Bird v Logan City Council

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…