Comkey Pty Ltd v Caboolture Shire Council - [2005] QPEC 114

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Comkey Pty Ltd & Anor v Caboolture Shire Council & Ors [2005] QPEC 114

PARTIES:

COMKEY PTY LTD (ACN 098 487 739) and
HEAVEN DEVELOPMENTS PTY LTD
(ACN 092 442 549)
Appellants

v

CABOOLTURE SHIRE COUNCIL
Respondent

and

CUPOSA PTY LTD
First Co-Respondent

and

WARWICK SINCLAIR and LYNETTE SINCLAIR
Second Co-Respondents

and

STATE OF QUEENSLAND
Third Co-Respondent

FILE NO/S:

BD217/05

DIVISION:

Planning & Environment

PROCEEDING:

Applicant Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

5 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14,15,16,17 and 18 June 2005

JUDGE:

Rackemann DCJ

ORDER:

Appeal to be allowed

CATCHWORDS:

PLANNING & ENVIRONMENT – development of a shopping centre and tavern

Need – public & community – timing of demand – impact on existing facilities

Town planning – zoning – whether conflict with Strategic Plan - whether sufficient planning grounds to justify approval despite conflict

Site Suitability and Amenity – Noise – Traffic access – land subject to flooding – fill below flood line – social impacts

Cases

All-A-Wah Carapark v Noosa Shire Council [1989] QPELR

155

Skateway Pty Ltd v Brisbane City Council [1981] APAD 417

Bunnings Building Supplies Pty Ltd v Redland Shire Council [2000] QPELR 193

Jedfire Pty Ltd v Council of the City of Logan & White[1995] QPELR 41

Kentucky Fried Chicken Pty Ltd v Gantidis [1979] 140 CLR 657

Kotku Education & Welfare Society Inc v Brisbane City Council [2005] QPELR 267

Mooloolah Commercial Pty Ltd v Caloundra City Council & Ors [2005] QPEC 29

Watts and Hughes Properties Pty Ltd v BCC [1998] QPELR 273

Weightman v Gold Coast City Council [2002] 121 LGERA 161

Legislation

Integrated Planning Act 1997

Liquor Act 1992

Local Government (Planning & Environment) Act 1990

COUNSEL:

Mr Hinson SC, with him Mr Haydon for the appellants

Mr Ure, of counsel, for the respondent

Mr Hughes SC, with him Mr Williamson, of counsel, for the first co-respondent

Mr Skoien, of counsel, for the second co-respondents

Mr Cochrane, of counsel, for the third co-respondent

SOLICITORS:

Wendy Hart for the appellants

King and Company for the respondent

Connor O’Meara for the first co-respondent

Butler, McDermott & Egan for the second co-respondent

Crown Law for the third co-respondent

TABLE OF CONTENTS

Introduction

Page

2

Need

(i)        need for facilities proposed

(ii)       timing

(iii)      impact on existing facilities

(iv)      public or community need

(v)       need for additional land

4
4
6
7
8
8

Town Planning

(i)        zoning

(ii)       the strategic plan

(iii)      the draft scheme

(iv)      the SEQ regional plan

(v)       the town planners
9
9
10
17
18
18

Site Suitability and Amenity

(i)        noise

(ii)       traffic

(iii)      acid sulphate soils

(iv)      flooding

(v)       social impacts

(vi)      submitters and perceptions

(vii)     overall assessment
19
19
20
23
23
26
27
27

The Cuposa Application

Control of the Site

Conclusion

28

28
28

INTRODUCTION

This applicant appeal is against the deemed refusal of an application for a development permit for a material change of use to permit the development of a shopping centre and tavern on land situated at the corner of Beachmere Road and James Road, Beachmere, having an area of 3.186 hectares and more particularly described as Lot 13 on RP855072.

The south-eastern corner of the land is occupied by a childcare centre, which will remain. Other than for an existing house, which is to be removed, the subject site is a largely cleared “greenfield” site.

The proposal, is for a shopping centre with a GFA of 1,650 m² and a tavern with a GFA of 1,100 m². The shopping centre is proposed to accommodate an 800 m²supermarket, together with 850 m² for specialty shops, food outlets and commercial uses. The tavern is proposed to incorporate the following components:

(a)         bottle shop– 250 m²
(b)         bistro (seating for 100) and kitchen – 300 m²
(c)         bistro bar – 100 m²
(d)        sports bar and coldroom – 280 m²
(e)         toilets – 75 m²
(f)         children’s play area – 30 m²
(g)         common areas – 65 m²

Beachmere is a relatively isolated coastal community. The nearest major urban area is Caboolture, the town centre of which is located approximately 13 kilometres to the north-west. The residents of Beachmere who, in 2004, numbered some 3,400 persons, are currently served by an estimated 1,900 m² of commercial floor space, of which 1,550 m² is for retail uses. These facilities are in two separate nodes. The majority of the facilities are located near the intersection of Beachmere and Bishop Roads, to the east of the subject site. That node comprises an aggregation of developments which incorporates a strip development facing Bishop Road, a modest sized plaza-style development (Beachmere plaza) facing Beachmere Road and two other businesses. A smaller node, of five tenancies, is located approximately 300 metres further to the east, on Biggs Avenue. There is currently no tavern in Beachmere.

The respondent, which did not decide the application within the prescribed period, subsequently resolved to defend the appeal on a number of grounds including the absence of need and conflict with the planning documents. The first co-respondent is a competing developer, who proposes similar (although somewhat larger) facilities in conjunction with further residential development on nearby land further to the west. It is also concerned with a residential subdivision to the south. It does not contest that there may be a need for facilities of the type proposed, but contends that the subject site is inappropriate. The second co-respondents are concerned with the existing Beachmere plaza, within the main node and, amongst other things, contest the need for the proposed shopping facilities. The State of Queensland is interested in the Caboolture-Beachmere Road, from which the subject development would gain access. The State supported its decision to approve access, subject to conditions.

NEED

(i) Need for the Facilities Proposed

The need for additional facilities was examined by two economists, namely Mr Coughlin (who was called by the appellants) and Mr Norling (who was called by the respondent). They participated in the preparation of a joint report which summarised areas of agreement and disagreement.

The economists were in agreement that a tavern was needed in Beachmere, although Mr Coughlin thought that the need was somewhat stronger than did Mr Norling. The economists agreed that the proposed tavern would provide community benefits by way of increased levels of accessibility (the nearest existing tavern is approximately 9 kilometres away), the provision of a broader range of facilities than the current bottle shop and bowls club and the provision of a greater level of choice. The proposed location of the tavern is suitable from their perspective. The social planners, whose evidence is referred to later, also agreed that there was a need for a facility of this type in the area of Beachmere.

Mr Norling thought that, for the Beachmere community, a tavern of only about half the proposed size was required, however I accept Mr Coughlin’s evidence that the scale of the tavern is appropriate and would desirably allow for the range of components, referred to above, to better serve the community.

I am satisfied that there is a public or community need for the proposed tavern.

In assessing the need for the shopping centre component of the application, the economists had regard to future population. While Beachmere’s growth rate in recent years has not been particularly high, there is considerable developer interest in the area, as evidenced by a number of development proposals in recent times. These include a 124 lot retirement village development which has been approved, a proposal to extend that village to 800-1100 dwellings[1], the “Elouera Waters” project (which proposes to provide more than 300 residential allotments), 92 lot and 73 lot residential developments proposed further to the south and other proposals, shown on Figure 7 to Mr Humphrey’s report. These proposals are however, not confined to land which is appropriately zoned or designated pursuant to the existing or draft planning schemes.
[1]Mr Coughlin says 800 (Ex5 p4) while Mr Humphrey’s says 1100 (Ex 25 Fig7)

In their joint report, the economists considered a future population for Beachmere of 4,680 persons (about 600 households more than in 2004), calculated by reference to development of areas appropriately designated under the Draft Planning Scheme. The significant further residential development proposed within Beachmere, on land not appropriately designated, was appropriately, but conservatively, excluded in considering the likely future population for Beachmere.

The points of agreement between the economists, relating to the proposed shopping centre included the following:

1.In view of its distance from major shopping facilities, Beachmere can and should host a greater selection of shops than would typically be found in a similar sized community located in a more urban environment.

2. There is a need to provide for additional shopping facilities.
3.The proposed development would increase the levels of choice and product, service and price ranges for the Beachmere community.

Mr Norling and Mr Coughlin disagreed about the quantum of additional facilities which are needed. Mr Coughlin considered that there was a need for the quantum proposed by the appellant. It appears that is not just a happy coincidence. The appellants initially envisaged a larger proposal. The current proposal coincides with the need assessed by Mr Coughlin. Mr Norling, on the other hand, saw a need for additional retail floor space in the order of only 700 m² which, allowing for some take up of floor space by commercial (rather than retail) uses, would justify development of a further 850 m².

There was also reference to an assessment by Economic Associates, on the instruction of the first co-respondent, which assessed a need for 2,115 m² of additional retail/commercial floor space. I have not given weight to that assessment however, because the report was not admitted into evidence and its author was not called as a witness.

The difference between Mr Coughlin and Mr Norling is influenced by matters of assumption and judgment. Mr Norling’s approach assumed that the neighbourhood shopping facilities contained within Beachmere would attract 25 per cent of the available retail expenditure base, to which he added a level of rogue expenditure (turnover from non-trade area residents) in the order of 5 per cent, to arrive at a potential expenditure. He then used average productivity levels to operate neighbourhood shopping facilities at viable levels, in order to conclude that the Beachmere population could support about 2,250 m² of retail facilities. He deducted the space currently used for retail purposes to arrive at the conclusion 700 m² more was needed[2]. I accept Mr Coughlin’s evidence that this is overly conservative.
[2]Mr Norlings approach is summarized in paragraph 17 of the joint report

Mr Coughlin pointed out, and Mr Norling conceded[3], that the reported trading performance of the existing small IGA Supermarket (which is trading significantly above industry averages) suggests that the existing shopping facilities within Beachmere already attract in excess of the 25 per cent assumed by Mr Norling, notwithstanding the relatively small (450 m²) area available to the supermarket. It is likely, with the advent of the proposed development and the increased levels of choice, product, service and price ranges and the competitive response from existing developments, that the share of expenditure retained in the Beachmere area would increase.
[3]T 210

Of significance to the capture of local expenditure is Beachmere’s relative distance from other shopping facilities and its higher proportion of retired and aged residents, who would be less likely to be travelling past other facilities (as workers do on their way to and from their place of employment). There was also evidence of a general trend towards more frequent shopping trips, based on convenience, although the traditional weekly shopping expedition is not about to disappear.

As Mr Coughlin attested, it is unlikely that the proposed new development and the existing retail facilities would simply duplicate each other. The provision, on the subject site, of a modern shopping centre with suitably sized tenancies will attract interest from prospective tenants. The economic experts agreed that some existing tenants in Beachmere would relocate to the new premises, leaving some vacancies, at least temporarily, in the existing facilities. As Mr Coughlin said, one would expect a competitive response from the existing facilities, to re-tenant the vacant space. The new tenants, however, will not necessarily all be retail uses. They may well be other commercial uses which serve to complement, rather than directly compete with, the retail uses in the new development. The extent of space, in the existing developments, occupied by retail uses may change.

The development of this complementary function has an analogy in the relationship between the existing node at Beachmere and Bishop Roads and the smaller node at Biggs Avenue, which contains a doctor, a hardware store, a Thai restaurant and a real estate agent, all of which tend to be destinations in themselves, for specific functions.

The assessment of the quantum of retail/commercial floor space needed, at least in a market sense, is not an exact science, however I prefer the evidence of Mr Coughlin, whose assumptions appeared to be more appropriate, to the more conservative approach of Mr Norling.

I find that there is a public or community need to provide facilities of the type and to the extent proposed by the appellants.

(ii)Timing

In his oral evidence, Mr Norling spoke of a difference in opinion as to when the demand for additional floor space would be realised. Both economists had, by agreement, carried out their assessment on the basis of the future Beachmere population “at capacity” on the assumptions referred to earlier. Mr Norling’s opinion is that, at the current population level (assuming no growth), the quantum of existing space is sufficient (subject to the need for a larger supermarket). Mr Coughlin’s opinion, which I prefer, is that there is justification for additional floor space, even at current population levels. Neither economist however, suggested that the provision of further facilities should necessarily await the full achievement of future growth. That is consistent with their agreement, in the joint report, that “there is a need to provide for additional shopping facilities”.

Mr Norling recognised the inevitable delays between approval of development and its completion and operation. He confirmed that he was not denying a need to provide for additional facilities now, so that they are available as the growth occurs[4]. The opinion of Mr Coughlin, which I accept, is that while the development may, in the initial period, provide some more floor space than is necessary at that stage, it is sensible to build the current proposal at the one time and the degree of “over building” in the initial stages would not be undue[5].

[4]T185

[5]T34

(iii)Impact on Existing Facilities

In considering the likely extent of impact on existing facilities, it must be remembered that, whether a proposed facility would meet a need is decided from the perspective of the community, rather than that of a commercial competitor. Town planning is not generally concerned with the protection of existing businesses from the effects of competition. Indeed, competition and choice are matters which can provide for a public or community need[6].
[6]Bunnings Building Supplies Pty Ltd v Redland Shire Council 2000 QPELR 193 at 198 CD

The likely economic impact on existing competitors may be of significance where the extent of competition would cause an overall adverse effect on the extent or adequacy of facilities available to the community[7]. Such an overall adverse effect might occur, for example, where an existing outlet is depressed and not replaced with another. In this case the economists agree that any loss of tenancies in the existing development would be made good by the new facilities to be located within the proposed centre.
[7]Kentucky Fried Chicken Pty Ltd v Gantidis 1979 140 CLR 657 at 687

Mr Norling’s opinion is that, with the development of the proposal, many retailers would struggle to achieve viable turnover levels, leading to a lowering of the standards of service and range, higher turnovers of tenants and increased vacancy levels. That opinion was however, influenced by his conservative views about the level of need for further facilities. I prefer Mr Coughlin’s evidence in that regard. I also accepted Mr Coughlin’s evidence that:

(i)The proposed retail centre will meet a need for additional retail facilities in Beachmere in the context of an increasing local population.
(ii)The proposed centre will expand and improve the retail facilities in Beachmere, with a likely increase in the proportion of expenditure retained within Beachmere.
(iii)Some of the vacancies would arise from existing tenants relocating to the new centre to achieve larger and/or more suitable premises, without any reduction in the retail offer to the community.
(vi)While some vacancies will occur, the advent of the proposed development would be expected to lead to competitive responses (for which there is presently little incentive) and re-tenanting over time.

I find that the overall effect of the proposal on the extent and adequacy of facilities for the public will be positive.

I am conscious that the existing facilities are on land which is appropriately zoned for the purpose and included in the Local Centre zone under the Draft Planning Scheme. I am satisfied that blight is unlikely and that the land is likely to continue to be used consistently with its existing and proposed zonings.

(iv)Public or Community Need

While I have dealt with the evidence of the economists, I am conscious that the concept of need extends beyond an analysis of market demand. Need, in a planning sense, suggests an objectively perceived need for the development, and connotes the idea that the physical well-being of a community, or some part of it, can better or more conveniently be served by providing the means for ensuring the provision of that facility, subject always to other considerations of a town planning kind[8]. As the court said in Watts and Hughes Properties Pty Ltd v BCC [1998] QPELR 273 at 275:

“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 or facilities available in the locality…”

[8]All-A-Wah Carapark v Noosa Shire Council 1989 QPELR 155 at 157; Skateway Pty Ltd v Brisbane City

Council 1981 APAD 417 at 424

It has already been noted that the economists agreed, in the joint report, that “the proposed development would increase the levels of choice and product, service and price ranges for the Beachmere community”. Mr Humphreys is of the view that Beachmere already has a reasonable range of shops, but that is not determinative of the issue of public or community need.

The proposal would, I am satisfied, meet a public or community need for additional retail facilities for a growing population by the provision of modern, convenient development (including tavern facilities for which there is a need, but no current provision), appropriate to meet the need, with consequent increased competition, and competitive responses, to the benefit of the community. The facilities are proposed on land adjacent to existing urban development, which I am satisfied is suitable for the proposed development, including from an amenity perspective.

I have considered the opinions not only of the economists but of the other witnesses who gave evidence of relevance to the issue, including Mr Humphreys and Mr Sinclair. I am nevertheless satisfied that the proposal would meet a public or community need in the relevant sense.

(v) The Need for Additional Land

The application was made under the Transitional Planning Scheme. Under the Repealed Act[9], it would have required a scheme amendment. Pursuant to the transitional provisions in the IPA, the application was processed as one for an impact assessable material change of use, which was required to be assessed and decided by reference to the provisions of the Repealed Act, including s 4.4(3). That provision required an assessment of, amongst other things, the balance of zones in the Planning Scheme area and the need for the proposed Planning Scheme amendment.
[9] The Local Government (Planning & Environment) Act

There is no vacant appropriately zoned land in Beachmere available to accommodate the proposal. Existing appropriately zoned land is developed with existing facilities. The subject site is on available vacant land, otherwise suitable for the development, situated relatively closely to the main node and adjacent to existing urban development.

Mr Sinclair gave evidence that he was considering an internal rearrangement of his centre, in order to make further space available to the supermarket, but that concept has not progressed and would not provide for the extent of additional facilities proposed or which, I am satisfied, are needed.

I am satisfied of a need for further land, beyond that which is appropriately zoned, to meet the need. The issue of whether, from a town planning perspective, that should occur on the subject site is discussed below.

TOWN PLANNING

(i) Zoning

The land is included in the Special Rural zone under the Transitional Planning Scheme and is a prohibited form of development within that zone. A scheme amendment would have been required under the Repealed Act.

The statement of intent for the Special Rural zone provides that:

“The purpose of this zone is to –
(a)provide an area of restricted rural activities which are not detrimental to the adjoining urban area or anticipated urban area;
(b)cater for expansion of the urban area in accordance with the strategic plan as required; and
uses in this zone should be generally primary industry activities which do not unduly compromise the future use as intended in (a) and (b) above.”

The Special Rural zone is not necessarily an “end zone”, but may operate as a “holding zone” to cater for expansion of the urban area in accordance with the Strategic Plan. The subject site is contiguous to the urban area of Beachmere. The Strategic Plan is considered below.

The existing shopping facilities in Beachmere are in the Local Shopping Zone, the intent for which is “to meet the convenience needs of nearby residents”. The proposed facilities would also serve that intent, but the application seeks permission to use the shopping centre component for the uses permitted in the Central Commercial zone. It was suggested that the proposal conflicted with the intent of that zone which is “to provide for a wide range of commercial retail and service facilities in centralised areas or areas of high levels of access”. Apart from the existing facilities at Caboolture, Bribie Island, Deception Bay and Burpengary (which will be consolidated and expanded upon), new concentrations are only permitted where a clearly definable catchment population can be identified.

As Mr Challoner pointed out, the application is for a shopping centre of a nominated size. The application only seeks approval to use that shopping centre for the uses which are permitted in the Central Commercial zone[10]. A comparison between the uses permitted in the Central Commercial zone and the Local Shopping zone reveals substantial overlap. As Mr Brown said[11] “the only additional permitted use which is likely (in practice) to be carried out on this site is “restaurant”, the definition of which includes activities which would normally form part of a local shopping centre and would be a desirable addition to the mix of specialty tenancies to be located within the proposed centre.
[10]Ex 26 p 13
[11]Ex 24 p 22

I also agree with Mr Challoner that, as to the other two additional uses permitted in the Central Commercial zone “the Shopping Centre component is unlikely to attract a reception centre and neither is it likely to attract a retail showroom in view of its size. If it did, it would be so small as to be of no consequence”. I do not consider that the application should be refused because of the reference to uses permitted in the Central Commercial zone.

(ii) The Strategic Plan

The Transitional Planning Scheme includes a Strategic Plan. The application must be refused if it conflicts with the Strategic Plan and there are not sufficient planning reasons to justify approving the application despite the conflict. That requires the court to examine the nature and extent of conflict, determine whether there are any planning grounds which are relevant to that part of the application which is in conflict with the Planning Scheme (and if the conflict can be justified on those planning grounds) and, finally, to determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict[12].
[12]Weightman v Gold Coast City Council 2002 121 LGERA 161 at 173

Pursuant to the Strategic Plan, the subject land is partly in the Rural Areas and partly in the Residential Areas. No part of the land is within the Commercial Areas. Indeed, there is no land in Beachmere within the Commercial Areas. Other than for Open Space areas, Beachmere is otherwise included in the Residential and the Rural Areas. As Mr Challoner said[13] “I tend to think that if the provision of additional shopping facilities is justified at Beachmere, something which is probably accepted by all parties, then in the absence of a designated Commercial area, they must be accepted in either the Residential Area or the Rural Area”.[14]
[13]Ex 26 p10
[14]It should be noted that not all parties accept the need for additional shopping facilities. Mr Sinclair in particular does not acknowledge need beyond some expansion of the supermarket.

The intent for the Residential Areas is that they be developed “essentially for residential purposes”, but incorporating uses which service the residential area and are normally found as an integral or ancillary part of such an area (such as childcare centres and local shops).

Objective 5 is that “non-residential uses which are of a minor nature or ancillary to a residential area shall be encouraged.” The proposed facilities may not be ‘minor’ but are ancillary to the Residential Area. Implementation Provision (a) makes express references to schools, churches, child care centres, local shops, general stores and, in some cases, motels, as examples of ancillary non-residential uses. The list is not exhaustive. The existing facilities in Beachmere, including the retail and licensed facilities, are within the Residential Area and accommodating the need by expanding the existing main node, would also involve development in the Residential Areas. The provision of a tavern and shopping centre, of the scale proposed, would seem appropriate subject to consideration of Implementation Provision (b) which provides that, in considering an application for such facilities, Council will ensure that the use will not detrimentally affect the amenity of existing and future residents in that area.

Of relevance to the proposed shopping centre component is Objective 10, which is “to develop a hierarchy of local centres and general stores to meet the convenience needs of the people”. The Implementation Provisions to that objective are as follows:

(a)In conjunction with the continued expansion of residential areas, a system of local shops and general stores will be permitted to develop in appropriate locations to provide for the convenience needs of the population.
(b)The local shopping zone will provide for facilities containing between 500 m² and 4,000 m² of total use area and having fewer than 20 stores. In considering an application for such facilities Council will ensure that the use –
(i)        has a clearly identifiable catchment area for which
retail facilities offering convenience goods is
desired;



(ii)is of such a size and location to ensure it is directed


at providing a genuine service to the catchment area


and is unlikely to incorporate uses which would


attract people from outside the catchment area;

(iii)      is located on a site which would provide a high level
of accessibility to the catchment population;


(vi)      is of a size and in a location which would not
detrimentally affect the retail hierarchy in the
functioning of existing centres; and



(v)       does not impact on the residential amenity of the
surrounding area.

The proposal to provide a local shopping centre to service the Residential Areas would appear to be potentially consistent with that objective, subject to consideration of the matters referred. For reasons discussed herein, the proposal is satisfactory. The proposed centre is in an appropriate location to provide for the convenience needs of the population, is of an appropriate scale, would service the Residential areas of Beachmere, is of a size and location which would directly service that catchment, is located on a site which would provide a high level of accessibility and would not detrimentally affect the retail hierarchy or residential amenity of the surrounding area.

Implementation provision (b) speaks of facilities being provided in the Local Shopping zone. The subject land is not so zoned and, under the Repealed Act, a scheme amendment would have been required if it were to be included in that zone. In this case the application seeks to use the shopping centre component for uses permitted in the Central Commercial zone, rather than the Local Shopping zone. There are however, for the reasons stated earlier in the discussion of the zoning provisions, sufficient planning grounds to justify approval even if that was thought to introduce a level of conflict.

There were a number of other objectives of the Residential Areas which were raised in the issues notified by the second co-respondent and referred to in the report of Mr Brewer, but which did not feature prominently in argument and do not take the matter much further. I will deal with each briefly:

Objective 1 – “to consolidate existing residential areas”. It was contended that the proposal conflicted with implementation provisions (a) and (c) on the basis that it “introduces a commercial use of inappropriate scale”. I do not consider that the proposal is of an inappropriate scale, or that it would conflict with the stated implementation provisions.

Objective 4 – “to ensure residential development occurs on land which is free of flooding, stability, drainage or other engineering problems.” This objective seems to relate to residential development. To the extent this objective is relevant to non-residential uses, implementation provision (a) states that the council may require detailed reports dealing with potential engineering problems. For the reasons stated later, I am satisfied that the land can be satisfactorily developed as proposed and that, in those circumstances, approval would be justified even if some conflict were thought to arise by reason of the proposal to develop land subject to flooding.

Objective 7 – to ensure residential growth does not detrimentally affect residential amenity or industrial and commercial or special purposes development by encroachment. This objective deals with the expansion of residential uses into or towards other uses, not the impacts of non-residential uses. In any event I am satisfied, from an amenity perspective, that the proposal is acceptable.

Objective 8 – “to preserve the individual identity of the townships throughout the Shire” – the implementation provisions indicates that this objective is concerned with preserving the individual townships throughout the Shire from merging and to ensure a visible break between townships. Beachmere is at no risk of merging with any other township or losing a visible break. I also do not consider that the proposal will prejudice the identity of Beachmere in any wider sense.

In so far as the retail hierarchy is concerned, a deal of attention was paid to the Strategic Plan provisions dealing with Commercial Areas. Neither the subject site, nor any other land in the Beachmere area, falls within the Commercial Areas PDLU. It is arguable whether any departure by the proposal from the provisions relating to such Areas would raise a point of direct conflict. I accept however, that the provisions, at least with respect to the retail hierarchy (which is also referred to in the provisions relating to the Residential Areas PDLU) are of relevance.

The objectives for the Commercial Areas include the establishment of a hierarchy of retail facilities through the Shire, which serve the needs of the Shire and surrounding areas (Objective 3), to promote the consolidation of existing commercial and retail areas (Objective 4) and to prevent undesirable commercial patterns from being established (Objective 5).

Implementation Provision (a) to Objective 3 provides that the Council supports the hierarchy in which the development of local retail centres will be encouraged at, amongst other places, Beachmere. The Implementation Provision goes on to state that the hierarchy (which also includes the Caboolture Town Centre, a further regional retail centre and centres at the sub regional and district levels), is based not solely on size but also on function.

Concerns were raised that, with the advent of the subject proposal, there might be some effect on the other levels of the retail hierarchy. I am satisfied that is unlikely. While the proposed development has the capacity to increase the level of expenditure retained within the Beachmere area, and cause some adjustment in the ‘offer’ in existing development, it is very likely that the facilities at Beachmere would continue to function at a local level and would not challenge other elements of the hierarchy.

A deal of attention was given to Objective 4, which promotes the consolidation of existing commercial and retail areas. The Implementation Provisions to that Objective are as follows: -

“(a) Preference will be given to those developments which consolidate and reinforce the existing commercial and retail areas.
(b) Expansion of existing zoned areas not designated on the strategic land use plan map will be assessed on the individual merits of the application having regard to the needs of the community and the proposal’s effect on the existing facilities.”

It was not disputed that there is a sound basis for the preference expressed in the first Implementation Provision, nor that the proposal would fail to qualify for that preference. That does not however, create a point of conflict. The provision expresses a “preference” in order to “promote” consolidation. That the proposal is not entitled to that “preference” does not lead to the conclusion that it is in conflict with the Strategic Plan.

Even if conflict was said to arise by reason of the proposals failure to “consolidate and reinforce” the existing node, or expand upon it, there are sufficient planning grounds, of relevance to this aspect of conflict, to justify approval notwithstanding that conflict. Of particular importance is the public or community need for which the proposal would provide, but which is unlikely to be met, at least in a timely way, if at all, by reliance on consolidation or expansion of the existing facilities in the appropriately zoned areas.

The argument about consolidation focused on the shopping centre component of the application, the prospect of achieving consolidation by expansion of the existing node at the intersection of Beachmere and Bishop Roads and the consequences of ‘fragmenting’ the provision of facilities by approval of the subject application.

It has already been observed that the existing zoned land is developed. Even leaving the proposed tavern to one side, expansion of the existing zoned areas would be required to accommodate the development of retail and commercial facilities, together with appropriate car parking, to meet the assessed public or community need. The achievement of that about the existing facilities in the main node would require: the purchase and assembly of contiguous properties currently in multiple ownerships and occupied by other (mostly residential) land uses; demolition of existing structures; possibly some redevelopment of existing facilities (which comprise separate developments with separate car parking areas fronting different streets), if an integrated centre was to be offered to the community, and a development approval, obtained in response to an application which would be subject to impact assessment (with attendant consideration of impact on the adjacent, mainly residential, land uses and public submission and appeal rights).

Difficulties of that kind may not be unique in the development industry and might, at least in theory, be able to be addressed. There is however, very little which would inspire confidence that, in the absence of the subject proposal, they would be overcome so as to provide development to meet the public and community need in a timely way, if at all. It is unlikely that the existing centre would be reasonably expanded within a reasonable time so as to meet the need.[15]
[15]See Brown T313

Apart from Mr Sinclair’s preliminary thoughts about a possible minor internal rearrangement of Beachmere Plaza (to afford the supermarket some extra space), there is no current proposal to redevelop or expand the existing facilities and no evident interest in doing so.

Mr Sinclair says that he would not hesitate to suffer the expense of redevelopment if the need arose, but he has no plans for significant redevelopment or expansion and he does not recognise the need for additional facilities. Until about four years ago, he owned a block of land in Elizabeth Street, adjoining the existing node, but sold it because he did not think there was the “slightest chance” that Beachmere could support additional facilities either by expansion of existing tenancies or by introduction of additional tenancies. His evidence was that he “simply cannot see how Beachmere can sustain additional facilities”.

The only evident developer interest in providing additional facilities, to meet the needs of the community, is the interest of the appellants and the first co-respondent in providing such facilities on competing sites removed from the existing node. Town planning cannot be overridden simply to suit developer preference, but the evidence of a public or community need, combined with the practical difficulties of meeting that need in the preferred way and the lack of any evident proposal or interest in doing so, notwithstanding interest elsewhere, satisfies me that refusing the current proposal to provide needed shopping and tavern facilities in the hope that at least the additional shopping facilities would then be provided by expansion, incrementally or otherwise, of the existing node, is unlikely to lead to satisfaction of the public or community need in a timely way, if at all, and would not be in the community’s interest.

A matter of particular debate between the town planners was the issue of the extent to which the proposed development would lead to “fragmentation”. In this respect, I prefer the evidence of Mr Brown that the proposal would create a new retail/commercial centre separate from the existing centre, but will not fragment that centre. As Mr Coughlin attested, the different centres are likely to serve complementary roles. I also do not accept that the proposal (including the tavern) would be inconsistent with the character of Beachmere.[16]
[16]See Humphreys Ex25 p31

The Implementation Provisions to Objective 5 state that the Council will “take into consideration” a number of matters in order to prevent undesirable commercial patterns from being established. Those matters include the discouragement of applications which would create ribbon development or exacerbate an existing problem, adverse effects upon existing establishments, undesirable traffic generation (in particular undesirable traffic flows through residential areas), the convenience of the public to be served by the new development (and the adequacy or otherwise car parking facilities, pedestrian access and public transport access), any adverse effect on the present or future safety and convenience of transport users or efficiency of the transport system and any adverse effect upon the existing or future amenity as a result of a proposal.

The provision does not state that a proposal will necessarily be refused if, for example, there is any adverse impact on existing establishments. The matters are required to be taken into consideration. I have considered each of those matters. The application would not create commercial ribbon development or exacerbate an existing problem. The likely effect on existing establishments has been considered above. Traffic generation, including the prospect of undesirable flows through residential areas, is dealt with later in the context of the evidence of the traffic engineers. The proposal would be convenient. The effects on the transport system (particularly as it relates to the road network) is also discussed later in the context of the traffic engineering evidence. The potential adverse effects on amenity are also considered later.

I do not consider that the proposal would, in the circumstances, establish an undesirable commercial pattern.

The majority of the site falls within the Rural Areas. “The intention for the Rural Areas is that they be retained for rural activities. The objectives for such areas are to preserve good quality agricultural land and legitimate rural uses by preventing the intrusion of non-rural activities into these areas, the preservation and enhancement of the general rural character of the Shire and ensuring that water catchment areas are adequately managed. The designation does not envisage development of the kind proposed. There are however, sufficient planning grounds to warrant approval notwithstanding conflict with the intent for these areas.

Although the subject site is partly included in the Rural Areas, and partly in the Residential Areas, the justification for the location of the boundary between the two areas is not clear. There was some suggestion that it was influenced by flooding constraints, but the boundary does not replicate the flood line with any precision[17]. The boundary has not been adhered to in the approval of residential development in the locality. Indeed, the first co-respondent carried out significant residential development, to the immediate south of the subject site, notwithstanding that land is partly within the Rural Area.
[17]Compare Figures 3 and 9 of Ex 25.

The subject land does little to advance the objects of the Rural Area. It is not good quality agricultural land. Its development would not prejudice other rural uses. In so far as the objective to preserve and enhance the general rural character of the Shire is concerned (Objective 2), the site is not used for basic rural activities, is largely cleared, is without stands of significant remnant vegetation and is and not of environmental significance. It is presently developed, in part, with a childcare centre, reflecting its partial inclusion in the Residential Area.

Implementation Provision (b) states that land which is flood prone “shall generally be retained in the Rural zone… thus preserving the rural character of those areas of the Shire”. Implementation Provision (c) also refers to the rural character of the Shire being maintained “where possible” by limiting development along major transport corridors by the use of Rural and Public Open Space zones. The subject site is partially flood prone, but is not contained within the Rural zone or Public Open Space zones. While the site adjoins the Caboolture–Beachmere Road, it is at about the entry point to the urban areas of Beachmere, is seen in the context of urban development on and near the subject site and would form a logical extension of that area.

Even if those matters were not thought to be sufficient to justify development on the subject site extending across the boundary between the Rural and Residential designations, as it has elsewhere, I am nevertheless satisfied that the overall merits of the proposal, as discussed more fully herein, which would provide for a public or community need for a tavern and additional shopping facilities in a timely way in an integrated development at a convenient location adjacent to the existing urban area on an otherwise suitable site, justify approval notwithstanding the conflict[18].
[18]Need is a relevant consideration in considering whether there are sufficient planning ground to justify approval – see Kotku Education & Welfare Society Inc v Brisbane City Council [2005] QPELR 267

Reference was also made to the Traffic and Transport provisions of the Strategic Plan, particularly Objective 1, which is “to provide a functional road system which facilitates safe and convenient vehicular traffic throughout the Shire” and to the Implementation Provisions to that objective which, amongst other things, state that “…development proposals shall be designed to limit the volume of through traffic in residential areas” (para (c)) and “direct access to major roads will be limited to the minimum practical level” (para (d)), and “a visual and functional buffer will be encouraged along the major transport routes”.

The traffic and transport issues are discussed in greater detail later in the context of the evidence of the traffic engineers. For the reasons stated later, I consider that the proposal will not result in undue through traffic volumes in residential areas and that the direct access proposed for the Caboolture-Beachmere Road is acceptable. The provision of an open space buffer (which is only ‘encouraged’) should not, I am satisfied, be required, given the context of the site[19].
[19]I also note, as Mr Brown observed (ex24 para69(e)), that land resumptions have occurred for future road widening

I do not consider that the proposal conflicts with the stated objective.

If the proposal was thought to conflict with the Traffic and Transport provisions, then the overall merit of the proposal, as discussed herein, is sufficient to warrant approval notwithstanding conflict.

While I have dealt with particular provisions of the Strategic Plan and matters of relevance to those aspects in turn, I have also considered the extent of compliance/conflict overall. In my view, the overall merits of the proposal, as discussed herein, would justify approval of the application, notwithstanding the extent of conflict with the Strategic Plan, as found by me, or even as alleged by the parties opposed to it.

(iii)The Draft Planning Scheme

The Caboolture Shire has a Draft Planning Scheme. It also has a Commercial Hierarchy Strategy (CHS), which was prepared as a background study to assist with preparation of the Draft Planning Scheme. The CHS bears a date, on the front cover, of July 2003, but the pages within the documents are dated February 2001. It is relevant to consider those documents, but conflict with them does not attract the provisions of s 4.4(5A) of the Repealed Act.

The Draft Scheme contains no “Special Rural” zone. The subject site is included within the Rural zone.

The existing commercial facilities in Beachmere are included within the Local Centre zone, which is described as a zone which generally caters for 1-2,000 households located in one community. It is intended to provide for a limited number of predominantly food and personal services, both retail and convenience stores with a gross lettable area of between 500 and 4,000 m². The Local Centre zones are said to be located throughout the Shire and to be consistent in scale and functioning with residential areas.

The economists agree that, as of 2004, Beachmere already had 1,360 households. That number was is to increase, on their assumptions, to 1,950, which is at the top end of the range for which the Local Centre zone generally caters. The area currently only has some 1,900 m² of commercial floor space (in the bottom half of the range referred to), most of which is located in the existing main node. The economists agree that there is a need to provide for additional retail facilities, but this does not appear to be catered for in zonings under the Draft Planning Scheme. No additional land has been included in the Local Centre zone to cater for any additional facilities. That is, perhaps, unsurprising given that the CHS stated, with respect to Beachmere, that:

“Projected growth for Beachmere is limited and existing centre facilities are, and will continue to be, sufficient for the foreseeable future. There is no need for any further commercial land in this locality.”

It might be noted that the economic consultants to the council, for the purposes of the CHS, included Urban Economics of which Mr Norling is a director.

Further, the background study to the Draft Planning Scheme underestimates the future population of Beachmere. It shows a projected 2016 population for Beachmere of only 3582, which compares with the evidence of a 2004 population of 3400, significant interest in further development in the area and the agreement of the economists to calculate need on a future population of 4680.[20]
[20]See Brown T416

Contrary to what appears to have been assumed in the Draft Scheme, the evidence establishes a need to provide for additional shopping facilities.

Counsel for the respondent pointed out that one of the “probable solutions” in the Draft Planning Scheme would suggest that, in Beachmere, no individual facility or combination of adjacent facilities, comprising shops or offices or both, and associated uses should have a total gross floor area of more than 1,000m². The combination of adjacent facilities in the existing main node however, already exceeds that amount.

While the proposed development would represent a departure from the provisions of the Draft Planning Scheme (assuming it remains in that form), its provisions do not raise any substantially new issues which would be determinative and I do not consider that the proposal would render more difficult the implementation of the Draft Planning Scheme in any broader sense.

(iv)The SEQ Regional Plan

Reference was also made to the South-East Queensland Regional Plan, under which the subject site is included within the Regional Landscape and Rural Production Area. The reason for the land’s inclusion in that designation is not absolutely clear, but it appears to follow the zonings under the Draft Planning Scheme. The Regional Plan does not apply to the subject application, which was lodged prior to the publication of the Draft Regional Plan. The proposed development, while departing from the intended relevant designation under the Regional Plan, would not cut across or render more difficult the implementation of that plan in any broader sense.

(v)The Town Planners

While I have dealt with the planning documents in some detail, I have also given consideration to the evidence of the town planners more generally. The Court was assisted by evidence from Mr Brown (called by the appellants), Mr Humphreys (called by the respondent), Mr Challoner (called by the first co-respondent) and Mr Brewer (called by the second co-respondent). I generally preferred Mr Brown’s evidence[21]. It is unnecessary to traverse that evidence in detail. The determinative matters are otherwise dealt with herein.

SITE SUITABILITY AND AMENITY

[21]although no reliance was placed on the town planners in relation to matters of construction, since those

issues are matters of law

(i)Noise

Possible noise impacts were examined by Mr Rumble, for the appellant, and Mr King, for the first co-respondent. Mr Rumble and Mr King were involved in three meetings. At the first, five potential noise issues were identified, namely noise from plant and machinery, entertainment, patrons, vehicle activities on site and service activities. After independently examining those issues, they agreed, at their second meeting, that all noise issues associated with the proposed tavern and shopping centre development could be solved by incorporating appropriate measures into the detailed design and operation of the facility. It was agreed that none would present insurmountable problems. The content of the conditions which ought be imposed, in the event of an approval, were agreed at their third meeting.

The issues examined by the experts included the possibility of irresponsible patron behaviour at the tavern. While such behaviour can be associated with licensed premises, there is no reason to conclude that it would be a particular or significant problem with the proposed tavern. As with other modern taverns, the proposal is not just for those looking for a public bar. It offers a range of facilities for the broader community including a bistro and a children’s play area. I accept, as acoustic experts agreed, that the following package of controls would substantially eliminate irresponsible behaviour:

(1) trading hours limited to midnight;

(2) no loud musical entertainment;

(3) implementation of a behaviour management plan;

(4) closure of the drive-through bottle shop at 10pm; and

(5) provision of a courtesy bus.

One of the measures agreed by the experts was an acoustic screen fence, to shield noise from the supermarket loading dock. It was agreed that a 4.5 metre high fence would be erected along the southern boundary of the loading area and tapering down to a height of 2 metres at the boundary of the childcare centre and then continuing at 2 metres in height, along the western boundary of the childcare centre. It was suggested, at trial, that such a measure was poor design practice, atypical in residential neighbourhoods and would have an amenity impact, particularly for some of the residents of the first co-respondent’s residential development to the south.

The use of acoustic screen fences to mitigate potential noise impacts is, of course, commonplace. While barriers to a height of 4.5 metres in height might not be common in residential areas, there was evidence of some similar height barriers adjacent to residential development in other areas. Importantly, it is not proposed to locate the high section of the barrier on the boundary. Rather, it is proposed to be set back a significant distance[22] and that there would be ample opportunity to provide a landscaping screen to the barrier[23]. The barrier is acceptable in the circumstances.

[22]T p 139
[23]T p 139 & pp 265-266

(ii) Traffic

The proposed development would gain access from the Caboolture-Beachmere Road and from James Road. The debate between the traffic engineers focused on the acceptability of those access points.

Reference was also made, by Mr Holland, to the absence of a designated area for refuse collection, but he accepted that could be accommodated in the design.

There was also debate as to the possibility or desirability of semi-trailers seeking to access the site. While it might be possible for a semi-trailer to do so, such access is not proposed by the appellants and a condition may be imposed which not only prohibits such access, but requires appropriate signage to be erected.

The Caboolture-Beachmere road is a State-controlled road which acts as a feeder between Bribie Island Road and Beachmere. It is a designated “major road” on the Strategic Land Use Plan Map. It operates at the speed limit of 100 kilometres per hour for much of its length, but that limit reduces to 80 kilometres per hour at a point some 700 metres from the subject site (travelling inbound to Beachmere) and then 60 kilometres per hour. While it is designated as a sub-arterial road in the Transport Infrastructure Plan in the Draft Planning Scheme, it is relatively lightly trafficked[24] for such a road and would remain so, even with a 50% increase in traffic[25].
[24]With a present volume of around 4,000 vehicles per day
[25]See Holland T283 l9, 25

James Street is a minor road for the purposes of the Strategic Land Use Plan Map and a local collector road for the purposes of the Draft Planning Scheme. It is a two-lane road linking Beachmere Road with the southern extremity of Beachmere. It provides access to a significant area of residential development as well as the existing primary school and the childcare facility.

Progress Avenue is a local street which intersects with James Road opposite the proposed access point. It is a local street, but with a mixed use. It mainly serves residential dwellings, however it also contains a community hall which has both on-site and 15 on-street angled parking bays. Street signage directs traffic to the community hall via James Road.

The traffic engineering issues were examined by Mr Brameld (who was engaged by the appellants), Mr Pollock (who was engaged by the respondent), Mr Holland (who was engaged by the first co-respondent and Mr Healey (who was engaged by the third co-respondent).

The only traffic engineer who was dissatisfied with the access arrangements was Mr Holland[26].
[26]although it should be noted that Mr Healey did not examine issues related to the James Road access

It was a requirement of the Repealed Act that, in considering an application for rezoning, an assessment had to be made about whether a proposal, if approved would:

(a) create a traffic problem;

(b) increase an existing traffic problem; or

(c) detrimentally affect the efficiency of the existing road network.

Considering this requirement, Skoien SJDC said, in Jedfire Pty Ltd v Council of the City of Logan & White[27]:

“The raw words of the section have to be taken with a grain of salt. Any rezoning for a proposed development might be said in some degree to create or increase a traffic problem and to affect detrimentally the efficiency of the roads if it creates any extra traffic, which is what almost all developments will do. One must inject a qualifying adverb such as ‘unreasonably’ or ‘intolerably’ into the section. Traffic in modern urban settings is not assessed in utopian terms. In Utopia all cars, driven only by skilful, courteous drivers, would carry the maximum number of passengers at reasonable speeds on roads perfectly designed for safe swift travel. But the legislature must be taken not to have been acting with Utopia in mind. So in this case I consider that what I have to do is to decide whether the proposal is for a reasonable or tolerable traffic arrangement in the context of modern urban motor vehicle movement.”

[27]1995 QPELR 41 at 43H

In this field, as in others, there are published standards and guidelines which are of assistance. The acceptability of traffic arrangements must however, also take account of the particular circumstances. In Jedfire, Skoien SJDC went on to observe:

“The only expert critic of the proposed traffic arrangements was Mr Holland.

His expertise is undoubted but it seemed to me that he really was looking for a copybook traffic layout. On the other hand five well-qualified traffic consultants considered that the traffic arrangements would be satisfactory although less than perfect; that by the time things became difficult other, longer term, arrangements would probably be in position. …

There was no suggestion that the proposed traffic movement would be dangerous in the sense of risking death or serious injury. Rather the debate was over the fact that the arrangement set out at SKO2 falls short of what is recommended in the accepted road traffic guidelines. Mr Holland considers that the shortfall is of critical importance which should lead to a rejection of the SKO2 proposal. Messrs Avent, Eppel, Simpson, Vromans and Douglas disagreed and I prefer their approach.”

The extent of the dispute between the traffic engineers with respect to the Caboolture-Beachmere Road access narrowed in the course of the trial as a consequence of the production, by Mr Healey, of a new plan (5132-002) for works to be carried out in the Caboolture-Beachmere Road. Mr Brameld was prepared to recommend the adoption of that plan, because it involved a better outcome with only marginally greater work. The appellant, through its counsel, indicated that it accepted the recommendation. Mr Holland, in cross-examination, indicated that he thought such a drawing would have been produced earlier and frankly conceded that, “At that point I would have said, ‘Done’[28]” and “That’s good enough[29].”
[28]T p 289
[29]T p 291 l 20

I am satisfied that, subject to the imposition of conditions relating to the works to be carried out, it is acceptable to provide access off Beachmere Road at the location proposed.

There remained an issue as to the extent of the works, shown on plan 5132-002, for which the appellant should be responsible. Mr Holland considered that it would be “undesirable” if the whole of the works, including those at the James Road intersection, were not done in conjunction with the access to the proposed development. The Crown’s position, supported by Mr Healey, was that the intersection works were not required in conjunction with the development proposal. The extent of works is a matter which goes to conditions, but I prefer the evidence of Mr Healy in this regard.

Mr Holland opposed the James Road access for reasons related to:

(i) the acceptability of locating the access directly opposite Progress Avenue, thereby creating, in effect, a four-way intersection;

(ii) the likelihood of development increasing traffic flows in Progress Avenue; and

(iii) the encouragement of increased usage of James Road as an access route to the site.

The location of the access driveway within the James Road/Progress Avenue intersection, so as to, in effect, create a four-way intersection, conflicts with the relevant Australian standard. The purpose of the relevant provision is to minimise conflict between frontage road traffic and car parking traffic. Mr Holland spoke of the confusion which can arise in identifying which vehicle has right of way when one “leg” of the intersection comprises a driveway.

While the relevant provision of the standard has a sound basis, the evidence of Mr Brameld and Mr Pollock was that the arrangement was acceptable in the circumstances. Mr Pollock’s evidence was that the provision of an alternate form of control was not considered essential, given the low volumes of traffic on the Progress Avenue leg of the intersection. Subject to a requirement for signage, to minimise the prospect of confusion, I consider the access acceptable, notwithstanding its departure from the standard.

In relation to Progress Avenue, Mr Holland pointed out that development proposals should be designed to limit the volume of through traffic in residential areas.

Mr Brameld’s evidence, which I accept, is that the maximum number of vehicles which would wish to travel along Progress Avenue as a consequence of the subject proposal would be low, reduced by undertaking some threshold works and signage at the Progress Avenue/James Road intersection and that traffic which would use the Moreton Terrace – Progress Avenue route would offset, at least in part, some trips from the James Road area (including some of those shopping trips linked to school trips which would now use James Road/Progress Avenue)[30]. I accept his conclusion that the level of increased use of Progress Avenue would be insufficient to have a significant impact.
[30]Ex 12 p 11

Insofar as the increased use of James Road is concerned, Mr Brameld pointed out that James Road, as a collector street, is a significant road in classification, physical construction and the catchment it serves. It currently provides access to the local school and childcare centre, and the council’s road signage directs traffic to the community hall via James Road. I accept that access to the site via James Road is appropriate in the circumstances.

I find the proposal is satisfactory in relation to traffic issues.

(iii) Acid Sulphate Soils

Issues related to acid sulphate soils were raised in the appeal and the subject of expert analysis, resulting in the appellants putting forward an amended management plan. It was accepted that the issues can now be resolved by the imposition of reasonable conditions[31].

[31] Exhibit 3, p 24 and T p 169-170

(iv) Flooding

The subject land is, at least in part, low-lying and subject to flooding. The treatment of stormwater drainage and the effect of development on flood storage was examined by Mr Walsh (called by the appellants) and Mr Collins (called by the first co-respondent). There were three issues of significance.

The first related to the area over which fill which would be required below the flood line and, in particular, whether it would exceed 5,000m². That area is significant, because it is the limit beyond which referral coordination would be required. The appellants are prepared to submit to a condition that the 5,000m² not be exceeded. I am satisfied, on the basis of Mr Walsh’s evidence that is achievable.

It was submitted on behalf of the first co-respondent, that the provisions of the IPA had not been complied with. It was said that, even if Mr Walsh had demonstrated how development could be achieved without exceeding the 5000m2, the application, as lodged, did involve filling over a greater area and so the application ought to have been the subject of referral co-ordination and the consequent longer notification period[32]. Further, it was said that the non-compliance could not be excused, pursuant to s4.1.5A, since the Court could not, it was said, be satisfied that the non-compliance had not substantially restricted the opportunity for a person to exercise rights at the time, even though the area of fill was now to be restricted to less than the threshold.
[32]See s3.4.5

This issue was raised in submissions at the end of the case. I note that the Court had, on 24 February 2005, dealt with compliance matters. The order records that the Court was then satisfied that there had been compliance with the provisions of the IPA with respect to notification. The order went on to give directions, including directions as to the notification of issues. That the application must be refused on the basis that referral co-ordination was required, was not one of the issues notified in accordance with those directions and no application was made to vary the directions or amend the issues. The submission was not supported by the council.

To establish that referral co-ordination was required, Senior Counsel for the first co-respondent referred to a drawing appended to a report from Mr Walsh which accompanied the application[33], which contained differences to Mr Walsh’s current design, and which Mr Collins said would have involved filling an area in excess of 5000m2[34].
[33]Ex 10 Appendix E
[34]T237 l40

It would appear from the report’s conclusion that its purpose was to identify if there was a major impediment to development. It did not purport to quantify the area which would be filled. The drawing, upon which the first respondent relies, was described in the report as showing the “preliminary” stormwater design. Further, the drawing showed a larger centre to that for which approval was sought. It was conceded, on behalf of the first co-respondent that “Stage 2” was not part of the subject application[35].
[35]T 567 l25

I do not consider that a reference to a “preliminary” design for a larger development demonstrates that the development of stage 1 for which approval was sought, involved filling an area in excess of the threshold. The application was otherwise made on the basis that it did not involve a facility or area prescribed under the Regulation[36] and was apparently accepted on that basis, since the acknowledgment notice issued by the Council stated that “this application does not trigger referral co-ordination”[37]. Reference to the drawing does not establish to the contrary, nor did the absence at that stage, of a detailed plan demonstrating how the development of stage 1 would be achieved within the threshold (consistent with the basis upon which the application was made and accepted) dictate a conclusion that referral co-ordination was required.
[36]See item 18 of the referrals checklist in Ex 1
[37]See Ex1

My conclusion makes it unnecessary for me to consider whether the Court has jurisdiction under s 4.1.5A. Had I concluded that there had been non-compliance and that there was jurisdiction, then I would have been prepared to exercise the discretion, given that the proposal before the Court does not involve exceeding the threshold and any approval will be so conditioned.

Mr Collins conceded that it was “engineeringly possible” to manage the site by filling no more than 5,000m^2[38], but pointed to the measures that were used (or not used) to achieve that. Particular reference was made to the use of vertical retaining walls steep batters, the decision to only partially fill the existing swamp next to the car park and not to fill the existing dam (with consequent requirements for fencing). The approach is not one favoured by Mr Collins but is, I accept, (on the evidence of Mr Walsh) feasible and acceptable.
[38] T p 258

From a visual amenity perspective, it was submitted that the site would, as a consequence, “look more like a prison camp than a community retail facility”, but that is an exaggeration. While the site, including those areas used for storm water drainage, will lose their undeveloped appearance, the result will be acceptable.

Mr Collins was concerned that the partially filled swamp would become an amenity problem and that the site was too small to provide sufficient recharge, by rainfall, to the wetland.

I am satisfied, on the basis of Mr Walsh’s evidence, that the swamp area can be appropriately managed and that there is likely to be sufficient recharge for the wetland to function appropriately.

Insofar as recharge is concerned, Mr Walsh pointed out that, while the average rainfall and evaporation were closely matched, the fact that the catchment area, across the site (from which the wetland would be recharged) is many times greater than the surface area of the wetland (which would be subject to evaporation) makes it very likely that there will be sufficient recharge, even in dryer periods. He noted, in this regard, that the existing swamp on site showed no evidence of vegetation die-off, notwithstanding that its surface area is larger than the proposed wetland and that it would be receiving less water.

In relation to flooding, Mr Collins pointed out that the proposal does not achieve a cut/fill balance, i.e. there will be a net loss of flood storage on site as a result of the proposal. The experts agree however, that the effect of this loss on flood levels will be so small as to be immeasurable. That would not always be a complete response, since decision making, on such a basis, throughout a catchment, could lead to significant cumulative effects. That is however, unlikely to occur here.

The Council’s Flood Plain Management Policy makes a series of provisions for subdivision and for building applications. For rezonings, the applicant must demonstrate that the minimum requirements for subdivision control can be met in the zone into which the land is proposed to be placed. In the case of residential zones, development is required to achieve a no net loss of flood storage. That requirement does not apply in the section which deals with zones other than residential, rural residential or rural. Instead, filling must not significantly increase flood levels. The extent of increase in this case is not significant. Given the limited extent of commercial development which is likely to occur within Beachmere and the Council’s policy to require no net loss of flood storage in the residential zones, it is unlikely that approval of the subject proposal would create a precedent for development with significant cumulative effects. I also note that the stormwater policy in the Draft Planning Scheme makes provision for a flood study, to be provided to assist in development assessment, which, amongst other things, determines whether the cumulative impact of development is likely to cause an adverse impact on other properties.

The first co-respondent also submitted that the stormwater measures would be an impediment to the appellant further extending the proposed shopping centre to meet any future need. The evidence does not establish a need for future expansion of the proposal, but if that was proposed at some point in the future, then approval may also be required for any changed stormwater treatment necessary to accommodate the expansion. The practicality of achieving further expansion is not something upon which I need to make a finding. The issue would not warrant refusal of the current application.

(v)Social Impacts

It was contended that the application raised social planning issues, particularly the impact of a tavern on the childcare centre and primary school and secondly, the impact of gambling associated with the gaming machines. These issues were examined by two social planners, Professor Brannock and Ms Elliott.

This Court is not the final approval body for the tavern. A separate approval process is required under the Liquor Act.

While the existence of a separate approval regime does not render such issues irrelevant to this Court, it might be noted that the proposal will, even in the event of approval by this Court, be subject to a more extensive assessment of social impact than has been done to date by either of the social planners in this case.

I am satisfied that the concerns related to social issues do not warrant a refusal of the subject application.

There is nothing inherently inappropriate about the location of a tavern or shopping centre in close proximity to a childcare centre. There are examples of other modern tavern facilities being located with, or nearby, other community facilities of that kind.

Unlike many other land uses, taverns and childcare centres are not subject to self-regulation and self-management. The childcare centre is subject to statutory licensing and regulatory oversight. Within that framework, there are policies and procedures in place directed towards ensuring the welfare of children attending childcare centres. Taverns and other licensed premises are also subject to separate regulation and licensing under the Liquor Act.

The opening, closing and peak operating times of childcare centres and taverns do not coincide. They are not necessarily incompatible neighbours. Each operates in a self-contained and separate way. The childcare centre has its own car park and separate access to James Road. It is physically separated by fencing from the shopping centre and tavern.

The primary school is located further to the south along James Road. That children or their parents might pass the tavern as they travel along James Road or indeed, as they visit the proposed shopping centre on the subject site, does not make the location unacceptable in planning terms. While it would be undesirable for child pedestrians to encounter intoxicated persons or drunk drivers, the magnitude of that risk is not undue and does not render the location unacceptable.

I do not accept that provision of some gaming machines would render the site unsuitable from a planning perspective.

Ms Elliott, whose evidence I preferred, made a number of relevant recommendations which can form the basis for conditions of approval.

While the debate, in this regard, focused on the appropriateness of the particular site, it should be noted that each of the social planners agreed that there was a need, from their perspective, for a facility of this type in the area of Beachmere. In particular, they agreed that it could function as a focus of community activity, provide local employment and avoid the need for local residents to travel nine kilometres to the nearest similar venue.

(vi)Submitters and Perceptions

Public notification of the subject proposal provoked a relatively large number of submissions. I note that Mr Webb, a director of the first co-respondent, in opposing the application, organised for pro-forma objections to be drawn up, held a public meeting and engaged public relations consultants. While the number of adverse submissions is not irrelevant, it is their content which is ordinarily afforded greater weight. Evidence was also called, at trial, from a number of residents.

I have been mindful of the views expressed by the residents in considering the issues in the appeal. My consideration of their evidence did not however, lead me to any different conclusions to those already expressed. I consider that the proposal is acceptable including with respect to amenity and character. I accept that matters of perception may be of relevance[39]. I am not however, prepared to give determinative weight in this case, to their views on how the proposal might detrimentally affect perceptions of the character or amenity of their area.

[39]See the Mooloolah Commercial Pty Ltd v Caloundra City Council & Ors [2005] QPEC 29 at [46]-[50] and the cases referred to.

(vii) Overall Assessment

I have considered the site suitability and amenity issues collectively, as well as individually and I consider that the likely impacts of the proposal, viewed individually, cumulatively, or in combination with the other issues in the case, are acceptable.

Further, while cases of this kind inevitably focus on the significance of any potential adverse impacts, the development will also have positive effects for the community for the reasons discussed earlier. Indeed, I consider that the development will have an overall beneficial effect for the community.

THE CUPOSA APPLICATION

The first co-respondent submitted that there is an opportunity for the needs, whatever they be, to be satisfied on alternate land of its which, it was said, may involve some conflict with the Strategic Plan, but will not involve the “plethora of issues” relating to the subject proposal.

I am not in a position to speculate on the fate of the Cuposa application or to conduct a “best sites” test and it is unnecessary for me to do so. I have not acted on the assumption that the subject site is necessarily the only one upon which a proposal could be brought forward, but in my view it is an acceptable and appropriate location and the application ought be approved.

CONTROL OF THE SITE

In the course of the hearing questions were raised, on behalf of the first co-respondent, about the appellants’ ability to secure vacant possession of the site, so as to demolish the existing house and carry out the proposed development. There was evidence of some agreement for the current occupants of the house to enjoy continued occupancy. The appellants have been involved in discussions about that, to overcome my impediment otherwise. The evidence did not establish that any difficult could not be overcome, or that the application was futile. I would not refuse the application on this account, although it might be appropriate to impose a condition with respect to the duration of the approval[40] This was raised by Counsel for the first co-respondent and did not appear to be opposed by counsel for the appellants, but it is a matter about which I will invite submission with respect to conditions.
[40]although the application, had it been under the Repealed Act, would have been for a scheme amendment,
it is an application for a development permit under IPA and does not necessarily result in a scheme
amendment (under s 6.1.34 the local government has a discretion to make a consequential amendment).
Both the Repealed Act and IPA contemplate conditions which restrict the duration of an approval
(see s 6.1(1)(d) of the Repealed Act and s 3.5.21(2)(b) of IPA)

CONCLUSION

I find that the appellants have discharged their onus and that the appeal should be allowed. I will adjourn the appeal to allow the parties to consider the conditions of approval.

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Citations

Comkey Pty Ltd v Caboolture Shire Council [2005] QPEC 114

Most Recent Citation

Atkinson v Ipswich City Council & Anor [2006] QPEC 37

Cases Citing This Decision

2

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51

Atkinson v Ipswich City Council & Anor [2006] QPEC 37

Cases Cited

1

Statutory Material Cited

3

Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPEC 29

CITATION:	Comkey Pty Ltd & Anor v Caboolture Shire Council & Ors [2005] QPEC 114
PARTIES:	COMKEY PTY LTD (ACN 098 487 739) and HEAVEN DEVELOPMENTS PTY LTD (ACN 092 442 549) Appellants v CABOOLTURE SHIRE COUNCIL Respondent and CUPOSA PTY LTD First Co-Respondent and WARWICK SINCLAIR and LYNETTE SINCLAIR Second Co-Respondents and STATE OF QUEENSLAND Third Co-Respondent
FILE NO/S:	BD217/05
DIVISION:	Planning & Environment
PROCEEDING:	Applicant Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	5 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	14,15,16,17 and 18 June 2005
JUDGE:	Rackemann DCJ
ORDER:	Appeal to be allowed
CATCHWORDS:	PLANNING & ENVIRONMENT – development of a shopping centre and tavern Need – public & community – timing of demand – impact on existing facilities Town planning – zoning – whether conflict with Strategic Plan - whether sufficient planning grounds to justify approval despite conflict Site Suitability and Amenity – Noise – Traffic access – land subject to flooding – fill below flood line – social impacts Cases All-A-Wah Carapark v Noosa Shire Council [1989] QPELR 155 Skateway Pty Ltd v Brisbane City Council [1981] APAD 417 Bunnings Building Supplies Pty Ltd v Redland Shire Council [2000] QPELR 193 Jedfire Pty Ltd v Council of the City of Logan & White[1995] QPELR 41 Kentucky Fried Chicken Pty Ltd v Gantidis [1979] 140 CLR 657 Kotku Education & Welfare Society Inc v Brisbane City Council [2005] QPELR 267 Mooloolah Commercial Pty Ltd v Caloundra City Council & Ors [2005] QPEC 29 Watts and Hughes Properties Pty Ltd v BCC [1998] QPELR 273 Weightman v Gold Coast City Council [2002] 121 LGERA 161 Legislation Integrated Planning Act 1997 Liquor Act 1992 Local Government (Planning & Environment) Act 1990
COUNSEL:	Mr Hinson SC, with him Mr Haydon for the appellants Mr Ure, of counsel, for the respondent Mr Hughes SC, with him Mr Williamson, of counsel, for the first co-respondent Mr Skoien, of counsel, for the second co-respondents Mr Cochrane, of counsel, for the third co-respondent
SOLICITORS:	Wendy Hart for the appellants King and Company for the respondent Connor O’Meara for the first co-respondent Butler, McDermott & Egan for the second co-respondent Crown Law for the third co-respondent