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Trinity Park Investments Pty Ltd v Cairns Regional Council[2022] QPEC 15

Trinity Park Investments Pty Ltd v Cairns Regional Council[2022] QPEC 15

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Trinity Park Investments Pty Ltd v Cairns Regional Council [2022] QPEC 15

PARTIES:

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

(Appellants)

v

CAIRNS REGIONAL COUNCIL

(Respondent)

AND

CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING

(Co-Respondent by Election)

FILE NO/S:

2386/20

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

24 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

10 – 11 and 13 May 2022

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against code assessable development application for a Shopping centre

ASSESSMENT – COMPLIANCE WITH THE PLANNING SCHEME – whether the proposed development complies with the planning scheme – whether there is a need for the proposed development – whether the proposed development complies with other assessment benchmarks

CASES:

Fabcot v Cairns Regional Council & Ors [2020] QPEC 17

Fabcot Pty Ltd v Cairns Regional Council & Ors [2022] QPEC 12

Klinkert v Brisbane City Council [2018] QPELR 941

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95

Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82

LEGISLATION:

Planning and Environment Court Act 2016 (Qld)

Planning Act 2016 (Qld)

COUNSEL:

E J Morzone QC and K W Wylie for the appellant

R S Litster QC and K Buckley for the respondent

SOLICITORS:

Emanate Legal for the appellant

McCullough Robertson for the respondent

McInnes Wilson for the co-respondent by election

Introduction

  1. [1]
    This is an appeal against the decision of the respondent to refuse a development application for a material change of use for a Shopping centre (“the proposed development”) on land at 10L Captain Cook Highway, Smithfield, (“the site”) and accompanying access easements.
  2. [2]
    Unusually for a development application of this type, the proposed development is code assessable pursuant to the respondent’s planning scheme, CairnsPlan 2016 (“the planning scheme”).
  3. [3]
    The co-respondent by election took no part in the hearing of the appeal.

The site and surrounding area

  1. [4]
    The site consists of a 7.554 ha triangular lot at Smithfield, north of the Cairns CBD, towards the southern end of the Cairns Northern Beaches region.[1]  The proposed development will utilise approximately 2.2 ha of the site which is positioned between the Captain Cook Highway to the west, McGregor Road to the north, and the elevated Smithfield bypass to the east.  To the south it adjoins residential development.[2]  Notably, James Cook University is located on the western side of the Captain Cook Highway, to the north of the site, and the Smithfield shopping centre is located on the western side of the Captain Cook Highway, 1.8km to the south.[3]
  2. [5]
    Pursuant to the planning scheme, the site is located in the Mixed use zone, within Mixed use precinct 1 – Commercial.  It is also within the area of the Smithfield local plan and within Precinct 3 – Future employment, and Sub-precinct 3b – Future retail and commercial area.  Part of the site is designated as a Gateway site, but this lies to the south of the proposed development.[4]  A Shopping centre falls within the definition of numerous uses within the activity group “Centre activities”, pursuant to s  SC1.1.1.2 of the planning scheme.[5]  The use “Shopping centre” is defined as “premises comprising two or more individual tenancies that is comprised primarily of shops, and that function as an integrated complex”.[6]  It is a code assessable use on the site if not greater than 5,000m² total gross floor area (“GFA”).[7]

The proposed development

  1. [6]
    The proposed development is for a full-line supermarket with a GFA of 4,200m², two separate speciality retail tenancy spaces of 149m² and 650m², and at-grade car parking between the retail building and the Captain Cook Highway frontage.[8]
  2. [7]
    The total GFA of the proposed development is 4,999m² in a building of 1-2 storeys with a total of 204 car parking spaces.[9]  Access is to be obtained via a left-in/left-out link from the Captain Cook Highway to a new internal road via Easement C.[10]  Provision is also made for future access when the Hilary Drive extension is constructed to the north-west.[11]  This will be via Easement A, however the respondent does not intend to create this road access until the 2027/28 financial year.[12]

The assessment regime

  1. [8]
    Pursuant to the Planning and Environment Court Act 2016 (Qld) (“PECA”) the appeal is by way of hearing anew,[13] and the appellant must establish that the appeal should be upheld.[14]  Section 46 of the PECA 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—
  1. (a)
    the P&E Court were the assessment manager for the development application; and
  1. (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. [9]
    As the development application giving rise to the appeal was code assessable, it is to be assessed pursuant to the relevant provisions of s 45 of the Planning Act 2016 (Qld) (“PA”), which relevantly states:

45 Categories of assessment

  1. (1)
    There are 2 categories of assessment for assessable development, namely code and impact assessment.
  1. (2)
    A categorising instrument states the category of assessment that must be carried out for the development.
  1. (3)
    A code assessment is an assessment that must be carried out only—
  1. (a)
    against the assessment benchmarks in a categorising instrument for the development; and
  1. (b)
    having regard to any matters prescribed by regulation for this paragraph.”
  1. [10]
    Unlike impact assessment, the Court cannot have regard to relevant matters as defined in s 45(5) of the PA.  The process for assessing and deciding code assessable development applications is much more constrained.  Section 60 of the PA relevantly states:

60  Deciding development applications

  1. (2)
    To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment—
  1. (a)
    must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
  1. (b)
    may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and

Examples

  1. 1An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks.
  2. 2An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks and a referral agency’s response.
  1. (c)
    may impose development conditions on an approval; and
  1. (d)
    may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.

Example of a development condition

a development condition that affects the way the development is carried out, or the management of uses or works that are the natural and ordinary consequence of the development, but does not have the effect of changing the type of development applied for”

  1. [11]
    As Williamson QC DCJ observed in Klinkert v Brisbane City Council:

“The discretion is expressed in permissive (“may”) and broad terms. It is subject to an important constraint, namely the constraint expressed in s 59(3) of the PA requiring the decision to be based on the assessment carried out pursuant to earlier provision of the Act, which in this case includes, inter alia, s 45.”[15]

  1. [12]
    On the one hand, code assessment provides a high degree of certainty for an applicant in that a development application complying with all the relevant assessment benchmarks will be approved.   On the other hand, the scope for approving a non-compliant development application is considerably less than that for impact assessable development applications.  This is unsurprisingly also reflected in the planning scheme.  Therein, code assessable development is to be assessed against all the applicable identified codes, whereas impact assessable development must be assessed against the whole of the planning scheme to the extent relevant.[16]  The planning scheme further provides that code assessable development that complies with the purpose and overall outcomes of a code, and either the performance or acceptable outcomes, complies with the code.[17]
  2. [13]
    In assessing the proposed development pursuant to the planning scheme, which is the relevant categorising instrument for the development pursuant to s 45(3) of the PA, it is necessary to have regard to the applicable principles for the construction of planning documents. These were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council in, inter alia, the following terms:
  1. “[52]
    The same principles which apply to statutory construction apply to the construction of planning documents.  The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:
  1. [69]
    The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” …
  1. [70]
    A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve the result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.

  1. [56]
    The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.”[18]
  1. [14]
    In undertaking the assessment of the proposed development against the relevant assessment benchmarks in the planning scheme, it is important to note that s 1.5 provides that where there is inconsistency between provisions, local plans prevail over zone codes and zone codes prevail over use codes and other development codes to the extent of the inconstancy.[19]

The disputed issues

  1. [15]
    It is regrettable that the appellant and the respondent could not agree on the list of disputed issues.  While the appellant attempted to broadly categorise the issues in dispute,[20] the respondent adopted a more pedantic approach of nominating every respect in which it alleged a non-compliance with the planning scheme, regardless of how amorphous the alleged requirement is and how trivial the alleged non-compliance with it.[21]  Broadly the issues in dispute are:
  1. whether there is a need for the proposed development;
  2. whether the proposed development would compromise effective function of centres provided for in the planning scheme;
  3. whether the proposed development strengthens self-containment in the suburbs of the Cairns Northern Beaches;
  4. whether the proposed development is for a mixed use;
  5. whether the proposed development compromises the delivery of the requirements for a Gateway site, establishes a structure plan and is in a compliant development form; and
  6. whether in the event of any non-compliance with any of the assessment benchmarks in the planning scheme, such non-compliance warrants refusal of the proposed development.

Need

  1. [16]
    Despite being a code assessable use on the site, relevant assessment benchmarks still require the appellant to demonstrate a need for the proposed development.  First, this appears in the Smithfield local plan code (“SLPC”) with respect to the following performance outcome and acceptable outcome:[22]

Performance outcomes

Acceptable outcomes

For assessable development

 

Economic activity

 

PO1

Development achieves a consolidated, dominant retail centre on the existing Smithfield shopping centre site and ensures new and additional floor space for the sale and supply of retail goods and services develops in line with the need of the Cairns Northern Beaches communities to 2025.

AO1.1

Development with a cumulative floor area of greater than 2,500m2 on any one or adjacent sites, outside Precinct 1 – Smithfield major centre demonstrates an economic and community need for the development which will not compromise the effective function of the Smithfield shopping centre site.

  1. [17]
    Similarly it appears as a requirement in the following provisions of the Centre design code (“CDC”) in s 9.4.1.2:

“(1) The purpose of the Centre design code is to ensure centre activities and activity centres:

  1. (a)
    are developed to support community need and reinforce the hierarchy of activity centres;

  1. (2)
    The purpose of the code will be achieved through the following overall outcomes
  1. (a)
    Development is established in accessible locations, consolidate development within existing centre zones and established areas of commerce, or meet an existing need identified within a local plan area.”[23]
  1. [18]
    The different categories of need referred to in the provisions of the planning scheme quoted above have previously been considered by me in Fabcot v Cairns Regional Council & Ors.[24]  My analysis was not questioned in the Court of Appeal decision which followed.[25]  In Fabcot I noted that the joint need experts proceeded on the basis that:
  1. “(a)
    Community Need refers to an assessment as to the extent to which the physical wellbeing of the community is improved.  A range of qualitative factors are involved such as convenience, accessibility, choice, range, depth, competition, price, service, shopper amenity, etc;
  1. (b)
    Economic Need refers to an assessment as to whether the extent of demand for the proposal is sufficient to support it at a sustainable level.  This assessment is typically more quantitative in nature; and
  1. (c)
    Planning Need refers to an assessment of the extent to which the proposed development can be accommodated by existing planning provisions.  This necessarily involves an assessment of the existence of competitive approvals and the availability of suitably zoned and/or designated lands to accommodate the proposed development.”[26]
  1. [19]
    Thereafter, I observed:
  1. “[30]
    Their approach is supported by reference to established principles derived from case law  In Luke & Ors v Maroochy Shire Council & Anor, Wilson SC DCJ observed that the question of whether a community need exists “is to be decided from the perspective of a community and not that of the applicant for development, its competitors or objectors.”
  1. [31]
    The concept of planning need was explained in Williams McEwans Pty Ltd v Brisbane City Council by Carter DCJ in the following terms:

“The basic assumption must be that there is in existence at the time of the application a latent unsatisfied demand on the part of the persons affected by the planning scheme which is not being met at all or not being adequately met by the scheme in its present form.”

  1. [32]
    Much later in Isgro v Gold Coast City Council & Anor, Wilson SC DCJ comprehensively stated:

“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.”

  1. [33]
    Where the term “need” is used without qualification in the Planning Scheme it is to be interpreted as a reference to planning need as explained in Williams McEwans and Isgro referred to above.”[27]
  1. [20]
    Two economists gave evidence at the hearing of the appeal.  Mr Duane gave evidence on behalf of the appellant and Mr Norling gave evidence on behalf of the respondent.  In circumstances where the Cairns Northern Beaches was not defined in the planning scheme, they identified it in slightly different ways.  Mr Duane included all areas north of the Baron River,[28] whereas Mr Norling identified it as comprising three Statistical Areas Level 2, taking in various suburbs within the area described by Mr Duane.[29]  When allowance is made for not only the four existing full-line supermarkets trading within this area, but also the recently approved full-line supermarket-based Shopping centre at Trinity Beach (“Trinity Beach Centre”),[30] neither Mr Duane nor Mr Norling concluded there was an existing need for the proposed development.
  2. [21]
    Both experts agreed that the need for the proposed development, being a fifth full-line supermarket to serve the Cairns Northern Beaches may emerge in the future.  Mr Duane predicts this “by around 2026”, whereas Mr Norling says this will occur “by around 2031 or later”.[31]  The difference in their reasoning is explained by Mr Norling. Essentially, he excludes from the assessment the Caravonica Trade Area and the Kuranda Trade Area.  He excludes the former area on the basis that there are already two full-line supermarkets at Redlynch which are conveniently located to provide for the majority of residents’ supermarket shopping.[32]  I accept this evidence in this regard. I am also comfortable with his exclusion of the Kuranda Trade Area given that it is clearly located outside of what both experts consider to be the Cairns Northern Beaches.[33]  Kuranda is a community on the Atherton Tablelands outside the local government area of the respondent.[34]  Therefore, on the evidence before me, Kuranda cannot be considered to be a community of the Cairns Northern Beaches.  I therefore prefer the analysis of Mr Norling in terms of when it is likely that there will be a need for the proposed development.  In these circumstances it is unsurprising that Mr Norling concludes that there is no economic need for the proposed development at the present time.[35]  He further concludes that, in circumstances where the Trinity Beach Centre is best located to serve the current need from a community need perspective, there is only a low community need for the proposed development.[36]
  3. [22]
    The approach of the appellant is not only to urge the acceptance of the evidence of Mr Duane that the earliest that either the Trinity Beach Centre or the proposed development could open would be mid to late 2025,[37] but also to emphasise that:

“compliance with PO1 may potentially be demonstrated by mere recognition that the planning need for the proposed development has already been recognised by the planning scheme, by the identification of the proposed use as a code assessable use…”[38]

  1. [23]
    This latter argument was debunked by the Court of Appeal in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors in the following terms:

“The fact that there was provision that a shopping centre in sub-precinct 3b [the site] be code assessable does not dictate that the primary judge should have concluded that there was an unsatisfied demand which could not be met adequately, or at all, by CP2016 in its present form due to the provisions made with respect to sub-precinct 3b.”[39]

  1. [24]
    I now turn to the relevant assessment benchmarks. There is non-compliance with PO1 of the SLPC as approval of the proposed development would not ensure new and additional floor space for the sale and supply of retail goods developed in line with the need of the Cairns Northern Beaches community to 2025.  Even on the evidence of Mr Duane this would not occur as there is no need for the proposed development on his analysis until 2026.  The non-compliance is even greater on the evidence of Mr Norling which I prefer. There is also non-compliance with AO1.1 of the SLPC as the appellant has not demonstrated an economic and community need for the proposed development. Similarly, there is arguably non-compliance with Section 1(a) of the Purpose of the CDC as the proposed development will not support a community need of any consequence, however nothing much turns on this given the extent of the non-compliance with the other relevant assessment benchmarks listed above.  There is also non-compliance with overall outcome 2(a) as it would not be established to meet an existing need identified within the Smithfield local plan area. 
  2. [25]
    The appellant submits that “any absence of need would not warrant refusal of this application”.[40]  As noted above, the proposed development is contained within the definition of Centre activities.  The site benefits from an unusual designation in that a Shopping centre is code assessable.  Otherwise, the strategic framework contemplates a new centre only being established where it is demonstrated that there is a need for the development.[41]  There is therefore a clear strategy running through the planning scheme when it is read as a whole, applying the principles outlined in Zappala quoted above.  Whether the proposed development is impact assessable or code assessable, a need for it must first be demonstrated to justify approval.  In these circumstances, it is not appropriate to approve the proposed development where, on the evidence I accept, a need for it will not arise until 2031 or later.  Even on the appellant’s case, it will not arise until around 2026.  The importance of this in the assessment process is such that the proposed development should not be approved, notwithstanding non-compliance with these assessment benchmarks. The appeal should be dismissed on this basis, however I will proceed to consider the other disputed issues.

Impacts on centres and self-containment

  1. [26]
    At the outset it must be said that the approach taken by the respondent when outlining the balance of the assessment benchmarks in issue is extremely pedantic.  First, it is asserted that it is contrary to parts of the purpose in s 6.2.14.2 of the Mixed use zone code (“MUZC”).  Relevantly the identified provisions are:
  1. “(2)
    The local government purpose of the code is to recognise the presence of areas of mixed land use outside the hierarchy of centres that contain a wide variety of uses.
  1. (3)
    The purpose of the code will be achieved through the following overall outcomes:

  1. (b)
    development in the mixed use zone does not compromise the role and successful function of centres within the hierarchy of centres, whether as a result of the impacts from an individual development or the potential cumulative impacts of multiple developments; the scale, character and built form of development contributes to a high standard of amenity;”[42]

Thereafter, PO5(a) is identified which requires that development “does not compromise or perform the role and function of a centre within the hierarchy of centres in the region”.[43] 

  1. [27]
    Provisions of the SLPC are also identified. These are:

7.2.8.3 Purpose

  1. (1)
    The purpose of the Smithfield local plan code is to facilitate development that contributes to an integrated community consisting of existing and transitioning residential neighbourhoods, a consolidated Major centre, new mixed use development and new employment nodes and the growth and integration of the James Cook University with the wider community.
  2. (2)
    The purpose of the code will be achieved through the following overall outcomes:
    1. the structure of the Smithfield local plan establishes a pattern of local activity and an economy, based on two key nodes being the James Cook University at the north and the Smithfield major centre at the south;
    2. economic and employment activity supports local communities and activity, and strengthens self-containment in the suburbs of the Cairns Northern Beaches;
    3. an increase in the range of professional business and services;”[44]

PO1 and AO1.1 are again identified as relevant benchmarks in this regard. 

  1. [28]
    Provisions of the CDC are identified as relevant, including the provisions within s 9.4.1.2 quoted above,[45] and (2)(b) which states:

“Development complements and reinforces the role and function of the established hierarchy of centres across the region, and does not compromise the future of consolidated and cohesive activity centres”.[46]

  1. [29]
    At the outset, two considerations are important to the question of non-compliance with these assessment benchmarks. First, the proposed development is code assessable on the site.  This is a deliberate decision of the respondent in circumstances where it is outside an identified centre.  Second, each of the economists who gave evidence before me expressed the view that each of the existing and proposed centres of the Cairns Northern Beaches, including the nearby Smithfield major centre, would continue to function.  Even Mr Norling who analysed the cumulative impacts upon both the existing centres and the unbuilt Trinity Beach Centre was of the view that all would continue to trade despite losses of revenue.[47]  Obviously, any new Shopping centre will result in losses of revenue elsewhere. Reading the planning scheme as a whole, it is clear that areas of mixed use outside of centres, such as those provided for at the site, are contemplated. Their impacts must be much more dire than what they have been assessed to be before there will be a compromise of the role and successful function of existing centres, including the Smithfield shopping centre.  I therefore find compliance with the relevant benchmarks concerning potential impacts upon centres in the Cairns Northern Beaches. 
  2. [30]
    I also find that an additional full-line supermarket will strengthen self-containment in the suburbs of the Cairns Northern Beaches as it will provide another opportunity for residents to shop within their community. 
  3. [31]
    The proposed development is but one of many uses within the broadly defined term “Mixed use” in the planning scheme.[48]  The amended structure plan produced by the appellant provides for four areas on the balance of the site for future mixed use development, including the Gateway site.  In these circumstances, I am satisfied that the assessment benchmarks requiring a mix of uses or mixed use development are complied with. Moreover, because only one use, a Shopping centre, is the subject of the development application,[49] the proposed development will not, of itself, create a new local centre as defined in the planning scheme. This is because the definition in s 3.3.2.1(2)(d) contemplates “a small cluster of uses”,[50] not merely a new use.
  4. [32]
    The essential approach of the appellant is that the proposed development creates a Shopping centre, being a Centre activity, on part of the site allowing the balance of it to be subsequently utilised for a broad mix of retail business and industry activities.[51]  I am satisfied that this is an appropriate response to the relevant assessment benchmarks in circumstances where the proposed development is code assessable. 

Gateway site, the structure plan and development design

  1. [33]
    As noted above, part of the site is designated as a Gateway site.  This is defined in the following terms:

“Gateway site

A specific area identified on a local plan map, through the use of a symbol, that is in a key entry location to or within an activity centre.  Gateway sites contribute to the character of places through the use of height, notable architectural excellence, mixed use activity and connections to public transport, pedestrian activity and public spaces.

Note – A gateway site may comprise part or all of a lot, or an area not contained within a lot.  Refer to the Local plan maps contained in Schedule 2 for locations of gateway sites.”[52]

The respondent identifies various assessment benchmarks within the SLPC which are designed to give effect to this designation.  First, s 7.2.8.3(j) talks about Gateway sites being “given significance through their use and built form”.[53]  Second, PO4 seeks to give effect to these considerations such that they result in “memorable architecture and distinctive developments in the local area”, through various means.[54]

  1. [34]
    This Gateway site is in the southern corner of the site adjacent to the rear of a residential area and bounded on the western side by the Captain Cook Highway and on the eastern side by the elevated Smithfield bypass. One wonders what it is intended to be a gateway to and what architectural outcome the drafter of this provision had in mind when he or she dreamt it up.  Fortunately, as noted above, this designation only applies to part of the site and the appellant has mercifully left the resolution of this psychedelic vision for a later time.  There is no requirement that it be resolved now as part of this code assessable development application, which is itself outside the area contemplated for the Gateway site.  There is no non-compliance with the relevant assessment benchmarks in this regard.
  2. [35]
    The respondent also takes issue with the proposed amended structure plan of the appellant.  It is a requirement pursuant to s 7.2.8.3(5)(f)(i) that development on the site “establishes a structure plan allowing for a mix of uses, focussed on centre activities and mixed use developments”.[55]  In the SLPC, the following provisions address this requirement in more detail in the following terms:

“Additional requirement for Sub-precinct 3b – Future retail and commercial area

PO13

Development in Sub-precinct 3b – Future retail and commercial area:

  1. (a)
    establishes a structure plan allowing for a mix of uses, focussed on shopping, showrooms, low-scale industry and commercial activities;

AO13.1

A structure plan supports development proposing reconfiguration of land or material change of use.

Note – Guidance on preparing a structure plan is provided within Planning scheme policy – Structure planning.”[56]

  1. [36]
    Unfortunately, a structure plan is not a defined term in the planning scheme and when reference is had to the Planning Scheme Policy – Structure planning (“the PSP”), the requirements are generally expressed in less than mandatory terms.  Section 2.2(2) of the PSP contains the only mandatory requirement in that:

“It must demonstrate how development in the structure planned area will integrate with the surrounding community and with existing parks and infrastructure networks and movement systems (road network, public transport facilities and pedestrian cyclist networks).”[57]

Other provisions are expressed in terms that it should include various things including, in certain instances “it should include the following as a minimum”.[58]  When compared to the language used in s 2.2(2) above, such things are less than mandatory however.

  1. [37]
    The amended structure plan only addresses the requirements which it must demonstrate pursuant to s 2.2(2) and only to the extent they are relevant.  It merely joins the proposed development with both internal and external pedestrian cycle and public transport linkages.  The balance of the site is shown as future mixed use development areas (a), (b), (c) and (d).  The future mixed use development (b) area includes the Gateway site, providing for a development of up to six storeys.[59]  Effectively, the appellant has demonstrated that the balance of the site can be developed in accordance with the applicable assessment benchmarks in the planning scheme. The appellant submits that this is all it is required to do.  In the context of the proposed development being code assessable and there being no requirement for any preliminary approval showing how all of the uses of the site are to ultimately integrate, I am of the view that this is sufficient to discharge the obligations mandated pursuant to the relevant benchmarks. The amended structure plan could be established by the imposition of an appropriate development condition.
  2. [38]
    Given the certainty which is provided to an applicant for a development application which is code assessable, it is not appropriate for ambiguous obligations to be imputed into the relevant assessment benchmarks. This is more suited to impact assessable development, which as the term implies, is appropriate where the broader impacts of a development proposal are important considerations.
  3. [39]
    Turning to the design of the proposed development itself, again the respondent laboriously outlines numerous assessment benchmarks which it submits the appellant has failed to comply with.  These include s 6.2.14.2(4)(d) that “development addresses the street frontage and provides car parking behind buildings”.[60]  PO3 requires front building setbacks to be consistent with the prevailing setbacks in the street and AO3.1 requires that it be built to the road frontage.  PO5(c) requires that it “complements the scale and character of the surrounding area”.[61]  Non-compliances are also alleged with various provisions of the SLPC but these all address amorphous integration requirements in circumstances where the development of the balance of the site is not contemplated as part of this code assessable application.[62] Finally, similar amorphous design benchmarks are identified in the CDC with which it is asserted by the respondent there is non-compliance.[63] 
  4. [40]
    Two experts in visual amenity and design gave evidence in the course of the appeal.  Mr Butcher gave evidence on behalf of the appellant and Mr Curtis gave evidence on behalf of the respondent.  They both agreed that the Captain Cook Highway was the principal frontage of the proposed development and that the building was not built to the front boundary.[64]  The only obvious non-compliances with relevant assessment benchmarks in terms of its built form are that the building is not built to the boundary fronting the Captain Cook Highway and that the proposed provision of car parking is between the building and the highway. This design is entirely consistent with other similar developments in the Cairns Northern Beaches. I am of the view that these non-compliances from a design perspective do not of themselves warrant refusal of the development application.

Conclusion

  1. [41]
    What is proposed is a Shopping centre which is a code assessable use on the site.  The fact it is code assessable does not absolve the appellant of the requirement that it demonstrate a need for it, as variously described in the relevant assessment benchmarks.  It has not done so.  This essential requirement runs through the planning scheme regardless of the status of the development application in question. The failure to comply with the relevant assessment benchmarks in this regard is such that the appeal must be dismissed.  None of the other assessment benchmarks identified by the respondent either of themselves or in combination would warrant refusal of the development application however, because they are either complied with or the non-compliance does not warrant refusal. Accordingly, I dismiss the appeal.

Footnotes

[1]  Exhibit 9, para 14, Exhibit 7, para 38, Exhibit 5, Figure 4.

[2]  Exhibit 7, paras 37 and 41.

[3]  Ibid, para 42, Exhibit 5, para 92.

[4]  Exhibit 7, p 51, Exhibit 3, p 12.

[5]  Exhibit 11, p 161.

[6]  Ibid p 156.

[7]  Ibid p 52.

[8]  Exhibit 7, para 46.

[9]  Ibid, para 47.

[10]  Ibid, paras 39 and 48.

[11]  Ibid.

[12]  Exhibit 15, para 8.

[13] Planning and Environment Court Act 2016, s 43.

[14]  Ibid, s 45(1)(a).

[15]  [2018] QPELR 941 at 957 [102].

[16]  Cairns Plan 2016, s 5.4, Exhibit 11, p 41.

[17]  Ibid.

[18]  (2014) 201 LGERA 82.

[19]  Exhibit 11, p 17.

[20]  Exhibit 1.

[21]  Exhibit 2.

[22]  Exhibit 11, p 100.

[23]  Ibid, p 119.

[24]  [2020] QPEC 17 [29] – [33].

[25] Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95.

[26] Fabcot v Cairns Regional Council & Ors [2020] QPEC 17 at [29]

[27]  Ibid, at [30] – [33].

[28]  Exhibit 5, para 42.

[29]  Ibid, para 44.

[30] Fabcot Pty Ltd v Cairns Regional Council & Ors [2022] QPEC 12.

[31]  Exhibit 5, para 82.

[32]  Ibid, para 88(a).

[33]  Ibid, Fig. 4 and Map 3.

[34]  Exhibit 12, p 1.

[35]  Exhibit 5, para 90 and 115(m).

[36]  Ibid, para 91 and 115(m).

[37]  Exhibit 6, para 3.7.

[38]  Appellant’s written submissions, para 38(b).

[39]  [2021] QCA 95 at [158].

[40]  Appellant’s written submissions, para 138(f).

[41]  3.3.2.1(10), Exhibit 11, p 28.

[42]  Exhibit 11, p 81.

[43]  Ibid, p 83.

[44]  Ibid, p 98.

[45]  At [17].

[46]  Ibid, p 119.

[47]  Exhibit 5, p 47.

[48]  Exhibit 11, p 172.

[49]  The same is true for other benchmarks identified by the respondent, namely s 6.2.14.2(1), (2), (3)(a) and (4)(a) of the MUZC and s 7.2.8.3(5)(a), (b), and (f)(i), and PO13(a).  I address the issues relating to the structure plan and the gateway site subsequently.

[50]  Exhibit 11, p 27.

[51]  Exhibit 7, para 84.

[52]  Exhibit 11, p 170.

[53]  Ibid, p 98.

[54]  Ibid, p 102.

[55]  Ibid, p 100.

[56]  Ibid, p 104.

[57]  Ibid, p 186.

[58]  Ibid.

[59]  Exhibit 3, p 12.

[60]  Exhibit 11, p 81.

[61]  Ibid, p 83.

[62]  Section 7.2.8.3(2)(i) (Ibid, p 98); s 7.2.8.3(5)(b) (Ibid, p 100); PO11(d) and (e) (Ibid, p 11).

[63]  Section 9.4.1.2(1)(b) (Ibid, p 119); PO5 (Ibid, p 121); and PO7 (Ibid, p 122).

[64]  T2-8, ll 11 – 12; T2-26, ll 34 – 35; T2-32, ll 5 – 6.

Close

Editorial Notes

  • Published Case Name:

    Trinity Park Investments Pty Ltd v Cairns Regional Council

  • Shortened Case Name:

    Trinity Park Investments Pty Ltd v Cairns Regional Council

  • MNC:

    [2022] QPEC 15

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    24 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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