Blacks Beach Cove No. 2 P/L v Mackay Regional Council
[2011] QPEC 104
•05/08/11
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Blacks Beach Cove No. 2 P/L v Mackay Regional Council & Anor [2011] QPEC 104
PARTIES:
BLACKS BEACH COVE NO. 2 PTY LTD
(Appellant)
v
MACKAY REGIONAL COUNCIL
(Respondent)
and
HAWKHAVEN PTY LTD
(Co-respondent by Election)
FILE NOS:
211/2009
1201/2010
1202/2010
DIVISION:
Planning and Environment
PROCEEDING:
Appeals
ORIGINATING COURT:
BRISBANE
DELIVERED ON:
05/08/11
DELIVERED AT:
BRISBANE
HEARING DATE:
14/03/11 – 24/03/11 & 15/06/11
JUDGE:
Searles DCJ
ORDER:
1. THREE APPEALS ALLOWED
2. APPEAL D211/2009 ADJOURNED TO ALLOW ISSUE OF CONDITIONS TO BE RESOLVED ONE OF WHICH WILL BE THAT THERE BE NO RESIDENTIAL DEVELOPMENT SOUTH OF BONDI ROAD OPPOSITE THE BBC SITE AND THAT ANY DEVELOPMENT OF THE BBC PROPOSAL NOT COMMENCE UNTIL THAT IS ACHIEVED.
CATCHWORDS:
Integrated Planning Act 1997 – Minor Change – Adjoining Owners Consent – Validity – Network of Centres – Identification of Local Centre – Co-Location of Liquor Barn – Traffic – Layout – Access – Amenity – Need – Economic – Planning – Future Expansion Potential
COUNSEL:
Appellant: MD Hinson SC & EJ Morzone
Respondent: CL Hughes SC & AN Skoien
Co-Respondent: DR Gore QC & J Houston
SOLICITORS:
Appellant: P&E Law
Respondent: McCullough Robertson
Co-Respondent: Anderssen Lawyers
CONTENTS
Appeals
Proposals
HH Proposal
BBC Proposal
Submitters
Legislative Framework
Approach to Appeals
Two Preliminary Issues
Minor Change Issue
HH’s Adjoining Owners Consent Issue
Remaining Issues to be Determined
Consideration of Issues
Town Planning
Zoning
Mr Brownsworth (BBC)
Mr Buhmann (HH)
Mr Schomburgk
Arguments on Zoning
BBC Arguments
HH Argument on Zoning
Council’s Argument on Zoning
Conclusion Re Zoning
Identification of the Blacks Beach Local Centre
Mr Brownsworth’s Opinion re Local Centre
Mr Buhmann – Network of Centres
Mr Schomburgk – Network of Centres
Arguments re Local Centre
BBC Argument re Local Centre
HH Argument – Local Centre
Council’s Argument – Local Centre
Conclusion re Local Centre
Planning Need – Community Benefit – Co-Location, Assessability, Convenience, Expansion Potential
Mr Brownsworth (BBC)
Mr Buhmann – Planning Need
Mr Schomburgk
Economic Need
Individual Reports – Economic Need
Mr Duane (BBC)
Mr Shimmin (HH)
Mr Malkiewicz
Arguments re Need
BBC
HH – Economic Need
Council – Need
Conclusion re Planning Need, Community Benefit, Co-Location, Accessibility, Convenience and Expansion Potential
Traffic
Mr Holland (BBC)
Mr McClurg (HH)
Mr Camilleri (Council)
Arguments Re Traffic
BBC
HH Argument – Traffic
Council Argument – Traffic
Conclusion re Traffic Issues
Noise, Lighting, Architecture and Urban Design
Mr King (HH)
Ms Adams (BBC)
Submissions on Noise and Light
BBC
HH
Council
Conclusion re Noise and Light
Architecture - Urban Design
First Joint Report
Matters Agreed
Matters Not AgreedSecond Joint Report
Matters Agreed in Second Joint Report
Individual Reports
Mr Richards (BBC)
Mr Middleton (HH)
Arguments re Architecture/Urban Design
BBC
HH’s Asserted Killer PointHH
BBC
The Council
Conclusion re Asserted Killer PointCouncil – Architecture/Urban Design
Conclusion re Architecture/Urban Design
Hydraulics Issues
Final Conclusion
SCHEDULE A
Appeals
There are presently five appeals before the court relating to the two competing shopping centre applications under consideration. Three are the subject of this judgment. They are:-
(a) BD1202/2010, a submitter appeal by Blacks Beach Cove No. 2 Pty Ltd (BBC) against the Council’s approval on 28 January 2009 of Hawkhaven’s (HH) Material Change of Use (MCU) application for shops – supermarket and six speciality shops;
(b) BD1201/2010, a submitter appeal by BBC against the Council’s approval on 28 January 2009 of HH’s MCU application for an extension to an existing hotel-liquor barn and drive-through; and
(c) D211/2009, an appeal by BBC against the Council’s refusal on 28 January 2009 of its MCU application for a shopping centre.
The remaining two are conditions appeals by HH against the conditions imposed on approvals (a) and (b) above. The appeals were ordered to be heard together[1] and have been conducted on the basis that the question of approval or refusal in the present three appeals be determined firstly with the conditions appeals determined later if appropriate.
Proposals
[1]Order 24 June 2010, Exhibit 3, vol 1, p 53.
HH Proposal
The HH proposal is for a local shopping centre, comprising a supermarket, speciality stores and a liquor barn on land north of Blacks Beach Road comprising two adjoining lots, lot 240 and 241. It involves two separate applications, one for the supermarket and speciality shops and the other for the liquor barn described as a hotel extension. There is an existing Tavern on lot 240 with a Gross Floor Area (GFA) of 1840 m2.
All of the development proposed will be on lot 241 for which Council approval has been granted to create three lots.[2] The GFA of the proposal, allowing for changes to which I shall shortly refer, totals 2,908 m2 comprising:
[2]Council approval 12 March 2010, Exhibit 65, p 197.
(a) Supermarket 1855 m2
(b) Speciality Shops 398 m2
(c) Liquor Barn 600 m2
(d) WC and Cleaners 55 m2
TOTAL2908 m2
That GFA, when combined with the 1840 m2 GFA of the existing Tavern gives a combined centre GFA of 4748 m2.
The existing Tavern site (lot 240) is on the corner of Slater Avenue and Blacks Beach Road with existing access from Slater Avenue. That access is to be maintained under the proposal with the addition of a signalised intersection to be created at Blacks Beach Road and Chenoweth Drive to the south of Blacks Beach Road allowing direct access into the development from both Chenoweth Drive and Blacks Beach Road. Additionally, it is proposed that a further left-in only access off Blacks Beach Road be positioned on the western side of lot 241.
The proposal involves ancillary cleaners’ facilities, toilets, two loading docks (one at the rear of the supermarket and one at the rear of the shops and liquor barn), and service vehicle bays (one near the shop and one between the existing Tavern and liquor barn).
BBC Proposal
The BBC proposal is for a local shopping centre[3] comprising a supermarket and speciality stores on land south of Blacks Beach Road at the corner of Chenoweth Drive and Bondi Road more or less directly across Blacks Beach Road from the existing Tavern. This proposal is to be located on lot 901 on SP 199843. By a decision dated 28 January 2009[4] Council approved the reconfiguration of lot 901 to create two lots 901A (1.268 ha) and 901B (.9447 ha).[5] The proposed shopping centre will have a GFA of 2750 m2 comprising a supermarket of 1500 m2 and speciality shops of 1250 m2.
[3]See Exhibit 6, p 39.
[4]Exhibit 3, vol 4, p 1249.
[5]See plan attachment D, Joint Traffic Report, Exhibit 3.
The BBC proposal will have two access points from Bondi Road which runs in a south easterly direction off Chenoweth Drive. The first will be a left-in only access close to the intersection with Chenoweth Drive to the west and the second an all-turns access via a roundabout to the east near the south east corner of lot 901.[6]
[6]Exhibit 3, Joint Traffic Report attachment.
The BBC site is part of a larger Master Planned Development approved by this court on 29 May 2008.[7] That approval was for a Material Change of Use for Urban Residential and High Density Residential (dual occupancy) and the reconfiguration of one lot in relation to the then lot 24 on K124412 (later lots 901 and 903 SP199843) into 249 Urban Residential lots.[8] That reconfiguration was to be generally in accordance with Blacks Beach Cove Master Plan No. C3503:00:03A.[9] On that plan, the use of the BBC site is identified as Future Mixed Use, defined in the Planning Scheme for the City of Mackay (Scheme)[10] as meaning premises comprising a mix of uses being primarily a combination of commercial uses and residential uses located on the one site. Of the 720 lots the subject of the Master Plan, 360 have been developed to date, The State has recently purchased a 7 ha parcel to the north east of the Master Plan area for school purposes. That site, and other land to the west of Chenoweth Drive, also shown on the Master Plan as Future Mixed Use, is also currently vacant.
[7]Exhibit 19.
[8]Exhibit 19, pp119-121.
[9]Ibid, p 78.
[10]Effective from 24 March 2006. See dictionary, Exhibit 1, Pt 12.
Under the Scheme both the HH and BBC sites are within the Mackay Frame Locality and in the McCready’s Creek Precinct.
Submitters
There were ten submitters, their respective interests varying from commercial concerns to the impact upon personal use and enjoyment of the area for residential purposes. Each submitter has provided a written statement detailing their concerns. They provided me with a valuable insight into local concerns.
Legislative Framework
Notwithstanding the repeal of the Integrated Planning Act 1997 (IPA) by the Sustainable Planning Act 2009 (SPA), s 819 of SPA requires that these Appeals be heard and determined as if IPA had not been repealed.[11]
[11]For Appeal 211 of 2009, ss 819(1) and 819(2); Appeals 1201/2010 and 1202/2010, ss 819(5) and 819(6).
Pursuant to s 4.1.52(1) of IPA, the appeals are hearings anew in relation to the development applications with the onus of establishing an application should be approved being on the applicant in each case.[12]
[12]IPA ss 4.1.50(1) and (2).
Approach to Appeals
It is accepted by all parties that, ordinarily, the court sitting, in essence, as the assessment manager under IPA to determine the development application, would not, when considering competing shopping centre applications, approach the assessment process on the basis of which is the best site.[13] However in the present case where the uncontroverted evidence is that there is a need for only one of the two proposals, the parties agree that it falls within the exception to that general rule as one where circumstances dictate that a comparison be made.[14] Of course that does not relieve the court of the responsibility of deciding each application individually in accordance with IPA s 3.5.14(2). Importantly, no application can be approved where conflict with the Planning Scheme is involved unless there are sufficient grounds to justify the decision despite the conflict.
[13]See for example SEAQ v Warwick City Council [1971] 24 LGRA 391.
[14]See Green & Anor v Moreton Shire Council [1985] QPELR 328, Ugarin Pty Ltd v Logan City Council [2004] QPELR 392 at [67]; Capricorn Green Pty Ltd v Livingstone Shire Council [2007] QPELR 420 at 413; Glenvale Properties v Toowoomba City Council; McNab Developments v Toowoomba City Council [2008] QPELR 609 at [621]-[622].
The comparison exercise will involve a consideration of all relevant issues to determine ultimately which of the two proposals is to be preferred by reference to those issues.
Two Preliminary Issues
There are two preliminary issues to be determined before proceeding, a Minor Change issue and an Owner’s Consent issue.
Minor Change Issue
The HH proposal has been amended in the following respects[15]:-
[15]Exhibit 14, report S Buhmann, para 6.
(a) A reduction in the size of the proposed liquor outlet from 1200 m2 to 600 m2 to accord with the joint view of the economic experts;[16]
[16]Joint Economic Report, Exhibit 3, vol 5, para 85.
(b) A minor reduction in the size of the speciality shop from 420 m2 to 398 m2;
(c) A changed service vehicle manoeuvring arrangement to address concerns raised, regarding excessive vehicle reversing;[17] and
(d) A minor change to noise mitigation barriers resulting from the changed internal manoeuvring in (c) above and as identified by Mr King a noise and lighting amenity expert.[18]
[17]Joint Traffic Report, Exhibit 3, vol 5, pp 4-5 – (Mr Holland).
[18]Exhibit 17, p 12, fig 5, p 20.
Mr Buhmann, HH’s town planning expert expressed the view that the changes were minor changes within s 350 of SPA and I agree with that conclusion as does BBC.[19] The Council made no submission on the issue which I take to be an acceptance that it finds no issue with the status of the changes. I find that the changes both individually and collectively constitute a minor change within the s 350 of SPA.
[19]T10.4.18; T10.55.27.
Section 4.1.52(2)(b) of IPA only allows the court to hear and determine an appeal in respect of a changed application where the change is a “minor change”. The meaning of which is to be found in SPA s 350 by virtue of the operation of IPA s 4.1.52(2)(b).
HH’s Adjoining Owners Consent Issue
The owners of lot 240 (existing tavern) are Mr and Mrs Crombie and Mr O’Neill. By a document clearly prepared by themselves without legal advice[20] they, as owners of the land adjoining lot 241 purported to consent to the development on lot 241 in these terms:
[20]Exhibit 51 dated January 2008.
“We being the registered proprietors of land described as lot 240 on RP 140, 130, Mackay City, hereby consent to an application for the use of such land for a Reconfiguration of a Lot.
Dated this 15th day of February 2008”
Clearly that does not address the application relating to lot 241. The issue arose on the 7th day of the hearing[21] when Mr Gore QC for HH called upon Mr Hinson SC for BBC to say whether the shortcomings in the consent were to be an issue. Mr Hinson indicated that he wished to complete his cross-examination of Mr O’Neill who was then in the box before providing his final position. In the result his written submissions did not address the issue from which I infer BBC does not take issue.
[21]T7.54.
That, of course, is not the end of the matter because it raises the issue of whether an application has been properly made is raised and again in turn raises the question of whether the court has jurisdiction to consider the application.
HH firstly submits that I should find that the consent was properly granted by the owners for the following reasons:-
(a) Mr O’Neill was aware of the overall proposal and discussed it with the Crombies the operators of the Tavern, before the consent was signed.[22] Hence, it is argued, it could not be said that Mr O’Neill’s interest was simply as a passive land owner given that the liquor barn application was made at his suggestion and he had a strong interest in operating it if the application was successful;[23]
[22]Exhibit 38, (Statement of Mr O’Neill) paras 47-49; T7.55-57.
[23]Exhibit 38, para 22
(b) The liquor barn IDAS form identified the site as both lots 240 and 241[24] where Mr O’Neill and Mr and Mrs Crombie are identified as owners of lot 240; and
(c) A copy of the consent[25] was included in the ROL application relating to lot 241.[26]
[24]Exhibit 3, vol 3, p 661; p 663.
[25]Exhibit 51.
[26]Exhibit 65, p 2.
In the alternative HH argues that in the event that I find non-compliance with the formal requirements of IPA in relation to the consent I am empowered by virtue of the operation of SPA s 819(7) and 820(1) to deal with the matter as I consider appropriate.
Given the HH application was impact assessable , I am satisfied that the defect in the consent would not have been more than a very minor influence, if any at all, on any potential submitter’s decision on whether or not to object to the proposal. I accordingly, excuse the non-compliance under the above provisions of SPA.
Remaining Issues to be Determined
Joint reports, and in most cases individual reports, were provided by experts in the following fields:
(a) Town Planning;
(b) Need;
(c) Traffic;
(d) Noise and Light;
(e) Architecture and Urban Design; and
(f) Hydraulics
There appears to be no dispute that the Blacks Beach locality is planned to have[27] and needs,[28] local shopping facilities to be located in the vicinity of the two proposed sites. Likewise, it is not in dispute that the type of facilities offered by the two proposals, namely a supermarket and speciality shops with a liquor barn in the case of HH, are the types of retailing facilities needed or appropriate to the Blacks Beach locality, but that the need is for only one such facility[29]
[27]Exhibit 1, Network of Centres Map, yellow dot.
[28]Exhibit 3, vol 5, Joint Economics Report, p 39, paras 95 and 96.
[29]Ibid, p 34, paras 77-82.
Relevant extracts from the Scheme are set out in Schedule A to this judgment.
Consideration of Issues
Town Planning
The town planning experts Mr Brownsworth (BBC), Mr Buhmann (HH) and Mr Schomburgk (Council) each gave two joint reports and an individual report.[30] The disagreements amongst them in the joint reports were quite extensive and the views of the individual planners are to be found in their individual reports.
[30]Exhibit 3, vol 5 (Interim and Final Joint Report); Exhibit 16 (Brownsworth); Exhibit 14 (Buhmann); Exhibit 15 (Schomburgk).
Zoning
Mr Brownsworth (BBC)[31]
[31]Exhibit 16, pp 4-7.
In relation to the HH proposal, Mr Brownsworth considered it offended Urban Overall Outcomes 2(a) and (f) of the Urban Residential Zone which speaks of any development being predominantly single detached dwellings and with non-residential development not to adversely affect the residential amenity of the zone. He referred also to Specific Outcome P5 requiring non-residential activity in the zone to be limited to small scale uses directly related to servicing the needs of residential areas. In his view the scale of the shopping centre proposed by HH was in conflict with this requirement for small scale development.
His view the HH proposal would have an unreasonable and adverse affect on the residential amenity of the zone particularly on the dwellings in Kinghorn Street, McAlary Drive and Slater Avenue, the owners and occupiers of which, he said, would have an expectation of residential development on lot 241 rather than a shopping centre. For those reasons he considered the HH proposal to be inconsistent with both the Overall and Specific Outcomes for the Urban Residential Zone in the relevant locality.
Mr Brownsworth also made reference to the fact that, prior to the introduction of the Scheme which came into effect on 24 March 2006, namely in May 2005 HH lodged a submission to the Council seeking to persuade it that lot 241 was suitable for a mix of commercial/local business uses and Medium Density Residential Development to compliment a local centre in the locality. That submission was unsuccessful and the land remained in the Urban Residential Zone when the new plan was introduced. In his view, had the Council intended that lot 241 be developed for commercial purposes other than small scale purposes contemplated by SOP5, it would have placed the land in the Commercial Zone.
In that May 2005 submission,[32] HH made the following points:-
[32]Exhibit 16, Fig 5.
(a) Lot 241 was created in October 2004 as part of Stage 5 of the Sunrise Estate;
(b) As Council records would show, throughout the development of the Estate, it had been intended that the site would be developed as a local shopping centre;
(c) The site was the subject of a re-zoning approval to a local business zone and the Council still held a bank guarantee to the value of $36,225 from 1994 specifically against Shopping Centre rezoning;
(d) The land at the corner of Slater Avenue and Blacks Beach Road had been developed as a Tavern which was intended to compliment an adjoining commercial centre;
(e) Under the existing Transitional Planning Scheme Strategic Plan map the site was part of a node identified as Commercial surrounded by Higher Density Residential to the west as well as to the south on the opposite side of Blacks Beach Road.[33]
[33]Exhibit 16, fig 5, p 32 (Introduction)
(f) In its conclusion and recommendations:-[34]
[34]Ibid, p 36.
(i) The Draft Planning Scheme identifies this locality as a Local Centre for the existing and future Blacks Beach area;
(ii) The proposed Urban Residential Zoning of the site will not allow for the establishment of a Centre in this locality;
(iii) The only land zoned to accommodate retail and commercial uses within this Centre is the adjoining allotment to the east which contains an established Tavern;
(iv) The opportunity exists for this site to be developed in a manner which achieves a vibrant attractive mixed use centre whilst offering the traditional services and facilities of a local centre;
(v) The land needs to be zoned to facilitate the establishment of the Blacks Beach Local Centre.
Mr Brownsworth next dealt with the Urban Expansion Zone in which the BBC site is located. By reference to the Overall Outcomes of that Zone[35] he made the point that, whilst it was intended that development in the Zone be predominantly residential in nature, it is also intended to include support uses such as “local commercial and community purposes, which are co-located with recreational open space and school in nodes”. In his view the reference to local commercial purposes included the BBC proposal which would be consistent with the Overall Outcomes. Further, those Outcomes provide for a Master Planned Community and BBC has a development approval dated 29 May 2008 earlier referred to, designating the BBC site as mixed use land.
[35] Exhibit 1 p 5-48
Mr Brownsworth said the Mackay Frame Locality Code and Specific Outcome P1, both of which favour commercial development within the Commercial Zone, should be read in conjunction with the Urban Expansion Zone provisions which latter zone recognises the requirement for master planning and that commercial uses may be provided within that Zone. In his view both of those requirements would be furthered by the BBC proposal which would be consistent with the zoning intent of the Urban Expansion Zone. In contrast, he said the Tavern land (lot 240) is within the cadastrally based Commercial Zone which neatly terminates at the boundary between the Tavern site and lot 241 the adjoining Urban Residential land in the HH proposal, repeating the point that the lot 241 zoning was made in the face of the May 2005 submission by HH prior to the introduction of the plan. He sees the rejection of the HH submission for rezoning as significant and concludes that the HH proposal conflicts with the intent of the Urban Residential Zone which contemplates small scale non-residential uses. As against that, the BBC proposal is consistent with the intent of its Urban Expansion Zone and not in conflict with the Scheme.
Mr Buhmann (HH)
Mr Buhmann, in dealing with the issue of zoning,[36] acknowledged that the HH proposal would expand commercial functions into Residential Zoned land which should not be undertaken lightly and only done with due and proper consideration of the economic needs for the expansion, site constraints and the Residential/Commercial Land Use conflicts.
[36]Exhibit 14, pp 13-17.
In his view an overriding consideration was the opportunity to integrate development on to the same site. He spoke of the disadvantages of fragmentation by road infrastructure having a significant adverse impact on communities resulting in multiple vehicle trips and a disincentive to “walk-up” patronage where there is a significant barrier precluding a one stop shop.
For those reasons he considers that, where opportunities exist to consolidate commercial centre activities on a single site, they should be pursued in preference to a fragmentational alternative. This approach, he says, is supported by the Retail and Commercial Code[37] which speaks of accessibility and the desirability of consolidating existing designated centres.
[37]Exhibit 1, p 9-114, s 9.97(2)(b).
Mr Buhmann considers the HH proposal better complies with the zoning intent set out[38] in the Strategic Framework of the Scheme.[39] In relation to Commercial Centres he points to the reference that commercial development should follow the established network of centres, with any additional centre activities to be situated within or immediately adjacent to a designated centre and for these City centres to develop as a concentration of multi-purpose activity. They are relevant, he says, because the HH proposal is a proposal which includes the Commercial Zone and expands in to the Residential Zone.
[38]Exhibit 1, p 1-4.
[39]Division 2 – 1.4 Strategic Framework, Exhibit 1, pp 1-4. Note: Paragraph 1.3(2) provides – “This division does not have a role in development assessment under the Planning Scheme.”
As to the reference to urban areas Division 2 in the Scheme’s Strategic Framework, he points to the encouragement of service and amenity for residents and the concept of local centres serving the high frequency convenience shopping needs of the immediate locality.
Mr Buhmann contrasts his above conclusions regarding the HH proposal’s compliance with the Division 2 - Strategic Framework with those in relation to the BBC proposal and points to the following intents in relation to the Urban Expansion Zone – that it identifies a land bank generally physically suitable for urban development; that the preferred locations are identified as, amongst others, Rural View; that the development of land in this zone will occur as “out of sequence development”; that, at a strategic level the Urban Expansion Areas are merely those considered generally suitable for development with no specific strategic intent for the zone; that the Scheme sets out sufficient land to accommodate residential expansion from the nominated planning period of 2005-2013 including land in the Urban Residential Zone and Urban Expansion Zone; and finally, based on the preceding, the Urban Expansion Areas are to be viewed as Suburban Fringe Expansion Areas generally intended to be serviced within the existing retail hierarchy nominated in the network of centres.
As to the Overall Outcomes in the Urban Expansion Zone which speaks of incorporating support uses for residential communities such as Local Commercial and Community purposes, he does not see that as evidencing any specific intent on the part of the authors of the Scheme to encourage commercial development in this zone. Rather, he takes the view that those Urban Expansion Areas within the zone should be commercially serviced within the existing Network of Centres unless there is economic justification to expand the existing Centre hierarchy.
As to the unsuccessful HH 2005 submission, Mr Buhmann sees that as irrelevant because, he says, the Council, in these Appeals, has made it’s position clear in refusing the BBC proposal and approving the HH proposal.
As to the 29 May 2008 development approval over the BBC land showing its use as mixed use, Mr Buhmann says those uses did not form part of the relevant Development Application No. DA-2006-202 and subsequently were not subject to the appropriate assessment scrutiny or public scrutiny and that to rely upon that use designation appears somewhat opportunistic. It points to what he sees as significant departures from BBC’s original Master Plan.
Finally, in terms of community expectations from any public notification of the abovementioned 2006 Development Application DA-2006-202, Mr Buhmann considers that current information on the BBC development available on website ( better informs the community than public notification of the BBC proposal. He goes on to say that that website does not currently indicate any proposed commercial development for the BBC land.
Mr Schomburgk
Mr Schomburgk accepted there was no need for co-location of a supermarket with a liquor barn though he thought that such co-location was appropriate with the convenience it offers to the public. In his view it makes very good sense to have a liquor barn on the same or adjacent site as the Tavern. Whereas he acknowledged that separation of such facilities is not uncommon in some centres, he thinks that it is less desirable from the functional perspective.
For those reasons he thought the HH proposal represents a better overall outcome than the BBC proposal when looking at the role and function of a local centre. It is clear from Mr Schomburgk’s report[40] that he regards the existing Tavern as the Local centre for Blacks Beach as contemplated by the Scheme. In his words “- it is my opinion that the Local Centre for Blacks Beach can only be taken to be that (Tavern) site”.
Arguments on Zoning
[40]Exhibit 15, para 3.2.3.
BBC Arguments
BBC points to the Overall Outcomes of the Urban Expansion Zone[41] and to the reference in Overall Outcome (2)(d) to a Master Planned community being predominantly residential in nature but which incorporates support uses for the residential communities such as Local Commercial and Community purposes to be co-located with recreational open space and schools in nodes. By contrast, BBC says, the HH site is predominantly in the Urban Residential Zone which is adjoined to the north and west by land in the same zone and it is only in this zone (Lot 241) where any new development is proposed.
[41]Annexure A, pp 5-48.
BBC points to Overall Outcomes (a) and (f). The first, dealing with development in the zone, speaks of the protection of the high level of amenity by restricting the development predominantly to single detached dwellings. Paragraph (f) deals with non-residential development as here under consideration and speaks of any such development not adversely affecting the residential amenity of the zone. Specific Outcome P5, also dealing with non-residential activity in the zone speaks of that non-residential activity being limited to small scale uses directly related to servicing the needs of the residential areas and involving design and siting measures to control any external impacts from the activity.
In summary BBC says the Urban Expansion Zone contemplates development in a master planned way incorporating support uses for residential communities such as local, commercial and community purposes as outlined above which is to be contrasted with the Urban Residential Zone which only intends non-residential activity of a small scale and directly related to servicing the needs of a residential area.
BBC next refers to the Retail and Commercial Code[42] and to the Overall Outcomes of that Code particularly outcomes (a), (b)(i) and (iii), (c) and (e) which speak of uses complying with the location of Centres as identified in the Network of Centres in the City and of such uses being situated within Designated Centres. Specific Outcome P1[43] addresses the establishment of retail and commercial activities outside a Designated Centre and provides that they be of a size and function consistent with the provision of local facilities. Local facilities are defined[44] as retail and commercial facilities which service the daily convenience needs of a local trade catchment containing no more than 2500 households. BBC then points to Specific Outcome P5[45] which limits the gross floor area for such uses in a Local Centre to 2500 m2. BBC further says that under Specific Outcome P6 the concept of servicing the local community is reinforced by the provision that the driving time for residents visiting a Local Centre should be under five minutes.
[42]Exhibit A, pp 9-114 to 9-116.
[43]Annexure A, pp 9-116.
[44]Annexure A, pp 9-116, para 9.99.
[45]Annexure A, pp 9-117.
For the above reasons BBC submits that, whilst neither of the proposals is in the Commercial Zone and both are, thereby, in conflict with the Scheme, the need of the community for a shopping centre of the size of both proposals overcomes any issue of conflict. It says that the above provisions relied upon by it demonstrate that the BBC site is the preferred site under the Planning Scheme and by reference to the master planning of the BBC land. It points also to the Council’s decision in response to the detailed submission by HH for a rezoning, not to extend the Commercial Zone to lot 241 in the current Scheme.
The requirements in the Urban Expansion Zone, BBC says, require that development provide all necessary community facilities and services such as local commercial and community purposes and that that be done in a master planned way. The BBC land has been so planned with the BBC site and nearby land being set aside for future mixed use development with a school to be established on the southern side of Blacks Beach Road. In short the BBC proposal will implement the town plan and achieve the purpose for which its land was zoned.
HH Argument on Zoning
HH attacked various aspects of Mr Brownsworth’s evidence as misleading and misconceived resulting in the favourable impression conveyed being falsely based. The parts of his report under attack are:
(a) Paragraph 10(n) – The Scheme[46]
[46]Exhibit 16, para 10(n).
“Further, the Mackay Frame Locality Code and the Specific Outcome seeking that commercial development is located in the Commercial Zone (P1), should in my view be read in conjunction with the Urban Expansion zone provision, that recognises two things: a requirement for master planning; and that commercial uses be provided. Both these intents are furthered in the case of the Blacks Beach Cove proposal, leaving the Blacks Beach Cove proposal consistent with the zoning intent of the Urban Expansion Zone”;
Paragraph 11(c)(b)
“The zoning of Blacks Beach Cove land as urban expansion, (in respect of which commercial uses are specifically envisaged by the Planning Scheme) envisaged that master planning will be undertaken to set aside the land for mixed use purposes as well as residential and community uses. Such master planning has been previously undertaken and approved on the Blacks Beach Cove land including the site of the Blacks Beach Cove proposal (see Fig 1). The Blacks Beach Cove proposal is consistent with the intent of its zoning and is not in conflict with the zoning provisions of the Scheme”;
(c) Paragraph 14
“Generally, broader provisions of planning schemes, such as DEO’s, do not attempt to provide detailed solutions for land use and planning matters within planning schemes. Rather they set a broad strategic framework around which land uses are to occur. More specific provisions are generally found in other parts of a planning scheme such as zoning provisions and planning scheme codes. These more specific provisions attempt to achieve the DEOs in a specific precinct in this case, McCready’s Creek. As set out above, the specific provisions clearly support the Blacks Beach Cove proposal and do not support the Hawkhaven proposal”;
(d) Paragraph 21
“One must firstly take into account the zoning of each of the relevant sites to determine which is supportive of the application. As set out previously, the Hawkhaven application conflicts with its zoning while the Blacks Beach Cove application is supported by its zoning”;
(e) Paragraph 22(a)
“Given the two current applications, it is then a question as to which of the sites best accommodates the proposed Local Centre development. In my view the most suitable site is the Blacks Beach Cove proposal for the following reasons:
(a) A more detailed zoning provision of the Planning Scheme supports a “Local Centre” on the Blacks Beach Cove site as opposed to the Hawkhaven site whose zoning effectively discourages such a use.
(f) Paragraph 45(a)
“The Network of Centres provisions of the Mackay City Plan stipulate a requirement for a Local Centre in the vicinity of Blacks Beach Road and Chenoweth Drive Intersection. Both proposals satisfy that provision. Given that neither proposal is located on commercially zoned land in this locality, (it is occupied by the existing Blacks Beach Tavern) other land in the vicinity must be found to accommodate the needed ‘Local Centre’ proposed by both applications. My view is that the Blacks Beach Cove proposal provides the best alternative site because:-
(a) It is appropriately zoned and consistent with master planning that has been undertaken for the Blacks Beach Cove estate.”
(g) Paragraph 44
“The Blacks Beach Cove proposal is supported by its zoning. As such, it does not need to demonstrate grounds to justify approval, however the Blacks Beach Cove proposal is better positioned to accommodate the various ‘roles and functions’ required of the Local Centre (and future Neighbourhood Centre) both now and in the future. This is because more vacant land is available immediately adjoining the Blacks Beach Cove proposal than the Hawkhaven proposal as shown on the Urban Expansion Plan at Fig 4. Given the objective of planning for the future, this ground must be given substantial weight.”
HH says that Mr Brownsworth did not analyse the BBC proposal with reference to division 6 of the Scheme – Overall Outcomes for the Mackay Frame Locality.[47] Overall Outcome 2(h) provides that new commercial uses are located in the Commercial Zone and the additional Overall Outcomes for the MacCready’s Creek Precinct stipulates that commercial activity including shopping in the Precinct is limited to the Commercial Zone. Specific Outcome P1 also provides that commercial development is to be located in the Commercial Zone.[48] HH also submits that Mr Brownsworth ignored the Retail and Commercial Code Overall Outcome No. 2 of which provides that retail and commercial development be situated within a designated Centre and retail and commercial uses do not occur outside the designated Centres.[49]
[47]Annexure A, pp 5-21.
[48]Ibid, pp 5-20.
[49]Ibid, pp 9-114 to 9-116.
In relation to the above provisions HH pointed to Mr Brownsworth’s evidence.[50] In summary Mr Brownsworth under cross-examination by Mr Gore QC:-
[50]T3.88-91.
(a) Agreed that the BBC proposal was not within a designated Centre as contemplated by Retail and Commercial Code paragraph 9.97(2)(b)(i) and hence did not comply with that part of the Code;[51]
[51]T3.88.35-45; Annexure A, pp 9-115.
(b) Agreed that as a result, the proposal also did not comply with paragraph (2)(e) of that Code which provided that Retail and Commercial Uses do not occur outside the Designated Centres;[52]
[52]T3.88.45-60; T3.89.1; Annexure A, pp 9-116.
(c) Agreed that the proposal was in conflict with paragraph 4(a) of the Overall Outcomes for the Mackay Frame Locality[53] in that commercial activity was limited to the commercial zone;[54]
[53]Annexure 3, pp 5-21 and 5-25.
[54]T3.89.10-38.
(d) Agreed that the BBC proposal conflicts with Specific Outcome P1 of the Mackay Frame Locality[55] which provides that commercial development is located in the Commercial Zone;[56]
[55]Annexure 3, pp 5-28.
[56]T3.89.40-52.
(e) Agreed that the BBC proposal was in conflict with Mackay Frame Locality Overall Outcome 2(h) requiring new commercial uses to be located in the Commercial Zone;[57]
(f) Finally agreed that the above conflicts needed to be justified by sufficient grounds under IPA 3.5.14 before the BBC application could be approved.[58]
[57]T3.89.55-60; T3.90.1-10.
[58]T3.91.25.
Consistent with Mr Brownsworth’s concession, and as I have earlier said, BBC acknowledges that its proposal is in conflict with the Scheme because it is not located in the Commercial Zone. All town planners agree that the demonstrated need for a Local Centre is sufficient to overcome any conflict either proposal presents.[59]
[59]Second Joint Planning Report, para 144, Exhibit 3, vol 5.
The next point made by HH is that the Strategic Framework of the Urban Expansion Zone identifies a land bank[60] which connotes that land will be held for development at some stage in the future supported by the provision[61] that development of the land in this zone during the life of the Planning Scheme “will occur as out of sequence development”. HH further points to Overall Outcomes 2(a) and (d) which provide, respectively, that land in the zone is retained in low-level largely rural use until required for development such that its future use for urban development is not compromised by inappropriate development; and that will be predominantly residential in nature.[62]
[60]Annexure A, pp 1-8.
[61]Annexure A, pp 1-8, sub-paragraph (g), third paragraph.
[62]Annexure 3, pp 5-48.
HH accepts that the intent in the Urban Expansion Zone is that development be master planned but does not accept that the BBC proposal forms any part of any approved Master Plan. It says that the 2008 Court approval[63] related only to a Material Change of Use for Urban Residential and Higher Density Residential (Dual Occupancy) and the development permit for the reconfiguration of a lot into 251 lots. It says the land uses plan, whilst forming part of that approval, did not confer any rights in relation to the development of lot 901, therein designated for future mixed use development which, by reference to the definition of mixed use in the Scheme suggests a combination of commercial uses and residential uses. That definition of mixed use is in these terms:
[63]Exhibit 19, p 121; Land Uses Master Plan C3503:00:03 A.
“Mixed use means premises comprising a mix of uses being primarily a combination of commercial uses and residential uses located on the one site.”[64]
HH referred to Fig 4 to Mr Brownsworth’s report which is a plan of indicative centre expansion opportunities and Exhibit 18 which is a proposed future Master Plan and said that neither of those have Council approval.
[64]Exhibit 1, tab Pt 12.
Likewise HH submits the two Northern Beaches Master Plan of the BBC land annotated as produced by council and both dated 21 October 2010[65] have not been endorsed by the Council and are, in the words of the Council’s Planner, Mr Cardiff “work in progress” documents.[66] Interestingly on the first of those plans[67] there was a notation referring to lot 241 – “this and the lot to the right are both identified as being commercial/retail” with a note to similar effect on the second plan.[68] As to the BBC land, it is depicted on one with a commercial/retail land use and on the other as a proposed commercial site. But, that as Mr Brownsworth accepted in cross-examination with reference to the Coty principle, the weight to be attached to those plans is relatively limited.[69]
[65]Exhibit 20 (enlargement of Fig 2, Brownsworth Report, Exhibit 16), Exhibit 21.
[66]Exhibit 22, third paragraph; T4.15.1; T4.16.10-40; T4.70-80.
[67]Exhibit 20.
[68]Exhibit 21.
[69]T4.18.15.
HH focused on Mr Brownsworth’s opinion that the HH proposal was in conflict with Specific Outcome P5 in the Urban Residential Zone[70] which refers to non-residential activity being limited to small scale uses directly related to servicing the needs of residential areas. In cross-examination of Mr Brownsworth Mr Gore sought to elicit the basis for Mr Brownsworth’s opinion that the scheme did not provide guidance as to what constitutes a “small scale”.[71] The thrust of Mr Gore’s questioning was that the meaning of small-scale in Specific Outcome P5 in the Urban Residential Zone referred to above would be assisted by considering the table in para 9.20.1 of the Retail and Commercial Code[72] which tabulates the function of each of the five categories of Centres in the Scheme – City Centre, Sub-Regional Centre, Major Neighbourhood Centre, Neighbourhood Centres and Local Centres. That table shows the functions intended for Local Centres as being business and commercial services, convenience shopping, entertainment and leisure and service trades being five of the seven in the table. Each of those functions has a note to the table as meaning “small scale, low intensity facilities and services.”
[70]Annexure 3, pp 5-42.
[71]Exhibit 16, para 10(d); T4.24-27.
[72]Annexure 3, pp 9-115.
Despite quite persistent questioning Mr Brownsworth adhered to his view as expressed in his report that the Scheme does not provide guidance as to what constitutes small scale in Specific Outcome P5 in the Urban Residential Zone. In his view the intent of table 9.20.1 is to compare highly developed major facilities and services with small scale low intensity services and facilities as between the higher order Centres in the hierarchy and the smaller Centres.[73] On the other hand, as to Specific Outcome P5, he saw that as specifically relating to the intended scale of a development for what is essentially a residential area. He considered small scale in that context meant things like a home based business, a corner store or the like which would be typically found in a residential area. That is the type of development he considers is contemplated by Specific Outcome P5.[74] In short Specific Outcome P5 in Mr Brownsworth’s view speaks of a residential zone with predominantly residential uses whereas table 9.20.1 speaks specifically of commercial uses and the various scales and functions of such uses.[75]
[73]T4.25.1 – 12.
[74]T4.26.10 – 40.
[75]T4.26.50-60.
Council’s Argument on Zoning
In the Council’s view both the Urban Residential and Urban Expansion Zones intend that land within those zones will be predominantly used for residential development. The Council relied upon the opinions expressed by its planner Mr Schomburgk[76] who expressed the view that both zones envisage that there will be local or small scale commercial uses to support residential communities or servicing the needs of residential areas and both zones admit of some non-residential uses. In Mr Schomburgk’s view neither zone or designation places any greater weight on either of the two proposals.
[76]Exhibit 15, para 4.1.6.
The Council considers that it is significant that the HH proposal adjoins and in the Commercial Zone (Tavern) which it considers gives rise to the benefits of co-location and triggers the requirements of IPA s 3.5.5(2)(d) that any assessment have regard to adjacent premises.
Conclusion Re Zoning
I prefer the evidence of Mr Brownsworth to that of Mr Buhmann and Schomburgk on the issue of zoning. Mr Schomburgk proceeded on the basis that the existing Tavern is a Designated Local Centre which, for reasons which will become clear I do not agree with. Mr Buhmann relies extensively on Division 2 – Strategic Framework of the Scheme which is expressly stated in paragraph 1.3(2) not to have a role in development assessment under the Planning Scheme. Further his peremptory dismissal of the relevance of the rejection by the Council of the 2005 HH submission in relation to lot 241 cannot, in my view, be justified. The Council’s attitude to the present HH application can hardly determine the proper interpretation of the scheme as reflecting the intention of its authors.
I regard the submission by HH and its rejection by the authors of the present Scheme and the Council as a significant factor in consideration of the operation of the zoning provisions. I shall speak more of that in relation to the Local Centre issue.
It seems patently clear to me that the Scheme intends that lot 241 remain as residential land within the Urban Residential Zone.
Further, I do not think one can lightly dismiss the reference in Urban Residential Zone Overall Outcomes to (a) and (f) and Specific Outcome P5 which are clearly designed to protect the high level of amenity in this Residential Zone and at ensuring that any relevant non-residential development does not adversely affect that amenity, ensuring that it be of a small scale nature.
The absence of a definition of, or guidance as for the meaning of small scale in the Scheme does not, in my view, present any obstacle to interpretation. Read in the context of what is sought to be achieved in the Urban Residential Zone, it seems to me that the types of non-residential uses foreshadowed are those of a much smaller scale than that proposed on lot 241. Given that, and the intent of the Scheme that such uses should be confined to Commercial Zoned Land, it is clear to me that the HH proposal is in conflict with the Scheme.
Of course that is not the end of the matter because the BBC proposal is also in conflict with the Scheme as being outside the Commercial Zone. At the end of the day I must determine, having regard to all issues and not just this issue, whether there are sufficient grounds in relation to the HH proposal to justify the intrusion of this development into the Urban Residential Zone, if, all other matters considered, I find that the HH proposal is to be preferred.
As to the BBC proposal, for the reasons advanced by Mr Brownsworth I find that the proposed use is more in harmony with the Urban Expansion Zone than the HH proposal is in harmony with the Urban Residential Zone.
Identification of the Blacks Beach Local Centre
Network of Centres
The Retail and Commercial Code in the Scheme[77] identifies the hierarchy of Retail and Commercial Centres[78] the five categories of which I have earlier set out in paragraph 60. The relevant Centre here is a Local Centre with a catchment population of more than 2,500 and less than 7,500 households. Those Centres are shown on the Information Map – Network of Centres.[79] Footnote 5 to the reference to that Map in the Retail and Commercial Code[80] provides:-
“Footnote 5:The Designated Centres in the Network are shown in an indicative manner on Information Map – Network of Centres, whereas the Zone Maps provide more definitive Centre boundaries. Existing Centres not shown on this Map are not intended to expand. On the Network of Centres Map a Local Centre is shown with a yellow dot.”
That yellow dot for the Blacks Beach Local Centre is in a position predominantly located in an area north of Blacks Beach Road, crossing that road and covering a small area to the south of Blacks Beach Road. To the west its boundary is the eastern boundary of lot 241. Lot 240 is wholly within the yellow dot.
[77]Paragraph 9.97(2)(c).
[78]Annexure 3, pp 9-115.
[79]Exhibit 1, Tab Map - Centre
[80]Annexure A, pp 9-114; it also appears in the Strategic Framework, pp 1-4 but as previously mentioned that does not play a role in development assessment under the Scheme.
Mr Brownsworth’s Opinion re Local Centre
Mr Brownsworth, in addressing the issue of the intended location of the Blacks Beach Local Centre,[81] considers that the Network of Centres Information Map (Map) depicts the general location for Centres of various suitable sizes and functionalities within the Planning Scheme Area. In relation to the Blacks Beach Local Centre it shows a location generally in the vicinity of both proposals. In relation to the abovementioned footnote 5 he made three points. Firstly that neither proposal was within lot 240, the Commercially Zoned Land in the Zone Map, although both are in proximity to such land. Secondly, the strategic intent of the Map is a valid consideration in determining the most appropriate location for the Blacks Beach Local Centre. Finally, lot 240, the Tavern site zoned Commercial, commenced operating in approximately 2003 well prior to the drafting and implementation of the current Scheme which took effect on 24 March 2006. In his view the Commercial Zoning in the locality neatly reflects the existence of the Tavern.
[81]Exhibit 16, pp 7 and 8.
Against the above, Mr Brownsworth’s view is that the Map evinces a clear intention that the Blacks Beach Local Centre will be located in or around the intersection of Chenoweth Drive and Blacks Beach Road which he considers is consonant with first principles of town planning perspective given that that location is at the centre of the Local Centre catchment and on the corner of two higher order roads. In his view, as the Commercially Zoned Tavern site is not available or proposed to be used in either of the proposals, the question to the determined is where the Local Centre should be located. In his view the zoning amenity and better opportunity for future expansion favours the BBC proposal. He sees no reason why there must be co-location of the proposed Shopping Centre with the Tavern.
Mr Brownsworth’s view is that the roles and functions of a Local Centre, as set out in the Retail and Commercial Code,[82] Centre Role and Function was not limited to shops (convenience shopping) the subject of both proposals but included others namely business and commercial services, entertainment and leisure and services and trades. He disagreed with Mr Schomburgk and Mr Buhmann that the HH proposal incorporated an entertainment and leisure function (Tavern) and that co-location of convenient shopping with the Tavern achieved an integrated and consolidated Development Outcome.
[82]Annexure A, pp 9-115, Tab 9-20.1.
He regards the BBC proposal as better placed to cater for other intended roles and functions not the subject of either proposal both now and in the future when, as the need experts agree, and the Scheme forecasts, those roles and functions broaden to those of a “neighbourhood centre” so as to include expanded comparison shopping and community uses.
Given his view of the inevitably of commercial development occurring on the southern side of Blacks Beach Road, he considers any attempt to consolidate all commercial development to the north of that road to his mind would be a futility. Finally, he says the Council’s current Master Planning for the Northern Beaches generally reflects previous Master Plans for the BBC development site as suitable for mixed use development. I have already dealt with HH’s position those plans are a work in progress, as yet not endorsed by the Council
Mr Buhmann – Network of Centres
Mr Buhmann regards the Map as identifying the location of the Blacks Beach Local Centre. His view is that, when the Planning Scheme Network of Centres’ provisions are read with footnote 5 to the Map, the proper interpretation is that the designated location of the Local Centre is lot 240, the existing Tavern. That approach is, he says, consistent with similarly nominated Local Centres. He provides the example of Slade Point and Bucasia which are other Northern Beach localities where the Network of Centres’ provisions spatially nominate a Local Centre that is focussed on an existing commercial zoning currently developed with a small Commercial Centre.[83] Mr Buhmann considers that Overall Outcome 4(a),[84] Commercial Zone Overall Outcome 39(a)[85] and Retail and Commercial Code Overall Outcome 2(a)[86] and Specific Outcome P7[87] all show similar outcomes and evidence a clear intent in the Scheme that the Local Centres are to be located within the Existing Commercial Zoned Land. His view is that the extension of the existing Commercially Zoned land is more closely aligned with the provisions of the Scheme dealing with Network of Centres than an expansion, as proposed by BBC, which creates a separate commercial element isolated from the Commercial Zone. The HH proposal, in his view, would fulfil the role of contributing to the local community’s needs for convenience shopping and entertainment and leisure functions.
[83]Exhibit 14, ss 2.3 and 2.4.
[84]Annexure A, pp 5-25.
[85]Annexure A, pp 5-31.
[86]Ibid, pp 9-114.
[87]Ibid, p 9-118.
Mr Schomburgk – Network of Centres
Mr Schomburgk’s[88] view is that it is a generally accepted town planning principle that consolidation of centres is to be preferred to fragmentation or separation where the potential for consolidation exists. He describes the existing Tavern as an existing Local Centre and says that, considering the HH site abuts the Tavern site with access to be gained from that site as well as off Blacks Beach Road, that represents to him a better form of Centre consolidation than does the BBC site. As to the BBC site, he said it necessarily gains vehicular access from Blacks Beach Road via Chenoweth Drive and then on to Bondi Road which is a more circuitous route for patrons and hence “less-consolidated” than the HH proposal.
[88]Exhibit 15, para 4.
He accepts that it is not necessary to co-locate a supermarket with a liquor barn but he sees co-location of those two uses as appropriate because of the convenience to the public. He accepts it would be feasible to have the liquor barn on the HH site and the supermarket and speciality shops on the BBC site, but the HH proposal as amended shows an integration of the supermarket shops and the liquor barn which he sees as a desirable outcome. He says such an integration of uses is a common feature of modern shopping centres where tenants such as BWS and Liquor Land are commonly found within those centres, but accepts that separation is not uncommon in some centres.
Arguments re Local Centre
BBC Argument re Local Centre
BBC points out that all town planners agree that neither proposal compromises the Network of Centres provisions of the Planning Scheme. In its view, as the Network of Centres provisions are indicative only and not site specific the question to be determined is where the Blacks Beach Local Centre should be located. The answer to that question is to be found in the Overall Outcomes and Specific Outcomes for the Mackay Frame locality and the zoning provisions of the Commercial Zone, the Urban Residential Zone and the Urban Expansion Zone.
It argues that, as all the new uses proposed by HH are confined to lot 241 and not the existing commercial Tavern site lot 240, its proposal is in conflict with the Scheme. As I have said, BBC acknowledges that its proposal is also in conflict with the scheme because it, likewise, is not within the Commercial Zone.
BBC contrasts paragraphs a(ii) with (b) of Overall Outcome in the Commercial Zone in the McCready’s Creek Precinct.[89] . Paragraph a(ii), according to BBC, speaks of the future development of a Local Centre at Blacks Beach whereas paragraph (b) refers to an existing Local Centre at Blacks Beach in setting out development limitations on the increase and size of that Centre. It is common ground that the reference to the existing Centre in paragraph (b) is to the Local Centre at Turtle Shores east of the subject sites and on the southern site of Blacks Beach Road. In BBC’s view paragraph (a)(ii) is the relevant provision here as referring to the future establishment of a Local Centre at Blacks Beach. Given that, the argument runs, that the existing Tavern being a single use defined by the Scheme as a hotel, is not, of itself, a Local Centre.
[89]Schedule A, Plan Extracts, pp 5-31.
Finally BBC points to Specific Outcome P6(iii)[90] which limits any growth of the Blacks Beach Local Centre to be in keeping with the needs of its local population. Specifically it provides that any such Centre will only grow beyond 2500 m2 when the catchment population exceeds 2500 dwelling households. Again it is common ground, as the three experts on need and economics concluded[91] that both proposals under consideration are larger than what is designated for the Blacks Beach Local Centre under the Scheme. Those experts also concluded however that the passage of time and the growth experienced within the Mackay region including Blacks Beach and Dolphin Heads meant that a larger Local Centre is now required to service residents of the region.[92]
[90]Annexure A, pp 5-35.
[91]Joint Economic Report, Exhibit 3, p 18, para 40.
[92]Ibid, para 40.
The three appeals are allowed I adjourn Appeal D211/2009 to allow the issue of conditions to be resolved, one of which will be that there be no residential development south of Bondi Road immediately opposite the BBC site and that any development of the BBC proposal not commence until that is achieved.
SCHEDULE A
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