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Fabcot Pty Ltd v Cairns Regional Council (No. 3)[2022] QPEC 12

Fabcot Pty Ltd v Cairns Regional Council (No. 3)[2022] QPEC 12

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Fabcot Pty Ltd v Cairns Regional Council & Ors (No. 3) [2022] QPEC 12

PARTIES:

FABCOT PTY LTD ACN 002 960 983

(Appellant)

v

CAIRNS REGIONAL COUNCIL

(Respondent)

AND

DEXUS FUNDS MANAGEMENT ACN 060 920 783

AND

CAIRNS COMBINED BEACHES COMMUNITY ASSOCIATION INC

(Second Co-Respondent by Election)

AND

INDIGENOUS BUSINESS ASUTRALIA AS TRUSTEE FOR THE IREIT SUB-TRUST

(Third Co-Respondent by Election)

AND

TRINITY PARK INVESTMENTS PTY LTD ACN 123 732 525 ATF AND L’ARMONIA PTY LTD ACN 140 784 756

(Fourth Co-Respondent by Election)

FILE NO:

201 of 2018, 221 of 2018, 223 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeals

ORIGINATING COURT:

Planning and Environment Court, Cairns

DELIVERED ON:

3 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

4 – 7 April 2022

JUDGE:

Everson DCJ

ORDER:

  1. Appeal 201 of 2018 will be allowed subject to the imposition of appropriate lawful conditions;
  2. Appeal 221 of 2018 is dismissed; and
  3. Appeal 223 of 2018 is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEALS – appeals against a preliminary approval for a Shopping Centre and Health Care Services and a development permit for a Child Care Centre, Service Station and Food and Drink Outlet and reconfiguring a lot and operational work in the Low-medium density residential zone

ASSESSMENT – LACK OF COMPLIANCE WITH THE PLANNING SCHEME – RELEVANT MATTERS – whether there are relevant matters which justify approval despite non-compliance with provisions of the Low-medium density residential zone

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

CASES:

Ashvan Investments Unit Trust v Brisbane City Council & Ors (2019) QPELR 793

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

COUNSEL:

BD Job QC and MJ Batty for the Appellant

RS Litster QC and K Buckley for the Respondent

DR Gore QC and JG Lyons for the First Co-Respondent by Election 

EJ Morzone QC and K W Wylie for the Fourth Co-Respondent by Election

SOLICITORS:

Keir Steele Lawyers for the Appellant

McCullough Robertson for the Respondent

Hopgood Ganim for the First Co-Respondent by Election Emanate Legal for the Fourth Co-Respondent by Election

Introduction

  1. [1]
    This is a rehearing after a successful appeal to the Court of Appeal. It is limited in scope as the appeal succeeded on only one ground. I will now set out the relevant history of the matter.
  2. [2]
    On 10 October 2018, the respondent (“the Council”) issued a preliminary approval for a Shopping Centre and Health Care Services and reconfiguration of a lot into 14 lots, together with a development permit for a Child Care Centre, Service Station, Food and Drink Outlet, operational work for an Advertising Device, and reconfiguring a lot into four lots and an access easement (“the proposed development”) on land situated at 171-173 and 175 Trinity Beach Road, Trinity Beach (“the site”).
  3. [3]
    The decision of the respondent in the above terms resulted in four appeals to the Planning and Environment Court at Cairns. On 18 April 2019, the Court ordered that all of the appeals be joined and that Appeal 201 of 2018 be the carriage appeal for each of them. Accordingly, in the course of this judgment I refer to each of the parties by the designations they have in Appeal 201 of 2018 which is an appeal by the applicant for the proposed development.
  4. [4]
    In Appeal 201 of 2018, the appellant (“Fabcot”) seeks a development permit for those parts of the proposed development which were the subject of a preliminary approval. In Appeal 221 of 2018, the First Co-Respondent by Election (“Dexus”) seeks an order that the proposed development be refused. In Appeal 223 of 2018, the Fourth Co-Respondent by Election (“TPI”) also seeks orders that the proposed development be refused. Appeal 225 of 2018 also sought an order that the proposed development be refused, however, it was the subject of a notice of discontinuance dated 24 January 2020 by the Third Co-Respondent by Election and it did not participate further in any of the appeals.
  5. [5]
    Each Co-Respondent by Election has a commercial interest which may be adversely affected by the proposed development with the exception of the Second Co-Respondent by Election (“the Community Association”). Dexus owns the Smithfield Shopping Centre, approximately 4 kilometres to the south of the site, and TPI has lodged a code assessable development application for a shopping centre on land between the Smithfield Shopping Centre and the site.  These appeals concern the suitability of the site for the proposed development, however, not the merits of any other development application.
  6. [6]
    The Community Association called no evidence, cross examined no witnesses, and merely made some general submissions at the end of the first hearing that essentially there was no need for the proposed development, that it would adversely affect local businesses in the nearby Trinity Beach Shopping Centre and that the proposed development “should be amalgamated within the existing shopping centre hierarchy”. They took no active role and made no submissions at the rehearing.
  7. [7]
    In the course of opening the case at the first hearing, Fabcot conceded that the preliminary approval for reconfiguring a lot into 14 lots for residential development was appropriate at this point in time.  An uncontested order that the proposed development proceed in accordance with changed plans was also made by me in the course of the opening.  Ultimately, the reconfiguring of a lot components of the proposed development were not, of themselves, contentious from this point. Neither was the development permit for operational work for an Advertising Device. The evidence before me also demonstrated the appropriateness of the Service Station and Food and Drink Outlet components and this use was not the subject of any serious challenge in the course of the first hearing. Finally, at the commencement of day six of the first hearing on 30 March 2020, the Council conceded that a development permit, rather than a preliminary approval, was appropriate for the Shopping Centre and Health Care Services components and stated that it did not now contend that a mere preliminary approval was appropriate in respect of these proposed uses.
  8. [8]
    In considering the components of the proposed development which remain contentious, unless I specifically state otherwise, the comments I make apply to all of the remaining components of the proposed development.
  9. [9]
    In Fabcot Pty Ltd v Cairns Regional Council & Ors[1] (“the first P&E Court decision”) delivered on 30 April 2020, I allowed Appeal 201 of 2018 subject to the imposition of lawful conditions and dismissed the other appeals which sought orders that the proposed development be refused. 
  10. [10]
    Thereafter, Dexus and TPI applied for leave to appeal to the Court of Appeal.  In each instance the application for leave to appeal was granted and the appeal was allowed on one limited ground.  The decision of the Court of Appeal is Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors[2] (“the first Court of Appeal decision”).  Therein, the judgment of Brown J, with whom Philippides and Mullins JJA agreed, included an order remitting the appeals to the P&E Court for determination by me. 
  11. [11]
    On 28 May 2021 I made an order in the following terms:

“The determination on the rehearing of the appeal requires the re-exercise of the Court’s discretion having regard to the identified error in the construction of the identified provisions of the LMDR zone, having regard to the judgment of the Court of Appeal and the undisturbed findings of fact and law.”[3]

  1. [12]
    In Fabcot v Cairns Regional Council (No. 2)[4] (“the second P&E Court decision”) I allowed limited further evidence to be adduced at the rehearing.  Essentially this consisted of amendments to the Council’s Planning Scheme, Cairns Plan 2016 (“the Planning Scheme”), evidence showing the current status of the TPI development application and other evidence relating to changes in demographics and economic activity in the primary and secondary trade areas identified in the first P&E Court decision.[5]  Dexus and TPI also ultimately called evidence about what constitutes a local community.
  2. [13]
    Dexus and TPI sought leave to appeal the second P&E Court decision and their applications for leave to appeal were refused (“the second Court of Appeal decision”).[6]
  3. [14]
    The remitted hearing took place in Cairns between 4 April 2022 and 7 April 2022 and these are the reasons for judgment in respect of the remitted hearing.

The site and surrounding area

  1. [15]
    The site is an area of 4.092 hectares and contains frontages to the Captain Cook Highway, Trinity Beach Road and Navigation Drive. It also joins land contained within the newly developed Bluewater Estate. At this point on the Captain Cook Highway there is a significant roundabout which provides access to the suburb of Trinity Beach, which is located in the northern urban corridor of Cairns, approximately 15 kilometres north of the CBD.  Through this corridor the Captain Cook Highway links Cairns to Port Douglas in the north. To the west are the forested slopes of the Macalister Range and to the east, the Coral Sea.  The site is located approximately midway between the Smithfield Shopping Centre to the south and the Clifton Village Shopping Centre to the north, being approximately 4 kilometres from each of them. 
  2. [16]
    The Smithfield Shopping Centre is designated a Major centre pursuant to the Planning Scheme.  It contains a Coles Supermarket of 3,010m² and a Woolworths Supermarket of 4,130m². The Clifton Village Shopping Centre contains a Coles Supermarket of 3,210m². The Trinity Beach Shopping Centre is approximately 1 kilometre to the north of the site. It primarily serves a convenience shopping role and contains a NightOwl mini supermarket of 660m².
  3. [17]
    The site is owned by Fabcot, the development arm of Woolworths.
  4. [18]
    The site is in the Low-medium density residential zone (“LMDR Zone”).
  5. [19]
    The site is also within the Smithfield local plan but not within a local plan precinct.  Of significance to this appeal, the Smithfield local plan also includes Sub-precinct 3b which is identified for future retail and commercial development. Relevant to the resolution of the dispute before me, TPI owns a site at 10L Captain Cook Highway, Smithfield (“the TPI land”) in respect of which it has lodged a development application for a shopping centre which is code assessable pursuant to the Planning Scheme (“the TPI development application”).  The TPI land is located approximately 2 kilometres north of the Smithfield Shopping Centre on the Captain Cook Highway and south of the site.

The proposed development

  1. [20]
    The proposed development includes the following relevant components:
  1. A Shopping Centre with a gross floor area of 4,680m², consisting of a 3,600m² full-line supermarket and nine small retail tenancies;
  2. A Medical Centre with a gross floor area of 900m²;
  3. A Child Care Centre with a gross floor area of 670m²; and
  4. A Service Station and Food and Drink Outlet with a gross floor area of 360m² and an associated forecourt area.

The statutory assessment framework

  1. [21]
    Pursuant to the Planning and Environment Court Act 2016 (Qld) (“the Act”), the appeals are by hearing anew.[7]  Fabcot must establish that Appeal 201 of 2018 should be upheld and that the other appeals should be dismissed.[8] Section 46 of the Act addresses the nature of an appeal and relevantly provides:

“46 Nature of appeal

  1. (2)
    The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if—

(a)  the P&E Court were the assessment manager for the development application; and

(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. [22]
    As the proposed development was impact assessable, s 45 of the Planning Act 2016 (Qld) (“PA”) relevantly 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.[9]  Furthermore, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[10]
  2. [23]
    The Court in determining an appeal about a development application is conferred a wide discretion pursuant to s 60 of the PA which relevantly states:

“(3)  To the extent the application involves development that requires impact assessment… the assessment manager, after carrying out the assessment, must decide—

  1. (a)
    to approve all or part of the application; or
  1. (b)
    to approve all or part of the application, but impose development conditions on the approval; or
  1. (c)
    to refuse the application.”
  1. [24]
    Williamson QC DCJ observed in Ashvan Investments Unit Trust v Brisbane City Council & Ors:

“… It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s 60(3) of the PA. It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.”[11]

  1. [25]
    These observations of Williamson QC DCJ were expressly approved of by Mullins JA who wrote the reasons for judgment of the Court of Appeal in Abeleda & Anor v Brisbane City Council & Anor.[12]  Her Honour expressed the correct approach to the exercise of the decision-making process pursuant to the current legislative regime in, inter alia, the following terms:

“[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...”.[13]

The scope of the remitted hearing

  1. [26]
    As noted above, despite both Dexus and TPI seeking leave to appeal the first P&E Court decision on numerous grounds, all but one were comprehensively considered and rejected by Brown J. The limited scope of the remitted hearing was succinctly put by Morrison JA in the second Court of Appeal decision in the following terms:

“[11] In summary, the error made by the learned primary judge was in failing to consider the question of non-compliance with the requirements of a “local community” in the Low-Medium Density Residential Zone Code of CP 2016 (the LMDR Zone Code), which require non-residential uses to serve the local community. It was that error which, this Court held, may have caused his Honour's discretion to miscarry.”[14]

  1. [27]
    As the proposed development is impact assessable it must be assessed against the whole of the Planning Scheme to the extent relevant,[15] and in the event of inconsistency between provisions within the Planning Scheme, the strategic framework prevails over all other components to the extent of the inconsistency.[16]  In the first P&E Court decision I quoted extensively from the Planning Scheme.[17]  Given that pursuant to the first Court of Appeal decision, Dexus and TPI only succeeded on one ground, all of the findings of fact, and most of the findings of law made by me in the first P&E decision are undisturbed.  I will therefore not take the trouble to set out all of the provisions of the Planning Scheme which were considered by me in the first P&E Court decision. 
  2. [28]
    Some provisions assume particular relevance in the context of the rehearing and I will list them. Firstly, s 3.3.2 in the strategic framework relevantly states:

“3.3.2 Element – centres and centre activities

3.3.2.1 Specific outcomes

  1. (7)
    Development of centre activities is of a design, scale and intensity that does not compromise the existing and ongoing hierarchy of centres by:
  1. (a)
    competing with and compromising the economic viability of centres;
  1. (b)
    adversely affecting the achievement of consolidated centres.

  1. (10)
    New centres are only established where it is demonstrated that:
  1. (a)
    there is a need for the development;
  1. (b)
    the development is of a scale that is required to service the surrounding catchment;
  1. (c)
    the development is highly accessible within the catchment it serves and not located on the periphery;
  1. (d)
    the development does not compromise the character and amenity of adjoining premises and surrounding areas.”
  1. [29]
    The following provisions of the Low-medium density residential zone code (“LMDR Zone Code”) are of particular relevance:

6.2.10  Low-medium density residential zone code

6.2.10.2  Purpose

  1. (1)
    The purpose of the Low-medium density residential zone code is to provide for a range and mix of dwelling types including dwelling houses and multiple dwellings supported by community uses and small-scale services and facilities that cater for local residents.

  1. (3)
     The purpose of the code will be achieved through the following overall outcomes:

  1. (g)
    non-residential uses are established where they serve the local community and do not detract from the residential amenity of the area.

6.2.10.3 Criteria for assessment

Performance outcomes

Acceptable outcomes

PO3

Development is consistent with the purpose and overall outcomes sought for the zone.

 

 

AO3.1

No acceptable outcomes are provided.

PO4

Non-residential uses that serve the local community are established in appropriate locations and subject to detailed development requirements including:

  1. (a)
    being located in highly accessible locations;
  1. (b)
    being co-located with other similar uses;
  1. (c)
    providing for the identified convenience needs of the local community;
  2. (d)
    not impacting on the role and function of the hierarchy of centres within the region;
  3. (e)
    resulting in positive economic   and social benefits for the local community;
  4. (f)
    small scale extensions to existing non-residential uses

AO4.1

No acceptable outcomes are provided.

  1. [30]
    The reasoning of Brown J giving rise to the remitted hearing is set out in paragraphs [115] – [119] of the first Court of Appeal decision.  Notably her Honour stated:

“[115] In my view although Fabcot and the Council put forward persuasive arguments, “local residents” and “local community” in the LMDR Zone Code should be construed consistently with how they are used in the LMDR Zone Code, having regard to the fact that the stated purpose is to provide for “small scale services and facilities that cater for local residents”...

[116] However, while the meaning of “local residents” or “local community” must still be consistent with the reference to “small scale,” it is not confined to a part of a suburb or even a single suburb. The fact that a shop is “small scale” does not mean it necessarily may only serve people in a particular suburb depending upon the speciality of the shop concerned. Thus it may serve people beyond the immediate suburb in which the shop is located to an adjacent or surrounding suburb, which supports the fact that “local community” or “local residents” has a broader meaning...

[117] In the present case however the size of the proposed Fabcot development, particularly the supermarket, and its PTA extends beyond what could be regarded as serving the “local community” within the meaning of the LMDR Zone Code given the large scale of the development…The primary trade area identified as being served by the proposed development spans two suburbs or part thereof with an estimated population in 2022 of 13,130…

[118] The definition adopted by the primary judge adopted the area that would be primarily be met by a full line supermarket which could meet weekly shopping needs by reference to Local centres in the Strategic Framework rather than examining the scope of “local community” in the context of the LMDR Zone Code. In doing so the primary judge asked the wrong question by reference to the provision for the Local centres assuming the meaning of “local community” was the same as when it was used in the LMDR Zone Code.”[18]

  1. [31]
    In the first P&E Court decision I noted that the economic experts identified a Primary Trade Area (“PTA”):

“which encompassed the suburbs of Trinity Beach where the site is located and Kewarra Beach to the north, together with an adjoining secondary trade area to the north and a secondary trade area to the south…”.[19]

I further noted that:

“…as at 2018, there were more than 10,800 permanent residents outside the three kilometre radii of Clifton Beach Shopping Centre and Smithfield Shopping Centre and that the site is centrally located to service the demand of these residents for a full-line supermarket.”[20]

I concluded that there was a significant economic, community and planning need for the supermarket component of the proposed development and that the site was centrally located to service the demand which was not presently being met.[21]  I found that there was a sufficient need for each of the other contentious components of the proposed development as well.[22]

  1. [32]
    In terms of the potential impacts on the hierarchy of centres, I found that:

“… in the event the proposed development is approved, the Smithfield Major centre will still represent the focus of employment and economic activity in the Cairns Northern Beaches region and remain the dominant centre for the Cairns Northern Beaches region…”.[23]

  1. [33]
    In terms of function and scale, I found that the proposed development will not be a small-scale facility.  I noted that it is ideally located from a fundamental planning principles perspective.[24]  Among the particular attributes of the proposed development were that the site is well located and physically suitable for a local centre in circumstances where there was excellent access to the Captain Cook Highway, it is a suitable location for access by walking and cycling and that it presented an advantage to local residents in that they could access the proposed development without having to travel along the Captain Cook Highway.[25] 
  2. [34]
    I also expressly found a number of relevant matters, other than the need for it, justified approval of the proposed development which I summarised as follows:

“I accept that there will be efficiencies achieved by the co-location of the uses in the proposed development, all of which are well-located to serve the growing community identified in the PTA. The need for the uses in the proposed development coupled with the gap in the provision of a full-line supermarket to provide for the need, justifies the creation of a new centre on the site as contemplated in the Strategic framework of the Planning Scheme. The meeting of this need at a site which from the perspective of the planning evidence before me is ideally located to meet that need, is a powerful consideration. This consideration, together with the fact that it will provide the local community with the opportunity of shopping for the necessities of life and utilising the ancillary uses without having to journey along the at times congested Captain Cook Highway, clearly justify the proposed development despite the fact that it is not small-scale.”[26]

The new evidence

  1. [35]
    While I must assess the development application against or having regard to the version of the Planning Scheme in effect when the development application was properly made, I may give the weight I consider appropriate in the circumstances, to any amendments to it after the development application is properly made but before it is decided.[27]
  2. [36]
    Version 3.0 of the Planning Scheme commenced on 26 October 2021.  It contains notes in various zone codes which are part of the Planning Scheme.[28]  These notes have the effect of making code assessable development in the LMDR Zone subject to the centres strategy pursuant to the strategic framework which is described in s 3.3.2 of the Planning Scheme.[29]  As the proposed development was impact assessable I have already assessed it having regard to these provisions and accordingly I am of the view that no weight should be given to the Planning Scheme amendments in Version 3.0.
  3. [37]
    On 23 March 2022 the Council approved the construction of a new link road between Kewarra Beach and Trinity Beach providing increased access for certain residents of Kewarra Beach to the proposed development without having to travel along the Captain Cook Highway.[30]
  4. [38]
    By a judgment dated 21 July 2021, the P&E Court approved a large residential development called The Palms, within three kilometres to the north of the site.[31]  Mr Norling, the economic consultant who gave further evidence on behalf of the Council, stated that this provides for additional residential capacity which he estimates at about 500 dwellings.[32]  He asserts that the effect of the approval has been to increase the residential capacity of the adjoining suburb to the north, Kewarra Beach, by about 1,200 people and that this increase was not taken into account in the evidence presented to me at the first hearing.[33]
  5. [39]
    Mr Cooper, the Centre Manger of the Smithfield Shopping Centre gave evidence alleging significant difficulties attracting and retaining tenants at the Smithfield Shopping Centre.[34]  However, under cross-examination his evidence was shown to be exaggerated.  It was demonstrated that he over-stated the extent of vacancies and included areas which appeared to be not currently available or being marketed for tenancies, in his calculations.[35]  While I accept that it is inevitable that there will be a significant drop in foot traffic at the Smithfield Shopping Centre as a consequence of the proposed development, no evidence was placed before me which calls into question my finding in the first P&E Court decision that:

“The proposed development will not change the fact that Smithfield Major centre will remain the focus of employment and economic activity in the Northern Beaches region and that the Smithfield Shopping Centre will remain its dominant retail centre.”[36]

Rather, it is submitted to me that this loss of foot traffic at the Smithfield Shopping Centre is a relevant matter I need to take into account in weighing the non-compliance with the Planning Scheme identified by the Court of Appeal.

  1. [40]
    Turning to the further evidence of need, it is apparent that the projections of the relevant experts at the original hearing of the appeal have proved to be notably accurate, despite the intervening COVID-19 pandemic.  The difference in population for the PTA between what was predicted and what actually occurred was only 190 people less than what was predicted. For the whole of the Northern Beaches region, the difference was only 770 fewer people than predicted.[37]  In circumstances where building approvals have offset the absence of international tourists and there is now significant additional residential development within three kilometres north of the site, I find that the need for the proposed development is now even greater than I found it to be in the first P&E Court decision.  I also accept the evidence of Mr Stevens, the economic consultant who gave evidence on behalf of Fabcot, that impacts on foot traffic at Smithfield Shopping Centre are a reflection of industry-wide trends,[38] and that the sales performance of certain businesses affected by the impacts of the COVID-19 pandemic will continue to normalise over time.[39]
  2. [41]
    Out of completeness, I note the evidence of Mr Duggan, the Retail Property Manager for Woolworths, that the Woolworths Supermarket at Smithfield Shopping Centre continues to trade very strongly and remains the best performing Woolworths Supermarket in the Cairns region and one of the top Woolworths traders in Queensland.[40]
  3. [42]
    Evidence has also been placed before me which demonstrates that the TPI development application has now progressed to a serious proposal for a shopping centre anchored by a 4,200m² supermarket (which I infer is intended to be a full-line supermarket) and 799m² of other shops.[41]  It has been set down for hearing commencing on 9 May 2022.  It appears that Coles Supermarkets Australia have expressed an interest in leasing the proposed supermarket component, subject to Board approval of the Coles Group Limited.[42]

Discussion

  1. [43]
    I need to re-exercise my discretion pursuant to s 60 of the PA having regard to the fact that the proposed development is not only not “small scale” as I have already found, but also that it will serve residents of the Northern Beaches beyond what could be regarded as serving “local residents” or “the local community” which is contrary to the purpose and PO3 and PO4 of the LMDR Zone Code. 
  2. [44]
    In her reasons for judgment, Brown J observed on the one hand that “the meaning of “local residents” or “local community” must still be consistent with a reference to “small scale”, it is not confined to a part of a suburb or even a single suburb.”[43] On the other hand she stated that the PTA “extends beyond what could be regarded as serving the “local community” …given the large scale of the development”.[44]
  3. [45]
    Evidence was placed before me by Mr Brown, the economic consultant called by TPI, that the local community corresponds with the suburb of Trinity Beach.[45]  This approach was endorsed by Mr Schomburgk, the town planner who gave evidence on behalf of TPI.[46]  A similar approach was adopted by Mr Leyshon, the economic analyst who gave evidence on behalf of Dexus, who, like Mr Brown, adopted a trade area appropriate for a small scale neighbourhood centre on the site as the appropriate manifestation of what was intended by the relevant provisions of the LDMR Zone Code.[47]  This evidence is completely inconsistent with the finding of Brown J that the relevant terms are not confined to part of a suburb or even a single suburb. 
  4. [46]
    What is clear is that the concept of “local” in this context covers a spectrum from something more than part of a suburb up to something less than the PTA.  Precisely where the concept of local falls on this spectrum remains unclear, however it is clear that the proposed development is significantly inconsistent with this concept as expressed in the various provisions in the LMDR Zone Code referred to above.
  5. [47]
    The exercise of the discretion pursuant to s 60 of the PA is further complicated by the advanced state of the TPI development application.  It is submitted by TPI that any need for a full-line supermarket on the Northern Beaches should be met by the TPI development application in circumstances where it is code assessable, such that the need could be met in conformity with what is contemplated by the Planning Scheme.  TPI bolsters its submissions by reliance on s 3.5.2.1 of the Planning Scheme which is contained within the strategic framework and which relevantly states:

“(1) Existing economic activities continue to be facilitated in and around existing allocated areas and where possible are consolidated or co-located with similar or complementary activities.”[48]

  1. [48]
    This argument needs to be considered in light of the observations of Brown J relevant to the TPI land which is located within Sub-precinct 3b of the Smithfield local plan:

“[164]  While it is true, as TPI contends, that the Fabcot Site is not within any of the defined precincts, the primary judge did not err in failing to find that it was not intended to provide the function of any of those precincts or sub-precincts including the retail and commercial function of sub-precinct 3b or conversely that sub-precinct 3b was intended to meet any planning need for a shopping centre to service the Fabcot residential area. That contention is unsupported by the fact that the PO1 and AO1 apply to the Fabcot Site and the fact that the “new centres” in s 3.3.2.1(10) is not zone specific. The defined precincts consisting of the Smithfield Major Centre and the area around JCU are consistent with the intention that they will form “two key activity nodes.” However, the Smithfield Local Plan does not exclude new centres, at least in the nature of Local Centres or Neighbourhood centres, being established to the North, if the preconditions for a new centre and Local Centre were satisfied. Further, while CP 2016 provided a shopping centre in sub-precinct 3b with some preferential treatment insofar as it was code assessable, given there was no obligation upon TPI to develop it as a shopping centre nor to include a supermarket in such a shopping centre, that does not support a specific intention under the CP 2016 that sub-precinct 3b was to serve as a shopping centre for the area of the precincts extending north to the residential area where the Fabcot site was located to satisfy any unmet planning need. His Honour did not err in his Honour’s characterisation of sub-precinct 3b.

[165]  It follows from the above that the primary judge did not err in his Honour’s consideration of the importance of hierarchy of retail shopping centres in not considering sub-precinct 3b as outlined in Australian Capital Holdings Pty Ltd v Mackay City Council. Notably the present case is quite different from Australian Capital Holdings insofar as the inclusion of s 3.3.2.1(10) is a distinguishing feature from the restrictive provision considered in that case. Nor did his Honour err in not determining that sub-precinct 3b was a location where CP 2016 intended or planned for a shopping centre less than 5,000 square metres including a supermarket to locate in the Northern Beaches area. Any proposed shopping centre could have included a supermarket but under CP 2016 it was only a possibility such that it would necessarily meet any planning need. Given the presence of s 3.3.2.1(10) and the nature of sub-precinct 3b, the decision did not cut across the planning intentions of the scheme and intrude upon the integrity of sub-precinct 3b.”[49]

  1. [49]
    Weighing the factors identified by Brown J quoted above, with the new evidence that the TPI land is realistically a prospect of meeting the identified need for a new full-line supermarket in the Northern Beaches, I must consider the identified non-compliance with the relevant provisions of the LMDR Zone Code.
  2. [50]
    The fact remains that even Mr Leyshon, the economic consultant who gave evidence on behalf of Dexus, concedes that there is a need for a full-line supermarket on the site,[50] and that it will have a significant trade area.[51]  It is uncontentious that the proposed development is ideally located within the identified catchment to meet the identified need for it which is greater now than it was in 2020. 
  3. [51]
    The scale of the supermarket component of the proposed development makes it inevitable that it will not comply with the provisions of the LMDR Zone Code identified above, however this occurs in the context of the strategic framework allowing for the establishment of a new centre on the site. Even assuming a potential for eventual consolidation or co-location with similar complementary activities in Sub-precinct 3b, the TPI land is not as well located to serve the pressing need identified within the PTA.[52] The location of the site on a large roundabout on the Captain Cook Highway at the gateway to the significant dormitory suburb of Trinity Beach, is a far superior location for catering for the identified need than the TPI land. The locational attributes of the proposed development are only enhanced when one considers that the recent approval of The Palms development at Kewarra Beach is within 3 kilometres of the proposed development, to the north of the site. The TPI land is considerably south of it.[53]  They are further enhanced when one considers the co-location of other uses, for which a need also currently exists, namely the Child Care Centre, the Medical Centre and the Service Station.  The Planning Scheme contemplates the establishment of a new centre such as the proposed development when certain pre-conditions have been met. I have already concluded they have been met in the first P&E Court decision.[54] The factors which favour the approval of the proposed development far outweigh factors in favour of refusal of it, as a consequence of it not being small scale and it serving a larger catchment than what is contemplated in the relevant provisions of the LMDR Zone Code.

Conclusion

  1. [52]
    While the proposed development is at significant variance with identified provisions of the LMDR Zone Code, in that it is not small scale and will not only serve local residents or the local community, it is ideally located to serve the pressing need for it.  While there will be a loss of some foot traffic at the Smithfield Shopping Centre and a code assessable proposal for a shopping centre incorporating a full-line supermarket on the TPI land is now ready for hearing, the locational attributes of the proposed development in meeting the pressing need for it far outweigh these factors. 
  2. [53]
    I therefore will allow Appeal 201 of 2018 subject to the imposition of appropriate lawful conditions.  I therefore dismiss Appeals 221 and 223 of 2018.

Footnotes

[1][2020] QPEC 17.

[2][2021] QCA 95.

[3]Fabcot v Cairns Regional Council (No. 2) [2021] QPEC 40 at [14].

[4]Ibid.

[5]Ibid [22] – [24].

[6]Trinity Park Investments Pty Ltd v Fabcot & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 276.

[7]Planning and Environment Court Act 2016 (Qld) s 43.

[8]Ibid s 45(1)–(2).

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

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

[11](2019) QPELR 793 at 806–807.

[12][2020] QCA 257 at [54].

[13]Ibid at [42] – [43].

[14][2021] QCA 276 at [11].

[15]Cairns Plan 2016 V1.2, s 5.4(1)(d).

[16]Ibid, s 1.5(1)(a).

[17][2020] QPEC 17 at [19] – [26].

[18][2021] QCA 95 at [115] – [119].

[19][2020] QPEC 17 at [35].

[20]Ibid at [36].

[21]Ibid at [41].

[22]Ibid at [44] – [45].

[23]Ibid at [49].

[24]Ibid at [51].

[25]Ibid at [51] – [53].

[26]Ibid at [59].

[27]Planning Act 2016 s 45(7)-(8).

[28]Planning Scheme v3.0 s 1.3.2(3).

[29]Ibid s 3.3.2.

[30]Exhibits R11, R12 and R13.

[31]Exhibit R19.

[32]Exhibit R7, para 31.

[33]Ibid, para 34.

[34]Exhibit R4.

[35]T1-68 – T1 – 75.

[36][2020] QPEC 17 at [46].

[37]Exhibit R15.

[38]Exhibit R6, para 4.9.

[39]Ibid, para 4.20.

[40]Exhibit R5, para 10.

[41]Exhibit R14.

[42]Exhibit R9, para 81(d).

[43][2021] QCA 95 at [116].

[44]Ibid at [117].

[45]Exhibit R9, para 44.

[46]Exhibit R1, para 9.

[47]Exhibit R8, para 27 and Exhibit R9, para 54.

[48]TPI submits that I made no specific finding about whether the proposed development complied with this provision in the first P&E Court decision and this appears correct. A further submission to the same effect concerning s 3.3.5.1 of the Planning Scheme is incorrect, however it was taken into account at [53] of the reasons for judgement.

[49][2021] QCA 95, [164] and [165].

[50]T3-10, ll 5 – 10.

[51]T3-13, ll 30 – 35.

[52]Exhibit R6, p 11, map 3.1.

[53]Ibid.

[54][2020] QPEC 17 at [53].

Close

Editorial Notes

  • Published Case Name:

    Fabcot Pty Ltd v Cairns Regional Council & Ors (No. 3)

  • Shortened Case Name:

    Fabcot Pty Ltd v Cairns Regional Council (No. 3)

  • MNC:

    [2022] QPEC 12

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    03 May 2022

Appeal Status

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

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