Fabcot Pty Ltd v Cairns Regional Council
[2013] QPEC 38
•9 August 2013
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Fabcot Pty Ltd -v- Cairns Regional Council [2013] QPEC 38
PARTIES:
FABCOT PTY LTD ACN 002 960 983 (appellant)
v
CAIRNS REGIONAL COUNCIL (respondent)
and
CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS (first co-respondent by election)
CHIEF EXECUTIVE DEPARTMENT OF LOCAL GOVERNMENT AND PLANNING (second co-respondent by election)
MULGRAVE AND DISTRICT CHAMBER OF COMMERCE (third co-respondent by election)
FILE NO/S:
BD 2046 of 2011
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
9 August 2013
DELIVERED AT:
Brisbane
HEARING DATE:
28 November 2012 to 10 December 2012
JUDGE:
Rackemann DCJ
ORDER:
The further hearing of the appeal is adjourned to allow the parties an opportunity to formulate conditions of approval and any modification of the proposed variations to the planning scheme
CATCHWORDS:
Planning and Environment – Applicant appeal against refusal of development application seeking a preliminary approval overriding the planning scheme – Proposed supermarket based shopping centre on land in Residential 2 Area – Whether achievement of relevant DEO’s would be compromised – Whether conflict otherwise with the planning scheme and/or Regional Plan – Need – Whether facilities could be accommodated in the designated town centre to the east – Likely impact in the District Centre – Likely impact on a vacant Local Centre site to the west – Social impact – Amenity and urban design
COUNSEL:
Hinson SC and T. Trotter for the appellant
Hughes SC and Fantin for the respondent
Job for the first co-respondent by election
DM Favell for the third co-respondent by election
SOLICITORS:
Allens Arthur Robinson for the appellant
MacDonnells Law for the respondent
Hopgood Ganim Lawyers for the first co-respondent by election
Marino Moller Lawyers for the third co-respondent by election
Introduction
The Proposal and Submissions
The site and locality
Assessment Criteria
Issues
The Planning Documents
CairnsPlan
(i) DEO’s
(ii) Description of Intent
(iii) Codes
Far North Queensland Regional Plan 2009-2031
Draft Mount Peter Structure Plan
Edmonton Town Centre Amendments
Other documents
Need for the facilities proposed
Can the existing District Centre provide for the need?
Likely impact on the District Centre
Likely impact on the Local Centre Site
Social Impact
Amenity and Urban Design
(i) Tangible impacts
(ii) Quality of design
(iii) Impact on the District Centre
(iv) Impact on the local area
(v) Gateway location
(vi) Visual character and identity
(vii) Climatic response
Conclusion
Introduction
This appeal is by Fabcot, the development arm of Woolworths, against the Council’s refusal of its development application for a preliminary approval, overriding the planning scheme, for a material change of use. The proposal is for a supermarket based retail centre on land at the corner of Draper Road and the Bruce Highway, Gordonvale.
The first co-respondent by election (DTMR) and the second co-respondent by election (DLGP) were referral agencies for the application. DTMR does not oppose approval, but seeks to have conditions imposed on any approval. DLGP has withdrawn from the appeal. The third co-respondent by election was a submitter for the application and is opposed to it.
The Proposal and Submissions
The development application was made under s.3.1.6 of the Integrated Planning Act 1997 (IPA). It has two parts:
(a) a development application for a material change of use; and
(b) an application seeking to vary the effect of the planning scheme for the land.
The proposed material change of use for which a development approval is sought is for what the appellant contends is a Local Centre. In particular, the contemplated centre is composed of:
(a) a full-line supermarket with a gross lettable area (GLA) of 3206m²;
(b) speciality shops with a GLA of 962m² and a kiosk of 20m²;
(c) a fast food/restaurant with a GLA of 385m²;
(d) a service station; and
(e) 248 carparking spaces.
The centre now proposed is smaller than the District Centre initially applied for. Within the site are two areas described as landscaping, which were designated, in earlier versions of the proposed development, for the future expansion of the supermarket, additional retailing and carparking. There is also a large area of vacant land, owned by Fabcot, to the north-west, adjoining Draper Road and the yet to be constructed Fisher Road. That area was originally included in the application and intended for future commercial uses, but this component was deleted during the appeal, as one of the amendments to the application.
The variations of the planning scheme sought are, in effect, to apply the level of assessment table for the Local Centre Planning Area within the Gordonvale-Goldsborough District in substitution for the level of assessment table for the Residential 2 Planning Area, with some modifications. The modifications would accommodate the proposal without the need for further impact assessment.
Some reference was made to the theoretical potential for the centre, if approved, to expand in the future. That is not something upon which I have placed weight. Each application must be assessed on its own merits. Any approval of the subject application will not imply a right of future expansion. Further, the proposed assessment table for the Gordonvale West Shopping Centre would make shopping facilities of in excess of 5,250m2 GFA[1] not only impact assessable, but also an incompatible use[2]. Any future expansion would be the subject of a publically notified application, which would need to be assessed and decided on its merits when made.
[1]Which approximates the GFA of the subject proposal.
[2]Exhibit 50.
The development application was publically notified. There were 137 properly made submissions for the application, of which 131 supported the proposal and only 6 opposed it.
The site and locality
The subject site is 2.712 hectares in area and is situated at the south-western corner of the intersection of Draper Road and the Bruce Highway, Gordonvale. It adjoins land with potential for future residential development but which is presently vacant.
Although originally settled as an access point for loggers to Trinity Inlet, Gordonvale became a small “sugar” town, south of Cairns, centred on the Mulgrave Sugar Mill which was established in the late 19th Century, to the east of the highway. It has a traditional town centre located around Norman, Gordon and Cannon streets. It features traditional/historic built fabric, and a substantial central park which incorporates sporting and recreational facilities. It offers a range of commercial, retail and community services, various industries and some residential uses. It performs the role of the district centre, although it has no full-line supermarket. It has an IGA supermarket (not full-line). The residential area on the eastern side of the highway features older style housing stock.
In more recent times new residential estate development has occurred in Gordonvale to the west of the highway (west Gordonvale). Indeed it is common ground between the town planners that, in recent times, the only urban expansion of any consequence has been in west Gordonvale. The population is relatively young and features a relatively high proportion of children and of family households. While only 46% of the population is in the workforce, the majority of those work outside Gordonvale. Gordonvale is now something of a satellite in the growth corridor south of Cairns and to the west of the highway. That is reflected in the following provisions of the planning scheme:
“Urban growth initiatives for Cairns include:
§ Development of a new urban growth corridor between Edmonton and Gordonvale west of the Bruce Hwy
…
and
The preferred development pattern for the Cairns Urban Area and surrounds is based (in part) on:
…
§ The staged release of new development areas between Edmonton and Gordonvale, west of the Bruce Highway
…
The Components of the broad sequencing which relate to Cairns are as follows
…
Medium Term 10-15 years
Sequential development in the Edmonton to Gordonvale corridor may commence depending on the level of housing demand and the available land supply in the southern corridor. Urban expansion into the corridor should initially be restricted to those areas adjacent to the established urban development nodes as Edmonton and Gordonvale.
Long Term (15+ years)
The long term development strategies include development of the Edmonton to Gordonvale corridor, west of the Highway and Mt Peter Road, in orderly stages and promotion of economic development and employment creation in the Edmonton-Gordonvale area to reduce commuter and community travel for employment and services.[3]”
[3]Section 1.3.1.
The subject site lies at the north-eastern extremity of west Gordonvale. There is currently a dearth of commercial facilities in west Gordonvale. There is a more modestly sized vacant undeveloped site to the west of the subject site, which is in a Local Centre Planning Area. The planning for that centre dates back to an approval granted by this court in 1998[4].
[4]Gordonvale Chamber of Commerce Inc v Cairns City Council & Anor (1998) QPELR 476.
Assessment Criteria
Because the application was made under IPA but not decided before the Sustainable Planning Act 2009 (SPA) commenced, IPA applies for deciding the application[5]. The appeal must be heard and decided under the now repealed IPA as if SPA had not commenced[6].
[5]SPA ss 802(1) and (2).
[6]SPA ss 819(5) and (6).
For the part of the application that states the way in which the applicant seeks the approval to vary the effect of the planning scheme, ss.3.5.5A and 3.5.14A apply. For that part of the application seeking preliminary approval for a material change of use, ss.3.5.5 and 3.5.14 apply.
Although each component of the application must be assessed separately, each does not exist in a vacuum, so that:
(a) on the one hand, the gravity of conflict between an application for approval of a material change of use and the existing scheme cannot be put at nought simply because the applicant applies to vary the effect of the planning scheme so as to obviate the conflict; but
(b) on the other hand, the request for variations may inform the identification of the material change of use which is sought.
Further, in respect of the assessment of the proposed variation:
(a) s.3.5.5A(2)(d) requires assessment of the consistency of the proposed variations with aspects of the planning scheme, other than those sought to be varied;
(b) s.3.5.5A(2)(c) requires assessment of the effect of the proposed variations on submitter rights for future applications;
(c) s.3.5.5A(2)(b) requires the decision maker to have regard to the assessment under s.3.5.5 of the material change of use component; and
(d) to the extent that any part of the material change of use application is refused, s.3.5.14A(2)(a) requires the decision maker also to refuse the relevant part of the variation application.
It was the material change of use component which was the focus of the debate. As has been noted, the proposed level of assessment table for the Gordonvale West Shopping Centre is based upon that for a Local Centre in the Gordonvale-Goldsborough district. No variations to the applicable codes are sought. As Mr Perkins conceded in the second joint report of the town planners:
“It is the … proposal to develop a shopping centre of the size proposed on this site which is of consequence, more so than the variations sought…”
Issues
The issues in the appeal related to:
(1) need;
(2) economic impact and blight;
(3) visual amenity and urban design;
(4) traffic;
(5) acoustics;
(6) social planning;
(7) town planning;
(8) sufficiency of grounds to warrant approval.
The issues were formally notified and particularised in some detail by the respondent and adopted by the third co-respondent by election. Helpfully, the issues relied upon as warranting refusal of the application were summarised in exhibit 48, a copy of which is annexed to these reasons.
It was common ground that Gordonvale needs a full-line supermarket and that Woolworths would be a welcome addition to the retail facilities on offer. The central issues in the appeal generally relate to the proposed location of such a facility and, in particular, to the fact that the subject site, which is otherwise planned for future residential development, lies to the west of the highway, rather than within, or adjacent to, the existing District Centre in the town centre to the east of the highway. It is the feared negative impact which the proposal may have on the existing District Centre which explains the attitude of the third co-respondent by election and much of the opposition by the Council as well. Indeed, the written outline of submissions for the Council states:
“Nobody opposes Woolworths coming to Gordonvale but that is not what is intended here. Here, Woolworths, through Fabcot, seeks to locate out of centre where it will devastate the viability, vitality and function of Gordonvale town centre as the district centre in the relevant hierarchy.
There is no doubt that the determinative issues in this case involve:
(a) The impacts of this unplanned centre on the Gordonvale town centre which is recognised, and planned to continue as, a District Centre or District Regional Activity Centre in the planning documents; and
(b) The importance of the protection of such hierarchies ….”
and
“The outstanding and, it is submitted, determinative, feature of the evidence in this case is the unprecedented and unacceptable levels of impact which this proposed centre, unsupported by any deliberate forward planning decision, will have upon the District Centre of Gordonvale recognised by, promoted by, and sought to be protected by all relevant adopted planning documents.”
The appellant acknowledges that the subject site is not planned for development of the kind proposed and its proposed location on the subject site involves conflict with the planning scheme, although there was debate about the extent of the conflict (discussed later). It also acknowledges that the proposal would have an economic impact, at least on some of the retail facilities in the District Centre, particularly the IGA. It submitted however, that there are sufficient grounds to approve the proposal notwithstanding conflict. In particular, it contended that:
(a) there is a strong town planning and economic need for the proposed development;
(b) there will be limited impacts upon commercial competitors; and
(c) overall, the proposed development will provide a net benefit to the community.
For the reasons discussed later I am satisfied that the appellant has established each of those matters, on the balance of probabilities.
The Council also relied upon alleged character, social and amenity impacts of the proposal. That is also discussed later, but some issues may be disposed of briefly. As to noise issues, the acoustic engineers agreed that the noise emissions from the proposed development could be adequately mitigated, subject to the imposition of conditions which, amongst other things, would require the construction of acoustic fences and the management of deliveries. I am satisfied that adequate measures can be acceptably put in place. The consequence of the fences for visual amenity is discussed later.
As the respondent acknowledged, there are no traffic reasons which warrant refusal of the application, subject to the imposition of the first co-respondent by election’s amended concurrence agency conditions. There are some issues about internal traffic circulation arrangements and layout. The respondent acknowledged that those could be dealt with at the development permit stage.
The arrangements for access from the highway, via a slip lane, are different from those imposed by condition on an earlier approval for reconfiguration. A question was raised as to whether this triggered s.3.5.32(1)(a) of IPA, which prevents the imposition of a condition which “conflicts” with a condition of a previous development approval. It was submitted on behalf of the first co-respondent by election that the section was not triggered because the earlier condition, in this case, was not for the same development as that for which an approval is now sought[7]. As the respondent also acknowledged, any residual concern could, in any event, be overcome by an application to change the condition imposed on the reconfiguration approval.
[7]See Stockland Development Pty Ltd v Gold Coast City Council [2008] QPELR 529 at 540.
The Planning Documents
The planning scheme in effect at the date of lodgement of the development application in August 2008 was CairnsPlan 2005. In March 2009, CairnsPlan 2009 came into effect, which consolidated amendments to CairnsPlan 2005. For the purposes of this appeal, there is no significant difference between the relevant provisions applicable to the proposed development. As a result, the parties approached the matter on the basis of the CairnsPlan 2009 provisions.
In February 2009, after the development application had been lodged, the Far North Queensland Regional Plan 2009-2031 (the Regional Plan), came into force. The Regional Plan is a statutory instrument which has the force of law[8]. The Council is required to amend its planning scheme to reflect the Regional Plan as made[9]. The Regional Plan is not identified in CairnsPlan as being appropriately reflected in the planning scheme. The Council is in the process of preparing a new planning scheme that will reflect the Regional Plan.
[8]IPA s 2.5A.10(2).
[9]IPA s 2.5A.20(2).
On 9 May 2008, the Minister declared Mount Peter, to the north, as a master-planned area pursuant to s.2.5B.2 of IPA. Under IPA, the Council must have a Structure Plan for the master-planned area[10]. The Structure Plan must be part of the Council’s planning scheme, and must be an integrated land use plan, setting out the broad environmental, land use, infrastructure and development intended to guide detailed planning for the area[11]. This required the Council to prepare a Structure Plan for the Mount Peter Master Planned Area in accordance with Schedule 1A of IPA and s.2.5B.8(2). Section 2.5B.17 provides that the master plan prevails to the extent of any inconsistency over a local planning instrument.
[10]IPA s 2.5B.7.
[11]IPA s.2.5B.8(1).
The Minister approved the Structure Plan for public notification on 23 November 2011. On 14 November 2012, the Council passed a resolution noting the work completed to date on the draft Mount Peter Structure Plan, and acknowledged that it would be used to guide and inform the assessment of development in Mount Peter under CairnsPlan until the relevant provisions were incorporated into the new Cairns Planning Scheme.
CairnsPlan
CairnsPlan divides the planning scheme area into:
(a) 12 Districts, each of which has its own assessment table[12];
(b) 19 Planning Areas, which identify the dominant land uses preferred for each Area[13].
[12]Exhibit 47 p.76.
[13]Exhibit 47 p.91.
Each Planning Area has its own code containing a purpose statement and performance criteria which represent the desired outcomes for the development of land regulated by the Code[14]. Acceptable Measures describe one way of achieving a performance criterion[15]. Acceptable Measures may not be appropriate once a considered assessment of assessable development has been undertaken[16].
[14]Exhibit 47 p.77.
[15]Exhibit 47 p.102.
[16]Exhibit 47 p.78.
There are 4 types of code under CairnsPlan:
(a) overlay codes;
(b) planning area codes;
(c) land use codes;
(d) general codes.
These are to be applied in that order and any inconsistency between codes is to be resolved by the performance criterion of a higher order code prevailing over the performance criterion of a lower order code.
The subject site is:
(a) in the Gordonvale-Goldsborough Planning District;
(b) in the Residential 2 Planning Area.
It is common ground that there is conflict with the provisions relating to the Residential 2 Planning Area. Indeed, the application seeks to vary the planning scheme so as to apply a modified version of the level of assessment table applicable to a Local Centre Area. It is however, the area in which the subject site is currently included and is also the area applicable to adjacent areas, the expectations for which should be considered.
The purpose of the Residential 2 Planning Area Code includes the following:
§ Travel distances from residential uses and tourist and short term accommodation uses to public transport, centres, community facilities and open space should be minimised and walking and cycling encouraged;
§ Efficiencies in the use of land and in the provision of physical and social infrastructure in developing residential neighbourhoods are facilitated through the orderly and sequential development of land;
§ Consolidation and the more efficient use of existing infrastructure within the established residential areas included within this Planning Area are facilitated;
§ The scale and density of development contributes to a high standard of residential amenity;
§ The establishment of facilities which provide ancillary services to the local community is facilitated;
§ Uses identified as inconsistent uses in the Assessment Table dealing with material change of use for the respective Districts are not established in the Residential 2 Planning Area.
The performance criteria and acceptable measures include the following:
Part A – For Self-Assessable and Assessable Development
Built Form
PERFORMANCE CRITERIA ACCEPTABLE MEASURES
P1 The height of all buildings must be in keeping with the residential character of the area and the height of buildings must not adversely affect the amenity of residential neighbourhoods. A1.1 Buildings are not more than 7.5 metres in height.
Part B – For Assessable Development Only
Built Form
PERFORMANCE CRITERIA ACCEPTABLE MEASURES
P1 Buildings must be set back to:
a) maintain the character of residential neighbourhoods; and
b) achieve separation from neighbouring buildings and from road frontages.
A1.1 No acceptable measures are specified. P2 The site coverage of all buildings must not result in a built form that is bulky or visually obtrusive. A2.1 No acceptable measures are specified.
Character and Community Design
PERFORMANCE CRITERIA ACCEPTABLE MEASURES
P1 Development does not adversely affect the amenity of the:
a) planning area; and
b) adjoining land uses.
A1.1 No acceptable measures are specified. P6 Travel distances from residential uses and tourist and short term accommodation uses to public transport, centres, community facilities and open space should be minimised and walking and cycling encouraged. A6.1 Dual Occupancy and Multi-Unit Housing are located within 400m of public transport, centre, community facilities and open space.
The proposal is an inconsistent use in the level of assessment table[17] and so there is conflict with the purpose of the Code. The purpose does encourage the establishment of facilities which provide ancillary services to the local community, but not on the scale proposed.
[17]Shopping facilities above 500m2 GFA is an inconsistent use.
The nature and form of the development, including its height, is not of a residential character. For the reasons discussed later however, I am satisfied that the proposal would have no unacceptable amenity or character impacts. It would not, in context, be bulky or visually obtrusive, would be sufficiently accessible for the nature of the proposed development and would not prejudice the efficient use of land or provision of infrastructure.
The development would, of course, consume land which might otherwise be used for residential development, but there remains undeveloped land in this growth corridor to accommodate future residential development. Even Mr Perkins, the consultant town planner called by the respondent, did not suggest that this was sufficient, on its own, to justify refusal of the application[18].
[18]Exhibit 18, pg 10, para 40.
It was contended, against the appellant, that the extent of conflict goes further then conflict with the Residential 2 Planning Area provisions and extends to compromising the achievement of certain Desired Environmental Outcomes (DEO) and conflicting with the Description of Intent of the Gordonvale-Goldsborough District and several codes. The contentions that the proposal would offend and adversely impact upon the hierarchy of centres (in particular, the Gordonvale District Centre) and have adverse impacts underlie the submission that the extent of conflict is greater than accepted by the appellant. The evidence, in that regard, is discussed later, but a survey of the provisions relied upon follows.
(i) DEO’s
The DEO’s are expressions of end states, rather than means to ends. Each is sought to be achieved to the extent practical having regard to each other DEO[19].
[19]Section 2.1.
The respondent relied upon a number of DEO’s. DEO 2.3.2 provides as follows:
“Business, retail and industrial activities are located in a hierarchy of centres and in designated areas throughout Cairns to encourage continued investment and an increase in the diversity and number of employment opportunities. Sub-regional, District and Local Centres are developed that contribute to a sense of community life and belonging for the people they serve.
The Sub-Regional and District Centres and the major industrial and employment areas identified on the Structure Plan Map 4, are established and consolidated.”
The hierarchy of centres within the City consists of[20]:
[20]See the discussion to s 2.3.2.
§ CBD;
§ Sub-Regional Centres;
§ District Centres;
§ Local Centres; and
§ Specialised Centres.
The performance indicator to the DEO refers to the location of ‘significant’ new businesses, community and industrial development being located in Sub-Regional and District Centres and the major industrial and employment areas.
Structure Plan Map 4 includes the subject site in the Urban Area and identifies the District Centre in Gordonvale, to the east of the highway. No centre is shown in west Gordonvale. It was pointed out, on behalf of the appellant, that the absence of a designated centre to the west of the highway on Map 4 does not necessarily raise a conflict, since Map 4 does not depict all elements of the hierarchy of centres. In particular, Local Centres are not identified on Map 4. The objective of consolidating Sub-Regional and District Centres does not mean that all development must occur within such centres. There is scope for facilities also to be located in Local Centres.
It was submitted, for the appellant, that the proposal is simply the development of a new Local Centre, consistently with the hierarchy provisions of CairnsPlan. It was submitted, on behalf of the respondent and third co-respondent by election, that the proposal is really an unplanned second District Centre for Gordonvale. Provisions of the planning scheme relating to the District Centre Area and the Local Centre Area were referred to in the debate about that although, of course, the subject site is not within either.
There is no element of the proposed development which requires that it be characterised as one type of centre or the other. Acceptable Measure A1.1 of the District Centre Planning Area Code (DCPAC) relating to the function of a centre states that District Centres generally offer a major supermarket, but major supermarkets can also be part of a Local Centre[21]. Indeed, part of the case against the appellant is that the existing Local Centre site to the west of the subject site is available for a potential development anchored by a full-line supermarket.
[21]T8-19
While District Centres provide shopping facilities, they are intended to have a broader range of other facilities as well. The statement of purpose of the Local Centre Planning Area Code (LCPAC) includes the following description of the desired development outcomes:
§ “The establishment of local shopping facilities, together with business and professional services, which serve the surrounding residential community is facilitated;
§ The establishment of community facilities which serve the surrounding residential community is facilitated.”
The statement of purpose for the DCPAC, on the other hand, refers to (emphasis added):
§ “The development and consolidation of district centres to provide shopping facilities, together with a broad range of business, professional, medical and similar services and community facilities is facilitated;
§ The establishment of entertainment and recreational facilities, particularly indoor facilities, within or adjacent to district centres is facilitated;
§ Uses of a service industry nature that serve the needs of the district community are accommodated.”
The greater breadth of a District Centre is also reflected in the performance criterion in the DCPAC dealing with the function of a centre as follows (emphasis added):
“P1 District Centres provide a high level of convenience and accessibility for weekly and other high frequency shopping, commercial and community service needs.”
That compares with the corresponding provision of the LCPAC as follows:
“P1 Local Centres provide a highly convenient range of goods and services for the daily and weekly needs of discrete residential communities.”
The subject proposal is for a rather typical, albeit well designed, suburban shopping centre. While there is scope for some of the tenancies to be taken up by non-retailers, the proposal is unlikely to provide a “broad range” of facilities.
There was debate about whether the proposal would provide “local” shopping facilities to serve “the surrounding residential community” or the needs of “discrete residential communities” as opposed to facilities to serve the district. The proposal will primarily serve the community of Gordonvale as a whole, as does the retail facilities in the town centre and indeed as a full-line supermarket in the existing Local Centre site to the west of the subject site would. Mr Schomburgk’s view was that the catchment, as identified by the economists, is “the surrounding residential community” although he did not think that is a “discrete residential community”.
Some indication of the usual catchment of District and Local level facilities can be gleaned from the Acceptable Measures to the above performance criteria. The evidence of the economists suggests that the catchment for the proposal, expressed in households, lies above the “generally less than 2500 household” figure in the LCPAC but short of the “generally ranging in size from 5000 to 8000 households” description in the DCPAC (pending future growth). Mr Schomburgk conceded, in cross-examination, that the catchment of the proposal was either exceeding or at the very upper end of the range in terms of the population one would expect to be serviced by a Local Centre.
Local Centres are also typically smaller than District Centres. The Acceptable Measure in the LCPAC refers to Local Centres being “less than 5000m2 GLA” whereas the Acceptable Measure in the DCPAC refers to an indicative range of 5000m2 GLA to 15,000m2 GLA, although it acknowledges that such centre may be somewhat smaller or larger, depending on the location and the ability to cater to a catchment. The subject proposal is, in size, within the figure referred to in LCPAC and a little below the low end of the indicative range referred to in the DCPAC, although the nature of the proposed anchor tenant (a full-line supermarket) and the accessibility of the location means that its catchment is no less than if the facilities (particularly the full-line supermarket) were provided in the District Centre.
Another difference between District Centres and Local Centres can be their location in relation to the road network. The Acceptable Measures to the DCPAC refer to accessibility from a road of collector level or higher function, whereas the corresponding provision in the LCPAC refers to “no access to highways or arterial roads” and not attracting or relying on passing highway trade or tourist trade. It was pointed out that, unlike the Local Centre site to the west, the subject site has a highway location which will improve its accessibility to the intended catchment. The proposal, at least in so far as the supermarket and specialties are concerned, is of its nature however, something which is primarily aimed at a residential catchment, rather than being reliant on passing highway or tourist trade.
Overall while, as Senior Counsel for the respondent submitted, the proposal may have some trappings of each kind of Centre[22] it does, in my view, fall short of being a proposed new District Centre, particularly having regard to its limited potential to provide for the breadth of facilities which would be expected in a District Centre under this planning scheme. That is not to say however, that the facilities proposed to be provided in the subject centre would not be appropriate centre activities for the District Centre in the town centre, if they were proposed there.
[22]T8-28.
I have dealt with the characterisation issue in deference to the evidence adduced and submissions made about that. It is not however, the determinative issue in the case. Whether the proposal’s location on the subject site would go so far as to compromise the DEO depends upon its likely impact upon the hierarchy and most importantly, on the Gordonvale District Centre. As was stated in the respondent’s written outline:
“In reality, the debate as to whether or not the proposal functions as a District Centre or a Local Centre (as those terms are defined) is probably a moot point: it is the impacts upon the planned District Centre at Gordonvale (of) the proposal, whatever its ilk, that is fundamental.”
Similarly, when I suggested that the respondent was not “hung up on whether you call it a District Centre or otherwise”, senior counsel replied “I’m not… it doesn’t matter. What matters here is the impacts”[23]. That was consistent with the following proposition he put to Mr Schomburgk in cross-examination:
“But answer me this if you don’t mind: regardless of how you or I might describe its function in terms of this particular planning scheme, what’s important is the impacts that it will have on the planned district centre rather than what nomenclature we apply to the proposal?-- I agree with you.”
For the reasons discussed later, I find that the impacts of the proposal on the existing District Centre would not be undue.
[23]T8-28.
I accept that the site is not planned for either type of centre. It should be noted however, that, while the importance of a retail hierarchy has often been acknowledged[24], such planning mechanisms do not exist for their own sake. The “discussion” to DEO 2.3.2 states:
“A hierarchy of centres has been developed to ensure the orderly provision of retail, commercial, administrative, community, entertainment and leisure services to all communities having regard to their size, their location and their needs.”
A central plank of the appellant’s case is that the part of the hierarchy which exists in Gordonvale (the District Centre), needs to be augmented (but not compromised) by a new centre (the proposal) if adequate retail facilities are to be provided in an orderly way to the Gordonvale community to meet the need of that community.
[24]Australian Capital Holdings v Mackay City Council [2008] QCA 157.
DEO 2.3.2 also seeks development of centres that “contribute to a sense of community life and belonging for the people they serve”. The social impacts of the proposal are dealt with later. I am satisfied that the proposal does not compromise the DEO in this respect.
DEO 2.3.6 concerns physical infrastructure. It provides as follows:
“The pattern of urban development facilitates the efficient use of existing and committed infrastructure.
Physical infrastructure is provided in an efficient and equitable manner and to a level necessary to achieve contemporary environmental standards.”
The “discussion” to that DEO states, in part, as follows:
“There are two aspects of the pattern of urban development which are important to the provision of physical infrastructure.
The first is that infill, redevelopment and consolidation of existing urban areas are promoted. While this will achieve optimum use of existing physical infrastructure, it will also necessitate augmentation of existing infrastructure.
The second is that there are significant Greenfield sites, primarily in the southern part of the identified urban area, yet to be developed. Infrastructure planning for these areas has been carried out but it is important to ensure that the mechanisms are in place to achieve the delivery of physical infrastructure when development of these sites proceeds.”
The performance indicator for the DEO is as follows:
“Performance Indicator
Has physical infrastructure been provided to urban development in an efficient and equitable manner and to a level which achieves contemporary environmental standards?”
It was submitted, for the Council, that the proposal “does not make efficient use of existing and committed infrastructure in the existing commercial centre of Gordonvale”. The subject site is in west Gordonvale rather than the town centre, but there is no real concern in terms of infrastructure. Mr Schomburgk (the town planner called by the appellant) pointed out, in the town planners’ first joint report, that all relevant infrastructure to service the proposal exists or can be efficiently provided as part of the overall provision to the emerging urban area west of the highway. The proposal does not compromise the achievement of the DEO.
DEO 2.4.4 states:
“Communities are created with a recognisable character and sense of place and which have a high level of amenity, safety, connectivity and integration between existing and new areas.”
It was submitted, for the respondent, that the proposed development:
(a) does not contribute to the recognisable character and sense of place of the community of Gordonvale;
(b) does not facilitate a high level of amenity, safety, connectivity and integration between existing and new areas;
(c) does not respect and is not compatible with the identity and character of the locality; and
(d) will have an adverse effect on the identity, character and sense of community of the commercial centre of Gordonvale because of its adverse effect on the existing businesses and the level of activity in the town centre.
As was pointed out for the appellant, an assessment of recognisable character, connectivity and integration in the locality must recognise that:
(a) the highway separates the eastern and western parts of Gordonvale;
(b) the recent and anticipated future growth of Gordonvale is directed to the west of the highway. The economists reported that[25] the Gordonvale sector population in 2011 was 3010, a little less than the 3200 population of the Gordonvale west sector. By 2026 the Gordonvale sector population is projected to increase by 600 people to 3610, and the Gordonvale west sector population is projected to increase by 2000 people to 5200; and
(c) whilst the Gordonvale District Centre may have older buildings and some particular character or identity, the newer developments to the west already have a contemporary character, as would the proposed development.
[25]Exhibit 8, Table 1.
Part of the “discussion” of this DEO states that “opportunities” should be taken to consolidate Local and District Centre’s and to integrate community and social facilities with these centres. The lack of opportunity in the existing District Centre is discussed later.
I do not consider that the location of a new retail development in a contemporary building in west Gordonvale (outside of the District Centre) would necessarily compromise the achievement of this DEO. The extent of likely impact of the subject proposal is discussed later and I have found that the proposal is acceptable. The achievement of the DEO would not be compromised.
The issues, as notified, included DEO 2.4.6 but it was not referred to in the written submissions of the respondent or third co-respondent by election. That DEO relates to accessibility and mobility. The proposal is eminently convenient and accessible to the population it intends to serve. The DEO makes reference to the location of services and facilities in a network of centres. The discussion of the DEO states that:
“the development of strong centres providing Sub-Regional, District and Local retail, business, entertainment and community facilities in proximity to residential communities will ensure that a full range of facilities is accessible to all members of the community.”
The proposal is for a new and highly accessible centre to provide facilities needed by the community. For the reasons discussed later, it would not unduly affect the existing District Centre. The proposal would not compromise this DEO.
(ii) Description of Intent
The ‘Description of Intent’ for the Gordonvale-Goldsborough District states, in part, as follows:
“… It is intended that the existing commercial centre should function as a District Centre with the strong sense of local identity being maintained through the retention and adaptive re-use of existing buildings.
There are opportunities for the establishment of Local Centres, to service the developing residential and rural residential areas.”
There was debate about whether the proposal should be seen as one of the ‘Local Centres’ the opportunity for which is acknowledged. As already noted that is probably a moot point. The central issue in this case concerns the impact of the proposal on the existing commercial centre and its intended continuing function as a District Centre, as described.
(iii) Codes
The land is not affected by any overlays, and there are no applicable overlay codes. It was alleged that there is conflict with two planning area codes:
(a) the Residential 2 Planning Area Code; and
(b) the Local Centre Planning Area Code.
The Residential 2 Planning Area provisions have already been discussed.
The site is not in the Local Centre Planning Area, but some attention was given to the Local Centre Planning Area Code, given that the appellant describes its proposal as a Local Centre and seeks to apply a modified version of the level of assessment table for the Local Centre Area. The purpose of the Code includes the following:
§ “the establishment of local shopping facilities, together with businesses and professional services, which serve the surrounding residential community;
§ The scale and density of development contributes to a high standard of amenity”
The extent to which the proposal would provide facilities which would serve the surrounding residential community has already been discussed. The amenity issues are discussed later and I am satisfied that the proposal would contribute to a high standard of amenity.
In addition to the purpose of the Code, reliance was placed on other provisions in relation to matters of building height and impacts on character, amenity and design. Those topics are discussed later and I am satisfied that the proposal is acceptable in those respects. The provisions relating to the function of the Centre have already been discussed. Reference was also made to Acceptable Measure A1.1 in relation to the function of the centre. It states that Local Centres are consolidated within areas included in the Local Centre Planning Area. This is an Acceptable Measure only. It does not prohibit the consideration of new Local Centres in other areas.
The Council alleges conflict with two land use codes:
(a) the Service Station Code; and
(b) the Shopping and Business Facilities Code.
The Council also alleges conflict with three general codes:
(a) the Development Near Major Transport Corridors and Facilities Code (the purpose of which is to ensure that development does not compromise the efficiency of major corridors and facilities);
(b) the Infrastructure Works Code; and
(c) the Parking and Access Code.
The particulars of alleged conflicts with these Codes were extensive, but many did not feature in the argument at the hearing. Indeed, the Service Station Code and the three general codes did not feature in written outlines or oral submissions for the respondent or third co-respondent by election.
The issues raised with respect to the Shopping and Business Code relate to matters of landscape, amenity, design and expression of the development to the “gateway” location. Those issues are discussed later.
As to the other land use and general codes, Mr Schomburgk’s opinion as recorded in the first joint report is:
“6.5.2 These codes primarily address specific design issues and these matters can be, and are properly addressed as part of any subsequent Development Application to Council (assuming that this Appeal is allowed). Some of these matters are discussed in other Joint Expert Reports.
6.5.3 There is nothing in these Codes that warrants refusal of this application for Preliminary Approval overriding the planning scheme.”
Similarly, Mr Perkins’ opinion was recorded as follows:
“6.5.4 Mr Perkins considers that provided no critical issues arise through the preparation of other joint expert reports, these codes will not be determinative in the assessment of whether the proposed development should be approved or refused. Mr Perkins agrees that, in the event that the proposed development was to be approved, those codes would be relevant considerations in subsequent code assessable development applications.”
Later[26], the town planners recorded their agreement that:
[26]Exhibit 10, para 7.01.
§ issues with respect to the Service Station Code are likely to be able to be resolved at the time of future application/s for a Development Permit;
§ issues with respect to the Infrastructure Works Code are likely to be able to be resolved at the time of future application/s for a Development Permit;
§ issues with respect to the Parking and Access Code are likely to be able to be resolved at the time of future application/s for a Development Permit.
These codes are not determinative in this case.
Far North Queensland Regional Plan 2009-2031
The Far North Queensland Regional Plan is the pre-eminent plan for the region. It takes precedence over all other planning instruments. It is intended that the Regional Plan guide and manage the region’s development to 2031.
The Regional Plan took effect under Chapter 2 Part 5A of IPA. It is a statutory instrument under the Statutory Instruments Act 1992 and a planning instrument under IPA. It has a direct effect in its own right, and an indirect effect through the amendment and alignment of, relevantly, local government planning schemes.
By reason of s.2.5A.21(3) of IPA, to the extent that there is any inconsistency between the Regional Plan and any other plan, policy or Code under an Act of a planning nature, including any other planning instrument, the Regional Plan prevails. Its effect is continued by s 768 of SPA.
Insofar as development applications are concerned, s.3.5.5(2)(c)(iii) and s.3.5.5A(2)(e)(iii) require regard to be had to the Regional Plan to the extent it is not identified in the planning scheme as being appropriately reflected in the planning scheme. Neither s.3.5.14 nor s.3.5.14A make conflict with the Regional Plan a basis for mandatory refusal, absent sufficient grounds. IPA requires conflict with the Regional Plan to be taken into account but does not make such conflict necessarily determinative.
The respondent relied particularly upon section 4.2 of the Regional Plan[27], which deals with Regional Activity Centres. Regional Activity Centres are described as follows:
“Regional activity centres support a concentration of activity including business, employment, research, education, services and higher density living. They are typically centred upon the Central Business District (CBD) of a city, and the business district or main street/s of a town, and provide a range of essential urban services and facilities such as retail, commercial, government, community, cultural, entertainment, recreation, health and educational facilities.”
[27]Other parts of the Regional Plan were also referred to in the issues, but were not the focus of submissions and do not raise significant issues beyond those otherwise dealt with.
Gordonvale is mapped as having a District Regional Activity Centre to the east of the highway. Nothing is mapped in west Gordonvale, but, as was pointed out on behalf of the appellant, the Regional Activity Centre Network only includes Regional Activity Centres.
District Regional Activity Centre’s are defined in table 6 of the Regional Plan as follows:
“District Regional Activity Centres contain a reasonably large concentration of business, employment and population. They provide a range of convenience retail and urban services and may contain a small district or branch offices of government and other government services such as police, fire and ambulance.
These centres may also contain a hospital, secondary school and provide a range of cultural and entertainment facilities such as a museum, sports parks, café and community hall. Some above-shop and attached dwellings may be present in the centre core.”
The existing town centre comfortably falls within the description of a Regional Activity Centre and in particular, a District Regional Activity Centre. The subject proposal does not[28]. The Regional Activity Centre network only includes Regional Activity Centres. The Regional Plan contemplates Local Activity Centres which sit below the Regional Activity Centre network.
[28]T7-52, 53, 54, even though its catchment extends well beyond the 400m referred to in s 4.2.7.
After the description of Regional Activity Centres extracted above, section 4.2 of the Regional Plan goes on to state, amongst other things (emphasis added):
“4.2 Regional activity centres
Regional activity centres are vital to the delivery of a sustainable settlement pattern. They are economic engines and focal points for social interaction and public life, contributing greatly to local identity, sense of place and lifestyle. The concentration and co-location of goods and services, facilities, jobs and housing in highly accessible locations facilities multi-purpose trips and alternative modes of transport such as walking and cycling. This is a key strategy for reducing travel demand in response to oil vulnerability and climate change.
…
The primary purpose of the regional activity centre network is to identify the future centre hierarchy in the preferred pattern of development. Centre vitality and viability can be facilitated by avoiding competition between lower and higher order centres, and at a finer scale, by avoiding out-of-centre development. This will need to be balanced by the other objectives of the regional plan which seek to maximise local employment opportunities (i.e. self containment) and access to a broad range of services to minimise the need for car based travel to other centres in the region.
Objectives
§ To identify a regional network of activity centres to support the preferred activity pattern of development and promote self-containment.
§ To promote regional activity centre vitality and viability via a proactive plan-led approach to land use and infrastructure allocation.
Land use policies
4.2.2. Development of regional activity centres results in consolidation in the central core and surrounding frame, is of appropriate type and scale, and is accommodated by efficient use of land and buildings.
…
4.2.6 Centre activities are encouraged within regional activity centres and should only occur outside of such centres where:
(a) there is a demonstrated public need and sound economic justification
(b) there are no alternative sites in-centre
(c) there would not be an adverse impact upon the functionality of surrounding centres, infrastructure delivery, traffic congestion, and amenity of any adjoining residential areas
(d) the site is readily accessible by a range of transport modes including public transport (where available), walking and cycling.
…
Explanatory notes
Growth of regional activity centres should be accommodated by efficient use of land and buildings in the activity centre core and frame wherever possible. It is acknowledged that in some instances this is not always possible. The preferred approach should be to locate centre activities based on the following order:
1. locations within the centre where suitable sites or buildings for conversion are, or are likely to become, available, taking account of an appropriate scale of development in relation to the role and function of the centre; and then
2. on the edge of the centre locations, with preference given to sites that are or will be well-connected to the centre; and then
3. outside of the centre locations, with preference given to locations which are or will be well served by a choice of transport modes and which are close to the centre and have a high likelihood of forming links with the centre.
Development outside of the centre is inconsistent with the strategic intent of the regional plan as it can diminish regional activity centre vitality and detract from economic growth by diluting public and private investments in centre-related activities, facilities and infrastructure.”
It may be noted that, in an earlier section, the Regional Plan states that the ongoing viability of the existing District Activity Centre at Gordonvale is to be considered in planning for centres in the Mount Peter Area as well as other centres that may have an effect upon it.
In the case of Gordonvale it is necessary to balance support for the vitality and vibrancy of the Regional Activity Centre (by avoiding competition) with the objective of maximising local employment, and the provision of needed services which minimises the need to travel to other centres in the region (escape expenditure). The preconditions to the location of centre activities outside a Regional Activity Centre, stated in land use policy 4.2.6, are discussed later and I am satisfied, on the balance of probabilities, that those have been established in this case.
As to the preferred approach to locating centre activities, whilst I accept that supermarkets are not the sole province of Regional Activity Centres, a full-line supermarket is an expected use within a Regional Activity Centre, and does not exist in the Regional Activity Centre at Gordonvale and probably will not, in the foreseeable future, if the proposal proceeds on the subject site. The town planners agreed that it would be preferable, in the circumstances, if the facilities proposed to be provided in the proposal, particularly the full-line supermarket, were located within or adjacent to the District Centre. As the Regional Plan acknowledges however, that is not always possible. A central plank of the appellant case is that it is unlikely to occur in or on the edge of the Gordonvale District Centre.
Draft Mount Peter Structure Plan
This document was approved by the Minister for public notification on 23 December 2011 subject to conditions. Public notification has not occurred. This document can only be relevant under the Coty principle.
The structure planning and master planning provisions in SPA have now been repealed. If, upon commencement of the SPOLA Act 2012, a local government did not have a Structure Plan in effect for a declared Master Planned Area, the local government must amend its planning scheme for the Master Planned Area.
The Council’s Planning and Sustainability Committee resolved on 14 November 2012 to use the Draft Structure Plan to guide and inform the assessment of development in Mount Peter under CairnsPlan until the relevant provisions are incorporated into the new Cairns planning scheme.
The Mount Peter Master Planned Area lies west of the Bruce Highway and north of Draper Road. The area is projected to accommodate a population of 50,000 on full development[29]. The Structure Plan identifies future potential Local Centres including one around the intersection of the Highway and Draper Road, and future District Centres at Maitland Road and Coopers Road. Full-line supermarkets at either of those future District Centres is unlikely before 2025[30].
[29]Exhibit 8, para 30.
[30]Exhibit 8, para 34.
There is no conflict with what is proposed at Mount Peter. The respondent pointed to it as evidence that, over time, there will be planned shopping facilities in that area. The proposal will not frustrate those plans. The document is also another which acknowledges the role of the Gordonvale District Centre.
Edmonton Town Centre Amendments
In December 2011 amendments to CairnsPlan 2009 took effect (which have not yet been consolidated into the planning scheme) to facilitate the establishment of a new Edmonton Town Centre on a Greenfield site at Edmonton on the western side of the Bruce Highway. That is some time into the future and does not impact upon the need for the subject proposal[31].
[31]Exhibit 8, para 59.
Section 4.5.9 the amendment includes a Town Centre Planning Area Code which contemplates a broad range of shopping, business and community facilities being established. This was pointed to as further evidence of planning for shopping facilities in the broader region.
Other documents
There was reference to some other documents, which have no particular statutory status. In May 2011 the Council’s Planning and Environment Committee received a “Gordonvale Local Plan Status Report”. The Council simply received the report and noted that further local planning (including continuation of the Gordonvale Local Plan) will be conducted as part of the new planning scheme development. There is no draft planning scheme at this stage.
Mr Perkins made reference to a study (the SGS Centres, Employment and TOC Strategy) which was commissioned by the Council and issued in April 2012. It nominated the town centre as a “Town District Centre” and said:
“Gordonvale may require increased retail floorspace to service population growth in the area, however out of centre development should be restricted unless an overwhelming community need is identified and cannot be located in existing activity centre zonings. The traditional mix of uses and traditional character should be maintained and enhanced.”
The report has no particular status. The issues of need and the lack of opportunity to satisfy that need in the District Centre have been examined in any event.
Mr Perkins also referred to a submission by an industry group to the ACCC in 2012 that has no independent weight. I have however, considered the opinions of Mr Perkins including the extent to which he has adopted the sentiments in that submission.
Reference was also made to the Council’s Neighbourhood Character Study (2010) and relevant precinct brochures for Gordonvale, which focus on traditional housing.
I have not gained significant assistance from those documents in dealing with the determinative issues in the case.
Need for the facilities proposed
In Watts and Hughes Properties Pty Ltd v Brisbane City Council [1998] QPELR 273 at 275 the Court 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 (see Cut Price Stores Retailers v Caboolture Shire Council (1984) QPLR p.126 at p.131). Need does not connote a pressing urgency but relates to the wellbeing of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality (see Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD p.58 at p.60).”
Likely commercial success does not, of itself, establish need. The issue of need must be considered objectively and reasonably.
As to need for a full-line supermarket, the economists called by the appellant (Mr Duane) and the respondent (Mr Leyshon) stated in their joint report that[32]:
[32]Exhibit 8, para 46.
“The trade area population by 2014 at in-excess of 9,000 persons and excluding any significant population growth that is projected to occur at Mount Peter over time, is of a size to support a full-line supermarket as proposed at the subject development.”
and[33]
“… the experts agree that there is likely to be an economic need and demand for a full-line supermarket within the defined main trade area to service the existing residential population, allowing for further growth in the Mount Peter release area near Gordonvale, and further allowing for supermarkets in the Mount Peter area over time.”
[33]Exhibit 8, para 60.
It might be noted that the trade area population of 9000 referred to is for the main trade area identified by the economists. While the main trade area extends to Goldsborough, Meerona and Mount Peter, the bulk of the population at present is in Gordonvale (3010) and west Gordonvale (3200)[34]. The population of the main trade area is projected to grow.
[34]Exhibit 8, Table 1.
When the need of the community under consideration involves the daily essentials of life such as food and groceries, questions of convenience and availability of choice to the public are significant considerations. The proposal would deliver a full-line supermarket to a growing area which needs one, can support one, but currently has none.
In the absence of a full-line supermarket, the IGA in the District Centre is trading at high levels and there is also significant escape expenditure, reflecting the fact that, without a full-line supermarket, residents of the area currently have to resort to the non-full-line supermarket (the IGA) in the District Centre to a greater extent than might otherwise be expected or to a full-line supermarket beyond the Gordonvale area. Mr Duane estimated escape supermarket expenditure at 60% and almost two-thirds of all retail expenditure[35]. A shopper survey in the IGA, conducted prior to extensions to the Mount Sheridan centre to accommodate a full-line Woolworths supermarket, indicated that more than 50% of IGA customers were undertaking the majority of their shopping outside of Gordonvale[36]. Beyond the main trade area, major supermarket facilities are located more than 8.5 kilometres away (or a round trip of at least 17 kilometres). My conclusion that the proposal would better or more conveniently serve the residents of the area is consistent with the economists’ opinion that it would capture significant escape expenditure as well as custom from the IGA.
[35]Exhibit 8, para 71, 98(h).
[36]Exhibit FG1, para 21, 22.
Mr Leyshon said that, while there is a need for a full-line supermarket, the Gordonvale population was not “unacceptably deprived”[37]. Mr Perkins pointed out that people have obviously chosen to live at Gordonvale despite the absence of a full-line supermarket. It was also pointed out that those Gordonvale residents who commute to Cairns, for employment or other purposes, will pass full-line supermarkets beyond the main trade area. It does not follow however, that residents do not also now have to travel for a shopping specific trip[38].
[37]Exhibit 19, page 5, para 2.2.
[38]T3-42.
The fact that people, who have chosen to live in Gordonvale, may be able to get by without a facility in their area, by making other arrangements, does not however, mean that its provision would not meet a public or community need. This is not a case where the catchment is proximate to a range of other full-line supermarkets[39].
[39]cf Garyf v Maroochy Shire Council & ors [2008] QPEC 101 where 80% of the catchment were only 2.5km to 4kms from existing facilities.
The orderly provision of a convenient range of goods and services is a legitimate expectation for the residential community of the Gordonvale area. The satisfaction of that legitimate expectation in Gordonvale at this time would reasonably involve the provision of a full-line supermarket. The subject proposal would not only provide the needed full-line supermarket, but in doing so, would provide greater convenience, increased competition and a higher level of choice for local residents. The need for the proposed full-line supermarket is strong.
There is also a need for the other components of the proposal. Insofar as the service station component is concerned, the economists agreed, in their second joint report that:
“121. Overall, the Gordonvale market could clearly support and need further fuel outlets. This would have a number of benefits including:
(a) There is a large and growing fuel market as a result of the population growth in the catchment.
(b) There would be substantial improvements in price competition from the offering of fuel discounts associated with a major retail store (Woolworths), particularly considering the two large service stations in the catchments currently are owned by the same group.
(c) Improved consumer convenience of having a petrol outlet adjacent to a proposed Woolworths supermarket.
(d) Greater choice of brands for consumers for their fuel needs.
(e) An established fuel discount scheme for one of the most successful food and grocery traders within Australia.
(f) Improved convenience with the closest Woolworths petrol outlet some 17 km away at Earlville.
122. The experts agree that if a Woolworths supermarket is approved by the Court, that there would be an expectation in the community that they would be able to purchase discounted petrol at the site at the same time.”
It was also agreed, between the economists, that there is need for further specialty shops and fast food outlets within the Gordonvale area[40].
[40]Exhibit FG1, paras 90, 91, 101-103.
Overall, there is a need for the collection of facilities proposed to be provided, in an integrated development, by the proposal.
Can the existing District Centre provide for the need?
It has already been observed that it was common ground between the planners that it would be better if the proposed facilities, (particularly the full-line supermarket) were provided within or adjacent to the existing District Centre, rather than on the subject site at west Gordonvale. Senior counsel for the respondent pointed to other existing regional towns in which full-line supermarkets had been able to develop. There are however, significant obstacles to full-line supermarket based development occurring in the District Centre at Gordonvale.
While the Council’s issues included that “there are alternative sites in-centre”, none was identified prior to the hearing. An examination of the land in the District Centre Planning Area in Gordonvale reveals that there is no vacant land available to accommodate the proposed development or, indeed, the full-line supermarket component thereof. The District Centre is, in practical terms, full[41].
[41]T7-44, line 5.
Mr Perkins undertook an exercise to identify discrete theoretical opportunities, on relatively small sites, for specialty shops and possible re-development opportunities. Leaving aside the ‘government land’ south of the District Centre (discussed later), none was of a sufficient size for a full-line supermarket, let alone the full range of facilities proposed to be provided by the appellant[42]. I am satisfied that there is no currently available opportunity to provide the needed facilities by way of adaptive re-use within the District Centre Planning Area at Gordonvale.
[42]T7-38.
It is difficult to see a re-development opportunity within the District Centre Planning Area, sufficient to provide for the need, arising. The development of even a single full-line supermarket with some associated facilities would, as Mr Perkins acknowledged, be difficult. As Mr Schomburgk pointed out, realising such an opportunity would involve amalgamation of numerous small parcels, of less than ideal configuration, from multiple owners and re-development of existing built structure, some of which has local character elements (the whole of the District Centre Planning Area is affected by a character overlay).
Mr Perkins acknowledged difficulties for re-development arising from the size of allotments, existing land uses and character issues[43]. While Mr Perkins said that realisation of a re-development opportunity, sufficient to provide for a full-line supermarket, was not an impossibility, Mr Schomburgk’s evidence satisfies me that, from a practical perspective, it is improbable[44].
[43]T7-45.
[44]T6-44, 47, 49-50, 89; T7-22.
Attention next focused on whether the need could be satisfied by a site adjacent to the District Centre Planning Area. While the planning documents do not suggest that the District Centre Planning Area at Gordonvale is intended to expand beyond its current boundary, the planners agreed, consistently with the approach in the Regional Plan, that such a location would be the next best, if the need could not be accommodated within the existing designated area. There is however, also no currently available development or re-development opportunity adjacent to the District Centre Planning Area which might accommodate the facilities to meet the identified need.
The respondent and third co-respondent ultimately relied on the evidence of Mr Obersky, a member of the third co-respondent by election, to suggest, for the first time during the hearing, that there is a theoretical possibility that land in a ‘government precinct’ to the immediate south of the District Centre Planning Area (which has been home to a police station, post office, ambulance and fire brigade) might, at least in part, become available for purchase. In that event, it might be available for extension of the District Centre to an extent which might accommodate a full-line supermarket based development, if that was proposed.
On 16 September 2012, Mr Obersky and another, met with the Minister for Police and Community Safety and the Deputy Commissioner to discuss the possibility of the police land, ambulance land and fire brigade land being sold to provide an opportunity for a supermarket based development. The Minister indicated that, for the Government to consider such a proposal, arrangements would need to be made to ensure that appropriate properties were acquired by the Government for relocation of services and that the arrangement would need to be cost effective. On 25 September 2012, the Minister wrote to the third co-respondent by election to that effect.
No arrangements of the kind referred to in the meeting or in the correspondence have been formulated, assessed or advanced. The investigation of this theoretical opportunity is both recent and preliminary[45]. Mr Obersky, who expressed some frustration at the lack of planning for the future growth of the District Centre at Gordonvale, expressed an intention to try to formulate some kind of public/private partnership proposal to put to the Government if this appeal is dismissed, but there are no details of such a proposal as yet.
[45]T7-45.
Any re-development of the government land depends not only on making arrangements for the land to be freed up and finding a developer prepared to bring forward a proposal, but also on obtaining any necessary development approval. The Council has produced a “Gordonvale Draft Concept” which conceptually shows some expansion of the town centre, but it is marked “not Council policy – for discussion only”. It has no statutory status and is not the subject of any formulated draft amendment to the planning scheme.
The proposition that the needed development could occur on the Government land is too speculative to put significant weight upon. As was submitted for the appellant:
“Here, there has been nothing more than a preliminary investigation of the possible availability of some 9,990m2 of land in the township which could accommodate part but not all of the proposed development. The feasibility of purchasing and assembling that land, both practically and financially, is speculative. There is nothing which would inspire confidence that, in the absence of the subject proposal, there is any prospect of not only land becoming available but also developer interest in acquiring that land and making an application to provide the additional facilities to meet the undoubted needs of the community.”
It was pointed out that it is only in relatively recent times that the population of the catchment has grown to an extent that would support a full-line supermarket and that the subject application created a disincentive to potential developer interest in the town centre. It was submitted that refusal of the subject application would serve to motivate the likes of Fabcot to look to achieve development in the town centre (within or adjacent to the District Centre Planning Area). The difficulty in the case of Gordonvale is the lack of evident opportunity, notwithstanding any motivation. I am satisfied that refusal of the subject application in the hope that the needed facilities (or at least the full-line supermarket) would be provided in or adjacent to the District Centre is unlikely to lead to the satisfaction of the community need in a timely way[46], if at all[47].
[46]Which Mr Schomburgk reasonably put at within 5 years: T6-62.
[47]Cf Comkey Pty Ltd v Caboolture Shire Council [2006] QPER 399.
The third co-respondent by election also pointed to an old cane farm, currently owned by CEC Group Ltd, on the northern side of Cairns Road, between the District Centre and the Draper Road/Bruce Highway intersection. That site is not planned for a shopping centre nor is there evidence of interest from anyone in developing a shopping centre there. In any event, that is neither in or adjacent to the town centre. While it is on the eastern side of the highway, it is separated from the existing District Centre both in terms of distance and intervening uses.
Likely impact on the District Centre
That the proposal would satisfy a public or community need which is unlikely to be met in a timely way, if at all, by reliance on land in or adjacent to the existing District Centre is not necessarily determinative. It may be, on balance, undesirable to allow for the satisfaction of a public or community need if it comes at too high a price. In this case it is the adverse impact on the District Centre which is the central concern of the respondent and the third co-respondent by election. It was submitted for the respondent that, on balance, it would be better for the community to endure, at least for the present, the identified need than to suffer the impacts on the District Centre.
Town planning is not generally directed to restraint of trade or protection from competition, but the plain intention of the planning documents in relation to the current and future role of the District Centre in the planned hierarchy leads me to conclude that the appeal should not be allowed if the likely effect of the development on the function of the District Centre would be undue. The respondent submits that it would devastate the District Centre’s viability, vitality and function. Similarly, the third co-respondent by election submits that it would “sound the death knell for the community”. That would, if true, be an unacceptable degree of impact.
The likely impact on the District Centre was assessed by the economists. Not all of the custom of the proposed development would come at the expense of existing facilities in the District Centre of Gordonvale. The proposal would have the benefit of winning, for Gordonvale, a deal of expenditure which currently escapes to facilities beyond Gordonvale. Indeed, that would be the majority of sales for the new Woolworths. It is also clear however, that the proposal would attract some expenditure which would otherwise occur within the District Centre.
As was pointed out on behalf of the respondent, the likely impact on retail expenditure in the District Centre, expressed in percentage terms, appears relatively high. As was submitted for the appellant however, that is not determinative. Consideration needs to be given to the composition of the District Centre, the trading levels of the businesses likely to be impacted and their capacity to absorb those impacts.
The composition of the District Centre differs from that of the proposal. The proposal is overwhelmingly a retail centre. The District Centre, on the other hand, has only 44% of its floor space used for retail uses. Fifty-one per cent of the District Centre floor space is used for non-retail purposes, while 5% is vacant. Of the 51 tenancies in the District Centre only 22 are retail, the largest of which is the IGA. The Gordonvale District Centre is not a suburban shopping centre, but a traditional ‘main street’ style centre with recognisable character and historic significance.
Any adverse impact on the non-retail tenancies in the District Centre is likely to be slight[48]. In his initial report Mr Leyshon said:
“While I agree there may be no direct effect on such businesses attributable to the proposed development, they may be affected by it over the long term if Gordonvale declines as a centre and residents choose to patronise non-retail services in other centres such as Edmonton and Mount Sheridan for example.”
[48]The second joint report recorded Mr Leyshon’s opinion that “many businesses in Gordonvale may be little affected by the proposed development if they are not replicated in the proposed development. This is particularly so for non-retail businesses”. – 1st JER para 74, 2nd JER para 80.
The scenario postulated by Mr Leyshon is speculative and, in my view, unlikely, particularly as escape expenditure is to be recaptured in Gordonvale. As was submitted on behalf of the appellant:
“It is difficult to imagine why residents would choose to patronise non-retail services outside Gordonvale to the same or a greater extent than is presently occurring if the proposed development is approved and supermarket shopping expenditure is being retained in Gordonvale. Mr Duane persuasively explained why it is logical that residents would use non-retail services in the District Centre rather than making a long return trip to Edmonton or further afield to use those services.”
As Mr Duane pointed out, there are a number of retail tenancies in the District Centre which are unlikely to face direct competition from the proposal. Leaving the IGA to one side, there are 11 of the 21 specialty retail tenancies which are more likely to potentially face competition, depending on which retail tenants locate in the proposed development. In relation to those the potential impact on seven is likely to be less than 10%, which is within a normal competitive range. Potential impacts of greater than 10% were predicted for only four specialty tenancies (again leaving the IGA to one side), being the butcher, Hong’s Handimart (a convenience store), the newsagent and the pharmacy.
The economists had the benefit of the trading figures for some businesses including the butcher and the newsagent. The figures paint a picture of businesses which are trading well, in terms of turnover and also enjoy low costs. For example:
Further, in a retailing sense, the community is split in its use of facilities within Gordonvale and its recourse to facilities further afield. The proposal will, by capturing escape expenditure, lead to a greater proportion of the whole community gathering at facilities within the community to undertake their weekly shopping. It will also offer employment opportunities within the community.
Insofar as the ‘split’ arises from the fact that the proposed shopping facilities would be located outside the existing District Centre:
(i) the planning documents admit of the prospect of some facilities being provided in local centres outside the District Centre; and
(ii) reliance on the District Centre is, I have found, unlikely to lead to satisfaction of the need in a timely way, if at all.
A deal was made of the positive contributions which operators of businesses within the District Centre make in supporting the community. They make significant contributions (in cash and kind) to community and not-for-profit organisations and are involved in community events. Their contributions are both commendable and significant. That does not however, lead me to conclude that the proposal would have an undue adverse social impact. In that regard:
(i) the community spirit of the operators of these businesses is unlikely to dry up simply because the proposal proceeds;
(ii) while the proposal will have some adverse economic impact, at least on some businesses for some time (and therefore perhaps reduce their capacity for generosity) I have found that the impact will not be undue; and
(iii) there is no reason to believe that the operators of businesses within the proposed centre would not also be supportive of the community. For example, the evidence of Ms Shard, the head of Community and Sustainability for Woolworths Supermarkets, was to the effect that Woolworths has a number of initiatives to assist worthy causes in local communities. She was criticised for not having visited Gordonvale, but, as she explained, her role is to facilitate and enable local community support as determined by local store managers in their community.
I am satisfied that the proposal would not have an unacceptable negative social impact. Indeed, it is more likely to be beneficial than harmful.
Amenity and Urban Design
(i) Tangible impacts
As has been noted, it was common ground that direct tangible amenity impacts such as noise can be dealt with by the imposition of conditions.
(ii) Quality of design
The remaining amenity issues related to the more intangible concepts of visual amenity, urban design and character. It should be acknowledged, at the outset, that the quality of design of the built form and landscaping is high for developments of this kind. Indeed, in their first joint report the experts agreed that the design of the proposed buildings and landscape is of a high visual quality although, as Mr McGowan pointed out it in his testimony, his agreement to that was qualified by the observation that, in his view, the format and type of development inevitably presents some shortcomings. As he confirmed in his testimony however, he stands by the following point of agreement in the second joint report:
“Notwithstanding subsequent comments on landscaping, the experts agree that the proposed landscaping, using appropriate species that reflect local character, will provide a high standard of presentation and landscape setting for the proposal.”
Some issue was taken by Mr McGowan with the utility of a proposed landscape area on the western side of the proposed supermarket. As Dr Hassall pointed out however, the landscape setting is not designed as an active park, but rather as a passive space for visual purposes. It has utility in this way.
(iii) Impact on the District Centre
The subject site has no direct visual affect on the town centre but the respondent relied on consequences of its likely economic impact on the District Centre. It was submitted that:
“Equally (if not more) important in terms of visual impact, are the potential impacts on Gordonvale town centre. Given the significant adverse impacts on the Gordonvale town centre accepted by the economic experts (and discussed above), it is inevitable that a decline in economic activity in the town centre will have an adverse impact on local character. On the basis of Mr McGowan’s unchallenged evidence this will manifest itself through:
(a) a decline in the level of vibrancy and activity in the town centre;
(b) vacant shops in the town centre;
(c) disrepair of private structures as a result of reduced investment in maintenance and upkeep;
(d) erosion of social activity and engagement in the town centre;
(e) increased frequency of crime and anti-social behaviour as a result of reduced surveillance and apparent lack of maintenance and facility management;
(f) reduction in community pride, sense of identity and relationship to place;
(g) reduction in tourism and visitor activity due to reduced character values.
Decline of this kind in a rural township such as Gordonvale, which does not have high population growth rates, will not be recoverable.
It is significant that Dr Hassall and Mr Blaxland would not be drawn to comment on these matters in the joint reports. Their silence speaks volumes.”
Dr Hassall and Mr Blaxland refrained from speaking about the likely effects of economic impact, since they are not economists. Mr McGowan’s “unchallenged” evidence is in the nature of an identification of how economic decline can manifest itself. They are the sorts of things which might happen if serious decline was experienced. I have found however, that the likely impact of the proposal on the District Centre will not be undue. I am satisfied that it is unlikely that there will be any unacceptable level of impact of the kind referred to by Mr McGowan.
(iv) Impact on the local area
The debate on visual amenity otherwise focused on the design and visual impact of the proposal itself. It was submitted, on behalf of the respondent, that the proposal would have unacceptable visual impacts on the locality and the residential amenity of those who live, or would come to live, nearby. Particular emphasis was placed on the acoustic fences required to the southern and western elevations and on the height, bulk and scale of the built form.
The concerns, in this respect, centre on the interface between the proposal and the highway and between the proposal and the adjacent areas set aside for future residential development. The proposal will have no visual impact on the town centre to the east of the highway, since there is no existing or likely future visual connection between the subject site and the town centre.
When acoustic fences of 3.5 – 4.0 metres in height were first proposed for the southern and western boundaries, the experts regarded them as providing a poor visual outcome. Subsequently however, a revised acoustic barrier design has been produced which softens the visual impact. On the southern side of the proposal the acoustic barrier will step down progressively, from east to west, from 4 metres to 3 metres and ultimately to 2.5 metres. That barrier is also set in from the property boundary, with an intervening 3 metre wide garden to be planted in front. That garden is to be planted with a layered arrangement of shrubs and plants, which will soften the appearance of the acoustic fence and provide a more attractive street view. That is, in my view, acceptable.
To the west of the site there is to be a landscaped area south of the site access. To the north of that access there is to be a barrier which steps down (north to south) from 3 metres to 2 metres, adjacent to land owned by the appellant but not included in the subject application. Unlike the fencing proximate to the southern boundary, there is no landscaping planned between the western fencing and the boundary. The adjoining land has potential to be used in the future for a medium-density residential development. Boundary fencing, at least to 2 metres in height, is a common feature of residential areas. Fencing of a substantial length is not uncommon adjacent to medium density development. Opportunities would exist to soften the presentation of the fence for future residents by incorporation of landscaping in future development.
This revised plan for acoustic fences provides an acceptable outcome in terms of visual amenity for future residents. It should be noted that residential development around the subject site has not yet occurred. Consequently, there are no existing residents who would be affected and future residents will be aware of what has been developed or approved when making their decision to purchase.
Attention was drawn to the presentation of the western fence pending development of the adjacent land. It has already been observed that 2 metre high fencing is of a residential scale. Dr Hassall conceded that he would prefer to avoid the visual impact of the 3 metre section, but accepted it, given that it will be temporary, pending development of the adjacent site. This interim impact could be obviated by a condition which defers the construction of the fence pending development of the adjacent site[57]. In any event, I do not consider that the impact is so significant as to warrant a refusal of the proposal, given its merits otherwise.
[57]T8-37.
Insofar as the height, bulk and scale of the buildings are concerned Mr McGowan considered that, while the scale of the development may be compatible with its highway location, it is incongruous with the smaller scale of the residential area.
It is to be expected that a development of this nature would include buildings of greater height, bulk and scale than detached dwellings. That does not mean however, that residential character or amenity would necessarily be unduly compromised. Shopping centre development is, of course, not uncommon in the context of residential areas. Indeed, the Local Centre site is embedded in the otherwise residential area of west Gordonvale. The Acceptable Measures relating to built form in the LCPAC contemplate buildings to 10 metres in height and 80% site coverage. In this case, the arrangement of the built form and its proposed landscape treatment will assist in reducing the impact of the bulk and scale of the proposal.
The arrangement of the built form on the site was dealt with by Mr Blaxland as follows:
“4.2 The building heights of the proposed development range from 3.6m (being the eaves line of the smaller retail shops) to 10.0m at the ridge of the plant room over the supermarket.
4.3 The buildings are set back 10.0m from the eastern boundary. The building setbacks to the western boundary are substantially more than 3.0m. Only to the southern boundary has any substantial built form (being the supermarket loading dock) been set back only 3.0m, and that only from some 50% of the extent of the southern alignment.
4.4 Where the bulk of the building (being the supermarket and its loading dock) are set back 3.0m from the adjacent southern boundary, the adjacent land use is a future local park and residential access road. This will therefore create a setback of some 20 metres to any residential building.
4.5 In my opinion the setbacks adequately provide for landscape opportunities, which reduce the visual bulk of the supermarket building.
4.6 While the proposed supermarket is not of a residential scale, the landscaping and building massing articulation will reduce the bulky nature of the supermarket and produce a visually attractive backdrop to the future residential area.”
Dr Hassall pointed out that the proposal would be perceived as a single cluster of buildings on the subject site, well separated from other nearby buildings by extensively landscaped set backs. He concluded that the proposal would not be perceived as having unacceptable bulk or height, but having modest dimensions that are perceived to be placed in a greater natural context, in a landscape setting. I accept the evidence of Mr Blaxland and Dr Hassall and prefer it to that of Mr McGowan. I find that the bulk and scale of the proposal will not compromise the residential character of the broader west Gordonvale area or result in a development which is inappropriately bulky or visually obtrusive.
(v) Gateway location
Consideration was also given to the adequacy of the proposal in addressing its “gateway” location. Performance criterion 3 of the Shopping and Business Facilities Code provides:
“Buildings located in prominent positions, such as “gateway” and corner sites on principal streets, with frontages to major public spaces, and terminating important vistas, are designed to express or emphasise the importance of their location.”
Further, section 4.1 of the FNQRP requires development to be managed in a way that “fosters a sense of departure and arrival to and from urban areas”.
As Dr Hassall said, gateways are perceived and understood best by travellers when they are sited legibly on a road that provides direct access to a place. An important part of a gateway is to be somewhere from which that place can be perceived. Visual clues are important.
The subject site sits at the corner of principal streets (Draper Road and the Bruce Highway). The intersection provides access to the west, past the subject site, to the residential development in west Gordonvale and, to the east, to the older part of Gordonvale.
Existing development about this intersection shows little sign of being designed to emphasise the importance of the location. On the north-eastern side of the intersection lies a service station and fast food shop development featuring bright red colouring, which presents its side to the highway and has little landscaping. Mr McGowan described it as “unfortunate”[58]. On the south-eastern side lies a collection of utilitarian industrial/commercial shed buildings which are largely un-landscaped and unattractive. The land to the northwest is undeveloped, as is the subject site.
[58]T5-49.
Future development of the subject site for residential development, in accordance with its existing area designation, is unlikely to achieve much, if anything, for the ‘gateway’ location. As Dr Hassall and Mr Blaxland pointed out, one might expect typical residential buildings sheltered behind acoustic barriers to the highway and road frontages.
Granting a preliminary approval overriding the planning scheme, for development such as is proposed, will increase the visual significance of the intersection and afford the opportunity to capitalise on its location. As the experts agreed in their second joint report:
“The experts agree that through the intensification of built form and activity that would result from the proposed development, the visual significance of the intersection of Draper Road and Bruce Highway is elevated. Such an elevation of significance would not occur if the site was developed with residential development.”
and
“The experts agree that the proposed development capitalises on its elevated significance by tying together the range of uses surrounding the intersection to create a distinct precinct and by creating a more identifiable and memorable development to mark the entry into the residential estates to the west of the Highway.”
Mr McGowan was critical of the fact that the built form components closest to the intersection, namely the petrol station and fast food outlet, face into the development, rather than address the street. As he acknowledged, this is not uncommon for this type of development. As Mr Blaxland explained, the arrangement is advantageous for customers of the development to access these facilities. These are relatively modest built elements. As Mr McGowan acknowledged, the road frontages are to be attractively landscaped.
While I understand that Mr McGowan would wish for something which he would regard as better, I find that the proposal adequately meets the objectives for its location. I accept Dr Hassall’s evidence that the proposal will positively contribute to the identity of the whole intersection as well as to the gateway to the suburban Gordonvale precinct. Similarly, I also accept Mr Blaxland’s evidence that the proposal will become a clear urban marker and improve the neighbourhood entry into the residential area. I find that it is designed to express or emphasise the importance of its location and fosters a sense of departure and arrival to and from the urban area.
(vi) Visual character and identity
Mr McGowan considered that the proposal fails to contribute positively to the character and sense of identity of the local area. In his view, the proposed development is a ‘standard’ designed shopping centre that has no regard or sensitivity to its context. That description does not acknowledge Mr Blaxland’s evidence that some effort was put into designing the proposal to be sensitive to its context, within the constraints of designing a contemporary shopping centre. For example, the built form has been articulated. Large eave overhangs are included as are cross-bracing elements and colonnades.
Mr McGowan saw the need for “more definite and significant reference to character”. Mr McGowan saw the following qualities as defining the character of the broader local area:
§ the contrast of the canefields with the dramatic landscapes of the surrounding hills;
§ the horizontality and layering of landscape types;
§ predominantly low rise development which sits comfortably in the landscape;
§ a dominance of lush vegetation intermingling with the built form;
§ prominence of certain landscape features such as Walsh’s Pyramid; and
§ linear landscape corridors extending from the vegetated hillslopes and along creeklines, which dissect development areas, and the rural landscapes.
I do not consider that the proposal would adversely affect those features of the character of the broader local area. As Mr Blaxland said:
“Mr McGowan acknowledges in paragraph 4.22 of the supplementary JER that “recent residential development to the west of the Highway doesn’t necessarily capture or reflect the broader characteristics of the area”. However, under the current zoning, this kind of development is what we are likely to see within future residential growth areas.
In contrast, the proposed development offers a focal point to arrest the bland visual characteristics of the low rise residential area neighbouring the site. It offers increased visual identity without taking away from the dramatic landscape and natural beauty of the surrounding hinterland. It delivers benefits while not detracting from those characteristics identified by Mr McGowan.”
Mr McGowan also sought to draw upon the characteristics of the District Centre “not because they are necessarily present in the broader context, but because they represent qualities that the Gordonvale community might expect of future commercial development in the area”. The qualities he drew upon were:
§ varied building forms;
§ built forms balanced by landscape amenity;
§ large trees;
§ the amenity of central landscape spaces;
§ high levels of pedestrian amenity;
§ a range of diverse spaces and opportunities for social engagement; and
§ obvious connections to the region’s heritage, particularly the prominent mill structures and rural industries.
The subject site lies at the entrance to west Gordonvale, which is a contemporary and growing suburban residential area forming a significant component of the character of the local area. The likely future amenity to the west of the highway, both north and south of Draper Road, will be affected by substantial new urban growth and associated infrastructure. As Mr McGowan acknowledged in his testimony, this will further change the visual character of the area, as vacant land and cane fields are turned into contemporary urban development.
Given the existing and likely future development to the west of the highway, it is difficult to see why the subject proposal, being a contemporary, well-designed, convenience-based shopping development focused on accessibility and amenity, situated in a location where it will provide an urban marker in the surrounding landscape, is incongruent. I accept that the proposal sits comfortably in its context.
Insofar as opportunities for social engagement are concerned, the proposal does not pretend to offer a ‘town square’ or ‘civic place’ to rival the District Centre, but it will offer a forecourt area which will be a social gathering point.
In his testimony Mr McGowan ultimately said that he thought the proposal would be out of place because:
(a) no development of the size of the proposal should be developed on this corner;
(b) it would be very difficult, in his view, to accommodate a modern shopping centre, of the size proposed, which maintains and enhances character[59];
(c) there should be a greater integration of landscaping with built form by having smaller buildings broken up with landscaping.
I do not accept that. I prefer the evidence of Mr Blaxland and Mr Hassall to the overly conservative approach of Mr McGowan as to what can acceptably be accommodated on the subject site.
[59]T5-49-51.
(vii) Climatic response
Mr McGowan also took issue with the response of the proposal to performance criterion 3 of the LCPAC relating to character and community design, which requires buildings and ancillary structures to be responsive to the tropical climate by taking into account prevailing breezes and solar orientation and to be designed to minimise energy consumption. Mr McGowan pointed out that the buildings and structures are oriented north/south, while the prevailing breezes are, he said, to the south east.
Mr McGowan’s residual concerns in this respect should be put in context. It is obvious that the design is not indifferent to climatic conditions. Indeed, in their first joint report, the experts agreed as follows:
“The Tropical Design Principles in the Local Centre Planning Area Code have been addressed by the provision of shaded car-parking and pedestrian paths and colonnaded elements to the main built form, similar to those of the nearby ‘Sugar Cane’ shopping centre, as well as design amendments enabling provision of more landscape space, and larger eaves. The experts also noted that the Woolworths forecourt is naturally ventilated. Consequently, it is agreed that most issues raised by Council relating to tropical design principles have been satisfactorily addressed.”
As Mr McGowan acknowledged in the second joint report, passive cooling measures would not benefit the supermarket, which will have air conditioning and strict temperature control regimes. The same would be true of other air conditioned retail tenancies. His concern was more for parts of the retail tenancies, forecourt and carparking areas. As Mr Blaxland pointed out however, the design is not for an internalised courtyard style development. The shops are externally focused and will benefit from localised breezes, even though they are not oriented to the south east. Dr Hassall pointed out that breezes fluctuate and come not just from the south east.
Insofar as energy consumption is concerned, Woolworths has a “green stores” policy for minimising energy consumption within its stores. Particular consumption minimisation strategies could be further considered at the detailed design stage.
To the extent that any conflict could be said to arise from the failure to orientate the development towards the south east or to demonstrate minimisation of energy consumption I find that the proposal would offer an acceptable environment and that the gravity of any conflict is overwhelmed by the merits of the proposal otherwise.
Conclusion
The appellant has discharged its onus in demonstrating that the application for the material change of use should be approved. The proposal would not compromise achievement of the DEO’s and there are grounds (discussed earlier) sufficient to warrant approval notwithstanding conflict with the planning scheme. That is so even if it is assumed that the conflict goes beyond conflict with the Residential 2 Area designation. I will adjourn the further hearing of the appeal to permit proposed conditions of approval to be formulated.
The proposed variations to the planning scheme also appear to be generally appropriate, but I will also give the parties the opportunity to consider whether there should be any modification to them.
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