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  4. Emmanuel Drivas v Brisbane City Council - [2021] QPEC 68

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Emmanuel Drivas v Brisbane City Council[2021] QPEC 68

Emmanuel Drivas v Brisbane City Council[2021] QPEC 68

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Emmanuel Drivas v Brisbane City Council & Anor [2021] QPEC 68

PARTIES:

EMMANUEL DRIVAS

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

AND

CAPITAL TRANSACTIONS PTY LTD ACN 097 160 435

(Co-Respondent)

FILE NO:

650/21

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

 

DELIVERED ON:

8 December 2021

DELIVERED AT:

Brisbane

HEARING DATES:

15 – 18 and 29 – 30 November 2021

JUDGE:

Everson DCJ

ORDER:

Appeal allowed to the extent of the imposition of agreed revised conditions of approval

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against approval of a supermarket, liquor store and office in the low medium residential zone

PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with the planning scheme – whether there is a need for the proposed development

LEGISLATION:

Planning and Environment Court Act 2016 (Qld) ss 43, 45 and 46.

Planning Act 2016 (Qld) ss 45 and 60.

CASES:

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

Wilhelm v Logan City Council & Ors [2020] QCA 273

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147

Isgro v Gold Coast City Council & Anor [2003] QPELR 414

Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675

7-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2005] QPEC 70

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

COUNSEL:

B D Job QC and J G Lyons for the appellant

J Ware for the respondent

M J Batty and S J Hedge for the co-respondent

SOLICITORS:

Hopgood Ganim Lawyers for the appellant

City Legal for the respondent

Connor O'Meara for the co-respondent

Introduction

  1. [1]
    This is a submitter appeal against the approval by the respondent of a development application for a development permit for a material change of use for a Shop (Supermarket, Liquor Store) and Office and a development permit for building work to reposition a pre-1946 building (“the proposed development”) on land situated at 776, 786, 792 and 800 Ipswich Road, and 10 Aubigny Street, Annerley (“the land”).
  2. [2]
    Essentially the proposed development is focused upon a full-line supermarket and associated liquor store in a location which is considerably at variance with the respondent’s planning strategies evident in Brisbane City Plan 2014 (“the planning scheme”).  It is asserted by both the co-respondent and respondent that the significant level of need for a full-line supermarket in this location justifies approval of the proposed development notwithstanding the significant variance with the planning scheme.

The proposed development

  1. [3]
    Each of the town planning experts who gave evidence at the hearing of the appeal agreed that the proposed development should be characterised as a neighbourhood centre pursuant to the planning scheme.[1] This is appropriate and the hearing was conducted on this premise. The dominant component of the proposed development is a full-line Coles supermarket with a Gross Floor Area (“GFA”) of 3,639.8 m2.[2]  Adjacent to it, it is proposed that a Liquorland with a GFA of 161.2m2 will be situated.[3]  The supermarket building and liquor store will constitute a single level of retail space with two levels of parking below.  The three level design accommodates the fall of the land.[4]  The height of the retail building is generally less than 11.5 metres and all servicing is to be accessed off Ipswich Road utilising a separate loading dock.[5]  The office component will involve the adaptive re-use of a character dwelling facing Aubigny Street, which is uncontentious.[6]
  2. [4]
    In order to properly address noise impacts of the proposed development, significant acoustic barriers are required to the north and north-east of the land, including a 3.5  metre acoustic barrier along most of the eastern boundary adjoining 15 Aubigny Street.[7] The eastern boundary of the land adjoins residential development and landscaping involving deep planting is proposed along this frontage with the exception of the area which will be occupied by the 3.5 metre acoustic barrier.[8] Less significant landscaping is proposed adjacent to the 3.5 metre acoustic barrier and along the western frontage of the land adjacent to Ipswich Road.[9]

The land and the surrounding area

  1. [5]
    The land has an area of 6,683m2 and is located on the eastern side of Ipswich Road near the intersection with School Road and opposite Yeronga Memorial Park. It has a frontage to Ipswich Road of approximately 100 metres and to Aubigny Street of approximately 21 metres.[10] It is currently vacant except for a house at 776 Ipswich Road and the character house that is intended to be converted into an office as part of the proposed development, which is located at 11 Aubigny Street.[11] A BP service station is located to the south of the land and a pre-1946 building is located on the corner of Ipswich Road and Aubigny Street to the north. There are six detached houses located on sites adjoining the eastern boundary of the land.[12] Ipswich Road is a busy arterial road comprising two lanes in each direction, plus a turning lane approaching the signalised intersection with School Road, adjacent to the southern part of the land.[13]
  2. [6]
    The land is part of a large area designated Suburban Living Area pursuant to the planning scheme.[14] It is located within the Moorooka-Stephens neighbourhood plan[15] and is predominantly within the Low-medium density residential (2 or 3-storey mix) zone (“LMDR Zone”).[16] A small, centrally located part of the land is zoned SP4 Special purpose (utility services).  Each of the planning experts agree that this zoning is a historical anomaly and not relevant to the determination of this appeal.[17]

The statutory assessment framework

  1. [7]
    Pursuant to the Planning and Environment Court Act 2016 (“PECA”) the appeal is by hearing anew,[18] and the co-respondent must establish that the appeal ought to be dismissed.[19] Section 46 of the PECA addresses the nature of an appeal and relevantly provides:

“(2) The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if –

  1. (a)
    the P&E Court were the assessment manager for the development application; and
  2. (b)
    the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.”
  1. [8]
    As the proposed development was impact assessable, s 45 of the Planning Act 2016 (“PA”) provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances before me, are the relevant provisions of the planning scheme.[20] It must also be carried out having regard to any matters prescribed by regulation.[21] In this regard, s 31(f) of the Planning Regulation 2017 states that I must have regard to “any development approval for, and any lawful use of” the land or adjacent premises. Furthermore, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[22]
  2. [9]
    The court in determining an appeal about a development application is conferred a wide discretion pursuant to section 60 of the PA which relevantly states:

“(3) To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide—

  1. (a)
    to approve all or part of the application; or
  2. (b)
    to approve all or part of the application, but impose development conditions on the approval; or
  3. (c)
    to refuse the application.”
  1. [10]
    In undertaking this task, the observations of Mullins J in Abeleda & Anor v Brisbane City Council & Anor are instructive:

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

[43]  In view of the fact that s 60(3) of the Act reflects a deliberate departure on the part of the Legislature from the two part test under s 326(1)(b) of the SPA, it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved. The decision-maker may be balancing a number of factors to which consideration is permitted under s 45(5) of the Act in making the decision under s 60(3) of the Act where the factors in favour of approval (or approval subject to development conditions) have to be balanced with the factors in favour of refusal of the application. The weight given to each of the factors is a matter for the decision-maker in the circumstances...”[23]

  1. [11]
    Mullins J further observed in Wilhelm v Logan City Council & Ors:

“[77]  …The change in the decision-making regime has not affected the fundamental nature of a planning scheme as the reflection of the public interest in the appropriate development of land.”[24]

The applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council, notably that the same principles which apply to statutory construction apply to the construction of planning documents,[25] and that such documents need to be read as a whole in a way which is practical and as intending to achieve a balance between outcomes.[26]

The relevant provisions of the planning scheme

  1. [12]
    In the planning scheme, s 1.5 provides that where there is inconsistency between provisions in the planning scheme, “the strategic framework prevails over all other components, to the extent of the inconsistency for impact assessment”.[27]  The role of the strategic framework is set out in s 3.1 which relevantly provides:

“The strategic framework sets the policy direction for the planning scheme and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of the planning scheme.

…

  1. For the purpose of describing the policy direction for the planning scheme, the strategic framework is structured in the following way:

…

e. the specific outcomes sought for each or a number of elements;

f. the land use strategies for achieving each of these outcomes.”[28]

  1. [13]
    Under the heading “Strategic Intent”, s 3.2.1 provides that:

“A network of well-connected centres and community services provides choice to consumers and caters to the service, social, entertainment and leisure needs of residents.”[29]

  1. [14]
    Similar general statements are set out in s 3.3.1 as strategic outcomes before Theme 1 in the strategic framework.[30]
  2. [15]
    Element 1.3 entitled “Brisbane’s population-serving economy” contains specific outcome SO1 which states “Brisbane provides for a diverse mix of highly accessible retail and commercial locations to service a growing population.”[31] Thereafter in s 3.1.7.1.g, the Strategic outcome pursuant to Theme 5: Brisbane’s City Shape, it is stated that Suburban Living areas:

“represent the majority of established residential suburbs in Brisbane where growth occurs in response to local needs and impacts on local amenity and values are carefully considered”.[32]

  1. [16]
    Of particular relevance are the following Specific outcomes and Land use strategies set out in 3.7.6 of the planning scheme under Element 5.5 – Brisbane’s Suburban Living Areas:

SO6

Neighbourhood centres offer small-scale, low-impact local convenience services.

 

L6.1

Neighbourhood centres are interspersed within residential neighbourhoods and function as local neighbourhood service providers.

L6.2

Neighbourhood centres are of a scale which is consistent with surrounding detached housing.

L6.3

A new neighbourhood centre which is not in a location provided for in a zone, zone precinct, or neighbourhood plan is to:

  1. have a gross floor area of 2,500m2 or less and a maximum tenancy size of 2,000m2 or less;
  2. have a frontage predominantly to a major road;
  3. have vehicle site access from a suburban road, a district road or a neighbourhood road;
  4. be 400m or less walking distance from a dedicated public pedestrian access point of a public transport stop or station with a service frequency of 3 or more services per hour in peak periods;
  5. be more than 400m from an existing retail based centre;
  6. manage the impact on the amenity and character of adjacent uses and the locality consistent with the overall outcomes for the zone, zone precinct and neighbourhood plan for the surrounding uses and locality.[33]
  1. [17]
    The centres strategy of permitting new neighbourhood centres to emerge but limiting their size and impacts is carried through in the following provisions of the Low-medium density residential zone code:

“6.2.1.2 Low-medium density residential zone code

  1. The purpose of the low-medium density residential zone is to provide for:
  1. a variety of dwelling types, including dwelling houses and low to medium density multiple dwellings; and
  2. community uses, and small-scale services, facilities and infrastructure, to support local residents.

…

  1. Development location and uses overall outcomes are:

…

  1. Development for a compatible and individual small-scale non-residential use which is a community care centre, community use, health care service, office, shop or veterinary service (together with any associated caretaker’s accommodation or dwelling unit) where not on land within the Commercial character building overlay or the Active frontages in residential zones overlay, is to:
  1. have a gross floor area of less than 250m2;
  2. serve local residents’ day-to-day needs;
  3. not undermine the viability of a nearby centre.
  1. Development which would result in the co-location of new non-residential uses may only occur along an active frontage identified on the Active frontages in residential zones overlay map or where located in two or more adjoining commercial character buildings.

…

  1. Development for any other non-residential use serves a local community facility need only such as a childcare centre or a substation.
  1. Development form overall outcomes are:

…

  1. Development provides for a building to have a building height and bulk that responds to:
  1. the nature of adjoining dwellings;
  2. site characteristics, including the shape, frontage, size, orientation, slope, and nature of adjoining dwellings.

…

  1. 2 or 3 storey mix zone precinct overall outcomes are:
  1. Development comprises a mix of dwelling types including dwelling houses, 2 to 3 storey low rise multiple dwellings (such as apartments and row houses) and dual occupancy, to provide housing diversity and a sensitive transition both to adjoining sites that contain dwelling houses and between busier roads or centres and lower density residential areas.

…

  1. Development design, height and setbacks provide a sensitive transition at the edge of the site to an adjoining dwelling house or land in a lower density zone or zone precinct.”[34]
  1. [18]
    Although the proposed development is not in the Neighbourhood centre zone, the following provisions of the Neighbourhood centre zone code are identified by the parties for consideration, given that it is common ground that the proposed development will create a neighbourhood centre:

“6.2.2.4 Neighbourhood centre zone code

  1. The purpose of the neighbourhood centre zone is to provide for:
  1. a small variety of uses and activities to service local residents; and
  2. other small-scale uses and activities that directly support local residents, including, for example, community services, convenience shops or offices.

…

  1. Zone role overall outcomes are:
  1. Development in the zone supports the implementation of the policy direction set in the Strategic framework;

…

  1. Development location and uses overall outcomes are:
  1. Development provides a range of centre activities, comprising commercial, retail, service and community functions, with a level of economic and social activity that serves the convenience needs of the local neighbourhood catchment.

…

  1. Development serves local resident needs and complements the surrounding lower density residential environment.”[35]
  1. [19]
    The Moorooka–Stephens district neighbourhood plan code contains the following provisions which are designed to protect amenity and reinforce the centres strategy running through the planning scheme:

“3. The overall outcomes for the neighbourhood plan area are the following:

  1. Character housing is complemented by new housing types that meet the needs of the community.

…

  1. Moorvale shopping centre precinct (Moorooka-Stephens district neighbourhood plan/NPP-002) overall outcomes are:
  1. The shopping centre provides retailing and personal services for the district while maintaining the existing character of the centre.”[36]
  1. [20]
    Finally, there are provisions of the Centre or mixed use code that are identified as relevant:

“9.3.3  Centre or mixed use code

…

  1.  The purpose of the code will be achieved through the following overall outcomes:

…

  1. Development intensity, bulk, scale and form is:
  1. consistent with the intended function, spatial arrangement and type of centre or corridor, as expressed in the zone, zone precinct and neighbourhood plan outcomes;
  2. articulated and detailed to achieve a positive streetscape outcome.

…

  1. Development manages visual, air, odour and noise impacts through appropriate use mix, siting and building design, to achieve a level of amenity consistent with the zone, zone precinct and neighbourhood plan outcomes, and recognising that residential amenity in a centre and mixed use area will not be to the same level that might be expected in residential zones and areas.

…

PO21

Development ensures that the building bulk and scale is consistent with the intended form and character of the centre, mixed use or local area considering:

  1. existing buildings to be retained;
  2. existing significant vegetation;
  3. significant infrastructure constraints;
  4. adjoining existing and proposed building height;
  5. adjoining existing and proposed building setbcks and separation of buildings necessary to ensure impacts on amenity and privacy are minimised;
  6. building height transitions where required.

PO28

Development is of an intensity that supports both the strategic and local role and function of the centre or mixed use area and the development of a vibrant public realm considering the capacity of infrastructure.

PO33

Development ensures that building bulk and scale:

  1. is consistent with the form and character intent for the local area and street;
  2. is reduced by design elements to provide:
  1. visual interest and contribution to the character of the centre or mixed use area;
  2. reflection of valued local form elements such as podium or parapet heights in traditional strip shopping centres;
  3. adequate amenity for building occupants and residents  in terms of access to natural light and ventilation;
  4. a comfortable and attractive pedestrian environment;
  5. a building base which exhibits a human-scale and fine-grain building rhythm;
  6. variations in horizontal and vertical profile.”[37]

The issues in dispute

  1. [21]
    The issues in dispute narrowed considerably during the hearing of the appeal. Traffic impacts of the proposed development were very much in issue until the traffic engineers engaged by the parties were able to resolve them.  Notably, access to Aubigny Street is to be conditioned entry only.[38] Furthermore, it is now common ground that visual amenity is not a ground which warrants refusal of the proposed development.[39]  It must be stressed, however, that the appellant still maintains that the impacts of the 3.5 metre acoustic barrier on the amenity of the residents of 15 Aubigny Street are such as to warrant refusal of the proposed development. 
  2. [22]
    In their latest iteration,[40] the list of disputed issues commences with the assertion that the proposed development does not advance the outcomes sought by provisions of the planning scheme referred to above, and that in particular it:
  1. is not located where such development is envisaged;
  2. is not small-scale or low-impact and is intended to serve a catchment far beyond that embodied in the concept of providing for local convenience services;
  3. does not provide a small variety of uses and activities or other small-scale uses and activities, to service and directly support local residents;
  4. does not provide a range of centre activities that serve the convenience needs of the local neighbourhood catchment;
  5. is not of a scale that is consistent with surrounding housing, constitutes commercial ribbon development and is incompatible with the intended character of Ipswich Road in this locality;
  6. compromises the vitality of existing and approved centres servicing the area; and
  7. does not appropriately manage its impact on amenity and character.
  1. [23]
    Whether or not there is a need for the proposed development and the extent of it, is very much in issue.
  2. [24]
    The co-respondent and the respondent also raise a number of relevant matters. However, aside from need, none would justify approving the proposed development in the face of such inconsistencies with the planning intent for the land. For the sake of completeness, these relevant matters include improved choice, convenience and competition for the community, the suitability of the land for the proposed development, an absence of impacts, and the renovation and adaptive use of an existing pre-1946 character house.[41] The last matter is of no weight given the outcome is what the planning scheme seeks anyway.
  3. [25]
    Whether or not the proposed development accords with community expectations is raised by all parties. I merely observe that the expectations of the community are founded in the provisions of the planning scheme, however, the community also expects that where there is a significant need for a use, it will be accommodated and provided.
  4. [26]
    Although not specifically abandoned, the appellant only relies on the requirement of an “active frontage” to the extent that the land is not mapped as such, and this is not of any particular significance in the exercise of my discretion in determining the appeal.[42]

Compliance with the planning scheme

  1. [27]
    The co-respondent’s case asserts that the strategic framework prevails over all other components of the planning scheme to the extent of any inconsistency.[43] The strategic framework makes express provision in L6.3 of s 3.7.6 for new neighbourhood centres and the co-respondent asserts that elements of the zone codes which could limit this provision should not stand in the way of giving effect to it. It is readily conceded by the co-respondent that the proposed development does not comply with assessment benchmarks in relation to scale which seek to restrict neighbourhood centres to small-scale convenience services, having a gross GFA of 2,500m2 or less and a maximum tenancy of 2,000m2 or less.[44] In this regard, where the supermarket itself is intended to have a GFA of 3,639.8m2, there is a gross exceedance of these requirements in L6.3. 
  2. [28]
    The proposed supermarket is much larger than any other identified in a neighbourhood centre in Brisbane.[45] Unsurprisingly, the scale of the proposed development is also inconsistent with numerous provisions of the codes referred to above, which are reflective of the centres strategy evident in the strategic framework. In this regard, it will not, for example, serve a local community facility need only as specified in s 6.2.1.2.4.p of the Low-medium density residential zone code.[46]
  3. [29]
    Another provision of s 3.7.6 which is contentious is whether the proposed development is more than 400 metres from the existing retail based centre as required by L6.3.e. None of the retail economists who gave evidence refer to a centre closer than the Moorvale district centre which is 1.1 kilometres from the land.[47] In circumstances where this is not a defined term, I accept the evidence of Mr Buckley that this is the closest existing retail based centre. I was unconvinced by Mr Perkins, the town planner who gave evidence on behalf of the appellant, and his attempts to demonstrate that this provision was offended because, on an exercise he conducted using Google Maps, he found that the northern edge of the land was a few metres short of 400 metres by way of a direct line through numerous private properties to the edge of the neighbourhood centre occupied by the Chardons Corner Hotel.[48]

Amenity

  1. [30]
    As noted above, very little remains contentious from an amenity perspective.  I am satisfied that the design of the proposed development adequately manages amenity and character impacts from an architectural, noise and traffic perspective to the extent that this remains contentious, and that it will not result in commercial ribbon development. I accept the evidence of Mr Ryan, the planner who gave evidence on behalf of the respondent, that this is a term that refers to multiple commercial tenancies, each with their own access to a road.  I agree with the evidence of Mr Ryan and Mr Buckley, the town planner who gave evidence on behalf of the co-respondent, that this concept does not arise on the facts before me, given the current design of the proposed development.[49]
  2. [31]
    So far as the impacts on 15 Aubigny Street of the 3.5 metre acoustic fence are concerned, I note that the impacts of the proposed development need to be assessed having regard to an existing development approval over the land for 94 multiple dwellings. This consists of two four-storey buildings including basement parking with all access provided via Aubigny Street.[50]  Pursuant to that approval, in the vicinity of 15 Aubigny Street, a 1.8-metre-high over-lapping timber fence was proposed.[51] Obviously, the 3.5 metre acoustic barrier is significantly higher. However, in circumstances where there is already, in my view, a poor amenity outcome from overlooking Ipswich Road and the consequential noise from significant volumes of traffic, and where a sympathetic landscape treatment is proposed,[52] I am of the view that this of itself does not give rise to an unreasonable amenity impact which is such as to justify refusing the proposed development. It still provides adequate amenity outcomes in terms of access to natural light and ventilation.[53]
  3. [32]
    Suffice to say, I am satisfied that the proposed development will not give rise to any actual amenity impacts which would justify refusing it. It is not low-impact, but the impacts are appropriately managed. However, it remains significantly inconsistent with what is contemplated by the centres strategy reflected in provisions of the planning scheme quoted above.

Need

  1. [33]
    The co-respondent argues that notwithstanding the significant divergence from the planning strategy evident in the planning scheme in terms of the scale of the proposed development, it is nonetheless justified because of the overwhelming need for it.  The concept of planning need was explained by Wilson SC DCJ in Isgro v Gold Coast City Council & Anor in the following terms:

“Need, in planning terms is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community…of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met…”[54]

  1. [34]
    Three experts in retail economics gave evidence at the hearing of the appeal. Mr Ganly gave evidence on behalf of the co-respondent, Mr Brown gave evidence on behalf of the respondent and Mr Leyshon gave evidence on behalf of the appellant. They agreed the catchment for the proposed development for the purposes of their analysis which is shown in Figure 3 of the Joint Need Report (“the catchment”).[55] The catchment was stated to reflect, among other things, the location of competing supermarkets, the road network, and the presence of geographical and man-made barriers to movement.[56]  The identified catchment particularly takes into account the presence of barriers to movement such as the Beenleigh train line to the west and the Pacific Motorway to the east.[57] The experts could not identify any new land which has been zoned for centre uses within the catchment since 2000, in circumstances where the population of the catchment has grown by more than 10,000 people since that time.[58]
  2. [35]
    Within the catchment there are two existing full-line supermarkets, both located on major arterial roads and both operated by Woolworths. Both supermarkets are located within district centres. The Moorvale district centre, as noted above, is located approximately 1.1 kilometres south of the land and the Annerley district centre is located 1.1 kilometres north of it. Supermarkets are located just outside the catchment at the Fairfield Gardens district centre, which is anchored by a full-line Coles supermarket and also contains a smaller Aldi supermarket. The Buranda district centre, the Greenslopes Mall district centre, and the Logan Road district centre are all further afield, but a short drive from the proposed development.  As Mr Leyshon conceded during cross-examination, it is unsurprising that there are over-lapping supermarket catchments in a metropolitan capital city like Brisbane.[59] 
  3. [36]
    The experts agreed that there were three methods by which to measure the need for the proposed development. The first basis was the population basis, applying the “well-established rule of thumb that there should be one full-line supermarket provided for every 8,000 – 10,000 residents within a metropolitan area.”[60] The experts agreed that the catchment could be supplied with two to three more full-line supermarkets to meet this benchmark.[61] 
  4. [37]
    The experts also considered a floor space basis of assessment. Based on the current provision of supermarkets within metropolitan Brisbane being 367 m2 per 1,000 people, Mr Ganly asserted that the current under-supply of supermarket floor space is 8,057 m2.[62]  Mr Leyshon expressed the view that this exaggerated the theoretical under-supply of supermarket floor space in the catchment area and Mr Brown expressed the view that an allowance needed to be made for 28 per cent of demand being met outside the catchment.[63]
  5. [38]
    The expenditure basis of calculating need was then undertaken by Mr Brown. He allowed for trade area supermarkets to capture 70 per cent of the available supermarket expenditure before concluding that this analysis supported the provision of additional supermarket floor space within the trade area of between 15,862 m2 and 12,202 m2.[64]  Mr  Leyshon disagreed on the need for a proposed supermarket because need “in this instance is heavily influenced by the selection of the boundaries of the catchment area”.[65] Effectively, Mr Leyshon expressed the view that there would be greater leakage than was allowed for by Mr Brown.
  6. [39]
    I found the approach of Mr Leyshon disingenuous. An analysis of planning need requires a catchment to be identified as a starting point.  While Mr Leyshon took no issue with the identification of the catchment, which in my view appropriately reflected barriers which limited accessibility to supermarket based centres beyond it, he nonetheless attempted to walk back this agreed position during the course of his evidence. Because of the presence of nearby supermarkets and overlapping catchments, he maintained that there would be more leakage of expenditure out of the catchment than the analysis of the other experts.  Under cross-examination, despite initially conceding that there was a need for the proposed development on the land based on each of the three methods of analysis,[66] he then qualified his answer by saying that this disregarded “the fact that there are supermarkets just outside the trade area”.[67]
  7. [40]
    In my view, on each analysis undertaken, there is a very significant need for the proposed development. I prefer the evidence of Mr Ganly and Mr Brown to that of Mr Leyshon and am of the view that an allowance of 30 per cent for the patronage of supermarkets outside the catchment by residents within it, represents sufficient allowance for demand being met at supermarkets outside the catchment.
  8. [41]
    Each of the experts agreed that there is a need for the proposed liquor store on the land.[68] 
  9. [42]
    Both the supermarkets within the catchment and other shops appear to be trading well. There is no vacant retail space within the Moorvale district centre and only 520  metres of vacant retail space within the Annerley district centre. Confidential evidence placed before me demonstrated that each of the full-line Woolworths supermarkets within these centres was trading at a level well above an acceptable base level of turnover.[69] None of the experts suggested that a supermarket would close as a consequence of the proposed development, however, Mr Leyshon expressed the view that “it would compromise the vitality of” the two Woolworths supermarkets within the catchment.  In addressing this proposition, it is important to bear in mind the observations of Stephen J in Kentucky Fried Chicken v Gantidis:

“…the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse impact upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration”.[70]

  1. [43]
    There is an intention expressed in the Low-medium density residential zone code that the proposed development “not undermine the viability of a nearby centre”.[71] On the evidence before me, each of the centres within the catchment will remain viable should the proposed development be approved.  I can see no basis to inject a test based on vitality which is a concept not called up by the planning scheme nor by established legal principles set out in Gantidis above.[72] 
  2. [44]
    From a need perspective, an issue was also raised as to whether or not such a large, full-line supermarket is justified.  As Mr Ganly conceded in cross-examination, full-line supermarkets start at 2,500 m2 “and move upwards from there”.[73] There are numerous examples of smaller supermarkets serving catchments in Brisbane. The evidence of Mr Ashley, the Queensland State Leasing Manager for Coles Supermarkets Australia Pty Ltd, was that the proposed development was the appropriate size for the location in circumstances where customers now shop several times a week rather than weekly or fortnightly, seeking a greater range of choice in terms of products, which can only be provided by a full-line supermarket.[74]  I accept that the proposed development will serve local residents’ day-to-day needs and local convenience needs,[75] despite its size and the extent of its stock.  This remains the case despite the fact it will also attract custom from further afield.  As Rackemann DCJ observed in 7-Eleven Stores Pty Ltd v Pine Rivers Shire Council:

“Provisions of this kind should be construed and applied in a practical rather than pedantic way.  I do not consider that the custom from further afield disentitles this facility from properly being considered as a local level facility, a facility which usefully adds to a range of services offered to the population catchment of the local centre and which is consistent with the character of the precinct.  The use is not one which conflicts with the evident planning intent of those provisions.”[76]

These observations were approved by the Court of Appeal in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors.[77]

  1. [45]
    I accept the evidence of both Mr Ashley,[78] and Mr Buckely that there is nowhere else within the catchment where the proposed development could realistically locate.[79]  I also accept the evidence of Mr Buckley that the proposed development is extremely well-located, being “well separated and almost equidistant from the Woolworths on Ipswich Road to the north…and the Woolworths…on Beaudesert Road to the south”.[80] Even Mr Leyshon conceded that the land was a good location for the proposed development,[81] and that a site like this for the proposed development would be difficult to locate.[82]
  2. [46]
    I also acknowledge that the proposed development will offer some choice to customers within the catchment who may prefer not to shop at a Woolworths supermarket, however this is very much a subsidiary consideration in assessing the level of need for the proposed development, which is extreme regardless of this consideration.
  3. [47]
    Overall, on the facts before me, I am satisfied that there is an overwhelming need for an additional full-line supermarket in the catchment, whatever analysis of need considered by the relevant experts is adopted.  I am satisfied that the land is ideally located to meet this need and that there is no other land nearby which is capable of meeting it at the present time.  There is a difference between the demand which a full-line supermarket and that which a smaller supermarket can meet, and it is the former which has been the focus of my assessment of need. No other centre, much less supermarket, within the catchment will become unviable as a consequence of the proposed development.

Conclusion

  1. [48]
    Although there are significant instances of non-compliance with the centres strategy set out in the planning scheme, the strategic framework nonetheless provides an opportunity of meeting a need for the creation of a neighbourhood centre.  Although the supermarket component of the proposed development and the proposed development itself greatly exceed the GFA limits which the strategic framework contemplates and which are expressed elsewhere in the planning scheme, the proposed development will meet the identified overwhelming need for it in circumstances where it does not create any notable impacts on amenity of any consequence.
  2. [49]
    Although the overwhelming need for the proposed development and the absence of impacts are the most significant relevant matters which justify approving the proposed development, notwithstanding the failure of it to comply with the relevant planning provisions referred to above, it is also a compelling relevant matter that the proposed development is ideally located to provide a full-line supermarket within the identified catchment.
  3. [50]
    Although the co-respondent and the respondent seek an order that the appeal be dismissed, I am conscious of the need to amend the conditions of approval to give effect to the agreed position of the noise experts and the traffic experts. Accordingly, the appeal will be allowed only to this extent.
  4. [51]
    I therefore allow the appeal only to the extent that revised conditions of approval be imposed to give effect to the agreed position of all relevant experts.

Footnotes

[1]Exhibit 3.05, para 15.

[2]Ibid, para 41.

[3]Exhibit 8.01, p 5.

[4]Exhibit 3.05, para 44.

[5]Ibid, paras 46 and 47.

[6]Ibid, para 48.

[7]Exhibit 3.03, p 49.

[8]Ibid.

[9]Ibid.

[10]Exhibit 3.01, para 7.

[11]Ibid, para 9.

[12]Ibid, para 13.

[13]Ibid, para 11.

[14]Exhibit 3.05, para 56.

[15]Ibid, para 61.

[16]Exhibit 3.01, para 14.

[17]Exhibit 3.05, para 64.

[18]Planning & Environment Court Act 2016 (Qld) s 43.

[19]Ibid s 45(2).

[20]Planning Act 2016 (Qld) s 45(5)(a)(i).

[21]Ibid s 45(5)(a)(ii).

[22]Ibid s 45(5)(b).

[23][2020] QCA 257.

[24][2020] QCA 273.

[25][2014] QCA 147 at [52].

[26]Ibid at [56].

[27]Exhibit 2.01, p 14.

[28]Ibid, p 20.

[29]Ibid, p 21.

[30]Ibid, p 24.

[31]Ibid, p 26.

[32]Ibid, p 30.

[33]Ibid, p 38.

[34]Ibid, pp 63-64.

[35]Ibid, p 65.

[36]Ibid, p 72.

[37]Ibid, pp 78 – 86.

[38]Exhibit 3.07, paras 123 – 127.

[39]T6-8, ll 1-20.

[40]Exhibit 9.06.

[41]Ibid, paras 9-19.

[42]Written submissions on behalf of the appellant, para 28.

[43]Exhibit 2.1, p 14, s 1.5.

[44]Written submissions on behalf of the co-respondent, para 9; Exhibit 2.01, p 38, SO6 and L6.3.

[45]Exhibit 4.03, para 43.

[46]Exhibit 2.01, p 63.

[47]Exhibit 3.04, p 25.

[48]Exhibit 11.08.

[49]Exhibit 3.05, paras 115 and 119.

[50]Planning Regulation 2017, s 31(1)(f).

[51]T6-10, ll 10-30.

[52]Exhibit 3.01, p 37.

[53]Exhibit 2.01, p 86, Centre or mixed use code, PO33.

[54][2003] QPELR 414 at [21].

[55]Exhibit 3.04, pp 14 and 15.

[56]Ibid, p 15.

[57]Ibid, p 44.

[58]Ibid, p 12.

[59]T4-18, ll 30-36.

[60]Exhibit 3.04, pp 39-40.

[61]Ibid.

[62]Ibid, p 40.

[63]Ibid, p 41.

[64]Ibid, p 42.

[65]Ibid.

[66]T4-32, ll 20-30.

[67]T4-33, ll 15-25.

[68]Exhibit 3.04, p 46.

[69]Restricted access transcript, pp 6-7.

[70](1979) 140 CLR 675, p 687.

[71]Exhibit 2.01, p 63, s 6.2.1.2.4.m.iii.

[72]Ibid.

[73]T3-13, ll 20-21.

[74]Exhibit 5.01, paras 7 – 12.

[75]Exhibit 2.01, p 63, s 6.2.1.2.4.m.iii; p 65, s 6.2.2.4.4.a.

[76][2005] QPEC 70 at [10].

[77][2021] QCA 95 at [81] per Brown J.

[78]Exhibit 5.01, para 20.

[79]Exhibit 4.03, para 42.

[80]Ibid, para 13.

[81]T4-30, ll 20-24.

[82]T4-31, ll 20-23.

Close

Editorial Notes

  • Published Case Name:

    Emmanuel Drivas v Brisbane City Council & Anor

  • Shortened Case Name:

    Emmanuel Drivas v Brisbane City Council

  • MNC:

    [2021] QPEC 68

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    08 Dec 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
2 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Isgro v Gold Coast City Council (2003) QPELR 414
2 citations
Jump To
Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
2 citations
Jump To
Cite 1 - (1979) 140 CLR 675
Cite 2 - (1979) 140 CLR 675
Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council [2005] QPEC 70
2 citations
Jump To
Cite 1 - [2005] QPEC 70
Cite 2 - [2005] QPEC 70
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
2 citations
Jump To
Cite 1 - [2021] QCA 95
Cite 2 - [2021] QCA 95
Wilhelm v Logan City Council [2020] QCA 273
2 citations
Jump To
Cite 1 - [2020] QCA 273
Cite 2 - [2020] QCA 273
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
3 citations
Jump To
Cite 1 - [2014] QCA 147
Cite 2 - [2014] QCA 147
Cite 3 - [2014] QCA 147

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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