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Lipoma Pty Ltd v Redland City Council[2017] QPEC 53

Lipoma Pty Ltd v Redland City Council[2017] QPEC 53

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2017] QPEC 53

PARTIES:

LIPOMA PTY LTD ACN 002 203 581

(Appellant)

and

LANREX PTY LTD ACN 010 740 191

(Appellant No. 2 of 2016)

and

VICTORIA POINT LAKESIDE PTY LTD

ACN 106 781 757

(Appellant No. 44 of 2016)

and

REDLAND CITY COUNCIL

(Respondent)

and

NERINDA PTY LTD  ACN 001 325 720

(Co-Respondent)

FILE NO/S:

4940 of 2015, 2 of 2016 and 44 of 2016

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 September 2017

DELIVERED AT:

Cairns

HEARING DATE:

27, 29 & 30 September 2016 & 7 October 2016

JUDGE:

Morzone QC DCJ

ORDER:

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

CATCHWORDS:

PLANNING AND ENVIRONMENT – Appeal against approval of major commercial development including a “full-line” supermarket; specialty shops, including retail warehouse (discount chemist); family tavern; medical centre; service station; and parking – retail/commercial component of the appeal - 5.4 km of the major centre – Partly in the Medium Density Residential Zone, Urban Residential Zone, Open Space Zone and the Community Purposes Zone - Designated as partly Medium Density Residential Housing, partly Urban Residential Housing and partly Greenspace Network.

OUT OF CENTRE DEVELOPMENT – Conflict with the scheme – at serious end of spectrum - provision of the necessities of life (food and groceries) - whether unacceptable adverse impacts on the centre network and centres hierarchy.

GROUNDS –- whether the proposal will meet an existing community, economic and planning need - whether the scheme provisions “overtaken by events” - whether sufficient grounds to approve the application despite the conflicts.

Legislation

Acts Interpretation Act 1954, s 14A.

Redlands Planning Scheme 2006.

Sustainable Planning Act 2009 (Qld), ss 242, 314, 316, 324, 326, 329, 462, 493, 495.

Cases

Abacus Funds Management v. Sunshine Coast Regional Council [2012] QPELR 669.

Aldi Stores (A Limited Partnership) v Redland City Council [2009] QPELR 602.

All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155.

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

Bird v Logan City Council [2012] QPELR 502.

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

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

Degee v Brisbane City Council [1998] QPELR 287.

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

Elfband Pty Ltd and Vanhoff Pty Ltd v Maaroochy Shire Council [1995] QPLR 290.

Fabcot Pty Ltd v Cairns Regional Council [2013] QPEC 38

Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208.

Friend v Brisbane City Council [2014] QPELR 24.

Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435.

Grosser v Gold Coast City Council [2001] 117 LGERA 153.

Handley v Brisbane City Council [2005] QPELR 80.

Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313.

Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] 1 QdR 372.

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

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

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

Kangaroo Point Residents Association Inc v Brisbane City Council [2015] QPELR 230.

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

Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council [2003] QPELR 385.

Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266.

Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302.

Luke v Maroochy Shire Council [2003] QPELR 447.

Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPELR 661.

Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333.

Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368.

Overton v. Redcliffe City Council [2000] QPELR 250.

Parmac Investments v. Brisbane City Council [2008] QPELR 480.

Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143.

R v Brisbane City Council ex parte Read [1986] 2 Qd R 22.

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

Scurr v Brisbane City Council (1973) 133 CLR 242.

Sellars Holdings Pty Ltd v Pine River Shire Council [1988] QPELR 12.

SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36.

Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85.

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

Stappen Pty Ltd v. Brisbane City Council [2005] QPELR 466.

Virdian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council [2013] QPEC 54.

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

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

Wheldon & Armview Pty Ltd v Logan City Council [2015] QPELR 640

Wilispap Pty Ltd v. Mulgrave Shire Council [1992] QPLR 51.

Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 Qd R 273.

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

Zappala Family Co v Brisbane City Council [2014] 201 LGERA 82. 

ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352.

COUNSEL:

C Hughes QC and N Kefford for the Appellant

KW Wylie for the Respondent

D R Gore QC and J G  Lyons for the Co-Respondent

SOLICITORS:

McCullough Robertson solicitors for the Appellant

Redland City Council for the Respondent

Anderson Lawyers for the Co-Respondent

  1. [1]
    The co-respondent developer seeks to uphold the respondent Council’s decision to approve an application for a development permit to reconfigure a lot (1 into 2), and a preliminary approval for material change of use for a mixed use development, including a shopping centre on the corner of Panorama Drive and Boundary Road in Thornlands.
  1. [2]
    The appellants, who submitted against the application, own and operate three nearby shopping centres, which provide retail, commercial and entertainment facilities in a major centre within the hierarchy of centres located about 3.8km from the land. 
  1. [3]
    The Council defends its decision.

Proposed development

  1. [4]
    The development application was made under the Sustainable Planning Act 2009 (Qld) (“SPA”) in August 2014 when the Redlands Planning Scheme 2006 (“2006 scheme”) was in force.  The draft Redlands City Plan 2015 (‘draft scheme’) was publicly exhibited by the time the Council approved the application on 18 November 2015.[1]
  1. [5]
    The development application seeks:
  1. a development permit to reconfigure a lot (1 lot into 2 lot subdivision); and
  2. a preliminary approval pursuant to s 242 of SPA for a mixed use development that incorporates both residential and centre uses as well as a large green space precinct.
  1. [6]
    The focus of the appeal was on the retail/commercial component of the appeal, as encapsulated by the expert town planners who agreed:[2]

“The application involves a number of elements, being the proposed retail/commercial centre, the residential component and the reconfiguration component.  We agree that there is no issue with the residential component, and we agree that the reconfiguration component is an ordinary consequence of the Preliminary Approval, such that if the appeals were upheld, the reconfiguration component falls away.  In essence, it is the retail/commercial component of the application that is of concern in these appeals.”

  1. [7]
    The “retail/commercial” component is intended to comprise:[3]
  1. (a)
    a 4,100m2 “full-line” supermarket (proposed as 3,840m2 in an agreement to lease with Coles[4]);
  2. (b)
    1,600m2 of specialty shops, including a 500m2 retail warehouse (discount chemist);
  3. (c)
    a 850m2 family tavern;[5]
  4. (d)
    a 225m2 medical centre;
  5. (e)
    a 100m2 service station; and
  6. (f)
    parking for 374 vehicles.
  1. [8]
    The proposed Paradise Gardens Plan of Development shows the various precincts of the proposed development and its layout (subject of evolving commercial negotiations with Coles).[6]  The components of the proposed precincts are:[7]

Proposed zone/precincts

Approximate area (ha)

Percentage of site area

Proposed components

Neighbourhood Centre

2.4

38

Supermarket and specialty shops comprising 5,700m2 retail and associated uses totalling 1,175m2 (tavern, service station and medical centre).  Total floor space of 6,875m2.

Medium Density Residential Housing – 3b Boundary Road and Panorama Drive

1.4

23

A mixture of 35 (approx.) two-storey, attached and semi-detached terraces, townhouses and duplexes on small lots.

Urban Residential Housing – 4b Panorama Drive

0.2

3

Larger lots along the northeast boundary.

Greenspace – 7e Eastern Wetlands Corridor

1.4

22

Rehabilitated watercourse, detention basin, retained vegetation, market garden, outdoor cafe, “common”, northern boundary buffer.  The irrigation dam would be drained

Access Road

0.85

14

Collector Road.  To be a public road.

TOTAL

6.25

100

  1. [9]
    In effect the proposed centre development will require code assessable development applications to the council, and may be refused or approved subject to conditions necessary to mitigate any potential impacts. Of particular relevance in this case are:
  1. (a)
    a “hotel” use is code assessable if in the Neighbourhood Centre precinct and 850m2 or less (otherwise it is impact assessable);[8]
  2. (b)
    a “shop” is in certain circumstances self-assessable, code assessable (if less than 5,700m2 and in the Neighbourhood Centre precinct) and otherwise impact assessable;[9] and
  3. (c)
    a “service station” is code assessable in the Neighbourhood Centre precinct (otherwise impact assessable).[10]
  1. [10]
    The applicant seeks to vary the 2006 scheme by altering the levels of assessment for development within the various precincts, and specifying the assessment criteria for such development.[11] 

Land

  1. [11]
    The land subject of the proposal has an area of 6.254 hectares. It is located at 128-144 Boundary Road, Thornlands, on the north-western corner of Panorama Drive and Boundary Road, and is described as Lot 3 on SP 117065.[12] 
  1. [12]
    The land is situated at the junction of two major roads, namely Boundary Road (a four lane divided State controlled road) and Panorama Drive (with two to four lanes). These roads are facilitate bus routes 270, 273, 274, 276, 279, 280, 281 and N250, and bus stops outside the land.
  1. [13]
    The land is currently used for a market garden.[13]  Nostalgically, the proposal includes a market garden and café in acknowledgment of the history of the land.[14] 
  1. [14]
    The surrounding land uses comprise:[15]
  1. (a)
    To the north - Established low density residential development with blocks vary from 1800m2 to 4,000m2 accessed by Milner Place. 
  2. (b)
    To the east - Panorama Drive and low density residential subdivisions in the Park Residential Zone and Low Density Residential Zone. 
  3. (c)
    To the south - Boundary Road, larger rural residential blocks zoned Rural and Sheldon College.  Designated as an Integrated Employment Area under the 2006 scheme and as a Future Urban Growth Investigation Area under the draft scheme.  It is also within the Rural Landscape and Regional Production Area under the South East Queensland Regional Plan 2009-2031.[16] 
  4. (d)
    To the west - Land zoned for urban development under the Kinross Road Structure Plan.  Current flower production occurs in greenhouses immediately to the west.  Opportunity for future westerly connection with the development of sites adjoining the Nerinda site.
  1. [15]
    The land is about 3.8 km west of the Victoria Point Major Centre, which includes:[17]

Centre Name

Estimated lettable area (m2)

Major tenants

Total Shops (No.)

Vacancies as at May 2016

Shops (No.)

Area (m2)

Vacancy rate (%)

Victoria Point Shopping Centre

26,936

Kmart, Coles, Woolworths

110

10

1,042

3.9

Towncentre Victoria Point

26,080

Bunnings, Woolworths

36

2

534

2.0

Victoria Point Lakeside

25,000

Cineplex Cinemas, Aldi, Lincraft

85

12

1,312

6.6

  1. [16]
    The land is 5.4 km south of the Cleveland Town Centre; and, more broadly, 25km east of the Brisbane central business district.

Planning Treatment

  1. [17]
    The 2006 scheme was in force at the date the development application was made to the Council.  Under the provisions of the scheme, the land is:
  1. (a)
    Partly in the Medium Density Residential Zone – Sub Area MDR5; partly in the Urban Residential Zone – Sub Area UR1; and partly in the Open Space Zone and the Community Purposes Zone – Sub Area CP7 (road);[18] and
  2. (b)
    Designated under the Kinross Road Structure Plan as partly Medium Density Residential Housing, partly Urban Residential Housing and partly Greenspace Network.[19]
  1. [18]
    Part of the land, at the corner of Panorama Drive and Boundary Road, has the benefit of a development approval (subject to conditions) dated 3 April 2013 for a commercial centre of 1,000 m2 gross floor area.[20] 
  1. [19]
    The draft scheme was publicly exhibited between 20 September 2015 and November 2015,[21] being a year after the Council issued the acknowledgement notice for the development application on 29 September 2014.  The Council approved the proposed development on 18 November 2015.[22]  The draft scheme has not yet commenced and the likely commencement date is unknown.    The draft scheme effectively replicates the current zoning pattern of the Kinross Road area with the land zoned a mixture of medium density residential, low-medium density residential, and open space.[23] 
  1. [20]
    It seems to me that the draft scheme ought be afforded due weight. 

Legal framework

  1. [21]
    The appeals were commenced pursuant to s 462 of SPA.
  1. [22]
    The appeals are by way of a hearing anew.[24]  The court must assess the development permit component of the application in accordance with ss 314 of SPA and decide the application in accordance with ss 324 and 326 of SPA.  For the preliminary approval component under s 242, the assessment must be in accordance with ss 314 and 316 of SPA, and the decision must accord with ss. 323, 327 and 329 of SPA
  1. [23]
    Pursuant to s 495(2)(a) of SPA the appeal must be decided based on the laws and policies in force on the date the application was made in August 2014, although weight may be given any new laws and policies that the court considers appropriate.[25]  The 2006 scheme was in force when the application was made and is applicable to the assessment.  The draft scheme was publicly notified before the appellant’s development application was approved. 
  1. [24]
    Pursuant to s 314(3)(b) of SPA, the court must also assess the development application having regard to development approvals for the land,[26] here being the current development permit for a shopping centre with a GFA of over 1,000m2.[27]  The land has, since the commencement of the 2006 scheme on 30 March 2006,[28] been identified for centre uses either by way of zoning or development approvals except for 14 months.[29]
  1. [25]
    Pursuant to ss 326 and 329 of SPA the decision must not conflict with the planning scheme unless there are “sufficient grounds” to justify that decision despite the conflict.  The word “Grounds” is defined in Schedule 3 of SPA in respect of s. 326(1) as:

“1. Grounds means matters of public interest.

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

  1. [26]
    In Weightman v Gold Coast City Council,[30] in considering a similar requirement to s 326 of SPA in the repealed Local Government (Planning and Environment) Act 1990, Atkinson J observed:

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

  1. examine the nature and extent of the conflict;
  2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
  3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
  1. [27]
    The co-respondent bears the onus of establishing that the appeal should be dismissed.[31]

Appeal Issues

  1. [28]
    The appellants have identified the issues in their various notices of appeal, including issues of: general amenity, acoustic and lighting;[32] landscaping treatment;[33] ecology including koala issues;[34] traffic[35] including traffic safety;[36] town planning;[37] and need.[38] 
  1. [29]
    The issues about landscaping and acoustic treatment along Boundary Road and Panorama Drive frontages, amenity, impact on local koala populations, and traffic, are no longer pressing many of these issues as grounds warranting refusal. The appellants properly acknowledge that these issues are not enough to warrant refusal.[39]
  1. [30]
    No issue is taken with the proposed residential component and reconfiguration of a lot, but the retail/commercial component is disputed, with particular focus on the proposed full-line supermarket based centre with associated retail and tavern uses.[40] 
  1. [31]
    The disputed issues can be synthesised as follows:
  1. (a)
    The nature and extent of the conflict with the 2006 Scheme including:
  1. (i)
    Desired Environmental Outcomes;
  2. (ii)
    The Strategic Framework;
  3. (iii)
    The Kinross Road Structure Plan;
  4. (iv)
    The zones including Neighbourhood Centre Zone, Medium Density Zone, Open Space Zone, Urban Residential Zone and the Community Purposes Zone.
  1. (b)
    The nature and extent of the conflict with the draft scheme;
  1. (c)
    The nature and extent of the conflict with the South East Queensland Regional Plan 2009-2031 (“SEQRP”);
  1. (d)
    Whether there are sufficient grounds to justify the approval despite the conflicts having regard to:
  1. (i)
    The need for the development;
  1. (ii)
    Commercial, traffic and amenity impacts of the development;
  1. (iii)
    Whether the 2006 scheme has been overtaken by events.
  1. [32]
    The broad planning issues are whether the proposed centre is too big and in the wrong place, having regard to the network and hierarchy of centres, and whether there are sound planning reasons to depart from the planned network of centres in the 2006 scheme.[41]

Nature and extent of conflict with the planning scheme

  1. [33]
    It is necessary to identify any conflict between an approval and with the planning scheme, and if so, consider the nature and extent of the conflict taking a sensible approach and regarding the scheme as a whole.
  1. [34]
    Any conflict must be “plainly identified”.[42]  The term “conflict” was considered by the Court of Appeal in Woolworths Ltd v Maryborough CC (No. 2),[43] where Fryberg J said:

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

  1. [35]
    In Lockyer Valley Regional Council v Westlink Pty Ltd,[44] the Court of Appeal discussed and affirmed the Weightman test.  Later, in Kangaroo Point Residents Association Inc v Brisbane City Council,[45] the Court held at [69]-[70]:

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

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

  1. [36]
    In considering the principles relevant to the construction of planning schemes, the matters enunciated by Britton SC DCJ in Westfield Management Ltd v Pine Rivers Shire Council [2009] QPELR 337 remain apposite:
  1. (a)
    They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach;[46]
  2. (b)
    They should be construed as a whole;[47]
  3. (c)
    They should be construed in a way which best achieves their apparent purpose and objects;[48]
  4. (d)
    In the light of the proscription against prohibiting development;[49]
  5. (e)
    Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate;[50]

  6. (f)
    A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved;[51]

  7. (g)
    A Strategic Plan should be read broadly and not pedantically;[52]

  8. (h)
    Although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;

  9. (i)
    A conflict alone may not have the effect of ruling out a particular proposal.[53]

2006 Scheme

  1. [37]
    The 2006 scheme took effect from 20 March 2006. Section 3.1.1 provides, rather unusually, that the “effective life” of the scheme is a “period of 8 years from the date of commencement”.[54]  That is, March 2014, but of course it remains in force until repealed when a new scheme is in force.
  1. [38]
    The 2006 scheme is divided into 12 parts. Of particular relevance are the higher order provisions in Part 3, including the Desired Environmental Outcomes and Strategic Framework, and also Part 4 containing the zones.

Desired Environmental Outcomes

  1. [39]
    DEO no. 6 which relates to economic development and relevantly provides:[55]

“(1) Redland Shire has a diverse, dynamic and sustainable economy with increasing levels of employment opportunity through -

(a)  a network of multi-purpose centres where -

(i)  development occurs in accordance with Redland Shire’s Centre network, where,

  1. Capalaba and Cleveland are recognised as Principal Activity Centres under the South East Queensland Regional Plan, and together with Victoria Point are located within the Major Centre zone to accommodate the key concentrations of higher order retail, commercial, residential, administrative, community and entertainment uses and employment mix;
  2. Birkdale and Alexandra Hills are district centres;
  3. Wellington Point, Redland Bay, Mount Cotton Village, Dunwich and Colburn Avenue, Victoria Point are neighbourhood centres.

…

(iii)  the City centres are geographically defined by the extent of the Centre zones in the case of District, Neighbourhood and Local Centres and Diagram 12 Capalaba Principal Activity Centre, Diagram 13 Cleveland Principal Activity Centre and Diagram 14 Victoria Point Major Centre.

(iv) the primacy of the City’s centres network shall be protected by discouraging out of centre development outside of the centre areas identified in (i) above.  …”

  1. [40]
    A “Centre” is defined to mean “the City Centres geographically defined by the extent of the Centre Zones in the case of District, Neighbourhood, Local, Point Lookout and SMBI Centres and Diagram 12 Capalaba Principal Activity Centre.  Diagram 12 Cleveland Principal Activity Centre and Diagram, 14 Victoria Point Major Centre as depicted in Part 3: Division 2 Strategic Framework of the Redlands Planning Scheme.”[56]
  1. [41]
    In DEO 6 the “Redland City’s Centre network” prescribes for differing levels of centres, including Major, District, Neighbourhood and Local centres. Here, the co-respondent characterises the proposed centre as a “Neighbourhood Centre” with a total floor space of 6,875m2, comprising a full-line supermarket and specialty shops comprising 5,700m2 retail and associated uses totalling 1,175m2 (tavern, service station and medical centre). 
  1. [42]
    In s 4.15.7(2) of the Overall Outcomes for Neighbourhood Centre Zone Code, the characteristics of the Neighbourhood Centre includes:
  1. (a)
    Centre uses to service residential and tourist catchments up to 5000 people in sub-area NC1 and 10,000 people for other areas in the zone;
  2. (b)
    Meet community needs to serve neighbourhood catchments;
  3. (c)
    Limited size and scale of retailing activities, proportionate to catchment zone;
  4. (d)
    Includes mini supermarket, speciality stores, refreshment establishments, limited commercial activities and limited community services.
  1. [43]
    By comparison, a District Centre (which sits between a Neighbourhood Centre and a Major Centre servicing catchments greater 50,000 people), according to s 4.4.7(2) Overall Outcomes for Distirct Centre Zone Code, has characteristics to provide for a range of uses that (among other things):
  1. (a)
    Meet demonstrated community needs to serve a district sized catchment;
  2. (b)
    Includes supermarket, specialty stores, commercial activities and community services.
  1. [44]
    More like a District Centre, the proposal seeks to develop the largest Coles full-line supermarket, and the second largest full-line supermarket, in the Redland City local government area.  It will be smaller than the Woolworths at Capalaba Central,[57] which is part of a Principal Regional Activity Centre under the South East Queensland Regional Plan 2009-2031 and is designated as a Major Centre in the 2006 scheme.
  1. [45]
    The term “Out of centre development” is defined in the 2006 scheme as ‘A location that is clearly separate from a centre’, with the notation that ‘land is zoned with the word “centre” in the title is a centre for the purposes of the planning scheme.[58]  The subject land is not included within any geographically defined centre zones and can only be characterised as out of centre development. 
  1. [46]
    The appellant argues that the proposed development conflicts with DEO 6, because the proposed development does not protect the City’s centres network in the manner required in that it involves out of centre development; and retail development of a size and function not supported in the locality.
  1. [47]
    Whilst, the co-respondent accepts that the proposed development would represent out of centre development, it argues that the proposed development does not affect the “primacy” of the centres network, as the centres referred to in the DEO will retain their role and function as higher order centres, regardless of whether the Court grants the approval the subject of this appeal.  Further, it points to the term -“discouraging”, (in relation to out of centre development in DEO 6 (iv)) as not the strongest possible language, the stated 8 year “effective life” of the scheme, council’s earlier approvals of out of centre development, and approvals of large centres for existing centres.
  1. [48]
    Even so, it seems to me that the conflict with the 2006 scheme is plain and significant since the proposed centre is not contemplated by the scheme in it’s location, scale or function, and is ‘out of centre development’. In my view, the proposed development would:
  1. Result in an additional centre inconsistent with the 2006 scheme’s planned centre network;[59] and
  2. Impact upon the City’s planned centre-driven economic and employment opportunities at Cleveland and Victoria Point.[60]

Strategic Framework

  1. [49]
    The appellants also assert conflict with provisions of the strategic framework, particularly, ss. 3.2.3 and 3.2.4(5), and diagrams 2 & 3.[61]
  1. [50]
    Section 3.2.3 of the Strategic Framework, which relevantly states (using the appellant’s bolding):

“3.2.3  Strategies for the City

(1) Urban Settlement Pattern and Population Growth -

(k) The development of centres is in accordance with a functional network, with the major centres at Capalaba, Cleveland and Victoria Point.  These areas will accommodate the primary concentrations of higher order commercial, retail, administrative, community and entertainment facilities.  Both Capalaba and Cleveland are recognised in the Regional Plan as Principal Activity Centres which service catchments of sub regional significance and accommodate key concentrations of employment.

…

(3) Centres -

(a) The Redlands Planning Scheme encourages the development of centres in accordance with a functional network, with individual centres of varying level differentiated from one another on the basis of a centres matrix that distinguishes centre role and function, scale and use composition.  The geographical extent of each of the larger centres is defined by Diagram 12 Capalaba Principal Activity Centre, Diagram 13 Cleveland Principal Activity Centre and Diagram 14 Victoria Point Major Centre.  The extent of other smaller centres is determined solely by the extent of the relevant centre zoning(s) in that area.

…

(h) District centres at Birkdale, Alexandra Hills and Redland Bay provide for the commercial and retail needs of surrounding district catchment population of approximately 15,000 persons.  The extent of these District Centres are geographically defined on the zoning maps by the District Centre zone.

(i) Neighbourhood centres are located at Wellington Point, Redland Bay, Mount Cotton Village, Dunwich and Colburn Avenue – Victoria Point.  These centres are intended to fulfil a traditional village centre role.  They provide for neighbourhood commercial and retail needs of a catchment population generally up to 7,500 persons, except Mount Cotton Village and Colburn Avenue – Victoria Point where the catchment size is reduced to reflect location circumstances.  Retail and commercial activity within these centres is to encompass mini-markets, specialty shops, and limited commercial premises.  Full-line supermarkets are inconsistent with the intended role and function of these centres and accordingly are not considered appropriate.  The extent of Neighbourhood Centres are geographically defined on the zoning maps by the Neighbourhood Centre zone.

(j) All remaining centres in the City are local centres.  Local centres are encouraged to develop in locations zoned for such purposes.

(k) The Redlands Planning Scheme actively protects the primacy of the City’s centres by discouraging out of centre development – that is, development outside of the geographical extents of the larger centres as shown in Diagrams 12-14 and the extent of the centre zonings in other centres – and ensuring no existing centre expands to the next level in the centre’s matrix by virtue of size or function.”

  1. [51]
    Section 3.2.4(5)(b), with respect to the Kinross Road Structure Plan Area[62] provides as follows (using the appellant’s bolding):

“3.2.4 Local Level Strategies applying to certain parts of the City

(5) Kinross Road Structure Plan Area

(b) Overall development intent and vision statement

(i) Vision for the Kinross Road Structure Plan Area – “The Kinross Road Structure Plan Area is a sustainable, integrated and well planned urban community accommodating a range of dwelling types, integrated movement and public open space networks and a range of local community, commercial and retail facilities.  The Kinross Road Structure Plan Area has a distinct sense of place and community built upon a strong respect for the natural environment including Hilliards Creek, flood affected areas, bushland habitats and fauna movement corridors.

The integration and land uses and transport infrastructure ensures the community enjoys a range of travel choices including pedestrian and cycle networks, public transport and private vehicles.  Internal linkages ensure good access to the Mixed Use Local Centre Precinct, Community Facilities Precinct and Greenspace Precinct.  External linkages ensure strong connectivity to higher order retail, employment and community facilities at Cleveland, Capalaba and Victoria Point.

…

Urban areas within the Kinross Road Structure Plan Area are attractive and functional neighbourhoods with convenient walkable access to public transport.  The Mixed Used Local Centre Precinct, in combination with the Community Facilities Precinct and local recreation park creates a community hub and focal point for the urban community.

Urban form in the Kinross Road Structure Plan Area is typified by a range of residential densities and building heights, with the greatest densities located in proximity to the Mixed Use Local Centre Precinct.  A diversity of dwelling types provides housing choice and improved affordability within a unique urban form that enjoys the amenity and values of the surrounding environment.

….

(e) Land Use Precincts Strategy – Mixed Use Local Centre Precinct (Precinct 1)

(i) The Mixed Use Local Centre Precinct will provide convenience shopping catering for the local resident’s day to day convenience needs, commercial employment opportunities and residential accommodation in a vibrant central hub of community activity.

(ii) Outcomes for the Mixed Use Local Centre Precinct include:

a. providing limited retail and commercial services to meet the convenience needs of surrounding residents;

b. providing for small scale commercial offices or service industry activities that encourage and support local employment opportunities while respecting and protecting the amenity of adjoining housing precincts;

c. exhibiting the basic characteristics of a transit orientated community by integrating land uses and public transport infrastructure;

d. providing, in association with the adjoining Community Facilities Precinct, local recreation park, pedestrian and cycle network and bus stop, a focal point for the urban community;

e. providing opportunity for medium density housing above the ground story;

f. ensuring the built form incorporates:

  • sustainable sub-tropical building design in a mid-rise form; and
  • active street frontages on the ground level.

g. ensuring site planning and building design addresses the Greenspace Precinct and facilitates connections to the adjoining local recreation park;

h. demonstrating principles of Water Sensitive Urban Design;

i. managing urban stormwater and wastewater quality and flows to protect receiving water quality and improve waterway stability through construction and operational phases to meet the design objective.

….

(g) Sub-Precinct 3a Medium Density Residential Housing – Kinross Road:

  • is designed to maximise views and outlook across the adjoining Greenspace Precinct;
  • supports an increased density of dwelling units in proximity to the Mixed Use Local Centre and Community Facilities precinct;
  • incorporates pedestrian and cycle pathways which provide convenient linkages to the Mixed Use Local Centre Precinct, Community Facilities Precinct, Greenspace Precinct and bus stops; and
  • supports development in a mid-rise (3 storeys) built form.

(h) Sub-Precinct 3b Medium Density Residential Housing – Boundary Road and Panorama Drive:

  • provides low-rise medium density residential development in close proximity to line haul bus services along Boundary Road and Panorama Drive;
  • provides physical breaks in the built form to facilitate convenient pedestrian access to the public transport services along Boundary Road and Panorama Drive;
  • incorporates acoustic treatments and building setbacks which mitigate noise impacts from Boundary Road and Panorama Drive;
  • ensures consistent acoustic treatments incorporate high quality landscaping design and façade treatments that are visually attractive to address acoustic requirements and provide a transition to the rural land to the south of Boundary Road included in the Regional Landscape and Rural Production Area of the SEQRP 2009-2031; and
  • limits development to a low-rise (1-2 storeys) built form”
  1. [52]
    The proposed development is inconsistent with the 2006 scheme’s Strategic Framework as identified by the appellant, in that:
  1. The development would result in an additional centre inconsistent with the Scheme’s planned centre network;[63]
  2. The development would potentially jeopardise the ability of higher order centres to function at the level intended by the centres hierarchy;[64]
  3. The development is inconsistent with the intention for the land to be utilised for medium density residential housing (sub-precinct 3b), urban residential housing (sub-precinct 4b) and green space network (sub-precinct 7(e));[65] and
  4. The development would jeopardise the ability for the planned local centre in the Kinross Road Structure Plan area to properly function.[66]
  1. [53]
    However, I accept the co-respondent’s argument that the 2006 scheme expressly and effectively excludes these Strategic Framework provisions from the assessment of the proposed development.  Section 3.2.1(2) of the 2006 scheme provides:[67]

“The Strategic Framework does not have a role in the development assessment under the Redlands Planning Scheme.”

  1. [54]
    In Viridian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council,[68] Robin QC DCJ considered a similar provision in circumstances where a council alleged conflict with the Strategic Framework.  His Honour said at [20]:

“The Council relies on 1.7.8 Visitor Facilities in the strategic framework which introduces the planning scheme.  It provides that ‘(a) Noosa Heads and Noosaville will remain the principal focus of visitor accommodation with some sites protected for the exclusive use of visitor accommodation.’  Telling against that provision constituting a relevant basis for a finding of conflict is 1.3.2:  ‘This division does not have a role in development assessment under the planning scheme.’  Conflict is something to be established with reasonable clarity, and in the circumstances I do not consider that it exists with either of the provisions set out above, although the Council sought to rely on it in that regard…”

  1. [55]
    I agree. Since the Court in a merits appeal “stands in the shoes”of the local government as the assessment manager,[69] I conclude that the appellants’ reliance upon conflict with the Strategic Framework provisions is rendered impotent by s 3.2.1(2) of the 2006 scheme.  I do rely upon any conflict in this regard.

The zones

  1. [56]
    The appellants also contend conflict with the zone provisions as follows:
  1. (a)
    overall outcomes for the Community Purposes Zone, particularly ss 4.2.7(2)(a)(i)g. and 4.2.7(2)(a)(ii), and Specific Outcomes S1.1 and S1.2 for the Community Purposes Zone; and
  2. (b)
    overall outcomes for the Medium Density Residential Zone, particularly ss 4.14.7(2)(a)(i)i. and j., and overall outcomes for the Kinross Road Structure Plan Area Overlay, particularly ss 5.15.8(2)(b)(i)k.
  1. [57]
    The Overall Outcomes for Medium Density Residential Zone Code, include (using the appellant’s bolding):
  1. (i)
    Section 4.14.7(2)(a)(i) i and j:[70]

“Provide for a range of residential uses that -

…

  1. in sub area MRD5 – provide for permanent residential uses including multiple dwellings, tourist accommodation and aged and special needs housing with no direct vehicular access from Boundary Road.
  2. in sub area MDR5 – non residential uses are highly restricted to protect the higher order function of Boundary Road as a primary road link between the City’s southern districts and Brisbane.”
  1. (ii)
    Section 4.14.7(2)(a)(ii):[71]

“Provide for a range of non-residential uses that -

  1. fulfill a local community need and provide opportunities for social interaction and activity;
  2. are highly accessible to the residents served;
  3. do not compromise the role and function of centres;
  4. are not large land consumers that by their scale and nature will diminish the quantity of land within this zone;
  5. are located on the major road network rather than local residential streets;
  6. do not result in commercial ribbon development; …”
  1. [58]
    The Overall Outcomes for the Major Centre Zone Code, includes s 4.12.7(3)(a)(v) (again using the appellants’ bolding):[72]

“Sub-areas MC9, MC10, MC11 and MC12 comprise the Victoria Point Major Centre which provides for a range of uses that –

…

  1. serves a catchment of less than 50 000 people;
  2. include one (1) discount department store, supermarkets, specialty stores and commercial activities;

…

  1. provide entertainment facilities such as cinemas, nightclubs, restaurants and other like activities;
  2. incorporates a public transport interchange;
  3. has high accessibility by private transport with driving time of less than 15 minutes to the majority of its catchment and provides higher order services to the Southern Moreton Bay Islands; …”
  1. [59]
    The Overall Outcomes for the District Centre Zone Code, relevantly states in s 4.4.7(2)(a)(i) (with the appellants’ bolding):[73]

Provides for a range of uses that –

  1. enhance and protect the primacy, vitality and vibrancy of the City’s network of centres;
  2. meet demonstrated community needs to serve a district sized catchment;
  3. includes supermarkets, specialty stores, commercial activities and community services;
  4. provides employment opportunities;
  5. provides focus for community interaction and activity;
  6. are located near schools, parkland and community facilities to form part of a district community node and support the function of retail and commercial activities to be located in the district centre zone;
  7. are conveniently accessible to the district catchment area they serve by private vehicle, public transport and pedestrian and cycle routes;
  8. in sub-area DC1 – are predominantly for residential and tourism accommodation uses where part of a mixed use development;
  9. in sub-area DC2 – provide opportunity for the redevelopment or expansion of existing hotel.
  1. [60]
    The Overall Outcomes for the Neighbourhood Centre Zone Code, includes in s 4.15.7(2)(a)(ii) (with the appellants’ bolding):[74]

Provides for a range of centre uses that –

  1. enhance and protect the primacy, vitality and vibrancy of the City’s network of centres;
  2. fulfil a traditional village centre role;
  3. meet community needs to serve neighbourhood catchments;
  4. limit the size and scale of retailing activities, proportionate to catchment size;
  5. includes mini-supermarket, specialty stores, refreshment establishments, limited commercial activities and limited community services;
  6. provide for employment opportunities;
  7. are conveniently accessible by private vehicle, public transport and pedestrian and cycle routes to the neighbourhood they serve;
  8. in sub-area NC1 – provide local convenience shopping for the day to day needs of the local catchment.
    1. (c)
      the Overall Outcomes for the Local Centre Zone Code, includes s 4.10.7(2)(a)(i) (with the appellants’ bolding):[75]

Provides for a range of centre uses that –

  1. enhance and protect the primacy, vitality and vibrancy of the City’s network of centres;
  2. serve a local catchment;
  3. provide local convenience shopping for day to day needs;
  4. provide for local employment opportunities;
  5. provide a focus for local community interaction and activity;
  6. are located near schools, parkland and community facilities to form part of a local community node;
  7. are conveniently accessible to the catchment area they serve by private vehicles, public transport and pedestrian cycle routes.
  1. [61]
    As discussed above, the proposed development is more accurately characterised functioning more like a District Centre, or at least, a larger centre than a Neighbourhood Centre (so called by the co-respondent).
  1. [62]
    It seems to me that the proposed development conflicts with the zone provisions as contended by the appellants. It involves uses that are inconsistent with the zone and use of the planned road. The proposed road connection in an alternative location will also affect the adjacent land because it does not align with the land that is zoned road on the land to the immediate west. Further, the proposed development involves direct vehicular access from Boundary Road.
  1. [63]
    In any event, the Kinross Road Structure Plan overlay code provides that it prevails over any other provisions within the 2006 scheme to the extent of any inconsistency.[76]  As to the zoning of the road shown in the Kinross Road Structure Plan, it is true that a reconfiguration will cause a change of the level of assessment under the 2006 scheme,[77] however, this is dissipated by the draft scheme which does not identify or zone roads differently to the rest of the parcel.[78]  Further, the road network for the Kinross Road Area is shown more indicatively.[79]

Kinross Road Structure Plan

  1. [64]
    The land is within the Kinross Road Structure Plan Area. The provisions of the structure plan overlay code prevail over any other provisions within the 2006 scheme to the extent of any inconsistency.[80]
  1. [65]
    The structure plan area comprises 7 precincts: mixed used local centre precinct (precinct 1); community facilities precinct (precinct 2); medium density residential housing precinct (precinct 3); urban residential housing precinct (precinct 4); low density residential housing precinct (precinct 5); bushland living precinct (precinct 6); and green space precinct (precinct 7).[81]  There are also sub-precincts within some precincts.
  1. [66]
    The Kinross Road Structure Plan Area is subject to the Kinross Road Structure Plan overlay code. Map 1 of that overlay code shows the precincts and sub-precincts.[82]  It contains overall outcomes which are the purpose of the code,[83] and specific outcomes that contribute to achieving the overall outcomes.[84]  Development that is consistent with the specific outcomes will comply with the Kinross Road Structure Plan overlay code.[85]
  1. [67]
    Section 5.15.8(2)(a)(ii) of the Kinross Road Structure Plan Overlay, relevantly provides:[86]

“Uses and other development reinforce the specific development intent for each Land Use Precinct, depicted on Map 1 – Kinross Road Structure Plan Area – Land Use Precincts, as follows –

a. Mixed Use Local Centre Precinct – (Precinct 1)

  • provides limited retail and commercial services to meet the convenience needs of surrounding residents;
  • provides for small scale commercial offices or service industry activities that encourage and support local employment opportunities while respecting and protecting the amenity of adjoining Housing Precincts;
  • exhibits the basic characteristics of a transit orientated development by integrating land uses and public transport infrastructure;
  • provides, in association with the adjoining Community Facilities Precinct, local recreation park, pedestrian and cycle network and bus stop, a focal point for the surrounding housing precincts;
  • provides opportunity for medium density housing above ground level;

c. Medium Density Residential Housing Precinct – (Precinct 3)

  • provides a range of housing types including apartment buildings, multiple dwellings, town houses, terraces, and aged care and special needs housing to meet the community’s diverse housing needs;
  • takes advantage of the views and amenity offered by the Greenspace Precinct ensuring development addresses and provides passive surveillance of public open spaces;
  • provides a higher density of dwelling units in proximity to the Mixed Use Local Centre Precinct and Community Facilities Precinct;
  • incorporates pedestrian and cycle pathways which provide convenient linkages to the Mixed Use Local Centre Precinct, Greenspace Precinct and bus stops;
  • Sub-Precinct 3a Medium Density Residential Housing – Kinross Road

⯈ ensures building design maximises views and outlook across the adjoining Greenspace Precinct;

⯈ provides for a higher density of dwelling units in proximity to the Mixed Use Local Centre and Community Facilities Precinct;

⯈ incorporates pedestrian and cycle pathways which provide convenient linkages to the Mixed Use Local Centre Precinct, Community Facilities Precinct, Greenspace Precinct and bus stops;

⯈ supports a mid-rise built form;

  • Sub-Precinct 3b Medium Density Residential Housing – Boundary Road and Panorama Drive

⯈ provides for low-rise medium density residential development in close proximity to line haul bus services along the public transport corridors on Boundary Road and Panorama Drive;;

⯈ provides physical breaks in the built form to facilitate convenient pedestrian access to the public transport services along Boundary Road and Panorama Drive; …”;

  1. [68]
    The appellants point to these provisions to demonstrate conflict with the overall outcomes for the Kinross Road Structure Plan Area Overlay, particularly ss 5.15.8(2)(a)(ii) a. and c. The appellants contrast, accurately in my view, the structure plan with the proposal. It seems to me that the proposal’s retail and commercial services exceed the convenience needs of surrounding residents; it will restrict the medium density residential housing planned near the intersection of Boundary Road and Panorama Drive in the south-east corner of the land; and the impact on the function and viability of the planned local centre.
  1. [69]
    The co-respondent accepts that the proposed development conflicts with the provisions of the Sstructure Pplan, in that it will use the land for centre uses instead of its designated use for housing uses; other land is designated in the structure plan to be used for centre uses; and it also provides a centre that is a larger in scale than that anticipated within the structure plan area.
  1. [70]
    The local centre contemplated under the structure plan was the subject of evidence, which the co-respondent relies upon to highlight some issues with the centre.[87] 
  1. [71]
    The co-respondent emphasised Mr McCracken’s testimony about the evolvement of the plan as follows:[88]

“And so you’re saying that the centre’s hierarchy is wrong.  That is that the council got it wrong – weren’t prepared to see this hierarchy?‑‑‑Well, my involvement in the Kinross Road structure plan in 2006 – a centre was envisaged there but so were access from Kinross Road through to Panorama Drive at Goddard Road and another crossroad, which I think is still shown in the cadastral maps, but they’re not to be built is my understanding.  Which would’ve opened that area up so that people to the – I mean even the people who live in Kinross Road structure plan now on the Panorama Drive cannot access that centre without having to – well, they can’t drive to it.

Mr McCracken, can you go to page 16 of exhibit 1?  Am I correct in saying that that shows a future road network that will be built as and when the urban areas, particularly those precincts 4A are built throughout the Kinross structure plan area?‑‑‑Yes.

Am I correct in saying that if once that road system is in place and once that area is developed the mixed-use local centre shown in blue in the centre will be indeed conveniently centrally located to all of that population in where they live?‑‑‑If the road through our site is – the subject site is built they would be able to – my point is, that when these centres were being talked about this Kinross Road area had – it wasn’t a cul-de-sac.  It had access through to – I think it was through Goddard Road and one other road which I’ll see a name for.  So I don’t know what happened after our input as part of the Parsons Brinckerhoff team that did the structure plan, but something went awry.  It seems they’ve lost – left a big local centre in there but with no way of accessing, even the part of the structure plan area that exists.”

  1. [72]
    It is also relevant that the Council has previously approved a centre on the subject land, which would have impacted the local centre. Further, at the time that Mr Fiteni entered into a call option to purchase 53-65 Kinross Road (which is now the subject of a centre designation), that parcel was not the subject of a centre designation and instead the subject land had the benefit of a centre designation[89]. 
  1. [73]
    Mr Ovenden, who was the planner called by the Council, accepted that it hasn’t got the planning “quite right”.[90]  Mr Norling emphasised that the designated centre was poorly located in respect of servicing the needs of the community.[91]  Indeed, Mr Zeller on behalf of Coles has explained that the designated location for retail is not a location of interest for Coles.[92]  In contrast, Mr Schomburgk posited that the structure plan provided for a local centre for residents to undertake a ‘top-up shop’ or for ‘day to day needs’, and they would undertake ‘chore’ shopping at the major centres at Cleveland to the north and Victoria point to the south.[93] 
  1. [74]
    The appellants have seized upon the provision in the structure plan overlay code that anticipates a centre with only “limited retail and commercial services to meet the convenience needs of the surrounding residents”.[94]
  1. [75]
    A similar provision was considered in Aldi Stores (A Limited Partnership) v Redland City Council,[95] where Wilson SC DCJ said:

“[39] It is accepted by both parties that although ALDI stores have a limited range of products, they sell a much larger range of goods than anticipated to meet a local community need. Council also argues that, due to the location of the proposed ALDI store vis a vis the existing Shopping Centre, as well as the positioning of its entry and exit points, social interaction or activity would not be promoted.

[40] The fact that paragraph (c) of Specific Outcome S1.3(1) (‘providing only for the identified convenience needs of the local community’) is not able to be met by this proposal has been properly conceded by Mr Schomburgk, ALDI’s town planning expert.  This concession is necessarily qualified by the observation that the Court has been commonly confronted with this type of problem, and accepted that the provision of services to a community wider than the local community is not necessarily a disqualifying factor.”

  1. [76]
    For the latter proposition, His Honour cited, amongst other cases, Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council,[96] wherein Rackemann DCJ emphasised that provisions within planning schemes which seek to limit retail uses to the needs of the local community “should be construed and applied in a practical rather than pedantic way”.  That approach to the construction of planning schemes has more recently been endorsed by the Court of Appeal in Zappala Family Co v Brisbane City Council.[97]  But in doing so, the court ought not usurp the role of the local authority.[98]    
  1. [77]
    Ascertaining the seriousness or nature of the conflict involves discerning from the verbiage of the 2006 scheme, the degree of importance it attaches to compliance with particular principles, requirements or Codes and, then, analysis of the particular proposal within that regime.[99]
  1. [78]
    It seems to me that the 2006 scheme provides for a detailed, prescriptive and purposeful planning strategy and centres hierarchy.  It plans for, and identifies the location and trade area for existing or planned major centres, district centres, neighbourhood centres, and smaller local centres, and each is galvanised by zoning.  The 2006 scheme establishes a hierarchy of centres, and expressly discourages out-of-centre development unless specifically intended in a zone or precinct.  The 2006 scheme facilitates local centre shopping, and access to a range of full-line supermarkets in designated major centres within a five to six minute drive both to the north and the south.
  1. [79]
    For the reasons set out above, I prefer the appellant’s arguments. The proposal plainly and seriously conflicts with the 2006 scheme as a consequence of the size and location of the retail components of the proposed development; non-compliance with the prescribed and mapped centres hierarchy, and the land use intents contained within the Scheme’s Kinross Road Structure Plan Area Overlay Code Overall Outcomes, and the inclusion of inconsistent uses in all of the prevailing zones, namely, the Medium Density Residential, Low Density Residential, Open Space and the Community Purpose Zones.
  1. [80]
    Despite the idealistic suitability of the proposed development on this land, it seems to me that the proposal conflicts with the Kinross Road Code, in that the development compromises Overall Outcome 5.15.8(2)(a)(ii), and the Structure Plan, in that:
  1. The development is inconsistent with that proposed for the land use precincts that apply to the site;[100]
  2. The only precinct type that deals with provision of retail and commercial services, being precinct 1 (noting that this does not apply to the land), envisages delivery of “limited retail and commercial services to meet the convenience needs of surrounding residents” from a centralised location within the structure plan area, whereas the proposed development will provide broader services to a larger catchment, and in a location different to that proposed in the structure plan;[101] and
  3. The proposed development would impact the ability for the planned local centre with adjoining community facilities in the Kinross Road Structure Plan area to properly function.[102]

Draft Scheme

  1. [81]
    The draft scheme is also relied upon by one appellant.[103]  The draft scheme was subject of public notification between September and November 2015, but is yet to commence.  The zoning maps for the draft scheme effectively replicate the current zoning pattern of the Kinross Road area with the subject land zoned a mixture of:[104]
  1. (a)
    medium density residential;
  2. (b)
    low-medium density residential; and
  3. (c)
    open space.
  1. [82]
    The draft scheme effectively replicates the current zoning pattern, and attracts the same issues as the 2006 scheme discussed above.  The only material difference is that “Neighbourhood Centres” will be called “Local Centre” to conform with Queensland Planning Provisions centre zone designations.
  1. [83]
    It seems to me that the draft scheme’s maintenance of full-line supermarkets in the centres hierarchy and centre zoning, after a whole scheme review, dilutes Council’s arguments and expert opinion of a planning deficiency to meet population growth in the Kinross Road Structure Plan area, and the broader Thornlands area.[105]  Whilst there is significant force in this argument and opinion, it is a matter for the Council to address perceived deficiencies in its scheme. 
  1. [84]
    At this point, the argument is not supported by the expression of intent in the draft scheme.

Nature and extent of the conflict with the South East Queensland Regional Plan

  1. [85]
    One appellant relies on the State perspective through the South East Queensland Regional Plan 2009-2031 (“SEQRP”) as strengthening the importance of the centres hierarchy and planned network of centres in the 2006 scheme, in particular, at page 31:[106]
  1. The SEQRP refers to the Kinross Road local development area to provide a residential community in combination with additional employment opportunities, together with local retail and commercial functions and community services;
  2. It notes the low self-containment levels of employment in Redland City and indicates that employment growth is to be focused within the planned network of multi-purpose activity centres;
  3. It records that Victoria Point is a major regional activity centre and notes that there are lower-order centres across Redland City that otherwise accommodate the remaining centre-based employment growth; and
  4. It notes that timely provision of transport infrastructure, including quality public transport infrastructure is essential to support Redland City’s expected population and employment growth and that plans to support such growth include ‘bus priority measures between Cleveland and Capalaba principal regional activity centres and Victoria Point’.
  1. [86]
    The SEQRP is in the nature of a higher order strategic planning document expressed in broad terms and ought be considered with that in mind.[107]  Mr Ovenden opined that the development is consistent with desired regional outcomes 3 and 8 of the SEQRP.[108]   On the contrary, Mr Schomburgk opined that the SEQRP was not supportive of out of centre development.[109]  It is also apparent that the SEQRP deals mainly with higher order centres, save that it includes the district centre of Victoria Point.
  1. [87]
    It seems to me that the nature and extent of the conflicts identified by the appellant, add little, if anything, to the issues raised about the 2006 Scheme (and draft scheme).  Even so, conflict with the SEQRP does not mandate refusal in the absence of sufficient grounds.[110] 

Sufficient Grounds

  1. [88]
    Against this analysis, it must be considered whether there are sufficient grounds to approve despite the conflicts and departure from the 2006 scheme (and the draft scheme).  Relevant grounds are matters of public interest, and do not include the personal circumstances of a party.[111]
  1. [89]
    In light of the nature and extent of the identified conflicts with the respective schemes, I think the co-respondent needs strong grounds to overcome the identified conflicts.
  1. [90]
    The co-respondent relies upon the following:[112]

“1. There is need for the proposed neighbourhood centre development on the site, because

  1. (a)
    the provision of additional neighbourhood level retail facilities in the Thornlands area is needed to service existing and future populations;
  2. (b)
    the proposed development will provide the growing trade area population with retail facilities that are not conveniently available within a reasonable proximity of the site;
  3. (c)
    the proposed development will provide a more geographically balanced distribution of retail and community services in the local government area;
  4. (d)
    there has been significant growth in dwellings and population in the southern Thornlands area, and the growth is predicted to continue in the future in such areas as Kinross Road and Woodlands Drive;
  5. (e)
    the proposed development will be convenient to the large volumes of vehicular traffic travelling east along Boundary Road;
  6. (f)
    the proposed development will be convenient to a major industry and healthcare employment precinct to its north;
  7. (g)
    the proposed development will involve a vibrant and accessible centre, which will provide a commercial and community focal point for the Kinross Road growth area;
  8. (h)
    the proposed development will provide choice and variety with the introduction of a full-line supermarket based centre, and will provide most trade area residents with access to a greater range and variety of convenient shopping options, and promote competition in a price and service;
  9. (i)
    the proposed development will provide a significant community benefit by providing healthcare services in a convenient location.
  1. There is need for the proposed residential development on the site, because:
  1. (a)
    there has been significant growth in population in the southern Thornlands area, and the growth is predicted to continue in the future;
  2. (b)
    the proposed development is a logical extension of;
    1. existing residential development on the northern boundary;
    2. future residential development to the west;
  3. (c)
    the site has been recognised by the respondent as being suitable for residential development;
  4. (d)
    the proposed development will add to the provision of choice in relation to available housing stock and will provide the community with residential development that is proximate to and within walking distance of shopping, health and community services.
  1. The proposed development will contribute to and promote transport network efficiency, because
  1. (a)
    it is at the intersection of two main roads (Boundary Road and Panorama Drive) which provide convenient and safe vehicular access to the site;
  2. (b)
    it will facilitate vehicular and pedestrian movements between Boundary Road and Panorama Drive by the inclusion of a link road;
  3. (c)
    it is centrally located to serve trade area residents, and will reduce vehicular trips, travel times and distances presently experienced in accessing retail centres more removed from the trade area of the proposal;
  4. (d)
    it will provide an east-to west road link through the site that will ultimately connect Panorama Drive to Kinross Road, as contemplated by the Kinross Road Structure Plan (including the signalisation of the intersection of that east-west link with Panorama Drive);
  5. (e)
    it is proximate to an existing and future local population and so will encourage pedestrian and cycle trips.
  1. The proposed development will result in yet further community benefits, because:
  1. (a)
    it will provide a hub for social and community interaction in a family friendly environment (with the proposed tavern also providing a family friendly leisure/entertainment venue);
  2. (b)
    it will enhance the potential for convenient, multi-purpose trips to a single location;
  3. (c)
    it will provide facilities that are complementary to the future land uses envisaged for the Kinross Road Structure Plan area;
  4. (d)
    it will contribute to the amenity of a growing residential area (including by the provision of a central community and recreational area along the waterway in the north western part of the site);
  5. (e)
    it will establish a neighbourhood centre that is likely to stimulate residential development in the Kinross Road Structure Plan area and to assist in achieving the residential outcomes envisaged for the area;
  6. (f)
    it will result in the rehabilitation of the dam in the north-western part of the site, the improvement and rehabilitation of onsite vegetation, and the provision of central community parkland;
  7. (g)
    it will result in the provision of a useable open space area in close proximity to the residential and neighbourhood centre uses (it being likely that the open space area would be used for walking, recreation, a market garden and other community uses);
  8. (h)
    it will promote interaction between the open space, residential and retail uses by the particular layout proposed;
  9. (i)
    it will require over 200 part-time and full-time employment positions.
  1. The proposed development is in the public interest, because:
  1. (a)
    it represents an efficient and appropriate use of the site to satisfy the need for retail facilities to serve a growing population;
  2. (b)
    it will complement Redland City’s existing and planned hierarchy of network of centres;
  3. (c)
    it can achieve the outcomes referred to in subparagraph 5(a) and (b) without threatening the viability of any existing supermarket or retail centre;
  4. (d)
    it remedies a deficiency in the centres hierarchy in the planning scheme (as it was not suitably updated to account for the Kinross Road Structure Plan Area being incorporated into the planning scheme);
  5. (e)
    it will satisfy a need in circumstances where there is no unacceptable impact on amenity, traffic movements or competing retail outlets;
  6. (f)
    of the matters referred to in paragraphs 1 to 4 (above) …..”
  1. [91]
    These grounds can be synthesised as follows:[113]
  1. The site is an excellent site, from all relevant perspectives, for the development of a full-line supermarket based centre of the size and the type proposed; 
  2. There is a strong community and economic need for the proposal, having regard to the location of the site with respect to its trade area, and significant growth in population that has occurred, and is likely to occur, in that trade area; 
  3. Part of the subject land has been earmarked for retail development since the commencement of the 2006 scheme (save for a period of c.14 months);
  4. The development of the proposal will not give rise to any adverse impacts, with respect to either amenity or centres hierarchy issues.
  1. [92]
    The Council supports approval of the development, notwithstanding conflict with the 2006 scheme (and the draft scheme) because:
  1. There is community, economic and planning need for the development the subject of the appeal;
  2. The 2006 scheme fails to adequately promote development necessary to enable Desirable Environmental Outcome No. 3(1)(f), in particular, provision of development of the type proposed to service the Scheme’s Kinross Road Structure Plan Area, as well as the broader southern Thornlands Area; and 
  3. The development would not result in negative impacts or detrimental effects, including such impacts or effects on the existing and planned hierarchy of multi-purpose retail district and neighbourhood centres.[114]
  1. [93]
    I first turn to consider the weight that ought be afforded Council’s previous departures from the planning scheme and it’s approval here.

Weight of Council’s previous departures

  1. [94]
    The co-respondent also relies upon the Council’s own departure from the Centres hierarchy, and the decision to approve the application.
  1. [95]
    In Grosser v Gold Coast City Council,[115] White J (with whom the others agreed) said:

“44 It is well recognised that a town planning appeal court may depart from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remained invalid, Beck v Atherton Shire Council [1991] QPLR 56 at 59, quoted with approval by Newton DCJ in Pacific Exchange Corporation Pty Ltd v Gold Coast City Council [1998] QPELR 335 at 339 and following. …”  

  1. [96]
    It seems that the Council has in appropriate cases departed from the planning intent in the 2006 scheme by:
  1. (a)
    previously approving centre uses on the subject land, contrary to the structure plan designations and zoning designations that apply to the subject land;[116]
  2. (b)
    approving a full-line supermarket at the Neighbourhood Centre in Mt Cotton,[117] in circumstances where the strategic framework does not encourage full-line supermarkets within a Neighbourhood Centre;[118] and
  3. (c)
    approving the “Shoreline” preliminary approval which includes a district centre on land not identified in the centres hierarchy.[119]
  1. [97]
    These do not provide some licence to ignore a planning scheme, but rather, each application must be considered on its merits and in the public interest. It is also not appropriate that this court conduct a meritorious review of past decisions. There is no suggestion that these previous decisions were other than appropriate based on the merits of the case and in the public interest, nor is there any suggestion of invalidity of the scheme provisions.
  1. [98]
    Beyond a mere preparedness to allow applications commensurate with the times, it seems to me that Council’s previous decisions are of little assistance. This case ought be determined on its own merits and in the public interest.

Weight of the Council’s decision

  1. [99]
    Here, the Council has decided to approve the proposed development, and maintain its position in this appeal, despite the conflicts with the scheme. In these circumstances it is permissible for the Court to place weight on the Council’s approval in forming its own view of whether the application ought to be approved.[120]
  1. [100]
    In Kangaroo Point Residents Association Inc v Brisbane City Council,[121] Dorney QC DCJ referred to the various earlier decisions, and said:

“[100] In Scurr v Brisbane City Council[122] Stephen J, with whom Barwick CJ, McTiernan, Menzies and Gibbs JJ agreed, outlined the principle that a decision on a planning issue was one to which the court ‘would no doubt ordinarily wish to pay some regard as to the expression of the views of the responsible planning authority’: at CLR 257; ALR 431.

[101]  In this court in Wingate Properties Pty Ltd v Brisbane City Council[123] Brabazon QC DCJ identified the Scurr principle as permitting ‘weight’ to be placed ‘on an approval by a local authority, as that represents an expression of the views of the response of the planning authority’: at [22].  Earlier, in R v Brisbane City Council; Ex parte Read,[124] in the then Full Court, McPherson J (as he then was) remarked that the principle did give rise to a consideration of the weight to be attached to the relevant council decision: at Qd R 28; LGRA 9.

[102]  More recently, local first instance decisions applying the principle were made by Robin QC DCJ and Robertson DCJ in Mackay Shopping Centres Pty Ltd v Mackay Regional Council[125] and Friend v Brisbane City Council,[126] respectively.

[103]  Nevertheless, as remarked by Robin QC DCJ in Mackay Shopping Centre, what counts, in the end, is the persuasiveness of the council’s case, from the standpoint of assisting the developer to satisfy the onus the developer bears: at [44].

[104]  It should be noted that the Brisbane City Council, as the ‘responsible planning authority’, has made submissions which are distinctly harmonious with those made by Metro.  That regard is recognised.”

  1. [101]
    In Mackay Shopping Centre Pty Ltd v Mackay Regional Council,[127] Robin QC DCJ said (excluding references):

“[44] Although this appeal is a rehearing, in which the co-respondent must establish before the court a case for approval of its proposal (that is that the appeal should be dismissed), uninfluenced by the council’s favourable determination, the council is the planning authority, and its persistence in advocating strongly for the proposal in the appeal is a factor the court is entitled to take some notice of in line with certain judicial utterances … as might have been strong council opposition.  A developer with council support would usually be in a better situation.  Of course, what counts in the end is the persuasiveness of the council’s case, from the standpoint of assisting the developer to satisfy the onus the developer bears.”

  1. [102]
    In this case, the Council has conducted a positive case, called evidence from independent experts, made submissions in support of the proposed development, conceded the 2006 scheme “is inadequate”, and acknowledged the “deficiency” of the centres hierarchy.[128]  I will deal with that now.

Zoning has been “overtaken by events” or scheme inadequacy

  1. [103]
    The co-respondent argues that the 2006 scheme has been overtaken by events and is no longer in step with the needs of the community.  These are relied upon to contextualise the nature and extent of the conflict with the 2006 scheme, such that the extent of the conflict should only be regarded as minor to moderate.
  1. [104]
    The co-respondent argues that this appeal is within a very rare category of cases where a respondent council accepts that its centres hierarchy is not “soundly based or logically conceived”, that being a reason which the Courts have accepted for not according weight to a relevant aspect of a planning scheme.[129]  It is submitted this is demonstrated through:
  1. (d)
    the departures from the Council’s planning intent by granting the development approvals referred to above;
  2. (e)
    the Council’s notified grounds for approval;[130]
  3. (f)
    the evidence of Mr Ovenden;[131]
  4. (g)
    the evidence of Mr Norling;[132]
  5. (h)
    the submissions made on behalf of the Council.[133]
  1. [105]
    Support for the argument is also found in the 2006 scheme itself where it expressly provides that it has an “effective life” of 8 years.[134]  It is also argued that the 2006 scheme contains some errors or inconsistencies which further highlight the shortcomings of the document.  For example the planning experts noticed that the DEOs classify Redland Bay as a Neighbourhood Centre whereas it is zoned a district centre.[135]  Another error was identified in s 5.15.2(8) of the Kinross Road Structure Plan overlay, which purports to prohibit development applications for preliminary approvals varying the effect of the 2006 scheme. 
  1. [106]
    The appellant also points to the population and centre equation to highlight that the centres hierarchy is not soundly based. For example, the 2006 scheme effects an intention of the appellants’ centres to serve a catchment of less than 50,000 people,[136] whereas at 2016 they are serving catchment of 60,651 people.[137]  Mr Schomburgk acknowledged so much during his cross examination.[138] 
  1. [107]
    Other problems with the centres hierarchy are highlighted in the need experts’ joint report about the reports prepared by SGS and Urbis dealing with the retail needs of the local government area. For example, when considering the SGS report the economists agreed that (with the co-respondent’s bolding):[139]

“Despite identifying a need for nearly 286,000m2 of additional in-centre retail and commercial floorspace by 2031, SGS made no recommendations for additional neighbourhood or local centres, other than to note that Council would need to plan and designate land for local centres within areas not served by neighbourhood or other higher order centres.  The only substantial changes to the centre hierarchy recommended by SGS was that the Redland Bay Neighbourhood Centre be re-designated as a District Centre on the basis that its future population should reach 15,000 by 2026 and 16,000 by 2031, and that the Victoria Point Major Activity status should be recognised as such in the SEQ Regional Plan (page vi).”

  1. [108]
    Similar Urbis reports also identified population increases but made no specific recommendations for new centres to serve the identified future growth.[140] 
  1. [109]
    The need JER records that both Mr McCracken and Mr Norling:[141]

“… consider it extraordinary that, despite identifying significant increases in Redland City’s population (42,000 to 50,000 additional people), neither the two Urbis reports nor the SGS report identified or recommended the potential need for additional shopping centres capable of incorporating full-line supermarkets to service this growth.  Under past and current Planning Scheme Centre Hierarchies for Redland City, the introduction of additional full-line supermarkets to serve Redland City’s current and future populations (to 2031) can only be accommodated within existing Major Centres (Cleveland, Capalaba and Victoria Point) and in designated District Centres (Alexandra Hills, Birkdale and Redland Bay).”

  1. [110]
    This is consistent with the evidence of the Council’s planning expert, Mr Ovenden who stated:[142]

“It is important not to read the planning scheme too rigidly, particularly in circumstances where the planning authority has not got the planning quite right.  In this particular instance, I am of the opinion the departure from the very prescriptive retail hierarchy in the scheme is in the interest of the community and will not undermine the integrity of the planning scheme.  More specifically, it will assist in achieving Desired Environmental Outcomes of the Planning Scheme, it will not undermine the roles and function of other existing and planned centres in the City, nor will it compromise the delivery of the Kinross Road Structure Plan.  Therefore, I believe sufficient grounds can be advanced to justify a decision to approve this proposal, despite the conflict.”

  1. [111]
    Mr Ovenden also opined that the current centres hierarchy fails to satisfy DEO 3 of the 2006 scheme,[143] and he testified that there was a gap in the hierarchy, and remained of this view when being cross-examined.[144]  Mr Norling, also called by the Council, was of a similar view.  He said:[145]

“The development of supermarkets in Redland City has not kept pace with this population growth, nor has the centre hierarchy been amended to cater to the needs of the emerging Thornlands population.”

  1. [112]
    There is significant force in this body of expert opinion discrediting the contemporary planning for the area.
  1. [113]
    Indeed, the Council also acknowledges that the 2006 scheme and draft scheme fail to adequately promote development of the type proposed to serve the Kinross Road Structure Plan Area, as well as the broader southern Thornlands area having regard to DEO 3(1)(f).[146]  During the opening of the case Mr Wylie for the Council submitted:[147]

“With respect to the grounds that council says would support this development, notwithstanding the conflict with the scheme, the relevant grounds are the fact that this scheme is inadequate in that it fails to provide convenient and proximate full-line supermarket services of the type proposed by the subject development to the residents of the Kinross Road Structure Plan Area and the broader Thornlands area.  And that’s the area identified in the trade areas by the need experts.  In particular, what is relevant is that the development that is proposed would fall within the category of the district centre.  The main difference between a district centre and a neighbourhood centre in this context is that the scheme says that neighbourhood centres should not have full-line service – sorry, full-line supermarkets whereas a district centre should.  And so it’s council’s position that this is a district centre and that a – and that the normal course should be that when one is not immediately proximate to a major centre, one should have access to a – one should have relevantly convenient access to a district centre, which is what this proposal provides.

And an example of where that is provided in other areas of the scheme, if one turns to page 30 of exhibit 1, and you’ll see that there’s the major centres to the north of the Capalaba Park and the Stockland Cleveland, the two major centres.  For the areas immediately proximate to those within, say, two to three kilometres, they will rely upon those for both their major centre and their district centre needs.  But for outside that immediate area, the scheme has provided for the Alexandra Hills Shopping Centre, which is a district centre, which provides full on [sic] supermarkets.  To the north outside the immediate proximity of the Capalaba Park and Stockland Cleveland major centres, we’ve – council’s provided the Birkdale Fair district centre.  To the south – to the area to the southeast of the Victoria Point centre, the Redland Bay district centre.  No similar district centre has been provided by the planning scheme in the vicinity of the Kinross Road Structure Plan and council acknowledges that is a deficiency of the current planning scheme that unfortunately has been carried over to the draft scheme.”

  1. [114]
    It is very rare that a Council is so critical and damning about its own current scheme. But this submission and the body of expert opinion must be properly considered in light of the legislative force and intent of the 2006 Scheme, which is reinforced by the evolvement of the draft scheme. 
  1. [115]
    The 2006 scheme has not been left derelict.  It has been amended over 15 times in its life.[148] The Major Amendment Package 01/2013 upgraded the Redland Bay Neighbourhood Centre to a District Centre.  That amendment demonstrates that the Council is attentive to some changes in population that justify revision of its centres network strategy and has made such amendments to its centres network as it considers appropriate.[149]
  1. [116]
    The argument is also diluted by the maintenance of full-line supermarkets in the centres hierarchy and centre zoning in the draft scheme, after a whole scheme review.   The draft scheme effectively replicates the current zoning pattern, and attracts the same issues that arise under the 2006 scheme and have been dealt with above.
  1. [117]
    Mr Ovenden on behalf of the Council is of the opinion that the draft scheme:[150]

“…has perpetuated an identified gap in the retail hierarchy that has been carried through from the current planning scheme.  It is appropriate that this gap in centre allocation be filled to meet a strong community need in this part of the City and in doing so satisfy the higher order strategic outcomes of the draft scheme.

The planning authority may take action to review the draft scheme following review of submissions or choose to amend the scheme to reflect the subject proposal, should the Court of a mind to approve this application.”

  1. [118]
    I think this is very sound and timely advice.
  1. [119]
    However, notwithstanding sound expert opinion or Council’s submitted aspiration, the court is bound to have regard to the relevant scheme and ought not usurp the role of the local authority. A summary of the relevant principles with respect to construction of planning schemes can be found in Westfield Management Limited v. Pine Rivers Shire Council.[151]  As Quirk DCJ said Elan Capital Corporation Pty Ltd v Brisbane City Council:[152]    

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

  1. [120]
    I would be less reticent about addressing the perceived deficiencies in the 2006 scheme identified by the experts, co-respondent and Council, if they were remedied and reflected in the draft scheme.  But they aren’t.  The draft scheme effectively replicates the current zoning pattern, and maintains full-line supermarkets in the centres hierarchy and centre zoning after a whole scheme review.
  1. [121]
    Whilst I accept the significant force in the co-respondent’s arguments, it is a matter for the council to address perceived deficiencies in its scheme. It is bound to properly consider the application according to law and respect the role of the local authority’s primacy as a legislature.

Community Need

  1. [122]
    The notion of need in this context is the enhancement of community wellbeing, and has been analysed by this court in the past, including:
  1. “In ordinary parlance, one hears reference to phrases such as, ‘a person in need’, which conveys as a matter of objective fact the idea that that person, if not in distress, is nonetheless deprived to the extent that his wellbeing is at risk.  One cannot sensibly translate that concept into the town planning context.  ‘Need’ in planning terms is a relative concept … (It) is firstly a community need, not in the sense that there is an element of urgent community necessity for a facility or for land so zoned on which the facility can be provided.  Rather, it connotes the idea that the physical wellbeing of a community or some part of it can be better and more conveniently served by providing the means for ensuring that the provision of that facility, subject always to other considerations of the town planning kind, including all consideration that the wellbeing of a community also depends significantly on an acceptable residential amenity.”[153]
  2. “‘Need’ in cases such as this does not mean pressing need, critical need, widespread desire or anything of that nature.  A thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community”.[154] 
  3. “‘Need’, in planning terms, is a relative concept.  It does not connote pressing urgency, but rather relates to the general wellbeing of the community.  A use is needed if it would, on balance, improve the services and facilities available in a locality.”[155]
  4. “To provide competition and choice where none exists can represent the filling of a need”.[156]
  1. [123]
    No issue has been taken with any component of the proposed development other than the “retail/commercial” component.[157] The question is whether the residents can be better and more conveniently served with appropriate access to a full-line supermarket and complementary stores, and a tavern.
  1. [124]
    In my view, the consideration of need ought not be undertaken in a vacuum and ought always be cognisant of other town planning considerations and controls.[158]  In Luke v. Maroochy Shire Council [2003] QPELR 447 at 459, Wilson SC DCJ said at [55]:

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

  1. [125]
    Consideration of need is determined from the perspective of the community and not that of the developer, commercial competitors or submitters. In relation to the facilities supplying the necessaries of life Wilson SC DCJ said in Luke, at [35]:

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

  1. [126]
    His Honour made similar remarks in Parmac Investments v. Brisbane City Council,[159] where he said, albeit in the context of the phrase ‘overwhelming community need’, at [30]:

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

  1. [127]
    Further, in JPF Australia Pty Ltd v Livingstone Shire Council,[160] Britton SC DCJ held that considerable weight should be given to the question of need where the need to be satisfied involves shopping for the essentials of life mainly food and groceries as well as associated convenience goods.
  1. [128]
    In the context of a full-line supermarket, Rackemann DCJ in Fabcot Pty Ltd v Cairns Regional Council,[161] said:

“When the need of the community under consideration involves the daily essentials of life such as food and groceries, questions of convenience and availability of choice to the public are significant considerations. The proposal would deliver a full-line supermarket to a growing area which needs one, can support one, but currently has none.”

  1. [129]
    The 2006 scheme provides for ‘top up’ convenient shopping at a number of small centres within the primary trade area, and travel access to full-line supermarkets within District and Major Centres.[162]  There are no such larger centres in the identified trade area, which means that those residents must travel outside the area to shop at a full-line supermarket.  The case involves consideration of the distance and reasonableness of that travel in the circumstances that a resident should travel to access a full-line supermarket.
  1. [130]
    The relative proximity of supermarket facilities in the vicinity include:
  1. the full-line Coles and Woolworths supermarkets at Cleveland, to the north;
  2. a substantial IGA for the ‘top-up shop’ in the primary trade area;[163]
  3. two full-line Woolworths and a full-line Coles, together with an ALDI at Victoria Point, to the south;[164]
  4. the IGA at Crystal Waters for a ‘top-up shop’ at a small local centre, particularly for those in Messrs McCracken and Norling’s secondary east trade area;[165]
  1. [131]
    Mr Viney in the joint traffic expert report sets out the public benefits by improving the existing situation in relation to traffic capacity and safety as well as other matters of public interest which can be delivered without any unacceptable impacts on amenity, traffic maintenance or traffic safety.[166]
  1. [132]
    An arterial road network provides access to those supermarkets north and south of the primary trade area.[167]  Residents in Messrs McCracken and Norling’s secondary east trade area can access a choice of full-line supermarkets at Cleveland and Victoria Point[168] and residents of Messrs McCracken and Norling’s secondary west trade area can access at least four full-line supermarkets at Capalaba.[169]
  1. [133]
    Mr Brown on behalf of the appellants accepted a strong need for fuel retailing along the Boundary Road corridor on which the subject land is located,[170] but concluded there is “limited” demand for the tavern[171] and no need for the development “as a whole”.[172]  It seems to me that Mr Brown’s approach is more stringent than the lower bar for the daily essentials of life.  In contrast to the evidence of Mr Brown, both Mr Norling and Mr McCracken are of the view that there is a “strong” level of need for the proposed development.[173]
  1. [134]
    Mr Brown opined that a five minute drive time radius,[174] compared to Mr McCracken’s two- kilometre radius, was reasonable to access a full line supermarket.  Mr Zeller from Coles also acknowledged that the residents of the primary trade area would have reasonable access to the Coles and Woolworths at Cleveland.[175]  Mr Norling preferred a metric shorter than a five-minute drive, but longer than a two-kilometre radius, as more likely to be a reasonable distance for people to expect to drive to for a supermarket shop.[176]  Based on Mr Norling’s metric, and by reference to the two kilometre range circles around existing full-line supermarkets depicted on  page 20 of Exhibit 1, and the “five minute drive time” ranges depicted on page 4 of Exhibit 14, it is clear that the majority of the Primary Trade Area north of Boundary Road would fall outside reasonable catchment areas, as would significant parts of the secondary trade areas. 
  1. [135]
    Mr Cumming, planning expert for the co-respondent, described the subject site as falling within a “geographic hole” of centres.[177]  He also averred to the affordability of weekly shopping at small convenience stores associated with higher prices compared to larger supermarkets,[178] and that centres provide a community focus and that many people, including young and elderly people as well as people with single cars need convenient access to centres.[179] Mr Ovenden also favoured the proposal as filling a community need.[180]
  1. [136]
    I also bear in mind that the hierarchy of centres relative to the land has not been fully delivered. There are a number of local centres yet to be constructed, as well as an upgrade to a district centre to occur at Redland Bay.[181] Such investment decisions will rely upon the centres hierarchy in the planning documents,[182] and will be driven by the need to serve existing and future populations.
  1. [137]
    On balance, it seems to me that the proposed development would provide a focal point in the Kinross Road growth area and it would better and more conveniently serve local residents with appropriate access to a full-line supermarket and complementary stores, and a tavern. It is also likely to provide greater convenience to large volumes of traffic travelling on Boundary Road, and people in the major industry and healthcare precinct to the north. But this betterment and shopping convenience for local residents and others is marginal because they enjoy reasonable access to existing and proximate full-line supermarket retail facilities, with more ready access to ‘top up’ shopping facilities. These will provide most trade area residents with convenient access to a greater range and variety of shopping options, and promote competition in a price and service.
  1. [138]
    Finally, with respect to community need for a hotel, there are no hotels within the primary and secondary trade areas, and none within 5 kilometres of the land, whereas a per-capita analysis would indicate that the trade areas may support up to four hotels.[183] I accept that there is a greater community need for a hotel to be established.

Economic Need

  1. [139]
    In circumstances where community need may not warrant out-of-centre development, economic need ought be demonstrated.
  1. [140]
    This involves consideration of whether there is ‘unsatisfied economic demand’ and the development is necessary to cater for that demand,[184] without unduly disrupting or prejudicing other current or planned centres.

Viability of the proposed development

  1. [141]
    A fundamental element of economic need is that the development, if approved, would be financially viable.[185] 
  1. [142]
    Broadly speaking, the need experts determined that in its first year of operation the centre as a whole would achieve a total turnover in the order of $42.4 million[186] and $39.86 million,[187] which is sufficient to ensure the development would be economically viable.[188]
  1. [143]
    The experts agreed that a useful starting point is that a catchment containing 8,000 to 10,000 people warranted real consideration for a full-line supermarket to service that catchment.[189]  Here, the Primary Trade Area, being the proposed development’s most likely trade area,[190] indicates a 2018 population of 8,020.  That population base is at the low end of the range considered appropriate to support a full-line supermarket on the land and arguably insufficient in itself to justify the development.[191]  Therefore, passing trade will form a significant contributor to the developments viability.  That is, further indicia that the proposed development will function more like a District Centre, rather than as a Neighbourhood Centre to service up to 10000 people.
  1. [144]
    Mr Brown estimated that passing trade will contribute 28.6 per cent of the trade, as compared to the 17.5 per cent estimated by Mr McCracken and Mr Norling.
  1. [145]
    The differences between Mr Brown, and Mr McCracken and Mr Norling result from the different methodologies used by those experts.[192]  In particular, Mr Brown used motor vehicle turn-in rates, which was considered by the other experts as quite unusual and unorthodox in relation to supermarkets.[193]  From a commercial perspective, Mr Zeller (on behalf of Coles) testified that:[194]

“Coles bases decisions to locate a store on any particular site on its location and accessibility to the existing planned population.  In particular, Coles defines its catchments by primary and secondary locations from the site to the surrounding residential population.  Coles does not use assumptions that volumes of passing traffic make a decision to shop at a centre as the basis for locating stores in similar developments to the proposed Thornlands development”.

  1. [146]
    Mr Norling explained:[195]

“I have been involved in the analysis of prospective property developments for more than 30 years.  I have utilised a range of methodologies in projecting future performance levels for property developments and observed a range of methodologies adopted by other consultants.

It has been my experience that the motor vehicle turn-in rate methodology has been adopted for service stations and fast food outlets, on the basis that these facilities primarily target passing motorists rather than a specific trade area.  It is my view that this methodology is particularly relevant for those larger service centres that are located remote from populations and other services and hence rely upon the motoring public.

In all my years of experience, this is the first time I have seen a motor vehicle turn-in rate applied to project the turnover of a shopping centre and I can find no reference to this approach in the literature.  It is therefore my opinion that Marcus Brown has adopted a novel approach to projecting turnover for the proposed shopping centre on this occasion.”

  1. [147]
    During cross-examination, Mr McCracken explained that his criticism of Mr Brown’s methodology “is the entire external trade for this centre comes from the south, from Redland Bay and Victoria Point is my understanding of Mr Brown’s methodology.  That’s simply not plausible in my view.”[196] Nevertheless, Mr McCracken acknowledged that the characteristics of the land relevant to the extent of passing trade, include:
  1. (a)
    the population of this part of Redland City is spread out in a linear fashion, with the spine of that population being Cleveland-Redland Bay Road;
  2. (b)
    Boundary Road is a major carrier of commuter traffic;
  3. (c)
    there are many people that commute from south of the land, from Victoria Point, Redland Bay and Mount Cotton, past the land to go to the Brisbane CBD;
  4. (d)
    until the population south of Redland Bay matures to the extent that they have their own full-line supermarket, many of the commuters from the area will likely stop at the supermarket during their long journey home;[197] and
  5. (e)
    in terms of homebound traffic, there is no easier access to a supermarket than the left-hand turn in that is proposed off Boundary Road onto the land.[198]
  1. [148]
    Mr Brown’s analysis seems to account for these matters and refers to available empirical data.[199]  However, in cross-examination, Mr Brown accepted that:
  1. (a)
    the 17,500 vehicles relied upon by him was drawn from two-way flow, and the more relevant figure homeward traffic;[200]
  2. (b)
    he had not previously interpreted traffic for the purposes of determining need for a shopping centre;[201]
  3. (c)
    the impacts identified in Table 20 of the joint report would not  realistically occur at one time;[202]
  4. (d)
    the trade area for the current Mt Cotton centre is well removed from that for the development, as would be the case for the proposed 3,200m2 supermarket at Mt Cotton.[203]
  1. [149]
    I prefer the evidence of Messrs McCracken and Norling and their methodology. It seems to me that there is sufficient population in the Primary Trade Area, supplemented by passing trade, to assure viability of the centre. Further, in their joint expert report, those economists have used lower growth levels for the Kinross Road Structure Plan Area, mainly because of the uncertainty with the poultry farm.[204]  The poultry farm has subsequently been advertised for sale.[205]  The sale may be a catalyst for further development within the structure plan area.[206]  The extent to which passing trade may draw from, and therefore impact other centres, including Victoria Point, Redland Bay and Mt Cotton, is relevant to my consideration of that impact below.
  1. [150]
    As to the proposed tavern use, I also prefer the forecast sales proposed by Messrs McCracken and Norling,[207] and note that their figures do not rely on any gaming machine profits (which may be installed in the future).  It seems to me that the proposed tavern will be financially viable.

Impact upon other centres

  1. [151]
    Viability of the proposed centre must be demonstrated without unduly compromising the economic functionality of current and planned nearby centres. In particular, the existing Victoria Point Major Centre, the Crystal Waters Local Centre, and the proposed Kinross Road Local Centre.
  1. [152]
    It was agreed between the need experts that, with respect to detrimental impact, anything more than 15% impact on turnover would give rise to real concern.[208]  For the reasons which follow, I am satisfied that the proposed development will not detrimentally impact other existing and planned centres.

Victoria Point

  1. [153]
    The three full-line supermarkets at Victoria Point are trading at healthy and profitable levels, with the supermarket at Town Centre performing well.[209]
  1. [154]
    The need experts assessed the impact of the subject development, in the first year of operation (2018), would be in order of 5.7% (Mr Norling), 6.5% (Mr McCracken) and 7.28% (Mr Brown), being less than the benchmark 15% threshold.
  1. [155]
    However, Mr Brown also relied upon cumulative impacts on the Victoria Point Major Centre summarised in Table 20 of the need experts’ joint report.[210] All economists acknowledge that it is normal to assess cumulative impact,[211] in particular, the proposed full-line supermarkets for Mt Cotton and Redland Bay will, in turn, have an impact on the supermarkets at Victoria Point.[212] Mt Cotton has an approval for a 3,200 square metre supermarket.[213]  Mr McCracken acknowledged that the 2006 scheme was recently amended, and there would be a sufficient population to support a full-line supermarket at Redland Bay.[214]  The developer is likely to develop with a major retail anchor.[215] 
  1. [156]
    Even so, I accept the evidence of Mr McCracken and Mr Norling to the effect that any impact ought be considered in the context of commensurate future population increases, which effectively neutralise any concern.[216]  I think it unlikely that the prospective development will all become operational simultaneously or before 2018.[217]  Therefore, I think that any material impact[218] upon the performance of the Victoria Point Major Centre will be relatively small.[219] 
  1. [157]
    Further, the Victoria Park Shopping Centre has an approval for a 9,000 square metre extension. Such expansion will likely involve a second Discount Departure Store, Mini-Major and additional specialty shops.[220]  I do not accept that the proposed development would by itself unduly delay expansion plans for the Victoria Point Shopping Centre.[221]  However, it will nevertheless contribute to the delay.  In my view, the economic impact of the proposed centre upon the Victoria Point Major Centre is within tolerable limits, and would lessen over time.
  1. [158]
    With respect to the hotel or tavern, the experts were in agreement that detrimental impacts of that development on other hotels would not be significant.[222]

Crystal Waters Local Centre

  1. [159]
    Mr Brown’s evidence about the impact on Crystal Waters differs to the evidence of the other need experts.[223]  Mr Brown assessed a 2018 impact of some $2.16M (or -18.35%), whilst Mr Norling assessed the impact as $0.8M (or -6.7%).[224]
  1. [160]
    Mr Brown accepted that the local centre presented well, appeared to carry a reasonable range,[225] and had a trade area that lies outside the proposal’s trade area.[226]  Additionally, Mr Norling explained the different assessments this way:[227]

“Again, that is a matter of professional judgment, and he’s entitled to apply the factors that he thinks are appropriate.  But when I applied the factors here, that is, that Crystal Waters – so the relevant factors I’ve applied, (1) Crystal Waters is the best performing neighbourhood centre in Thornlands at the moment; it is well located on that north-south road; it has a suite of pretty good tenants.  As a negative, I took into account, it doesn’t have great exposure to that road, in – in the sense that it faces to the rear, so that’s – that’s a negative.  But I felt that once this – if this court approves, and it’s developed, this supermarket-based centre is to be developed, it is my view that it would take trade more away from the supermarket-based centres, and that there was a sufficient geographical distance between the subject site and Crystal Waters such that the Crystal Waters centre would continue to act as a – in that neighbourhood role for that top-up shopping trip, and that the tenants – and the suite of tenants that were there would largely be able to continue to trade to that north-eastern quadrant of the primary trade area and the secondary trade area east.  So – so I – I considered that a relatively low amount of trade would be taken from that centre, and those are the reasons that I factored into my professional judgment.”

  1. [161]
    During his cross-examination, Mr McCracken remarked about the distinctive functions, roles and markets of the respective centres, as follows:[228]

“How can you – well, can I suggest to you?  Is it the case that Crystal Waters with its IGA will not be able to compete with a Coles full-line supermarket in terms of range of product, range of packaging products and offer in terms of range of bakery items, range of meat items, range of fish items, range of delicatessen items.  It will simply not compete?   No.  They compete for different markets.  Different – different functions.

And it won’t compete in terms of price?   Well, the IGA’s tend to be a – a bit more expensive than the – the majors.”

  1. [162]
    Although, I prefer the assessment of Mr Norling and I conclude that they are overly optimistic about the likely impact on the local centre. I find that the Crystal Waters local centre will only be partially insulated by an adverse impact of the proposed development. Despite its nature as a local centre dislocation from the land, it will be be eroded by the proposal’s relative full-line, convenience and location.

Kinross Road Local Centre

  1. [163]
    I have already remarked about this mixed use local centre contemplated under the Kinross Road Structure Plan.
  1. [164]
    Mr Fiteni, the director of the corporate owner of the planned local centre site, testified that his investment decisions relied upon the 2006 scheme and the need for a local centre in the planned location surrounded by land zoned for medium density residential intended to be for an over-50s attached to a centre.[229]  Mr Fiteni considered that the planned local centre at Kinross Road would be ‘very unlikely to survive’,[230] given the size and location of the proposed centre.[231]  He opined that this would have warranted a reduced purchase prise for the Kinross Road land.[232]
  1. [165]
    I accept Mr Norling’s evidence that the proposed local centre site is dislocated and isolated, which would have impacted its development in any event.[233]  But it is favourably proximate to prospective residential development, a district park and Community Facility.[234]  Further, as Mr Ovenden opined, it will have more localised and convenient retail products, and a different form and function to the proposed development.[235]  Nevertheless, it is tolerably clear that the development will have a significant impact on the Kinross Road mixed use local centre in both nature and size of uses.[236] 
  1. [166]
    Put in its proper context, for the planned local centre to retain its place and function as a local centre serving proximate residents, it will struggle to be relevant and provide complimentary function with the very proximate higher order role and function of the proposed centre, if developed. Therefore, I conclude that the proposed development will unduly impact on the planned local centre on Kinross Road.

Planning need

  1. [167]
    Planning need, and its relationship with economic need, was considered by McLauchlan QC DCJ in Elfband Pty Ltd and Vanhoff Pty Ltd v Maroochy Shire Council,[237] as follows:

“Planning need is no doubt a more general issue than economic need, but it seems to be obvious in cases such as this that unless there is an economic need there will be no planning need. It is therefore essential that the evidence establish, as I consider it has, that there is an economic need for a shopping centre such as Maroochydore Marketplace within the Sunshine Coast retail network.  The issue of planning need then focuses upon the question whether the particular development proposed should be permitted, involving as it does an amendment to the planning scheme.”

  1. [168]
    There is little dispute that the land is physically ideal for the proposed development. Mr Schomburgk accepted that the land, being proximate to the main road network, was a highly strategic location for retail and commercial development.[238]  Indeed, he described the suitability of the subject site for the proposed development as follows:[239]

“If you were to accept that proposition that a district centre is warranted in this area, it’s an excellent location for a district centre, isn’t it?‑‑‑I don’t disagree with you there.  I mean, it’s a good location.  It’s accessible, easy.  It’s on the left-hand side of the homeward journey, as we heard Mr Lancini say, and as this court has heard so many times before about larger-scale centres, convenience centres.  That’s the preferred sort of location.  It’s a very busy road, it’s visible – all of those things.  Yes.”

  1. [169]
    This is not altogether surprising since the Council has already accepted that the subject land is suitable for centre type activities with development approval and permit (which has not lapsed) for a shopping centre with a gross floor area of over 1,000m2.[240] The land has, since the commencement of the 2006 scheme on 30 March 2006,[241] been identified for centre uses either by way of zoning or development approvals except for a period of 14 months.[242]
  1. [170]
    The appellants do not rely upon the availability of alternative land for the proposed ‘out of centre’ development. Although, they acknowledge that ‘out of centre’ development may be justified in appropriate circumstances, they argue that this is not such a case having regard to the hierarchy of centres established by the 2006 scheme.
  1. [171]
    The consideration of planning need ought not be undertaken in a vacuum and ought always be cognisant of other town planning considerations and controls.[243] 
  1. [172]
    This court has from time to time acknowledged proper planning of locating centres. So much is consistent with the approach taken by Skoien SJDC in Provincial Securities Pty Ltd v Brisbane City Council,[244] when considering a more generic provision of a scheme.  The approach was explained by Wilson SC DCJ (as he then was) in Luke v Maroochy Shire Council:[245]

“Faced with a statement of intent in the planning scheme for Brisbane requiring consideration whether a shopping proposal would ‘mainly serve residents in the immediate locality’, his Honour determined that this was not a critical point or an absolute requirement but, merely, a consideration to be taken into account – and referred, as authority for that conclusion, to Prime Group Realty v. Brisbane City Council (1995) QPLR at 173, at 176; and Phil Fletcher Planning and Investment Services v. Brisbane City Council (1991) QPLR 16, at 18.  The Brisbane planning scheme also contained another requirement that shopping centres should be ‘on neighbourhood access roads’ and, at 145, His Honour suggested that centres located in these places would very likely wither and die for lack of custom, and the requirement was:

‘…an example of the drafter’s wishful thinking and admirable as may be the wish it is unlikely to be met in today’s real world.’” 

  1. [173]
    The courts have afforded no or less weight to an aspect of a planning scheme if that planning is not “soundly based or logically conceived”.[246]  Such matters are a matter of context of the scheme, and the approach ought be tempered in these circumstances where a centres hierarchy has been deliberately planned and zoned. 
  1. [174]
    In Wilispap Pty Ltd v. Mulgrave Shire Council,[247] Quirk DCJ emphasised the strategic planning importance of locating and ordering retail centres:

“The location and order of retailing facilities in developing areas is no doubt a very important part of strategic planning. This is a matter appreciated by (and to which careful attention has been given by) the Respondent Planning Authority for this area in its recently exhibited Development Control Plan. The Respondent's opposition to this proposal is in my opinion quite consistent with the planning strategies found in the Development Control Plan and no real basis for any serious questioning of the strategies has been shown. I fully appreciate that Draft Development Control Plan does not yet have the force of a statutory planning instrument. It does, however, constitute a recent expression of planning strategy formally made public as required by the Act. In a matter of this kind it would, in my view, be entirely inappropriate for this Court to make a decision which would run contrary to such a considered and carefully expressed planning strategy of a Local Authority.”   

  1. [175]
    Later, in Overton v. Redcliffe City Council[248] Quirk DCJ consistently observed that:

“The provisions with which we are concerned have fundamental importance to the establishment of a suitable and ordered hierarchy of commercial development. As I have indicated to ignore these provisions could have fundamental and far reaching consequences for expectations based on the Strategic Plan as it is presently drawn.” 

  1. [176]
    Beyond the planning, Newton DCJ remarked about the vitality of a centres hierarchy to a functioning City in Lewiac Pty Ltd and ING Real Estate, Joondalup BV v. Gold Coast City Council[249] as follows:

“It does not appear to be in dispute that the achievement of a sustainable and effective centre hierarchy should be recognised as a good town planning principle for reasons of orderly development, increased accessibility and convenience, greater economic efficiency and investment opportunities. Indeed, in his written submissions Senior Counsel for the Respondent observed that it is remarkable that not one witness criticised the town planning principles requiring a hierarchy of centres and not one witness criticised the appropriateness of the specific hierarchy put in place for this region by the relevant planning documents.

It may be accepted then, that a centre hierarchy is vital to the functioning of a City in order to ensure the efficient, equitable and adequate provision of goods and services to all communities having regard to their needs, size and location.  This evidence was given by Professor Brannock, a consultant town planner who testified on behalf of the Fourth Co-Respondent, and it accords in general with the evidence of all the town planning experts. A successful and well-implemented centre hierarchy correlates the economic and social functions of a centre with the needs and interests of its catchment.” 

  1. [177]
    This was reinforced by the Court of Appeal in Australian Capital Holdings Pty Ltd v Mackay City Council,[250] Muir JA (with whom the others agreed) said:

“[58]  The importance of the hierarchy of retail shopping centres or precincts established by planning schemes and the necessity of not acting so as to prejudice the viability of the established hierarchy has been recognised in a number of planning decisions. In Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council & Ors,[251] Newton DCJ observed:

‘[15] It does not appear to be in dispute that the achievement of a sustainable and effective centre hierarchy should be recognised as a good town planning principle for reasons of orderly development, increased accessibility and convenience, greater economic efficiency and investment opportunities.

…

[16] It may be accepted then, that a centre hierarchy is vital to the functioning of a City in order to ensure the efficient, equitable and adequate provision of goods and services to all communities having regard to their needs, size and location.’

[59]  Newton DCJ referred with approval to passages from the reasons of Quirk DCJ in Wilispap Pty Ltd v Mulgrave Shire Council [1992] QPLR 51 at 52-53 and in Overton & Anor v Redcliffe City Council & Anor [2000] QPELR 250 at 253. In Wilispap Quirk DCJ, referring to the potential impact of an application, after remarking that it would ‘prejudice the feasibility of the hierarchy of shopping facilities proposed by the plan’ said, ‘In a matter of this kind, it would, in my view, be entirely inappropriate for this Court to make a decision which runs contrary to such a considered and carefully expressed planning strategy of a local authority.’ In Overton Quirk DCJ drew attention to the fundamental importance of such provisions to (at 253) ‘a suitable and order hierarchy of commercial development’ and commented that ‘to ignore these provisions could have fundamental and far-reaching consequences for expectations based on the Strategic Plan as it is presently drawn”.

  1. [178]
    In terms of the benefit of centres hierarchies, Mr McCracken gave evidence that hierarchies:
  1. (a)
    encourage consolidation of existing centres;[252]
  2. (b)
    encourage investment and re-investment in the existing centres that have been located in appropriate locations to serve the public;[253]
  3. (c)
    discourage out of centre development in order to maintain the vitality, trading vigour and viability of existing centres;[254] and
  4. (d)
    ensure planning for a relatively equitable distribution of facilities at different levels.[255]
  1. [179]
    Centres are also focal points for investment in infrastructure and transport road systems. It is in the community’s best interest to both establish and protect focal points for retail, commerce, community infrastructure, transport and social discourse.[256]
  1. [180]
    There has been significant growth in dwellings and population in the southern Thornlands area, and the growth is predicted to continue in the future in such areas as Kinross Road and Woodlands Drive. The area has been recognised by the respondent as being suitable for residential development.
  1. [181]
    I am satisfied that there is a strong planning argument supporting the need for an additional neighbourhood centre level of retail facilities in the Thornlands area to service existing and future populations in the Kinross Road growth area, with more convenient and proximate retail shopping facilities. Such a centre will provide a more geographically balanced distribution of retail and community services in the local government area, despite the distribution of scheme network and centres hierarchy. An additional neighbourhood centre will add to the provision of choice in relation to available housing stock and will provide the community with residential development that is proximate to, and within walking distance of shopping, health and community services.
  1. [182]
    The proposed development is of the nature of a vibrant and accessible centre, which will provide a commercial and community focal point for the Kinross Road growth area. The proposed development will provide a significant community benefit by providing healthcare services in a convenient location. It will provide a hub for social and community interaction in a family friendly environment (with the proposed tavern also providing a family friendly leisure/entertainment venue).
  1. [183]
    The co-respondent characterises the proposed centre as a “Neighbourhood Centre” with a total floor space of 6,875m2, comprising a full-line supermarket and specialty shops comprising 5,700m2 retail and associated uses totalling 1,175m2 (tavern, service station and medical centre).  In my view, the proposal will have a higher function than a Neighbourhood Centre with its full-line supermarket, size and scale of retailing activities, and reliance on passing trade extending beyond the neighbourhood catchment.  It would function more like District Centre (at a lower order).  It would service local residents and well as large volumes of vehicular traffic travelling east along Boundary Road.  Albeit at a lower order District Centre, the full-line supermarket, specialty stores, commercial activities and community services, would service a wider district sized catchment.  In that way it would enhance the potential for convenient, multi-purpose trips to a single location.
  1. [184]
    The proposed development would not impact on transport network efficiency. It would reduce local residents’ vehicular trips, travel times and distances presently experienced in accessing retail centres, and be conducive to pedestrian and cycle trips. The intersection of two main roads (Boundary Road and Panorama Drive) would provide convenient and safe vehicular access to the land. Vehicular and pedestrian movements between Boundary Road and Panorama Drive would be facilitated by a link road. An east to west road link through the site that would ultimately connect Panorama Drive to Kinross Road, as contemplated by the Kinross Road Structure Plan (including the signalisation of the intersection of that east-west link with Panorama Drive).
  1. [185]
    The proposed development would be of a higher order and provide facilities and generally complement the future land uses envisaged for the Kinross Road Structure Plan area. It may even stimulate residential development and employment in the Kinross Road Structure Plan area. But it will have a significant impact on the planed local centre on Kinross Road.
  1. [186]
    The co-respondent has shown a marginal community, economic and planning need for the development. It will be viable, without inflicting adverse impacts on the viability of the larger existing and planned supermarket or centres. I think that the development would fill an obvious gap in the Redland City’s existing and planned hierarchy and network of centres. However, it’s larger size and function (more than a Neighbourhood Centre and more like District Centre) would erode and prejudice the existing and planned smaller proximate centres, and the centres hierarchy, given it’s size, location, overlap and function.

Conclusion

  1. [187]
    The proposed development significantly conflicts with the current planning scheme. There are strong arguments and opinion about the deficiencies in the scheme, but they are replicated in the zoning pattern, maintenance of full-line supermarkets in the centres hierarchy and centre zoning proposed in the draft scheme despite a whole scheme review.  Having considered the grounds in favour of the application as a whole, I am not satisfied that they are, on balance, sufficient to justify approving the application despite the conflicts.
  1. [188]
    I allow the appeal and refuse the development application.
  1. [189]
    I will hear from the parties about any consequential orders.

Judge DP Morzone QC

Footnotes

[1]Exhibit 2, vol 3, p. 1.0915.

[2]Exhibit 7 town planning JER p. 14, para 24.

[3]Exhibit 6 need JER p. 3, para 3, updated by agreement to lease per Exhibit 8 Statement of Zeller p. 2, para 8.

[4]Exhibit 8.

[5]T3-13/30-35.

[6]Exhibit 7 town planning JER pp. 10 and 11, Figures 2-3 and 2-4.  Exhibit 8 appendix AZ-1.

[7]Exhibit 7 town planning JER p. 9, Table 2.3.

[8]Exhibit 2, vol 3, p. 1.0937.

[9]Exhibit 2, vol 3, pp. 1.0941-1.0942.

[10]Exhibit 2, vol 3, p. 1.0941.

[11]Exhibit 2, vol 3, pp. 1.0931 and 1.0945: preliminary approval p. 4 s.5.15.5 and p. 18, s.5.15.6.

[12]Exhibit 1- aerial photography at pages 1 – 3, and Exhibit 7 Joint Town Planning Report, p 7, Figure 2.

[13]Exhibit 7 Joint Town Planning Report, p 8.

[14]Exhibit 10; T3-13/1-25;  Nostalgia based on personal reasons or circumstances are not relevant grounds:  SPA, s.326(1) & definition of “Grounds” in Schedule 3.

[15]Exhibit 7 Joint Town Planning Report, p. 7.

[16]Exhibit 13 Town Planning Report of Mr Schomburgk, p 5 [21].

[17]Exhibit 6 need JER p. 36, Table 5.

[18]Exhibit 7 Joint Town Planning Report, p 7; Exhibit 2, vol 1, p. 1.0128: Report submitted to the Council p. 104.

[19]Exhibit 7 Joint Town Planning Report, p 4 [4]; Exhibit 2, vol 1, p. 1.0047: Report submitted to the Council p. 23.

[20]Exhibit 7 Joint Town Planning Report, p 4 [5]; Exhibit 2 Appeal Book, Vol 3 Tab 33 – Approval.

[21]Exhibit 7 town planning JER p. 45, para 127.

[22]Exhibit 2, vol 3, p. 1.0915.

[23]Exhibit 7 Joint Town Planning Report, p. 47, para 136.

[24]SPA ss 462 & 495.

[25]SPA s 495(2)(a).

[26]Abacus Funds Management v. Sunshine Coast Regional Council [2012] QPELR 669, 676 [20].

[27]Exhibit 7 Joint Town Planning Report, p. 13, paras 20-21.

[28]Exhibit 4C.

[29]T4-56/45, T4-57/25-30 and Exhibit 29.

[30]Weightman v Gold Coast City Council [2003] Qd R 441, [36].

[31]SPA, s 493(1)

[32]Exhibit 3: p. 4, paras 4(p)-(q); p. 15, para 8(f) (Lakeside) and pp. 40-41, paras 1-3.

[33]Exhibit 3: p. 15, para 8(f).

[34]Exhibit 3: p. 24, para 2(h)(ii).

[35]Exhibit 3: p. 3, paras 4(n)-(o); p. 9, para 16; pp. 14-15, para 8(e).

[36]Exhibit 3: p. 3, para 4(m); pp. 14-15, para 8(f).

[37]Exhibit 3: pp. 2-4, paras 4(a)-(d),(f)-(h),(j),(r)-(t); pp. 7-8, para 13; p. 14, paras 8(a)-(d).

[38]Exhibit 3: p. 3, paras 4(k)-(l); Lanrex notice of appeal paras 14-15; p. 15, paras 8(g)-(h).

[39]Exhibit 3, p.47.

[40]Exhibit 7 Joint Town Planning Report, p. 14, para 24.

[41]Exhibit 13 p. 2, para 9; see also Exhibit 7 town planning JER p. 65, para 204

[42] Fitzgibbon Hotel Pty Ltd v Logan City Council [1997] QPLER 208, [212].

[43]Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 QdR 273, [23].

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

[45]Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64.

[46]ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352, 360; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 340, 342, 345; Harbug Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 318.

[47]Luke v Maroochy Shire Council [2003] QPELR 447.

[48]Luke v Maroochy Shire Council [2003] QPELR 447; Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368, 370; Acts Interpretation Act 1954, s 14A.

[49]IPA, s 6.1.2(3).

[50]Degee v Brisbane City Council [1998] QPELR 287.

[51]Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266, 272 ; (1994) 83 LGERA 224, 230; [1994] QPLR 318, 322.

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

[53]Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, 212.

[54]Exhibit 4, vol 1, p. 26: 2006 planning scheme s.3.1.1(3).

[55]Exhibit 4, vol 1, p. 30: 2006 planning scheme part 3, division 1, p. 5 (with my bolding)

[56]Exhibit 4, vol 1, p. 30: 2006 planning scheme part 3, division 1, p. 6.

[57]T2-2/L44-47 (McCracken).

[58]Exhibit 4, vol 1, p. 285 - 2006 planning scheme, part 9, division 2, p. 16 - “Out of centre development”.

[59]Lanrex Grounds [13(a)]; Victoria Point Grounds [8(a)]; and Lipoma Particulars [2(a)].

[60]Victoria Point Grounds [8(g)].

[61]Exhibit 3: p. 8, para 13(b); Exhibit 3: pp. 21-23, paras 1(b) & (c) and 2(b) & (c); and Exhibit 3: p. 14, para 8(a).

[62]Exhibit 4 Planning Scheme Extracts, Vol 1 p 54 (emphasis added).

[63]Lanrex Grounds [13(b)(i)-(ii)]; Lipoma Grounds [2(b)(i)-(ii)].

[64]Lipoma Grounds [(2)(b)(iv)].

[65]Lanrex Grounds [13(b)(iii)-(iv)]; Lipoma Grounds [2(b)(iii)].

[66]Lipoma Grounds [2(c)].

[67]Exhibit 4, vol 1, p. 32: 2006 planning scheme part 3, division 2, p. 1.

[68]Viridian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council [2013] QPEC 54.

[69]Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333, [59]-[60]; see also Wheldon & Armview Pty Ltd v Logan City Council [2015] QPELR 640, [40]-[44].

[70]Exhibit 4 Planning Scheme Extracts, Vol 1 p 93 (my bolding).

[71]Exhibit 4 Planning Scheme Extracts, Vol 1 pp 93 – 94 (my bolding).

[72]Exhibit 4B Planning Scheme Extracts, pp 6 - 7.

[73]Exhibit 4B Planning Scheme Extracts, p 1 (emphasis added).

[74]Exhibit 4B Planning Scheme Extracts, p 9 (emphasis added).

[75]Exhibit 4B Planning Scheme Extracts, p 3 (emphasis added).

[76]Exhibit 4, vol 1, p. 192: 2006 planning scheme part 5, division 15, p. 1, s.5.15.2(4).

[77]T4-67/25-34.

[78]Exhibit 4, vol 2, p. 480.

[79]Exhibit 4, vol 2, pp. 398-399.

[80]Exhibit 4, vol 1, p. 192: 2006 planning scheme part 5, division 15, p. 1, s.5.15.2(4).

[81]Exhibit 4, vol 1, pp. 212-217: 2006 planning scheme part 5, division 15, pp. 21-26, s.5.15.8(2).

[82]Exhibit 1 p. 16; Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 57.

[83]Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 20, s.5.15.7(8).

[84]Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 20, s.5.15.7(3).

[85]Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 20, s.5.15.7(4).

[86]Exhibit 4 – 2006 Scheme extracts, Tab 7 pp 212 – 213 (bolding added).

[87]T2-13/40-T2-14/5, T2-36/25-40; Exhibit 6 pp. 76-77, paras 197-198; T2-79/5-20; Exhibit 6 p. 77, para 199; T3-94/40-T3-95/5; Exhibit 7 pp. 40-41, paras 110-113; T4-22/20-25, T4-23/20-45; Exhibit 7 pp.39-40, paras 106-107.

[88]T2-14/15-40 (bolding to emphasise).

[89]T3-69/10-40; T3-70/1-5.

[90]T1-17/20-45; Exhibit 11: Individual Report of Mr Ovenden, p. 3, para 3.4.

[91]Exhibit 6 need JER p. 77, para 199.

[92]Exhibit 8 p. 4, para 17; see also T3-6/30-35 and T3-11/10-25.

[93]T4-55/42 – T4-56/4; see also Mr McCraken at T2-13/23 – 30.

[94]Exhibit 4, vol 1, p. 212: 2006 planning scheme part 5, division 15, p. 21, s.5.15.8(2)(a)(ii)a (precinct intent for the mixed use local centre precinct).

[95]Aldi Stores (A Limited Partnership) v Redland City Council [2009] QPELR 602.

[96]Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85, [10].

[97]Zappala Family Co v Brisbane City Council [2014] 201 LGERA 82, [56]. 

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

[99]Stappen Pty Ltd v. Brisbane City Council [2005] QPELR 466, 473 [31] per Wilson DCJ

[100]Lanrex grounds 13(d)(iii)-(iv) and 13(e); Victoria Point grounds 8(b); Lipoma grounds 2(h)(iv)]; and Order of Rackemann DCJ dated 22 July 2016.

[101]Lanrex grounds 13(d)(i)-(ii); Victoria Point grounds 8(b)-(d).

[102]Lipoma grounds 2(h)(i) and (iii) grounds.

[103]Exhibit 3: p. 3, para 4(f).

[104]Exhibit 7 town planning JER p. 47, para 136.

[105]Exhibit 7 town planning JER p. 48, paras 143-144; Council’s Submission para 6(6), 75, 76.

[106]Exhibit 25.

[107]Cf. Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 318.

[108]Exhibit 7 town planning JER p. 64, para 202(e); see also Exhibit 25 p. 55 (Desired Regional Outcome 3) and p. 90 (Desired Regional Outcome 8).

[109]Exhibit 7 town planning JER p. 49, para 147; Exhibit 13: Individual Report of Mr Schomburgk p. 7, paras 39-40.

[110]Bird v Logan City Council [2012] QPELR 502, [44]-[45].

[111]  SPA, Schedule 3; s. 326(1)

[112]Exhibit 3: pp. 31-35.

[113]Co-respondent’s Outline of Argument, para 145.

[114]Exhibit 3, p.36.

[115]  Grosser v Gold Coast City Council [2001] 117 LGERA 153

[116]Exhibit 7 town planning JER p. 35 para 91(f) and p. 13, Table 2.4; Cf. Handley v Brisbane City Council [2005] QPELR 80, [14].

[117]Exhibit 7 town planning JER pp. 40-41, paras 102-103.

[118]Exhibit 4, vol 1, p. 37: 2006 planning scheme part 3, division 2, p. 6.

[119]Exhibit 6 need JER p. 25, para 70; Exhibit 7 town planning JER p. 60, para 148 and Exhibit 1A.

[120]Mackay Shopping Centre Pty Ltd v Mackay RC [2013] QPELR 661; Friend v Brisbane City Council [2014[ QPELR 24; Kangaroo Points Residents Association Inc v Brisbane City Council [2015] QPELR 230; Scurr v Brisbane City Council (1973) 133 CLR 242; R v Brisbane City Council ex parte Read [1986] 2 QdR 22.

[121]Kangaroo Points Residents Association Inc v Brisbane City Council [2015] QPELR 230.

[122][1973] 133 CLR 242.

[123][2001] QPELR 272.

[124][1986] 2 Qd R 22.

[125][2013] QPELR 661, 689 [44].

[126][2014] QPELR 24, 50 [103].

[127]Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPELR 661.

[128]T1-17/20-45.

[129]Sellars Holdings Pty Ltd v Pine River Shire Council [1988] QPELR 12,17; SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36, 50 line a.

[130]Exhibit 3: p. 36, para 2.

[131]For example Exhibit 11: Individual Report of Mr Ovenden, pp. 3-4, paras 3.4 and 3.9; Exhibit 7 town planning JER p. 18, para 38; T3-100/25, T3-101/5, T3-101/20-25.

[132]Exhibit 6 need JER p. 71, para 189.

[133]Eg T1-17/20-45.

[134]Exhibit 4, vol 1, p. 26: 2006 planning scheme s.3.1.1(3).

[135]Exhibit 6 need JER pp. 10-11, paras 23-24.

[136]Exhibit 4, vol 1, p. 36: 2006 planning scheme part 3, division 2, p. 5, s.3.2.3(3)(g)(i).

[137]T4-62/10-T4-63/30.

[138]T4-62/10-T4-63/30.

[139]Exhibit 6 need JER p. 20, para 54.

[140]Exhibit 6 need JER p. 22, para 61.

[141]Exhibit 6 need JER p. 23, para 64.

[142]Exhibit 11: Individual Report of Mr Ovenden, p. 3, para 3.4.

[143]Exhibit 7 town planning JER p. 18, para 38; Exhibit 11: Individual Report of Mr Ovenden p. 4, para 3.9; T3-100/25 and T3-101/5

[144]T3-101/20-25 and T3-102/25-30.

[145]Exhibit 6 need JER p. 71, para 189.

[146]Exhibit 3 Documents identifying issues in dispute, Tab 7 [2].

[147]T1-17/20-45.

[148]Exhibit 4C.

[149]T3-97/42 – T3-98/2 (Ovenden); T4-53/30-44 (Schomburgk).

[150]Exhibit 7 town planning JER p. 48, paras 143-144

[151]Westfield Management Limited v. Pine Rivers Shire Council [2004] QPELR 337, 342

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

[153]Skateway Pty Ltd v. Brisbane City Council [1980] QPLR 245, 249-250.

[154]Cut Price Stores Retailers v. Caboolture Shire Council [1984] QPLR 126, 131.

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

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

[157]Exhibit 7 town planning JER p. 14, para 24.

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

[159]Parmac Investments v. Brisbane City Council [2008] QPELR 480, 485.

[160]JPF Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359, [43].

[161]Fabcot Pty Ltd v Cairns Regional Council [2013] QPEC 38, [108].

[162]Exhibit 4B, pp.1, 5.

[163]T2-10/34-38 (McCracken).

[164]T2-10/4-29 (McCracken); Exhibit 14 Report of Mr Brown, p 2 [13] – [14].

[165]T2-10/40-45 and T2-16/1 - 3 (McCracken).

[166]Exhibit 5 pp. 10-11, s.5.0.

[167]T2-10/31-32 (McCracken).

[168]T2-11/16-28 (McCracken).

[169]T2-11/39-44 (McCracken).

[170]Exhibit 6 need JER p. 40, para 139.

[171]Exhibit 6 need JER p. 58, para 154; p. 84, para 215(j).

[172]Exhibit 6 need JER p. 83, para 215(a).

[173]Exhibit 6 need JER p. 40, para 138 and p. 81, para 213.

[174]Exhibit 14, para [27].

[175]T3-8/30-33.

[176]T2-78.

[177]Exhibit 7, para [156].  See also pp. 15-17, paras 30-33.

[178]T4-24/25.

[179]T4-19/5-15.

[180]Exhibit 7 pp. 17-18, paras 34-40; Exhibit 11 pp. 9-10, paras 3.31-3.41.

[181]T2-32/44 – T2-32/3 (McCracken); T2-45/33 – T2-46/17 (Brown); T3-97/26-43 (Ovenden).

[182]T2-33/38 (McCracken).

[183]Exhibit 6, para [142].

[184]Cf. Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435, [53].

[185]All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155, 158.

[186]Exhibit 6, Table 6 (McCracken and Norling).

[187]Exhibit 6, Table 12 (Brown).

[188]Exhibit 12 (Norling Individual Report), para [10].

[189]Exhibit 6, MM and JN at para [43]; MB XXN T3-40 ll 26-42.

[190]Exhibit 6, para [77].

[191]T2-9/L30 – T2-10/L2 (McCracken); T2-43/L23-31 (Brown); Exhibit 14 Report of Mr Brown, p 2 [15] – [17]; T2-82/L1-13 (Norling).

[192]Compare  Exhibits 6 (JER), 9 (McCracken paras 7-10); 14 (Brown); 12 (Norling paras 11-18).

[193]See for example Exhibit 9 pp. 3-13, paras 7-35 and 40; Exhibit 12 pp. 3-4, paras 11-18; T1-34/10-20, T1-35/45, T1-38/10-20, T1-39/35-T1-40/5, T2-20/5-20, T2-26/5-20.

[194]Exhibit 8: Statement of Mr Zeller p. 3, para 16.

[195]Exhibit 12: Individual Report of Mr Norling p. 3, paras 13-15.

[196]T2-20/10-20.

[197]T3-8/L24-28 (Zeller).

[198]T2-16/L40 – T2-17/L28 (McCracken); T2-47/L40 – T2-48/L45 (Brown); T4-4/L44 – T4-5/L37 (Norling).

[199]T2-48/L10 – T2-52/L31 (Brown).

[200]T2-64/5-T2-65/10.

[201]T3-37/1-5.

[202]T3-32/20-30.

[203]T3-35/10-15.

[204]T1-30/15-25.

[205]T1-30/20.

[206]T2-35/10-35.

[207]Exhibit 6, Table 15.

[208]Exhibit 6, paras [158], [167].

[209]Norling XXN, T3-105.

[210]Exhibit 6 p.66.

[211]T2-25/L23-29 and T2-26/L15-22 (McCracken); T2-54/L8-15 (Brown); T2-76/L27-30 and T3-109/L20-21 (Norling).

[212]T2-25/L16-21 and T2-25/L37-38 and T2-26/L24-33 (McCracken); T2-54/L22-27 (Brown); T3-110/L13-28 (Norling).

[213]T2-25/L7-14 (McCracken).

[214]T2-24/L18-22 & /L24-37 (McCracken); T2-54/L17-20 (Brown). T2-24/L24-37 (McCracken).

[215]Exhibit 16 Statement of Mr Hargrave; Exhibit FGA Second Confidential Statement of Mr Hargrave; T4-30/L6 – T4-31/L9; T4-31/L11-37 (Hargrave).

[216]Exhibit 9 para 36 (McCracken) and T2-77/15-23 (Norling); Exhibit 6 at [176]; Brown XXN T3-56 – T3-57.

[217]Mr Brown conceded that it was ‘probable’ that development would not occur before 2018 - T3-56 & T3-55.

[218]Exhibit 6, Table 19 need JER, p.65.

[219]T3-51/1-15.

[220]Exhibit 6, para [102]; Exhibit 17 Statement of Mr Cornish, [26] – [28].  See also Exhibit 15 Statement of Mr Lancini, [45] and Exhibit 16 Statement of Mr Hargrave, [19] - [22]; T4-37/L27 – T4-38/L34; T4-40/L11-39 (Lancini).

[221]Exhibit 6, para [160(d)].

[222]Exhibit 6, paras [179]-[181].

[223]Table 19 need JER Exhibit 6 p.65; the cross examination at T3-29/11-36.

[224]Exhibit 6, p.61 (Table 18).

[225]T3-30 to T3-31.

[226]Exhibit 6 pp.39-40.

[227]T2-76.

[228]T2-15/30-40.

[229]T3-67/L30 – T3-68/L3 (Fiteni).

[230]T3-68/L8-12 (Fiteni).

[231]Exhibit 18A Statement of Mr Fiteni, [17] and [18]; T3-67/L1 – T3-67/L12 (Fiteni).

[232]T3-67/L43-45 (Fiteni).

[233]T2-79.

[234]Schomburgk XXN, T4-67/1-15.

[235]Exhibit 11, para [3.39].

[236]T2-13/L42 – T2-14/L10 and T2-30/L24-39 (McCracken).

[237]Elfband Pty Ltd and Vanhoff Pty Ltd v Maaroochy Shire Council [1995] QPLR 290, 313.

[238]T4-59/15-35.

[239]T4-65 ll 5-12.

[240]Exhibit 7 - town planning JER p. 13, paras 20-21.

[241]Exhibit 4C.

[242]T4-56/45, T4-57/25-30 and ex.29.

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

[244]Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143.

[245]Luke v Maroochy Shire Council [2003] QPELR 447, [48].

[246]Sellars Holdings Pty Ltd v Pine River Shire Council [1998] QPELR 12, 17 and SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36, 50 line (a).

[247]Wilispap Pty Ltd v. Mulgrave Shire Council [1992] QPLR 51, 52-53.

[248]Overton v. Redcliffe City Council [2000] QPELR 250, 253.

[249]Lewiac Pty Ltd and ING Real Estate, Joondalup BV v. Gold Coast City Council [2003] QPELR 385, 389.

[250]Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157 per Muir JA, with whom the others agreed at [1] and [73].

[251]Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council [2003] QPELR 385, 389.

[252]T2-27/1-2 (McCracken).

[253]T2-27/4-7 (McCracken).

[254]T2-27/9-12 (McCracken).

[255]T2-27/14-18 (McCracken); T4-9/5-8 (Norling).

[256]See for example, T4-8/L24-30 (Norling).

Close

Editorial Notes

  • Published Case Name:

    Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd

  • Shortened Case Name:

    Lipoma Pty Ltd v Redland City Council

  • MNC:

    [2017] QPEC 53

  • Court:

    QPEC

  • Judge(s):

    Morzone DCJ

  • Date:

    06 Sep 2017

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2017] QPEC 5306 Sep 2017Appeal against Redland City Council's determination to approve development application allowed; development application refused: Morzone QC DCJ. Date erroneously recorded as 6 September 2017.
Notice of Appeal FiledFile Number: Appeal 11075/1723 Oct 2017-
Appeal Determined (QCA)[2018] QCA 146 [2019] 1 Qd R 52329 Jun 2018Application for leave to appeal granted; appeal allowed; order made by the Planning and Environment Court on 8 September 2017 set aside; matter remitted to Planning and Environment Court to be determined according to law: Fraser and Morrison JJA and Bowskill J.
Appeal Determined (QCA)[2018] QCA 19624 Aug 2018Appeal Costs Judgment: Fraser and Morrison JJA and Bowskill J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Aldi Stores (A Limited Partnership) v Redland City Council [2009] QPELR 602
2 citations
Jump To
Cite 1 - [2009] QPELR 602
Cite 2 - [2009] QPELR 602
All-A-Wah Carapark v Noosa Shire Council (1989) QPLR 155
2 citations
Jump To
Cite 1 - (1989) QPLR 155
Cite 2 - (1989) QPLR 155
Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157
4 citations
Jump To
Cite 1 - [2008] QCA 157
Cite 2 - [2008] QCA 157
Cite 3 - [2008] QCA 157
Cite 4 - [2008] QCA 157
Beck v Atherton Shire Council (1991) QPLR 56
1 citation
Jump To
Cite 1 - (1991) QPLR 56
Bird v Logan City Council [2012] QPELR 502
2 citations
Jump To
Cite 1 - [2012] QPELR 502
Cite 2 - [2012] QPELR 502
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193
2 citations
Jump To
Cite 1 - (2000) QPELR 193
Cite 2 - (2000) QPELR 193
BV v Gold Coast City Council & Ors (2003) QPELR 385
3 citations
Jump To
Cite 1 - (2003) QPELR 385
Cite 2 - (2003) QPELR 385
Cite 3 - (2003) QPELR 385
Cases Abacus Funds Management v Sunshine Coast Regional Council [2012] QPELR 669
2 citations
Jump To
Cite 1 - [2012] QPELR 669
Cite 2 - [2012] QPELR 669
Cf Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 480
2 citations
Jump To
Cite 1 - [2008] QPELR 480
Cite 2 - [2008] QPELR 480
Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126
2 citations
Jump To
Cite 1 - (1984) QPLR 126
Cite 2 - (1984) QPLR 126
Degee v Brisbane City Council (1998) QPELR 287
2 citations
Jump To
Cite 1 - (1998) QPELR 287
Cite 2 - (1998) QPELR 287
Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209
3 citations
Jump To
Cite 1 - (1990) QPLR 209
Cite 2 - (1990) QPLR 209
Cite 3 - (1990) QPLR 209
Elfband Pty Ltd and Vanhoff Pty Ltd v Maroochy Shire Council and Ors [1995] QPLR 290
2 citations
Jump To
Cite 1 - [1995] QPLR 290
Cite 2 - [1995] QPLR 290
Fabcot Pty Ltd v Cairns Regional Council [2013] QPEC 38
2 citations
Jump To
Cite 1 - [2013] QPEC 38
Cite 2 - [2013] QPEC 38
Fitzgibbon Hotel Pty Ltd v Logan City Council [1997] QPLER 208
1 citation
Jump To
Cite 1 - [1997] QPLER 208
Fitzgibbons Pty Ltd v Logan City Council (1997) QPELR 208
2 citations
Jump To
Cite 1 - (1997) QPELR 208
Cite 2 - (1997) QPELR 208
Friend v Brisbane City Council [2014] QPELR 24
3 citations
Jump To
Cite 1 - [2014] QPELR 24
Cite 2 - [2014] QPELR 24
Cite 3 - [2014] QPELR 24
Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435
2 citations
Jump To
Cite 1 - [2009] QPELR 435
Cite 2 - [2009] QPELR 435
Grosser v Council of Gold Coast City (2001) 117 LGERA 153
2 citations
Jump To
Cite 1 - (2001) 117 LGERA 153
Cite 2 - (2001) 117 LGERA 153
Grosser v Gold Coast City Council (2001) 117 LGRA 153
2 citations
Jump To
Cite 1 - (2001) 117 LGRA 153
Cite 2 - (2001) 117 LGRA 153
Handley v Brisbane City Council (2005) QPELR 80
2 citations
Jump To
Cite 1 - (2005) QPELR 80
Cite 2 - (2005) QPELR 80
Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313
3 citations
Jump To
Cite 1 - (2000) QPELR 313
Cite 2 - (2000) QPELR 313
Cite 3 - (2000) QPELR 313
Holts Hill Quarries Pty Ltd v Gold Coast City Council[2001] 1 Qd R 372; [1999] QCA 510
3 citations
Jump To
Cite 1 - [2001] 1 Qd R 372
Cite 2 - [2001] 1 Qd R 372
Cite 3 - [2001] 1 Qd R 372
Hydrox Nominees Pty Ltd v Noosa Shire Council [2014] QPEC 18
2 citations
Jump To
Cite 1 - [2014] QPEC 18
Cite 2 - [2014] QPEC 18
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
3 citations
Jump To
Cite 1 - (2001) 116 LGERA 350
Cite 2 - (2001) 116 LGERA 350
Cite 3 - (2001) 116 LGERA 350
JPF Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359
2 citations
Jump To
Cite 1 - [2006] QPELR 359
Cite 2 - [2006] QPELR 359
Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64
1 citation
Jump To
Cite 1 - [2014] QPEC 64
Kangaroo Point Residents Association Inc v Brisbane City Council [2015] QPELR 230
3 citations
Jump To
Cite 1 - [2015] QPELR 230
Cite 2 - [2015] QPELR 230
Cite 3 - [2015] QPELR 230
Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271
3 citations
Jump To
Cite 1 - [2006] QCA 271
Cite 2 - [2006] QCA 271
Cite 3 - [2006] QCA 271
Lewiac Pty Ltd v Council of City of Gold Coast (1994) QPLR 318
1 citation
Jump To
Cite 1 - (1994) QPLR 318
Lewiac Pty Ltd v Council of the City of Gold Coast[1996] 2 Qd R 266; [1994] QCA 2
2 citations
Jump To
Cite 1 - [1996] 2 Qd R 266
Cite 2 - [1996] 2 Qd R 266
Lewiac Pty Ltd v Gold Coast City (1994) 83 LGERA 224
1 citation
Jump To
Cite 1 - (1994) 83 LGERA 224
Lockyer Valley Regional Council v Westlink Pty Ltd[2013] 2 Qd R 302; [2012] QCA 370
2 citations
Jump To
Cite 1 - [2013] 2 Qd R 302
Cite 2 - [2013] 2 Qd R 302
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
6 citations
Jump To
Cite 1 - (2003) QPELR 447
Cite 2 - (2003) QPELR 447
Cite 3 - (2003) QPELR 447
Cite 4 - (2003) QPELR 447
Cite 5 - (2003) QPELR 447
Cite 6 - (2003) QPELR 447
Mackay Shopping Centre Pty Ltd v Mackay Regional Council (2013) QPELR 661
4 citations
Jump To
Cite 1 - (2013) QPELR 661
Cite 2 - (2013) QPELR 661
Cite 3 - (2013) QPELR 661
Cite 4 - (2013) QPELR 661
Management Ltd v Pine Rivers Shire Council [2009] QPELR 337
1 citation
Jump To
Cite 1 - [2009] QPELR 337
Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333
2 citations
Jump To
Cite 1 - [2010] QCA 333
Cite 2 - [2010] QCA 333
Newton DCJ in Pacific Exchange Corporation Pty Ltd v Gold Coast City Council (1998) QPELR 335
1 citation
Jump To
Cite 1 - (1998) QPELR 335
Nordale Management Pty Ltd v Council of the Shire of Maroochy (1995) QPLR 368
2 citations
Jump To
Cite 1 - (1995) QPLR 368
Cite 2 - (1995) QPLR 368
Overton & Anor v Redcliffe City Council & Anor (2000) QPELR 250
3 citations
Jump To
Cite 1 - (2000) QPELR 250
Cite 2 - (2000) QPELR 250
Cite 3 - (2000) QPELR 250
Phil Fletcher Planning and Investment Services Pty. Ltd. V. Brisbane City Council (1991) QPLR 16
1 citation
Jump To
Cite 1 - (1991) QPLR 16
Prime Group Realty Ltd. v B.C.C. (1995) QPLR 173
1 citation
Jump To
Cite 1 - (1995) QPLR 173
Provincial Securities Pty Ltd v Brisbane City Council (2001) QPELR 143
2 citations
Jump To
Cite 1 - (2001) QPELR 143
Cite 2 - (2001) QPELR 143
R v Brisbane City Council; ex parte Read [1986] 2 Qd R 22
3 citations
Jump To
Cite 1 - [1986] 2 Qd R 22
Cite 2 - [1986] 2 Qd R 22
Cite 3 - [1986] 2 Qd R 22
Roosterland Pty Ltd v Brisbane City Council (1986) QPLR 515
2 citations
Jump To
Cite 1 - (1986) QPLR 515
Cite 2 - (1986) QPLR 515
Scullin v Brisbane City Council [1998] QPELR 12
1 citation
Jump To
Cite 1 - [1998] QPELR 12
Scurr v Brisbane City Council (1973) 133 C.L.R 242
3 citations
Jump To
Cite 1 - (1973) 133 C.L.R 242
Cite 2 - (1973) 133 C.L.R 242
Cite 3 - (1973) 133 C.L.R 242
Sellars Holdings Pty Ltd v Pine River Shire Council [1988] QPELR 12
2 citations
Jump To
Cite 1 - [1988] QPELR 12
Cite 2 - [1988] QPELR 12
SEQ Properties Pty Ltd v Maroochy Shire Council (1999) QPELR 36
3 citations
Jump To
Cite 1 - (1999) QPELR 36
Cite 2 - (1999) QPELR 36
Cite 3 - (1999) QPELR 36
Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85
2 citations
Jump To
Cite 1 - [2006] QPELR 85
Cite 2 - [2006] QPELR 85
Skateway Pty Ltd v Brisbane City Council (1980) QPLR 245
2 citations
Jump To
Cite 1 - (1980) QPLR 245
Cite 2 - (1980) QPLR 245
Stappen Pty Ltd v Brisbane City Council (2005) QPELR 466
2 citations
Jump To
Cite 1 - (2005) QPELR 466
Cite 2 - (2005) QPELR 466
Virdian Noosa Pty Ltd v Sunshine Coast Regional Council [2013] QPEC 54
2 citations
Jump To
Cite 1 - [2013] QPEC 54
Cite 2 - [2013] QPEC 54
Weightman v Gold Coast City Council & Anor (2003) Qd R 441
2 citations
Jump To
Cite 1 - (2003) Qd R 441
Cite 2 - (2003) Qd R 441
Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337
2 citations
Jump To
Cite 1 - (2004) QPELR 337
Cite 2 - (2004) QPELR 337
Wheldon v Logan City Council [2015] QPELR 640
2 citations
Jump To
Cite 1 - [2015] QPELR 640
Cite 2 - [2015] QPELR 640
Wilispap Pty Ltd v Mulgrave Shire Council (1992) QPLR 51
3 citations
Jump To
Cite 1 - (1992) QPLR 51
Cite 2 - (1992) QPLR 51
Cite 3 - (1992) QPLR 51
Wingate Pty Ltd v Brisbane City Council (2001) QPELR 272
1 citation
Jump To
Cite 1 - (2001) QPELR 272
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
2 citations
Jump To
Cite 1 - [2006] 1 Qd R 273
Cite 2 - [2006] 1 Qd R 273
Yu Feng Pty Ltd v Maroochy Shire Council[2000] 1 Qd R 306; [1996] QCA 226
3 citations
Jump To
Cite 1 - [2000] 1 Qd R 306
Cite 2 - [2000] 1 Qd R 306
Cite 3 - [2000] 1 Qd R 306
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
2 citations
Jump To
Cite 1 - (2014) 201 LGERA 82
Cite 2 - (2014) 201 LGERA 82
ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd[1992] 1 Qd R 352; [1991] QSCFC 123
2 citations
Jump To
Cite 1 - [1992] 1 Qd R 352
Cite 2 - [1992] 1 Qd R 352

Cases Citing

Case NameFull CitationFrequency
Adpen Pty Ltd v Moreton Bay Regional Council [2019] QPEC 592 citations
King of Gifts (Qld) Pty Ltd v Redland City Council [2017] QPEC 642 citations
Lipoma Pty Ltd v Redland City Council [2019] QPEC 431 citation
Lipoma Pty Ltd v Redland City Council [2020] QCA 180 1 citation
Nerinda Pty Ltd v Redland City Council[2019] 1 Qd R 523; [2018] QCA 1462 citations
Nerinda Pty Ltd v Redland City Council (No 2) [2018] QCA 1961 citation
1

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