Bird v Logan City Council

[2011] QPEC 145

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bird v Logan City Council & Ors [2011] QPEC 145

PARTIES:

GJ & PK BIRD
(Appellants)

v

LOGAN CITY COUNCIL
(Respondent)

And

STOCKLAND DEVELOPMENT PTY LIMITED (ACN 000 064 835)

(Co-Respondent)

And

CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS

(Co-Respondent by Election)

FILE NO/S:

3197/2010

DIVISION:

Appellate

PROCEEDING:

Submitter appeal against development approval

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2011 - 2 September 2011, 3 October 2011 - 7 October 2011 and 31 October 2011 - 2 November 2011

JUDGE:

Robin QC DCJ

ORDER:

Appeal dismissed subject to appropriate adjustments of the proposal

CATCHWORDS:

Integrated Planning Act 1997 s 3.2.1(7)(f), s 3.2.1.(10)(b), s 3.3.16(1)(b), s 3.5.5(20(c), s 3.5.14(2), s 4.1.52(1)

South East Queensland Regional Plan 2009-2031

South East Queensland Regional Plan 2005-2026 and Amendment 1 (October 2006)

Submitter Appeal against approval of shopping centre including a “discount department store” – whether South East Queensland Regional Plan (SEQRP) established an hierarchy of centres that precluded approval – inconsistent development in (the relevant) mixed use precinct – proposal would double commercial GFA in Jimboomba which already exceeded planning scheme cap and offended centres hierarchy to extent that Beaudesert’s primacy in retail was  jeopardized – Beaudesert Shire  Planning Scheme remained in effect for Jimboomba notwithstanding assignment of the town area to Logan City Council – relevance of Draft Jimboomba Local Plan prepared on assumption proposal had been approved – economic experts unanimous regarding need for the proposal but in disagreement as to whether such facility should be in Jimboomba or await population growth in the surrounding designated centres sufficient to support it – whether a Jimboomba facility should be located on the developer’s preferred site (separated from existing development by a school) or on the site of its existing shopping centre  - established community and planning need overcame conflict with planning scheme – effect of conflict (none being found) with SEQRP considered - whether scale and presentation of proposal consistent with Jimboomba’s existing/intended character - fragmentation of town’s commercial area.

COUNSEL:

Mr D. R. Gore and Mr B. Job for the Appellants
Mr G. Gibson and Mr N. Loos for the Respondent
Mr C. L. Hughes, Mr M. A. Williamson and Mr J. G. Lyons for the Co-Respondent
Mr M. D. Hinson and Ms J. S. Brien for the Co-Respondent-by-Election

SOLICITORS:

McCullough Robertson for the Appellants
Corrs Chambers Westgarth for the Respondent
Connor O’Meara for the Co-Respondent
HopgoodGanim for the Co-Respondent-by-Election

1. The issue in this appeal comes down to whether, on the assumption that there is a planning need that ought to be satisfied for a Discount Department Store (DDS) in Jimboomba, it should be provided in the developer’s existing shopping centre on the northern side of Cusack Lane as contended by the appellants, who have land on the southern side where a child care centre operates – or, in accordance with the co-respondent developer’s proposal, which won Council approval, on its other site further north in the same town “block”.  The block is completed by (and both sites have frontages to) the Mt Lindesay Highway (Brisbane Street) in the east and Johanna Street in the west.  These thoroughfares intersect, because the latter curves to the east at the northern end.  The sites are both identified as “the land” in the development application.  The idea is to present as a package refurbishment and a certain amount of alteration of the existing shopping centre, in ways said to improve Cusack Lane’s performance as a “Main Street” for Jimboomba and the establishment of a new shopping facility similar in extent to accommodate not only the DDS and a range of food and speciality shops (including “mini-majors”) but also a slightly expanded area for the Woolworths supermarket, which is proposed to relocate from the existing shopping centre.  One future use indicated for the space to be vacated is gymnasium, another a liquor store or barn; a number of new restaurants are envisaged.

1. If new land is needed at all, the proposal for the northern site (described as site 1) gives rise to some serious issues.  It does not represent growth of the existing shopping centre (“site 2”) or of the existing retail facilities of Jimboomba (Cusack Lane runs through the middle of them) by expansion at the edges, being remote from those facilities.  It is separated by Jimboomba State Primary School, which has around 1,000 students and in the west also by the library and government services such as police and ambulance which are separated from site 2 by Honora Street, a “dead end” which opens only to Johanna Street.  That area of the school was seen as a significant one, not because of the impacts of commercial development on the school, but because of the school’s effect of disrupting the cohesion of the shopping areas.  Thus there is an issue of fragmentation of the Jimboomba Town Centre.

1. The proposal for site 1 is not consistent with its zoning arrangements under the Beaudesert Shire Planning Scheme which commenced in March 2007;[1] it does not fall within the Town Centre Core Precinct, where commercial development is at present, but (along with the school) in the Mixed Use Precinct, where lower order commercial development is envisaged.  Conflict with the planning scheme is admitted, hence the focus in the appeal on whether there is a planning need for the proposal justifying its approval.  The development application was made, and it is be assessed under the Integrated Planning Act 1997 (IPA).

   [1]See [70] below

1. Further, the proposal allegedly cuts across the vision of the South East Queensland Regional Plan 2009-2031 (SEQRP), which wants to see Flagstone (extending to about 10 kms to the north-west) and Yarrabilba (extending to about 10 kms to the east) as Major Regional Activity Centres, along with Logan Central, Browns Plains and Logan Hyperdrome, and to see Jimboomba, apparently lower in the hierarchy, “retain its role as a major rural activity centre, providing district level services to surrounding rural residential development”.  The argument is that if the proposal goes ahead Yarrabilba (where to date there is little development) and Flagstone (which had been seen in the 1985 Town Planning Scheme for the whole of the Shire of Beaudesert as potentially “a substantially larger urban centre than the other centres” (4.5.1 Urban Residential Intent) will have to wait.  Presently, on the economic experts’ figures, Jimboomba has twice Yarrabilba’s population, three times Flagstone’s (which it is thought will ultimately be the biggest).

1. Other issues concern the visual impact and compatibility of the proposal (and whether enough is known about that to permit judgments to be made).

Planning Scheme Provisions

1. Although Jimboomba is now part of Logan City, the only planning scheme which regulates development there is the Beaudesert Shire Planning Scheme which commenced on 30 March 2007,[2] in particular in provisions for the Mt Lindesay Corridor Zone whose boundaries are shown in the map exhibit 26.  Land in the zone is allocated to precincts, potentially 15:

   [2]The appellant’s written submissions, at paragraphs 184 ff show that Jimboomba was a “transferring area” as defined in s 159YD of the Local Government Act 1993 excluded from Beaudesert Shire and included in Logan City with effect from 15 March 2008 under s 159YI(1). Section 42(1) in Part 3 of the Local Government Reform Implementation (Transferring Areas) Regulation 2007 (inserted 2008) provides that the planning scheme for a transferring area continues, binding the receiving local government until a new planning scheme for it is approved under relevant legislation.

“Town Centre Core
Frame
Mixed Use
Minor Convenience Centre
Industry
Residential
Park Living
Rural Residential
Emerging Community
Future Investigation
Conservation
Countryside
Active Recreation
Passive Recreation
Community Facilities”

1. Other townships in the Zone are Logan Village, Flagstone and Greenbank.  A future one will be Yarrabilba.  Intent Statements for relevant precincts are:

“OO47Development within the Town Centre Core Precinct has a retail and commercial office character at ground floor level and a commercial office character above ground floor level.  The Precinct serves the prime retailing and entertainment function by providing for the convenience needs of localised catchments through ready access to comparison retail, speciality shopping, lower order professional offices and businesses and financial or personal services within a compact, centralised location.

OO48Development within the Frame Precinct has a commercial character.  The Precinct provides a supporting role to the Town Centre Core Precinct in that it accommodates a range of uses supplying non-convenience goods, commercial uses and business activities that would not traditionally locate within primary Town Centre locations.  It does not contain high turnover retail activities.

OO49Development within the Mixed Use Precinct has a commercial office character on larger lots and is transitional in nature.  It offers access primarily to lower order professional offices and businesses including a range of low-impact retail showroom-type activities and some low-impact industrial activities.  At Logan Village, the Mixed Use Precinct provides for limited additional residential activity.

OO50Development within the Minor Convenience Precinct has a retail and commercial office character generally within single storey buildings and is typified by a limited range of small-scale convenience or speciality shopping activities of a local order centre.  The Precinct includes a limited number of specialised lower order professional offices and businesses.

OO51Development within the Industry Precinct has a predominantly industrial character.  The Precinct provides for a mix of compatible business and industry activities, including commercial, service and trade activities and appropriate low-impact manufacturing activities that support and are within close proximity to the Town Centre Core, Frame, Mixed Use and Minor Convenience Precincts.”

1. Earlier in the planning scheme desired overall outcomes for the Zone are set out, including:

“Community Identity, Urban Design and Principles and Image

OO10Development provides for the establishment, conservation and enhancement of local character and the promotion of a distinctive local identity and sense of place.

OO11Development in the Town Centre Core Precinct, Frame Precinct and the Mixed use Precinct is located, designed and managed so as to -

(a)maintain connectivity and provide a high level of integration and legibility between uses; and

(b)provide a high level of amenity and contribute positively to landscaping, streetscape and existing built form; and

(c)provide for a rationalisation of vehicular and pedestrian access; and

(d)provide appropriate parking, manoeuvring and access areas.

OO12Development within the Town Centre Core Precinct, Frame precinct and Mixed Use Precinct is generally consistent with the existing scale[,] form, intensity and character of development.

Community Services

OO13Development supports a range of community services commensurate with the size and density of the individual community in which the development is proposed.

OO14Development for community services is located to provide the most effective and efficient delivery of those services.

OO15Development contributes to the collective provision of appropriate community facilities serving the needs of residents.

Economic Development

OO22Development provides for the enhancement of employment and investment opportunities through improved integration of residential and business activities, whilst maintaining residential amenity.

OO23Development involving retail uses, retail-bulky goods and office/professional uses may be supported, where the total gross floor area/(existing and proposed) for each locality does not exceed -

(a)6,000m² at Logan Village for development at Logan Village; and

(b)14,000m² at Jimboomba for development at Jimboomba; and

(c)10,500m² at Greenbank for development at Greenbank; and

(d)6,700m² at Flagstone for development at Flagstone; and

(e)500m² in the Minor Convenience Centre for development at a Minor Convenience Centre.

OO24Development for the extension of centres beyond the designated total gross floor area limits, does not occur until further planning studies are completed to determine the appropriateness of such expansions.

Growth Management

OO62Development in respect of land in the Mt Lindesay Corridor Zone identified in the Urban Footprint of the South East Queensland Regional Plan is to comply with the South East Queensland Regional Plan which provides that -

(a)the land is not necessarily suitable for urban development; and

(b)the land suitable for urban development is to be identified through structure planning and associated Planning Scheme amendments or, where otherwise provided for, through consideration of constraints affecting the land; and

(c)the timing and sequencing of development shall be determined through structure planning and the local growth management strategy; and

(d)structure planning is to be undertaken for all Major Development Areas identified in Schedule 6 prior to development unless the development would not compromise the future use and planning of the Major Development Area.

Intensity of Development

OO63Development is at a scale, form and intensity which is intended for development in the Zone and is consistent with the reasonable expectations of residents of the Zone.”

Schedule 6 names and maps:

“Bromelton
Flagstone
Greenbank Central
Yarrabilba
Beaudesert – north
Beaudesert – south
Beaudesert – central; and
Canungra”

1. Jimboomba is conspicuous by its absence, which may be seen as a curiosity.  It features in all of the many maps included in the SEQRP which extend to cover its location as part of the urban footprint situated on a “major road” (Mt Lindesay Highway) with the sole exception of the map of koala areas.  Flagstone and Yarrabilba are named mainly in the Activity Centres Network Map.  No expectation that or reason why Jimboomba will or ought not to experience development is mentioned anywhere in the SEQRP or the Planning Scheme, although the latter evinces an intention (after the horse has bolted, in the sense that the cap had been surpassed by March 2007) to restrict commercial/office development there.  One would assume that the notion of securing the pre-eminence of Beaudesert as the Shire “capital” was important in the drafting of the Planning Scheme.  Indeed, under Vision and Strategic Issues and 2.2.5 Broad Strategies for the Shire, the pattern of townships is said to be:

“(a)Beaudesert, which is the principal rural centre of the Shire; and

(b)Logan Village, Jimboomba, Canungra and Greenbank which provide local business, retail, industrial and community activity; and

(c) Other smaller villages, which provide local convenience services … .”

Under 2.2.6 Local Strategies for the Mt Lindesay Corridor Zone, one finds:

“(1)The townships of Logan Village, Jimboomba and Greenbank incorporate commercial, retail and low impact industrial components as appropriate in the local catchment area of each township.

(2) The townships of Logan Village and Jimboomba provide the predominant location for new urban development (including secondary dwellings, small-scale medium density developments and aged persons accommodation) in the Shire within the life of the Planning Scheme.

(3) Community facilities are contained within the townships of Logan Village, Jimboomba and Greenbank.”

2.2.10 Local Strategies for the Beaudesert and Canungra Townships Zone stipulates that:

“(1)Beaudesert functions as the principal administrative centre for the Local Government Area and provides a range of retail, commercial and industrial services whilst maintaining a rural vintage town character.

(2)Development is appropriately located in the Beaudesert and Canungra Townships Zone to ensure appropriate access to infrastructure … .”

There are in 3.2.11 specific outcomes and prescribed solutions for the Mt Lindesay Corridor Zone which include the following:

“Column 1
Specific Outcomes

Column 2
Acceptable Solutions – If Self-assessable
Probable Solutions – If Code-assessable

SO1     Development is limited to development which is ‘Consistent Development’ as identified in Table 3.2.7 Consistent Development in the Mt Lindesay Corridor Zone.

Community Identity, Urban Design Principles and Image

SO7     Development for non-residential purposes within the Town Centre Core Precinct, Frame Precinct and Mixed Use Precinct is consistent with existing and intended scale and built form by providing that development –

(a)      is of a scale and form which is compatible with existing and planned buildings or structures having regard to - …

(c)      has an attractive and functional appearance; and

(d)      is orientated toward the road network; and

(e)      contributes positively to streetscape and built form; and

(f)       is integrated with existing buildings; and

(g)      provides a cohesive built form.

SO8     Development is designed to provide for social interaction

Economic Development

SO19    Development provides a range of employment opportunities for residents within the Zone. …

SO21    Development for non-residential purposes within the Town Centre Core Precinct, Frame Precinct, Mixed Use Precinct, Minor Convenience Precinct and Industry Precinct provides a benefit to and satisfies both a community need and an economic need of the residents of the Zone.”

In my view the references to the “Zone” in SO19 and SO21 are deliberate and important and should not be read down (as the appellants contended) to be taken to refer to some more confined area such as the precincts referred to or the town of Jimboomba.

1. The “specific outcomes” for the Town Centre Core Precinct, appropriate to set out in full for their relevance to the site 2 aspects of the proposal being located there (no acceptable or possible solutions appear except for SO8), are:

“SO1Development exhibits a retail and commercial office character when occurring at ground floor level and a commercial office character when occurring above ground floor level and, within a compact, centralised location –

(a)provides for the convenience shopping needs of localised catchments; and

(b)provides access to -

(i)        comparison shopping; and

(ii)speciality shopping; and

(iii)higher order professional offices and business; and

(iv)financial or personal services.

SO2Development operates in conjunction with other nearby community service functions such as schools, meeting places and the like.

SO3Development within the Town Core Precinct at Jimboomba is comprised predominantly of –

(a)a Shop; or

(b)Commercial activity; or

(c)a Convenience Restaurant; and a Food Establishment/Reception Centre; or

(d)a Shopping Centre.

SO4Development for all Commercial and Retail, Bulky Goods and Office/Professional Uses within –

(a)the Town Centre Core Precinct, Frame Precinct and Mixed Use Precinct at Jimboomba shall not exceed a total maximum GFA of 14,000m².

(b)the Town Centre Core Precinct, Frame Precinct and Mixed Use Precinct at Logan Village shall not exceed a total maximum GFA of 6,000m².

(c)the Town Centre Core Precinct at Greenbank shall not exceed a total maximum GFA of 6,700m².

SO5       Development –

(a)protects and enhances the role of the Precinct as a local retail centre which functions as a retail and commercial office node; and

(b)functions in an integrated manner alongside existing commercial and retail activity by providing integrated parking areas, access areas, built form, landscaping and advertising devices; and

(c)protects existing and intended amenity; and

(d)has a high level of accessibility to the local road network; and

(e)provides a high level of amenity in relation to built form, landscaping, streetscape and advertising devices.

SO6       Development is designed to provide for social interaction.

SO7Development for non-residential urban type uses within the Town Centre Core Precinct provides a benefit to and satisfies both a community need and an economic need of the residents of the Zone.

SO8Development being Building Work and Engineering Work does not –

(a)interfere with or adversely impact upon any existing or planned infrastructure; and

(b)place an adverse loading on any existing or planned infrastructure.

SO9Development within the Town Centre Core Precinct at Jimboomba makes provision for public transport services which –

(a)service the development; and

(b)integrate with existing public transport services; and

c)protect and enhance the safe, efficient and legible operation of public transport services.”

1. For the Mixed Use Precinct, where site 1 is, the specific outcomes begin with:

   “SO1Development exhibits a commercial office character on larger lots, is transitional and –

   (a)at Jimboomba, provides for access primarily to lower order professional offices and businesses including a range of low-impact retail showroom type activities and some low-impact industrial activities; and …”

   SO2 replicates SO2 above, and SO3 replicates SO4 above (omitting reference to Greenbank); SO4 replicates SO5 above and SO5, referring to development generally and with the precinct name changed, SO7 above.  SO6 replicates SO8 above and SO7, again with a name change, SO9.

1. For completeness, the specific outcomes for the Frame Precinct (which includes the appellants’ childcare centre adjacent to the Town Centre Core land south of Cusack Lane immediately to the east and a triangular “mirror image” of that land across the railway reserve) replicate in SO2, SO4 and SO5 the similarly named ones for Town Centre Core and in effect SO7 (deleting “non-residential”), SO8 and SO9 there as well; there are the following particular Frame Precinct provisions:

“SO1Development exhibits a predominately commercial character with limited business and retail activity and –

(a)provides for limited additional convenience retail needs; and

(b)provides access to -

(i)a limited range of additional comparison retail activity; and speciality retailing; and

(ii)higher order professional offices and business; and

(iii)financial or personal services.

SO3Development within the Frame Precinct at Jimboomba is comprised predominantly of –

(a)       Commercial activity; or

(b)       a Retail Showroom; or

(c)       a Child Care facility; or

(d)       a Community Care Centre; or

(e)       Indoor Sports, Recreation and Entertainment; or

(f)A Convenience Restaurant; or a Food Establishment /Reception Centre.”

1. The extent of assimilation or aggregation of the three precincts (especially for development for commercial and retail, bulky goods and office/professional) is noteworthy, and suggests that the distinctions may be of reduced importance given the precincts are contiguous within a relatively confined geographical area.  However, the “social interaction” outcome (SO6) for the Town Centre Core is distinctive, indeed is pointed to as a virtue that will be achieved in the site 2 proposal.  The proposition regarding the three precincts being considered as a combination is underlined by Overall Outcomes 11 and 12 set out above.

1. A general approach of seeing precincts as merging with adjoining or nearby ones is discernible in some of the Industrial Precinct SOs:

“SO1Development exhibits a predominantly industrial character and provides for a mix of compatible business and industry activities including –

(a)commercial and service and trade activities; and

(b)appropriate low-impact manufacturing activities that support and are within close proximity to -

(iii)the Town Centre Core Precinct; and

(iv)Frame Precinct; and

(v)Mixed Use Precinct; and

(vi)Minor Convenience Precinct.

SO2Development within the Industry Precinct is comprised predominantly of –

(a)Industry – General; or

(b)Industry – Low Impact/service; or

(c)Commercial activity; or

(d)a Retail Showroom; or

(e)Warehouse/Storage Facility.”

SO7 comes with one solution:

“SO7Development providing limited retailing activities does not compromise the role of the Town Centre Core Precinct, Frame Project, Mixed Use Precinct or Minor Convenience Precinct.

S7.1Development ensures that the retailing of goods is generally limited to goods manufactured on site.”

The familiar public transport, etcetera outcomes are there too.

The draft Jimboomba Local Plan

1. The respondent Council inherited Jimboomba from the Beaudesert Shire Council in March 2008 and set about developing a Jimboomba Local Plan “to guide and plan for population growth and pressures to the year 2031 so the township of Jimboomba can meet the needs of existing and future residents” – as set out on page 3 of a document entitled Jimboomba Local Plan 2009-2031; although it may have a finished look, the document has not undergone any of the formal steps that may lead to its becoming part of the planning scheme for the City of Logan.  The court is told that the Council’s intention is to promulgate a new planning scheme for the whole city in 2012.  Rather than go through a process of piecemeal amendments, the Council apparently intends to use this draft local plan (LP), as the planners describe it, and other similar ones to “inform preparation of the 2012 planning scheme”.  The extent to which the expectation may be realized in respect of Jimboomba, for present purposes, is unknown.

1. The planners are at odds over what if any weight should be given to the draft LP.  Mr Reynolds, the planning expert nominated by the appellants, says the answer is “none”; his professional colleagues, accepting that it is a matter for the court, suggest that some weight should be accorded to the draft LP, as local area planning that exhibits substantial progress and as “the most contemporary expression” of it.

1. The draft LP assigns all of the land between Johanna Street and Mt Lindesay Highway to the railway reserve in the south to an expanded Town Core Precinct - which accounts for most of the new District Centre Zone.  The balance is the current Frame Precinct land south of the railway (proposed to be a small commercial precinct) and a slightly larger rectangular area of Mixed Use – Commercial Residential Precinct on the western side of Johanna Street (roughly in the middle).  Somewhere in the present school grounds a much smaller Civic Park (Town Square) Precinct is indicated.

1. Needless to say, the draft LP offers strong support for the present proposal.  Indeed, the proposal is presented in it as approved: see 6.3.1 (page 44), where the school is blamed for “further fragmentation” and being a “barrier to integration of potential commercial or retail development to the north”.  Map 6 indicates a Potential Future Jimboomba State School site in East Street adjoining the existing Emmaus College.  An Education Department officer’s evidence is that the school is not going to move and the East Street land is probably going to be sold.  Her evidence suggested that the site was acquired for a high school, a facility which has now been established for the area at Flagstone.

1. Mr Reynolds and the appellants say that it is wrong to premise the draft LP on certain listed development proposals being “givens” which have to be accommodated in future planning.  The draft LP says on page 9:

“2.4       Current Development Applications in the Study Area

The Jimboomba Local Plan will require consideration for all Development Applications that have been lodged and/or approved within the study area to ensure that there all development is well integrated with future adjacent land uses.  Some of the larger development applications that have either been recently approved or are awaiting approval include:

1.Jimboomba Industrial (Cerina) – Development Permit for a Material Change of Use and Reconfiguration of Lot.  Material Change of Use (Preliminary Approval) for Light/Service Industry and Reconfiguration of Lot (1 into 34) (Development Permit).  This development is complete;

2.Jimboomba Commercial (Cerina) – Development Permit for veterinary surgery/hospital and convenience restaurants.  There is currently another development application for a proposed use of indoor sports, recreation and entertainment (gymnasium) to be part of the development.  McDonalds restaurant has also been issued a Development Permit on part of this block and is under construction;

3.Shopping Centre (Stocklands) – application approved by Council pending infrastructure Agreement:

-Development Site No. 1 (northern site) – application for Shopping Centre (incorporating a supermarket (relocation from existing centre), discount department store, 2 mini-major stores, speciality stores and food establishments (food court).  This application has Council approval pending the outcomes of an Infrastructure Agreement; and

-Development Site No. 2 (southern site) – redevelopment of existing shopping centre (incorporating shops, food establishments, bottle shop and drive through, commercial activity, indoor sport, recreation and entertainment (gymnasium) and extension to existing hotel);

4.Hardware Store – Development Permit issued for a Shop (over 500m²).”

The hardware store (formerly the occupant of a now vacant building on site 2 central in the Cusack Lane frontage and proposed to be demolished) is operating in the new premises, which are on the eastern side of the highway.   The “Shopping Centre (Stocklands)” proposal cannot boast similar certainty.  For one thing, the approval may not survive this appeal.  The co-respondent has to satisfy the court that approval is appropriate.  There must be some stage, however, at which in practical terms it is reasonable to talk of “approval” even though something might happen to render an approval ineffective – as in Allen v Toowoomba Regional Council [2011] QPEC 81, when a submitter was entitled to appeal at an unexpectedly late date because he had been overlooked when the Council notified others of its decision to approve expansion of a feed lot.

1. According any weight to the draft LP in the circumstances is problematic. There is too much of the tail (the development application) wagging the dog (the proposed Jimboomba Local Plan). However, I think it is reasonable for the court to have regard to the views of the Council in its assessment manager capacity rather than as the propounder of planning schemes and planning scheme amendments. Doing so is justified, notwithstanding s 4.1.52(1) of IPA, now s 495(1) of the Sustainable Planning Act 2009, in line with the approach (enunciated by Stephen J, other members of the High Court concurring) in Scurr v Brisbane City Council (1973) 133 CLR 242 at 257:

“The Court determines the appeal and the council is then bound to give effect to the Court’s determination – sub-s. (4); the council is thus deprived of all independent power of consideration and decision making and this is assumed by the Court.

This substitution of the Court for the council as the true arbiter of applications under s 22 once an appeal is instituted is significant for the light it throws upon the role of the Court.  The Court has before it no final decision of the council on which to adjudicate but merely a proposal which will never of its own force become operative but will, whatever the outcome of the appeal, be superseded by the Court’s determination of the appeal.

…

The fact that once an appeal is instituted by an objector the Court assumes from the council the task, initially the council’s of considering an application and the objections to [if not] … all the requirements of the giving of public notice in due form have been complied with.  … will result in it having before it a council proposal to which it would no doubt ordinarily wish to pay some regard as to the expression of the views of the responsible planning authority but which it will know has been arrived at without necessarily having benefited from a proper presentation to the council of objectors’ views;”

Acknowledgment of the appropriateness of proceeding in this way to give some weight to an approval the subject of an appeal to the court under the IPA regime may be found in Wingate Properties Pty Ltd v Brisbane City Council [2001] QPELR 272, in which Judge Brabazon said:

“[21]It is not the function of this Court (or indeed any planning authority) to refuse an application because it considers that the proposed use is not the best possible use for the site.  It is not the function of the Court to redesign a proposal.  Its function is to pass judgment on that which is proposed.  In this case, the issue is whether or not the current proposal has been shown to be acceptable.  The fact that some alternative proposal may be thought to be even more acceptable is by the way.  If the current proposal is acceptable, then that is enough.

[22]The Brisbane City Council is the planning authority for this city.  It is not the function of the Court to conduct a review of its planning schemes, or hold any opinions as to whether its schemes are good or bad.  The role of the Court is a narrow one.  It is to resolve appeals in particular cases.  It is subject to the same principles and constraints which apply to the planning authority.  Whilst the Court acts on all the evidence given in the appeal, there is no reason why it might not place weight on an approval by a local authority, as that represents an expression of the views of the [responsible] planning authority.”

Further Issues Regarding the Draft Jimboomba Local Plan

1. The appellants’ criticisms of the draft Jimboomba Local Plan and the processes leading to it were strongly supported by Mr Reynolds’ evidence.  The Council engaged consultants to prepare a draft plan for the town of Jimboomba which represented an important addition to the Council’s Local Government Area.  The appropriateness of planning arrangements condemning Jimboomba to continued subservience to Beaudesert would have been a most relevant issue.  The consultants brought in envisaged increased commercial development of the parts of Jimboomba relevant in this appeal, but with significant (or even predominant) residential components in options propounded.  It is difficult to avoid the impression that the Council’s enthusiasm for Stockland’s proposal led the Council (or a sub-committee of designated Council members) to embrace a different planning vision from the consultants’.  The process, which included inviting public comments, appears to have been influenced or controlled with a view to favouring the proposal.  It seems the differences were such that the consultants’ services were terminated.  The court should be mindful of the notion that it may be “quite inappropriate … to deal with an individual application … in a way which might be construed as determinative of some wider question” (Sheezel v Noosa Shire Council (1980) 6 QL 207).  These considerations provide another reason for not placing weight on the draft LP as support for the application.  The court is not placing weight on it.  On the other hand, it must not be overlooked that the planning authority is the Council, and not the consultants (or the court).  The Council’s considered view has been that conflict with the planning scheme should not condemn the proposal to failure, indeed that at the appropriate time the planning scheme should be changed.

1. Mr Reynolds and the appellants were critical of the draft LP for its failure to consider possibilities of the Jimboomba Town Centre expanding in locations other than to the north of site 2, it being contended that locations south of Cusack Lane ought to be considered.  Expansion in this direction would be to the advantage of the appellants and on the face of things reasonably call for consideration.  However, the notion runs up against the SEQRP’s restricted “urban footprint” for Jimboomba.  Persuading the State to change the urban footprint would be easier said than done.  It is not simply a matter of lines on a map; there are serious potential flooding constraints affecting the land in question.  Site 1 and the school land enjoy the advantage of being sufficiently elevated and drained.

Site 1

1. Site 1, north of the school, contains about 17 ha and is comprised of four separate parcels.  The low lying northern end is in the Industry Precinct in the 2007 Planning Scheme, but shown in the draft LP with the rest of site 1 as Town Centre Precinct.  It had been Comprehensive Development (effectively, Rural with restrictions evidently calculated to protect surrounding amenity) or Rural under the 1985 scheme zoning.

1. The 21,566 m² shopping centre proposed, which will include a Big W DDS (8044 m²), and an enlarged Woolworths supermarket (4187 m²) to be relocated from site 2 and two “mini-majors” (610 m²), speciality retail (6410 m²) and a small (315 m²) food court will be on the southern, elevated part of site 1.  The low-lying Industry Precinct land will be used only for a detention basin for water run-off and a short length of access road to incorporate a roundabout off Johanna Street, which is to be widened at the expense of the site.  There is to be another Johanna Street entrance further south.  The built form, some 200 m in length at least, will be dominant as seen from Johanna Street, the effect of which is alleviated by elements being in different planes.  Access to site 1 will also be available from the service road which runs parallel to Mt Lindesay Highway immediately to the west of it, terminating just north of site 1’s southern boundary.  There will be two large, separate buildings for the major tenants, sections of distinctive free-standing (one might say “salient” walls) with openings, some hiding loading bays from view; the walls are to be replicated in places on site 2, perhaps to suggest the developments are related, especially at the Cusack Lane corner, surrounding a new open space area where hotel patrons can sit at tables.  There will be very wide landscaped setbacks for all buildings on site 1, serving to attenuate visual impacts, and preserve some of the rural appearance site 1 presently offers.[3]  That observation is more pertinent on the Mt Lindesay Highway side, from which the development will not be dominant at all, rather buried in the landscape.  Site 1 is sufficiently elevated along that frontage to allow vehicles to drive in, more or less on the horizontal, to access the principal car parking which will be over the rooftops of the buildings, and feature the increasingly ubiquitous shade sails.  The principal entrance to the buildings will be from the roof via travelators – whose location can and should be made more convenient, according to architectural evidence.  An “at grade” car park is to be provided north of the northern building which will house the supermarket, for the convenience of its customers who might prefer that.  To the extent that the site 1 proposal has an active frontage and an entrance from or opening to the outside world, this is where it will be, the other sides being closed off, except for service vehicles.  The relevant experts agreed this will be “largely an internalised shopping centre”.

   [3]As the visual amenity expert, Mr Chenoweth says in the Joint Report at 3.3.9, the new shopping centre on site 1 will be “compatible with its current town edge and semi-rural location because of the substantial setbacks”.

Site 2

1. Site 2 contains about 4 ha and two parcels of land.  The existing shopping centre there has six buildings, with total GFA of 10,492 m².  The largest is the Woolworths building which includes adjoining tenancies and a petrol station.  In descending order of GFA are the medical centre building and adjoining tenancies (elevated over car parking), the Jimboomba Country Tavern, the Mitre 10 building, the Dollars and Sense building and the Australia Post building.  All of the buildings turn their backs to, or ignore the street.  Along Cusack Lane in particular, the supermarket on the corner of Johanna Street which is the usual big closed box and the adjoining Mitre 10 building which holds the middle do so, although the latter has its blank wall (of more modest height) decorated and relieved by a veranda or colonnade featuring a line of timber posts – which I considered pleasing and a gesture to some notion of what Jimboomba township’s character was or should be.  Ramps for car park access (also available from Honora Street) are constructed between buildings.  Where there is no building, site 2 is a car park.  The terrain falls steeply to Johanna Street and to Cusack Lane.  The sloping nature of the open car park is said to be a problem for shoppers.  The Post office, Dollars and Sense building and tavern address Cusack Lane no more than the other two on Cusack Street do.

1. Across Cusack Lane on terrain that continues to fall away to the south west (where Henderson Creek meanders) is a Town Centre Core Precinct area.  Centrally located is a modern shopping centre anchored by Coles supermarket.  Operators of some of the speciality stores gave evidence in the appellants’ case.  It is unsurprising that they might view with concern the relocation to the far side of the school of Woolworths, whose replacements are unlikely to attract a corresponding volume of visitors to the area: Woolworths may be followed by other tenants, if not on account of its drawing power, then out of concern to avoid the disruption of further refurbishment of site 2.  To the west of Coles (which is set well back from Cusack Lane behind the “at grade” car parking, with the main parking underneath) is the appellants’ child care centre; to the east a petrol station and between that and the corner a lauded complex of professional offices, shops, restaurants and the like accommodated in a line of removal “Queenslander” houses which have been linked by steeply sloping A frame roofs at upper storey level enclosing the gaps between the buildings, which are not set back.  They thus give Cusack Lane the desired “activation” in the sense of proper Main Street shop fronts.  They represent the only construction in the town centre in recent decades to win any praise at all from those assessing Jimboomba’s visual/aesthetic amenity.  They bring pedestrian activity and sights of people moving, rather than cars.  Cusack Lane is compromised from a pedestrian-friendliness standpoint.  Apart from the terraced effect noted above (strongest between site 2 and the footpath on its side), Cusack Lane is the link between Jimboomba and Flagstone which will be used by many from the latter wanting to access the Mt Lindesay Highway in the vicinity of Jimboomba.

1. The proposals for site 2 are intended to and would increase activation of Cusack Lane.  Stage 1, to occur before site 1 is developed as part of the overall development, will see the tavern expanded and an open eating/dining area established at the corner, also replacement of the Mitre 10 building by two new L-shaped two-storey buildings to contain restaurants and what appears to be a covered courtyard or similar newly opened up area, addressing the street.  Ms Treadwell’s statement shows that the Mitre 10 proposal may have approval already, pursuant to Judge Andrews’ order of 8 October 2010 changing an approval granted in appeal 283 of 1996 on 10 April 1996.  The changes now envisaged for site 2 will increase GFA to 11,161 m².

Submissions

1. There were only five submissions received during the public notification of the development application. One, strong in support, was from a developer of residential land in the area (River Bend). One was made by “Colonial First State Property Management on behalf of the owners of Grand Plaza Shopping Centre, Browns Plains”. Jimboomba is some 20 km south of that shopping centre. Jimboomba residents and others in the general area, such as Flagstone, even Beaudesert, 20 km to the south, who require the “comparison shopping” facilities that a DDS (Target, K-Mart or Big W) might offer are presently obliged to travel to Browns Plains or further afield. The proposal will presumably reduce the custom from those areas presently patronising Grand Plaza. Another adverse submission came in which the planning consultants engaged advised was “prepared on behalf of the Motor Traders Association of Australia”, not revealing the interest of the submitter which is the developer of Flagstone. The submission says the proposed development “is considered to undermine the regional Major Activity Centres such as Flagstone and Yarrabilba, being of a size and scale not envisaged by the SEQ Regional Plan and being inconsistent with both the Major Rural Activity Centre Designation and the development intended for Jimboomba”. Compromise of the Beaudesert Shire Planning Scheme DEOs and of the overall outcomes for the Mt Lindesay corridor zone is alleged, also compromise of the intent of the relevant and the surrounding precincts and the lack of “demonstrated overwhelming community need and an overwhelming economic need for the development”. The appellants’ submission was also put in by consultants. The document is in Exhibit 4, p 50 ff; it contains some inexplicable materials such as a 20 page Princess Alexandra Hospital Health, Science and Education Precinct – Preliminary Economic Impact Analysis. The remaining submission (ibid p 105) was from the Scenic Rim Regional Council, based in Beaudesert. Unsurprisingly, it complains that the proposal will undermine the role of Beaudesert as the principal rural centre within the Planning Scheme Area. In particular, there is reference to overall outcome 23 for the Mt Lindesay Corridor Zone which seeks to restrict the gross floor area for retail and commercial development at Jimboomba to 14,000 m², whereas the proposal will increase what is available for such purposes to approximately 41,000 m².

Southeast Queensland Regional Plan

1. The appeal was conducted on the basis that the SEQRP 2009-2031 (Exhibit 14) was the relevant version of the original 2005-2026 one (Exhibit 7), notwithstanding its relatively late date.  At the date of the co‑respondent’s development application there had been only Amendment 1 of October 2006 (Exhibit 79), a significant document which embodied decisions made about the original Mt Lindesay North Beaudesert study area that had been quarantined against subdivision in the short term by “Regulatory Provisions”.  The 2005 document identified a “Regional Activity Centres Network”, Brisbane CBD as the Primary Activity Centre above Activity Centres (ACs) such as Ipswich, Springfield, Indooroopilly, Upper Mount Gravatt, Springwood, Beenleigh, Southport and Robina, serving “catchments of sub-regional significance”.  They are “complemented” by “Major ACs”, oddly (perhaps) serving “catchments of regional significance”.  Major ACs (for example Browns Plains, Logan Hyperdome, Coomera and Nerang) were envisaged in proximity to residential densities of 30-80 dwellings per hectare, Principal ACs to densities of 40-120.  Specialist ACs were listed next, being the Port of Brisbane, Brisbane Airport, a couple of universities and a leading hospital/medical school.  The remaining ACs were Principal Rural (only Beaudesert and Gatton for the whole of Southeast Queensland) and Major Rural (Boonah, Laidley, Fernvale, Esk and Kilcoy).

1. In 2006 the following was added to the SEQRP:

“Summary of the Mt Lindesay/North Beaudesert Study Area Urban Footprint sites

The regional land use pattern for the Mt Lindesay/North Beaudesert Study Area (Map 18) sets out the preferred settlement pattern through to 2026. Land included in the Urban Footprint will be sufficient to cater for expected urban growth to 2026, while not compromising the intent of the Regional Plan. Inclusion of land in the Urban Footprint does not imply that all land can be developed for urban purposes as it may include land with a range of regional and local development constraints, including environmental constraints.

Further planning is required for each Urban Footprint site. It is important to note that State Infrastructure Agreements may apply to designated Major Development Areas.

The development intent for each Urban Footprint site is as follows:

1      Greenbank Central

The Urban Footprint site at Greenbank Central is located north of Pub Lane. It is included in the Urban Footprint to ensure that the final stages of the Teviot Downs estate are developed as an urban community, supporting retail and commercial activity to the east of the interstate railway. Land located on the corner of Pub Lane and Teviot Road is expected to accommodate an activity centre where transit oriented development principles should be applied. A structure plan for this area of Greenbank Central should provide for urban scale development, rather than rural residential development. Beaudesert Shire Council’s Local Growth Management Strategy will specify appropriate timing for development.

2               Flagstone

The Urban Footprint site for Flagstone includes land in the existing urban area of Flagstone, the rural residential area east of the interstate railway and land west of the railway. The area immediately west of the railway is appropriate for a Major Activity Centre and enterprise precinct. Further planning for this area should provide for urban scale development, but must also ensure important areas of biodiversity, including endangered regional ecosystems and strategic wildlife/landscape corridors, are carefully investigated and protected with adequate buffers. Although much of the area west of the rail line will not be required until post-2016, it has been included as Urban Footprint to ensure the structure planning incorporates a Major Activity Centre, enterprise precinct and integrated transport solutions. New development must contribute to the creation of a functional community with a full range of services, employment and transport options. Timing of land release will be dependent upon the capacity of Beaudesert Shire Council and state agencies to provide essential services and infrastructure. Beaudesert Shire Council’s Local Growth Management Strategy will provide guidance on appropriate timing for development.

3    Jimboomba

The Urban Footprint site for Jimboomba acknowledges growth of the town is restricted by flood-affected land to the west and north. However, it also enables the town to develop in a way that reinforces its role as a Major Rural Activity Centre, servicing the surrounding semi-rural community. Beaudesert Shire Council’s Local Growth Management Strategy will specify appropriate timing for development.

4    Yarrabilba

Located in close proximity to the Gold Coast, Yarrabilba has the potential to accommodate future urban growth when Greenfield allotments in the Gold Coast corridor begin to be exhausted around 2017. However, this is conditional on the provision of transport links to the east and other urban infrastructure and services. Further planning for this area should provide for urban scale development, with any new development contributing to the creation of a functional community with a full range of services, employment and transport options. In particular, planning must accommodate a future Major Activity Centre and enterprise precinct.  Development is not intended to occur before 2016, however it could commence before 2016, provided the detailed structure planning has been undertaken and a State Infrastructure Agreement is in place. Beaudesert Shire Council’s Local Growth Management Strategy will specify appropriate timing for development. 

5    Logan Village

Inclusion of the Logan Village in the Urban Footprint enables it to maintain its current role and character. Beaudesert Shire Council’s Local Growth Management Strategy will specify concepts for future development in this area.

6    Bahrs Scrub

The original Urban Footprint surrounding Beenleigh has been extended to include an area of Bahrs Scrub. This area’s close proximity to Beenleigh will assist ongoing development of this Principal Activity Centre. It should be noted that not all lands in this area will be suitable for urban activity. Future planning for Bahrs Scrub must address the issues of through-traffic, water supply, wastewater treatment and the connectivity of biodiversity areas and wildlife corridors. Gold Coast City Council’s Local Growth Management Strategy will specify appropriate timing for development.

7    Park Ridge/Boronia Heights/Logan Reserve

The Urban Footprint site in the Park Ridge/Boronia Heights/Logan Reserve area is an extension south of the original Urban Footprint for Logan City. Park Ridge is expected to develop as an integrated urban community and enterprise precinct, providing employment opportunities to the surrounding community. It is expected the Park Ridge enterprise precinct will focus on knowledge-based industries and contain commercial offices, service industries, business parks, research parks and low-impact industrial uses. Future planning for Park Ridge will ensure, where possible, existing areas of significant biodiversity and endangered regional ecosystem are incorporated into open space corridors - buffering the enterprise precinct from urban communities and existing rural residential properties to the south. The structure plan for Park Ridge/Boronia Heights/Logan Reserve should provide for the consolidation of existing rural residential properties to create well-planned, functional urban communities and enterprise precincts. Logan City Council’s Local Growth Management Strategy will specify appropriate timing for development.”

1. Large investigation areas remain southwest of Flagstone and southeast of Yarrabilba.

1. The 2009-2031 SEQRP (correcting an apparent anomaly in the original descriptions of the Principal and Major Regional ACs) left the descriptions in the Activity Centres Network essentially unchanged.  They are found in Part D – Regional Policies under the heading “Compact Settlement”, following Part C – Regional Land Use Pattern, where the “Sub-Regional Narratives” are found.  Part D describes the Activity Centres Network in this way:

“Activity centres network

Map 10 and Map 11 show SEQ’s activity centres network. The network is based on the following definitions, and incorporates existing and planned activity centres.

Primary activity centre

The Brisbane central business district (CBD) is the region’s primary activity centre, accommodating the largest and most diverse concentration of activities and land uses. For some activities, it has a statewide function—it is the key focus of government administration, retail, commercial, and specialised personal and professional services. In addition, it accommodates cultural, entertainment, health and education facilities of state, national and international significance.

The CBD is the focus of the region’s radial public transport system. As it is the centre of highest employment mix and density, and it supports a large, in-centre residential population, the CBD generates and attracts a large number of transport trips.

The role of Brisbane’s CBD as the primary activity centre has expanded over time into the surrounding frame area West End). The frame area provides distinct commercial, legal, government, retail, community and entertainment precincts, and significant residential communities. The increasing role of the frame area should be acknowledged and supported with appropriate land use forms of development and services.

Principal regional activity centres

SEQ’s principal regional activity centres serve catchments of regional significance and accommodate key employment concentrations. They also serve business, major comparison and convenience retail, and service uses. These centres provide a secondary administrative focus, accommodating regional offices of health, education, cultural and entertainment facilities that have governmental and regional significance. Outside the Brisbane CBD, principal regional activity centres serve as key focal points for regional employment and in-centre regional development. As major trip generators, these centres typically have existing or planned, dedicated public transport, including rail, bus or light rail, and comprise key nodes in the regional public transport system. Residential development densities in principal regional activity centres should be around 40–120 dwellings per hectare (net) or greater.

Major regional activity centres

These centres complement the principal regional activity centres by serving catchments of sub-regional significance and accommodating key employment concentrations. They also provide business, service, and major retail and convenience functions. With a secondary, sub-regional administration focus, they accommodate district or branch offices of government facilities, and cultural and entertainment facilities of regional significance. These centres are typically located around key suburban or inter-urban public transport stops, and provide frequent public transport services to link the centre to surrounding communities. Residential development densities in major activity centres should be around 30–80 dwellings per hectare (net) or greater.

Specialist activity centres

As centres of regional economic significance, these provide a primary focus for specialised economic activity, employment or education rather than having a retail function. The core emphasis of these centres results in high levels of trip generation.

Principal rural activity centres

These centres are important service and community hubs in rural areas. They support a sub-regional rural catchment and contain concentrated rural services, as well as commercial, retail, government and community activities. Principal rural activity centres have excellent roads and basic public within the Urban Footprint to encourage appropriate investment and residential development to support each centre’s growth.

Major rural activity centres

Rural towns that provide more than one function to the surrounding rural catchment are major rural activity centres. They provide concentrated retail, commercial, community and some government services. They also have excellent road connections and possibly public transport services.”

1. Part C has this to say about the urban footprint:

“Urban Footprint

Intent

The Urban Footprint identifies land that can meet the region’s urban development needs to 2031 in a more compact form.

Description

The Urban Footprint includes established urban areas, broadhectare and remnant broadhectare areas that could be suitable for future urban development. It incorporates the full range of urban uses, including housing, industry, business, infrastructure, community facilities and urban open space.

Remnant broadhectare lands are undeveloped lots that could potentially be developed for urban residential purposes but are not currently zoned for higher density development. They are located within the Urban Footprint, and are usually surrounded by urban development or near existing or planned urban infrastructure services.

The Urban Footprint defines the extent of urban development to 2031 by using cadastral or other clearly defined boundaries.

The Urban Footprint does not imply that all included land can be developed for urban purposes. For example, national parks and state forests will continue to be protected and managed under state legislation such as the Nature Conservation Act 1994 and the Forestry Act 1959, and remnant vegetation will continue to be protected under the Vegetation Management Act 1999.

1. In my opinion the need for a DDS (being the relevant yardstick in this appeal) is not discounted by there being a total vacancy at Jimboomba of 3,521 square metres “representing 30 per cent of the occupied retail floor space” which was said to provide evidence that the Jimboomba Retail Node was “significantly under-performing”.  The poor performance of businesses in shopping centres south of Cusack Lane may well be attributable to the poor design of those centres or other factors.  While the proprietors of a number of those businesses gave (unchallenged) evidence of their concerns about the proposal which I accept was an honest expression of concerns genuinely held, the economic experts do not anticipate that the proposal will have unacceptable impacts on such proprietors.  This may be of little comfort to Mr Kelly, representing the owner of the Jimboomba Junction centre but one would think that the exposure of his tenants is less than his and limited to the terms of their leases; opportunities may well arise for them to follow Woolworths to site 1.  That development of site 1 may have an adverse impact on the existing Jimboomba Shopping Centre  (site 2), which Mr Norling estimates as high as 74 per cent in consequence of the Woolworths supermarket relocation does not in my view tell against the need for a DDS.  Under the heading Absence of Planning Need in paragraph 161ff, the appellants have two arguments: firstly, the population should wait for a DDS at Beaudesert “and subsequently in Flagstone and Yarrabilba”; and secondly the facility can be provided on site 2.  Those contentions have been dealt with elsewhere.  The court rejects them.

The Council’s case concerning conflict

1. The Council accepts that the proposal is in conflict with planning scheme provisions that:

(b)    “relate to the achievement of a consolidated town centre within a compact, centralised location;

(c)    provide for a “cap” of 14,000m² gross floor area intended for the Jimboomba town centre;

(d)    provide for development to maintain and enhance the distinctive character of the Jimboomba town centre;

(e)    seek to provide pedestrian, cycle and vehicular connectivity.”

That is a useful summary of the conflict, broadly similar to the co-respondent’s which adds the “inconsistent development” point, given that the court rejects the contention that the proposal involves usurping Beaudesert’s role in the centres hierarchy (assuming that to remain a relevant potential consideration, notwithstanding the alteration of local government area boundaries from March 2008).  The factors or “grounds” the Council points to which allegedly justify approval notwithstanding the identified conflicts are need for the proposal (in a context of DDS facilities at Flagstone and Yarrabilba not being significantly delayed if the proposal goes ahead – as to which issue I accept the criticisms made of Mr Norling’s approach at paragraphs 149 and 150 of the written submissions),[5] the benefit to Flagstone and Yarrabilba sworn to by Mr Eagles, the improvements to Cusack Lane area by works on site 2, traffic works at four different locations producing benefits such as three new signalised intersections and improvements in safety for pedestrians as well as in traffic safety and a capacity (contributions  Mr Viney opined were unusually large given that the development will only increase overall traffic generation for site 1 and site 2 combined by about 1200 users in peak hour).

[5]The delay in Flagstone, Yarrabilba and Beaudesert, assuming there is some, would be even less significant if Mr Norling’s scenario of operators willing to bear financial losses in early years and establishing a DDS to serve a population of only 21,500 people (see his report Exhibit 28 paragraphs [26] to [28]) should be borne out.

1. More expansively, the co-respondent proposed “grounds” as follows:

“153.     The sufficient grounds are:

(a)the development satisfies a town planning and community need for the provision of DDS based retail facilities for the residents of the Main Trade Area agreed by the economic experts;

(b)Jimboomba is an ideal location to equitably serve all residents of the agreed main trade area for the foreseeable future;

(c)the development will improve the wellbeing of the community by the provision of an increased non-food retail offer, including a discount department store, saving many residents in the trade area a round trip (to Browns Plains) in the order of 40 (from Jimboomba) to 80 kilometres (from Beaudesert);

(d)the development will expand the limited choice of the non-food retail offer within the agreed trade area;

(e)because of its central location, the facility is ideally located to serve the existing communities of Beaudesert and Flagstone, and the future community at Yarrabilba, until such time as the population of those areas supports comparable retail facilities;

(f)the proposal will enhance competition in the area and will substantially reduce the need for shoppers to travel outside the catchment to Browns Plains and beyond to satisfy basic retail needs for non-food items;

(g)the development is an attractive modern facility that will consolidate, enhance and improve the existing character and amenity of Jimboomba in terms of not only its retail facilities, but also its built amenity;

(h)approval of the development will improve the physical wellbeing of the residents of Jimboomba and surrounds by providing modern and convenient retail, dining and entertainment facilities, not currently available within a reasonable driving distance;

(i)the need for the provisions of these facilities cannot be satisfied within the Town Centre Core Precinct and the proposal is effectively on the edge of the existing centre;

(j)the proposal exhibits a high level of urban design which will enhance the amenity of the locality generally, and compliment the character of the area;

(k)the development will revitalise Cusack Lane, ensuring that the existing Woolworths centre will actively focus upon and positively contribute to the vitality of the precinct by providing, amongst other things, cafes and outdoor eating areas, an extension to the existing tavern and the provision of other facilities (such as a gym) all of which will contribute to an active entertainment and retail precinct for the local residents;

(l)the provisions of the Beaudesert Shire Planning Scheme 2007 was, when it came into force, unsoundly based, as evidenced by the fact that at the date it took effect, the combined gross floor area of Commercial and Retail Bulky Goods and Office/Professional Uses already exceeded the so-called “Cap” of 14,000m²;

(m)the development is consistent with and gives effect to and assists to achieve the Council’s planning objectives for Jimboomba as embodied in the draft Jimboomba Local Plan 2009-2031;

(n)the proposed development gives effect to the objectives for Jimboomba as a Major Rural Activity Centre in the SEQ Regional Plan 2009 including concentrating the provision of goods and services more efficiently, encouraging shorter travel distances and providing a focus for community and social interaction;

(o)approval of the development will ensure the provision of important road infrastructure, high quality pedestrian connections, street furniture, shade trees and other infrastructure in the locality which will improve levels of service to the community;

(p)the development will not unacceptably impact on existing retail centres nor unacceptably delay the development of designated, but yet to be developed, centres at Flagstone and Yarrabilba: to the contrary the proposal will serve those communities as they grow over the next 10 to 15 years when their respective populations may well justify the development of those locations; and

(q)the development will ensure the uninterrupted provision of retail facilities to the Jimboomba community because the existing Woolworths supermarket will trade at Site 2 until the new centre at Site 1 is completed.  The new modern retail facilities can be delivered without interruption to, or diminishment of, the existing services available to the public.”

1. All of those propositions are defensible.  The bulk of them come down to need for the facility and the praiseworthy aspects identifiable in the means by which the need is to be satisfied.  I doubt that (g) can be accepted as a “ground”; it comes down to giving effect to a judgment of the proposal to be better than what the planning scheme desires; the point made in (i) is essentially that a location contra-indicated in the planning scheme can be seen as less conflicting than some hypothetical remoter one; that does not strike me as a ground the court should recognize.  An interesting point is raised by (k), namely whether good things to be done on site 2 can justify problematic aspects of things proposed for site 1.  I am not in a position to reject arguments along such lines generally; however, I think that what is proposed for site 1 here is of such a scale that it must be justified on its own terms.  As the appellants observed in their submissions, it seems that much of what is proposed for Cusack Lane will come about anyway.  The revitalization referred to may occur, but it will be in the context of Cusack Lane and its immediate environs being less busy than they presently are.  All that can be taken from (l) is that conflict with the cap is of less moment than it otherwise might be.  Further reducing the significance of the conflict is the planning scheme’s recognition in overall outcome 24 that a case could be made for exceeding the cap and (in the Specific Outcomes for the Zone) that the relevant precincts in Jimboomba can appropriately play an economic role for the benefit of the residents of the Zone as a whole.  The unusual circumstances of the Draft Jimboomba Local Plan, discussed above, are such that it cannot be given recognition as a “ground”.  Nothing is added by (n); while there is relevance in making the SEQRP come true, this is part and parcel of the proposal’s satisfying the identified need. If (l) is available as a ground, which may be open to argument in principle (see Australian Capital Holding Pty Ltd v Mackay City Council [2008] QCA 157 at [63]) it is not a persuasive one here, as what is to be provided is not shown to the court’s satisfaction to exceed what the development itself might render necessary to any remarkable degree. The last points, (p) and (q), strike me as asserting a lack of negative impacts, which in my understanding cannot count as the positive “grounds” required. I reserve judgement on the appellants’ assertion that providing what the planning scheme calls for in other respects cannot be a ground for overcoming conflict. There would be some situations where a ground arose, eg if some historical non-complying use were to cease.

1. It has proved difficult for the parties supporting the proposal and for the court to formulate any “ground” based on the Beaudesert Shire Planning Scheme having been overtaken by events which have seen the respondent Council, rather than the Council to which the development application was made, become the relevant planning authority and assessment manager, likely to espouse a quite different planning philosophy.  It is unnecessary in the circumstances to consider this interesting aspect.  Those supporting approval do not need to rely on it.  The co-respondent, which bears the onus of establishing that the appeal should be dismissed, amply satisfied that onus without it; indeed; it had no need to invoke grounds other than the principal and obvious one of “overwhelming need”. 

Conclusion

1. The appeal should be dismissed, except to endorse some changes in detail of the proposal that were canvassed in the course of the hearing which Stockland indicated its inclination to accept.  These all have the effect of increasing the obligations an approval would impose upon it.  The parties will have the opportunity to make submissions about appropriate final orders.