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Stockwell Development Group Pty Ltd v Bundaberg Regional Council[2024] QPEC 44

Stockwell Development Group Pty Ltd v Bundaberg Regional Council[2024] QPEC 44

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Stockwell Development Group Pty Ltd v Bundaberg Regional Council & Anor [2024] QPEC 44

PARTIES:

STOCKWELL DEVELOPMENT GROUP PTY LTD (ACN 149 899 856)
(appellant)

v

BUNDABERG REGIONAL COUNCIL
(respondent)

And

BLUEPOINT BARGARA PTY LTD (ACN 168 479 409)
(co-respondent)

FILE NO/S:

3009 of 2023

DIVISION:

Planning and Environment

PROCEEDING:

Submitter appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

25 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

28 August, 2, 3, 4, 5 & 6 September 2024

JUDGE:

Williamson KC DCJ

ORDER:

The appeal will be mentioned on Friday, 1 November 2024 for the purposes of making final orders that reflect the following:

  1. The appeal is allowed in part.
  2. The co-respondent’s development application is approved.
  3. The approval be granted subject to the conditions contained in the respondent’s negotiated decision notice dated 11 September 2023, save for the final bullet point of condition 4, which is to be deleted.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where submitter appeal by a commercial competitor against the respondent’s decision to approve a supermarket based shopping centre in the Local centre zone – where a major full-line supermarket is anticipated in the Local centre zone subject to the demonstration of need – where the economic need experts agreed a need is demonstrated for a major full-line supermarket to serve an identified trade area – where the proposed development is included in the identified trade area – where the proposed development can be conditioned to meet the identified need absent unacceptable impacts on amenity – whether the proposed development will adversely impact on the respondent’s forward planning policy articulated in its planning scheme about an activity centre network servicing the Bundaberg region – whether impacts from the proposed development on specific centres in the network gives rise to non-compliance with the planning scheme – whether the proposed full-line supermarket is more appropriately located at the appellant’s shopping centre – whether there are relevant matters that call for approval or refusal of the co-respondent’s development application – whether the planning discretion should be exercised in favour of approval or refusal.

CASES:

Abeleda v Brisbane City Council (2020) 6 QR 441

Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347

Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987

Fabcot Pty Ltd v Ipswich City Council & Anor [2022] QPEC 11

Fitzgibbons Hotel Pty Ltd & Ors v Logan City Council & Anor [1997] QPELR 208

I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36

Wilhelm v Logan City Council & Ors [2021] QPELR 1321

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309

LEGISLATION:

Planning Act 2016, ss 45, 59 and 60

Planning and Environment Court Act 2016, ss 43, 45 and 46

Planning Regulation 2017, s 31

COUNSEL:

Mr G Gibson KC with Mr J Lyons for the appellant

Mr M Batty with Ms M Rodgers for the respondent

Mr B Job KC with Mr T Stork for the co-respondent

SOLICITORS:

Colin Biggers and Paisley for the appellant

Connor O'Meara for the respondent

Anderssen Lawyers for the co-respondent

Introduction

  1. [1]
    The co-respondent applied for, and obtained, a conditional approval to develop a supermarket based shopping centre in the Local centre zone at Rifle Range Road, Bargara (the site). The approval is contained in a negotiated decision notice dated 11 September 2023: Ex.20, para 8(d).
  2. [2]
    This is a submitter appeal by a commercial competitor against Council’s decision to grant the conditional approval. The appellant owns and operates Bargara central, which is an existing activity centre included in the District centre zone of Council’s planning scheme. It is located 4 kilometres to the north of the site.
  3. [3]
    The appellant’s grounds for refusal focus on one component of the proposed development, namely, the full-line supermarket.  Coles has expressed interest in operating this facility. The design of the proposal makes provision for a number of design features required by Coles to operate a modern full-line supermarket. This is most evident in the location and design of the ‘click and collect’ facilities.
  4. [4]
    The appellant’s opposition to the full-line supermarket is to be considered against the background of the following five matters, namely:
    1. the site is included in the Local centre zone, which forms part of the activity centre network identified in Council’s planning scheme;
    2. a full-line supermarket is anticipated in the Local centre zone where need is demonstrated;
    3. the evidence establishes there is a clear economic and community need, which exists today, for a large full-line supermarket (and some additional specialty shops) to serve an agreed trade area of which the site forms part;
    4. the site is centrally located in the agreed trade area to conveniently meet the identified need; and
    5. the proposed development, approved with conditions, can meet the identified need absent any unacceptable impacts on amenity.
  5. [5]
    The five background matters were not disputed by the appellant. They were supported by the evidence of expert witnesses called to assist the Court. Taken in combination, the five matters favour approval in the exercise of the discretion. The weight to be given to subparagraph (e) in the exercise of the discretion can also be considered in isolation. As is well recognised, the ability for a proposal to meet an identified need absent unacceptable amenity impacts has been held to be a decisive consideration in favour of approval: cf Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347, [13].
  6. [6]
    The key issue in dispute is whether the proposed full-line supermarket would be more appropriately located at the appellant’s shopping centre, Bargara central. The appellant contends this issue should be resolved in its favour having regard to the role and function the proposed shopping centre will serve, and its likely economic impact on other centres, including Bargara central. The impacts are said to be adverse and manifest in non-compliance with Council’s planning scheme, particularly the forward planning strategy about the activity centre network intended to serve the Bundaberg region.
  7. [7]
    Council and the co-respondent joined issue with the appellant’s reasons for refusal.
  8. [8]
    The appeal is a hearing anew: ss 43 and 46(1) of the Planning & Environment Court Act 2016.
  9. [9]
    It is for the co-respondent to establish the appeal should be dismissed: s 45(2) of the Planning & Environment Court Act 2016.

The site and locality

  1. [10]
    The ‘Central coastal urban growth area’ is an area earmarked for significant future development in Council’s planning scheme. It comprises the suburbs of Burnett Heads, Bargara, Innes Park, Coral Cove and Elliott Heads: Ex.10, p. 124. As the name suggests, the area is earmarked for urban growth opportunities, including residential and non-residential uses.  The site is central to this growth area, located at the north-eastern corner of the intersection of four higher order roads: Rifle Range Road, Hughes Road, Windermere Road and Back Windermere Road. This intersection is controlled by a roundabout. Windermere Road provides an east-west access route to the urban areas of Bundaberg, including the central business district located 13 kilometres to the north-east.
  2. [11]
    Focussing on the site, it:
    1. is vacant and essentially flat;
    2. is 1.942 hectares in size;
    3. is free of inherent constraints to development (such as flooding, ecology etc.);
    4. has a 150 metre frontage to Rifle Range Road;
    5. has an 80 metre frontage to Hughes Road; and
    6. enjoys a high degree of exposure to passing traffic.
  3. [12]
    With paragraphs [10] and [11] in mind, it is unsurprising the economic need evidence establishes the site is well placed to perform its intended role as a Local centre.
  4. [13]
    An extant development approval attaches to the site: s 31(1)(f) Planning Regulation 2017.  The approval was granted in September 2021 and changed in September 2022. It authorises the start of a new use, namely a staged development comprising a shopping centre, service station and showrooms. The shopping centre includes a supermarket with a gross floor area of 1,520 m2. The supermarket sits in the north-eastern corner of the site. The approved service station is orientated to face Hughes Road, with access taken from Rifle Range Road downstream of the roundabout referred to in paragraph [10]. The approved plans identify how the development will be staged: Ex.3, p. 15.
  5. [14]
    A review of aerial photography confirms the site sits within a predominantly low-density residential context: Ex.4, para 21. Development in the surrounding area, which has experienced significant population growth (FG-1, para 69 and Figure 6), comprises mainly detached housing on residential lots. There are also community uses.  Of note are the following matters relevant to the surrounding land use context (existing and approved (but not yet constructed) uses):
    1. land to the north and east of the site is developed, and approved to be further developed, with the Palm Lake Resort (an over 50s retirement village) – the resort provides medium density accommodation, with more than 630 home sites and 800 residents anticipated at completion;
    2. land further to the north and east of that identified in (a) comprises low density residential housing;
    3. land to the south of the site is developed with detached houses (on low density residential lots in the order of 2,000 m2) and community uses (place of worship and childcare centre); and
    4. contemporary planning for the land located in the north-western quadrant of the roundabout referred to in paragraph [10] promotes medium density residential development.
  6. [15]
    The appellant has an interest in land captured by subparagraph (d). It intends to develop nearly 17 hectares of land in this location over the next five to eight years; a lifestyle resort village is proposed. The village is expected to accommodate a population of approximately 600 residents. It was fairly observed that development of this kind finds support in a recent planning scheme policy promulgated by Council: Ex.10B.
  7. [16]
    The matters traversed in paragraphs [14] and [15] confirm the area surrounding the site has experienced, and will continue to experience, significant population growth. The existing and future population have a legitimate need for convenient access to, among other things, full-line supermarkets to undertake shopping for the necessities of life. The site is conveniently located to meet this important need.

Bargara central

  1. [17]
    The Bargara district centre is located within the Central coastal urban growth area. A helpful description of the centre is to be found in the need joint report. The description is as follows (FG-1, paras 104 and 105):
  1. “104.
    The Bargara Central centre contains 8,260 m2 of net leasable area (NLA), of which 7,100 m2 is retail uses. The centre is anchored by two supermarkets Woolworths (3,810m2) and Aldi (1,659m2). External to the Bargara Central centre, although within the District Centre zone, is an EEG Fuels/Ampol service station with an approved area 80m2, a McDonalds fast food outlet with a driving through facility comprising some 380m2, a tavern with a GFA of 800m2 and a bottle shop of 400m2. The tavern and bottle shop are very recent developments.
  2. 105.
    Adjacent to the existing centre is a large vacant site of some 1.6 hectares which is proposed to be developed for a second full-line supermarket. This site lies within the District Centre zone and is the subject of a development application to establish a second full line supermarket, a childcare centre and additional shops.”
  1. [18]
    Evidence about the composition and past performance of Bargara central is contained in confidential information before the Court. The confidential material makes good the opinion expressed by Mr Duane. He said the trading level of Bargara central is very high and above industry benchmark standards. The same material also reveals there are no systemic issues (in terms of vacancies or unsustainable trading levels) with specialty stores in the centre.
  2. [19]
    The trading figures for Woolworths at Bargara central have been impacted in recent times by the opening of a new Woolworths store at the Kepnock district centre. This can be explained for two reasons. First, the location of the store at Kepnock, while some distance further to the west, is likely to intercept supermarket shoppers that reside south of Windermere Road. For these shoppers, the Kepnock district centre is likely to be equally, if not more conveniently located than Bargara central. Second, the Woolworths store at Kepnock is new; it has a modern and attractive layout. In contrast, the Woolworths store at Bargara central is dated and in need of a refresh, which is unsurprising given it is about 15 years old. Despite the reduction in sales at Woolworths Bargara central, there is no suggestion this supermarket will cease to trade, or trade unsustainably. Rather, the evidence establishes that the supermarket will continue to trade well, and above recognised industry benchmark standards, even allowing for the combination of: (1) adverse trading impacts caused by the new Woolworths supermarket at the Kepnock district centre; and (2) adverse trading impacts caused by the introduction of the proposed full-line supermarket on the site.
  3. [20]
    The development application referred to in paragraph 105 of the need joint report was made on behalf of the appellant to Council. The application was lodged after this appeal was commenced. It is subject to code assessment. At the time this appeal was heard: (1) Council had not decided the development application; (2) the appellant had not completed its response to an information request issued for the application: (3) the appellant had obtained an extension of time (to 29 November 2024) to provide a response to the information request: Ex.8, Tab 10; (4) the appellant was unsuccessful in its attempt to attract Coles as the operator of the second full-line supermarket in the expanded centre; and (5) there was no evidence to establish that any recognised operator had expressed interest in operating the second full-line supermarket proposed in the expanded centre.
  4. [21]
    Items (4) and (5) suggest there is good reason to doubt that a second supermarket would, in fact, be provided at Bargara central in the event the appellant’s development application was approved. The level of doubt, or uncertainty, that attends this aspect of the appeal is not insignificant given the evidence of Mr Ashley. He is the State Leasing Manager for Coles, who is the most likely, if not obvious, candidate to operate the second supermarket at Bargara central. Mr Ashley explained that Coles is not minded to take up a commercial opportunity to operate the second full-line supermarket at Bargara central. At paragraph 34 of Mr Ashley’s statement, he said:

“I acknowledge that if the development application lodged by Stockwell is approved, it would offer a potential site for a new supermarket. It is however Coles’ position, and my position, that it does not constitute a retail development outcome that is acceptable for a Coles Supermarket. Even if the Proposed Development is not approved, Coles would not consider taking up the Bargara Central proposal, for the reasons outlined below.” (emphasis added)

  1. [22]
    The reasons that follow paragraph 34 of Mr Ashley’s statement traverse a number of topics, including the size of the supermarket (too small), poor locational attributes, poor visibility, suboptimal customer access and parking, and poor loading access. A review of these reasons, in conjunction with the development application to extend Bargara central, reveals they are legitimate criticisms from Coles’ perspective. Taken collectively, the criticisms render the proposed second supermarket at Bargara central commercially unsuitable to Coles.
  2. [23]
    I am satisfied the position taken by Coles is a rational and reasonable one. This is so for a number of reasons. First, the plan of layout for the expanded centre depicts a second supermarket disconnected from the existing shopping centre by a large and visually unattractive loading dock. The disconnection is of such proportion as to give the impression that the second supermarket is an after-thought, removed from the vibrancy and foot traffic generated by the existing Woolworths and Aldi stores. Second, the proposed supermarket will be screened from the road network by an existing service station and McDonalds fast food outlet, adversely impacting on its visibility and exposure to, and from, the road network. This point reinforces the inferior nature of the location proposed for the second supermarket compared to the position enjoyed by Woolworths and Aldi, who have no such exposure constraints. Third, the proposed access and carpark entry for the extended centre is poorly configured and likely to be confusing for patrons.
  3. [24]
    After receiving Mr Ashley’s statement, the appellant proposed, and pursued, changes to its development application. The changes were intended to respond to Mr Ashley’s criticisms. The changes include an alternative access arrangement (roundabout). The access proposal requires land not presently owned, or controlled, by the appellant. The design includes 492 m2 of land owned and controlled by the Bargara Golf Club: Ex.27. While a recommendation has been made by the board of the Golf Club to support the appellant’s access proposal, the club’s position will not be finalised until it is put to members at an AGM sometime in October 2024. The final design of access to the proposed expansion to Bargara central is, as a consequence, uncertain.
  4. [25]
    In his oral evidence, Mr Ashley was asked whether the changes made to the appellant’s development application satisfactorily addressed points raised in his statement: T3-55 to T3-57. Mr Ashley fairly conceded that some, but not all, of the changes addressed his criticisms of the development. In his mind, no changes could address at least one key issue for Coles, namely, the poor positioning and compromised design for the supermarket.  These shortcomings in the design struck me as legitimate obstacles and render the proposal an unsuitable commercial option for Coles.
  5. [26]
    Mr Ashley was cross-examined as to whether Coles would take up the opportunity presented by a second full-line supermarket tenancy in Bargara central in the event the development application before the Court was refused. The point pressed in cross-examination was not without merit given Coles has no existing store in the Coral Coast. The cross-examination did not cause Mr Ashley to change his mind or alter his position. He made it clear that Coles would not pursue an opportunity in the Coral Coast at all costs; he said a second supermarket at Bargara central would be unsustainable. This was made clear in the following interchange with Mr Gibson KC (T3-68):

“So Mr Ashley, in the situation where there is no…full-line supermarket opportunity available to you on the subject land, my suggestion to you is that you would choose either Bargara Central or Kepnock to open a supermarket if those opportunities remained available?---I disagree with that.

You would have no representation east of Bundaberg?---No. We wouldn’t be sustainable in the location at Bargara Central. We would remain interested in Kepnock and we invariably would open a supermarket in Kepnock if that opportunity remained once that catchment was established enough to support it.

You agree that companies, just as individuals, are open to changing their minds when changed circumstances present themselves?---It’s possible.

That circumstances could arise where one would relook at alternative sites, albeit considered to be inferior to a particular proposal?---It’s possible.

And that what may seem unacceptable when there is a choice available may suddenly become acceptable when there is no choice?---Possible. However, I would say the fundamentals of the catchment in this particular case, based on the matters that I’ve already raised and the issue overlay where the growth is occurring within this catchment, I think it’s unlikely that Coles would change its mind on the Bargara Central location.” (emphasis added)

  1. [27]
    I accept Mr Ashley’s evidence.  He fairly acknowledged that Coles may change its view in the future about the second full-line supermarket tenancy at Bargara central. He also fairly acknowledged that the shortcomings in the design of the expanded centre may not be insurmountable. Overall, however, his fundamental position did not change. Contrary to the appellant’s case, his evidence does not support a submission that Coles, acting rationally, would choose to pursue the second supermarket tenancy proposed at Bargara central: Ex.32, para 96. The better view is that Coles is unlikely to pursue such an opportunity in the short-to-medium term (in the next 5 to 7 years). This is so given: (1) the design and siting issues discussed above, which are not fully resolved and include; (2) the uncertainty about the design of access to the expanded site; and (3) Mr Ashley’s concern about the lack of viability/sustainability of the second supermarket, although this may be cured with time as the size of the population north of Windermere Road grows.
  2. [28]
    With respect to item (3) above, the second supermarket, if approved, would commence trading in an established centre with established competition.  This, in and of itself, does not give rise to any cause for concern. I am however satisfied that a concern about sustainability of the second supermarket at Bargara central arises when the existing level of competition is taken in combination with the access, design and siting issues traversed above, and three other matters, namely: (1) that Bargara central is located at the northern periphery of the trade area agreed by the economists for this appeal (the MTA: see paragraph [70]); (2) by reason of (1), there is a genuine prospect that supermarket shoppers residing in the southern part of the MTA may find it more convenient to patronise centres outside of the MTA, leading to a continuation of high levels of escape expenditure (see [19]) – high levels of escape expenditure reduce the amount of ‘super market spend’ available in the MTA, potentially to an unsustainable level for a second full-line supermarket at Bargara central; and (3) to offset the risk posed by item (2), meaningful population growth is required, particularly at the northern end of the MTA, to counteract escape expenditure – based on forecast population figures (FG-1), this is likely to take in the order of 5 to 7 years. In my view, based on forecast population figures and the estimated supermarket spend available in the MTA (FG-1), the year 2031 represents a reasonable time frame for the population of the MTA to reach a size that can offset the high level of escape expenditure from the MTA.  At this time, the population of the MTA is forecast to be 20,030 persons: FG-1, Table 3. With this forecast in mind, the provision of two supermarkets in 2031 in the MTA is consistent with the upper end of a well-known rule of thumb for the provision of supermarkets (1 supermarket per 8,000 to 10,000 persons).
  3. [29]
    To decide this appeal on the footing that Coles may change its mind in the face of the above (lack of sustainability and siting and design issues) does not sit comfortably with the evidence. This is particularly the case in so far as it might be suggested that a change in mind is likely to occur in the short-to-medium term (i.e. in the next 5 to 7 years). My assessment of the development application the subject of this appeal has proceeded on the footing that, on the balance of probabilities, Coles is unlikely to pursue an opportunity for a new supermarket at Bargara central in the short-to-medium term (in the next 5 to 7 years).

The proposed development

  1. [30]
    The proposed development is a shopping centre comprising three elements: (1) a full-line supermarket (3,700 m2 GLA) with associated back of house areas and attached specialty shops, kiosk and medical centre; (2) a standalone food and drink outlet with a drive-thru facility; and (3) a landscaped at-grade carpark with associated access, circulation areas and pedestrian paths.
  2. [31]
    Vehicle access to the development is proposed via Hughes Road and Rifle Range Road.
  3. [32]
    The architecture of the development is low rise, consistent with modern shopping centres of the kind proposed. The built form with the largest footprint (supermarket) is sited to turn its back and eastern side to the adjoining land, which is developed (and approved to be developed) for medium density retirement living.
  4. [33]
    The evidence establishes that Coles have pursued the appellant for an opportunity to operate the proposed full-line supermarket, assuming it is approved: Ex.5, 26 and FG-7.  Mr Ashley said the site, from Coles’ perspective, is the best location for a new full-line supermarket in Bargara. He gave three reasons for this, namely the site: (1) is centrally positioned in the trade area identified by Coles, which excludes Bargara central; (2) is of sufficient size to permit an uncompromised retail design to meet the legitimate convenience needs of Coles shoppers; and (3) enjoys a favourable position in the road network, allowing for ease of accessibility for customers within the trade area. I accept this evidence.
  5. [34]
    There was an unpersuasive attempt by the appellant to suggest Coles’ interest in the proposed development was uncertain and lacked board approval. The criticism was said to be founded on the uncertain terms of an offer to lease and the absence of board approval.  Assuming there is uncertainty and a lack of board approval for the offer to lease, Mr Ashley’s evidence, in conjunction with the proposed plans, provides more than sufficient comfort to conclude that an operator has been identified for the proposed full-line supermarket on the site. The evidence reveals:
    1. Coles has more than a fleeting interest in leasing the supermarket tenancy on the site, if approved;
    2. Coles’ interest in the supermarket tenancy on the site was articulated through Mr Ashley, who was subject to cross-examination;
    3. the cross-examination of Mr Ashley did not elicit evidence to the effect that Coles’ interest in the proposed supermarket was anything other than bona fide; and
    4. the proposed plans of development for the site have been designed to accommodate Coles’ operational requirements, including its requirements with respect to ‘click and collect’ facilities.

Statutory assessment framework

  1. [35]
    The statutory assessment framework for this appeal is prescribed by the Planning Act 2016 (the Act). The Act requires the development application be assessed in accordance with s 45(5) and decided in accordance with ss 59(3) and 60.
  2. [36]
    Section 45(5)(a)(i) of the Act mandates assessment against assessment benchmarks in a categorising instrument. Section 45(7) confirms the reference to an assessment benchmark is one in effect when the development application was properly made. Here, that captures version 5.1 of Council’s planning scheme, namely Bundaberg Regional Council Planning Scheme 2015 (the planning scheme): Ex.10.
  3. [37]
    Section 45(8) of the Act permits weight to be given in an assessment to adopted planning controls that took effect after a development application was properly made. Here, this captures a planning scheme policy (Ex.10B) in force at the time the appeal was heard. While the policy provides some relevant background for paragraph [15], it has little impact on this appeal; the outcome of the appeal does not turn on this policy. The alleged non-compliances with assessment benchmarks are limited to version 5.1 of the planning scheme.
  4. [38]
    The statutory assessment framework is to be approached in accordance with the following Court of Appeal authorities, namely: Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; Abeleda v Brisbane City Council (2020) 6 QR 441; Wilhelm v Logan City Council & Ors [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309. Having regard to these authorities, it can be observed:
    1. the ultimate decision called for when making an impact assessment under ss 45 and 60 of the Act is a ‘broad, evaluative judgment’;
    2. in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the Act admits of more flexibility to approve an application in the face of non-compliance with a planning scheme;
    3. the exercise of the discretion under s 60(3) of the Act is subject to three requirements, including that it be based upon the assessment carried out under s 45; and
    4. the Act does not alter the characterisation of a planning scheme – it remains a reflection of the public interest.

Planning context

  1. [39]
    Planning scheme provisions with respect to the establishment, and maintenance, of an activity centre network for the Bundaberg region are the point of focus for this appeal. Planning for the network is found at multiple levels of the planning scheme, including the Strategic framework, which articulates a forward planning strategy. The strategy is implemented through five zones that make up the ‘Centre zones category’: s 6.1(8)(d) to (h). It is also implemented through local plans. Before traversing relevant planning scheme provisions, three observations should however be made.
  2. [40]
    First, it was uncontroversial, as a matter of principle, that a forward planning strategy directed towards the establishment and maintenance of a centres hierarchy is important and, in the context of an appeal to this Court, should be respected. This principle has been recognised for many years: see I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36, [82]–[83]. Non-compliance with such a strategy will, ordinarily, be regarded as serious, attracting significant weight in the exercise of the planning discretion. The converse is also true. Compliance with the strategy will likely attract significant weight in the exercise of the planning discretion.
  3. [41]
    Second, while forward planning for an activity centre network is important and entitled to respect, this does not obviate the need to carefully examine the adopted planning controls articulating the strategy of interest. The reason for this is obvious enough. It cannot be assumed that all planning strategies for centres (articulated in adopted planning controls) are based on the same expressions of planning policy or assumptions; one planning scheme may promote, or encourage, what another discourages in light of town planning considerations particular to that planning scheme area.
  4. [42]
    Third, absent an indicator to the contrary, a centres hierarchy and associated provisions in a planning scheme should not be assumed to protect higher order centres from competition posed by lower order centres that: (1) will, like here, share an overlapping catchment or trade area; and (2) are planned to include similar commercial and/or retail uses.  Competition in such circumstances should be anticipated; a negative effect on trading levels is inevitable. To suggest otherwise is unrealistic. The acceptability of any negative effect is however a different matter. Acceptability or otherwise will turn on matters of fact and degree, examined against the background of the adopted planning controls. In this context, particular attention will be given to provisions dealing with the planned role, function and scale of facilities in the network of centres.
  5. [43]
    The planning scheme was prepared under the Sustainable Planning Act 2009 and was amended for alignment with the Act in May 2017: ss 1.1(1) and (2). The document has a familiar structure. It includes, among other things, a Strategic framework, zones and local plans.
  6. [44]
    Part 3 of the planning scheme contains the Strategic framework. It sets the policy direction for the planning scheme area and forms the basis for ensuring that appropriate development occurs within the life of the planning scheme: s 3.1(1). The planning scheme has a 16 year horizon, ending in 2031: s 3.2.1. For the purposes of describing the policy direction, the Strategic framework has a number of parts, including eight themes, strategic outcomes, elements that further refine the strategic outcomes and specific outcomes for the stated elements: s 3.1(3).
  7. [45]
    The policy direction in the Strategic framework is articulated through, among other things, a settlement pattern for the planning scheme area, which is conceptually shown on map SFM-001. The settlement pattern is supported by, and integrated with, an activity centre network: s 3.3.1(g) and (i). The network is identified, in part, on map SFM-001.
  8. [46]
    The planned activity centre network provides for centres that perform different roles and functions. Centres are to be developed at different scales: s 3.2.4. There are seven types of centres: s 3.4.2.1. They are intended to be complementary, vibrant and support long term viability: ss 3.2.4, 3.2.7 and 3.4.1(g).  In order of hierarchy, they comprise: (1) Principal activity centre; (2) Major activity centre; (3) District activity centre (urban): (4) District activity centre (rural); (5) Local activity centre; (6) Neighbourhood activity centre; and (7) Specialised activity centre. Section 3.4.2.1(a) of the Strategic framework describes, in further detail, each of these centre types. The descriptions for District activity centre (urban) and Local activity centre are relevant to this appeal and are in the following terms:

Activity centre

Description

District activity centre (urban):-

  1. Bargara central
  2. Kepnock

District activity centres (urban) serve catchments of district or sub-regional significance within the Bundaberg Region, accommodating concentrations of retail, commercial, offices, administrative and health services, community, small scale entertainment and recreational facilities, and catering to day-to-day and weekly shopping and service needs. They may have a residential component including visitor accommodation.

Local activity centre:-

…

  1. Bargara South
  2. Elliott Heads

…

Local activity centres provide for local shopping needs, function as local employment nodes and comprise a mix of commercial, cafes/dining, entertainment and community services for a surrounding residential neighbourhood. They may have a small residential component including visitor accommodation.

  1. [47]
    With the ‘further description’ for District centre (urban) in mind, the following observations can be made.
  2. [48]
    First, the evidence reveals Bargara central serves an expansive catchment that conforms with the above description; it serves at least a district, if not close to, an area of sub-regional significance: FG-2, Attachment A. The description also anticipates that the mix of uses in a District centre (urban) will comprise a concentration of retail and non-retail activities catering for day-to-day and weekly shopping and service needs. Bargara central meets this description. That Bargara central serves the catchment size described above, and includes the concentration of uses anticipated by the planning scheme, will not change if an approval is granted for the site authorising a new major full-line supermarket. Moreover, the vacant land adjoining Bargara central gives the District centre (urban) significant physical scope to grow and evolve with emerging demand from urban development planned for the Coral Coast. Quite apart from a second full-line supermarket, it was uncontroversial that the vacant land adjoining Bargara central can accommodate a wide range of retail, commercial and community uses. Such uses would be consistent with the description set out above for District centre (urban): FG-2, para 47 & FG-3, para 2.20-2.21.
  3. [49]
    Second, the proposed development, if approved, will not function as a District centre: FG-2, para 43. This is because the facility is too small and will not contain the concentration of retail and non-retail uses anticipated in a District centre.  This can be demonstrated by comparing Bargara central with the proposal. The former: (1) serves a considerably greater trade area than the proposal (cf FG-1, Figure 5 and FG-2, Attachment A); (2) has a greater amount of floorspace than the proposal (8,260 m2 NLA vs. 5,200 m2 GLA); and (3) provides a more extensive range of uses/tenants compared to the proposal (FG-1, p. 53), including a tavern/bottle shop.
  4. [50]
    The Strategic framework encourages development that establishes and maintains the planned activity centre network. Development that works against this intent is expressly discouraged. Section 3.4.2.1(c) provides:

“Development does not undermine or compromise the activity centre network either by proposing centre activities outside of an activity centre or by proposing a higher order or larger scale of uses than intended for a particular activity centre.”

  1. [51]
    Section 3.4.2.1(c) expressly discourages out-of-centre development. A similar policy statement is found in s 3.3.7.1(c).  The policy has no direct application to this appeal as the site is included in the Local centre zone. This zone is one of a number that implement the forward strategic planning for the activity centre network.
  2. [52]
    Section 3.4.2.1(c) also imposes a limitation on development proposed inside an activity centre. It is to be of a scale consistent with that intended for a particular activity centre. This is reinforced by s 3.3.7.1(b), which has in mind that activity centres are focal points for community life and accommodate a range of activities reflective of their location, scale and service catchment.
  3. [53]
    The planning scheme area is divided into zones: s 6.1(8). Zones organise the planning scheme area in a way that ‘facilitates the location of preferred or acceptable land uses’: s 6.1(1). Forward planning with respect to the establishment and maintenance of a vibrant activity centre network is implemented through, among other things, the Centre zones category. There are five zones in this category, including the District centre zone and the Local centre zone. Bargara central is included in the former zone. The site is included in the latter zone.
  4. [54]
    Assessment benchmarks for the zones are contained in a zone code. These codes have a familiar structure, comprising a purpose statement, overall outcomes that achieve the purpose and tables containing performance outcomes and acceptable outcomes: s 6.1(7). Compliance with a zone code is demonstrated in one of three ways, namely through: (1) compliance with acceptable outcomes that achieve the purpose and performance and overall outcomes of the code; (2) compliance with the performance outcomes that achieve the overall outcomes and purpose of the code; and (3) compliance with the overall outcomes that achieve the purpose of the code: ss 5.3.3(4)(c) and 6.1(7).
  5. [55]
    The purpose of the Local centre zone code is in the following terms (s 6.2.7.2(1)):

“The purpose of the Local centre zone code is to provide for a limited range of land uses and activities to meet the local level retail, business and community needs of coastal towns and their surrounding rural catchments and residential neighbourhoods within Bundaberg.

The zone accommodate (sic) local shopping and commercial activities, cafes and dining, community services and residential development where it can integrate and enhance the fabric of the activity centre, but is not the predominant use.

Local centres are developed as well-designed, safe and visually attractive centres, predominantly in a low rise building format, where significant off-site impacts are avoided.

Local centres complement and do not undermine the role and function of higher order activity centres.”

  1. [56]
    The purpose of the Local centre zone code will be achieved through ten overall outcomes: s 6.2.7.2(2). The overall outcomes include the following:
  1. “(a)
    development provides for a range of business activities that are compatible with the intended role and function of the Local centre zone, but does not include a department store or discount department store, and full-line supermarkets are only established in the zone where there is a demonstrated need;

…

  1. (e)
    land uses contributing to employment, education and services in the Bundaberg Region are located in the centre commensurate with its local role and function. However, development does not undermine or compromise the activity centre network by proposing higher order or larger scale of uses that are more appropriately located in…district centres;”
  1. [57]
    Overall outcome (a) refers to ‘full-line supermarkets’. This is a defined term in the planning scheme:

“A supermarket with a full range of goods including packaged groceries, fresh meat, bakery and deli departments, fresh fruit and vegetables and frozen foods.”

  1. [58]
    The supermarket proposed for the site meets this definition.
  2. [59]
    Benchmarks for assessable development are set out in Table 6.2.7.3.1 of the Local centre zone code. The benchmarks include the following:

Performance outcomes

Acceptable outcomes

Land use composition and activity centre network

PO1

Development provides for a range of business activities that service the local level convenience needs of residents and surrounding tourism or primary production industries, and offers locally-based employment opportunities.

Note-such business activities include, but are not limited to, food and drink outlets, small-scale offices, shops, small shopping centres and veterinary services.

AO1

No acceptable outcome provided.

PO2

Development for business activities is of a scale and intensity that is consistent with the intended role and function of the local activity centre.

AO2

No acceptable outcome provided.

PO3

Development ensures that:-

  1. higher order shopping facilities, including department stores and discount department stores, are not established in the zone; and
  2. major full-line supermarkets are only established in the zone where there is a demonstrated need.

AO3

No acceptable outcome provided.

  1. [60]
    Performance outcome PO3 b refers to ‘major full-line supermarkets’. This is a defined term for the planning scheme:

“A full line supermarket with a gross lettable floor area exceeding 3,000m2.”

  1. [61]
    The supermarket proposed for the site meets this definition.
  2. [62]
    The table of assessment for the making of a material change of use in the Local centre zone identifies a number of ‘business activities’ that trigger code assessment. The defined uses falling into this category are Bar, Food and drink outlet, Garden centre, Hardware and trade supplies, Market, Office, Sales office and Veterinary services.  Shop and Shopping centre uses are also categorised as code assessable in the zone, provided they do not incorporate a department store, discount department store or ‘major full-line supermarket’.
  3. [63]
    Having regard to the definition of ‘major full-line supermarket’, it follows from the table of assessment for the Local centre zone that a Shopping centre, including a full-line supermarket, triggers code assessment where the supermarket has a gross lettable floor area less than 3,000 m2. This point, taken in conjunction with overall outcome 2(a) and performance outcome 3 b of the Local centre zone code, conveys a number of things about a Local centre promoted by the planning scheme. The points convey: (1) that, subject to demonstration of need, a Local centre may include a full-line supermarket, which, by definition (paragraph [57]), offer a broad range and depth of products to cater for convenience, day-to-day and weekly shopping needs; (2) a reasonable expectation about the size of the trade area served by a Local centre and the extent to which it may compete with higher order centres that also include full-line supermarkets – the trade area, like here, may be commensurate with that of a supermarket 3,000 m2 (Gross lettable area) or greater in area, and overlap with a trade area for a District centre; (3) that a Local centre developed with a major full-line supermarket will contribute to local employment and act as an employment node; and (4) that a major full-line supermarket in the Local centre zone, for which a need has been demonstrated, is consistent with the range of business activities anticipated for that zone – the anticipated business activities are those that ‘meet…local level retail…needs’, ‘service the local level convenience needs’ and provide for ‘local shopping needs’. As an anticipated use in the zone, and having regard to the economic need and associated impact evidence, I am satisfied the proposed development will meet local level retail needs, will service local level convenience needs and provide for local shopping needs. It will do so in the manner anticipated by the planning scheme for a Local centre.
  4. [64]
    The planning scheme includes two local plans, one of which is the ‘Central coastal urban growth area local plan’ (CCUGA): Table 1.2.2. Local plans address matters at the local or district level and ‘may’ provide more detailed planning for the zones: s 7.1(1). Each local plan has a code that prescribes assessment benchmarks: s 7.1(5). Compliance is demonstrated with the code in the manner discussed at paragraph [54].
  5. [65]
    The site is included in the CCUGA and sits beneath an ‘L’ on relevant mapping, which is to indicate the presence of a Local activity centre: Ex.10, p. 124.
  6. [66]
    The purpose of the code for the CCUGA local plan is said to be achieved through a range of overall outcomes: s 7.2.1.2(2). They include the following:
  1. “(h)
    development supports the establishment of a network of centres for the broader Central coastal area, comprising:-
  1. a district activity centre at Bargara;
  2. local activity centres at Burnett Heads, Bargara town centre, Bargara South and Elliott Heads;
  3. a series of well-located neighbourhood centres at other strategic locations throughout the area as required to satisfy community need.
  1. (i)
    development provides for any new activity centres to establish as vibrant, mixed use places with both residential and non-residential activities appropriate to their role and location, and displaying high quality urban design and landscaping;
  1. [67]
    Benchmarks for assessable development subject to the CCUGA local plan code are set out in Table 7.2.1.3.1. The benchmarks include the following:

Performance outcomes

Acceptable outcomes

Activity centres

PO6

New activity centres:-

  1. are well-located relative to the catchments they are intended to serve and other existing or proposed centres;
  2. are integrated with community facilities wherever possible;
  3. have high levels of accessibility to and from the higher order elements of the transport network;
  4. perform a role and function and have an intensity and scale commensurate with demonstrated need;
  5. do not detrimentally impact on existing or approved activity centres.

AO6

In partial fulfillment of Performance outcome PO6:-

Development provides for a network of activity centres with a function and location generally in accordance with Figure 7.2.1 (Central coastal urban growth area structure plan concept).

PO7

Development provides for the proposed local activity centres at Bargara South and Elliott Heads to be established and consolidated as pedestrian based lifestyle centres located at the heart of their respective communities.

AO7

No acceptable outcome provided.

PO8

Development ensures that any new activity centre:-

  1. has a configuration and includes a range of uses that help create an active, vibrant centre and focal point for the community;
  2. is compatible with the scale and intensity of existing and planned development in the neighbourhood; and
  3. provides for active modes of transport including the provision of sheltered and comfortable spaces for pedestrians with footpaths, walkways and other public spaces adequately sheltered from excessive sunlight and inclement weather.

AO8

No acceptable outcome provided.

Need

  1. [68]
    A major full-line supermarket is only established in the Local centre zone where a need is demonstrated: PO3 b, Local centre zone code, [59]. To examine the issue of need for the proposed supermarket, I had the benefit of evidence of three experts, Messrs Leyshon (appellant), Duane (respondent) and Stephens (co-respondent). They prepared an economic need joint report, which was admitted and marked FG-1. The report contains references to confidential information protected by Court order.  These reasons for judgment refer to the joint report in general terms so as to avoid disclosing confidential information.
  2. [69]
    A review of the economic need joint report reveals the experts agreed there is a need for a supermarket, additional specialty stores, a fast-food outlet and medical centre to serve a defined trade area. The site is included in the defined trade area.
  3. [70]
    To arrive at this point of agreement, the experts identified a Main Trade Area (MTA). The MTA reflects the geographic area to be served by retail components of the proposed development. The area is linear, hugging the east coast. It spans from a location just north of Bargara central down to Elliott Heads in the south. The trade area comprises three sectors, namely a Primary Trade Area (PTA), Secondary North Trade Area (SNTA) and Secondary South Trade Area (SSTA). The site is located towards the middle of the PTA, which sits in the northern half of the MTA. The MTA and the trade area for Bargara central overlap: FG-2, Attachment A. The latter trade area is significantly greater in size than the MTA.
  4. [71]
    The MTA has experienced, and will continue to experience, significant population growth. The population of the MTA has increased from 12,950 persons in 2016 to 16,050 in 2023. This population is forecast to increase to 18,350 persons in 2028 and 20,030 persons in 2031: FG-1, Table 3. The population capacity of the MTA is estimated to be about 39,350 persons. Figure 6 of the joint report shows the site being well located to population growth hotspots: FG-1, p. 23.
  5. [72]
    The level of population growth within the MTA is consistent with the growth forecast for the Coral Coast more broadly. This area is identified in Figure 5 of FG-1 and includes the MTA. It extends further to the west of the MTA. The population of the Coral Coast was 20,880 in 2023 and is forecast to increase to 23,580 in 2028 and 25,560 in 2031. Given the population of the Coral Coast in 2023 was 20,880 persons, and given one full-line supermarket is typically provided for every 8,000 to 10,000 persons, it is unsurprising the need experts agreed ‘the population is well-beyond the level at which two full-line supermarkets can operate successfully’.
  6. [73]
    The population capacity of the Coral Coast is estimated to be about 49,680 persons. Mr Duane pointed out, and I accept, that the population capacity of the Coral Coast, once realised, could be expected to serve five to six full-line supermarkets, assuming one is provided for every 8,000 to 10,000 persons.
  7. [74]
    The need experts identified that, at present, there is one existing full-line supermarket servicing the MTA and Coral Coast. This is Woolworths at Bargara central. The absence of competition (from a second full-line supermarket) within the MTA explains, in part, why Bargara central is vibrant and trading very successfully.
  8. [75]
    With the population trends and forecasts in mind, the need experts estimated the total retail spend for residents of the MTA. This was agreed to be $316.5 million in 2024, forecast to increase (in 2024 dollars) to $362 million in 2028 and $404.8 million in 2031. Of the total retail spend, it was agreed the MTA residents are likely to spend $87.3 million at supermarkets. This is forecast to increase (in 2024 dollars) to $99.3 million in 2028 and $110.3 million in 2031.
  9. [76]
    The evidence comfortably makes good a key point of agreement reached between the need experts. They agreed there is a clear economic need for a further full-line supermarket to serve the MTA. That need exists now and, in my view, should be given significant weight. This is because it is a need for a use that provides the necessities of life in circumstances where:
    1. there is only one full-line supermarket in the MTA, namely Woolworths, to serve a population of 16,000 persons (as at 2023);
    2. the existing Woolworths supermarket is neither modern nor centrally located to the population of the MTA – it is located at the northern periphery of the SNTA;
    3. those members of the public who reside in the MTA and prefer to undertake their grocery shopping at a full-line supermarket other than Woolworths are required to travel outside of the MTA (to locations such as Hinkler or the central business district); and
    4. the points in (a) and (c) are consistent with the proposition that there is considerable escape expenditure from the MTA, which will continue until it is intercepted, at least in part, by a new supermarket.
  10. [77]
    The need experts also assessed demand for the proposed medical centre and fast-food outlet. The analysis, which I accept, comfortably establishes there is an ongoing community and economic need for these facilities. That need exists now: FG-1, paras 129 and 133. As to the specialty stores, it was agreed the proposed development includes a modest floor area for uses of this kind. There was no requirement, in my view, to dwell upon the question of need for specialty stores given: (1) they are an expected part of a modern convenience shopping centre of the kind proposed; (2) the size of the specialty stores proposed is, as agreed, modest; (3) a specialty store is a Shop as defined in the planning scheme and anticipated for a supermarket based shopping centre in the Local centre zone; and (4) the planning scheme does not require a need to be demonstrated for a specialty store in the Local centre zone.
  11. [78]
    It was submitted on behalf of the appellant that while an ‘economic need’ has been demonstrated, there is no ‘planning need’ for the proposed development. This was said to follow because there is undeveloped and appropriately zoned land within the MTA capable of satisfying the economic need for a further full-line supermarket: Ex.32, para 87. The land to which reference was made is the vacant land adjoining Bargara central, which is the subject of the development application discussed at paragraph [20].
  12. [79]
    I have difficulty accepting this submission for three reasons.
  13. [80]
    First, the submission appears to be implicit with the proposition that overall outcome (2)(a) and PO3 b of the Local centre zone code are to be read with additional words of limitation that do not appear in the text. The additional words seem to be as follows: ‘that cannot be satisfied by land in the… District centre zone’.  The submissions made on behalf of the appellant do not establish a proper basis to read these words of limitation into the overall outcome, or performance outcome, of the Local centre zone code. This is in circumstances where the code includes statements of limitation, which are directed to the function, scale and intensity of an activity centre: PO1, PO2 and PO3, [59]. The code also includes overall outcome (2)(e), which, separate to the need test stated in (2)(a), requires consideration to be given to whether the proposed use is more appropriately located in a higher order centre.
  14. [81]
    Second, the point is founded on the proposition that the co-respondent is required to demonstrate two things to establish ‘need’, namely: (1) a latent unsatisfied demand for a full-line supermarket; and (2) a gap in the provision made in the adopted planning controls to meet the identified demand. There is no doubt (1) is established here. As to (2), the appellant’s case overlooks that the planning scheme provides for the latent unsatisfied demand identified here to be met in the Local centre zone. Once this is appreciated, the traditional concept of planning need as defined by reference to items (1) and (2), has little application to this appeal. In simple terms, this is because provision is made by the planning scheme to meet the demand for a full-line supermarket in the very zone the land is included.
  15. [82]
    Third, the submission assumes need for a second full-line supermarket can be met in the short-to-medium term at Bargara central. This is not an assumption I am prepared to act upon; it is far from certain that this assumption is sound: see paragraphs [21] to [29]. This was not lost on Mr Buckley.  At paragraph 27 of a separate report, Mr Buckley said, and I accept:

“To the extent that the Appellant’s application relies upon their code assessable application as a reason to defeat the…[co-respondent’s] …application, it is important to note that:

  1. there is no approval;
  2. there is no certainty about when an approval might be obtained by Stockwell and what that might look like especially given the access problems raised by SARA;
  3. the development is not constructed; and
  4. no supermarket tenant has been identified thus far.”
  1. [83]
    Each of these points were well made. In combination, they undermine the confidence the Court can have in assuming that a second full-line supermarket will be delivered at Bargara central in the short-to-medium term. Any confidence in making the assumption would, in my view, be misplaced. In practical terms, only one known supermarket operator is likely to take up the supermarket space, and it has no interest in doing so in the short-to-medium term. The operator has expressed negative views about the sustainability of a second full-line supermarket at Bargara central, which I accept is a reasonable view to adopt in the short-to-medium term: see paragraphs [26] to [29].
  2. [84]
    The real issues in this appeal can be put in these terms: whether approving the proposed full-line supermarket on the site would result in a development that: (1) exceeds the intended role, function and scale of a Local centre; and (2) is more appropriately located in a District centre (urban). The appellant, and its town planning expert, rely upon a number of matters that are said to be symptomatic of (1). These symptoms are relied upon to suggest (2) should be resolved in favour of the appellant.  One of the symptoms relied upon is the impact on trading levels at Bargara central.
  3. [85]
    The impact on trading levels represents an important point of contention between the economists. They examined the potential for adverse competitive impacts from the proposed development on existing and planned centres in the activity centre network.  Potential adverse impacts are tangible and intangible in nature. A tangible impact is a reduction in sales for centres that would compete with the proposal. The proposed development is forecast to achieve sales in the order of $47.3 million in 2028 (expressed in 2024 dollars and GST inclusive): FG-1, para 138. The vast majority of that sum (about $38 million) comprises supermarket sales. The remainder of the sales is shared between specialty stores and the fast-food outlet. The alleged intangible impacts in this case involve a suggestion that: (1) investment in the District centre at Bargara will be retarded in the event an approval is granted by this Court; and (2) an approval will adversely impact on the ‘vibrancy’ of Bargara central. Impacts of this kind do not lend themselves to empirical calculation or measurement; they are qualitative in nature.
  4. [86]
    The economists each assessed likely trading impacts and concluded the highest impact (on trading performance) would occur at Bargara central.  Mr Stephens assessed the impact to equate to a 14.4% reduction in sales. This can be compared with Mr Leyshon, who assessed the impact to be 20.6%. Mr Duane assessed the same impact to be 18%. 
  5. [87]
    After examining each economist’s assessment of impact, I preferred Mr Duane’s evidence. This is for two reasons. First, Mr Stephens’ assessment assumes sales will be secured (at identified percentages) by the proposed development from inside and outside of the MTA. While this can be accepted, his assessment of market penetration in, and outside of, the MTA, too heavily favoured sales coming from the latter. This has the effect of reducing the forecast impact on Bargara central. Second, Mr Leyshon’s assessment, in my view, overstates the likely impact on sales. He assessed the impact exclusive of sales for McDonalds and the new tavern/bottle shop. I do not accept these uses should have been excluded from the impact assessment; they will compete with the proposal, to varying degrees, for trade in the MTA. Excluding these uses from the assessment had the effect of inflating the likely sales impact on Bargara central.
  6. [88]
    While I preferred Mr Duane’s evidence, an impact on sales in the order of 18% to 21% is fairly regarded as ‘very high’. It exceeds a recognised rule of thumb, which suggests that the level at which competitive impacts change from tolerable to adverse is about 10%.  That the impact here exceeds 10% does not mean it is unacceptable and calls for refusal. The impact needs to be carefully examined to determine whether it is sustainable in the circumstances: Fabcot Pty Ltd v Ipswich City Council [2022] QPEC 11, [104]. Sustainability turns on matters of fact and degree, including the trading performance of the facility concerned, and the potential for healthy rates of population growth in the trade area of interest. Both of these matters are relevant here and are discussed later in these reasons for judgment.
  7. [89]
    It can be observed at this point that the evidence established Bargara central would continue to trade sustainably, and indeed successfully, in the event the proposed development was approved. The sales impacts are, on the balance of probabilities, unlikely to lead to the closure of Woolworths, Aldi or any specialty store.

The disputed issues to be determined

  1. [90]
    The disputed issues are defined by the order of 9 September 2024. The issues are articulated, principally, in the Part B written submissions prepared on behalf of each party: Ex.32, 33 and 34.
  2. [91]
    The appellant’s written submissions were marked exhibit 32. A review of that document, which was supplemented by oral submissions made by Mr Gibson KC, reveals the appellant’s refusal case is founded on five propositions:
  1. An approval of the proposed development would give rise to three impacts of concern, namely it would adversely impact upon:
    1. sales at Bargara central (reducing vibrancy);
    2. the proposed expansion of Bargara central to include, inter alia, a second full-line supermarket; and
    3. the development of the planned Local centre at Elliott Heads;
  2. The proposed development includes retail activities that are inconsistent with the intended role, function and location of a Local centre;
  3. The proposed full-line supermarket is more appropriately located at Bargara central;
  4. Items 1, 2 and 3 work serious and material non-compliance with the planning scheme, warranting refusal; and
  5. The relevant matters relied upon in favour of approval, including the existence of a need, are not such as to tip the balance in favour of approval.
  1. [92]
    For reasons that follow, I am satisfied the co-respondent has established the above propositions do not warrant refusal of its development application.
  2. [93]
    I will deal with each proposition in turn.

Impacts of concern

  1. [94]
    The impacts of concern fall into one of two categories. They are as follows.
  2. [95]
    First, it is contended the proposed development, if approved, will inflict a ‘detrimental impact’ on Bargara central. The detrimental impact is said to arise because the development (Ex.32, paras 28, 36 and 39(e)): (1) would have a high level impact on the supermarket and specialty shop sales; (2) would adversely impact the vibrancy of Bargara central as a whole; and (3) would retard investment in, and the expansion of, Bargara central, adversely impacting its ability to cater for ‘day-to-day and weekly shopping and service needs’.
  3. [96]
    Second, it is contended an approval would adversely impact on the establishment of a Local centre at Elliott Heads during the life of Council’s planning scheme, which reflects a planning horizon up to 2031.
  4. [97]
    The impacts identified in paragraphs [95] and [96] are relied upon to establish non-compliance with the planning scheme.
  5. [98]
    For reasons that follow, I am satisfied the ‘impacts of concern’ do not warrant refusal in this case.

Impact on sales and vibrancy

  1. [99]
    In the light of paragraphs [85] to [88], the appellant’s submission can be accepted that, in percentage terms, the forecast sales impact on Bargara central will be ‘very high’. It does not, however, follow that this impact is unacceptable. Nor does it follow that the impact is symptomatic of development exceeding its intended role, function and scale as a Local centre. The impact needs to be appreciated in context.
  2. [100]
    The evidence indicates there are a number of contextual matters of relevance to the impact on sales at Bargara central. Those matters can be identified as follows.
  3. [101]
    In the first instance, the percentage impact needs to be considered in the context that the implementation of the activity centre network articulated in the planning scheme may result in overlapping catchments between different centres at different levels of the hierarchy. This is the case here. The trade area for Bargara central overlaps with the trade area for the proposed development. The same is also true for the development the subject of the approval attaching to the site: discussed at paragraph [13]. The trade area for the approved development overlaps with the trade area for Bargara central. In this regard, Mr Duane said, and I accept, that the approved development will serve a similar, if not identical, trade area to the MTA for the proposed development: FG-1, para 63. This is so even allowing for the fact that the approved supermarket is less than 50% of the size of the full-line supermarket now proposed by the co-respondent.
  4. [102]
    That there is the prospect of overlapping catchments, and the prospect that both Bargara central and a planned Local centre may include a supermarket (paragraphs [13] and [63]), means the assessment of adverse economic impacts in this case ought commence from this footing: an adverse impact on sales at Bargara central is to be expected. The extent of the impact that should be expected, in my view, is in accordance with Mr Duane’s assessment. He forecast the expected reduction in sales at Bargara central to be in the order of 15%, assuming a code assessable development application for a shopping centre on the site was approved and that centre included a 3,000 m2 supermarket: FG-3, p. 10.  This can be contrasted with a forecast impact of 18%. Even taking the higher figure of 20.6%, the forecast impact of the proposal is relative to the impact that should be reasonably expected – in relative terms, the impacts are ‘very high’. This, in my view, is favourable to the proposed development but not, in and of itself, a complete answer to the adverse economic impact issue. Further context needs to be considered.
  5. [103]
    Further context is to be found in the evidence, which demonstrates that:
    1. Bargara central is a strong performing centre, benefiting from significant and rapid population growth in a trade area under serviced by full-line supermarkets;
    2. Bargara central’s trading strength is explained, in smaller measure, by its location, which is convenient to a significant tourist and visitor market (Ex.4, para 104) and unlikely to be affected by the proposed development;
    3. the forecast sales impact at Bargara central will largely fall upon Woolworths and Aldi – the former is trading at a level, even after the opening of the Woolworths at the Kepnock District centre, that exceeds benchmark standards for a full-line supermarket;
    4. Woolworths and Aldi, which are the draw cards to Bargara central and provide the foot traffic for specialty retailers, will not close in the event an approval is granted by the Court in this appeal;
    5. Woolworths and Aldi will continue to trade sustainably and successfully despite trading impacts that arise, in combination, from: (1) the Kepnock district centre (identified by Mr Stephens at T2-14 L23-31); and (2) the proposed development;
    6. contrary to the appellant’s case (advanced in reliance upon the evidence of Mr Leyshon), specialty stores at Bargara central are presently trading in a sustainable manner, and will continue to do so, for reasons discussed at paragraphs 40 and 41 of Council’s written submissions, which I accept;
    7. substantial future population growth is forecast for the Coral Coast and expected to enable retail sales at Bargara central to recover in the event an approval is granted by the Court;
    8. Bargara central includes a range of other retail and commercial uses, including a tavern, that will support trading strength and vibrancy despite an approval being granted for the site; and
    9. Bargara central will continue to fulfil the role and function of a District centre (urban) for the purposes of the planning scheme in the event the Court approves the proposed development on the site.
  6. [104]
    When a forecast economic impact of 18%, or even 20.6%, is considered against the background of paragraphs [102] and [103], I am satisfied the impact, while very high, will not be unacceptable. The impact, appreciated in context, will be offset by a substantial number of countervailing considerations. This gives the Court comfort that Bargara central, despite an approval being granted in this appeal: (1) will maintain its planned dominance as a District centre (urban) over a Local centre proposed at the site; and (2) will continue to trade as a sustainable and successful District centre (urban).
  7. [105]
    The appellant submitted the forecast economic impact will act as a disincentive for further investment in retail assets and reduce the overall vibrancy of Bargara central. This was also said to lead to the potential for ‘further vacancies of specialty retailers’: Ex.32, para 23(b) and (d). With these impacts in mind, it was contended the co-respondent had not demonstrated the proposed development will be a centre that complements the planned activity centre network, nor will it assist other centres be vibrant: Ex.32, paras 24 and 27.
  8. [106]
    I do not accept this submission. It wrongly assumes an approval for the proposed development, if confirmed, will: (1) adversely impact on the vibrancy of Bargara central; (2) act as a disincentive for further investment in retail assets at Bargara central; (3) increase the potential for further vacancies of specialty retailers; and (4) result in impacts that do not complement the planned activity centre network.
  9. [107]
    Having regard to the Strategic framework provisions referred to in paragraph [46], it can be readily accepted that the planning scheme promotes an activity centre network comprising ‘vibrant’ and ‘complementary’ centres. The term ‘vibrant’ is not defined in the planning scheme. Nor is it defined in any other document referred to in s 1.3.1(1) of the planning scheme. It is therefore to be given its ordinary meaning. The word conveys, in context, that a planned activity centre is intended to have vitality and flourish. Whether a centre can, or does, achieve this in a town planning sense, does not lend itself to empirical measurement alone (forecast sales and associated viability); the assessment also involves matters of impression and judgment.  The term ‘complementary’ is also not defined in the planning scheme. Nor is it defined in any other document referred to in s 1.3.1(1) of the planning scheme. It is to be given its ordinary meaning. In context, it conveys the notion of making ‘something’ whole or complete – the ‘something’ here is to be understood as the activity centre network. The planning scheme provides for that network. The network comprises, or is made whole, by several centres of different sizes serving different roles and functions. A centre that serves its intended role and function is contributing to the network and, to the extent it is able, makes the planned network whole, or complete.
  10. [108]
    Dealing with the alleged impact on vibrancy (item 1, para [106]), the evidence does not make good an assertion that the proposal will adversely impact on Bargara central to the point there is an appreciable reduction in its vitality and vigour. This, in my view, follows from the need experts’ evidence about the anchor tenants and specialty retailers at Bargara central. As to the former, they are the major generator of foot traffic for the centre and will continue to trade sustainably and successfully despite the approval the co-respondent seeks. As to the latter, the specialty tenants are the most likely to be affected by reduced sales in the centre because this will, in practical terms, sound in reduced ‘foot traffic’ overall, being the custom upon which they rely for trading success. The cross-examination of Mr Leyshon, taken in conjunction with Mr Duane’s evidence, did not suggest it is fair to proceed on the footing that there are specialty retailer vacancies, let alone a risk of ‘further vacancies’ in the event Council’s approval for the site is confirmed (item 3, para [106]). Rather, the confidential material with respect to specialty retailers confirms they are trading at sustainable levels and will continue to do so despite a reduction in foot traffic. A submission to the contrary was based on Mr Leyshon’s written evidence. The submission did not take into account Mr Leyshon’s cross-examination. This part of the evidence exposed that Mr Leyshon’s assessment of impact for specialty retailers (due to a reduction in vibrancy) was significantly overstated.
  11. [109]
    I am satisfied Bargara central trades successfully. It will continue to do so in the event the approval granted for the site by Council is confirmed. As a successful centre, taken in combination with the service station and McDonald’s store on adjacent land, it will: (1) serve a catchment that is close to a sub-regional catchment (depicted in FG-2, Attachment A); (2) accommodate a concentration of retail, administrative and health services; and (3) cater for day-to-day and weekly shopping and service needs. In so doing, it meets, and will continue to meet, the description set out in s 3.4.2.1(a) of the planning scheme for a District activity centre (urban). The proposed development will not cause this to change.
  12. [110]
    The appellant also advances the proposition that the proposed development will not complement or support Bargara central. To demonstrate this point, Mr Gibson KC, and the appellants’ experts, repeatedly focused on one matter. It can be put as a rhetorical question: how does the proposed development complement and support Bargara central if 1 in every 5 dollars spent at the latter is re-directed to the former? The question, and the answer it is intending to suggest, has some superficial attraction; it suggests a 20% reduction in sales is not complementary or supportive of Bargara central. To approach the issue of ‘complementary’ centres in this way is too narrow in my view.
  13. [111]
    As I observed earlier, a complementary network of centres in the planning scheme is one comprising a number of components (centres) that mutually combine to create the whole network. For reasons given in paragraphs [104], [108], [109], [126] and [132] to [182], I am persuaded the proposed development will, contrary to the appellant’s case, support and complement the planned activity centres network. It will do so because the proposed development: (1) will perform in accordance with the intended role and function of a Local centre; (2) will be of a scale that is appropriate for the role and function of a Local centre; (3) will not give rise to adverse impacts on the sustainability and vibrancy of Bargara central; and (4) is not more appropriately located in a higher order centre, such as Bargara central.
  14. [112]
    The appellant, in the context of an alleged impact on sales and vibrancy, made the point that an approval here would retard investment in, and the proposed expansion of, Bargara central. For reasons given below, I am not persuaded this is a matter of town planning consequence that warrants refusal.
  15. [113]
    I am satisfied the proposed development will not give rise to the adverse impacts identified at [106].

Impact on investment and the proposed expansion of Bargara central

  1. [114]
    The proposed development, if approved, will delay the provision of a second full-line supermarket at Bargara central. Such a facility would not be viable, at the earliest, until sometime after 2031. The evidence suggests 2036 is a more realistic estimate of time having regard to the population of the Coral Coast, the number of people required in a trade area to sustain a full-line supermarket, the level of likely escape expenditure, and competition from Aldi and smaller retailers.
  2. [115]
    The population of the Coral Coast by 2031 will be in the order of 25,560 people: FG-1, Table 3. Mr Duane said this population could, theoretically, support a third supermarket, assuming the provision of one full-line supermarket for every 8,000 to 10,000 people. However, given the anticipated level of escape expenditure and the presence of Aldi and other smaller retailers, Mr Duane was of the opinion the population size required to support three full-line supermarkets within the Coral Coast was closer to 30,000 people: T2-78 to 79.  The population of this area is forecast to reach this level in about 2036. I accept Mr Duane’s evidence in this regard.
  3. [116]
    The appellant alleged that any delay to the provision of a second full-line supermarket at Bargara central was an impact of concern, particularly once it was appreciated that (Ex.32, para 76): (1) there is a development application (Ex.8) before the Council seeking approval for a second full-line supermarket at Bargara central; and (2) unlike land within the Local centre zone, there is no ‘restriction’ on an application for a major full-line supermarket to be allowed only if a need is demonstrated.
  4. [117]
    I accept that a decision to confirm the approval granted by Council will impact on the appellant’s preferred form of development for the vacant land at Bargara central. The approval for the site will mean that a second full-line supermarket is unlikely to be supportable at Bargara central until 2036. The appellant’s disappointment about this, as a matter of private economics, is understandable – a full-line supermarket, assuming a tenant could be secured, would be a profitable venture. This is not, however, to the point. The issue must be examined from a town planning perspective rather than as a matter of private economic concern. When approached in this way, the evidence does not suggest an approval, which would impact on the appellant’s immediate plan to develop its vacant site with a second full-line supermarket, is a matter that should be regarded as unacceptable. This is so for the following reasons.
  5. [118]
    An approval would not retard, or prevent, investment in the expansion of Bargara central with the range of uses promoted by the planning scheme for that centre. This is a matter of import given: (1) the findings at [48], [104] and [109]; (2) the planning scheme does not suggest the District centre (urban) at Bargara is to be fully developed by 2031; and (3) the planning scheme does not convey an expectation that Bargara central will be developed by 2031 as the only shopping centre in the Coral Coast anchored by two major full-line supermarkets.
  6. [119]
    The vacant land within the Bargara district centre, which is the subject of the appellant’s code assessable development application, provides an opportunity to deliver an expanded range of uses anticipated by s 3.4.2.1(a) of the planning scheme. Not all of these uses have been provided in Bargara central or on adjacent land in the District centre zone. As Mr Duane and Mr Stephens correctly pointed out, the range of uses that could be developed on the vacant land include retail uses, childcare facilities, commercial uses, residential uses and offices. 
  7. [120]
    With paragraphs [114] to [119] in mind, I do not accept granting an approval for the site inclusive of a full-line supermarket is unacceptable, from a town planning perspective. This is because: (1) Bargara central will, despite granting the approval, remain a vibrant centre, trading sustainably and successfully; (2) Bargara central will, despite granting the approval, continue to provide facilities that function, together with adjacent centre uses, as a District centre (urban) described in s 3.4.2.1(a) of the Strategic framework – this includes meeting day-to-day and weekly shopping needs (paragraph [48]); (3) despite the appellant’s preference to develop the vacant land with a full-line supermarket, there is good reason to doubt it could, in fact, secure a tenant to operate such a facility in the short-to-medium term (5 to 7 years); (4) the planning scheme envisages a range of land uses in a District centre (urban), including non-retail uses, which could be developed on the vacant land at Bargara central now – the planning scheme does not dictate that the uses in the centre must only be retail in nature; and (5) the planning scheme does not suggest, let alone require, the planned District centre (urban) at Bargara to be fully developed within the life of that document, which has a planning horizon up to 2031.
  8. [121]
    It was not suggested by any expert that the range of uses envisaged by the planning scheme for the District centre at Bargara could not be delivered on the appellant’s vacant site. Indeed, both Mr Ovenden and Mr Leyshon, who were called on behalf of the appellant, reluctantly accepted that a range of alternative uses anticipated by the planning scheme could be provided on the vacant land. The uses included retail and non-retail opportunities. Their reluctance can be sourced to a desire to no doubt support the appellant’s stated preference to pursue a full-line supermarket on its vacant site rather than alternative uses promoted by the planning scheme. That preference is not determinative of the issue presently under consideration. The preference, in my view, is driven by private economics rather than town planning considerations. Furthermore, there is good reason to doubt that the stated preference, even if pursued, will come to fruition in the short-to-medium term: see paragraphs [21] to [29] and [82] to [83].
  9. [122]
    I am satisfied the impact of the proposed development on the appellant’s preference to develop its vacant site with a full-line supermarket is not unacceptable in town planning terms.

Adverse impact on the delivery of a Local centre at Elliott Heads

  1. [123]
    The planning scheme promotes the provision of a Local centre at Elliott Heads, south of the site: ss 3.4.2.1(a), 7.2.1.2(2)(h)(ii) and Figure 7.2.1. This centre has not been established. The appellant’s case involves a contention that the proposed development will adversely impact on the establishment of this centre.
  2. [124]
    This contention was advanced (Ex.32, paras 77 and 78) in reliance upon Mr Leyshon’s evidence. It was his opinion that it would not be feasible to develop a small-to-medium scale supermarket (up to 1,500 m2 in size) as part of the planned Local centre at Elliott Heads in the event the proposed development was approved: Ex.23, pp. 13-14. As I understood the effect of the evidence, the size of the trade area for the centre at Elliott Heads was said to be insufficient to support a small-to-medium scale supermarket, while competing with the proposed development. Mr Leyshon was of this view taking into account: (1) that trade for the small-to-medium supermarket would be drawn from the SSTA; (2) that the total available annual spend on supermarket goods in the SSTA in 2031 will be $27.1 million; (3) that a supermarket (up to 1,500 m2) at Elliott Heads would require annual sales in the order of $12 to $15 million to operate viably, equating to a market share in the SSTA of 55% to 69%; and (4) that a market share of 55% to 69% would not be achievable for a small-to-medium supermarket competing with a full-line Coles supermarket, specialty stores and medical centre on the site, which would also draw trade from the SSTA.
  3. [125]
    Against the background of Mr Leyshon’s evidence it was submitted that an approval would adversely impact on the delivery of a Local centre at Elliott Heads during the life of the planning scheme. It was contended that a facility would not be delivered (prior to 2031) that is able to provide for ‘local level retail…needs’ by accommodating ‘local shopping’ activities as intended by the purpose of the Local centre zone code: Ex.32, para 81. This impact was said to put the intended settlement pattern at risk.
  4. [126]
    I am satisfied, having regard to the planning scheme and Mr Duane’s evidence, that the asserted impact on the planned Local centre at Elliott Heads is not a matter of concern. This is so for a number of reasons.
  5. [127]
    First, the planning scheme does not suggest the designated Local centre at Elliott Heads will be, or is required to be, delivered before 2031. The timing for the delivery of the centre turns on the rate of population growth in the area.
  6. [128]
    Second, assuming the planning scheme requires the centre to be delivered before 2031, the population at Elliott Heads is forecast to reach about 4,000 persons at this time. Mr Duane said a population of this size could support a supermarket of 800 to 1,200 m2 in size overtime. This is so even assuming an approval was granted by the Court in this appeal: FG-1, para 178. A Local centre of this size will provide for local level retail needs. It will also accommodate local shopping needs. Mr Duane said a facility greater than this size is unlikely to be established in any event given its location, sited at the southern periphery of the MTA. I accept Mr Duane’s evidence.
  7. [129]
    Third, the greatest impediment to the delivery of the planned centre at Elliott Heads is not the subject proposal, but rather the rate at which urban development is completed around the designated land. At present, the designated Local centre is not zoned for that purpose. It is an undeveloped, agricultural part of Elliott Heads. Substantial urban growth is required for the centre to be sustainable, irrespective of what occurs on the site.
  8. [130]
    Population growth to support the Local centre at Elliott Heads is envisaged by the CCUGA local plan. This plan designates a Local centre at Elliott Heads as well as land for future urban purposes. This is consistent with an extant Preliminary Approval for a Master Planned community at Elliott Heads (Ex.31). The approval, which was given under an earlier planning scheme, applies to 246 hectares of land. It provides for, among other things, 3,200 homes (7,000 people), a village centre, a shopping centre, schools, healthcare services, recreation facilities and parks. The approval was granted in 2013 and has a currency period expiring on 22 August 2025. A comparison of the approval with the current zoning map confirms Mr Duane’s evidence that most of the land zoned Emerging community and Low density residential at Elliott Heads is accounted for by the preliminary approval: FG-3, para 2.26. The first stage of the Master Planned community has commenced. Roads have been constructed. There are no houses. A great deal of development needs to be delivered before the Master Planned community is complete.
  9. [131]
    The extent of urban development, and subsequent population growth anticipated by the Local plan, and the preliminary approval referred to above, will, I am satisfied support a range of shopping and other related uses at Elliott Heads. The proposed development will not alter this position. Nor will it impede the achievement of the intended pattern of development in this area in the long term.

Role, function and location

  1. [132]
    The appellant submits the proposed development includes retail activities (i.e. a full-line supermarket) that are inappropriate for the intended role, function and location of a Local centre: Ex.32, para 30.
  2. [133]
    The written submissions prepared on behalf of the appellant reveal that seven contentions underpin this submission. In summary terms, it is contended the proposed development: (1) will serve a larger trade area than expected; (2) will have significant market penetration, diverting one in every five dollars from a higher order centre, namely Bargara central; (3) will detrimentally impact, and not complement, a higher order centre, namely Bargara central; (4) will impact on the vibrancy of a higher order centre, namely Bargara central; (5) will retard the expansion of a higher order centre, namely Bargara central, that otherwise would include a second full-line supermarket; (6) provides for a full-line supermarket that is more appropriately located at a higher order centre, namely Bargara central; and (7) there is no support for the proposed development in the provisions of the CCUGA local plan.
  3. [134]
    Before dealing with these propositions, I wish to observe that I have significant difficulty with this aspect of the appellant’s case. It appears to be founded, in large measure, on the misguided contention that a major full-line supermarket is not appropriate in the Local centre zone, even where a need is demonstrated. Contrary to the appellant’s case, this use is expressly anticipated in the Local centre zone. This is clear from overall outcome (2)(a) and performance outcome PO3 b of the Local centre zone code, both of which anticipate the use in the zone subject to the demonstration of need: see [56] and [59]. For reasons already given, I am satisfied need has been demonstrated.
  4. [135]
    Given paragraph [134] and given the proposed development will not function as a District centre for the purposes of the planning scheme, this aspect of the appellant’s case calls, in my view, for very careful scrutiny; at face value, it is lacking in merit. In any event, an examination of the contentions identified in paragraph [133] with paragraphs [94] to [131] reveals that only items (1), (2) and (7) require further examination. The remaining items have already been considered. I am satisfied they do not warrant refusal.
  5. [136]
    The point raised in item (1) is to the effect that the trade area for the proposed development exceeds what is anticipated for a Local centre. The appellant’s written submissions contend the trade area to be served by the proposal is a district level catchment that:
    1. could not be described as one that ‘surrounds’ the subject land for the purposes of s 3.4.2.1(a) of the planning scheme: Ex.32, paras 9(b) and 10;
    2. goes beyond serving what is intended for a ‘pedestrian based lifestyle centre’ for the purposes of PO7 of the CCUGA local plan: Ex.32, para 30;
    3. will serve more than ‘local level convenience needs’ for the purposes of PO1 of the Local centre zone code: Ex.32, para 30; and
    4. will serve more than a local catchment contrary to PO2 of the Local centre zone code: Ex.32, para 30.
  6. [137]
    With these points in mind, it can be accepted that the MTA is large, linear, does not ‘surround’ the site (Ex.32, para 10) and exceeds a walkable catchment (Ex.32, para 15). These matters are not, however, determinative of the issue raised. It is necessary to carefully examine the provisions of the planning scheme raised to determine the extent to which they purport to limit, or constrain, the trade area serviced by a Local centre.
  7. [138]
    Section 3.4.2.1(a) of the planning scheme describes ‘in further detail’ the planned activity centres for the Bundaberg region: see [46]. The description of a Local activity centre is as follows:

“Local activity centres provide for local shopping needs, function as local employment nodes and comprise a mix of commercial, cafes/dining, entertainment and community services for a surrounding residential neighbourhood. They may have a small residential component including visitor accommodation.”

  1. [139]
    By reference to the above, it can be seen that a Local activity centre is intended to do three things, namely: (1) provide for local shopping needs; (2) function as a local employment node; and (3) comprise a mix of specific uses for a surrounding residential neighbourhood. I am satisfied the proposed development satisfies items (1) and (2). The development, inclusive of the major full-line supermarket, will provide for local shopping needs (predominantly food and groceries) and provide local employment: see [63]. The appellant’s case assumes item (3) applies to the proposed development and limits the area it should serve to ‘a surrounding residential neighbourhood’. I do not accept this is correct. The words ‘surrounding residential neighbourhood’ are to be read as attaching to the mix of uses that precede it, namely ‘commercial, cafes/dining, entertainment and community services’.  The major full-line supermarket proposed does not fall within this mix of uses. It is captured by the intention that a Local centre will meet ‘local shopping needs’. This phrase is not limited or constrained by the identification of a ‘surrounding residential neighbourhood’.  For reasons given in paragraph [63], the proposed development will meet a local shopping need as anticipated by the planning scheme for a Local centre.
  2. [140]
    Performance outcome PO7 of the CCUGA local plan provides for the establishment of a local centre at Bargara that is ‘consolidated as a pedestrian based lifestyle centre located at the heart’ of its community. The appellant submits the size of the MTA is indicative of a centre that is not pedestrian based. I do not accept this submission is of assistance in this appeal. It misunderstands PO7 of the CCUGA local plan.
  3. [141]
    Performance outcome PO7 of the CCUGA local plan requires development to ‘establish’ a local centre at Bargara south. That centre is to be ‘consolidated’ as a particular type, namely one that is a ‘pedestrian based lifestyle centre’. As to the former, I am satisfied the proposed development will establish a consolidated Local centre at Bargara south. The proposed centre will be located, and fill, the single site designated for that purpose. Further, the proposed centre has been designed to function as a single facility, offering a mix of uses that meet local shopping needs. The latter requires closer examination.
  4. [142]
    What is a ‘pedestrian based lifestyle centre’ for the purposes of PO7?
  5. [143]
    The appellant’s submissions did not address this question. The written submissions (at paragraph 30) merely extract the phrase, put it in italics, and asserts the proposal is beyond what is intended because it serves the southern half of the Coral Coast. This submission was unhelpful.
  6. [144]
    Returning to the question posed, the relevant term is not defined in the planning scheme. Nor is it defined by another document referred to in s 1.3.1(1) of the planning scheme. The town planners called to assist the Court did not suggest the phrase is a technical term, or term of art. As a consequence, the phrase is to be given its ordinary meaning, informed by context. As to context, there is no immediate context to assist as to its meaning. I was not directed to any broader context that assists.
  7. [145]
    In my view, adopting a practical and common sense approach leads to the conclusion that the phrase is describing the location and design of a centre from the perspective of a pedestrian, rather than the catchment it is intended to serve. This does not mean, as the appellant’s submissions seem to imply, that a Local centre is intended to serve a limited catchment, namely a walkable or pedestrian based catchment. These concepts do not apply to a Local centre in this planning scheme. At best, the former concept attaches to a lower order centre, namely a Neighbourhood activity centre. Centres of this kind are located in urban settings and commonly have, but are not necessarily limited to, ‘a walking distance catchment’. That a Neighbourhood centre can have a ‘walking distance catchment’, is supported by the range of uses promoted by the planning scheme for these centres to achieve their intended role and function. Importantly, the uses anticipated are ‘small-scale’ and support ‘basic convenience needs’: s 6.2.8.2(1). A guide as to the meaning of ‘small-scale’ in context can be found in the table of assessment for the Neighbourhood centre zone. The table provides that a Shopping centre is code assessable in the zone where it has a maximum gross lettable area of 2,500 m2 for all shop tenancies, with a maximum of 400 m2 for any one tenancy. As a matter of practicality, this would exclude a full-line supermarket such as that proposed.
  8. [146]
    That the intended trade area for a Local centre is not limited to a walkable catchment is confirmed by the purpose of the zone code. The Local centre zone code purpose promotes centres that provide for a limited range of land uses and activities to meet the local level retail, business and community needs of an area. The relevant area to be serviced is identified as ‘coastal towns and their surrounding rural catchments and residential neighbourhoods within Bundaberg’ (emphasis added to the plural). When the MTA is considered, I am satisfied it captures coastal towns (and surrounding rural catchments) and residential neighbourhoods within Bundaberg. That it does not extend beyond the area intended to be served by a Local centre is confirmed, in my view, by three comparative exercises, namely:
    1. one, by comparing the trade area for Bargara central with the MTA – this comparison reveals the trade area for the former, which is a higher order centre, extends well beyond the MTA;
    2. two, by comparing the MTA with the trade area for the development approval attaching to the site, which includes a supermarket less than half the size of that proposed by the co-respondent in this appeal – the trade areas are identical; and
    3. three, by comparing the MTA with the catchment intended for a Neighbourhood activity centre – the former is greater in size than a walkable catchment by reason that it will cater for more than basic convenience needs.
  9. [147]
    The size of the MTA, in my view, sits comfortably between the trade areas anticipated for a District centre (urban) and a Neighbourhood centre promoted by the planning scheme. This is indicative of a trade area that is consistent with what is intended for a Local centre.
  10. [148]
    Putting the MTA to one side, I am satisfied the proposed development is, in any event, located and designed to be a pedestrian based lifestyle centre. This is so for two reasons. First, the proposed development is well located to, and within convenient walking distance from, areas of substantial population growth. The population growth includes medium density living (both existing and planned). The proximity to medium density development will encourage walkability and pedestrian movements to and from the centre. Second, the design of the proposed development facilitates pedestrian movement to, from and within the centre. This is clear from the site plan, where it can be seen that the design includes provision for safe pedestrian movement via formal pathways.  These two reasons, taken in combination with the overall design and uses proposed, demonstrate the development, from a pedestrian’s perspective, will achieve what is intended for a Local centre.
  11. [149]
    I am satisfied compliance has been demonstrated with PO7 of the CCUGA local plan code. For completeness, it can be observed that if a different view is taken about PO7, non-compliance with the provision does not advance the appellant’s refusal case. Despite pressing non-compliance with PO7, the appellant did not acknowledge the evidence of its town planning witness, Mr Ovenden. He confirmed in his oral evidence that non-compliance with PO7 did not call for refusal. This was based on his view that the non-compliance would not sound in adverse town planning consequences. I accept this evidence.
  12. [150]
    Performance outcome PO1 of the Local centre zone code is set out at [59]. The appellant’s submissions focus on the following emphasised part of that provision, which states in part:

“Development provides for a range of business activities that service the local level convenience needs of residents and surrounding tourism or primary production industries, and offers locally based employment opportunities.”

  1. [151]
    The point made on behalf of the appellant is that the full-line supermarket proposed, which is evidenced by the size of its trade area, will serve more than a local level convenience need.
  2. [152]
    The phrase ‘local level convenience needs’ is not defined in the planning scheme. It is to be given it is ordinary meaning, informed by context.  For this appeal, it is sufficient to say surrounding context supports a conclusion that the phrase is intended to capture a major full-line supermarket for which a need is demonstrated: see paragraph [63]. This flows, in my view, from overall outcome (2)(a), performance outcome PO3 b and the table of assessment for the Local centre zone code. The overall outcome and performance outcome, which are intended to facilitate the achievement of the purpose of the code, anticipate a full-line supermarket in the Local centre zone, subject to the demonstration of need. Need has been demonstrated in this case. The size of the supermarket proposed is commensurate with the strength of the need identified. The need to be examined is not geographically limited by the zone code to residents located in a particular catchment size or area. It is simply the needs of ‘residents’ that are examined. In such circumstances, clear words, in my view, would be required to conclude the proposed development, inclusive of a modest level of specialty stores, is not consistent with meeting ‘local level convenience needs’. It will serve the needs of the residents in the MTA, to greater or lesser degrees, depending on their shopping preferences and proximity to competing facilities (such as Bargara central and Kepnock).
  3. [153]
    Performance outcome PO2 of the Local centre zone code requires development to be of a scale and intensity that is consistent with the intended role and function of a Local activity centre. This provision is an important one in this appeal. It exposes, in my view, a genuine issue between the parties, namely whether the scale and intensity of the proposed development is appropriate.  The appellant contends the scale of the proposed development is inappropriate because it will serve more than a local catchment and enjoy significant market penetration: Ex.32, para 30.
  4. [154]
    I do not accept this submission.
  5. [155]
    The planning scheme does not require the trade area for the proposed development be limited to a local catchment. Rather:
    1. the planning scheme speaks of meeting a local level retail need for a geographic area described in the purpose of the Local centre zone code (s 6.2.7.2(1)) – for reasons given in [146], the proposed development will serve the area so described;
    2. the planning scheme speaks of Local centres meeting ‘local shopping needs’ (s 3.4.2.1(a)) – for the reasons given at paragraphs [63] and [152], the proposed development will meet this need; and
    3. the planning scheme speaks of Local centres meeting ‘local level convenience needs of residents and tourists’ (PO1, zone code) – for the reasons given at paragraphs [63] and [152], the proposed development will meet the local level convenience needs of residents.
  6. [156]
    As to market penetration, the economic experts examined, and forecast, the likely market penetration of the proposed development, inclusive of a major full-line supermarket. The extent of market penetration forecast will result in sales impacts for Bargara central that are, in percentage terms, very high (18 to 21%).  For reasons given above, the evidence establishes that this impact will not be unacceptable. Moreover, the evidence establishes an approval has the effect of bringing to an end an effective monopoly enjoyed by the facility at Bargara central. Once this is appreciated, the market penetration forecast for the proposed development is not indicative in the circumstances of a facility that goes beyond the scale intended by the planning scheme for a Local centre. It flows from this reasoning that item 2 at paragraph [133] also cannot be accepted.
  7. [157]
    Item 7 at paragraph [133] refers to the appellant’s submission that there ‘is no support’ for the proposed development to be found in the provisions of the CCUGA local plan code: Ex.32, para 31. The absence of support was sought to be demonstrated by reference to: (1) silence in the CCUGA local plan about a major full-line supermarket on the site (Ex.32, para 33); and (2) asserted non-compliance with PO6 e of the CCUGA local plan. This part of the performance outcome requires new development to not detrimentally impact on existing or approved activity centres (Ex.32, para 36). For reasons already given, I do not accept item (2) has been made out on the evidence.
  8. [158]
    That the local plan is silent about the provision of a major full-line supermarket on the site does not take the matter very far, if at all. Silence in this planning scheme about a major full-line supermarket on the site should be regarded, in my view, as a neutral consideration. Put simply, this is because silence falls well short of ‘plainly identified’ non-compliance with the planning scheme (cf Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at 212). It also falls well short of discouragement for the proposed use. This is because the Local centre zone code makes express provision for a major full-line supermarket in the zone in a specific circumstance and there is no provision of a local plan that displaces this intent for the site. This is significant in my view given the purpose of a local plan includes providing more detailed planning for zones: s 7.1(1).
  9. [159]
    The point the appellant makes about silence is really one of contrast. The appellant points to the Kalkie-Ashfield local development area local plan code (Ex.10, p. 128), which relevantly provides as follows for a local centre:
  1. “(i)
    development in the local activity centre:-

…

  1. may provide for a full-line supermarket where forming part of the local activity centre; and”

And:

“PO11

Development in the local activity centre:-

  1. provides for local weekly shopping and service needs including a mix of traditional retail (shops), commercial, cafes/dining, entertainment and community activities; and
  2. may include a full-line supermarket.
  1. [160]
    These provisions encourage a full-line supermarket in that local plan area.
  2. [161]
    I do not accept that express encouragement for a full-line supermarket in a local plan that does not apply to the site in some way conveys discouragement for the proposal. Quite apart from the absence of an express statement to this effect, in simple terms, the above provisions of the planning scheme do not alter the Local centre zone code as it applies to the land. As I have said, that zone code anticipates a major full-line supermarket in the zone where need is demonstrated. It also anticipates development that includes a full-line supermarket up to 3,000 m2 in size. Where development of this kind is proposed, it would be subject to code assessment: see paragraph [63]. An application of this kind would be assessed against part of the planning scheme only and must be approved if it complies with the applicable assessment benchmarks: s 60(2)(a) of the Act.
  3. [162]
    Given: (1) a major full-line supermarket is anticipated in the Local centre zone where a need is demonstrated; (2) the proposed development will serve the role and function planned for a Local centre (s 3.4.2.1(a) of the planning scheme); (3) the proposed development will function in the manner anticipated by the purpose and PO1 of the Local centre zone code; and (4) the proposed development will not adversely impact on the role, function and sustainability of Bargara central and the planned centre at Elliott Heads; I am satisfied the development will be consistent with the intended role, function and location of a Local centre on the site.

‘More appropriately located’ at Bargara central

  1. [163]
    Overall outcome 2(e) of the Local centre zone code tempers the encouragement provided for a full-line supermarket for which there is an identified need. The provision requires consideration to be given, in this case, to whether the proposed development is a ‘higher order or larger scale use’ that is ‘more appropriately located’ at Bargara central. This issue is to be resolved, in my view, from a town planning perspective. It is not resolved from the perspective of a proponent for approval or commercial objector.
  2. [164]
    As a starting point, I have difficulty accepting the subject proposal, which complies with overall outcome 2(a) of the Local centre zone code, is a ‘higher order’ use that may undermine or compromise the activity centre network. The phrase ‘higher order’, in my view, captures facilities that are not intended in the zone, such as a department store or discount department store: see overall outcome 2(a) and performance outcome PO3 of the Local centre zone code. A full-line supermarket for which there is a need is not such a use. It is, however, unnecessary to dwell upon this point because the forecast economic impacts (sales) of the proposal, while not unacceptable, suggest the scale of the facility should be examined carefully against the test stated in overall outcome 2(e).
  3. [165]
    It was contended on behalf of the appellant that a number of factors indicate the full-line supermarket proposed is more appropriately located at Bargara central for the purposes of overall outcome 2(e).  The factors identified as being ‘indicative’ were as follows (Ex.32, para 39, footnotes omitted):
  1. “(a)
    there is room in this [Bargara Central] centre to accommodate the use;
  2. (b)
    there is an application before the Council for this use;
  3. (c)
    the planning scheme intends that a full line supermarket be included in District Activity Centres without the demonstration of need; the use is not “by exception” in contrast to Local Activity Centres;
  4. (d)
    the community would be better served by a “one stop shop” where there was access to an Aldi and two full line supermarkets including through linked trips;
  5. (e)
    the impacts upon other centres (and in particular upon the Bargara Centre District Activity Centre/Bargara Central Shopping Centre) which indicates that the full line supermarket is more appropriately located within this centre as it would mean that the decreased foot traffic to the detriment of the specialty tenants would not occur.”
  1. [166]
    I accept the submissions in subparagraphs (a), (b) and (c). These matters represent statements of fact.
  2. [167]
    I do not accept (d). The benefit of a ‘one-stop-shop’ has been significantly overstated. Further, it is my view that the proposal is more conveniently located to better serve the identified need than a second supermarket at Bargara central.
  3. [168]
    The evidence of Mr Stockwell, coupled with the evidence of the need experts and ordinary experience, indicates that a ‘one stop shop’ has its benefits and disbenefits for shoppers, when measured in terms of competition, choice and convenience. The same can also be said for a standalone supermarket based development of the kind proposed. Irrespective of the type of development examined, the evidence showed that: (1) the benefits and disbenefits associated with such matters involve matters of judgment and impression; and (2) a clear winner, in terms of competition and choice, is not immediately obvious.  The same cannot be said for convenience in this case.
  4. [169]
    In my view, the comparative exercise central to the appellant’s submission reveals the proposed development will better serve the public than the expanded Bargara central. This has little to do with matters of competition and choice. It is more to do with convenience and the spatial distribution of centres.
  5. [170]
    If it is assumed the second full-line supermarket is located at Bargara central, this will concentrate supermarket facilities at the northern end of the MTA.  This will be less convenient for those members of the public that reside at the southern end of the MTA in comparison to the location of the proposal. This inconvenience will not be without consequence. It is likely to manifest in considerable escape expenditure from the MTA: see paragraphs [19] and [76](d).
  6. [171]
    Locating the second full-line supermarket to the south of Bargara central on the site will, as the economists predict, intercept escape expenditure from the MTA to Kepnock and beyond. The level of escape expenditure intercepted will be significant, as is demonstrated by the economic impact analyses prepared by each of the need experts. This suggests the proposal will provide a high level of convenience to shoppers that otherwise travel outside the MTA to undertake their supermarket shopping. This includes members of the public discussed in paragraph [170], who are located proximate to, and south of, the proposed centre.
  7. [172]
    I do not accept (e) for the reason given in paragraphs [94] to [162].
  8. [173]
    When examined from a town planning perspective, as distinct from the perspective of the appellant or co-respondent, I am satisfied the proposed development will not undermine or compromise the activity centre network. Further, I am satisfied the proposed full-line supermarket is not more appropriately located at Bargara central. This is so despite: (1) the statements of fact I accept in paragraph [166]: and (2) assuming the proposed development is properly characterised as a higher order and larger scale of use for the purpose of overall outcome 2(e). I am so satisfied for the following reasons taken in combination:
    1. the proposed development will not adversely impact on Bargara central for the reasons set out at paragraphs [94] to [131];
    2. the proposed development will not impact on Bargara central fulfilling its intended role and function under the planning scheme – it will continue to trade sustainably and successfully;
    3. the proposed development will not function as a District centre in and of itself – I accept what Mr Stephens said in this regard (FG-2, para 43), namely the proposed development:

“… [will not] achieve(s), or seek(s) to achieve, or is even close to achieving, a District centre role and function of the type already served by Bargara central…”

  1. the proposed development will not preclude the redevelopment of Bargara central so as to provide a range of retail and non-retail uses anticipated by the planning scheme for that centre – I accept what Mr Stephens said about this (FG-2, para 39) in his statement of evidence:

“The Bargara central centre has significant physical scope to grow and evolve with emerging demand arising from what is a significant pipeline of urban development that is expected to emerge over coming years…”

  1. the proposed development will delay the appellant’s preference to develop a second full-line supermarket at Bargara central until sometime around 2036 in circumstances where the planning scheme does not expressly provide for the centre to be completed during the life of that document (by 2031), nor does it suggest the centre is to be completed by 2031 at the expense of providing the range and mix of uses intended by the planning scheme; and
  2. the proposed development, for reasons given above, will be better located to conveniently meet the identified need and will do so absent any unacceptable impacts on amenity.
  1. [174]
    I am satisfied compliance follows with overall outcome 2(e) of the Local centre zone code.

Second full-line supermarket at Kepnock district centre

  1. [175]
    An approval was granted in 2016 for the Kepnock district centre. The approval was granted during the life of the planning scheme and, contrary to PO16 b of the District centre zone, authorises two full-line supermarkets. The second supermarket has not been developed.
  2. [176]
    For completeness, it can be observed that the appellant relies upon the absence of a cumulative impact assessment to examine the impacts on Bargara central by reason of the introduction of the proposed development in combination with two full-line supermarkets at Kepnock,: Ex.32, para 64. The criticism is an interesting one given, as I understood the evidence, the analysis said to be absent was not undertaken by the appellant’s own economic expert, Mr Leyshon. While no assessment was undertaken by Mr Leyshon, he did however express a view that the impact on Bargara central could be far greater than forecast if a second supermarket was developed at Kepnock prior to 2028: FG-1, para 187.
  3. [177]
    I am satisfied the cumulative impact assessment to which reference was made was not required to properly examine the economic impact of the proposed development.  Nor is the impact about which Mr Leyshon was concerned such as to warrant refusal in any event.
  4. [178]
    This is so having regard to three matters.
  5. [179]
    First, the second supermarket at Kepnock, which sits outside of the MTA, is not yet constructed. Nor are there any plans to commence construction of the supermarket. If that were to change, and construction were to commence, the supermarket would be in a similar position to the proposed development; trading would not commence immediately. It would be delayed. There is no reason to suggest the delay would be any different to the subject proposal, which has an anticipated first full trading year of 2028. The prospect that a second supermarket would be constructed, and operational, at Kepnock prior to 2028 is, in such circumstances, unlikely.
  6. [180]
    Second, Mr Lin, who was subpoenaed by the appellant to produce documents and to give oral evidence, had authority to speak as the representative for the owner and operator of the Kepnock facility. His evidence, which is confidential and protected by Court order, was correctly summarised in Council’s written submissions at paragraph 136. To avoid disclosing the content of the confidential evidence, it is sufficient to say I accept paragraph 136 of Council’s written submissions. The submission supports this finding: there is good reason to be confident that a second supermarket at Kepnock is unlikely to be operational before 2028 for sound commercial reasons.
  7. [181]
    Third, the likely candidate for the second full-line supermarket at Kepnock is Coles. Mr Ashley confirmed that any Coles supermarket at this location, assuming the opportunity was taken up, would be at least 5 years away. This is because Coles’ willingness to take up the commercial opportunity, if there be one, is linked to population growth in the catchment. The catchment aligns, in part, with the Kalkie-Ashfield local plan. As exhibit 30 demonstrates, substantial growth is anticipated in that area. I accept the submission made by Mr Job KC and Mr Stork that the growth needed to support a second full-line supermarket at Kepnock ‘has a very, very long way to go’. To suggest the population will reach the required level before 2028 is fanciful.
  8. [182]
    For these reasons, I am satisfied the appellant’s criticism of the economic impact assessment, in so far as it concerns the second full-line supermarket at Kepnock, is not a matter of concern. As the evidence traversed above suggests, any so-called impact from Kepnock arises outside of the MTA. Further, for the impact to arise it would require very significant and rapid population growth to occur in the relevant locality in sufficient time to support a decision to commence the construction of the second supermarket prior to 2028. The evidence does not provide a basis to make such an assumption. It represents a scenario that is, for all intents and purposes, too remote.

Assessment against the planning scheme

  1. [183]
    As I have already observed, the planning scheme bears a familiar structure. The structure exposes high order forward planning, which is then implemented through lower order detailed planning, such as zones and local plans. Here, the finest grained planning of direct application (that implements the activity centre network strategy) is to be found in the Local centre zone code and the CCUGA local plan.
  2. [184]
    Compliance with the zone code is demonstrated in one of three ways: [54]. One way is to demonstrate compliance with the performance outcomes of the code. The appellant alleged non-compliance with three performance outcomes of the zone code, namely PO1, PO2 and PO3: Items 12, 13 and 14 of the Annexure to Ex.32. Each provision is set out in paragraph [59].
  3. [185]
    Contrary to the appellant’s submissions, I am satisfied compliance has been demonstrated with:
    1. PO1 for the reasons given at paragraphs [150] to [152];
    2. PO2 for the reasons given at paragraphs [94] to [182]; and
    3. PO3, having regard to the nature of the use proposed and paragraphs [76] to [83].
  4. [186]
    Compliance with performance outcomes PO1 to PO3 here demonstrates compliance with the purpose of the Local centre zone code, which requires Local centres to, among other things, complement and not undermine the role and function of higher order activity centres: s 6.2.7.2(1).
  5. [187]
    For completeness, I am also satisfied compliance has been demonstrated with the overall outcomes of the Local zone code. In this regard, the appellant alleged non-compliance with overall outcomes 2(a) and 2(e). Compliance is demonstrated with overall outcome 2(a) for the reasons set out at paragraphs [76] to [83]. Compliance is demonstrated with overall outcome 2(e) for the reasons set out at paragraphs [163] to [174]. Compliance with these overall outcomes here also demonstrates compliance with the purpose of the zone code.
  6. [188]
    As I have already observed, the CCUGA local plan includes a code.  The code contains provisions relevant to the assessment of a Local centre on the site. Compliance is demonstrated with the code in one of three ways: see paragraph [54]. This includes by demonstrating compliance with the performance outcomes of the code.
  7. [189]
    The appellant alleged non-compliance with two performance outcomes in the local plan code, namely PO6 and PO7. These provisions are set out at paragraph [67].
  8. [190]
    Non-compliance is pressed with subparagraphs (d) and (e) only of performance outcome PO6: Item 18, Annexure to Ex.32. This provision is directed to ‘new activity centres’. Council submitted this phrase applies to new facilities that are unplanned or out-of-centre (i.e. not identified in overall outcome 2(h)(i)) as distinct from planned centres). I have misgivings about this but need not dwell upon it. This is because, even assuming performance outcome PO6 applies to the proposed development, compliance has been comfortably demonstrated. In this regard:
    1. compliance is demonstrated with PO6 d for the reasons given in paragraphs [94] to [162] – the matters traversed therein establish the proposal will perform the role and function of a Local centre intended by the planning scheme, and be of an intensity and scale that can be justified by, and is commensurate with, the identified need; and
    2. compliance with PO6 e is demonstrated for reasons given at paragraphs [94] to [174].
  9. [191]
    Performance outcome PO7 of the local plan code is dealt with at paragraphs [140] to [149]. For reasons set out therein, I am satisfied compliance is demonstrated with this provision of the planning scheme, or alternatively, any non-compliance does not sound in adverse town planning consequences calling for refusal.
  10. [192]
    Compliance with performance outcomes PO6 and PO7 here demonstrates compliance with the CCUGA local plan code, inclusive of its stated purpose.
  11. [193]
    For completeness it can be observed that the appellant alleged non-compliance with overall outcomes 2(h) and (i) of the CCUGA local plan code. While compliance can be demonstrated with the local plan code, like here, through the performance outcomes, I was satisfied compliance was also demonstrated with overall outcomes 2(h) and (i). They are set out at paragraph [66].
  12. [194]
    Compliance is readily demonstrated with overall outcome 2(h) because the proposed development will support the establishment of a network of centres for the broader Central Coast. It will do so by establishing a new Local activity centre at Bargara south, consistent with subsection (ii) of the overall outcome. For reasons given above, the centre proposed will be consistent with the location, role and function intended for a Local activity centre on the site.
  13. [195]
    Compliance has been demonstrated with overall outcome 2(i). For reasons given above, this is because the development will be a vibrant, mixed use place, appropriate for its intended role and location. It is not suggested non-compliance arises with this overall outcome for any other reason.
  14. [196]
    The appellant alleges non-compliance with provisions of the Strategic framework, namely ss 3.2.4, 3.2.7, 3.3.1(g), 3.4.1(g), 3.4.2.1(a) and 3.4.2.1(c). A review of each provision, and the context in which they are addressed in the appellant’s submissions, reveals they are raised to support five assertions, namely the proposed development: (1) will adversely impact on the vibrancy of Bargara central; (2) will not complement Bargara central; (3) will not support the viability of Bargara central; (4) will be of a higher order or scale than intended by the planning scheme, adversely impacting on Bargara central and the Local centre planned for Elliott Heads; and (5) will adversely impact on the preferred settlement pattern. For the reasons already given, I am satisfied the factual foundation relied upon to establish non-compliance with these provisions of the Strategic framework has not been established. Compliance with the Local centre zone code and the CCUGA local plan code supports this finding.

Relevant matters

  1. [197]
    The appellant has identified a number of relevant matters said to support refusal: Ex.6. I agree with Mr Job’s submission that the matters raised by the appellant in this regard reflect allegations relied upon to found non-compliance with the planning scheme. Matters of this kind have already been addressed by the reasons above and, I accept, are without substance.
  2. [198]
    It should also be observed that the co-respondent has identified relevant matters said to support approval: Ex.6. Council has, for all intents and purposes, adopted the same relevant matters and contend they are supportive of approval.
  3. [199]
    It is unnecessary for the relevant matters said to favour approval to be canvassed in any detail. Considered broadly and fairly, they represent the identification of issues considered in the assessment of the proposal against the planning scheme. For example, the matters relied upon advance this proposition: the proposal will meet a need and deliver associated public benefits (choice, competition and convenience). These matters are already bound up in an assessment against the planning scheme, particularly the need test in the Local centre zone code. It is, in my view, unnecessary to dwell further upon considerations of this kind given the matter attracting significant, if not decisive weight in this appeal, is compliance with the planning scheme. This consideration, coupled with an absence of unacceptable amenity impacts, is compelling in favour of approval.

Exercise of the planning discretion

  1. [200]
    For reasons given above, I am satisfied the proposed development is meritorious and should be approved. It complies with the planning scheme. It will also meet an identified need in circumstances where there will be an absence of unacceptable amenity impacts. An approval, which would be in the public interest, will ordinarily follow unless there are significant town planning issues suggesting otherwise. I am satisfied there are no issues of this kind standing in the way of an approval.
  2. [201]
    Save for one reason, I would have confirmed Council’s decision to approve the development application (subject to conditions) and dismissed the appeal. The outstanding matter relates to condition 4 of the negotiated decision notice.
  3. [202]
    Condition 4 identifies the uses approved for the site. The last bullet point of the condition seeks to retain a discretion to approve future uses that were not the subject of the development application. The condition states, in part:

“The approved use of the Medical/Retail, Shop, Specialty Shops 01, Specialty Shops 02 and Kiosk buildings as shown on the Approved plans include:

…

  • Other uses consistent with the use of the premises for a shopping centre as defined in the Planning Scheme were approved in writing by the Assessment Manager.”
  1. [203]
    The last bullet point of condition 4 should be deleted. I would not impose it as a condition in the exercise of my discretion. In simple terms, this part of condition 4 lacks finality and purports to confer a future discretion on Council to change the approved land use rights for the site other than in a way provided for under the Act (i.e. ‘a minor change’, or ‘other than a minor change’, to a development approval).

Disposition of the appeal

  1. [204]
    The co-respondent has discharged the onus with respect to approval.
  2. [205]
    The development application will, in due course, be approved subject to conditions. Save for one change, the conditions of approval will be those contained in the respondent’s decision notice dated 11 September 2023. Condition 4 of the negotiated decision notice will be changed to delete the final bullet point.
  3. [206]
    The appeal will be reviewed on Friday, 1 November 2024 for the purposes of making final orders that reflect the following: (1) the appeal is allowed in part; (2) the co-respondent’s development application is approved; and (3) the approval is granted subject to the conditions contained in Council’s negotiated decision notice dated 11 September 2023, save for the final bullet point of condition 4, which is to be deleted.
Close

Editorial Notes

  • Published Case Name:

    Stockwell Development Group Pty Ltd v Bundaberg Regional Council & Anor

  • Shortened Case Name:

    Stockwell Development Group Pty Ltd v Bundaberg Regional Council

  • MNC:

    [2024] QPEC 44

  • Court:

    QPEC

  • Judge(s):

    Williamson KC DCJ

  • Date:

    25 Oct 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
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
2 citations
Jump To
Cite 1 - (2020) 6 QR 441
Cite 2 - (2020) 6 QR 441
Arksmead Pty Ltd v Council of the City of Gold Coast[2001] 1 Qd R 347; [2000] QCA 60
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 347
Cite 2 - [2001] 1 Qd R 347
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
2 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
Fabcot Pty Ltd v Ipswich City Council [2022] QPEC 11
2 citations
Jump To
Cite 1 - [2022] QPEC 11
Cite 2 - [2022] QPEC 11
Fitzgibbons Pty Ltd v Logan City Council (1997) QPELR 208
2 citations
Jump To
Cite 1 - (1997) QPELR 208
Cite 2 - (1997) QPELR 208
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
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
2 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
2 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321

Cases Citing

Case NameFull CitationFrequency
Ramsay Health Care Australia Pty Limited v Brisbane City Council [2024] QPEC 492 citations
1

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