Fabcot Pty Ltd v Gold Coast City Council
[2011] QPEC 85
•24 June 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Fabcot Pty Ltd v Gold Coast City Council & Anor [2011] QPEC 85
PARTIES:
Fabcot Pty Ltd (ACN 002 960 983)
(Appellant)V
Gold Coast City Council
(Respondent)And
Rayjon Properties Pty Ltd (ACN 010 249 788)
(Co-respondent)FILE NO/S:
2121 of 2010
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
24 June 2011
DELIVERED AT:
Brisbane
HEARING DATES:
11, 12, 13, 14, 15 and 21 April 2011
JUDGE:
Dorney QC, DCJ
ORDERS:
1. The appeal is allowed and the development application approved.
2. The identified minor changes are excused.
3. A number of identified conditions concerning traffic are imposed on the approval.
4. The parties are to prepare such draft orders as are necessary to implement these decisions.
CATCHWORDS:
Developer’s appeal against refusal of a proposal for a “full line” supermarket – whether conflict with planning scheme – economic need – planning need – whether need to consider “sufficient grounds” – whether traffic related conditions should be imposed – “minor changes”
IntegratedPlanning Act 1997 ss 3.5.5, 3.5.14(2), 3.5.22, 3.5.5(2)(d), 4.1.50(1) , 4.1.52(1), 4.1.52(2)(a), 4.1.52(2)(b), 4.1.27(1)(a), 4.1.52(2)
Sustainable Planning Act 2009, ss 350(1)(d), 802(2), 819(5), 819(6), 821(2)(b)
Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157
Barry and Roberts Ltd v Caboolture Shire Council (1984) 54 LGRA 121
Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPELR 126
Kentbrock Pty Ltd v Gold Coast City Council [2003] QPELR 587
Kentucky Fried Chicken Pty Ltdv Gantidis (1979) 140 CLR 675
Landel Pty Ltd & Anor v Ridgeland Shire Council [2002] QPELR 402
Main Beach Progress Association v Gold Coast City Council& Ors [2008] QPEC 37
Metroplan Management Pty Ltd v Brisbane City Council & Ors [2010] QPELR 270
Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 7
Petroleum Design Management Pty Ltd & Anor v Whitsunday Regional Council & Ors [2010] QPELR 340
Redfire Pty Ltd v Council City of Logan & White [1995] QPLR 41
Tower 720 Pty Ltd v Hervey Bay City Council [2003] QPELR 178
WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126COUNSEL:
M Hinson S.C. and T Trotter for the appellant
G Gibson Q.C. and J Lyons for the respondent
SOLICITORS:
Allens Arthur Robinson for the appellant
McDonald Balanda & Associates for the respondent
Introduction
This is an appeal from a decision of the respondent (“GCCC”) to refuse a Development Application for a shopping centre development (“Development Application”) lodged on behalf of the appellant – which entity is a wholly owned subsidiary of Woolworths Ltd. I will, therefore, as the respondent has, refer to the appellant as “Woolworths” That development was for 1 Emerald Lakes Drive, Carrara in the State of Queensland, on land more particularly described as Lot 81 on SP 157852, being part of the common property of the Emerald Lakes Community Title Scheme 31623 (“Site”). The co-respondent has withdrawn from the appeal.
As noted in the respondent’s written submissions, the onus is upon Woolworths to establish anew that the Development Application for the Site should have been approved.
For the reasons to be canvassed, the appeal is allowed and the application is approved; but that approval is subject to the imposition of several conditions concerning traffic. Further, certain minor changes are excused.
Applicable Statutory Framework
The Development Application was lodged on 17 December 2009. It was a for a Development Permit for a material change of use for a proposed shopping centre and for a Development Permit for Operational Works. At that time, the IntegratedPlanning Act 1997 (“IPA”) was in force. The next day, the Sustainable Planning Act 2009 (“SPA”) commenced, with s 764 of the SPA repealing the IPA.
The GCCC decided to refuse the Development Application on 21 June 2010. Because the Development Application was made under the repealed IPA but not decided before the commencement of the SPA, the IPA continues to apply as if the SPA had not commenced, “for dealing with and deciding” the Development Application: see s 802(2) of the SPA. Accordingly, the Court must decide this appeal under the IPA as if the SPA had not commenced [ss 819(5) and 819(6) of the SPA], subject to one issue that utilises the SPA (namely, the determination of a “minor change”).
Since this was a refusal of a Development Application, this appeal was commenced pursuant to s 4.1.27(1)(a) of the IPA. As that provision requires, this appeal is by way of rehearing anew, and must be decided based on the laws and policies applying when the Development Application was made (although the Court may give weight to any new laws and policies the Court considers appropriate); and, as earlier stated, the appellant bears the onus of establishing that the appeal should be allowed: see, respectively, ss 4.1.52(1), 4.1.52(2)(a), and 4.1.50(1) of the IPA.
Because the Development Application requires impact assessment, matters contained in s 3.5.5 of the IPA are relevant. In particular, s 3.5.5(2)(d) states that the Court must have regard to any Development Approval for premises the subject of the Application or adjacent premises. The GCCC contends that, in this context, adjacent is to be construed broadly, since s 3.5.5 applies only to impact assessable development, contending that, where the legislation seeks to refer to land that is contiguous, the word “adjoining” has been used in apparent contrast. As will be discussed later, there are relevant development approvals for the Site and for places adjacent to the Site. I accept the contentions.
The relevant Planning Scheme for this site is the Our Living City – Gold Coast Planning Scheme 2003 (“Planning Scheme”).
In deciding this appeal, s 3.5.14(2) of the IPA requires, for approval, first, that the decision must not compromise the achievement of the desired environmental outcomes (“DEOs”) of the Planning Scheme area and, secondly, that the decision does not conflict with the Planning Scheme (unless there are sufficient grounds to justify the decision, despite the conflict): see paras (a) and (b).
Since the GCCC does not maintain as an issue in contention the “compromise” of the relevant DEOs, the focus in this appeal is on the issue of conflict with the Planning Scheme and, if so, the question of whether there are sufficient grounds to justify the decision, despite such conflict.
Proposed Development
The Proposed Development is for:
(a) a shopping area with a gross floor area (“GFA”) of 4,070 m² , with a site cover of 28.7 % and a maximum height of 11.6 m, containing 2 storeys;
(b) a “full line” Woolworths Supermarket with a floor area of 3,200 m² and a relevant “retail area” of approximately 2,500m2;
(c) office, and staff, amenities of 200 m² of mezzanine floor space; and
(d) specialty shops of 670 m².
As a result of changes in detail that have been made to the original layout, resulting from the expert meeting process – which changes are incorporated into the drawing, DWG SK 22A – the plan for which the appellant seeks approval contains the following additional details (as amended):
(a) 200 car parking spaces;
(b) 7 motorcycles spaces;
(c) 4 buggy parking spaces;
(d) cycle parking spaces;
(e) an easterly access and egress for vehicles into and from Emerald Lakes Drive;
(f) an westerly access and egress for vehicles into and from College Road;
(g) a service vehicle access and egress into and from College Road, with a separate service vehicle manoeuvring area (so that service vehicles can reverse into a loading bay and then leave the site in a forward gear); and
(h) a pedestrian connection to the adjacent Emmanuel College school grounds.
More broadly, there is an existing pedestrian path and roadway which would link the Proposed Development to that part of the broader Emerald Lakes development that includes incorporating both the Emerald Lakes Town Centre and the nearby residential areas.
The Proposed Development is to be located entirely on the eastern portion of the Site (“development site”), with a development area of 1.302 hectares, leaving the remaining area to the west of the Site vacant, with an undeveloped area of 0.2864 hectares.
Exhibit 3 shows the plan for which approval is sought (“Plan”); and Exhibit 6, through elevations and artist’s impressions shown, indicates the intended built form, incorporating the colours and textures to be used.
The development has a primary frontage of about 180m onto Emerald Lakes Drive and secondary “frontage” to College Road. The development site contains no significant vegetation, is not subject to flooding, and has been filled in the past. As part of the development, the eastern end of the development site will remain at its existing level and its western end will be lowered slightly by approximately half a metre.
IDAS Process
By letter dated 25 June 2010, the GCCC gave the required notification that the Development Application had been refused. Since both parties, each represented by Senior Counsel, have made detailed submissions as to what are the issues for this Court to decide, it is unnecessary to survey the reasons given in detail.
As for concurrence and advice agencies, neither the Department of Transport and Main Roads nor the Department of Environment and Resource Management required, respectively, any, or any significant, imposition of conditions concerning the Development Application.
Regarding the submissions made following public notification, Woolworths has contended, without any significant counter-contention, that, in summary form:
(a) any impact on the viability of businesses in the Town Centre hardly featured;
(b) it is not apparent that any existing tenants in the Town Centre lodged a submission;
(c) the only commercial competitor to lodge a submission was the co-respondent, Rayjon Pty Ltd, which has withdrawn from the appeal, whose interest was as owner of a supermarket-based shopping centre far from the Site, and which did not raise any economic issues;
(d) the owner of the relevant Town Centre buildings, Nifsan Pty Ltd, was supportive of the application; and
(e) none of the submissions, on their face, appear to have originated from parents of the Emmanuel College, despite the fact that 2 signs were placed on College Road near the proposed western access.
Issues in dispute
Although such issues are differently expressed in the parties’ written submissions and their, later, oral submissions, they can be reduced to the following categories:
(a) the nature and extent of conflict with the Planning Scheme;
(b) whether, despite such conflicts, if any, there are sufficient grounds to justify approval;
(c) the relevance of any consistency, or inconsistency, with the two 2005, and the 2008, Preliminary Approvals;
(d) the need for, and the economic impact of, the Proposed Development, in relation to the Emerald Lakes Village and the surrounding areas; and
(e) the design and safety issues arising from traffic matters.
It is common ground that there are no issues relating to flooding, to the flood plain management, to water quality or to an impact of the proposal on the environment. As to architectural merit and visual amenity considerations, it is conceded by the GCCC that neither of those considerations warrant refusal of approval.
Planning Scheme
Under the Planning Scheme, the development site:
(a) is located within the Guragunbah Local Area Plan (“LAP”); and
(b) is identified within the LAP as “Active/Passive Recreation” on the Conceptual Land Use Map (LAP Map 14.7).
According to Clause 4.0 of Chapter 1 of Division 1 of Part 6 of the Planning Scheme regarding local area plans generally, the role and function of LAPs involve the following principles:
(a) they are the key to the assessment status for individual development proposals within their area;
(b) the controls included in them provide guidance for the assessment of a development proposal, and translate the objectives and intent of the relevant Land Use Theme into land use and development provisions;
(c) they represent more specific and detailed controls than those contained within the Domains; and
(d) they give expression to more generalised planning strategies.
More specifically Clause 4.0 indicates that:
(a) the “Flood Plain Management – Merrimac/Carrara” Land Use Theme is implemented directly into this LAP; and
(b) by Table 1, this LAP is the expression, directly, of the Land Use Themes of “Open Space/Nature Conservation” and “Flood Plain Management – Merrimac/Carrara”.
Concerning this LAP, Chapter 2 informs as to its purpose, intent, scope, desired environmental outcomes and local area features, as well as precincts. As to the last, by Clause 6.0, Chapter 2 states that the land use should generally be located to accord with the intent and land use provisions of the precinct in which the part of the development is located.
Dealing specifically with this LAP, Chapter 14 of Division 2 of Part 6, by Clause 1.0, states that its “purpose” is to provide detailed planning and management and its “intent” is to seek to protect the hydraulic functions of the Guragunbah Flood Plain “while allowing limited residential, tourism and recreational development” and while providing “an opportunity to provide an extensive open space resource” which complements “existing and future urban development”. Specific reference is made in Clause 1.0 to this LAP being extensively based on the work undertaken as part of the relevant Structure Plan adopted by the GCCC on 30 March 1998. As noted by the appellant, that document, by its “intent”, while it had flood management as its primary aim, stated that significant commercial or industrial development is not envisaged “beyond limited local convenience or ancillary features”. The appellant’s written submissions seek to emphasise the similarity of the words in that document to those in the present LAP, noting that the application made by Woolworths for a Development Approval at Carrara was made during the currency of that earlier document and was approved during the currency of the present LAP.
Chapter 14, by Clause 3.0, deals with the desired environmental outcomes for this case. Given the narrowing of issues, the only DEO relevant here is contained in Clause 3.1. It states that the desired environmental outcome is the achievement of urban development that is “of a scale, form and character appropriate to the immediate local area” and the intended open character of the flood plain.
In Clause 4.0 of Chapter 14, concerning local area features, it is stated that it is envisaged that the Guragunbah area will ultimately comprise “a limited mix of urban residential and tourist facilities”. Additionally, it states that, in order to maximise the open character of the flood plain and “minimise the cost of urban service provision” and emergency response during flood events, “urban development is expected to be clustered and, where possible, to represent a consolidation (of) existing urban communities” (emphasis and omission added). Lastly, of present relevance, is the statement that “significant commercial or industrial development is not envisaged beyond limited local convenience or ancillary facilities” and some expansion of the industrial areas on the western extremity of the flood plain (emphasis added).
Clause 5.0 of Chapter 14 deals with planning measures. Of importance here is the statement that this LAP, while large and complex in terms of land use, is not divided into formal planning precincts for development control purposes but, instead, the entire LAP area “is treated as a single land unit”. Further, it states that it has proved not to be practical “to denote precise boundaries to areas suitable for development”, adding that the adopted format therefore provides “considerable flexibility for creative design and land use solutions” within that identified framework, whilst having due regard to the reasonable expectation of other land owners. It then states that the LAP seeks to provide for a mix of land uses, including “urban residential, tourism facilities and limited local commercial uses” (emphasis added). Again, it states that urban development is expected to be “clustered” to maximise the opportunity to provide open space areas. Importantly, it does state that LAP Map 14.7 illustrates “one future vision of the flood plain” (emphasis added).
Clause 6.0 of Chapter 14 deals with the LAP Table of Development. By Section A, dealing with material change of use, while it lists a “Shop” as an Impact Assessable Development, it does not list, for instance, a “Shopping Centre”. (It is to be noted that Clause 7.6.1 of Chapter 1 of Division 1 of Part 6, dealing with a material change of use concerning default assessment categories for the Table of Development, states that, while all uses included in Section A of the Table of Development may be considered as “appropriate”, any use not listed in Section A should be considered “undesirable or inappropriate” in the LAP).
Clause 7.0 of Chapter 14 states that the Place Code applies in all cases, adding that a Specific Development Code will only apply if that specific development is proposed, and a Constraint Code will only apply where the Proposed Development is directly impacted by the constraint that is the subject of that code. Clause 7.2, dealing with a material change of use, has Specific Development Codes and Constraint Codes; but none of them apply to the development in question.
Clause 8.0 of Chapter 14 deals specifically with the purpose, application and development requirements of the relevant LAP Place Code. By Clause 8.1, concerning purpose, it states that the Place Code also seeks “to ensure that the scale and density of development and, in particular, the impact of all development on the hydraulic performance of the flood plain is consistent with the intent of this section and the DEOs of this LAP”.
In Clause 8.3 of Chapter 14, the relevant Performance Criteria and Acceptable Solutions are tabulated. Such includes Performance Criterion PC3 relating to “site Coverage”. With respect to the role of both, Division 1 of Part 7 provides that it is “desirable” that Impact Assessable Development comply with the Acceptable Solutions to ensure that each Performance Criterion is met, while further stating that, however, Impact Assessable Development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant Performance Criterion to the GCCC’s satisfaction.
The appellant does not seek to contend that Acceptable Solution AS 3.1.1 so applies to PC3 that the particular Performance Criterion is not met. Even if it had, it is clear, from the role that both the Criteria and Solutions play, that the alternative solution of site coverage is demonstrated as meeting the relevant Performance Criterion of consistency.
Hierarchy of Centres
Chapter 2 of Division 1 of Part 3 of the Planning Scheme makes provision, at the general level, for a hierarchy of centres which are called “Business Activity Centres”. It is clear that none of the centres known as Key Regional, Regional, Sub-Regional and District Centres are the relevant catchment centres that directly apply here.
What may apply here are either of the smaller centres called “Local Centres”, having a catchment of 5,000 to 10,000 people, or “Neighbourhood Centres”, having a catchment of less than 5,000 people. All these definitions are dealt with in Clause 1.5 of Chapter 5 of Division 2 of Part 3. As that Clause notes, the range of functions relevant to such centres progressively decreases with each indicated level, “down to the convenience stores, primary schools, and community facilities of the Local and Neighbourhood Centres” (emphasis added). As stated in Clause 1.0 of Chapter 7 of Division 3 of Part 3, Neighbourhood and Local Centres are included within the “Urban Residential” Land Use Theme and, as such, are not specifically identified on Planning Strategy Maps. As Clause 1.0 further states, such centres are to provide a “limited” range of goods and services to satisfy the “convenience” requirements of an immediate catchment, adding that Neighbourhood Centres will typically provide a maximum of 3,000m² of retail floor space and Local Centres will normally provide less than 8,000m² of retail floor space. There is much symmetry between the reference here to “limited” and “local” and “convenience” and similar terminology in the relevant LAP.
Before leaving the matter of Land Use Themes, according to Chapter 1 of Division 3 of Part 3, the Themes provide a broad indication of the type of activities and development envisaged for distinct parts of the City in order to achieve the DEOs and the intent of the Planning Strategy, indicating that they are not Domains or LAPs, but are indicative, rather, of the type of Domains or LAPs that could be expected in the areas described. Although implementation of the stated planning intent occurs through the provisions of the applicable Domains or LAPs, and any other relevant Development Code, the GCCC also has to have regard to Land Use Themes as expressions of “broad planning policy” when considering proposals for Impact Assessable Development that do not fully accord with applicable codes.
Clause 1.0 of Chapter 17 of Division 3 of Part 3, concerning planning intent, notes that all development will be required to accord with the provisions of the Guragunbah LAP and that areas of urban development should be “clustered” within the least environmentally significant locations and that commercial and industrial development is not envisaged “beyond limited convenience shopping and tourist facilities” (emphasis added). As indicated by Planning Strategy Map PS1, the relevant area is part of “Integrated Planning and Development” within the “Merrimac/Carrara Flood Plain”.
The role of Local Centres and Neighbourhood Centres is explained in Clause 1.0 of Chapter 12 of Division 3 of Part 3 as “supporting” the other identified centres and as being “intended to provide convenience goods and services” for “a relatively small catchment”, adding that it is not intended that such centres expand to an extent that they significantly compete with those on Planning Strategy Map PS1.
In the definitions, contained in Chapter 3 of Division 1 of Part 4, a “Local Centre” is defined, unless otherwise provided by the relevant Place Code, as having a maximum gross floor area which must not exceed: 5,000 m² retail floor space; 2,000 m² of office floor space; 2,000 m² of entertainment floor space; and 15,000 m² of gross floor area. “Neighbourhood Centre” is defined, unless otherwise provided by the relevant Place Code, as having a maximum floor space not exceeding 1,000 m² of retail floor space.
Preliminary Approvals and Development Permits
Concerning the area defined in Exhibit 6 as the “Central Village Area”, there are 7 Preliminary Approvals and 2 Development Permits. They are, briefly stated:
(a) The 2000 Preliminary Approval: It allocated the whole of the development Site to Precinct 1, “Multi-Purpose Private Recreation”. Precinct 6 was the Resort, Hotel and Convenience Centre. Condition 7 allocated a maximum of 2,000 m² total use area for “local convenience facilities” in Precinct 6.
(b) The 2002 Preliminary Approval: While the development Site remained within Precinct 1, “Multi-Purpose Private Recreation,” and the Town Centre remained in Precinct 6, the latter was limited now to 2,000 m² total use area for “local convenience and tourist facilities”.
(c) The 2003 Preliminary Approval: The development Site was, in part, now included in the “Mixed Density Residential” designation in Precinct 4 and, in part, remained in Precinct 1, “Multi-Purpose Private Recreation”. The Precinct 4 “Intent” allowed residential development up to 10 storeys. Precinct 6 was changed to allow an expansion of the total use area of the “local convenience facilities” to 2,500 m².
(d) The 2004 Preliminary Approval: There were no changes of relevance.
(e) The March 2005 Preliminary Approval: The changes were that, first, that part of the development Site included in Precinct 4, which was for “Mixed Density Residential”, was approved for 150 units to be developed adjacent to Emmanuel College in five buildings up to a height of seven storeys; and, secondly, Precinct 6 was increased to 5,500 m² of commercial and retail facilities, with 3,500 m² for shops, including a 2,500 m² supermarket.
(f) The August 2005 Preliminary Approval: Relevantly, there were no changes to either Precinct 4 or Precinct 6. In particular, the “retail areas” remained the same.
(g) The 2007 Development Permit: This related to the Town Centre.
(h) The 2008 Preliminary Approval: Some 750 Residential Dwellings were approved, as well as an Open Space Network Plan.
(i) The 2009 Development Permit: This related to “Porto Grande” which was on land occupying the 2 “fingers” east of the Town Centre.
Elaborating, specifically, on the August 2005 Preliminary Approvals, Precinct 6 is there defined as occupying approximately two hectares, being intended to accommodate the development of mixed residential and tourist accommodation and “limited commercial facilities that service the convenience and recreational needs of visitors and local residents”. After stating that the centre will not exceed the total floor area of 5,500 m² of commercial and retail floor space, with the maximum of 3,500 m² retail area for shops (in addition to tourist oriented commercial uses located within the tourist sub-precinct), it states that, as such, it is envisaged that the centre in total will include facilities such as restaurants, cafes, tourist shopping, local offices and “local convenience shopping, including an approximate 2,500 square metres supermarket”. The Approval defines a “retail area” as not including public areas, common areas and lobby areas (not including retail structures), service corridors, areas used for refuse storage and/or collection, trolley storage, loading and unloading, storage areas, plant room, administration areas, staff amenities, cleaners room, vehicle manoeuvring areas and the like.
Relevantly, the purpose of the March 2005 Preliminary Approval is stated to be “to establish a planning framework for the future development of this Site”: Condition 1. The Approval was originally, as earlier noted, granted in 2000, but was changed a number of times, with the most recent to that time being in 2005, and enabled the development of Emerald Lakes for a Mixed Use Residential and Tourist Development, along with public open space, lake, private open space and recreational areas. Currently, it will not lapse until 2015, with the possibility of extension: see s 3.5.22 of the IPA, and s 390 of the SPA.
It is unchallenged that, due to elections made by those acting on the 2005 Preliminary Approvals, there is insufficient uncommitted floor space to construct a supermarket of approximately 2,500 m² within Precinct 6 in the Town Centre.
Turning, then, to the 2008 Preliminary Approval, it applies to part of the Emerald Lakes Development known as the “European Village”. With reference to the August 2005 Preliminary Approval, the land to which this approval relates is classified under that earlier approval as partly within Precinct 4, partly within Precinct 6 and partly within Precinct 9. This approval divides the land to which it applies into 3 Precincts, being Precinct A (Waterfront), Precinct B (Central) and Precinct C (Hill). Concerning Precinct A, there is an approval of up to 2,100 m² of shops (with no tenancy to exceed 1,200 square metres) and, for Precinct B, up to 527 m² of shops.
The surrounding area
The Site is approximately 300m south of the intersection of Birmingham Road and Nerang–Broadbeach Road, is 850m south-west of Carrara Stadium, and 3km south-east of the Nerang Railway Station. Broadbeach is approximately 6.5 km to the east. Nerang is approximately 4.5 km to the west.
The Emerald Lakes Development (mentioned earlier):
(a) comprises a 201 hectare parcel of land which is being progressively developed by Nifsan Developments Pty Ltd, under the Emerald Lakes Preliminary Approval (overriding the Planning Scheme, pursuant to s 3.1.6 of the IPA); and
(b) once completed, is expected to contain approximately 1,800 residential dwellings and a total population in the order of 4,000 residents.
Surrounding the Site:
(a) land has generally been developed in accordance with the 2005 Preliminary Approval;
(b) to the south/south-west is the already referred to Emanuel College, which is wholly contained within “Precinct 7 – School Purposes” under the 2005 Preliminary Approval; and
(c) to the east is the Town Centre (also interchangeably described as the “Village Centre”) of Emerald Lakes, along with various types of residential development, including waterfront attached houses, tourist and residential apartments and attached dwellings, with this semi-circular area adjoining the lake and incorporating mixed density housing (Precinct 4), tourist and convenience centre (Precinct 6) and mixed use village (Precinct 9).
It has been observed, in the First Town Planning Joint Experts’ Report, that the majority of Precincts 4 and 6 has been developed, with the “Village Centre” (Precinct 6) having a “European feel” with boutique retail outlets, cafés and restaurants on the ground level and offices and apartments above. In fact, such uses include:
(a) a very small convenience store;
(b) a hotel;
(c) a bottle shop;
(d) a travel agency;
(e) a hairdresser;
(f) a medical centre;
(g) a beauty spa;
(h) a café; and(i) a restaurant.
The development under the 2008 Preliminary Approval of Precinct 9 has been primarily for residential apartments, with some limited ground floor retail uses, although a portion of this precinct remains underdeveloped. To the north of the Site, on the opposite side of Emerald Lakes Drive, under the 2008 Preliminary Approval, land is designated as private open space under the ownership of the Emerald Lakes Principal Body Corporate, such land and the balance of the subject Site (i.e. the western portion) being identified in the Master Plan as “Multi-Purpose Private Recreation”.
Land to the west of Birmingham Road accommodates the Emerald Lakes Golf Course and associated Club facilities, along with residential accommodation and, as yet, undeveloped land.
Consideration of issues
Although I have set out the issues above, I am persuaded by the approach adopted in the oral submissions of the respondent to consider the resolution of those issues by a different path than proceeding seriatim through those so set out. This is despite the appellant submitting that such an approach does not correctly place the consideration of economic need in the proper order for discussion, contending that it has relevance only when conflict has been determined to exist. My reason is that need does play a role here, although the Planning Scheme, unlike that in Petroleum Design Management Pty Ltd & Anor v Whitsunday Regional Council & Ors [2010] QPELR 340, does not make it an expressed part of the consideration. This is because need informs an understanding of what is a relevant planning need (where the absence of such would severely undermine an application such as this). The determination of lesser or greater weight to be given to it must be considered at some time for such a proposal as this. The order of discussion recognises that the eventual decision reached is one that depends on integration, not simply on some tabulation in which a failure at one point terminates further discussion.
My accepted approach is to consider the following questions, in turn:
(a) Is the Court satisfied that sufficient economic need for the proposed development has been demonstrated?
(b) Is the Court satisfied that a planning need has been established, involving both the consideration of previous approvals and of all relevant impacts arising from the proposed development?
(c) Would the Court’s approval conflict with the Planning Scheme in relevant ways?
(d) If there were to be such conflict, is the Court satisfied that sufficient grounds have been demonstrated to proceed, despite such conflict?
(e) If the Court approves the development, should the Court allow it only with conditions, particularly as to traffic, and what conditions should they be?
(f) Are the changes made to the plan “minor changes” and, therefore, should they be approved?
As already indicated, no issue arises concerning visual amenity as providing any ground for refusal.
Sufficient economic need?
As observed by Skoein DCJ in Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPELR 126, “need” does not mean pressing need, critical need, wide spread desire, or anything of that nature, observing that a thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community: at 131.
It is also important to note the principle expressed by Quirk DCJ in Landel Pty Ltd & Anor v Ridgeland Shire Council [2002] QPELR 402, that economic need requires that weight must be attributed to the interests of the community to a greater extent than those of existing operators of retail facilities: at 405.
As for a factual basis for economic need, or not, the economic experts who prepared the Joint Economic Report also gave oral evidence, speaking, primarily, to their own individual reports.
Before considering the different approaches they had, it is worthwhile to note that Wilson SC DCJ in Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 7 remarked that, when the need which is to be satisfied involves the daily essentials of ordinary life, the bar should not be set too high, adding that, when the planning scheme indicates a deliberate planning decision to provide an opportunity for appropriate convenience retail facilities to satisfy that need, and where there are no unacceptable impacts on amenity, the efforts required to demonstrate need of that level are not onerous: at 485 [30].
Mr Duane, for the appellant, and Mr M Brown, for the respondent, agreed that the provision of retail floor space does not march exactly in step with the demand for such, sometimes lagging behind, sometimes preceding it. Further, both agreed that between 92.5% and 94.9% of the proposed supermarket’s sales will come from the primary and secondary trade areas, although they disagree on the monetary value of those sales. The difference between their respective projections of $24.7 m and $16.9 m lies in the different estimates of market share in each of the primary and secondary trade areas (discussed below).
Before considering the differences in approach, it must be remarked that there is no objective benchmark against which these differing opinions can be tested. It is clear, from both the reports and the way in which the oral evidence was given by each expert, that each expert held the opinion formed honestly on what each believed to be a properly established foundation. Therefore, it is not a matter of testing each opinion against anything other than the logic of the propositions that were advanced, guided by an understanding that each could hold a reasonable view with which the other could reasonably differ.
Dealing with the matter of what level of demand there would be in 2013 for this supermarket, even Mr M Brown conceded that there would be a moderate level of demand, estimating that to be for a supermarket in the order of 1,200 m2. But, as the appellant contends, on his projected supermarket sales figure of $17.7 m, even if one applied a trading level of $8,000.00 per square metre, Mr M Brown’s original conclusion is a significant understatement since there would be an existing need for 2,213 m2 in 2013 and, by 2021, for 2,963 m2. On the matter of primary and secondary trade areas, Mr Duane estimated that a 50% share would come from the primary trade area and 20% from the secondary trade area. In contrast, Mr M Brown’s estimates were, respectively, 35.7% (being 60% within Emerald Lakes) and 10%. I accept that, as the Joint Economic Report concludes, growth within the primary trade area will be exclusively within Emerald Lakes after 2013. While I reject the argument that it is possible to draw a direct analogy with the Mudjimba proposal (Exhibit 22), I do prefer the approach which estimates the share of the primary trade area being in the order of 50%, at least partly because the majority of the population for this trade area, living to the west of Emerald Lakes, is in close proximity (noting that the outer limit of the area itself extends only some 2 to 2.5km around the Site) to the proposed supermarket, where, for convenience shopping, closeness is a matter of some significance (a contention which was not in dispute) – particularly where there would be direct entry from the car parking bays – partly because of that further growth in Emerald Lakes and partly because of the matter to be considered concerning the Emmanuel College trade. Thus, the significance of the “modern new centre” at Woolworths Carrara can be accommodated within that 50% share, despite the contest it undoubtedly would provide, noting that it would be a contest in which this development would be then “freshly” attractive, particularly for the population of the primary trade area.
With respect to the significance of persons driving to and from Emanuel College, according to the evidence of Mr Leo, the College’s principal, the College draws students from a predominant catchment area within a 7 km radius. This includes the whole of the primary and secondary trade areas. This, to some extent at least, differs from what Mr M Brown had assumed, since his assumption extended more widely to encompass both the Gold Coast metropolitan area and the northern part of the Tweed region.
Turning to the secondary trade area, the factors which incline me to accept Mr Duane’s approach are that the proposed supermarket here would be modern and larger than the nearest ones to the north of the secondary trade area, with concomitant attraction (even though areas further to the west are closer to Nerang), together with the ease of access from the secondary trade area to the Site via Ross Street, a major and direct route, easily overcoming the relevant physical barrier.
But even on acceptance of the evidence of Mr Duane, how does the matter raised by the respondent, of the acceptance by both economic experts that the proposed supermarket will “under trade” for a number of years (with Mr M Brown estimating some 7 to 8 years before becoming “economically viable”), impact on the determination of economic need?
The appellant’s response is to point out that viability as an end in itself is not a necessary condition, particularly where Woolworths has committed itself to this proposal despite the prospect of below average returns for some years. The appellant also contends that the lack of viability suggested by Mr M Brown shows an unduly pessimistic view. I accept that contention, particularly where I am prepared to accept the argument that there is a present need for a supermarket of 2,213 m2, even on Mr M Brown’s figures, and even if $8,000.00/ m2 is a logical base for such a development as this. Since, in the respondents’ submissions it matters little if $7,000.00/m2 is accepted, a supermarket in 2013 of 2,529m2 provides a strong base, given the conclusions of future growth, for relevant viability. That would not generate a 10 year period until viable trade would occur, to the extent that viability is some end in itself, rather than a matter of weight in the balancing process.
The consequence of this analysis concerning economic need is that I accept the specific submission – impacts apart (for the moment) – made by the appellant that:
(a) the residents in the catchment areas would enjoy the benefit from the provision of a “full-line” supermarket which will “currently” not be provided closer than 4.5 km away (to the east) at Carrara;
(b) the proposed development will provide a substantial benefit to residents living in close proximity to the site, particularly where the future population growth will occur in the Emerald Lakes Development itself; and
(c) as will appear from further analysis conducted later, I accept – despite submissions that the GCCC was wrong in doing so – that the GCCC had recognised in 2005 the need for a supermarket of this size, even though the Preliminary Approval of 2008 shows some pulling back from that idea.
Sufficient planning need?
First, concerning economic impacts, I agree with the conclusion reached by Wilson SC DCJ in Tower 720 Pty Ltd v Hervey Bay City Council [2003] QPELR 178 that the restraint or prevention of economic competition is not part of the orderly and proper planning which the Planning Scheme seeks to achieve, relying, in part, upon Stephen J’s approach in Kentucky Fried Chicken Pty Ltdv Gantidis (1979) 140 CLR 675 at 185 [30].
Rather, economic impact is to be taken into account in the way described by the Full Court of the Supreme Court of Queensland in Barry and Roberts Ltd v Caboolture Shire Council (1984) 54 LGRA 121 where Carter J, writing for the Court, held that the mere fact of increased competition will not be a relevant town planning consideration “unless and until the level of competition has the effect of depressing overall the quality of the services and facilities offered to a ... community”: at 127.
Secondly, in determining whether the planning need identified is sufficient, the issue of all relevant Preliminary Approvals brings into operation certain legal principles. In Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157, citing relevant authority, Muir JA’s conclusions covered the following points:
(a) the proper approach of the Planning and Environment Court to matters of planning policy has long been recognised as one of restraint;
(b) it is desirable that there be a self-limiting approach when considering town planning matters, because it is not the Planning and Environment Court’s function to substitute planning strategies (which, on evidence given a particular appeal, might seem more appealing) for those which a planning authority in a careful and a proper manner has adopted;
(c) while a conflict between a Development Application and a Strategic Plan is often fatal to that application because of the importance of strategic planning and the need to respect and support the integrity of the important planning tool which the Strategic Plan is, there may be cases where a departure from the Strategic Plan could be justified (citing, as an example, where planning strategies which it represents have been overtaken by events or, for some other reason, clearly no longer have any application);
(d) since the forward planning documents of a local authority are indicative of the intent of a planning authority as to the future preferred form of development that it sees for its local authority area, considerable weight ought to be given to the provisions of forward planning documents of a local authority; and
(e) since the terms of a Planning Scheme inevitably reflect the striking of an overall balance between the public interest and the many interests potentially effected by the Planning Scheme, it is important not to minimise the force of this consideration and, in the striking of the overall balance of the Planning Scheme, there will be “winners and losers” so far as individual interests are concerned: at [55]-[57].
As is indicated by the particulars of both specific Approvals and Permits outlined previously, the Proposed Development, given the relevant applicable definitions, can be fitted into the concept of an approval for an approximately 2,500 m2 supermarket. It is also apparent that, since then, there now exists no floor space within Precinct 6 in the Town Centre to construct such a supermarket. In fact, it is indisputable that there is no practicable opportunity to develop any supermarket in the Town Centre at all.
The concern that needs to be addressed is whether the position that presently prevails results from an existing absence of a need for such a supermarket and, if so, whether those approvals which have permitted the use of “convenience shops” will satisfy an undoubted need that exists for some kind of supermarket: because some “need” does exist.
A matter that was raised for consideration is whether the capping of shop sizes under any Preliminary Approvals since the 2005 Preliminary Approvals demonstrates that, at a planning level, such a decision was made because there was already an approval for Woolworths to build a similar supermarket to that in the Proposed Development at Carrara after the 2005 Preliminary Approvals. But a close analysis of the circumstances shows, at least inferentially, that the GCCC would have been aware of the Carrara proposal when the 2005 Preliminary Approval was given, and vice versa.
It must be remembered that the 2005 Preliminary Approvals still have application. Thus, it is not to the point that the GCCC might now take a position that its approval for a supermarket of the type proposed in the Proposed Development was wrong or in error at the time when those 2005 Preliminary Approvals were made, at least in any objective consideration of planning need.
Rather, as I have judged the evidence that has been placed before me, until now it has not been considered by any party to the development of the various Precincts both that an appropriate site in planning terms had earlier been identified for “actual” development and that the expectation for a “full line” supermarket had reached a settled position in terms of planning, although the 2005 Preliminary Approvals suggest it had merit. It is, further, not to the point that the actual 2005 approval for the Site is for a building of seven storeys in height with a maximum density of 150 dwelling units. Obviously, that is not presently intended by anyone to be an “actual” development for which approval is sought. Additionally, there is considerable potential for alternative future residential dwellings in the approvals which have occurred since 2005.
The respondents’ position is that the preliminary approvals and existing approvals provide a template for this area’s development. While in general terms that is true, the template has changed. But in that change there has remained a concern for provision of an adequate “convenience store”. For the reasons analysed, this Proposed Development can fit such a flexible template. As the appellant’s submissions maintain, the nature of the Town Centre has evolved with the emphasis there being now on office development, a decision of the owner which has been endorsed by the GCCC. Although, by s 3.1.6 of the IPA, a preliminary approval may override the Planning Scheme, I accept the appellant’s argument that the “supermarket” approval was not an incident of overriding or varying, but, instead, a consequence of the implementation of the Planning Scheme.
Consequently, I conclude that, from a planning perspective, insofar as there is an obligation to consider the actual content of the various Preliminary Approvals, I accept that a planning need has been established. I have given significant weight to those Approvals, pursuant to s 3.5.5(2)(d) of the IPA, but the import of that weight is that the development shows flexibility in its evolution and that this Proposed Development fits well both in the continuing concepts and in that flexibility.
Thirdly, what are, in fact, the relevant economic impacts here?
The first aspect of this consideration is whether the distance between the Town Centre and the proposed supermarket shows that a contrary conclusion should be reached, in planning need terms.
With respect to whether to any isolation of the development site from the Town Centre offends basic traffic engineering design principles (contended to demonstrate that retail and commercial developments should be clustered into a discrete area), it may well be determined that such principles are tested. But, with respect to any objection that the Proposed Development would have an adverse impact on a road network designed to discourage through traffic and to create a low traffic speed environment, at least in comparison to the placement of the relevant supermarket in the 2005 Preliminary Approvals, it is clear that the location at the Site would be preferable in achieving the objective of those outcomes, such that the only traffic which is directly referrable to the nature of the Site is encouraged to enter only the Site and its adjacent areas. If additional traffic were to be introduced into the Town Centre simply for supermarket purposes, the problems, including those concerning the use of semi-trailers to access such a development, would be far worse than those indicated for the present Site. Under the proposal here, any additional traffic attracted to the Town Centre would be likely to be either “tourist”, “boutique” or “life style”.
As for isolation in terms of planning effects, Wilson SC DCJ in Parmac Investments referred to the planning proposition that “contiguous shopping facilities might be best consolidated rather that fragmented”: at 483. But, even if the Proposed Development would cause “fragmentation”, it is not at all obvious here that the consequence of any such fragmentation would be problematic in terms of community “wellness”, or in terms of competition. For reasons which will be canvassed in detail later, there would be no existing competition of any note between the proposed supermarket and anything presently viable in the Town Centre.
It is accepted that the actual distance from the centre of Town Centre to the mid-point of the development site is a distance in the order of 220m. It is also accepted that most people who would wish to visit both are likely to travel by car. It is also accepted that the Town Centre and the proposed supermarket are separated by residential development with no foreseeable expectation that such residential development will give way to commercial or retail development. But this is little different from the future siting of Woolworths Carrara and the siting of Coco’s Carrara, about which Mr M Brown remarked could lead to a linked shopping trip. The planning aspect of all this is whether, in terms of the authorities discussed, there is a reasonable prospect of a result of an overall adverse effect upon the extent and adequacy of facilities available to the local community and upon the general amenity of the immediate area. A survey of all existing tenancies which have a commercial flavour in the Town Centre does not demonstrate the prospect of a result of an overall adverse effect. As to the services that facilities such as chemist shops provide (even in their wider sense of being retailers of goods beyond pharmaceutically based items), it has not been shown that the local community will lose anything of substance, even though the profitability of certain individual existing business may well be adversely affected. On the other hand, the attraction of such services as provided by bakery and butchery shops would be to the local community’s advantage, considering that no such services are presently available, or likely to be so on the evidence available, within the local community area. Thus, in the context of economic experts, I prefer the conclusion of Mr Duane who concluded that the impact on turnover in the Town Centre would be some 5% only.
There is certainly no suggestion that, given the existing limited presence of “tourist” based services in the Town Centre, they could be adversely affected in a way which would have such an adverse flow-on effect on the local community.
To the contrary, the conclusion that I reach on the evidence given before is that the presence of more persons – declining to describe them as “tourist”, except in an overarching sense – who would come to the somewhat self-contained area which is the “Central Village Area” would only be for the overall benefit of the local community and would generate greater economic activity in a presently rather static economic environment and underutilised existing facilities, which would therefore be favourable in planning terms. There would not be an unacceptable adverse impact here.
The second aspect is the impact on other centres. The estimates concerning Woolworths Carrara range from 16% to 20%. While initially potentially concerning in planning terms, both are, or will be, controlled by the one entity. It is unlikely therefore that either facility will not continue to trade and become a planning casualty. As for Coco’s Carrara, which I viewed with Counsel from both sides, I find that it has unique aspects and it would, inferentially, absorb the impact of the nearby Woolworths. From that, I accept Mr Duane’s estimate of further impact as limited to an “acceptable” 2.5%.
Conflict with Planning Scheme?
The first matter to be considered is that the use, “shopping centre” development, is not included in Table A in the Guragunbah LAP Table of Assessment. Besides the matter of undesirability or inappropriateness, Fryberg J in WBQH Developments Pty Ltd v Gold Coast City Council [2010] QCA 126 noted that the extra hoops and extra fees consequent upon assessment of this kind in not an indication of favour towards applications of that class: at [36]. Nevertheless, as authority instructs, the provision is not a prohibition. As indicated by Rackemann DCJ in Main Beach Progress Association v Gold Coast City Council& Ors [2008] QPEC 37, the fact that a particular form of development falls within the “undesirable or inappropriate” category would be a relevant consideration in a determination of the existence of conflict with a planning scheme, even if it did not “trigger s 3.5.14(2)”: at 681 [41]. But that consideration demonstrates that no relevant conflict arises. First, a “shop” is not undesirable or inappropriate; and a supermarket, of itself, is a shop. Secondly, to the extent that the whole of the Proposed Development is a “shopping centre”, it is a very limited one. Thirdly, this shopping centre, if this is that, performs a limited local convenience function envisaged by the LAP (as will be analysed later). Thus, no relevant conflict does occur.
The next matter to be considered is that of “clustering”. Clustering is alleged to be a matter of concern because the Proposed Development is contended to be segregated from – as opposed to forming a cluster with, and therefore leading to the consolidation of – the existing Town Centre. For example, Mr Dennis Brown (for the respondent) stated that the development would “segregate” rather than “cluster”. The two references in the LAP to “cluster” (or its derivatives) both have, as their clear context, the whole of the LAP area, and identify, as the only limitation, “urban” areas. Also, as noted earlier, the whole of the area is treated a single land unit. With respect to its context in Clause 4.0, there is nothing which supports the argument that the Proposed Development is at variance, or in disagreement, with this Clause. The matter of “limited local convenience” will be dealt with separately. With respect to Clause 5.0, as with Clause 4.0, because of the flood plain consequences of the LAP area, open space is required to be maximised; but it is not at all shown how the Proposed Development conflicts with that, when the Site already has a Preliminary Approval for medium rise residential development.
I accept the appellant’s submissions that both provisions as to “clustering” refer to urban development generally and not to any particular form of urban development, being simply intended to ensure that urban development is not scattered throughout the LAP area but, instead, is, indeed, clustered. Additionally, with respect to the Planning Measures in Clause 5.0, it expressly notes that it has not proved to be practical to denote precise boundaries to areas suitable for development, having the consequence that the adopted format provides “considerable flexibility for creative design and land use solutions” within the identified framework, whilst having due regard to the reasonable expectations of other land owners. Those concluding ideas fit comfortably with the Proposed Development. To the extent to which clustering is directed to maximising open space and minimising the cost of service provision, development of some kind has always been envisaged for the site. Therefore, there can be no such relevant conflict here.
The next matter is whether the Guragunbah LAP has a focus which, by reference to “limited” development, generates a specific conflict. The appellant, correctly in my view, stresses that the provisions place a focus on allowing development of some limited kind and, therefore, it is necessary to determine the actual extent of that limitation.
The appellant contends that the Proposed Development is for a “local convenience facility”. The respondent replies by arguing that a “local convenience facility” is something less than not only a local centre (as defined) but also a neighbourhood centre (as defined). It is not in dispute that the proposed supermarket has a retail area of 2,502 m2. Whilst DEO 3.1 contemplates that “urban” development should be at “a scale, form and character appropriate” to “the immediate local area”, as the appellant notes, that reference is a generic one. I prefer the identification of that “area” as that described in Exhibit 6 by Mr Webb, as shown in Appendix 23. It is all of “Emerald Lakes”.
It is against that background, including the consideration earlier of the 2005 Preliminary Approvals relating to Precinct 6 for an approximately 2,500m2 supermarket, that the LAP provisions need to be applied. The emphasis in the extracts from both Clause 4.0 and Clause 5.0 of the relevant part of the LAP is on such terms as “limited local convenience” or “limited local commercial uses”. It is indisputable that they apply to the whole of the LAP area and do not refer to any particular facility, or particular use. Thus, in context, they do refer to facilities or uses serving the existing residents of, as well as the visitors to, the LAP area, as well as those who will be future residents. As Mr Peel, the Regional Property Manager of Woolworths, stated, the convenience is in being able to do a “full” shop, to fulfil all grocery shopping needs, locally. It cannot be that “limited” can impose a prohibition on such an everyday kind of task.
What, also, is to be made of the concession by Mr Duane, called by the appellant, that the proposed facility will serve a broader area that the “immediate” Emerald Lakes Estate? First, neither of the extracts just mentioned refer to the “immediate local area”. That appears in DEO 3.1; and I accept the appellant’s submission that scale, form and character refer to the scale of the development as built. That is so because it refers to “urban” development. It also flows from a consideration of DEO 5.0 (incorporated by reference). Secondly, the concession made was with respect to a broader area than a particular catchment map which cannot be taken as the boundary of any “immediate” local area. Thirdly, the reference in the LAP provisions is to “local” and not to “neighbourhood”; and the LAP contains no reference to Emerald Lakes. That renders any reliance upon the limitations in any description inherent in a “neighbourhood centre” as marginal. The limitation is on the size, or extent, of the facilities available, or the uses to be served. Where, as here, that size is limited to the supermarket as the only significant shop and that size is well below the sizes referrable to the very least of the Hierarchy of Centres, it does meet the test of characterisation of being both “local” and “limited”.
The next matter for consideration is the assertion by Mr Schomburgk that any conflict with the LAP has been “overtaken by events”. That resonates with the principles applicable to this Court acknowledging the important planning role of the GCCC: see Metroplan Management Pty Ltd v Brisbane City Council & Ors [2010] QPELR 270 at 282 and Petroleum Design at 351 – as providing obvious examples of “overtaking”. Of course, on the face of the Preliminary Approvals, events have overtaken the initial requirement that the Site be simply an “Active/Passive” one. As already canvassed, the LAP Conceptual Land Use Map 14.7, showing the site as “Active/Passive Recreation” is stated by Clause 5.0 of the LAP to merely illustrate “one future vision” of the flood plain on its face, and thus has been plainly overtaken by events concerning Emerald Lakes.
But if the view is correctly formed that the Preliminary Approvals reflect the intentions of the LAP as properly interpreted, objectively, by the relevant local authority, then they reinforce, rather than overtake, the LAP. I find that the actual approval for a supermarket of 2,500m2 was, always, within the “intention” and as such forecloses the need to consider any unusual paths to interpret the true aim of the relevant strategic planning.
Finally, in this consideration, there is the matter of potential loss of residential land. Starting from the base that the LAP states no requirement about population size or the number of dwellings in the LAP area, while the 2005 Preliminary Approvals included 150 dwelling units on the Site, that was part of a maximum of 1,649 dwelling units. The later 2008 Preliminary Approval has now approved a maximum of 1,899 dwelling units. Hence, if the Proposed Development is approved, since the 150 dwelling units could not then be constructed on the subject land, the maximum able to be constructed is still 100 more than that which was originally approved in 2005. Consequently, it is not shown that, somehow, the residents of the LAP area and, in particular, the residents of Emerald Lakes are better served by a proposed development which provides for another 150 dwellings units, rather than a local convenience shopping facility.
My overall conclusion is that there are no conflicts of the designated kind which would call of a consideration of the application of s 3.5.14(2)(b) of the IPA.
Sufficient Grounds
As succinctly stated by Muir JA, with whom Holmes JA and White JA agreed, in Australian Capital Holdings, the exercise, in deciding if there are “sufficient” planning grounds to justify approval despite conflict with the Planning Scheme, requires the identification of the relevant “planning grounds”, an assessment of the role and importance to the planning scheme of the provisions which would be infringed if the application were to be approved, the adverse consequences, if any, which might flow from such infringement, and the competing merits and weight of the planning grounds relied upon to justify approval: at [60].
Since that consideration, essentially, limits itself to the substantive text of s 3.5.14(2)(b), there would appear to be no virtue in any further deconstruction of it.
Turning, then, to the term “sufficient planning grounds” itself, it is useful that McLauchlan QC DCJ has observed, in Kentbrock Pty Ltd v Gold Coast City Council [2003] QPELR 587, that, while there is no definition of the expression “planning grounds”, some assistance with respect to its meaning can be gathered from the definition of “town planning” which is defined to include all matters necessary or expedient for securing the improvement, orderly development, healthfulness, amenity, embellishment, convenience, conservation or commercial advancement of an area or part of an area: at 592 [31].
Although I have concluded that there is no relevant conflict between the application, as amended, for the Proposed Development and the Planning Scheme, it is necessary for me to address the issue of whether there still would be sufficient grounds to justify the decision to approve were such conflict be held to exist. Since I conclude that the only two areas of concern are the matters of whether the proposal is a “limited” local convenience facility and whether, if the development is for a “shopping centre”, a conflict, despite the particular circumstances, still exists – there appearing to me to be no sustainable arguments with respect to clustering or to the Proposed Development resulting in any meaningful loss of residential land – I assume, for present purposes, that either DEO 3.1 providing for scale, form and character appropriate to the immediate local area has been breached, or the concept of “limited” is very narrowly characterised. As for the “shopping centre” issue, it is apparent that if there is, in truth, a conflict, then no refusal is justifiable on that ground because of the LAP compatibility.
The approach has to take into account the respondent’s concession that the case of the GCCC is not that the Proposed Development “compromises” DEO 3.1 but rather that the Proposed Development conflicts with the LAP and that Woolworths is not able to demonstrate “sufficient grounds” to justify approval despite that conflict. In this exercise, I would find that the “scale” is demonstrably not in excess of what is appropriate, that “form” would not then be an issue and “character”, at least as a “store”, would be neutral.
The assumptions made also mean that I should accept, for present purposes, that, because the Proposed Development is materially greater in size than that which it should be at this “local convenience level”, it would service a greater area than the “immediate local area”.
On that approach, any conflict that satisfies the initial test is because it is that which is not envisaged beyond limited local convenience or ancillary facilities. Then, the next test is whether the “convenience facility” is so far beyond what is appropriate that there are, relevantly, insufficient grounds to justify the decision despite this identified conflict. Given the concepts inherent in both “sufficient” and “planning grounds” identified above – because I have otherwise concluded that there are sufficient planning needs established – the assessment of competing merits, and their weight, would still impel me to the view that any adverse consequence that might result from the assumed conflict is not materially significant given the 2005 Preliminary Approvals and the fact that, while more limited shopping facilities of a convenience store kind have been subsequently approved, nothing has been built or is concretely proposed for this area. Thus, there is no realistic prospect of any appropriate “convenience facility”. Besides, this Proposed Development will not be concluded until 2013 and, with respect to that, future residential development will lead to identifiable population increases locally confined to the Emerald Lakes area from that time. Additionally, Mr Schomburgk has identified 11 grounds (some of which overlap with factors just discussed) which I accept provide an proper justification, despite the (hypothetical) conflict: see Section 6.6 of the 2nd Joint Experts Report – Town Planning, Appeal Book (Vol 7 – pp 1697-8).
Traffic Impacts
Mr Beard, the traffic engineer called on behalf of the respondent, when asked to identify any traffic reason for refusing the application, stated that the only thing which would give rise to a “potential” refusal would be the south-western access and that the “chances” were, if it was going to be approved, “you would want to impose” some conditions either limiting or prohibiting the right turn exit movements. As outlined by the respondent, the main issues of concern on that south-western access are problems associated with sight distances, which are contended to be critical to the safe operation of motor vehicles there.
Presently, the access to and egress from the proposed site on the south-western side would affect the almost exclusive use of that road, presently, for those attending upon Emmanuel College. The only exceptions would be for cars parking in an area that is still on the Site, but where it is not proposed that there be any development (i.e. in what is a designated park area to the west of the development site).
The approach of the respondent to these concerns about potential traffic safety issues is to bundle such concerns together with other “unacceptable impacts” to generate an arguable consequence that the Court should then be “reluctant” to grant approval. Since I have rejected those other impacts, the concern shifts to imposing conditions. Since the proposal that I would approve would still place conditions in some way, I do not accept that taken alone or in conjunction with other issues there is a demonstrated unsuitability for the Proposed Development.
I do not accept that the solution to the concerns can only be by banning, at all times, right turns when egressing the proposed site onto College Road and to allow delivery vehicles to use this point as an access only during hours not affecting the use of College Road by persons attending Emmanuel College.
As to what would be appropriate conditions, the experts differed substantially. Mr Beard, for the respondent, being of the opinion that the only substantial conflicts would occur during the school peak periods, proffered the solution that, while all vehicles would be allowed to enter the shopping centre site at the offending point, no vehicles should be allowed to exit. The evidence of Mr Peel, who appeared for the appellant on behalf of the developer (and, therefore, Woolworths), indicated, nevertheless, that that was a limitation that could be worked with.
The opinion of Mr Trevilyan, on behalf of the appellant, was that the south-western access and egress would operate satisfactorily, even during school peak periods, without any need to restrict use of that access and egress by shopping centre traffic. That was eventually, if only slightly, modified by opining that, despite that preference, he was happy to recommend a total restriction on service vehicles during the 75 minute peak periods in the morning and afternoon. Again, Mr Peel indicated in evidence that that would cause no difficulties.
The genesis of the problem is in the asserted inability of drivers of vehicles using College Road as their egress point to have a safe sight line for viewing vehicles entering College Road from Hall Road at the boundary line of Emmanuel College.
I accept that the travel of vehicles along Hall Road within the school area is in a low speed environment, given the presence of a permanent speed bump, the need to make a right turn onto College Road, and the need to take care by reason of the prospective pedestrian traffic of students, and others, exiting from the school at peak times. Further, after first entering College Road from Hall Road, I accept that a normal driver would find it hard to attain a speed of even 30 kilometres per hour by the time that the driver was passing the egress point. Additionally, while the total volume of traffic likely to be attracted during the morning school peak time of 7.45am to 9.00am and the afternoon school peak time of 2.45pm to 4.00pm would be relatively low, it is still a matter for concern that slightly more than 3 vehicles per minute (relevant to the afternoon peak) would be predicted to want to make this right hand turn. Further, the College Principal, at a practical level, still has real concerns.
But the major concern that I have arises from a combination of the restricted line of sight – which is less than ideal (although, traffic arrangements need only be reasonable or tolerable, and not utopian or perfect: see Redfire Pty Ltd v Council City of Logan & White [1995] QPLR 41, at 43) – and the inevitable frustration that a “Give Way” sign would have facing those drivers so exiting during the peak times. In my view it would create a real and not fanciful danger of a collision occurring during those school peak periods. The factor of Woolworths’ inability to trim intruding local vegetation on the College side of the common boundary has been removed by Mr Leo’s intimation that, if Court approval occurred, the College would “favourably consider” approaches concerning improving “sight lines” that were so interrupted. Therefore, some conditions do need to be imposed, bearing in mind that they must either be relevant to but not an unreasonable imposition on, or be reasonably required in respect of, development. Consequently, I intend to impose conditions pursuant to s 3.5.30 of the IPA to the effect that the egress of all traffic from the shopping centre site to College Road be prohibited between the hours of 7.45am and 9.00am and the hours of 2.45pm and 4.00pm on all designated school days and that suitable preventative devices such as automated boom gates be utilised at, or in the immediate vicinity of, the point of egress in order to ensure compliance. In addition, adequate signage should be erected to inform all persons about the full extent and timing of the limitations imposed.
I am not satisfied that prohibiting entry to the shopping centre sight from College Road, even during the identified school peak periods, is reasonable. For instance, parents wishing to access the shopping centre in that way will still be required to exit at the south-eastern exit and, if intending to enter Hall Road, to join the incoming traffic entering College Road, to whom such drivers would have to give way at the roundabout located at the northern end of College Road.
As for the consequence that this would allow delivery vehicles to use the south-western access point to the shopping centre site during such peak periods, since the practicality that would apply would be that they could not exit until after the end of such period, it would be commercially impractical for them to use that as an access point, at least until the later part of the peak period. In such circumstances, at a practical level, their presence will create only a minimal addition to peak hour traffic, if at all.
Minor Change
The minor change sought by the appellant is not opposed by the respondent.
As noted earlier, the current plan (Exhibit 3) differs from the plan lodged with the Development Application in the respects particularised in the affidavits of Mr Webb (Exhibit 4) and Mr Trevilyan (Exhibit 5).
Section 821(2)(b) of the SPA provides that, for deciding an appeal under the repealed IPA, s 4.1.52(2) of the IPA applies as if the reference in the repealed IPA in s 4.1.5(2)(2)(b) to a “minor change” was a reference to a minor change as defined under the SPA.
Section 4.1.52(2)(b) of the IPA provides that the Court must not consider a change to the application on which the decision being appealed was made, unless the change is only a “minor change”.
Turning, then, to the definition of “minor change” in relation to a development application in the SPA. Section 350(1)(d) provides:
“A minor change in relation to an application is any of the following changes to the application –
…
…
(d) a change that –
(i) does not result in a substantially different development; and
(ii) does not require the application to be referred to any additional referral agencies; and
(iii) does not change the type of development approval sought; and
(iv) does not require impact assessment for any part of a changed application, if the original application did not involve impact assessment.”
Both sub-paragraphs (iii) and (iv) are irrelevant, the former because the development approval sought was, and remains, a Development Permit and because the latter requires the non-involvement of impact assessment. As well, there are no additional referral agencies.
The traffic changes identified by Mr Trevilyan are:
(a) for an increase in car parking spaces from 192 to 200, the inclusion of 7 motor cycle spaces, and a reduction in golf buggy spaces from 17 to 4;
(b) for the service vehicle entry to be now from College Road and not Emerald Lakes Drive; and
(c) for modifications to the site layout.
The architectural and urban design changes identified by Mr Webb are:
(a) changes to the site plan, summarised in paragraph 12 of his affidavit (including the traffic changes);
(b) changes to the north elevation, summarised in paragraphs 16 to 29;
(c) changes to the south elevation, summarised in paragraphs 33 to 43;
(d) changes to the west elevation, summarised in paragraphs 47 to 56;
(e) changes to the east elevation, summarised in paragraphs 60 to 67.
Importantly, the gross floor area has not changed and there has been no change to the location and number of vehicular accesses and egresses.
With respect to the Guidelines that utilised in determining “minor change”, none of the changes identified are of the kinds particularised.
Thus, I conclude that the changes are “minor changes” and are, therefore, excused.
1
4
1