Hawkhaven Pty Ltd v Mackay Regional Council - [2017] QPEC 40

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Hawkhaven Pty Ltd v Mackay Regional Council & Anor [2017] QPEC 40

PARTIES:

HAWKHAVEN PTY LTD

(Appellant)

v

MACKAY REGIONAL COUNCIL

(Respondent)

AND

BLACKS BEACH COVE NO.2 PTY LTD

(Co-Respondent by Election)

FILE NO/S:

No 4293, 4294, 4295 and 4296 of 2014

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

19 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

19 – 23 September 2016, 23 – 24 February 2017

JUDGE:

Searles DCJ

ORDER:

The orders will be in accordance with those in paragraph [228] of this judgment.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where development application for material change of use for commercial premises refused by Council – where development application assessed against current planning scheme – whether weight should be given to draft planning scheme – whether development application conflicts with relevant planning schemes – whether sufficient grounds exist to warrant approval

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where development application approved subject to conditions – whether conditions valid pursuant to section 345 of Sustainable Planning Act 2009 (Qld)

Sustainable Planning Act 2009 (Qld) s 314, s 324, s 326, s 345, s 493, s 495

Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342

Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157

Beck v Atherton Shire Council (1991) QPLR 56

Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104

Broad v Brisbane City Council & Anor (1986) 2 Qd R 317

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117

Dalgety Australia Ltd v Brisbane City Council (1980) QPLR 198

DP Thoroughbred v Albert Shire Council [1986] QPLR 273

Elan Capital Corporation Pty ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711

Gold Coast Carlton Pty Ltd & Anor v Beaudesert Shire Council & Anor [1985] QPLR 343

Good-Mix Concrete Pty Ltd v Brisbane City Council (No.3) (1975) 31 LGERA 178

Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153

HA Bachrach Pty Ltd v Caboolture Shire Council [1996] QPELR 312

Jones v Dunkel (1959) 101 CLR 298

Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675

Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224

Lockyer Valley Regional Council v Westlink Pty Ltd [2001] 185 LGERA 863

Maher v Hervey Bay City Council [2007] QPELR 123

Synergy Properties Partners No 2 Pty Ltd v Brisbane City Council [2016] QPEC 21

Waverley Road Developments Pty Ltd v Gold Coast City Council (2011) 187 LGERA 352

Weightman v Gold Coast City Council [2003] 2 Qd R 441

Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337

Woolworths Ltd v Maryborough Shire Council (No 2) [2006] 1 Qd R 273

Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306

COUNSEL:

JD Houston for the Appellant

MJ Batty for the Respondent

D Purcell for the Co-Respondent by Election

SOLICITORS:

Anderssen Lawyers for the Appellant

McCullough Robertson for the Respondent

Appeals 4293, 4294, 4295 and 4296 of 2014

Subject Site

Previous decision of the Planning and Environment Court

SHOPS MCU APPEAL – Appeal No 4296 of 14

Complaints about Late Disclosure of the Draft Planning Scheme

Minor Change Application

Council’s Ground for Refusal

Issues in Dispute

Issues in Dispute – Town Planning

Town Planning JER and the Further Amended Consolidated Ground for Refusal

Town Planning: Expert Evidence

Opinions of Messrs Buckley (Council) and Brownsworth (BBC) in JER

Opinion of Mr Cumming (Hawkhaven) in JER

The Blacks Beach Local Centre under the Current Scheme

Hawkhaven’s First Submission to have Lot 241 re-zoned

The Blacks Beach Local Centre under the Draft Scheme

Hawkhaven’s second attempt to have Lot 241 re-zoned

Weight to be given to Draft Scheme

Town Planning: Centres Hierarchy

Town Planning: Zoning

Conclusion re Town Planning

Amenity

Acoustic Amenity

Amenity provisions within the Current and Draft Scheme

Mr King’s Assessment

Other Aspects of Amenity

Community Expectations

Conclusion re Amenity

Need

Expert Evidence as to Need

Mr McCracken’s Estimates of Supportable Retail Floorspace

State of the Mackay Economy

BBC’s evidence as to the intent and timing of the BBC Proposal

2011 BBC Proposal

Relevance of Existing BBC Approval

Vacancies at Nearby Centres

Conclusion re Need

Nature and Extent of Conflict

Sufficient Grounds to Warrant Approval Despite Conflict

Conclusion re Appeal No 4296 of 2014 - Shops MCU Appeal

HOTEL MCU APPEAL - APPEAL NO 4295 OF 2014

Statutory Regime

GFA of Building – Condition 4

Amalgamation of Allotments – Condition 5

Building Proximity - Condition 9

Commencement of Use – Condition 6

Traffic Issues relating to Condition 13 of Council’s Decision Notice

Conclusion re Appeal No 4295 of 2014 - Hotel MCU Appeal

24 LOT ROL APPEAL – APPEAL NO 4294 OF 2014

Conclusion re Appeal No 4294 of 2014 – 24 Lot Appeal

3 LOT ROL APPEAL - APPEAL No 4293 of 2014

Conclusion re Appeal No 4293 of 2014 – 3 Lot ROL Appeal

Orders

Appeals 4293, 4294, 4295 and 4296 of 2014

On 24 July 2013, the Appellant (‘Hawkhaven’), lodged four development applications with the Mackay Regional Council (‘Council’) relating to the following present appeals:

a) Appeal 4293/14 - development application for a development permit for reconfiguration of Lot 241 on SP171588 (‘Lot 241’) into three allotments (‘3 lot ROL Appeal’);

b) Appeal 4294/14 - development application seeking a development permit for reconfiguration of a lot to subdivide part of Lot 241 into 24 further lots (‘24 lot ROL Appeal’);

c) Appeal 4295/14 - development application for a development permit for a material change of use for a hotel (liquor barn, extension to the existing Blacks Beach Tavern) on part of Lot 241 (‘ Hotel MCU Appeal’); and

d) Appeal 4296/14 - development application for a development permit for a material change of use over part of Lot 241 for commercial premises, shop, catering shop, healthcare centre and indoor entertainment (‘Shops MCU Appeal’).

Council Decision Notices

On 2 October 2014, Council issued two decision notices, one approving the application relating to the Hotel MCU Appeal subject to conditions, the other refusing the application the subject of the Shops MCU Appeal. On 8 October 2014, Council issued two further decision notices approving the applications the subject of the 3 Lot ROL Appeal and the 24 Lot ROL Appeal, both subject to conditions. In respect of these appeals, there was no public notification, and no formal right of submission giving rise to a right of a submitter to appeal or be joined in an appeal.

The 3 Lot ROL Appeal, the 24 Lot ROL Appeal and the Hotel MCU Appeal are all appeals against Council conditions. The Shops MCU Appeal is a substantive appeal against the refusal of a development application in respect of proposed commercial premises, shop, catering shop, healthcare centre and indoor entertainment on part of Lot 241. Blacks Beach Cove No.2 Pty Ltd (‘BBC’) elected to become a Co-Respondent in both the Hotel MCU and Shops MCU Appeals.

Subject Site

The development, the subject of all four appeals, is proposed for Lot 241 on SP 171588[1] containing an area of 2.279 ha and situated in the northern Mackay suburb of Blacks Beach. Its southern frontage is to Blacks Beach Road, a sub-arterial road, and its northern frontage to McAlary Drive, a residential street. Immediately to the east of Lot 241 is Lot 240 on SP140130, the site of Blacks Beach Tavern built in 2005. To the north, on the opposite side of McAlary Drive, and to the west, is the low-density residential development of Sunrise Estate, consisting of residential dwellings 500m² to 800m² in size.[2]
[1]Exhibit 44, Tab 3, page 7.
[2]See Exhibit 3, an aerial photograph showing the existing tavern with Lot 241 to the west of it.

The site is relatively flat along Blacks Beach Road rising towards McAlary Drive and is presently vacant with grassland and some trees.[3] On the southern side of Blacks Beach Road there are residential lots with detached dwellings of between 300m² and 800m² in size and contains an approved centre. [4]

Previous decision of the Planning and Environment Court

[3]Exhibit 9 page 6, paragraph 11.

[4]Exhibit 9 page 7, Table 2.1.

On 5 August 2011, this Court delivered judgment in respect of what were effectively competing development proposals by Hawkhaven and BBC for development of a local shopping centre, to include a supermarket and specialty stores (‘2011 Decision’).[5] The proposals and associated appeals were described in the reasons for judgment as follows:
[5]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104.

‘Appeals
[1] There are presently five appeals before the court relating to the two competing shopping centre applications under consideration. Three are the subject of this judgment. They are:-
(a)BD1202/2010, a submitter appeal by Blacks Beach Cove No. 2 Pty Ltd (BBC) against the Council’s approval on 28 January 2009 of Hawkhaven’s (HH) Material Change of Use (MCU) application for shops – supermarket and six specialty shops;
(b)BD1201/2010, a submitter appeal by BBC against Council’s approval on 28 January 2009 of HH’s MCU application for an extension to an existing hotel-liquor barn and drive-through; and
(c)D211/2009, an appeal by BCC against the Council’s refusal on 28 January 2009 of its MCU application for a shopping centre.

…
Proposals
HH Proposal
[3]   The HH proposal is for a local shopping centre, comprising a supermarket, specialty stores and a liquor barn on land north of Blacks Beach Road comprising two adjoining lots, lot 240 and 241. It involves two separate applications, one for the supermarket and specialty shops and the other for the liquor barn described as a hotel extension. There is an existing Tavern on lot 240 with a Gross Floor Area (GFA) of 1840m².
[4]   All of the development proposed will be on lot 241 for which Council approval has been granted to create three lots. The GFA of the proposal, allowing for changes to which I shall shortly refer, totals 2,908 m² comprising:
(a)Supermarket   1855 m²
(b)Specialty Shops   398 m²
(c)  Liquor Barn        600 m²
(d)WC and Cleaners  55 m²
TOTAL:2908 m²

…

BBC Proposal
[7] The BBC proposal is for a local shopping centre comprising a supermarket and specialty stores on land south of Blacks Beach Road at the corner of Chenoweth Drive and Bondi Road more or less directly across Blacks Beach Road from the existing Tavern. This proposal is to be located on lot 901 on SP 199843. By a decision dated 28 January 2009 Council approved the reconfiguration of lot 901 to create two lots 901A (1.268 ha) and 901B (.9447 ha). The proposed shopping centre will have a GFA of 2750 m² comprising a supermarket of 1500 m² and specialty shops of 1250 m².’

In the result, the Court refused the Hawkhaven development application for retail uses and found in favour of the BBC Proposal. On 5 July 2012, judgement was entered with an approval package for the BBC proposal (‘BBC Approval’). That development approval has not proceeded and the site of the BBC Proposal, directly south of the Subject Site on the other side of Blacks Beach Road, remains vacant. On 29 June 2016, BBC lodged a request to change an existing approval (extension to the currency period) to extend the approval to 5 July 2020. That application was granted so that the approval remains extant to that date.

SHOPS MCU APPEAL – Appeal No. 4296 of 14

I turn now to the Shops MCU Appeal commenced on or about 31 October 2014.

Statutory Assessment Regime

Under section 493 of the Sustainable Planning Act 2009 (Qld) (“SPA”), Hawkhaven bears the onus of establishing the appeal should be upheld. The appeal is by way of hearing anew. The Shops MCU proposal was impact assessable under section 314(2) and (3) of SPA and to be decided in accordance with section 324 and 326. In the event of conflict with a relevant instrument, including a planning scheme, any decision of an assessment manager must not conflict with that instrument unless there are sufficient grounds to justify the decision. The assessment decision making process of the appeal must, in accordance with section 495 of SPA, be based on laws and polices applying when the development application was made but weight may also be given to new laws and policies under section 495.

There are two relevant planning instruments: –

a) the Planning Scheme for the City of Mackay 2006 (‘Current Scheme’); and

b) the Draft Mackay Region Planning Scheme (‘Draft Scheme’).

Under the Current Scheme, the land is located in the Mackay Frame Locality, the McCready’s Creek Precinct and the Urban Residential Zone, and under the Draft Scheme, in the Medium Density Residential Zone. The Draft Scheme is at a very advanced stage of the adoption process, the Council having written to the State seeking its approval to adopt the Draft Scheme and proceed to Step 9 pursuant to Statutory Guideline 01/16.[6]
[6]Exhibit 38.

Complaints about Late Disclosure of the Draft Planning Scheme

For completeness, I record that Hawkhaven advanced a number of complaints, both at the hearing and through written submissions as to Council’s late disclosure of the Draft Scheme. It submits that given the late disclosure, the relevant expert witnesses did not have the opportunity to properly and thoroughly consider the most recent version of the Draft Scheme.[7]
[7]Appellant’s Written Submissions paragraph 71.

There have been several versions of the Draft Scheme tendered in evidence, namely versions 0.8[8], 0.9[9], 0.10[10] and subsequent to the hearing, version 0.11[11], which is the most recent manifestation of the Draft Scheme. Hawkhaven, having initially prepared its case on the basis of version 0.8 of the Draft Scheme, was provided with disclosure in respect of version 0.9 shortly before the hearing commenced on 19 September 2016. On the first day of the hearing, Council confirmed it intended to rely on version 0.9.[12] Hawkhaven confirmed it was content to proceed on the basis of version 0.9.[13]
[8]Exhibit 63.
[9]Exhibit 22.
[10]Exhibit 59.
[11]Exhibit 64.
[12]T1.6.11.
[13]T1.8.1.

Subsequent to the adjournment of the hearing in September 2016 to 23 February 2017, Council made further disclosure. [14] That disclosure included an updated version 0.10 of the Draft Scheme. When the hearing resumed on 23 February 2017, Council confirmed its position that for the purposes of the Shops MCU appeal, the changes between version 0.9 and 0.10 in respect of the grounds of refusal were minimal.[15] Exhibit 56 contains a comparison of the differences between version 0.9 and 0.10.[16] At the close of the hearing, Mr Batty, for the Council, advised that, in terms of the provisions of the scheme referred to in the Further Amended Consolidate Ground for Refusal,[17] there were no differences between versions 0.9 and 0.10. Foreshadowing the imminent delivery of version 0.11, Mr Batty confirmed that any changes relevant to the Further Amended Consolidated Grounds for Refusal would be brought to the attention of the parties. This was not required. Version 0.11 has now been provided to the Court as the most recent version of the Draft Scheme.[18]
[14]Affidavit of Mr Ellerman sworn 7 December 2016, Ex.61 at Ex.DBE-1, pages. 1-4.
[15]T5.8.37.
[16]Exhibit 56, attachment ‘I’.
[17]Exhibit 53.
[18]Exhibit 64.

Despite Hawkhaven’s complaints, no adjournment was sought. Rather, Hawkhaven says because of the late disclosure relying on the expert statements in the Need JER is ‘fraught with difficulty’ given, for example, Figure 4.2 in the Need JER is a superseded copy of the zoning map for the Draft Scheme.[19] On this basis, Hawkhaven says that the evidence of Mr Duane (the Council’s need expert), for example, is ‘wrong’ given the zoning map was out of date when he prepared his report. At the hearing, Mr Duane confirmed that the opinions expressed in his report did not alter between version 0.8 and 0.9 of the Draft Scheme.[20] Relevantly, Hawkhaven does not refer to any other provisions to support an inference that it has been prejudiced by the late disclosure of the Draft Scheme.
[19]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions paragraph 108.
[20]T3.65.34.

In all of the circumstances, I do not consider the changes between versions 0.8, 0.9, 0.10 and 0.11 of the Draft Scheme to be of any consequent in the Shops MCU appeal. It is version 0.11 that will be considered in respect of the Draft Scheme. The weight to be given to this draft scheme will be dealt with later.

Minor Change Application

In August 2016, Hawkhaven made application to amend the various development applications detailed in paragraph [1], and on 12 August 2016, the Court found all proposed changes found to be minor changes within SPA.[21]
[21]Exhibit 39.

As to the Shops MCU Appeal, those minor changes were: –

(a) change of proposed site plan and building elevations from Blacks Beach Road;[22]
[22]Exhibit 40, Minor Change (pre-existing and amended plans), pages 15 and 16.

(b) reduction of the original proposed floor area of 800m² in a single building to 400m² in two separate buildings of 155m² and 245m² respectively;[23]
[23]Exhibit 40, Minor Change (pre-existing and amended plans), p 15.

(c) reduction in that part of proposed Lot 2 to be occupied by retail/commercial by almost half, with the balance area identified as being a ‘Future Development Site’, described as Lots C(i) and Lot C(ii); [24]
[24]Ibid.

(d) reduction of car parking spaces from 56 to 20; and

(e) location of the services yard at the north-eastern corner of that part of Lot 2 proposed for retail/commercial.[25]

[25]Exhibit 40, Minor Change (pre-existing and amended plans), p 15.

Council’s Ground for Refusal

As I have said, the application the subject of the Shops MCU Appeal was refused by Council on 2 October 2014. At the commencement of the hearing, Council provided Amended Consolidated Grounds for Refusal dated 19 September 2016. Council’s most recent catalogue of grounds for refusal is contained in its Further Amended Consolidated Grounds for Refusal[26] filed on 23 September 2016, the fourth day of the trial. This document was corrected slightly by a letter to the Court dated 14 March 2017 sent by Council’s solicitor. Other than this slight correction, the provisions of the Draft Scheme referred to in Council’s Further Amended Consolidated Grounds for Refusal remain current notwithstanding the late provision of version 0.11 of the Draft Scheme.[27]
[26]Exhibit 53.
[27]Exhibit 64.

In the Further Amended Consolidated Grounds for Refusal, after setting out what it considered to be material facts, Council identified those provisions of the Planning Current Scheme and the Draft Scheme it says the proposal conflicts with. Relevant extracts from this document, including the specific provisions of the Current and Draft Scheme, are set out in Schedule A hereto.

Issues in Dispute

In the Shops MCU Appeal, the issues in dispute are:

(a) whether the proposed development, the subject of the Shops MCU Appeal, conflicts with the Current Scheme;

(b) whether it conflicts with the Draft Scheme, and

(c) in the event of a conflict, whether there are sufficient grounds to justify approval notwithstanding the conflict.

Evidence was received across several disciplines requiring consideration of:

(a) whether the proposed development will have unacceptable impacts on or compromise existing, approved or planned centres;

(b) whether the proposed development is consistent with the retail hierarchy proposed for Mackay by the planning instruments;

(c) whether the proposed development is an appropriate use in the zone;

(d) whether the proposed development would result in unacceptable amenity impacts;

(e) whether there is a need for the proposed development; and

(f) the weight to be given to the draft planning scheme;

I shall deal with each of the above in turn, divided into three discrete evidentiary areas, namely ‘Town Planning’, ‘Amenity’ and ‘Need’. This reflects the division of evidence adopted by the Council and Hawkhaven in their closing written submissions.[28]
[28]Written Submissions on behalf of Mackay Regional Council dated 17 March 2017; Appellant’s Reply to Mackay Regional Council’s Written Submissions dated 27 April 2017.

Shops MCU Appeal: Town Planning

In respect of the Shops MCU Appeal, three town planners, Mr Cumming (Hawkhaven), Mr Buckley (Council) and Mr Brownsworth (BBC) provided a Joint Expert Report dated 6 September 2016 (‘Town Planning JER’)[29] and Messrs Buckley and Brownsworth provided further individual reports.[30] Mr Cumming did not provide an individual report, relying only on his contribution to the Town Planning JER.[31] The Joint Report was prepared subsequent to the successful Minor Change Application.
[29]Exhibit 9.
[30]Exhibits 18 and 25 respectively.
[31]T4.60.4-11.

Issues in Dispute – Town Planning

In the Shops MCU Appeal, the three planning experts, in identifying relevant issues, agreed that the singular planning issue on which they disagree relates to the proposal for 400m² gross floor area of shops.[32] They summarised the issues related to this identified disagreement as follows:
[32]Exhibit 9, p 18, para 66.

(a) Whether there is conflict with the Current Scheme, including:

(i) Desired Environmental Outcomes;

(ii) the Strategic Framework; and

(iii) the Urban Residential Zone applying to the land.

(b) Whether there is conflict with the Draft Scheme;

(c) The need for the development;

(d) The impacts of the development including:

(i) commercial impact;

(ii) traffic impacts; and

(iii) amenity impacts on surrounding development.

(e) Whether the development conflicts with the reasonable expectation of residents of the locality;

(f) Whether the development compromises the ultimate planning intentions for the locality in terms of local centre development; and

(g) Whether there are sufficient grounds to justify the approval.

Further, the experts agreed that despite the numerous provisions of the Current and Draft schemes, the abovementioned issues could be narrowed down, in a town planning sense, to:

(a) Whether the proposed retail floor space is too big and in the wrong place, having regard to the network and hierarchy of centres and the zoning of the land;

(b) Whether there are sound town planning reasons to depart from the planned network of centres in the draft scheme; and

(c) Whether there are sufficient grounds to approve the proposal.[33]

[33]Exhibit 9, p 18, para 68.

Town Planning JER and the Further Amended Consolidated Ground for Refusal

Before setting out the opinions of the experts, I should mention that the Town Planning JER is dated 6 September 2016 and in paragraph 85, Mr Buckley and Mr Brownsworth make reference to the ‘consolidated grounds for refusal.’ Given that there were several amendments to the Council’s grounds for refusal, it is important to identify the document referred to, which is Exhibit 7 where, at Tab 16, is to be found the Consolidated Grounds for Refusal of the Council dated 6 May 2016. A comparison of that with the most current manifestation of the Council’s grounds for refusal, the Further Amended Consolidated Grounds for Refusal, Exhibit 53, reveals that the differences between the two documents are minimal and of no consequence in considering the opinions of Mr Buckley and Mr Brownsworth by reference to the earlier document in Exhibit 7.

Town Planning: Expert Evidence

Opinions of Messrs Buckley (Council) and Brownsworth (BBC) in JER

Mr Buckley and Mr Brownsworth expressed the view[34] that the application, the subject of the Shops MCU Appeal, is in material conflict with the provisions of the Current Scheme as outlined in Exhibit 7. They identify what they see to be strong consistent policies in the Current Scheme which limit the number of centres overall, and significantly restrict the number of new centres, limiting centre uses to be located into the ‘anointed centres’. Further, they consider that the development does not fall within the limited circumstances in which the Current Scheme allows for commercial or non-residential development outside a designated centre or within the Urban Residential Zone. [35]
[34]Exhibit 9, para 86.
[35]Exhibit 9, paragraph 87.

Messrs Buckley and Brownsworth regard the identified centres as the backbone to the preferred land use structures of an urban area, playing a role in a number of ways, namely:

(a) Location and function of the centre informing decisions about zoning for other land uses such as support facilities in particular residential densities;

(b) Assisting governments in making infrastructure decisions such as road network improvements based on the network of centres;

(c) Centre size and function informs decisions on the co-location of government facilities such as schools and direct services (e.g. social services); and

(d) given the focus that activity centres attract, they are often the key community hub, with residents developing strong associations with them.[36]

[36]Exhibit 9, paragraph 71.

In their view, notwithstanding the gross floor area of the proposed shops is small compared to a supermarket, nevertheless it is of a meaningful size so as to effectively start a new hub or node of activity which would cut across both the Current Scheme and the Draft Scheme. They see no apparent economic or community need to put aside what they see as very definite and deliberately stated forward planning intentions in both schemes.

They further consider that any approval of the Shops MCU proposal would cut across reasonable community expectations regarding the types of land uses intended to be developed on the subject land and would potentially compromise the ultimate form and scale of centre development intended in the locality. Ultimately, they conclude that the nature of the conflict with the Current Scheme ‘goes to the heart’ of the scheme, and so the extent of the conflict, it is ‘planning scheme wide’.[37]
[37]Exhibit 9, paragraph 86.

As to the Draft Scheme, Messrs Buckley and Brownsworth consider it reinforces the Blacks Beach Cove site as the local centre for the surrounding community and that the Subject Site is intended, under the scheme for medium density residential uses. To their mind, approval of the development application, the subject of the Shops MCU Appeal, would be a significant challenge to the proper implementation of the Draft Scheme.[38]
[38]Exhibit 9, paragraph 98.

Opinion of Mr Cumming (Hawkhaven) in JER

As against those views, Mr Cumming says that the historical context for the shop proposal is important [39] and that the catchment of some 2,200 households, centred on Blacks Beach Road/Chenoweth Drive Intersection, has virtually no retail or community facilities except for two very small groups of shops at either end of Blacks Beach Road and the existing tavern. The nearest shopping centre of any size is some 3 kilometres away. As to the 2011 Court approval for the BBC substantial neighbourhood centre on the southern side of Blacks Beach Road and BBC’s assertion that its site remains vacant because of the economic downturn and other reasons, he says that vacancy has resulted in the retail and social need of existing residents not being satisfied by that approval.[40]
[39]Exhibit 9, paragraph 78.
[40]Exhibit 9, 80-81.

Mr Cumming considers that, whilst approval of the 400m² development application the subject of Shops MCU Appeal, will not satisfy the demand for a substantial supermarket or the drawcard of surrounding smaller shops in such a centre but it would help the residents of the area. In his view, priority should be given to residents’ present need over a concern about the potential impact which a small group of shops would have on the approved shopping centre which, he says, may or may not be built in the short to medium term.

As to any conflict with the Current or Draft Scheme Mr Cumming says it is minor and there are sufficient grounds to justify the scale of the development application despite any conflict, particularly considering:

(a) the proposal would otherwise be an undesirable location for residential use;

(b) the site enjoys excellent sub-arterial access;

(c) local development impacts can be minimised; and

(d) strategic designations for the Blacks Beach local centre

He disagrees that the proposed floor area of 400m² in the proposed two buildings materially conflicts with the Current Scheme because, because:-

(a) Given the clear practical need for additional retail space, the proposal will be a timely delivery of commercial facilities in circumstances where the BBC’s approved shopping centre will not materialise in the foreseeable future; and

(b) Desired Environmental Outcomes 3.1(c)(v), (e)(i), which emphasise that the growth of centres and urban development, must reflect community need. [41]

[41]Exhibit 9, para 89 et al.

He points to Specific Outcome P6 of the Mackay Frame Locality which speaks of Blacks Beach local centre growing in step with the needs of the local population but not exceeding the local centre role. The then current (2016) estimate for growth of households in the Black Beach catchment, referred to in the Need Joint Expert Report (paragraph [126]) means the expectation that commercial services at Blacks Beach would keep pace with population need has not been realised.

The Shops MCU proposal, Mr Cumming says, is an integrated centre activity adjacent to the Blacks Beach Tavern and an approved bottle shop, arguably within, but certainly adjacent to, the strategic centre designation, Blacks Beach. From there he points to section 1.4(2)(d) of the Strategic Framework of the Current Scheme which states:

‘To establish and maintain a viable and sustainable network of centres in the city, additional centre activities are situated within or immediately adjacent to a designated centre and be appropriate to their scale, intensity and character to the intended role and function of the designated centre.’[42]
(emphasis added)

[42]See Schedule A.

Finally, Mr Cumming concludes that the proposed 400m² gross floor area of the Shop MCU is consistent with the Current Scheme, as facilitating the timely delivery of commercial facilities now well overdue, providing an integrated centre activity to the Blacks Beach Tavern and approved bottle shop extension. This, he says, is consistent with the Urban Residential Zone, which anticipates non-residential development in certain circumstances. It also satisfies those provisions which encourage commercial activities in locations with excellent accessibility and the ability to mitigate local impacts.

The Blacks Beach Local Centre under the Current Scheme

It is uncontroversial that there is a retail hierarchy established through the network of centres stipulated in the Current Scheme. That Scheme specifically references the existence of the Blacks Beach Local Centre (‘BB Local Centre’).[43] It is necessary, for the purposes of interpreting the Current Scheme, to determine whether or not the Subject Site falls within the designated local centre. It is Hawkhaven’s primary position that the proposed development does not conflict with the Current Scheme because it can be appropriately identified as being situated within the designated BB Local Centre.[44] In the alternative, Hawkhaven says that the proposed development is located immediately adjacent to the BB Local Centre.
[43]Current Scheme, section 1.4(2)(d), Part 1 Division 2, Strategic Framework; Draft Planning Scheme, section 6.2.8.2, Part 6, Local Centre Code.
[44]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 64.

As against that, Council submits that the Shops MCU Proposal is not a centre envisaged by the centres hierarchy of the Current Scheme. BBC adopts this submission. Hawkhaven says the appropriate question to be asked is not whether the proposed development will itself become a local centre, but rather whether the proposed development is within the BB Local Centre. On this issue, both the Council and BBC rely on the earlier 2011 Decision in which the Court found that Lot 241 did not form part of the Blacks Beach Local Centre.[45] This finding was not determinative of the 2011 Decision but was clearly relevant to the Court’s preference for the BBC Proposal over the HH Proposal evidenced by the following passage:-

‘[215] Further, given my view that it is the clear intention of the Scheme that Lot 241 remain in the Urban Residential Zone notwithstanding the robust submissions from HH to the contrary, I cannot accept that an intrusion into that zone by the HH development is supported by sufficient grounds to allow me to approve the HH application notwithstanding an conflict with the Scheme.

[216] To my mind, the residents of the surrounding areas would have had, and would continue to have, a soundly based reasonable expectation that Lot 241 would be developed for residential purposes and not as a shopping centre.’[46]

[45]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 at [89].

[46]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 at [215] – [216].

Relevantly, the 2011 Decision was not the subject of an appeal. Hawkhaven now seeks, in effect, to agitate a quasi-appeal against that decision in respect of the finding that Lot 241 was not a part of the BB Local Centre. In arriving at this conclusion in the 2011 Decision, the Court had regard to the fact that the Council had earlier rejected a submission by Hawkhaven to have the Subject Site included in the commercial zone in which the existing Tavern is located.[47]
[47]Exhibits 19 and 20 - First and Second Statements of Daniel Jacobus Ackerman.

Hawkhaven’s First Submission to have Lot 241 re-zoned

In May 2005, Hawkhaven lodged a submission with Council seeking to persuade it that Lot 241 was suitable for a mix of commercial/local business uses and Medium Density Residential Development. That submission was unsuccessful and the land remained in the Urban Residential Zone when the Current Scheme was introduced in 2006.

Hawkhaven argues that the rejection by Council of its submission, while relevant to deciding between the competing BBC and HH proposals in the 2011 Decision, cannot be used now to limit the indicative area of the BB Local Centre to specifically exclude Lot 241. I do not agree. Such a rejection casts light on the intended treatment of Lot 241 under the Current Scheme. If the Council intended Lot 241 be developed for commercial purposes other than the limited small scale purposes contemplated by inter alia, P1 of the Retail and Commercial Code and P5 of Division 10 of the Mackay Frame Locality Code,[48] the land would not been have placed in the Urban Residential Zone. However, it is important to note that in arriving at the conclusion that Lot 241 was not within the BB Local Centre under the Current Scheme, the Court also had regard to the Network of Centres Map – Retail Hierarchy.[49] Hawkhaven now says that interpretation of the Network Centres Map in the 2011 Decision may have been incorrect.[50]
[48]See Schedule A.
[49]Exhibit 2, page 10.
[50]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 41, 46(c).

The Court, in that earlier decision, expressly stated that the yellow dot on the Network of Centres Map, which identified the relevant local centre, ‘is not cadastrally based but indicative only’.[51] The Court’s finding that the boundary of the BB Local Centre, as indicated by the yellow dot, stopped at the eastern boundary of Lot 241 was not determinative of the parameters of the local centre. Rather, in all of the circumstances, the Court found that Lot 241 did not form part of the BB Local Centre.
[51]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 at [89].

In this appeal, having considered the submissions of Hawkhaven, I am not persuaded to depart from the earlier 2011 finding that, under the Current Scheme, the Shops MCU proposal (on Lot 241) is located outside the BB Local Centre.

The Blacks Beach Local Centre under the Draft Scheme

Under the Draft Scheme, the hierarchy of centres is established, inter alia, through Strategic Framework, section 3.2.3. This part of the Strategic Framework refers to a network of centres providing a hierarchy of principal, major, district, local, neighbourhood and specialised centres. Under section 6.2.8.2 of Part 6, Local Centre Code of the Draft Scheme, ‘local centres’ are divided into ‘strategic local centres’ and ‘existing local centres’.[52] The BB Local Centre is identified as a strategic local centre.
[52]See Schedule A.

Section 3.2.3 of the Strategic Framework does not appear to refer to a map identifying centres, but section 3.1(2) says that mapping for the strategic framework is included in Schedule 2. In the extracts from the Draft Scheme prepared by Council, Exhibit 64, Strategic Framework Map – SF-9 contains a legend identifying principal centres, major centres, district centres, specialised centres and investigation areas, but not identifying lower order centres, such as local centres and neighbourhood centres. However, in the Planning Scheme Zone Map, Z0 –Z23,[53] the existing tavern, on Lot 240 can be clearly identified as a ‘local centre’. Lot 241 clearly falls outside of the local centre according to this map. It is zoned Medium Density Residential.
[53]Exhibit 64, page 226.

Hawkhaven’s second attempt to have Lot 241 re-zoned

In response to the Draft Scheme, Hawkhaven made a further submission to Council objecting to the creation of a Medium Density Residential Zone Precinct over Lot 241, seeking to instead have the site included under the Mixed Use Zone.[54] As with its earlier submission in 2005, this submission was rejected by Council. In the circumstances, I am comfortably satisfied, and Hawkhaven rightly concedes[55], that under the Draft Scheme, the Shops MCU proposal (on Lot 241) is located outside the BB Local Centre. It is however, according to this map, located adjacent to the BB Local Centre under the Draft Scheme.
[54]Exhibits 20 and 57, attachments at page 1 and Exhibit 19, page 14.
[55]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 81(a).

Weight to be given to Draft Scheme

The appropriate weight to be given to the Draft Scheme is a matter in issue in the Shops MCU Appeal. Pursuant to section 495(2)(a) of SPA, the Court must decide appeals based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate. It is uncontroversial that the Court has the ability to give weight to a draft planning scheme in accordance with the decision in Coty (England) Pty Ltd v Sydney City Council (‘Coty Principle’). [56]
[56](1957) 2 LGRA 117.

The Council’s ultimate submission is that the Shops MCU proposal is in serious conflict with both the Current and Draft Scheme, resulting in the issue of the weight to be given to the Draft Scheme being of little importance.[57] BBC agrees and says the Draft Scheme reinforces the clear planning intent for the locality expressed in the Current Scheme, and maintains the hierarchy of centres which informs the preferred land use of the Subject Site.[58]
[57]Written Submissions of the Mackay Regional Council, paragraph 85.
[58]Written Submissions of the Co-Respondent by Election, paragraph 116.

Council submits, correctly in my view, that the Draft Scheme is relevant because it identifies the most recent planning intent for the Mackay Regional Council local government area and, given it has progressed to public notification, it assumes a heightened role given it has been informed by community consultation with respect to that intent. In this regard, I accept the evidence of Mr Ackermann, Council’s Manager – Strategic Planning, who expressed the opinion that the Draft Scheme was now unlikely to be returned to the public consultation stage.[59] BBC echoes the submission that the Draft Scheme has proceeded significantly towards adoption, with no further changes relevant to the Shops MCU Appeal. In this regard, BBC relies on the decision in Yu Feng Pty Ltd v Maroochy Shire Council where Fitzgerald P observed:

‘…the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstance, including the stage to which the draft planning scheme has progressed.’[60]

[59]T5.55.40-45.

[60][2000] 1 Qd R 306 at 328.

The Coty Principle, to which I earlier referred, has been widely applied in Queensland and is authority for the proposition that a development application should not prejudice the implementation of a new draft planning instrument. In Good-MixConcrete Pty Ltd v Brisbane City Council (No.3)[61], it was held that the Coty Principle will not be enlivened until after a draft planning scheme has been subject to public exhibition. Once this has occurred, the scheme is entitled to be given weight.
[61](1975) 31 LGERA 178

In Lewiac Pty Ltd v. Gold Coast City Council, Thomas J, with whom the other members of the Court of Appeal agreed, said, in respect of the Coty Principle:-

‘…It would be extraordinary if a planning strategy which was well on the way to adoption, or even adoption with amendment, could be frustrated by developments created in circumstances where neither the Council nor the court could give any weight to the plan as it had so far emerged. That is not to say that it should be given decisive weight, but in circumstances where one proposal is as good as another, it does not seem inappropriate that an existing draft strategic plan be given some weight.’ [62]

[62](1994) 83 LGERA 224 at 228.

Hawkhaven submits that the Draft Scheme should be given little, if any, weight and points out the Shops MCU development application was lodged in July of 2013 at an early stage in the preparation of the Draft Scheme. That was shortly after the scheme had progressed to the first of three stages of public notification.[63] Hawkhaven also refers to the fact the Shops MCU Appeal was lodged in October of 2014, prior to the second round of public notification and before the Draft Scheme was provided to the relevant Minister. [64]
[63]Exhibit 19, paragraph 23, 26; Exhibit 57, paragraph 4.
[64]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 113.

In Maher v Hervey Bay City Council[65], it was held that in determining the weight to be afforded to a draft planning instrument, it is also relevant to have regard to the planning instrument in force prior to the new instrument taking effect. In Maher¸ Wilson SC DCJ held that where there is ‘radical departure’ from a current scheme, and where a development application has little or no conflict with the existing scheme, a draft planning scheme should not be given ‘too much weight’.[66] The Council submits that this is not such a case. I accept that submission. Despite the different organisational structure of the Current and Draft Schemes, there is a discernible planning intent evident within both schemes. In this regard, I rely on the evidence of the experts in the Town Planning JER.[67] Both schemes place the Subject Site in a residential zone and establish a clear hierarchy of centres. Relevantly, both schemes allow for development within a residential zone, outside of a local centre in similar, albeit limited circumstances.
[65][2007] QPELR 123
[66]Ibid at 130.
[67]Exhibit 9, page 16, paragraph 16.

In all of the circumstances, I consider the Draft Scheme should be given considerable weight in the Shops MCU Appeal.

Town Planning: Centres Hierarchy

The first issue with respect to town planning is the alleged conflict with the centres hierarchy established under the Current and Draft Schemes. Based on my above findings at paragraphs [45] and [49], the Shops MCU proposal can only be considered as proposed development outside the BB Local Centre. In this regard, the Council relies on Overall Outcomes 2(a), 2(b) and 2(e) of the Retail and Commercial Code of the Current Scheme all of which emphasise that retail and commercial uses occur within, rather than outside designated centres.[68] Division 8 of the Mackay Frame Locality under the Current Scheme is also relied upon which, as the town planning experts agreed in their Joint Report, ‘continues a consistent approach of a limited number of centres, focusing development centres and limiting the growth of any centre to its intended function.’[69] Also relevant the Council says, the Strategic Framework 3.2.3 under the Draft Scheme which specifically states that ‘out of centre development is discouraged and avoids commercial strip development along major roads’.[70] All of these provisions, Council says, renders the Shops MCU in conflict with both Current and Draft Schemes given the centre hierarchies envisaged under both schemes.
[68]See Schedule A.
[69]Exhibit 9, page 15, paragraph 59.
[70]See Schedule A.

As I have said, Hawkhaven’s primary position is that the Shops MCU proposal is, in fact, located within the BB Local Centre under the Current Scheme. For the reasons outlined above, I do not accept that submission. It follows that I do not accept the evidence of Mr Cumming in respect of his assertion that under the Current Scheme, the Shops MCU proposal, ‘…is arguably within, but certainly adjacent to, the strategic destination which encompasses the northern side of Blacks Beach Road.’[71]
[71]Exhibit 9, page 23, paragraph 92.

As to the Current Scheme, Hawkhaven says that, if the Court finds that the Shops MCU Proposal is outside the BB Local Centre, the proposed development is, nonetheless, adjacent to the BB Local Centre, within section 1.4(2)(d) of the Strategic Framework which includes the statement, ‘…additional centre activities are situated within or immediately adjacent to a designated centre…’.[72] It follows, Hawkhaven submits, that given this provision, the Shops MCU proposal does not conflict with the Current Scheme as alleged by the Council. Hawkhaven says the Shops MCU proposal is an additional centre activity adjacent to a designated centre.
[72]See Schedule A.

Further, Hawkhaven submits, Strategic Framework 1.4(2)(d) above is a clear indication that provisions of the Current Scheme, stipulating development within centres, are not intended to be construed inflexibly.[73] However, this singular reference to ‘within or immediately adjacent’ in the Strategic Framework must be carefully understood, both in respect of the operation of the Strategic Framework and in the overall context of the Current Scheme.
[73]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 59.

Under Division 2 of the Current Scheme, the role of the Strategic Framework within the scheme is explained in these terms:-

‘1.3 Preliminary

(1) This division reflects the desired environmental outcomes and summarises the approach taken by the planning scheme to achieve the desired environmental outcomes.

(2) This division does not have a role in development assessment under the planning scheme.

(3) This division provides the context for understanding how policy contained in the planning scheme was determined.’[74]

[74]Exhibit 21, page 4.

The weight of authority on the interpretation of planning schemes points to their being construed broadly rather than pedantically or narrowly and with a sensible, practical approach.[75] In Westfield Management Ltd v Pine Rivers Shire Council,[76] Britton SC DCJ summarised the principles applicable to the construction of planning documents and emphasised that they should be construed as whole[77] and in a way that best achieves its apparent purpose and objects.[78]
[75]See for example, Zappala Family Co Pty Ltd v BCC (2014) 201 LGERA 82; Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337.
[76][2004] QPELR 337
[77]Luke v Maroochy Shire Council & Anor (2003) QPELR 447 at 450.
[78]Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 at 342.

In Grosser v Council of the City of Gold Coast[79] the Court of Appeal said:

“the proper approach of the Planning and Environment Court and of its predecessor, the Local Government Court, to matters of planning policy has long been recognised as one of restraint. Most recently this Court affirms the desirability of a self-limiting approach at least when considering town planning matters in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268…”.

[79](2001) 117 LGERA 153 at [38].

Consistent with the agreed view of the town planning experts, I consider the Current Scheme to reflect a consistent approach of limiting the number of centres, focusing any new or additional development within designated local centres, such as the Blacks Beach Local centre.[80] Notwithstanding this consistency of approach, it is uncontroversial that the Current Scheme allows for non-residential development, or ‘additional centre activities’ to adopt the phrasing of Strategic Framework 1.4.2(d), to occur outside a designated centre.
[80]Exhibit 9, page 15, para 59.

Council says the Shops MCU Proposal does not fall within the limited exceptions of permissible out of centre development envisaged by the Current Scheme. That is unsurprising, Council says, given the evidence of Messrs Buckley and Brownsworth who considered the size of the development associated with the Shops MCU proposal and Hotel MCU proposal, while small relative to a supermarket, ‘are nevertheless of a meaningful size which effectively starts a new hub or node of activity’.[81]
[81]Exhibit 9, page 20, para 76.

Council, correctly, in my view, submits that out of centre development is only permitted under the Current Scheme where such development is limited to small scale, locational specific uses where there is a demonstrated need for such development.[82] This interpretation of the Current Scheme is supported by the following provisions:
[82]Written Submission on behalf of the Mackay City Council, paragraph 51.

(a) Strategic Framework, 1.4(2)(d)

(b) Part 3, Division 1, Desired Environmental Outcomes 3.1(3)(c)(vi); and

(c) Part 9, Division 22, Retail Commercial Code;

(i) Section 9.101(2)(b)(i);

(ii) Section 9.101(2)(e); and

(iii) P1.

Hawkhaven appears to accept this interpretation of the Current Scheme but says that, in respect of the proposed development, the area of the retail or commercial floor space is small, and that the Shops MCU proposal would be acceptable as ‘small scale’, will not affect the hierarchy of centres and therefore does not conflict with the Current Scheme.[83]
[83]Appellant’s Written Submissions, paragraph 199, 206; Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 67.

‘Small scale’ is not defined under the Current Scheme. But, as the Court found in the 2011 Decision, the absence of a definition of, or guidance as to the meaning of ‘small-scale’ in the Current Scheme does not present an obstacle to interpretation. As I have outlined above at paragraph [67] there are several references in the Current Scheme to the ‘scale’ of acceptable out of centre development. Under the Retail and Commercial Code, Acceptable / Probable Solution S1 does provides some numerical guidance as to what is meant by ‘small scale’. S1 relevantly provides:

‘S1 For the activities located outside a designated Centre the premises has a maximum gross floor area of 25m² and a maximum building height of 8.5m’[84]

[84]Exhibit 21, page 131.

Mr Brownsworth’s evidence was that S1 provided the best guidance to assist in the interpretation of what was meant, under the Current Scheme, by ‘small scale’.[85] Mr Batty, for the Council put to Mr Cumming that S1 was indicative of ‘small scale’ under the Current Scheme. This was the relevant exchange:

MR BATTY: S1 gives us a fairly good hint as to what’s anticipated with respect to ‘small scale’, doesn’t it: 25 m²?

MR CUMMING: No. I don’t agree. And – and I don’t agree because 25 metres is not much bigger than a dog kennel, it’s a tiny amount. And the scheme mentions small scale on many, many occasions. And in all other case where it relate to specific outcomes and acceptable solution – it doesn’t have an acceptable solutions if you look at the urban residential zone, for example, if you look at the commercial zone, for example. So I think this is a real exception. And I’m not sure where it came from, because its not consistent, for example, with – on the following page, we read through P6. Now, a use of 25 square metres, which is tiny – in P6 – it just doesn’t gel with the criteria in P6 at all.’ [86]

[85]T5.60.22.

[86]T4.83.31-44.

While not determinative of what is meant by ‘small-scale’ under the Current Scheme, I consider a gross floor area of 25m², as referred to in S1, to be indicative of the scale of additional centre activities which the Current Scheme envisages will occur outside a designated local centre. However, consistent with the principles outlined in Westfield Management Ltd v Pine Rivers Shire Council[87] planning schemes must be read as a whole in a way that achieves the apparent purpose and objectives of the scheme.
[87][2004] QPELR 337.

BBC, with whom Council agreed, says the Shops MCU proposal is not of a sufficiently small scale to fall within the exception of out of centre development under the Current Scheme. [88] It points to the proposal contemplating two separate buildings and provision for approximately 20 car parking spaces, a services yard at the north-eastern corner of Lot 241, a four-lane circulation, and an industrial/commercial service access from Blacks Beach Road.[89] It further points to the evidence of Mr Brownsworth in his individual report that the Shops MCU proposal:-

‘…is not a ‘small-scale’ use that ‘services the needs of residential areas’. It is also not a small-scale home business. The extent of conflict is significant particularly when the [Shops MCU proposal] is considered in conjunction with the current tavern use on the adjacent site and proposed extensions of the tavern on the Land. Together, these uses increase the size and scale of commercial operations within this residential zone to something that is more than small scale.’[90]

[88]Written Submissions of the Co-Respondent by Election, paragraph 70.

[89]Written Submissions of the Co-Respondent by Election, paragraph 76.

[90]Exhibit 25, page 4, paragraph 12.

Mr Brownsworth, noting that the term ‘small-scale’ is not defined in the Current Scheme, further says that the existing zoning supports his opinion as to what constitutes a ‘small-scale’ use in that:

(a) the Turtle Shores shopping centre (‘Turtle Shores’), which is located approximately 700m east from the Land, is similar in size to the Retail Proposal and is zoned Commercial under the Planning Scheme; and

(b) the Eimeo Heights Convenience Store (‘Eimeo Heights’), which is located approximately 800m west from the subject site and is essentially a single, corner shop located on the bottom floor of a residence is zoned Urban Residential.[91]

[91]Exhibit 25 – Individual Report of James Brownsworth at page 4 and 7.

Mr Buckley, for the Council, also gave evidence that the exception permitting out of centre development under the Current Scheme was strictly limited to small scale, locational specific uses where there is a demonstrated need for development such as home-based businesses which demonstrate a ‘very local function, which tend to have an association with a house.’[92] In describing what, in his opinion, was meant by small scale and therefore what types of non-residential activities could be expected in the urban residential zone (outside the BB Local centre), Mr Buckley gave the examples of ‘speech and drama teachers and music teachers…a general practitioner operating from home’.[93] Mr Brownsworth agreed with the ‘home based businesses’[94] categorisation and described ‘small scale’ to mean ‘commensurate with the built form scale of a residential area…able to integrate within a residential fabric’.[95]
[92]T4.23.25.
[93]T4.23.28-31.
[94]T5.60.11.
[95]T.5.60.12-14.

Mr Cumming disagreed with Mr Buckley’s categorisation of ‘small-scale’, considering his interpretation as a ‘very narrow construct’[96] unsupported by the Current Scheme. Hawkhaven submits[97] that the interpretation adopted by Mr Buckley conflates the definition of ‘small-scale’ with the meaning of ‘Home Occupation’ and ‘Home-based Business’, terms which are both specifically defined under the Current Scheme as follows:
[96]T4.84.21-22.
[97]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 88.

‘‘Home Occupation’ means any premises being part of a dwelling house, used only by residents of that dwelling house for the conduct of an occupation where:

(i) the floor area is less than or equal to 30 m²; and

(ii) the activity does not employ other persons.

‘Home-based Business’ means any premises being part of a dwelling unit or its curtilage used for a business by a resident of the dwelling house where:

(i) the area occupied by the use (including storage areas) does not exceed 30% of the total floor area of the dwelling house and 10% of the area of the lot on which the dwelling house is located, with a maximum area of 80 m² occupied by the use; and

(ii) employs no more than 2 persons who do not reside at the premises.’[98]

[98]Exhibit 21, page 147.

It follows, Hawkhaven submits, that the evidence of Mr Buckley as to what is small scale should be rejected. I do not accept that submission. On any reading of the above definitions, it is clear that both ‘Home Occupation’ and ‘Home-based Business’ are intended to denote uses which could aptly be described as ‘small scale’, although I accept that term is not specifically defined under the Current Scheme. But, it is to be noted that Division 10, P5 of the Mackay Frame Locality Code specifically groups the three terms together and states, ‘Non-residential activity in the zone is limited to small-scale uses which are directly related to servicing the needs of residential areas or are small-scale, home based-businesses or home occupations (emphasis added)’[99] A proper reading of this provision would indicate that the three terms denote similar scales of intended development, namely small scale.
[99]See Schedule A.

Mr Cumming considers the Shops MCU proposal to be of a sufficiently small scale within the meaning of the Current Scheme.[100] In the Town Planning JER, he stated that the Shops MCU Proposal, ‘cannot be construed as a new centre location and does not contravene the scheme’s network of centres.’[101] At the hearing, it was evident that Mr Cumming premised his assessment of what was ‘small scale’ by reference to the various dimensions, appearance and nature of the proposal against the adjoining tavern and liquor store.[102] He also made reference to the fact that the Council had approved the much larger liquor barn on the adjoining site. On Hawkhaven’s own submission, that is plainly not relevant to the Shops MCU Appeal.[103] Mr Cumming did however, appropriately concede that when considering what constitutes ‘small scale’ under the Current Scheme it is relevant that the Subject Site is currently located in the Urban Residential Zone.[104] That, to my mind, is a very relevant consideration, and one which I shall deal with shortly, in the context of assessing the Shops MCU proposal against the Current Scheme as a whole.[105]
[100]T4.79.36, T4.80.45.
[101]Exhibit 9, page 23, para 92.
[102]T4.79.37-47.
[103]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 88(f).
[104]T4.80.5
[105]Luke v Maroochy Shire Council & Anor (2003) QPELR 447 at 450.

A somewhat troubling aspect of Mr Cumming’s evidence was in respect of a possible future use by Hawkhaven for the vacant subdivided Lot C(ii).[106] Mr Cumming gave evidence that Hawkhaven may have been trying to attract a childcare centre tenant to the lot.[107] He described that as a ‘very good use for that site’.[108] Although possible future uses of the vacant lot are not directly relevant to whether the Shops MCU proposal itself conflicts with either the Current or Draft Scheme, it shines further light upon Mr Cumming’s assessment of what constitutes ‘small scale’ under both schemes. He said that if Lot 241 was developed by the Shops MCU proposal, the proposed extension to the Blacks Beach tavern (the subject of the Hotel MCU Appeal) and a childcare centre, such uses, ‘would still be on the fringes of small scale.’[109] That conclusion is not supported by the relevant provisions of either the Current or Draft Scheme.
[106]Denoted as ‘Future Development Site’, Exhibit 2, page 17.
[107]T4.81.15.
[108]T4.81.16.
[109]T.4.83.4.

On the issue of whether the Shops MCU proposal will be of a ‘small scale’ I found the evidence of Mr Cumming unpersuasive. I do not consider that the Shops MCU proposal to encompass the type or scale of out of centre development envisaged by the Current Scheme. In this regard, I prefer the evidence of Mr Buckley and Mr Brownsworth. Under the Current Scheme, the Shops MCU proposal is not small scale.

As I have outlined above at paragraph [68], the Current Scheme allows for out of centre development to occur where such development is consistent with the provision of local facilities. P6 denotes specific criteria for out of centre development to meet in respect of community need.[110] Hawkhaven says the Shops MCU proposal is directly related to servicing the existing need of the surrounding residential area.[111] For reasons outlined below by reference to the evidence of Mr McCracken and Mr Duane as to need, I am not persuaded as to any demonstrated economic need for the Shops MCU proposal. Given the Shops MCU proposed is neither of appropriately small scale nor reflective of a demonstrated community need for the provision of local facilities, I am not satisfied that the Shops MCU proposal falls within the limited exceptions within the Current Scheme for acceptable out of centre development.
[110]See Schedule A.
[111]Appellant’s Written Submissions, paragraph 206.

Consistent with its ultimate submission with respect to the weight to be given to the Draft Scheme, Council says the Shops MCU proposal also conflicts, in a significant way, with the Draft Scheme in respect of the hierarchy of centres. As with the Current Scheme, the Draft Scheme strongly reflects a planning intent towards a hierarchy of centres. This hierarchy is set out, inter alia, in the following provisions of the Draft Scheme:

(a) Strategic Framework, 3.2.3

(b) Strategic Framework, 3.9.6; and

(c) Part 6, Local Centre Zone Code, section 6.2.8.2.[112]

[112]See Schedule A.

Council submits the Shops MCU proposal significantly conflicts with these provisions. Perhaps the starkest area of conflict can be found by reference to Strategic Framework 3.2.3, which, in no uncertain terms, stipulates that ‘Out of Centre development is discouraged and avoids commercial strip development along major roads.’ Relevantly, the Draft Scheme includes a provision establishing a hierarchy of assessment criteria to be employed in the event of inconsistency between different provisions within the planning scheme. According to this hierarchy, the Strategic Framework under the Draft Scheme prevails over all other components to the extent of inconsistency.[113] There is no equivalent provision in the Current Scheme.
[113]Exhibit 64, page 6.

As I have previously determined, under the Draft Scheme, the Subject Site is located outside, albeit adjacent, to the BB Local Centre. Zone Map Z0 – 23 in the Draft Scheme indicates the Subject Site is not zoned as a local centre.[114] This is acknowledged by Hawkhaven.[115] Consistent with the approach under the Current Scheme, the Draft Scheme allows for out of centre development in limited circumstances. The requirements for such out of centre development can be found, inter alia, in the following provisions of the Draft Scheme:
[114]Ibid page 226.
[115]Appellant’s Reply Submissions to Mackay Regional Council’s Written Submissions, paragraph 81(a).

(a) Medium Density Residential Zone Code, PO3;

(b) Part 9, Centre Activities Code;

(i) PO3; and

(ii) PO4.[116]

[116]See Schedule A.

In my view, the Draft Scheme provides a more detailed and cohesive treatment of out of centre development than the Current Scheme due primarily to the creation of a ‘Local Centre Code’ and a ‘Centre Activities Code’ in the Draft Scheme. Hawkhaven submits that the Shops MCU proposal does not conflict with the Centre Activities Code because the purpose of the code accepts small scale activities outside designated centres, based on local need and local attributes. Relevantly, as with the current Scheme, ‘small scale’ is not defined under the Draft Scheme. Again, however, guidance as to the meaning of ‘small scale’ can be sought by reference to surrounding provisions of the scheme. For example, PO4 of the Centre Activities provides:

‘PO4 – Centre activities outside a centre zone provide small scale and low intensity convenience services for the local area that:

(a) integrate with the character and amenity of the local area; and

(b) do not compete with or compromise role, function and viability of multi-purpose centres’.[117]

[117]See Schedule A.

On any view, the Shops MCU proposal cannot be considered small scale. In this regard, I again prefer the evidence of Messrs Buckley and Brownsworth to that of Mr Cumming. Under the Draft Scheme, the intended scale of development outside of a designated centre falls well below that proposed by Hawkhaven. For reasons developed later, I am not satisfied that local need for the development exists to support the finding that the Shops MCU proposal can be said to satisfy, for example PO3 and PO4 of the Centre Activities Code. In all of the circumstances, I am not persuaded that the Shops MCU proposal falls within the limited exceptions for out centre development envisaged by the Draft Scheme.

Town Planning: Zoning

I turn now to the town planning issue with respect to the zoning treatment of the Subject Site under both the Current and Draft Scheme. Although many of the issues with respect to centre hierarchy traverse the issues with respect to zoning, there are several different provisions, in both the Current and Draft Scheme which are invoked specifically in relation to the zoning treatment of Lot 241. As I have said, under the Current Scheme, the Subject Site falls within the Urban Residential Zone whereas under the Draft Scheme, it is within the Medium Density Residential Zone. It is uncontroversial that under both schemes, the Shops MCU proposal constitutes non-residential development occurring within a residential zone.

The zoning issues take on a similar character, in a town planning sense, to the issues regarding the centres hierarchy conflict under the Current Scheme. Council says the Shops MCU proposal conflicts with the provisions dealing with the zoning of Lot 241 and that the planning intent of the Urban Residential Zone is clear; subject to limited exceptions, land in that zone is to be developed for residential, rather than commercial purposes.[118] To that end, the Council points to the following provisions[119] of the Current Scheme which deal with non-residential development occurring within the Urban Residential Zone:
[118]Written Submissions on behalf of the Mackay Regional Council, paragraph 68.
[119]See Schedule A.

(a) Mackay Frame Locality

(i) Overall Outcome 2(h);

(ii) McReady’s Creek Precinct, Overall Outcome 4(a);

(iii) Specific Outcome P1;

(iv) Specific Outcome P2;

(b) Retail and Commercial Code, Overall Outcome 2(e).

Under the Draft Scheme, Council submits that the planning intent for the Medium Density Residential Zone continues that of the Urban Residential Zone from the Current Scheme, clearly representing an intent that the land be used primarily for residential purposes. Further, it says, the planning intent for the land is unambiguous under both the Current and Draft Schemes and points to the following provisions of the Draft Scheme:

(a) Medium Density Residential Zone Code

(i) Purpose, section 6.2.12.2(1)

(ii) Purpose, section 6.2.12.2(2)

(iii) Purpose, section 6.2.12.2.(3)(a)(i); and

(iv) PO1.

As was evident in respect of the hierarchy of centres, the Current and Draft Schemes both allow for non-residential development to occur, in limited circumstances, within the Urban Residential Zone and the Medium Density Residential Zone. Council submits the Shops MCU proposal does not meet the exception for such development under either scheme. BBC refers to the aforementioned provisions of the Current Scheme and submits the scheme clearly contemplates commercial or retail uses, such as the Shops MCU proposal, are to be located on land which is located within the Commercial or Village Zones rather than within the Urban Residential Zone. In this regard, BBC refers to the 2011 Decision where the Court held,

‘To my mind the residents of the surrounding areas would have had, and would continue to have, a soundly based reasonable expectation that Lot 241 would be developed for residential purposes and not as a shopping centre.’[120]

[120]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 at [216].

Under the Current Scheme, the exception can be found by reference, for instance, to Division 10, P5 of the Mackay Frame Locality which relevantly provides, ‘Non-residential activities in the zone: (i) is limited to small-scale uses which are directly related to servicing the needs of residential areas or are small-scale, home-based businesses or home occupations;’. This exception for non-residential development largely mirrors the exception with respect to out of centre development dealt with above. Under the Draft Scheme, the exception permitting non-residential development within the Medium Density Residential Zone can be found within PO1 of the Medium Density Residential Zone Code which relevantly provides that the zone is to primarily accommodate low-medium and medium density residential development. In addition, the Purpose of the Medium Density Residential Zone Code provides,

‘(1) The purpose of the Medium density residential zone code is to provide for a medium density multiple dwelling supported by community uses and small-scale services and facilities that cater for local residents.

…

The zone also provides for short term accommodation and a limited range of small scale, low intensity and compatible non-residential activities.

(3) The purpose of the code will be achieved through the following overall outcomes

(a) Uses: (i) the predominant form of development within the zone is low-medium and medium density residential development;’[121]

(emphasis added).

[121]See Schedule A.

I am satisfied that under the Current Scheme, non-residential development occurring within the Urban Residential Zone is to be limited to small scale uses. Under the Draft Scheme, the situation is no different. For the reasons I have outlined above, the Shops MCU proposal cannot, under either the Current or Draft Scheme, be considered small scale. As I have said, the evidence of Messrs Buckley and Brownsworth is to be preferred to that of Mr Cumming. Hawkhaven’s submission that the Shops MCU proposal is small in scale is unsupported by acceptable expert evidence.

Further, the Overall Outcomes under the Mackay Frame Locality and PO10 of the Medium Density Residential Zone Code require that any non-residential development does not adversely affect the residential amenity of the zone in which it occurs.[122] For reasons to be developed later, there is insufficient evidence to satisfy me that such adverse impacts will not exist if the Shops MCU proposal goes ahead. Further, I am not satisfied, based on the evidence of the economic need experts dealt with below, that the Shops MCU proposal, as non-residential development occurring within a residential zone, are ‘directly related to servicing the needs of residential areas’[123] (Current Scheme) or are ‘required to the serve the need of the local area’[124] (Draft Scheme).
[122]See Schedule A.
[123]Schedule A, Division 10, PO5, Mackay Frame Locality Code.
[124]Schedule A, PO3, Medium Density Residential Zone Code.

In all the circumstances, I do not consider that the proposal falls within the limited exceptions which permit non-residential development to occur within either the Urban Residential Zone (Current Scheme) or the Medium Density Residential Zone (Draft Scheme). Consistent with my finding in respect of the centres hierarchy established by the Current and Draft Schemes, in terms of zoning, the Shops MCU proposal conflicts with both schemes.

Conclusion re Town Planning

As can be seen from the above discussion, the Shops MCU proposal raises conflict, in a town planning sense, with both the Current and Draft Scheme. This conflict presents both in terms of the centres hierarchy and the zoning envisaged under the schemes. I consider that approval of the Shops MCU proposal, in its current form, would cut across the clear planning intent of the Current and Draft Scheme.

Amenity

I turn now to the evidence surrounding the amenity impacts of the Shops MCU proposal.

Acoustic Amenity

No joint expert report addressing the issue of impacts on amenity was prepared for the purposes of the Shops MCU proposal. The only evidence on this issue was that of Hawkhaven’ s expert, Mr Paul King, who produced a short report addressing noise amenity dated 16 September 2016 (‘Amenity Report of Mr King’).[125]
[125]Exhibit 11.

In his report, Mr King states that with respect to acoustic amenity, the Shops MCU Proposal;

(a) will generate minimal amenity impacts at surrounding residential uses;

(b) can supplement suitable amenity control measures in the form of physical noise control measures and on the basis of appropriate conditions of approval; and

(c) can readily comply with Specific Outcome P1 of the Environment and Infrastructure Code[126] in that noise and vibration from the development will not detract from the amenity of residents or employees of adjacent premises.[127]

[126]See Schedule A

[127]Exhibit 11, page 5.

He further says that, given the reduction in scale of the development as a result of the Minor Change Application, the Shops MCU proposal can readily co-exist with surrounding residential development on the basis of suitable noise amenity controls and reasonable and relevant development control conditions.[128] It is clear from Mr King’s report that his opinion is largely based on noise impact assessments previously undertaken at the Subject Site as part of the development application the subject of the 2011 Decision of this Court. He records;
[128]Ibid.

‘12 The previous assessments I have undertaken provide me with adequate certainty to consider the amenity (noise) impacts of the proposed 400m² commercial/retail development. This includes the ambient noise monitoring undertaken, the noise criteria derived and the noise impacts considered.
…
16 On the basis of previous reporting and assessment for the overall site, it is my opinion that the proposed 400m² development can be suitably designed, conditioned, constructed and operated such that amenity impacts upon adjacent and nearby residential uses are not unreasonable.’ [129]

[129]Exhibit 11.

Importantly, the proposed development application, the subject of the 2011 Decision was much larger than the present, constituting a gross floor area of 2,908m², roughly seven times larger than the Shops MCU proposal.[130] Notwithstanding this significant difference, Council relies on the fact that in the 2011 Decision, the evidence of Mr King on the issue of amenity, was not preferred.[131] I accept Hawkhaven’s submission that the Court’s preference for the evidence of another expert witness, in a different case, the 2011 Decision is not relevant to the present assessment of Mr King’s evidence.
[130]See for example, Exhibit 32.
[131]Blacks Beach Cove No 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 at [160].

Having said that, pursuant to section 493(1) of SPA, Hawkhaven bears the onus of establishing that the appeal should be upheld. Accordingly, it must demonstrate that the Shops MCU will not conflict with applicable planning instruments, namely the Current and Draft Schemes, in respect of amenity issues. Council submits that the evidence of Mr King is insufficient to discharge that onus. As against that, Hawkhaven says there is no basis for refusal of the Shops MCU proposal on amenity grounds. Surprisingly, BBC appears to accept the issues relating to acoustic amenity have been addressed by the evidence of Mr King.[132]
[132]Written Submissions of the Co-Respondent by Election, paragraph 97.

Amenity provisions within the Current and Draft Scheme

Under the Current Scheme, the Council points to the following provisions, which it says are relevant to the protection of amenity at the Subject Site:

(a) Mackay Frame Locality:

(i) Division 8, Overall Outcome 3(c);

(ii) Division 8, Specific Outcome P7;

(iii) Division 10, Overall Outcome 2(f); and

(iv) Division 10, P5

(b) Environment and Infrastructure Code:

(i) Overall Outcome 2(e); and

(ii) P1.[133]

[133]See Schedule A.

Protection of amenity is a theme which also permeates the Draft Scheme. The Council points to the following provisions of the Draft Scheme in support of this submission:

(a) Local Centre Zone Code:

(i) Overall Outcome 3(b)(iii)

(b) Medium Density Residential Zone Code:

(i) Overall Outcome 3(d);

(ii) PO3; and

(iii) PO10.

(c) Centre Activities Code:

(i) Overall Outcome 2(e);

(ii) PO4; and

The car parking must be designed in accordance with AS/NZS2890.1:2004 Parking facilities Part 1: Off-street car parking and AS/NZS2890.6:2009 Parking facilities Part 6: Off-street parking for people with disabilities.

The car park must be lit in accordance with AS/NZS 1680.2.1:2008 Interior and workplace lighting and AS/NZS1158.3.1:2005 Lighting for roads and public spaces. Any car park lighting and other outdoor lighting, must comply with AS4282-1997 Control of the obtrusive effects of outdoor lighting.’ [271]

[271]Exhibit 5, page 411.

In the First Joint Report of Traffic Engineers (‘1^st Traffic JER’), prepared prior to the Minor Change Application, there was recorded agreement that the layout and design of car parking and traffic circulation areas should be in accordance with AS2890.1 and that further, the development plans used for the purposes of that report indicated this was achievable.[272] Despite the changes in car parking and traffic circulation resulting from the Minor Change Application in August 2016, there is no suggestion that the changed plans do not comply with relevant Australian Standards. In these circumstances, the first paragraph of Condition 13 is unnecessary and should be deleted. Condition 13 will therefore read:
[272]Exhibit 8, tab 2, page 3.

‘13. Minimum Car Parking Spaces

The car parking must be designed in accordance with AS/NZS2890.1:2004 Parking facilities Part 1: Off-street car parking and AS/NZS2890.6:2009 Parking facilities Part 6: Off-street parking for people with disabilities.

The car park must be lit in accordance with AS/NZS 1680.2.1:2008 Interior and workplace lighting and AS/NZS1158.3.1:2005 Lighting for roads and public spaces. Any car park lighting and other outdoor lighting, must comply with AS4282-1997 Control of the obtrusive effects of outdoor lighting.’

Council points to a further issue in the Hotel MCU Appeal namely whether the access road for the liquor barn, as proposed along ‘Lot C(i)’ of Lot 241[273] (where the Shops MCU proposal was to be located) should form part of the development approval given the Court has now dismissed the Shops MCU Appeal. Hawkhaven says that issue has been addressed by the traffic engineers and does not arise in the context of any of the disputed conditions in the Hotel MCU Appeal. In any event, I do not consider that the access road should form part of the development. In this regard, I prefer the evidence of Mr Bratt.[274] Further, I record that Condition 11, which has been agreed between the parties, only provides that access for the proposed liquor barn to occur via an intersection with Blacks Beach Road and Chenoweth Drive. [275]
[273]Exhibit 40, page 15.
[274]T4.7.35-40; T4.6.40 – T4.7.20; T4.15.25-30
[275]Exhibit 33, page 3.

Conclusion re Appeal No 4295 of 2014 - Hotel MCU Appeal

In respect of the Hotel MCU Appeal:

(a) GFA of Building – Condition 4 is a valid condition pursuant to section 345 of SPA. It should, however, be amended to reflect the gross floor area for both the liquor shop and the ‘Non-retail uses’;

(b) Amalgamation of Allotments – Condition 5 is not a valid condition pursuant to section 345 of SPA and should be deleted;

(c) Commencement of Use – Condition 6 is not a valid condition pursuant to section 345 of SPA and should be deleted.

(d) Building Proximity – Condition 9 is not a valid condition pursuant to section 345 of SPA and should be deleted.

(e) Minimum Parking Spaces – Condition 13 should be amended as I have outlined above; and

(f) The access road for the liquor barn, as it is proposed along ‘Lot C(i)’ of Lot 241 (where the Shops MCU proposal was to be located) should not form part of the Hotel MCU development approval.

24 LOT ROL APPEAL – APPEAL NO 4294 OF 2014

I turn now to the 24 Lot ROL Appeal. This appeal related to a development application for reconfiguration of a lot to subdivide part of Lot 241, a residential lot, into 24 further lots. Originally, there were three conditions in dispute in the 24 Lot ROL Appeal. These were:

(a) Commencement of Works – Condition 2;

(b) Internal Street Works – Condition 15; and

(c) Stormwater Drainage – Condition 18.

The parties have agreed[276] that, in the event the Court dismisses the Shops MCU Appeal which I have done, Condition 15 will read:
[276]Appellant’s Reply to Mackay Regional Council’s Written Submissions, paragraph 277; Exhibit 33.

15. Internal Street Works

The Internal road must be designed and constructed as kerb to kerb bitumen sealed road generally as shown on the Proposed Plan of Development drawing number R0252-P3 by AJS Surveys and as detailed below:

(a) Road 1 – Access Place

(i) Standard Drawing No. A3-3618;

(ii) Undivided carriageway 5.5m wide within a 13.5m wide road reserve increased to 15 m wide road reserve along the western boundary;

(iii) 1.5m wide footpath connection from McAlary Drive to the Blacks Beach Road path via proposed lot 2. This connection must be opened as a road reserve or access easement;

(iv) The northern intersection alignment of Road 1 onto McAlary Drive must be adjusted slightly to align headlight glare between the house at 17 and 21 McAlary Drive;

(v) Provision must be made for and Access Place roadway connection to proposed Lot 2 including 1.5m wide footpath.

The dispute over Condition 18 was resolved during the course of the hearing. By letter dated 15 September 2016[277], Council’s solicitors proposed an amendment to subparagraph (c) of proposed Condition 18 in respect of the 24 Lot ROL Appeal (Appeal No 4294 of 2014). By its solicitors’ letter dated 20 September 2016, Hawkhaven accepted that change as resolving the issue.[278] Agreed Condition 18 will read:-

18. Stormwater Drainage

[277]Exhibit 55, page 1 and Schedule 2, page 4.

[278]Exhibit 55, page 7, paragraph 2(a).

Stormwater must be designed and constructed in accordance with Council’s Engineering Guidelines – Stormwater Drainage Design – Planning Scheme Policy 15.05 and must provide for the following:
a)External catchments
b)Inter-allotment drainage (if required) – Council’s Standard Drawing A3-870
c)Downstream drainage to a lawful and practical point of discharge which has been nominated as Council’s existing underground stormwater system in Blacks Beach Road (refer attached Plan A1-9935 Amend B). The existing stormwater system in McAlary Drive has not been designed to accommodate stormwater runoff from this site.
d) Underground drainage system through Lot 2 and the Q100 flow path to the drainage channel south of Blacks Beach Road.

Consistent with what I have determined above at paragraph [212] in respect of Condition 6 in the Hotel MCU Appeal, I find Condition 2 is not reasonably required, and further, if imposed, would constitute an unreasonable imposition on the development approval. Condition 2 of the Hotel MCU Decision Notice should be deleted.

Conclusion re Appeal No 4294 of 2014 – 24 Lot Appeal

In respect of the 24 Lot ROL Appeal:

(a) Commencement of Works – Condition 2 is not a valid condition pursuant to section 345 of SPA and should be deleted.

(b) Internal Street Works – Condition 15 has been agreed by the parties and will be in the terms outlined above; and

(c) Stormwater Drainage – Condition 18 has been agreed by the parties and will be in the terms outlined above.

3 LOT ROL APPEAL - APPEAL NO 4293 OF 2014

I turn now to the 3 Lot ROL Appeal. This appeal relates to a development application for reconfiguration of Lot 241 on SP171588 into three allotments. Originally, there were three conditions in dispute in the 3 Lot ROL Appeal. These were:

(a) Access – Condition 4;

(b) Road Widening – Condition 5; and

(c) Stormwater Drainage – Condition 9.

The dispute in relation to Condition 9 was resolved during the course of the hearing. By letter dated 15 September 2016[279], Council proposed an amendment to subparagraph (c) of proposed Condition 9 which, by letter dated 20 September 2016, Hawkhaven accepted as resolving the issue.[280]
[279]Exhibit 55, page 1 and 3.
[280]Exhibit 55, page 7, paragraph 1.

Agreed condition 9 now reads:-

9. Stormwater Drainage

Stormwater must be designed and constructed in accordance with Council’s Engineering Guidelines – Stormwater Drainage Design – Planning Scheme Policy 15.05 and must provide for the following:

a) External catchments

b) Inter-allotment drainage (if required) – Council’s Standard Drawing A3870

c) Downstream drainage to a lawful and practical point of discharge which has been nominated as Council’s existing underground stormwater system in Blacks Beach Road (Refer attached Plan A1-9935 Amend B).

Council’s proposed Condition 5, requiring road widening along the full Blacks Beach Road, frontage was resolved by agreement in Traffic JER1, by reference to Figure SK-35-B, prepared by Cardno.[281] Condition 5 should be amended to reflect that agreement.
[281]Exhibit 8, tab 2, Attachment A.

It has been agreed[282] that in the event the Shops MCU Appeal is dismissed as it has been, Condition 4 will read:
[282]Appellants Reply to Mackay Regional Council’s Written Submissions, paragraph 275.

‘4. Access

Access for the proposed lot is permitted as follows:

(a) Access for Lot 1 is to and from McAlary Drive only;

(b) Access for Lot 2 is through either Lot 1 to McAlary Drive or Lot 3 and Lot 240 on SP140130 to Blacks Beach Road. Access easements must be shown on the revised plans. Blacks Beach Road is a traffic distributor (sub- arterial road) and no access is permitted to this level in the road hierarchy;

(c) Access for Lot 3 is via a 4-way traffic signalised intersection with Blacks beach Road/Chenoweth Drive. An access easement must be registered burdening Lot 3 in favour of Lot 240.’

Conclusion re Appeal No 4293 of 2014 – 3 Lot ROL Appeal

In respect of the 3 Lot ROL Appeal:

(a) Access – Condition 4 has been agreed by the parties and will be in the terms outlined above.

(b) Road Widening – Condition 5 has resolved by agreement in the Traffic JER1, by reference to Figure SK-35-B, prepared by Cardno.[283] Condition 5 should be amended to reflect that agreement.

(c) Stormwater Drainage – Condition 9 has been agreed by the parties and will be in the terms outlined above.

[283]Exhibit 8, tab 2, Attachment A.

Orders

I make the following orders:

In respect of Appeal 4293/14:1.

Condition 4 has been agreed by the parties and will be in the terms outlined in these reasons.(a)

Condition 5 has resolved by agreement in the Traffic JER1, by reference to Figure SK-35-B, prepared by Cardno.(b) [284] Condition 5 should be amended to reflect that agreement.
[284]Exhibit 8, tab 2, Attachment A.

Condition 9 has been agreed by the parties and will be in the terms outlined in these reasons.(c)

In respect of Appeal 4294/14:2.

Condition 2 is not a valid condition pursuant to section 345 of SPA and should be deleted.(a)

Condition 15 has been agreed by the parties and will be in the terms outlined in these reasons; and(b)

Condition 18 has been agreed by the parties and will be in the terms outlined in these reasons.(c)

In respect of Appeal 4295/14:3.

Condition 4 is a valid condition pursuant to section 345 of SPA. It should, however, be amended to reflect the gross floor area for both the liquor shop and the ‘Non-retail uses’;(a)

Condition 5 is not a valid condition pursuant to section 345 of SPA and should be deleted;(b)

Condition 6 is not a valid condition pursuant to section 345 of SPA and should be deleted.(c)

Condition 9 is not a valid condition pursuant to section 345 of SPA and should be deleted.(d)

Condition 13 should be amended as outlined in these reasons; and(e)

The access road for the liquor barn, as it is proposed along ‘Lot C(i)’ of Lot 241 (where the Shops MCU proposal was to be located) should not form part of the Hotel MCU development approval.(f)

In respect of Appeal 4296/14, the Appeal is dismissed.4.

In relation to each of the Appeals, each party bear their own costs. 5.

CURRENT PLANNING SCHEME REFERENCE	AREA OF ALLEGED CONFLICT FROM COUNCIL’S FURTHER AMENDED CONSOLIDATED GROUNDS FOR REFUSAL (identified in Exhibit 53)
Part 1, Division 2 - Strategic Framework
Section 1.4(2)(d)	(d) Commercial Centres A network of centres based on roles and functions and meeting the needs of the City and the region has been established. The City provides a wide range of facilities and services from its centres to meet the needs of the population of the City, and the Whitsunday and hinterland areas. However, a sustainable balance is required between the development of the City’s centres and the needs of the growing City and regional populations by managing the character, rate, scale and intensity of development in each centre. The network of centres in the City includes the following elements: (i) Mackay City Centre – Regional Centre as the principal centre for all multi-purpose centre activities in the City and the region; (ii) Mt Pleasant Sub-Regional Centre, including Greenfields, Sams Road and Heaths Road, as the second major focus for shopping, commercial and entertainment in the City, functioning as a supporting role to the City Centre; (iii) Rural View Major Neighbourhood Centre, functioning as the third major focus for shopping, community and commercial needs in the City. (iv) neighbourhood centres, including Andergrove and Walkerston, providing for weekly or high frequency shopping, community and commercial needs; (v) mixed use centre at North Mackay; and (vi) local centres, including the small convenience centres at Bucasia, Blacks Beach, North Mackay, Mt Pleasant, Slade Point and West Mackay. To establish and maintain a viable and sustainable network of centres in the City, additional centre activities are situated within or immediately adjacent to a designated centre and be appropriate in their scale, intensity and character to the intended role and function of the designated centre. The City's centres develop as concentrations of multi-purpose activities servicing the diverse needs of residents located within the trade catchment of each centre. A wide range of activities is allowed for in the centres, provided such activities are appropriate to the intended role and function of each centre. In addition, the re-use and rejuvenation of the existing shopping and commercial areas not designated as centres in the network is encouraged, and centres and other commercial areas are attractive, safe, sustainable and able to be economically and efficiently supported by appropriate development infrastructure. In the City Centre Locality, built heritage is protected in accordance with the Character/Heritage Protection Overlay. To achieve their intended roles and functions, the designated centres are situated at key locations within the City's transport infrastructure. Development of centre activities occurs on sites with safe and convenient access to appropriate transport infrastructure that meets the needs of the proposed activities.
Part 3, Division 1 - Desired Environmental Outcomes
3.1(3)(c)(iv)(F), 3.1(3)(c)(v), 3.1(3)(c)(vi), 3.1(3)(c)(vi)	(c) Economic Development (iv) A network of centres is established and maintained according to a hierarchical arrangement of roles and functions to meet the needs of the population, and includes the following elements, as shown on the Information Map – Network of Centres : … (F) the local centres, including the small convenience centres at Bucasia, Blacks Beach, North Mackay, Mt Pleasant, Slade Point and West Mackay. (v) the growth of centres occurs in step with demonstrated community need, recognising the role and function of other centres within the network of centres. (vi) retail and commercial activities outside a centre identified within the network of centres are limited to premises with a size and function consistent with the provision of local facilities. … (viii) centres, villages and other commercial areas are attractive, provide a safe environment and are able to be economically and efficiently supported by infrastructure.
Part 5, Mackay Frame Locality Code
Division 6, Overall Outcome (2)(h)	(2) The overall outcomes for the Mackay Frame Locality are the following: (h) new commercial uses are located in the Commercial zone or the Village zone in accordance with the overall outcomes of those zones and the network of centres referred to in the Desired Environmental Outcomes and illustrated, for information, on the Information Map – Network of Centres.
Division 6, Overall Outcome (4)(a)	(4) in addition overall outcomes for the McCready’s Creek precinct are the following: (a) commercial activity including shopping in the precinct is limited to the Commercial zone and accords with the network of centres described in the Desired Environmental Outcomes and as shown on the Information Map – Network of Centres and includes: (i) a major neighbourhood centre at Rural View to meet the needs of the community residing within the McCready’s Creek precinct; (ii) a neighbourhood centre at Andergrove, to meet the needs of the community residing in Andergrove, Beaconsfield, Slade Point and part of North Mackay; and (iii) local centres at Black’s Beach and Bucasia to meet the needs of residents of Black’s Beach and Dolphin Heads, and Bucasia and Shoal Point respectively, which may grow to achieve the role and function of neighbourhood centres at some future time, in response to population growth in the trade areas of each local centre.
Division 7, P1 and P2	P1 - Commercial development is located in the commercial zone and does not detract from the network of centres referred to in the Desired Environmental Outcomes. P2 - Residential development where residential use is the predominant activities (as distinct from farming for example) occurs on land located within the Village zone, Urban Residential zone and the Rural Residential zone.
Division 8, section (3)(a), 3(c), P1, P6 and P7	(3) The overall outcomes for the Commercial zone within the McCready’s Creek precinct are: (a) all centres within the precinct provide a local and neighbourhood service function consistent with the network of centres referred to on the Information Map – Network of Centres and the overall outcomes for the code, specifically: (i) a Neighbourhood Centre is established at Andergrove and a Major Neighbourhood Centre is established at Rural View; and (ii) local centres are established at Black's Beach and Bucasia. (c) development of the centres incorporates design and siting measures and on-site environmental management to protect adjoining land from any adverse environmental effects. … P1 (McCready’s Creek Precinct) - New shopping facilities in the McCready’s Creek precinct are limited to a Major Neighbourhood Centre at Rural View and a Neighbourhood Centre at Andergrove and local centre functions which respect the surrounding built environment. … P6 (McCready’s Creek Precinct) - The Black’s Beach and the Bucasia local centres grow in step with and needs of their respective local populations and do not exceed the local centre roles as described in the overall outcomes for the Mackay Frame Locality Code. P7 (McCready’s Creek Precinct) - Development in the centres maintains the amenity of adjoining land uses by providing: (i) landscape buffers; (ii) screen fencing along common boundaries; (iii) placement of vehicle entrances and exits to avoid headlight glare; (iv) sensitive placement of advertisement devices; and (v) sympathetic built form which does not dominate the streetscape.
Division 10, 2(a), 2(f) and P5	(2) The overall outcomes for the Urban Residential zone are the following: (a) Development in the urban residential zone protects the high level of amenity of the zone and comprises predominantly single detached dwellings; … (f) Non residential development does not adversely affect the residential amenity of zone. … P5 - Non-residential activity in the zone: (i) is limited to small-scale uses which are directly related to servicing the needs of residential areas or are small-scale, homebased businesses or home occupations; and (ii) includes design and siting measure to control any external impacts from the activity.
Part 9, Division 9, Environment and Infrastructure Code
Division 9, section 9.38(2)(e)	The overall outcome sought for the Environment and Infrastructure Code is to provide for ecologically sustainable development in the City (irrespective of its scale or intensity) by ensuring that: … (e) uses sensitive to external noise, vibration, dust and odours are protected from unacceptable impacts … P1 (Noise and Vibration Management) - Noise and vibration do not detract from the amenity of residents or employees of any adjacent premises.
Part 9, Division 22, Retail and Commercial Code
Section 9.101(2)(a)(vi), 9.101(2)(b)(i), 9.101(2)(b)(iii), 9.101(2)(b)(iv), 9.101(2)(b)(v), 9.101(2)(e), P1, P6 and P7	(2) The overall outcomes sought for the Retail and Commercial Code are the following. (a) The establishment of retail and commercial uses complies with the location of Centres as identified in the network of centres in the City and includes the following elements: … (vi) the local centres, including the small convenience centres at Bucasia, Blacks Beach, North Mackay, Mt Pleasant, Slade Point and West Mackay. (b) Retail and commercial development in the City: (i) is situated within a designated centre and is accessible and convenient for all members of the community; … (iii) is attractive, functional, safe and serves to reinforce the role of the designated centres as community foci and complements the scale, intensity and character of the surrounding activities; (iv) is established on suitable premises appropriate in their scale, intensity and character to the intended role and function of the designated centre; (v) has regard to accessibility and the desirability of consolidating existing designated centres; … (e) Retail and commercial uses do not occur outside the designated centres; … P1 – Retail and commercial activities outside a designated centre are limited to premises with a size and function consistent with the provision of local facilities. … P6 – Development of additional facilities not anticipated in a designated centre meets the following criteria for community need: (i) the proposed use does not alter the role and function of a designated centre in the network; (ii) population has increased in the trading catchment of the centre since the commencement of this scheme such that the population is able to support the proposed services; (iii) the proposed use contributes to convenient access to a range of centre services and facilities for residents; (iv) residents in the City have a choice of services and facilities without unnecessary duplication, particularly for shopping, entertainment and leisure, business and commercial services and service trades; and (v) residents in the urban areas of the City have access to the different levels of facilities within the travel times nominated in the Table below. P7 - Premises are located to reinforce the viability of designated centres and are accessible to the population of the Locality it is intended to serve.
DRAFT PLANNING SCHEME REFERENCE	AREA OF CONFLICT
Part 3, Strategic Framework
section 3.2.3	The network of centres within the key urban areas of Mackay, Walkerston, Sarina, Marian and Mirani is designed to service sub-regional population catchments and do not undermine the role of the City Centre and each other. The centres network provides a hierarchy of principal, major, district, local, neighbourhood and specialised centres. Higher intensity and mixed uses are focused within centres in support of a compact urban form. Out of centre development is discouraged and avoids commercial strip development along major roads.
Table 3.3.1	3.3.7 – Encouraging higher density residential development at appropriate locations. 3.3.11 – Network of centres that support compact urban form
Table 3.8.1	3.8.2 – Economically and operationally efficient infrastructure network
Table 3.9.1	3.9.6 – Supporting appropriately located retail development
Part 6, Local Centre Code
Section 6.2.8.2	(1) The purpose of the Local centre zone code is to provide for a limited range of retail, commercial and community activities to service local needs. It includes local shopping, local employment nodes, commercial, cafes and dining, entertainment, community services and residential development where it can integrate and enhance the fabric of the activity centre. (2) The local government purpose of the zone code is to provide for centre activities, community activities and other compatible uses that form compact, vibrant, attractive and pedestrian-oriented multi-purpose centres and activity nodes serving the surrounding local area. Local centres include: (a) strategic local centres – strategically important centres that serve a specific local catchment, not otherwise served by a multipurpose centre including: (i) Blacks Beach local centre; and (ii) Bucasia local centre; and (iii) Mackay Marina local centre, which also performs a tourism and regional leisure function; and (iv) Mirani local centre; and (v) Ooralea east local centre; and (vi) Sarina Beach Road local centre; and (vii) Slade Point local centre; and (b) existing local centres – centres that complement a larger nearby multi-purpose centres including: (i) Blacks Beach Road east (Blacks Beach) local centre; and (ii) Celeber Drive (Andergrove) local centre; and (iii) Evan Street (South Mackay) local centre; and (iv) Gasworks (Shakespeare Street, Mackay) local centre; and (v) George Street (Mackay) local centre; and (vi) Martins Corner (Shakespeare Street, Mackay) local centre; and (vii) Moore Street (Mackay) local centre; and (viii) Pheasant Street (Slade Point) local centre; and (ix) Ungerer Street (North Mackay) local centre. (3) The purpose of the code will be achieved through the following overall outcomes: (a) Centre role and function: (i) strategic local centres are larger than existing local centres and neighbourhood centres, but subordinate to district centres, major centres and the principal centre (Mackay city centre); and (ii) existing local centres are larger than neighbourhood centres but subordinate to strategic local centres, district centres, major centres and the principal centre (Mackay city centre); and (iii) strategic and existing local centres generally serve the suburb surrounding the centre. The Mackay Marina local centre also services tourism, leisure and port related activities; and (iv) the total gross floor area of centre activities is up to 5,000m² in strategic local centres (up to 7,000m² in the Sarina Beach local centre) and 2,500m² in existing local centres; and (v) local centres are strengthened as local activity nodes; and (vi) local centres accommodate mostly small scale services and facilities, suitable for serving the intended catchment; and (b) Uses: (i) local centres accommodate a range of compatible uses enabling the creation of vibrant and diverse activity nodes providing service, employment and other opportunities; and (ii) local centres contain the following types of uses: (A) centre activities: convenience services and limited weekly services (medium size supermarkets, limited speciality stores and personal services); and (B) community activities: local community facilities; and (C) residential development: limited medium density residential development where it can be mixed with centre activities; and (D) tourism and port oriented activities at Mackay Marina local centre; and (iii) impacts are managed to minimise potential land use conflicts and provide a high level of amenity for sensitive land uses; and
Table 6.2.8.3.A	PO1 - Development in local centres: (a) fulfils, but does not exceed, the needs of the relevant catchment: (i) Blacks Beach local centre: Blacks Beach, Dolphins Heads and Eimeo; (ii) Bucasia local centre: Bucasia; or (iii) Mackay Marina local centre: Mackay Harbour and Tourism, leisure and port related activities; or (iv) Mirani local centre: Mirani; or (v) Ooralea East local centre: eastern part of Ooralea and western part of Paget; or (vi) Sarina Beach Road local centre: northern part of Sarina; or (vii) Slade Point local centre: Slade Point; or (viii) the residential neighbourhood immediately surrounding the existing local centre; and (b) does not compete with or compromise the viability, role or function of other strategic local centres, district centres, major centres of the principal centre (Mackay city centre). PO2 - Local centres accommodate a range of uses enabling the creation of vibrant activity nodes providing local services and employment.
Part 6, Medium Density Residential Zone Code
Section 6.2.12.2	(1) The purpose of the Medium density residential zone code is to provide for a medium density multiple dwellings supported by community uses and small-scale services and facilities that cater for local residents. (2) The local government purpose of the zone code is to provide for low-medium and medium intensity residential development within key urban areas at locations which possesses on or a combination of the following attributes: (a) in close proximity to important multi-purpose centres (principal, major, district and certain local centres) and other activity hubs, including: (i) Mackay city centre (principal centre); and (ii) Mount Pleasant, Rural View and Sarina major centres; and (iii) Andergrove, Marian, North Mackay, West Mackay (Fourways and Parkside) and Walkerston district centres; and (iv) Sarina Beach Road (Sarina), Blacks Beach, Bucasia, Mirani, Celeber Drive (Andergrove) local centres; and (v) Mackay Base Hospital (West Mackay); and (b) along important traffic corridors, including: Bridge Road, Glenpark Street, Holland Street, Juliet Street, Malcomson Street and Paradise Street; and (c) nodes (rather than linear development) in close proximity to high quality amenity and recreation elements, including: Alexandra Street (addressing Mackay Regional Botanic Gardens), Bucasia Beach, Blacks Beach, Dolphin Heads, Glenella, Iluka/Illawong Beaches and Slade Point. The zone also provides for short-term accommodation and a limited range of small scale, low intensity and compatible non-residential activities. The zone includes the Low-medium density precinct (precinct no. MD1), General medium density precinct (precinct no. MD2) and Multi-storey medium density precinct (precinct no. MD3). (3) The purpose of the code will be achieved through the following overall outcomes: (a) Uses: (i) the predominant form of development within the zone is low-medium and medium density residential development; and (ii) the zone also accommodates short-term accommodation in the Multi-storey medium density precinct (precinct no. MD3) on sites: (A) in close proximity to centres or other activity hubs and/or elements of high amenity and recreation value; and (B) that are prominently located and highly accessible; and (iii) a limited range of small-scale and low intensity non-residential uses may be appropriate if these uses are: (A) required to serve the needs of the local area; and (B) located on prominent, high accessible sites; and (C) consistent with the amenity and character of the surrounding urban area; and … (c) Built form and development intensity: (i) in the Low-medium density precinct (precinct no. MD1) and General medium density precinct (precinct no. MD2), low rise buildings integrate with the character and amenity of the local area; and (ii) in the Multi-storey medium density precinct (precinct no. MD3), the medium rise buildings reflect the site’s strategic location but has a lesser development intensity than buildings in the High density residential zone, Major centre zone and Principal centre zone (Mackay city centre); and (iii) low-medium density residential development is provided in the Low-medium density precinct (precinct no. MD1) and medium density residential development is provided in the General medium density precinct (precinct no. MD2) and the Multi-storey medium density precinct (precinct no. MD3); and (iv) road frontage setbacks are small enough to enable the development to effectively interact with the street but large enough to accommodate landscaping and avoid buildings being visually overbearing; and (v) development provides high quality design outcomes reinforcing the sense of identity of the local area and region; and (d) Amenity: (i) development does not adversely affect the amenity of adjacent areas and uses, particularly residential uses and other sensitive land uses; and
Table 6.2.12.3.A	PO1 - The zone primarily accommodates low-medium and medium density residential development including: (a) multiple dwelling activities and dwelling houses in the Low-medium density precinct (precinct no. MD1) and the General medium density precinct (precinct no. MD2); and (b) multiple dwelling activities, with the exception of dual occupancy, in the Multi-storey medium density precinct (precinct no. MD3). … PO3 - Non-residential activities, such as centre activities and community activities, are (a) required to serve the need of the local area and do not compromise the viability of: (i) existing or intended uses within a multi-purpose centre; and (ii) similar existing or approved uses in the local area; and (b) of a small scale and are subordinate to the primary residential character of the area; and (c) generate minimal impacts PO10 – Development does not generate unreasonable levels of noise, odour, dust ari emission, light or vibration impacts that affect: (a) adjoining and nearby sites within a residential zone; and (b) adjoining or nearby sites containing an existing sensitive land use.
Part 9, Centre Activities Code
Section 9.3.2.2	(1) The purpose of the Centre activities code is to ensure that centre activities contribute toward the intended role and function of centres, provide high quality design and amenity outcomes. (2) The purpose of the code will be achieved through the following overall outcomes: (a) centre activities are located on highly accessible sites in designated centres unless special circumstances (local need and location attributes) justify small scale activities outside designated centres; and … (c) development is integrated with development on adjoining sites in order to achieve a cohesive centre; and (d) development provides high quality design outcomes at a human scale, and addresses and interacts with the street particularly along existing centre main streets and main streets in new centres; and (e) development maintains a high level of amenity for adjoin residential properties;
Table 9.3.2.3.A	PO3 – Centre activities are located within a centre zone unless: (a) a strong local need will be fulfilled; and (b) the viability of designated centres will not be compromised; and (c) they are located: (i) in close proximity to existing centre activities or outside of the walkable catchment of a multi-purpose centres; and (ii) on transport routes providing easy and safe access to the site; and (iii) to minimise potential impacts to adjoining and nearby properties within a residential zone and existing sensitive land uses. PO4 – Centre activities outside a centre zone provide small scale and low intensity convenience services for the local area that: (a) integrate with the character and amenity of the local area; and (b) do not compete with or compromise role, function and viability of multi-purpose centres. PO5 – Built form is integrated with adjoining and nearby development within the centre to provide: (a) co-ordinated layout; and (b) consistent streetscape rhythm. … PO16 – Development: (a) efficiently utilises sites; or (b) maintains the amenity of adjoining residential sites where adjoining land within a residential zone
Part 9, General Development Requirements Code
Section 9.4.2.2	(1) The purpose of the General development requirement is to provide general requirements regarding infrastructure, amenity, safety and environmental standards for assessable development. (2) The purpose of the code will be achieved through the following overall outcomes: … (d) development maintains the amenity of the surrounding area; and (e) sensitive land uses in close proximity to activities generating amenity impacts are locate and designed to mitigate the impacts
Table 9.4.1.3.A	PO18 – The acoustic amenity, privacy and liveability of residential areas and sensitive land uses is maintained by ensuring that: (a) noise generating development in close proximity to existing and or future sensitive land uses is located, designed and operated to minimise acoustic impacts on sensitive land use; and (b) sensitive land uses in close proximity to existing and/or future noise generating uses are located and designed to ensure minimal acoustic impacts on the sensitive land use. PO25 – Non-residential development maintains the visual and general amenity of adjoin residential areas.

CITATION:	Hawkhaven Pty Ltd v Mackay Regional Council & Anor [2017] QPEC 40
PARTIES:	HAWKHAVEN PTY LTD (Appellant) v MACKAY REGIONAL COUNCIL (Respondent) AND BLACKS BEACH COVE NO.2 PTY LTD (Co-Respondent by Election)
FILE NO/S:	No 4293, 4294, 4295 and 4296 of 2014
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court of Queensland
DELIVERED ON:	19 July 2017
DELIVERED AT:	Brisbane
HEARING DATE:	19 – 23 September 2016, 23 – 24 February 2017
JUDGE:	Searles DCJ
ORDER:	The orders will be in accordance with those in paragraph [228] of this judgment.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where development application for material change of use for commercial premises refused by Council – where development application assessed against current planning scheme – whether weight should be given to draft planning scheme – whether development application conflicts with relevant planning schemes – whether sufficient grounds exist to warrant approval ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where development application approved subject to conditions – whether conditions valid pursuant to section 345 of Sustainable Planning Act 2009 (Qld) Sustainable Planning Act 2009 (Qld) s 314, s 324, s 326, s 345, s 493, s 495 Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342 Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157 Beck v Atherton Shire Council (1991) QPLR 56 Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 Broad v Brisbane City Council & Anor (1986) 2 Qd R 317 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 Dalgety Australia Ltd v Brisbane City Council (1980) QPLR 198 DP Thoroughbred v Albert Shire Council [1986] QPLR 273 Elan Capital Corporation Pty ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711 Gold Coast Carlton Pty Ltd & Anor v Beaudesert Shire Council & Anor [1985] QPLR 343 Good-Mix Concrete Pty Ltd v Brisbane City Council (No.3) (1975) 31 LGERA 178 Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153 HA Bachrach Pty Ltd v Caboolture Shire Council [1996] QPELR 312 Jones v Dunkel (1959) 101 CLR 298 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 Lockyer Valley Regional Council v Westlink Pty Ltd [2001] 185 LGERA 863 Maher v Hervey Bay City Council [2007] QPELR 123 Synergy Properties Partners No 2 Pty Ltd v Brisbane City Council [2016] QPEC 21 Waverley Road Developments Pty Ltd v Gold Coast City Council (2011) 187 LGERA 352 Weightman v Gold Coast City Council [2003] 2 Qd R 441 Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 Woolworths Ltd v Maryborough Shire Council (No 2) [2006] 1 Qd R 273 Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306
COUNSEL:	JD Houston for the Appellant MJ Batty for the Respondent D Purcell for the Co-Respondent by Election
SOLICITORS:	Anderssen Lawyers for the Appellant McCullough Robertson for the Respondent