Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors

[2010] QPEC 51

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

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

PARTIES:

GAVEN DEVELOPMENTS PTY LTD
(ACN 103 951 239)
(appellant)
v
SCENIC RIM REGIONAL COUNCIL
(respondent)
and
CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY
(first co-respondent by election)
and
ROLAND LINDENMAYER
(eighth co-respondent by election)
and
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
(ninth co-respondent by election)
and

TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INCORPORATED
(twelfth co-respondent by election)

and
SAM FOSTER
(thirteenth co-respondent by election)
and
PHILIP GIFFARD
(fourteenth co-respondent by election)
and
EVERGREEN CORPORATION PTY LTD
(ACN 067 322 678)
(one hundred and forty-fifth co-respondent by election)
and
THE PRESBYTERIAN CHURCH OF QLD
(ABN 43 015 755 489) (IN THE NAME OF PRESCARE ABN 85 338 603 114)
(one hundred and forty-sixth co-respondent by election)

FILE NO:

BD 2747 of 2008

DIVISION:

Appellate

PROCEEDING:

Appeal against deemed refusal of development application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

24 June 2010

DELIVERED AT:

Brisbane

HEARING DATES:

15 – 20 March, 22 – 23 March, 1 April and 21 May 2010

JUDGE:

Robin QC DCJ

ORDER:

1.          Appeal adjourned to allow formulation of conditions of the proposal adjudged acceptable in principle

CATCHWORDS:

“Out of centre” development proposal – conflict with both the current and the new planning scheme – conflict with development control plan – need for 2000 m² supermarket component established, also need for other components in separate buildings (medical centre, pharmacy, specialty shops, retail showroom) – whether relevant that events since applications cast doubt on need for other components – whether necessary or appropriate for all components to co-locate – whether alternate sites available for all components separately – significance of huge volume of adverse submissions – issues regarding threats to character of North Tamborine Village – traffic issues arising from site’s frontage to a main road – Main Roads Department’s concurrence agency conditions require a roundabout at the site entrance, relocated to opposite church land, design to accommodate a connection on that side to “Taylor Lane” in place of that to the church land – respondent council, church and other affected owners contended that without further engineering detail to show feasibility of current schematic designs (in particular for relocation west of the roundabout to clear church land) – the appeal should be dismissed

Integrated Planning Act 1997, s 1.2.3(1)(f), s 2.1.3(1)
s 3.5.14(2)(a), s 3.5.14(2)(b), s 3.5.30, s 4.1.27(1)(c), s 4.1.52(2)(a), s 6.1.29, s 6.1.30
Local Government (Planning and Environment) Act 1990, s 4.5(5A), s 917, s 918

Aldi Stores v Redland Shire Council [2009] QPELR 602, [2009] QPEC 027, cited
Attorney-General (ex rel. Pratt) v Brisbane City Council [1988] 1 Qd R 346, cited
Comkey Ptd Ltd v Caboolture Shire Council [2006] QPELR 399; [2005] QPEC 114, cited
Esteedog Pty Ltd v Council of the Shire of Maroochy [1991] QPLR 7, cited
Fernhunt Pty Ltd v Mackay City Council [2002] QPELR 447, considered
Garyf Pty Ltd v Maroochy Shire Council 166 LGERA 245, [2008] QPEC 101, considered
Gracemere Surveying v Peak Downs Shire Council [2009] QPELR 416, [2008] QPEC 97, cited
Gracemere Surveying and Planning Consultants P/L v Peak Downs Shire Council [2010] QPELR 107, [2009] QCA 237, cited
Koerner v Maroochy Shire Council [2004] QPELR 211, [2003] QPEC 54, considered
Lend Lease Property Management Pty Ltd v Maroochy Shire Council [2003] QPELR 23, [2002] QPEC 40, considered
Luke v Maroochy Shire Council [2003] QPELR 447, [2003] QPEC 5, cited
Main Beach Progress Association Incorporated v Gold Coast City Council [2008] QPELR 675; 164 LGERA 233; [2008] QPEC 037, considered
McCosker v Council of the Shire of Emerald [1996] QPELR 114, considered
Metroplex Management Pty Ltd v Brisbane City Council [2009] QPEC 110, cited
Mixrose Pty Ltd v Brisbane City Council [1992] QPLR 194, cited
Parmac Investments Pty Ltd v Brisbane City Council 160 LGERA 156, [2008] QPELR 480, [2008] QPEC 007, cited
Scullin v Brisbane City Council [1998] QPELR 12, considered
SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36, considered
Sibi Girgenti Holdings Pty Ltd v Atherton Shire Council [2009] QPELR 95, [2008] QPEC 108, cited
SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24, considered
Storey v Director of Planning (No. 1) [1974] SAPR 473, cited
Tamborine Mountain Progress Association Inc v Scenic Rim Regional Council [2009] QPEC 98, considered
Terton Corporation v Gold Coast City Council [2004] QPELR 260, [2003] QPEC 60, cited
Watts & Hughes Properties Pty Ltd v Brisbane City Council [1998] QPELR 273, considered
Wincam Developments No. 3 Pty Ltd v Brisbane City Council, [2004] QPELR 474, [2004] QPEC 005, considered

COUNSEL:

C Hughes SC with M Williamson for the appellant
M Hinson SC with B Job for the respondent
J Wilson for the first co-respondent by election (given leave to withdraw)
N Kefford for the ninth co-respondent by election
A Harding for the one hundred and forty-fifth co-respondent by election
S Fynes-Clinton for the one hundred and forty-sixth co-respondent by election
J Peat appeared as the representative of the 12^th co-respondent by election
P Giffard appeared on his own behalf
R Lindenmayer appeared on his own behalf
S Foster appeared on his own behalf

SOLICITORS:

Norton Rose Australia for the appellant
Corrs Chambers Westgarth for the respondent
Department of Environment and Resource Management (given leave to withdraw)
Crown Law for the ninth co-respondent by election
Garland Waddington Solicitors for the one hundred and forty-fifth co-respondent by election

McCullough Robertson for the one hundred and forty-sixth co-respondent by election

1. The appeal is brought under s 4.1.27(1)(c) of the Integrated Planning Act 1997 (IPA) against the Council’s “deemed refusal” (i.e. no decision was forthcoming by the end of the decision making period allowed) of a development application for a material change of use of land in North Tamborine presently residential to “Mixed Use Commercial Centre (Professional & Consulting Services, commercial premises, showroom, shops and service uses compatible with the commercial and retail uses)”; approval was also sought for the environmentally relevant activity of a sewerage treatment works to serve the proposed use.  A combined gross floor area up to    3,850 m² over five separate buildings is proposed, chief of which is a 2,000 m² supermarket.  The main issues in the appeal are whether there exists sufficient planning need for the proposal to overcome conflict with the planning scheme and, if so, whether traffic considerations to do with access or the proposal’s amenity and visual impacts tell against approval.  The conflict arises from a shopping centre being “out of centre” development, which is “inconsistent” and “will not be permitted” – also, so the opponents contend, its adversely affecting the character of the area.  The appellant bears the onus of showing the appeal should be allowed:      s 4.1.51(1).

The site, the proposal and reactions to it

1. The site contains 1.285 ha and in some places is called “Baker’s Acres”.  Mr Ovenden’s report records that it has been cleared for agricultural purposes in the past when it was part of a larger rural land holding.  It is currently grassed with some mature vegetation surrounding the dwelling.  The site is rectangular with a generous frontage at 17-27 Main Western Road, measuring about two-thirds the extent of the depth.  In its present condition the site makes a considerable contribution to the Village of North Tamborine.  It is ringed at least on the north and east by a curtain of tall Lassiandras (Tibouchina) which were flowering magnificently at the time of the court’s inspection.  It is located on the western side at the southern end of North Tamborine Village from which it is well downhill.  While the terrain is even, the site falls gently towards the rear of its western boundary, and as Mr Ovenden puts it, “more steeply towards the south-east corner.  There is a fall of approximately 6 metres from the highest point to the lowest.”  The site will be levelled to create more of a pad for the development.  The proposed levels for the supermarket (some 65 m long along the rear boundary), adjacent retail showroom (185 m²), and medical centre (450 m²) are RL 543, which involves reducing ground level in the north of the site.  The medical centre, a “pharmacy” (200 m²) and specialty shops (480 m²), all with their narrow ends facing Main Western Road will present as single story structures of modest propositions, screening the at-grade car-parking behind.  There will be excavation below part of the supermarket to accommodate 38 basement carparking bays. 

1. Concerns have been expressed regarding stormwater run-off from the site.  Significantly, the western neighbour made the following submission:

“I require more information from the Developer or Council to my concerns:

As any water runoff would end on my land on the southern and western sides I require to receive assurance from the Developer or his agent that Water, Stormwater, Wastewater will not end up on my land.

I am also interested to learn where the Sewerage Works are to be positioned and how that will affect my property.

Can I be assured that satisfactory buffering will be applied to the Development between my land and the Development?

Assuming the information supplied satisfies my concerns I would be prepared to withdraw my objection.”

Those issues have gone away.  Experts are satisfied with the proposal as regards the sufficiency of arrangements that can be made to harvest water for use on site and to accommodate runoff in times of heavy rain.  Lack of water and impossibility of avoiding adverse local impacts of active “rural” uses of the site dispel any concern about the loss of good quality agricultural land.  It is of assistance to the appellant’s case that the neighbour’s attitude means the proposal faces no challenge so far as visual amenity impacts to the west are concerned.

1. The proposal required impact assessment, as would any proposal for a material change of use for a shop exceeding 400 m² in the immediately adjoining “Village Centre” (identified in the transitional planning scheme in force until the day following lodgment of the development application) or in the “Business” zone in the 2007 “IPA” planning scheme.  The public notification stage attracted an unusually high level of submissions, overwhelmingly against the proposal.  There were close to a thousand of these, swamping the 84 or so submissions in favour of the proposal.  It seems that an appreciable number of the opponents have since changed their minds.  Even a cursory perusal of the eight bulky volumes of submissions (exhibit 22) shows some peculiarities, such as one of the “pro forma” objections being submitted with a clear statement in the box provided for individual comments that the proposal was supported.  A weakness of the objections is that the terms of a good number reveal a misunderstanding of the proposal as one to introduce a Coles or Woolworths supermarket which would compete with the existing IGA supermarket (800 m²) in the Village.  The proposal is in fact to relocate the existing IGA, depriving submissions to the effect that a second supermarket was not needed of much of their force.  Clarification of the misapprehension has, as mentioned earlier in this paragraph, led some adverse submitters to declare their support for the proposal.  The misapprehension continues, however.  Exhibit 52 was a witness statement from an “owner of small retail business in Main Street and a resident of 16 years” dated 17 March 2010 expressing the opinion that the local population “cannot support 2 large supermarkets.”

1. For all that, it remains the case that there is demonstrated a very large level of community opposition to the proposal.  Speaking generally, the objectors, by way of pro forma letter in large part, rely on the proposal’s conflicting with the planning scheme and the lack of need for it.  Also prominent are other issues which have concerned the court such as visual, traffic and storm water aspects.  There is opposition to what is said to be the threatened creation of a new focus of the business centre on the periphery of it in a location inconvenient for users, and in particular the residents of relatively high density residential facilities for older people who are able to walk to the present IGA supermarket and other destinations nearby such as the council library, post office, bakery, butchery, hardware store and eating places.  Indeed, the planning arrangements provided for indulgences to permit such residential accommodation on the basis of proximity of facilities of the kinds enumerated.

1. While between 40 and 50 of the adverse submissions came from residents of remote places (some interstate), the vast bulk were from local people.  Well over 100 of the adverse submitters elected to be co-respondents in the appeal.  Three of the co-respondents by election, namely Mr Foster (13^th), Mr Giffard (14^th) and Mr Lindenmayer (8^th) participated actively in the appeal, representing themselves.  Ms Peat was likewise active on behalf of the 12^th co-respondent by election, Tamborine Mountain Progress Association Inc.  The other active co-respondents were the Chief Executive, Department of Main Roads (9^th) Evergreen Corporation Pty Ltd (145^th) and the Presbyterian Church of Queensland, operating as Prescare (146^th).  The Church became involved when consideration of traffic and access issues led to the proposal being changed to bring in a new roundabout at Main Western Road immediately at the entrance of the aged care residence, Roslyn Lodge, which it operates across Main Western Road from the site.  The current entrance driveway was to constitute one of the arms of the roundabout (or an extension of it), the site entrance the opposing one.  Early drawings showed the roundabout located in part on Church land and there was a more general concern that in the circumstances works might be necessary on that land.  Evergreen Corporation owns two adjoining lots north of Roslyn Lodge, but separated from it by the 4 m wide Taylor Lane.  Its land is in the Village Centre or business zone; its concern is to ensure that access arrangements which might be approved to service the appellant’s site not compromise access to the Evergreen properties.  The Department has a related concern (presumably shared by the Council) not to compromise the potential of Taylor Lane to be widened and become part of the road network of the business area at North Tamborine. 

The irregular situations of Taylor Street and Taylor Lane

1. For the time-being Taylor Lane has been appropriated as the driveway of a house standing on the southern of Evergreen’s two parcels.  There is no other use.  Taylor Lane is apparently designated as a “path” on relevant plans.  The designation as “path” is an indication that it is not for vehicular use (Attorney-General (ex rel. Pratt) v Brisbane City Council [1988] 1 Qd R 346). It is too narrow to be used as a road. Its purpose appears to be to provide a connection with Taylor Street which runs north-south, parallel to Main Western Road on the eastern side, terminating in the south at the Prescare boundary. It extends north behind the rear boundaries of Evergreen’s land and then lots 1 and 2 RP 40157 to the west; there are 6 allotments (all zoned business) to the east. At that point Taylor Street turns 90 degrees to the east, connecting with Geissmann Drive, which is the main road up the mountain from the north. Lot 1 and Taylor Street mark the southern end of “lot 200” which is Doughty Park. The park is otherwise bounded by Geissmann Drive and Main Western Road where it turns into Main Street. Those traffic arrangements have proved unacceptable to local people; to the eastern arm of Taylor Street connecting with Geissmann Drive they have added a western extension to Main Street at its intersection with Beacon Road, the main thoroughfare to the west. A gravel (if not sealed) surface has been provided along this extension, which, to all appearances, is part of the local street system; it is certainly the main access to the north south portion of Taylor Street which is a dead end, effectively, mature and fairly dense vegetation making it untrafficable.

1. By separate decision notices sent to a Mr B Clough, the Council has approved a material change of use for lot 1 and lot 2 RP 40157.  These are for new development behind existing shops on Main Western Road.  An expanded doctors’ surgery (likely to take Evergreen’s medical tenants) is included.  Council conditions required formalisation of the unofficial western extension of Taylor Street in the form of an easement.  This is unacceptable to what is now the Department of Transport and Main Roads, which requires dedication of a road, to be excised from Doughty Park.  Doughty Park is the responsibility of the Department of Environment and Resource Management (the current emanation of the first co-respondent by election who was given leave to withdraw).  There are steps to be taken before the new arrangements become a reality.  A feature which may render them palatable is the closure of the eastern arm of Taylor Lane; the amalgamation of the relevant land with it would lead to a modest increase in size of Doughty Park.  The requisite steps for closing the road are yet to be embarked upon.  That the medical people will move cannot be regarded a certainty.

1. The Department of Transport and Main Roads, which controls Geissmann Road and Main Western Road, opposes access being taken from the latter to lots 1 and 2, an approach which attracted strong criticism from the Council’s traffic expert, Mr Beard; he thinks that approach could be challenged successfully.  It is proving a source of unwelcome complications in recent times that two road authorities are involved.  To date, the demands on the road system in this area, given the small population and visitor numbers, have been satisfactorily accommodated.  Only modest growth is anticipated, serious constraints being the lack of town water and reticulated sewerage.  Mr Beard may be right that the time for local traffic planning has arrived, notwithstanding that neither the Department nor the Council is in the least likely to contemplate devoting any of their resources towards the cost of providing improvements by necessary land acquisitions and construction.  He was not suggesting (if he was, I would disagree) that the appellant’s development ought to await formulation by the State and local authorities of a local traffic plan (which may never eventuate), notwithstanding his statement that “in effect”, the appellant’s application may be seen as premature.

1. The Department, which likewise controls what happens in Main Western Road in all respects, not only as to what roadworks are constructed but also as to what may happen to the attractive, much-prized established trees in the road reserve, insists that nothing occur in relation to the appellant’s development which would compromise access via Taylor Lane (or some equivalent) between Main Western Road and the “business” areas either side of the present Taylor Street.  This has led Mr Beard to suggest relocation of the presently proposed roundabout some 20 or 30 metres to the north at Taylor Lane.  He assumed that this would occasion no difficulty to the appellant which could relocate its driveway further north, and relocate the proposed pharmacy building to the southern side of it, to be adjacent to the speciality shops, rather than the medical centre.  This would return debate to the driveway to where it was originally proposed, before the roundabout idea was envisaged.  He is no doubt right that final design will result in a roundabout different from anything that has appeared in the rather preliminary drawings seen to date.  The judgment has been made to defer embarking on detailed design work until it is known whether the proposal is to be approved and to go ahead.

1. While it is reasonable to require the appellant to bear the cost of the roundabout presently proposed and the burden of any land dedication required, the considerations would not be the same for a relocated roundabout whose purpose and effect in large measure would be to benefit the owners of land with a frontage to Taylor Street.  The topography is such that if the roundabout were relocated to the north, provision of access to Prescare would be very difficult; it would involve loss of land and destruction of existing facilities such as water tanks.  I took Mr Beard to concede that, should the present proposal go ahead, the roundabout in its southern location could be extended in some sort of kidney configuration to incorporate a widened Taylor Lane as one of its legs.  There was suggested to remain the difficulty that a five-leg roundabout is contrary to the Department’s guidelines.  This aspect has not been much explored; it may be relevant that the Roslyn Lodge usage is very limited (10 vehicle movements per day?).  The Department of Main Roads Road Planning and Design Manual in 14.3.1 appears to contemplate up to six legs for a roundabout; there are several illustrations showing five legs.  While central islands may “preferably be circular”, it is accepted that oblong or other shapes may need to be adopted to suit unusual site conditions (14.12.1); again, such an exceptional arrangement can be found illustrated: fig 14.3.7.  Apropos another suggested difficulty, that the sloping terrain may stand in the way of identifying levels which do not compromise access (Prescare’s especially, which ought not to be made appreciably steeper) the manual in 14.4 indicates that a certain amount of leeway is permitted within a roundabout.

1. In the final design stage, a decision can be made as to the location and other features of the roundabout to be provided for purposes of access to the site.  If the location is the southern one indicated by architect’s drawings (I note Mr Beard’s suggestion that the Department has deliberately referred to architect’s drawings as a signal that the degree of finality associated with engineers’ drawings does not exist), I am satisfied that nothing that might be devised with regard to Taylor Lane would be compromised.  There is a possibility, conceded by Mr Holland, that future detailed design work may be unsuccessful or that whatever is required may render proceeding with the development economically unattractive to the developer – for example, if works are required to lower the level at the roundabout are too costly.  The Department of Transport and Main Roads is effectively in charge and will have the last say.  The considerations are not solely engineering ones.  Relocation of the roundabout presently proposed to the west not only saves the need to use the Roslyn Lodge land, it appears to save a valuable stand of trees (final design work will clarify this).  It appears that relocation of the roundabout to the north would inevitably require sacrifice of at least of four of eight trees identified in exhibit 75.  Mr Harding’s cross-examination (on behalf of Evergreen) of Mr van Pelt I understood to focus on investigating whether access to Main Western Road for those properties through the trees would be available to Evergreen; nothing about the traffic engineers’ evidence suggested it would not be.

1. The appellant’s case (not only as presented through its visual amenity expert, Mr O’Brien) placed some emphasis on the value of the roundabout as an entry statement to the North Tamborine Village for arrivals from the south, corresponding with the roundabouts that mark the ends of Gallery Walk, which I suppose do serve as entry statements there, although both of them owe their construction to traffic planning.  Nothing in the planning scheme suggests that an entry statement for North Tamborine is a desideratum.  While there may be this bright side to the introduction of a roundabout, I do not think that it amounts to a ground supporting ignoring of conflict of the proposal with the planning scheme.

1. As Mr Holland accepted, whatever level of confidence we may harbour that an appropriate roundabout can be designed, it remains to be seen whether the requirements for adequate sightlines, grades and the like which will have to be satisfied can be met.  It is a separate question whether the developer finds the outcome acceptable.  The proposal ought not to be rejected because of traffic considerations, which will be found discussed in more detail below.

Development Control Plan

1. The principal planning instrument affecting the site is a development control plan of 1997 (which Mr Giffard, who played some part in its preparation, was anxious to distinguish from its 1985 predecessor).  This DCP was carried over to the 2007 planning scheme.

1. I agree with Mr Schomburgk that, if anything, the 2007 IPA scheme is more supportive of the proposal than the transitional one on the basis of specific assessment criteria for the village residential precinct (within which the site is located); Specific Outcome 1 envisages development providing for “predominantly low density” urban residential development characterised by single dwellings on urban lots: predominantly does not mean exclusively.  More importantly, Specific Outcome 7 relating to non-residential development envisages that “development provides for a limited range of non-residential uses where it can be demonstrated that the amenity and character of the residential area is maintained.”  (As it happens, the proposal will have no effect on the amenity and character of residential areas, being bordered by commercial land to the north and rural land to the west and south; in the south that rural land is limited to an access strip to land behind, areas beyond being now Cottage Tourist Facility (formerly A Rural Character).  The foregoing omits to note other uses on the north of a bowling club and public swimming pool.  The only Village Residential Land across Main Western Road is Roslyn Lodge which has a couple of long narrow buildings (conformable with the dimensions of the site) extending back from the road and set low in a hollow.  In contrast with the situation in many “last minute” applications brought under a transitional planning scheme, the appellant gained no particular advantage from its timing, except perhaps an advantage from it and its consultants being more familiar and at home with a long-standing planning regime.  It is accepted that the rural zoning in the transitional scheme has no relevance.  Expert evidence (if any were necessary) establishes that the site has insufficient water; further, it is too small and, in any event, the impacts of most rural activities on surrounding land uses would be unacceptable.  The planning regime for the site was and is provided by the DCP.  There are now Tamborine Mountain Zone Provisions in Chapter 3 Part 7 of the current planning scheme.

1. The DCP (Development Control Plan No. 1 Tamborine Mountain – gazetted 20 December 1997) lauds the existing character of Tamborine Mountain and notes the motivation of the Mountain Community (itself “a significant part of the existing character of the area”) to protect the attractiveness of the Mountain.  The DCP by 1.1 confers no development rights but provides “a framework within which individual development applications, with respect to land within the scope of the Plan, are to be assessed”.  By 1.6:

“The broad aim of the Plan is

‘To ensure that land use and development is ecologically sustainable and their ongoing management on Tamborine Mountain are of a form and character that is consistent with the natural environmental qualities, semi-rural character and amenity, and resource management requirements of land within the Plan area.’”

Specific aims and objectives follow which include in 1.7.4 providing “opportunities for compatible forms of commercial development (“within the Village Centres”) and community facilities for the area’s population while maintaining the existing semi-rural character and amenity”.[1]  2.2.1 recognises division of the plan area into land use character areas including:

[1]Set out in [45].

“2.2.1      Village Areas

These Areas are intended and preferred for Village Land Uses (residential and commercial) and are shown on Map DCP-1 Map 1 and include a mixture of residential, business and community uses at North Tamborine, Eagle Heights and Mount Tamborine.  The part of each Village Area in which commercial and community facilities are concentrated has been designated as a Village Centre (see Map DCP-1 Map 1).  Where existing tourist facilities are concentrated in nodes, they are shown as a Tourist Centre on the same Map.”

The middle sentence is much relied on in the appellant’s case.  It is a confirmation that the DCP mapping is relevantly descriptive of the outer limits of development that has actually occurred already.  This may make expansion at the edge more acceptable.  The DCP’s development guidelines for North Tamborine Village area are:

“3.1.1.     Character Statement

This Area comprises a mixture of commercial uses, community facilities, and residential development.  The existing residential parts of the Area comprise mainly single dwelling houses and include a large proportion of smaller allotments (between 600 and 1200 m² in area).

Residential development is intended to remain the dominant land use in the Area and the Area’s existing character of low set cottages set amidst traditional “country-style” private gardens will be protected.

It is intended that the Village Centre in this Area continue as the main service centre for residents of Tamborine Mountain.  A consolidation of shopping, office, entertainment, civic and community uses along Main Street/Main Western Road particularly between Beacon Road and North Street, is to be encouraged.

There may be sites within the Village Area where existing rural uses are incompatible with surrounding residential land uses, and which are suitable for older persons’ housing (see Section 2.3.2).

3.1. 2       Preferred Future Land Uses

The preferred dominant land uses in the Village Centre include retailing, professional services, business offices, refreshment services, community recreational uses and community facilities.  Other uses compatible with these dominant land uses will also be favoured where they do not detract from the existing character and amenity of the Village Centre.

Within the balance of the Village Area the preferred dominant land use is dwelling houses on existing residential lots.  Commercial development, including Indoor Entertainment and Indoor Sport and Recreation uses, will not be permitted in the balance of the Village Area outside the Village Centre.

Cottage Tourist Facilities may be permitted on land designated for that purpose on Map DCP-1 Map 2.  Other tourist facilities will not be permitted.

The only form of tourist accommodation which may be established in the North Tamborine Village Area is Home Stay Tourist Accommodation where existing residential character and amenity is protected, in accordance with Section 2.3.6.  Home Stay Tourist Accommodation must comply with the performance criteria contained in the Town Planning Scheme.  Backpackers accommodation, camping grounds, caravan parks, guest houses, hotels, motels and tourist cabins will not be permitted.

Multiple dwellings will only be permitted where they are approved as older persons housing in accordance with Section 2.3.2.  Limited duplex development may be permitted in accordance with Section 2.3.1 and the development guidelines below.  A Service Trades Area may also be approved but only in accordance with the guidelines set out in Section 2.3.8.

Notwithstanding the above statements on tourist facilities, tourist accommodation and other non-residential uses, there are some areas of the Mountain where it is considered there should be no further intrusion of non-residential uses.  These areas are considered to be highly significant landscape character and amenity areas of critical importance to the maintenance and protection of Tamborine Mountain’s unique natural and semi-rural character.

Accordingly, the Council will not approve uses of a non-residential nature, such as tourist facilities, retail, commercial, or arts and crafts related uses, on the following frontages:

·Beacon Road, from Monte Street West, and

·Tamborine Mountain Road (Geissmann Drive) to the       intersection with Main Street and Main Western Road

with the exception of those developments that demonstrate, to the Council’s satisfaction, that they have no detrimental environmental impacts and visual impacts on the existing landscape character as perceived from either the road or adjacent properties.

Any development adjoining the Conservation Area shall have due regard of the environmental qualities and landscape character of those areas, as required in Section 3.7.2.

3.1.  3       Development Guidelines

(a) Residential

The general requirements described in Section 2.3.1 will apply to residential development in this Village Area.

No further subdivision will be permitted within the Village Area for urban residential purposes.

Except that Council may approve the creation of separate titles for any older persons’ housing units created in accordance with Section 2.3.2 of this Plan.

Limited duplex development may be permitted provided the existing character is maintained and duplexes shall be at least 75m apart.  That is no lot containing a duplex shall be located any closer than 75m to another lot containing a duplex or approval for a duplex.

(b)Commercial

In addition to the general requirements described in Section 2.3.3 commercial development shall be consistent with the following guidelines:

(i)buildings shall generally not exceed one storey in height.  Except that Council may approve one additional storey above ground storey where such an additional storey has a gross floor area not greater than 50% of that of the ground storey and in Council’s opinion would not adversely affect the amenity and character of the Village Centre;

(ii)any buildings erected on a site with frontage to the eastern side of Main Street or Tamborine Mountain Road between Taylor Lane and Bank Lane, or the western side of Main Street between Beacon Road and Geissmann Street, shall be located so that the building at ground floor level is constructed up to the front alignment of the site and provides a mainly shop-front treatment along such frontages;

(iii)continuous and effective pedestrian shelter shall be provided to Council’s satisfaction along shop fronts within the Village Centre in a manner which is complementary to the existing character of the Village Centre;

(iv)buildings shall have a generally rectangular plan form and be oriented parallel or perpendicular to the road frontage so as to complement the existing streetscape; and

(v)external walls shall be finished in timber or brick, and predominantly earthy colours shall be used where surfaces are painted.

3.1.4     Landscape Management Guidelines

(a)Landscaping in the Village Centre should use predominantly indigenous species.  Nuisance exotic species (including lantana and privet) shall be prohibited in new planning.  Alternative preferred species may be listed in an Action Plan;

(b)Fencing and/or hedgerow planting is preferred along all road frontages;

(c)Roadside planting is intended to be established by Council to frame views along the main road and to enhance the visual and general amenity of the Village Centre.  This planting may be discussed further in an Action Plan;

(c)The public open space and local parkland in the Area shall be maintained for use for environmental and active and passive recreational purposes as appropriate.”

(The added italics draw attention to provisions relied on by the opponents of the appellant’s proposal.)

1. The second paragraph of 3.1.2 is a strong proscription of commercial development of the kind proposed. The planning scheme mapping defines the boundary. There is commercial development similar (but of inferior visual amenity) on the parcel immediately to the north of the site, indeed north of that as well, all the way to Beacon Road, which one senses the drafters would have preferred to represent the southern limit of commercial development. The planning arrangements acknowledge such development south of the notional extension of Beacon Street in the east and, indeed rather curiously, the Village Centre includes land east of Taylor Street unlikely to be of interest to any commercial operator requiring any degree of exposure, so that the east-west dimension of the business zone/Village Centre is greatest at the southern extremity. The conflict identified is sufficient to bring into play a provision such as s 3.5.14(2)(b) of the Integrated Planning Act 1997, requiring a developer to present sufficient grounds if the conflict is to be overridden. Here, given the date of the development application and the provisions of ss 6.1.29, and 6.1.30 of IPA, the relevant provision is s 4.5(5A) of the Local Government (Planning and Environment) Act 1990:

“(5A)   The local government must refuse to approve the application if –

(a)        the application conflicts with any relevant strategic plan or development control plan; and

(b)        there are not sufficient planning grounds to justify approving the application despite the conflict.”[2]

[2]The broader requirements of the section are in s 4.5(3) Local Government (Planning and Environment) Act 1990:

“(3) In considering an application to amend a planning scheme or the conditions attached to an amendment of a planning scheme a local government is to assess each of the following matters to the extent they are relevant to the application –

(a)     whether the proposal, if approved, or buildings erected in conformity with the proposal, or both the proposal, if approved, and the buildings so erected would –

(i)create a traffic problem, increase an existing traffic problem or     detrimentally affect the efficiency of the existing road network;

(ii)        detrimentally affect the amenity of the neighbourhood;

(iii)       create a need for increased facilities;

(b)    the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment;

(c)     whether the land or any part thereof is so low-lying or so subject to inundation as to be unsuitable for use for all or any of the uses permitted or permissible in the zone in which the land is proposed to be included;

(d)    whether, having regard to the permitted or permissible uses of the land and the potential for subdivision in the zone in which it is proposed to be included water, gas, electricity, sewerage and other essential services should be made available to the land and to each separate allotment thereof if the land were subsequently subdivided;

(e)     the impact of the proposal on the environment (whether or not an environmental impact statement has been prepared);

(f)   the situation, suitability and amenity of the land in relation to neighbouring localities;

(g)    the advice given by it, in respect of any consideration in principle concerning the relevant land pursuant to section 4.2;

(h)    whether any plan of development attaching to the application pursuant to a requirement of the planning scheme should be altered;

(i)   where the land is land prescribed pursuant to section 8.3A, the site contamination report in respect of the land;

(j)   such other matters, having regard to the nature of the application, as are relevant.”

The Council, with the support of its planning expert, Mr Ovenden, contends that the proposal conflicts also with the strategic plan which is Appendix A in the transitional planning scheme in respect of Shire image objectives 1 and 6:

“Objective 1:       To identify, maintain and enhance elements which constitute and contribute to the Shire image

Objective 6:         To consolidate the intrinsic character of cooler, plateau elements of Tamborine Mountain and Beechmont.” 

Conflict is also asserted with:

“3.5.5       Economic Development Objective 4.

To promote the development of centres which accommodate the maximum range of suitable local services and economic enterprises.”

The implementation is:

“The development of local services and other economic enterprises is intended to be concentrated into a limited number of centres, namely urban centres shown on the Strategic Plan Map 4, and smaller centres that may be shown in a development control plan.  This is intended not only to provide more convenient access for residents, and greater sense of community identity, but it is also proposed in order to encourage economic synergies between activities to develop.  The development of these local services and economic enterprises shall occur in such a manner that the compatibility of adjacent land uses is achieved.”

1. The strategic plan, in my view, offers broad principles with which the proposal is arguably in conflict, but it is really coincident with the conflict that exists with the DCP, to which the strategic plan yields.  If “edge of centre” development is to be tolerated (I agree with the planners that “if there are no other suitable and available sites within the zoned Business Area, an-edge-of-centre site is preferable to a more remote location”), the proposal may be seen as advancing the economic development objective, given the established need for it.

1. Turning to the DCP, in addition to the stark conflict with the preferred future land uses provision (3.1.2) one has the same conflict arising in a different way under 1.7.4 which envisages compatible forms of commercial development “within the Village Centres”.  The same idea is in 2.2.1 and indeed 3.1.1 which goes further to encourage commercial uses to locate between Beacon Road and North Street, notwithstanding that the Village Centre extends beyond both, recognising existing commercial development.  There is also conflict asserted with 1.7.2 which would relate both to the principle of commercial development on the site and separately to the particular form the development would take.  Aim no. 1 in respect of 1.7.2 Landscape Character is “To preserve and maintain the semi-rural character and amenity of Tamborine Mountain (including both natural and man-made character elements)”.  The court had the advantage of expert views in this regard presented by Mr O’Brien and Mr van Pelt.  Some conflict may be discerned, but it is essentially the same point of conflict, namely that according to the DCP, the proposed development is in the wrong place.

1. The Council asserts that, for purposes of s 3.5.14(2)(a) of IPA the proposal will compromise achievement of certain DEOs in the new planning scheme, namely:

“

(a)Environment Outcome (1)(b), as the adverse impacts of the proposed development on water pollution from inadequate effluent disposal practices are not avoided or otherwise mitigated;

(b)Environment Outcome section 1(h), as the proposed development has not demonstrated best environmental practice;

(c)Economic outcome section (2)(j) as it will not maintain and consolidate the existing and planning structure of urban centres;

(d)Economic Outcome section (2)(k) as it will not maintain and enhance the distinctive character of the Shire’s rural townships and villages; and

(e)Economic Outcome section (2)(l) as it is not of a scale, form and intensity appropriate for the locality and it has not been demonstrated that there is an overwhelming community need and an overwhelming economic need for the proposed development.”

The planners defer to experts in other fields, but observe that there is a planning aspect to the issue regarding economic outcomes.  Mr Ovenden contends that maintenance and consolidation of the existing and planned North Tamborine Centre is compromised (because that Centre will be fragmented), that there will also be compromised maintenance and enhancement of North Tamborine’s distinctive character and that there is no overwhelming need to establish this new “stand alone shopping centre at the scale proposed”; the contention is that the components of it can be accommodated separately in locations within the boundaries of the designated Centre.

1. It is unsurprising that there are aspects of the Council’s case (which coincides with that of the self-represented co-respondents) that are difficult to reconcile.  Thus, turning to the alternative sites proposed for the supermarket in particular, one (east of Taylor Street), although zoned business would lead to “fragmentation” every bit as much as the proposal in a practical sense.  To a reduced extent, the same could be said of the “police station” site which is opposite North Street.  Relocation of the IGA to either of those two sites (the former especially) would be inconvenient for those who appreciate the current more central location of the IGA, especially those in housing for older persons already established under concessional arrangements depending on proximity to existing facilities.  So far as bulk and intensity of the proposal are concerned, the dominant building, the supermarket, which will be set well back from the road behind four smaller structures, is not nearly as large in terms of gross floor area as the existing two storey Shopping Centre at Eagle Heights.  The elevation and topography of the “alternative site” proposed at the corner of Capo Lane and Main Street are such that, on a dominant site, the supermarket building (which all agree would necessarily be large) would be visually dominant.  Speaking generally, the alternative sites (including Mr Giffard’s additional one across Kidd Street from the one identified by Mr Norling and Mr Ovenden) would dominate adjoining residential development on less elevated sites contrary to expectations that may be thought to be generated by the planning arrangements (it may be accepted that anyone purchasing adjacent to the business zone is not well placed to complain if development there compromises his or her residential amenity).  Similar considerations apply to the proposal which has an approval constituted by an order of this court for extension of the existing supermarket by 337 m² to the rear along Youlong Road.

1. While all agree that the new planning scheme which has been in place for some time now ought to be given considerable weight under s 4.1.52(2)(a) of IPA, it would not be appropriate, in my view, for the court to proceed on the basis that it was bound to reject the proposal for arguably compromising achievement of DEOs not applicable until after the development application was lodged.  In the circumstances, it seemed unnecessary to pronounce on whether the alleged compromising is indeed threatened.  If cases such as Koerner v Maroochy Shire Council [2004] QPELR 211 are correct, compromise is to be considered on a shire wide basis, rather than by focusing on a particular location. There is “conflict” alleged, too, with other provisions of the 2007 planning scheme with respect to the Local Strategies for the Tamborine Mountain Zone Code, Council pointing to Overall Outcomes 1, 4, 6, 7, 8, 14 - 18, 27, 29, 38 - 40, 46 and 58, also Specific Outcomes 1, 2, 3, 6, 9, 18, 30 and 44 - 46. These aspects do not have the potency of the DEOs and are matters for experts in fields other than planning, such as traffic and water quality. The relevant considerations are covered in issues the court has to consider in any event. Speaking generally, my conclusion is that the conflicts alleged can be resolved by imposition of conditions on any approval.

Need

1. Mr McCracken, engaged by the appellant, considers that there is a strong community and economic need for the proposed shopping centre that cannot be met within the existing designated Village Centre Area.  Mr Norling, engaged by the Council, agreed that “there is a considerable to strong level of need for the retail and medical elements proposed by the subject development”.  In the joint experts’ report, he says this is due to:

“•The significant escape expenditure by Mountain residents to destinations off the Mountain;

•The population of the Trade Area being sufficient to support the scale of supermarket and other elements proposed, as evidenced by the agreed turnover projection;

•The population of the Trade Area would be better served by a larger supermarket, offering an increased range of merchandise, an increased depth of merchandise and (likely) more competitive prices;

•The low level of vacancies within the North Tamborine Village Centre; and

•The evidence of tenants willing to tenant the major elements of the proposal.

72.However, Mr Norling considers that this level of need for the proposed elements is significantly reduced in respect of the proposal on the subject site for the following reasons:

•The North Tamborine Village Centre has significant capacity to accommodate infill development, including a larger supermarket;

•The proposal would result in a fragmenting of the Village Centre, rather than a consolidation of the Centre.  Such fragmentation is exacerbated by the existing level of fragmentation and need for consolidation.  This level of fragmentation would result in a significant reduction in the role and function of the northern node within the Centre;

•The written evidence of the Appellant establishes that the intended tenants of the proposal represent a relocation of existing tenants from within the Village Centre rather than new tenants to the Mountain; and

•The community has apparently expressed a strong degree of opposition to this proposal, which could lead to a lower proportion of the population patronising the facility, if approved and developed (as occurred at Maleny).”

(The evidence did not establish that Woolworths’ trading at Maleny was as suggested, containing nothing either way.)

1. The economists worked on the basis of what amount should be taken to be available for expenditure on retail (and at the supermarket in particular) in the identified trade area (which extended slightly off the Mountain) and what was being spent on the Mountain at the IGA and the smaller Foodworks Supermarket at Eagle Heights (the latter’s takings being estimated on the basis of the trading of similar outlets).  The conclusion was that more would be spent on the Mountain if a greater range of products could be provided at the IGA, this requiring considerably more space.  The number of product lines able to be covered in IGA’s 800 m² (or thereabouts) of trading area was of the order of 8,000 to 10,000, whereas it could be 20,000 or more in a supermarket of the size presently proposed.  This approach brought a challenge from the self-represented co-respondents (Mr Foster in particular) that the products said to be unavailable at the IGA be identified.  Mr McCracken was subjected to strong criticism for omitting to conduct a survey in the area to ascertain the views of consumers.  Mr McCracken’s response was that the proposal in its context was not of a size to justify the incurring of expenditure of $10,000.00 or so in this regard, further that with local feelings as high as they were, any survey might have been “biased”.

1. My own impression, from the court’s inspection, is that the IGA is extremely well stocked for an outlet of its size.  It sells fresh meat (apparently provided by the local butcher) and has a delicatessen counter.  It even offered vacuum packed whole trout (not frozen).  The challenge which Mr McCracken could not take up was met by Mr Cavallaro, the proprietor of the IGA (and a dozen other such outlets in more than one State) and his store manager for the last 18 months, Ms Barbaro.  She explained the pressure she is under to provide lines that cannot be accommodated, such as vegan products and organic ones.  She gave examples of limitations on what the delicatessen could handle, instancing olives as a line that could not be provided in the varieties desired by customers.  Mr Cavallaro instanced the constraints produced by space limitations on the varieties of fruit and vegetables that could be offered (apples, grapes, bananas etc); he said that there was no room to permit the carrying of herbs.  Speaking generally, he indicated that there was not space to carry an appropriate variety of products in the area of health, beauty and toiletries.  In this appeal, need has been established from the top down and from the bottom up, so to speak.  Any question whether it extends beyond a pure economic need to constitute a community need or a social need would be answered affirmatively.  It was common ground that it is in the interests of a local community to prevent “escape expenditure”, to maximise expenditure within the local area.  The expressions of satisfaction with what is currently available at North Tamborine by parties and by witnesses who provided them with statements, also by many of the submitters, do not gainsay my assessment that the experts are correct about need.

1. The situation may be complicated in respect of the components of the development other than the supermarket.  The doctors presently practising across Main Western Road who had expressed an interest in occupying the medical centre proposed are now committed to relocate to larger premises on the same side of the road as where they are presently.  The interest of the operator of the nearby pharmacy in moving to the site to larger premises has evaporated or been put on hold in a similar way.  From what appears, those potential tenants are not likely to come to the site until the end of commitments very recently undertaken, which are understood to run for a couple of years.  Unless the Taylor Street/Doughty Park issues are resolved, those uses will not be lawfully entitled to relocate north at all.  Leases there may not be taken up.  Geographical restrictions that prevent proliferation of pharmacies presumably stand in the way of any newcomer pharmacist emerging.  Other doctors might be found; Mr McCracken said that there is a shortage of medical practitioners.  Imponderables abound here.  The operator of an electrical goods outlet in a nearby town is interested in establishing in the proposed development.  I took counsel who addressed the point to agree (and I do, too) that need is to be assessed as things stand when a development application is made (which the experts have done) and that little is to be regained by revisiting it as things appear to change – certainly so where things may well change again. 

1. Mr Hughes challenged Mr Norling to resile from his view expressed in the joint experts’ report that it could still be said there was need for the “components” of the proposal as opposed to one for the supermarket only.  There are no real fears of an oversupply of commercial space which is said to be around 70 or more businesses operating in Main Street/Main Western Drive; there is only one vacant set of premises, which the economic experts conceded is a bad thing, since a greater vacancy rate should keep rents at more appropriate levels.  The IGA will account for the majority of space in the proposal, as well as the majority of space in existing buildings that might be vacated.  Mr Cavallaro is the owner of the present IGA premises; (I respect and accept) his confidence that he will find a tenant to take over the existing supermarket area.  He has ideas for establishing businesses in the space himself, should a need arise for that, such as a discount department store or even a ten pin bowling alley. 

1. Mr Norling does say that there is no need for all of the components of the proposal to be located in the same development.  Notwithstanding the obvious potential for new development in the Village Centre/Business Zone, it is not possible to identify “there” sufficient parcels or part-parcels presently vacant to accommodate all components of the proposal.  The site contains 1.285 ha.  About half of that would be required to accommodate a free-standing supermarket with the requisite parking “at grade”.  The alternative sites located by Mr Norling and Mr Giffard would all require undercroft parking.  The court heard various views regarding the attractiveness of parking not at-grade.  While there may be some who prefer covered or underground parking for reasons such as the parked vehicles remaining cooler or out of rain, I am satisfied (particularly as Mr Cavallaro strongly advances this approach), that in contexts such as the present one, the convenience of parking        at-grade for customers who want to be able to get in and out of the supermarket easily and not to have to manoeuvre shopping trolleys between levels is most important.

1. A co-location of specialty shops with a supermarket is on the evidence the strong preference of both supermarket operators and the specialty operators who take the view that everyone benefits from the co-location.  The idea was expressed that the supermarket operator might benefit from discounted rental.  I do not think a planning court ought to give determinative effect to traders’ views of what may be in their best interests.  However, there is an aspect of community interest which the court may consider: co-location (independently of the benefits to the traders) may be the only basis on which, for the benefit of the community, some uses (for example, showroom and certain specialties) would consider establishing in North Tamborine.  Further, I think that many in the community appreciate (and derive a benefit from) co-location of a supermarket with other uses.  The benefits may be of various kinds, such as cutting the number of trips to be done or offering increased choice and opportunity for some comparison shopping.

1. Mr Cavallaro would seriously entertain opportunities to relocate the IGA in sufficiently large premises closer to the present ones.  He gave evidence of involvement in some discussions with at least one person who might be able to help.  The site proposed by Mr Giffard, south of Kidd Street and the site east of Taylor Street, would be rejected by any operator because of lack of exposure.  The site across Kidd Street (like its opposite number) espoused by Mr Giffard (as a “late entrant”) does not have at-grade parking.  A similar disadvantage applies to the “police station” site; the likelihood of this becoming available may be doubted.  It lies to the north of the current IGA site across Geissmann Street to the south, across Youlong Road.  At the end of the next block is the Capo Lane alternative site.  It could provide some parking at-grade.  The elevated nature of the site would give a supermarket there plenty of exposure, one would think rather too much visibility and dominance, especially in light of the character envisaged for this area in the planning documents; a supermarket has to be big.  Another difficulty is the relatively recent construction of a handsome building on the corner whose demolition would be required.  Capo Lane is very narrow and could not handle traffic for a supermarket development there.  The proposition that alternative sites are available that are currently appropriately zoned or designated to accommodate the components of the development (if a 2000 m² supermarket is excluded) is not convincing.  This, in my assessment, leaves intact a finding of community need, public need, social need, however one wants to name it, for the proposed development including, but not limited to, the supermarket.  The facilities, goods and services available to the public will be enhanced and expanded.  Some (no one could suggest all) escape expenditure will be avoided; employment opportunities will increase.  The improvement in facilities will extend to parking for supermarket customers.  While some may walk from nearby residences to do supermarket shopping, overwhelmingly the patrons will come in their vehicles. 

Urban Centre Objective 1     4.4.2       

To encourage within the Shire the development of a range of centres that will provide convenient commercial and community services for the population.

Implementation

…

(j) Tamborine.  A small number of sites will be permitted to develop generally in the vicinity of the town’s main intersection, for business and industrial land uses, so as to provide services for residents in the district, promote the possibility of tourist-oriented craft shops in this location, and develop the identity of the village of Tamborine as a service centre.”