Fabcot Pty Ltd v Cairns Regional Council & Ors

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17

PARTIES:

FABCOT PTY LTD ACN 002 960 983

(Appellant)

v

CAIRNS REGIONAL COUNCIL
(Respondent)

AND

DEXUS FUNDS MANAGEMENT ACN 060 920 783
(First Co-Respondent by Election)

AND

CAIRNS COMBINED BEACHES COMMUNITY ASSOCIATION INC
(Second Co-Respondent by Election)

AND

INDIGENOUS BUSINESS ASUTRALIA AS TRUSTEE FOR THE IREIT SUB-TRUST
(Third Co-Respondent by Election)

AND

TRINITY PARK INVESTMENTS PTY LTD ACN 123 732 525 ATF AND L’ARMONIA PTY LTD ACN 140 784 756 ATF
(Fourth Co-Respondent by Election)

FILE NO/S:

201 of 2018, 221 of 2018, 223 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeals

ORIGINATING COURT:

Planning and Environment Court, Cairns

DELIVERED ON:

30 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 – 20 March 2020, 23 March 2020 and 30 – 31 March 2020     and written submissions received on 1 April and 2 April 2020

JUDGE:

Everson DCJ

ORDER:

1.     Appeal 201 of 2018 will be allowed subject to the        imposition of appropriate lawful conditions;

2.     Appeal 221 of 2018 is dismissed; and

3.     Appeal 223 of 2018 is dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEALS – appeals against a preliminary approval for a Shopping Centre and Health Care Services and a development permit for a Child Care Centre, Service Station and Food and Drink Outlet and reconfiguring a lot and operational work in the Low-medium density residential zone

ASSESSMENT – COMPLIANCE WITH THE PLANNING SCHEME – whether the proposed development complies with the planning scheme – whether there is a need for the proposed development – whether the proposed development would compromise the existing hierarchy of centres – whether there are relevant matters which justify approval

LEGISLATION:

Planning Act 2016

Planning and Environment Court Act 2016

CASES:

Ashvan Investments Unit Trust v Brisbane City Council & Ors (2019) QPELR 793

Gold Coast City Council v K & K (GC) Pty Ltd [2009] QCA 132

HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230

Hervey Bay Projectsv Hervey Bay City Council [1993] QPLR 104

Isgro v Gold Coast City Council & Anor [2003] QPELR 414

Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447

Murphy v Moreton Bay Regional Council & Anor [2019] QPEC 46

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 480

Redland City Council v King of Gifts (Qld) Pty Ltd & Anor [2020] QCA 41

Ugarin Pty Ltd v Logan City Council [2004] QPELR 392

Williams McEwans Pty Ltd v Brisbane City Council [1981] QPELR 33

COUNSEL:

BD Job QC and MJ Batty for the Appellant
RS Litster QC and K Buckley for the Respondent
DR Gore QC and JG Lyons for the First Co-Respondent by Election

EJ Morzone for the Fourth Co-Respondent by Election

SOLICITORS:

Keir Steele Lawyers for the Appellant
McCullough Robertson for the Respondent
Hopgood Ganim for the First Co-Respondent by Election

Emanate Legal for the Fourth Co-Respondent by Election

Introduction

1. On 10…