p. 27: 2014 scheme, P3-17, s. 3.3.6(5); see also 2014 scheme, P3-24, s. 3.6.1(1)

[115]  Exhibit 17: Individual Report of Mr Vann, p. 9, para 3.6.3

[116]  Exhibit 2, p. 20: planning JER, p. 20, para 6.1.40; see also T5-29/1-25

[117]  Exhibit 3: 2nd traffic JER, p. 13, para 3.26; T4-19/10-30

[118]  Exhibit 2, p. 587: planning JER, p. 19, para 6.1.39; Exhibit  2, p. 444: 1st traffic JER, p. 4, para 3.2

[119]  Exhibit 3: 2nd traffic JER, p. 13, para 3.27

[120]  T4-19/33-35

[121]  Exhibit 3: 2nd traffic JER, p. 13, para 3.30

[122]  Exhibit 20: Statement of Mr McConaghy, p. 4, para 16(b)(v)

[123]  Exhibit 3: 2nd traffic JER, p. 8, paras 2.18, 2.20 and 2.21; see also T4-31/10-30

[124]  T4-42/15-33.

[125]  Exhibit 13, Tab 6, p.43.

[126]  T4-43/9-16.

[127]  T4-46/20-26.

[128]  Exhibit 3 pp.78-79 (as well as Figure SC6.4.3.13.1, p.69, and p.82, 1st para); see also Exhibit 35; Holland T4-30/19-36; Vann T5-27/33-T5-28/31

[129]  Exhibit 13 tab 16 pp.107, 109.  See PO1-PO5

[130]  Exhibit 3, p.1, para 2.3.

[131]  Exhibit 3, pp.81-82 and pp.91-92

[132]  Exhibit 3 p.92

[133]  Exhibit 3 p.76; see also Exhibit 3 p.82 (7th para), p.92 (“note”)

[134]  Exhibit  3, p. 11, para 3.12.  See also Mr Holland T4-37/14-T4-39/18.

[135]  Exhibit 29; Exhibit 3 p.92

[136]  Exhibit 29

[137]  T4-47/38-T4-48/43.

[138]  T4-37/4-11.

[139]  Exhibit 3: 2nd traffic JER, pp. 6-7, paras 2.1-2.16 & T4-25/40-T4-26/30; also the cross examination of Mr Douglas T4-11/30-T4-18/35

[140]  T4-27/45-T4-29/45

[141]  Exhibit 3: 2nd traffic JER, pp. 8-9, para 2.25

[142]  Exhibit 3: 2nd traffic JER, p. 9, para 2.26

[143]  Exhibit 3: 2nd traffic JER, p. 9, para 2.26

[144]  Exhibit 3: 2nd traffic JER, p. 9, para 2.27

[145]  Exhibit 3: 2nd traffic JER, p. 9, para 2.29

[146]  Exhibit 3: 2nd traffic JER, p. 9, para 2.30

[147]  Exhibit 3: 2nd traffic JER, p. 9, para 2.31

[148]  Exhibit 3: 2nd traffic JER, p. 10, para 2.37

[149]  Exhibit 3: 2nd traffic JER, p. 10, para 2.39(i)

[150]  Exhibit 3: 2nd traffic JER, p. 10, para 2.39(ii)

[151]  Exhibit 3: 2nd traffic JER, p. 10, para 2.39(iii) (Mr Holland accepted that allocating some staff parking spaces would overcome the issue in a practical sense: T4-31/36)

[152]  Exhibit 3: 2nd traffic JER, p. 10, para 2.39(iv)

[153]  T4-48/41-43 and T4-49/12-20.

[154]  T4-48/28-33.

[155]  T4-49/22-30.

[156]  Exhibit 3, p.5, para 3.11 and T3-85/6-39 and T3-86/33-40.

[157]  Exhibit 3, p.9, para 2.26 and 2.27.

[158]  T4-22/23-Line 39.

[159]  Planning JER: Exhibit 2, Tab 19, paras 5.04-5.0.15.

[160] Australian Capital Holdings v Mackay Regional Council & Anor [2008] QCA 157, [58] – [59].

[161]  see Lockyer Valley Regional Council v Westlink [2013] 2 Qd R 302, [13] – [15].

[162]  Collins: Exhibit  8, p.2, para 9.

[163]  Exhibit 9A

[164]  Motti: T4-67/46-T4-68/5 and Vann: T5-36/23-25.

[165]  Exhibit 1, p. 25: paras 1-2

[166]  Relied upon at trial without objection.

[167]  Exhibit 1, p. 26: paras 3

[168]  Exhibit 1, p. 26: para 4

[169]  Exhibit 1, p. 26: para 5

[170]  Exhibit 1, p. 26: para 6

[171]  Exhibit 1, p. 26: para 7

[172]  Co-respondent’s Submissions, para 7

[173]  Scheme Extracts: Exhibit 13, Tab 2, p.4, (b), last point, p.7, (e), fourth point from top & p.7, (f), second last point on page.

[174] Skateway Pty Ltd v. Brisbane City Council & Ors [1980] QPLR 245 at 249-250.

[175] Cut Price Stores Retailers & Ors v. Caboolture Shire Council [1984] QPLR 126 at 131.

[176] Roosterland Pty Ltd & its agents v. Brisbane City Council [1986] QPLR 515 at 517.

[177] Bunnings Building Supplies Pty Ltd v. Redland Shire Council and Ors [2000] QPELR 193 at [21].

[178] JPF Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359 at [43]

[179] Parmac Investments v. Brisbane City Council & Ors [2008] QPELR 480 at 485

[180]  Cf. Intrafield Pty Ltd v. Redland Shire Council [2001] 116 LGERA 350 at [5]

[181] Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 750 at [37]

[182] Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 at 211.  Affirmed by the Court of Appeal in Holts Hill Quarries Pty Ltd v Gold Coast CC & Ors [2001] 1 QdR 372, Grosser v Gold Coast City Council [2001] 117 LGRA 153 at [6] & [38], Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271 at [23], Australian Capital Holdings Pty Ltd & Ors v Mackay CC [2008] QCA 157 at [55]. 

[183]  Exhibit 2, p. 511: need JER, p. 59, para 128

[184]  Exhibit 2, p. 511: need JER, paras. 56-61

[185]  Exhibit 2, p. 511: need JER, paras. 60

[186]  Exhibit 2, p. 511: need JER, paras. 61

[187]  Cf. Parmac v Brisbane City Council [2008] QPELR 480, 485, Line B.

[188]  Need JER: Exhibit 2, Tab 17, p.491, para 85. This applies irrespective of which of the alternative trade areas is applied.

[189]  In excess of 30% of the community prefer Coles – Duane: T2-6, Line 44 to T2-7, Line 2.

[190]  Norling: T2-46, Line 17 to 38.

[191] Norling: T2-46, Line 9 to 15.

[192]  Duane: T2-6, Line 14 to 26 / Norling: T2-46, Line 39 to 41.

[193]  Zeller: Exhibit  11, p.3, para 20.

[194]  Norling: T2-46/17-38.

[195] Norling: T2-46/9-15.

[196]  Duane: T2-6/14-26 / Norling: T2-46/39-41.

[197]  Exhibit 21

[198]  Exhibit 21

[199]  Exhibit 2, pp. 505-506: need JER, pp. 53-54, para 114

[200]  Exhibit 2, p. 511: need JER, p. 59, para 128

[201]  T2-37/25-T2-38/10; T2-37/45 cf Lewiac Pty Ltd & Anor v Gold Coast City & Ors [2003] QPELR 385 at [102]-[104]; Elfband & Anor v Maroochy Shire Council & Ors [1995] QPLR 290 at 313 Line H

[202]  Exhibit 2, p. 585: planning JER, p. 17, para 6.1.30

[203]  T5-31/40-45

[204]  T5-32/40

[205]  Exhibit 2, pp. 508-510: need JER, pp. 56-58

[206]  Identified by Mr Norling in the Need JER: Exhibit 2, Tab 17, p.508, para 118 and 122.

[207]  Exhibit 2, pp. 508-509: need JER, pp. 56-57, para 123 and Exhibit 7, p.11, para 5.3 b.

[208]  Zeller: T3-40, Line 4 to 12.

[209]  Norling: T2-49, Line 40 to T2-50, Line 3.

[210]  Exhibit 2, p. 508: need JER, p. 56, para 120

[211]  T2-24/37-45

[212]  Exhibit 20, pp. 8-9, paras 46-53, p. 32 and Exhibit  23 & T3-71/40-T3/73/1

[213]  Exhibit 2: p. 9, paras 52-53

[214]  Exhibit 17, p103 s 3.3; compare Report 16.5.14, p 27

[215]  Exhibit  20, Appendix 3.

[216]  Zeller: T3-4/26-40

[217]  T3-40/25-30, T3-49/5-10, T3-49/40-45

[218]  see eg Luke v Maroochy SC [2003] QPELR 447 at [50]

[219]  Need JER: Ex.2, Tab 17, p.497, para 98 (Duane) and p.501, para 104 (Norlng) / Duane: Ex. 7, p.5 para 3.3 / Norling: T2-51, Line 22 to Line 33.

[220]  Duane: T2-11, Line 12 to Line 31 / Norling: T2-50, Line 35 to T2-51, Line 20.

[221]  McConaghy: Ex.20, p.5, para 19 and T3-62, Line 15 to 16 and T3-63, Line 36 to T3-64, Line 31.

[222]  Motti: Ex.6, p.9, paras 8.0.1 – 8.0.3 / King: Ex.10, para 25.

[223]  T3-31/50-10

[224]  T3-31/10-15

[225] Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2013] 2 QdR 302 at [22]-[25]

[226]  Need JER: Ex.2, Tab 17, p.497, para 98 (Duane) and p.501, para 104 (Norlng) / Duane: Ex. 7, p.5 para 3.3 / Norling: T2-51/22-33.

[227]  Exhibit 2, p. 501: need JER, p. 49, para 105

[228]  Exhibit 15: Report of Mr Norling, p. 4, para 16 & p. 5, para 18

[229]  Exhibit 20: Statement of Mr McConaghy, p. 12, para 85 and p. 14, para 89(c)

[230]  Exhibit 20: Statement of Mr McConaghy, p. 15, para 101

[231]  T2-23/40-30

[232]  Exhibit 2, p. 501: need JER, p. 49, para 105

[233]  Exhibit 15: Report of Mr Norling, p. 6, para 20(e)

[234] Australian Capital Holdings v Mackay Regional Council & Anor [2008] QCA 157, [58]

[235]  Mr Norling at T2-51/22-24.

[236]  Exhibit 7, p.10, para 4.4 and 4.7.

[237]  T2-49/7 -10 & T2-51/17-20

[238]  T4-69/16-29 and Exhibit 6, p.7, para 6.0.11 and p.8, para 6.0.14.

[239]  McConaghy: T3-63/36-T3-64/31.

[240]  From T4-66

[241]  T2-53/1-10. Exhibit 15 para 20.

[242]  Exhibit 17: Report of Mr Vann, p. 9, para 3.5.5

[243]  T5-36/30-50

[244]  Exhibit 1, p. 26: para 4

[245]  Exhibit 1, p. 26: para 5

[246]  Exhibit 1, p. 26: para 6

[247]  T3-51/45-T3-52/5

[248]  T3-52/5-10

[249]  Exhibit 1, p. 26: para 7

[250]  Collins: Exhibit  8, p.2, para 9.

[251]  Collins: Exhibit 8, p.3, paras 12 and 16; Alston: T3-7/10-24.

[252]  Collins: T2-71/9-32 read with Exhibit 25., p.62; Alston: T3-7/26-28.

[253]  Motti at T4-70/4-10 and Vann at T5-40/11-12.

[254]  Collins: Exhibit  8, p.4, para 21.

[255]  Exhibit 17, pp. 69-134.

[256]  Exhibit 13, p. 3: 2014 Scheme, P1-1, s.1.1(2) and (4)

[257] Australian Capital Holdings Pty Ltd v Mackay CC [2008] QCA 157 at [68].

[258]  Cf. Handley v Brisbane City Council & Anor [2005] QPELR 80 at [3], [9]-[11], [15]-[16]and [34]   and Chelmer Bowls Pty Ltd v Brisbane City Council [2006] QPELR 611 at [4], [11]-[12].

[259] Calligaris v Bundaberg CC [2002] QPELR 210 at [18]

[260]  Exhibit 2, pp. 526-527: open space JER, pp. 7-8, para 24;  Collins XXN: T2-63/15-20

[261]  Exhibit 2, p. 526: open space JER, p. 7, para 23

[262]  Exhibit 13, Tab 2, p.4, (b), last point, p.7, (e), fourth point and p.7, (f), second last point.

[263]  See 2005 Scheme: Exhibit 13, Tab 2, p.4, (b), last point, p.7, (e), fourth point & p.7, (f), second last point; Collins: Exhibit 8, p.3, para 15.

[264]  Collins: Exhibit 8, p.4, para 25 a. / Open Space JER: Exhibit 2, Tab 18, p.557, para 161.

[265]  Exhibit 25

[266] McBain v Clifton Shire Council [1996] 2 QdR 493 at 496-497; Mison v Randwick MC (1991) 23 NSWLR 734 at 738

[267]  Exhibit 13, Tab 2, p.4, (b), last point, p.7, (e), fourth point from top & p.7, (f), second last point; Collins: Exhibit 8, p.3, para 15.

[268]  Exhibit 16, p. 4, paras 17-19; Collins: T2-71/5;  Mr Bell: T4-61/30-35; T4-62/25-30; T4-62/40-45

[269]  Exhibit 12, p. 3, para 18

[270]  Compare Walker v Noosa Shire Council [1983] 2 Qd R 86.

[271]  T5-18/33-36

[272] Brown v Moreton Shire Council [1972] 26 LGERA 310 at 313

[273] Hymix Australia Pty Ltd v Brisbane City Council & Ors [2014] QPELR 645 at [120]

[274]  Collins: Exhibit 8, p.4, para 25; Open Space JER: Exhibit 2, Tab 18, p.557, para 161.

[275]  Exhibit 9A

[276]  T3-11/20 & 24.

[277]  Open Space JER: Exhibit 2, Tab 18, p.528, para 31 and Collins: Exhibit 8, p.4, para 18.

[278]  Collins: T 2-72/4-24 / Alston: T3-11/7-9. Depicted on p. 5 - Open Space JER, Exhibit  2, Tab 18.

[279]  Exhibit 2, p. 529: open space JER, p. 10, para 32

[280]  Exhibit 16, p. 2, para 11: Report of Mr Alston

[281]  T3-3/1-15

[282]  T2-68/20, T2-68/45-T2-69/5

[283]  T2-69/10-20

[284]  Mr Alston T3-4/1-5; Brazier Motti submission Exhibit 17, p. 129 refers- “Stage 1”. See also Mr McConaghy Exhibit 20, p. 20 para 107(o) and p. 34

Close

Editorial Notes

  • Published Case Name:

    McConaghy Properties Pty Ltd v Townsville City Council & Anor

  • Shortened Case Name:

    McConaghy Properties Pty Ltd v Townsville City Council

  • MNC:

    [2017] QPEC 11

  • Court:

    QPEC

  • Judge(s):

    Morzone DCJ

  • Date:

    10 Mar 2017

Appeal Status

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

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Brown v Moreton Shire Council (1972) 26 LGERA 310
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Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209
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Mison & Ors v Randwick Municipal Council (1991) 23 NSWLR 734
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