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Hawkhaven Pty Ltd v Mackay Regional Council[2017] QPEC 40

Hawkhaven Pty Ltd v Mackay Regional Council[2017] QPEC 40

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Hawkhaven Pty Ltd v Mackay Regional Council & Anor [2017] QPEC 40

PARTIES:

HAWKHAVEN PTY LTD

(Appellant)

v

MACKAY REGIONAL COUNCIL

(Respondent)

AND

BLACKS BEACH COVE NO.2 PTY LTD

(Co-Respondent by Election)

FILE NO/S:

No 4293, 4294, 4295 and 4296 of 2014

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

19 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

19 – 23 September 2016, 23 – 24 February 2017

JUDGE:

Searles DCJ

ORDER:

The orders will be in accordance with those in paragraph [228] of this judgment.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where development application for material change of use for commercial premises refused by Council – where development application assessed against current planning scheme – whether weight should be given to draft planning scheme – whether development application conflicts with relevant planning schemes – whether sufficient grounds exist to warrant approval

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL –  APPLICATIONS – where development application approved subject to conditions – whether conditions valid pursuant to section 345 of Sustainable Planning Act 2009 (Qld)

Sustainable Planning Act 2009 (Qld) s 314, s 324, s 326, s 345, s 493, s 495

Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342

Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157

Beck v Atherton Shire Council (1991) QPLR 56

Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104

Broad v Brisbane City Council & Anor (1986) 2 Qd R 317

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117

Dalgety Australia Ltd v Brisbane City Council (1980) QPLR 198

DP Thoroughbred v Albert Shire Council [1986] QPLR 273

Elan Capital Corporation Pty ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711

Gold Coast Carlton Pty Ltd & Anor v Beaudesert Shire Council & Anor [1985] QPLR 343

Good-Mix Concrete Pty Ltd v Brisbane City Council (No.3) (1975) 31 LGERA 178

Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153

HA Bachrach Pty Ltd v Caboolture Shire Council [1996] QPELR 312

Jones v Dunkel (1959) 101 CLR 298

Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675

Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224

Lockyer Valley Regional Council v Westlink Pty Ltd [2001] 185 LGERA 863

Maher v Hervey Bay City Council [2007] QPELR 123

Synergy Properties Partners No 2 Pty Ltd v Brisbane City Council [2016] QPEC 21

Waverley Road Developments Pty Ltd v Gold Coast City Council (2011) 187 LGERA 352

Weightman v Gold Coast City Council [2003] 2 Qd R 441

Westfield Management Ltd v Pine Rivers Shire Council  [2004] QPELR 337

Woolworths Ltd v Maryborough Shire Council (No 2) [2006] 1 Qd R 273

Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306

COUNSEL:

JD Houston for the Appellant

MJ Batty for the Respondent

D Purcell for the Co-Respondent by Election

SOLICITORS:

Anderssen Lawyers for the Appellant

McCullough Robertson for the Respondent

Appeals 4293, 4294, 4295 and 4296 of 20146

Subject Site7

Previous decision of the Planning and Environment Court8

SHOPS MCU APPEAL – Appeal No 4296 of 149

Complaints about Late Disclosure of the Draft Planning Scheme10

Minor Change Application12

Council’s Ground for Refusal13

Issues in Dispute14

Issues in Dispute – Town Planning15

Town Planning JER and the Further Amended Consolidated Ground for Refusal16

Town Planning: Expert Evidence17

Opinions of Messrs Buckley (Council) and Brownsworth (BBC) in JER17

Opinion of Mr Cumming (Hawkhaven) in JER18

The Blacks Beach Local Centre under the Current Scheme21

Hawkhaven’s First Submission to have Lot 241 re-zoned22

The Blacks Beach Local Centre under the Draft Scheme24

Hawkhaven’s second attempt to have Lot 241 re-zoned24

Weight to be given to Draft Scheme25

Town Planning: Centres Hierarchy28

Town Planning: Zoning40

Conclusion re Town Planning44

Amenity44

Acoustic Amenity44

Amenity provisions within the Current and Draft Scheme46

Mr King’s Assessment47

Other Aspects of Amenity51

Community Expectations 53

Conclusion re Amenity54

Need54

Expert Evidence as to Need56

Mr McCracken’s Estimates of Supportable Retail Floorspace58

State of the Mackay Economy61

BBC’s evidence as to the intent and timing of the BBC Proposal62

2011 BBC Proposal65

Relevance of Existing BBC Approval65

Vacancies at Nearby Centres 70

Conclusion re Need72

Nature and Extent of Conflict72

Sufficient Grounds to Warrant Approval Despite Conflict76

Conclusion re Appeal No 4296 of 2014 - Shops MCU Appeal78

HOTEL MCU APPEAL - APPEAL NO 4295 OF 201479

Statutory Regime80

GFA of Building – Condition 481

Amalgamation of Allotments – Condition 584

Building Proximity - Condition 987

Commencement of Use – Condition 688

Traffic Issues relating to Condition 13 of Council’s Decision Notice90

Conclusion re Appeal No 4295 of 2014 - Hotel MCU Appeal92

24 LOT ROL APPEAL – APPEAL NO 4294 OF 201492

Conclusion re Appeal No 4294 of 2014 – 24 Lot Appeal94

3 LOT ROL APPEAL - APPEAL No 4293 of 201495

Conclusion re Appeal No 4293 of 2014 – 3 Lot ROL Appeal96

Orders 97

Appeals 4293, 4294, 4295 and 4296 of 2014

  1. [1]
    On 24 July 2013, the Appellant (‘Hawkhaven’), lodged four development applications with the Mackay Regional Council (‘Council’) relating to the following present appeals:
  1. Appeal 4293/14 - development application for a development permit for reconfiguration of Lot 241 on SP171588 (‘Lot 241’) into three allotments (‘3 lot ROL Appeal’);
  2. Appeal 4294/14 - development application seeking a development permit for reconfiguration of a lot to subdivide part of Lot 241 into 24 further lots (‘24 lot ROL Appeal’);
  3. Appeal 4295/14 -  development application for a development permit for a material change of use for a hotel (liquor barn, extension to the existing Blacks Beach Tavern)  on part of Lot 241 (‘ Hotel MCU Appeal’); and
  4. Appeal 4296/14 - development application for a development permit for a material change of use over part of Lot 241 for commercial premises, shop, catering shop, healthcare centre and indoor entertainment (‘Shops MCU Appeal’).

Council Decision Notices

  1. [2]
    On 2 October 2014, Council issued two decision notices, one approving the application relating to the Hotel MCU Appeal subject to conditions, the other refusing the application the subject of the Shops MCU Appeal. On 8 October 2014, Council issued two further decision notices approving the applications the subject of the 3 Lot ROL Appeal and the 24 Lot ROL Appeal, both subject to conditions. In respect of these appeals, there was no public notification, and no formal right of submission giving rise to a right of a submitter to appeal or be joined in an appeal.
  1. [3]
    The 3 Lot ROL Appeal, the 24 Lot ROL Appeal and the Hotel MCU Appeal are all appeals against Council conditions. The Shops MCU Appeal is a substantive appeal against the refusal of a development application in respect of proposed commercial premises, shop, catering shop, healthcare centre and indoor entertainment on part of Lot 241. Blacks Beach Cove No.2 Pty Ltd (‘BBC’) elected to become a Co-Respondent in both the Hotel MCU and Shops MCU Appeals.

Subject Site

  1. [4]
    The development, the subject of all four appeals, is proposed for Lot 241 on SP 171588[1] containing an area of 2.279 ha and situated in the northern Mackay suburb of Blacks Beach.  Its southern frontage is to Blacks Beach Road, a sub-arterial road, and its northern frontage to McAlary Drive, a residential street.  Immediately to the east of Lot 241 is Lot 240 on SP140130, the site of Blacks Beach Tavern built in 2005. To the north, on the opposite side of McAlary Drive, and to the west, is the low-density residential development of Sunrise Estate, consisting of residential dwellings 500m² to 800m² in size.[2]
  1. [5]
    The site is relatively flat along Blacks Beach Road rising towards McAlary Drive and is presently vacant with grassland and some trees.[3]  On the southern side of Blacks Beach Road there are residential lots with detached dwellings of between 300m² and 800m² in size and contains an approved centre. [4]

Previous decision of the Planning and Environment Court

  1. [6]
    On 5 August 2011, this Court delivered judgment in respect of what were effectively competing development proposals by Hawkhaven and BBC for development of a local shopping centre, to include a supermarket and specialty stores (‘2011 Decision’).[5] The proposals and associated appeals were described in the reasons for judgment as follows:

‘Appeals

[1] There are presently five appeals before the court relating to the two competing shopping centre applications under consideration.  Three are the subject of this judgment.  They are:-

  1. (a)
    BD1202/2010, a submitter appeal by Blacks Beach Cove No. 2 Pty Ltd (BBC) against the Council’s approval on 28 January 2009 of Hawkhaven’s (HH) Material Change of Use (MCU) application for shops – supermarket and six specialty shops;
  2. (b)
    BD1201/2010, a submitter appeal by BBC against Council’s approval on 28 January 2009 of HH’s MCU application for an extension to an existing hotel-liquor barn and drive-through; and
  3. (c)
    D211/2009, an appeal by BCC against the Council’s refusal on 28 January 2009 of its MCU application for a shopping centre.

…

Proposals

HH Proposal

[3] The HH proposal is for a local shopping centre, comprising a supermarket, specialty stores and a liquor barn on land north of Blacks Beach Road comprising two adjoining lots, lot 240 and 241.  It involves two separate applications, one for the supermarket and specialty shops and the other for the liquor barn described as a hotel extension.  There is an existing Tavern on lot 240 with a Gross Floor Area (GFA) of 1840m2.

[4] All of the development proposed will be on lot 241 for which Council approval has been granted to create three lots.  The GFA of the proposal, allowing for changes to which I shall shortly refer, totals 2,908 m2 comprising:

  1. (a)
    Supermarket  1855 m2
  1. (b)
    Specialty Shops  398 m2
  1. (c)
    Liquor Barn 600 m2
  1. (d)
    WC and Cleaners 55 m2
  1. TOTAL: 2908 m2

…

BBC Proposal

[7] The BBC proposal is for a local shopping centre comprising a supermarket and specialty stores on land south of Blacks Beach Road at the corner of Chenoweth Drive and Bondi Road more or less directly across Blacks Beach Road from the existing Tavern.  This proposal is to be located on lot 901 on SP 199843.  By a decision dated 28 January 2009 Council approved the reconfiguration of lot 901 to create two lots 901A (1.268 ha) and 901B (.9447 ha).  The proposed shopping centre will have a GFA of 2750 m2 comprising a supermarket of 1500 m2 and specialty shops of 1250 m2.’

  1. [7]
    In the result, the Court refused the Hawkhaven development application for retail uses and found in favour of the BBC Proposal. On 5 July 2012, judgement was entered with an approval package for the BBC proposal (‘BBC Approval’). That development approval has not proceeded and the site of the BBC Proposal, directly south of the Subject Site on the other side of Blacks Beach Road, remains vacant. On 29 June 2016, BBC lodged a request to change an existing approval (extension to the currency period) to extend the approval to 5 July 2020. That application was granted so that the approval remains extant to that date.

SHOPS MCU APPEAL – Appeal No. 4296 of 14

  1. [8]
    I turn now to the Shops MCU Appeal commenced on or about 31 October 2014.

Statutory Assessment Regime

  1. [9]
    Under section 493 of the Sustainable Planning Act 2009 (Qld) (“SPA”), Hawkhaven bears the onus of establishing the appeal should be upheld. The appeal is by way of hearing anew. The Shops MCU proposal was impact assessable under section 314(2) and (3) of SPA and to be decided in accordance with section 324 and 326. In the event of conflict with a relevant instrument, including a planning scheme, any decision of an assessment manager must not conflict with that instrument unless there are sufficient grounds to justify the decision.  The assessment decision making process of the appeal must, in accordance with section 495 of SPA, be based on laws and polices applying when the development application was made but weight may also be given to new laws and policies under section 495.
  1. [10]
    There are two relevant planning instruments: –
  1. the Planning Scheme for the City of Mackay 2006 (‘Current Scheme’); and
  2. the Draft Mackay Region Planning Scheme (‘Draft Scheme’).
  1. [11]
    Under the Current Scheme, the land is located in the Mackay Frame Locality, the McCready’s Creek Precinct and the Urban Residential Zone, and under the Draft Scheme, in the Medium Density Residential Zone. The Draft Scheme is at a very advanced stage of the adoption process, the Council having written to the State seeking its approval to adopt the Draft Scheme and proceed to Step 9 pursuant to Statutory Guideline 01/16.[6]

Complaints about Late Disclosure of the Draft Planning Scheme

  1. [12]
    For completeness, I record that Hawkhaven advanced a number of complaints, both at the hearing and through written submissions as to Council’s late disclosure of the Draft Scheme. It submits that given the late disclosure, the relevant expert witnesses did not have the opportunity to properly and thoroughly consider the most recent version of the Draft Scheme.[7]
  1. [13]
    There have been several versions of the Draft Scheme tendered in evidence, namely versions 0.8[8], 0.9[9], 0.10[10] and subsequent to the hearing, version 0.11[11], which is the most recent manifestation of the Draft Scheme. Hawkhaven, having initially prepared its case on the basis of version 0.8 of the Draft Scheme, was provided with disclosure in respect of version 0.9 shortly before the hearing commenced on 19 September 2016. On the first day of the hearing, Council confirmed it intended to rely on version 0.9.[12] Hawkhaven confirmed it was content to proceed on the basis of version 0.9.[13]
  1. [14]
    Subsequent to the adjournment of the hearing in September 2016 to 23 February 2017, Council made further disclosure.[14]  That disclosure included an updated version 0.10 of the Draft Scheme. When the hearing resumed on 23 February 2017, Council confirmed its position that for the purposes of the Shops MCU appeal, the changes between version 0.9 and 0.10 in respect of the grounds of refusal were minimal.[15] Exhibit 56 contains a comparison of the differences between version 0.9 and 0.10.[16] At the close of the hearing, Mr Batty, for the Council, advised that, in terms of the provisions of the scheme referred to in the Further Amended Consolidate Ground for Refusal,[17] there were no differences between versions 0.9 and 0.10. Foreshadowing the imminent delivery of version 0.11, Mr Batty confirmed that any changes relevant to the Further Amended Consolidated Grounds for Refusal would be brought to the attention of the parties. This was not required. Version 0.11 has now been provided to the Court as the most recent version of the Draft Scheme.[18]
  1. [15]
    Despite Hawkhaven’s complaints, no adjournment was sought. Rather, Hawkhaven says because of the late disclosure relying on the expert statements in the Need JER is ‘fraught with difficulty’ given, for example, Figure 4.2 in the Need JER is a superseded copy of the zoning map for the Draft Scheme.[19] On this basis, Hawkhaven says that the evidence of Mr Duane (the Council’s need expert), for example, is ‘wrong’ given the zoning map was out of date when he prepared his report. At the hearing, Mr Duane confirmed that the opinions expressed in his report did not alter between version 0.8 and 0.9 of the Draft Scheme.[20] Relevantly, Hawkhaven does not refer to any other provisions to support an inference that it has been prejudiced by the late disclosure of the Draft Scheme. 
  1. [16]
    In all of the circumstances, I do not consider the changes between versions 0.8, 0.9, 0.10 and 0.11 of the Draft Scheme to be of any consequent in the Shops MCU appeal. It is version 0.11 that will be considered in respect of the Draft Scheme. The weight to be given to this draft scheme will be dealt with later.

Minor Change Application

  1. [17]
    In August 2016, Hawkhaven made application to amend the various development applications detailed in paragraph [1], and on 12 August 2016, the Court found all proposed changes found to be minor changes within SPA.[21]
  1. [18]
    As to the Shops MCU Appeal, those minor changes were: –
  1. (a)
    change of proposed site plan and building elevations from Blacks Beach Road;[22]
  2. (b)
    reduction of the original proposed floor area of 800m² in a single building to 400m² in two separate buildings of 155m² and 245m² respectively;[23]
  3. (c)
    reduction in that part of proposed Lot 2 to be occupied by retail/commercial by almost half, with the balance area identified as being a ‘Future Development Site’, described as Lots C(i) and Lot C(ii);[24] 
  4. (d)
    reduction of car parking spaces from 56 to 20; and
  5. (e)
    location of the services yard at the north-eastern corner of that part of Lot 2 proposed for retail/commercial.[25]

Council’s Ground for Refusal

  1. [19]
    As I have said, the application the subject of the Shops MCU Appeal was refused by Council on 2 October 2014. At the commencement of the hearing, Council provided Amended Consolidated Grounds for Refusal dated 19 September 2016. Council’s most recent catalogue of grounds for refusal is contained in its Further Amended Consolidated Grounds for Refusal[26] filed on 23 September 2016, the fourth day of the trial. This document was corrected slightly by a letter to the Court dated 14 March 2017 sent by Council’s solicitor. Other than this slight correction, the provisions of the Draft Scheme referred to in Council’s Further Amended Consolidated Grounds for Refusal remain current notwithstanding the late provision of version 0.11 of the Draft Scheme.[27]
  1. [20]
    In the Further Amended Consolidated Grounds for Refusal, after setting out what it considered to be material facts, Council identified those provisions of the Planning Current Scheme and the Draft Scheme it says the proposal conflicts with. Relevant extracts from this document, including the specific provisions of the Current and Draft Scheme, are set out in Schedule A hereto.

Issues in Dispute

  1. [21]
    In the Shops MCU Appeal, the issues in dispute are:
  1. (a)
    whether the proposed development, the subject of the Shops MCU Appeal, conflicts with the Current Scheme;
  2. (b)
    whether it conflicts with the Draft Scheme, and
  3. (c)
    in the event of a conflict, whether there are sufficient grounds to justify approval notwithstanding the conflict.
  1. [22]
    Evidence was received across several disciplines requiring consideration of:
  1. (a)
    whether the proposed development will have unacceptable impacts on or compromise existing, approved or planned centres;
  2. (b)
    whether the proposed development is consistent with the retail hierarchy proposed for Mackay by the planning instruments;
  3. (c)
    whether the proposed development is an appropriate use in the zone;
  4. (d)
    whether the proposed development would result in unacceptable amenity impacts;
  5. (e)
    whether there is a need for the proposed development; and
  6. (f)
    >the weight to be given to the draft planning scheme;
  1. [23]
    I shall deal with each of the above in turn, divided into three discrete evidentiary areas, namely ‘Town Planning’, ‘Amenity’ and ‘Need’. This reflects the division of evidence adopted by the Council and Hawkhaven in their closing written submissions.[28]

Shops MCU Appeal: Town Planning

  1. [24]
    In respect of the Shops MCU Appeal, three town planners, Mr Cumming (Hawkhaven), Mr Buckley (Council) and Mr Brownsworth (BBC) provided a Joint Expert Report dated 6 September 2016 (‘Town Planning JER’)[29] and Messrs Buckley and Brownsworth provided further individual reports.[30] Mr Cumming did not provide an individual report, relying only on his contribution to the Town Planning JER.[31] The Joint Report was prepared subsequent to the successful Minor Change Application.

Issues in Dispute – Town Planning

  1. [25]
    In the Shops MCU Appeal, the three planning experts, in identifying relevant issues, agreed that the singular planning issue on which they disagree relates to the proposal for 400m² gross floor area of shops.[32]  They summarised the issues related to this identified disagreement as follows:
  1. (a)
    Whether there is conflict with the Current Scheme, including:
  1. (i)
    Desired Environmental Outcomes;
  2. (ii)
    the Strategic Framework; and
  3. (iii)
    the Urban Residential Zone applying to the land.
  1. (b)
    Whether there is conflict with the Draft Scheme;
  2. (c)
    The need for the development;
  3. (d)
    The impacts of the development including:
  1. (i)
    commercial impact;
  2. (ii)
    traffic impacts; and
  3. (iii)
    amenity impacts on surrounding development.
  1. (e)
    Whether the development conflicts with the reasonable expectation of residents of the locality;
  2. (f)
    Whether the development compromises the ultimate planning intentions for the locality in terms of local centre development; and
  3. (g)
    Whether there are sufficient grounds to justify the approval.
  1. [26]
    Further, the experts agreed that despite the numerous provisions of the Current and Draft schemes, the abovementioned issues could be narrowed down, in a town planning sense, to:
  1. (a)
    Whether the proposed retail floor space is too big and in the wrong place, having regard to the network and hierarchy of centres and the zoning of the land;
  2. (b)
    Whether there are sound town planning reasons to depart from the planned network of centres in the draft scheme; and
  3. (c)
    Whether there are sufficient grounds to approve the proposal.[33]

Town Planning JER and the Further Amended Consolidated Ground for Refusal

  1. [27]
    Before setting out the opinions of the experts, I should mention that the Town Planning JER is dated 6 September 2016 and in paragraph 85, Mr Buckley and Mr Brownsworth make reference to the ‘consolidated grounds for refusal.’ Given that there were several amendments to the Council’s grounds for refusal, it is important to identify the document referred to, which is Exhibit 7 where, at Tab 16, is to be found the Consolidated Grounds for Refusal of the Council dated 6 May 2016.  A comparison of that with the most current manifestation of the Council’s grounds for refusal, the Further Amended Consolidated Grounds for Refusal, Exhibit 53, reveals that the differences between the two documents are minimal and of no consequence in considering the opinions of Mr Buckley and Mr Brownsworth by reference to the earlier document in Exhibit 7.

Town Planning: Expert Evidence

Opinions of Messrs Buckley (Council) and Brownsworth (BBC) in JER

  1. [28]
    Mr Buckley and Mr Brownsworth expressed the view[34] that the application, the subject of the Shops MCU Appeal, is in material conflict with the provisions of the Current Scheme as outlined in Exhibit 7.  They identify what they see to be strong consistent policies in the Current Scheme which limit the number of centres overall, and significantly restrict the number of new centres, limiting centre uses to be located into the ‘anointed centres’. Further, they consider that the development does not fall within the limited circumstances in which the Current Scheme allows for commercial or non-residential development outside a designated centre or within the Urban Residential Zone. [35]
  1. [29]
    Messrs Buckley and Brownsworth regard the identified centres as the backbone to the preferred land use structures of an urban area, playing a role in a number of ways, namely:
  1. (a)
    Location and function of the centre informing decisions about zoning for other land uses such as support facilities in particular residential densities;
  2. (b)
    Assisting governments in making infrastructure decisions such as road network improvements based on the network of centres;
  3. (c)
    Centre size and function informs decisions on the co-location of government facilities such as schools and direct services (e.g. social services); and
  4. (d)
    given the focus that activity centres attract, they are often the key community hub, with residents developing strong associations with them.[36]
  1. [30]
    In their view, notwithstanding the gross floor area of the proposed shops is small compared to a supermarket, nevertheless it is of a meaningful size so as to effectively start a new hub or node of activity which would cut across both the Current Scheme and the Draft Scheme. They see no apparent economic or community need to put aside what they see as very definite and deliberately stated forward planning intentions in both schemes.
  1. [31]
    They further consider that any approval of the Shops MCU proposal would cut across reasonable community expectations regarding the types of land uses intended to be developed on the subject land and would potentially compromise the ultimate form and scale of centre development intended in the locality. Ultimately, they conclude that the nature of the conflict with the Current Scheme ‘goes to the heart’ of the scheme, and so the extent of the conflict, it is ‘planning scheme wide’.[37]
  1. [32]
    As to the Draft Scheme, Messrs Buckley and Brownsworth consider it reinforces the Blacks Beach Cove site as the local centre for the surrounding community and that the Subject Site is intended, under the scheme for medium density residential uses. To their mind, approval of the development application, the subject of the Shops MCU Appeal, would be a significant challenge to the proper implementation of the Draft Scheme.[38]

Opinion of Mr Cumming (Hawkhaven) in JER

  1. [33]
    As against those views, Mr Cumming says that the historical context for the shop proposal is important [39] and that the catchment of some 2,200 households, centred on Blacks Beach Road/Chenoweth Drive Intersection, has virtually no retail or community facilities except for two very small groups of shops at either end of Blacks Beach Road and the existing tavern.  The nearest shopping centre of any size is some 3 kilometres away.  As to the 2011 Court approval for the BBC substantial neighbourhood centre on the southern side of Blacks Beach Road and BBC’s assertion that its site remains vacant because of the economic downturn and other reasons, he says that vacancy has resulted in the retail and social need of existing residents not being satisfied by that approval.[40]
  1. [34]
    Mr Cumming considers that, whilst approval of the 400m2 development application the subject of Shops MCU Appeal, will not satisfy the demand for a substantial supermarket or the drawcard of surrounding smaller shops in such a centre but it would help the residents of the area.  In his view, priority should be given to residents’ present need over a concern about the potential impact which a small group of shops would have on the approved shopping centre which, he says, may or may not be built in the short to medium term.
  1. [35]
    As to any conflict with the Current or Draft Scheme Mr Cumming says it is minor and there are sufficient grounds to justify the scale of the development application despite any conflict, particularly considering:
  1. (a)
    the proposal would otherwise be an undesirable location for residential use;
  2. (b)
    the site enjoys excellent sub-arterial access;
  3. (c)
    local development impacts can be minimised; and
  4. (d)
    strategic designations for the Blacks Beach local centre
  1. [36]
    He disagrees that the proposed floor area of 400m² in the proposed two buildings materially conflicts with the Current Scheme because, because:-
  1. (a)
    Given the clear practical need for additional retail space, the proposal will be a timely delivery of commercial facilities in circumstances where the BBC’s approved shopping centre will not materialise in the foreseeable future; and 
  2. (b)
    Desired Environmental Outcomes 3.1(c)(v), (e)(i), which emphasise that the growth of centres and urban development, must reflect community need.[41]
  1. [37]
    He points to Specific Outcome P6 of the Mackay Frame Locality which speaks of Blacks Beach local centre growing in step with the needs of the local population but not exceeding the local centre role. The then current (2016) estimate for growth of households in the Black Beach catchment, referred to in the Need Joint Expert Report (paragraph [126]) means the expectation that commercial services at Blacks Beach would keep pace with population need has not been realised. 
  1. [38]
    The Shops MCU proposal, Mr Cumming says, is an integrated centre activity adjacent to the Blacks Beach Tavern and an approved bottle shop, arguably within, but certainly adjacent to, the strategic centre designation, Blacks Beach. From there he points to section 1.4(2)(d) of the Strategic Framework of the Current Scheme which states:

‘To establish and maintain a viable and sustainable network of centres in the city, additional centre activities are situated within or immediately adjacent to a designated centre and be appropriate to their scale, intensity and character to the intended role and function of the designated centre.’[42]

(emphasis added)

  1. [39]
    Finally, Mr Cumming concludes that the proposed 400m² gross floor area of the Shop MCU is consistent with the Current Scheme, as facilitating the timely delivery of commercial facilities now well overdue, providing an integrated centre activity to the Blacks Beach Tavern and approved bottle shop extension. This, he says, is consistent with the Urban Residential Zone, which anticipates non-residential development in certain circumstances. It also satisfies those provisions which encourage commercial activities in locations with excellent accessibility and the ability to mitigate local impacts.

The Blacks Beach Local Centre under the Current Scheme

  1. [40]
    It is uncontroversial that there is a retail hierarchy established through the network of centres stipulated in the Current Scheme. That Scheme specifically references the existence of the Blacks Beach Local Centre (‘BB Local Centre’).[43] It is necessary, for the purposes of interpreting the Current Scheme, to determine whether or not the Subject Site falls within the designated local centre. It is Hawkhaven’s primary position that the proposed development does not conflict with the Current Scheme because it can be appropriately identified as being situated within the designated BB Local Centre.[44] In the alternative, Hawkhaven says that the proposed development is located immediately adjacent to the BB Local Centre.
  1. [41]
    As against that, Council submits that the Shops MCU Proposal is not a centre envisaged by the centres hierarchy of the Current Scheme. BBC adopts this submission. Hawkhaven says the appropriate question to be asked is not whether the proposed development will itself become a local centre, but rather whether the proposed development is within the BB Local Centre. On this issue, both the Council and BBC rely on the earlier 2011 Decision in which the Court found that Lot 241 did not form part of the Blacks Beach Local Centre.[45] This finding was not determinative of the 2011 Decision but was clearly relevant to the Court’s preference for the BBC Proposal over the HH Proposal evidenced by the following passage:-

‘[215] Further, given my view that it is the clear intention of the Scheme that Lot 241 remain in the Urban Residential Zone notwithstanding the robust submissions from HH to the contrary, I cannot accept that an intrusion into that zone by the HH development is supported by sufficient grounds to allow me to approve the HH application notwithstanding an conflict with the Scheme.

[216] To my mind, the residents of the surrounding areas would have had, and would continue to have, a soundly based reasonable expectation that Lot 241 would be developed for residential purposes and not as a shopping centre.’[46]

  1. [42]
    Relevantly, the 2011 Decision was not the subject of an appeal. Hawkhaven now seeks, in effect, to agitate a quasi-appeal against that decision in respect of the finding that Lot 241 was not a part of the BB Local Centre. In arriving at this conclusion in the 2011 Decision, the Court had regard to the fact that the Council had earlier rejected a submission by Hawkhaven to have the Subject Site included in the commercial zone in which the existing Tavern is located.[47]

Hawkhaven’s First Submission to have Lot 241 re-zoned

  1. [43]
    In May 2005, Hawkhaven lodged a submission with Council seeking to persuade it that Lot 241 was suitable for a mix of commercial/local business uses and Medium Density Residential Development. That submission was unsuccessful and the land remained in the Urban Residential Zone when the Current Scheme was introduced in 2006.
  1. [44]
    Hawkhaven argues that the rejection by Council of its submission, while relevant to deciding between the competing BBC and HH proposals in the 2011 Decision, cannot be used now to limit the indicative area of the BB Local Centre to specifically exclude Lot 241. I do not agree. Such a rejection casts light on the intended treatment of Lot 241 under the Current Scheme. If the Council intended Lot 241 be developed for commercial purposes other than the limited small scale purposes contemplated by inter alia, P1 of the Retail and Commercial Code and P5 of Division 10 of the Mackay Frame Locality Code,[48] the land would not been have placed in the Urban Residential Zone. However, it is important to note that in arriving at the conclusion that Lot 241 was not within the BB Local Centre under the Current Scheme, the Court also had regard to the Network of Centres Map – Retail Hierarchy.[49] Hawkhaven now says that interpretation of the Network Centres Map in the 2011 Decision may have been incorrect.[50]
  1. [45]
    The Court, in that earlier decision, expressly stated that the yellow dot on the Network of Centres Map, which identified the relevant local centre, ‘is not cadastrally based but indicative only’.[51] The Court’s finding that the boundary of the BB Local Centre, as indicated by the yellow dot, stopped at the eastern boundary of Lot 241 was not determinative of the parameters of the local centre.  Rather, in all of the circumstances, the Court found that Lot 241 did not form part of the BB Local Centre.
  1. [46]
    In this appeal, having considered the submissions of Hawkhaven, I am not persuaded to depart from the earlier 2011 finding that, under the Current Scheme, the Shops MCU proposal (on Lot 241) is located outside the BB Local Centre.

The Blacks Beach Local Centre under the Draft Scheme

  1. [47]
    Under the Draft Scheme, the hierarchy of centres is established, inter alia, through Strategic Framework, section 3.2.3. This part of the Strategic Framework refers to a network of centres providing a hierarchy of principal, major, district, local, neighbourhood and specialised centres. Under section 6.2.8.2 of Part 6, Local Centre Code of the Draft Scheme, ‘local centres’ are divided into ‘strategic local centres’ and ‘existing local centres’.[52] The BB Local Centre is identified as a strategic local centre.
  1. [48]
    Section 3.2.3 of the Strategic Framework does not appear to refer to a map identifying centres, but section 3.1(2) says that mapping for the strategic framework is included in Schedule 2. In the extracts from the Draft Scheme prepared by Council, Exhibit 64, Strategic Framework Map – SF-9 contains a legend identifying principal centres, major centres, district centres, specialised centres and investigation areas, but not identifying lower order centres, such as local centres and neighbourhood centres. However, in the Planning Scheme Zone Map, Z0 –Z23,[53] the existing tavern, on Lot 240 can be clearly identified as a ‘local centre’. Lot 241 clearly falls outside of the local centre according to this map. It is zoned Medium Density Residential.

Hawkhaven’s second attempt to have Lot 241 re-zoned

  1. [49]
    In response to the Draft Scheme, Hawkhaven made a further submission to Council objecting to the creation of a Medium Density Residential Zone Precinct over Lot 241, seeking to instead have the site included under the Mixed Use Zone.[54] As with its earlier submission in 2005, this submission was rejected by Council. In the circumstances, I am comfortably satisfied, and Hawkhaven rightly concedes[55], that under the Draft Scheme, the Shops MCU proposal (on Lot 241) is located outside the BB Local Centre. It is however, according to this map, located adjacent to the BB Local Centre under the Draft Scheme.

Weight to be given to Draft Scheme

  1. [50]
    The appropriate weight to be given to the Draft Scheme is a matter in issue in the Shops MCU Appeal. Pursuant to section 495(2)(a) of SPA, the Court must decide appeals based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate. It is uncontroversial that the Court has the ability to give weight to a draft planning scheme in accordance with the decision in Coty (England) Pty Ltd v Sydney City Council (‘Coty Principle’). [56]
  1. [51]
    The Council’s ultimate submission is that the Shops MCU proposal is in serious conflict with both the Current and Draft Scheme, resulting in the issue of the weight to be given to the Draft Scheme being of little importance.[57] BBC agrees and says the Draft Scheme reinforces the clear planning intent for the locality expressed in the Current Scheme, and maintains the hierarchy of centres which informs the preferred land use of the Subject Site.[58]
  1. [52]
    Council submits, correctly in my view, that the Draft Scheme is relevant because it identifies the most recent planning intent for the Mackay Regional Council local government area and, given it has progressed to public notification, it assumes a heightened role given it has been informed by community consultation with respect to that intent. In this regard, I accept the evidence of Mr Ackermann, Council’s Manager – Strategic Planning, who expressed the opinion that the Draft Scheme was now unlikely to be returned to the public consultation stage.[59] BBC echoes the submission that the Draft Scheme has proceeded significantly towards adoption, with no further changes relevant to the Shops MCU Appeal. In this regard, BBC relies on the decision in Yu Feng Pty Ltd v Maroochy Shire Council where Fitzgerald P observed:

‘…the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstance, including the stage to which the draft planning scheme has progressed.’[60]

  1. [53]
    The Coty Principle, to which I earlier referred, has been widely applied in Queensland and is authority for the proposition that a development application should not prejudice the implementation of a new draft planning instrument. In Good-Mix Concrete Pty Ltd v Brisbane City Council (No.3)[61], it was held that the Coty Principle will not be enlivened until after a draft planning scheme has been subject to public exhibition. Once this has occurred, the scheme is entitled to be given weight.
  1. [54]
    In Lewiac Pty Ltd v. Gold Coast City Council, Thomas J, with whom the other members of the Court of Appeal agreed, said, in respect of the Coty Principle:-

‘…It would be extraordinary if a planning strategy which was well on the way to adoption, or even adoption with amendment, could be frustrated by developments created in circumstances where neither the Council nor the court could give any weight to the plan as it had so far emerged.  That is not to say that it should be given decisive weight, but in circumstances where one proposal is as good as another, it does not seem inappropriate that an existing draft strategic plan be given some weight.’[62]

  1. [55]
    Hawkhaven submits that the Draft Scheme should be given little, if any, weight and points out the Shops MCU development application was lodged in July of 2013 at an early stage in the preparation of the Draft Scheme. That was shortly after the scheme had progressed to the first of three stages of public notification.[63] Hawkhaven also refers to the fact the Shops MCU Appeal was lodged in October of 2014, prior to the second round of public notification and before the Draft Scheme was provided to the relevant Minister. [64]
  1. [56]
    In Maher v Hervey Bay City Council[65], it was held that in determining the weight to be afforded to a draft planning instrument, it is also relevant to have regard to the planning instrument in force prior to the new instrument taking effect. In Maher¸ Wilson SC DCJ held that where there is ‘radical departure’ from a current scheme, and where a development application has little or no conflict with the existing scheme, a draft planning scheme should not be given ‘too much weight’.[66] The Council submits that this is not such a case. I accept that submission. Despite the different organisational structure of the Current and Draft Schemes, there is a discernible planning intent evident within both schemes. In this regard, I rely on the evidence of the experts in the Town Planning JER.[67] Both schemes place the Subject Site in a residential zone and establish a clear hierarchy of centres. Relevantly, both schemes allow for development within a residential zone, outside of a local centre in similar, albeit limited circumstances.
  1. [57]
    In all of the circumstances, I consider the Draft Scheme should be given considerable weight in the Shops MCU Appeal.

Town Planning: Centres Hierarchy

  1. [58]
    The first issue with respect to town planning is the alleged conflict with the centres hierarchy established under the Current and Draft Schemes. Based on my above findings at paragraphs [45] and [49], the Shops MCU proposal can only be considered as proposed development outside the BB Local Centre. In this regard, the Council relies on Overall Outcomes 2(a), 2(b) and 2(e) of the Retail and Commercial Code of the Current Scheme all of which emphasise that retail and commercial uses occur within, rather than outside designated centres.[68] Division 8 of the Mackay Frame Locality under the Current Scheme is also relied upon which, as the town planning experts agreed in their Joint Report, ‘continues a consistent approach of a limited number of centres, focusing development centres and limiting the growth of any centre to its intended function.’[69] Also relevant the Council says, the Strategic Framework 3.2.3 under the Draft Scheme which specifically states that ‘out of centre development is discouraged and avoids commercial strip development along major roads’.[70] All of these provisions, Council says, renders the Shops MCU in conflict with both Current and Draft Schemes given the centre hierarchies envisaged under both schemes.
  1. [59]
    As I have said, Hawkhaven’s primary position is that the Shops MCU proposal is, in fact, located within the BB Local Centre under the Current Scheme. For the reasons outlined above, I do not accept that submission. It follows that I do not accept the evidence of Mr Cumming in respect of his assertion that under the Current Scheme, the Shops MCU proposal, ‘…is arguably within, but certainly adjacent to, the strategic destination which encompasses the northern side of Blacks Beach Road.’[71]
  1. [60]
    As to the Current Scheme, Hawkhaven says that, if the Court finds that the Shops MCU Proposal is outside the BB Local Centre, the proposed development is, nonetheless, adjacent to the BB Local Centre, within section 1.4(2)(d) of the Strategic Framework which includes the statement, ‘…additional centre activities are situated within or immediately adjacent to a designated centre…’.[72] It follows, Hawkhaven submits, that given this provision, the Shops MCU proposal does not conflict with the Current Scheme as alleged by the Council.  Hawkhaven says the Shops MCU proposal is an additional centre activity adjacent to a designated centre.
  1. [61]
    Further, Hawkhaven submits, Strategic Framework 1.4(2)(d) above is a clear indication that provisions of the Current Scheme, stipulating development within centres, are not intended to be construed inflexibly.[73] However, this singular reference to ‘within or immediately adjacent’ in the Strategic Framework must be carefully understood, both in respect of the operation of the Strategic Framework and in the overall context of the Current Scheme.
  1. [62]
    Under Division 2 of the Current Scheme, the role of the Strategic Framework within the scheme is explained in these terms:-

‘1.3 Preliminary

  1. This division reflects the desired environmental outcomes and summarises the approach taken by the planning scheme to achieve the desired environmental outcomes.
  2. This division does not have a role in development assessment under the planning scheme.
  3. This division provides the context for understanding how policy contained in the planning scheme was determined.’[74]
  1. [63]
    The weight of authority on the interpretation of planning schemes points to their being construed broadly rather than pedantically or narrowly and with a sensible, practical approach.[75] In Westfield Management Ltd v Pine Rivers Shire Council,[76] Britton SC DCJ summarised the principles applicable to the construction of planning documents and emphasised that they should be construed as whole[77] and in a way that best achieves its apparent purpose and objects.[78]
  1. [64]
    In Grosser v Council of the City of Gold Coast[79] the Court of Appeal said:

“the proper approach of the Planning and Environment Court and of its predecessor, the Local Government Court, to matters of planning policy has long been recognised as one of restraint.  Most recently this Court affirms the desirability of a self-limiting approach at least when considering town planning matters in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268…”.

  1. [65]
    Consistent with the agreed view of the town planning experts, I consider the Current Scheme to reflect a consistent approach of limiting the number of centres, focusing any new or additional development within designated local centres, such as the Blacks Beach Local centre.[80] Notwithstanding this consistency of approach, it is uncontroversial that the Current Scheme allows for non-residential development, or ‘additional centre activities’ to adopt the phrasing of Strategic Framework 1.4.2(d), to occur outside a designated centre.
  1. [66]
    Council says the Shops MCU Proposal does not fall within the limited exceptions of permissible out of centre development envisaged by the Current Scheme. That is unsurprising, Council says, given the evidence of Messrs Buckley and Brownsworth who considered the size of the development associated with the Shops MCU proposal and Hotel MCU proposal, while small relative to a supermarket, ‘are nevertheless of a meaningful size which effectively starts a new hub or node of activity’.[81]
  1. [67]
    Council, correctly, in my view, submits that out of centre development is only permitted under the Current Scheme where such development is limited to small scale, locational specific uses where there is a demonstrated need for such development.[82] This interpretation of the Current Scheme is supported by the following provisions:
  1. (a)
    Strategic Framework, 1.4(2)(d)
  2. (b)
    Part 3, Division 1, Desired Environmental Outcomes 3.1(3)(c)(vi); and
  3. (c)
    Part 9, Division 22, Retail Commercial Code;
  1. (i)
    Section 9.101(2)(b)(i);
  2. (ii)
    Section 9.101(2)(e); and
  3. (iii)
    P1.
  1. [68]
    Hawkhaven appears to accept this interpretation of the Current Scheme but says that, in respect of the proposed development, the area of the retail or commercial floor space is small, and that the Shops MCU proposal would be acceptable as ‘small scale’, will not affect the hierarchy of centres and therefore does not conflict with the Current Scheme.[83]
  1. [69]
    ‘Small scale’ is not defined under the Current Scheme. But, as the Court found in the 2011 Decision, the absence of a definition of, or guidance as to the meaning of ‘small-scale’ in the Current Scheme does not present an obstacle to interpretation. As I have outlined above at paragraph [67] there are several references in the Current Scheme to the ‘scale’ of acceptable out of centre development. Under the Retail and Commercial Code, Acceptable / Probable Solution S1 does provides some numerical guidance as to what is meant by ‘small scale’. S1 relevantly provides:

‘S1  For the activities located outside a designated Centre the premises has a maximum gross floor area of 25m2 and a maximum building height of 8.5m’[84]

  1. [70]
    Mr Brownsworth’s evidence was that S1 provided the best guidance to assist in the interpretation of what was meant, under the Current Scheme, by ‘small scale’.[85] Mr Batty, for the Council put to Mr Cumming that S1 was indicative of ‘small scale’ under the Current Scheme. This was the relevant exchange:
MR BATTY:S1 gives us a fairly good hint as to what’s anticipated with respect to ‘small scale’, doesn’t it: 25m2
MR CUMMING:No. I don’t agree. And – and I don’t agree because 25 metres is not much bigger than a dog kennel, it’s a tiny amount. And the scheme mentions small scale on many, many occasions. And in all other case where it relate to specific outcomes and acceptable solution – it doesn’t have an acceptable solutions if you look at the urban residential zone, for example, if you look at the commercial zone, for example. So I think this is a real exception. And I’m not sure where it came from, because its not consistent, for example, with – on the following page, we read through P6. Now, a use of 25 square metres, which is tiny – in P6 – it just doesn’t gel with the criteria in P6 at all.’[86]
  1. [71]
    While not determinative of what is meant by ‘small-scale’ under the Current Scheme, I consider a gross floor area of 25m2, as referred to in S1, to be indicative of the scale of additional centre activities which the Current Scheme envisages will occur outside a designated local centre. However, consistent with the principles outlined in Westfield Management Ltd v Pine Rivers Shire Council[87] planning schemes must be read as a whole in a way that achieves the apparent purpose and objectives of the scheme.
  1. [72]
    BBC, with whom Council agreed, says the Shops MCU proposal is not of a sufficiently small scale to fall within the exception of out of centre development under the Current Scheme. [88] It points to the proposal contemplating two separate buildings and provision for approximately 20 car parking spaces, a services yard at the north-eastern corner of Lot 241, a four-lane circulation, and an industrial/commercial service access from Blacks Beach Road.[89] It further points to the evidence of Mr Brownsworth in his individual report that the Shops MCU proposal:-

‘…is not a ‘small-scale’ use that ‘services the needs of residential areas’. It is also not a small-scale home business. The extent of conflict is significant particularly when the [Shops MCU proposal] is considered in conjunction with the current tavern use on the adjacent site and proposed extensions of the tavern on the Land. Together, these uses increase the size and scale of commercial operations within this residential zone to something that is more than small scale.’[90]

  1. [73]
    Mr Brownsworth, noting that the term ‘small-scale’ is not defined in the Current Scheme, further says that the existing zoning supports his opinion as to what constitutes a ‘small-scale’ use in that:
  1. the Turtle Shores shopping centre (‘Turtle Shores’), which is located  approximately 700m east from the Land, is similar in size to the Retail Proposal and is zoned Commercial under the Planning Scheme; and
  2. the Eimeo Heights Convenience Store (‘Eimeo Heights’), which is  located approximately 800m west from the subject site and is essentially a single, corner shop located on the bottom floor of a residence is zoned Urban Residential.[91]
  1. [74]
    Mr Buckley, for the Council, also gave evidence that the exception permitting out of centre development under the Current Scheme was strictly limited to small scale, locational specific uses where there is a demonstrated need for development such as home-based businesses which demonstrate a ‘very local function, which tend to have an association with a house.’[92] In describing what, in his opinion, was meant by small scale and therefore what types of non-residential activities could be expected in the urban residential zone (outside the BB Local centre), Mr Buckley gave the examples of ‘speech and drama teachers and music teachers…a general practitioner operating from home’.[93] Mr Brownsworth agreed with the ‘home based businesses’[94] categorisation and described ‘small scale’ to mean ‘commensurate with the built form scale of a residential area…able to integrate within a residential fabric’.[95]
  1. [75]
    Mr Cumming disagreed with Mr Buckley’s categorisation of ‘small-scale’, considering his interpretation as a ‘very narrow construct’[96] unsupported by the Current Scheme.  Hawkhaven submits[97] that the interpretation adopted by Mr Buckley conflates the definition of ‘small-scale’ with the meaning of ‘Home Occupation’ and ‘Home-based Business’, terms which are both specifically defined under the Current Scheme as follows:

‘‘Home Occupation’ means any premises being part of a dwelling house, used only by residents of that dwelling house for the conduct of an occupation where:

  1. the floor area is less than or equal to 30 m2; and
  2. the activity does not employ other persons.

‘Home-based Business’ means any premises being part of a dwelling unit or its curtilage used for a business by a resident of the dwelling house where:

  1. the area occupied by the use (including storage areas) does not exceed 30% of the total floor area of the dwelling house and 10% of the area of the lot on which the dwelling house is located, with a maximum area of 80 m2 occupied by the use; and
  2. employs no more than 2 persons who do not reside at the premises.’[98]
  1. [76]
    It follows, Hawkhaven submits, that the evidence of Mr Buckley as to what is small scale should be rejected. I do not accept that submission. On any reading of the above definitions, it is clear that both ‘Home Occupation’ and ‘Home-based Business’ are intended to denote uses which could aptly be described as ‘small scale’, although I accept that term is not specifically defined under the Current Scheme. But, it is to be noted that Division 10, P5 of the Mackay Frame Locality Code specifically groups the three terms together and states, ‘Non-residential activity in the zone is limited to small-scale uses which are directly related to servicing the needs of residential areas or are small-scale, home based-businesses or home occupations (emphasis added)’[99] A proper reading of this provision would indicate that the three terms denote similar scales of intended development, namely small scale.
  1. [77]
    Mr Cumming considers the Shops MCU proposal to be of a sufficiently small scale within the meaning of the Current Scheme.[100] In the Town Planning JER, he stated that the Shops MCU Proposal, ‘cannot be construed as a new centre location and does not contravene the scheme’s network of centres.’[101] At the hearing, it was evident that Mr Cumming premised his assessment of what was ‘small scale’ by reference to the various dimensions, appearance and nature of the proposal against the adjoining tavern and liquor store.[102] He also made reference to the fact that the Council had approved the much larger liquor barn on the adjoining site. On Hawkhaven’s own submission, that is plainly not relevant to the Shops MCU Appeal.[103] Mr Cumming did however, appropriately concede that when considering what constitutes ‘small scale’ under the Current Scheme it is relevant that the Subject Site is currently located in the Urban Residential Zone.[104] That, to my mind, is a very relevant consideration, and one which I shall deal with shortly, in the context of assessing the Shops MCU proposal against the Current Scheme as a whole.[105]
  1. [78]
    A somewhat troubling aspect of Mr Cumming’s evidence was in respect of a possible future use by Hawkhaven for the vacant subdivided Lot C(ii).[106] Mr Cumming gave evidence that Hawkhaven may have been trying to attract a childcare centre tenant to the lot.[107] He described that as a ‘very good use for that site’.[108] Although possible future uses of the vacant lot are not directly relevant to whether the Shops MCU proposal itself conflicts with either the Current or Draft Scheme, it shines further light upon Mr Cumming’s assessment of what constitutes ‘small scale’ under both schemes. He said that if Lot 241 was developed by the Shops MCU proposal, the proposed extension to the Blacks Beach tavern (the subject of the Hotel MCU Appeal) and a childcare centre, such uses, ‘would still be on the fringes of small scale.’[109] That conclusion is not supported by the relevant provisions of either the Current or Draft Scheme.
  1. [79]
    On the issue of whether the Shops MCU proposal will be of a ‘small scale’ I found the evidence of Mr Cumming unpersuasive. I do not consider that the Shops MCU proposal to encompass the type or scale of out of centre development envisaged by the Current Scheme. In this regard, I prefer the evidence of Mr Buckley and Mr Brownsworth. Under the Current Scheme, the Shops MCU proposal is not small scale.
  1. [80]
    As I have outlined above at paragraph [68], the Current Scheme allows for out of centre development to occur where such development is consistent with the provision of local facilities. P6 denotes specific criteria for out of centre development to meet in respect of community need.[110] Hawkhaven says the Shops MCU proposal is directly related to servicing the existing need of the surrounding residential area.[111] For reasons outlined below by reference to the evidence of Mr McCracken and Mr Duane as to need, I am not persuaded as to any demonstrated economic need for the Shops MCU proposal.  Given the Shops MCU proposed is neither of appropriately small scale nor reflective of a demonstrated community need for the provision of local facilities, I am not satisfied that the Shops MCU proposal falls within the limited exceptions within the Current Scheme for acceptable out of centre development.
  1. [81]
    Consistent with its ultimate submission with respect to the weight to be given to the Draft Scheme, Council says the Shops MCU proposal also conflicts, in a significant way, with the Draft Scheme in respect of the hierarchy of centres. As with the Current Scheme, the Draft Scheme strongly reflects a planning intent towards a hierarchy of centres. This hierarchy is set out, inter alia, in the following provisions of the Draft Scheme:
  1. (a)
    Strategic Framework, 3.2.3
  2. (b)
    Strategic Framework, 3.9.6; and
  3. (c)
    Part 6, Local Centre Zone Code, section 6.2.8.2.[112]
  1. [82]
    Council submits the Shops MCU proposal significantly conflicts with these provisions. Perhaps the starkest area of conflict can be found by reference to Strategic Framework 3.2.3, which, in no uncertain terms, stipulates that ‘Out of Centre development is discouraged and avoids commercial strip development along major roads.’ Relevantly, the Draft Scheme includes a provision establishing a hierarchy of assessment criteria to be employed in the event of inconsistency between different provisions within the planning scheme. According to this hierarchy, the Strategic Framework under the Draft Scheme prevails over all other components to the extent of inconsistency.[113] There is no equivalent provision in the Current Scheme.
  1. [83]
    As I have previously determined, under the Draft Scheme, the Subject Site is located outside, albeit adjacent, to the BB Local Centre. Zone Map Z0 – 23 in the Draft Scheme indicates the Subject Site is not zoned as a local centre.[114] This is acknowledged by Hawkhaven.[115] Consistent with the approach under the Current Scheme, the Draft Scheme allows for out of centre development in limited circumstances. The requirements for such out of centre development can be found, inter alia, in the following provisions of the Draft Scheme:
  1. (a)
    Medium Density Residential Zone Code, PO3;
  2. (b)
    Part 9, Centre Activities Code;
  1. (i)
    PO3; and
  2. (ii)
    PO4.[116]
  1. [84]
    In my view, the Draft Scheme provides a more detailed and cohesive treatment of out of centre development than the Current Scheme due primarily to the creation of a ‘Local Centre Code’ and a ‘Centre Activities Code’ in the Draft Scheme. Hawkhaven submits that the Shops MCU proposal does not conflict with the Centre Activities Code because the purpose of the code accepts small scale activities outside designated centres, based on local need and local attributes. Relevantly, as with the current Scheme, ‘small scale’ is not defined under the Draft Scheme. Again, however, guidance as to the meaning of ‘small scale’ can be sought by reference to surrounding provisions of the scheme. For example, PO4 of the Centre Activities provides:

‘PO4 – Centre activities outside a centre zone provide small scale and low intensity convenience services for the local area that:

  1. integrate with the character and amenity of the local area; and
  2. do not compete with or compromise role, function and viability of multi-purpose centres’.[117]
  1. [85]
    On any view, the Shops MCU proposal cannot be considered small scale. In this regard, I again prefer the evidence of Messrs Buckley and Brownsworth to that of Mr Cumming. Under the Draft Scheme, the intended scale of development outside of a designated centre falls well below that proposed by Hawkhaven. For reasons developed later, I am not satisfied that local need for the development exists to support the finding that the Shops MCU proposal can be said to satisfy, for example PO3 and PO4 of the Centre Activities Code. In all of the circumstances, I am not persuaded that the Shops MCU proposal falls within the limited exceptions for out centre development envisaged by the Draft Scheme.

Town Planning: Zoning

  1. [86]
    I turn now to the town planning issue with respect to the zoning treatment of the Subject Site under both the Current and Draft Scheme. Although many of the issues with respect to centre hierarchy traverse the issues with respect to zoning, there are several different provisions, in both the Current and Draft Scheme which are invoked specifically in relation to the zoning treatment of Lot 241. As I have said, under the Current Scheme, the Subject Site falls within the Urban Residential Zone whereas under the Draft Scheme, it is within the Medium Density Residential Zone. It is uncontroversial that under both schemes, the Shops MCU proposal constitutes non-residential development occurring within a residential zone.
  1. [87]
    The zoning issues take on a similar character, in a town planning sense, to the issues regarding the centres hierarchy conflict under the Current Scheme. Council says the Shops MCU proposal conflicts with the provisions dealing with the zoning of Lot 241 and that the planning intent of the Urban Residential Zone is clear; subject to limited exceptions, land in that zone is to be developed for residential, rather than commercial purposes.[118] To that end, the Council points to the following provisions[119] of the Current Scheme which deal with non-residential development occurring within the Urban Residential Zone:
  1. (a)
    Mackay Frame Locality
  1. (i)
    Overall Outcome 2(h);
  2. (ii)
    McReady’s Creek Precinct, Overall Outcome 4(a);
  3. (iii)
    Specific Outcome P1;
  4. (iv)
    Specific Outcome P2;
  1. (b)
    Retail and Commercial Code, Overall Outcome 2(e).
  1. [88]
    Under the Draft Scheme, Council submits that the planning intent for the Medium Density Residential Zone continues that of the Urban Residential Zone from the Current Scheme, clearly representing an intent that the land be used primarily for residential purposes. Further, it says, the planning intent for the land is unambiguous under both the Current and Draft Schemes and points to the following provisions of the Draft Scheme:
  1. (a)
    Medium Density Residential Zone Code
  1. (i)
    Purpose, section 6.2.12.2(1)
  2. (ii)
    Purpose, section 6.2.12.2(2)
  3. (iii)
    Purpose, section 6.2.12.2.(3)(a)(i); and
  4. (iv)
    PO1.
  1. [89]
    As was evident in respect of the hierarchy of centres, the Current and Draft Schemes both allow for non-residential development to occur, in limited circumstances, within the Urban Residential Zone and the Medium Density Residential Zone. Council submits the Shops MCU proposal does not meet the exception for such development under either scheme. BBC refers to the aforementioned provisions of the Current Scheme and submits the scheme clearly contemplates commercial or retail uses, such as the Shops MCU proposal, are to be located on land which is located within the Commercial or Village Zones rather than within the Urban Residential Zone. In this regard, BBC refers to the 2011 Decision where the Court held,

‘To my mind the residents of the surrounding areas would have had, and would continue to have, a soundly based reasonable expectation that Lot 241 would be developed for residential purposes and not as a shopping centre.’[120]

  1. [90]
    Under the Current Scheme, the exception can be found by reference, for instance, to Division 10, P5 of the Mackay Frame Locality which relevantly provides, ‘Non-residential activities in the zone: (i) is limited to small-scale uses which are directly related to servicing the needs of residential areas or are small-scale, home-based businesses or home occupations;’. This exception for non-residential development largely mirrors the exception with respect to out of centre development dealt with above. Under the Draft Scheme, the exception permitting non-residential development within the Medium Density Residential Zone can be found within PO1 of the Medium Density Residential Zone Code which relevantly provides that the zone is to primarily accommodate low-medium and medium density residential development. In addition, the Purpose of the Medium Density Residential Zone Code provides,

‘(1) The purpose of the Medium density residential zone code is to provide for a medium density multiple dwelling supported by community uses and small-scale services and facilities that cater for local residents.

…

The zone also provides for short term accommodation and a limited range of small scale, low intensity and compatible non-residential activities.

(3) The purpose of the code will be achieved through the following overall outcomes

(a) Uses:

(i) the predominant form of development within the zone is low-medium and medium density residential development;’[121]

(emphasis added).

  1. [91]
    I am satisfied that under the Current Scheme, non-residential development occurring within the Urban Residential Zone is to be limited to small scale uses. Under the Draft Scheme, the situation is no different. For the reasons I have outlined above, the Shops MCU proposal cannot, under either the Current or Draft Scheme, be considered small scale. As I have said, the evidence of Messrs Buckley and Brownsworth is to be preferred to that of Mr Cumming. Hawkhaven’s submission that the Shops MCU proposal is small in scale is unsupported by acceptable expert evidence.
  1. [92]
    Further, the Overall Outcomes under the Mackay Frame Locality and PO10 of the Medium Density Residential Zone Code require that any non-residential development does not adversely affect the residential amenity of the zone in which it occurs.[122]  For reasons to be developed later, there is insufficient evidence to satisfy me that such adverse impacts will not exist if the Shops MCU proposal goes ahead. Further, I am not satisfied, based on the evidence of the economic need experts dealt with below, that the Shops MCU proposal, as non-residential development occurring within a residential zone, are ‘directly related to servicing the needs of residential areas’[123] (Current Scheme) or are ‘required to the serve the need of the local area’[124] (Draft Scheme).
  1. [93]
    In all the circumstances, I do not consider that the proposal falls within the limited exceptions which permit non-residential development to occur within either the Urban Residential Zone (Current Scheme) or the Medium Density Residential Zone (Draft Scheme). Consistent with my finding in respect of the centres hierarchy established by the Current and Draft Schemes, in terms of zoning, the Shops MCU proposal conflicts with both schemes.

Conclusion re Town Planning

  1. [94]
    As can be seen from the above discussion, the Shops MCU proposal raises conflict, in a town planning sense, with both the Current and Draft Scheme. This conflict presents both in terms of the centres hierarchy and the zoning envisaged under the schemes. I consider that approval of the Shops MCU proposal, in its current form, would cut across the clear planning intent of the Current and Draft Scheme.

Amenity

  1. [95]
    I turn now to the evidence surrounding the amenity impacts of the Shops MCU proposal.

Acoustic Amenity

  1. [96]
    No joint expert report addressing the issue of impacts on amenity was prepared for the purposes of the Shops MCU proposal. The only evidence on this issue was that of Hawkhaven’ s expert, Mr Paul King, who produced a short report addressing noise amenity dated 16 September 2016 (‘Amenity Report of Mr King’).[125]
  1. [97]
    In his report, Mr King states that with respect to acoustic amenity, the Shops MCU Proposal;
  1. (a)
    will generate minimal amenity impacts at surrounding residential uses;
  2. (b)
    can supplement suitable amenity control measures in the form of physical noise control measures and on the basis of appropriate conditions of approval; and
  3. (c)
    can readily comply with Specific Outcome P1 of the Environment and Infrastructure Code[126] in that noise and vibration from the development will not detract from the amenity of residents or employees of adjacent premises.[127]
  1. [98]
    He further says that, given the reduction in scale of the development as a result of the Minor Change Application, the Shops MCU proposal can readily co-exist with surrounding residential development on the basis of suitable noise amenity controls and reasonable and relevant development control conditions.[128] It is clear from Mr King’s report that his opinion is largely based on noise impact assessments previously undertaken at the Subject Site as part of the development application the subject of the 2011 Decision of this Court. He records;

‘12 The previous assessments I have undertaken provide me with               adequate certainty to consider the amenity (noise) impacts of the                             proposed 400m2 commercial/retail development.  This includes the                             ambient noise monitoring undertaken, the noise criteria derived                                           and the noise impacts considered. 

…

16 On the basis of previous reporting and assessment for the overall               site, it is my opinion that the proposed 400m2 development can be                             suitably designed, conditioned, constructed and operated such that                             amenity impacts upon adjacent and nearby residential uses are not                             unreasonable.’  [129]

  1. [99]
    Importantly, the proposed development application, the subject of the 2011 Decision was much larger than the present, constituting a gross floor area of 2,908m2, roughly seven times larger than the Shops MCU proposal.[130] Notwithstanding this significant difference, Council relies on the fact that in the 2011 Decision, the evidence of Mr King on the issue of amenity, was not preferred.[131] I accept Hawkhaven’s submission that the Court’s preference for the evidence of another expert witness, in a different case, the 2011 Decision is not relevant to the present assessment of Mr King’s evidence.
  1. [100]
    Having said that, pursuant to section 493(1) of SPA, Hawkhaven bears the onus of establishing that the appeal should be upheld. Accordingly, it must demonstrate that the Shops MCU will not conflict with applicable planning instruments, namely the Current and Draft Schemes, in respect of amenity issues. Council submits that the evidence of Mr King is insufficient to discharge that onus. As against that, Hawkhaven says there is no basis for refusal of the Shops MCU proposal on amenity grounds. Surprisingly, BBC appears to accept the issues relating to acoustic amenity have been addressed by the evidence of Mr King.[132]

Amenity provisions within the Current and Draft Scheme

  1. [101]
    Under the Current Scheme, the Council points to the following provisions, which it says are relevant to the protection of amenity at the Subject Site:
  1. (a)
    Mackay Frame Locality:
  1. (i)
    Division 8, Overall Outcome 3(c);
  2. (ii)
    Division 8, Specific Outcome P7;
  3. (iii)
    Division 10, Overall Outcome 2(f); and
  4. (iv)
    Division 10, P5
  1. (b)
    Environment and Infrastructure Code:
  1. (i)
    Overall Outcome 2(e); and
  2. (ii)
    P1.[133]
  1. [102]
    Protection of amenity is a theme which also permeates the Draft Scheme. The Council points to the following provisions of the Draft Scheme in support of this submission:
  1. (a)
    Local Centre Zone Code:
  1. (i)
    Overall Outcome 3(b)(iii)
  1. (b)
    Medium Density Residential Zone Code:
  1. (i)
    Overall Outcome 3(d);
  2. (ii)
    PO3; and
  3. (iii)
    PO10.
  1. (c)
    Centre Activities Code:
  1. (i)
    Overall Outcome 2(e);
  2. (ii)
    PO4; and
  3. (iii)
    PO16.
  1. (d)
    General Development Requirements Code:
  1. (i)
    Overall Outcome 2(d)
  2. (ii)
    Overall Outcome 2(e)
  3. (iii)
    PO18; and
  4. (iv)
    PO25.[134]

Mr King’s Assessment

  1. [103]
    Council says Mr King’s evidence amounts to a ‘cursory desktop review’[135] of the noise amenity impacts of the Shops MCU proposal, an approach for which Mr King was criticised in the recent decision in McConaghy Properties Pty Ltd v Townsville City Council & Anor[136].  Hawkhaven rejects this criticism launched against Mr King.
  1. [104]
    Council’s criticism of Mr King is founded on the following:-
  1. (a)
    Mr King last visited the Subject Site 2 years ago;
  2. (b)
    No investigation, testing or analysis into acoustic amenity in respect of the Shops MCU proposal (as opposed to the Hotel MCU proposal) has been undertaken;
  3. (c)
    No acoustic modelling has been performed that identifies or measures amenity impacts on the seven residential lots proposed to be created on the northern part of Lot 241 directly adjoining the area  of the Shops MCU proposal (‘Proposed Residential Lots’).[137]
  1. [105]
    The passage of two years since Mr King last personally visited the Subject Site, does not, in and of itself, undermine the reliability of his evidence. There is no suggestion, or evidence, that, within that time, relevant changes in respect of acoustic amenity have occurred relevant to Mr King’s previous acoustic amenity assessment. It follows that I accept Hawkhaven’s submission that it has not been established that his individual report is out of date.
  1. [106]
    But, notwithstanding that, a particularly troubling aspect of Mr King’s assessment is the complete absence of any acoustic investigation into possible amenity impacts on nearby residential lots resulting from the Shops MCU proposal. Mr King acknowledged that, ‘no new data logging, acoustic modelling or analysis has been undertaken in respect of the shops proposal presently before the court.’[138] It is abundantly clear from the Amenity Report of Mr King that his opinions with respect to amenity are largely, if not wholly, based on the previous assessments he undertook for the earlier development application the subject of the 2011 Decision.[139] In fact, since the 2011 Decision the only form of acoustic testing that has been undertaken relates to the Hotel MCU Appeal.[140]  Mr King said that typically there were two types of development approval conditions, one where no acoustic report is prepared and the approval is conditioned on the basis of compliance with a future acoustic report.  The other was where an acoustic report formed part of the development application and approval was granted subject to compliance with that report.[141] That explanation as to why separate testing or investigation had not been conducted was, in my view, unpersuasive.
  1. [107]
    Council refers particularly to the complete lack of acoustic testing or modelling into amenity impacts in relation to the Proposed Residential Lots. Hawkhaven submits that Mr King was simply ‘aware’ of these residential allotments in preparing his individual statement of evidence.[142] Notwithstanding, Mr King, under cross-examination, recognised that there would be the potential for adverse amenity impacts upon the Proposed Residential Lots if the Shops MCU proposal was approved.  He acknowledged that:
  1. (a)
    The Proposed Residential Lots will hear reversing beepers, the noise of car doors slamming and the operation of plant and equipment from the commercial use of the land;[143]
  1. (b)
    The Proposed Residential Lots would be impacted by noise from the proposed development, such that residents of the lots will be aware that commercial development is taking place;[144]
  1. (c)
    Deliveries connected with the Shops MCU proposal could occur early in the morning or later at night and could occur multiple times per day;[145]
  1. (d)
    The service yard effectively abuts the Proposed Residential Lots;[146]
  1. (e)
    Noise impacts will arise from the unloading and loading of trucks in the service yard[147] which would include the utilisation of reversing beepers;[148] and
  1. (f)
    As a general principle, attempt should be made to keep such noise sources away from sensitive receptors as possible.[149]
  1. (g)
    The noise generated from a reversing beeper would be ‘irregular, at best’ within a residential area.[150]
  1. [108]
    These concessions made by Mr King can be reconciled with the evidence of Mr Buckley, who, when asked about the possible amenity impacts of the Shops MCU proposal, stated,

‘The impacts that are created by residential uses and those created by commercial uses are really chalk and cheese. One of course, involves deliveries, high turnover, whereas the other…the noise and the emission…emissions that occur from residential uses tend to be across the board between houses and don’t have anything like the intensity of turnover or the intensity of change that a commercial activity would do.’[151]

  1. [109]
    The Shops MCU proposal will undoubtedly create an impact on the acoustic amenity of the surrounding area. The evidence of Mr King largely, if not wholly, based on previous assessments and investigations undertaken for a different development application, is insufficient to satisfy me that the Shops MCU proposal will not cut across the various provisions of the Current and Draft Schemes which seek to protect amenity. I turn now to the other aspects of amenity.

Other Aspects of Amenity

  1. [110]
    The Further Amended Consolidated Grounds for Refusal were not limited to issues concerning adverse impacts on noise amenity the subject of the above findings.[152] BBC says that visual amenity, odour and light amenity are also relevant to determine whether acceptable measures could be implemented to integrate and protect the high level of character and amenity of the residential area in which the Subject Site is located.
  1. [111]
    In the Town Planning JER[153], ‘Local resident impacts’ were addressed in section 7.3. Relevantly, the opinions in the Town Planning JER were recorded as follows:

‘128.  PC (Mr Cumming) believes that the reduced floorspace of the current proposal, the siting of the shops and the access arrangements as described above, will reduce any potential for adverse impacts.

129.  CB (Mr Buckley) and JB (Mr Brownsworth) believe the amenity impacts are more related to reasonable expectations of the residents of the areas than direct amenity impacts caused by the proposed development on the land.’

  1. [112]
    Hawkhaven says that neither Mr Buckley nor Mr Brownsworth sought to expand on the views they expressed in the Town Planning JER in their individual statements of evidence.[154] But, in his individual report, Mr Brownsworth said,

‘the HH proposal will have an unreasonable and potentially adverse effect on the ‘high level’ of amenity of the urban residential zone particularly for the dwellings on Kinghorn Street, McAlary Drive and Slater Avenue..’[155]

  1. [113]
    BBC submits there was no evidence led by Hawkhaven with respect to visual amenity, odour or light amenity.[156] In respect of the possible amenity impacts related to odour, Hawkhaven says that this would simply be an issue which could be dealt with by way of conditions, referring, by way of example, to the development application previously obtained by the BBC which contained relevant conditions relating to amenity.[157]
  1. [114]
    Hawkhaven further says that the issue of lighting amenity was in fact dealt with by Mr King, who gave the following evidence in respect of lighting amenity,

‘I have done no assessment in this case, but I would respectfully suggest that lighting is something that can be conditioned readily, in terms of light fittings on the site, light spill from the site, and the acoustic barriers around the site of the proposal provide screening from headlight glare to the proposed future and nearby residential.’[158]

  1. [115]
    BBC, correctly in my view, submits that while Mr King was of the opinion that issues concerning light amenity could be dealt with by the impositions of conditions, there is no probative evidence before the Court dealing with how such matters might in fact be conditioned, if at all. Mr Brownsworth, when asked about amenity impacts of the Shops MCU proposal, recognised that typically, developments such as the Shops MCU proposal create, ‘noise-related, light pollution, odour and visual impacts.’[159] He acknowledged that such amenity impacts are difficult to quantify in the absence of evidence addressing such matters.[160] While Mr Brownsworth did not profess to be an expert in the fields of noise or odour amenity, his evidence was that such matters had not been addressed in any meaningful way.[161] I agree. There is simply insufficient evidence for me to conclude that such matters have been appropriately considered so as to satisfy me that the Shops MCU proposal does not cut across the relevant planning instruments in terms of amenity.

Community Expectations

  1. [116]
    It has been accepted by this Court that the concept of amenity, particularly residential amenity, is a ‘wide and flexible one not necessarily determinable by reference to the evidence of experts alone.’[162] This statement of principle is consistent with the decision of the Full Court in Broad v Brisbane City Council & Anor, where de Jersey J(as he then was) observed:

“There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the sense but also the residents’ subjective perception of his locality. Knowing the use to which a particular site is or may be put may affect one’s perception of amenity”.[163]

  1. [117]
    BBC submits that residents in the vicinity of the Subject Site would have clear expectation that the Land would be used for residential development and BBC relies upon the evidence of Mr Brownsworth in his individual report where he states,

‘Owners and occupiers in Kinghorn Street, McAlary Drive and Slater Avenue would have an expectation, based on the provisions of the [Current Scheme], that there would be residential development on the HH Land. This would have been reinforced by the subsequent refusal of HH’s previous application for a larger scale shopping centre on the HH land and the Court’s preference for the local centre to be on BBC’s site. The HH proposal is inconsistent with the overall and specific outcome sought for the Urban Residential Zone in this locality for the above reasons.’[164]

  1. [118]
    Hawkhaven correctly submits, by reference to the decisions in Acland Pastoral Co Pty Ltd v Rosalie Shire Council[165] and DP Thoroughbred v Albert Shire Council[166], that the standard of amenity that residents are entitled to enjoy or expect is to be assessed objectively having regard to the planning scheme and its intent for development of the area. Accordingly, the reasonable expectations of residents must take into account the allowance for non-residential development and out of centre development in the Urban Residential Zone and the Medium Density Residential Zone. As I have already determined, the Shops MCU proposal does not fall within the limited exceptions envisaged by the planning instruments. It follows that I do not consider the Shops MCU proposal to be consistent with reasonable community expectations in respect of development to occur at the Subject Site.

Conclusion re Amenity

  1. [119]
    For the above reasons, I am not satisfied that Hawkhaven has satisfied the onus on it of demonstrating that the Shops MCU proposal will satisfactorily protect the amenity of the area surrounding the Subject Site. The only evidence put forward that such an impact would not be unreasonable came from Mr King in respect of acoustic amenity. For the reasons I have outlined, there are several inadequate aspects to his assessment of the adverse acoustic amenity impacts as a result of the Shops MCU proposal.
  1. [120]
    In relation to other aspects of amenity, such as visual amenity, there is a similar paucity of substantive evidence to allow for an informed determination as to whether such issues may be appropriately conditions or whether the Shops MCU proposal will conflict with the Current or Draft Scheme. I accept the evidence of Mr Brownsworth in this regard. In the absence of anything further, I am led to conclude that the proposed development will not protect the amenity as envisaged by both the Current and Draft Schemes and so conflicts with these planning instruments.

Need

  1. [121]
    I turn now to the evidence of economic need. This issue is relevant both to whether Hawkhaven has established compliance with the Current and Draft Schemes and whether there are sufficient grounds to grant approval of the Shops MCU proposal notwithstanding any conflict with the relevant planning instruments.
  1. [122]
    The Council submits that Hawkhaven has not demonstrated there is a need for the Shops MCU proposal, to which Hawkhaven responds that the Court would be satisfied there is an existing need for additional convenience retailing and services in the Blacks Beach locality which need is urgent. BBC says any commercial need for the Shops MCU proposal in the Blacks Beach locality will be satisfied by its 2011 approval, or by other vacant commercial sites in the locality such as Turtle Shores. Further, it says, approval of the Shops MCU proposal would jeopardise the implementation of the BBC Approval and put at risk the benefits the community will enjoy when the development is completed.

Need provisions within the Current and Draft Planning Scheme

  1. [123]
    The requirement for an economic need for proposed development is a consistent and unambiguous theme throughout both the Current and Draft Scheme. Provisions which reinforce this theme within the Current Scheme, include:
  1. (a)
    Desired Environmental Outcomes
  1. (i)
    Section 3.1(3)(c)(v);
  1. (b)
    Mackay Frame Locality
  1. (i)
    Division 8, P6;
  1. (ii)
    Division 10, P5;
  1. (c)
    Retail and Commercial Code
  1. (i)
    P6
  1. [124]
    I note particularly P6 of the Retail and Commercial Code which identifies the criteria for community need when considering out of centre development. It provides:

P6 – Development of additional facilities not anticipated in a designated centre meets the following criteria for community need:

  1. the proposed use does not alter the role and function of a designated centre in the network;
  2. population has increased in the trading catchment of the centre since the commencement of this scheme such that the population is able to support the proposed services;
  3. the proposed use contributes to convenient access to a range of centre services and facilities for residents;
  4. residents in the City have a choice of services and facilities without unnecessary duplication, particularly for shopping, entertainment and leisure, business and commercial services and service trades; and
  5. residents in the urban areas of the City have access to the different levels of facilities within the travel times nominated in the Table below.
  1. [125]
    Within the Draft Scheme, the relevant references to economic need are found in the following provisions;
  1. (a)
    Local Centre Code
  1. (i)
    Section 6.2.8.2;
  1. (ii)
    PO1;
  1. (b)
    Medium Density Residential Code
  1. (i)
    Section 6.2.12.2(3)(a)(iii)(A);
  1. (ii)
    PO3;
  1. (c)
    Centre Activities Code
  1. (i)
    PO3; and
  1. (ii)
    PO4.

Expert Evidence as to Need

  1. [126]
    As to need issues, a joint expert report was prepared by Mr McCracken (Hawkhaven) and Mr Duane (Council) dated 15 July 2016 (‘Need JER’).[167] It was prepared prior to the Minor Change Application and thus reflects the original Shops MCU proposal with a gross floor area of 800m2. Relevantly, Mr McCracken was unable to support the Shops MCU proposal at 800m2.[168] Both experts also provided individual statements subsequent to the Minor Change Application.[169]
  1. [127]
    In the Need JER, the agreed key issues in respect of the Shops MCU proposal were identified as:
  1. (a)
    Whether there was a need for the proposed shops to serve current and future Blacks Beach area residents;
  1. (b)
    Whether the development of the proposed shops will compromise the intended role and function of the approved Blacks Beach Cove local centre or undermine the retail hierarchy in or near the Northern Beaches area; and
  1. (c)
    Whether the impacts of the proposed shops cause the failure of any existing centre or delay the development of the approved Blacks Beach Cove local centre.[170]
  1. [128]
    In that report, Mr McCracken (‘MM’) and Mr Duane (‘GD’) stated their respective views as follows:
  1. MM says a need for additional convenience retailing and services was firmly established as early as 2007-2008 as demonstrated by the applications to Council by both the Appellant and the Co-respondent for similar sized retail centres (2,253m2 and 2,750m2, respectively), and the ultimate approval of the Co-respondent’s centre (BBC) by this Court in July 2012. 
  2. GD agrees that need has been established for the development of a Local Centre at Blacks Beach however timing for such a facility has been impacted by the downturn in mining and the broader impact on the Mackay economy.[171]
  1. [129]
    In his individual report, Mr Duane summarised his opinion in respect of the need for the Shops MCU proposal as follows:
  1. (a)
    The already approved development of 2750 m2 of shops at the Blacks Beach Cove site will accommodate all need that presently exists.
  1. (b)
    The current delay in development of this centre reflects the downturn in the Mackay economy and the difficulty in securing a major supermarket tenant in that environment.
  1. (c)
    Longer term growth within the Blacks Beach area around land identified for Emerging Community uses in the Draft Mackay Planning Scheme will result in further population growth over time. Once this occurs and the Mackay economy improves, the BBC Centre would likely occur.
  1. (d)
    There is ample zoned Local Centre land under the Draft Mackay Planning Scheme to accommodate retail uses. Again, all retail need that exists can be comfortably accommodated on this appropriately zoned land.
  1. (e)
    The proposed 400 m2 of shops at the subject site is not needed. The proposal is speculative in nature.
  1. (f)
    Approval for the proposed development would reduce the tenants that form the critical component of the approved Blacks Beach Local Centre and result in the delay in the development of that centre.[172]
  1. [130]
    In his evidence-in-chief, Mr Duane summarised his position and unequivocally stated in respect of the Shops MCU proposal, ‘I don’t see the need for these 400m2 of shops when the market improves, and I don’t see the need for it now.’[173]

Mr McCracken’s Estimates of Supportable Retail Floorspace

  1. [131]
    In the Need JER, both Mr McCracken and Mr Duane provided population growth projections until 2026 for the Blacks Beach primary trade area.[174] Mr McCracken notes there was little difference in the estimates as at 2021, but recognises that Mr Duane projects significant growth occurring between 2021 and 2026. This reflects Mr Duane’s opinion that the 70.4 hectare site adjoining the BBC land, designated as ‘Emerging Community’ in the Draft Scheme will be developed after 2018.[175] Mr McCracken considers such development unlikely.[176] By 2026, Mr Duane projects the primary sector population will increase to 8,564 persons, while Mr McCracken places the number at 7,100, noting that growth will occur at different times.[177]
  1. [132]
    Based on the population growth estimates of both experts, McCracken employs a statistical analysis, based on retail expenditure, of the total supportable retail floorspace for the Blacks Beach primary trade area. On his own population growth estimate, Mr McCracken estimates the increase in total supportable retail floorspace for convenience-type shops and supermarkets between 2016 and 2026 within the primary trade area to be 1,496 m2. Adopting Mr Duane’s population growth estimate, Mr McCracken calculates this increase in supportable floorspace at 3,839 m2.[178] Under either population growth scenario, Mr McCracken concludes, ‘growth alone is clearly sufficient to support the collective 1,150 m2 of specialty shops (400 m2 Hawkhaven, 750 m2 Blacks Beach Cove Centre)… there is currently more than sufficient retail spending to support the proposed shops and the approved BBC centre now, and neither would depend upon future population growth and increase in retail spending to support them.’[179]
  1. [133]
    Mr McCracken acknowledged that such an analysis was a ‘theoretical exercise only’ and could aptly be described as a ‘back of the envelope calculation’.[180] In Mr Duane view, Mr McCracken’s analysis does not assist in determining whether there was a demonstrated economic need for the Shops MCU proposal.[181] In my view, an important concession made by Mr McCracken was that his analysis could not demonstrate where any need for retail facilities should be located.[182] Rather, his analysis purports only to demonstrate the ‘demand for more retail facilities within the primary area’.[183]
  1. [134]
    After detailing estimates of population growth and supportable retail floorspace relevant to the Shops MCU proposal, Mr McCracken draws the following conclusions in his individual report:
  1. Given the size of the retail market as at 2011, and certainly as at 2016, the failure of the BBC centre to develop, is in my view, not due to an inadequacy in the size or growth of the Primary area or broader Mackay Market, mining bust notwithstanding. The downturn in the mining industry has dampened market confidence, but not extinguished it.

…

  1. In my opinion, the BBC Centre and the Hawkhaven both could easily be supported now given the pool of retail spending available. The previous Planning and Environment Court appeal clearly established an unambiguous need for a centre as at 2011 and that need has only grown over the past five years. The continued failure of BBC to develop the centre deprives the Blacks beach community of needed convenience retail facilities.

…

  1. It is my opinion that the delay with the BBC Centre has little or nothing to do with the adequacy of the size of the current Primary area market as claimed. I have seen nothing to suggest that the BBC Centre will not continue to be delayed, regardless of what happens on the Hawkhaven site. Development of the 400m2 of shops will at least provide the Blacks Beach community the benefit of some additional retail facilities until such time as the BBC actually proceeds.[184]

State of the Mackay Economy

  1. [135]
    Council submits the absence of demonstrated need for the Shops MCU Proposal is supported by an examination of the present state of the overall Mackay economy. Mr Duane said that, ‘the downturn residential and economic activity has resulted in an environment where it is difficult to attract interest for retail facilities’[185]. Mr McCracken acknowledged that statements from local business owners[186] to the effect that business and profits have declined in the Mackay retail market since 2013 were not a matter of surprise to him and accepted that the Mackay economy was still presently, ‘in the doldrums’.[187] Adopting what can be aptly described as an optimistic view, Mr McCracken said in his individual report, ‘[t]he downturn in the mining industry has dampened market confidence, but not extinguished it.’ [188]
  1. [136]
    Council also relies on points a June 2016 Queensland Market Monitor REIQ Property Report (‘2016 REIQ Report’), which confirmed that the property market in Mackay was classified as ‘falling’, with the median house dropping by 6.9% in the relevant quarter.[189] The report also indicates that house prices had fallen 9.3% from the previous year and had fallen 16.9% from five years ago.[190] Phrased succinctly, the report says, ‘this is an area that is doing it tough, with significant losses to the median sale price.’[191]
  1. [137]
    Looking specifically to the Blacks Beach Area, the report indicates the annual change to house prices experienced a drop of 18%, with a five year change indicating a drop of 28.8%. Council identifies that in the 2016 REIQ Report, other than North Mackay, no suburb has been more severely affected than Blacks Beach.
  1. [138]
    There can be little dispute that the Mackay economy has been significantly affected by the downturn in mining activity. Although not determinative on the question of need, the state of the economy within the Mackay area provides important context in which to assess whether there is a demonstrated need for the Shops MCU proposal.

BBC’s evidence as to the intent and timing of the BBC Proposal

  1. [139]
    Hawkhaven argues that BBC’s failure to lead evidence as to its intent and timing for development of the BBC Proposal justifies the application of the principle in Jones v Dunkel[192] so as to entitle the Court to infer that the BBC Proposal will not proceed any time in the foreseeable future for reasons unexplained. It follows, it is said, that the Shops MCU proposal should be approved to satisfy the established present economic need.[193] For the following reasons, I do not consider it appropriate to apply Jones v Dunkel.
  1. [140]
    As I have said, the 2011 approval has been extended to 5 July 2020.[194] Importantly, the request to extend the approval dated 29 June 2016 (‘Extension Request’) submitted by the Co-Respondent included the following explanation as to why the BBC Proposal had not yet proceeded:

‘3.0 Practical reasons for requested extension

With a narrow economic base, Mackay has been significantly adversely impacted by reduced activity in the coal sector since late 2012.  On the back of this downturn in the local economy, the Mackay region’s housing market has effectively grown to a halt.

The economic climate has heavily influenced our client’s ability to act on the Shopping Centre approval, as without a ‘critical mass’ of population being established in the local catchment, the Shopping Centre is not yet currently viable to develop. Our client has every intention of developing the Shopping Centre, at a time when the emerging growth in the locality has reached a point where sufficient demand exists.[195]

(emphasis added)

  1. [141]
    Notwithstanding this, Hawkhaven says there is no direct evidence that the downturn in the Mackay economy is the reason the BBC Proposal has not yet proceeded. But the Extension Request is consistent with the evidence of Mr Duane (for Council) who stated in his individual report,

‘3.4 … it is my view that the downturn in residential and economic activity has resulted in an environment where it is very difficult to attract tenant interest for retail facilities, of the kind proposed, particularly a major tenant at the Blacks Beach Site. In my opinion, this has led to a situation where the Blacks Beach development has been commercially impacted in relation to undertaking its development to date. Such an outcome is unsurprising given the downturn in the Mackay economy at present.

3.5 However, with an improvement in economic conditions, I would expect that this centre would be developed in the future. Indeed, I note that Appendix 2 to this report contains an extensions to the relevant period of the Blacks beach proposal. As an economist, this indicates to me that Blacks Beach still has the intention to develop its site for retail facilities, once the overall Mackay economy recovers from its present downturn.’[196]

  1. [142]
    In cross-examination, Mr Duane conceded there could be factors, other than those identified by him in the Need JER, such as ‘private economic factors’, impacting on why the development had not proceeded and when it might proceed.[197]
  1. [143]
    Hawkhaven also points to evidence in the form of public statements by BBC to the effect that there were factors, other than the downturn in the Mackay economy, which have led to the delay in proceeding with the BBC Proposal including delay in the development of a nearby primary school and insufficient power availability.[198] However, a close reading of these public statements, evidences that despite the various contributing factors identified as to why the BBC Proposal had not yet proceeded with the development, it remains the intention of BBC to act on the approval.
  1. [144]
    In support of its Jones v Dunkel submission, Hawkhaven says that it would have been a ‘simple matter’ for a BBC director to have been called to give evidence as to why it’s proposal has not proceeded to date and what factors have effected it’s timing. But Hawkhaven itself did not lead evidence as to the timing and intent of its own development, the Shops MCU proposal.  Council, correctly in my view, submits that it lies ill in the mouth of Hawkhaven to complain about the failure of a director of BBC to give evidence when, on the other side of the ledger, no director of Hawkhaven gave evidence about when the Shops MCU proposal would likely be acted upon, were it to be approved.
  1. [145]
    Ultimately, the fact remains BBC has been granted an extension of its approval to 5 July 2020. That is consistent with the stated intention of BBC to act on its approval. In any event, the onus remains with Hawkhaven to show there is a demonstrated economic need for their proposed development, the subject of this appeal. BBC is not under any obligation to divulge its private commercial interests and plans with respect to an extant approval it has until 5 July 2020 to exploit. Nor is BBC required to disprove the demonstrated economic need for the Shops MCU proposal.

2011 BBC Proposal

  1. [146]
    In the 2011 Decision, the Court identified an economic need for retail facilities of 2750 m2 (including 1250 m2 of specialty shops to be met by the BBC Proposal).[199] Council and BBC submit that approval of the Shops MCU proposal would prejudice the implementation of the BBC Proposal. They say Hawkhaven has not demonstrated there is a need for the proposed development to which Hawkhaven responds that the Shops MCU proposal would not adversely impact on the BBC Proposal. It invites the Court to infer that the BBC Proposal will not proceed at any time in the foreseeable future so that the Shops MCU proposal should be approved to satisfy part of the economic need previously identified in the 2011 Decision. [200]

Relevance of Existing BBC Approval

  1. [147]
    It is relevant, when determining if a proposed development should be approved, to consider whether an existing approval would be prejudiced, in terms of its implementation, by a subsequent proposal.[201] In Dalgety Australia Ltd v Brisbane City Council, the Court considered an appeal from the decision of Brisbane City Council to refuse a development application for a shop. Within the relevant catchment area there was an existing approval, on different land, also for shopping purposes. In assessing the need for the proposed development, Row DCJ held:

‘the Court is entitled to take into account, adversely to the granting of an approval, the fact that an approval has been granted and is current for a similar shopping development.’[202]

  1. [148]
    In Gold Coast Carlton Pty Ltd & Anor v Beaudesert Shire Council & Anor Row DCJ reinforced the principle and said,

‘In principle, having regard to the limited duration of a development approval, a local authority, during the currency of that approval, ought not to act so as to prejudice the implementation of its earlier decision.’[203]

  1. [149]
    Notwithstanding the clear principle enunciated in Dalgety and Gold Coast Carlton, Hawkhaven, correctly in my view, points to a body of case law which establishes that in considering proposed development, the mere threat of competition is not, by itself, a relevant consideration. In Kentucky Fried Chicken Pty Ltd v Gantidis Stephen J said:

‘If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning.  It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development.  However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of the facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration’[204]

  1. [150]
    In HA Bachrach Pty Ltd v Caboolture Shire Council Quirk DCJ affirmed the statement of Stephen J and said,

‘That the establishment of any development of this kind would have a negative effect upon the profitability of existing traders is obvious.  To suggest that such a negative effect should be determinative against a proposal is unrealistic.  If it was little development or re-development of this kind would ever occur and objectives of an elected planning authority such as we have considered in this appeal would not be able to be implemented.

My view is that Kentucky Fried Chicken remains good law in this jurisdiction in as much as it establishes a principle that the importance of economic impact on existing retail facilities is to be judged from the perspective of the community rather than that of the individual trader.’[205]

  1. [151]
    As Hawkhaven puts it, the impact of competition per se is not a relevant consideration unless the impacts are so significant that there will be a resultant overall adverse effect on the extent and adequacy of shopping facilities available to the community (ie the BBC Approval), and that such an adverse impact is not made good by the proposed development (ie the Shops MCU Proposal).[206]
  1. [152]
    Mr Duane’s evidence was that approval of the Shops MCU proposal would cut across the opportunity for BBC to develop the Blacks Beach Centre site in accordance with its existing approval.[207] In arriving at this conclusion, he referred to the type of proposed tenants in the Shops MCU proposal as outlined by Mr McCracken, which included food catering stores, a small convenience store or a local doctor’s surgery or dentist’s office.[208] Mr Duane said such tenants would form a ‘critical component’ of the BBC Approval, and, contrary to Mr McCracken’s view that the Shops MCU proposal could potentially act as catalyst for development, approval of the Shops MCU proposal would delay the opportunity for BBC to secure specialty tenants for the BBC Approval.[209] Given this reduced demand from specialty shop tenants, he believes a proposed supermarket operator may be less willing to locate at the Blacks Beach Local Centre, which would undermine the overall commercial viability of the BBC Approval.
  1. [153]
    In his individual report, Mr McCracken rejects Mr Duane’s views and notes the indicative tenants he identified were not exhaustive of those types of tenants available to locate within the BBC Approval. He says that without first securing an ‘anchor tenant’, a centre of the magnitude of Blacks Beach Cove would not proceed to development. Mr McCracken explained his opinion that the Shops MCU proposal would act as a catalyst for development in these terms:

‘It is my view that the Hawkhaven Shops have the potential to demonstrate to other retailers that the gloom is ending and it is time to look to retail opportunities. The proposed shops would not influence a Coles or Woolworths but they could influence an independent supermarket operator and other specialty shops. The shops and the tavern/liquor bar would all contribute to the customer attraction for retailing on both sides of Blacks Beach Road.

Shops and services tend to cluster together, even in the absence of an anchor tenant such as a supermarket, for the benefits of cumulative attraction and shared customers. Having shops on both sides of Blacks beach Road, with the BBC Centre on the southside and the tavern, liquor barn and three to five shops on the northside will ultimately benefit all traders, in my opinion.’[210]

  1. [154]
    As I have said, the ultimate submissions of the Council and BBC is that approval of the Shops MCU proposal would prejudice the implementation of the BBC Proposal. BBC goes further and submits that approval of the Shops MCU proposal would not ‘make good’ any resultant community detriment were the BBC Approval not to proceed, adopting the phraseology of Kentucky Fried Chicken Pty Ltd.
  1. [155]
    BBC points to the evidence of Mr Brownsworth, who echoed that of Mr Duane, who described the Shops MCU proposal to be of insufficient size, scale or function to fulfil the established need for retail activities identified by the experts and determined in the 2011 Decision. He said:
  1. Economic need for a larger development such as what has been approved for the BBC site has been established in the previous and current appeals. However, having regard to the economic need JER and issues of an overriding economic need specifically related to HH’s smaller scale proposal, such a need would not appear to have been specifically considered or demonstrated.
  2. …the locality has virtually no retail or community facilities except for two very small groups of shops at either end of the Blacks Beach Road and a Tavern on the HH site. However, the HH proposal is more akin in size and scale to the two ‘very small groups of shops’ and competes with the as well as potentially undermining the need for the proposal at the BBC site.
  3. …there is a clear and practical need for additional retail facilities to serve the Sunrise Estate and Blacks beach Cove residents now. However, in my opinion the size, scale, role and function of what is needed is more akin to what had been approved on the BBC Site, not a significantly smaller 400m2 shopping area as proposed by HH.’[211]
  1. [156]
    On balance, I am satisfied the Shops MCU proposal, if approved, may very well prejudice the strategic implementation of the BBC Proposal. On this issue, I prefer the evidence of Mr Duane and Mr Brownsworth. Such prejudice does not manifest, merely by virtue of increased commercial tenancy competition as described by Stephen J in Kentucky Fried Chicken Pty Ltd. The likely effect of the Shops MCU proposal would be to thwart the implementation of the BBC Proposal, the overall effect of which, I cannot see being ameliorated by the Shops MCU proposal. In line with the authorities I have outlined above, that is a significant factor leading to the conclusion that there is no demonstrated need for the Shops MCU proposal.

Vacancies at Nearby Centres

  1. [157]
    Council relies on the evidence of Mr Duane as to the vacancy rate of nearby centres as further demonstrating the lack of economic need for the Shops MCU Proposal. Those vacancies, as outlined by Mr Duane in his individual report, are:
  1. (a)
    Parkside Plaza Centre – 5 out of 19 specialty stores;
  1. (b)
    Northern Beaches (Woolworths) Centre – 2 out of 18 specialty stores;
  1. (c)
    Northern Beaches (Coles) Centre – 3 out of 12 specialty stores; and
  1. (d)
    Turtle Shores – 2 out of 7 specialty stores.[212]
  1. [158]
    On Mr McCracken’s own evidence, these existing nearby centres are currently servicing a population which is unlikely to change significantly within the foreseeable future.[213]  Mr Duane’s view is that the vacancy rates at these centres reflect the difficulty presently experienced by the Mackay market in attracting specialty store tenants, even as part of strong trading full-line supermarket centres.[214] Council submits the above vacancies presently show the extent of any need for further retail facilities to be very low and that any need that does exist could be easily met by vacant tenancies at those nearby centres. It relies on Gaven Developments v Scenic Rim Regional Council where Robin QC DCJ said,

‘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.’[215]

  1. [159]
    As to Turtle Shores, some 600 metres to the east of the Shops MCU proposal Subject Site, Mr McCracken says it is in the ‘wrong location to serve the Blacks Beach market’, and referred to the fact that the centre had not been fully tenanted at any point in the last sixteen years.[216] Notwithstanding this, under both the Current and Draft Scheme, Turtle Shores is commercially zoned within a local centre.
  1. [160]
    Relevantly, Mr McCracken had not seen,[217] nor did Hawkhaven tender evidence of, any written expressions of interest from potential proprietors of shops in respect of the Shops MCU proposal. Mr McCracken did not see this as irregular, given the scale of Shops MCU proposal.[218] Mr Duane considered that lack of interest a relevant factor to be considered in determining the economic need for the Shops MCU proposal.[219]
  1. [161]
    Mr McCracken accepted under cross-examination that the 400m2 of retail and commercial demand, which Hawkhaven says will be serviced by the Shops MCU proposal, is currently being serviced by the Northern Beaches Centres and other surrounding centres in Mackay. Mr Purcell, for BBC, put to Mr McCracken that one might expect that if a centre is servicing both its own catchment and an additional catchment (in the case of the Northern Beaches centres), there would be few vacancies in that existing shopping centre. Mr McCracken response was:
‘Mr McCRACKEN:Well – I mean, all Mackay shopping centres have been hit, and in Mr Duane’s evidence, I think, demonstrates that most of them have experienced declines in sales due to the mining downturn. That doesn’t last for ever; things will turn around.’
  1. [162]
    This does not, in my view, provide a satisfactory explanation. It seems to me that, if indeed there was additional need or demand for retail and commercial activities serviced by local centres outside of the intended catchment, such as Northern Beaches, those local centres would be unlikely to experience vacancy rates given they are effectively drawing customers from two catchments. That is plainly not the situation in the localities outlined in Mr Duane’s individual report.
  1. [163]
    An analysis of the vacancy rates of nearby local centres does not demonstrate an economic need for the Shops MCU proposal. In this regard, I prefer the evidence of Mr Duane. Any additional need for retail facilities could be serviced by the existing vacant tenancies at the surrounding local centres such as Turtle Shores or the Northern Beaches centres. This factor weighs strongly against approval of the Shops MCU proposal.

Conclusion re Need

  1. [164]
    In the result, I am not satisfied that Hawkhaven has demonstrated an economic need for the Shops MCU proposal. The currency of the BBC Approval, together with the vacancy rates at nearby centres satisfies me there is no present economic need for the Shops MCU proposal and that any additional need for retail facilities could be satisfied by the existing and proposed infrastructure in the Blacks Beach area.

Nature and Extent of Conflict

  1. [165]
    Allegations of conflict with the Current and Draft Scheme loom particularly large in the Shops MCU Appeal. Council, with whom BBC agrees, submits the conflict with the Current and Draft Schemes is of the most serious kind, while Hawkhaven submits that any conflict is minor. In this context, section 326(1) of SPA relevantly provides:

‘326 Other decision rules

  1. The assessment manager's decision must not conflict with a relevant instrument unless—
  1. the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or
  2. there are sufficient grounds to justify the decision, despite the conflict..’
  1. [166]
    The Court stands in the position of assessment manager. Given I have found the Shops MCU proposal conflicts with the both the Current and Draft Schemes, the nature and extent of that conflict must be assessed. Section 326 of SPA speaks of ‘conflict with a relevant instrument’, not conflict with a particular provision of a relevant instrument, relevantly the Current and Draft Planning Schemes. The identification of conflict is to be undertaken by looking at the instrument as a whole rather than isolated provisions.[220]
  1. [167]
    In Weightman v Gold Coast City Council Atkinson J (other members of the Court agreeing) said:

‘The first task required of the decision maker, as the learned primary judge recognised, is to consider the nature and extent of the conflict. The conflict may be minor or major in nature or indeed anywhere on the continuum between those extremes.’[221]

  1. [168]
    In Woolworths Ltd v Maryborough City Council (No 2)[222] Fryberg J (with McMurdo P and Holmes J, as she then was, agreeing) considered the meaning of ‘conflict’ in the context of section 3.5.14 of the Integrated Planning Act 1997 (Qld) which is in substantially the same terms as section 326 of SPA. The Court held, ‘in this context, conflict means to be at variance or disagreement with.’[223]
  1. [169]
    In my view, the Shops MCU proposal materially conflicts with both the Current and Draft Schemes. Approval of the development would cut across the clear planning intent for the subject land under either scheme. As was made clear in Court of Appeal authorities such as Gillion Pty Ltd v Scenic Rim Regional Council & Ors[224] and Lockyer Valley Regional Council v Westlink Pty Ltd[225] conflict of this type is conflict of the most serious kind.  On any view, the conflict resulting from the Shops MCU proposal could not be considered ‘minor’ or ‘technical’.[226] The Subject Site is not located within a relevant local centre nor is the land commercially zoned. Under both the Current and Draft Scheme, there is clear planning intent to limit development on such land to small scale uses where there is a demonstrated economic need for such development. Both schemes evidence a clear strategic decision made by the Council to prioritise residential development on residentially zoned land and commercial development on commercially zoned land whilst maintaining a defined centres hierarchy within the Mackay area. Simply put, what is envisaged by the Shops MCU proposal is inconsistent with such a planning strategy.
  1. [170]
    As I have said, the conflict with the Current and Draft Schemes in respect of amenity issues arise largely out of a failure to adequately address such issues. This manifests a different, nonetheless serious genus of conflict. It is clear, reading both the Current and Draft Schemes, that development must minimise adverse impacts on amenity. As I have found above, contrary to the onus it bears under section 493 of SPA, Hawkhaven has failed to address many of these aspects as they relate to the Shops MCU proposal.
  1. [171]
    In Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors the Court said:

‘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 at a particular appeal might seem more appealing) for those which a planning authority in a careful and proper way has chosen to adopt….’[227]

  1. [172]
    That the Court is not the planning authority and therefore should not readily substitute deferent planning objects and strategies was also recognised by the Court of Appeal in Australian Capital Holdings Pty Ltd v Mackay City Council.[228] An exception to this principle was observed in Grosser v Gold Coast City Council[229] where it was said departure from even long standing planning intentions may be warranted in certain circumstances. Quirk DCJ in Beck v Atherton Shire Council[230] relevantly said:

‘The court has however, repeatedly stressed the importance of strategic planning and the need to respect and support the integrity of the important planning tool which the Strategic Plan is. There may be cases where a departure from the Strategic Plan would be justified; Where, for example, the planning strategies which it represents, having been overtaken by events (or for some other reason), clearly no longer having application; or where it can be demonstrated plainly the land has been given a designation on the basis that was and remains invalid. One would expect such cases to be rare…’[231]

(Emphasis added)

  1. [173]
    No such event, or events or other reason is present here to the intent that the proposed development is responsive to it. Rather, it is largely responding to an identified community need in the sense of providing greater choice, variety and convenience in circumstances where the proposed development adjoins an existing local centre and where part of a residential lot is not being utilised for residential purposes.
  1. [174]
    I consider the conflict with both the Current and Draft Planning Schemes to be of a serious kind. Again, I prefer the evidence of Messrs Buckley and Brownsworth who concluded that the nature of the conflict with the Current Scheme ‘goes to the heart’ of the scheme, and so the extent of the conflict is ‘planning scheme wide’.[232] Approval of the Shops MCU proposal would contradict the clear planning strategy envisaged by both schemes. Along the continuum between minor conflict and major conflict with the Current and Draft Schemes, I consider the Shops MCU proposal tends towards major in nature, to adopt the phraseology in Weightman. 

Sufficient Grounds to Warrant Approval Despite Conflict

  1. [175]
    I turn now to whether there are sufficient ground for approval despite the identified conflict with Current and Draft Schemes. As Hawkhaven correctly submits, conflict with a relevant planning instrument is not fatal to the success of a development application. Rather, it is the absence of sufficient grounds to warrant approval notwithstanding such conflict which is determinative. In the Shops MCU Appeal, Hawkhaven has advanced a number of grounds which it says are sufficient to overcome any conflict with the Current or Draft Scheme.[233] These grounds are summarised by Hawkhaven as follows:
  1. There is a need for the proposed commercial and retail development on the site;

(‘Ground A’)

  1. The proposed site is appropriate for the development; and

(‘Ground B’)

  1. The proposed development is appropriately located and will promote transport network efficiency.

(‘Ground C’)

  1. [176]
    In Synergy Property Partners No 2 Pty Ltd v Brisbane City Council[234], this Court articulated, by reference to the decision in Lockyer Valley Regional Council and Schedule 3 of SPA, the approach to be taken in respect of ‘sufficient grounds’ to overcome conflict with planning scheme provisions, namely;

‘Grounds

[35] The term “grounds” is defined in Sch 3 of the SPA as:

“1. Grounds means matters of public interest.

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

[36] In Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust), the Court of Appeal endorsed the three stage test which had previously been pronounced in Weightman v Gold Coast City Council which requires the court to:

“1. examine the nature and extent of the conflict;

  1. 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;
  2. 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.”

The test now applies with the term “grounds” as defined above being substituted for the former term “planning grounds”.’

  1. [177]
    I have set out above the manner in which the Shops MCU proposal conflicts with the Current and Draft Scheme. I do not consider the grounds relied upon by Hawkhaven, either individually or collectively, are sufficient to overcome the real and material conflict that I have found in respect of the Shops MCU proposal so as to justify its approval.
  1. [178]
    As to Ground A, I have already determined that there is no demonstrated economic need for the Shops MCU proposal. As to Ground B, I accept the Council’s submission that this is not a proper ground within the meaning of Schedule 3 of SPA. The contention that the land is appropriate for the Shops MCU proposal has, in many respects, been dealt with by the town planning evidence above. The land is residentially zoned under both the Current and Draft Schemes. It does not fall within the designated local centre under either of these planning instruments. To suggest the land is ‘appropriate’ for the proposed development amounts to a submission that the land is not correctly zoned under the Current or Draft Scheme. The decision in Elan Corporation Pty Ltd, made it clear that this Court should not function as a planning authority, nor should it interfere with carefully adopted planning strategies. Mr Cumming, Hawkhaven’s own town planning expert, acknowledged this.[235]
  1. [179]
    As to Ground C, which deals with the promotion of transport network efficiency, I accept Council’s submission that such a ground was not adequately developed during the hearing. No probative evidence was put before the Court as to existing deficiencies in the transport network efficiencies which could be improved by the Shops MCU proposal. Even if this ground had been sufficiently made out, it would not be sufficient to overcome the material conflict with the Current and Draft Scheme which I have identified.

Conclusion re Appeal No 4296 of 2014 - Shops MCU Appeal

  1. [180]
    The grounds advanced by Hawkhaven are insufficient to overcome the conflict with the Current and Draft Scheme I have identified. Accordingly, the Shops MCU Appeal is dismissed.

HOTEL MCU APPEAL - APPEAL NO 4295 OF 2014

  1. [181]
    The Hotel MCU Appeal relates to a development application by Hawkhaven for a material change of use for a hotel (liquor barn extension to the existing Blacks beach Tavern) in respect of Lot 241 (‘Hotel MCU’). The liquor barn is proposed on subdivided lot 3 of the existing Lot 240[236] under the approval granted in the 3 lot ROL Appeal (Appeal 4293 of 2014). As I have said, on 2 October 2014, Council provided Hawkhaven with a Decision Notice approving, subject to conditions, the Hotel MCU (‘Hotel MCU Decision Notice’). Originally, there were nine conditions the subject of the Hotel MCU Appeal. By the close of the hearing, the only conditions remaining in dispute were:
  1. (a)
    GFA of Building – Condition 4;
  1. (b)
    Amalgamation of Allotments – Condition 5;
  1. (c)
    Commencement of the Use – Condition 6; and
  1. (d)
    Building Proximity – Condition 9;
  1. (e)
    Minimum Car Park Spaces – Condition 13.[237]
  1. [182]
    Conditions 11, 12, 27 and 28 have resolved as follows:
  1. (a)
    Condition 11 – the wording of Condition 11 has been agreed and will be in accordance with Hawkhaven’s proposed Condition 11[238];
  1. (b)
    Condition 12 – it has been agreed between the parties that Council’s proposed Condition 12 will be deleted;
  1. (c)
    Conditions 27 and 28 – Conditions 27 and 28 have been agreed between the parties and will be in accordance with Schedule 3 of the letter from Council’s solicitors to the solicitors for Hawkhaven dated 15 September 2016.[239]

Statutory Regime

  1. [183]
    Section 345 of SPA provides:

345 Conditions must be relevant or reasonable

  1. A condition must—
  1. be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
  2. be reasonably required in relation to the development or use of premises as a consequence of the development.
  1. Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.
  1. [184]
    The two limbs in section 345 of SPA are phrased in the alternative, meaning that a condition need only satisfy one of the criteria to be a valid condition of a development approval.[240] Consistent with the overall onus in section 493, it is for Hawkhaven to demonstrate that a condition imposed by Council does not satisfy either test.
  1. [185]
    In Waverley Road Developments Pty Ltd v Gold Coast City Council[241], His Honour Judge Andrews SC distilled the principles with respect to the exercise of the power to impose conditions under section 345 of SPA. Relevantly, his Honour said,

‘(b) the power to impose conditions is subject to the statutory test for the lawfulness of conditions (referring to Australian Retirement Homes Ltd v Pine River Shire Council [2010] QPELR 148; [2009] QPEC 92 at [8];

  1. whether conditions are reasonably required involves consideration of the proposal and what changes may result from its completion (referring to Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 54 LGRA 110 at 113; Proctor v Brisbane City Council (1993) 81 LGRA 398 at 401-402; Bryant Caloundra City Council [2006] QPELR 335 at 337(14);

…

  1. the requirement that a relevant condition not be an ‘unreasonable imposition’ focusses attention on the development or potential use of the subject land as a consequence of the development and the reasonableness of the proposed condition in light of the development or the potential use (referring to Bryant v Caloundra City Council [2006] QPELR 335 at 337(16);

…

  1. in exercising the discretion, regard must be had to all relevant considerations, including relevant provisions of the planning documents and improper considerations must be disregarded; and the result must not offence against common sense and the condition must fairly and reasonably relate to the permitted development or the planning considerations affecting the subject land – it must be fair and reasonable in the circumstances of the particular case (referring to Wise v Maroochy Shire Council [1999] QPELR 353 at 356 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] 137 LGERA 232; [2004] HCA 63 at [57] and [72]; Australian Retirement Homes Ltd v Pine River Shire Council [2010] QPELR 148; [2009] QPEC 92 at [9]; Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 499-500.’[242]
  1. [186]
    In Proctor v Brisbane City Council Pincus, Thomas and Mackenzie JJ observed,

‘It may well be that a condition which is in no proper sense of the word “required” by a subdivision is nevertheless relevant…as falling within the proper limits of a local authority’s functions under the Act, as imposed to maintain proper standards in local development or in some other legitimate sense. For example, a condition relating to the layout of the subdivisional roads may not be able to be supported as “required” - reasonably or otherwise - by the subdivision in question, but may be defensible as reasonably imposed in the interests of the rational development of the area in which the subdivision is located.’[243]

GFA of Building – Condition 4

  1. [187]
    Condition 4 of the Hotel MCU Decision Notice provides;

‘4.  GFA of Building

The maximum Gross Floor Area (as defined in the Mackay City planning Scheme) of the liquor barn must not exceed 600m2.’

  1. [188]
    Hawkhaven’s primary submission is that Condition 4 is redundant and therefore not reasonably required. On this basis, Hawkhaven argues for its deletion. It refers to the Minor Change Application in August 2016[244], where the gross floor area for the proposed liquor barn was reduced from 930m2 to what it says, represents 600m2 for the liquor barn and 150m2 for ‘non-retail uses’. Hawkhaven submits the size of the liquor barn complies with Condition 4. 
  1. [189]
    Hawkhaven refers to the evidence of the town planning experts who recorded the following in the Town Planning JER in respect of the changes to the floor area:

‘41. With respect to the permissible change amendments:

  1. Council approved a maximum of 600m2 in floorspace for the liquor barn in its decision notice of October 2, 2014 (Condition 4). The permissible change drawings reflect this.
  2. We agree that the 150m2 of office space attached to the northern side of the liquor barn is, of itself unlikely to have any significant impact on future residential uses to the north and by its relativity to the liquor barn offers a partial buffer for the liquor shop emissions and activity. We interpret the amendment to convey the office is not associated with the liquor barn use.’[245]
  1. [190]
    Hawkhaven also relies on the evidence of Mr Duane and Mr McCracken in the Need JER who agreed that provided the non-retail floor space was not used for the liquor shop, the 150m2 in addition to the 600 m2 for the liquor shop would have no adverse economic or community impact implications.[246] Mr Duane was of the view that the size of the trade area population, at less than 20,000 persons, is not sufficient to sustain a liquor store with a gross floor area in excess of 600m2.[247]
  1. [191]
    As against the above, Council says the effect of the Minor Change Application, in respect of the Hotel MCU, was to reduce the total gross floor area of the liquor shop use only to 750m2. It says Hawkhaven cannot arbitrarily divide the total gross floor area into ‘non-retail uses’ and ‘liquor shop uses’ in order to comply with Condition 4 which limits the gross floor area of the liquor barn use to a maximum of 600m2. It relies on the evidence of Mr Buckley, who stated that the gross floor area restriction of 600m2 is important to contain amenity impacts and to prevent the incremental spread of non-residential uses.[248]
  1. [192]
    The Minor Change Application of August 2016 resulted in approval for a building of 750m2 gross floor area of which 600m2, on Hawkhaven’s case,is related to the liquor barn. That leaves 150m2 of gross floor area for uses described in the Minor Change Application as ‘Proposed Non-Retail’.[249] In the Town Planning JER, this 150m2 of gross floor area is described as an ‘office… being an area set aside for administrative functions rather than retail floor space’.[250]
  1. [193]
    Condition 4 operates to ensure that the maximum gross floor area used for the liquor barn remains at 600m2. But for this condition, the risk is that the remaining 150m2 of gross floor area could be used for purposes associated with the liquor barn. In all of the circumstances, I consider Condition 4 a valid condition of the Hotel MCU for the purposes of section 345 of SPA. However, consistent with the submission of Hawkhaven, Condition 4 should be amended to identify the maximum gross floor area for both the liquor shop and the ‘Non-retail uses’ as shown in the Minor Change Application development plans.[251]

Amalgamation of Allotments – Condition 5

  1. [194]
    Condition 5 of the Hotel MCU Decision Notice provides:

5. Amalgamation of Allotments

This approval is dependent upon the operation of the liquor barn as an extension of the established Blacks Beach Tavern. The liquor barn and the tavern must be on a single title either through boundary realignment or amalgamation prior to the commencement of the use.

  1. [195]
    Condition 5 refers to the amalgamation of Lots 240 and 241.[252] Lot 241 is currently owned by Hawkhaven[253] while Lot 240 is separately owned by BBT Hotels Pty Ltd.[254] In respect of Condition 5, The Town Planning JER recorded:

’42.  With regard to the appeal against Condition 5 of the Decision Notice which requires the amalgamation of the Blacks beach Tavern and liquor barn allotments, we agree that:

  1. the lots are currently in separate ownership;
  2. The liquor barn will be built by Hawkhaven Pty Ltd and is intended to be leased by the Tavern; and
  3. This arrangement may change in time.’[255]
  1. [196]
    Council, in support of the imposition of the condition, relies on the fact that, when the Hotel MCU was presented to Council during the IDAS process, it was done so on the basis that it would be an extension to the existing Blacks Beach Tavern (on Lot 240).[256] Council says the requirement for amalgamation simply reflects the nature of the Hotel MCU as it was presented to Council. Accordingly, the argument runs, it is both relevant and reasonable that the two lots be amalgamated. But the amended plans, lodged with Council by Hawkhaven in its response to Council’s information request, clearly reveal separation of the proposed liquor barn and the existing Blacks Beach Tavern, on separate allotments.[257] The inference that the Liquor Barn was always intended to be located on the same lot, simply by virtue of its description as an ‘extension’ is not reasonly open. The ‘extension’ merely refers to an extension of the Hotel use[258] to accommodate the liquor barn as part of this use.
  1. [197]
    The Council also relies on the evidence of Mr Buckley who stated that, in an operational sense, the Blacks Beach Tavern and the Hotel MCU are inextricably linked.[259] In forming this view he stated,

‘the planning approach is to try and contain those things on the one holding so that operations over time can be robust and management is not affected by potential different owners…there’s always a lot of strength in containing or limiting the risk of commercial creep, where things are possibly expanded simply because they’re adjoin to something else. So there is, if you like, a bit of a traditional – but one that I think quite robust – approach about clustering these things on the one block of land and allowing the management, the operation, the operation, the control of impacts all to occur under the one ownership.’

  1. [198]
    Both Council and BBC rely on the statement of Messrs Buckley and Brownsworth in the Town Planning JER where it was said, ‘there are sound town planning reasons for the lots to be amalgamated… the lot is ultimately of sufficient size to reinforce the principle of the existing hotel and its new liquor barn extension being a single integrated use of a particular type with all necessary supporting infrastructure being located on one lot to reflect the above.’[260]It was, however, agreed by the town planning experts that cross access easement arrangements could be described as ‘optimal’ once the ‘ingress on the future development site is in place.’[261]
  1. [199]
    Hawkhaven, correctly in my view, argues that such a condition effectively compels the sale of one of the lots to the owner of the other lot to achieve amalgamation prior to commencement of the use. It further refers to the evidence of Mr McClurg and Mr Bratt in the Second Traffic Joint Expert Report dated 22 September 2016 (‘2nd Traffic JER’) who stated that the intent of Condition 5 could be achieved through other methods, such as through the registration of easements for access purposes between Lot 3 (on Lot 241) and Lot 240.[262]
  1. [200]
    Hawkhaven also points to Condition 4(c) in the 3 Lot ROL Appeal[263] and Condition 11 in the Hotel MCU Appeal, which in fact provide for access easements to be registered burdening Lot 3 (on Lot 241) in favour of Lot 240. These conditions are not disputed. In this regard, Council’s own conditions support the granting of access easements in respect of the Hotel MCU. Mr Brownsworth, for BBC, appeared to accept an arrangement of reciprocal easements would, in the circumstances, be appropriate.[264]Accordingly, Hawkhaven submits Condition 5 should not be imposed.
  1. [201]
    While there may be some town planning considerations favouring amalgamation of the two allotments, it is not the only method available to address the matters outlined by Messrs Buckley and Brownsworth. Hawkhaven has indicated that it is prepared to accept a condition to provide that approval of the Hotel MCU is subject to the operation of the liquor barn in association with the existing Blacks Beach Tavern and that the liquor barn must be leased to or managed by the existing tavern owner or operator.[265] That would be a reasonable condition. Condition 5 is not reasonably required. To compel amalgamation would be an unduly onerous, unnecessary and an unreasonable imposition on the Hotel MCU. Condition 5 should be deleted. In the absence of agreement between the parties, Hawkhaven’s proposed Condition 5 would be an appropriate condition.

Building Proximity - Condition 9

  1. [202]
    Condition 9 of the Hotel MCU Decision Notice relevantly provides:

‘9.  Building proximity

The plan of development must be reviewed to present the narrowest                             possible gap between the existing tavern and the Liquor Barn.

Consider the following:

  • the row of car parking between the buildings is not required;
  • a single lane, one way circulation area broadening the two lanes under the canopy;
  • connecting the buildings with a canopy area; and
  • that the storm water easement is a maximum or 4 metres wide.

The site must have the appearance of a single entity when viewed                             from the street.’

  1. [203]
    Council appears to proceed on the basis that Condition 5 (above) and Condition 9 can be dealt with concurrently. I do not agree. They are separate conditions imposed by Council and must be addressed accordingly.
  1. [204]
    In the Town Planning JER, the experts did not raise any issues with respect to the extent of compliance of the Hotel MCU with Condition 9, in light of the changes made in accordance with the Minor Change Application.[266] Notwithstanding the alleged uncertainty in the content and effect of the condition, Hawkhaven’s primary submission is that the requirements of proposed Condition 9 were addressed by the Minor Change Application approved by the Court in August 2016. Accordingly, Hawkhaven says the condition is redundant. I accept that submission. Condition 9 is not a valid condition pursuant to section 345 of SPA and should be deleted.

Commencement of Use – Condition 6

  1. [205]
    Condition 6 of the Hotel MCU Decision Notice provides:

6. Commencement of the use

No works can proceed and no building permit can be issued until Easement A on SP171588 has been extinguished.

  1. [206]
    By letter dated 15 September 2016[267], Council purported to amend Condition 6 to read:

6. Commencement of the use

Easement A burdening Lot 241 on SP171588, clause 7 states that no fixed improvements may be constructed by the Grantor without the consent of the Grantee. Therefore, no works can proceed and no building permit can be issued until Easement A on SP171588 has been extinguished.

  1. [207]
    Relevantly, Condition 6 in the Hotel MCU Appeal is in identical terms to Condition 2 in the 24 Lot ROL Appeal (Appeal 4294 of 2014). Condition 2 was amended in identical terms on 15 September 2016.[268]
  1. [208]
    In relation to Easement A burdening Lot 241 on SP171588 and dated 11 October 2001, Hawkhaven is the Grantor and Council the Grantee (‘Easement A’). Hawkhaven submits that Condition 6, which purports to extinguish Easement A, is not reasonably required, and would be an unreasonable imposition on the development, demonstrating no planning utility. It argues for its deletion. Council denies Condition 6 offends the statutory test for conditions pursuant to section 345 and says it simply requires the Hotel MCU to be carried out consistent with the terms of Easement A.
  1. [209]
    Council further says the condition has been imposed for a proper and legitimate planning purpose, namely ensuring that downstream drainage occurs to a lawful point of discharge and in an efficient and proper way. But this is contrary to the agreed expert evidence in respect of stormwater management. In the Joint Experts Report on Flooding and Stormwater dated 22 June 2016 (‘Stormwater JER’), Mr Johnson and Mr Bratt recorded:

‘… In June 2016, Council and Blacks Beach Cove No. 2 Pty Ltd finalised an Infrastructure Agreement.[269]  This agreement, inter alia, allowed for the construction of a stormwater drainage system through lands downstream of Blacks Beach Road controlled by Blacks Beach Cove No. 2.  This system will be constructed to cater for the fully developed stormwater runoff from the upstream catchment, which in this case includes the Hawkhaven lands.  Consequently, there is no longer a requirement for upstream developers to attenuate the rate of stormwater runoff so as to prevent actionable nuisance from downstream landowners. Further, the requirement for drainage easement A to be maintained is no longer applicable for the same reason – ie no worsening is no longer required to be achieved.’[270]

  1. [210]
    The first sentence of Council’s proposed Condition 6 replicates clause 7 of Easement A which relevantly provides:

‘7.  AND THE GRANTOR AND GRANTEE HEREBY MUTUALLY CONVENANT AND AGREE as follows: The Grantor shall not construct, erect or install buildings, improvements, pipes, wires, cables or other services of a fixed or permanent nature (hereinafter call ‘fixed improvements’) on or over or under the servient tenement without the consent of the Grantee which may be given with or without conditions but shall not be unreasonably withheld.’

  1. [211]
    Condition 6 requires that Easement A be extinguished prior to the commencement of the Hotel MCU. Easement A represents a series of covenants between the parties and is enforceable on its own terms. By operation of Easement A, Council (as Grantee) is simply able to give its consent to relevant works occurring on the land, such consent not able to be unreasonably withheld pursuant to Clause 7. Extinguishment of Easement A is not required to allow development to occur.
  1. [212]
    Hawkhaven, correctly in my view, submits that it is not permissible for this Court to impose a condition which attempts to regulate conduct that is already the subject of legal obligations within a separate instrument. In the circumstances, I am satisfied that Condition 6 is not reasonably required, and further, were it to be included, would constitute an unreasonable imposition on the development approval. Condition 6 of the Hotel MCU Decision Notice should be deleted.

Traffic Issues relating to Condition 13 of Council’s Decision Notice

  1. [213]
    As I have said, Conditions 11 and 12 of the Hotel MCU Decision, which concern traffic-related issues, have been resolved by agreement between the parties. That leaves Condition 13 which relevantly provides:

‘13. Minimum Car Parking Spaces

The car parking area must be constructed, sealed, line marked and drained for a minimum of 12 additional car parking spaces. Carparking abutting McAlary Drive must be deleted. Car parking layout amendments must be shown on the revised plans.

The car parking must be designed in accordance with AS/NZS2890.1:2004 Parking facilities Part 1: Off-street car parking and AS/NZS2890.6:2009 Parking facilities Part 6: Off-street parking for people with disabilities.

The car park must be lit in accordance with AS/NZS 1680.2.1:2008 Interior and workplace lighting and AS/NZS1158.3.1:2005 Lighting for roads and public spaces.  Any car park lighting and other outdoor lighting, must comply with AS4282-1997 Control of the obtrusive effects of outdoor lighting.’ [271]

  1. [214]
    In the First Joint Report of Traffic Engineers (‘1st Traffic JER’), prepared prior to the Minor Change Application, there was recorded agreement that the layout and design of car parking and traffic circulation areas should be in accordance with AS2890.1 and that further, the development plans  used for the purposes of that report indicated this was achievable.[272] Despite the changes in car parking and traffic circulation resulting from the Minor Change Application in August 2016, there is no suggestion that the changed plans do not comply with relevant Australian Standards. In these circumstances, the first paragraph of Condition 13 is unnecessary and should be deleted. Condition 13 will therefore read:

‘13. Minimum Car Parking Spaces

The car parking must be designed in accordance with AS/NZS2890.1:2004 Parking facilities Part 1: Off-street car parking and AS/NZS2890.6:2009 Parking facilities Part 6: Off-street parking for people with disabilities.

The car park must be lit in accordance with AS/NZS 1680.2.1:2008 Interior and workplace lighting and AS/NZS1158.3.1:2005 Lighting for roads and public spaces.  Any car park lighting and other outdoor lighting, must comply with AS4282-1997 Control of the obtrusive effects of outdoor lighting.’

  1. [215]
    Council points to a further issue in the Hotel MCU Appeal namely whether the access road for the liquor barn, as proposed along ‘Lot C(i)’ of Lot 241[273] (where the Shops MCU proposal was to be located) should form part of the development approval given the Court has now dismissed the Shops MCU Appeal. Hawkhaven says that issue has been addressed by the traffic engineers and does not arise in the context of any of the disputed conditions in the Hotel MCU Appeal. In any event, I do not consider that the access road should form part of the development. In this regard, I prefer the evidence of Mr Bratt.[274] Further, I record that Condition 11, which has been agreed between the parties, only provides that access for the proposed liquor barn to occur via an intersection with Blacks Beach Road and Chenoweth Drive. [275]

Conclusion re Appeal No 4295 of 2014 - Hotel MCU Appeal

  1. [216]
    In respect of the Hotel MCU Appeal:
  1. (a)
    GFA of Building – Condition 4 is a valid condition pursuant to section 345 of SPA. It should, however, be amended to reflect the gross floor area for both the liquor shop and the ‘Non-retail uses’;
  1. (b)
    Amalgamation of Allotments – Condition 5 is not a valid condition pursuant to section 345 of SPA and should be deleted;
  1. (c)
    Commencement of Use – Condition 6 is not a valid condition pursuant to section 345 of SPA and should be deleted.
  1. (d)
    Building Proximity – Condition 9 is not a valid condition pursuant to section 345 of SPA and should be deleted.
  1. (e)
    Minimum Parking Spaces – Condition 13 should be amended as I have outlined above; and
  1. (f)
    The access road for the liquor barn, as it is proposed along ‘Lot C(i)’ of Lot 241 (where the Shops MCU proposal was to be located) should not form part of the Hotel MCU development approval.

24 LOT ROL APPEAL – APPEAL NO 4294 OF 2014

  1. [217]
    I turn now to the 24 Lot ROL Appeal. This appeal related to a development application for reconfiguration of a lot to subdivide part of Lot 241, a residential lot, into 24 further lots. Originally, there were three conditions in dispute in the 24 Lot ROL Appeal. These were:
  1. (a)
    Commencement of Works – Condition 2;
  1. (b)
    Internal Street Works – Condition 15; and
  1. (c)
    Stormwater Drainage – Condition 18.
  1. [218]
    The parties have agreed[276] that, in the event the Court dismisses the Shops MCU Appeal which I have done, Condition 15 will read:

15.  Internal Street Works

The Internal road must be designed and constructed as kerb to kerb bitumen sealed road generally as shown on the Proposed Plan of Development drawing number R0252-P3 by AJS Surveys and as detailed below:

  1. Road 1 – Access Place
  1. Standard Drawing No. A3-3618;
  2. Undivided carriageway 5.5m wide within a 13.5m wide road reserve increased to 15 m wide road reserve along the western boundary;
  3. 1.5m wide footpath connection from McAlary Drive to the Blacks Beach Road path via proposed lot 2. This connection must be opened as a road reserve or access easement;
  4. The northern intersection alignment of Road 1 onto McAlary Drive must be adjusted slightly to align headlight glare between the house at 17 and 21 McAlary Drive;
  5. Provision must be made for and Access Place roadway connection to proposed Lot 2 including 1.5m wide footpath.
  1. [219]
    The dispute over Condition 18 was resolved during the course of the hearing. By letter dated 15 September 2016[277], Council’s solicitors proposed an amendment to subparagraph (c) of proposed Condition 18 in respect of the 24 Lot ROL Appeal (Appeal No 4294 of 2014).  By its solicitors’ letter dated 20 September 2016, Hawkhaven accepted that change as resolving the issue.[278] Agreed Condition 18 will read:-

18. Stormwater Drainage

  1. External catchments
  2. Inter-allotment drainage (if required) – Council’s Standard Drawing A3-870
  3. Downstream drainage to a lawful and practical point of discharge which has been nominated as Council’s existing underground stormwater system in Blacks Beach Road (refer attached Plan A1-9935 Amend B). The existing stormwater system in McAlary Drive has not been designed to accommodate stormwater runoff from this site.
  4. Underground drainage system through Lot 2 and the Q100 flow path to the drainage channel south of Blacks Beach Road.
  1. [220]
    Consistent with what I have determined above at paragraph [212] in respect of Condition 6 in the Hotel MCU Appeal, I find Condition 2 is not reasonably required, and further, if imposed, would constitute an unreasonable imposition on the development approval. Condition 2 of the Hotel MCU Decision Notice should be deleted.

Conclusion re Appeal No 4294 of 2014 – 24 Lot Appeal

  1. [221]
    In respect of the 24 Lot ROL Appeal:
  1. (a)
    Commencement of Works – Condition 2 is not a valid condition pursuant to section 345 of SPA and should be deleted.
  1. (b)
    Internal Street Works – Condition 15 has been agreed by the parties and will be in the terms outlined above; and
  1. (c)
    Stormwater Drainage – Condition 18 has been agreed by the parties and will be in the terms outlined above.

3 LOT ROL APPEAL - APPEAL NO 4293 OF 2014

  1. [222]
    I turn now to the 3 Lot ROL Appeal. This appeal relates to a development application for reconfiguration of Lot 241 on SP171588 into three allotments. Originally, there were three conditions in dispute in the 3 Lot ROL Appeal. These were:
  1. (a)
    Access – Condition 4;
  1. (b)
    Road Widening – Condition 5; and
  1. (c)
    Stormwater Drainage – Condition 9.
  1. [223]
    The dispute in relation to Condition 9 was resolved during the course of the hearing. By letter dated 15 September 2016[279], Council proposed an amendment to subparagraph (c) of proposed Condition 9 which, by letter dated 20 September 2016, Hawkhaven accepted as resolving the issue.[280]
  1. [224]
    Agreed condition 9 now reads:-

9. Stormwater Drainage

Stormwater must be designed and constructed in accordance with Council’s Engineering Guidelines – Stormwater Drainage Design – Planning Scheme Policy 15.05 and must provide for the following:

  1. External catchments
  2. Inter-allotment drainage (if required) – Council’s Standard Drawing A3870
  3. Downstream drainage to a lawful and practical point of discharge which has been nominated as Council’s existing underground stormwater system in Blacks Beach Road (Refer attached Plan A1-9935 Amend B).
  1. [225]
    Council’s proposed Condition 5, requiring road widening along the full Blacks Beach Road, frontage was resolved by agreement in Traffic JER1, by reference to Figure SK-35-B, prepared by Cardno.[281] Condition 5 should be amended to reflect that agreement.
  1. [226]
    It has been agreed[282] that in the event the Shops MCU Appeal is dismissed as it has been, Condition 4 will read:

‘4. Access

Access for the proposed lot is permitted as follows:

  1. Access for Lot 1 is to and from McAlary Drive only;
  2. Access for Lot 2 is through either Lot 1 to McAlary Drive or Lot 3 and Lot 240 on SP140130 to Blacks Beach Road. Access easements must be shown on the revised plans. Blacks Beach Road is a traffic distributor (sub-arterial road) and no access is permitted to this level in the road hierarchy;
  3. Access for Lot 3 is via a 4-way traffic signalised intersection with Blacks beach Road/Chenoweth Drive. An access easement must be registered burdening Lot 3 in favour of Lot 240.’

Conclusion re Appeal No 4293 of 2014 – 3 Lot ROL Appeal

  1. [227]
    In respect of the 3 Lot ROL Appeal:
  1. (a)
    Access – Condition 4 has been agreed by the parties and will be in the terms outlined above.
  1. (b)
    Road Widening – Condition 5 has resolved by agreement in the Traffic JER1, by reference to Figure SK-35-B, prepared by Cardno.[283] Condition 5 should be amended to reflect that agreement.
  1. (c)
    Stormwater Drainage – Condition 9 has been agreed by the parties and will be in the terms outlined above.

Orders

  1. [228]
    I make the following orders:
  1. In respect of Appeal 4293/14:
  1. (a)
    Condition 4 has been agreed by the parties and will be in the terms outlined in these reasons.
  1. (b)
    Condition 5 has resolved by agreement in the Traffic JER1, by reference to Figure SK-35-B, prepared by Cardno.[284] Condition 5 should be amended to reflect that agreement.
  1. (c)
    Condition 9 has been agreed by the parties and will be in the terms outlined in these reasons.
  1. In respect of Appeal 4294/14:
  1. (a)
    Condition 2 is not a valid condition pursuant to section 345 of SPA and should be deleted.
  1. (b)
    Condition 15 has been agreed by the parties and will be in the terms outlined in these reasons; and
  1. (c)
    Condition 18 has been agreed by the parties and will be in the terms outlined in these reasons.
  1. In respect of Appeal 4295/14:
  1. (a)
    Condition 4 is a valid condition pursuant to section 345 of SPA. It should, however, be amended to reflect the gross floor area for both the liquor shop and the ‘Non-retail uses’;
  1. (b)
    Condition 5 is not a valid condition pursuant to section 345 of SPA and should be deleted;
  1. (c)
    Condition 6 is not a valid condition pursuant to section 345 of SPA and should be deleted.
  1. (d)
    Condition 9 is not a valid condition pursuant to section 345 of SPA and should be deleted.
  1. (e)
    Condition 13 should be amended as outlined in these reasons; and
  1. (f)
    The access road for the liquor barn, as it is proposed along ‘Lot C(i)’ of Lot 241 (where the Shops MCU proposal was to be located) should not form part of the Hotel MCU development approval.
  1. In respect of Appeal 4296/14, the Appeal is dismissed.
  1. In relation to each of the Appeals, each party bear their own costs.

SCHEDULE A

CURRENT PLANNING SCHEME REFERENCE

 

AREA OF ALLEGED CONFLICT FROM

COUNCIL’S FURTHER AMENDED CONSOLIDATED

GROUNDS FOR REFUSAL (identified in Exhibit 53)

Part 1, Division 2 - Strategic Framework

Section 1.4(2)(d)

  1. Commercial Centres

A network of centres based on roles and functions and meeting the needs of the City and the region has been established. The City provides a wide range of facilities and services from its centres to meet the needs of the population of the City, and the Whitsunday and hinterland areas. However, a sustainable balance is required between the development of the City’s centres and the needs of the growing City and regional populations by managing the character, rate, scale and intensity of development in each centre. The network of centres in the City includes the following elements:

  1. Mackay City Centre – Regional Centre as the principal centre for all multi-purpose centre activities in the City and the region;
  2. Mt Pleasant Sub-Regional Centre, including Greenfields, Sams Road and Heaths Road, as the second major focus for shopping, commercial and entertainment in the City, functioning as a supporting role to the City Centre;
  3. Rural View Major Neighbourhood Centre, functioning as the third major focus for shopping, community and commercial needs in the City.
  4. neighbourhood centres, including Andergrove and Walkerston, providing for weekly or high frequency shopping, community and commercial needs;
  5. mixed use centre at North Mackay; and
  6. local centres, including the small convenience centres at Bucasia, Blacks Beach, North Mackay, Mt Pleasant, Slade Point and West Mackay.

To establish and maintain a viable and sustainable network of centres in the City, additional centre activities are situated within or immediately adjacent to a designated centre and be appropriate in their scale, intensity and character to the intended role and function of the designated centre.

The City's centres develop as concentrations of multi-purpose activities servicing the diverse needs of residents located within the trade catchment of each centre. A wide range of activities is allowed for in the centres, provided such activities are appropriate to the intended role and function of each centre. In addition, the re-use and rejuvenation of the existing shopping and commercial areas not designated as centres in the network is encouraged, and centres and other commercial areas are attractive, safe, sustainable and able to be economically and efficiently supported by appropriate development infrastructure. In the City Centre Locality, built heritage is protected in accordance with the Character/Heritage Protection Overlay. To achieve their intended roles and functions, the designated centres are situated at key locations within the City's transport infrastructure. Development of centre activities occurs on sites with safe and convenient access to appropriate transport infrastructure that meets the needs of the proposed activities.

Part 3, Division 1 - Desired Environmental Outcomes

3.1(3)(c)(iv)(F), 3.1(3)(c)(v), 3.1(3)(c)(vi),

3.1(3)(c)(vi)

  1. Economic Development
  1. A network of centres is established and maintained according to a hierarchical arrangement of roles and functions to meet the needs of the population, and includes the following elements, as shown on the Information Map – Network of Centres :

…

  1. the local centres, including the small convenience centres at Bucasia, Blacks Beach, North Mackay, Mt Pleasant, Slade Point and West Mackay.
  1. the growth of centres occurs in step with demonstrated community need, recognising the role and function of other centres within the network of centres.
  2. retail and commercial activities outside a centre identified within the network of centres are limited to premises with a size and function consistent with the provision of local facilities.

…

  1. centres, villages and other commercial areas are attractive, provide a safe environment and are able to be economically and efficiently supported by infrastructure.

Part 5, Mackay Frame Locality Code

Division 6, Overall Outcome (2)(h)

  1. The overall outcomes for the Mackay Frame Locality are the following:
  1. new commercial uses are located in the Commercial zone or the Village zone in accordance with the overall outcomes of those zones and the network of centres referred to in the Desired Environmental Outcomes and illustrated, for information, on the Information Map – Network of Centres.

Division 6, Overall Outcome (4)(a)

  1. in addition overall outcomes for the McCready’s Creek precinct are the following:
  1. commercial activity including shopping in the precinct is limited to the Commercial zone and accords with the network of centres described in the Desired Environmental Outcomes and as shown on the Information Map – Network of Centres and includes:
  1. a major neighbourhood centre at Rural View to meet the needs of the community residing within the McCready’s Creek precinct;
  2. a neighbourhood centre at Andergrove, to meet the needs of the community residing in Andergrove, Beaconsfield, Slade Point and part of North Mackay; and
  3. local centres at Black’s Beach and Bucasia to meet the needs of residents of Black’s Beach and Dolphin Heads, and Bucasia and Shoal Point respectively, which may grow to achieve the role and function of neighbourhood centres at some future time, in response to population growth in the trade areas of each local centre.

Division 7, P1 and P2

P1 - Commercial development is located in the commercial zone and does not detract from the network of centres referred to in the Desired Environmental Outcomes.

P2 - Residential development where residential use is the predominant activities (as distinct from farming for example) occurs on land located within the Village zone, Urban Residential zone and the Rural Residential zone.

Division 8, section (3)(a), 3(c), P1, P6 and P7

  1. The overall outcomes for the Commercial zone within the McCready’s Creek precinct are:
  1. all centres within the precinct provide a local and neighbourhood service function consistent with the network of centres referred to on the Information Map – Network of Centres and the overall outcomes for the code, specifically:
  1. a Neighbourhood Centre is established at Andergrove and a Major Neighbourhood Centre is established at Rural View; and
  2. local centres are established at Black's Beach and Bucasia.
  1. development of the centres incorporates design and siting measures and on-site environmental management to protect adjoining land from any adverse environmental effects.

…

P1 (McCready’s Creek Precinct) - New shopping facilities in the McCready’s Creek precinct are limited to a Major Neighbourhood Centre at Rural View and a Neighbourhood Centre at Andergrove and local centre functions which respect the surrounding built environment.

…

P6 (McCready’s Creek Precinct) - The Black’s Beach and the Bucasia local centres grow in step with and needs of their respective local populations and do not exceed the local centre roles as described in the overall outcomes for the Mackay Frame Locality Code.

P7 (McCready’s Creek Precinct) - Development in the centres maintains the amenity of adjoining land uses by providing:

  1. landscape buffers;
  2. screen fencing along common boundaries;
  3. placement of vehicle entrances and exits to avoid headlight glare;
  4. sensitive placement of advertisement devices; and
  5. sympathetic built form which does not dominate the streetscape.

Division 10, 2(a), 2(f) and P5

  1. The overall outcomes for the Urban Residential zone are the following:
  1. Development in the urban residential zone protects the high level of amenity of the zone and comprises predominantly single detached dwellings;

…

  1. Non residential development does not adversely affect the residential amenity of zone.

…

P5 - Non-residential activity in the zone:

  1. is limited to small-scale uses which are directly related to servicing the needs of residential areas or are small-scale, homebased businesses or home occupations; and
  2. includes design and siting measure to control any external impacts from the activity.

Part 9, Division 9, Environment and Infrastructure Code

Division 9, section 9.38(2)(e)

The overall outcome sought for the Environment and Infrastructure Code is to provide for ecologically sustainable development in the City (irrespective of its scale or intensity) by ensuring that:

…

  1. uses sensitive to external noise, vibration, dust and odours are protected from unacceptable impacts

…

P1 (Noise and Vibration Management) - Noise and vibration do not detract from the amenity of residents or employees of any adjacent premises.

Part 9, Division 22, Retail and Commercial Code

Section 9.101(2)(a)(vi), 9.101(2)(b)(i), 9.101(2)(b)(iii), 9.101(2)(b)(iv),

9.101(2)(b)(v),

9.101(2)(e), P1, P6 and P7

  1. The overall outcomes sought for the Retail and Commercial Code are the following.
  1. The establishment of retail and commercial uses complies with the location of Centres as identified in the network of centres in the City and includes the following elements:

…

  1. the local centres, including the small convenience centres at Bucasia, Blacks Beach, North Mackay, Mt Pleasant, Slade Point and West Mackay.
  1. Retail and commercial development in the City:
  1. is situated within a designated centre and is accessible and convenient for all members of the community;

…

  1. is attractive, functional, safe and serves to reinforce the role of the designated centres as community foci and complements the scale, intensity and character of the surrounding activities;
  2. is established on suitable premises appropriate in their scale, intensity and character to the intended role and function of the designated centre;
  3. has regard to accessibility and the desirability of consolidating existing designated centres;

…

  1. Retail and commercial uses do not occur outside the designated centres;

…

P1 – Retail and commercial activities outside a designated centre are limited to premises with a size and function consistent with the provision of local facilities.

…

P6 – Development of additional facilities not anticipated in a designated centre meets the following criteria for community need:

  1. the proposed use does not alter the role and function of a designated centre in the network;
  2. population has increased in the trading catchment of the centre since the commencement of this scheme such that the population is able to support the proposed services;
  3. the proposed use contributes to convenient access to a range of centre services and facilities for residents;
  4. residents in the City have a choice of services and facilities without unnecessary duplication, particularly for shopping, entertainment and leisure, business and commercial services and service trades; and
  5. residents in the urban areas of the City have access to the different levels of facilities within the travel times nominated in the Table below.

P7 - Premises are located to reinforce the viability of designated centres and are accessible to the population of the Locality it is intended to serve.

DRAFT PLANNING SCHEME REFERENCE

 

 

AREA OF CONFLICT

Part 3, Strategic Framework

section 3.2.3

The network of centres within the key urban areas of Mackay, Walkerston, Sarina, Marian and Mirani is designed to service sub-regional population catchments and do not undermine the role of the City Centre and each other. The centres network provides a hierarchy of principal, major, district, local, neighbourhood and specialised centres. Higher intensity and mixed uses are focused within centres in support of a compact urban form. Out of centre development is discouraged and avoids commercial strip development along major roads.

Table 3.3.1

3.3.7 – Encouraging higher density residential development at appropriate locations.

3.3.11 – Network of centres that support compact urban form

Table 3.8.1

3.8.2 – Economically and operationally efficient infrastructure network

Table 3.9.1

3.9.6 – Supporting appropriately located retail development

Part 6, Local Centre Code

Section 6.2.8.2

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

It includes local shopping, local employment nodes, commercial, cafes and dining, entertainment, community services and residential development where it can integrate and enhance the fabric of the activity centre.

  1. The local government purpose of the zone code is to provide for centre activities, community activities and other compatible uses that form compact, vibrant, attractive and pedestrian-oriented multi-purpose centres and activity nodes serving the surrounding local area.  Local centres include:
  1. strategic local centres – strategically important centres that serve a specific local catchment, not otherwise served by a multipurpose centre including:
  1. Blacks Beach local centre; and
  2. Bucasia local centre; and
  3. Mackay Marina local centre, which also performs a tourism and regional leisure function; and
  4. Mirani local centre; and
  5. Ooralea east local centre; and
  6. Sarina Beach Road local centre; and
  7. Slade Point local centre; and
  1. existing local centres – centres that complement a larger nearby multi-purpose centres including:
  1. Blacks Beach Road east (Blacks Beach) local centre; and
  2. Celeber Drive (Andergrove) local centre; and
  3. Evan Street (South Mackay) local centre; and
  4. Gasworks (Shakespeare Street, Mackay) local centre; and
  5. George Street (Mackay) local centre; and
  6. Martins Corner (Shakespeare Street, Mackay) local centre; and
  7. Moore Street (Mackay) local centre; and
  8. Pheasant Street (Slade Point) local centre; and
  9. Ungerer Street (North Mackay) local centre.
  1. The purpose of the code will be achieved through the following overall outcomes:
  1. Centre role and function:
  1. strategic local centres are larger than existing local centres and neighbourhood centres, but subordinate to district centres, major centres and the principal centre (Mackay city centre); and
  2. existing local centres are larger than neighbourhood centres but subordinate to strategic local centres, district centres, major centres and the principal centre (Mackay city centre); and
  3. strategic and existing local centres generally serve the suburb surrounding the centre. The Mackay Marina local centre also services tourism, leisure and port related activities; and
  4. the total gross floor area of centre activities is up to 5,000m² in strategic local centres (up to 7,000m² in the Sarina Beach local centre) and 2,500m² in existing local centres; and
  5. local centres are strengthened as local activity nodes; and
  6. local centres accommodate mostly small scale services and facilities, suitable for serving the intended catchment; and
  1. Uses:
  1. local centres accommodate a range of compatible uses enabling the creation of vibrant and diverse activity nodes providing service, employment and other opportunities; and
  2. local centres contain the following types of uses:
  1. centre activities: convenience services and limited weekly services (medium size supermarkets, limited speciality stores and personal services); and
  2. community activities: local community facilities; and
  3. residential development: limited medium density residential development where it can be mixed with centre activities; and
  4. tourism and port oriented activities at Mackay Marina local centre; and
  1. impacts are managed to minimise potential land use conflicts and provide a high level of amenity for sensitive land uses; and

Table 6.2.8.3.A

PO1 - Development in local centres:

  1. fulfils, but does not exceed, the needs of the relevant catchment:
  1. Blacks Beach local centre: Blacks Beach, Dolphins Heads and Eimeo;
  2. Bucasia local centre: Bucasia; or
  3. Mackay Marina local centre: Mackay Harbour and Tourism, leisure and port related activities; or
  4. Mirani local centre: Mirani; or
  5. Ooralea East local centre: eastern part of Ooralea and western part of Paget; or
  6. Sarina Beach Road local centre: northern part of Sarina; or
  7. Slade Point local centre: Slade Point; or
  8. the residential neighbourhood immediately surrounding the existing local centre; and
  1. does not compete with or compromise the viability, role or function of other strategic local centres, district centres, major centres of the principal centre (Mackay city centre).

PO2 - Local centres accommodate a range of uses enabling the creation of vibrant activity nodes providing local services and employment.

Part 6, Medium Density Residential Zone Code

Section 6.2.12.2

  1. The purpose of the Medium density residential zone code is to provide for a medium density multiple dwellings supported by community uses and small-scale services and facilities that cater for local residents.
  2. The local government purpose of the zone code is to provide for low-medium and medium intensity residential development within key urban areas at locations which possesses on or a combination of the following attributes:
  1. in close proximity to important multi-purpose centres (principal, major, district and certain local centres) and other activity hubs, including:
  1. Mackay city centre (principal centre); and
  2. Mount Pleasant, Rural View and Sarina major centres; and
  3. Andergrove, Marian, North Mackay, West Mackay (Fourways and Parkside) and Walkerston district centres; and
  4. Sarina Beach Road (Sarina), Blacks Beach, Bucasia, Mirani, Celeber Drive (Andergrove) local centres; and
  5. Mackay Base Hospital (West Mackay); and
  1. along important traffic corridors, including: Bridge Road, Glenpark Street, Holland Street, Juliet Street, Malcomson Street and Paradise Street; and
  2. nodes (rather than linear development) in close proximity to high quality amenity and recreation elements, including: Alexandra Street (addressing Mackay Regional Botanic Gardens), Bucasia Beach, Blacks Beach, Dolphin Heads, Glenella, Iluka/Illawong Beaches and Slade Point.

The zone also provides for short-term accommodation and a limited range of small scale, low intensity and compatible non-residential activities.

The zone includes the Low-medium density precinct (precinct no. MD1), General medium density precinct (precinct no. MD2) and Multi-storey medium density precinct (precinct no. MD3).

  1. The purpose of the code will be achieved through the following overall outcomes:
  1. Uses:
  1. the predominant form of development within the zone is low-medium and medium density residential development; and
  2. the zone also accommodates short-term accommodation in the Multi-storey medium density precinct (precinct no. MD3) on sites:
  1. in close proximity to centres or other activity hubs and/or elements of high amenity and recreation value; and
  2. that are prominently located and highly accessible; and
  1. a limited range of small-scale and low intensity non-residential uses may be appropriate if these uses are:
  1. required to serve the needs of the local area; and
  2. located on prominent, high accessible sites; and
  3. consistent with the amenity and character of the surrounding urban area; and

…

  1. Built form and development intensity:
  1. in the Low-medium density precinct (precinct no. MD1) and General medium density precinct (precinct no. MD2), low rise buildings integrate with the character and amenity of the local area; and
  2. in the Multi-storey medium density precinct (precinct no. MD3), the medium rise buildings reflect the site’s strategic location but has a lesser development intensity than buildings in the High density residential zone, Major centre zone and Principal centre zone (Mackay city centre); and
  3. low-medium density residential development is provided in the Low-medium density precinct (precinct no. MD1) and medium density residential development is provided in the General medium density precinct (precinct no. MD2) and the Multi-storey medium density precinct (precinct no. MD3); and
  4. road frontage setbacks are small enough to enable the development to effectively interact with the street but large enough to accommodate landscaping and avoid buildings being visually overbearing; and
  5. development provides high quality design outcomes reinforcing the sense of identity of the local area and region; and
  1. Amenity:
  1. development does not adversely affect the amenity of adjacent areas and uses, particularly residential uses and other sensitive land uses; and

Table  6.2.12.3.A

PO1 - The zone primarily accommodates low-medium and medium density residential development including:

  1. multiple dwelling activities and dwelling houses in the Low-medium density precinct (precinct no. MD1) and the General medium density precinct (precinct no. MD2); and
  2. multiple dwelling activities, with the exception of dual occupancy, in the Multi-storey medium density precinct (precinct no. MD3).

…

PO3 -  Non-residential activities, such as centre activities and community activities, are

  1. required to serve the need of the local area and do not compromise the viability of:
  1. existing or intended uses within a multi-purpose centre; and
  2. similar existing or approved uses in the local area; and
  1. of a small scale and are subordinate to the primary residential character of the area; and
  2. generate minimal impacts

PO10 – Development does not generate unreasonable levels of noise, odour, dust ari emission, light or vibration impacts that affect:

  1. adjoining and nearby sites within a residential zone; and
  2. adjoining or nearby sites containing an existing sensitive land use.

Part 9, Centre Activities Code

Section 9.3.2.2

  1. The purpose of the Centre activities code is to ensure that centre activities contribute toward the intended role and function of centres, provide high quality design and amenity outcomes.
  2. he purpose of the code will be achieved through the following overall outcomes:
  1. centre activities are located on highly accessible sites in designated centres unless special circumstances (local need and location attributes) justify small scale activities outside designated centres; and

…

  1. development is integrated with development on adjoining sites in order to achieve a cohesive centre; and
  2. development provides high quality design outcomes at a human scale, and addresses and interacts with the street particularly along existing centre main streets and main streets in new centres; and
  3. development maintains a high level of amenity for adjoin residential properties;

Table 9.3.2.3.A

PO3 – Centre activities are located within a centre zone unless:

  1. a strong local need will be fulfilled; and
  2. the viability of designated centres will not be compromised; and
  3. they are located:
  1. in close proximity to existing centre activities or outside of the walkable catchment of a multi-purpose centres; and
  2. on transport routes providing easy and safe access to the site; and
  3. to minimise potential impacts to adjoining and nearby properties within a residential zone and existing sensitive land uses.

PO4 – Centre activities outside a centre zone provide small scale and low intensity convenience services for the local area that:

  1. integrate with the character and amenity of the local area; and
  2. do not compete with or compromise role, function and viability of multi-purpose centres.

PO5 – Built form is integrated with adjoining and nearby development within the centre to provide:

  1. co-ordinated layout; and
  2. consistent streetscape rhythm.

…

PO16 – Development:

  1. efficiently utilises sites; or
  2. maintains the amenity of adjoining residential sites where adjoining land within a residential zone

Part 9, General Development Requirements Code

Section 9.4.2.2

  1. The purpose of the General development requirement is to provide general requirements regarding infrastructure, amenity, safety and environmental standards for assessable development.
  2. The purpose of the code will be achieved through the following overall outcomes:

…

  1. development maintains the amenity of the surrounding area; and
  2. sensitive land uses in close proximity to activities generating amenity impacts are locate and designed to mitigate the impacts

Table 9.4.1.3.A

PO18 – The acoustic amenity, privacy and liveability of residential areas and sensitive land uses is maintained by ensuring that:

  1. noise generating development in close proximity to existing and or future sensitive land uses is located, designed and operated to minimise acoustic impacts on sensitive land use; and
  2. sensitive land uses in close proximity to existing and/or future noise generating uses are located and designed to ensure minimal acoustic impacts on the sensitive land use.

PO25 – Non-residential development maintains the visual and general amenity of adjoin residential areas.

Footnotes

[1]Exhibit 44, Tab 3, page 7.

[2]See Exhibit 3, an aerial photograph showing the existing tavern with Lot 241 to the west of it.

[3]Exhibit 9 page 6, paragraph 11.

[4]Exhibit 9 page 7, Table 2.1.

[5]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104.

[6]Exhibit 38. 

[7]Appellant’s Written Submissions paragraph 71.

[8]Exhibit 63.

[9]Exhibit 22.

[10]Exhibit 59.

[11]Exhibit 64.

[12]T1.6.11.

[13]T1.8.1.

[14]Affidavit of Mr Ellerman sworn 7 December 2016, Ex.61 at Ex.DBE-1, pages. 1-4.

[15]T5.8.37.

[16]Exhibit 56, attachment ‘I’.

[17]Exhibit 53.

[18]Exhibit 64.

[19]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions paragraph 108.

[20]T3.65.34.

[21]Exhibit 39.

[22]Exhibit 40, Minor Change (pre-existing and amended plans), pages 15 and 16.

[23]Exhibit 40, Minor Change (pre-existing and amended plans), p 15.

[24]Ibid.

[25]Exhibit 40, Minor Change (pre-existing and amended plans), p 15.

[26]Exhibit 53.

[27]Exhibit 64.

[28]Written Submissions on behalf of Mackay Regional Council dated 17 March 2017; Appellant’s Reply to Mackay Regional Council’s Written Submissions dated 27 April 2017.

[29]Exhibit 9.

[30]Exhibits 18 and 25 respectively.

[31]T4.60.4-11.

[32]Exhibit 9, p 18, para 66.

[33]Exhibit 9, p 18, para 68.

[34]Exhibit 9, para 86.

[35]Exhibit 9, paragraph 87.

[36]Exhibit 9, paragraph 71.

[37]Exhibit 9, paragraph 86.

[38]Exhibit 9, paragraph 98.

[39]Exhibit 9, paragraph 78.

[40]Exhibit 9, 80-81.

[41]Exhibit 9, para 89 et al.

[42]See Schedule A.

[43]Current Scheme, section 1.4(2)(d), Part 1 Division 2, Strategic Framework; Draft Planning Scheme, section 6.2.8.2, Part 6, Local Centre Code.

[44]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 64.

[45]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 at [89].

[46]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 at [215] – [216].

[47]Exhibits 19 and 20 - First and Second Statements of Daniel Jacobus Ackerman.

[48]See Schedule A.

[49]Exhibit 2, page 10.

[50]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 41, 46(c).

[51]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 at [89].

[52]See Schedule A.

[53]Exhibit 64, page 226.

[54]Exhibits 20 and 57, attachments at page 1 and Exhibit 19, page 14.

[55]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 81(a).

[56](1957) 2 LGRA 117.

[57]Written Submissions of the Mackay Regional Council, paragraph 85.

[58]Written Submissions of the Co-Respondent by Election, paragraph 116.

[59]T5.55.40-45.

[60][2000] 1 Qd R 306 at 328. 

[61](1975) 31 LGERA 178

[62](1994) 83 LGERA 224 at 228.

[63]Exhibit 19, paragraph 23, 26; Exhibit 57, paragraph 4.

[64]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 113.

[65][2007] QPELR 123

[66]Ibid at 130.

[67]Exhibit 9, page 16, paragraph 16.

[68]See Schedule A.

[69]Exhibit 9, page 15, paragraph 59.

[70]See Schedule A.

[71]Exhibit 9, page 23, paragraph 92.

[72]See Schedule A.

[73]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 59.

[74]Exhibit 21, page 4.

[75]See for example, Zappala Family Co Pty Ltd v BCC (2014) 201 LGERA 82; Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337.

[76][2004] QPELR 337

[77]Luke v Maroochy Shire Council & Anor (2003) QPELR 447 at 450.

[78]Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 at 342.

[79](2001) 117 LGERA 153 at [38].

[80]Exhibit 9, page 15, para 59.

[81]Exhibit 9, page 20, para 76.

[82]Written Submission on behalf of the Mackay City Council, paragraph 51.

[83]Appellant’s Written Submissions, paragraph 199, 206; Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 67.

[84]Exhibit 21, page 131.

[85]T5.60.22.

[86]T4.83.31-44.

[87][2004] QPELR 337.

[88]Written Submissions of the Co-Respondent by Election, paragraph 70.

[89]Written Submissions of the Co-Respondent by Election, paragraph 76.

[90]Exhibit 25, page 4, paragraph 12.

[91]Exhibit 25 – Individual Report of James Brownsworth at page 4 and 7.

[92]T4.23.25.

[93]T4.23.28-31.

[94]T5.60.11.

[95]T.5.60.12-14.

[96]T4.84.21-22.

[97]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 88.

[98]Exhibit 21, page 147.

[99]See Schedule A.

[100]T4.79.36, T4.80.45.

[101]Exhibit 9, page 23, para 92.

[102]T4.79.37-47.

[103]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 88(f).

[104]T4.80.5

[105]Luke v Maroochy Shire Council & Anor (2003) QPELR 447 at 450.

[106]Denoted as ‘Future Development Site’, Exhibit 2, page 17.

[107]T4.81.15.

[108]T4.81.16.

[109]T.4.83.4.

[110]See Schedule A.

[111]Appellant’s Written Submissions, paragraph 206.

[112]See Schedule A.

[113]Exhibit 64, page 6.

[114]Ibid page 226.

[115]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 81(a).

[116]See Schedule A.

[117]See Schedule A.

[118]Written Submissions on behalf of the Mackay Regional Council, paragraph 68.

[119]See Schedule A.

[120]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 at [216].

[121]See Schedule A.

[122]See Schedule A.

[123]Schedule A, Division 10, PO5, Mackay Frame Locality Code. 

[124]Schedule A, PO3, Medium Density Residential Zone Code.

[125]Exhibit 11.

[126]See Schedule A

[127]Exhibit 11, page 5.

[128]Ibid.

[129]Exhibit 11.

[130]See for example, Exhibit 32.

[131]Blacks Beach Cove No 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 at [160].

[132]Written Submissions of the Co-Respondent by Election, paragraph 97.

[133]See Schedule A.

[134]See Schedule A.

[135]Written Submission on behalf of Mackay Regional Council, paragraph 111.

[136][2017] QPEC 11 at [151].

[137]Exhibit 40, page 15, labelled as Lot ‘A’.

[138]T2-18.14-15.

[139]Exhibit 11, paragraphs 11, 12 and 16.

[140]T2-18.22-25.

[141]T2.24.35-45.

[142]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 140.

[143]T2-18.1-5

[144]T2.17.40-45.

[145]T2-16.10-31.

[146]T2.16.25

[147]T2-16.15-20.

[148]T2.14.33.

[149]T2.15.1-5.

[150]T2.16.11.

[151]T4.23.38-45.

[152]Exhibit 53, paragraph 4, 5, 6(b) and 6(f).

[153]Exhibit 9.

[154]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 148.

[155]Exhibit 25, page 5.

[156]Written Submissions of the Co-Respondent by Election, paragraph 98.

[157]Exhibit 26, page 7, condition 31.

[158]T21.21-25.

[159]T5.58.37.

[160]T5.58.36.

[161]T5.59.2.

[162]Bassingthwaighte v Roma Town Council & Ors [2011] QPELR 63 at [34] referring to Prime Group Properties v Caloundra City Council & Ors (1995) QPLR 147.

[163](1986) 2 Qd R 317 at 326 

[164]Exhibit 25, page 5.

[165][2008] QPELR 342.

[166][1986] QPLR 273.

[167]Exhibit 8, tab 3.

[168]Exhibit 8, tab 3, page 33, paragraphs 71-74.

[169]Exhibit 10 and 14 respectively.

[170]Exhibit 8, page 7, paragraph 19.

[171]Exhibit 8, tab 3.

[172]Exhibit 14, page 10.

[173]T3.64.1-10.

[174]Exhibit 8, tab 3, page 21 and 23.

[175]Exhibit 8, tab 3, page 22

[176]Exhibit 10, page 1, paragraph 6.

[177]Exhibit 8, tab 3, page 22.

[178]Exhibit 10, pages 3 - 4.

[179]Exhibit 10, paragraph 13.

[180]T3.44.35-36.

[181]T3.64.40-45.

[182]T3.44.33.

[183]T3.44.30.

[184]Individual Statement of Mike McCracken dated 17 September 2016, paragraphs 14,17 and 22.

[185]Exhibit 14, paragraph 3.4.

[186]Exhibits 15-17.

[187]T3.34.10-15.

[188]Exhibit 10, paragraph 14.

[189]Exhibit 51, page 42.

[190]Ibid.

[191]Ibid.

[192](1959) 101 CLR 298.

[193]Appellant’s Written Submission paragraph 235-236

[194]Exhibit 46, page 29.

[195]Exhibit 46, tab 1, page 3.

[196]Exhibit 14, page 4.

[197]T3.77.15-26.

[198]Exhibit 9, page 87; Exhibit 49.

[199]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 at [217].

[200]Appellant’s Written Submissions, paragraph 236; Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 172(n).

[201]Mustercliffe Pty Ltd v Brisbane City Council & Ors [1991] QPLR 111 at 126.

[202](1980) QPLR 198 at 200

[203][1985] QPLR 343 at 349.

[204](1979) 140 CLR 675 at 687.

[205][1996] QPELR 312 at 316.

[206]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 158.

[207]Exhibit 14, page 6, para 3.11(d).

[208]Exhibit 8, tab 3, para 72.

[209]Ibid, para 84.

[210]Exhibit 10, paragraph 10.

[211]Exhibit 25, page 13.

[212]Exhibit 14, page 9.

[213]Exhibit 8, tab 3, paragraph 44, 64.

[214]Ibid page 5.

[215][2010] QPELR 750 at [37]. See also; McConaghy Properties Pty Ltd v Townsville City Council [2017] QPEC 11 at [124].

[216]T3.23.42.

[217]T3.39.35-40.

[218]T3.39.45.

[219]T3.64.15-20.

[220]Luke v Maroochy Shire Council & Anor [2003] QPELR 447 at 450.

[221][2003] 2 Qd R 441 at [37].

[222][2006] 1 Qd R 273

[223]Ibid at [23]

[224][2013] QPELR 711; and [2014] QPELR 168.

[225][2001] 185 LGERA 863; and [2013] 2 Qd. R 302.

[226]Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711; [2014] QPELR 168.

[227][1990] QPLR 209 at 211.

[228][2008] QCA 157.

[229](2001) 117 LGERA 153. 

[230](1991) QPLR 56.

[231](1991) QPLR 56 at 59.

[232]Exhibit 9, paragraph 86.

[233]Exhibit 17, tab 7; Appellant’s Written Submission paragraph 217.

[234][2016] QPEC 21 at [34] – [36].

[235]T4.92.20-43.

[236]Exhibit 40, page 1.

[237]Exhibit 5, page 411.

[238]Exhibit 33, page 3.

[239]Exhibit 55.

[240]Maroochy Shire Council v Wise (1998) 100 LGERA 311.

[241](2011) 187 LGERA 352.

[242]Ibid at [47].

[243](1993) 81 LGERA 398 at 404.

[244]Exhibit 39; Exhibit 40, page 10.

[245]Exhibit 9, page 13.

[246]Exhibit 8, tab 3, paragraphs 89-92.

[247]Exhibit 8, tab 3, paragraph 92.

[248]Exhibit 18, page 4, paragraph 39.

[249]See for example, Exhibit 40, page 15.

[250]Exhibit 9, page 13, paragraphs 40(c), 41(b).

[251]Appellants Reply To Mackay Regional Council’s Written Submissions, paragraph 289.

[252]See, for example Exhibit 40, page 15.

[253]Exhibit 44, tab 1.

[254]Ibid, tab 5.

[255]Exhibit 9, page 13, paragraph 42.

[256]See for example, Exhibit 5, Tab 1(b) pages 18, 23, 28.

[257]Exhibit 5, tab 6, page 225 and 228.

[258]Exhibit 21, page 147.

[259]T4.24.47.

[260]Exhibit 9, page 13, paragraph 43.

[261]Exhibit 9, page 14, paragraph 44.

[262]Exhibit 35, page 4.

[263]Appeal 4293 of 2014.

[264]T6.35.10-20.

[265]Exhibit 33, page 3.

[266]Exhibit 9, page 14, paragraph 46.

[267]Exhibit 55.

[268]Exhibit 55, page 4.

[269]Exhibit 41.

[270]Exhibit 8, tab 1, page 2.

[271]Exhibit 5, page 411.

[272]Exhibit 8, tab 2, page 3.

[273]Exhibit 40, page 15.

[274]T4.7.35-40; T4.6.40 – T4.7.20; T4.15.25-30

[275]Exhibit 33, page 3.

[276]Appellant’s Reply to Mackay Regional Council’s Written Submissions, paragraph 277; Exhibit 33.

[277] Exhibit 55, page 1 and Schedule 2, page 4.

[278] Exhibit 55, page 7, paragraph 2(a).

[279] Exhibit 55, page 1 and 3.

[280] Exhibit 55, page 7, paragraph 1.

[281]Exhibit 8, tab 2, Attachment A.

[282]Appellants Reply to Mackay Regional Council’s Written Submissions, paragraph 275.

[283]Exhibit 8, tab 2, Attachment A.

[284]Exhibit 8, tab 2, Attachment A.

Close

Editorial Notes

  • Published Case Name:

    Hawkhaven Pty Ltd v Mackay Regional Council & Anor

  • Shortened Case Name:

    Hawkhaven Pty Ltd v Mackay Regional Council

  • MNC:

    [2017] QPEC 40

  • Court:

    QPEC

  • Judge(s):

    Searles DCJ

  • Date:

    19 Jul 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Acland Pastoral Co Pty Ltd v Rosalie Shire Council (2008) QPELR 342
2 citations
Jump To
Cite 1 - (2008) QPELR 342
Cite 2 - (2008) QPELR 342
Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490
1 citation
Jump To
Cite 1 - (1970) 123 CLR 490
Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157
2 citations
Jump To
Cite 1 - [2008] QCA 157
Cite 2 - [2008] QCA 157
Australian Retirement Homes Limited v Pine Rivers Shire Council [2009] QPEC 92
2 citations
Jump To
Cite 1 - [2009] QPEC 92
Cite 2 - [2009] QPEC 92
Australian Retirement Homes Ltd v Pine Rivers Shire Council [2010] QPELR 148
2 citations
Jump To
Cite 1 - [2010] QPELR 148
Cite 2 - [2010] QPELR 148
Bassingthwaighte v Roma Town Council & Ors (2011) QPELR 63
1 citation
Jump To
Cite 1 - (2011) QPELR 63
Beck v Atherton Shire Council (1991) QPLR 56
3 citations
Jump To
Cite 1 - (1991) QPLR 56
Cite 2 - (1991) QPLR 56
Cite 3 - (1991) QPLR 56
Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council [2011] QPEC 104
8 citations
Jump To
Cite 1 - [2011] QPEC 104
Cite 2 - [2011] QPEC 104
Cite 3 - [2011] QPEC 104
Cite 4 - [2011] QPEC 104
Cite 5 - [2011] QPEC 104
Cite 6 - [2011] QPEC 104
Cite 7 - [2011] QPEC 104
Cite 8 - [2011] QPEC 104
Broad v Brisbane City Council[1986] 2 Qd R 317; [1986] QSCFC 27
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 317
Cite 2 - [1986] 2 Qd R 317
Bryant v Caloundra City Council [2006] QPELR 335
2 citations
Jump To
Cite 1 - [2006] QPELR 335
Cite 2 - [2006] QPELR 335
Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 54 LGRA 110
1 citation
Jump To
Cite 1 - (1984) 54 LGRA 110
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
2 citations
Jump To
Cite 1 - (1957) 2 LGRA 117
Cite 2 - (1957) 2 LGRA 117
Dalgety Australia Ltd v Brisbane City Council (1980) QPLR 198
2 citations
Jump To
Cite 1 - (1980) QPLR 198
Cite 2 - (1980) QPLR 198
DP Thoroughbred v Albert Shire Council [1986] QPLR 273
2 citations
Jump To
Cite 1 - [1986] QPLR 273
Cite 2 - [1986] QPLR 273
Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209
2 citations
Jump To
Cite 1 - (1990) QPLR 209
Cite 2 - (1990) QPLR 209
Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 750
1 citation
Jump To
Cite 1 - [2010] QPELR 750
Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QPELR 168
2 citations
Jump To
Cite 1 - [2014] QPELR 168
Cite 2 - [2014] QPELR 168
Gillion Pty Ltd v Scenic Rim Regional Council & Ors (2013) QPELR 711
3 citations
Jump To
Cite 1 - (2013) QPELR 711
Cite 2 - (2013) QPELR 711
Cite 3 - (2013) QPELR 711
Gold Coast Carlton Pty Ltd v Beaudesert Shire Council [1985] QPLR 343
2 citations
Jump To
Cite 1 - [1985] QPLR 343
Cite 2 - [1985] QPLR 343
Good-Mix Concrete Pty Ltd v Brisbane City Council (No.3) (1975) 31 LGERA 178
2 citations
Jump To
Cite 1 - (1975) 31 LGERA 178
Cite 2 - (1975) 31 LGERA 178
Grosser v Council of Gold Coast City (2001) 117 LGERA 153
3 citations
Jump To
Cite 1 - (2001) 117 LGERA 153
Cite 2 - (2001) 117 LGERA 153
Cite 3 - (2001) 117 LGERA 153
HA Bachrach Pty Ltd v Caboolture Shire Council (1996) QPELR 312
2 citations
Jump To
Cite 1 - (1996) QPELR 312
Cite 2 - (1996) QPELR 312
Holts Hill Quarries Pty Ltd v Gold Coast City Council & Ors [2000] QCA 268
1 citation
Jump To
Cite 1 - [2000] QCA 268
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
2 citations
Jump To
Cite 1 - (1979) 140 CLR 675
Cite 2 - (1979) 140 CLR 675
Lewiac Pty Ltd v Gold Coast City (1994) 83 LGERA 224
2 citations
Jump To
Cite 1 - (1994) 83 LGERA 224
Cite 2 - (1994) 83 LGERA 224
Lockyer Valley Regional Council v Westlink Pty Ltd[2013] 2 Qd R 302; [2012] QCA 370
1 citation
Jump To
Cite 1 - [2013] 2 Qd R 302
Lockyer Valley Regional Council v Westlink Pty Ltd [2001] 185 LGERA 863
2 citations
Jump To
Cite 1 - [2001] 185 LGERA 863
Cite 2 - [2001] 185 LGERA 863
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
3 citations
Jump To
Cite 1 - (2003) QPELR 447
Cite 2 - (2003) QPELR 447
Cite 3 - (2003) QPELR 447
Maher v Hervey Bay City Council [2007] QPELR 123
2 citations
Jump To
Cite 1 - [2007] QPELR 123
Cite 2 - [2007] QPELR 123
Maroochy Shire Council v Wise (1998) 100 LGERA 311
1 citation
Jump To
Cite 1 - (1998) 100 LGERA 311
McConaghy Properties Pty Ltd v Townsville City Council [2017] QPEC 11
2 citations
Jump To
Cite 1 - [2017] QPEC 11
Cite 2 - [2017] QPEC 11
Mustercliffe Pty Ltd v Brisbane City Council & Ors (1991) QPLR 111
1 citation
Jump To
Cite 1 - (1991) QPLR 111
Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 137 LGERA 232
1 citation
Jump To
Cite 1 - (2004) 137 LGERA 232
Prime Group Properties Ltd v Caloundra City Council (1995) QPLR 147
1 citation
Jump To
Cite 1 - (1995) QPLR 147
Proctor v Brisbane City Council (1993) 81 LGERA 398
1 citation
Jump To
Cite 1 - (1993) 81 LGERA 398
Proctor v Brisbane City Council (1993) 81 LGRA 398
1 citation
Jump To
Cite 1 - (1993) 81 LGRA 398
Synergy Property Partners No 2 Pty Ltd v Brisbane City Council [2016] QPEC 21
2 citations
Jump To
Cite 1 - [2016] QPEC 21
Cite 2 - [2016] QPEC 21
Waverley Road Developments Pty Ltd v Gold Coast City Council (2011) 187 LGERA 352
3 citations
Jump To
Cite 1 - (2011) 187 LGERA 352
Cite 2 - (2011) 187 LGERA 352
Cite 3 - (2011) 187 LGERA 352
Weightman v Gold Coast City Council[2003] 2 Qd R 441; [2002] QCA 234
2 citations
Jump To
Cite 1 - [2003] 2 Qd R 441
Cite 2 - [2003] 2 Qd R 441
Western Australian Planning Commission v Tamwood Holdings Pty Ltd [2004] HCA 63
1 citation
Jump To
Cite 1 - [2004] HCA 63
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
1 citation
Jump To
Cite 1 - (2004) 221 CLR 30
Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337
5 citations
Jump To
Cite 1 - (2004) QPELR 337
Cite 2 - (2004) QPELR 337
Cite 3 - (2004) QPELR 337
Cite 4 - (2004) QPELR 337
Cite 5 - (2004) QPELR 337
Wise v Maroochy Shire Council [1999] QPELR 353
1 citation
Jump To
Cite 1 - [1999] QPELR 353
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
3 citations
Jump To
Cite 1 - [2006] 1 Qd R 273
Cite 2 - [2006] 1 Qd R 273
Cite 3 - [2006] 1 Qd R 273
Yu Feng Pty Ltd v Maroochy Shire Council[2000] 1 Qd R 306; [1996] QCA 226
2 citations
Jump To
Cite 1 - [2000] 1 Qd R 306
Cite 2 - [2000] 1 Qd R 306
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
1 citation
Jump To
Cite 1 - (2014) 201 LGERA 82

Cases Citing

Case NameFull CitationFrequency
Infinite Aged Care (Cornubia) Pty Ltd v Logan City Council [2021] QPEC 583 citations
Nerinda Pty Ltd v Redland City Council[2019] 1 Qd R 523; [2018] QCA 1461 citation
1

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