Australian Capital Holdings Pty Ltd v Mackay City Council - [2007] QPEC 100

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Australian Capital Holdings Pty Ltd v Mackay City Council & Ors [2007] QPEC 100

PARTIES:

AUSTRALIAN CAPITAL HOLDINGS PTY LTD
ACN 087 497 863

Appellant

v

MACKAY CITY COUNCIL

Respondent

and

THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994

First Co-Respondent

and

EULCOM PTY LTD ACN 102 773 106

Second Co-Respondent

and

W.A. STOCKWELL PTY LTD ACN 010 095 360

Third Co-Respondent

and

PORTERCO PTY LTD ACN 009 801 736

Fourth Co-Respondent

FILE NO/S:

BD 3575 of 2006

DIVISION:

Appellate

PROCEEDING:

Appeal against refusal of development application for supermarket-based shopping centre

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

15 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

12, 13 July 2007 (Mackay), 16-20 July, 28, 30 August 2007 (Brisbane); written submissions 5, 10 October 2007

JUDGE:

Robin QC DCJ

ORDER:

Appeal to be allowed, subject to appropriate conditions being determined including conditions protecting the legitimate amenity expectations of neighbours

CATCHWORDS:

Local Government (Planning and Environment) Act 1990 s 4.5(5A) – developer appeal against refusal of application for material change of use for a shopping centre – proposal conflicted with centres hierarchy established in the 1999 Transitional Planning Scheme (under which the development application was made) and replicated in the new 2006 Planning Scheme – in size it greatly exceeded what was contemplated for “out of centre” retail development – site zoned Rural, but earmarked for Urban Residential – sufficient planning grounds to justify approval in satisfaction of a community need for a second full-line supermarket in the area and in the provision by the developer through the site at its cost of an important component of the planned road network – concern for amenity of existing residences which would become isolated enclaves surrounded by the proposal

COUNSEL:

Mr Lyons QC and Mr Williamson for the Appellant
Mr Hinson SC and Mr Skoien for the Respondent
Mr Gibson QC and Mr Litster for the Second, Third and Fourth Co-respondents

SOLICITORS:

MacDonnells Law for the Appellants
S B Wright & Wright & Condie for the Respondent
Hopgood Ganim for the Second, Third and Fourth Co-respondents

The appellant (ACH) appeals under s 4.1.27(1)(a) of the Integrated Planning Act 1997 (IPA) against the respondent Council’s refusal of its development application which sought a development permit for a material change of use for a shopping centre, service station and catering shop, also reconfiguration of one lot into two lots and a road corridor in respect of Lot 901 on SP 115927, County of Carlisle, Parish of Bassett. The development application was lodged on or about 13 March 2006. The area of Lot 901 is 7.145 hectares, but it is only 2.9265 hectares (Area “A”) to be subdivided off in the reconfiguration that is the subject of the proposed new uses. Area “A” represents the north-east part of the land, Area “B” (some 2.7125 hectares allocated to “future development”) the south-west part, the two being separated by Area “C” of some 1.4625 hectares, proposed to be dedicated (if ACH’s development goes ahead) to accommodate a new road called the Wallmans Road deviation.

The land is located at Rural View (Nindaroo) in Mackay on the west side of Mackay-Bucasia Road, to which it is said to have a frontage to the east. The remaining (northern) frontage is to Wallmans Road. So far as the former frontage is concerned, existing road arrangements are such that the trafficable part of the busy Mackay-Bucasia Road veers east from a relatively new roundabout located where the new Eimeo Road giving access to the burgeoning northern beaches suburbs of Eimeo and Blacks Beach connects from the east. The new road is clearly intended to divert traffic from the old Eimeo Road located two blocks to the north which passes Eimeo Primary School. The roundabout is close to the south-eastern corner of the squarish site, which presently appears to have its eastern frontage to the roundabout exit marked Wallmans Road.

Lot 901 is a former cane farm, presently vacant. Relevantly, the neighbours are members of the Sologinkin family, whose forbears presumably include the person or persons for whom is named Sologinkins Road, which joins Mackay Bucasia Road on the west, not too far south at a signalised intersection, whose continuation to the east is called Rosewood Drive. Lot 9 is effectively a rectangular excision from the eastern boundary of the site, Lot 11 a similar excision on the northern frontage; each is indicated to have an area of 2,000m² in the Smart Map included in Mr Brown’s town planning report. Lot 6 abuts the north-west of the site and would lie immediately across the new road if the deviation proceeds as envisaged by ACH. Residences on all three lots have for some years been occupied by family members; each household made a submission to the Council opposing the development application. See tabs 9, 10 and 11 in Exhibit 16, the second, third and fourth co-respondents’ “appeal book”. As will appear, the court harbours concerns relating to their future amenity, although they did not elect to become co-respondents; nor was any of them called to give evidence.

The first named co-respondent has been granted leave to withdraw from further participation in the appeal. The fourth co-respondent’s submission identified its interest:

“Porterco Pty Ltd is the owner of the existing Hibiscus Shopping Centre in Bucasia. This Centre is approximately 2,000m² in size with a mix of uses including a gym, AUR Foodstore and other associated retail uses including butcher, bakery, video store, pharmacy, newsagent and medical centre, as well as takeaways and bottle shop. Whilst, the existing Centre services the needs of the Bucasia and Shoal Point, it is intended to apply to Council to re-develop the centre in the near future to expand the existing supermarket and provide some additional offerings within the provisions of the Planning Scheme.”

The second and third co-respondents have a similar interest, one located immediately across Mackay Bucasia Road, in “the master planned Eulbertie Park Estate”. This will be developed in accordance with the “Approved Plan of Development (revised)” (Exhibit 16, tab 29), which the court was told is a product of protracted negotiations with the Council. The presently important part of Eulbertie Park is the tongue of land bounded by Rosewood Drive, Mackay Bucasia Road and the new Eimeo Road, where exists the established Northern Beaches Central Shopping Centre[1]. As recorded in the second and third co-respondents’ submissions to Council opposing the development, at the Northern Beaches Central Shopping Centre, “approximately twelve (12) hectares has been zoned for retail and commercial development in the Major Neighbourhood Centre”.

[1]It is necessary to avoid confusion with Northern Beaches Development Pty Ltd, the proprietor in earlier years of the ACH site, which was involved in correspondence about it with Woolworths, as found in Ms Johnston’s statement of evidence, Exhibit 26 and in the 1998 and 1999 litigation mentioned in paragraphs [25] to [27]. The statement shows that Woolworths had an interest in the site as long ago as 2000.

The current Mackay City Council Planning Scheme (Exhibit 3) was adopted by the Council on 15 March 2006, taking effect when it was gazetted on 24 March 2006, very soon after ACH’s development application was lodged, obviously in full knowledge of the imminence of the Scheme. It replaced the Transitional Mackay City Council Planning Scheme. There are no “Coty” issues, given the close similarity of relevant provisions in the two Schemes. Nothing of significance turns on whether assessment occurs under the pre- or post- 24 March 2006 planning regimes.

The Strategic Plan in the superseded Transitional Planning Scheme, gazetted 21 May 1999, deals with commercial areas as follows:

“Commercial Areas
Description
This land use allocation includes all forms of commercial and retail use at Regional, Sub-Regional Major Neighbourhood and Neighbourhood Centres throughout the City.
Intent
This land use allocation is intended to provide for a range of commercial centres appropriate to the needs of the City. In order that the widest range of goods and services can be provided to residents and to ensure the ongoing viability of centres, a hierarchy of centres is intended. The hierarchy of centres is shown on Strategic Plan Maps 1-4. It is intended that only one centre is developed in each of the nominated suburbs. The CBD area is shown on Figure 3.
The hierarchy of centres is as follows:
(1) Regional Centre
The Mackay CBD and frame area is intended to remain the predominant centre in the City and the region. A consolidation of highest order shopping and entertainment facilities, commercial services and government and professional offices is envisaged. Urban design measures which sustain and enhance vital, attractive and pedestrian orientated public spaces and facilitate accessibility will be encouraged. Council will provide clearer direction for development in this area through a future City Centre Local Area Plan.

(2) Sub-Regional Centres [sic]
The Mt Pleasant Shopping Centre and adjoining commercial areas is intended as a sub-regional centre to principally service areas north of the Pioneer River. The sub-regional centre is intended to provide mainly comparison and speciality shopping functions, and provide a focus for other commercial, medical and service users.

(3) Major Neighbourhood Centre
It is intended that a Major Neighbourhood Centre be established at Nindaroo to service as a focus for employment and service provision for the neighbourhoods north of McCready’s Creek. This centre would provide facilities to cater to the weekly shopping trip together with a wide range of personnel and community services and facilities.
A total retail floor area of up to 10,000 m² is ultimately envisaged at the Nindaroo centre including a discount supermarket.

(4) Neighbourhood Centres
Indicative locations for the development of neighbourhood centres are shown on Strategic Plan Maps 1-4. These are at Bucasia, Blacks Beach, Walkerston, Andergrove, North Mackay, West Mackay, Ooralea, Seaforth, Midge Point and Bakers Creek (south).
These centres are intended to provide a focus for the establishment of accessible neighbourhood shopping and community facilities which meet the needs of the residents in nearby suburbs. A total retail floor area of 5,000 m² is envisaged at these centres, comprising a discount supermarket and speciality stores.

(5) Convenience Centres
These centres, not able to be shown on the Strategic Plan Maps due to scale limitations, are intended to provide accessible convenience service needs and a community focus for immediately surrounding residents. They are not intended to provide sufficient range or depth of merchandise to fully cater for the weekly shopping trip. A total retail floor area of 500-1,500 m² is envisaged at these centres, comprising an accessible convenience supermarket and speciality stores.”

The 1999 Strategic Plan goes on to set out objectives and performance criteria which include achieving a hierarchy of centres and maintain the Mackay CBD as the predominant commercial centre for the City and surrounding region and “to provide for a range of uses appropriate to the scale of centre”.

The hierarchy is reproduced in closely similar language at various points in the current planning scheme, including at p 3-2 in Part 3 Desired Environmental Outcomes:

“(c)Economic Development
(i)…
(iv)A network of centres is established and maintained according to a hierarchical arrangement of roles and functions to meet the needs of the population, and includes the following elements, as shown on the Information Map – Network of Centres:⁵
(A)    the Mackay City Centre (including a core area and a frame area) as the principal centre for all multi-purpose centre activities in the City and the region;
(B)    the Mt Pleasant Sub-Regional Centre, including Greenfields, Sams Road and Heaths Road, as the second major focus for shopping, commercial and entertainment in the City, functioning as a supporting role to the City Centre;
(C)    The Rural View Major Neighbourhood Centre as the third major focus for shopping, community and commercial needs in the City.
(D)    the neighbourhood centres, including Andergrove, Bucasia, Rural View and Walkerston, providing for weekly or high-frequency shopping, community and commercial needs; and
(E)     a mixed use centre at North Mackay; and
(F)     the local centres, including the small convenience centres at Bucasia, Blacks Beach, North Mackay, Mt Pleasant, Slade Point and West Mackay.
(v)the growth of centres occurs in step with demonstrated community need, recognising the role and function of other centres within the network of centres.
(vi)retail and commercial activities outside a centre identified within the network of centres are limited to premises with a size and function consistent with the provision of local facilities.
(vii)the Mackay City Centre is retained and reinforced as the principal centre for the Mackay and Whitsunday region providing high order administrative, business, commercial, cultural, entertainment, and shopping services as well as providing a choice of housing types and densities for residents and visitors.
(viii)centres, villages and other commercial areas are attractive, provide a safe environment and are able to be economically and efficiently supported by infrastructure.
(ix)…

^{_______________________}
⁵The designated centres in the network are shown in an indicative manner on Information Map – Centres Network, whereas the Zone Maps provide more definitive centre boundaries. Existing centres not shown on the Centres Network Map are not intended to expand.”

An oddity is the appearance of Rural View in both (C) and (D), giving rise to the thought (which I do not embrace) that, as actually occurs at Mount Pleasant ((B) and (F)), two centres may be envisaged, allowing room for the present proposal. Bucasia is in both (D) and (F). The omission of “commercial” in (iv)(B) at 9.97 (p 9-114) is presumably a slip. The 10,000 m² limit for retail floor area at Nindaroo/Rural View Major Neighbourhood Centre now appears in Div 8 Overall & Specific Outcomes and Probable/Acceptable Solutions for the Commercial Zone in the Mackay Frame Locality in the following provision:

Specific Outcomes Acceptable/Probable Solutions

McCready’s Creek Precinct

P1 New shopping facilities in the McCready’s Creek precinct are limited to a Major Neighbourhood Centre at Rural View and a Neighbourhood Centre at Andergrove and local centre functions which respect the surrounding built environment.
S1 (i) Buildings do not exceed (2) storeys in height, or 11.5m whichever is the greater; and

(ii) The architecture of buildings and structures in the centres incorporates pitched roofs, gables, articulated facades where fronting a pedestrian space or residential building, awnings for shade over footpaths, walkways and windows.

P2 The Rural View Major Neighbourhood Centre provides Major Neighbourhood Centre functions as part of the Hierarchy of Centres and services which do not adversely affect the role or function of other centres referred to in the Information Map – Network of Centres
S2 The Rural View Major Neighbourhood Centre is developed with:

(i) a gross floor area (GFA) of up to 20,000 m²

(ii) shopping facilities not exceeding 10,000 m² GFA and including a full line supermarket and other retailing facilities for weekly and convenience shopping;

(iii) small-scale, convenience-oriented community facilities, commercial services and trades where no single activity occupies more than 10% of the non-retail floor area of the neighbourhood centre.

P3 The Rural View Major Neighbourhood Centre grows in step with and responds to the convenience oriented needs of the McCready’s Creek precinct in accordance with its major neighbourhood role as described in the overall outcomes of the Mackay Frame Locality Code.

Implementation Notes:

(i) A ‘dwelling household’ may consist of one or more people residing in a single dwelling unit or accommodation unit, including a caravan, providing that if the adopted average dwelling household size is less than 2.5 persons, the adopted size is based on census data;

(ii) The catchment population for the Rural View Major Neighbourhood Centre resides within the McCready’s Creek precinct.

(iii) The GFA values in the table are the maximum values for any component of the neighbourhood centre.

S3 The Rural View Major Neighbourhood Centre allocation of GFA complies with the following table.

Population Threshold (dwelling households in trade catchment)

Shopping (m² GFA)

Commercial & Other (m² GFA)

Total GFA (m²)

Less than 5,000

2,500

2,500

5,000

5,000-7,500

3,500

3,500

7,500

7,500-10,000

7,500

7,500

15,000

More than 10,000

10,000

10,000

20,000

P4 Development of the Rural View Major Neighbourhood Centre achieves a cohesive and efficient urban form by:

(i) ensuring a high level of physical and functional integration of buildings, landscaping, public spaces, car parking and service bays; and

(ii) providing contemporary and consistent architectural expression in the buildings and which is reflected in the landscaping and signage.
S4 No solution specified.

Need for the proposal

The three experts who contributed to the economic joint report of 4 June 2007 were agreed that the trade area to be served by the Major Neighbourhood Centre at Rural View included a primary sector encompassing the northern beaches region of Mackay, consisting of the suburbs of Rural View, Eimeo, Bucasia, Shoal Point, Dolphin Heads and Blacks Beach, a secondary west sector comprising the rural township of Habana (where a good deal of land is designated rural residential) and a secondary south sector including Andergrove, the aggregate being slightly smaller than the McCready’s Creek precinct; it excludes Slade Point. The primary and secondary west sectors were of greater relevance to the ACH proposal, as the secondary south sector contains a large stand-alone Woolworths Supermarket at Andergrove. If the proposal goes ahead, Woolworths will operate a 3,200m² full-line supermarket on the site. The catchment population, presently estimated at 26,100, is expected to increase by 780 or so per annum for the next decade, outstripping the non-metropolitan Queensland average by more than 50 per cent. In the primary sector, in the next decade, a more dramatic increase of some 6,000 persons (about 50 per cent in aggregate) is expected over the next decade to support new retail facilities at Rural View. Among the economic experts, there was agreement that:

“There will be a need for two full-line supermarkets at the Major Neighbourhood Centre at Rural View in the future, however, there is dispute in relation to timing and possible locations. A second full-line supermarket would necessitate more than 10,000 sq.m of retail floorspace being designated by Council within the Rural View Major Neighbourhood Centre, assuming that the Eulcom Development Application is approved.”

The “Application” referred to, yet to be determined, was lodged with the Council after ACH’s application, but it should not be seen as a blocking or delaying tactic, notwithstanding that it may go some distance towards countering arguments in favour of ACH, by allowing extension of the existing 2,500 m² Bi-Lo supermarket, whose claims to be a full-line supermarket have attracted serious challenge, to 3,500 m² proposed to be re-badged as a Coles supermarket. The Eulcom Application, whose success can reasonably be anticipated, will bring the retail floor space at Rural View Major Neighbourhood Centre to the limit of 10,000m² – a limit in the sense that an application for additional retail area would require impact assessment, the bulk of the additional retail space being allocated to a discount department store, apparently a Big W; the rest will go to additional specialty stores. Big W, of course, has some association with Woolworths, but is not a Woolworths supermarket, the demand for which at Rural View (if no other competitor of Coles emerges) may be taken as well established. There is no room for a second Woolworths supermarket at the Northern Beaches Central Shopping Centre in the expansion currently applied for, which one may assume will be approved. ACH proposes to enable the demand (which the court is persuaded represents a community need) to be met by making its site available, if the development application the subject of the appeal is approved. To date, its impact assessable application (which attracted a good deal of community support as well as opposition) has been unsuccessful. The uncertainty affecting that application will likely be encountered in equivalent measure in whatever future impact assessable development application may be made for approval of additional retail floor space at Northern Beaches Central. Eulcom’s current application requires only code assessment. The putative further application would have to persuade the Council to abandon the 10,000 m² cap on retail floor space, presumably at the cost of the desired “commercial and other” facilities the planning scheme envisages. Establishment of the Big W discount department store will provide one of the benefits sought for the McCready’s Creek precinct community. It may be that there was a lack of foresight from the point of view of establishing competition between major supermarket operators, which all witnesses who were asked about it considered desirable. That observation applies to the lay “consumer” witnesses called by ACH, as well as to the expert economists and planners.

As to timing, the Council’s and co-respondents’ witnesses thought that satisfaction of the need for a second full-line supermarket could be delayed for a year or two beyond about 2009, when trading on the ACH site might commence. No doubt, those consumers who want a competing supermarket in the area would like it immediately. Mr Duane’s evidence was persuasive. I do not think the court should be troubled by concerns that development of a Woolworths full-line supermarket on the ACH site would be premature.

As regards the location of the needed new supermarket facilities, Mr McCracken and Mr Meulman asserted that any identifiable community need for a second and separate supermarket based shopping centre on the ACH land was overcome by the “ample capability of the designated Major Neighbourhood Centre to grow in response”. They contended that the following “community disbenefits” would accompany the ACH proposal:

(a)fragmentation of the Major Neighbourhood Centre;
(b)duplication of facilities, rather than expanding and enhancing what would be available to the Northern Beaches community in an integrated development;
(c)it “would inhibit and delay the development of the Neighbourhood Core and Frame Land in the Eulbertie Park approved Plan of Development”.

Mr McCracken, in particular, gave detailed evidence on this aspect. No more than the others did he contend that the viability of the Eulcom/Stockwell Shopping Centre was threatened; his point was that its vitality would be less than otherwise expected, in that those wishing to patronise the Woolworths supermarket, rather than Coles, who might represent a majority if current national trading preferences are a guide, would not be using the designated Major Neighbourhood Centre; visits there by them as potential customers of the specialty stores would not occur, a likely consequence being some reduction in the range of specialty store operators who might be attracted to the Northern Beaches Central, but one would expect the Centre’s drawing power to be considerable once the expansion to 10,000m² including a discount department store is implemented.

ACH’s case included the proposition that the idea of the Major Neighbourhood Centre as an integrated one was substantially achieved by the contribution the ACH proposal would make to establishment of a “node” straddling Mackay Bucasia Road. The criticism that the proposal was “creating another focus within what is supposed to be a neighbourhood centre on the other side of a fairly busy road [especially when] there’s no need to” advanced by Mr McCracken at p 613 of the transcript was somewhat blunted by his having expressed a contrary view as an expert witness in another matter, which I have taken to be the one reported as Ugarin Pty Ltd v Logan City Council [2004] QPELR 392. Mr McCracken’s expertise is well known and highly regarded. Accepting that Chambers Flat Road, Marsden and Mackay Bucasia Road at Rural View represent rather disparate contexts and that it would be unfair to regard Northern Beaches Central as comparable to the established shopping centre at Marsden, which was said to have performed poorly on account of the owner’s inactivity over many years, there is enough similarity to indicate that judgments about these matters may legitimately vary. The point becomes a fine one, I would say, rather than one which is unanswerable, or overwhelming. It could not persuasively be suggested that this would apply at Rural View, but Mr Duane instanced the case at Victoria Point of four new supermarkets having been built at a location in Redlands Shire “including a Woolworths supermarket and a convenience centre opposite Woolworths and Bi-Lo and a discount department store based centre. Aldi is also located opposite these centres in a free-standing location. All four stores operate successfully.” Victoria Point serves a population many times greater than that of the McCready’s Creek precinct. By the end of the appeal several instances of supermarkets like that proposed by Woolworths across the road from another centre had been mentioned. Of itself, that has no implications for this appeal.

The case against Woolworths (or an alternative operator of the second full-line supermarket in the area – it being the community need which matters, not any particular operator’s need or interest) being obliged to await the opportunity to open a Rural View supermarket at Northern Beaches Central Shopping Centre (disregarding the uncertainty inherent in the right which Woolworths’, or the owners’ commercial rivals would have to contest the relevant development application in the impact assessable process required (by contrast with the code assessable application Eulcom presently has on foot)) is that the style of shopping to be offered on the ACH site would not be available if the indicative plans illustrating a putative second expansion of the existing Northern Beaches Central shopping centre (Exhibit 36) are implemented. Whereas the Bi-Lo supermarket currently enjoys, and the expanded “Coles Supermarket” in the same location initially will enjoy highly convenient access, in the form of at grade parking facilities close to the door, provision for a second full-line supermarket in the centre will be associated with the loss of parking possibilities more-or-less immediately in front: the land will be allocated instead to a long (broken) line of specialty shops, the whole of the centre, it seems, to be enclosed to provide a centre something like that at Mount Pleasant, although a limited part of the parking would be located underneath the Big W discount department store, which itself would increase in area to 6,000m². The possibility presently offered by Bi-Lo, as at Woolworths at Andergrove, of parking close by and quick ingress to the supermarket which may be one’s sole destination for shopping on the occasion, followed by quick egress, will be lost at Rural View. In my opinion, that would qualify as a “community dis-benefit” and represent a clear reduction in convenience. The success of the stand-alone Woolworths supermarket at Andergrove is testament to the demand for that level of convenience. A supermarket as proposed by ACH should enjoy similar success, although site constraints coupled with other components proposed by ACH lead to the allowance for highly convenient parking being less generous than at Andergrove or at the existing Bi-Lo.

ACH’s case came under some criticism for its insistence that the ACH proposal envisaged “convenience”-type shopping. A distinction should be made between “convenience stores” which are typically smallish and offer a limited range of stock items, and the convenience which shoppers (whatever product they are wishing to purchase) may well desire, by way of being able to get to the shop and away from it easily and quickly. The latter, I think, represents a legitimate use of the term “convenience”. In this sense, the ACH proposal may be seen as serving what Mr Duane calls “a more local and convenience role”. There is no reason why shoppers whose sudden need is for caviar or some specialist cheese unlikely to be available at the traditional “convenience store” should have to patronise a large Major Neighbourhood Centre in the form of the familiar shopping mall. Of course, the ACH proposal will, in many of its aspects, operate very differently from a convenience store-type outlet where shoppers go to purchase something for which a sudden need arises. If the experience of Woolworths at Andergrove is any guide, a Woolworths supermarket on the ACH site will be used by some for the traditional “weekly” or “chore” shop. Doubtless, convenience explains this. The evidence suggests that the trend is a way from weekly shopping trips, towards more frequent shopping trips for which convenience would be important. Woolworths’ experience is that the average “basket” at Andergrove is fairly close to that at its much larger supermarket (4,500 m²) at Mount Pleasant. The ACH project is different, in that the supermarket is not a free-standing one, although I think it will be capable of operating like Andergrove; the Rural View project includes other uses, being specialty shops, the medical centre, a fast food outlet and the petrol station. In the building at Andergrove there is a large disused area, explained on the court’s inspection, if not in evidence, as included to satisfy Council’s desire that provision for community facilities of some kind be incorporated – to date no use of that kind has eventuated.

The Council’s approach, as the planning authority, in confining commercial development at Rural View to the second and third co-respondent’s site might, in theory, have been inadvertent, being, for example, merely descriptive of locations where some commercial development had already occurred, and more was anticipated, without consideration being given to potential alternative or additional locations. That was not the case. Exhibit 39 is a detailed submission in the form of a long solicitor’s letter dated 19 May 2005, urging the Council to recognise the whole of Lot 901 (recently purchased by ACH) for commercial uses in the then “Proposed Planning Scheme” and not only on the basis that construction of the Wallmans Road deviation rendered the land less suitable for residential development, which would stand to be prejudiced by proximity to an “arterial road”. The Council’s response (the only evidence the court has that the issue was considered at all) was dated 4 November 2005 and contains only two paragraphs specifically referable to the submission:

“In regard to your request that the subject land be included in the Commercial zone, Council has considered your request and has resolved, at this time, not to amend the proposed Planning Scheme. The basis for this decision is that the subject was not identified for shops/commercial in the current Strategic Plan and has not been identified in the proposed scheme. The land to the east across the Bucasia Road was identified and has been ‘locked in’ by a Plan of Development for Eulbertie Park. This shopping – commercial centre was and is designed to meet the needs of all the residents in the area (including planned residential development to the west of the Bucasia Road). There is no intention for another shopping centre in the commercial hierarchy in this area.
It is also not a good planning outcome to have shopping facilities straddling a major road. This usually makes it difficult for pedestrians to access both centres at the same time and forces people to get in their car to go from one to the other thus exacerbating traffic movements in the area. There is no merit from a planning point of view to encouraging this type of un-planned development.”

The foregoing may not represent the whole picture. It is hardly a thorough-going response to the detailed submission (supported by appropriate expert reports). The Council, to an extent, is simply asserting that the proposal had not been adopted before. The proposal is responded to by arguments that Eulbertie Park has been identified as the one and only commercial centre for the area. It is difficult to see how, in principle, any special arrangement the Council makes with those behind Eulbertie Park can limit or control decisions about development of other sites (I am not suggesting the Council has limited its judgments to that consideration). Then comes the argument against separating shopping facilities by a major road – which is undoubtedly a respectable one, but not necessarily, so far as the court is concerned at least, compelling. The evidence in the case is that the “centres” here would operate separately, that those who would access both centres on a single trip would be few and far between. The Council’s quoted response does not really come to grips with how to provide a second full-line supermarket in the area; nor does it bespeak acknowledgment that growth of this part of the city appears to have been at a rate that made questionable the sufficiency of provision of centres adopted in the 1990s without expansion.

One of ACH’s arguments all along has been the superiority of their site because it is located on the left-hand side for those travelling home from central Mackay to the northern beaches. It is the case that all shopping facilities (except for some remote ones at Walkerston) are located east of Mackay Bucasia Road, doubtless for historical reasons, particularly the pattern of development. One suspects that, in the long term, that will produce inconvenience. It is the case that the putative commuter returning to the northern beaches and wanting to do some shopping on the way home will expend a deal of time executing right-hand turns out of, then back into Mackay Bucasia Road to and from a centre such as Mount Pleasant. At Northern Beaches Central, similarly, right-hand turns in and out will be required, albeit on the much quieter new Eimeo Road. It may be some time before that intersection is signalised. It is true that the ACH proposal requires for access a right-hand turn out of the Wallmans Road deviation, a road which, for the moment, effectively leads nowhere; it will become busier if and when the Explorer Estate to the north is developed and marginally busier again, if Wallmans Road is pushed through to Habana. I think that the convenience of access for the home-bound traveller, whether he or she lives east or (the estimate being 20 per cent of the likely catchment) west of Mackay Bucasia Road, is a significant factor in favour of the present application. There would be additional convenience for those travelling north whose journeys took them further along Mackay-Bucasia Road than Eimeo Road. I was less impressed by the further argument that the backtracking from the future entrance to Northern Beaches Central for customers wanting to patronise Coles and park nearby represented significant inconvenience. To conclude, upon this aspect, I do not think traffic considerations other than sparing those determined Woolworths (as opposed to Coles) customers an additional round trip of 13 km or so to Mount Pleasant or Andergrove, loom large here.

Planning Schemes are not necessarily perfect

Experience shows that planning schemes, for all the care presumably taken in their drafting, exhibit imperfections, in relation (for example) to descriptions of what exists in particular locations or what is proposed for particular locations. Cf Lend Lease Property Management Pty Ltd v Maroochy Shire Council [2003] QPELR 23, 35-36. Here, against ACH, considerable reliance was replaced on the repetition in the new planning scheme of the description of the hierarchy of centres. One must wonder why, legally or logically, repetition confers additional potency. The version quoted in [7] above seems defective, as noted in [8]. Here, there is an unsatisfactory aspect of the current planning scheme to do with the location of the Wallmans Road deviation.

It is convenient to set out the concluding part of the joint conclave report produced by the parties’ traffic engineering experts:

“(3) Roadway (Wallman Road) Through the Site
It is agreed between all parties that there appears to be three alignments for the subject roadway under consideration in respect of the proposed development and appeal. The views on each alignment, as agreed by each party, are presented below.
The ‘first alignment’ is that which is proposed in the development application and runs through the middle of the subject site. This is similar to the alignment shown in Council’s Transitional Planning Scheme/Strategic Plan and is the alignment that Council provided to the appellant at the time of the application. This alignment can (subject to confirmation of gradients) achieve the arterial road function as intended by Council.
The ‘second alignment’ is that which is shown in Council’s current IPA Planning Scheme/Strategic Plan. This runs along the northern and eastern boundaries of the site within the existing road reserves of Wallmans Road and the old Mackay-Bucasia Road respectively. This alignment produces a right angle bend at Wallmans Road/old Mackay-Bucasia Road and has tight geometry where it meets the intersection at Eimeo Road/Mackay-Bucasia Road. For these reasons it is doubtful that this alignment would satisfy an acceptable arterial road function as intended by Council and this approach to the intersection of Wallmans Road with the roundabout at Mackay-Bucasia Road is not likely to be acceptable to the Department of Main Roads.
There is a ‘third alignment’ which has been put forward by Council and designed by GHD. This has been referred to as Alignment Option 7 on GHD drawing number SK108. Whilst it has not been formally confirmed, it is understood that this is the alignment which is now preferred by Mackay City Council. The ‘third alignment’ traverses the north eastern part of the subject site. Steve Williams and Brett McClurg are in agreement that this alignment can (subject to confirmation of gradients) achieve the arterial road function as intended by Council and that it does not represent a significant departure from the function intended by Council with the ‘first alignment’ Neil Viney is of the view that this alignment requires a roundabout at a mid block intersection along Wallmans Road to overcome unsatisfactory design parameters and that this is inappropriate. In addition, Neil Viney considers that the commercial use proposed by the Applicant is more appropriate than a residential use from an aesthetic and amenity perspective given the location of the site abutting an arterial road.
(4) Traffic Capacity on Adjacent Network
All three parties are in agreement that any traffic capacity issues generated by the proposed development (shopping centre only) are able to be addressed by remedial works which can be appropriately conditioned. It is stressed (and agreed by all parties) that the assessment undertaken and the application considered in this appeal does not include development on the balance of Lot 901 on the south western side of the Wallmans Road Deviation and that such development must be considered and assessed as part of any future separate application.”

As to the penultimate sentence of (3), I prefer Mr Viney’s views, but have reservations about what is said in the following sentence if he is suggesting some enthusiasm for the aesthetic and amenity impact of the proposed commercial development for those who may be or become residents close by. The prospective alignment of the future arterial road in the current planning scheme has not a single defender. A useful document is Exhibit 22, a report and recommendation prepared by officers for the Council’s Planning and Environmental Services Committee meeting of 15 November 2006. The purpose of the document was to seek Council’s endorsement for the concept alignment of the future upgrading of the eastern end of Wallmans Road. That document contains the following:

“Council’s former Strategic Plan and Road Hierarchy Plan indicatively showed a future arterial road connecting the Mackay-Habana Road with the Mackay-Bucasia Road. …
Currently … classified as ‘local streets’, … upgrading … will warrant reclassification … to … ‘arterial road’. They will then cater for ‘through traffic movements’, in particular movements between residents at Habana and:
•the future expanded Eulbertie Park commercial precinct;
•the future Northern Beaches High School[2];
[2]The site proposed for the high school is on the eastern side of Mackay-Bucasia Road, just south of Northern Beaches Central; the school is an important component of the community facilities in contemplation for the area.
•an alternative route to the various beaches and residents north of Rural View, as well as
•improving access onto the Mackay-Bucasia Road for existing and future residents of Premier Gardens and Explorer Estates.

Prior to the adoption by Council of the new Planning Scheme, the road hierarchy was reviewed in various specific areas. One of these areas was the eastern end of the future arterial road along Wallmans Road.
On the former Road Hierarchy Plan, the future road alignment of Wallmans Road upgrade effectively divided Lot 901 on SP115927 into half (Refer to Attachment 1). Whilst the western section would become a natural easterly progression of Premier Gardens Estate, the eastern section effectively becomes separate from the Premier Gardens Estate, however this would be contiguous, albeit across an access street (Wallmans Road) to the future residential areas of Explorer Estate to the north.
This situation was not fully appreciated by Council Officers until just prior to sending the new Planning Scheme to the Minister for approval. The alteration to the indicative alignment was made in early February 2006 and sufficient time was not available to develop a more appropriate alignment. To ensure a timely approval of the Planning Scheme and to reflect Council’s intention in trying to consolidate with Premier Gardens as many of the future residential lots created by subdividing Lot 901, the future arterial road was indicatively shown on the Road Hierarchy Plan to follow the existing alignment of Wallmans Road (refer to Attachment 2).
…
Whilst the indicative alignment of the future arterial road was altered just prior to adoption of the new Planning Scheme, limited staffing resources and higher priorities in other areas, notably Paget and the City Centre, has meant that finalising the concept alignment proposal has taken longer than desired.
Council Officers have considered a number of alternative options in trying to ensure that the concept option presented to Council (refer to Attachment 3) satisfies all the major issues required for4 the future arterial road by:
•maximising the consolidation of future residential land with the existing housing development (Premier Gardens);
•minimising the extent of earthworks required to construct the road and consequential environmental harm;
•significantly reduces the total area of land required for the future road;
•allowing for future consolidation of the existing houses in the north-south section of Wallmans Road with the future expansion of residential land to the north (Explorer Estate);
•satisfying Main Roads Department requirements;
•providing for a gradual decrease in the speed of motorists approaching the Mackay-Bucasia Road roundabout from the west;
•catering for access to future residential developments north and south of Wallmans Road (Explorer Estate and Premier Gardens Estate) via a proposed roundabout; and
•satisfying the requirements of existing residents along the eastern end of Wallmans Road.

Whilst no accurate survey data is available to Council for Lot 901, a site inspection reveals that, if the road is constructed on the original indicative alignment, it will create significant amounts of cut through the property. In particular, it is likely to require extensive retaining walls along the boundary of Lots 6 and 11 at the north-west end, adding to the cost of the road construction and detracting from the amenity of the area.
…
The developer of Explorer Estate (Lot 1 on RP743305) did not support the change in the road alignment because he claimed that proposed new lots abutting the existing Wallmans Road in his development would be adversely affected due to having higher traffic volumes passing immediately against them, when compared to the arterial road passing through the centre of Lot 901.
…
Two meetings have been conducted with staff from the Department of Main Roads. The Department requires that the future arterial road must enter the existing roundabout at Mackay-Bucasia Road. In doing so, Main Roads will require a separate analysis of the detail design prior to formally approving any new leg onto the roundabout. They have no objection to the proposed concept layout.
…
Conclusion
The proposed concept layout maximises the consolidation of future housing, on land zoned as Urban Residential, enhancing the sense of community for Premier Gardens residents, whilst achieving the desired performance requirements for an arterial road.”

Arrangements made for discussions with “the CEO of the company which owns Lot 901” failed to result in any meeting, it seems. What has been called the “second alignment” appeared to involve resumption of all or most of Lot 9. One virtue of the “third alignment” (Option 7) is that it would leave Lot 901 and the Sologinkin family properties relatively intact, although Lot 9 would have an arterial or

sub-arterial road adjoining the western boundary as well as a stub of the old Wallmans Road on the eastern boundary; it would take more of Lot 901 than the “second alignment”, but probably less (by far) than the “first alignment” which might become available free of cost to the Council; ACH offers in its proposal to construct and dedicate the future arterial road which the Council has been contemplating for years. ACH’s counsel confirmed the proposal extended from the far end of Lot 901, not just from the entrance to the shopping centre. That aside, I agree with Mr Viney that Option 7 is tight and awkward, to an unacceptable degree, and creates complications such as the need for a new roundabout at the principal access to the proposed Explorer Estate. It would leave Lot 901 more “intact”; one can envisage a substantial severance claim if Council or State authorities were to resume a swathe corresponding with Area “C”. Explorer Estate cannot be developed any further until the deviation is provided.

Amenity of Adjoining the Residences

In Ugarin Pty Ltd v Logan City Council [2004] QPELR 392, amenity considerations from the point of view of residential development were regarded as influential and counting against the approval of a new shopping centre. See at 398-99 the passage making reference to the planning objective for the relevant precinct that development within a business activity node “not intrude or adversely affect the amenity of residential development”. Similar considerations important to the success of the adverse submitters appear in Edwards & Alexander v Gold Coast City Council [2005] QPELR 226. While it may be true that those who would wish to preserve their own residential amenity must face the reality that the possibility of change is inherent in planning schemes (cf Mirbelia Street Action Group v Brisbane City Council [2004] QPELR 97, in which residents opposed a “rezoning” to permit increased residential development indistinguishable from that on their own properties), the court should not lightly give its imprimatur to the destruction or impairment of residential amenity which planning scheme provisions understandably set out to protect. ACH’s difficulty here is that its proposed site is a broad tract of land whose suitability for the proposed development is qualified by the long established presence of residences on Lots 9 and 11 on blocks which on three sides are surrounded by the site. Ignoring impacts of roads, there is unlikely to be adverse impact along the western boundary of Lot 11, where only a sliver of Area A incapable of development would lie between that Lot and the deviation.

Previous Litigation

A previous owner of Lot 901 had brought to the court issues to do with the Nindaroo (or Rural View) Major Neighbourhood Centre, presumably for the purpose of enhancing or preserving prospects of commercial development on Lot 901. This happened even before the transitional planning scheme itself was gazetted on 21 May 1999 to become the planning scheme for Mackay City Council. In September 1998, Judge Daly decided Northern Beaches Developments Pty Ltd v Mackay City Council, Mackay Appeal No 9 of 1998. This was an objector’s appeal against the Council’s decision to approve rezoning and subdivision of the Northern Beaches Central site, the rezoning being from Rural “A” to Commercial. Council’s approval required that a proposed development “comply generally with…‘the plan of development’”. Judge Daly noted the appellants’ desire to establish a similar facility on lot 901, the “plan of development” proposing uses including supermarket, sporting complex, hardware store and takeaway restaurant. The appeal was argued and decided by reference to the draft scheme (as it then was), which was then in the hands of the Minister with a view to its ultimate gazettal.

Map 1 of the Strategic Plan showed the land as commercial, with a designation “MN” appended. His Honour noted “evidence that the present proposal by way of floor area will meet the requirements of the catchment up to 2011”, evidence which turns out to have considerably underestimated those requirements. His Honour dismissed the contention that the draft scheme was “wrong”, finding the designation “entirely appropriate. I conclude that the present proposal is in a location preferred by the future planning strategies; a preference with which this court would not interfere”. He went on to dismiss arguments that the site was unsuitable for the proposal.

Next came Northern Beaches Developments Pty Ltd v Mackay City Council [1999] QPELR 364, decided a week before the 1999 Planning Scheme came into effect. Judge Wall, in the absence of any point taken by the Council and the Respondent by Election (defending the position of the Nindaroo Major Neighbourhood Centre on the eastern side of the Mackay-Bucasia Road) as to the court’s jurisdiction, considered whether there ought to be made “declarations relating to the fact that in a brief or proposal by the Council for consulting services for the preparation of the Nindaroo Major Neighbourhood Centre local area structure plan the proposal identifies the centre in a particular area on the eastern side of the Mackay-Bucasia Road, Nindaroo [whereas] the applicant contends that this limitation conflicts with the Council’s draft strategic plan and that the suitability of the land on the western side of the road in the same general area, in particular land owned by the Applicant, should also be considered in the study preceding the draft plan. The Council has indicated an intention to extend the study area and accordingly the declaration sought in relation to its original area, is, in those circumstances, no longer pursued”. His Honour went on (at 365): -

“The Applicant’s primary contention is because the preferred dominant land use areas marked on map 1 are not cadastrally based the map’s location of the relevant commercial area on the eastern side of the Mackay-Bucasia Road is not finally determinative of its location and land on the western side of the road should also be considered and for that reason be included in the parameters of the Local Area Structure Plan and study.”

Whether, and if so in what way, Lot 901 was dealt with in any study did not emerge in the evidence in this proceeding. His Honour’s findings are sufficiently indicated by the headnote which records his holding, in declining to make any declarations, that: -
“1. The proposal did not in any way conflict with the draft strategic plan. That plan, notwithstanding that it was not cadastrally based clearly, deliberately and intentionally located the Nindaroo Major Neighbourhood Centre on the eastern side of the Mackay-Bucasia Road.
2.It was a mistake to construe the words “this strategic plan is not cadastrally based and is not meant to be interpreted to a fine scale” as conveying in all respects vagueness and locational uncertainty in the sense contended by the Applicant.
3.There was no basis for contending that the draft strategic plan contemplated the encroachment or extension westwards to the other side of the Mackay-Bucasia Road of the Major Neighbourhood Centre.
4.The fact that the strategic plan map was not cadastrally based did not mean that it may not identify with sufficient precision and certainty the location of particular preferred dominant land use areas particularly in a case where the road formed a major line of demarcation between such areas.”

At 368 was quoted a passage from the evidence noting that both the blue commercial designation and the letters “MN” for Major Neighbourhood Centre were both to be found on the eastern side of Mackay-Bucasia Road not only in the final maps, but also in advertising to the public of the town planning arrangements under consideration.

The location of such letters may not be as definitive as was apparently thought. The “MN” is presumably used in the same way as the “N” used on the same maps to designate neighbourhood centres. A certain amount of flexibility appears. Thus, while “MN” is also on the eastern side of Mackay-Bucasia Road, Mr Reynolds’ office has downloaded a version of Map 1 showing it south of the new Eimeo Road (along with the blue coloured land), whereas Mr Schomburgk’s associate has downloaded one showing the letters on the northern side of that road. As far as the Blacks Beach Neighbourhood Centre is concerned, while the letter is located on one side above the road to Blacks Beach, there are areas of blue colouration on both sides of the road (on the northern side there may be two – it is difficult to be certain of the colour of the more western, smaller one). Further, in Andergrove, where both the “N” and the blue coloured area were clearly mapped on the northern side of Oak Street, the Council determined to approve on the other side of Oak Street, not far to the east, the “freestanding supermarket” which is now the successful Woolworths outlet. I would infer that the Council in Fernhunt Pty Ltd v Mackay City Council [2002] QPELR 447 supported the arguments accepted by the court. Judge Quirk said,

“[12] In the Strategic Plan the land is designated in the Higher Density Residential designation. However the Strategic Plan must be read as a whole and, as will be discussed in more detail in a moment, where it also makes provision for the establishment of a neighbourhood centre the High Density Residential designation is not necessarily inconsistent with this.
[13] The debate conducted in this appeal in respect of the Strategic Plan focused upon the Neighbourhood Centre designation which appears on the Plan as a “N” superimposed upon other designations and positioned on the northern side of Oak Street midway between the commercially designated land which appears to indicate the existing Andergrove Central Square Centre and Maple Drive which is well to the east of the subject land. The Appellant sought to derive some comfort from the fact that the Neighbourhood Centre designation was on the opposite side of Oak Street.
[14] The Strategic Plan must however be read sensibly and in its entirety. In its overall vision the Strategic Plan emphasises the importance of access being:
‘available to a wide range of conveniently and efficiently provided, employment opportunities, commercial services … accessible to all the community’

[16]…‘Discount supermarket’ is not a defined term but a sensible way of reading it would, in my view, suggest a large supermarket where a wide variety of competitively priced merchandise is presented…
[17] The Strategic Plan is not, in my reading of it amendable to too fine an interpretation. To read it as precluding the establishment of a facility of this kind to the south of Oak Street would be, I believe, such an interpretation. What can be gleaned from the Strategic Plan is that intends this general location to be the focus of retail activity at a neighbourhood level. If one accepts, as I do, on the evidence, that the community’s interests justify the establishment of a supermarket of this size in the area, this is an appropriate location for such facility.
[18] The Appellant’s case that it should establish in or adjacent to the existing centre ignores the physical difficulties of doing this…”

As his Honour noted, the strategic plan referred to “indicative locations” for the development of neighbourhood centres being shown in the mapping, which arguably allow some flexibility. Likewise, in the case of the Major Neighbourhood Centre, all that is said in words is that it ought to be “at Nindaroo”.

In my opinion the Council’s intentions all along and those of the consultants whose advice it has taken (for example those mentioned by Judge Wall) that the Major Neighbourhood Centre be located east of Mackay-Bucasia Road have always been clear. The Council’s view emerges clearly from the Eulbertie Park Estate approved plan of development, a document with the status of a preliminary approval under s 3.1.6 of the Integrated Planning Act 1997, having the potential recognised in this section to override general planning arrangements for the City, providing inter-alia:

“4.2. Neighbourhood Centre Core Land use Area
4.2.1 Intent
The Neighbourhood Centre Core, the area shown as such on Map 1, shall be developed as the main shopping centre for Eulbertie Park and for all of the Northern Beaches suburbs of Mackay. This area shall include the main shopping centre for the Northern Beaches, and also complementary activities that will add to the vitality and range of services of the centre. It is in the neighbourhood centre core that the main objectives identified in the Mackay Strategic Plan for the Northern Beaches Major Neighbourhood Centre will be met. The neighbourhood centre core’s location on the south-east quadrant of the junction of the Mackay-Bucasia Road with the proposed Eimeo Road re-alignment provides a prominent and accessible location for these facilities that are to provide for the district-level needs of Northern Beaches residents.
…
The vitality and convenience sought for the Major Neighbourhood Centre will be achieved only if all higher order commercial and retail facilities serving the Northern Beaches Area are concentrated into this Neighbourhood Centre Core, to the exclusion of other parts of the Plan of Development Area, and nearby areas outside the Plan of Development Area, and the Plan of Development provisions are structured to achieve that end. To encourage a cohesive form of development to take place in the neighbourhood centre core, it is intended that most development is code assessable against the relevant codes in this Plan of Development.”

(While such an approval may change what would otherwise be the planning arrangements for the land it relates to, it would seem an astounding proposition that it might control the planning future of other land – here, Lot 901, for example.)

There is room for genuine argument about the precise location of the Major Neighbourhood Centre in the 1999 Planning Scheme but much less so in the current planning scheme, having regard to footnote 5; reference to the mapping allows little scope for arguing that lot 901 comes within the “centre boundaries”. ACH’s entitlement is to have the appeal decided under the 1999 Planning Scheme. The court now ought to proceed consistently with the decisions with respect to location of Judge Daly and Judge Wall.

Conflict with the Strategic Plan

The present are circumstances in which s 4.4(5A) of the Local Government (Planning and Environment) Act 1990 applies, so that if the proposal conflicts with the Strategic Plan, it must be rejected unless there are “sufficient” countervailing “planning grounds to justify approving”. ACH relied on judicial statements to the effect that conflict must be “plainly identified”, such as Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 318. It is convenient to take up the asserted conflicts as summarised in the written submissions presented by Mr Lyons QC and Mr Williamson for ACH:

“(a)that the proposed development is ‘out of centre’ development which is inconsistent with the centres strategy⁹⁸;
(b)the proposed development is inconsistent with the Urban Residential PDLU designation as it will sterilise 7 hectares of land that could otherwise be used for residential development⁹⁹;

(c)the proposed development will detract from the residential amenity of the Urban Residential PDLU designation by way of off-site impacts¹⁰⁰; and
(d)the type, intensity and scale of uses included in the proposed development goes well beyond the non-residential uses contemplated by the Urban Residential PDLU designation¹⁰¹.
______________________
⁹⁸Exhibit 13, p 34, paragraph (144) and Exhibit 12, p 17, paragraphs 90 and 91.
⁹⁹Exhibit 13, p 34, paragraph (145)
¹⁰⁰Exhibit 13, p 34, paragraph (147)
¹⁰¹Exhibit 13, p 35, paragraph (148)”

While counsel and ACH’s planning expert, Mr Schomburgk valiantly contended that there was no conflict, or no “plain” conflict, my conclusion is otherwise. While the Overall Vision in 2.1 is of employment opportunities and commercial services being conveniently and efficiently provided and “accessible” in “largely fully serviced and self contained neighbourhoods, which evoke a sense of community, belonging and accessibility by all citizens” (2.2 Principles for development and use of premises (1)(b)), one comes then to (4) Commerce and Employment:
“(b) the Mackay Central Business District (CBD) should remain the primary commercial and administrative hub for the region and be supported by an important hierarchy of Centres throughout the City …
(c)opportunities for the convenient location of local retail and commercial facilities and equal employment opportunities should be provided throughout the City.

All residents should have reasonable proximity to a range of accessible convenience retail and commercial services, employment opportunities and community facilities.”

ACH contends it is providing for convenience retailing. Section 3 sets out the intent and objectives for preferred dominant land uses, of which the relevant one is urban residential:
“In addition to housing, residential neighbourhoods are intended to accommodate local parkland, accessible shops, churches, schools, child care centres and other community facilities which serve residents in the locality. Any development of these ancillary uses is intended to be at conveniently accessible locations and of a scale and nature compatible with surrounding premises.
…
Element 2 – Land Use
Objectives
Objective (b): To provide for appropriate non-residential uses to serve the immediate population, provide a community focus and/or contribute to reduced vehicle trips. The type of uses envisaged include low impact uses such as local stores, churches, community halls and home-based businesses.
Objective (c): To ensure that development of new premises occurring within the areas allocated urban residential is compatible with the existing and likely future character of those areas.
Objective (d): To ensure that development has no adverse social impacts that may affect the quality of life for any existing or future residents of the City.
Performance Criteria
Performance Criteria (b): Development of non-residential premises which:
(i)are intended to service the needs of the immediate community;
(ii)do not detract from the residential amenity by way of off-site impacts including noise, odour, traffic generation and visual intrusiveness;
(iii)are not an intrusion into the area; and
(iv)do not derive vehicle access from a local residential street.”

It is unsurprising that the developer of the Explorer Estate has planned for a convenience centre across Wallmans Road from the site. It is at this point that Mr Schomburgk, after praising the “community focus offered by the proposal, given its various facilities including the health/medical centre” proceeds:

“The centre is larger than the nominated 500-1,500m² of retail floor area, but that is a function of the way convenience centres are emerging rather than any empirical standard accepted in retail circles.”
(Exhibit 9, para 4.1.15).

Here is the crux of the “out of centre development” argument in respect of identifying conflict. I agree with the general proposition that function ought to be regarded, rather than the somewhat old-fashioned square metre benchmarks alone. The evidence in this appeal tends to establish that the Mackay planners’ estimates of the use areas required to provide retail services in various categories considered necessary or appropriate in the marketplace are sadly deficient. Players in the market are more greedy for space than may have been the case in earlier years. Customers’ expectations have inflated accordingly. That said, there are clear indications in the Strategic Plan that out of centre retail development is frowned upon, subject to the exception for “convenience centres … not able to be shown on the … Maps due to scale limitations.” ACH’s proposal, as summarised in the planners’ reports is a supermarket of 3,200m², specialty shops with GFA of 1,115m² (Mr Brown) or 1,152m² (Mr Schomburgk), a health centre of 755m², a fast food outlet of 250m² and a service station with four fuel bowsers (40m²), for an agreed total floor area of 5,360m², exceeding what the Strategic Plan contemplated for a Neighbourhood Centre. Whether the ground level car parking for 345 cars proposed was sufficient was an issue which went away.

The conflict which I find to exist, that this proposal is three or more times the size of what the Strategic Plan contemplated by way of out of centre development is not alleviated by anything in the 2006 Planning Scheme. Mr Schomburgk points to Part 1 Division 2 Strategic Framework which, after listing the six level hierarchy goes on:

“To establish and maintain a viable and sustainable network of centres in the City, additional centre activities are situated within or immediately adjacent to a designated centre and be appropriate in their scale, intensity and character to the intended role and function of the designated centre.”

The centres are supposed to “develop as concentrations of multi-purpose activities servicing the diverse needs of residents located within the trade catchment of each”. Mr Schomburgk accepts it is:
“a matter of legal debate, whether or not the subject site is considered to be outside the intended Rural View Major Neighbourhood Centre. This issue is largely academic and the Planning Scheme has made specific allowance for centre activities to be located outside of, but adjacent to, a designated centre in certain circumstances.”
(Para 4.5.6).

He contends the proposal is “limited to a size and function consistent with the provision of local facilities”. The theme is pursued elsewhere, including in the specific outcomes for the urban residential zone whereby non-residential activity in the zone “is limited to small-scale uses which are directly related to servicing the needs of residential areas” and in the Retail and Commercial Code at Pt 9 Div 21 which requires that “retail and commercial development in a City is situated within a designated centre and is assessable and convenient to all members of the community (9.97(2)(b)(i)). The Code says that “retail and commercial activities do not occur outside the designated centres” (9.97(2)(e)). However, somewhat contradictorily, “retail and commercial activities outside a designated centre are limited to premises with a size and function consistent with the provision of local facilities”. See table 9.20.2 at P1. The small scale of what is contemplated is indicated by acceptable/probable solutions S1, which refers to a maximum GFA of 25m².

Conflicts (a) and (d) are established. That in (b) was not taken seriously by any of the planners. Although demand for residential land in this part of Mackay is great, there is, on the evidence, plenty of suitable land available in the locality. As to conflict (c) there is much to be said for the view that the Wallmans Road deviation will detract from residential amenity in the locality rather more than would the proposal, and that, if the deviation is to go ahead, non-residential uses abutting it may be preferable from amenity/planning points of view. This observation is not necessarily applicable to immediate neighbours of the proposal.

It is not necessary in seeking to identify conflict to look at the conflict that may exist with the planning scheme proper provisions for the rural zone in the 1999 Planning Scheme. The zoning of the site was rural. In the notional rezoning exercise going on here, it is the intent of the proposed “new zone” to be examined, rather than the intent of the zone from which land is proposed to be excluded. At all material times, the site’s future has been seen as an urban one. In any event, conflict in this regard would not trigger s 4.4(5A).

Here, there are powerful planning grounds available to justify approving the proposal. Some of the considerations emerge from the discussion above. There is much to be said for the proposition that the 1999 planning arrangements, although now relevantly replicated in the 2006 ones, have been overtaken by events. Mr Schomburgk, as I understood him, relied on this in contending that, whether the proposal be seen as “in centre” or “out of centre” development, there was no conflict. On the economic evidence before the court, the planning arrangements fail to provide, for the existing and future residents of the identified catchment, the shopping/commercial facilities which are acknowledged in the aspirational statements which introduce them at the levels which those residents have come to expect, in light of prevailing retailing standards and practices. It is impossible to feel at all confident that Eulbertie Park will provide the relevant facilities within an acceptable timeframe – and clear that, if and when Eulbertie Park does do so, it will be at the sacrifice of convenience of access. The ACH proposal has the advantage of being “ready to go”. It is not premature, unless to a very minor extent and (if absence of adverse impacts is of any assistance) it will not have any unacceptable impact on the existing or expanded Northern Beaches Central. Northern Beaches Central will reap the benefits of its greater size, the new discount department store and community facilities located close to it such as the primary school, the new police station and the proposed new high school to the south.

I would not expect the adverse traffic impacts from the creation of a second or “satellite” centre to be significant in practice, although the court accepts the undesirability of exposing pedestrians and cyclists moving from one centre to the other, should they wish to visit both, to the hazard represented by crossing the busy Mackay-Bucasia Road. Those who live or who wish to travel to the west of the road will be crossing it anyway, as well those exiting the road north of Eimeo Road. Those groups excepted, for practical purposes, users of the proposal will get to and

from it by car. The proposal gains no merit for promoting use of public transport (which
will presumably be provided if ever there is a demand). It is not clear to what extent patrons of Northern Beaches Central use such bus services as may pass it.

The proposal will satisfy a genuine community need, which otherwise is likely to go unmet for several years. It will provide the Wallmans Road deviation on the most suitable alignment, at no cost to the ratepayers. In my opinion, this is a “planning ground”, and one of considerable weight. The deviation will almost certainly be constructed in some location on Lot 901 which, as it happens, will deleteriously affect the residential potential of that land. Planning considerations to do with the centres hierarchy apart, as Mr Schomburgk says, the subject proposal is a convenience-based centre serving predominantly existing and future residents on the western side of Mackay-Bucasia Road and the travelling public heading past the site, notwithstanding its considerable size. The Northern Beaches Central Shopping Centre will offer a different retail experience, once it expands “to be more of a comparison-based centre for larger shopping trips”. He may be right that, although the centres will operate separately, the proposal may complement Northern Beaches Central, “consolidating retail facilities around this ‘node’, thereby creating a community focus and reinforcing this location as comprising that node”.

I am acutely conscious that, unlike planning schemes for other local governments, Mackay’s does not encourage “nodes” (although they exist, notably at Mount Pleasant, also at Andergrove); it rather discourages them. The court is not entitled to usurp the Council’s planning function. The importance of centre hierarchies has frequently been acknowledged. See, for example, Lewiac Pty Ltd v Gold Coast City Council [2003] QPELR 385, 389-90. Such hierarchies promote orderly development; they offer certainty which, it is hoped, enables developers and others (whose wishes may be to escape development and its impacts) to make their plans for the future. ACH pointed to Luke v Maroochy Shire Council [2003] QPELR 447 at [72]-[78] and Lend Lease Property Management Pty Ltd v Maroochy Shire Council (supra) at [45]-[46] as instances of the court departing from a planning scheme hierarchy of centres, in each case on the basis of demonstrated community need. Those cases were both quite special; they provide no guidance for the court in this appeal. Among the distinguishing features is that the planning authority, there the Maroochy Shire Council, supported the proposed development, just as the Mackay City Council supported the development in Fernhunt. It has not taken a similarly flexible approach to its transitional planning scheme here. The “market responsive”[3] flexibility introduced by the IPA was described by Davies JA (the other members of the Court of Appeal concurring), in Vynotas Pty Ltd v Brisbane City Council [2002] 1 Qd R 108 at 113:

“[15] In any event, the scheme of the Integrated Planning Act appears to be that, so far as it applies to development and use of premises, a transitional planning scheme no longer has binding force but is of persuasive relevance only. Thus s.2.1.23 provides that a local planning instrument, which includes a planning scheme, may not prohibit development on, or the use of premises; and more specifically s.6.1.2.3(3) provides that a prohibited use in a former planning scheme⁶ is taken to be no more than an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. These provisions relate only to prohibitions, but if prohibitions in former planning schemes are now no more than policy statements it is unlikely that the legislature intended any other provisions in such schemes to continue to have binding effect upon development applications under the Act.⁷
_______________________
⁶ A former planning scheme includes a transitional planning scheme: s.6.1.3(1).
⁷ But see s. 6.1.2(1).”

[3]Explanatory Memorandum, as quoted in discussion in Fogg, Meurling & Hodgetts, Planning and Development in Queensland 2145

In this appeal, ACH has satisfied the onus, which it bears, of showing the appeal should be allowed. To balance the conflict noted, ACH can point to its proposal satisfying community needs for the new supermarket and for the new road.

It might be noted that the above conclusions have been reached without reference to certain other benefits the proposal offers, beyond the needed second full-line supermarket at Rural View. These include the petrol outlet. Doubtless there are regulatory hurdles to be cleared before that use can be established. On the evidence, the facility, if available, would be a boon to those who obtain fuel discount vouchers when they shop at Woolworths Supermarkets. The nearest petrol outlet accepting Woolworths vouchers is in Malcolmson Street, in North Mackay, remote from Rural View and the Northern Beaches. One does not know for how long supermarket discount vouchers will continue to dominate purchases in the fuel market; while they do so, it is likely that use of Mackay’s roads for unnecessary trips to Malcolmson Street or beyond would be rendered unnecessary by this aspect of the proposal.

Conditions

The court’s conclusion that the appeal ought to be allowed and the development approved in the circumstances applying is but a first step. Given the Council’s approach to date, it has not formulated development conditions. The parties, in accordance with established practice, will no doubt proceed to consider what conditions are appropriate for this relatively complex development. The provision of parking may be revisited as an issue in this context.

Conflict (c) as listed by ACH refers to para 147 of Mr Reynolds’ planning report, Exhibit 13 which instances “off-site impacts (on residential amenity of the Urban Residential PDLU designation) including noise, traffic generation and visual intrusiveness”. Mr Reynolds had been more expansive in the course of discussing “10 key centres planning principles”:

“5.3.10 Amenity
Planning Principle

(126) To provide a high quality urban environment.
Description
(127)By consolidating activity, design and investment can be more coordinated and focussed, leading to better physical outcomes (eg. consolidated signage; coordinating landscaping; integrated built form). In particular, economies of scale apply to the design and provision of better public spaces. In contrast, fragmented centres are usually unable to provide the same quality or quantity of public space. A more compact centre also means less interaction with non-centre uses, such as neighbouring residential suburbs. In contrast, fragmented centres typically present more ‘edges’ to residential areas, resulting in potential adverse amenity effects.
Assessment
(128)The designated centre is intended, under the Preliminary Approval, to present a ‘main street’ environment to maximise the community and amenity benefits identified herein. The scale of that infrastructure and public space is only able to be provided when a centre is consolidated, vital and of an appropriate scale. The proposed centre will adversely affect the ability of the designated centre to provide the ‘main street’, or will at least affect its timing and quality. The proposed centre will also present new interfaces with residential development that are unnecessary if the centre remains consolidated on the designated site.”

The court expects that the conditions will ensure satisfaction of the requirements of the Urban Residential PDLU in respect of amenity. The court has a particular concern for Lots 9 and 11. I have contemplated imposition of a condition upon the development that the respective owners indicate their consent to the manner in which their amenity is to be affected – or to the measures to be adopted to attenuate impacts. There has been no argument on the subject of such a condition, which I think would be unprecedented. The obtaining of such a consent would obviously assist any developer’s case. A requirement for it goes far beyond a consent that might be needed from neighbours for some use of their land (cf. Colless v Brisbane City Council [1984] QPLR 235); it would involve A needing B’s consent for something to be done on A’s own land. It may be that this potentially difficult topic is best attended to by affording the present owners the opportunity to be heard by the court. The court’s concern is based on the view that neither the interests of ACH (or Woolworths) nor the interests of the general public (nor both in combination) are a warrant for unduly blighting the amenity of long established residents. Here, they are not able to assert an expectation that no non-residential development would happen on Lot 901.

ACH submitted:

“96.As to the alignment of the Wallmans Road deviation – it appears to be accepted that the alignment proposed by the Appellant is an appropriate traffic engineering solution¹³⁶.

97.There is no traffic planning reason which would warrant refusal of the application. To the contrary, the proposed development represents a positive outcome for the public in traffic engineering terms.

(e)         Amenity
98.The Appellant contends that the proposed facility is one which can be provided in circumstances when there will be no unacceptable impacts on amenity, including impacts by reason of noise, light and odour. This is clear from the unchallenged evidence of Mr King¹³⁷.
99.It is anticipated that, notwithstanding the evidence of Mr King, the Respondent and Co-respondents will contend that the proposed development will have an unacceptable impact on the amenity of the residential properties described in Lots 6, 9 and 11 on Wallmans Road¹³⁸.
100.It is submitted that the proposed development will not have an unacceptable impact on these existing residents having regard to the following matters.
101.First, whilst the question of the acceptability or otherwise of impacts must be determined by reference to the planning documents¹³⁹, it is important not to unduly focus upon those who may choose to object to a proposal. To do so in this case would be to ignore the substantial body of unchallenged evidence of local witnesses who expressed their strong support for the proposal on the basis of a community need for choice and competition¹⁴⁰ in the type of facilities proposed, including the daily requirements of the community for food and groceries¹⁴¹.
102.Second, the reasonable expectations of the residents of Lot 6, 9 and 11 as to development must have appreciated that there could be an interface between their use and either, a non-residential use, or a road of sub-arterial standard (Wallmans Road Deviation) – indeed reasonable expectations in the circumstances would include an expectation that:
(a)under the provisions of the now superseded transitional planning scheme, and IPA planning scheme, the amenity enjoyed by the residents was likely to be affected, in a negative way, by the construction and operation of the Wallmans Road deviation¹⁴² – Mr King identified that noise mitigation measures (2 to 3 metre high noise barriers) would have been required, in any event, for lots 9 and 11 as a consequence of the construction and operation of the Wallmans Road deviation¹⁴³;
(b)under the provision of the now superseded transitional planning scheme, lots 6, 9 and 11 could have always had an interface with non-residential uses which include “accessible shops … which serve the residents in the locality”¹⁴⁴ – obviously a use of this character would necessarily include provision for:
(i)    well lit signage;
(ii)   at-grade vehicle carparking;
(iii) access and egress for delivery trucks and rubbish disposal;
(iv) plant and equipment associated with air-conditioning and cold rooms;
(c)under the provisions of the IPA scheme, lots 6, 9 and 11 could expect to have an interface with non-residential development which includes the provision of local facilities which service the daily convenience needs of a local trade catchment of no more than 2500 households¹⁴⁵.

103.In short, some impacts on the amenity of the residents of Lots 6, 9 and 11 are inevitable by reason of the interface between those lots and the subject land – the land has been earmarked as suitable for the Wallmans Road deviation as far back as 1999. In this context, the impacts of the proposed development, which can be ameliorated, are not unacceptable particularly having regard to the need for the proposed development and the consequential benefits which would flow from an approval of the development for the people of the Northern Beaches of Mackay.

______________________
¹³⁶ Exhibit 7, p 19, section (3)
¹³⁷ Exhibit 8
¹³⁸See Exhibit 8, p 33 – Lot 6 adjoins the eastern boundary of the subject land: Lot 11 adjoins the north-western corner of the subject land: Lot 9 is located on the western side of the proposed deviation.
¹³⁹JPF Australia Pty Ltd v Livingstone Shire Council & Anor [2006] QPELR 359 at 369 paragraph [101].

¹⁴⁰ Exhibit 13, 14, 22 & 23
¹⁴¹ Exhibit 17-20
¹⁴²Exhibit 10, Appendix C (SK108) depicts the Council’s now preferred alignment for the deviation – see also Exhibit 22 for background to current alignment.

¹⁴³ T348.
¹⁴⁴Exhibit 2, p 12, section 3.2 (Strategic Plan) and p 54, section 4.4.1 (Planning Scheme)”

In my opinion, there is a distinction to be made between a road, which may be seen as serving only a public interest and a private development, however much that may serve to satisfy a genuine public need. The court should be more tender about protecting the private citizen’s interests in the latter case. The submission from the proprietors of Lot 9 referred to “Council” assurances from the time when the way was opened for an application like ACH’s because Lot 9 was “subdivided … from the family farm some 24 years ago” and Lot 901 was allowed to change hands – assurances that the development that was bound to come there would be residential in nature. At the time of subdivision the Pioneer Shire Council was the relevant authority. Conflict with planning instruments is relied on and there is a lack of confidence expressed regarding the acoustic fence “which would be surrounding our property (like a prison) … would not keep the noise or smells out but will limit the afternoon sunlight and would block out the breezes to our home.”[4] The letter asserted that the single access proposed to the shopping centre was “inefficient, impractical and dangerous”, and that community support for the proposal had been generated by advertising which “failed to illustrate the two occupied residences which have been here for 22 years”, may accordingly have led “supporters” (many not from Rural View) to think the site was “near Bi-Lo”. Possible drainage problems (not ventilated in the appeal) were adverted to. Devaluation of Lot 9 was anticipated if the shopping centre went ahead. The essential point is the amenity one, perhaps summarised in this passage:

“… car parking would surround all boundaries of our property and this will only create extra noise coming from the vehicles and also the general public. The acoustic barrier certainly would not keep out the smells from car exhausts or engines and definitely would not keep out the smells coming from the fast food outlet or service station.
By incorporating such obvious barriers such as a 2.4 metre fence, the proposal itself demonstrates that the proposed use is an overdevelopment of the site and is not suited to its proposed location. The proposed development cannot be designed to appropriately shield the existing residential properties from the negative impacts it shall bring to the existing amenity of the residential properties.
… As seen on the plan there would be a considerable drop into our property …”

[4] Mr King advanced a conflicting opinion.

The Lot 11 submission relates to a more elevated site more likely to overlook the proposed development with its considerable expanse of rooftop and car parking, although the point made about the acoustic fence is that “it will keep out the views we now enjoy and the cool breeze. We will feel like prisoners in our own home with the acoustic fence surrounding three sides.” Other points from Lot 9 are replicated, including lack of “need” and fear of an adverse impact on the value of the property. Other concerns relate to an increase in crime and frustration of expectations that the “inevitable” development of this part of Mackay would be residential. As to impacts, the writer said:

“• Direct Impact on residential amenity in the Zoned Residential Area.
I believe our standard of living will be compromised by the extra noise generated from vehicles accessing the commercial area. A Petrol station and a fast food outlet generally trade well into the night, cars coming & going. Heavy vehicles delivering goods to the commercial area come at odd hours and will be reversing into the delivery dock right outside our bedroom windows. The rubbish bins will also be located in this area according to the plan, apart from the cockroaches, rats, cats and dogs that accompany the rubbish the smell will waft over the fence. Also fumes from the petrol storage tanks, fast food and car fumes will be ever present. That acoustic fence will NOT keep these out; it will keep out the views we now enjoy and the cool breeze. We will feel like prisoners in our own home with the acoustic fence surrounding 3 sides of our home.”

Regard must be had to such submissions in the carrying out of an impact assessment process, being part of the “common material” for a development application, as defined in Sch 10 of the IPA, see s 3.5.5. The court’s attention was also drawn specifically to the submission of the proprietor of Lot 6. That submission is more detailed and comprehensive than the others; it proposes the Explorer Estate land as being more suitable than Lot 901 for a Neighbourhood Centre. Much is made of the proposed acoustic fences of which it is said that by them “the applicant has unsuccessfully tried to mitigate those impacts” on residential amenity referred to in the intent statement of the Urban Residential zone. The submission asserts that:
“A 2.4 metre barrier surrounding the properties is absolutely unacceptable and is in no way in keeping with the residential character intended for the locality. A 2.4 metre fence is not in keeping with expected residential fencing and represents an unacceptable solution to controlling on-site impacts.
By incorporating such obvious barriers as a 2.4 metre fence, the proposal itself demonstrates that the proposed use is an overdevelopment of the site.”

The Council’s submissions did not emphasise these residential amenity aspects, but they were part of the submissions of Mr Gibson QC and Mr Litster, for the second, third and fourth co-respondents which, so far as reduced to writing, were:

“60.Performance criteria (b) for Element 2 – Land Use reinforces the low scale character of non-residential uses intended within the Urban Residential preferred dominant land use designation, providing:
‘Development of non-residential premises which:
(i) Are intended to service the needs of the immediate community;
(ii) Do not detract from the residential amenity by way of offsite impacts including noise, odour, traffic generation and visual intrusiveness;
(iii) Are not an intrusion into the area; and
(iv) Do not derive vehicle access from a local residential street.’
[our underlining]
61.It is obvious that the proposed development on the ACH Land is not despite Mr Schomburgk’s approach (apparent for example in Exhibit 9 paragraph 4.1.12) a ‘Local Store’ either by definition, character or likely impacts.
62.In this regard it will not escape notice that a ‘Local Store’ is defined within the ‘Planning Scheme Provisions’ volume of the Transitional Scheme to mean:
‘any premises used for display and sale by retail of food and groceries where:
1.The gross floor area so used is not greater than 200m²; and
2.The premises are not so used before 6am nor after 9pm on any day, except for ancillary storage, maintenance or security surveillance.’

63.The evidence of Mr King demonstrates only that noise levels should not be unacceptable. However, noise which would not be present in a residential area will be introduced as will odour, traffic and visual intrusiveness. The proposed development will be obvious, well lit and commercial in appearance. It will detract from residential amenity and represents a completely unacceptable commercial intrusion into the residential area: of Prime Group Properties Limited v Caloundra City Council and Ors [1995] QPLR 147 at 150F-151H.”

Judge Skoien there said:
“I have decided that, as separate components, no unreasonable adverse impact on the nearby residents in the form of noise, light or unpleasant odours would be caused by this development. But the concept of amenity is far broader than that: Broad v Brisbane City Council and Anor (1986) 2 Qd R. 317 at 326 … it has been reasonable for the surrounding residents to hold the perception of the general area, including the site, as excluding commercial uses generally and this proposed use specifically. Thus the subjectively held and objectively held perceptions are the same.
In deciding what are the reasonable perceptions of amenity of the residents I am conscious that I must apply ‘the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notions not affected by some special sensitivity or eccentricity’. See Rio Pioneer Gravel Co Ltd v Warringa Shire Council (1969) 17 LGRA 153 at 168.
In my view it would be a very serious step to disappoint, perhaps destroy those perceptions. To permit this development would do precisely that. In my opinion to do that would be justified only if the need for the development were a demanding one or if the application of proper planning principles, as seen in the planning documents actually required it.
It is appropriate to refer to two decisions which I regard as supportive of my conclusion.
In Vanglow Pty Ltd v Council of the Shire of Albert (1991) QPLR 68, Row DCJ was considering an appeal against a refusal of a rezoning for a service station in a residential area. At p.70 he said:
‘Nevertheless, the proposed development will present as a non-residential development in a predominantly developed residential area and will be perceived as seen to be a service station by and to residents in the locality. It will be completely out of character with the predominant existing and likely future development in the locality.’

The undesirability of the intrusion into a residential area of a development with an obviously commercial character was again recognised by Row DCJ in Prime Group Properties Ltd v Brisbane City Council (1994) QPLR 153. At p.158L His Honour said:
‘The proposed rezoning will introduce a non-residential, namely commercial use, into the existing residentially developed area. Those residences in the immediate vicinity fronting Beenleigh Road and those that abut at the rear will have a non-residential neighbour. Accepting the landscaping measures proposed by Mr Jones, the development will nevertheless remain non-residential in character and use. The buildings will be of obvious commercial appearance and use. There will be extensive sealed areas advertising the form of signage to indicate a non-residential use. The use will be obvious as not being of a residential nature … Whilst noise levels and lighting can be regulated so as to cause no adverse effects to residents in the vicinity, the existence of noise and lighting is further evidence of a non-residential use. The pleasantness of place will be adversely affected by such matters to a significant extent.’”

Prime Group Properties concerned a residential area accorded more protection from non-residential intrusions than one encounters here. The proposal, for a service station and shop on a 5,000m² site attracted 54 objectors, half of whom joined in the appeal. As the appellant’s quoted submissions indicate, there is the complication of treatment of Wallmans Road, which, according to Mr King, may require acoustic fencing to 3 metres in height to protect residents of the area against noise and light impacts.

While Mr King’s expertise should be respected, the court is not obliged fall in with his assessments of what impacts other people ought to find acceptable. The case for the appellant might be more convincing in these aspects if supported by testimony from neighbours of similar shopping centres expressing satisfaction with the amenity impacts of their neighbour developments and/or with the means adopted to attenuate impacts.

It is noted that, in marked distinction to Prime Group Properties, only commercial rivals have resisted this appeal. If the residential neighbours had wished to do so, they would have incurred considerable costs which they could not hope to recoup, whatever the outcome. Their inactivity since lodging their submissions may bespeak abandonment of their original points of view. The court does not know; it would not be justified in treating untested assertions in their submissions as factual. Whatever the Sologinkins’ strict entitlements to be heard by the court, my approach is to allow them to indicate a desire to make submissions to the court within, say, 21 days from the Registrar’s posting to them a copy of these Reasons, with particular attention being drawn to this paragraph. It may be more useful to them to make representations to participants in the exercise of working out development conditions.

I confess to considerable uncertainty as to what the amenity impacts might be, and note that even Mr King, when pressed by Mr Litster to indicate what would be the visual impacts for Lot 11, had no idea. My impression has been that the impugned 2.4 metre side and rear fences, which certainly exceed in height an (assumed) standard 1.8 metre fences, but may well not be unusual in Mackay, will be set back some 4 metres into the ACH site, the area thus fenced off to be vegetated, presumably to provide additional screening. I am unclear as to the proposed nature and extent of the vegetation proposed, and arrangements that can be reliably put in place to maintain it. Perhaps all of this can be dealt with in the exercise of settling development conditions. I have given thought to requiring, should the owners of Lots 9 and 11 together seek it, that the appellant make some provision toward the reasonable cost of engaging for them a suitable consultant able to advise on the impacts with which the Transitional Planning Scheme is concerned and suitable means of attenuating them to acceptable levels. It may well be that some satisfactory resolution could be reached with Mr King, perhaps with the assistance of the mediation services the Registrar of the court is in a position to provide.

I have found myself cogitating much upon this aspect of the appeal, and perhaps to little avail; as the court should allow the parties (and the owner of Lots 9 and 11) an opportunity to be heard further, if they so wish. Since preparing the foregoing I have revisited Mr King’s evidence.

I do not know whether Mr King, who confronted no corresponding expert in relation to his report dealing with noise, light spill, and odour issues, felt ambushed in his cross examination by Mr Skoien (who was led by Mr Hinson SC for the Council) or Mr Litster (led by Mr Gibson QC for the First, Second and Third Co-Respondents). That cross examination revealed a troubling amount of uncertainty about the ACH proposal which renders assessment of its amenity impacts on adjoining residences impossible for the moment. Mr King proposed acoustic fences 2.4 metres in height on or near the southern, western and northern boundaries of Lot 9 and also the southern and eastern boundaries of Lot 11 – to the east of which taller acoustic fencing (2.6 metres) would abut the east west running portion of Wallmans Road. Mr King told Mr Skoien there was a landscaping strip which “might be in the order of 3 or 4 metres” along the property boundaries. He said (315) the fences would be “located in landscape zones, so they’re not – don’t have to be immediately on the property boundary” and that (317) “there probably is enough landscaping width here to soften the visual appearance of the barriers.” He properly conceded (315) that “amenity, noise, light, odour are all subjective”; unsurprisingly he was drawn into commenting on broader amenity issues, in particular visual ones, which are of concern to the court in light of the neighbours’ submissions. At 318 he was asked:

“Here you’re going to have, in effect, distances of some fairly few metres from people’s back doors, back yards, to where these fences are going to effectively be imposed upon these people’s rear-facing vistas and side-vistas and the like and I suggest to you that the obvious impact for all of that is going to be that this is going to be quite imposing structures for these residents?”

Mr King responded:
“I believe there is adequate width that landscaping can be provided to soften the barrier appearance and as I said earlier, I don’t believe the height is excessive in a residential scale.”

He adhered to his point that taller fences or “barriers” would be required to attenuate impacts of the Wallmans Road deviation. See 319, line 35 and 348. For what it is worth, Mr King accepted as reasonable the neighbours’ concerns about barriers 2.4 metres high when the standard was something like 1.8 metres (he said up to 2 metres high). See page 329, where Mr King went on to agree with Mr Litster that the landscaping “will be on the retail centre side” but observing: “the potential could be that the noise barrier is built slightly within the retail centre rather than on the property boundary.” He agreed that “at the moment it is shown on the property boundary.” Apparently, it is only on Mr King’s own “plans” that fences are shown inside Lot 901. Things got more uncertain. As to whether the Lot 11 fences “could just as easily be moved back slightly into the landscaping zone”, he accepted there was a “significant cut … in the order of 3 to 4 metres” there. That cut is to produce a level site for the shopping centre. See page 330, where Mr King was unable to provide assistance as to what might be seen across the fence from Lot 11 because he did not know what the plans for the site were, what plant might be located on the rooftop, for example. Nor did he know the height of the proposed building, although he estimated 6 metres above ground level. At 331 he acknowledged that from Lot 9 the 6 metre building, with a floor level of RL18.5, would be highly visible above the 2.4 metre fence behind Lot 9: “the level of the residence is there approximately RL17.5”.

Mr King has not contemplated acoustic fencing on the western boundary of Lot 11. If required, that would be necessitated not by the shopping centre development proper, but by the Wallmans Road deviation in its location proposed by ACH. While that may be seen as part of the development, it is the case that, should other alignments be settled on for the deviation, equivalent (or taller) acoustic fencing would be required on Lot 11’s frontage to Wallmans Road. Mr King had some awareness of complaints from near neighbours of similar shopping centres (transcript page 341) but was unaware of survey-type material or local government statistics bearing on complaints from neighbours of shopping centres, being there to acknowledge that “there is always a degree of impact” and to offer “my opinion as to whether that degree is acceptable or unacceptable.”

The information before the court is inadequate to permit assessment of amenity impacts in which any confidence could be reposed. These are matters of considerable concern to the court. At this stage in the appeal, I think it appropriate to proceed on the basis that Mr King or other consultants independent of ACH (and potentially including consultants in the visual amenity field) should in principle be able to devise conditions dealing with amenity impacts in a satisfactory way. It may be that some level of co-operation is forthcoming from the affected neighbours. This aspect of the development proposal is of such concern to the court that it is possible that the lack of suitable enforceable conditions would go to the heart of things to such an extent that the proposal ought not be allowed to proceed. The transcript of Mr King’s evidence and the Sologinkins’ submissions indicate the subjects that will have to be addressed.

As indicated in paragraph [41], the appeal will be allowed, in the expectation that suitable conditions to protect the legitimate amenity impacts on the development’s immediate neighbours can be formulated. The Registrar will be directed to send the communication referred to in paragraph [52]. The parties may wish to be heard as to whether the neighbours should be.

CITATION:	Australian Capital Holdings Pty Ltd v Mackay City Council & Ors [2007] QPEC 100
PARTIES:	AUSTRALIAN CAPITAL HOLDINGS PTY LTD ACN 087 497 863 Appellant v MACKAY CITY COUNCIL Respondent and THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 First Co-Respondent and EULCOM PTY LTD ACN 102 773 106 Second Co-Respondent and W.A. STOCKWELL PTY LTD ACN 010 095 360 Third Co-Respondent and PORTERCO PTY LTD ACN 009 801 736 Fourth Co-Respondent
FILE NO/S:	BD 3575 of 2006
DIVISION:	Appellate
PROCEEDING:	Appeal against refusal of development application for supermarket-based shopping centre
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	15 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	12, 13 July 2007 (Mackay), 16-20 July, 28, 30 August 2007 (Brisbane); written submissions 5, 10 October 2007
JUDGE:	Robin QC DCJ
ORDER:	Appeal to be allowed, subject to appropriate conditions being determined including conditions protecting the legitimate amenity expectations of neighbours
CATCHWORDS:	Local Government (Planning and Environment) Act 1990 s 4.5(5A) – developer appeal against refusal of application for material change of use for a shopping centre – proposal conflicted with centres hierarchy established in the 1999 Transitional Planning Scheme (under which the development application was made) and replicated in the new 2006 Planning Scheme – in size it greatly exceeded what was contemplated for “out of centre” retail development – site zoned Rural, but earmarked for Urban Residential – sufficient planning grounds to justify approval in satisfaction of a community need for a second full-line supermarket in the area and in the provision by the developer through the site at its cost of an important component of the planned road network – concern for amenity of existing residences which would become isolated enclaves surrounded by the proposal
COUNSEL:	Mr Lyons QC and Mr Williamson for the Appellant Mr Hinson SC and Mr Skoien for the Respondent Mr Gibson QC and Mr Litster for the Second, Third and Fourth Co-respondents
SOLICITORS:	MacDonnells Law for the Appellants S B Wright & Wright & Condie for the Respondent Hopgood Ganim for the Second, Third and Fourth Co-respondents

Specific Outcomes	Acceptable/Probable Solutions
McCready’s Creek Precinct
P1 New shopping facilities in the McCready’s Creek precinct are limited to a Major Neighbourhood Centre at Rural View and a Neighbourhood Centre at Andergrove and local centre functions which respect the surrounding built environment.	S1 (i) Buildings do not exceed (2) storeys in height, or 11.5m whichever is the greater; and (ii) The architecture of buildings and structures in the centres incorporates pitched roofs, gables, articulated facades where fronting a pedestrian space or residential building, awnings for shade over footpaths, walkways and windows.
P2 The Rural View Major Neighbourhood Centre provides Major Neighbourhood Centre functions as part of the Hierarchy of Centres and services which do not adversely affect the role or function of other centres referred to in the Information Map – Network of Centres	S2 The Rural View Major Neighbourhood Centre is developed with: (i) a gross floor area (GFA) of up to 20,000 m² (ii) shopping facilities not exceeding 10,000 m² GFA and including a full line supermarket and other retailing facilities for weekly and convenience shopping; (iii) small-scale, convenience-oriented community facilities, commercial services and trades where no single activity occupies more than 10% of the non-retail floor area of the neighbourhood centre.
P3 The Rural View Major Neighbourhood Centre grows in step with and responds to the convenience oriented needs of the McCready’s Creek precinct in accordance with its major neighbourhood role as described in the overall outcomes of the Mackay Frame Locality Code. Implementation Notes: (i) A ‘dwelling household’ may consist of one or more people residing in a single dwelling unit or accommodation unit, including a caravan, providing that if the adopted average dwelling household size is less than 2.5 persons, the adopted size is based on census data; (ii) The catchment population for the Rural View Major Neighbourhood Centre resides within the McCready’s Creek precinct. (iii) The GFA values in the table are the maximum values for any component of the neighbourhood centre.	S3 The Rural View Major Neighbourhood Centre allocation of GFA complies with the following table.
	Population Threshold (dwelling households in trade catchment)	Shopping (m² GFA)	Commercial & Other (m² GFA)	Total GFA (m²)
	Less than 5,000	2,500	2,500	5,000
	5,000-7,500	3,500	3,500	7,500
	7,500-10,000	7,500	7,500	15,000
	More than 10,000	10,000	10,000	20,000
P4 Development of the Rural View Major Neighbourhood Centre achieves a cohesive and efficient urban form by: (i) ensuring a high level of physical and functional integration of buildings, landscaping, public spaces, car parking and service bays; and (ii) providing contemporary and consistent architectural expression in the buildings and which is reflected in the landscaping and signage.	S4 No solution specified.