Lend Lease Property Management (Australia) Pty Ltd v Maroochy Shire Council

[2001] QPEC 2

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Lend Lease Property Management (Australia) Pty Ltd v. Maroochy Shire Council & Ors [2001] QPE 002
PARTIES:	LEND LEASE PROPERTY MANAGEMENT (AUSTRALIA) PTY LTD Appellant And MAROOCHY SHIRE COUNCIL Respondent And PF WISE First Co-Respondent And DONALD JAMES INNES Second Co-Respondent
FILE NO/S:	Appeal No 73 of 2000
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING
COURT:
DELIVERED ON:	6 February 2001
DELIVERED AT:	Brisbane
HEARING DATE:	19 January 2001
JUDGE:	Judge Quirk
ORDER:	Appeal allowed.
CATCHWORDS:
COUNSEL:	Mr. M Hinson SC for the Appellant Mr. T. Trotter for the Respondent Mr. J Haydon for the First Co-Respondent
SOLICITORS:	Freehills for the Appellant Blake Dawson Waldron for the Respondent Lestar Manning Lawyer for the First Co-Respondent.

1. In this matter I indicated in my reasons for judgment that the appeal would be

   allowed and it was adjourned for the purpose of settling an appropriate set of

   conditions of approval.

2. The appellant’s legal representatives have handed up a draft judgment setting out

   conditions of approval, which are acceptable to it and the respondent counsel. The

   first co-respondent had identified three areas of concern in respect of these

   conditions and has presented carefully drawn submissions regarding these. I will

   deal with each of them in turn.

3. Proposed condition 1(b) provides:-

“1 (b)

This approval shall not take effect until after:

(1)	Maroochy Plan 2000 is amended by Council to reflect the adoption by Council of the revised PPRD plans being drawing numbers 401480: DA 24008 Issue B; 401480: A2 45131 Issue H; 401480: SK24027; for Lots 1 and 3 RP895067, Lot 64 on CP 906065 and Lots 65 and 66 on SP 113361 (‘the PPRD land’) and the abandonment of the cinema complex on the PPRD land (‘Planning Scheme Amendment’); and
(2)	Town Planning Consent Permit No. C977200 is cancelled by Council upon application made by the applicant on behalf of the owner of the PPRD land under section 3. 5.26 of the Integrated Planning Act 1997 (“IPA”).”

1. The purpose of this condition is to overcome difficulties that were raised in the

   appeal in respect of the need for a further six cinemas at Sunshine Plaza. There are

   presently six cinemas operating at Sunshine Plaza and, as explained, the approval

   for the PPRD site given in 1998 included a proposal for six cinemas. It was

   accepted that while 12 cinemas were acceptable (in terms of community needs) 18

   might not be.

2. It has always been the appellant’s position that the approval for six cinemas on the

   PPRD site should be cancelled and that a 12-cinema complex should be consolidated at Sunshine Plaza. Furthermore, the appellant accepted that,

   associated with the proposal before the court, there should be a reduction in retail

   floor space on the PPRD land.

3. Section 3.5.26 of the IPA provides an opportunity for the cancellation of any town

   planning approval and this is specifically mentioned in condition 1(b)(2). There

   was an added difficulty in that, in the recently gazetted town planning scheme for

   the shire (the “2000 scheme”) there is, in a Supplementary Table of Development

   Assessment, specific reference to the subject land and the order of this court made

   in June 1998 in respect of the PPRD approval.

4. It was accepted that the arrangements envisaged by this proposal should be properly

   reflected in the 2000 scheme hence, the amendment referred to in condition 1(b)(1).

   The revised PPRD plans referred to reflect the removal of the cinema complex from

   the PPRD land, the reduction in retail floor space and other consequential redesign

   of what is intended on that site.

5. The first co-respondent’s complaint is essentially that the amendments reflected in

   these revised plans do not appropriately give effect to the court’s decision in the

   PPRD appeal. Counsel for the first co-respondent in his submissions detailed the

   specific features of the revised plans which indicate that.

6. The difficulties with these submissions is that what is proposed in condition 1(b) is

   not dependent upon the decision in the PPRD appeal. What is intended is an

   amendment by the council to bring its planning scheme into line with what is proposed in this application. That power must be exercised in accordance with

   schedule 1 of the IPA.

7. What is really the effect of condition 1(b) is that until this is achieved, this approval

   will not take effect. I am satisfied that the condition appropriately deals with the

   concern in respect of need, which I referred to in my reasons for judgment and that

   it should stand.

8. Another matter raised by the first co-respondent was the absence in the proposed

   conditions in this case of any requirements for a payment of a “roadworks

   contribution” of the kind referred to in condition 2 of the order disposing of the

   PPRD appeal.

9. The applicant and the council appear to be in agreement that, in this case, no further

   contribution should be sought because the PPRD contribution ($1.9 million) was

   quantified on the basis of the six cinemas and other retail floor space intended at

   that time and which is now proposed to become part of Sunshine Plaza. As a

   consequence of the approval of this application these components will no longer be

   part of the development of the PPRD site.

10. While, in respect of the PPRD site, the 2000 scheme will be modified to reflect the

    intended changes to the layout, there is no suggestion that the scheme will be

    modified in a way that results in the developer of the PPRD site being relieved of

    other obligations under the order made in 1998 in respect of the site. Importantly,

    therefore the obligation to make the relevant roadworks contribution will continue and I accept that it will be such as to obviate the need to call for a further

    contribution in respect of what is proposed in this application.

11. The other matter raised by the first respondent related to a traffic parking guidance

    system, the introduction of which is being undertaken as a joint effort by the

    respondent council and the Department of Main Roads. A substantial contribution

    to this work by the appellant is called for in proposed condition 4 in this mater. The

    first respondent by election submits that the subject development should not be

    allowed to occur until the system is in place.

12. The evidence in the appeal on parking problems in the area was extensive and was

    discussed in my reasons for judgment. Although it certainly received attention at

    the hearing, the prospect of this traffic parking guidance system was well short of

    being determinative of the appeal. As I sought to explain, I was satisfied that the

    appellant’s consulting traffic engineer was correct in her assessment of the parking

    difficulties being faced by Sunshine Plaza and that the efforts being made to deal

    with these difficulties within the centre and in the surrounding traffic system, were

    reasonable in the circumstances. The proposed system was only one of the matters

    discussed, and, while I am satisfied that it will be an added benefit, in view of the

    fact that it will apply to the Maroochy Central area as a whole and its

    implementation is not in the hands of the appellant (although as mentioned, a

    substantial contribution is being called for) it would not, in my opinion, be an

    appropriate exercise of discretion to impose a condition delaying the proposal until

    the system is in place.

13. In the end result I am satisfied with the draft judgment proposed by the appellant

    and respondent and will make an order allowing the appeal in those terms.