Lend Lease Property Management Pty Limited v Maroochy Shire Council

[2002] QPEC 40

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Lend Lease Property Management Pty Limited v Maroochy Shire Council & Anor [2002] QPEC 040

PARTIES:

LEND LEASE PROPERTY MANAGEMENT PTY LIMITED
Appellant

V

MAROOCHY SHIRE COUNCIL
Respondent

And

TALLENBROOK PTY LTD
Co-Respondent

FILE NO/S:

6100 of 2001

DIVISION:

Planning & Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

DELIVERED ON:

26 June, 2002

DELIVERED AT:

Brisbane

HEARING DATE:

28, 30, 31 May 2002, site inspection 29 May 2002

JUDGE:

Judge Robin QC

ORDER:

Appeal dismissed

CATCHWORDS:

Integrated Planning Act 1997, s2.1.23, s3.5.3, s3.5.6(2), s3.5.14(2), s5.1.50(2), s6.1.2(3), s6.1.4, s6.1.28, s6.1.29, s6.1.30

Local Government (Planning and Environment) Act 1990 s3.4(1), s4.4(5) & (5A), s4.13(5) & (5A)

Submitter appeal against approval for Material Change of Use of land zoned or allocated to Residential for Shopping Complex, Service Station, Tavern and (separate) Bottle Shop – site adjacent to an existing “professional centre” recognised as a local neighbourhood centre in Maroochy Plan 2000 which was adopted after lodgement of development application – “Acceptable Measures” Code for Centres limited GFA to 5000m² which the expanded centre would exceed, although the court found it generally satisfied the controlling “performance criteria” – appellant argued the proposal was in conflict with the Plan, was too large, offended the retail hierarchy established in planning documents, contained a shopping complex unacceptable in the location – even if conflict existed with the Plan or the predecessor 1996 strategic plan and 1985 planning scheme, there were planning grounds (including need) for overlooking such conflict.

COUNSEL:

Mr M Hinson SC and Mr R Litster for the Appellant
Mr C Hughes SC for the Respondent
Mr P Lyons QC and Mr W Cochrane for the Co-Respondent

SOLICITORS:

Freehills for the Appellant
Maroochy Shire Council Legal Services for the Respondent

Lestar Manning for the Co-Respondent

1. The respondent Council approved Tallenbrook’s application for a Material Change of Use of Premises (Shopping Complex, Adult Products Shop, Service Station and Hotel), Material Change of Use of Premises for an environmentally relevant activity (petroleum product storage) and preliminary approval for building works on a 2.328 hectare site in Karawatha Drive, Mountain Creek.  There followed a “conditions appeal” in this court (No. D471 of 2002), which has been compromised.  The appellant apparently operates a large shopping centre in the Maroochydore Town Centre, Sunshine Plaza (52,370m²).  It lodged a submission against Tallenbrook’s application.  It appears to be in a similar situation to the rival shopping centre operators the nature of whose interests has attracted comment in the Court of Appeal in matters such as Vynotas Pty Ltd v Brisbane City Council (2002) 1 Qd R 108, 110 and Westfield Ltd v Stockland (Constructors) Pty Limited (2002) QCA 137, at para 7, where “a commercial interest in preventing and even delaying these developments” was noted.

1. So far as the evidence goes, Tallenbrook’s development will have no impact on Sunshine Plaza, which is a considerable distance away.  It will have an impact on a handful of established “convenience centres” nearby, but (on the evidence) only in so far as there will be some changes in tenancies in them.

1. While there were hundreds of submitters (both for and against) at the application stage, those against may have included some concerned about the implications of an Adult Products Shop, which in this case became a relevant category because alcoholic liquor is proposed to be sold. The Hotel is a smallish tavern. On the appeal, the appellant placed no reliance on any submissions; no issues regarding appearance or aesthetics or undesirable impacts of any kind were ventilated in the appeal. Tallenbrook, as applicant bearing the onus to show the appeal should be dismissed under s 5.1.50(2) of the Integrated Planning Act 1997 (the IPA), relied upon the evidence of Mr McCracken, a marketing expert, of Mr Pekol, a traffic engineer – which proved not particularly controversial in the end, and of two local residents, Ms Bennett and Mr Gill, who were enthusiastic supporters. Mr Gill’s evidence carries special weight in that he demonstrated overwhelming support among the 300 or more residents of the Hibiscus Retirement Resort, otherwise described as the Buderim Meadows Retirement Village, which is located across Karawatha Drive, facing the western extremity of the site.

1. A process of issues in the appeal being identified and then enormously reduced by the parties’ respective town planner experts, in conference, has been gone through; the proper approach is to assume there is nothing pointing to refusal of the application in aspects that have escaped mention in the hearing.  Mr Hinson SC, who appeared with Mr Litster for the appellant, presented the matter as involving “pure planning”, and in particular the provisions in the Maroochy Plan 2000 indicating the desired “retail hierarchy”.  He said (p 229) there was “no contention of impact on anybody else … this case is all about protecting and preserving the integrity of the hierarchy, the scheme provisions relating to the hierarchy and ensuring that’s what’s implemented, not something else.”

1. As the matter was argued, all parties focussed attention on the 2000 Plan although Tallenbrook’s development application was lodged shortly before its coming into effect on 1 June 2000.  Before that date the 1985 Town Planning Scheme was applicable, with the exception that the Strategic Plan for the Shire had been replaced by the Maroochy Shire Strategic Plan – 10/5/1996, a document largely “picked up” in Volume 2 of the 2000 Plan.

1. Tallenbrook’s agent wrote to the Council on 18 April 2000 (Exhibit 11) confirming an arrangement (presumably one seen as in Tallenbrook’s interests) that “the processing of the application was not to commence until all supporting information was submitted.” The next letter, of 21 July 2000 (Exhibit 12) enclosed the supporting information, noting that Tallenbrook “waited to see the effect of Council’s 2000 Planning Scheme”, and asked that the Council “now commence the process to issue an Acknowledgement Notice.” Ordinarily, Tallenbrook would be entitled to have its application assessed against the planning documents as they existed when its application first went in. Sections 6.1.28-6.1.30 of the IPA required the application (assuming it was lodged on 1 March 2000, as the receipt endorsed on the IDAS development application form 1A indicates) be processed under that Act on the basis, inter alia, of the transitional planning scheme; depending on whether s 4.3(1) or s 4.12(1) of the Local Government (Planning and Environment) Act 1990 (P & E Act) applied s 4.4(5) and (5A) or s 4.13(5) and (5A) in turn applied. In circumstances where a local government has not decided an application prior to the coming into force of a planning scheme or a pertinent amendment of a planning scheme, weight is to be given to the new arrangements under the Coty principle, which has a statutory counterpart in s 3.4(1) of the P & E Act.  It seemed to me (although counsel were not in agreement) that this situation might potentially raise difficulties under s 4.4(5A) or s 4.13(5A) as to whether “any relevant Strategic Plan” may refer to a new plan yet to come into effect as well as to the plan which is in effect when the application is lodged.  It seemed to me odd that multiple plans might each bring about a situation in which the local government, prima facie, must refuse an application. The matter potentially becomes more difficult for the decision maker if there is conflict with one, but not with another.  It may be noted that under the IPA, by s 3.5.3 in Ch 3 Pt 5 Division 2 “a reference to a code, planning instrument, law or policy is a reference to a code, planning instrument, law or policy in effect when the application was made”, but that, by s3.5.6(2):

“In assessing the application, the assessment manager may give the weight it is satisfied is appropriate to a code, planning instrument, law or policy that came into effect after the application was made, but –

(a)     before the day the decision stage for the application started; or

(b)if the decision stage is stopped – before the day the decision stage is restarted.”

1. The P & E Act provisions have their counterpart in the IPA in s 3.5.14 (2) whereby:

“If the application is for development in a planning scheme area, the assessment manager’s decision must not –

(a)compromise the achievement of the desired environmental outcomes for the planning scheme area; or

(b)conflict with the planning scheme, unless there are sufficient planning grounds to justify the decision.”

1. Another matter ventilated was the significance of the view expressed in Vynotas that provisions in transitional planning schemes might be of persuasive relevance only in circumstances such as the present and whether s 6.1.4 of the IPA (not mentioned in the judgments) which provides that “a transitional planning scheme … is taken to be an IPA Planning Scheme until it is replaced by, or converted to, an IPA Planning Scheme” had any relevant effect. Section 2.1.23 is:

“2.1.23 Local planning instruments have force of law

(1) A local planning instrument is a statutory instrument under the Statutory Instruments Act 1992 and has the force of law.

(2) A local planning instrument may not prohibit development on, or the use of, premises.

(3) A planning scheme or a temporary local planning instrument can regulate a use of premises, but only –

(a)by applying to the use a code identified in the planning scheme or temporary local planning instrument; and

(b)if –

(i)the use is a natural and ordinary consequence of making a material change of use of the premises happening after the code took effect; and

(ii)the making of the material change of use is assessable or self-assessable development.”

1. Schedule 10 provides that “planning instrument” means a State planning policy, planning scheme, temporary local planning instrument or planning scheme policy. Section 2.1.1 defines “planning scheme” as an instrument made by a local government under Division 3 (Making, amending and consolidating planning schemes). Planning scheme policies are dealt with in Division 5, s 2.1.16. By s 2.1.17A, to the extent a planning scheme policy is inconsistent with another planning instrument, the other planning instrument prevails. Although there is now involved no prohibited use, s 6.1.2(3) of the IPA permits a prohibited use under the former planning scheme to be taken as an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.

The site and the proposed development

1. The legal niceties probably do not matter much in this appeal.  Tallenbrook’s proposal has to be tested against the town planning instruments effective before June 2000 for conflict, and if conflict be found, refused, in the absence of sufficient planning grounds favouring the conflict being disregarded.  Whether or not conflict with the Maroochy Plan 2000 plays a similar role, any conflict with it is a relevant consideration, which ought not to be disregarded without sufficient planning grounds.

1. The site consists of two parcels, which had different zoning at the time of the application.  Lot 3 on RP 842054 (.6993 hectares) has a frontage to Karawatha Drive of approximately 210m and was zoned Residential A.  It forms the western part of the site.  Lot 2 on RP 895816 (1.629 hectares) was zoned Special Facilities (Strata Title Residential Villa Development) and has a frontage of 232.492m; it also has a frontage of 21.158m to Golf Links Road.  The missing “corner” block at the intersection (where Karawatha Drive runs roughly east-west, Golf Links Road runs north towards Buderim and continues south-easterly beyond the intersection as Golf Links Road and/or Mountain Creek Road) is 4,195m² in area and the site of a “Professional Centre” with a Gross Floor Area (GFA) of 1,100 m²  Mr McCracken’s report to the Council of April 2001 identifies the Mountain Creek Professional Centre tenancies as two real estate agencies, video shop, carpet cleaning/pest control, home health care equipment supplier, chemist, medical/dental/physio centre and solicitor’s office; if there have been changes, they are not of significance.  Observations that could be made at the time of the court’s inspection on 29 May 2002 confirmed evidence that the site is used to accommodate overflow parking from the Professional Centre.  If Tallenbrook’s development goes ahead, access and ingress can be expected to be integrated, with the benefit, from a traffic planning point of view, that the Golf Links Road ingress/egress will be located further from the busy intersection. 

1. The site, which is long and narrow, is effectively completely cleared.  Along its rear (northern) boundary, apparently off the site, runs an impressive stand of tall trees.  Behind these, at the eastern end, is the Headland Tennis Centre.  The general area seems to be low lying, and characterised by bridged drains; a large drainage channel bisects the site; it is proposed to be bridged, linking within the site a proposed tavern west of that storm water drain (Mr McCracken’s most recent figure for its area is 970m²) with the following free-standing buildings on the east side:

(a)A supermarket (proposed to be Bi Lo) of 2,100 m², a ground floor bottle shop (100 m²), a hairdresser (135 m²), and upper floor offices (100 m²), with a “wing” incorporating (500 m²) additional retail space;

(b)a “retail” building of 350m² ;

(c)230 m² of ground floor retail and 150 m² upper floor offices;

(d)a service station (150 m²);

(e)a hardware centre (300 m²).

There have been changes - for example, Professional Offices have been reduced and a “Nursery” appears to have turned into a larger hardware centre.

1. No one pointed to difficulties in using the site for the residential purposes intended by their zonings, although the lack of depth of the site would appear to limit access to direct access to Karawatha Drive for a considerable number of residences.  West of the Golf Links Road intersection, Karawatha Drive, an important sub-arterial road of four lanes loses its pleasant character created by a substantial grassed median strip with many advanced trees (replicating what is in the gardens of the substantial residential properties on both sides).  West of the intersection, there is no such median strip, the absence of vegetation near the road is striking and the residential development opposite the site determinedly turns its back on the road, to which it presents a 2m fence, being accessed by back roads such as Haddy’s Close, Meandersea Court and Mountain Close.  It seems plain that those who designed the residential development which has happened did not see Karawatha Drive as enhancing amenity (as it does further to the east).  Commercial as opposed to residential development across Karawatha Drive is unlikely to have any adverse impact.  The burden of the evidence is that the new facilities proposed would be welcomed by local residents.

Mountain Creek Centre (Karawatha & Molakai Drive.)	The Meadows Centre (Karawatha & Bringenbrong Street)	Buderim Pines Centre (Oakmont & BuderimPines Driv
General store/sub-news Bottle Shop Real estate agency Butcher Hairdresser/beauty Bakery	7 to 7 Foodmart Bakery Bottle shop Restaurant Hairdresser Solicitors office Accountants office (2) Naturopath	5 Star Handimart Real estate agency Carpet cleaning/pest control Home health care Equipment supplier Takeaway Vacant (was sign-maker)

1. Within a kilometre or two of the site are three “convenience centres”, whose facilities Mr McCracken lists as follows:

“

”

1. Those centres, to which the Professional Centre might be added, although it offers no grocery shopping or other food or restaurant services, provide for some of the basic convenience needs of households in the Mountain Creek area, although, in respect of groceries, the small size of the outlets means that prices tend to be high and product choice and range to be limited.  I would expect Ms Bennett’s assessment along these lines to be representative of the judgments of residents generally.  It is not as easy for her as for others, like Mr Gill, with access to a motor vehicle, to leave the Mountain Creek area in order to access larger food shopping facilities, in particular supermarkets, for weekly or “chore” shopping.  The evidence confirmed recent trends towards more frequent shopping, for example twice weekly, but this does not reduce the requirement of Mountain Creek residents for access to a facility more like a major supermarket.  Cf Landel Pty Ltd and Landex Pty Ltd v Redland Shire Council (Appeal 1363 of 2001) 25 March 2002 and Fernhunt Pty Ltd v Mackay City Council (Appeal 5 of 2001 Mackay, 900 of 2001 Brisbane) 19 April 2002.  Until quite recently, the nearest shopping destinations for major food shopping trips were in Maroochydore (especially at the Sunshine Plaza Regional Shopping Centre and the smaller Big Top Centre) and at Kawana Shopping World in Buddina.  A smaller Coles Supermarket (1,991m²) is now trading at the Mooloolaba Central Centre on Venning Street, just off the Mooloolaba Esplanade.  There is also a new 2,500 m² Woolworths in a larger centre in Buderim which, although more than 5km from the site, would, unlike the other supermarkets in the centres mentioned, compete directly with a supermarket on the site, in Mr McCracken’s view.  Even more distant, and therefore not expected to compete strongly, is another Woolworths-based centre of approximately 5,000m² under construction at Chancellor Park, in the Sippy Downs area, where growth associated with university development is expected.  Mr McCracken regards the Mooloolaba Coles as catering mainly for the large visitor market in its area, as well for its local residents.  I accept Mr McCracken’s views that the centre proposed by Tallenbrook will serve the supermarket and convenience shopping needs of Mountain Creek and also eastern Buderim households by providing a higher level and more comprehensive range of goods and services than is currently available in the smaller centres in the area.  The obvious “primary catchment”, which overlaps that of the three small convenience centres, is bounded by the Sunshine Motorway to the east and south.  Mr McCracken says it is bounded by King Street-Mooloolaba Road to the north and Dixon Road to the west, but that there are secondary catchments extending beyond those roads, and, to the south, another one identified as Bundilla Lakes, bounded by the motorway and the Mooloolah River, which Mr McCracken would see as part of primary catchment, but for the likelihood that, in the future, it will gain a centre of its own.  The catchment population exceeds 17,000, in something like 6,500 households; in the next five years or so, projections look forward to a couple of thousand additional persons in 800 or so additional households.

1. The court was assisted by the evidence of three town planners, Mr Vann, called by Tallenbrook, Mr Brown, called by the Council and Ms Vigar, called by the appellant.  Except in regard to the “pure planning issue”, there was not a lot of difference among them.  Taking Mr Brown as representative, he commented favourably on the proposed expansion on to the site of the existing Mountain Creek Professional Centre by the introduction on the site of a number of related commercial activities or uses convenient to the people they are likely to serve.  As he said (p 139):

“It’s at a central location … within this urban area of Maroochy Shire, it is not only a central location but it’s also at the confluence of two controlled distributor roads which are important roads within the road network.”

Commenting on the “agglomeration” of the development proposed for the site with the existing professional centre and the inclusion of the tavern and services station (which, as seen elsewhere, arguably create problems of size and/or the project’s location in the “retail hierarchy” envisaged in the planning documents), he said at 142:

“There’s a planning need for those things.  This is a suitable location for those things.  It’s difficult to see where else they would go in the locality if they didn’t go here and so having regard to all of that my contention is that this …, if it is seen to be a village centre, is not a reason to refuse it.”

In the end, my view is the same.  However the issue of need or demand for the facilities proposed may be approached, the requirement is clearly satisfied.  I accept, in particular, Mr McCracken’s opinion regarding the tavern in para 2.3 of his report.  There was no serious contention of lack of need for the service station.

Relevant provisions of 1996 Strategic Plan

1. The elements of the 1996 Strategic Plan were the Vision (Articulating the Ideal Being Sought), Key Issues (Summarising the Findings of the Underlying Planning Study and Underpinning the Other Elements), Strategies (indicating how the key issues will be addressed through future development), Preferred Dominant Land Uses, Objectives and Implementation Criteria and a Strategic Plan Map indicating the PDLUs.  The designation of the site was Urban.  The Vision, under the heading Social Equity & Liveability, stated:

“within walking distance of all residents will be a range of commercial, residential … uses, of high standard design, able to accommodate changing community and business needs and provide a focus for the community.

Social equity and liveability also require the provision of adequate and accessible employment in business opportunities, increased accessibility for community facilities, employment, goods and services and a high standard of environmental and visual amenity.”

1. Another heading was Accessibility, introducing the view that “considerable gains can be made by influencing the form, density and mix of uses in urban areas and the way road networks are laid out and designed.”  The vision “is to increase accessibility for all urban residents through the creation of communities served by a safe … road system … focusing on a community centre comprising commercial, residential (etc) land uses appropriate to the community”, which should “be of a residential size to economically support the central core uses and be of a sufficient density and design to provide a safe, walking environment for that community.”  Section 3.0 Urban Development in the 1996 Strategic Plan deals with “development in those areas where residential uses of an urban density dominate and includes those other uses (principally commercial and retail, social and educational facilities and industry) which are required to service the residential areas and are normally integrated components of such areas”.  Key Issues included acknowledgement that growth, if not properly managed, can have serious impacts on character and liveability and costs of infrastructure.  The Urban Strategy includes the following:

“The Urban designation indicates areas existing and preferred for predominantly residential development.  A range of ancillary uses such as commercial and retail, social and education facilities and industry may also be permitted to establish within this designation.
…
Strategies and policies relating to matters such as subdivision design, building siting, the location of commercial, transport and community facilities and the relationship between transport modes will be employed.  These controls are aimed at improving social interaction and accessibility, primarily in new urban areas and commercial centres.”

The relevant PDLU is explained as follows:

“Urban

The Urban designation identifies areas suitable for residential development of varying densities, but allows for retail, commercial, community service and service and general industrial activities required to serve the day-to-day needs of local communities.

The Urban designation may include land which is considered to have significant ecological value and sensitive development options would be appropriate to adequately incorporate this land into the urban fabric with minimal impact.”

1. Implementation of the objective 3.5 (to enhance the amenity of existing and proposed residential areas) includes having regard to:

“.          …

.accessibility to the retail, commercial and community services required by occupants of the proposal;

.the impacts of any commercial development on existing properties and streets …”

and “specific regard to the following when assessing … applications which involve the layout of urban communities”:

“ .          …

.the location of retail and community facilities to reflect their role as the focal point for the community in which they are located …”

An independent Objective is 3.6 – to provide for retail, commercial and service industrial activities appropriate to service the residential communities without compromising residential amenity.  The objective is amplified as follows:

“Local retail, commercial and service uses should be part of the urban fabric, as they can desirably form a part of the community to which they provide a service.  However, they may cause detrimental impacts on residential amenity because of their potential to generate traffic and people movements, to produce noise and smell and to shed light.  The concentration of such activities maximises community focus objectives and localises any potential amenity problems.

IMPLEMENTATION

Council will take into account the following criteria when assessing applications for non-residential uses in Urban areas and Permissible Areas for Rural Residential:

1.Approval is only likely to be granted to retail, commercial and service uses which offer a service only to local communities.  Consideration will be given to the characteristics of the proposed use, including its location and scale, which determine its accessibility to its locality and its ability to service areas beyond an immediate locality and consequently diminish the vital role played by such facilities in providing a community focus and identity.

2.It is envisaged that local retail, commercial and service uses will be concentrated into nodes in urban communities.  In new communities,  these nodes will generally have been established at the planning stage.  In older ones, they may be characterised by the existence of shopping groups or centres which are adequately accessible to a locality.  Applications for retail, commercial and service uses outside these nodes are unlikely to be approved, unless a community is inadequately serviced by existing infrastructure and the opportunity does not exist to effectively provide such services within the node in the future.

3.Consideration will be given to the impacts of noise, dust, smell, light and traffic on neighbouring properties by assessing the nature of the proposed activities, the proposed buildings and site layout, the roads from which access is obtained and the location and design of activity areas, parking areas, access points and sources of noise, smell or light relative to residential neighbours.

4.It is envisaged that local services and service industries will form part of the community nodes.  The Council is unlikely to approve applications for development which may create significant impacts on residential amenity and should therefore be located in designated industrial areas.  Consideration will be given to otherwise unacceptable proposals which can demonstrate compatibility because of the nature of their activities and/or the performance characteristics of the buildings in which they are to be located.”

1. Section 4.0 Retail & Commerce identifies among the Key Issues that:

“a retail hierarchy has formed with:

-     A Regional Centre at Maroochydore as a predominant retail and commercial centre …

-     A sub-regional centre at Nambour …

-     A district centre at Coolum …

-     Traditional retail and commercial town centres in all of the rural towns;

-     Suburban centres at Buderim and Bli Bli which act as neighbourhood centres …

-     Individual shops or shopping groups taking on local functions;

-     A number of tourist centres …”

and that there are “perceived economic and community advantages in recognising and supporting this hierarchy, particularly with respect to the Maroochydore Centre … (and) the demand for additional retail and commercial floor space because of the likely continuation of high population growth in the short to medium term.”  The Retail and Commercial Strategy contains the following elements:  Regional Centres, Sub-Regional Centre, District Centre, Neighbourhood and Local Centres, Town Centres and Tourist Centres.  The pertinent category is:

“ Neighbourhood and Local Centres

·these facilities range from neighbourhood centres, which may comprise a supermarket, convenience shops and some comparison shopping to satisfy the day-to-day needs of discrete residential areas, to corner stores or shopping groups which satisfy occasional, after-hours or emergency needs;

·local and neighbourhood centres are intended to be distributed throughout the Shire in a manner that ensures all residential areas have convenient access to such a centre;

·new centres of this scale, or expansion of them, should, where possible, be clearly associate with a definite local community, be adequately accessible to it and facilitate the grouping of all or most retail, commercial, service and community facilities;

·suitable commercial facilities are those which satisfy the needs of the respective local communities and may include some professional and business offices, community services and recreational facilities;

·the need to limit development to that serving local communities only, is driven by the premise that it strengthens community identity and focus;

·The strategy also envisages the creation of attractive retail and commercial areas through recognition of environmental, cultural and aesthetic factors.  These factors are essential in attracting tourist trade and in maintaining a regional competitive edge.”

1. Having reached this point, one would conclude that the proposed development, considered as a “neighbourhood centre” would be welcomed.  The position becomes more complex when one moves to Objectives & Implementation 4.1 – To Concentrate and Encourage the Growth and Development of the Retail/Commercial Centre Hierarchy, introduced by the following preamble:

“Encouragement of a retail and commercial hierarchy protects the investments made in existing centres and promotes private and public sector confidence in, and public knowledge of, the Council’s continuing commitment to that investment.  It also provides a basis for containing the growth and function of centres, limiting their spread into the residential areas in which they play a fundamental role and facilitating the concentration of certain uses in highly accessible and appropriately serviced areas.”

1. The implementation criteria for assessing applications are then indicated for the different categories of Centre.  There is an indication that additional District Centres may be allowed to establish “if it can be established at the existence of such a centre is necessary to cater for unsatisfied demand or to allow systematic development of a particular area.”  As to Neighbourhood and Local Centres, para 19 is:

“In most cases, sufficient land has already been zoned for such centres.  Council is not likely to approve applications for expanding existing centres or establishing new centres unless genuine public demand can be demonstrated and it can be satisfied without compromising the community identity role played by such centres.”

Other Objectives do not seem to create any problems for the proposal (They are: 4.2 - to minimise the extent of urban commercial development, 4.3 - retail and commercial centres are to be readily accessible to a range of transport modes, 4.5 -  to facilitate high standards of urban design and retail and commercial centres and 4.6 - to encourage the design of buildings and landscapes which relate to their physical context and are user-friendly).  However, there was some discussion regarding 4.4 – to establish retail and commercial centres as the focus of community activity:

“Considerable emphasis has been given to the establishment or creation of communities within urban areas.  The location and design of an appropriate array of land uses is of central importance in creating a focus of community activity.

IMPLEMENTATION

1.When master-planning residential estates, developers are expected to adequately plan for the location and scope of retail, commercial, service and community centres required to service the planned local populations.

2.Local and neighbourhood centres are to act as a focus for local community interaction and are therefore to be located to be readily accessible, by car, bicycle and foot, to the whole area and to discourage patronage from outside the planned community.

3.The centres are to allow for an appropriate range of facilities which may include shops, commercial services, formal recreation space, cultural facilities and in some cases, schools.  Sufficient land is to be set aside for all activities.

4.Appropriate attention is to be paid to issues such as building scale, shared parking, streetscaping and traffic management.

5.Council will ensure that the public components of the centre are developed and maintained in the spirit and character of the centre and where relevant shall undertake works which are culturally, environmentally and aesthetically appropriate.”

1. As I understood it, one issue raised was whether the excellent location of the proposal might not attract people from outside the community.  Common experience says that there will inevitably be incursions; people will travel considerable distances to patronise their favoured hairdressers, doctors, dentists, accountants, even solicitors.  Ms Vigar must be right in saying there is no intention to create anything along the lines of a gated community.  I would not expect any significant amount of additional traffic to be generated by “outsiders” wishing to patronise the tavern or the service station;  the fact is that for activities associated with them, and the proposed centre as a whole, local residents would very likely be using Karawatha Drive and/or Golf Links Road to the same extent whether they used the proposed expanded Centre or were forced to travel elsewhere because the expansion did not go ahead. 

Maroochy Plan 2000

1. No party suggested there was anything in the 1985 Planning Scheme (Exhibit 9) which counted against Tallenbrook’s proposal.  The situation is otherwise in respect of Maroochy Plan 2000.  Volume 2 includes the Strategic Plan, which makes some changes to the 1996 Strategic Plan.  There is a similar emphasis in the Vision on social equity and liveability, transport and accessibility, community and cultural development, urban design, heritage and character.  As to the first, there is a desired environmental outcome of each community “exhibiting a distinctive character and sense of place, and having convenient access to a diversity of housing, shopping and other business services, community and recreational facilities and jobs” (2.3(1)).  Under 2.4 Economic Sustainability, the importance of supporting the principal centre of Maroochydore, “complemented by a hierarchy of lower order centres has suitably accessible locations across the Shire,” is acknowledged.  Desired Environmental Outcome No 5 (“Community, recreational and cultural services” are forthcoming so that “opportunities to create or strengthen local community identity are provided”) is to be implemented by creation of “identifiable urban communities in discrete localities as identified by the Strategic Plan with each locality … displaying a distinctive character and provided with local services that are within convenient walking/cycling distances of dwellings.” 

1. There is no change of present significance in what is set out in relation to Urban Development.  There are some changes in expression.  Thus, 3.3.2 envisages “predominantly residential use” within the Urban allocation but goes on, “a range of ancillary uses such as commercial and retail … may also establish within Urban areas.”  By 3.4.1 “the Urban allocation … allows for retail, commercial … activities required to serve the day-to-day needs of local communities.”  The implementation criteria in relation to the objective of providing for retail, commercial and service activities to service residential communities (3.5.6) have changed somewhat and include the following:

“1.Approval is only likely to be granted to development of retail, commercial and service uses which offer a service only to local communities (other than in the key Regional Centre of Maroochydore) and are consistent with the intent for, and desired character of the Planning Area and Precinct in which it is to be situated.  Consideration will be given to the characteristics of the proposed use, including its location and scale, which determine its accessibility to its locality and its ability to service areas beyond an immediate locality and consequently diminish the vital role played by such facilities in providing a community focus and identity.

2.It is envisaged that local retail, commercial and service uses will be concentrated into nodes in urban communities.  In new communities, these nodes will generally have been established at the conceptual and detailed site planning stages.  In older ones, they may be characterised by the existence of shopping groups or centres which are adequately accessible to a locality.  Applications for retail, commercial and service uses outside these nodes are unlikely to be supported, unless a community is inadequately serviced by existing infrastructure and the opportunity does not exist to effectively provide such services within the node in the future.”

1. Mountain Creek is Planning Area No 5.  It adjoins Sippy Downs in the south, Mooloolaba in the east and Buderim in the north and west.  The site is located right on the boundary with the Buderim planning area and, indeed, for a significant part of the length of that boundary, of which the rear of the site forms part.  The site is in Precinct 2, having a precinct class of Neighbourhood Residential, consistent with the Precinct 13 – Lower Slopes Residential classification of the adjoining precinct in Planning Area No 6 (Buderim). 

1. In 4 - Retail and Commerce, the hierarchy of centres has undergone minor revision.  At the top is the single Regional Centre  - Maroochydore.  There is a single sub-regional centre (Nambour); the one District centre is at Sippy Downs.  Mooloolaba and Coolum (previously contemplated as a district centre) now are collected with the former Town Centres as Village Centres, which are the smallest centres recognised in the Strategic Plan Map.  As the hierarchy is set out, Village Centres have been promoted above Local Centres, whereas, previously, in the 1996 Strategic Plan, Neighbourhood and Local Centres came above Town Centres.  Tourist Centres continue to bring up the rear.  It seems to me that there is no particular significance about the relative placements of the lower order centres.  Village Centres hardly fit neatly into the hierarchy; it seems clear that they are places, typically in country towns, where, historically, there has been some commercial development.  It is reasonable that this has been thought to call for recognition in the planning documents.  It does not seem to me a matter productive of particular concern that a neighbourhood or local centre might be difficult to distinguish from some village centres, or might be larger than some village centres.  Although the description “Neighbourhood Centre” has disappeared from headings, the category is still recognised within 4.3.5 Local Centres:

“4.3.5 Local Centre

·     these facilities range from local neighbourhood centres, which may comprise a supermarket, convenience shops and some comparison shopping to satisfy the day-to-day needs of discrete residential areas, to local convenience centres which include corner stores or shopping groups which satisfy occasional, after-hours or emergency needs;

·     local neighbourhood and local convenience centres are intended to be distributed throughout the Shire in a manner that ensures all residential areas have convenient access to such a centre;

·     new centres of this scale, or expansion of them, should, where possible, be clearly associated with a definite local community, be adequately accessible to it and facilitate the grouping of all or most retail, commercial, service and community facilities;

·     suitable commercial facilities are those which satisfy the needs of the respective local communities and may include community services and recreational facilities, and in the case of local neighbourhood centres, some professional and business offices;

·     the need to limit development to that serving local communities only is driven by the premise that it strengthens community identity and focus; and

·     the strategy also envisages the creation of attractive retail and commercial areas through recognition of environmental, cultural and aesthetic factors.  These factors are essential in attracting tourist trade and in maintaining a regional edge.”

The third, fifth and sixth “dot points” replicate the 1996 Strategic Plan. There may be an imputation that neighbourhood centres have been downgraded by change of the descriptor to “local neighbourhood.” Compare the provision set out in paragraph [20]. As to what such centres may comprise, there is no change.

1. The objective to both “encourage” and “contain” growth centres is preserved.  Implementation criterion 19 remains (renumbered 22).  Mr McCracken’s evidence, supported by that of the lay witnesses, demonstrates the requisite “genuine public demand” and, in my view, justifies the Council’s having approved Tallenbrook’s application. 

1. It is in Volume 3 - Planning Areas, Precincts and Precinct Classes, that, arguably, difficulties might arise.  There are 18 precinct classes, five of which are Residential: Hillslope Residential, Neighbourhood Residential, Mixed Housing, Multi-storey Residential and Sustainable Rural Residential.  There are four Centre Precincts: Town Centre Core, Town Centre Frame, Village Centre and Local Centre as well as such general precinct classes, which may be unique Precincts.  In Vol 3 s 2.2(2) outlines the general intent for residential precincts – predominantly detatched houses.  While in respect of Hillslope Residential “few, if any, non-residential purposes are considered appropriate” (rendering somewhat anomalous the short-lived recognition of the Mountain Creek Professional Centre in Planning Area 6 Precinct 13), so far as Neighbourhood Residential is concerned:

“Non-residential purposes that may be appropriate … include parks, churches, local shops, community facilities, and businesses carried out by residents in their own homes where such business activity does not adversely affect the amenity of the locality by way of noise, traffic generation or otherwise.

Neither industrial nor higher order commercial uses are intended …”

So far as the general intent for Centre Precincts is concerned, by 2.3:

“(4)  LOCAL CENTRE

These precincts are intended to provide for shopping, personal service and community facilities at convenient locations to meet the local needs of residents in each neighbourhood.  Preferred locations for local centres are at the centre of or a gateway/entry to neighbourhoods.  Such Centres are intended to remain small, with higher order retail uses, such as showrooms and shopping complexes, not considered appropriate.  They may be:

·     local convenience centres – serving the day-to-day needs of an immediate locality and having a gross floor area of not more than about 2000 m² of retail and other commercial floor space, or

·     local neighbourhood centres – serving a wider neighbourhood area and having a gross floor area of not more than about 5000 m² of retail and other commercial floor space.

Premises within these precincts are to be sited and designed to be compatible with surrounding residential areas and to protect the amenity of such areas.  Industrial uses are not considered consistent with this intent.

These centres are also the preferred locations for local community facilities such as local parks, community halls, child care centres and churches.”

1. The appearance of GFA limits is relevant, given that some weight ought to be attached to these new provisions.  No party resisted the proposition that the proposed development had to be considered as aggregated together with the existing Professional Centre.  While the proposal, on its own, is not excessive, aggregated with the existing development, it becomes so, on the assumption that insufficient leeway is offered by the expression “not more than about”.

1. The final parts of Vol 3 requiring consideration are those relative to Planning Area No 5 – Mountain Creek, and to an extent, Planning Area No 6 – Buderim.  3.5.2 Vision Statement confirms that Mountain Creek is intended to remain as a predominantly residential area.  3.5.3(1) Location of Uses and Activities provides:

“(d)Local commercial and community facilities are intended to be provided at the existing centres at Cootamundra Drive and Karawatha Drive.  Additional convenience centre facilities may be favourably considered at appropriate locations to serve the urban expansion areas.” 

It is noted in (4)(b) that:

“Karawatha Drive and Mountain Creek Road are the major road connections through the Planning Area (and that) their function as efficient, attractive tree-lined boulevards intended to be protected and enhanced.”

1. Descending to an even more local scale, 3.5.4 (2), dealing with Mountain Creek Central envisages:

“...predominantly traditional houses on lots greater than 600m² in area.

Some smaller lot detached housing, lower density multi-unit dwellings and/or retirement village accommodation may be appropriate on suitable sites which are within easy walking distance (not more than about 250 to 400m) of commercial/community facilities, public transport and/or larger areas of useable open space.

The continued use of the medical centre facilities on Karawatha Drive at McLaren Place is intended.

Otherwise, industrial, rural and other than local/convenience commercial and community uses are generally not considered consistent with the desired character of this precinct.”

1. This is the indication of the “desired precinct character”.  Neither of the two Karawatha Drive Centres referred to is the existing Professional Centre.  Doubtless there was a certain amount of pressure involved when the Shire Council went through the process of “IPA – izing” its Planning Scheme, an outcome achieved conspicuously early.  One of the glitches was the inclusion of reference to the Professional Centre (geographically inaccurately) in Planning Area No. 6. 

1. Another error is the description of a centre at Cootamundra Drive as existing.  (6) is an interesting exercise of the imagination:

“(6) Cootamundra Drive Centre
(Precinct Class = Local Centre)

Intent

This precinct comprises local shopping facilities and parkland serving that part of the Planning Area situated to the east of the Motorway.  The facilities in the precinct are intended to continue serving the day-to-day shopping needs of the local residents and provide useable parkland.  Little, if any, intensification of the centre is expected given the limited size of the catchment and limited accessibility.

Preferred and Acceptable Uses

Preferred uses within this precinct are those referred to in the Table of Development Assessment (refer Vol 1) for the Local Centre precinct class.

Landscape and Built Form

Premises in the precinct should be compatible with the scale and character of premises in their environs.  Any intensification of commercial uses should have regard to maintaining the amenity of the surrounding residential area.

The local parkland should be maintained and if possible improved to enhance its useability, access and attractiveness for nearby residents.”

1. The location indicated is impressively highlighted in dark blue on maps.  At least half of its frontage is to water.  A good deal of its only road frontage, to Cootamundra Drive, is taken up by strata-titled residential development whose existence is not acknowledged.  Otherwise the area is open parkland, with no shopping facilities whatever.  Although the situation was never finally resolved, it seems that that part of the “Centre” not given over to private residential use is State land, administered by the Council.  The park appears well maintained and attractive, it is difficult to see how “intensification of commercial uses” could do other than damage to the amenity of the surrounding residential area.  I would say with some confidence that few (if any) who are alive at the present day will live to see a local centre established in this location.

1. One of the errors made in preparation of Maroochy Plan 2000 was the inclusion of the existing professional centre adjoining the site in Planning Area No. 6 – Buderim (s. 3.6).  In 3.6.4 Statements of Desired Precinct Character it is dealt with in (13) Lower Slopes Residential (Precinct Class = Neighbourhood Residential) as follows:

“Intent
...

An existing local neighbourhood centre (Mountain Creek Professional Centre) is located on the corner of Karawatha Drive and Golf Links Road.  This centre offers a variety of professional services to the surrounding community, and it is intended that this role be continued.

In addition, an existing local convenience centre is located along Karawatha Drive, on Lot 1 RP 210459.  It is intended that this centre should continue as the focus of convenience level shopping for the locality.

Preferred and Acceptable Uses
...
Shops, Fast food, Restaurants, Offices, Medical centres and Veterinarian Clinics may also be appropriate in the local neighbourhood centre located on the corner of Karawatha Drive and Gold Links Road.

In addition the following uses may be considered appropriate when located in the local convenience centre situated on Karawatha Drive:

·Fast food store

·Medical Centre

·Shop.”

The recognition of the Mountain Creek Professional Centre as a local neighbourhood centre, rather than a local convenience centre, ought to be noted.  The local convenience centre referred to (like the other) is located in Planning Area No. 5 and is the one described by Mr McCracken as Mountain Creek Centre.  Adjacent residential development precludes physical expansion.  So far as the other two centres dealt with in his Table set out above are concerned, these are located in Planning Area No. 6 and are dealt with in paragraph (3) Buderim Scarp Residential:

“Two local convenience centres are located within this precinct.  These being located on the corner of Karawatha and Bringenbong Streets and on the corner of Oakmount and Buderim Pines Drive.  It is intended that these uses continue, however no expansion beyond the boundaries of the sites will be supported.”

It is part of Tallenbrook’s case that there is no similar proscription of expansion of the professional centre adjoining the subject site. 

1. The mistakes in locating centres have been noticed and amendments to Maroochy Plan 2000 have been made, as recently as 7 May 2002;  in 3.5.4(2) reference to “continued use of the medical centre facilities on Karawatha Drive at McLaren Place” - facilities in The Meadows Centre (which in fact no longer operate) - being intended is now followed by:

“Shops, Fast Food, Restaurants, Offices, Medical centres and Veterinarian clinics may also be appropriate in the local neighbourhood centre located on the corner of Karawatha Drive and Golf Links Road.

In addition, the following uses may be considered appropriate when located in the local convenience centre situated on Karawatha Drive (near Molokai Drive)

·Fast food store

·Medical centre

·Shop.”

That material has simply been transferred from its original location.  I accept the argument mounted by the Council and Tallenbrook that the uses identified as appropriate in the local neighbourhood centre may be accommodated by physical expansion of the centre onto adjoining land.  I think the omission of the plan to proscribe physical expansion is significant.  Also significant, in my view, is the likely failure of Maroochy Plan 2000 to lead to establishment of any local centre at Cootamundra Drive.  I accept that the court is not the planning authority for the Shire.  The Council, which is, has seen the wisdom of supporting Tallenbrook’s proposal, for which, in my view, there are strong planning justifications. To this point, as one reads through Maroochy Plan 2000, it is difficult to identify any real conflict with that planning scheme.

1. However, Volume 4 contains Planning Scheme Codes.  5.2 Code for Local Centres begins:

“PREAMBLE

(1)Council intends that small-scale centres and “corner stores” be established at suitable sites throughout the Shire to meet the convenience shopping and related day-to-day commercial services needs of local communities.  Such centres are also intended to serve as neighbourhood foci and therefore a mix of local commercial and community facilities is favoured.

(2)Local centres

(a)of up to 2000m² total commercial/business gross floor area are intended to provide convenience shopping to immediately surrounding premises (mainly in residential areas but also some industrial, rural residential and rural areas).  These centres may include convenience shops, local newsagents and service stations; and

(b)being somewhat larger (up to 5000m² total commercial/business gross floor area) neighbourhood centres may be appropriate in coastal urban areas or Nambour to serve larger residential communities which are more remote from existing or proposed higher order centres; and

(c)incorporating local community facilities are desirable.

PURPOSE

The purpose of this code is to assist with achieving Council’s planning intentions for local centres as outlined above, and to provide for such centres to remain at a relatively smallscale and to be developed in ways which protect the amenity of surrounding dwellings.

APPLICABILITY

(1)The provisions of this code apply to development within Local centre precincts, and local centre development elsewhere, which involves:

·Material Change of Use

·Building Work

...

ELEMENTS

(1)         Element:  Site Suitability

OBJECTIVE

To provide for local centres to be established on
suitable sites having regard to accessibility, size and
location, and the desirability of consolidating existing
centres.

PERFORMANCE CRITERIA

ACCEPTABLE MEASURES

P1 Premises must be developed on a site having sufficient area and dimensions to accommodate the building or buildings, associated parking area, service vehicle provisions, and landscaping.

A1.1  A site having an area of at least 800 m² for a single shop.
OR
A1.2   A site having an area of not more than 5000 m² for a single Local Centre

P2 Where consistent with the desired character of the relevant precinct, premises must be developed on a site being conveniently accessible to the population of the catchment area it is intended to serve, ie. a residential neighbourhood, a rural community or an industrial area.

A2.1  Premises are to be developed within or adjoining existing shopping facilities
AND/OR

A2.2  Premises are to be developed on a site adjoining existing community facilities (including schools, community halls, churches).
AND/OR
A2.3  Where consistent with the desired character of the relevant precinct, new local centre facilities are to be developed on a site within convenient walking distance (ie. not more than 400 m) of most surrounding residences that it is intended to serve, at the centre of, or at a “gateway” location to the existing or planned new neighbourhood.
AND
A2.4 Local centres are located at the intersection of two major streets.
AND
A2.5 A local centre is located more than 800 m from any other local centre.

(2)         Element:  Scale of Development and Use

OBJECTIVE

To provide for a scale of development and use compatible

with the character and amenity of the locality, and which

recognises the primacy of the Shire’s higher order centres.

PERFORMANCE CRITERIA

ACCEPTABLE MEASURES

P1 Premises must be developed to a size and nature consistent with the provision of local commercial and community facilities

A1.1  A shop or shops, and any related business premises, are a maximum gross floor area of:

·     2000 m² where recognised as a local convenience centre in the Intent for the Applicable Precinct (or otherwise as provided for by the Strategic Plan), or

·     5000 m² were recognised as a local neighbourhood centre in the Intent for the Applicable Precinct (or otherwise as provided for by the Strategic Plan).

AND
A1.2 Buildings are a height not exceeding 8.5 metres and are one or two storeys unless part of a mixed use development consistent with the relevant precinct.

Other elements with which the appeal was not concerned are Site Layout, Service Areas and Landscaping. 

1. The court was invited to say that, in relation to site suitability, A1.2 in Element 1 must be an error, on the ground that a GFA of 5,000m² is permissible.  There could be no space left for parking, landscaping and other outdoor aspects. 

1. The general location of the Mountain Creek Professional Centre is specifically recognized as a local neighbourhood centre in the relevant Intent.  Further, I agree that the site is “coastal” within 5.2(2)(b), having regard to the configuration of the local government or planning area as a whole.

1. Section 1.2 in the Introduction to Volume 4 explains the codes in a way which indicates that it is not anticipated that the “acceptable measures” will be employed in every situation:

“(2) Purpose

The statement of purpose of each code expresses Council’s planning intent.  For each element of the code, an Objective is given which, for the purpose of development assessment, is to be taken as part of the code’s purpose in relation to that element.

(3)  Applicability

Subject to the relevant provisions of the Act, the development to which the particular code is applicable is identified.  However, there may be circumstances in which the code does not apply to such development, and there may be other codes applicable to the development.

(4)  Performance Criteria

(a)  Performance Criteria are statements of the outcomes to be

achieved in satisfying the stated purpose.  They provide an        
     opportunity for a variety of responses to the design of assessable 
     development.

(b)  (i)  There will be situations where not all Performance Criteria

are relevant.  Development is not required to meet any    
        Performance Criteria that are not relevant.

(ii)  There will also be situations where not all relevant Performance Criteria can be met (eg. where one criterion may be in conflict with another).  In such cases the development application may be approved where Council is satisfied that there are sufficient planning grounds to justify the decision having regard to the purpose of the code and code element.

(5)  Acceptable Measures

(a)  Acceptable Measures are presented as Council’s preferred means of meeting the relevant Performance Criteria.  For assessable development, they are not to be interpreted as prescriptive nor do they preclude other ways of meeting the criteria.  They do however offer a degree of certainty to applicants, Council and the community.

(b)  For some Performance Criteria, there may not be any Acceptable Measures presented.  In such cases:

·assessable development is to use proposal specific means of meeting the criteria, and

·self-assessable development has no compliance requirement.

(c)  Assessable development may be designed in accordance with the Acceptable Measures, or using other measures which still meet the Performance Criteria.   Indeed, applicants may prefer to design using alternative measures for some aspects of the development and Acceptable Measures for others.

(d)  Where Acceptable Measures are not used, the Council must be satisfied that the alternative measures satisfactorily meet the Performance Criteria in keeping with the purpose of the code and code element.”

1. In the present circumstances, failure to comply in terms with the acceptable measures is of little concern to the court.  In terms, the governing performance criteria are met, but this observation requires qualification: insofar as the Preamble and Objectives must be considered they are the source of the appellant’s arguments that the existing centre, when expanded as proposed by Tallenbrook, usurps the intended “primacy of the Shire’s higher order centres” and, in GFA, will be too big.  Bearing in mind that Tallenbrook is entitled to have its application processed under the previous Planning Scheme and Strategic Plan, although weight is given to Maroochy Plan 2000, my view is that the planning considerations ventilated in the appeal point overwhelmingly to the application’s being approved, upon appropriate conditions.  (I am inclined to think one of those conditions ought to expressly require construction by Tallenbrook of a footpath providing residents of the retirement village with safe pedestrian access to the site and adjacent professional centre, in conformity with an undertaking given to Mr Gill, which may well have played an important part in attracting indications of support from him and the great majority of his fellow residents.)

Shopping Complex?

1. The Maroochy Plan 2000 provisions create some difficulty in respect of the indication in Volume 3 2.3 General Intent for Centre Precincts in respect of (4) Local Centre that “such Centres are intended to remain small, with higher order retail uses, such as showrooms and shopping complexes, not considered appropriate.”  The definitions, which are rather difficult to apply in certain situations, are:

“Shop means the use of premises for the display and retail sale of goods to members of the public, hairdressing salons, barber’s shops, video libraries, and premises having a gross floor area of less than 450 square metres that would otherwise be defined as a ‘showroom’.
The term does not include any purpose which is separately defined;

Shopping complex means premises, comprising one or more buildings in the form of an integrated development having a gross floor area of more than 1,000m², established in a coordinated manner, and used mainly for a shop or shops, but also for any one or more of the following purposes:

(a)         Convenience restaurant;
(b)         Fast-food store;

(c)Garden centre (in a tenancy having a total use area of not more than 200 square metres);    

(d)Indoor recreation;

(e)Light industry (in a tenancy having a gross floor area of not more than 100 square metres);

(f)Restaurant;

(g)Medical centre;

(h)Office;”

We have the odd situation that every one of the centres in the general locality discussed in these reasons comes within the definition of “shopping complex”, supposedly an inappropriate use in a local convenience centre or a local neighbourhood centre.  An appropriate practical approach would be against applying the definition of “shopping complex” in all its rigour.  Such an outcome is invited by Volume 1 3.3 which indicates that use definitions apply  “unless the context otherwise indicates or requires”, as opposed to administrative definitions collected in 3.2 which “are considered to have the meanings set out”.  Necessarily, shops are permitted in local centres and a supermarket, even one of the 2,100m² proposed, is a shop.  Mr Hinson submitted that the addition in the same discrete building of other uses made that discrete building a “shopping complex” on its own.  See p. 228.  The appellant’s ability to rely on this point is limited because the provision regarding shopping complexes appears in the General Intent for Centre Precincts, which does not strictly apply to the site.  It is located, of course, in Planning Area No. 5 – Mountain Creek, and assigned to the general Precinct Class of Neighbourhood Residential, the Intent of which is silent as to the appropriateness of development which may meet the definition of a shopping complex.  In the 2000 Plan, some local centres are identified as precincts within planning areas identified in Volume 3 (not the case here) whereas others are identified in the text referable to residential neighbourhoods identified within the planning areas (the case here).  Oddly, of all the centres in Planning Areas 5 and 6 discussed, only the non-existent Cootamundra Drive one is located in a Centre Precinct.  Mr Hinson relied on the Code for Local Centres expressly being made applicable to development within Local Centre Precincts and to local centre development elsewhere:

“So it covers the two categories and it has the 2000 m², the 5000m² references and it has the common objective about small scale and recognising the primacy of the higher order centres” (transcript 229).

1. A specific objection was made based on the size of the supermarket, which Mr Hinson said (225) “will service more than the convenience needs, and that comes out from Mr McCracken’s report; he talks about the weekly and bi-weekly and fortnightly shopping.”  In my opinion what is proposed is consistent with the Plan in Volume 2 4.3.5, whereby local neighbourhood centres “may comprise a supermarket, convenience shops and some comparison shopping to satisfy day-to-day needs of discrete residential areas”, contrast being drawn with “local convenience centres which include corner stores or shopping groups which satisfy occasional, after-hours or emergency needs.”

1. It is the inclusion of the service station (which will not include a workshop, but, according to Mr Vann, “will sell a small range of convenience foods and related products”) and the tavern which at once cause the 5,000m² limits (that is, to GFA and to site area) to be exceeded and also dramatically go beyond the uses expressly (even implicitly) contemplated for a local neighbourhood centre.  In the past, one might have expected to encounter one or both in the column containing prohibited uses within a particular land zoning.  Under the IPA, there are no longer prohibited uses.  Planners wishing to achieve that result may be able to achieve it in other ways, for example by indicating the character required to be achieved and/or maintained in a particular neighbourhood.  Under the IPA system, there may well be imaginative proposals of the present kind, which have to be assessed on their merits, against the planning documents.  As it happens, here, it is not possible to identify any deleterious effects upon the character or amenity of Mountain Creek.  Indeed, the two facilities mentioned, in particular the tavern, are likely to have the effect of enhancing the community, and sense of community in the local area, significantly advancing important aspects of the Vision for the Shire, by providing what is called “focus”.  I am in agreement with Mr Brown’s view that there is no cause to be concerned that the “retail hierarchy” is distorted in some way.  The history of the Strategic Plans suggests it is accidental whether “village centres” come above or below local centres – they are, it seems to me, special or anomalous cases bequeathed by history, and really stand apart from the hierarchy.  I note the provision in s. 4.0 Retail & Commerce of the 1996 Strategic Plan (p. 14) that Town Centres (as they were there called) “are effectively a variation of neighbourhood centres, providing a range of retail and commercial facilities satisfying the needs of the local towns.”  Mr Brown’s evidence was significant support, from a planning perspective, for Mr McCracken’s on need-related issues.

1. If, on analysis, there is conflict with the planning documents, whether Maroochy Plan 2000 (which the appellant contends is the relevant one, Tallenbrook having done much to delay its application’s actually proceeding until after commencement) or, as the other parties contended, the previous planning documents, there are powerful planning reasons for the application’s being approved notwithstanding any such conflict.

1. For the foregoing reasons, the appeal should be dismissed, but the parties will be heard regarding means of dealing with the concern expressed at the end of paragraph [42].