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North Harbour Holdings Pty Ltd v Moreton Bay Regional Council[2024] QPEC 21

North Harbour Holdings Pty Ltd v Moreton Bay Regional Council[2024] QPEC 21

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

North Harbour Holdings Pty Ltd v Moreton Bay Regional Council & Anor [2024] QPEC 21

PARTIES:

NORTH HARBOUR HOLDINGS PTY LTD (ACN 101 569 457)

(Appellant)

v

MORETON BAY REGIONAL COUNCIL

(Respondent)

AND

LANCORP PTY LTD (ACN 165 102 330)

(Co-respondent)

FILE NO/S:

1687/22

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

8 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

28 – 31 March, 3 and 4 April 2023

JUDGE:

Kefford DCJ

ORDER:

In due course, the Moreton Bay Regional Council’s decision will be set aside and replaced with a decision that approves the development application subject to conditions.  To that end, I adjourn the appeal for further hearing on 5 June 2024.

I order:

  1. (a)
    the Council prepare a draft Judgment that attaches conditions of approval that generally accord with those provided in its negotiated decision notice with necessary amendments to reflect the conditions and plans referred to in paragraphs [329] and [330] below;
  1. (b)
    unless the Court orders otherwise, the Council is to provide the draft Judgment and conditions to each of the parties by no later than 15 May 2024 and is to file and serve an affidavit exhibiting the relevant correspondence and draft Judgment by no later than 16 May 2024; and
  1. (c)
    unless the Court orders otherwise, if any of the parties contend that the draft Judgment does not adequately reflect these reasons, or otherwise contends that the conditions are not appropriate:
  1. (i)
    the party so contending is to file and serve an outline of argument with respect to such matters, and any additional evidence on which it seeks to rely in that respect, by no later than 22 May 2024;
  1. (ii)
    the other parties are to file and serve any outlines of argument in response, and any additional evidence on which it seeks to rely in that respect, by no later than 29 May 2024; and
  1. (iii)
    the outlines of argument are not to exceed five pages in length and are to provide an estimate of the time required on 5 June 2024 to hear argument about the matters raised.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s approval of a development application – where the Co-respondent made a development application seeking a development permit for a material change of use – where the development application is for redevelopment of land at Burpengary East – where the proposed development is to include a full-line supermarket – whether the proposed development is a local centre – whether the land use is appropriate – whether the character and design of the proposed development is appropriate – whether the proposed development will result in adverse traffic impacts – whether there is a need for the supermarket – whether the proposed development should be approved in the exercise of the discretion

LEGISLATION:

Acts Interpretation Act 1954 (Qld) ss 14D, 32D

Planning Act 2016 (Qld) ss 45, 59, 60

Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46, 47

Planning Regulation 2017 (Qld) s 31, sch 24

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39, applied

Fabcot Pty Ltd v Ipswich City Council & Anor [2022] QPEC 11; [2023] QPELR 693, considered

Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101; (2008) 166 LGERA 245; [2009] QPELR 435, approved

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved

IB Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 791, approved

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

Jedfire Pty Ltd v Logan City Council [1995] QPLR 41, approved

K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; [2021] QPELR 518, approved

Kenlynn v Noosa Shire Council [2019] QPEC 65; [2020] QPELR 834, approved

Kentucky Fried Chicken Pty Ltd v Gantidis & Anor [1979] HCA 20; (1979) 140 CLR 675, applied

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, cited

Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, approved

McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, approved

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, cited

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPEC 7; (2008) 160 LGERA 356; [2008] QPELR 480, approved

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied

SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied

Sumvista Pty Ltd v Redland Shire Council & Anor [2005] QPEC 2; [2005] QPELR 460, approved

Taylor v Owners - Strata Plan 11564 & Ors [2014] HCA 9; (2014) 253 CLR 531, applied

Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2021] QPEC 29; [2022] QPELR 609, approved

SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Ugarin Pty Ltd v Logan City Council & Anor [2004] QPEC 1; [2004] QPELR 392, approved

Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, applied

Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272, approved

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, applied

Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied

COUNSEL:

D Gore KC and L Walker for the Appellant

M Batty and K Buckley for the Respondent

GA Thompson KC and R Yuen for the Co-respondent

SOLICITORS:

Thynne + Macartney for the Appellant

Moreton Bay Regional Council Legal Services for the Respondent

Steele Project Strategy and Advisory for the Co-respondent

TABLE OF CONTENTS

Introduction6

What is the character of the subject land and the locality?8

What is the nature of the proposed development?11

What are the issues that require determination?12

What is the relevant framework for the decision?13

Key issue 1 - Is the proposed development an inappropriate use of the subject land when assessed against the Planning Scheme?14

What planning outcomes with respect to land use are sought in the Rural residential zone code?15

Does an assessment of the proposed development against the Rural residential zone code tell against approval?20

What does the Strategic framework reveal about the settlement pattern, walkable communities and the creation of new local centres?21

Does the proposed development comply with s 3.6.1 1.c. of the Strategic framework?32

Does the proposed development comply with s 3.6.1 4. of the Strategic framework?34

Does the proposed development comply with s 3.10.1 3. of the Strategic framework?35

Does the proposed development comply with s 3.10.1 8. of the Strategic framework?37

What is the significance of non-compliance with ss 3.6.1 1.c., 3.6.1 4, 3.10.1 3. and 3.10.1 8. of the Strategic framework?37

Does s 6.2.1.5.1 1.l. of the Centre zone code tell against approval?51

Conclusion about whether the proposed development involves an inappropriate use of the subject land57

Key issue 2 – Will the proposed development have unacceptable character and visual amenity impacts?61

What do the provisions of the Rural Residential zone code stipulate in relation to design and appearance of development and character and visual amenity impacts?61

What is the character of the locality?63

What are the design attributes of the proposed development?67

Will the proposed development have a detrimental impact on the character and visual amenity of the Rural residential zone?71

Will the proposed development maintain a distinct and recognisable transition between urban and rural areas?77

Conclusion about whether the design and appearance of the proposed development complies with the Rural residential zone code?78

Does non-compliance with the planning outcomes with respect to design of centres in the Local centre precinct in the Centre zone code tell against approval?79

Key issue 3 – Will the proposed development give rise to unacceptable traffic impacts unless conditioned?81

Key issue 4 – What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?88

Key issue 5 – Is there a need for the proposed development?93

What are the general principles that inform and guide an assessment of need?95

Does the evidence establish a latent unsatisfied demand for a new local centre?97

Is the latent unsatisfied demand appropriately met on the subject land?101

Will approval of the proposed development have unacceptable trading impacts on The Hub Convenience Centre?101

Could the latent unsatisfied demand be met on land owned by North Harbour Holdings Pty Ltd?106

Is there other evidence that demonstrates a need for the proposed development?107

Conclusion re need108

Key issue 6 – Should the proposed development be approved in the exercise of the planning discretion?108

Conclusion110

Introduction

  1. [1]
    This appeal relates to a development application made by the Co-Respondent, Lancorp Pty Ltd, seeking a development permit to make a material change of use to facilitate a local centre (“the proposed development”).  The development application relates to land at 116-122 Buckley Road and 137-143 Uhlmann Road, Burpengary East (“the subject land”). 
  2. [2]
    Burpengary East is approximately 35 kilometres north of the Brisbane central business district.  It is on the eastern side of the Bruce Highway and within the local government area of Moreton Bay Regional Council (“the Council”).  It is a dormitory suburb that is accessed via the Uhlmann Road exit from the Bruce Highway. 
  3. [3]
    The subject land is approximately 230 metres east of the Bruce Highway and Uhlmann Road grade-separated interchange.  It is on the northeastern corner of a major intersection, being the intersection of Buckley Road and Uhlmann Road. 
  4. [4]
    At present, there is a cluster of non-residential uses that are centred around the signalised intersection of Buckley Road and Uhlmann Road.  They include:
    1. a service station and childcare centre on the south-eastern corner of the intersection;
    2. a development on the north-western corner of the intersection, known as The Hub Convenience Centre, which comprises four buildings and a large area of at-grade carparks.  The Hub Convenience Centre contains a mix of commercial, retail and community uses, including two medical centres, a dentist, a psychologist, a large pharmacy, a childcare centre, shops, a small IGA supermarket, cafes, take away food stores, bakeries, personal grooming services and a takeaway liquor store; and
    3. a commercial tennis centre with three tennis courts and associated lighting on the north-eastern corner of the intersection, which is part of the subject land. 
  5. [5]
    The subject land, and the other land surrounding the intersection that contains non-residential uses, form part of a discrete pocket of land to the east of the Bruce Highway that is in the Rural residential zone under the Moreton Bay Regional Council Planning Scheme 2016 (“the Planning Scheme”).  Just north of that discrete pocket, about two kilometres from the subject land, is land that is being developed as a residential and mixed industry and business estate known as North Harbour. 
  6. [6]
    This area to the east of the Bruce Highway is experiencing rapid population growth.  At present, there is no full-line supermarket east of the Bruce Highway to serve the growing population of Burpengary East.  The residents of the area must cross the Bruce Highway to satisfy their essential convenience shopping needs. 
  7. [7]
    Lancorp Pty Ltd seeks to fill that gap in the market by providing a local centre on the subject land and submitted a development application to that end, which was accepted as properly made on 31 August 2021.  The development application was publicly notified.  During the public notification period, the Council received 20 properly made submissions opposing the proposed development and one submission in support of it. 
  8. [8]
    One of the properly made submissions opposing the proposed development was made by the Appellant in this appeal, North Harbour Holdings Pty Ltd.  It is the developer of the residential and mixed industry and business estate known as North Harbour.  North Harbour Holdings Pty Ltd hopes to develop some of its land nearby for a local centre.
  9. [9]
    By negotiated decision notice dated 17 June 2022, the Council approved Lancorp Pty Ltd’s development application, subject to conditions. 
  10. [10]
    On 14 July 2022, North Harbour Holdings Pty Ltd commenced this appeal. 
  11. [11]
    There is much to commend approval of the proposed development.  Matters that support approval include that:
    1. there is a need for a local centre to the east of the Bruce Highway to provide essential convenience shopping and community facilities;
    1. no unacceptable tangible amenity impacts would arise from approval of the proposed development;
    2. the subject land is conveniently located in that it is:
      1. (i)
        at the gateway to Burpengary East and its residents;
      1. (ii)
        on a major thoroughfare;
      1. (iii)
        within easy walking distance of an existing residential aged care facility and nursing home in the Rural residential zone;
      1. (iv)
        proximate to, and within easy walking distance of, complementary land uses such as child-care facilities and medical centres, consequently encouraging a higher level of linked trips; and
    3. the provision of a new local centre on the subject land is consistent with higher order provisions of the Planning Scheme that set the forward planning policy direction for the Planning Scheme area, including key policies that are intended to address the cost of living.
  12. [12]
    Against those matters, when exercising the planning discretion, I must balance the considerations that tell against the grant of approval.  In support of its contention that the proposed development should be refused, North Harbour Holdings Pty Ltd principally relies on:
    1. a provision of the Rural residential zone code that lists the proposed uses as uses that are not to be included in that zone;
    2. an alleged undesirability of approving the proposed development as its catchment overlaps with the catchment for The Hub Convenience Centre;
    3. the alleged absence of a walkable neighbourhood served by the proposed development; and
    4. alleged unacceptable impacts on the character and amenity of the surrounding rural residential area.
  13. [13]
    North Harbour Holdings Pty Ltd no longer contends that there are unacceptable traffic impacts that, of themselves, warrant refusal.  Although it still contends that the traffic impacts will be unacceptable, it says that this lends weight to the case for refusal (unless the recommendations of the traffic engineer retained by it, Mr Adam Pekol, are adopted).
  14. [14]
    Consistent with its decision, the Council contends that the development application should be approved. 
  15. [15]
    The appeal generally[1] proceeds as a hearing anew.[2]  Lancorp Pty Ltd bears the onus of establishing that the appeal should be dismissed.[3] 

What is the character of the subject land and the locality?

  1. [16]
    Before considering the issues in dispute, it assists to first appreciate the features and character of the subject land and the locality generally.
  2. [17]
    To assist me in that regard, I have the benefit of:
    1. expert evidence with respect to town planning given by Mr David Perkins, Mr Leo Mewing and Ms Jennifer Morrissy, the town planners retained by Lancorp Pty Ltd, the Council and North Harbour Holdings Pty Ltd respectively;
    2. expert evidence with respect to character and visual amenity given by Dr Nicholas McGowan, the visual amenity expert retained by Lancorp Pty Ltd; and
    3. many photographs of the area.
  3. [18]
    The parties arranged a site inspection of the local area.  Although my observations on the site inspection do not form part of the evidence, my appreciation of the photographic evidence, and the opinions conveyed by the experts, was greatly enhanced by that site inspection.
  4. [19]
    My findings below are not attributable to a single statement by an expert.  They reflect the aggregate impression that I have formed having regard to the collective effect of the evidence, including the photographic evidence.
  1. [20]
    The subject land comprises Lot 2 on SP 230232, Lot 1 on RP 183727 and Lot 4 on RP 101194, which have a combined area of 21,812 square metres.  It is trapezoidal in shape and has a frontage of approximately 140 metres to Buckley Road and approximately 166 metres to Uhlmann Road.  Two of the lots contain dwelling houses and associated outbuildings.  The other lot is developed with a commercial tennis centre and a dwelling house.
  1. [21]
    As I have already mentioned, the subject land is part of Burpengary East, which is a discrete pocket of land in the Rural residential zone located east of the Bruce Highway.   
  2. [22]
    The subject land is on the northeastern corner of a major intersection, being the intersection of Buckley Road and Uhlmann Road.  The intersection is approximately 230 metres east of the Bruce Highway grade-separated interchange that provides access to Burpengary East. 
  3. [23]
    The Planning Scheme classifies Uhlmann Road as an arterial road west of Buckley Road and a sub-arterial road east of Buckley Road.  Apart from localised widening at intersections, Uhlmann Road has a two-lane-wide undivided form.  
  1. [24]
    Under the Planning Scheme, Buckley Road is classified as an arterial road.  At its intersection with Uhlmann Road and adjacent to the subject land, Buckley Road is a four-lane wide divided arterial road.  North and south of the intersection, the cross-section of Buckley Road reduces to a two-lane-wide, undivided form.  Buckley Road and Uhlmann Road each have posted speed limits of 60 kilometres per hour. 
  2. [25]
    Along the frontage of the subject land, and in nearby areas, active transport infrastructure has already been established.  The existing infrastructure includes:
    1. a 1.8-metre-wide concrete pedestrian path that extends away from the intersection of Uhlmann Road and Buckley Road for several blocks along Uhlmann Road;
    2. a 2.5-metre-wide concrete pedestrian path that extends along most of Buckley Road;
    3. concrete pedestrian paths that extend from the intersection of Uhlmann Road and Buckley Road to the western side of the Bruce Highway; and
    4. on-road cycle lanes on both sides of Buckley Road and Uhlmann Road in the vicinity of the subject land. 
  1. [26]
    As one enters Burpengary East from the Bruce Highway, one is immediately confronted by the cluster of non-residential uses that are centred around the signalised intersection of Buckley Road and Uhlmann Road.  As I have already mentioned, they include:
    1. a service station and childcare centre on the south-eastern corner of the intersection;
    2. a conglomeration of commercial, retail and community activities accommodated in four buildings and served by a large area of at-grade carparks on the north-western corner of the intersection.  The conglomeration is the development known as The Hub Convenience Centre, which accommodates two medical centres, a dentist, a psychologist, a large pharmacy, a childcare centre, shops, a small IGA supermarket, cafes, take away food stores, bakeries, personal grooming services and a takeaway liquor store; and
    3. a commercial tennis centre with three tennis courts and associated lighting on that part of the subject land that is at the north-eastern corner of the intersection. 
  2. [27]
    The locality surrounding the subject land contains other development that involves intensive built form or non-residential uses (or both), including:
    1. a residential aged care facility and nursing home about 250 metres to the north-west of the subject land at 135 Buckley Road;
    2. a service station (being the Caboolture South BP Service Centre) to the north at the corner of Coach Road East and the Bruce Highway;
    3. the Church of Jesus Christ of Latter-Day Saints to the south at 27–35 Buckley Road; and
    4. several open storage areas, including at the corner of Junction Road and Buckley Road.
  3. [28]
    About two kilometres north of the intersection of Buckley Road and Uhlmann Road, and north of the pocket of land in the Rural residential zone, North Harbour Holdings Pty Ltd is constructing the development known as North Harbour.  The North Harbour development area is approximately 809 hectares.  The approved residential component will contain about 1,600 lots, of which about 1,400 are developed to date.  The balance of the North Harbour development area is located within the Mixed industry and business precinct of the Industry zone, the Limited development zone and the Recreation and open space zone of the Planning Scheme. 
  4. [29]
    Dr McGowan opines that the local extent of the Rural residential zone has a varied character.  He explains that parts of that area possess the qualities referred to in the purpose of the Rural residential zone code, namely a semi-rural or bushland amenity where the intensity of residential development is generally dispersed and there is a strong dominance of open area.  However, Dr McGowan opines that much of the local extent of the Rural residential zone does not exhibit these qualities.  Rather, he says that there are extensive areas of residential development that present as part of a low-density residential area rather than as part of a rural residential area.  According to Dr McGowan, much of the area does not portray a sense of spaciousness or a semi-rural or bushland setting with a dominance of open area. 
  5. [30]
    I accept Dr McGowan’s evidence.  It is made good by the many photographs of the local area. 
  6. [31]
    The evidence demonstrates that the character of Burpengary East is informed by three elements.  First, at its core, there is a predominance of detached dwelling houses on varying lot sizes that are located within a street network characterised by many cul-de-sacs and a suburban appearance.  Second, towards the outer edges of the area, adjacent land in the Rural zone, there are larger lots with a semi-rural or bushland amenity.  Third, at the gateway to Burpengary East, there is a conspicuous cluster of non-residential uses centred around a major, signalised intersection that give the area immediately surrounding the subject land a more urbanised character.
  7. [32]
    The character of the locality is strongly influenced by the predominance of detached housing that present as part of a large-lot suburban housing estate and the urbanised gateway to the suburb.  Combined, they give the locality a feel that is more urbanised than semi-rural or bushland in character and amenity.

What is the nature of the proposed development?

  1. [33]
    Lancorp Pty Ltd seeks a development permit to authorise the commencement of a new use on the subject land.  In its development application, Lancorp Pty Ltd applied for the uses of shopping centre, food and drink outlet, indoor sport and recreation, office, service industry, shop and veterinary services.  Each of these are defined uses in the Planning Scheme.  It is proposed that the uses will collectively operate as a new local centre, which will comprise:
    1. a full-line supermarket with 3,300 square metres of gross lettable area;
    2. approximately 1,445 square metres of gross lettable area for specialty shops, including 25 square metres for a kiosk and 150 square metres for a liquor store;
    3. 226 carparking spaces, of which six are proposed to be dedicated to “click and collect” services; and
    4. amenities areas totalling 195 square metres.
  2. [34]
    These uses are to be accommodated in three buildings.  Each is a single storey building with a maximum building height of 8.42 metres, save for those parts of the building that comprise mezzanine plant room and rooftop mechanical plant that extend up to 11.5 metres in height.
  3. [35]
    Two of the buildings are positioned at the south-western corner of the subject land, near the intersection.  They will be used for various retail and commercial activities.  One fronts Buckley Road and has a gross lettable area of 278 square metres.  The other fronts Uhlmann Road and has a gross lettable area of 358 square metres.  There is a small entry plaza between those two buildings, which leads to an open area that is suitable for outdoor dining and overlooks a play space for children.
  4. [36]
    The third building is much larger.  It is set back from the road frontages and sits behind the main customer car parking area.  It accommodates the proposed supermarket and other smaller tenancies for retail and commercial activities, including the liquor store and kiosk.
  5. [37]
    Vehicular access is proposed to be via crossovers at the Uhlmann Road and Buckley Road frontages, near the boundary between the subject land and adjoining residential development. 
  6. [38]
    Parking is provided for approximately 226 cars.  The car parking area and the vehicle circulation area are to be at grade and partially sleeved behind the buildings.  The car parking area includes shade canopies, pedestrian pathways and refuges raised within the vehicle surface.
  7. [39]
    An area designated for staff parking and a drive through for customer parcel collections are to be located on the northern side of the supermarket building, separated from the adjoining residential property to the north by a three-metre-wide landscape buffer and acoustic barrier.  A service vehicle circulation driveway lies between the supermarket building and the adjoining residential property to the east, and there will be an acoustic barrier on the boundary.
  8. [40]
    Refuse collection and servicing areas are to be located:
    1. for the supermarket, within the supermarket building adjoining the supermarket loading dock at the north-eastern corner of the subject land; and
    2. for all other tenancies, adjacent to the services area on the southern side of the subject land.
  9. [41]
    Acoustic barriers are proposed along the northern and eastern boundaries.  The height of the barriers varies across the length of the boundaries, but they have a maximum height of 3.5 metres along the northern boundary and a maximum height of 3.2 metres along the eastern boundary.  The side of these barriers that address neighbouring properties are to be painted with artwork that references the locality. 
  10. [42]
    The proposed development also facilitates various upgrades to the road networks by:
    1. providing a bus stop with covered seating on Buckley Road at the frontage of the subject land and carrying out associated roadworks;
    2. dedicating land to facilitate future road widening; and
    3. undertaking external roadworks on Buckley Road and Uhlmann Road, part of which incorporate a northbound bus stop in Buckley Road at a position north of the proposed signalised access to the subject land.

What are the issues that require determination?

  1. [43]
    The issues in dispute were agreed by the parties and identified in Exhibit 8.13.[4]  There are six key issues that require determination, namely:
  1. Is the proposed development an inappropriate use of the subject land when assessed against the Planning Scheme?
  2. Will the proposed development have unacceptable character impacts?
  3. Will the proposed development give rise to unacceptable traffic impacts unless conditioned?
  4. What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
  5. Is there a need for the proposed development?
  6. Should the proposed development be approved in the exercise of the planning discretion?
  1. [44]
    Each of these questions is to be determined by reference to the applicable statutory assessment and decision-making framework.

What is the relevant framework for the decision?

  1. [45]
    As is evident from s 47 of the Planning and Environment Court Act 2016 and s 60 of the Planning Act 2016, the Court has a broad discretion in determining the appeal.  It has power to confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the entity that made the decision with directions the Court considers appropriate. 
  2. [46]
    The Court’s broad discretion should be exercised judicially, and subject to the limitations in the relevant statutes.[5]  The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 provides relevant guidance in that respect.
  3. [47]
    As the development application required impact assessment, pursuant to ss 45(5) and 59 of the Planning Act 2016, the exercise of the discretion must be based on an assessment that:
    1. must be carried out:
      1. (i)
        against the assessment benchmarks in the Planning Scheme to the extent that they are relevant;
      1. (ii)
        having regard to any matters prescribed by regulation, which in this case relevantly includes:
      1. (A)
        any development approval for, and any lawful use of, the premises and adjacent premises; and
      1. (B)
        the common material, including properly made submissions about the development application;[6] and
    2. may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise).
  4. [48]
    Section 43 of the Planning Act 2016 defines assessment benchmarks to include those matters set out in a planning scheme as matters that an assessment manager must assess assessable development against.
  5. [49]
    The development application was accepted as properly made on 31 August 2021.  At that time, version 4 of the Planning Scheme was in effect.  As such, version 4 of the Planning Scheme is a categorising instrument containing assessment benchmarks relevant to the assessment called for by s 45 of the Planning Act 2016. 
  6. [50]
    There have been amendments made to the Planning Scheme since the development application was made, but it is common ground that nothing arises from them that requires consideration under s 45(8) of the Planning Act 2016.
  7. [51]
    The development application was impact assessable but did not trigger referral to any referral agencies prescribed by the Planning Regulation 2017 (Qld). 
  1. [52]
    In relation to s 45(5)(b) of the Planning Act 2016, although examples are given, the term “relevant matter” is not defined.  In an appropriate case, the absence of a negative impact or detrimental effect may be taken into account as a relevant matter.[7]  Personal circumstances of a person (including a corporation),[8] financial or otherwise, are not a relevant matter to which regard may be had.[9]
  1. [53]
    The assessment and decision-making process is to be approached in a manner that is consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,[10] Abeleda & Anor v Brisbane City Council & Anor,[11] Wilhelm v Logan City Council & Ors[12] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[13]  Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors.[14]  That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[15]
  1. [54]
    I now turn to consider each of the disputed issues.

Key issue 1 - Is the proposed development an inappropriate use of the subject land when assessed against the Planning Scheme?

  1. [55]
    Lancorp Pty Ltd seeks approval to start a new use of the land.  The uses sought are shopping centre, food and drink outlet, indoor sport and recreation, office, service industry, shop and veterinary services.  As I have already mentioned, each of these are defined uses in the Planning Scheme.
  2. [56]
    North Harbour Holdings Pty Ltd contends that the proposed development involves an inappropriate use of the subject land.  In support of its contention, North Harbour Holdings Pty Ltd points to three aspects of the Planning Scheme, namely provisions directed at:
    1. the nature of development anticipated in the Rural residential zone, and those uses that are not;
    2. criteria for the establishment of a new local centre where the new local centre involves out-of-centre development; and
    3. creating a more compact settlement pattern and walkable communities.
  3. [57]
    The Agreed List of Issues in Exhibit 8.13 records that North Harbour Holdings Pty Ltd relies on:
    1. ss 6.2.11.2 1., 6.2.11.2 3.h. and 6.2.11.2 3.s. of the Rural residential zone code; and
    2. s 6.2.1.5.1 1.l. of the Centre zone code; and
    3. ss 3.6.1 1.c., 3.6.1 4., 3.10.1 3., and 3.10.1 8. of the Strategic framework.
  4. [58]
    North Harbour Holdings Pty Ltd says they are assessment benchmarks.
  5. [59]
    In this case, whether the proposed development is an appropriate use of the land is not a matter that can readily be resolved by an assessment against only those provisions of the Planning Scheme referenced in the Agreed List of Issues.  It is necessary to discuss the Planning Scheme in some detail.

What planning outcomes with respect to land use are sought in the Rural residential zone code?

  1. [60]
    When considering whether the Planning Scheme supports the use of the subject land for the proposed development, the applicable zone code is a useful starting point.  That is because the Planning Scheme explains, in s 6.1, that:
    1. the Planning Scheme uses zones to organise the Planning Scheme area in a way that facilitates the location of preferred or acceptable land uses; and
    2. the assessment benchmarks that specifically relate to a zone are contained in the zone code.
  2. [61]
    Section 6.1 of the Planning Scheme also explains that each zone code identifies:
    1. the purpose of the code;
    2. the overall outcomes that achieve the purpose of the code;
    3. the performance outcomes that achieve the overall outcomes and the purpose of the code;
    4. examples that achieve aspects of the corresponding performance outcomes identified in the code;
    5. precinct specific performance outcomes and examples; and
    6. some overlay specific performance outcomes and examples relevant to land in the zone.
  3. [62]
    As I have already observed, the subject land is in the Rural residential zone. 
  4. [63]
    Section 6.2.11.1 1. of the Planning Scheme states that the assessment benchmarks in the Rural residential zone code apply to development in that zone if the development has been categorised as requiring impact assessment. 
  5. [64]
    The purpose of the Rural residential zone is identified in s 6.2.11.2 1. of the Planning Scheme, which states:

“The purpose of the Rural residential zone is to provide for residential development on large lots where infrastructure and services may not be provided and where the intensity of residential development is generally dispersed. The zone is generally located at the urban-rural fringe, having a semi-rural or bushland amenity and character with a strong dominance of open area and scope for planting. Development is characteristically low density (large lots), low intensity of built form and catering for a range of lifestyle choices. The opportunity and ability for rural uses to occur is retained. Limited provision for other low intensity non-residential uses is also provided where it is demonstrated they have minimal adverse impacts on the amenity and character of the zone.”

  1. [65]
    Section 6.2.11.2 2 states that the Rural residential zone seeks to implement the policy direction set in the Strategic framework. 
  2. [66]
    According to s 6.2.11.2 3. of the Planning Scheme, the purpose of the Rural residential zone will be achieved through the overall outcomes in the Rural residential zone code.  Collectively, the overall outcomes in ss 6.2.11.2 3.b., g., h., i., j., k., r. and s. of the Rural residential zone code provide guidance about the types of low intensity, non-residential uses for which limited provision is made in the Rural residential zone.  Those overall outcomes state:

“b. The ongoing operation of existing rural uses and primary production activities is retained.  Rural uses and primary production activities establish where they do not adversely impact on the use, character and amenity values of adjoining properties.

g. Home based business establish where the scale and intensity of the activity does not detrimentally impact upon the low density, low intensity and open area character and amenity associated with the Rural residential zone.

h. Retail and commercial activity group uses establish within existing Neighbourhood Hubs (see Overlay map - Community activities and neighbourhood hubs). Redevelopment or development within existing Neighbourhood Hubs occurs where:

i. development does not result in nuisance or amenity impacts on adjoining residents or the wider streetscape;

ii. development is small scale, low intensity and consistent with the rural residential character and amenity associated with the particular Neighbourhood hub; and

iii. development associated with retail and commercial activity group activities does not involve the expansion of existing Neighbourhood hubs onto adjoining lots.

i. Community activity group uses establish within existing Community Activities locations (see Overlay map - Community activities and neighbourhood hubs). Community activity group activities may only establish on lots that immediately adjoin existing Community activities and neighbourhood hubs only. Redevelopment or development within existing Community Activities locations, or on lots immediately adjoining Community activities and neighbourhood hubs occurs where:

i. development does not result in nuisance or amenity impacts on adjoining residents or the wider streetscape; and

ii. development is small scale, low intensity and consistent with the rural residential character and amenity associated with the particular Community Activities location.

j. Development generating high volumes of traffic or involving heavy vehicle traffic movements are located on roads of a standard and capacity to accommodate traffic demand.

k. Development does not result in the establishment of industrial activities.

r. Development in the Rural residential zone includes one or more of the following:

  • Animal husbandry
  • Animal keeping – excluding catteries and kennels
  • Aquaculture - if water area associated with ponds and dams are less than 200m2 or housed tanks are less than 50m2
  • Community Activity Group – where in or adjoining a Community Activity location
  • Community residence
  • Cropping, where not forestry for wood production
  • Dwelling house
  • Emergency Services
  • Environment facility
  • Home based business
  • Intensive horticulture – where on lots 1 ha or more
  • Non resident workforce accommodation – where on lots 2 ha or more
  • Outdoor sports and recreation – if located on Council owned or controlled land and in accordance with a Council approved Master Plan
  • Park
  • Permanent plantation
  • Retail and Commercial Activity Group - where in a Neighbourhood Hub
  • Roadside stall
  • Rural Industry – where on lots 1 ha or more and GFA no more than 150 m2
  • Rural workers’ accommodation – where on lots 2 ha or more
  • Sales office
  • Telecommunication facility
  • Veterinary services – where on lots 1 ha or more
  • Wholesale nursery – where on lots 1 ha or more
  • Winery

s. Development in the Rural residential zone does not include one or more of the following:

  • Adult store
  • Air services
  • Bar
  • Brothel
  • Bulk landscape supplies
  • Car wash
  • Caretaker’s accommodation
  • Cemetery
  • Community Activity Group – where not in or adjoining a Community Activity location
  • Crematorium
  • Cropping, where forestry for wood production
  • Detention facility
  • Dual occupancy
  • Dwelling unit
  • Extractive industry
  • Funeral parlour
  • Function facility
  • Hardware and trade supplies
  • High impact industry
  • Hospital
  • Hotel
  • Intensive animal industry
  • Landing
  • Low impact industry
  • Major sport, recreation and entertainment facility
  • Marine industry
  • Medium impact industry
  • Motor sport facility
  • Multiple dwelling
  • Nature-based tourism
  • Nightclub entertainment facility
  • Outdoor sales
  • Outdoor sport and recreation – where not located on Council owned or controlled land
  • Parking station
  • Port services
  • Relocatable home park
  • Renewable energy facility
  • Research and technology industry
  • Residential care facility
  • Resort complex
  • Retail and Commercial Activity Group - where not in a Neighbourhood Hub
  • Retirement facility
  • Rooming accommodation
  • Service station
  • Shopping Centre
  • Short-term accommodation
  • Showroom
  • Special industry
  • Theatre
  • Tourist attraction
  • Tourist park
  • Transport depot
  • Warehouse

(endnotes omitted)

  1. [67]
    In sch 1, s 1.1.1, the Planning Scheme clusters certain defined uses into identified activity groups.  The Retail and commercial activity group and the Community activity group are two such activity groups. 
  2. [68]
    In the Rural residential zone, the Retail and commercial activity group comprises:
    1. agricultural and supplies store;
    2. food and drink outlet;
    3. indoor sport and recreation – for a gymnasium;
    4. office;
    5. service industry;
    6. shop;
    7. shopping centre; and
    8. veterinary services.
  3. [69]
    In the Rural residential zone, the Community activity group comprises:
    1. child care centre;
    2. community use;
    3. educational establishment;
    4. health care services; and
    5. place of worship.
  1. [70]
    Table SC1.2.2 of the Planning Scheme contains administrative definitions that assist with the interpretation of the Planning Scheme.  In that table, Neighbourhood hub is defined as:

“A cluster of non-residential uses.  A conveniently located public place that is recognised and valued in the local community as a gathering place for people, and an access point for a wide range of community activities, programs, services and events.  Includes, a lot shown on Overlay map - Community activities and neighbourhood hubs.”

  1. [71]
    The purpose and the overall outcomes of the Rural residential zone code are complementary.  They seek to limit non-residential uses in the Rural residential zone to those that are low intensity and that will have minimal adverse impacts on the amenity and character of the zone.

Does an assessment of the proposed development against the Rural residential zone code tell against approval?

  1. [72]
    It is uncontroversial that:
    1. each of the uses sought to be established in the proposed development are within the Retail and Commercial Activity Group for the Rural residential zone;
    1. part of the subject land, being Lot 2 on SP 230232:
      1. (i)
        currently contains a commercial tennis centre;
      1. (ii)
        is depicted on Community Activities and Neighbourhood Hubs Overlay Map OM-43 as “Community Activity”; and
    1. the subject land is not mapped as a Neighbourhood Hub on the Community Activities and Neighbourhood Hubs Overlay Map.
  2. [73]
    Consequently, a decision to approve the proposed development:
    1. does not comply with the overall outcome for the Rural residential zone in s 6.2.11.2 3.s. of the Planning Scheme; and
    2. does not find support in the other overall outcomes that indicate the type of low intensity, non-residential uses for which limited provision is made, including the overall outcome for the Rural residential zone in s 6.2.11.2 3.h. of the Planning Scheme (being one of the provisions put in issue by North Harbour Holdings Pty Ltd).
  1. [74]
    North Harbour Holdings Pty Ltd submits that if the Court accepts that the proposed development offends those provisions and s 6.2.1.5.1 1.l. of the Centre zone code, it would be a rare case for the Court to nevertheless conclude that the proposed development should be approved.  North Harbour Holdings Pty Ltd did not identify any authority on which it relies for that proposition.  Care must be taken not to blindly apply findings or propositions from cases that relate to different planning schemes or different statutory decision-making regimes.  It is the decision-making regime in question that must inform the decision and one must examine the verbiage of the Planning Scheme to determine the importance of the non-compliance.
  2. [75]
    Here, if an assessment of the appropriateness of the proposed development was limited to an assessment against those parts of the Rural residential zone code referred to above, it may be easy to accept North Harbour Holding Pty Ltd’s case that the development application should be refused.  However, the assessment process under s 45 of the Planning Act 2016 requires me to assess against all relevant assessment benchmarks.  In this case, that includes provisions that reveal the planning policy about:
    1. the creation of a new local centre on land that is not in the Centre zone; and
    2. the settlement pattern and walkable communities.
  3. [76]
    Those provisions, and others in the Planning Scheme, inform the degree of importance that the Planning Scheme attaches to the requirements of the Rural residential zone code.  They impact on the weight to be attributed to the non-compliances with the Planning Scheme in this case.
  4. [77]
    I will now turn to the provisions of the Strategic framework that provide guidance about the appropriateness of the use in this case.

What does the Strategic framework reveal about the settlement pattern, walkable communities and the creation of new local centres?

  1. [78]
    Section 3.1 of the Planning Scheme explains that the Strategic framework sets the policy direction for the Planning Scheme and forms the basis for ensuring that appropriate development occurs within the entire Planning Scheme area for the life of the Planning Scheme.  The Strategic framework articulates the policy direction of the Planning Scheme through provisions that identify:
    1. the strategic intent;
    2. twelve themes that work together to articulate the complete policy direction;
    3. the strategic outcomes sought for development in the Planning Scheme area for each theme;
    4. the elements that refine and further describe the strategic outcomes;
    5. the specific outcomes sought for each or several elements; and
    6. the land use strategies for achieving these outcomes.
  2. [79]
    Section 3.1 4. of the Planning Scheme explains that although each theme has its own section, the Strategic framework is read in its entirety as the policy direction for the Planning Scheme.
  3. [80]
    The Strategic intent in s 3.2 of the Planning Scheme states:

“We live, work and play in well connected urban areas, suburbs, towns and villages extending from Moreton Bay to the D'Aguilar, Blackall and Conondale Ranges.  The Region includes mountain ranges, water supply catchments, coastal wetlands, national parks, state forests, coastal lowlands, rural hinterland and urban areas.

Our region by 2031 is a network of, safe, more self contained, well connected communities each with a unique identity and sustainable lifestyle within a healthy and resilient natural environment. 

The significant natural values and resources and the beauty of our Region’s landscape are protected and managed for future generations.

Our towns and villages will be attractive and vibrant places offering housing and employment choices to residents, ease of access to facilities and services and are the hub of social and community life and cultural diversity.  Our residents have access to facilities that support life long learning and active and healthy lifestyles.

Our Region’s prosperity is underpinned by our many well planned centres, enterprise and employment areas, urban growth areas and our well managed natural resources that are attractive to investment and provide a broad range of appropriate employment and business opportunities.

We value the variety of rural lifestyle opportunities offered within our region and seek to sustainably develop and service productive and economically viable rural communities.

Our built form and essential infrastructure are well designed, integrated, functional and safe, responsive to lifestyle needs and provide quality places for people to live sustainably.”

(emphasis added)

  1. [81]
    As is apparent from this statement, there are many types of communities within the Moreton Bay Region.  They are not intended to exhibit the same identity traits.  As such, having regard to the Strategic intent alone, one might reasonably expect that the form of development required to sustainably develop and service an area in a way that is responsive to lifestyle needs may well vary across the Moreton Bay Region.  Such an expectation is reinforced by a consideration of the twelve themes that work together to articulate the complete policy direction for the Planning Scheme area.
  2. [82]
    The themes relate to sustainability and resilience; natural environment and landscape; strong communities; settlement pattern and urban form; employment location; rural futures; natural resources; integrated transport; infrastructure; water management; Planning area structuring; and the Moreton Bay Regional Council Place Model.
  3. [83]
    Although each theme has its own section, not all provisions for every theme have direct application or relevance to the assessment of every development application.  One must take care to read the provisions in their relevant context.  For example, the first theme relates to sustainability and resilience.  It is dealt with in s 3.3 of the Planning Scheme.  In that section, the Planning Scheme explains that not every outcome is one that is sought to be achieved by the Council through its approach to development decisions.  Some are outcomes that the Council will seek to achieve through the Planning Scheme and through its approach to the planning and design of land use and infrastructure.
  4. [84]
    The theme relating to strong communities in s 3.5 of the Planning Scheme is of relevance in this case.  It seeks that:

“A range of appropriate housing types, community facilities and services and safe public spaces are provided across the Region to meet community needs and lifestyle expectations, promote cultural, recreational and social interaction and community identity.”

(emphasis added)

  1. [85]
    In s 3.5, the Planning Scheme explains the three key challenges that inform this theme.
  2. [86]
    First, the Planning Scheme identifies that there is a growing appreciation of the negative health and social impacts (i.e., psychological, social and cultural well-being impacts) of longer daily commute times undertaken on congested transport systems to work in the city. 
  3. [87]
    Second, the structural ageing of the population is expected to have profound impacts on the nature of Moreton Bay.  For instance, between 2006 and 2031, the population of residents over the age of 70 years in the Moreton Bay Region is expected to quadruple.  The Planning Scheme explains that as rates of disability are closely related to age, it is critical that accommodation and services are planned for universal accessibility and to enable people to age in their place of choice.
  4. [88]
    Third, the Planning Scheme explains that the change in the nature of the Moreton Bay Region’s community over time and the increasing cost of housing will dictate the need for greater diversification of dwelling types.  Currently, detached housing provided on standard residential allotments accounts for about 85 per cent of housing stock.  In the future, there will be a far greater emphasis on the provision of a range of housing types delivered by the private sector, including housing to meet special needs and community housing purposes. 
  5. [89]
    In response to those challenges, the Planning Scheme records that two of the Council’s key policies are to:
    1. increase the population living near services, public transport and employment; and
    2. bring services and facilities closer to where people live.
  6. [90]
    These policies are intended to address the costs of living by reducing overall lifestyle costs, particularly those relating to transport and energy use. 
  7. [91]
    The Planning Scheme recognises that these policies will require a change in the nature of the Moreton Bay Region’s community over time.  This is because, over the last 60 years, the Moreton Bay Region has developed as a dormitory corridor for Brisbane.  Many have chosen to live in the area for lifestyle reasons or because the housing is more affordable but are dependent on Brisbane City for work.  In that context, the Planning Scheme explains that a more consolidated urban form, incorporating a greater range of economic activities, housing types, services and facilities, combined with improved transport connections to the broader region, is critical. 
  8. [92]
    The Planning Scheme considers consolidation an essential catalyst to the development of social capital, providing the range of social infrastructure required for strong communities, and re-orienting the public transport system to better service our local centres.  It considers that the lack of these resources leaves residents (particularly those in the outer metropolitan areas) more vulnerable to external shocks (for example energy and fuel costs increases).  The Planning Scheme identifies this as one of the greatest challenges for the development of strong communities within the Moreton Bay Region.  For that reason, the Planning Scheme explains that the Strategic framework seeks to promote resilient communities.  This is to be achieved through a more self-contained and supportive urban form that provides for the range of employment, housing, facilities and services and community, cultural and sporting needs of the population.
  9. [93]
    This theme seeks to increase the population living near services, public transport and employment and to bring services and facilities closer to where people live.  However, those policies do not authorise increased urbanisation without regard to the situation that pertains for the relevant community.  Whether a particular development provides appropriate services to meet community needs and lifestyle expectations and promote community identity is a question of fact to be considered having regard to the community in question.  Not all communities across the Moreton Bay Region will have the same needs, nor are they expected to develop in a manner that is uniform.  That is apparent from the provisions of the Strategic framework that relate to the Moreton Bay Regional Council Place Model theme, which I will address shortly.
  10. [94]
    The next theme of relevance in this case is the theme about settlement pattern and urban form in s 3.6 of the Planning Scheme.  In respect of that theme, the Planning Scheme seeks that:

“A compact urban structure of existing and new well planned walkable neighbourhoods, contiguous with and interconnected to established neighbourhoods and supported by a network of accessible and convenient centres and transit corridors linking residential areas to employment locations establishes the context for achieving a consolidated settlement pattern and urban form.”

  1. [95]
    With respect to this theme, s 3.6 of the Planning Scheme explains that the Moreton Bay Region is made up of diverse urban, rural and coastal places.  One of the tools that was available to the Council to facilitate planning for that diverse region was the SEQ Place Model.  That tool is based on the idea that the settlements of the Moreton Bay Region can be understood as a series of place types.  Each place type is recognisable by its function, including related and compatible land uses, intensity, special qualities and character.  The Planning Scheme states that the SEQ Place Model is useful for promoting a more compact urban form, more diverse housing, walkable neighbourhoods, mixed use communities, access to transportation choices, and protection of the natural environment. 
  2. [96]
    The Council has endorsed the use of the SEQ Place Model in the preparation of the Planning Scheme.  In applying the SEQ Place Model to the Moreton Bay Region, the Council has sought to expand the concept of place types to encompass the wide variety of places that make up the Moreton Bay Region.  It has also incorporated the strategic outcomes that the Council is seeking to achieve across the Moreton Bay Region.  The Planning Scheme refers to this expanded model as the Moreton Bay Regional Council Place Model.  It is the focus of a separate theme that is dealt with in s 3.14 of the Planning Scheme.  I will consider that theme in more detail shortly.
  3. [97]
    The first of the two provisions of the Strategic framework on which North Harbour Holdings Pty Ltd relies are strategic outcomes for the settlement pattern and urban form theme, namely ss 3.6.1 1.c. and 3.6.1 4.  They state:

“3.6.1Strategic Outcome - Compact urban form within the urban footprint

A more compact urban form is developed within the urban footprint by a program of urban design and sustainability principles aimed at increasing the jobs and people per hectare in targeted locations (to help achieve Council's long term 70% local employment target), creating walkable communities, and a viable quality transit system.

  1. A more efficient land use and development pattern will be achieved progressively over time by:

…

c. requiring new development to be integrated into existing neighbourhoods in a spatially cohesive manner to help create walkable communities with an emphasis being placed on active transport and access by transit; and

…

  1. Within the Urban Footprint, Council will consolidate and maintain rural residential development in the identified rural residential areas in locations where this form of development will not compromise the orderly, progressive and efficient expansion of the urban area and its associated infrastructure networks …”
  1. [98]
    Before assessing the proposed development against those provisions, it assists to consider the balance of the relevant provisions of the Strategic framework.
  2. [99]
    In addition to the strategic outcomes for the settlement pattern and urban form theme put in issue by North Harbour Holdings Pty Ltd, s 3.6 contains strategic outcomes with respect to the provision of centres.  They relevantly state:

“3.6.2Strategic Outcome - Network of centres

A strong network of activity centres with well designed public and civic spaces, and active frontages that provide a focal point for compact, self-contained and diverse communities and convenient access to an appropriate mix of businesses, services, community facilities, recreation, entertainment and employment opportunities and provided with convenient access by a quality public transport and active transport system.

  1. Include a broad mix of land uses in activity centres appropriate to each centre’s role and function in the network - higher order centres (principal and major regional activity centres), district and local centres - and structure them as mixed-use centres in a predominantly main-street format to best serve their surrounding communities;
  2. Connect well designed higher order activity centres and district activity centres to surrounding local centres and neighbourhood hubs by feeder transit services and to other major centres by high frequency transit services; 

…

  1. Develop new viable local centres through possible new neighbourhood plans in appropriate locations in walkable neighbourhoods with street-fronting retail and non-retail commercial layouts instead of enclosed or parking-lot dominant retail formats; …”

(endnotes omitted)

  1. [100]
    These provisions reveal that the appropriate location of all local centres have not yet been identified.  In determining the appropriate location of new local centres, the creation of self-contained and diverse communities with convenient access, by a quality public transport and active transport system, to an appropriate mix of services is an important factor to be considered.
  2. [101]
    The theme about integrated transport in s 3.10 of the Planning Scheme also provides guidance about the planning goals that relate to the settlement pattern, walkable communities and the creation of new local centres.  That theme identifies that:

“The transport system will serve to maximise opportunities for economic development, consolidated urban development and social interactions within the Region; provide for safe and convenient pedestrian and cyclist mobility in walkable neighbourhoods and encourage use of public transport; and existing and future transport corridors and linkages will be maintained and protected.”

  1. [102]
    The use of language such as “maximise opportunities” and “encourage” confirms that the goal should not be approached as though Moreton Bay Region is utopia.  Rather, it is to be approached in a practical way.  This construction is supported by the explanation for the theme, which relevantly states:

“… There are two distinct aspects to achieving this vision.  …  The other aspect emphasises the development of a transit system within and between centres within the Region to underpin a more compact settlement pattern and urban form and act as a catalyst for infill and new development around public transport corridors and activity centres.

The projected growth in population combined with the high level of car dependency by the Moreton Bay community creates a need for significant investment in transport infrastructure (including public transport) and investment in car reliance reduction strategies over the next twenty years.

By 2031 the Moreton Bay Region’s communities will need to be given far greater practical opportunities to access and use public transport.  The current high level of reliance on private motor vehicles for nearly all trips is unsustainable both to the community and to individual households.  If reliance on private vehicles does not fall and the mismatch between place of residence and place of work does not change, the needed investment in road infrastructure will be enormous if not impractical to deliver.  Increasing residential densities across the urban areas of the Moreton Bay Region, increasing employment opportunities and services and the focus of future growth within the compact urban communities will encourage shorter trips, resulting in more leisure time, reduced travel costs and provide better support for public transport services.

The Moreton Bay Region must become far less car dependent.  The true cost of housing and the cost of living is to a great extent affected by the purchase price (or rental price) of a place of residence together with the costs that relate directly to location such as the need to travel long distances to work and access essential services, in most instances by car.  Higher residential densities, the provision of housing both in and around activity centres, access to a greater range of local employment opportunities and services, and improved access to regional public transport services, will enable people to reduce their overall housing/living costs and reduce dependency on private motor vehicles.

Development of integrated transport strategies will provide a 20 year implementation plan of transport infrastructure and services to facilitate sustained growth of the Region.  This integration of land use, transport and associated infrastructure will address mobility and access needs but will also have a strong focus on places and destinations.

The multi modal strategic transport model for the Moreton Bay Region will draw on the latest national and international research that shows significantly reduced motor vehicle trip generation rates in higher density mixed use centres with good access to transit.  The model will also support a greater self containment of trips within the Moreton Bay Region, with a higher proportion of trips using active or public transport.

Key features of transport infrastructure in the Region are depicted on Map 3.6.1 - Settlement Pattern and Map 3.11.1 – Infrastructure.”

(emphasis added, endnotes omitted)

  1. [103]
    Map 3.11.1 – Infrastructure shows the subject land is at the intersection of roads that are designated as arterial and sub-arterial.
  2. [104]
    Insofar as integrated transport infrastructure is concerned, the pertinent strategic outcomes relevantly state:

“3.10.1Strategic Outcome - Integrated transport and land-use planning

Plan for a more compact settlement pattern and urban form to encourage sustainable travel patterns: reducing the need to make trips by any motorised form and to reduce the length of motorised trips.

  1. Support transit oriented communities at locations with high frequency public transport services and access to good quality and safe cycling and walking routes;
  2. Sufficient infrastructure is provided to connect communities and increase self-containment in the region;
  3. Reduce the length and reduce the frequency of car trips;
  4. Reduce the length and increase the frequency of public transport trips;
  5. Increase the length and increase the frequency of walking and cycling trips;
  6. End of trip facilities are provided in public and private developments in activity centres to encourage walking and cycling;
  7. Complementary land uses are provided in close proximity to each other, encouraging shorter trips and a higher level of linked trips (e.g. child-care facilities, open space and shops located close to work-places) and providing opportunities for communal parking;
  8. Ensure new development is serviced with new public transport routes, facilities and high frequency services, including priority transit corridors, to establish improved mode share at an early stage; …”

(emphasis added)

  1. [105]
    North Harbour Holdings Pty Ltd alleges that the proposed development is not consistent with the strategic outcomes in ss 3.10.1 3. and 8., which allegations I address below.
  2. [106]
    The final theme of relevance to the issues about the settlement pattern, walkable communities and the creation of new local centres in this case is the theme about the Moreton Bay Regional Council Place Model in s 3.14 of the Planning Scheme.  It states:

“The Moreton Bay Regional Council (MBRC) Place Model identifies and describes a series of broad scale place types each with a distinguishing mix and intensity of uses, development forms, character, function and special qualities to guide the planning and development of the diversity of places across the Region.

It is intended where applications are made for impact assessment Council will use this section to assess such applications.

The place types have been allocated across the Region in Map 3.14.1 - Allocation of place types.”

(emphasis added)

  1. [107]
    The requirement that the Moreton Bay Regional Council Place Model theme be used to assess impact assessable development is a statement that is not replicated in the other themes.  Also, unlike the other theme, s 3.14 of the Planning Scheme contains elements and specific outcomes.  The elements and specific outcomes for this theme address each of the place types.
  1. [108]
    On Map 3.14.1 - Allocation of place types, the subject land is allocated to the Rural residential place type.  Section 3.14.7 of the Planning Scheme includes the element and specific outcomes for the Rural residential place type.  The Planning Scheme describes the element as follows:

“The Moreton Bay Region includes extensive areas of rural residential development.  Rural residential areas provide family oriented housing in single detached houses on semi rural allotments.

These allotments come in a range of sizes and cater for a range of lifestyle choice, from being close to urban areas with schools, shops and other community facilities being a short distance away by car, to being relatively isolated from commercial and community facilities including schools.  The place type is made up of a diverse range of areas each with their own unique rural residential character and sense of place.  The different areas are characterised by their location within close proximity to areas of high impact industrial uses, urbanised residential living, major transport corridors, areas with significant environmental values and by their availability to infrastructure.

In light of the above, the rural residential areas consists of 3 distinct low density character areas that are differentiated by lot types (with minimum sizes of 3000m2, 6000m2 or 2 ha) and areas identified for no further subdivision.  For these areas subject to no further subdivision, no change to current density or transitioning into more intensive forms of rural residential development is envisaged.

Public transport is limited and as a result, this form of housing is highly dependant on the motor car.  The Rural residential place type allows for high value vegetation to be preserved with a focus on retaining environmental corridors that are critical for ongoing habitat connectivity for fauna across the landscape.  Intensive landscaping is common on the smaller lots, which tend to be treated more like large scale suburban lots.  Some of these properties may contain business activities within the home or outbuildings, or be used for horticultural pursuits.  The commercial and horticultural operations can vary anywhere from small scale low intensity uses to more intensive operations in appropriate locations.

In all cases sealed road access is provided, but sewerage reticulation is generally not.  Town water may or may not be provided to many of these allotments.”

(emphasis added)

  1. [109]
    Relevant specific outcomes for this element include:

“3.14.7.1Specific Outcomes - Sustainability and resilience

…

  1. Non residential uses are managed to mitigate detrimental impacts on residential amenity …

3.14.7.2Specific Outcomes - Natural environment and landscape

…

  1. Development maintains the identity and distinctiveness of the rural residential area and is complementary to the character of the landscape setting in which development occurs; …

3.14.7.3Specific Outcomes - Strong communities

  1. Development maintains the high level of residential amenity and the attractive, peaceful lifestyle associated with low density detached residential development in a semi rural environment; …

3.14.7.4Specific Outcomes - Settlement pattern

  1. The settlement pattern is characterised by large residential allotments with detached dwellings and may contain a secondary dwelling unit, and often with large outbuildings; and
  2. Rural residential places cater for a range of lifestyle choices ranging from areas used predominately for residential purposes either intensively landscaped or retaining high value bushland close to suburban areas and those areas used for a combination of residential and business purposes.
  3. Land identified as a potential future growth front (e.g Narangba, Morayfield-Burpengary and Burpengary East) is protected from fragmentation.
  4. Development does not pre-empt or compromise the potential development of rural residential areas for urban purposes beyond the life of the planning scheme.

3.14.7.5Specific Outcomes - Rural futures

  1. Having regard to their particular character, rural residential areas include opportunities for localised employment allied to, and compatible with the predominant residential land use including:

a. horticulture, restricted agriculture and non-intensive animal industry;

b. small to medium scale sustainable recreation and tourism uses;

c. other activities in the form of home based businesses operated within dwellings and outbuildings; and

d. owner operated service trade businesses operating out of the rural residential premises; and

  1. A Rural residential neighbourhood may include a local centre that provides essential convenience shopping and community facilities.

3.14.7.6Specific Outcomes - Integrated transport

  1. Rural residential communities have good vehicular accessibility via sealed roads to nearby areas that provide convenience shopping requirements and essential community services; …”

(emphasis added)

  1. [110]
    These provisions confirm that the rural residential areas throughout the Moreton Bay Region are not regarded by the Planning Scheme as homogenous.  As such, when assessing a development proposal, it is important to have regard to the distinctive attributes of the community in question.  The Planning Scheme also expressly recognises that a rural residential neighbourhood may include a local centre that provides essential convenience shopping and community facilities.  Whether such an outcome is appropriate will depend on the distinctive attributes of the rural residential neighbourhood in question.
  2. [111]
    With the above matters in mind, it is convenient to return to an assessment of the proposed development against those provisions of the Strategic framework on which North Harbour Holdings Pty Ltd relies to contend for refusal, namely ss 3.6.1 1.c., 3.6.1 4., 3.10.1 3., and 3.10.1 8.

Does the proposed development comply with s 3.6.1 1.c. of the Strategic framework?

  1. [112]
    North Harbour Holdings Pty Ltd contends that the proposed development does not comply with the strategic outcome in s 3.6.1 1.c. of the Strategic framework about the settlement pattern and urban form theme.  I have extracted the provision in paragraph [97] above.  For convenience, I repeat it here:

“3.6.1Strategic Outcome - Compact urban form within the urban footprint

…

  1. A more efficient land use and development pattern will be achieved progressively over time by:

…

c. requiring new development to be integrated into existing neighbourhoods in a spatially cohesive manner to help create walkable communities with an emphasis being placed on active transport and access by transit; …”

  1. [113]
    In support of its submission, North Harbour Holdings Pty Ltd refers to three aspects of the evidence. 
  2. [114]
    First, North Harbour Holdings Pty Ltd relies on evidence given by Mr Holland, Mr Douglas and Mr Pekol, the traffic engineers retained by Lancorp Pty Ltd, the Council and North Harbour Holdings Pty Ltd respectively.  They considered the extent of residences within 800 and 1,200 metres of the subject land.  They regard those distances as reflective of a 10- and 15-minute walking catchment respectively.  The traffic engineers also identify that the subject land is not presently served by public transport.  In those circumstances, they opine that in the short to medium term, most staff and customers of the proposed development will access the proposed development by car.  They consider that this is likely to persist until at least such time as the rural residential catchment intensifies and a public transport route is operated along Buckley Road. 
  3. [115]
    North Harbour Holdings Pty Ltd says that the traffic engineers’ opinion should be accepted as there is no evidence that intensification is occurring, or will occur, in this part of the Rural residential zone in the foreseeable future. 
  4. [116]
    Second, North Harbour Holdings Pty Ltd relies on evidence of Mr Ganly, the economics expert retained by North Harbour Holdings Pty Ltd.  Mr Ganly opines that the need for a local centre in Burpengary East only emerges because of the North Harbour residential estate. 
  5. [117]
    North Harbour Holdings Pty Ltd says that Mr Ganly’s opinion in this regard was not contradicted by either of Mr Stephens or Mr Brown, the economics experts retained by Lancorp Pty Ltd and the Council respectively. 
  6. [118]
    Third, North Harbour Holdings Pty Ltd also invites me to accept Ms Morrissy’s opinions that the proposed development:
    1. would not make the surrounding residential area a more walkable neighbourhood, given the relatively few households within its walkable catchment (particularly compared to more intensely developed areas);
    2. supports travel by car rather than promoting walkability and neighbourhood self-containment, which is contrary to the intent of the Planning Scheme; and
    3. adds further retail and commercial activity to a rural residential neighbourhood already serviced by a neighbourhood hub in circumstances where a lower standard of service is anticipated in such areas.
  7. [119]
    On the basis of those three aspects of the evidence referred to above, North Harbour Holdings Pty Ltd submits that the proposed development does not comply with s 3.6.1 1.c. because the proposed development:
    1. integrates with a rural residential neighbourhood that is already serviced by a neighbourhood hub; and
    2. is scaled to service a broad catchment meaning that it will not contribute to the creation of walkable communities.
  8. [120]
    In relation to the first aspect of the evidence, I accept that for the foreseeable future most of the staff and customers of the proposed development will access the proposed development by car.  That is because the subject land is not identified in the Planning Scheme’s Investigation area, Growth area or Rural transition area.  There is land in the locality that is mapped as part of an Investigation area, but the Council has indicated that there are no present plans to change the Planning Scheme to encourage its use for the purposes of urban development.  Accordingly, it is appropriate to proceed on the basis that there is unlikely to be any significant increase in residential densities near the subject land within the life of the Planning Scheme.
  9. [121]
    With respect to the second aspect of the evidence, I will examine the evidence about the need for the proposed development in further detail later.  For present purposes, I am prepared to assume that Mr Ganly is correct and that, if the proposed development were approved, a considerable proportion of the customers of the proposed local centre will likely be residents of the North Harbour residential estate about two kilometres north of the subject land. 
  10. [122]
    As for the third aspect of the evidence, I accept that, in general terms, compared to more intensely developed areas such as areas in the General residential zone, in a rural residential area:
    1. there are relatively few households within a catchment defined by a 10- or 15-minute walk; and
    2. a lesser standard of service is anticipated in terms of the range of retail and commercial activities that will be available and accessible by active or public transport.
  11. [123]
    Here, the needs of the residents are, in some respects, currently being met by The Hub Convenience Centre.  If the proposed development were approved, it would not serve an entirely separate catchment to that served by that neighbourhood hub. 
  12. [124]
    In those circumstances, I accept that the proposed development does not materially advance the strategic outcome sought in s 3.6.1 1.c. of the Planning Scheme.  The real question is what weight should be attributed to this consideration in the balancing exercise.  To answer that question, it is necessary to consider the nature and extent of the conflict.  Two broad considerations are relevant in that respect.  The first is the verbiage of the Planning Scheme, which informs the degree of importance that the Planning Scheme attaches to the relevant outcomes, including the planning policy about walkable neighbourhoods.  The second is the facts and circumstances of the case.  I will return to those considerations shortly, after first considering the question of compliance with the other strategic outcomes on which North Harbour Holdings Pty Ltd relies.

Does the proposed development comply with s 3.6.1 4. of the Strategic framework?

  1. [125]
    North Harbour Holdings Pty Ltd contends that the proposed development does not comply with the strategic outcome in s 3.6.1 4. of the Strategic framework about the settlement pattern and urban form theme.  I have extracted the provision in paragraph [97] above.  For convenience, I repeat it here:

“3.6.1Strategic Outcome - Compact urban form within the urban footprint

…

  1. Within the Urban Footprint, Council will consolidate and maintain rural residential development in the identified rural residential areas in locations where this form of development will not compromise the orderly, progressive and efficient expansion of the urban area and its associated infrastructure networks …”
  1. [126]
    North Harbour Holdings Pty Ltd accepts that s 3.6.1 4. is not a central provision to the determination of this appeal.  North Harbour Holdings Pty Ltd did not address the provision in any meaningful way in its submissions but did not abandon it.  Rather, North Harbour Holdings Pty Ltd says that the provision reinforces other provisions associated with character goals. 
  2. [127]
    In those circumstances, it is unnecessary to address this strategic outcome in any detail.  It is sufficient to observe that the proposed development is not a form of rural residential development.  If the proposed development were to proceed, it would preclude redevelopment of the subject land to consolidate rural residential development in this rural residential area.  This is a matter that tells against approval. 

Does the proposed development comply with s 3.10.1 3. of the Strategic framework?

  1. [128]
    The next provision on which North Harbour Holdings Pty Ltd relies is a strategic outcome for the integrated transport theme in the Strategic framework, namely s 3.10.1 3.  It is extracted at paragraph [104] above.  It is convenient to repeat it here.  It states:

“3.10.1Strategic Outcome - Integrated transport and land-use planning

…

  1. Reduce the length and reduce the frequency of car trips;”
  1. [129]
    North Harbour Holdings Pty Ltd submits that the proposed development will conflict with s 3.10.1 3. for two reasons. 
  2. [130]
    The first is that, because of its location, the proposed development supports travel by private vehicle. 
  3. [131]
    The second reason is that, according to Mr Pekol, a local centre on the subject land would result in longer car trips for residents of the North Harbour residential estate as compared to those that would be called for were North Harbour Holdings Pty Ltd’s proposed local centre approved. 
  4. [132]
    In that respect, North Harbour Holdings Pty Ltd relies on the development of approximately 809 hectares for a significant master planned community known as North Harbour approximately two kilometres to the north of the subject land.  The master planned community involves several precincts, including a business park precinct, a marina precinct, and area of residential development known as the “Residential West” area and the Buckley Road area.
  5. [133]
    Relevantly, North Harbour currently has preliminary approvals and approvals of variation requests in respect of the business park precinct and residential aspects of its development.  The Residential West and Buckley Road areas are the subject of development permits for the reconfiguration of 1603 residential lots, of which 1408 have been developed since 2015.
  6. [134]
    In addition to those development approvals already obtained, in 2018 North Harbour Holdings Pty Ltd made a development application with respect to the business park precinct.  Its development application sought a new preliminary approval (and included a variation request) to include further residential development and a local centre.  That application was the subject of a deemed refusal by the Council and a directed refusal by the State.  It is the subject of a separate appeal that was commenced in March 2020.
  7. [135]
    Following a decision by this Court to permit the appeal to proceed based on a minor change to the development application, the Council apparently now supports approval of the development application.  At the time of the hearing, North Harbour Holdings Pty Ltd was in discussions with the State concerning the final resolution of the appeal.
  8. [136]
    If the Court allows that appeal and approves North Harbour Holdings Pty Ltd’s development application, North Harbour Holdings Pty Ltd says it intends to make a code assessable development application for its proposed local centre to the Council as soon as possible and to commence construction as soon as all necessary approvals have been obtained. 
  9. [137]
    North Harbour Holdings Pty Ltd submits that the Court would be persuaded, on the balance of probabilities, that a local centre will be operating in North Harbour by the second half of 2025.  It relies on the evidence of Mr Finney, a representative of North Harbour Holdings Pty Ltd.  He gave evidence that:
    1. North Harbour Holdings Pty Ltd is a major developer in the area that has delivered a substantial number of residential lots since commencement of the development of North Harbour;
    2. North Harbour Holdings Pty Ltd has obtained the requisite approvals from the Council and the State to connect the business park precinct to the Bruce Highway interchange;
    3. North Harbour Holdings Pty Ltd intends to build a local centre of approximately 4,000 square metres;
    4. subject to resolution of the appeal about its development application, North Harbour Holdings Pty Ltd anticipates being able to lodge a code assessable development application for the proposed local centre in the second half of 2023 and to open the local centre in the second half of 2025; and
    5. North Harbour Holdings Pty Ltd is working with its consultants to progress the design of the proposed centre and has engaged in discussions with prospective tenants.
  10. [138]
    I have reservations about proceeding on the assumption that North Harbour Holdings Pty Ltd will deliver a local centre given:
    1. there is no extant right to develop a local centre as part of North Harbour;
    2. even if the appeal about North Harbour Holdings Pty Ltd’s development application is successfully resolved, it will not provide an extant right to develop a local centre as part of North Harbour;
    3. even if North Harbour Holdings Pty Ltd is working with its consultants to progress the design of the proposed centre and intends to make a code assessable development application as soon as possible, any such development application will require assessment by the Council; and
    4. North Harbour Holdings Pty Ltd has not provided any evidence of a commitment from a supermarket or any other retail tenants.
  11. [139]
    The submissions by North Harbour Holdings Pty Ltd effectively invites the Court to find that the proposed development does not comply with s 3.10.1 3. of the Planning Scheme on the basis that the needs of the local community will be met on a better site.  It does so in circumstances where the so-called better site is not identified as a local centre in the Planning Scheme.  Rather, it is a site that is intended by North Harbour Holdings Pty Ltd to be developed for a local centre but where the local centre is not yet designed, approved or developed.  I am not persuaded that such an approach is appropriate having regard to well-established principles in this Court.[16]
  12. [140]
    That said, for present purposes I am prepared to assume:
    1. each of these matters on which North Harbour Holdings Pty Ltd relies; and
    2. that the proposed development either does not comply with, or does not materially advance, the strategic outcome sought in s 3.10.1 3 of the Planning Scheme and that this is a matter that tells against approval.
  13. [141]
    The real issue is the weight that should be attributed to this consideration in the balancing exercise.  I will consider that issue shortly.

Does the proposed development comply with s 3.10.1 8. of the Strategic framework?

  1. [142]
    The final provision of the Strategic framework on which North Harbour Holdings Pty Ltd relies is a strategic outcome for the integrated transport theme, namely s 3.10.1 8.  It is extracted at paragraph [104] above.  It is convenient to repeat it here.  It states:

“3.10.1Strategic Outcome - Integrated transport and land-use planning

…

  1. Ensure new development is serviced with new public transport routes, facilities and high frequency services, including priority transit corridors, to establish improved mode share at an early stage; …”
  1. [143]
    The subject land is not presently served by public transport, nor is there any indication on the evidence that this will change in the foreseeable future.
  2. [144]
    In those circumstances, I accept that a decision to approve the proposed development sits uncomfortably with the strategic outcome sought in s 3.10.1 3 of the Planning Scheme and that this is a matter that tells against approval.

What is the significance of non-compliance with ss 3.6.1 1.c., 3.6.1 4, 3.10.1 3. and 3.10.1 8. of the Strategic framework?

  1. [145]
    North Harbour Holdings Pty Ltd places considerable emphasis on the non-compliance with the strategic outcomes in ss 3.6.1 1.c., 3.6.1 4, 3.10.1 3. and 3.10.1 8. of the Planning Scheme.  It says that they articulate an important strategy in the Planning Scheme about the inter-relationship between local centres and the creation of walkable neighbourhoods.
  2. [146]
    A useful approach to determine the weight to be given to a statement of policy or a forward planning strategy in a planning scheme is to examine the evil that it seeks to avoid. 
  3. [147]
    In that respect, in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor,[17] I noted that the creation of walkable neighbourhoods and the reduction of dependence upon private motor vehicle transport is a consistent theme in this Planning Scheme.  North Harbour Holdings Pty Ltd emphasises that part of my judgment where I found:[18]

“[248] Mr Buckley also opines that the Planning Scheme is trying to arrest the inevitability of access to local centres being by car.  I accept his evidence.  Convenient accessibility to local centres by active transport and the creation of walkable neighbourhoods is a recurrent theme in the Planning Scheme.  I accept BGM’s submission that the theme is evident in s 3.10.2(3), s 3.10.4(2), s 3.13.3.4(11), and s 3.14.9.4(6) of the Strategic framework; s 6.2.1.6.1(1)(h) and (i) and performance outcome PO7 of the Local centre precinct provisions of the Centre zone code; and s 6.2.6.3.1(1)(j) of the General residential zone code.  Those provisions of the Planning Scheme seek outcomes that include:

  1. ensuring that the planning and development of urban areas supports walking, cycling, and public transport;
  1. seeking development that promotes walking and cycling;
  1. requiring the location of local centres on central intersections that have “good accessibility and visibility, in locations that support active transport”;
  1. requiring local centres to locate to “create a series of 15 minutes walkable neighbourhoods”;
  1. requiring development to provide improvements to support active transport usage and to contribute to improved pedestrian connectivity and walkability between key destinations;
  1. requiring development to provide pedestrian connections to integrate the development with the street, public spaces and the surrounding areas; and
  1. requiring the design, siting and construction of non-residential uses provide attractive, active frontages that maximise pedestrian activity along road frontages, movement corridors and public spaces and promote active transport options.

…

[250] These provisions do not simply require new local centres provide paths to facilitate connection.  They encourage them to establish in a location that will promote active transport.

[251] The development of active transport options and the creation of walkable neighbourhoods is a planning strategy that permeates all levels of the Planning Scheme.  It features in many of the “Themes” in the Planning Scheme, which together articulate the Council’s complete policy direction. 

[252] The Planning Scheme explains the rationale for, and the importance of, this planning strategy.  It is a strategy that responds to the Council’s identified need to adopt a new approach to planning for and managing growth, given the strain population growth places on infrastructure networks and facilities.  It is also a planning objective directed at achieving strong communities with social interaction and a community identity.” 

  1. [148]
    North Harbour Holdings Pty Ltd also relies on Ms Morrissy’s explanation about the planning principle behind this clear and important strategy in the Joint Expert Report of Town Planners, wherein she says:

“81. I have no doubt that the proposed shopping centre would be accessed by private vehicle, however urban planning principles that promote compact urban form, active transport and public transport use are based on creating a settlement pattern that can influence travel behaviour, providing opportunity for the greatest number (of people) to travel differently.

  1. Lower order centres are typically embedded in the residential communities they serve as those communities tend to look to their lower order centres to use on a regular basis for facilities and services which can be provided locally and accessed easily.  Best practice in the design of local communities now focuses on walkability and access to a focal point, such as a shopping centre.
  2. The delivery of walkable neighbourhoods brings services, facilities and employment opportunities closer to where people live thereby providing the community with greater active transport opportunities so that there can be a reduced reliance on travel by private vehicle.  This has benefits such as supporting:
  1. healthy communities;
  1. affordable lifestyles;
  1. reduction in car emissions;
  1. reduction in traffic congestion; and
  1. social interaction in local communities.”
  1. [149]
    The observations that I made in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor[19] related to versions 2 and 3 of the Planning Scheme.  They still hold true for version 4, which is the categorising instrument for this appeal.  I also accept the evidence of Ms Morrissy about the importance of the planning principle behind this strategy. 
  2. [150]
    The strategic outcomes in ss 3.6.1 1.c., 3.6.1 4, 3.10.1 3. and 3.10.1 8. of the Planning Scheme are but a few of many provisions directed at the forward planning strategy that seeks to arrest the inevitability of access to local centres by car and to encourage the creation of walkable neighbourhoods.  The forward planning strategy is underpinned by a concern to ensure development proceeds in a way that, as best it can, addresses the cost of living to reduce overall lifestyle costs, including those associated with transport.  The strategy is deserving of respect. 
  3. [151]
    That said, it does not necessarily follow that the proposed development should be refused.  Care must be taken to have regard to the facts and circumstances that pertain in each case.
  4. [152]
    The parts of my findings in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor[20] that were extracted by North Harbour Holdings Pty Ltd in its submissions did not include paragraph [249], in which I observed: 

“[249] Other provisions that apply to land in the Next generation neighbourhood precinct reinforce the focus on promoting active transport in this precinct.”

  1. [153]
    Therein lies an important distinction between this case and the two proposals for local centres that I considered in that case.  In Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor,[21] both local centres were proposed on land that was mapped as part of the Next generation neighbourhood place type for the Strategic framework and in the General residential zone (Next generation neighbourhood precinct). 
  2. [154]
    There are materially different outcomes sought for:
    1. the Rural residential place type as compared to the Next generation neighbourhood place type; and
    2. the Rural residential zone as compared to the Next generation precinct of the General residential zone.
  3. [155]
    Although an assessment of the proposed development against ss 3.6.1 1.c., 3.6.1 4, 3.10.1 3. and 3.10.1 8. of the Planning Scheme tells against the suitability of the proposed development, that assessment does not present the complete picture.  There are four other pertinent observations that can be made about the Planning Scheme that inform the significance of these non-compliances.
  4. [156]
    First, it must be borne in mind that the strategic outcomes in ss 3.6.1 1.c., 3.6.1 4, 3.10.1 3. and 3.10.1 8. of the Planning Scheme are strategic outcomes for the settlement pattern and urban form theme and the integrated transport theme, which are themes that apply to the entire Planning Scheme area.  They are not strategic outcomes that have been tailored specifically to the Rural residential zone, nor for the circumstances that pertain to the rural residential neighbourhood in which the subject land is located.
  5. [157]
    Second, the settlement pattern and urban form theme and the integrated transport theme are but two of twelve themes that work together to articulate the complete policy direction.  Another theme relates to the Moreton Bay Regional Council Place Model.  Unlike the provisions for the settlement pattern and urban form theme and the integrated transport theme, those for the Moreton Bay Regional Council Place Model theme include specific outcomes that are tailored to take account of the diversity of places across the Moreton Bay Region. 
  6. [158]
    In this case, the relevant place type for the subject land is the Rural residential place type.  As I have identified above, the Planning Scheme identifies that it is anticipated that the residents of areas in the Rural residential place type:
    1. will be highly dependent on cars;
    2. are expected to have good vehicular accessibility via sealed roads to nearby areas that provide convenience shopping requirements and essential community services; and
    3. may have their essential convenience shopping and community service requirements served by a local centre located in a rural residential neighbourhood.
  7. [159]
    This can be contrasted with the provisions relating to other place types in the Moreton Bay Regional Council Place Model, such as those for the Suburban neighbourhood place type, the Next generation neighbourhood place type, the Urban neighbourhood place type and the Activity centres place type. 
  8. [160]
    The Suburban neighbourhood place type accommodates a substantial part of the Region’s existing population.  It comprises areas of the Moreton Bay Region that have largely been developed over the last 60 years.  Some of the areas are continuing to be developed.  The areas contain mostly detached housing on a range of lot sizes but may also contain limited attached housing.  They are generally not well served by public transport, but active transport infrastructure (such as cycling and walking paths) is present.
  9. [161]
    With respect to those areas in the Suburban neighbourhood place type, s 3.14.8 of the Planning Scheme states:

“In some circumstances Council will also encourage the development of neighbourhood hubs and local centres for retail, commercial and community activities which are clustered together, within 800m of existing dwellings and in areas where there is currently no neighbourhood hub or local centre within walking distance.  These new neighbourhood hubs and local centres are located on the main through street, or on central intersections with good accessibility, visibility and support active transport.  Neighbourhood hubs and local centres in appropriate locations and home based businesses will assist in increasing the amount of employment found in these areas.”

(emphasis added)

  1. [162]
    Further, with respect to local centres, the specific outcome for the Suburban neighbourhood place type in s 3.14.8.4 9. of the Planning Scheme states:

“Development for the expansion (into adjoining lots) of a local centre or neighbourhood hub, or the establishment of a new local centre or neighbourhood hub, will only be supported where the following can be met:

a. it is of a scale that remains subordinate to higher order and district centres within the region and only provides for day-to-day convenience retail, local services and community activities;

b. the expansion will strengthen the existing local centre or neighbourhood hub as an important neighbourhood activity node and does not fragment the intensity of uses;

c. it is conveniently located on a main through street and/or adjoining or is opposite to a public transport node;

d. a new local centre or neighbourhood hub is to service an unserviced catchment and is located to form 15 minute walkable neighbourhoods, with the Local centre central to that neighbourhood; and

e. they are appropriately designed to have high quality urban design outcomes.”

(emphasis added)

  1. [163]
    The intention that new local centres serve an unserviced catchment and are located to form 15-minute walkable neighbourhoods, with the local centre central to that neighbourhood, is consistent with the specific outcomes for integrated transport for the Suburban neighbourhood place type in s 3.14.8.6 of the Planning Scheme, which state:

“1. Main through streets provide access to schools, local shops, community facilities, neighbourhood and district sports and recreation facilities and are the main bus routes through the area;

  1. Suburban neighbourhood places are intended to have a well-connected network of active transport linkages to encourage residents to walk and cycle; and
  2. Roads of collector or higher order include line-marked shoulders to accommodate cyclists with particular attention to uphill sections.”

(emphasis added)

  1. [164]
    The Next generation neighbourhood place type applies to targeted existing suburban areas, and new greenfield and rural residential transition areas that have potential and are suitable to accommodate new residential development and related local services.  They are areas that are identified as having capacity for and capability of change in the life of the Planning Scheme. 
  2. [165]
    With respect to those areas, s 3.14.9 of the Planning Scheme states:

“Local centres and neighbourhood hubs provide day-to-day convenience services, including retail, commercial and community activities which are clustered together.  Next generation neighbourhoods are intended to include more local employment opportunities within walking distance of dwellings than the Suburban neighbourhoods place type.  They are the places that will be designed as walkable neighbourhoods and be provided with access to frequent short distance public transport to nearby activity centres and/or transport nodes and urban neighbourhoods.  Local centres and neighbourhood hubs are to be established where easily accessed and conveniently located on a main through street or a public transport node.  Non-residential uses have active frontages.”

(emphasis added)

  1. [166]
    Further, with respect to local centres, the specific outcome for the Suburban neighbourhood place type in s 3.14.9.4 7. of the Planning Scheme states:

“Development for the expansion (into adjoining lots) of a local centre or neighbourhood hub, or the establishment of a new local centre or neighbourhood hub, will only be supported where the following can be met:

a. it is of a scale that remains subordinate to higher order and district centres within the region and only provides for day-to-day convenience retail, local services, and community activities;

b. it is conveniently located on a main through street and/or adjoins or is opposite to a public transport node;

c. the expansion will strengthen the existing local centre or neighbourhood hub as an important neighbourhood activity node and does not fragment the intensity of uses;

d. a new local centre or neighbourhood hub is to service an unserviced catchment and is located to form 15 minute walkable neighbourhoods, with the local centre or neighbourhood hub central to that neighbourhood;

e. they are appropriately designed to have high quality urban design outcomes.”

(emphasis added)

  1. [167]
    As with the provisions for the Suburban neighbourhood place type, the planning intention that new local centres serve an unserviced catchment and are located to form 15-minute walkable neighbourhoods, with the local centre central to that neighbourhood, is consistent with the specific outcomes for integrated transport for the Next generation neighbourhood place type in s 3.14.9.6 of the Planning Scheme, which state:

“1. Next generation neighbourhoods have a well-connected, permeable, legible and grid-like network of streets and active transport linkages that provide direct and easily understood choices of routes to walk, cycle, take public transport and drive to multiple destinations within the neighbourhood. Cul-de-sacs are not the dominant form of street network;

  1. The active transport network is integrated with public transport infrastructure so that all homes are within 400 metres of a bus stop; and
  2. Local centres, local concentrations of employment and other local attractors are within 15 minutes of all residents by walking, cycling or public transport.”

(emphasis added)

  1. [168]
    The Urban neighbourhood place type includes existing low density suburbs forming activity centre fringe areas, areas adjoining train stations and areas on the Redcliffe Peninsular.  These areas have the attributes and capacity for change to more walkable, compact and sustainable communities.  They include existing greenfield sites and rural residential areas identified for transition to urban places on Map 3.6.1 - Settlement Pattern.
  2. [169]
    With respect to those areas, s 3.14.10 of the Planning Scheme states:

“Urban areas adjoining an Activity centre have high densities to support the role and function of the Activity centre and to maximise the use of established infrastructure, therefore retail and commercial uses in this place type are limited to:

a. existing or future local centres or neighbourhood hubs identified in the planning scheme (e.g. Overlay map - Neighbourhood hubs and community activities); or

b. new local centres or neighbourhood hubs or the expansion of a local centre or neighbourhood hub if the urban place type does not adjoin an Activity centre (e.g. Clontarf, Woody Point, Scarborough), or if on land adjoining or opposite a train station; or

c. small scale convenience retail, personal services or speciality retail if in a mixed use building; or

d. large-medium scale office uses within walking distance of high frequency public transport to maximise the use of established infrastructure.”

(emphasis added)

  1. [170]
    Further, with respect to local centres, the specific outcomes for the Urban neighbourhood place type in s 3.14.10.4 12. and 13. of the Planning Scheme state:

“12. Retail and commercial uses are limited to:

a. existing and future local centres or neighbourhood hubs identified in the planning scheme (e.g. Overlay map - Neighbourhood hubs and community activities); or

b. new local centres or neighbourhood hubs or the expansion of a local centre or neighbourhood hub if the urban place type does not adjoin an Activity centre (e.g. Clontarf, Woody Point, Scarborough), or if on land adjoining or opposite a train station; or

c. small scale convenience retail, personal services or speciality retail if in a mixed use building; or

d. large-medium scale office uses within walking distance of high frequency public transport to maximise the use of established infrastructure.

  1. Retail and commercial activities where mentioned above will only be supported where the following can be met:

a. it is of a scale that remains subordinate to higher order and district centres within the region and only provides for day-to-day convenience retail, local services and community activities or commercial uses with a high rate of employment within walking distance of high frequency public transport;

b. the expansion of a local centre or neighbourhood hub will strengthen the existing local centre or neighbourhood hub as an important neighbourhood activity node, does not fragment the intensity of uses and ensures that sufficient demand exists within the existing catchment;

c. a new local centre is to service an unserviced catchment and is located to form 15 minute walkable neighbourhoods, with the Local centre central to that neighbourhood;

d. they are appropriately designed to have high quality urban design outcomes.”

(emphasis added)

  1. [171]
    Alongside provisions for the Suburban and Next generation neighbourhood place types, the planning intention that new local centres serve an unserviced catchment and are located to form 15-minute walkable neighbourhoods, with the local centre central to that neighbourhood, is consistent with the specific outcomes for integrated transport for the Urban neighbourhood place type in s 3.14.10.6 of the Planning Scheme, which state:

“1. Main through streets provide access to schools, local shops, neighbourhood and district sports and recreation facilities and are the main bus routes through the area;

  1. Where the Urban neighbourhood includes a railway station development within the station precinct will support the activity centres network and the overall transport system, integrating all transit and active transport modes to encourage increased public transport patronage;
  2. Urban neighbourhoods provide convenient, safe and legible access at the pedestrian scale by being compact places with an extensive network of paths and streets;
  3. Each residence is within walking distance to public transport that is frequent, with short trips to the nearest activity centre and integrated transport hub;”

(emphasis added)

  1. [172]
    With respect to the Activity centres place type, s 3.14.11 of the Planning Scheme states:

“The intended future for Activity centres in the Moreton Bay Region is for them to be places with a high mix of different but compatible uses within a compact form.  This provides for the most vibrant of centres with the most opportunities for social and economic exchange and the easiest to make highly accessible.  The combination of uses would span some or all of the primary urban land use categories of retail, office employment, residential, civic and community uses.

…

The local centres of Old North Road Albany Creek, Sunderland Drive Banksia Beach, Beachmere Road Beachmere, First Avenue Bongaree, Sovereign Avenue Bray Park, Pettigrew Street Caboolture, Elizabeth Avenue Clontarf, Brickworks Road Kallangur, Gympie Road Lawnton, Dohles Rocks Road West Murrumba Downs, Ashmole Road Kippa-Ring and Young Road and Golden Wattle Drive Narangba are recognised as the central focus of activity for the local community and provide a mix of land uses and activities that cater for the convenience retail and personal service needs and are generally anchored by a full-line supermarket. Local centres may include a residential population.”

  1. [173]
    Further, with respect to local centres, the specific outcome for the Activity centres place type in s 3.14.11.4 16. of the Planning Scheme states:

“Development for the expansion (into adjoining lots) of a local centre or the establishment of a new local centre will only be supported where the following can be met:

a. it is of a scale that remains subordinate to higher order and district centres within the region and only provides for day-to-day convenience retail and other local services, including a full-line supermarket, and community facilities;

b. the expansion will strengthen the existing local centre as an important neighbourhood activity node, does not fragment the intensity of uses and ensures that sufficient demand exists within the existing catchment;

c. a new local centre is to service an unserviced catchment and is located to form 15 minute walkable neighbourhoods, with the Local centre central to that neighbourhood;

d. the benefits of the proposed development to the community exceed the costs and disbenefits to the community;

e. they are appropriately designed to have high quality urban design outcomes.”

(emphasis added)

  1. [174]
    Returning to the provisions relevant to this appeal, when the specific outcome in s 3.14.7.5 2. is read in the broader context provided by these other provisions of the Planning Scheme, it is apparent that:
    1. there is a deliberate planning decision to stipulate different criteria for the establishment of new local centres for various place types in the Moreton Bay Regional Council Place Model; and 
    2. for land in the Rural residential place type, the relevant criterion is that local centres provide essential convenience shopping and community facilities and have good vehicular accessibility. 
  2. [175]
    The specific outcome with respect to a local centre in the Rural residential place type does not require that a new local centre service an unserviced catchment or be located to form 15-minute walkable neighbourhoods.  This is unsurprising given the lower intensity of residential development that exists, and is planned to continue, in the Rural residential place type as compared to the planned intensity of residential and other development to be achieved in the Suburban neighbourhood, Next generation neighbourhood, Urban neighbourhood and Activity centres place types.
  3. [176]
    The third matter that informs the significance of the identified non-compliances is that the strategic outcome in s 3.6.1 1.c. of the Planning Scheme itself admits of the need to consider the situation that pertains in the area in question.  That is evident from the requirement that it be integrated into existing neighbourhoods in a spatially cohesive manner.  As such, the extent to which a new development can help create walkable communities will be dependent on the characteristics of the neighbourhood in question.
  4. [177]
    The fourth relevant observation is that the provisions with which there is non-compliance emphasise not just the creation of walkable communities and active transport, but also access by public transport.
  5. [178]
    With those four matters in mind, I do not consider that it is appropriate to approach assessment of the proposed development against the strategic outcomes in ss 3.6.1 1.c., 3.6.1 4, 3.10.1 3. and 3.10.1 8. of the Planning Scheme as though they set inflexible requirements to be applied rigidly.  Care must be taken to have regard to the characteristics of the place in question.
  6. [179]
    There are six factors that are peculiar to the locality within which the subject land sits that moderate the extent to which the proposed development is discordant with the strategic outcomes in ss 3.6.1 1.c., 3.6.1 4, 3.10.1 3. and 3.10.1 8. of the Planning Scheme. 
  7. [180]
    The first relates to the prevailing character of the community in question, which I have identified in paragraphs [16] to [32] above.  The community in question already supports uses that are not encouraged in the Rural residential zone.  The subject land is approximately 300 metres from those uses.  Relevantly, such uses include a residential aged care facility and nursing home.  These uses would be characterised as a retirement facility and a residential care facility under the Planning Scheme.  They are listed as uses that are not to be developed in the Rural residential zone.  There is no evidence to suggest that those uses will disappear in the foreseeable future, if at all. 
  8. [181]
    Second, even though the locality is in the Rural residential zone, the subject land is:
    1. surrounded by existing and planned active transport network infrastructure for both pedestrians and cyclists, including concrete footpaths between the subject land and the residential aged care facility and nursing home;
    2. in an area that is relatively flat; and
    3. near other retail, commercial and community uses. 
  9. [182]
    Having regard to the combination of those factors, I infer that the proposed development will increase the likelihood that the residents of the locality will utilise active transport to fulfil their essential convenience shopping requirements.  The form of active transport utilised is not limited to walking.  Residents of the residential aged care facility may use the concrete footpaths to access the proposed development by mobility scooter.  In addition, for those residents for whom cycling is an attractive form of active transport, the proposed development presents a more attractive (and likely new) opportunity to access essential convenience shopping by active transport.  Presently, to access the nearest local centre by bicycle would require crossing the Bruce Highway – an unattractive proposition.
  10. [183]
    Third, the proposed development is located and designed to be accessible by bus once a local bus service becomes available.  Although one is not presently available, the subject land is ideally located to be served by a bus service in the future.  It is at the intersection of an arterial and sub-arterial road and at the gateway to Burpengary East. 
  11. [184]
    In addition, the prospect that a bus service will be provided in the future is enhanced by:
    1. the infrastructure upgrades that are to be provided as part of the proposed development; and
    2. the location of the proposed development as part of a larger conglomeration of retail, commercial and community uses.
  12. [185]
    The proposed development represents the type of catalyst for reorientation of the public transport system referred to in s 3.6 of the Planning Scheme.
  13. [186]
    Fourth, the proposed development will facilitate reduced dependence on cars by:
    1. enabling shorter trips and a higher level of linked trips given the proximity of the subject land to the other retail, commercial and community uses in the locality; and
    2. obviating the requirement, that presently exists, to cross the Bruce Highway to access a full-line supermarket for essential convenience shopping such as groceries.
  1. [187]
    A submission made by a resident of the local community in support of the proposed development exemplifies how the proposed development can appropriately meet the needs of the community in a way that reduces reliance on cars.  The resident observes that the proposed development will:
    1. be convenient for the residents who live off Uhlmann Road;
    2. keep the shops all in one area on the east side of Burpengary so that the remainder of the area can maintain its peaceful character;
    3. enable workers to call into the shops on their way home without having to cross to the other side of the Bruce Highway; and
    4. permit the elderly who reside in the area to access the shops by mobility scooter when they are no longer able to drive.
  1. [188]
    The fifth consideration relates to the existence of the nearby residential aged care facility and nursing home.  Given its existence, it is unsurprising that the uses at The Hub Convenience Centre are dominated by uses in the Community activity group (particularly health care services), not uses in the Retail and commercial activity group.  There is no evidence to suggest that this position will change in the foreseeable future, if at all.  Given the residential aged care facility and nursing home nearby, it is reasonable to infer that the local community will continue to need those health care services that they can currently conveniently access at The Hub Convenience Centre.  It follows that, in the foreseeable future, it is unlikely that The Hub Convenience Centre will be redeveloped to replace its current offer of health care services with retail activities directed at the essential convenience shopping needs of the residents of Burpengary East.  The proposed development intends to meet those retail needs, thereby consolidating and strengthening the level of self-containment in Burpengary East with respect to food, groceries and other essential convenience shopping.
  2. [189]
    This consideration alone is a matter of considerable force.  It is relevant when considering the needs of the population and other goals in the Strategic framework that seek a more self-contained and supportive urban form.  It indicates that the provisions on which North Harbour Holdings Pty Ltd relies should not be applied in an inflexible or unyielding way.  To do so would fail to give sufficient recognition to the circumstances of the community in question and their needs, thereby cutting across other goals, such as those in s 3.5 of the Strategic framework. 
  3. [190]
    Sixth, the weight to be given to the non-compliance with s 3.6.1 4. of the Planning Scheme is moderated because:
    1. the existing lawful use on the subject land includes a commercial use;
    2. the character of the locality is incongruent with the character sought in the Rural residential zone, particularly in the area surrounding the intersection of Buckley Road and Uhlmann Road; and
    3. the proposed development will not compromise the orderly, progressive and efficient expansion of the urban area and its associated infrastructure networks in the future should the planning desire for the area change.
  4. [191]
    Individually, each of the matters identified above mitigates the seriousness of the non-compliance.  Collectively, they satisfy me that, when weighed in the balance with my other findings in this judgment, the identified non-compliances with the Strategic framework are not matters that should stand in the way of approval of the proposed development.

Does s 6.2.1.5.1 1.l. of the Centre zone code tell against approval?

  1. [192]
    The final provision on which North Harbour Holdings Pty Ltd relies to contend that the proposed development is not an appropriate use of the subject land is s 6.2.1.5.1 1.l. of the Centre zone code.  It states:

“l. Out-of-centre development, including centre expansion (into adjoining zones and precincts) or the establishment of a new centre only occurs where:

i. it maintains the scale and function of a local centre consistent with Table 6.2.1.1 including provision of one full line supermarket plus local speciality shops and lower order commercial uses;

ii. expansion strengthens the existing centre as an important local activity node, or for a new centre, strengthens the centres network within the region;

iii. clear separation from existing higher order, district and local centres within the network are maintained to reduce catchment overlap and to establish 15 minute walkable neighbourhoods (generally, local centres should be separated from other centres by 2400m and neighbourhood hubs by 1600m, measured from the centre of each centre or neighbourhood hub);

iv. for expansion, it is located on a highly accessible site, adjoining the existing centre not resulting in the fragmentation of the centre;

v. for a new centre, it is located on a sub-arterial or collector road;

vi. designed to include active frontages around a main street core;

vii. expansion does not result in an elongated centre forming a ribbon of development along regional through roads.

Note - Refer to Planning scheme policy - Centre and neighbourhood hub design for details and examples.

Note - Interim uses may be acceptable within a centre where the use would be compatible with existing and proposed centre activities provided the interim use would not be likely to prejudice or delay the ultimate development of the site and adjoining areas. Interim uses should be low intensity in nature and characterised by low investment in buildings and infrastructure relative to the value of the site (e.g. Bulk landscape supplies, garden centre, market, outdoor sales, wholesale nursery, outdoor sport and recreation).”

(endnotes omitted)

  1. [193]
    It is uncontroversial that the proposed development does not comply with the criteria in s 6.2.1.5.1 1.l.iii. but that it complies with all the other criteria in s 6.2.1.5.1 1.l. of the Planning Scheme.
  2. [194]
    North Harbour Holdings Pty Ltd and the Council approached this case on the basis that s 6.2.1.5.1 1.l. of the Centre zone code is an assessment benchmark against which the proposed development must be assessed.[22]  They do so in circumstances where:
    1. s 6.2.1.1 of the Planning Scheme states that the Centre zone code applies to undertaking development in the Centre zone; and
    2. the subject land is entirely in the Rural residential zone, not the Centre zone.
  3. [195]
    Having read the entire Planning Scheme,[23] I have serious misgivings about the correctness of this approach.  It is contrary to orthodox principles of statutory construction.
  4. [196]
    The same principles that apply to statutory construction apply to the construction of planning documents.  The Planning Scheme is to be read as a whole and in a way that is practical and intended to achieve a balance between the individual outcomes.[24] 
  5. [197]
    Words may be read out of a provision if they can be given no sensible meaning or if they would defeat the clear purpose of the provision.  But legislation should not be re-written absent compelling circumstances.
  6. [198]
    As the High Court observed in Taylor v Owners - Strata Plan 11564 & Ors:[25]

“The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature.”

  1. [199]
    The construction contended for by North Harbour Holdings Pty Ltd and the Council gives no meaning to:
    1. the statement in s 5.3.3 2.b. of the Planning Scheme that impact assessment must have regard to the whole of the Planning Scheme “to the extent relevant”; and, more importantly,
    2. s 6.2.1.1 of the Planning Scheme, which states that the Centre zone code applies to undertaking development in the Centre zone.
  2. [200]
    North Harbour Holdings Pty Ltd and the Council submit that if s 6.2.1.5.1 1.l. of the Planning Scheme were not construed as applying to out-of-centre development that was not in the Centre zone, the provision would be otiose.  I disagree. 
  3. [201]
    The submission assumes that a development application for a centre will only ever be made with respect to land wholly contained in a zone other than the Centre zone.  That is not necessarily the case.  A development application may be made with respect to land that straddles the Centre zone and another zone.  This is anticipated by the Planning Scheme.  Express provision is made in relation to that circumstance in several provisions, such as s 5.3.2 4. of the Planning Scheme.  The provision in question also contemplates a development application being made on land that is included in both the Centre zone and another zone.  This is apparent from the reference to “centre expansion into adjoining zones or precincts”. 
  4. [202]
    In addition s 6.2.1.5.1 1.l. of the Planning Scheme is given operation by other provisions of the Planning Scheme that expressly call it into consideration in identified circumstances. 
  5. [203]
    Examples can be found in notes with respect to the overall outcomes for the Suburban neighbourhood precinct of the General residential zone code.  Relevantly, ss 6.2.6.2.1 1.h. and k. of the Planning Scheme state:

“h. Retail and commercial activities (excluding Service stations):

i. cluster with other non-residential uses (excluding corner stores) forming a neighbourhood hub;

ii. are centred around a ‘Main Street’ central core fostering opportunities for social and economic exchange;

iii. are of a small scale, appropriate for a neighbourhood hub;

Note - Retail and commercial uses that will result in a new or existing neighbourhood hub expanding to a scale and function consistent with a Local centre are to be assessed as if establishing a new Local centre.  Refer to the Centre zone code for relevant assessment benchmarks.

iv. do not negatively impact adjoining residents or the streetscape;

v. are subordinate in function and scale to all centres within the region.

k. Neighbourhood hub expansion (into adjoining lots) or the establishment of a new neighbourhood hub only occurs where:

i. it is of a scale that remains subordinate to all centres within the region;

Note - Retail and commercial uses that will result in a new or existing neighbourhood hub expanding to a scale and function more consistent with a Local centre are to be assessed as if establishing a new Local centre.  Refer to the Centre zone code for relevant assessment criteria.

ii. the expansion (into adjoining lots) will strengthen the existing neighbourhood hub as an important neighbourhood activity node;

iii. clear separation from existing neighbourhood hubs and centres within the network are maintained to reduce catchment overlap.  New neighbourhood hubs are to service a currently unserviced catchment.  The centre of a neighbourhood hub should not be located within 1600m of another neighbourhood hub or centre measured from the centre of each hub or centre;

iv. for a new neighbourhood hub, it is located on sub-arterial or collector road;

v. they are appropriately designed and located to include active frontages around a ‘main street’ core and are staged where relevant to retain key (highly accessible) sites for long term development.”

(emphasis added)

  1. [204]
    Similar examples can also be found in notes with respect to overall outcomes for the Next generation neighbourhood precinct of the General residential zone code.  Relevantly, ss 6.2.6.3.1 1.j. and m. of the Planning Scheme state:

“j. Retail and commercial activities (excluding Service stations):

i. cluster with other non-residential uses (excluding corner stores) forming a neighbourhood hub;

ii. are centred around a ‘Main Street’ central core fostering opportunities for social and economic exchange;

iii. are of a small scale, appropriate for a neighbourhood hub;

Note - Retail and commercial uses that will result in a new or existing neighbourhood hub expanding to a scale and function consistent with a Local centre are to be assessed as if establishing a new Local centre.  Refer to the Centre zone code for relevant assessment benchmarks.

iv. do not negatively impact adjoining residents or the streetscape;

v. are subordinate in function and scale to all centres within the region.

m. Neighbourhood hub expansion (into adjoining lots) or the establishment of a new neighbourhood hub only occurs where:

i. it is of a scale that remains subordinate to all centres within the region;

Note - Retail and commercial uses that will result in a new or existing neighbourhood hub expanding to a scale and function more consistent with a Local centre are to be assessed as if establishing a new Local centre.  Refer to the Centre zone code for relevant assessment criteria.

ii. the expansion (into adjoining lots) will strengthen the existing neighbourhood hub as an important neighbourhood activity node;

iii. clear separation from existing neighbourhood hubs and centres within the network are maintained to reduce catchment overlap.  New neighbourhood hubs are to service a currently unserviced catchment.  The centre of a neighbourhood hub should not be located within 1600m of another neighbourhood hub or centre measured from the centre of each hub or centre;

iv. for a new neighbourhood hub, it is located on sub-arterial or collector road;

v. they are appropriately designed and located to include active frontages around a ‘main street’ core and are staged where relevant to retain key (highly accessible) sites for long term development.”

(emphasis added)

  1. [205]
    Another example of a note that calls into play the operation of s 6.2.1.5.1 1.l. of the Centre zone code is in the overall outcome for the Coastal communities precinct of the General residential zone code.  Relevantly, s 6.2.6.1.1 h. of the Planning Scheme states:

“Retail and commercial activities (excluding service stations):

i. are clustered with other non-residential uses forming a neighbourhood hub;

ii. are centred around a ‘Main Street’ central core fostering opportunities for social and economic exchange;

iii. are of a small scale, appropriate for a neighbourhood hub;

iv. do not negatively impact adjoining residents or the streetscape;

v. are subordinate in function and scale to all centres within the region.

Note - Retail and commercial uses expanding (into adjoining lots) into an existing local or district centre are to be assessed as out-of-centre development.  Refer to the Centre zone code for relevant assessment criteria.

(emphasis added)

  1. [206]
    In s 1.3.2 3. of the Planning Scheme, notes are identified to be part of the Planning Scheme.
  2. [207]
    The Rural residential zone code does not include such a note with respect to the establishment of new local centres.  There are also no other contextual indicators in the Planning Scheme that indicate that the provision is intended to apply.  To the contrary, the construction that a new local centre in a rural residential neighbourhood is not required to be located to form 15-minute walkable neighbourhoods finds support when one considers the correlation between:
    1. ss 3.14.8, 3.14.8.4 9., and 3.14.8.6 of the Strategic framework about the Suburban neighbourhood place type and the overall outcomes for the Suburban neighbourhood precinct of the General residential zone in ss 6.2.6.2.1 1.h. and k. of the Planning Scheme;
    2. ss 3.14.9, 3.14.9.4 7., and 3.14.9.6 of the Strategic framework about the Next generation neighbourhood place type and the overall outcomes for the Next generation neighbourhood precinct of the General residential zone in ss 6.2.6.3.1 1.j. and m. of the Planning Scheme;
    3. ss 3.14.11 and 3.14.11.4 16. of the Strategic framework about the Activity centres place type and the overall outcomes for the Local centre precinct of the Centres zone in s 6.2.1.5.1 1.l. of the Planning Scheme; and
    4. ss 3.14.7, 3.14.7.5, and 3.14.7.6 of the Strategic framework about the Rural residential place type and the purpose and overall outcomes for the Rural residential zone in s 6.2.11.2 of the Planning Scheme.
  3. [208]
    This construction also sits comfortably with the other provisions in the Planning Scheme, including those to which I have referred above such as ss 3.2, 3.5, 3.6, 3.10, 3.10.1, 3.14 of the Planning Scheme.
  4. [209]
    Many other provisions of the Planning Scheme also support this construction.  They include, but are not limited to, ss 3.13.2 4., 3.13.25., 3.13.2.4 5.,[26] 3.14.11.4 14., 3.14.11.4 15., 3.14.13, 3.14, 3.14.13.7 3., 6.2.1.4.1 l., 6.2.1.4.1 m., 6.2.6.1.1 h., 6.2.6.2.1 b., 6.2.6.2.1. e., 6.2.6.2.1. g., 6.2.6.3.1. c., 6.2.6.3.1. d., 6.2.6.3.1. g., 6.2.6.3.1. h., 6.2.6.3.1. i., 6.2.6.4.1 a., 6.2.6.4.1 b., 6.2.6.4.1 d., 6.2.6.4.1 e., 6.2.6.4.1 h., 6.2.6.4.1 i., 6.2.6.4.1 j., 6.2.6.4.1 l., and 6.2.6.4.1 m. of the Planning Scheme.
  5. [210]
    Having read the entire Planning Scheme, I am satisfied that the proposed development is not required to comply with s 6.2.1.5.1 1.l. of the Centre zone code.  The non-compliance with s 6.2.1.5.1 1.l.iii. of the Planning Scheme is not a matter that tells against approval. 
  6. [211]
    If I am wrong about that matter, the significance of the non-compliance would be mitigated by those matters to which I have referred in paragraphs [158] and [179] to [190] above.

Conclusion about whether the proposed development involves an inappropriate use of the subject land

  1. [212]
    When all the provisions of the Planning Scheme are read in concert, they reveal that:
    1. the Planning Scheme adopts a degree of flexibility in its approach to planning for local centres;
    2. in defined circumstances, the Planning Scheme supports the establishment of new local centres on land that is not in the Centres zone and that is not designated for a local centre;
    3. the requirements that the Planning Scheme sets for a new local centre outside the Centre zone varies for different place types in the Moreton Bay Regional Council Place Model and for different zones;
    4. the requirements reflect the existing and planned characteristics of the different place types in the Moreton Bay Regional Council Place Model and the different zones, particularly as they relate to:
      1. (i)
        the intensity of residential neighbourhoods; and
      1. (ii)
        the range of services and facilities that are intended to be within walking distance, or accessible by other forms of active transport, or accessible by public transport; and
    5. in rural residential neighbourhoods, where there is limited public transport and a high dependence on cars, sustainable travel patterns and the reduction in reliance on motor vehicles will be assisted by providing essential convenience shopping and community facilities at a location:
      1. (i)
        with good vehicular accessibility; and
      1. (ii)
        near complementary land uses that enable a higher level of linked trips and an increased prospect of future service by public transport.
  2. [213]
    Here, the subject land is part of a rural residential neighbourhood in the Rural residential place type.  The strategic outcome in s 3.14.7.5 2. expressly contemplates that such rural residential neighbourhoods may include a local centre that provides essential convenience shopping and community facilities.  Pursuant to the other provisions for the Rural residential place type, any such local centre would also be expected to:
    1. have good vehicular accessibility;
    2. maintain the identity and distinctiveness of the rural residential area and be complementary to the character of the landscape setting in which the development is proposed; and
    3. maintain the high level of residential amenity and the attractive, peaceful lifestyle associated with low density detached residential development in a semi-rural environment.
  3. [214]
    North Harbour Holdings Pty Ltd submits that s 3.14.7.5 2. does not lend support to the proposed development because:
    1. the overall outcomes of the Rural residential zone code stipulate that the Rural residential zone is not to include uses from the Retail and commercial activities group where they are not in a neighbourhood hub; and
    2. the Rural residential place type and the Rural residential zone are not coextensive and this provision may be directed at land that is in:
      1. (i)
        the Rural residential place type;
      1. (ii)
        a rural residential neighbourhood; and
      1. (iii)
        unlike the subject land, a zone that admits of the possibility of a local centre, such as the General residential zone.
  1. [215]
    I accept that the Rural residential place type and the Rural residential zone are not coextensive.  A comparison of that part of the Strategic framework map 3.14.1 to the Zoning Map reveals that there are a handful of lots east of the Bruce Highway, proximate to the subject land, that are in the Rural residential place type but in the Recreation and open space zone.  North Harbour Holdings Pty Ltd submission that there may be land that is in the Rural residential place type and in the General residential zone appears to be nothing more than speculation.  No party has identified any such land, and none is readily apparent on my comparison of the relevant maps.
  1. [216]
    In any event, I do not accept North Harbour Holdings Pty Ltd submission that the strategic outcome in s 3.14.7.5 2. does not lend support to the proposed development.  The submission is contrary to orthodox principles of statutory construction.  As I have already mentioned, the Planning Scheme is to be read as a whole and in a way that is practical and intended to achieve a balance between the individual outcomes.[27]  It bears repeating that words may be read out of a provision if they can be given no sensible meaning, or if they would defeat the clear purpose of the provision, but a Planning Scheme should not be re-written absent compelling circumstances.[28]
  1. [217]
    The approach urged by North Harbour Holdings Pty Ltd is not appropriate.  It ignores that the nature of planning instruments remains relevant to the task of construction.[29]
  2. [218]
    Like many planning schemes that apply throughout Queensland, this Planning Scheme is a voluminous document.  It comprises numerous components, including a strategic framework; zones and precincts (with associated zone codes); local plans and local plan precincts (with associated local plan codes); mapping overlays and overlay codes; and use and other development codes.  Each of these components contains provisions that may form part of the assessment benchmarks for a particular development application. 
  3. [219]
    The combination of assessment benchmarks that regulate development of a parcel of land can vary significantly.  This is so even where the development applications are in the same locality or where they are for the same type of development but in different localities.  Under the Planning Scheme, the integers that inform the combination of assessment benchmarks against which a development application must be assessed are:
    1. the type of development sought, i.e., whether the application is for carrying out building work, carrying out operational work, reconfiguring a lot or making a material change of use of premises;
    2. the category of development, i.e., whether the application is for accepted development or assessable development;
    3. the category of assessment, i.e., whether the application is code assessable or impact assessable;
    4. the zone and, if applicable, the precinct of the zone in which the land is located;
    5. whether the land is located in a particular local plan area and a precinct of a local plan area;
    6. whether the land is affected by one or more overlays, such as a flood hazard overlay; and
    7. the type of development involved.
  4. [220]
    In some instances, the resultant outcome is so complex that not all provisions applicable to assessment of a particular development on a particular site will give effect to harmonious goals.  This prospect is recognised in the express terms of the Planning Scheme.  The Planning Scheme contemplates that there will be inconsistencies in the application of its provisions.  It stipulates how such inconsistencies should be addressed in provisions such as s 1.5, which states:

“1.5Hierarchy of assessment benchmarks

1. Where there is inconsistency between provisions within the planning scheme, the following rules apply:

a. the strategic framework prevails over all other components, (other than the matters mentioned in b.), to the extent of the inconsistency, but is only applicable to impact assessment;

b. for the forms of development identified in section 5.4, assessment benchmarks for assessable development and requirements for accepted development referred to in that section prevail over all other components to the extent of the inconsistency;

c. overlays prevail over all other components (other than the matters mentioned in a. and b.) to the extent of the inconsistency;

d. local plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency;

e. zone codes prevail over use codes and other development codes to the extent of the inconsistency;

f. provisions of Part 10 override any of the above, (other than the matters mentioned in b.).”

(emphasis added)

  1. [221]
    The construction contended for by North Harbour Holdings Pty Ltd:
    1. gives no meaning to:
      1. (i)
        the mapping that allocated the subject land to the Rural residential place type;
      1. (ii)
        s 3.14, which indicates that the provisions of the Planning Scheme about the Moreton Bay Regional Council Place Model will be used to assess applications that require impact assessment; and
      1. (iii)
        the strategic outcome for the Rural residential place type in s 3.14.7.5 2. of the Planning Scheme; and
    2. ignores s 1.5 of the Planning Scheme.
  2. [222]
    There is no sound basis to adopt such an approach.
  3. [223]
    Having regard to the matters to which I have referred above, I do not accept North Harbour Holdings Pty Ltd’s contentions that the proposed development is an inappropriate use of the subject land merely because the proposed development:
    1. is a use that is not contemplated or encouraged in the assessment benchmarks in the Rural residential zone code;
    2. is located directly opposite an existing neighbourhood hub; and
    3. is not located to form 15-minute walkable neighbourhoods or at a location that is central to such a neighbourhood.
  4. [224]
    Ultimately, whether the proposed development is an appropriate use of the subject land will be informed by other considerations, including:
    1. the other matters to which I have already referred above;
    2. whether the proposed development will have unacceptable character and amenity impacts; and
    3. whether there is a need for the proposed development having regard to, amongst other things, the existing service provided by The Hub Convenience Centre and whether the proposed development will provide essential convenience shopping and community facilities.
  5. [225]
    With the above matters in mind, it is convenient to now consider whether the proposed development will have unacceptable character and amenity impacts.

Key issue 2 – Will the proposed development have unacceptable character and visual amenity impacts?

  1. [226]
    North Harbour Holdings Pty Ltd contends that the proposed development will give rise to adverse character and visual amenity impacts.  The Agreed List of Issues in Exhibit 8.13 records that, in support of its contention, North Harbour Holdings Pty Ltd relies on:
    1. the overall outcomes in ss 6.2.11.2 3.c. and 6.2.11.2 3.d. and performance outcomes PO1 and PO8 of the Rural residential zone code; and
    2. performance outcomes PO14 and PO21 in s 6.2.1.5 of the Centre zone code.[30]
  2. [227]
    North Harbour Holdings Pty Ltd contends that they are applicable assessment benchmarks.

What do the provisions of the Rural Residential zone code stipulate in relation to design and appearance of development and character and visual amenity impacts?

  1. [228]
    The provisions of the Rural residential zone code on which North Harbour Holdings Pty Ltd relies are assessment benchmarks applicable to an assessment of the proposed development. 
  2. [229]
    The overall outcomes in ss 6.2.11.2 3.c., and d. of the Rural residential zone code provide focussed guidance about built form and character considerations.  They state:

“c.Development maintains a distinct and recognisable transition between more intensively urbanised areas of the region, and the region’s largely undeveloped rural hinterland.

d.Development does not detrimentally impact upon the low density, low intensity and open area character and amenity associated with the Rural residential zone.”

  1. [230]
    Performance outcomes PO1 and PO8 of the Rural residential zone code are also relevant.  They state:

“PO1

Development:

a. is limited in size, scale and intensity to be compatible with the low density, low rise built form and open area character and amenity anticipated in the Rural residential zone;

b. is designed, located and operated in a manner to avoid detrimental impacts on the low density, low rise built form and open area character and amenity anticipated in the Rural residential zone;

c. is designed, located and operated in a manner that avoids nuisance impacts on adjoining properties;

d. is adequately serviced with necessary infrastructure to meet on-site needs and requirements;

e. ensures adequate on-site stormwater and waste disposal is provided to avoid adverse impacts on water quality;

f. requires minimal cutting, filling or excavating.  Where this occurs, visual impacts are reduced through screening;

g. avoids being obtrusive or visually dominant through on-site location, colours and materials of buildings and structures, except where materials such as netting, shade cloth and similar coverings are necessary for agricultural operations; and

h. does not result in any instability, erosion or degradation of land, water, soil resource or loss of natural, ecological or biological values.

PO8

Total roofed area of all buildings (including domestic outbuildings) on a site:

a. reflects the detached, low density, low rise built form and open area environment anticipated in the Rural residential zone;

b. does not appear dominant or overbearing;

c. provides generous open areas around buildings for useable private open space, and protects existing vegetation.”

(emphasis reflects the parts of the performance outcomes put in issue)

  1. [231]
    The assessment benchmarks of the Rural residential zone code that North Harbour Holdings Pty Ltd has put in issue about character impacts raise the following four key factual questions for determination:
  1. What is the character of the locality?
  2. What are the design attributes of the proposed development?
  3. Will the proposed development have a detrimental impact on the character of the Rural residential zone?
  4. Will the proposed development maintain a distinct and recognisable transition between urban and rural areas?
  1. [232]
    To assist me in answering those questions, I have the benefit of:
    1. the approved plans and documents, which include:
      1. (i)
        plans, elevations, sections and perspectives that depict the design of the proposed development;
      1. (ii)
        documents detailing the materials that will be used and the architectural design language that has been employed in the design;
      1. (iii)
        the Noise Impact Assessment;
    2. the conditions of approval imposed by the Council that were not appealed by Lancorp Pty Ltd, from which I infer an acceptance of the conditions by Lancorp Pty Ltd, subject to those attributes of traffic design that are the subject of consideration in this appeal;
    3. the Council’s Planning Scheme Policy – Integrated Design, including Appendix D with respect to landscaping;
    4. many photographs of the area;
    5. expert evidence with respect to town planning given by Mr Perkins, Mr Mewing and Ms Morrissy; and
    6. expert evidence with respect to character and visual amenity issues given by Dr McGowan.
  2. [233]
    My findings below are not attributable to a single statement by an expert.  They reflect the aggregate impression that I have formed having regard to the collective effect of the evidence, including the plans, sections, elevations and photographic evidence.

What is the character of the locality?

  1. [234]
    North Harbour Holdings Pty Ltd submits that the Planning Scheme calls for development to be consistent with the planned character, not the existing character.  It says that this construction is evident from the requirement that development be consistent with the character “associated with” and “anticipated in” the Rural residential zone.  For that reason, North Harbour Holdings Pty Ltd says that the existing character is not relevant to the assessment. 
  2. [235]
    I accept that the planned character is relevant, but do not agree that the existing character is irrelevant for three reasons.
  3. [236]
    First, any existing lawful use of the premises and adjacent premises is a mandatory consideration to which this Court must have regard pursuant to s 45(5)(a)(i) of the Planning Act 2016 and s 31(1)(f) of the Planning Regulation 2017.
  4. [237]
    Second, the approach is contrary to long-recognised principles applied by this Court that regard must be had to the physical environment of the locality, including all existing development, even if the existing development was approved under an earlier planning regime.  To disregard existing development would attribute to the area a character that it simply does not have.[31]
  5. [238]
    Third, there is nothing in the Planning Scheme that warrants assessing the proposed development against the provisions in issue without paying due regard to the existing attributes of the locality that contribute to its character.  To the contrary, such an approach ignores relevant context provided in the Planning Scheme.  Such context includes, but is not limited to:
    1. the Rural residential place type theme in s 3.14.7 of the Strategic framework, which explains that the Rural residential place type is made up of a diverse range of areas, each with their own unique rural residential character and sense of place; and
    2. the strategic outcome for the Rural residential place type in s 3.14.7.2 4. of the Strategic Framework, which states:

“3.14.7.2Specific Outcomes – Natural environment and landscape

  1. Development maintains the identity and distinctiveness of the rural residential area and is complementary to the character of the landscape setting in which development occurs”

(emphasis added)

  1. [239]
    Although the Planning Scheme does not seek to reinforce or strengthen existing character attributes that are contrary to the planned character, it does not follow that the existing character attributes should be ignored.
  2. [240]
    The character of a locality is the aggregate impression formed having regard to the individual features and traits of the existing development, landscaping and natural environment in the street or locality.[32]  It is also informed by the perceptions or expectations that people hold about a place, which may be influenced by the existing attributes of the area and the planning intentions for the area.
  1. [241]
    In terms of the planned intentions for the area, the overall outcomes in ss 6.2.11.2 3.c., and d. and performance outcomes PO1 and PO8 of the Rural residential zone code seek a low density, low intensity and open area character and amenity that is associated with, and anticipated in, the Rural residential zone.  To gain a better understanding of that planned character, it assists to consider the purpose of the Rural residential zone code.  In that respect, s 6.1 7. of the Planning Scheme explains that the overall outcomes achieve the purpose of the zone code, and the performance outcomes achieve the overall outcomes and the purpose of the code.  
  2. [242]
    The purpose of the Rural residential zone code is set out in paragraph [64] above but bears repeating here.  It states:

“The purpose of the Rural residential zone is to provide for residential development on large lots where infrastructure and services may not be provided and where the intensity of residential development is generally dispersed. The zone is generally located at the urban-rural fringe, having a semi-rural or bushland amenity and character with a strong dominance of open area and scope for planting. Development is characteristically low density (large lots), low intensity of built form and catering for a range of lifestyle choices. The opportunity and ability for rural uses to occur is retained. Limited provision for other low intensity non-residential uses is also provided where it is demonstrated they have minimal adverse impacts on the amenity and character of the zone.”

(emphasis added)

  1. [243]
    I have identified relevant aspects of the existing character of the subject land and the surrounding locality in paragraphs [16] to [32] above.  Some of those matters bear repeating here, and additional pertinent observations can be made.
  2. [244]
    The subject land:
    1. is adjoined at its rear and side boundaries by large lots to the north, north-east and east;
    2. presents to the intersection of Buckley Road and Uhlmann Road, which one encounters immediately after leaving the Bruce Highway to proceed north into Burpengary East; and
    3. forms part of:
      1. (i)
        a cluster of non-residential uses, including a service station, childcare centre and a neighbourhood hub, that sits at the gateway to Burpengary East; and
      1. (ii)
        a broader cluster of urban uses, including an aged care facility and nursing home, church, service centre and open storage areas.
  3. [245]
    Ms Morrissy says that the intersection of Buckley Road and Uhlmann Road serves as an activity node for a rural residential neighbourhood.  Despite its urban activities, Ms Morrissy considers that area surrounding the intersection still contains some indicators that rural residential area, namely:
    1. the subject land in its current state;
    2. to the extent that it is visible from the intersection, and forms a backdrop to the intersection, the mature vegetation in the rural residential properties that adjoin the non-residential uses;
    3. the openness that is provided by the wide setback between the road and the built form and structures; and
    4. the undeveloped land at 95-109 Buckley Road, which forms the south-western corner of the intersection; and
    5. the signs along the Uhlmann Road frontage of The Hub Convenience Centre that alert motorists to the potential that they may encounter wildlife in the area and equestrians ahead.
  4. [246]
    Ms Morrissy opines that, to the extent that the approach to an intersection counts as contributing to character, a rural residential character is apparent from all possible directions as one enters the Buckley Road and Uhlmann Road intersection.  As such, Ms Morrissy says that a degree of open character is present at this intersection and it gives this rural residential place type an identity that differs from other built-up, more urbanised areas in the Region.
  5. [247]
    With reference to that evidence, North Harbour Holdings Pty Ltd submits that the subject land and its surrounds exhibit rural residential character because:
    1. the northern and eastern portions of the subject land are presently improved by houses on land that present as typical rural residential properties; and
    2. the subject land interfaces with rural residential properties to its north and east and sits within a broader rural residential context.
  6. [248]
    Although the individual attributes identified by Ms Morrissy exist, when viewed in conjunction with the other attributes present, I do not accept that they lend the subject land and its immediate surrounds a character consistent with that intended in the Rural residential zone.  Ms Morrissy’s opinions, and North Harbour Holdings Pty Ltd’s submissions, about existing character do not accord with my impression of the character of the area, which is informed by my consideration of the many photographs of the locality. 
  7. [249]
    As I have found in paragraphs [31] and [32] above, the character of Burpengary East is informed by three elements.  First, at its core, there is a predominance of detached dwelling houses on varying lot sizes that are located within a street network characterised by many cul-de-sacs and a suburban appearance.  Second, towards the outer edges of the area, adjacent to land in the Rural zone, there are larger lots with a semi-rural or bushland amenity.  Third, at the gateway to Burpengary East, there is a conspicuous cluster of non-residential uses centred around a major, signalised intersection that give the area immediately surrounding the subject land a more urbanised character.  The character of the locality is strongly influenced by the predominance of detached housing that present as part of a large-lot suburban housing estate and the urbanised gateway to the suburb.  Combined, they give the locality a feel that is more urbanised than semi-rural or bushland in character and amenity. 
  8. [250]
    There is no indication that the non-residential and more intense uses that lend urbanised character to this area will disappear in the foreseeable future.  To the contrary, they appear to be well established and well maintained.  They give the appearance that they are likely to remain for some considerable time.  To ignore them would be to attribute to the area a character that it simply does not have.

What are the design attributes of the proposed development?

  1. [251]
    In assessing the proposed development against the overall outcomes in ss 6.2.11.2 3.c. and d. and performance outcomes PO1 and PO8, it is necessary to have regard to the proposed development’s size, scale, intensity, design, location and operation.
  2. [252]
    I have identified the nature of the proposed development in paragraphs [33] to [41] above.  The built form parameters and design attributes relevant to the assessment of character impacts bear repeating here.
  3. [253]
    The proposed development will comprise:
    1. a full-line supermarket with 3,300 square metres of gross lettable area;
    2. approximately 1,445 square metres of gross lettable area for specialty shops, including 25 square metres for a kiosk and 150 square metres for a liquor store;
    3. 226 carparking spaces, of which six are proposed to be dedicated to “click and collect” services; and
    4. amenities areas totalling 195 square metres.
  4. [254]
    These uses are to be accommodated in three, single-storey buildings. 
  5. [255]
    The largest building accommodates the supermarket and other smaller tenancies for retail and commercial activities, including the liquor store and kiosk. 
  6. [256]
    The main parapet line of the roof over the supermarket building has a height of approximately 8.42 metres.  This is compatible with residential roof forms in the area, which are in the order of four to five metres in height for single-storey houses and seven to eight metres in height for two-storey buildings.
  7. [257]
    The higher parts of the roof over the supermarket building, being those parts associated with the plant room, have a maximum height of approximately 11.77 metres.  That part of the roof forms a small protrusion in the main roof along the eastern part of the building.
  8. [258]
    The building accommodating the supermarket and other smaller tenancies is set back from the road frontages and sits behind the main customer car parking area.  It is setback:
    1. at least 68 metres from Buckley Road;
    2. at least 36 metres from Uhlmann Road;
    3. at least 45 metres from the eastern boundary; and
    4. at least 17 metres from the northern boundary.
  9. [259]
    The higher parts of the supermarket building, being the plant room, will be at least 40 metres from the northern boundary.
  10. [260]
    As such, this largest building achieves the minimum setbacks from property boundaries that are identified in E4 of the Rural residential zone code, namely six metres from the road boundary, 4.5 metres from the site and rear boundaries.  These are examples of setbacks that the Planning Scheme considers:
    1. to be sufficient to minimise overlooking and maintain privacy of adjoining properties; and
    2. creates sufficient separation to ensure buildings are not visually dominant or overbearing on adjoining properties with respect to the low density character and amenity anticipated in the Rural residential zone.
  11. [261]
    The northern façade of the supermarket building incorporates painted graphics and textured finishes to provide visual interest.  This will assist with breaking up the appearance of blank walls.
  12. [262]
    The other two buildings are positioned at the south-western corner of the subject land, near the intersection.  They will be used for various retail and commercial activities.  One fronts Buckley Road and has a gross lettable area of 278 square metres.  The other fronts Uhlmann Road and has a gross lettable area of 358 square metres.  They will provide a smaller-scale presentation of the proposed development on the subject land.
  13. [263]
    These smaller buildings are located at the most visually prominent part of the subject land.  They are located about three metres from the proposed new boundary of the subject land.  The proposed new boundary varies from the existing boundary as part of the subject along both Buckley Road and Uhlmann Road is proposed to be dedicated as road. 
  14. [264]
    The two smaller buildings are designed to permit the tenancies to address the intersection, with glazing directed to the street, and the adjacent alfresco areas internal to the subject land.  The buildings will frame and further activate the busy intersection of Buckley Road and Uhlmann Road.  They are separated by a pedestrian link and plaza space that will activate the area and provide a strong visual element to aid with legibility of the centre.
  15. [265]
    These smaller buildings incorporate metal roof forms that reflect roof forms of housing in the area. 
  16. [266]
    Collectively, the proposed buildings have a site cover of 5,340 square metres, which is approximately 25 per cent of the overall area of the subject land, being 20,582 square metres.
  17. [267]
    The fabric shade structures over the carpark will have a lightweight appearance. 
  18. [268]
    Vehicular access is proposed to be via crossovers at the Uhlmann Road and Buckley Road frontages, near the boundary between the subject land and adjoining residential development. 
  19. [269]
    Parking is provided for approximately 226 cars.  The car parking area and the vehicle circulation area are to be at grade and partially sleeved behind the buildings.  The car parking area includes shade canopies, pedestrian pathways and refuges raised within the vehicle surface.
  20. [270]
    An area designated for staff parking and a drive through for customer parcel collections are to be located on the northern side of the supermarket building, separated from the adjoining residential property to the north by a three-metre-wide landscape buffer and acoustic barrier.  A service vehicle circulation driveway lies between the supermarket building and the adjoining residential property to the east, and there will be an acoustic barrier on that boundary.
  21. [271]
    Refuse collection and servicing areas are to be located:
    1. for the supermarket, within the supermarket building adjoining the supermarket loading dock at the north-eastern corner of the subject land; and
    2. for all other tenancies, adjacent to the services area on the southern side of the subject land.
  22. [272]
    The northern boundary of the subject land adjoins the side boundary of 124 Buckley Road and part of the rear boundaries of 27 and 29 Sharpe Court.  The eastern boundary of the subject land adjoins the side boundary of 151 Uhlmann Road. 
  23. [273]
    Acoustic barriers are proposed along the northern and eastern boundaries.  The height varies across the length of the boundaries.  The relevant heights are depicted on Figure 6 in the approved Noise Impact Assessment Report.  In general, the acoustic barrier will be:
    1. two metres in height for the part of the northern boundary that is closest the frontage to Buckley Road and adjacent the driveway for the adjoining property;
    2. 3.5 metres in height for that part of the northern boundary that adjoins the balance of the adjoining property at 124 Buckley Road;
    3. 2.8 metres in height for that part of the northern boundary that adjoins the rear corners of the properties at 27 and 29 Sharpe Court and is proximate to the proposed refuse collection and servicing area for the supermarket;
    4. 2.8 metres in height for that part of the eastern boundary that adjoins the rear corner of the property at 151 Uhlmann Road and is proximate to the proposed refuse collection and servicing area;
    5. 2.4 metres in height for that part of the eastern boundary that adjoins the vegetated backyard of 151 Uhlmann Road and is proximate to the service vehicle circulation driveway and the loading dock and back wall of the supermarket;
    6. 3.2 metres in height for that part of the eastern boundary that adjoins the vegetated side yard and shed at 151 Uhlmann Road and that is proximate to the service vehicle circulation driveway and a bin storage and heavy rigid vehicle loading area on the subject land; and
    7. two metres in height for that part of the eastern boundary that adjoins the balance of the adjoining property at 151 Uhlmann Road and that is proximate the entry to the subject land from Uhlmann Road.
  24. [274]
    The side of these barriers that address the neighbouring properties are to be painted with artwork that references the locality.  A three-metre-wide strip of landscaping, including trees, is proposed on the subject land, immediately adjacent the acoustic barrier that is to be located along the northern boundary. 
  25. [275]
    Conditions 8 and 9 of the negotiated decision notice relate to landscaping.  They require:

“8 Landscaping

A Landscaping be provided on site generally in accordance with Planning Scheme Policy – Integrated Design Appendix D – Landscaping:

The landscaping must also include the following:

  1. A screen buffer along the northern boundary of the site.  Species must have a mature height of no less than 2.0 metres and must adequately screen the retaining structures.

B Provide certification, from a suitably qualified person, that landscaping has been implemented in accordance with (A) above.

C Maintain the landscaping.

9 Vehicle Encroachment

Protect all landscaped areas and pedestrian paths adjoining any car parking area from vehicular encroachment by wheel stops, kerbing or similar barrier approved by the Council.”

  1. [276]
    Condition 10 of the negotiated decision notice relates to screening.  It requires:

“10 Screening of Loading Facilities / Plant Areas

Screen plant areas, rainwater tanks, and refuse storage on the site from direct view from any adjoining road or public space.”

  1. [277]
    Lancorp Pty Ltd did not appeal against those conditions.  I infer that the proposed development is to proceed on the basis that there will be compliance with those conditions.
  2. [278]
    When those conditions are read in conjunction with the requirement in condition 1 to undertake development in accordance with the approved plans and documents and the relevant approved plans and documents, it is apparent that:
    1. approximately 13 per cent of the subject land’s site cover is to be comprised of landscaping;
    2. the green area marked “future development area” is to be maintained as a grassed area; and
    3. many trees are required to be planted and maintained around the perimeter of the subject land, including:
      1. (i)
        along the full length of the northern boundary;
      1. (ii)
        along that part of the eastern boundary proximate the entry and exit driveway and which corresponds to the limited extent of the adjoining property at 151 Uhlmann Road that does not contain a substantial band of vegetation; and
      1. (iii)
        within those parts of the subject land that front Buckley Road and Uhlmann Road that are to be dedicated as road reserves and that will form part of the footpath along the frontage to the proposed development.
  3. [279]
    With those design attributes in mind, I now turn to assess the proposed development’s impact on the character of the locality.

Will the proposed development have a detrimental impact on the character and visual amenity of the Rural residential zone?

  1. [280]
    The overall outcome in s 6.2.11.2 3.d. and performance outcomes PO1 and PO8 of the Rural residential zone code each call for consideration of the proposed development’s impact on the low density, low rise built form and open area character and amenity of the Rural residential zone. 
  2. [281]
    It is convenient to first consider performance outcome PO8, which is extracted at paragraph [230] above.  The critical parts of the performance outcome bear repeating here.  They state: 

“Total roofed area of all buildings (including domestic outbuildings) on a site:

a. reflects the detached, low density, low rise built form and open area environment anticipated in the Rural residential zone;

b. does not appear dominant or overbearing; …”

  1. [282]
    The roofed areas of all the buildings in the proposed development are substantial.  They total approximately 5,340 square metres, which is about 25 per cent of the overall area of the subject land.  This is discordant with the detached, low density, low-rise built form and open environment that is generally intended in the Rural residential zone.  As such, the proposed development does not comply with performance outcome PO8 a. of the Rural residential zone code.
  2. [283]
    With that in mind, I turn to consider whether the total roofed area of all the buildings on the subject land appears dominant or overbearing.
  3. [284]
    Ms Morrissy opines that the proposed development does not comply with performance outcome PO8 of the Rural residential zone code because the size, height, scale and siting of the proposed development will be visually dominant.  Ms Morrissy opinion relates to overall visual impact of the proposed development.  This is not the focus of performance outcome PO8. 
  4. [285]
    Performance outcome PO8 focuses on the impact occasioned by the total roofed area of all buildings on the subject land.  It calls for consideration of the visual impact of the aerial extent of the built form. 
  1. [286]
    The subject land adjoins four residential properties.  Three adjoin the northern boundary.  They are located at 124 Buckley Road, and 27 and 29 Sharpe Court.  The other adjoins to the east, at 151 Uhlmann Road.  There is also a residential property to the south, across Uhlmann Road, on the site to the east of the existing service station and child care centre.
  1. [287]
    Dr McGowan considers the visual impact on each of these properties. 
  2. [288]
    Dr McGowan identifies several factors that he says limit the potential for a dominant or overbearing visual impact occasioned by the built form, including impacts associated with its aerial extent, on the properties to the north of the subject land.  They include:
    1. the location of the proposed supermarket building about 28 metres from the northern boundary;
    2. the location of the nearest retail tenancies attached to the supermarket at least 17 metres from the northern boundary;
    3. the location of the higher parts of the supermarket building, being that small part associated with the plant room, at least 40 metres from the northern boundary;
    4. the treatment of the northern façade of the supermarket building with painted graphics and textured finishes to provide visual interest and break up the appearance of blank walls;
    5. the placement of an acoustic barrier along the northern boundary with heights varying between two and 3.5 metres above ground level;
    6. the inclusion of a strip of trees and other landscaping that is at least three metres wide inside of the acoustic barriers along the northern boundary; and
    7. the vegetation and ancillary structures located on the neighbouring properties, which reduce the extent to which the built form of the proposed development will be visible from the adjoining properties.
  3. [289]
    Dr McGowan opines that the acoustic barriers will substantially limit views towards the proposed built form.  He says that, absent the proposed landscaping, it is possible that:
    1. the occupants of 124 Buckley Road may achieve a glimpse over the barrier to the top of the nearest retail tenancies; and
    2. the occupants of 27 Sharpe Court may achieve a glimpse over the barrier to the top of the supermarket.
  4. [290]
    Once matured, the landscaping would substantially, if not entirely, screen any such glimpses. 
  5. [291]
    The subject land also shares a limited length of its boundary, approximately 20 metres, with the premises at 29 Sharpe Court.  Dr McGowan opines that development on the subject land would be unlikely to have a detrimental impact on that property, by reason of its roofed area or otherwise, because of:
    1. the distance to the proposed supermarket;
    2. the provision of fencing and landscaping along the northern boundary;
    3. the existing landscaping in the neighbouring property;
    4. the triangular shape of the neighbouring property;
    5. the distance to the neighbouring house; and
    6. the location of the shed on the neighbouring property near the shared boundary, which would limit visibility to the subject land.
  1. [292]
    With respect to the property to the east, Dr McGowan identifies several matters that he says inform the potential for a dominant or overbearing visual impact occasioned by the proposed built form, including impacts associated with its aerial extent.  They include:
    1. the location of the proposed supermarket building about four metres from the eastern boundary;
    2. that the higher parts of the supermarket building, associated with the plant room, extend along the eastern edge of the building to a height of 11.5 metres above ground;
    3. the treatment of the eastern façade of the supermarket building with painted graphics and textured finishes to provide visual interest and break up the appearance of blank walls;
    4. the placement of an acoustic barrier along the northern boundary, with heights varying between two and 3.2 metres above ground level;
    5. the provision of a narrow triangle of landscaping, including tree planting, inside of the barrier at a location that is adjacent the crossover to Uhlmann Road; and
    6. the existence of relatively dense vegetation on the neighbouring property running along most of the shared boundary.
  1. [293]
    The residential property to the south is separated from the proposed development by the carriageway of Uhlmann Road.  Part of its frontage is directly opposite that part of the subject land that is proposed to contain the supermarket. 
  2. [294]
    Dr McGowan opines that the proposed development would not appear overbearing when viewed form the residential property to the south.  He says that this is because that property does not adjoin the proposed development and it is separated from the built form of the proposed development by a considerable distance.
  3. [295]
    According to Dr McGowan, there is minimal potential for impacts on the outlook from the residential property to the south because:
    1. there is dense vegetation between the house and Uhlmann Road;
    2. the main outlook from the residential property appears to be towards the south; and
    3. the proposed supermarket building would be approximately 100 metres away from this property and behind proposed landscaping along the southern boundary of the subject land.
  4. [296]
    I accept the opinions expressed by Dr McGowan.  They are premised on facts that are established by the evidence and cogent explanations.  His opinions accord with the impression that I formed having regard to, amongst other things, the plans, sections, elevations and photographs of the area. 
  5. [297]
    Dr McGowan’s evidence persuades me that, despite the extent of the total roofed areas of all the proposed buildings, the proposed development will not appear dominant or overbearing from the adjoining properties or from the nearest residential property to the south.
  6. [298]
    The other perspective that is relevant when considering the extent to which the total roofed area of all the buildings on the subject land appears dominant or overbearing is that of an average person walking along Uhlmann Road and Buckley Road, or otherwise travelling through the area, and looking about.  In that respect, the visual appearance of the proposed development, in terms of its aerial extent, will be mitigated by the combined effect of several design features.  They include:
    1. the positioning of the largest building at the rear of the subject land, setback at least 68 metres from Buckley Road and at least 36 metres from Uhlmann Road;
    2. the positioning of the smaller buildings at the south-western corner of the subject land, near the intersection, where they:
      1. (i)
        provide a smaller-scale presentation of the proposed development on the subject land;
      1. (ii)
        limit the impression of dominance otherwise occasioned by the larger building that accommodates the supermarket; and
    3. the nature and extent of landscaping, which includes many trees within those parts of the subject land that front Buckley Road and Uhlmann Road that are to be dedicated as road reserve and that will form part of the footpath along the frontage to the proposed development. 
  7. [299]
    Having regard to the combined effect of these design features, viewed in the context of the surrounding area, I am satisfied that the proposed development will not appear overbearing. That said, it will have an appearance of greater dominance than one might reasonably expect when one considers the subject land’s inclusion in the Rural residential zone and the provisions of the Rural residential zone code.  To that extent, the proposed development does not comply with performance outcome PO8 of the Rural residential zone code.
  1. [300]
    With those matters in mind, I now turn to the broader consideration called for in performance outcome PO1 a. of the Rural residential zone code, namely whether the proposed development is limited in size, scale and intensity to be compatible with the low density, low rise built form and open area character and amenity anticipated in the Rural residential zone.
  1. [301]
    Dr McGowan readily concedes that the proposed development:
    1. is neither small scale nor low intensity when compared to the majority of the residential development in the area; and
    2. will present as a non-residential development, absent the typical qualities that characterise the wider rural residential area.
  2. [302]
    None of the experts suggested otherwise. 
  3. [303]
    Dr McGowan’s concession is appropriate, and hardly surprising, given the Planning Scheme:
    1. indicates that the role and function of a local centre:
      1. (i)
        can involve the provision of retail activities of between 5,000 and 7,000 square metres gross floor area; and
      1. (ii)
        may include a full-line supermarket, convenience stores, personal services and specialty stores; and 
    2. defines a full-line supermarket as a supermarket generally stocking more than 18,000 line items with a gross floor area of between 2,500 and 4,000 square metres.
  4. [304]
    Having regard to those attributes of a local centre, it is difficult to envisage how any local centre would be so limited in size, scale and intensity as to be compatible with the low density, low-rise built form and open area character and amenity anticipated in the Rural residential zone.
  5. [305]
    In any event, having regard to Dr McGowan’s concession, I am satisfied that the proposed development does not comply with performance outcome PO1 a. of the Rural residential zone code. 
  6. [306]
    North Harbour Holdings Pty Ltd submits that the fact that the proposed development is neither small scale nor low intensity also demonstrates that it will detrimentally impact on the low density, low-rise built form and open area character and amenity anticipated in the Rural residential zone.  It submits that, consequently, the proposed development does not comply with performance outcome PO1 b. and the overall outcome in s 6.2.11.2 3.d. of the Rural residential zone code.
  7. [307]
    I disagree that such a conclusion necessarily follows as:
    1. the focus of performance outcome PO1 b. of the Rural residential zone code is the design and location of the proposed development and the way it operates; and
    2. the overall outcome in s 6.2.11.2 3.d. of the Rural residential zone code calls for a broad assessment of the impact of the proposed development on the low density, low intensity and open area character and amenity associated with the Rural residential zone. 
  8. [308]
    Neither of these provisions call for the more limited assessment with respect to compatibility of size, scale and intensity called for by performance outcome PO1 a. of the Rural residential zone code.
  9. [309]
    Bearing in mind the evidence and my findings about non-compliance identified in paragraphs [282], [299], [301] to [303] and [305] above, and the attributes relevant to the design, location and operation of the proposed development referred to in paragraphs [254] to [267], [270] to [278], and [286] to [299] above, I am satisfied that the proposed development complies with:
    1. performance outcome PO1 b. of the Rural residential zone code; and
    2. the overall outcome in s 6.2.11.2 3.d. of the Rural residential zone code.
  10. [310]
    The significance of the non-compliances identified above, and the weight attributed to them in the exercise of the planning discretion, is mitigated by a consideration of the verbiage of the Planning Scheme and factors relevant to the proposed development on the subject land that are established on the evidence.  Relevant considerations include that:
    1. the level of impact of the non-compliances is mitigated by the existing attributes of the subject land and its surrounds and their contribution to the existing character of the area;
    2. the mapping in the Planning Scheme allocates the subject land to the Rural residential place type;
    3. s 3.14.7.1 2. of the Planning Scheme indicates that non-residential uses are contemplated in the Rural residential place type, provided they are managed to mitigate detrimental impacts on residential amenity;[33]
    4. the proposed development will not have a detrimental impact on the amenity of the adjoining and nearby residents as perceived from their properties;
    5. the unchallenged evidence of the acoustic engineer, Mr Paul King, demonstrates that:
      1. (i)
        the area has elevated ambient noise by reason of traffic utilising Buckley Road and Uhlmann Road, and the intersection of those roads, and the Bruce Highway;
      1. (ii)
        the proposed development will not have a detrimental impact on the amenity and character of the area having regard to acoustic considerations;
    6. there is no allegation, nor does the evidence indicate the presence, of any other form of detrimental impacts on residential amenity;
    7. the proposed development is complementary to the character of the surrounding landscape setting and does not detract from the identity and distinctiveness of the rural residential area.  As such, the proposed development is consistent with the specific outcome sought for the Rural residential place type in s 3.14.7.2 4. of the Planning Scheme;[34]
    8. the proposed development will maintain the high level of residential amenity and the attractive, peaceful lifestyle presently associated with the existing low density detached residential development in the locality.  As such, the proposed development is consistent with the specific outcome sought for the Rural residential place type in s 3.14.7.3 1. of the Planning Scheme;[35]
    1. the proposed development does not detract from the characterisation of the settlement pattern as one of large residential allotments with detached dwellings.  As such, the proposed development is consistent with the specific outcome sought for the Rural residential place type in s 3.14.7.4 1. of the Planning Scheme;[36]
    2. the proposed development does not pre-empt or compromise the potential development of this rural residential area for urban purposes beyond the life of the Planning Scheme.  As such, the proposed development is consistent with the specific outcome sought for the Rural residential place type in s 3.14.7.4 4. of the Planning Scheme;[37]
    3. s 3.14.7.5 2. of the Planning Scheme indicates that a rural residential neighbourhood may include a local centre that provides essential convenience shopping and community facilities;
    4. the Planning Scheme indicates that the role and function of a local centre involves the provision of retail activities of between 5,000 and 7,000 square metres gross floor area, including a full-line supermarket, convenience stores, personal services and specialty stores;
    5. s 3.14.7.6 1. of the Planning Scheme provides that rural residential communities have good vehicular accessibility via sealed roads to nearby areas that provide convenience shopping requirements and essential convenience services;[38]
    6. at present, the rural residential community in this locality must cross the Bruce Highway to access its convenience shopping requirements, which I am satisfied does not equate to “good vehicular accessibility”; and
    7. pursuant to s 1.5 of the Planning Scheme, the inconsistency between the provisions of the Rural residential zone code and the Strategic framework, including s 3.14.7.5 2., are resolved in favour of the Strategic framework, i.e., in an impact assessment, the provisions of the Strategic framework prevail over all other components of the Planning Scheme to the extent of the inconsistency.[39]

Will the proposed development maintain a distinct and recognisable transition between urban and rural areas?

  1. [311]
    In this locality, there are intensively urbanised areas to the west of the Bruce Highway.  As I have already found, on the eastern side of the Bruce Highway, at the gateway to Burpengary East, there is a conspicuous cluster of non-residential uses centred around a major, signalised intersection that give the area immediately surrounding the subject land a more urbanised character.  This urbanised gateway strongly influences the character of the locality.  To the north, east and south are areas of land that are in the Rural zone and that are largely undeveloped in terms of built form. 
  2. [312]
    At present in this locality, there is a transition between the more intensively urbanised areas of the region and the region’s largely undeveloped rural areas.  The transition is achieved by the reduction in intensity of development as one progresses further away from the subject land, towards the north-eastern, south-eastern and eastern parts of the discrete pocket of land in the Rural residential zone, i.e., Burpengary East. 
  3. [313]
    The subject land does not, by itself, meaningfully contribute to the transition.  The extent of its contribution is that made by the rural residential character provided by the lots located at 122 Buckley Road and 143 Ulmann Road.  The corner lot does not contribute to the transition as the commercial tennis facility, with its associated lighting, has an urban presentation. 
  4. [314]
    The proposed development makes an incremental change to the existing transition.  As such, it does not accord with the requirement in the overall outcome in s 6.2.11.2 3.c. of the Rural residential zone code to maintain a distinct and recognisable transition.  This is a matter that tells against approval of the proposed development.
  5. [315]
    That said, I am comfortably satisfied that an assessment of the proposed development against s 6.2.11.2 3.c. of the Rural residential zone code does not sound, in a meaningful way, in the case against approval of the proposed development.  That is because, even with the proposed development, the locality will maintain a distinct and recognisable transition between:
    1. the more intensively urbanised areas to the west of the Bruce Highway and proximate the Bruce Highway and around the intersection of Buckley Road and Uhlmann Road; and
    2. the Rural zoned land that lies to the north, south and east of this discrete pocket of land in the Rural residential zone.

Conclusion about whether the design and appearance of the proposed development complies with the Rural residential zone code?

  1. [316]
    As is evident from my findings above:
    1. I am comfortably satisfied that the proposed development complies with some of the requirements put in issue by North Harbour Holdings Pty Ltd, but the design and appearance of the proposed development is not fully compliant with the requirements of the Rural residential zone code; and
    2. the seriousness of the non-compliances, and the weight to be attributed to them in the exercise of the planning discretion, are mitigated by many factors.

Does non-compliance with the planning outcomes with respect to design of centres in the Local centre precinct in the Centre zone code tell against approval?

  1. [317]
    As I have mentioned at paragraph [226](b) above, North Harbour Holdings Pty Ltd contends that the proposed development does not comply with the assessment benchmarks in performance outcomes PO14 and PO21 in s 6.2.1.5 of the Centre zone code.  Those performance outcomes relate to the Local centre precinct of the Centre zone.  They state:

“PO14

Car parking is designed to avoid the visual impact of large areas of surface car parking on the streetscape.

PO21

On-site landscaping:

a. is incorporated into the design of the development;

b. reduces the dominance of car parking and servicing areas from the street frontage;

c. incorporates shade trees in car parking areas;

d. retains mature trees wherever possible;

e. contributes to quality public spaces and the microclimate by providing shelter and shade;

f. maintains the achievement of active frontages and sightlines for casual surveillance.

Note - All landscaping is to accord with Planning scheme policy - Integrated design.”

(emphasis added to reflect the aspects of these provisions put in issue by North Harbour Holdings Pty Ltd)

  1. [318]
    As I have already explained, s 6.1 7. of the Planning Scheme says that performance outcomes are intended to achieve the overall outcomes and purpose of the zone code in which they appear.  As such, these performance outcomes are intended to achieve the purpose of the Centre zone code, not the Rural residential zone code.  The purpose of the Local centre precinct of the Centre zone is identified in s 6.2.1.2 4. of the Planning Scheme, which states:

“The Centre zone comprises 6 precincts which have the following purpose:

…

c. Local centre precinct

The purpose of the Local centre precinct is to provide a limited range of services, including convenience retail, to a cluster of local neighbourhoods.  They have good local accessibility, particularly active transport and act as a focal point and meeting place for the local community.  Local centres generally serve a catchment of 10,000- 15,000 people and are generally defined by the presence of a full-line supermarket or a fully functioning main street that caters for a catchment of the same size.

The Local centre precincts are:

Albany Creek – Old North Road

Banksia Beach, Banksia Beach Shopping Centre – Sunderland Drive

Bongaree, First Avenue Strip

Bray Park, Kensington Village Shopping Centre – Sovereign Avenue

Beachmere, Beachmere Road

Caboolture, Central Lakes – Pettigrew Street

Clontarf, Elizabeth Avenue

Kallangur, Lilly Brook Shopping Village – Brickworks Road

Kippa-Ring, Dolphins Central – Ashmole Road

Lawnton, Gympie Road

Murrumba Downs, Murrumba Downs Shopping Centre – Dohles Rocks Road West

Narangba, Young Road and Golden Wattle Drive”

(emphasis added)

  1. [319]
    The subject land is not identified as a local centre precinct.  North Harbour Holdings Pty Ltd did not identify any provisions of the Planning Scheme that provide contextual support for its position that the development of a new local centre at a location other than an identified local centre precinct is intended to meet the purpose of the Centre zone.
  2. [320]
    Having regard to the matters outlined in paragraphs [194] to [210] above, I do not accept that the Centres zone code contains applicable assessment benchmarks. 
  3. [321]
    That said, if I am wrong about that, on my assessment:
    1. the proposed development does not achieve complete compliance with PO14 and PO21 for the Local centre precinct of the Centres zone code; but
    2. the significance of the non-compliance is mitigated by the following five factors.
  4. [322]
    First, the design of the proposed development is such that:
    1. when the proposed development is viewed from the intersection of Buckley and Ulmann Roads, the at-grade parking is obscured by the buildings that front the intersection; and
    2. landscaping along the Buckley Road frontage will screen the parking so that it will not dominate the street environment.
  5. [323]
    Second, the design of the proposed development is consistent with the visual context in which it appears, particularly having regard to the design of The Hub Convenience Centre.  The existing neighbourhood hub provides parking adjacent the road.  This is relevant to the community expectations for non-residential development in the area.
  6. [324]
    Third, having regard to the size of the local centre proposed and the extent of car parking required for such a centre, I am satisfied that:
    1. the car parking is designed to avoid, to the extent practicable, the visual impact of large areas of surface car parking on the streetscape; and
    2. on-site landscaping reduces, to the extent practicable, the dominance of car parking and servicing areas from the street frontage.
  7. [325]
    Fourth, having regard to the size of the local centre proposed and the extent of car parking required for such a centre, I am satisfied that it is not reasonably possible to retain all the mature trees on the subject land without potentially compromising design attributes that are beneficial to its appearance given the proposed development’s location in the Rural residential zone. 
  8. [326]
    Fifth, as is identified in unchallenged evidence of Dr McGowan, about 36 trees will be returned to the subject land and there will be additional trees planted within the road verges. 
  9. [327]
    As such, I am satisfied that when the non-compliances are weighed with those factors that mitigate their significance, and with all other relevant matters, they do not attract such weight that they would tip the balance in favour of refusal. 

Key issue 3 – Will the proposed development give rise to unacceptable traffic impacts unless conditioned?

  1. [328]
    During the hearing, the issues with respect to traffic narrowed significantly in scope.  At the commencement of the hearing, North Harbour Holdings Pty Ltd contended that the proposed development would give rise to adverse traffic impacts and would not provide appropriate on-site car parking.  It alleged non-compliance with performance outcomes PO10, PO21, PO25 and PO77 (excluding sub-paragraph b.) of the Rural residential zone code and performance outcomes PO35 and PO40 of the Centre zone code.
  2. [329]
    On 24 March 2023, Lancorp Pty Ltd wrote to the parties and advised that it was content for the proposed development to be approved subject to conditions that required:
    1. the proposed development to be undertaken in accordance with updated plans, including frontage works, external roads and associated works;
    2. the intersection works to be designed and constructed in accordance with the updated functional layout plans;
    3. the pedestrian refuge island to be designed and constructed in accordance with the updated plans, being a two-staged pedestrian crossing;
    4. the area marked “No Compromise Zone” to be dedicated to the Council as road reserve; and
    5. the installation of lights, signage and a detector loop (in place of the stop bar) at the proposed vehicle entrance at Uhlmann Road.
  3. [330]
    On 28 March 2023, Lancorp Pty Ltd clarified that the correct plans to be relied upon were those in Exhibit 10.06.  These plans reflect access arrangements proposed by Mr Holland, with which Mr Douglas agrees.  They involve:
    1. a left-in, left-out and right-out signalised access on Buckley Road; and
    2. an all movements unsignalised access on Uhlmann Road, incorporating a detector loop light signal at the Uhlmann Road access.
  4. [331]
    The Council agrees with the position adopted by Lancorp Pty Ltd and contends that the development application should be approved subject to conditions that reflect these matters.
  5. [332]
    In his Statement of Evidence dated 26 February 2023, Mr Pekol:
    1. raises five traffic reasons that warrant refusal of the proposed development, which I will address shortly; and
    2. proposes an alternative access arrangement, which he says should be implemented in the event of an approval.  To that end, Mr Pekol says that a condition should be imposed to alter the proposed site access arrangements to require:
      1. (i)
        a left-in and left-out unsignalised access on Buckley Road;
      1. (ii)
        an all-movements signalised access on Uhlmann Road; and
      1. (iii)
        an additional west bound through lane on the Uhlmann Road (east) approach to Buckley Road.
  6. [333]
    In Mr Pekol’s view, his alternative access arrangements are appropriate, and preferable to that advanced by Mr Holland, as they resolve the concerns expressed by him in the Joint Report of Traffic Engineers about queuing and the proximity of the signalised all-movements access to the signals at the Buckley Road and Uhlmann Road intersection.
  7. [334]
    North Harbour Holdings Pty Ltd accepts that the position adopted by Lancorp Pty Ltd, which was notified in its correspondence of 24 and 28 March 2023, improves the position from a traffic perspective.  Consequently, North Harbour Holdings Pty Ltd no longer pursues parking as an issue and the issues about compliance with performance outcomes PO10 and PO77 of the Rural residential zone code fall away.  Having regard to concessions made by Mr Pekol during cross-examination, North Harbour Holdings Pty Ltd also concedes that the Court should not find non-compliance with performance outcome PO21 of the Rural residential zone code and performance outcome PO35 of the Centre zone code. 
  8. [335]
    The only provisions left in issue are performance outcome PO25 of the Rural residential zone code and performance outcome PO40 for the Local centre precinct of the Centre zone code.  They are in identical terms.  They state:

“The existing road network (whether trunk or non-trunk) is upgraded where necessary to cater for the impact from the development.”

  1. [336]
    North Harbour Holdings Pty Ltd did not withdraw its reliance on these provisions, and yet in its final submissions North Harbour Holdings Pty Ltd did not submit that there was non-compliance with them.  Rather, North Harbour Holdings Pty Ltd submits:

“127. Traffic engineering assessment should not be conducted in “utopian terms” but rather should consider “whether the proposal is for a reasonable or tolerable traffic arrangement in the context of modern urban motor vehicle movement”.[40]

  1. North Harbour does not suggest the Court adopt a “counsel of perfection”[41] but rather urges that the alternative access arrangements recommended by Mr Pekol be adopted, in circumstances where they avoid all of the issues associated with the signalisation of the Buckley Road access (which, it should be noted, accommodates only a single movement, being the right turn out to the north).”
  1. [337]
    It has long been recognised by the Court that traffic arrangements should be assessed in a common sense and practical way.  The planning process, including with respect to traffic arrangements, is not directed towards trying to achieve utopia or a counsel of perfection.[42]  It is not the function of this Court to refuse a design advanced by a developer because it is not the best possible design.  The issue is whether the proposed design is acceptable.[43] 
  2. [338]
    With those matters in mind, I address each of the five traffic issues raised by Mr Pekol.
  3. [339]
    The first traffic reason that Mr Pekol says warrants refusal is that the proposed development would result in longer trip lengths related to retail shopping, more motor vehicle crashes, increased fuel consumption and higher levels of motor vehicle emissions than would be achieved if there was an alternative centre located proximate to higher density residential uses.
  4. [340]
    During cross-examination, Mr Pekol admitted that he did not know the specific location of a centre on the North Harbour site, nor has he undertaken any traffic impact assessment of a centre on the North Harbour site.  He based his opinion about this issue on discussions with North Harbour Holdings Pty Ltd’s representatives.  He did not disclose the contents of the discussion, nor was the premise for his opinion proven by admissible evidence.  I do not accept this opinion.  It appears to be nothing more than speculation.  This is not a reason for refusal.
  5. [341]
    Mr Pekol’s second traffic issue is that the proposed development is deficient with respect to the provision of on-site car parking.  During his examination in chief, Mr Pekol confirmed that he no longer holds concerns in that regard.  This is not a reason for refusal.
  6. [342]
    Mr Pekol’s third traffic reason for refusal is that the proposed development would increase the risk of rear-end crashes and left-through crashes at the access to 124 Buckley Road to the detriment of local traffic safety.
  7. [343]
    The bases for Mr Pekol’s concern are the Austroads Guide to Traffic Management and the Department of Transport and Main Roads Road Planning and Design Manual.  These documents are guidelines only.  They are not assessment benchmarks that the proposed development must satisfy.
  8. [344]
    During cross-examination, Mr Pekol confirmed his concern is that:
    1. drivers turning left out of the neighbouring driveway onto Buckley Road will have to engage in a difficult decision-making process, which could give rise to an increased risk of collision; and
    2. the arrangements will cause delay or inconvenience to drivers exiting the driveway.
  9. [345]
    He considers his design solution to be preferable.  He says that it would satisfy s 3.2.3(a) of Australian Standard AS2890.1:2004, which relates to parking facilities and off-street parking.  In respect of signalised intersections, it states:

“To keep conflicts between frontage road traffic and car park traffic to an acceptable minimum, the following requirements and recommendations apply:

  1. Driveway Categories 1 and 2 …

At signalized intersections, the minimum distance from the intersection, measured from the property boundary along both legs, shall be increased as necessary to locate access driveways beyond the influence of normal queue lengths at the intersections.  If this is not practicable, it may be necessary to provide –

  1. an arrangement which confines traffic to turning left when either entering or leaving the car park;
  1. a signalized driveway with signals coordinating with the intersection signals; or
  1. other traffic management means of providing for safe and efficient operation of the driveway.”
  1. [346]
    I am satisfied that the design solution advanced by Mr Holland involves appropriate traffic management means of providing for safe and efficient operation of the driveway.  The evidence of the traffic engineers, including concessions made by Mr Pekol during cross-examination, comfortably satisfies me that:
    1. there are no issues with sight lines – a driver exiting the driveway to 124 Buckley Road can clearly see approaching cars;
    2. even in the morning peak hour, there is only one lane to navigate;
    3. a car exiting the driveway can:
      1. (i)
        wait until there are no cars coming and safely exit the driveway; or
      1. (ii)
        wait for a gap in the traffic and exit the driveway; and
    4. although Mr Pekol has not assessed how long the wait time would be, neither of those situations are unacceptable for these residents.  It would be within the reasonable expectations of residents of 124 Buckley Road to experience some delay or inconvenience when departing their access driveway onto Buckley Road given the road carries a high volume of traffic.  Delay or inconvenience is not a novel concept for drivers exiting the access driveway.  There is nothing unacceptable in those circumstances.
  2. [347]
    Overall, I am satisfied that Mr Pekol’s third traffic reason does not warrant refusal of the proposed development, nor is it a sufficient reason to reject the design solution advanced by Lancorp Pty Ltd.
  3. [348]
    Mr Pekol’s fourth traffic reason warranting refusal is that the proposed development would introduce additional vehicle queues in Buckley Road, across from The Hub Convenience Centre access, adversely affecting local traffic safety.
  4. [349]
    In respect of this issue, Mr Pekol accepts that Mr Holland’s further analysis demonstrates that the vehicle queuing in Buckley Road would not extend past the The Hub Convenience Centre access.  This addresses his concern relating to the right turn from Buckley Road to The Hub Convenience Centre access.  However, Mr Pekol takes issue with change to the design that introduces a two-stage pedestrian crossing.  In his opinion, a two-stage pedestrian crossing would result in a significantly lower compliance rate than a single-stage pedestrian crossing, thereby increasing a risk of pedestrian crashes.
  5. [350]
    In Mr Douglas’ view, the introduction of a two-staged pedestrian crossing is appropriate because it keeps queues shorter overall across this intersection and it helps to protect The Hub Convenience Centre access.  Mr Douglas also considers it relevant that there are other pedestrian crossings at the Buckley Road intersection.  The two-stage crossing would serve as an additional crossing opportunity.  This is not a scenario where an existing pedestrian access is being downgraded, which might bring with it higher risks of inappropriate pedestrian behaviour.  
  6. [351]
    I prefer the evidence of Mr Douglas to that of Mr Pekol.  I am satisfied that the proposed two-stage pedestrian crossing will not give rise to unacceptable safety risk given:
    1. there will be a low volume and frequency of pedestrians using the crossing – about five pedestrians per hour;
    2. a two-stage crossing is not complicated;
    3. Mr Pekol accepts that the volume and frequency of pedestrians using the crossing and the lack of complexity to the arrangement are matters that are relevant to the assessment of safety risks;
    4. although the Guide to Road Design Part 4: Intersections and Crossings: General produced by Austroads says “avoid staged crossings wherever practicable”, it is only a guide;
    5. a two-stage crossing is a common traffic control device in South East Queensland;
    6. there are other pedestrian crossings at the Buckley Road intersection; and
    7. the two-stage crossing would serve as an additional crossing opportunity.
  7. [352]
    Ultimately, the overall effect of Mr Pekol’s evidence was that a two-stage pedestrian crossing is undesirable.  That is not the relevant test.  A less than optimal solution is not unacceptable.  As I have already observed, in the real world, traffic outcomes are not required to be perfect.  The question is whether they are acceptable.  That test is met by the proposed two-stage crossing.
  8. [353]
    Further, having regard to Mr Holland’s evidence, I am satisfied that there is no unacceptable safety risk arising from the right turn from Buckley Road to The Hub Convenience Centre access, even when there is a queue past the access to The Hub Convenience Centre.  Mr Holland has sufficiently demonstrated that there is adequate visibility for drivers turning right into the access for The Hub Convenience Centre to alert drivers to cars that are travelling north.
  9. [354]
    For those reasons, I am satisfied that Mr Pekol’s fourth traffic reason does not warrant refusal of the proposed development, nor is it a sufficient reason to reject the design solution advanced by Lancorp Pty Ltd.
  10. [355]
    Mr Pekol’s final traffic reason warranting refusal is that the proposed development would adversely affect traffic operations and safety on Uhlmann Road.  During his cross-examination, Mr Pekol accepted that the proposed installation of a detector loop light signal at the Uhlmann Road access would resolve his concerns.  As such, this is not a traffic reason that warrants refusal of the proposed development, nor is it a sufficient reason to reject the design solution advanced by Lancorp Pty Ltd.
  11. [356]
    What then of the alternative design solution advanced by Mr Pekol?
  12. [357]
    I am satisfied that Mr Pekol’s design solution is not advanced by him to achieve utopia, nor is it redolent of a counsel of perfection.  Rather, it reflects his genuinely held professional opinion that it produces preferable outcomes in circumstances where, due to existing circumstances, utopia cannot be achieved. 
  13. [358]
    I am persuaded that the designs advanced by Mr Holland and Mr Pekol are both appropriate.  Each has merit as well as limitations. 
  14. [359]
    Mr Douglas’s oral evidence about the respective merit of the two competing designs was persuasive.  He explained:

“…I think the arrangement with the signalised access on Buckley Road makes more sense in that, I think something like 60 per cent of the homebound trips want to turn right and head north up Buckley Road. By forcing them to come out onto Uhlmann Road, those trips have to turn right onto Uhlmann Road at what would then have to be a signalised intersection and then turn right again at the Buckley Road, Uhlmann Road intersection, whereas, under the current scenario, that right turn doesn’t have a second impact on that major intersection. So in my view, what we’re primarily trying to do is minimise the impact on the Buckley Road, Uhlmann Road intersection. The others are kind of more minor intersections that can run almost a slave to what the main intersection’s doing. Under Mr Pekol’s scenario, the traffic – the predominant kind of pm peak drop-in homebound trip would go through that intersection to enter via Uhlmann Road and then would exit via Uhlmann Road and then have to go back through that intersection again as a right turn. That second right turn coming out on Buckley Road, to me, is – is – it’s important to unnecessarily run that through the intersection. So in balance, I much prefer the signalised access or egress at the northern edge on Buckley Road.”

(emphasis added)

  1. [360]
    Ultimately, it is unnecessary for me to determine which design is preferable.  For the reasons explained by Mr Holland and Mr Dougals in their evidence, I am satisfied that the design now proposed by Lancorp Pty Ltd and the Council is acceptable.  It will achieve compliance with performance outcome PO25 of the Rural residential zone code (and, were it relevant, performance outcome PO40 for the Local centre precinct of the Centre zone code).  In those circumstances, there is no reason to impose a condition that would require Lancorp Pty Ltd to develop in accordance with the design advanced by Mr Pekol.
  2. [361]
    I am satisfied that it is appropriate to impose conditions of the type referred to in paragraph [329] above and require the proposed development to be developed in accordance with the plans in Exhibit 10.06 and the design advanced by Mr Holland, including the incorporation of a detector loop at the Uhlmann Road access intersection.
  3. [362]
    I am also satisfied that the evidence establishes that the proposed development provides positive traffic benefits.  As was accepted by Mr Pekol:
    1. the proposed development will introduce new bus stops and inbound bus bays along Buckley Road, which will promote public transport options and result in a positive traffic outcome;
    2. the proposed land dedication will increase the capacity of the road to accommodate future traffic growth in the area;
    3. the current operation of the access to The Hub Convenience Centre is running close to capacity at certain times of the day, which is either sub-optimal now or will become sup-optimal; and
    4. the proposed development results in an improvement to the right turn access to The Hub Convenience Centre by achieving a central median zone.
  4. [363]
    These positive benefits support approval of the proposed development.

Key issue 4 – What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?

  1. [364]
    Lancorp Pty Ltd and the Council rely on several relevant matters that they say arise for consideration under s 45(5)(b) of the Planning Act 2016.  They are framed in paragraph 5 of Exhibit 8.13 in the following terms:

“(a)the proposed development furthers the outcomes sought by the Strategic Framework in that:

  1. it provides ease of access to facilities and services;
  1. it achieves a consolidated settlement pattern and compact urban form;
  1. it achieves a more efficient land use and development pattern by:
  1. (A)
    encouraging more intense development and a greater mix of uses at targeted locations within the Urban Footprint;
  1. (B)
    integrating into existing neighbourhoods in a spatially cohesive manner to help create walkable communities with an emphasis being placed on active transport and access by transit;
  1. (C)
    directing growth away from areas of higher risk of natural hazards;
  1. it includes a mix of land uses appropriate for a local centre which serve the surrounding communities;
  1. it provides street fronting retail and non-retail commercial layouts;
  1. it provides attractive, high-amenity public spaces at locations that encourage and support social interaction, casual meeting and healthy and active lifestyles;
  1. it reduces the length and frequency of car trips;
  1. it provides complementary land uses which encourage shorter trips and a higher level of linked trips and provide opportunities for communal parking;
  1. it provides an appropriate range of community facilities and services to cater for the planning area community;
  1. it will be located on a central intersection with good accessibility and visibility, in a location that supports active transport and a network of well connected and attractive streets and open spaces within the neighbourhoods and will maintain an appropriate separation distance between catchments;
  1. it is managed to mitigate detrimental impacts on residential amenity;
  1. it provides essential convenience shopping and community facilities;
  1. the proposed development is consistent with the outcomes sought by the planning scheme for establishing a new local centre on non-centre zoned land;
  1. the proposed development achieves the outcomes sought by the Rural Residential Zone Code specific to the uses proposed;
  1. the matters outlined in paragraphs 2 to 27 of the Co-Respondent’s Amended Statement of Grounds for Approval dated 18 November 2022.”
  1. [365]
    The Co-Respondent’s Amended Statement of Grounds for Approval dated 18 November 2022 is Exhibit 1.04.  The matters outlined in paragraphs 2 to 27 thereof are:

“2. There is a town planning, community and economic need for the proposed development.

  1. The locality is experiencing rapid, substantial population growth.
  2. The proposed development would fill a geographical gap in supermarket provision.
  3. The proposed development would add choice, competition, and convenience for important day-to-day grocery and other convenience products and services, which would otherwise be under-represented to residents of the locality.
  4. Further residential development in the locality means that there is an increasing need for facilities such as are included in the proposed development.
  5. The proposed development will benefit consumers through greater choice leading to reduced prices and costs.
  6. The proposed development will provide a facility operated by a credible major national supermarket operator, Woolworths.  Accordingly, it will:
  1. provide a facility which is operated by a tenant with a demonstrated popularity and preference for consumers;
  1. provide the full range of grocery products and goods which modern consumers expect from such a facility;
  1. enhance choice, competition, and convenience in supermarket shopping in the locality; and
  1. provide increased visitation and activity in the centre to the benefit of customers, and other retail and service providers in the centre.
  1. The proposed development has a committed anchor tenant.
  2. Approval of the proposed development will provide for the existing and growing need in a timely manner.
  3. The proposed development would result in efficiencies based on a mix of uses and services being located together on the subject land, such as shopping centre, food and drink outlet, indoor sport and recreation, office, service industry, shop and veterinary services.
  4. The proposed development would provide enhanced employment opportunities (both during construction and the ongoing operation of the proposed development) for the community.
  5. Approval of the proposed development would result in positive economic and social benefits for the community.
  6. The proposed development is well located as it:
  1. is located on major roads (at the corner of an Arterial Road and a Sub-Arterial Road), accessible and convenient to the catchment that it would serve;
  1. is in close and convenient proximity to other important land uses including significant existing and future housing developments; and
  1. is easily accessible for vehicles, bicycles and pedestrians, and would result in the delivery of enhanced facilities for pedestrians and cyclists; and
  1. is able to be serviced by public transport
  1. The proposed development will result in a reduction in travel costs for customers, and a reduction in the length and number of vehicle trips on the road network, as approval would facilitate more convenient access to supermarket and other facilities regularly utilised by most customers.
  2. The proposed development will complement and consolidate existing retail and commercial uses in the immediate locality, and collectively, they provide the community access to the full function and scale of a local centre, including:
  1. medical, childcare and convenience uses and services at The Hub on the north-west corner of the major intersection of Buckley Road and Uhlmann Road;
  1. a service station and a child care centre on the south-east corner of the major intersection of Buckley Road and Uhlmann Road.
  1. The design, layout and construction of the proposed development:
  1. is of a high standard and quality; and
  1. appropriately responds to the amenity and character of the surrounding locality.
  1. The proposed development is well serviced by car parks and has an appropriate internal vehicular layout.
  2. The proposed development would provide road upgrades which:
  1. address future projected impacts from traffic growth (excluding the proposed development), as well as the traffic generated by the proposed development; and
  1. accommodate future delivery of active and public transport infrastructure.
  1. The proposed development would not unacceptably affect the hierarchy of centres contained in the Planning Scheme.
  2. The proposed development would not unacceptably affect the operation of any centre included in the hierarchy of centres contained in the Planning Scheme.
  3. The subject land does not exhibit a semi-rural or bushland amenity and character described in the purpose of the Rural Residential Zone Code under the Planning Scheme, considering its location on the corner of a major intersection and the surrounding non-residential uses in the immediate locality.
  4. The current non-residential use of the subject land and its “Community activity” designation under the Planning Scheme support the subject land to be used for non-residential uses.
  5. The subject land has limited constraints and given its size and location, is suitable for the proposed development.
  6. The benefits of the proposed development to the community outweigh any costs and disbenefits to the community.
  7. The proposed development would not result in any unacceptable impacts.
  8. The Council approved the proposed development, and in the Negotiated Decision Notice dated 17 June 2022 decided that:
  • The site is located on the corner of a major intersection for two high order roads (Buckley being arterial and Uhlmann being sub-arterial) and for this reason the immediate areas is (sic) does not exhibit high amenity typically associated with a rural residential area.
  • The site is located at the corner of an intersection supporting other commercial uses with a service station and childcare centre to the south and a neighbourhood hub to the west.  As such, the proposed commercial uses would reflect the existing character of the immediate area and not erode a high amenity rural residential area.
  • Part of the site has recently been utilized for non-residential uses, being a Tennis centre and is included with a Community Activity overlay under Council’s planning scheme lending support to non-residential uses on the site.
  • The applicant has demonstrated an economic need for a local shopping centre in the medium to longer term.”
  1. [366]
    North Harbour Holdings Pty Ltd relies on several relevant matters that it says arise for consideration under s 45(5)(b) of the Planning Act 2016.  They are framed in paragraph 6 of Exhibit 8.13 in the following terms:

“(a) there is no, or no sufficient, community, economic or town planning need for the proposed development on the Land;

  1. approval of the proposed development would give rise to unacceptable economic impacts upon existing, pending and planned local, and other retail and/or commercial centres;
  1. approval of the proposed development would compromise the effective function of centres provided for by the planning scheme;
  1. approval of the proposed development is inconsistent with community expectations for the development of the Land, as duly informed by the planning scheme.”
  1. [367]
    During final submissions, North Harbour Holdings Pty Ltd indicated that it no longer persists with the matter raised in paragraph (d) about community expectations given it is informed by the assessment against the Planning Scheme.  The concession was appropriate and is appreciated.
  2. [368]
    I have already addressed many of these matters in my reasons above.  Many of them effectively involve an assessment against provisions of the Strategic Framework.  It is sufficient to record here that I am satisfied that the evidence establishes:
    1. those matters referred to in paragraphs 5(a)(i), (ii), (iii)(A) and (C), (vi), (vii), (viii), and (xi) of Exhibit 8.13;
    2. to an extent, those matters referred to in paragraphs 5(a)(iii)(B), (v), (x) and (b) of Exhibit 8.13;
    3. those matters referred to in paragraphs 18, 19, 22, 24, and 26 of Exhibit 1.04; and
    4. to an extent, those matters referred to in paragraph 17 of Exhibit 1.04.
  1. [369]
    These are relevant matters that support approval of the proposed development.
  2. [370]
    A footnote with respect to paragraph 5(c) of Exhibit 8.13 indicates that the allegation is, in effect, a contention of compliance with performance outcomes PO77, PO78, PO79 and PO93 of the Rural residential zone code.  Those performance outcomes relate to car parking, bins and bin storage, on-site landscaping and the appropriate location for veterinary services.  I am satisfied that the evidence establishes compliance with each of these, other than the requirement in performance outcome PO79 b. that on-site landscaping is provided that retains mature trees wherever possible.  These matters of compliance support approval of the proposed development.
  3. [371]
    As for the matter referred to in paragraph 23 of Exhibit 1.04, although the existing lawful use is relevant.  It informs the existing character of the area.  That said, by itself, it does not lend material support to the case for approval.
  4. [372]
    The matter in paragraph 27 of Exhibit 1.04 does not lend meaningful support to the case for approval.
  5. [373]
    Lancorp Pty Ltd has not established its contention in paragraph 17 of Exhibit 1.04 that the construction of the proposed development is of a high-quality standard and appropriately responds to the amenity and character of the surrounding locality.  Although I have no reason to doubt that the construction will achieve those matters, the issue as framed assumes that the proposed development is already constructed, which it is not.
  6. [374]
    The balance of the matters raised by the parties can be dealt with by addressing the issue of need for the proposed development.

Key issue 5 – Is there a need for the proposed development?

  1. [375]
    Lancorp Pty Ltd contends that there is a town planning, community and economic need for the proposed development.  It relies on that issue as a relevant mater in support of approval.  The Council supports that contention. 
  1. [376]
    This is not a case where North Harbour Holdings Pty Ltd contends that there is no need for a new local centre to provide further retail and commercial uses to the east of the Bruce Highway.  Rather, as I have identified in paragraph [366] above, North Harbour Holdings Pty Ltd contends:
    1. there is no, or no sufficient, community, economic or town planning need for the proposed development on the subject land;
    2. approval of the proposed development would give rise to unacceptable economic impacts on existing, pending and planned local, and other retail and commercial centres; and
    3. approval of the proposed development would compromise the effective function of centres provided for by the Planning Scheme.
  2. [377]
    North Harbour Holdings Pty Ltd says that the proposed development:
    1. is an opportunistic attempt to capitalise on the emerging master planned residential community being established by North Harbour Holdings Pty Ltd; and
    2. relies upon the critical mass of population generated by that development to sustain its trade area, whilst ignoring the clear requirements of the Planning Scheme as to the appropriate location of out of centre development.
  3. [378]
    Lancorp Pty Ltd and the Council disagree.  They say several factors evidence a need for the proposed development.
  4. [379]
    The respective allegations give rise to three key factual issues for determination, namely:
  1. Does the evidence establish a latent unsatisfied demand for a new local centre?
  2. Is the latent unsatisfied demand appropriately met on the subject land?
  3. Is there other evidence that demonstrates a need for the proposed development?
  1. [380]
    To assist me with determining those issues, I had the benefit of evidence that included, but was not limited to:
    1. expert evidence from Mr Sean Stephens, Mr Marcus Brown and Mr Justin Ganly, the economics experts retained by Lancorp Pty Ltd, the Council and North Harbour Holdings Pty Ltd respectively;
    2. evidence from Mr Anthony Ross Duggan, the Regional Property Manager for Woolworths Group Limited about Woolworths Group Limited’s interest in the proposed development;
    3. evidence from Mr Thomas Lancini on behalf of Lancorp Pty Ltd, who gave evidence of other retail tenants interested in occupying the proposed development; and
    4. Mr Bryan Finney, a project director employed by North Harbour Holdings Pty Ltd, who gave evidence about North Harbour Holdings Pty Ltd’s intentions to develop a local centre.
  2. [381]
    My findings below are not attributable to a single statement by an expert.  They reflect the aggregate impression that I have formed having regard to the collective effect of the evidence to the extent that it is accepted by me. 
  3. [382]
    That said, at the outset I note that, in terms of the expert evidence, I generally prefer the evidence of Mr Stephens and Mr Brown to that of Mr Ganly for two reasons. 
  4. [383]
    First, the evidence of Mr Stephens and Mr Brown is more closely aligned with, and supported by, other evidence that I accept, and their opinions are supported by cogent explanations. 
  5. [384]
    Second, I have reservations about the reliability of the evidence of Mr Ganly.  Those reservations are informed by, amongst other things, my observation of his evidence, including during cross-examination.  It seems to me that Mr Ganly’s opinions are infected by a strongly held view that a new local centre will be delivered at North Harbour.  He maintained that view even though there is no extant right to develop a local centre at North Harbour and there is no design, precise location or prospective tenants for such a centre.  Despite their absence, during his evidence, Mr Ganly strongly advocated the benefits of North Harbour Holdings Pty Ltd’s local centre over those of the proposed development.  Mr Ganly’s approach does not sit comfortably with long recognised principles that tell against adopting a “better site’” test when assessing need.
  6. [385]
    Before turning to the evidence, and my findings about the key questions, it is useful to record some general principles that inform and guide an assessment of need.

What are the general principles that inform and guide an assessment of need?

  1. [386]
    The existence of a need for the proposed development is relevant under s 45(5)(b) of the Planning Act 2016.
  2. [387]
    The general principles that inform and guide an assessment of need are well-settled.  Many of them are conveniently summarised in Isgro v Gold Coast City Council & Anor,[44] wherein His Honour Judge Wilson SC (as His Honour then was) stated:[45]

“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 not being adequately met.”

  1. [388]
    Need, in the town planning sense, does not mean a pressing need or a critical need or even a widespread desire but relates to the well-being of the community.[46]  Planning need is also not limited to the need for the proposed development on the particular site in question and no other site.  The existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter, depending on all the circumstances of the case.[47]
  2. [389]
    It must be remembered that these are general statements of principle that inform and guide an assessment of need.  They are not a checklist that must be established in every case.  Rather, the assessment of need in this context is a flexible process.  This has long been recognised.  It was again confirmed by the Court of Appeal recently in Yorkeys Knob BP Pty Ltd v Cairns Regional Council.[48] 
  3. [390]
    Need is a relative concept to be given a greater or lesser weight depending on all the circumstances that the decision maker is to consider.[49]  Whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors.[50] At the end of the day, whether there is a need for a proposed development is a question of fact.[51]
  4. [391]
    The nature of the proposed use is also relevant to a consideration of need.[52]  As was observed by His Honour Judge Wilson SC (as his Honour then was) in Parmac Investments Pty Ltd v Brisbane City Council & Ors:[53]

“In a recent decision of the Court of Appeal, Yu Feng Ltd v. Brisbane City Council [2007] Q.C.A. 382 Williams JA described the phrase “overwhelming community need” as a “motherhood statement” — a phrase which the Australian Oxford Dictionary defines as “... platitudinously endorsing that which everyone accepts as worthy”.  The point his Honour was, with respect, making is that the meaning and effect of the phrase will vary enormously from case to case and when, as here, the need to be satisfied involves the daily essentials of ordinary life, the bar should not be set too high; and, when the planning scheme indicates a deliberate planning decision to provide an opportunity for appropriate convenience retail facilities to satisfy those needs, and where there are no unacceptable impacts on amenity, the efforts required to demonstrate need at that level are not onerous.”

(emphasis added)

  1. [392]
    This approach has been long recognised by this Court.[54] 
  1. [393]
    In the Moreton Bay Regional Council local government area, the importance of appropriate convenience retail facilities to provide the daily essentials of ordinary life is reflected in the Planning Scheme.  The Planning Scheme anticipates the possibility of new local centres in unplanned locations, including in rural residential neighbourhoods, where there is a need to provide essential convenience shopping and community facilities for residents.
  2. [394]
    With those general principles in mind, I turn to consider whether there is a latent unsatisfied demand for a new local centre.

Does the evidence establish a latent unsatisfied demand for a new local centre?

  1. [395]
    The demand for a new local centre east of the Bruce Highway was considered by the economics experts.  There was agreement between the experts about many integers that inform whether there is a latent unsatisfied demand.
  2. [396]
    The economics experts agree:
    1. the proposed development is a relatively contemporary development for a supermarket-based shopping centre that proposes a specialty retail component that is of a scale generally consistent with current expectations for a supermarket-based centre;
    2. there is presently no full-line supermarket located in the defined main trade area;
    3. there is a need for further supermarket-based shopping centres in this locality, although the experts disagree about the strength of the need;
    4. there is a commercial commitment from Woolworths Limited to operate a supermarket in the proposed development.  Given Woolworths Limited is Australia’s largest supermarket operator, a level of certainty of delivery can be inferred from its commitment;
    5. a Woolworths supermarket of the scale identified (being 3,300 square metres) will be a modern, full-line supermarket with a comprehensive range of store amenities;
    6. as compared to a limited line supermarket, a full-line supermarket has greater provision of fresh food product categories;
    7. the proposed new full-line supermarket at Burpengary East will likely include:
      1. (i)
        a full range of fresh dairy produce;
      1. (ii)
        a hot and cold chicken department;
      1. (iii)
        a delicatessen;
      1. (iv)
        a fresh seafood counter;
      1. (v)
        a meat counter;
      1. (vi)
        a bakery; and
      1. (vii)
        a large fresh fruit and vegetable display and sales area;
    8. full-line supermarkets operated by Woolworths and Coles are a contemporary feature of the retail sector operating across urban areas of Australia, with stores of 3,200 square metres and above being the dominant supermarket typology today;
    9. the plans for the subject land indicate the presence of facilities tailored to support what Woolworths term “Direct to Boot” purchases, including dedicated lanes and parking bays located on the northern side of the store; and
    10. there are expressions of interest for specialty retail tenancies.
  3. [397]
    The experts also agree that a trade area defines a geographic area from which a centre will draw consistent and significant levels of patronage and sales.  The definition of a trade area allows one to understand the resident population to be served by a centre.  Not all sales are expected to be generated from the resident population of a trade area.  The experts recognise that there is potential for additional sales from passing trade and other sales generated by people who do not reside in the main trade area.  
  4. [398]
    The experts defined an agreed main trade area for the proposed development by considering:
    1. the local road network and accessibility to the subject land from the surrounding region, including the exposure to both Buckley Road and Uhlmann Road;
    2. the location, function and relative attractiveness of other centres, in particular centres that the Planning Scheme identifies as higher order centres, specialised centres, district centres and local centres and which contain supermarkets, specialty shops and other facilities (including discount department stores at Morayfield and Burpengary);
    3. the region’s topographical features that influence accessibility of the subject land, including consideration of the Caboolture River, Moreton Bay and Burpengary Creek; and
    4. current and expected urban development patterns in the surrounding area and the relevant intentions of the Planning Scheme for urban growth in Burpengary East and adjacent suburbs.
  5. [399]
    The main trade area that was agreed is illustrated on Map 9 in the Joint Experts’ Report – Need.  It is comprised of two sectors, which are referred to as the main trade area east and the main trade area west.  The main trade area east is generally bounded by the Caboolture River to the north and east, Burpengary Creek to the south, and the Bruce Highway to the west.  The main trade area west extends west of the Bruce Highway to the rail corridor.
  1. [400]
    The economics experts use the main trade area to analyse the demand for a new local centre at Burpengary East.  The analysis does not reflect an exclusive catchment, i.e., it does not assume that a centre will attract all relevant sales from within the geographic area. 
  2. [401]
    There are differences between the experts about the extent of sales that would be consistently drawn from the main trade area east and main trade area west.  It is unnecessary to resolve that disagreement in this case.  It does not affect whether there is a latent unsatisfied demand.
  3. [402]
    The experts agree on the estimated population in the main trade area and the population projections for 2026.  Having regard to the results of the 2021 ABS Census of Population and Housing, the experts agree that:
    1. in 2021, the population residing in the main trade area is 9,550 people, comprising 6,740 people who reside in the main trade area east and 2,810 people who reside in the main trade area west; and
    2. by 2026, the population residing in the main trade area is projected to increase to 12,060 people, comprising 8,640 people who reside in the main trade area east and 3,420 people who reside in the main trade area west.
  1. [403]
    The economics experts agree that it is reasonable to assume that, if approved, the proposed development will be constructed in time to facilitate its first full year of trading in 2026. 
  2. [404]
    Each of the experts undertook their own analysis of the demand for further supermarket floorspace.  They adopt different methodological approaches. 
  3. [405]
    Mr Stephens opines that there is strong demand for a further supermarket.  His opinion is premised on two matters. 
  4. [406]
    First, Mr Stephens says that a full-line supermarket is often generally supportable by demand where a population threshold of 8,000-plus persons is achieved.  He considers that this is particularly the case in outer suburban areas experiencing rapid urban development and population growth, as is the case with the main trade area here.  He says this is a useful benchmark to apply as a starting point. 
  5. [407]
    Second, Mr Stephens undertook an expenditure analysis to predict demand.  He forecasts that, in its first full year of trading, the supermarket will achieve sales of $38.9 million or $11,800 per square metre.  He says that this reflects a strong initial trading performance for a major supermarket and the opportunity to provide a range of supporting specialty shops.  He notes that his analysis is consistent with existing commitments from Woolworths and four specialty tenants.
  6. [408]
    Mr Brown says population thresholds should be applied with caution as the layout of a retail network can influence when and how often such a threshold applies.  He typically uses a threshold of 8,000 to 10,000 persons as a screening tool rather than relying on it as a definitive rule.  In Mr Brown’s view, the relatively contained nature of Burpengary East means that an appropriately located supermarket within the catchment could be supported by a population in the order of 8,000 to 10,000 persons.  He is of the view that the ability of the proposed development to draw a portion of its trade from the main trade area west contributes to its overall catchment and, to a degree, offsets some of the ongoing leakage that will occur from the main trade area east to the broader centres network.
  7. [409]
    Mr Brown also undertook an expenditure analysis.  Although he adopted slightly different assumptions about market penetration in the various sectors of the main trade area, his forecast was very similar to that of Mr Stephens.  He opines that there is sufficient demand in 2026 to achieve benchmark trading levels of over $11,000 per square metre for the supermarket and over $8,000 per square metre for the speciality tenancies.
  1. [410]
    Mr Ganly agrees with Mr Brown that the trade area population base of 8,000 to 10,000 is a useful rule of thumb.  However, he considers this does not reflect the realities of full-line supermarket provision rates.  Mr Ganly analysed the current provision of supermarkets that are 2,500 square metres or larger within the Brisbane metropolitan area and determined that there are 198 such supermarkets for a population of 2.605 million people.  He says that this corresponds to an average population of 13,159 people per full-line supermarket, which is well above the 8,000 to 10,000 level in the rule of thumb.  Mr Ganly does not explain the relevance of this to his opinions about need, nor does he say that these matters demonstrate that using a population base guide of 8,000 to 10,000 is not appropriate.   
  1. [411]
    Mr Ganly did not contest the expenditure analysis and forecasts prepared by Mr Stephens and Mr Brown, nor did he undertake his own expenditure analysis.  He says that the expenditure levels are about 12 per cent below the current average trading level for Woolworths.  Mr Ganly does not explain the relevance of this observation to his opinions about need.
  2. [412]
    Mr Ganly’s observations do not cause me to doubt the legitimacy of the opinions expressed by Mr Stephens or Mr Brown for two reasons.  First, he does not opine that they demonstrate a flaw in their methodology or analysis.  Second, both matters are demonstrative of a current undersupply of supermarkets in the Brisbane metropolitan area.  That was confirmed by the evidence of Mr Duggan, who says that Woolworth Limited is actively seeking to fill gaps in the Brisbane market.
  3. [413]
    To assess the extent of demand for further supermarket floorspace, Mr Ganly undertook a floorspace analysis.  Having regard to the current Brisbane metropolitan average for supermarket floorspace provision per capita of 400 square metres, Mr Ganly opines that in 2026 there will be demand for a further 3,249 square metres of supermarket floorspace to serve the population of the main trade area east.  He considers that the main trade area west population is not relevant to an analysis of demand.
  4. [414]
    Another significant consideration in the economics experts’ assessment of need was the existing supply.  In that respect, the experts agree that, although there is an existing network of centres that operates in the broader region surrounding the subject land, all the existing centres are beyond the main trade area and west of the Bruce Highway.  There is a neighbourhood hub across the road from the subject land, being The Hub Convenience Centre.  It contains an IGA of 865 square metres.  It is sufficient to meet only very basic convenience grocery needs.
  5. [415]
    Having regard to their respective analysis, the economics experts opine that there is a need for the proposed development on the subject land.
  6. [416]
    Taken in combination, the population of the main trade area and the absence of a full-line supermarket in the main trade area demonstrate to me that there is a latent unsatisfied demand for a new local centre.  I accept the evidence of Mr Stephens and Mr Brown in this regard.  The demand is also supported by Mr Ganly’s floorspace analysis.
  7. [417]
    Three other aspects of the evidence support the conclusion of the economics experts and demonstrate the existence of a latent unsatisfied demand. 
  8. [418]
    First, there is evidence of a strong interest from tenants.  Australia’s most popular supermarket brand, Woolworths, has signed an agreement for lease in respect of the proposed development.  This supports the evidence of the economics experts that there is a need for a full-line shopping centre within this locality.  It also provides a degree of certainty that the proposed development will occur and be viable.  In addition to the commitment from Woolworth Limited, there are expressions of interest from Little Red Dumpling, Burpengary East Newsagent, Priceline and Wara Sushi.  When those expressions of interest are considered in combination with the commitment of Woolworths for the supermarket and affiliated liquor store, over 80 per cent of the proposed development has tenant interest or commitment.
  9. [419]
    Second, the existence of a latent unsatisfied demand is supported by:
    1. the predicted first year sales of the proposed Woolworths supermarket being in the order of $38.9 million; and
    2. the evidence of Mr Duggan that such a level of sales is indicative, to Woolworths Limited, of reasonably strong commercial sales for a first year of trading. 
  10. [420]
    Mr Ganly accepts that such a level of sales demonstrates a supermarket will be viable.
  11. [421]
    Third, the latent unsatisfied demand is supported by the extent of population that is presently required to cross the Bruce Highway to access a full-line supermarket-based shopping centre.  At present, the residents of the main trade area east must travel to Burpengary or Morayfield to obtain access to a full-line supermarket.  This does not represent good accessibility to essential convenience shopping.

Is the latent unsatisfied demand appropriately met on the subject land?

  1. [422]
    North Harbour Holdings Pty Ltd raises three matters that it says tell against the appropriateness of meeting any unsatisfied demand on the subject land.  It alleges that:
    1. approval of the proposed development would have unacceptable trading impacts on The Hub Convenience Centre;
    2. the latent unsatisfied demand could be met on land owned by North Harbour Holdings Pty Ltd; and
    3. the proposed development would result in serious and material non-compliance with the clear strategy of the Planning Scheme regarding the location of out of centre development.
  2. [423]
    I have already dealt with the third allegation.  It is not established on the evidence.

Will approval of the proposed development have unacceptable trading impacts on The Hub Convenience Centre?

  1. [424]
    As I have mentioned, North Harbour Holdings Pty Ltd contends that approval of the proposed development would have unacceptable trading impacts on The Hub Convenience Centre.  It submits that the impact of the proposed development will be unacceptably high and will significantly weaken the ability of The Hub Convenience Centre to serve the community in the manner envisaged by the Planning Scheme.
  1. [425]
    The economics experts assess the potential impact that approval of the proposed development would have on trading in the Caboolture higher order centre, the Morayfield higher order centre and specialised centre, the Burpengary district centre and The Hub Convenience Centre neighbourhood hub. 
  2. [426]
    The experts explain that their assessments of centre specific impacts are indicative only given the level of uncertainty that exists in relation to how consumers and retailers respond to new competition.  In those circumstances, the experts caution that their assessments should be considered a best estimate based on realistic expectations of changes in consumer visitation and spending.  They consider that it is important to understand the general nature of the impacts that have been forecast and how these impacts can potentially undermine the role and function of the centres hierarchy.
  3. [427]
    Mr Stephens opines that the redirection of sales to the proposed development will likely result in:
    1. the Caboolture higher order centre achieving 2.4 per cent less sales in 2026 than it would achieve absent approval of the proposed development, which equates to about 1.5 per cent more sales than currently enjoyed;
    2. the Morayfield higher order centre and specialised centre achieving 1.6 per cent less sales in 2026 than it would achieve absent approval of the proposed development, which equates to about 5.3 per cent more sales than currently enjoyed;
    3. the Burpengary district centre achieving 7.2 per cent less sales in 2026 than it would achieve absent approval of the proposed development, which equates to about 0.7 per cent less sales than currently enjoyed; and
    4. The Hub Convenience Centre achieving 20.8 per cent less sales in 2026 than it would achieve absent approval of the proposed development, which equates to about 3 per cent less sales than currently enjoyed.
  4. [428]
    Mr Brown predicts similar levels of impact.  He considers that the impact on The Hub Convenience Centre will be in the order of 22.5 per cent, which equates to a decrease from current sales of about 4.9 per cent. 
  5. [429]
    Mr Ganly did not undertake an impact analysis. 
  6. [430]
    All the economics experts agree that approval of the proposed development on the subject land will not have inappropriate trading impacts on any of the centres in the Moreton Bay Region’s centres network, namely the Caboolture and Morayfield higher order centres, the Morayfield specialised centre and the Burpengary district centre.  Their opinions differ about the acceptability of the trading impacts on the nearby neighbourhood hub.
  7. [431]
    Based on the impact analysis provided by Mr Stephens and Mr Brown, Mr Ganly opines that the relatively significant or severe impact on The Hub Convenience Centre reflects the minimal physical separation between the existing neighbourhood hub and proposed local centre.  Mr Ganly opines that the Planning Scheme seeks to avoid such impacts by nominating a separation distance of 1,800 metres between such centres. 
  8. [432]
    Mr Ganly also considers that the viability of the IGA supermarket at The Hub Convenience Centre could be undermined, which he says would have significant flow-on impacts for other retail and non-retail operations within The Hub Convenience Centre.  In his view, it would be very difficult to re-tenant the 860 square metres of floorspace occupied by the IGA given the neighbourhood hub is relatively large and already has a diverse range of retail and non-retail tenants.
  9. [433]
    Mr Stephens and Mr Brown are more optimistic. 
  10. [434]
    Mr Stephens acknowledges that the initial impact on The Hub Convenience Centre is relatively significant.  He says that the impact needs to be considered in the context that:
    1. the extent of impact is informed by the very rapid growth in spending that is predicated to occur in the main trade area;
    2. comparative to current sales, the reduction is in the order of 3 per cent, which again reflects that the impact on The Hub Convenience Centre is largely associated with a diversion of growth;
    3. beyond 2026, the entire precinct (including both The Hub Convenience Centre and the proposed development) is expected to experience ongoing sales growth equivalent to over four per cent per annum,  assuming a constant market share and that the forecast population growth in the main trade area is achieved; and
    4. the combined destination appeal of the precinct will mutually benefit retailers at The Hub Convenience Centre, the 7-11 and the proposed development on an ongoing basis, including by reason of the road and the increased prospect of the introduction of public transport servicing the area.
  11. [435]
    In Mr Stephen’s opinion, the new and modern full-line supermarket would represent a significant enhancement of the grocery and supermarket facilities available and readily accessible to all main trade area residents, including by reason of its leading direct-to-boot facilities.  He considers that the impacts on individual businesses do not detract from this overall community benefit.
  12. [436]
    With respect to the potential impact on the IGA, Mr Stephens opines that the IGA can respond to the emergence of new competition.  He says that in an environment of ongoing population and demand growth, the IGA cannot reasonably expect no changes to the surrounding competitive context.  It must expect that it may face competition from a full-line supermarket.  In Mr Stephen’s opinion, the IGA can undertake a refurbishment and other changes in response to new competition that will mitigate or minimise the extent of trading impacts occasioned by the proposed development.  In support of his view that adaption is reasonable, Mr Stephens refers to numerous other IGA stores across Australia that are competing with nearby full-line supermarkets.
  13. [437]
    In Mr Stephen’s opinion, in the event the IGA was to close rather than compete with the full-line supermarket at the proposed development:
    1. the new full-line supermarket at the proposed development would more than make good on the overall level of availability of supermarket facilities to the population;
    2. an opportunity would exist for another tenant or tenants to take over the IGA tenancy; and
    3. there would be limited impact on other traders at The Hub Convenience Centre as they do not rely on the IGA as a key anchor tenant.
  14. [438]
    Like Mr Stephens, Mr Brown opines that the significance of the impact on The Hub Convenience Centre should be viewed in the context of the reduction relative to the 2022 sales.  He also considers it likely that the impact would be ameliorated in less than two years.  In Mr Brown’s opinion, the bulk of the impact will be sustained by the IGA, given its turnover is heavily reliant on the sale of groceries.  Mr Brown acknowledges that there is a risk that this could undermine the viability of the IGA or compel the IGA to reposition itself.  In Mr Brown’s opinion, if the IGA were to fail, its tenancy is not so large that it could not be used by other retailers or convenience-oriented tenant (whether that be retail, hospitality or recreation based).  This means that viability of the neighbourhood hub would not be threatened.  Mr Brown also observes that the proposed full-line supermarket would more than compensate the community in the form of broader product range and depth.
  15. [439]
    I prefer the evidence of Mr Stephens and Mr Brown to that of Mr Ganly.  Their opinions are supported by cogent explanations that appropriately recognise the characteristics of The Hub Convenience Centre, including that it is not a neighbourhood hub that is anchored by a grocery store.
  16. [440]
    The observations of Stephen J in Kentucky Fried Chicken Pty Ltd v Gantidis & Anor[55] are pertinent in this regard.  His Honour observed:[56]

“There is one further observation to be made.  The learned primary judge described one submission urged before the Tribunal, namely that the establishment of the appellant’s proposed fried chicken shop would “adversely affect existing food shopping facilities” in the neighbourhood as being just such a consideration as I had earlier held, in Spurling v. Development Underwriting (Vic.) Pty. Ltd., to be a proper planning consideration.  I would with respect, agree with his Honour; the significant word, quite vital to the nature of the submission to which his Honour referred, is “facilities”.  If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development.  However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.”

(emphasis added, footnote omitted)

  1. [441]
    North Harbour Holdings Pty Ltd says that the fact that the resultant community detriment from impact on an existing centre will be made good by the proposed development is of less relevance where there is a hierarchy of centres in the planning scheme and a clear strategy to protect the viability of those centres.  In support of its submission, North Harbour Holdings Pty Ltd refers to the observations of His Honour Judge Rackemann in Fabcot Pty Ltd v Ipswich City Council & Anor,[57] wherein His Honour found:[58]

“That case was concerned with prospective competition between an existing take-away food premises and a proposed Kentucky Fried Chicken outlet.  The passage remains good law in relation to the relevance of competition from a first principles perspective.  Having regard to the age of the case (and its subject matter) however, it is unsurprising that it does not deal with the consequences of economic impact in the context of a contemporary planning scheme featuring a planned network of centres.  In such a context an attempt to simply compare what is offered by a proposed new facility, outside the planned network, to what would be lost or unduly affected within the network, fails to bring to account the public interest in the planned network and the centres which comprise it, as expressed through the planning scheme provisions.  Senior counsel for the appellant acknowledged that one cannot apply the above passage without regard for what the planning scheme says about the centres network.”

  1. [442]
    In this case, it is relevant that the Planning Scheme contemplates the introduction of further local centres in unplanned locations.  That is what is proposed here.
  2. [443]
    On balance, I am satisfied that the level of trading impact is not sufficient to undermine overall trading viability of competing centres, nor their role and function in the hierarchy.  Although there may be a business impact on the IGA, I am satisfied that the impact is unlikely to sound in material consequences for The Hub Convenience Centre given the characteristics of the neighbourhood hub in question.  As I have observed at paragraph [188] above, the uses at The Hub Convenience Centre are dominated by uses from the Community activity group, particularly health care services, not the Retail and commercial activity group.  There is no evidence to suggest that this position will change in the foreseeable future, if at all.  In those circumstances, the colocation of the proposed development with The Hub Convenience Centre will likely consolidate and strengthen the level of self-containment in Burpengary East with respect to food and groceries and other essential convenience shopping and improve the overall attraction and performance of The Hub Convenience Centre. 

Could the latent unsatisfied demand be met on land owned by North Harbour Holdings Pty Ltd?

  1. [444]
    North Harbour Holdings Pty Ltd contends that it is relevant for the Court to consider that the need for a full-line supermarket could equally be satisfied on land in North Harbour in circumstances where:
    1. it is located closer to the critical mass of more intense urban development than the proposed development intends to serve, being the existing and future residents of North Harbour;
    2. as is observed by Mr Pekol, it will be equally accessible to residents of both the main trade area east and the main trade area west but will be surrounded by residential uses such that it will result in a lower proportion of travel by private vehicle and, consequently, less vehicle crashes and lower fuel consumption and emissions;
    3. it is better located to implement the policy intent of the Planning Scheme for local centres to establish in locations that promote walkable neighbourhoods, noting that it will be located directly across a proposed arterial road (that is presently under construction) from 1,150 dwellings, including proposed retirement and aged care facilities; and
    4. as was acknowledged by Mr Brown, approval of the proposed development would be likely to prevent the North Harbour proposal for a local centre from proceeding.
  2. [445]
    North Harbour Holdings Pty Ltd submits that the Court would have a level of confidence that, if the proposed development is refused, the community will not “miss out” on the opportunity to access a further full-line supermarket because one would establish in North Harbour.
  3. [446]
    North Harbour Holdings Pty Ltd accepts that it is not appropriate to carry out a “best site” analysis, but observes that this Court has previously found that the presence of another application in the area, which could satisfy the purported need, is a relevant consideration.  In that respect, North Harbour Holdings Pty Ltd notes that in Ugarin Pty Ltd v Logan City Council & Anor,[59] His Honour Senior Judge Skoien observed:[60]

“There were occasional cases in which there was a genuine contest between competing proposals in which the Court took the realistic view that a comparison was a necessary course to adopt and that approval should be given to that site which provided the most desirable outcome.  Such a course was adopted in Kern Konstruction Pty Ltd v Cairns City Council (1978) 38 LGRA 54, Jennings Industries Ltd v Cairns City Council (1978) 37 LGRA 297 and Raintrees Pty Ltd v Cairns City Council (1978) 37 LGRA 435. Those three appeals concerned three separate sites on which each Applicant proposed a regional shopping centre. They were not heard together but consecutively and Byth DCJ gave judgment in all three on the one day. He held that only one such development was needed and permitted only one to proceed. And in Green v Moreton Shire Council (1985) QPLR 328 Quirk DCJ recognised that where there was an existing application for the same use nearby to the site under appeal it would be artificial to ignore the fact.  At 330-1 he said:

‘If, in a given area, a community need for shopping facilities is identified, and it is also shown that it is unlikely that any site other than the one under consideration can be developed to meet that need, such a matter might add considerably to the combined weight of those factors which favour an approval.  On the other hand, if it is shown that the relevant need of the community is, in the event of a proposal being rejected, likely to be satisfactorily met by the development of another site, those factors which tell against an approval may more readily prevail.  The town planning exercise involves the consideration and resolution of many (and sometimes conflicting) factors.  As I see it, the matter of the competing application is but one of the factors that could be taken into account in considering this application.’”

(emphasis added)

  1. [447]
    More recently, in Abeleda & Anor v Brisbane City Council & Anor,[61] the Court of Appeal confirmed that whether a site is the only available site on which a need could be met is relevant to the weight to be given to need.
  2. [448]
    I accept the relevance of the proposal of a local centre at North Harbour.
  3. [449]
    Here, the evidence does not establish that the need could be met on a site other than the subject land.  As I have identified in paragraphs [134] to [138] above, the likelihood of a local centre being delivered on a site in North Harbour is far from certain.  I am prepared to assume that there is a material possibility of that occurring.  The possibility is to be weighed in the balance when considering whether the proposed development should be approved.

Is there other evidence that demonstrates a need for the proposed development?

  1. [450]
    There are several other matters that are relevant to need that are established on the evidence.
  2. [451]
    First, approval of the proposed development will generate employment and training benefits.  In that respect, it was the unchallenged evidence of Mr Duggan that the supermarket will require a minimum of 60 employees, being a combination of full time, part-time and casual employees.
  3. [452]
    Second, it can readily be accepted that the proposed development will result in enhanced choice, competition and convenience given there is no full-line supermarket in the main trade area.
  4. [453]
    Otherwise, in relation to those relevant matters advanced by Lancorp Pty Ltd that I have extracted at paragraphs [364] and [365] above, I am satisfied that the evidence establishes the matters referred to in paragraphs 5(a)(iv), (ix) and (xii) of Exhibit 8.13 and paragraphs 3, 4, 5, 6, 8(a) to (c), 9, 10, 11, 12, 13, 14, 15, 16 (in part, in that the proposed development will complement existing retail and commercial uses in the existing locality), 20, and 21 of Exhibit 1.04.  These are all matters that demonstrate a need for the proposed development on the subject land and weigh in favour of its approval.
  5. [454]
    I am not satisfied that Lancorp Pty Ltd has demonstrated that the proposed development will lead to reduced prices as alleged in paragraph 7 of Exhibit 1.04.

Conclusion re need

  1. [455]
    For the reasons provided above, I am comfortably satisfied that:
    1. there is a latent, unsatisfied demand for a new local centre in the locality;
    2. the proposed development can appropriately meet that latent, unsatisfied demand on the subject land without any unacceptable impacts on amenity or character;
    3. there is a possibility that a local centre at North Harbour might also address the latent, unsatisfied demand; and
    4. the well-being of the community would be enhanced by approval of the proposed development on the subject land.  It will improve the ease, comfort, convenience and efficient lifestyle of the community.
  2. [456]
    Overall, I am satisfied that there is a need for the proposed development that weighs in favour of its approval.

Key issue 6 – Should the proposed development be approved in the exercise of the planning discretion?

  1. [457]
    It is well established that whether a development application is to be approved or refused is not necessarily determined by a finding of non-compliance with an assessment benchmark.[62]  The starting point generally remains that the planning scheme is taken to be an embodiment of the public interest.[63]  In most instances, where a planning scheme is not affected by changed circumstances, the decision-maker would give significant weight to it.[64]  Nevertheless, the Planning Act 2016 affords flexibility for an assessment manager, or the Court on appeal, in deciding an impact assessable development application.[65]  The flexibility promulgated by the Planning Act 2016 permits approval of a development application in the face of non-compliance with a planning scheme.[66]  This is because the decision can be informed by other relevant matters.[67]  Inherent in the decision-making process is a balancing exercise that is invariably complicated and multi-faceted.  Although the exercise is to be based on the assessment carried out under s 45 of the Planning Act 2016, the way the balance is struck will turn on the facts and circumstances of each case, informed by consideration of the verbiage of the planning scheme to appreciate the degree of importance that the planning scheme attaches to a particular requirement or planning policy.[68]
  2. [458]
    North Harbour Holdings Pty Ltd’s case against approval of the proposed development is founded on four matters.
  3. [459]
    First, the proposed development does not comply with the land use intentions of the Planning Scheme in that it seeks to locate out-of-centre development in a manner that is inconsistent with the requirements of the Planning Scheme.
  4. [460]
    Second, the result of the out-of-centre nature of the proposed development is that it will have significant catchment overlap with the adjacent designated neighbourhood hub and will have significant to severe impacts upon its trading, which impacts are not anticipated and are sought to be avoided by the Planning Scheme.
  5. [461]
    Third, the proposed development does not comply with the requirements of the Planning Scheme in respect of the character and amenity intended for the Rural residential zone.
  6. [462]
    Fourth, consistent with its unplanned nature, the proposed development will have unacceptable traffic impacts, although such impacts could be avoided if the recommendations of Mr Pekol are adopted.
  7. [463]
    North Harbour Holdings Pty Ltd says that these matters sound in appreciable and unacceptable planning impacts.
  8. [464]
    For the reasons outlined above, I do not accept that any of these allegations are established on the evidence.  
  9. [465]
    On balance, I am satisfied that the extent to which the proposed development does not comply with the assessment benchmarks and the other provisions relied on by North Harbour Holdings Pty Ltd[69] should not stand in the way of an approval given:
    1. the matters that I have identified that temper the significance of the non-compliances; and
    2. the relevant matters that I have identified that support approval.
  1. [466]
    What rings with great finality is that the proposed development will deliver a local centre that provides essential convenience shopping and community facilities to residents who do not otherwise have convenient and appropriate access to a full-line supermarket.  It will do so at a convenient location and without detrimental impacts.  These matters sound strongly in favour of approval of the proposed development. 
  2. [467]
    Even if I were to accept that the proposed development was required to, and did not, comply with the requirements of the Planning Scheme about the location of out-of-centre development because of its proximity to The Hub Convenience Centre, the many merits of the proposed development, and a consideration of the overall circumstances that pertain in this case, are such to eclipse that consideration.
  1. [468]
    Overall, the proposed development is meritorious and should be approved subject to the imposition of reasonable and relevant conditions.

Conclusion

  1. [469]
    The Co-respondent has discharged the onus.
  2. [470]
    In due course, the Council’s decision will be set aside and replaced with a decision that approves the development application subject to conditions.  To that end, I will adjourn the appeal for further hearing on 5 June 2024 and I order that:
    1. the Council prepare a draft Judgment that attaches conditions of approval that generally accord with those provided in its negotiated decision notice with necessary amendments to reflect the conditions and plans referred to in paragraphs [329] and [330] above;
    2. unless the Court orders otherwise, the Council is to provide the draft Judgment and conditions to each of the parties by no later than 15 May 2024 and is to file and serve an affidavit exhibiting the relevant correspondence and draft Judgment by no later than 16 May 2024;
    3. unless the Court orders otherwise, if any of the parties contend that the draft Judgment does not adequately reflect these reasons, or otherwise contends that the conditions are not appropriate:
      1. (i)
        the party so contending is to file and serve an outline of argument with respect to such matters, and any additional evidence on which it seeks to rely in that respect, by no later than 22 May 2024;
      1. (ii)
        the other parties are to file and serve any outlines of argument in response, and any additional evidence on which it seeks to rely in that respect, by no later than 29 May 2024; and
      1. (iii)
        the outlines of argument are not to exceed five pages in length and are to provide an estimate of the time required on 5 June 2024 to hear argument about the matters raised.

Footnotes

[1]  Subject to ss 46(2) to (5) of the Planning and Environment Court Act 2016 (Qld).

[2]Planning and Environment Court Act 2016 s 43.

[3] Planning and Environment Court Act 2016 s 45.

[4]  Some of the identified issues were abandoned during the hearing, such as the issue about community expectations.

[5] Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20. 

[6] Planning Regulation 2017 (Qld) s 31 and sch 24.  The regulations prescribe additional matters, but they have not been put in issue in this appeal.

[7] Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1021 [61]. 

[8]Acts Interpretation Act 1954 (Qld) s 32D. 

[9] Planning Act 2016 s 45(5); Acts Interpretation Act 1954 s 14D. 

[10]  [2020] QCA 253; [2021] QPELR 987.

[11]  [2020] QCA 257; [2021] QPELR 1003.

[12]  [2020] QCA 273; [2021] QPELR 1321.

[13]  [2021] QCA 95; [2022] QPELR 309.

[14]  [2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].

[15]  [2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].

[16]Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2021] QPEC 29; [2022] QPELR 609, 660 [268] and 662-3 [279]; Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, 764 [37]; Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, 455 [32] citing Patterson v Hervey Bay City Council [1989] QPLR 184, 186; Castro v Douglas Shire Council [1992] QPLR 146,  158; Landel Pty Ltd v Redland Shire Council [2000] QPELR 60, 73-4; Queensland Adult Deaf and Dumb Society v Brisbane City Council (1972) 26 LGRA 380; Barcoo Pty Ltd v Crows Nest Shire Council [1987] QPLR 242, 247 and Town of Walkerville v Adelaide Clinic Holdings (1985) 38 SASR 161, 171. 

[17]  [2019] QPEC 46; [2020] QPELR 328.

[18]Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 374-5.

[19]  [2019] QPEC 46; [2020] QPELR 328.

[20]  [2019] QPEC 46; [2020] QPELR 328.

[21]  [2019] QPEC 46; [2020] QPELR 328.

[22]  See paragraph [48] above.

[23]  Exhibits 5.01 and 5.02.

[24]AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58].  See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, 381-2 [69]-[71]; SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, 368 [14]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20]. 

[25]  [2014] HCA 9; (2014) 253 CLR 531, 548 [38] (foonotes omitted).

[26]  Read in context, this provision requires new local centres or neighbourhood hubs in the next generation and urban neighbourhoods at Morayfield, Burpengary, north of Caboolture and Caboolture West to maintain an appropriate separation distance from the existing centres in those next generation and urban neighbourhoods to ensure catchment overlap does not occur.  This best achieves the goals with respect to integrated transport.  That situation can be contrasted with the situation in rural residential neighbourhoods, where there is limited public transport and a high dependence on cars.  In those locations, sustainable travel patterns and the reduction in reliance on motor vehicles is more likely to be achieved by providing complementary land uses near each other to encourage a higher level of linked trips and to provide a catalyst for future service by public transport.

[27]AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58].  See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, 381-2 [69]-[71]; SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, 368 [14]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20].  

[28]Taylor v Owners - Strata Plan 11564 & Ors [2014] HCA 9; (2014) 253 CLR 531, 548 [38] (foonotes omitted);

[29]Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39, [38].

[30]  It also indicates reliance on PO2 of the Centre zone code.  This was abandoned during final oral submissions.

[31]McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, 984 [49]; Purcell Family v Gold Coast City Council [2004] QPELR 521, 524 [20]; K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1; (2011) 180 LGERA 278; [2011] QPELR 406, 414 [54]–[56]. 

[32]McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, 990 [72]. 

[33]  This section is extracted at paragraph [109] above.

[34]  This section is extracted at paragraph [109] above.

[35]  This section is extracted at paragraph [109] above.

[36]  This section is extracted at paragraph [109] above.

[37]  This section is extracted at paragraph [109] above.

[38]  This section is extracted at paragraph [109] above.

[39]  This section is extracted at paragraph [220] above.

[40]Jedfire Pty Ltd v Logan City Council [1995] QPLR 41, 43.

[41]Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 399-400 [376].

[42]Jedfire Pty Ltd v Logan City Council [1995] QPLR 41, 43; Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPEC 7; (2008) 160 LGERA 356; [2008] QPELR 480, 483 [16]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 399-400 [376]; Kenlynn v Noosa Shire Council [2019] QPEC 65; [2020] QPELR 834, 841 [31].  

[43]Sumvista Pty Ltd v Redland Shire Council & Anor [2005] QPEC 2; [2005] QPELR 460, 464-5 [29]-[31]; Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272, 276 [21]; Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101; (2008) 166 LGERA 245; [2009] QPELR 435, 452 [123]. 

[44]  [2003] QPEC 2; [2003] QPELR 414, 417-20 [20]-[30].

[45]  [2003] QPEC 2; [2003] QPELR 414, 418 [21].

[46]Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 417-8 [20] citing Watts & Hughes Properties Pty Ltd v Brisbane City Council [1998] QPELR 273, 275 and Cut Price Stores Retailers v Caboolture Shire Council (1984) QPLR 126, 131.

[47]Abeleda & Anor v Brisbane City Council & Anor [2022] QCA 168; [2021] QPELR 1003, 1018 [51].

[48]Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, [30].

[49]Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [20].

[50]Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 [22].

[51]Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39, [53].

[52]  See, for example, Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 419 [27].

[53]Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPEC 7; (2008) 160 LGERA 356; [2008] QPELR 480, 484-5 [30] (endnotes omitted). 

[54]JPF Australia Pty Ltd v Livingstone Shire Council & Anor [2006] QPELR 359, 364 [43]; Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, 455 [35].

[55]  [1979] HCA 20; (1979) 140 CLR 675.

[56]  [1979] HCA 20; (1979) 140 CLR 675, 687.

[57]  [2022] QPEC 11; [2023] QPELR 693.

[58]Fabcot Pty Ltd v Ipswich City Council & Anor [2022] QPEC 11; [2023] QPELR 693, 721 [100].

[59]  [2004] QPEC 1; [2004] QPELR 392.

[60]Ugarin Pty Ltd v Logan City Council & Anor [2004] QPEC 1; [2004] QPELR 392, 400-1 [66].

[61]  [2020] QCA 257; [2021] QPELR 1003.

[62]Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309. 

[63]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1016 [42] and 1019 [54]; Wilhelm v Logan City Council & Ors [2020] QCA 273, [2021] QPELR 1321, 1339 [77]. 

[64]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1015-6 [40]. 

[65]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 804-6 [40]-[51]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 334 [13]-[14]. 

[66]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1019 [53]. 

[67]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1015 [40]. 

[68]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1020 [56]-[57]; IB Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 791, 847-8 [288]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 335-7 [18]-[22].   

[69]  This includes s 6.2.1.5.1 1.l for the Local centre precinct in the Centre zone Code.

Close

Editorial Notes

  • Published Case Name:

    North Harbour Holdings Pty Ltd v Moreton Bay Regional Council & Anor

  • Shortened Case Name:

    North Harbour Holdings Pty Ltd v Moreton Bay Regional Council

  • MNC:

    [2024] QPEC 21

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    08 May 2024

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
AAD Design Pty Ltd v Brisbane City Council[2013] 1 Qd R 1; [2012] QCA 44
6 citations
Jump To
Cite 1 - [2012] QCA 44
Cite 2 - [2012] QCA 44
Cite 3 - [2012] QCA 44
Cite 4 - [2013] 1 Qd R 1
Cite 5 - [2013] 1 Qd R 1
Cite 6 - [2013] 1 Qd R 1
Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003
11 citations
Jump To
Cite 1 - [2021] QPELR 1003
Cite 2 - [2021] QPELR 1003
Cite 3 - [2021] QPELR 1003
Cite 4 - [2021] QPELR 1003
Cite 5 - [2021] QPELR 1003
Cite 6 - [2021] QPELR 1003
Cite 7 - [2021] QPELR 1003
Cite 8 - [2021] QPELR 1003
Cite 9 - [2021] QPELR 1003
Cite 10 - [2021] QPELR 1003
Cite 11 - [2021] QPELR 1003
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
10 citations
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Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Cite 3 - [2020] QCA 257
Cite 4 - [2020] QCA 257
Cite 5 - [2020] QCA 257
Cite 6 - [2020] QCA 257
Cite 7 - [2020] QCA 257
Cite 8 - [2020] QCA 257
Cite 9 - [2020] QCA 257
Cite 10 - [2020] QCA 257
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
3 citations
Jump To
Cite 1 - [2019] QPEC 16
Cite 2 - [2019] QPEC 16
Cite 3 - [2019] QPEC 16
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
3 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Cite 3 - [2019] QPELR 793
Barcoo Pty Ltd v Crows Nest Shire Council (1987) QPLR 242
1 citation
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Cite 1 - (1987) QPLR 242
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
3 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Cite 3 - [2020] QCA 253
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
3 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
Cite 3 - [2021] QPELR 987
Castro v Douglas Shire Council (1992) QPLR 146
1 citation
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Cite 1 - (1992) QPLR 146
Cf Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 480
3 citations
Jump To
Cite 1 - [2008] QPELR 480
Cite 2 - [2008] QPELR 480
Cite 3 - [2008] QPELR 480
Clarry v Brisbane City Council [2024] QCA 39
3 citations
Jump To
Cite 1 - [2024] QCA 39
Cite 2 - [2024] QCA 39
Cite 3 - [2024] QCA 39
Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126
1 citation
Jump To
Cite 1 - (1984) QPLR 126
Fabcot Pty Ltd v Ipswich City Council [2022] QPEC 11
3 citations
Jump To
Cite 1 - [2022] QPEC 11
Cite 2 - [2022] QPEC 11
Cite 3 - [2022] QPEC 11
Garyf Pty Ltd v Maroochy Shire Council [2008] QPEC 101
2 citations
Jump To
Cite 1 - [2008] QPEC 101
Cite 2 - [2008] QPEC 101
Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435
2 citations
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Cite 1 - [2009] QPELR 435
Cite 2 - [2009] QPELR 435
Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPEC 51
2 citations
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Cite 1 - [2010] QPEC 51
Cite 2 - [2010] QPEC 51
Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 750
2 citations
Jump To
Cite 1 - [2010] QPELR 750
Cite 2 - [2010] QPELR 750
Green v Moreton Shire Council (1985) QPLR 328
1 citation
Jump To
Cite 1 - (1985) QPLR 328
I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36
2 citations
Jump To
Cite 1 - [2021] QPEC 36
Cite 2 - [2021] QPEC 36
IB Town Planning v Sunshine Coast Regional Council [2022] QPELR 791
2 citations
Jump To
Cite 1 - [2022] QPELR 791
Cite 2 - [2022] QPELR 791
Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116
2 citations
Jump To
Cite 1 - [2001] QCA 116
Cite 2 - [2001] QCA 116
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
2 citations
Jump To
Cite 1 - (2001) 116 LGERA 350
Cite 2 - (2001) 116 LGERA 350
Isgro v Gold Coast City Council [2003] QPEC 2
6 citations
Jump To
Cite 1 - [2003] QPEC 2
Cite 2 - [2003] QPEC 2
Cite 3 - [2003] QPEC 2
Cite 4 - [2003] QPEC 2
Cite 5 - [2003] QPEC 2
Cite 6 - [2003] QPEC 2
Isgro v Gold Coast City Council (2003) QPELR 414
6 citations
Jump To
Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Cite 3 - (2003) QPELR 414
Cite 4 - (2003) QPELR 414
Cite 5 - (2003) QPELR 414
Cite 6 - (2003) QPELR 414
Jedfire Pty Ltd v Council of the City of Logan and White [1995] QPLR 41
3 citations
Jump To
Cite 1 - [1995] QPLR 41
Cite 2 - [1995] QPLR 41
Cite 3 - [1995] QPLR 41
Jennings Industries Ltd v Cairns City Council (1978) 37 LGRA 297
1 citation
Jump To
Cite 1 - (1978) 37 LGRA 297
Jensen v Brisbane City Council & Anor [2022] QPELR 963
3 citations
Jump To
Cite 1 - [2022] QPELR 963
Cite 2 - [2022] QPELR 963
Cite 3 - [2022] QPELR 963
JPF Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359
1 citation
Jump To
Cite 1 - [2006] QPELR 359
K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1
1 citation
Jump To
Cite 1 - [2011] QPEC 1
K Page Main Beach Pty Ltd v Gold Coast City Council & Ors (2011) 180 LGERA 278
1 citation
Jump To
Cite 1 - (2011) 180 LGERA 278
K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40
1 citation
Jump To
Cite 1 - [2020] QPEC 40
K&K (GC) Pty Ltd v Gold Coast City Council [2021] QPELR 518
1 citation
Jump To
Cite 1 - [2021] QPELR 518
Kenlynn Pty Ltd v Noosa Shire Council [2019] QPEC 65
2 citations
Jump To
Cite 1 - [2019] QPEC 65
Cite 2 - [2019] QPEC 65
Kenlynn Pty Ltd v Noosa Shire Council [2020] QPELR 834
2 citations
Jump To
Cite 1 - [2020] QPELR 834
Cite 2 - [2020] QPELR 834
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
3 citations
Jump To
Cite 1 - (1979) 140 CLR 675
Cite 2 - (1979) 140 CLR 675
Cite 3 - (1979) 140 CLR 675
Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20
3 citations
Jump To
Cite 1 - [1979] HCA 20
Cite 2 - [1979] HCA 20
Cite 3 - [1979] HCA 20
Kern Construction Pty Ltd v Cairns City Council (1978) 38 LGRA 54
1 citation
Jump To
Cite 1 - (1978) 38 LGRA 54
Knight v F. P. Special Assets Ltd (1992) 174 CLR 178
2 citations
Jump To
Cite 1 - (1992) 174 CLR 178
Cite 2 - (1992) 174 CLR 178
Knight v FP Special Assets Ltd [1992] HCA 28
2 citations
Jump To
Cite 1 - [1992] HCA 28
Cite 2 - [1992] HCA 28
Landel Pty Ltd v Redland Shire Council (2000) QPELR 60
1 citation
Jump To
Cite 1 - (2000) QPELR 60
Luke v Maroochy Shire Council [2003] QPEC 5
3 citations
Jump To
Cite 1 - [2003] QPEC 5
Cite 2 - [2003] QPEC 5
Cite 3 - [2003] QPEC 5
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
3 citations
Jump To
Cite 1 - (2003) QPELR 447
Cite 2 - (2003) QPELR 447
Cite 3 - (2003) QPELR 447
McKay v Brisbane City Council [2021] QPEC 42
3 citations
Jump To
Cite 1 - [2021] QPEC 42
Cite 2 - [2021] QPEC 42
Cite 3 - [2021] QPEC 42
Murphy v Moreton Bay Regional Council [2019] QPEC 46
11 citations
Jump To
Cite 1 - [2019] QPEC 46
Cite 2 - [2019] QPEC 46
Cite 3 - [2019] QPEC 46
Cite 4 - [2019] QPEC 46
Cite 5 - [2019] QPEC 46
Cite 6 - [2019] QPEC 46
Cite 7 - [2019] QPEC 46
Cite 8 - [2019] QPEC 46
Cite 9 - [2019] QPEC 46
Cite 10 - [2019] QPEC 46
Cite 11 - [2019] QPEC 46
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
11 citations
Jump To
Cite 1 - [2020] QPELR 328
Cite 2 - [2020] QPELR 328
Cite 3 - [2020] QPELR 328
Cite 4 - [2020] QPELR 328
Cite 5 - [2020] QPELR 328
Cite 6 - [2020] QPELR 328
Cite 7 - [2020] QPELR 328
Cite 8 - [2020] QPELR 328
Cite 9 - [2020] QPELR 328
Cite 10 - [2020] QPELR 328
Cite 11 - [2020] QPELR 328
Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404
2 citations
Jump To
Cite 1 - (1994) 181 CLR 404
Cite 2 - (1994) 181 CLR 404
Page Main Beach Pty Ltd v Gold Coast City Council (2011) QPELR 406
1 citation
Jump To
Cite 1 - (2011) QPELR 406
Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7
3 citations
Jump To
Cite 1 - [2008] QPEC 7
Cite 2 - [2008] QPEC 7
Cite 3 - [2008] QPEC 7
Parmac Investments Pty Ltd v Brisbane City Council (2008) 160 LGERA 356
3 citations
Jump To
Cite 1 - (2008) 160 LGERA 356
Cite 2 - (2008) 160 LGERA 356
Cite 3 - (2008) 160 LGERA 356
Patterson v Hervey Bay City Council (1989) QPLR 184
1 citation
Jump To
Cite 1 - (1989) QPLR 184
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
3 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Cite 3 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
3 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Cite 3 - (1998) 194 C.L.R 355
Purcell Family v Gold Coast City Council & Ors (2004) QPELR 521
1 citation
Jump To
Cite 1 - (2004) QPELR 521
Queensland Adult Deaf and Dumb Society v Brisbane City Council (1972) 26 LGRA 380
1 citation
Jump To
Cite 1 - (1972) 26 LGRA 380
Raintrees Pty Ltd v Cairns City Council (1978) 37 LGRA 435
1 citation
Jump To
Cite 1 - (1978) 37 LGRA 435
SAS Trustee Corporation v Miles [2018] HCA 55
2 citations
Jump To
Cite 1 - [2018] HCA 55
Cite 2 - [2018] HCA 55
SAS Trustee Corporation v Miles (2018) 265 CLR 137
2 citations
Jump To
Cite 1 - (2018) 265 CLR 137
Cite 2 - (2018) 265 CLR 137
Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2021] QPEC 29
2 citations
Jump To
Cite 1 - [2021] QPEC 29
Cite 2 - [2021] QPEC 29
Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54
2 citations
Jump To
Cite 1 - [1994] HCA 54
Cite 2 - [1994] HCA 54
Sumvista Pty Ltd v Redland Shire Council [2005] QPEC 2
2 citations
Jump To
Cite 1 - [2005] QPEC 2
Cite 2 - [2005] QPEC 2
Sumvista Pty Ltd v Redland Shire Council [2005] QPELR 460
2 citations
Jump To
Cite 1 - [2005] QPELR 460
Cite 2 - [2005] QPELR 460
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
Jump To
Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34
Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531
3 citations
Jump To
Cite 1 - (2014) 253 CLR 531
Cite 2 - (2014) 253 CLR 531
Cite 3 - (2014) 253 CLR 531
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
3 citations
Jump To
Cite 1 - [2014] HCA 9
Cite 2 - [2014] HCA 9
Cite 3 - [2014] HCA 9
Tinpeck Pty Ltd v Logan City Council [2008] 166 LGERA 245
2 citations
Jump To
Cite 1 - [2008] 166 LGERA 245
Cite 2 - [2008] 166 LGERA 245
Town of Walkerville v Adelaide Clinic Holdings (1985) 38 SASR 161
1 citation
Jump To
Cite 1 - (1985) 38 SASR 161
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
3 citations
Jump To
Cite 1 - [2021] QCA 95
Cite 2 - [2021] QCA 95
Cite 3 - [2021] QCA 95
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
3 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Cite 3 - [2022] QPELR 309
Ugarin Pty Ltd v Logan City Council [2004] QPEC 1
3 citations
Jump To
Cite 1 - [2004] QPEC 1
Cite 2 - [2004] QPEC 1
Cite 3 - [2004] QPEC 1
Ugarin Pty Ltd v Logan City Council (2004) QPELR 392
3 citations
Jump To
Cite 1 - (2004) QPELR 392
Cite 2 - (2004) QPELR 392
Cite 3 - (2004) QPELR 392
Watts & Hughes Properties Pty Ltd v BCC (1998) QPELR 273
1 citation
Jump To
Cite 1 - (1998) QPELR 273
Weinstock v Beck (2013) 251 CLR 396
2 citations
Jump To
Cite 1 - (2013) 251 CLR 396
Cite 2 - (2013) 251 CLR 396
Weinstock v Beck [2013] HCA 14
2 citations
Jump To
Cite 1 - [2013] HCA 14
Cite 2 - [2013] HCA 14
Wilhelm v Logan City Council [2020] QCA 273
4 citations
Jump To
Cite 1 - [2020] QCA 273
Cite 2 - [2020] QCA 273
Cite 3 - [2020] QCA 273
Cite 4 - [2020] QCA 273
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
4 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321
Cite 3 - [2021] QPELR 1321
Cite 4 - [2021] QPELR 1321
Wingate Pty Ltd v Brisbane City Council (2001) QPELR 272
2 citations
Jump To
Cite 1 - (2001) QPELR 272
Cite 2 - (2001) QPELR 272
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168
3 citations
Jump To
Cite 1 - [2022] QCA 168
Cite 2 - [2022] QCA 168
Cite 3 - [2022] QCA 168
Yu Feng Pty Ltd v Brisbane City Council [2007] QCA 382
1 citation
Jump To
Cite 1 - [2007] QCA 382
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
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
3 citations
Jump To
Cite 1 - [2014] QPELR 686
Cite 2 - [2014] QPELR 686
Cite 3 - [2014] QPELR 686

Cases Citing

Case NameFull CitationFrequency
GTH Project No. 4 Pty Ltd v Noosa Shire Council [2024] QPEC 261 citation
Middle Pond Pty Ltd v Whitsunday Regional Council [2024] QPEC 452 citations
1

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