Comiskey Group (a Firm) v Moreton Bay Regional Council & Ors
[2011] QPEC 132
•24 October 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Comiskey Group (a firm) v Moreton Bay Regional Council & Ors [2011] QPEC 132
PARTIES:
COMISKEY GROUP (a firm)
(Appellant)AND
MORETON BAY REGIONAL COUNCIL
(Respondent)AND
DAWN GEORGE
(Fifth Co-respondent by election)AND
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(Sixth Co-respondent by election)FILE NO/S:
210/10 and 2852/10
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:
24 October 2011
DELIVERED AT:
Brisbane
HEARING DATES:
18-26 August 2011
JUDGE:
RS Jones DCJ
ORDER:
I will hear from the parties concerning the future conduct of the appeal.1.
CATCHWORDS:
PLANNING LAW – Appeal against a refusal by the respondent of a development application for a full line supermarket shopping centre – where site located in land zoned Sports and Recreation – where land not required for sport and recreation purposes – economic need for development – community need for development – conflict with town plan impacts on amenity – traffic impacts – whether sufficient grounds to justify approval despite conflicts with the town planning scheme
Integrated Planning Act 1997
Sustainable Planning Act 2009
Arpedco v Beaudesert SC (1980) Qd R 88
Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157
Brown v Brisbane CC (2005) QPELR 629
Intrafield v Redlands Shire Council (2001) 116 LGERA 350
Isgro v Gold Coast City Council (2003) QPELR 414
Lewiac & Anor v Gold Coast City Council & Ors (2003) QPELR 385
Luke & Ors v Maroochydore S.C. & Anor (2003) QPELR 447
Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council [2009] QCA 400
Metroplex Management Pty Ltd v Brisbane City Council & Ors (2009) QPEC 110
Metroplex Management Pty Ltd v Brisbane City Council & Ors (2010) QCA 333
Tadpoles Early Learning Centre v Noosa Shire Council & Ors (2008) QPELR 487
Watts & Hughes Properties Pty Ltd v Brisbane City Council(1998) QPELR 273
Webster v Caboolture SC (2009) QPELR 455
Weightman v Gold Coast CC (2003) 2 Qd R 441
Westfield Management Ltd v Pine Rivers SC & Anor (2004) QPELR 649
Wilispap Pty Ltd v Mulgrave Shire Council (1992) QPLR 51
Woolworths Ltd v Maryborough CC (No. 2) (2006) 1 Qd R 273.
COUNSEL:
Mr D. Gore QC and Mr J. Haydon for the appellant
Mr C. Hughes SC and Ms N. Kefford for the respondent council
Mr M. Hinson SC with Ms J. Brien for the sixth co-respondent by election
The fifth co-respondent by election Ms D. George appeared in person
SOLICITORS:
HWS Lawyers for the appellant
Moreton Bay Legal Services for the respondent council
Crown Law for the sixth co-respondent by election
The fifth co-respondent by election Ms D. George appeared in person
This hearing deals with an appeal by the Comiskey Group against a decision by the respondent Council refusing an application for a development permit for the making of a material change of use of land and preliminary approval for building work and associated works to establish a shopping centre. For the reasons set out below my conclusions concerning the appeal are:
I find that
1. But for the traffic issues I would have upheld the appeal.
2. However, approval at this stage would be premature on traffic grounds.
The order of the court is that:
1. I will hear from the parties concerning the future conduct of the appeal.
At various times the first, second, third and fourth co-respondents by election withdrew from the proceeding.
The proposal
The essential features of the proposal are a Woolworths supermarket (3,200 m2), speciality shops (1,374 m2), a gymnasium (2,000 m2), 395 car spaces and 10 motorcycle parking spaces. Woolworths confirmed its interest in establishing a supermarket on the site in March 2010.
The site that would accommodate the shopping centre comprises an area of about 2.423 hectares and is part of an overall area of land owned by the appellant comprising 5.896 hectares. It is located entirely within the Sport and Recreation zone and Urban Locality designation under the Council’s planning scheme.
The site is situated just north of the South Pine River on the eastern side of South Pine Road near its intersections with Eatons Crossing Road and Bunya Park Drive at Brendale. South Pine Road is a significant arterial road under the control of the sixth co-respondent by election (the Chief Executive) and carries in excess of 40,000 vehicles per day.
Immediately to the south of the site is a significant tavern facility, also developed by the appellant, which includes dining areas, bars, entertainment areas, function rooms and a bottle shop. A motel development and indoor sport and entertainment use has also been approved to the south of the proposal and to the north-east of the tavern.[1] Further to the south and to the immediate north and east is a private golf course which is, in effect, owned by Ms George, the fifth co-respondent by election. To the west of the site on the other side of South Pine Road is urban development including non-commercial activities (Eden’s Hill Primary School) and commercial activities including a service station and a relatively small shopping centre.[2]
[1]See Exhibit 1 p 6 as an example of layout of existing tavern, approved motel and other development.
[2]See generally Exhibit 1, pp 1-5.
Issues in the appeal
Mr Gore QC, senior counsel for the appellant, submitted that the appeal essentially turned on a question of whether the site was a suitable location for the proposed use. Broadly speaking, that is correct. However, as was usually the case in these appeals, consideration of a number of underlying issues was required. Broadly speaking, those issues are:
(i) need – economic and community need;
(ii) impact on amenity and character, and in particular visual amenity and public expectations;
(iii) conflict with other parts of the town planning scheme (including established shopping centre hierarchy);
(iv) impact on traffic flows on South Pine Road (including pedestrian safety).
The assessment regime
On the seventh day of the hearing Mr Gore QC raised a “technical issue”, namely whether the appellant’s application and, accordingly this appeal, should be assessed and determined under the Integrated Planning Act 1997 (IPA) or the Sustainable Planning Act 2009 (SPA). The facts and circumstances underlying this issue are as follows. The letter accompanying the application is dated 17 December 2009. In part, that letter states:
“On the basis this application demonstrates a ‘properly made application’ under the Integrated Planning Act 1997 (s 3.2.1) we trust that council, the assessment manager, will receive it in its current form.”[3]
SPA did not come into force until 18 December 2009.
[3]Exhibit 3 p 91.
The decision notice from the council to the appellant dated 23 September 2010[4] identifies that the decision was made under IPA. The response of the Chief Executive as a Concurrence Agency, identifies that the proposal was assessed by it pursuant to s 3.3.16 of IPA.[5]
[4]Exhibit 3 p 220.
[5]Exhibit 3 p 212.
However, Robert Comiskey and Paul Comiskey, as “directors” of the appellant, signed the owner’s consent part of the development application on 15 January 2010[6] and, notwithstanding the fact that the acknowledgement notice issued by the council, dated 1 February 2010, refers to IPA, under the heading “lodgement date”, it is stated:
“The application was lodged on 17 December 2009 and considered to be deemed ‘properly made’ on 15 January 2010.”
The reference to 15 January 2010 is of course consistent with the date of the owner’s consent.
[6]Exhibit 3 p 105.
After referring to the decision of the Court of Appeal in Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council,[7] Mr Gore QC submitted that the application could not be considered to be a properly made application until 15 January 2010 and, accordingly, should be assessed and determined under SPA. Mr Hinson SC, senior counsel for the Chief Executive, agreed. Mr Hughes SC, senior counsel for the Council, considered that, consistent with the treatment of the application by his client and the Chief Executive, the appeal should be dealt with under IPA. Ms George had no opinion on the matter. Notwithstanding this difference of opinion, all counsel seemed to agree that the outcome of the appeal would not be materially affected whether it was assessed and determined under IPA or SPA.
[7][2009] QCA 400 at paras 27-41 per Fraser JA.
On balance, notwithstanding the fact that the application was purportedly dealt with under IPA by the Council and the Chief Executive, I consider that the approach advocated by Mr Gore QC and Mr Hinson SC is the correct one. Accordingly, this appeal will be dealt with and decided in accordance with SPA.
As an impact assessable application, it is to be assessed by the court effectively standing in the shoes of the relevant assessment manager.[8] Accordingly, the appeal has to be dealt with and decided in accordance with, relevantly here, ss 314, 324 and 325 of SPA.[9] Of particular relevance is that the decision of the court should not be in conflict with the planning scheme unless there are sufficient grounds to justify that decision despite the conflict.[10] In this context “grounds” is defined to mean matters of public interest but does not include the personal circumstances of an applicant/appellant or other interested party.[11] The onus rests on the appellant to establish that the appeal should be allowed.[12]
[8]Section 495 SPA (s 4.1.52 IPA).
[9]Sections 3.5.5, 3.5.11 and 3.5.14 IPA.
[10]Section 326(1)(b) SPA (s 3.5.14 IPA).
[11]Schd. 3 SPA (Schedule 10 IPA).
[12]Section 493(1) SPA (s 4.1.50 IPA).
Generally speaking, town planning documents must be construed as a whole and in a broad, practical and commonsense way which best achieves the apparent objectives and purposes of the scheme.[13] For there to be genuine conflict with a planning scheme, there must be some real and identifiable variance or disagreement with it.[14] For the purposes of s 326(1)(b), if such conflict between the proposal and the scheme exists, it is then necessary to determine whether that or those conflicts are sufficiently or adequately outweighed by other relevant and identifiable grounds of justification.[15]
[13]Westfield Management Ltd v Pine Rivers SC & Anor (2004) QPELR 649 at 654: Arpedco v Beaudesert SC (1980) Qd R 88 at 44.
[14]Webster v Caboolture SC (2009) QPELR 455 at para [110] citing with approval Woolworths Ltd v Maryborough CC (No. 2) (2006) 1 Qd R 273.
[15]Weightman v Gold Coast CC (2003) 2 Qd R 441 at paras [35-37]: Luke & Ors v Maroochydore S.C. & Anor (2003) QPELR 447 at para [104]. Note also comments of Fryberg J in Woolworths Ltd (No. 2) at paras [23] [25], and [55].
A material difference between SPA and IPA is the status of desired environmental outcomes (DEOs) established under the planning scheme. Under IPA, identification of DEOs was a key element of a planning scheme.[16] That is not necessarily the case under SPA.[17] Further, s 3.5.14(2)(a) of IPA provided that a decision “must not” compromise the achievement of a DEO. Under IPA, a decision which compromised a DEO could be fatal for an appellant[18] if it could be reasonably said to pose a real risk, threat or danger to its achievement.[19] Section 326 of SPA does not incorporate the same consequences concerning DEOs.
[16]Section 2.1.3(b).
[17]Section 88.
[18]Webster at para [101].
[19]Brown v Brisbane CC (2005) QPELR 629 at para [9].
In this context it is important to note that while the Council contends that this appeal should be heard and decided under IPA and not SPA,[20] it does not argue that the proposal involves the compromising of a DEO under its town planning scheme which would be fatal to the appeal. Instead, it focuses on whether there is conflict with the scheme and, if there is, are there sufficient grounds to warrant approval despite the conflict.[21]
[20]Councils written submissions at para [18].
[21]Ibid. at paras [21]-[26].
Finally on this topic, it is appropriate to deal with Division 2 of Chapter 1 of the planning scheme. Division 2 of Chapter 1 of the scheme is stated to reflect the DEOs and provide a summary of the approach to be taken under the scheme to achieve those DEOs. It then goes on to identify a number of “Core Matters” and DEOs including the Urban Corridor, the Business Industry activity and Employment, and the Centre’s DEOs.[22] However, s 2.1(2) of the scheme provides:[23]
“This division does not have a role in development assessment under (the scheme).”
[22]Exhibit 2 pp 3-5.
[23]Exhibit 2 p 3.
As stated above, the general rule is that planning documents should be construed as a whole. However, proper regard must be had to such clear exclusory words. Accordingly, it would be wrong to assess this appeal by having regard to the full force of the provisions of Division 2 of Chapter 1 of the scheme. That said, I accept the submission made on behalf of the Council which was to the effect that the exclusory effect of s 2.1(2) of the scheme does not mean that the sound town planning principles embodied in the DEOs as expressed in this part of the scheme must necessarily also be ignored. Also, as the appellant accepts, a number of material DEOs (referred to by the appellant as the “true” DEOs) are relevantly repeated in Chapter 2 of the scheme,[24] albeit in a more abbreviated form.
[24]Exhibit 2 pp 23-24.
Summary of the opposition to the proposal
The Council’s position concerning the application can be summarised as follows: [25]
[25]Council’s written submissions at pp 7-8.
“It is Council’s position that the appeal should be dismissed and the application refused because, while there might be a need for the supermarket component of the proposed development, the need is not so strong as to overcome:
(a)the conflicts which arise as a consequence of:
(i)the Sport and Recreation zoning of the land; and
(ii)the higher order provisions of the Scheme (including hierarchy provisions) …; and
(iii)the specific location or requirements for new centres;
(b)the generally unsuitable location of the site in a large area of the Sports and Recreation zoning at the eastern extremity of the trade area and on the opposition side of a major arterial road from that trade area population which it is intended to serve;
(c)the adverse impacts on amenity and character including visual impacts; and
(d)in terms of traffic, unacceptable impacts arising from:
(i)public safety concerns; and
(ii)the unsatisfactory traffic impacts on the functioning of South Pine Road, an important public asset.”
The Chief Executive’s final position is that: [26]
“The appeal should be dismissed and the development application refused on the three grounds identified by Mr Pekol. If the application is considered sufficiently meritorious to be approved, conditions should be imposed requiring works to be done to protect and maintain the safety and efficiency of State-controlled transport infrastructure. Those conditions should require a non-worsening of intersection operation in the design year of 2021 and the retention of the existing single stage pedestrian crossing of South Pine Road.”
[26]Chief Executive’s written submissions at pp 8-9.
The three traffic grounds identified by Mr Pekol as being sufficient to refuse the application are identified in his report[27] and are dealt with in more detail below.
[27]Exhibit 22, p 16.
Ms George’s position is essentially that any commercial development on the site should incorporate a “loop road” which would, among other things, provide access to the land to the north of the proposal including her golf course and, in the event that for whatever reason it was not considered appropriate to provide for such a road, then the appeal should be dismissed.[28]
The substantive issues raised in the appeal
[28]Exhibit 34A paras 9 to 13.
Economic need for the proposal
Notwithstanding the fact that the Brendale and Eatons Hill residential areas are relatively well serviced by a range of shopping centres of various sizes,[29] the economists, Messrs Norling and Duane, agree that there is an economic need for an additional full line supermarket of the type proposed. The economists report that despite the negative economic impacts the proposal would have if it went ahead on existing shopping centres, there was “clearly room for further supermarket floor space providing greater convenience for the local population.”[30]
[29]See generally Joint Economic Need Report, Exhibit 5 p 58.
[30]Exhibit 5 p 34 para 50.
The catchment area for the proposed shopping centre is located entirely on the western side of South Pine Road and comprises of an area which has a significant proportion of single unit residential development and an area of rural residential type development extending further to the west. The former makes up a significant proportion of the primary catchment area and the latter makes up the entirety of the secondary catchment area.[31]
[31]See Exhibit 5 p 58.
The fact that it is common ground between the economists that there is a strong economic need for a shopping centre of the type proposed does not necessarily constitute a sufficient town planning need. Particularly in circumstances where there is evidence that the existing centres provide a reasonable level of choice and convenience.[32]
[32]See for example Intrafield v Redlands Shire Council (2001) 116 LGERA 350 at para [20]; Isgro v Gold Coast City Council (2003) QPELR 414 at 418, paras [21] – [26].
A major difficulty facing the proposal is that it lies on the very eastern extremity of its catchment areas and on the opposite side of South Pine Road. Mr Duane, the economist relied on by the appellant, contended that, notwithstanding its unusual geographic location vis-à-vis its catchment areas, the site was a suitable one because: [33]
[33]Exhibit 5 para 57; Exhibit 10 p 10.
(i) it was highly accessible and visible given its location on South Pine Road;
(ii) its location proximate to the existing tavern and proposed motel would ensure that the proposal becomes a well-known and well-frequented destination; and, importantly
(iii) there are no internal sites more centrally located within the catchment area available for comparable development.
On the other hand, Mr Norling, the economist relied on by the Council, contended that, notwithstanding the clear economic need for a full-line supermarket, the proposal ought to be refused: [34]
[34]Exhibit 5 paras 54 and 56.
(i) it would undermine the established network of shopping centres, including their vibrancy and attractiveness;
(ii) the proposal would not result in a consolidation and/or compaction of business centres. It would be a non integrated “out of centre” development;
(iii) the site was not centrally located within its catchment areas; and
(iv) the site did not have a high level of visibility.
Whether there is sufficient need for the proposal in the wider town planning sense to justify its approval, can only be resolved after a consideration of the other substantive issues raised in the appeal, including the specific matters identified by Messrs Norling and Duane. Those matters are addressed below.
However, before addressing the additional substantive issues raised in this appeal, there is one aspect which I consider can be readily dealt with. During the course of the hearing a number of alternate sites were identified by the Council as having the potential to accommodate further shopping centre development and/or redevelopment which, if it eventuated, would obviate the need for the proposal. Four sites were identified, being land in or around the Centro Albany shopping centre and the Dan Murphy development, land east of the existing Aldi shopping centre, land adjacent to the existing Albany Creek Marketplace shopping centre, and land adjacent to the existing Warner shopping village. Each of these sites is conveniently shown in Mr Duane’s report.[35] While some form of development and/or redevelopment sufficient to obviate the economic need for the proposal might be possible on one or more of these alternate sites, the evidence strongly suggests to me that the difficulties inherent in these sites make it unlikely that any such development would occur in the reasonably foreseeable future. These difficulties include the area and use of the land available, fractured ownership, and locational difficulties having regard to the location of the relevant catchment areas.[36] Also, in circumstances where there is an undersupply of full line supermarkets, lack of genuine competition would tend to act as a disincentive to redevelopment expenditure.
[35]Exhibit 10 pp 21-24.
[36]Mr Duane, Exhibit 5, paras 53(h) and 59; Exhibit 10 pp 18-20 and T2-10 – T2-11; Mr Norling, Exhibit 5, paras 54 and 64 and T2-56 – L2 – 60.
The prospect for further alternate sites becoming available or identified was also raised in the context of it being dealt with when the current planning scheme of the Council falls for review, some four to five years hence. While all of the relevant expert witnesses agreed that it would be appropriate for the Council to investigate and identify potential shopping centre sites in the review of the scheme, none were able to identify a site with a sufficient degree of visibility and accessibility reasonably central to the relevant catchment areas. As a part of his investigations, Mr Duane identified two notional alternative sites west of South Pine Road and more centrally located within the catchment areas. [37] Notwithstanding Mr Simonic’s evidence concerning alternative site 1,[38] it is quite clear to me that it would not be economically viable for some time. Site 2 was also considered to be an inappropriate site by the economists [39] and, at least at face value, a poor town planning solution. [40]
[37]Exhibit 10, p 12.
[38]T6-28 – L50.
[39]Mr Duanne exhibit 10 p 11 and T2-36 L48 – 50, Mr Norling T2-69 L5 – 10.
[40]Mr Simonic T6-28 L27 – 45.
Is the proposal in conflict with the scheme?
The appellant’s primary position is that the proposal is not in conflict with the planning scheme. Its fallback position is that if there is conflict there are sufficient grounds to justify the approval despite the conflict. The Council contends that the proposal is in conflict with the scheme in a number of areas:
(i) conflict with the current zoning of the site;
(ii) conflict with the locational criteria for new centres established in Chapter 3, Ss 2.2(13), (14) and (15) and Specific Outcome (SO) 14 of the scheme;
(iii) conflict with “higher order scheme provisions” and, in particular, those concerned with the hierarchical centres;
(iv) conflict with those parts of the scheme which specifically address impacts on character and amenity.
Zoning
The site is located in the Sports and Recreation zone. The first of the overall outcomes sought to be achieved under this zone is the promotion of playing fields, sportsgrounds and recreation areas as the predominant forms of development.[41] Shop and food outlet uses are defined to be inconsistent with the zoning.[42] The gymnasium component of the proposal would be a consistent use.
[41]Exhibit 2 p 32 s 2.20(1).
[42]Exhibit 2 pp 38-39.
That a use is an inconsistent use does not necessarily create a genuine conflict with the scheme.[43] However, that the Council considered it sufficiently important to identify certain uses as being inconsistent uses has to be recognised and given appropriate weight.
[43]E.g. a childcare centre in a detached housing zone Tadpoles Early Learning Centre v Noosa Shire Council & Ors (2008) QPELR 487.
It is relevant that the existing tavern and the proposed motel on the adjoining land are also inconsistent uses under this zone. However, there are a number of obvious and significant points of difference between the proposal and the tavern and proposed motel. The proposal will be likely to generate significantly higher levels of traffic into and out of the site along South Pine Road than either the tavern and/or the motel. Further, while the tavern is, to an extent, a use consistent with some of the objectives of the zoning, in that it congregates people and has an entertainment focus,[44] the proposal (apart from the gymnasium) is not a complimentary or compatible use. These points of distinction were acknowledged by Mr Brown, the town planner relied on by the appellant.[45]
[44]Overall Outcome 2.20(2) Exhibit 2 p 32.
[45]See Exhibit 33 and at T5-34 – T5-37.
In my opinion the proposal is in conflict with the zoning of the site. The fact that it is not specifically required for sport and/or recreation purposes does not alter this position but is nonetheless a relevant consideration.
Specific Outcome 14 (SO 14)
Overall Outcome for the Urban Locality 2.2(14)[46] provides that new centres are to be developed in appropriate locations. SO 14 for the Urban Locality provides:[47]
[46]Exhibit 2 p 27.
[47]Exhibit 2 p 35.
“New centres are developed in appropriate locations which have the following characteristics—
(i)sites that are centrally located within the catchment for the centre;
(ii)sites that have a high level of accessibility; and
(iii)sites that have a high level of visibility.”
The council contends that SO 14 has four elements. First, the site must be an appropriate one in a broad or general sense. Second, it must be centrally located within its relevant catchment. Third and fourth, it must have a high level of accessibility and visibility. The appellant contends that only three elements are involved and that if a site is centrally located and has a high level of accessibility and visibility, then it is, by definition, an appropriate site.[48] There is no dispute that the subject site satisfies the visibility and, subject to the traffic issues discussed below, the accessibility criteria.
[48]Appellant’s written submissions para 41; T7-54 L10 – 32.
On balance, I prefer the construction of SO 14 advanced by the Council. A site may be centrally located and sufficiently visible and accessible but nonetheless still be an inappropriate site for a shopping centre. By way of examples, for environmental, amenity and other overriding alternate need reasons.
The appellant also argues that in a town planning context it would “not make sense” to insist on geographical centrality and that by reference to both visibility and road access the site could reasonably be described as being centrally located.[49]
[49]Appellant’s written submissions paras 42-43: See also Mr Dwayne Exhibit 5 para 57, Exhibit 10 pp 10-11 and T2-9 – T2-10.
While there is some merit in the construction advanced by the appellant on the point, it does not sit well with the actual words used in SO 14(1). Namely, that new centres are “centrally located within the catchment for the centre”. The words emphasised make it tolerably clear that what is intended is that new centres, as far as is practicable, be located in the vicinity of the centre of its catchment area or areas. There are of course good reasons for centrally locating centres including public transport efficiency, accessibility (including pedestrian access), and impacts on other centres.
The site being at the eastern most extremity of its catchment areas is in conflict with SO 14.
The hierarchy issue
It is well recognised and accepted that a suitable and ordered hierarchy of commercial development is of critical importance to the functioning of, as is the case here, a large and multifaceted local government area.[50]
[50]E.g. Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157 at 18; Wilispap Pty Ltd v Mulgrave Shire Council (1992) QPLR 51 at 52-53; Lewiac & Anor v Gold Coast City Council & Ors (2003) QPELR 385 at 389. Refer also to evidence of Mr Dwayne T2-21 – T2-24, Mr Brown T5-7 L 20 – T5-8 L 20.
In my view the scheme does not provide for, in any definitive way, a planned or clearly identifiable centre hierarchy.[51] However, the scheme is not entirely silent on the matter. DEO 2.3 of the scheme provides:[52]
“Centres
Land use and development maintains and promotes a network of multipurpose activity centres ranging from major employment centres serving the region to local business centres and village centres.”
[51]A conclusion agreed with by the town planners: Exhibit 4, p 46.
[52]Exhibit 2 p 23.
Also, ss 2.2(10), 2.2(12) and 2.2(13) of the Overall Outcomes for the Urban Locality identify respectively as desirable outcomes:[53]
[53]Exhibit 2 p 27.
“(10)Centres are attractive, vibrant and integrated places for business and community activities and provide services and facilities for the residents.
(12)A network of existing and future centres provides a full range of district, neighbourhood and local level retailing, administrative and commercial activities.
(13)All existing business centres are consolidated and compacted rather than expanding or sprawling in a linear fashion.”
The South-East Queensland Regional Plan also deals with activity centres and in s 8.6 deals with a number of policies including:
“8.6.1(Ensuring) that development supports the activity centres network and the transport system.
8.6.3(Encouraging) mixed use development along priority transit corridors and other high frequency transit corridors.
8.6.5(Excluding) out of centre land use and development that would detrimentally impact on activity centres.”
Notwithstanding the lack of any definitive centre hierarchy within the scheme, it is tolerably clear that, in a practical sense, an established centre hierarchy exists “on the ground”.[54] Consistent with the opinions of Mr Norling,[55] a major concern of the Council in this area is the potential for conflict with the objectives of the scheme to promote and protect the vitality and vibrancy of existing centres and discourage “out of centre development”.
[54]Joint Town Planning Report Exhibit 4 p 46, para 1(a); Mr Brown at T5-8 L 30 – T5-10 LL 1-35; Mr Duane at T2-21 L 20 – 40.
[55]Exhibit 5 paras 54 and 56.
There is no suggestion that if the proposal were to go ahead it would be anything other than a successful and vibrant centre offering an appropriate range of retail and other commercial and service provider options to the community. Further, the evidence of the economists is to the effect that the proposal, while it would impact on existing centres, would not render any of them economically nonviable. And, while there might be some movement of tenants from existing centres to the proposed shopping centre, there is no probative evidence that their vitality and vibrancy would be negatively impacted in any material way. Finally on this topic, the difficulties referred to above concerning any meaningful redevelopment of any of the relevant existing centres makes unlikely that in or at-centre development would occur to meet current demand in the short to medium term.
No doubt, at least in part, for these reasons Mr Norling considered that the real test (from an economist’s point of view) was that prescribed in SO 14 and if that outcome could be met “many of [his] issues will have disappeared”.[56]
[56]T2-68 L1 – 30.
On balance, for the reasons given, I conclude that the proposal is not in any genuine conflict with any of the “hierarchical” provisions of the scheme. And, to the extent that any conflict might arise in this area, it would not in itself warrant refusal. A conclusion conceded by the Council.[57]
[57]Council’s written submissions at para 51.
Impacts on character and amenity
The site itself is without character. It is a vacant, fully cleared site with a gentle downward slope from west to east. It is located in an area which itself has no particular character. It is bounded on the west by a major arterial road and further to the west is a mixture of residential development and associated (but limited) commercial and public facilities. Immediately to the south is the existing large tavern development and, in the future, a substantial motel development. To the north is low-key commercial development (a vet and restaurant) and a privately owned but public golf course. To the further north and east are sporting facilities, playing fields and associated buildings which, at some time in the future, are likely to be expanded to effectively surround the site to the north and east. Even further to the north, east and south are timbered green areas.[58] In a physical sense, the site is a part of a node of existing and proposed mixed commercial uses.
[58]Refer generally Exhibit 1, pp 1-5 and Exhibit 11 pp22-25.
I do not think a development of the type proposed will have any material impact on the general character of the area. Nor do I consider it would negatively impact in any material way on community identity.
The council’s written submissions[59] argue that, having regard to the zoning of the site and relevant provisions of the scheme,[60] the community “might reasonably expect a predominance of playing fields, sports grounds (etc) with generally little built-form aspect.” I do not agree.
[59]At para 72.
[60]E.g. DEOs 2.1 Urban Character; 4.7 Amenity; 4.8 Community Identity; and Chapter 1 Part 1 division 2 s 2.5(1).
That there was so little objection to the proposal, while by no means decisive, is a relevant consideration in this regard. Second, there is no need for the site to be retained for sport and recreation purposes,[61] a situation obviously recognised by the Council when it approved the tavern and motel immediately to the south of the proposal. Third, while the Council’s master plans, which exclude the subject site, reveal that the predominant use for most of the land between Cribb Road and the South Pine River will still be for sport and recreation, they also show that buildings of significance are proposed. Potentially up to 12,700m2, significantly larger than the building areas associated with the proposal. The fact that the indoor sporting complex will be further set back and represents a much smaller part of the overall site area is of course relevant, but does not detract from the fact that any informed member of the community would expect built-form of significance on the land identified for sport and recreation purposes.
[61]See exhibit 6, p 3.
For these reasons I do not consider that the legitimate expectations of the community concerning this site would be materially disappointed if the proposal went ahead.
There are no noise or light issues associated with the proposal. However, it cannot be denied that it will involve an intensive and imposing form of development which will interfere with views to the east and north in particular.[62]
[62]See e.g. Exhibit 12A, Exhibit 19 Volume 2, and Exhibits 19A and 19B.
While it seems to be accepted that appropriate landscaping can be accommodated as part of the development, the wider visual impacts cannot be avoided. However, these impacts have to be considered in context. Leaving aside any technical difficulties associated with the application of DEO 2.5(i)(f) in Chapter 1 Part 1 Division 2 of the scheme to this application, Mr Monguard’s treatment of it is misconceived. The subject site could not be reasonably said to be a part of any physical separation between urban areas. Also, the site, particularly since the development of the tavern and approval of the motel, is already to an extent a part of its surrounding urban corridor and could not reasonably be said to be a meaningful part of any “inter-urban break”. It is clear that the so-called Chenowith Pine Rivers Urban Landscape Study[63] relied on by Mr Monguard has no relevance to this application. And, in any event, given the physical characteristics of the site and its surrounding environment, it could not reasonably be said to form a part a part of any “green break” between suburbs and/or neighbourhoods.[64]
[63]Exhibit 35.
[64]E.g. Exhibit 7, para 20.
Additionally in this context, the site does not appear to be one considered to be of any particular significance to the Council. It has not been identified as a site of any landscape or landform of significance for the purposes of Chapters 2 and 5 of the scheme.[65]
[65]Exhibit 2 p 24 and p 42.
Finally, while the green backdrop to the north and east and the more distant green backdrop to the east will be materially affected, it will not be entirely lost. On site landscaping, particularly more intensive landscaping along the South Pine Road frontage and between the centre and Ms George’s property will also tend to ameliorate the visual impacts of the development.
For these reasons, while there might be degrees of tension, I do not consider that the proposal creates any genuine conflict with those parts of the scheme dealing with character and/or amenity.
However, in circumstances where the proposal is in genuine conflict with other important elements of the scheme (zoning and SO 14), the amenity and hierarchical issues, together with the substantive traffic issues raised in this appeal, are relevant in considering whether on balance sufficient grounds exist to approve the development despite the conflict.
Traffic issues
The evidence of the traffic engineers[66] occupied a significant part of this appeal. At the heart of the traffic debate is whether or not the roadworks proposed by the appellant at the intersection of South Pine Road and Bunya Park Drive, including a staged pedestrian crossing, are adequate. According to Mr Pekol, the traffic engineer relied on by the Chief Executive, the fundamental problem with the proposal is that it is located on the wrong side of South Pine Road.[67]
[66]Mr McClurg for the appellant, Mr Douglas for the Council, Mr Pekol for the Chief Executive, and Mr Beard for Ms George.
[67]T6-88 L13 – 42.
On 12 August 2010 the Chief Executive issued a referral agency response.[68] That response required any approval for the development to be a preliminary approval and only and subject to the applicant providing information which showed that the traffic issues associated with the proposal were able to be satisfactorily addressed. The Chief Executive also required that certain conditions be included in any preliminary approval. The Chief Executive’s involvement stems from the fact that South Pine Road is a state-controlled road and, for the purposes of SPA and its associated Regulations, the subject site is “land relating to a state-controlled road”.
[68]Exhibit 3 pp 212-219.
It was Mr Pekol’s opinion that there were three substantive grounds for refusing the application:[69]
[69]Exhibit 22 p 16.
(i) the proposal will generate significant and unacceptable traffic volumes (particularly associated with turns into and out of the site on South Pine Road);
(ii) that the proposed staged pedestrian crossing unreasonably compromised pedestrian safety;
(iii) the development would adversely affect traffic operations in the future at the South Pine Road-Bunya Park Drive intersection and the works proposed were not sufficient to mitigate the expected impacts.
Mr Pekol went on to say that in the event that the court considered that the proposal ought be approved, then specific conditions should be imposed.[70]
[70]Exhibit 22 pp 16-17; see also Chief Executive’s written submissions pp 4-5.
All of the traffic engineers, with the exception of Mr McClurg, found the appellant’s treatment of the South Pine Road-Bunya Park Drive intersection in particular (including the pedestrian crossing) to be unsatisfactory. Before descending into the traffic issues in more detail, while I found all of the traffic engineers, including Mr McClurg, to be experienced, well-prepared and objective witnesses, at the end of the day I was left with the clear impression that the works as presently proposed are inadequate.
The concerns of the traffic engineers (save for Mr McClurg) are summarised in the traffic engineers’ joint report:[71]
[71]Exhibit 8, p 28.
“Mr Douglas, Mr Pekol and Mr Beard remain convinced that the development proposal at this location, with associated roadworks as proposed, is unsatisfactory from a traffic perspective. However, they have suggested that the development could be made substantially more satisfactory if some significant changes were made, including:
(a)no worsening of conditions (convenience and safety) for pedestrians crossing South Pine Road, particularly given the high likelihood the development would significantly increase such pedestrian traffic;
(b)the need to propose intersection upgradings of South Pine Road with Bunya Park Drive and Eatons Crossing Road which fully offset the impacts of the proposed development and can be shown to be consistent with and a logical part of an overall traffic management plan for this area;
(c)significant changes to the internal arrangements, such as the provision of a pedestrian lift, the elimination of a four-way intersection and other geometric improvements; and
(d)demonstration that the subject development does not prejudice orderly overall development of this area east of South Pine Road, based on sound overall traffic management plans having enough flexibility to allow for further development on the subject site and/or adjacent sites.”
The extract from the joint report emphasised above should be read to mean “could be made acceptable”.[72]
[72]T7-15 L45 – 50.
The appellant’s treatment of the South Pine Road-Eaton’s Crossing Road intersection was, subject to final design and development of an overall traffic structure plan, not seen as a particularly significant issue by the traffic engineers. [73]
[73]Mr Pekol, Exhibit 22 p 17, Exhibit 8 p 21-22, T7-3 L40 – 55 per Mr Beard.
According to Mr McClurg, the roadworks intended to be carried out by the appellants at the Bunya Park Drive intersection as a part of the development of the proposal would be sufficient to accommodate the additional traffic movements associated with it. These works include the introduction of a two-stage pedestrian crossing on the northern side of the Bunya Park Drive intersection. Mr McClurg’s opinions on these matters were left largely unshaken despite scrutinising cross-examination. However, notwithstanding Mr McClurg’s opinions, which I have no doubt he sincerely held, I consider that the roadworks as currently proposed are not likely to adequately address all of the traffic issues arising as a consequence of the proposal. And, in particular, interference with north and south bound traffic along South Pine Road, due to traffic turning into and out of the shopping centre.
At p 19 of his report,[74] Mr Douglas summarised his concerns:
[74]Exhibit 20, p 19.
“The following traffic-related grounds lead me to conclude that the development cannot be supported:
(a)the site is poorly located from a pedestrian, cyclist, and public transport access perspective, as it is located on the edge of its catchment and is separated from its catchment by a major arterial road;
(b)the proposed shopping centre development will generate significant right-turn movements that will effectively reduce the capacity of South Pine Road, which is a major arterial road that is already congested during peak periods;
(c)the proposed shopping centre development’s impact on South Pine Road will worsen over time and severely limit the Department of Transport and Main Roads’ ability to provide further upgrades to relieve such congestion; and
(d)the proposed shopping centre development proposes the introduction of a staged pedestrian crossing, to the detriment of pedestrian and cyclist movements across South Pine Road, while at the same time increasing pedestrian and cyclist crossing demands.”
In my opinion these traffic issues alone are of such significance as to warrant refusal of the application.”
Mr Douglas expanded on his opinion in his evidence-in-chief:[75]
“… look, I suppose the first point is I wouldn’t have the staged crossing. I think we should be planning at this level for the single crossing to remain from a safety point of view, if nothing else. I suggest that there would have to be at least an additional exit lane out of the site to contain the queuing in the site and to also reduce, to some extent, the amount of time by which you have to stop the north- and south-bound traffic on South Pine Road. So, having a double right-turn and a through would reduce, marginally, the amount of green time you have to take from the through-movements. Similarly, a double-right turn into the site would reduce the amount of green time you would have to take from the south-bound traffic flows. So, works of that sort of order. That obviously leads to a shuffling over, if you like, of the traffic lanes towards the site, so the left-turn deceleration lane that’s there now would need to be sort of reinstated another lane across, and similarly the south-bound through lane would be effectively reinstated another lane to the east. …”
[75]T6-35 L25 – 45.
The nature and extent of the minimum level of roadworks Mr Douglas considered necessary are conceptually shown (by superimposing his proposed works over those of Mr McClurg’s) at page 158 of his report.
Mr Douglas also expressed concerns about the appellant’s proposal not adequately taking into account the potential for future development on land north of the site.[76] Mr Douglas’s concerns on this matter were shared by Messrs Beard and Pekol.
[76]E.g. T 6-63 L35 – 60.
Mr Beard’s opinions were, essentially for the same reasons, in general accordance with those of Mr Douglas. In his report[77] Mr Beard concluded:
[77]Exhibit 21 p 7.
“… in my opinion, after a satisfactory structure plan has been negotiated and agreed, such conditions are likely to include:
· the construction of two right-turn lanes on the southern approach of South Pine Road to the Bunya Park Drive intersection;
· a substantial upgrading of the site access from South Pine Road;
· rationalisation of the intersection between the private site access road and the shopping centre access;
· formal provision of a satisfactory eastern loop road through the site (pedestrian and vehicle traffic); and
· upgrading of the intersection of South Pine Road and Eden’s Crossing Road generally as proposed, but with geometry demonstrated to be consistent with the approved structure plan.”
While the two-stage pedestrian crossing is not expressly referred to in Mr Beard’s conclusions to his report, his opposition to it, at last as currently designed, is expressly set out in his report at page 5.
The three substantive grounds identified by Mr Pekol for refusing the application are set out in paragraph 63 above. Mr Pekol, consistent with Messrs Douglas and Beard, was also of the opinion that additional turning lanes into and out of the site would eventually be required.[78] Mr Pekol’s concerns regarding the two-stage pedestrian crossing are scattered throughout his report and his oral testimony. Mr Pekol accepted that while “conceptually” Mr McClurg’s design would mitigate the impacts of the proposal at the Bunya Park Drive intersection, it did not adequately provide for future expected traffic growth. According to Mr Pekol, while the appellant would not be required to actually construct double right turn traffic lanes into and out of the site as a part of its development works it should be required to provide and allow for additional lanes and other necessary works in its design and construction of the shopping centre.[79]
[78]T6-85 – T6-86.
[79]T6-98 L30 – 55, T6-99 L1 – 25.
On balance I prefer the evidence of Messrs. Beard, Pekol and Douglas to that of Mr McClurg where it differed in respect of traffic issues. It is not just a question of numbers, overall I found the combined evidence of those engineers more persuasive.
Notwithstanding their genuine concerns, in the best of engineering traditions, all considered that an acceptable solution could be found. According to Mr Beard, he would be surprised if the traffic problems could not be solved.[80] Mr Pekol also considered that the traffic impacts generated by the proposal had to be considered in the light of an overarching traffic structure plan for the area, but, like Mr Beard, also seemed confident that solutions could be found.[81] Mr Douglas was not as robust as Messrs Beard and Pekol but nonetheless did not rule out an acceptable traffic solution being achieved, albeit incorporating or at least providing for some form of “loop road” involving land to the north of the site.[82] The advantages of at least incorporating into the design of the proposal provision for future access to the north were also advocated for by Messers. Beard and Pekol.
[80]T7-14 L25 – 55; also T7-4 L35, T7-8 L45 – 55.
[81]See e.g. T6-85 L1 – 20, T6-98 L30, T6-99 L1 – 60.
[82]T6-62 L50 – T6-64 L1 – 55.
On balance, the traffic engineering evidence leads me to conclude that while the roadworks presently proposed are not sufficient to adequately address the traffic ramifications associated with the proposal, it is reasonably likely that acceptable traffic solutions could be found after further consideration of an overall master plan or structure plan which would address but not be necessarily limited to:
· further turning lanes at the Bunya Park Drive intersection;
· the pedestrian crossing;
· provision for future development on land north of the site;[83]
[83]As the traffic evidence evolved the issue of centrality insofar as public transport and walk in shoppers were concerned became of lesser importance to the traffic engineers.
Conclusions
For the reasons given[84] any tension between the proposal and those parts of the scheme dealing with character, amenity and hierarchical issues is very much at the lower end of the scale.
[84]At paras 43-59 above.
I also consider that the conflict between the proposal and the zoning of the site is of a relatively low order for the following reasons:
(i) the scheme allows for the establishment of new centres within the urban locality (provided it is at an appropriate location);[85]
(ii) the land is not required for sport and recreation purposes, a factor clearly relevant to the Council’s decision to exclude the site and the adjoining land accommodating the tavern and proposed motel from its sport and recreation options. Ample land remains in the sport and recreation zone to accommodate future expansion of sport and recreation facilities and amenities;
(iii) the site is at the very western fringe of the zoned land fronting South Pine Road and the introduction of the tavern and motel into the zoning would have materially altered the public expectations for the land. In this regard, while it is accepted that the approved development should not be treated as a precedent justifying otherwise inappropriate piecemeal development, it is a relevant fact in considering the proposal in its real environment.
[85]Exhibit 4, p 46.
Contrary to the Council’s submissions,[86] these facts and circumstances lead me to conclude that this proposal does not constitute a serious departure from its obvious planning intent nor necessarily a significant change in planning strategy.
[86]Written submissions at paras 33 and 34.
Unlike the situation concerning the zoning of the land, the conflict with SO 14 is significant. Contrary to the intention of that outcome, the site is located at the western-most extremity of its catchment on the opposite side of South Pine Road. However, this conflict has to be considered in context. No appropriately zoned or otherwise designated land exists which would satisfy SO 14. In fact, no suitable alternate site was able to be identified which could satisfy existing consumer needs and SO 14. Further, the site is situated adjacent to a major arterial road which, subject to the reservations expressed above concerning traffic issues, is consistent with the objects of SO 14(2) and (3). Further, given the low numbers of walk in shoppers predicted, the centrality of the site for pedestrian access does not seem to be of particular significance and no specific public transport concerns were raised. Finally, notwithstanding its unusual location at the extremity of its catchment area, the proposal will not materially impact on the viability and vibrancy of existing centres.
All of these factors tend to militate against the appropriateness of a strict application of SO 14(1) in the circumstances of this appeal.
As identified above there is a strong level of economic need for a further full-line supermarket. That such an economic need exists is of itself not necessarily sufficient to justify approval. This case does not involve a significant population being entirely denied a choice of full-line supermarkets as a level of accessibility to such amenities already exists.[87]
[87]Mr Brown T 5-17 L 15 – 20.
At page 2 of his report[88] Mr Norling concluded:
“Whilst there is an economic need for an additional supermarket in this area and while the fate of this application is ultimately a matter for the court based upon all of the evidence, it is my opinion that there is a lack of community need for the proposed development as it would not offer sufficient community benefits (in terms of location, convenience and accessibility) nor provide an alternative trader not already represented in the locality and no planning need as the site is not a suitable site, is not supported by the Planning Scheme and would undermine the hierarchy of centres in the area.” (emphasis added)
[88]Exhibit 17.
Mr Norling’s concerns about there being a lack of community need seem to be in conflict with a number of areas of apparent agreement in the economist’s joint report where both economic and community need were recognised.[89] And, as addressed above, Mr Norling’s concerns really centred around the location of the site having regard to the outcomes prescribed in SO 14.[90]
[89]E.g. Exhibit 5 para 27, 39 and 54.
[90]T2-68 L1 – 30.
That the present overtrading situation leads to consumer inconvenience at a number of levels is not disputed.[91] Nor is it disputed that the proposal would offer a more convenient centre to the relevant catchment.[92] Although, at least insofar as the supermarket is concerned, it is unlikely that the proposal will have any significant impact on variety or price.
[91]T2-66 L10 – 30.
[92]T2-75 L1 – 10 per Norling, Exhibit 10 at pp 8 and 20 per Mr Dwayne and T5-48 L – 15 per Mr Brown.
In terms of savings in travel time matters of minutes only are involved. And, at least as far as peak hours are concerned, travel time would only be materially improved for a number of shoppers if the traffic issues identified by the traffic engineers are resolved. However, the evidence is that having regard to the make up of the catchment area[93] convenience is a highly significant consideration and there is clearly room for further supermarket floor space providing greater convenience for the local population.[94] In Watts & Hughes Properties Pty Ltd v Brisbane City Council[95] it was said:
“Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire. A thing is needed if its provision, taking all things into account, improves the physical well-being of the community…. Need does not connote a pressing urgency but relates to the well-being of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality.” (citations removed)
[93]Exhibit 5 para 27.
[94]Exhibit 5 para 50 refer also to Mr Duane at T2-12 L15 – 45, T2-14 L1 – 20 and T2-29 L20 – 60.
[95](1998) QPELR 273 at 275.
In Isgro v Gold Coast City Council[96] Wilson SC DCJ (as he then was), after citing with approval the above passage from Watts & Hughes Properties, went on to say:
“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community… there is a latent unsatisfied demand which is either not being met at all or is not being adequately met…
This Court has been prepared to find that a need exists, despite the presence of similar businesses in the locality. Generally speaking, however, those decisions have been confined to circumstances where the proposals were likely to provide benefit by way of a greater level of convenience to patrons…. At the other end of the spectrum are cases in which such facilities as a new service station, or cinema complex would add to a consumer’s area of choice but not noticeably improve the wellbeing of the community, or improve the services and facilities available in a locality where existing businesses plainly met demand.” (citations deleted).
[96](2003) QPELR 414 at paras 21 and 26.
While it might be fairly said that full-line supermarket options already exist which, to an extent, service existing demand, it is also tolerably clear that the demands of these particular catchment areas are not being met. As Mr Duane put it:[97]
“In an economic sense; well, the good planning here is that people on the north side of the river who don’t have access to a full-line supermarket close to their homes in that area, will have access to it, as compared with having to cross to the river (sic) into centres which are already busy and congested and trading at above benchmark level….
The good planning is that it helps enormously in terms of convenience for that population”.
[97]T2-37 L5 – 18.
The proposal would, as Wilson SC DCJ put it in Isgro, improve the ease, comfort, convenience and efficient lifestyle of the community. There is a need which is not being adequately met. That there is no alternate site which could meet this demand, at least in the short term, is also a relevant consideration in this context.
In circumstances where community wellbeing will be materially improved by the proposal and its conflicts and/or tensions with the planning scheme are at the lower end of the scale there are, in my view, sufficient grounds to justify the proposal despite the conflicts.
Usually, such a finding would lead to the appeal being allowed. However, here there is too much uncertainty surrounding the traffic issues to allow that to happen at this stage. Such uncertainties contained in the appellant’s case would usually lead to dismissal in most forms of civil and, in particular, commercial litigation. Proceedings such as this do not fall into that category. Significant community issues are involved in addition to the commercial interests of the appellant.
Had it been the situation that the engineers involved expressed the view that the traffic issues were insoluble or could only be solved with major and complex roadworks, I would have dismissed the appeal. However, that is not the case. As I have already pointed out, the three traffic engineers presently opposed to the proposal seem confident that solutions acceptable to the Council and the Chief Executive are achievable. Whether those solutions area acceptable to the appellant on a commercial basis or for whatever other reasons would of course be a matter for it.
On behalf of the appellant it was submitted to the effect that if, but for the traffic issues, I was “otherwise minded” to allow the appeal, I should adopt a similar course to that of Rackemann DCJ in Metroplex to allow further consideration to be given to a traffic master plan.[98] For the reasons set out above, but for the traffic issues I would have upheld the appeal.
[98]Appellant’s written submissions at para 57, and T7-64 L20 – 50.
In Metroplex Management Pty Ltd v Brisbane City Council & Ors[99] Rackemann DCJ was confronted with an application for preliminary approval for a material change of use which raised a raft of substantive matters including traffic issues. For reasons it is not necessary to go into, His Honour dismissed the appeal. However, after referring to the traffic issues involved[100] said:[101]
[99](2009) QPEC 110.
[100]Paras 148-156.
[101]At para 155.
“It was suggested that another course is open, in the event that the court was otherwise minded to approve the application in whole or in part. That would involve publishing reasons indicating what the court would otherwise be prepared to approve (but not granting any approval at this stage) and adjourning the further hearing of the appeal to allow the modelling to be completed and the parties to negotiate an infrastructure agreement. That would involve publishing reasons on a hypothetical basis. That is within the court’s power, but is not something which the court would ordinarily encourage or countenance. It does however, have some attraction in this particular case.”
And later:[102]
“Approval at this stage would be premature on traffic grounds. Had I otherwise been minded to approve the application in whole or in part, I would, not without some hesitation, have been prepared to adjourn the further hearing of the appeal (without granting any approval) to allow the parties time to obtain modelling results and to pursue negotiations about a possible infrastructure agreement.”
[102]At para 235.
Metroplex Management Pty Ltd appealed the decision to dismiss its application.[103] Again for reasons it is unnecessary to go into here, that appeal was successful. However, during the conduct of the appeal, the Ipswich City Council argued that this Court had no power to adjourn the hearing to allow further evidence to be adduced to address the traffic issues. Chesterman JA (with McMurdo P and Atkinson J agreeing) rejected that submission. His Honour said:[104]
[103](2010) QCA 333.
[104]At paras 98-103.
“By notice of contention the Ipswich City Council contended that on the state of the evidence the applicant had failed to discharge the onus of showing its application should have been approved, and that the P & E Court had no power to adjourn the hearing to allow further evidence to be adduced. Alternatively it submitted that to allow an adjournment was a miscarriage of justice and a misuse of the power of adjournment. The contention is based upon the principle that a court will not decide hypothetical disputes or give advisory opinions with respect to a state of fact that might, or might not, exist. Reliance was placed upon Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 (359):
‘It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case.’
It was pointed out that the applicant chose how to conduct its appeal and that the consequence of not adducing sufficient evidence to satisfy the P & E Court that the development’s impact on traffic would be acceptable had the inevitable result that it failed to make out its case.
The objection to the course favoured by the primary judge is misconceived. The court was not invited to, and did not indicate that it would, give what was in effect an advisory opinion or decide a hypothetical dispute. The issue, whether traffic impact precluded the development, was a very real one. There was nothing hypothetical about it. The point was that the evidence was insufficient to allow an adjudication. The proposal was to adjourn the further hearing of the appeal to allow additional evidence to be adduced. Ultimately the P & E Court could only give its approval to the application if satisfied that the impact of the development on traffic was within appropriate limits. There was nothing wrong in granting an adjournment to afford the parties, applicant and respondents, an opportunity to obtain sufficient evidence to allow the issue to be decided one way or the other…
Here the P & E Court proposed a course that would have allowed parties an opportunity to marshal and challenge evidence.
There was, I think, much to commend that course. The appeal had been lengthy. The subject matter of the appeal was of public interest as well as private benefit. It concerned the appropriate development of a very large parcel of derelict land in the western, expanding, part of Brisbane. The appeal involved public as well as private money. Two City Councils and State Government departments were parties. The P & E Court is a specialist court, one function of which is to aid orderly development within the state. The course of action advocated by the Ipswich City Council would have wasted all the time and money spent on the hearing, as well as the P & E Court’s expertise. The alternative gave rise to the possibility that an appropriate development with suitable conditions as to traffic and environmental protection, fixed by the P & E Court, could be approved, enhancing the economy of the region.”
There are a number of features which distinguish Metroplex from this case. First, it is almost certain that the regional economic impact of the development proposed in Metroplex would significantly exceed that generated by the subject proposal. Second, Metroplex was concerned with a preliminary approval for a material change of use. It is tolerably clear that as at the date of the hearing in this Court no final traffic solution was achievable for the Metroplex proposal until significant traffic studies had been carried out, including a joint study between the Brisbane City Council and the Department of Main Roads (as it then was). That is not the case in this appeal. As I understand the evidence, the adoption of roadwords of the type advanced by Messers Pekol and Douglas would have likely satisfied the Chief Executive’s and the Councils traffic concerns. The appellant did not adopt those works and made a deliberate choice to contend for a different (and presumably cheaper) traffic solution. This is not really a case where the appellant was unable to marshal evidence to address the traffic concerns raised by the Respondents.[105] Finally, in Metroplex the council could point to no disadvantage or injustice it might suffer if an adjournment were granted. I have no evidence either way about such matters.
[105]This was not the situation in Metroplex; para 15 per McMurdo P and paras 101 and 102 per Chesterman JA.
There are however, also, a number of similarities between the two cases. Each occupied a considerable amount of court time, and involved multiple parties including a local authority and a government department. Each involve projects which, if proceeded with, would provide a public benefit. In the case of the subject proposal the economic impacts would not be as great, but, in addition to meeting a public need it could also be expected to generate at least a degree of additional employment opportunities.
In my view the competing policy considerations involved in adopting the course proposed by the appellant are: ensuring procedural fairness as between the parties, the need for finality in litigation and the discouragement of the prolongation of litigation. The conduct of a party, including its choice of tactics, is a relevant consideration in this regard. On the other hand, to dismiss the appeal at this stage would be to deny, at least for a significant period of time, an existing community need.
It is with some reservation that I have reached the conclusion that the public interest considerations associated with the proposal outweigh the countervailing policy considerations referred to. To dismiss the appeal at this stage would not only result in a denial of a clear need for the proposal but also fail to give proper regard to the genuine prospects of acceptable traffic solutions being achieved. To adopt the words of Mr Hinson SC, it might be premature at this stage of the proceedings to “shut the door in the appellant’s face.”[106]
[106]T7-32.
In my view, at least at this stage of the proceeding, the preferable course would be to adjourn the hearing for a limited period of time to allow the appellant the opportunity to prepare a traffic master plan that resolves the concerns raised by the Chief Executive and the Council and, within reason, those raised by Ms George. .
However, I do not consider that it would be appropriate to make any final orders concerning the future conduct of this appeal before providing the Respondent and Co-Respondents the opportunity to be heard in respect of the course foreshadowed in paragraph 100.
For the reasons given I find as follows:
1. But for the traffic issues I would have upheld the appeal.
2. However, approval at this stage would be premature on traffic grounds.
And make the following order:
1. I will hear from the parties concerning the future conduct of he appeal.
Conclusions under IPA
For completeness, I should point out that had this appeal been decided pursuant to the provisions of IPA, my conclusions would have been the same. No representative of the parties involved in this appeal contended otherwise. The proposal does not involve any real compromise of DEO’s which would mandate the dismissal of the appeal. And, otherwise, the facts, circumstances and considerations involved in resolving conflict between the scheme and any proposal are essentially the same under IPA[107] as SPA.[108]
[107]Section 3.5.14.
[108]Section 326(1)(b).
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