Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd - [2017] QPEC 53

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:
Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2017] QPEC 53

PARTIES:
LIPOMA PTY LTD ACN 002 203 581

(Appellant)

and

LANREX PTY LTD ACN 010 740 191

(Appellant No. 2 of 2016)

and

VICTORIA POINT LAKESIDE PTY LTD
ACN 106 781 757

(Appellant No. 44 of 2016)

and

REDLAND CITY COUNCIL
(Respondent)

and

NERINDA PTY LTD ACN 001 325 720

(Co-Respondent)

FILE NO/S:

4940 of 2015, 2 of 2016 and 44 of 2016

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 September 2017

DELIVERED AT:

Cairns

HEARING DATE:

27, 29 & 30 September 2016 & 7 October 2016

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal allowed.

2.   The development application is refused.

3.   I will hear the parties as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Appeal against approval of major commercial development including a “full-line” supermarket; specialty shops, including retail warehouse (discount chemist); family tavern; medical centre; service station; and parking – retail/commercial component of the appeal - 5.4 km of the major centre – Partly in the Medium Density Residential Zone, Urban Residential Zone, Open Space Zone and the Community Purposes Zone - Designated as partly Medium Density Residential Housing, partly Urban Residential Housing and partly Greenspace Network.

OUT OF CENTRE DEVELOPMENT – Conflict with the scheme – at serious end of spectrum - provision of the necessities of life (food and groceries) - whether unacceptable adverse impacts on the centre network and centres hierarchy.

GROUNDS –- whether the proposal will meet an existing community, economic and planning need - whether the scheme provisions “overtaken by events” - whether sufficient grounds to approve the application despite the conflicts.

Legislation

Acts Interpretation Act 1954, s 14A.

Redlands Planning Scheme 2006.

Sustainable Planning Act 2009 (Qld), ss 242, 314, 316, 324, 326, 329, 462, 493, 495.

Cases

Abacus Funds Management v. Sunshine Coast Regional Council [2012] QPELR 669.

Aldi Stores (A Limited Partnership) vRedland City Council [2009] QPELR 602.

All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155.

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

Bird v Logan City Council [2012] QPELR 502.

Bunnings Building Supplies Pty Ltd v. Redland Shire Council and Ors [2000] QPELR 193.

Cut Price Stores Retailers v. Caboolture Shire Council [1984] QPLR 126.

Degee v Brisbane City Council [1998] QPELR 287.

Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209.

Elfband Pty Ltd and Vanhoff Pty Ltd v Maaroochy Shire Council [1995] QPLR 290.

Fabcot Pty Ltd v Cairns Regional Council [2013] QPEC 38

Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208.

Friend v Brisbane City Council [2014] QPELR 24.

Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435.

Grosser v Gold Coast City Council [2001] 117 LGERA 153.

Handley v Brisbane City Council [2005] QPELR 80.

Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313.

Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] 1 QdR 372.

Hydrox Nominees Pty Ltd v Sunshine Coast Regional Council [2014] QPEC 18.

Intrafield Pty Ltd v. Redland Shire Council [2001] 116 LGERA 350.

JPF Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359.

Kangaroo Point Residents Association Inc v Brisbane City Council [2015] QPELR 230.

Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271.

Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council [2003] QPELR 385.

Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266.

Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302.

Luke v Maroochy Shire Council [2003] QPELR 447.

Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPELR 661.

Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333.

Nordale Management Pty Ltd v Maroochy Shire Council[1995] QPLR 368.

Overton v. Redcliffe City Council [2000] QPELR 250.

Parmac Investments v. Brisbane City Council [2008] QPELR 480.

Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143.

R v Brisbane City Council ex parte Read [1986] 2 Qd R 22.

Roosterland Pty Ltd & its agents v. Brisbane City Council [1986] QPLR 515.

Scurr v Brisbane City Council (1973) 133 CLR 242.

Sellars Holdings Pty Ltd v Pine River Shire Council [1988] QPELR 12.

SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36.

Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85.

Skateway Pty Ltd v. Brisbane City Council [1980] QPLR 245.

Stappen Pty Ltd v. Brisbane City Council [2005] QPELR 466.

Virdian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council [2013] QPEC 54.

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

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

Wheldon & Armview Pty Ltd v Logan City Council [2015] QPELR 640

Wilispap Pty Ltd v. Mulgrave Shire Council [1992] QPLR 51.

Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 Qd R 273.

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

Zappala Family Co v Brisbane City Council [2014] 201 LGERA 82.

ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352.

COUNSEL:
C Hughes QC and N Kefford for the Appellant
KW Wylie for the Respondent
D R Gore QC and J G Lyons for the Co-Respondent

SOLICITORS: McCullough Robertson solicitors for the Appellant
Redland City Council for the Respondent
Anderson Lawyers for the Co-Respondent

The co-respondent developer seeks to uphold the respondent Council’s decision to approve an application for a development permit to reconfigure a lot (1 into 2), and a preliminary approval for material change of use for a mixed use development, including a shopping centre on the corner of Panorama Drive and Boundary Road in Thornlands.

The appellants, who submitted against the application, own and operate three nearby shopping centres, which provide retail, commercial and entertainment facilities in a major centre within the hierarchy of centres located about 3.8km from the land.

The Council defends its decision.

Proposed development

The development application was made under the Sustainable Planning Act 2009 (Qld) (“SPA”) in August 2014 when the Redlands Planning Scheme 2006 (“2006 scheme”) was in force. The draft Redlands City Plan 2015 (‘draft scheme’) was publicly exhibited by the time the Council approved the application on 18 November 2015.[1]
[1]Exhibit 2, vol 3, p. 1.0915.

The development application seeks:

1. a development permit to reconfigure a lot (1 lot into 2 lot subdivision); and

2. a preliminary approval pursuant to s 242 of SPA for a mixed use development that incorporates both residential and centre uses as well as a large green space precinct.

The focus of the appeal was on the retail/commercial component of the appeal, as encapsulated by the expert town planners who agreed:[2]

“The application involves a number of elements, being the proposed retail/commercial centre, the residential component and the reconfiguration component. We agree that there is no issue with the residential component, and we agree that the reconfiguration component is an ordinary consequence of the Preliminary Approval, such that if the appeals were upheld, the reconfiguration component falls away. In essence, it is the retail/commercial component of the application that is of concern in these appeals.”

[2]Exhibit 7 town planning JER p. 14, para 24.

The “retail/commercial” component is intended to comprise:[3]
[3]Exhibit 6 need JER p. 3, para 3, updated by agreement to lease per Exhibit 8 Statement of Zeller p. 2, para 8.

(a) a 4,100m² “full-line” supermarket (proposed as 3,840m² in an agreement to lease with Coles[4]);
[4]Exhibit 8.

(b) 1,600m² of specialty shops, including a 500m² retail warehouse (discount chemist);

(c) a 850m² family tavern;[5]
[5]T3-13/30-35.

(d) a 225m² medical centre;

(e) a 100m² service station; and

(f) parking for 374 vehicles.

The proposed Paradise Gardens Plan of Development shows the various precincts of the proposed development and its layout (subject of evolving commercial negotiations with Coles).[6] The components of the proposed precincts are:[7]

[6]Exhibit 7 town planning JER pp. 10 and 11, Figures 2-3 and 2-4. Exhibit 8 appendix AZ-1.

[7]Exhibit 7 town planning JER p. 9, Table 2.3.

Proposed zone/precincts

Approximate area (ha)

Percentage of site area

Proposed components

Neighbourhood Centre

2.4

38

Supermarket and specialty shops comprising 5,700m² retail and associated uses totalling 1,175m² (tavern, service station and medical centre). Total floor space of 6,875m².

Medium Density Residential Housing – 3b Boundary Road and Panorama Drive

1.4

23

A mixture of 35 (approx.) two-storey, attached and semi-detached terraces, townhouses and duplexes on small lots.

Urban Residential Housing – 4b Panorama Drive

0.2

3

Larger lots along the northeast boundary.

Greenspace – 7e Eastern Wetlands Corridor

1.4

22

Rehabilitated watercourse, detention basin, retained vegetation, market garden, outdoor cafe, “common”, northern boundary buffer. The irrigation dam would be drained

Access Road

0.85

14

Collector Road. To be a public road.

TOTAL

6.25

100

In effect the proposed centre development will require code assessable development applications to the council, and may be refused or approved subject to conditions necessary to mitigate any potential impacts. Of particular relevance in this case are:

(a)a “hotel” use is code assessable if in the Neighbourhood Centre precinct and 850m² or less (otherwise it is impact assessable);[8]
(b)a “shop” is in certain circumstances self-assessable, code assessable (if less than 5,700m² and in the Neighbourhood Centre precinct) and otherwise impact assessable;[9] and
(c)a “service station” is code assessable in the Neighbourhood Centre precinct (otherwise impact assessable).[10]

[8]Exhibit 2, vol 3, p. 1.0937.

[9]Exhibit 2, vol 3, pp. 1.0941-1.0942.

[10]Exhibit 2, vol 3, p. 1.0941.

The applicant seeks to vary the 2006 scheme by altering the levels of assessment for development within the various precincts, and specifying the assessment criteria for such development.[11]

Land

[11]Exhibit 2, vol 3, pp. 1.0931 and 1.0945: preliminary approval p. 4 s.5.15.5 and p. 18, s.5.15.6.

The land subject of the proposal has an area of 6.254 hectares. It is located at 128-144 Boundary Road, Thornlands, on the north-western corner of Panorama Drive and Boundary Road, and is described as Lot 3 on SP 117065.[12]
[12]Exhibit 1- aerial photography at pages 1 – 3, and Exhibit 7 Joint Town Planning Report, p 7, Figure 2.

The land is situated at the junction of two major roads, namely Boundary Road (a four lane divided State controlled road) and Panorama Drive (with two to four lanes). These roads are facilitate bus routes 270, 273, 274, 276, 279, 280, 281 and N250, and bus stops outside the land.

The land is currently used for a market garden.[13] Nostalgically, the proposal includes a market garden and café in acknowledgment of the history of the land.[14]
[13]Exhibit 7 Joint Town Planning Report, p 8.
[14]Exhibit 10; T3-13/1-25; Nostalgia based on personal reasons or circumstances are not relevant grounds: SPA, s.326(1) & definition of “Grounds” in Schedule 3.

The surrounding land uses comprise:[15]
[15]Exhibit 7 Joint Town Planning Report, p. 7.

(a) To the north - Established low density residential development with blocks vary from 1800m² to 4,000m²accessed by Milner Place.

(b) To the east - Panorama Drive and low density residential subdivisions in the Park Residential Zone and Low Density Residential Zone.

(c) To the south - Boundary Road, larger rural residential blocks zoned Rural and Sheldon College. Designated as an Integrated Employment Area under the 2006 scheme and as a Future Urban Growth Investigation Area under the draft scheme. It is also within the Rural Landscape and Regional Production Area under the South East Queensland Regional Plan 2009-2031.[16]

(d) To the west - Land zoned for urban development under the Kinross Road Structure Plan. Current flower production occurs in greenhouses immediately to the west. Opportunity for future westerly connection with the development of sites adjoining the Nerinda site.

[16]Exhibit 13 Town Planning Report of Mr Schomburgk, p 5 [21].

The land is about 3.8 km west of the Victoria Point Major Centre, which includes:[17]

[17]Exhibit 6 need JER p. 36, Table 5.

Centre Name

Estimated lettable area (m²)

Major tenants

Total Shops (No.)

Vacancies as at May 2016

Shops (No.)

Area (m²)

Vacancy rate (%)

Victoria Point Shopping Centre

26,936

Kmart, Coles, Woolworths

110

10

1,042

3.9

Towncentre Victoria Point

26,080

Bunnings, Woolworths

36

2

534

2.0

Victoria Point Lakeside

25,000

Cineplex Cinemas, Aldi, Lincraft

85

12

1,312

6.6

The land is 5.4 km south of the Cleveland Town Centre; and, more broadly, 25km east of the Brisbane central business district.

Planning Treatment

The 2006 scheme was in force at the date the development application was made to the Council. Under the provisions of the scheme, the land is:

(a) Partly in the Medium Density Residential Zone – Sub Area MDR5; partly in the Urban Residential Zone – Sub Area UR1; and partly in the Open Space Zone and the Community Purposes Zone – Sub Area CP7 (road);[18] and

(b) Designated under the Kinross Road Structure Plan as partly Medium Density Residential Housing, partly Urban Residential Housing and partly Greenspace Network.[19]

[18]Exhibit 7 Joint Town Planning Report, p 7; Exhibit 2, vol 1, p. 1.0128: Report submitted to the Council p. 104.

[19]Exhibit 7 Joint Town Planning Report, p 4 [4]; Exhibit 2, vol 1, p. 1.0047: Report submitted to the Council p. 23.

Part of the land, at the corner of Panorama Drive and Boundary Road, has the benefit of a development approval (subject to conditions) dated 3 April 2013 for a commercial centre of 1,000 m²gross floor area.[20]
[20]Exhibit 7 Joint Town Planning Report, p 4 [5]; Exhibit 2 Appeal Book, Vol 3 Tab 33 – Approval.

The draft scheme was publicly exhibited between 20 September 2015 and November 2015,[21] being a year after the Council issued the acknowledgement notice for the development application on 29 September 2014. The Council approved the proposed development on 18 November 2015.[22] The draft scheme has not yet commenced and the likely commencement date is unknown. The draft scheme effectively replicates the current zoning pattern of the Kinross Road area with the land zoned a mixture of medium density residential, low-medium density residential, and open space.[23]
[21]Exhibit 7 town planning JER p. 45, para 127.
[22]Exhibit 2, vol 3, p. 1.0915.
[23]Exhibit 7 Joint Town Planning Report, p. 47, para 136.

It seems to me that the draft scheme ought be afforded due weight.

Legal framework

The appeals were commenced pursuant to s 462 of SPA.

The appeals are by way of a hearing anew.[24] The court must assess the development permit component of the application in accordance with ss 314 of SPA and decide the application in accordance with ss 324 and 326 of SPA. For the preliminary approval component under s 242, the assessment must be in accordance with ss 314 and 316 of SPA, and the decision must accord with ss. 323, 327 and 329 of SPA
[24]SPA ss 462 & 495.

Pursuant to s 495(2)(a) of SPA the appeal must be decided based on the laws and policies in force on the date the application was made in August 2014, although weight may be given any new laws and policies that the court considers appropriate.[25] The 2006 scheme was in force when the application was made and is applicable to the assessment. The draft scheme was publicly notified before the appellant’s development application was approved.
[25]SPA s 495(2)(a).

Pursuant to s 314(3)(b) of SPA, the court must also assess the development application having regard to development approvals for the land,[26] here being the current development permit for a shopping centre with a GFA of over 1,000m².[27] The land has, since the commencement of the 2006 scheme on 30 March 2006,[28] been identified for centre uses either by way of zoning or development approvals except for 14 months.[29]
[26]Abacus Funds Management v. Sunshine Coast Regional Council [2012] QPELR 669, 676 [20].
[27]Exhibit 7 Joint Town Planning Report, p. 13, paras 20-21.
[28]Exhibit 4C.
[29]T4-56/45, T4-57/25-30 and Exhibit 29.

Pursuant to ss 326 and 329 of SPA the decision must not conflict with the planning scheme unless there are “sufficient grounds” to justify that decision despite the conflict. The word “Grounds” is defined in Schedule 3 of SPA in respect of s. 326(1) as:

“1. Grounds means matters of public interest.
2. Grounds does not include the personal circumstances of an applicant, owner or interested party.”

In Weightman v Gold Coast City Council,[30] in considering a similar requirement to s 326 of SPA in the repealed Local Government (Planning and Environment) Act1990, Atkinson J observed:

“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s. 4.4(5A)(b) of the P&E Act, the decision maker should:
1.    examine the nature and extent of the conflict;
2.    determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3.    determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”

[30]Weightman v Gold Coast City Council [2003] Qd R 441, [36].

The co-respondent bears the onus of establishing that the appeal should be dismissed.[31]

Appeal Issues

[31]SPA, s 493(1)

The appellants have identified the issues in their various notices of appeal, including issues of: general amenity, acoustic and lighting;[32] landscaping treatment;[33] ecology including koala issues;[34] traffic[35] including traffic safety;[36] town planning; [37] and need.[38]
[32]Exhibit 3: p. 4, paras 4(p)-(q); p. 15, para 8(f) (Lakeside) and pp. 40-41, paras 1-3.
[33]Exhibit 3: p. 15, para 8(f).
[34]Exhibit 3: p. 24, para 2(h)(ii).
[35]Exhibit 3: p. 3, paras 4(n)-(o); p. 9, para 16; pp. 14-15, para 8(e).
[36]Exhibit 3: p. 3, para 4(m); pp. 14-15, para 8(f).
[37]Exhibit 3: pp. 2-4, paras 4(a)-(d),(f)-(h),(j),(r)-(t); pp. 7-8, para 13; p. 14, paras 8(a)-(d).
[38]Exhibit 3: p. 3, paras 4(k)-(l); Lanrex notice of appeal paras 14-15; p. 15, paras 8(g)-(h).

The issues about landscaping and acoustic treatment along Boundary Road and Panorama Drive frontages, amenity, impact on local koala populations, and traffic, are no longer pressing many of these issues as grounds warranting refusal. The appellants properly acknowledge that these issues are not enough to warrant refusal.[39]
[39]Exhibit 3, p.47.

No issue is taken with the proposed residential component and reconfiguration of a lot, but the retail/commercial component is disputed, with particular focus on the proposed full-line supermarket based centre with associated retail and tavern uses. [40]
[40]Exhibit 7 Joint Town Planning Report, p. 14, para 24.

The disputed issues can be synthesised as follows:

(a) The nature and extent of the conflict with the 2006 Scheme including:

(i) Desired Environmental Outcomes;

(ii) The Strategic Framework;

(iii) The Kinross Road Structure Plan;

(iv) The zones including Neighbourhood Centre Zone, Medium Density Zone, Open Space Zone, Urban Residential Zone and the Community Purposes Zone.

(b) The nature and extent of the conflict with the draft scheme;

(c) The nature and extent of the conflict with the South East Queensland Regional Plan 2009-2031 (“SEQRP”);

(d) Whether there are sufficient grounds to justify the approval despite the conflicts having regard to:

(i) The need for the development;

(ii) Commercial, traffic and amenity impacts of the development;

(iii) Whether the 2006 scheme has been overtaken by events.

The broad planning issues are whether the proposed centre is too big and in the wrong place, having regard to the network and hierarchy of centres, and whether there are sound planning reasons to depart from the planned network of centres in the 2006 scheme.[41]

Nature and extent of conflict with the planning scheme

[41]Exhibit 13 p. 2, para 9; see also Exhibit 7 town planning JER p. 65, para 204

It is necessary to identify any conflict between an approval and with the planning scheme, and if so, consider the nature and extent of the conflict taking a sensible approach and regarding the scheme as a whole.

Any conflict must be “plainly identified”.[42] The term “conflict” was considered by the Court of Appeal in Woolworths Ltd v Maryborough CC (No. 2),[43] where Fryberg J said:

“‘Conflict’ in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike ‘compromise’ in para. (a), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that ‘the assessment manager’s decision must not … conflict with the planning scheme’ requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.”

[42]Fitzgibbon Hotel Pty Ltd v Logan City Council [1997] QPLER 208, [212].

[43]Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 QdR 273, [23].

In Lockyer Valley Regional Council v Westlink Pty Ltd,[44] the Court of Appeal discussed and affirmed the Weightman test. Later, in Kangaroo Point Residents Association Inc v Brisbane City Council,[45] the Court held at [69]-[70]:

“A useful starting point for such interpretation is to consider the approach of de Jersey CJ, with whom Muir JA and Douglas J agreed, in Stockland Development Pty Ltd v Townsville City Council & Ors. There, after noting that the first instance approach to the application of the scheme to the developer’s proposal involved ‘a correct interpretation of the language of the scheme’ and ‘a factual conclusion as to the absence of conflict,’ de Jersey CJ stated that it was a mistake to think that the construction of town planning schemes can or should be attended by the precision and certainty which should characterise the construction of contracts and statutes, because good town planning, basic principles aside, depends on a large element of fluidity and flexibility: at 324 [25]-[26].
But that approach does not mean that the same general principles which apply to statutory construction do not apply to the construction of planning documents. This was the concern of the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council & Ors. There, Morrison JA, with the concurrence of McMurdo P and Douglas J, authoritatively stated that the correct approach to statutory interpretation must begin and end with the text itself, while at the same time bearing in mind that the modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, using ‘context’ in its widest sense: at 95 [55] (with citations omitted). Where the flexibility and fluidity must then occur, consistently with Morrison JA’s analysis, is by appreciating that such documents need to be read in a way which is practical, to be read as a whole, and to be read as intending to achieve balance between outcomes: at 95 [56]. In this understanding of such need, Morrison JA expressly adopted statements by Chesterman JA in AAD Design Pty Ltd v Brisbane City Council, to the effect that: planning schemes, and the definitions found in them, often lack clarity, contain ambiguities, and sometimes appear contradictory; and attempts to make sense of them gives rise, on occasions, to ‘expressions of judicial exasperation:’ at 96 [57]”.

[44]Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 QdR 302, 322-323; Hydrox Nominees Pty Ltd v Sunshine Coast Regional Council [2014] QPEC 18, [14].

[45]Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64.

In considering the principles relevant to the construction of planning schemes, the matters enunciated by Britton SC DCJ in Westfield Management Ltd v Pine Rivers Shire Council [2009] QPELR 337 remain apposite:

(a) They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach;[46]
[46]ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352, 360; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 340, 342, 345; Harbug Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 318.

(b) They should be construed as a whole;[47]
[47]Luke v Maroochy Shire Council [2003] QPELR 447.

(c) They should be construed in a way which best achieves their apparent purpose and objects;[48]
[48]Luke v Maroochy Shire Council [2003] QPELR 447; Nordale Management Pty Ltd v Maroochy Shire Council[1995] QPLR 368, 370; Acts Interpretation Act 1954, s 14A.

(d) In the light of the proscription against prohibiting development;[49]
[49]IPA, s 6.1.2(3).

(e) Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate;[50] 
[50]Degee v Brisbane City Council [1998] QPELR 287.

(f) A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved;[51] 
[51]Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266, 272 ; (1994) 83 LGERA 224, 230; [1994] QPLR 318, 322.

(g) A Strategic Plan should be read broadly and not pedantically;[52] 
[52]Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306.

(h) Although planning documents have the force of law they are not drawn with the precision of an Act of Parliament; 

(i) A conflict alone may not have the effect of ruling out a particular proposal.[53]

[53]Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, 212.

2006 Scheme

The 2006 scheme took effect from 20 March 2006. Section 3.1.1 provides, rather unusually, that the “effective life” of the scheme is a “period of 8 years from the date of commencement”.[54] That is, March 2014, but of course it remains in force until repealed when a new scheme is in force.
[54]Exhibit 4, vol 1, p. 26: 2006 planning scheme s.3.1.1(3).

The 2006 scheme is divided into 12 parts. Of particular relevance are the higher order provisions in Part 3, including the Desired Environmental Outcomes and Strategic Framework, and also Part 4 containing the zones.

Desired Environmental Outcomes

DEO no. 6 which relates to economic development and relevantly provides:[55]
[55]Exhibit 4, vol 1, p. 30: 2006 planning scheme part 3, division 1, p. 5 (with my bolding)

“(1) Redland Shire has a diverse, dynamic and sustainable economy with increasing levels of employment opportunity through -
(a) a network of multi-purpose centres where -
(i) development occurs in accordance with Redland Shire’s Centre network, where,
a. Capalaba and Cleveland are recognised as Principal Activity Centres under the South East Queensland Regional Plan, and together with Victoria Point are located within the Major Centre zone to accommodate the key concentrations of higher order retail, commercial, residential, administrative, community and entertainment uses and employment mix;
b. Birkdale and Alexandra Hills are district centres;
c. Wellington Point, Redland Bay, Mount Cotton Village, Dunwich and Colburn Avenue, Victoria Point are neighbourhood centres.

…
(iii) the City centres are geographically defined by the extent of the Centre zones in the case of District, Neighbourhood and Local Centres and Diagram 12 Capalaba Principal Activity Centre, Diagram 13 Cleveland Principal Activity Centre and Diagram 14 Victoria Point Major Centre.
(iv)the primacy of the City’s centres network shall be protected by discouraging out of centre development outside of the centre areas identified in (i) above. …”

A “Centre” is defined to mean “the City Centres geographically defined by the extent of the Centre Zones in the case of District, Neighbourhood, Local, Point Lookout and SMBI Centres and Diagram 12 Capalaba Principal Activity Centre. Diagram 12 Cleveland Principal Activity Centre and Diagram, 14 Victoria Point Major Centre as depicted in Part 3: Division 2 Strategic Framework of the Redlands Planning Scheme.”[56]
[56]Exhibit 4, vol 1, p. 30: 2006 planning scheme part 3, division 1, p. 6.

In DEO 6 the “Redland City’s Centre network” prescribes for differing levels of centres, including Major, District, Neighbourhood and Local centres. Here, the co-respondent characterises the proposed centre as a “Neighbourhood Centre” with a total floor space of 6,875m², comprising a full-line supermarket and specialty shops comprising 5,700m² retail and associated uses totalling 1,175m² (tavern, service station and medical centre).

In s 4.15.7(2) of the Overall Outcomes for Neighbourhood Centre Zone Code, the characteristics of the Neighbourhood Centre includes:

(a) Centre uses to service residential and tourist catchments up to 5000 people in sub-area NC1 and 10,000 people for other areas in the zone;

(b) Meet community needs to serve neighbourhood catchments;

(c) Limited size and scale of retailing activities, proportionate to catchment zone;

(d) Includes mini supermarket, speciality stores, refreshment establishments, limited commercial activities and limited community services.

By comparison, a District Centre (which sits between a Neighbourhood Centre and a Major Centre servicing catchments greater 50,000 people), according to s 4.4.7(2) Overall Outcomes for Distirct Centre Zone Code, has characteristics to provide for a range of uses that (among other things):

(a) Meet demonstrated community needs to serve a district sized catchment;

(b) Includes supermarket, specialty stores, commercial activities and community services.

More like a District Centre, the proposal seeks to develop the largest Coles full-line supermarket, and the second largest full-line supermarket, in the Redland City local government area. It will be smaller than the Woolworths at Capalaba Central,[57] which is part of a Principal Regional Activity Centre under the South East Queensland Regional Plan 2009-2031 and is designated as a Major Centre in the 2006 scheme.
[57]T2-2/L44-47 (McCracken).

The term “Out of centre development” is defined in the 2006 scheme as ‘A location that is clearly separate from a centre’, with the notation that ‘land is zoned with the word “centre” in the title is a centre for the purposes of the planning scheme.[58] The subject land is not included within any geographically defined centre zones and can only be characterised as out of centre development.
[58]Exhibit 4, vol 1, p. 285 - 2006 planning scheme, part 9, division 2, p. 16 - “Out of centre development”.

The appellant argues that the proposed development conflicts with DEO 6, because the proposed development does not protect the City’s centres network in the manner required in that it involves out of centre development; and retail development of a size and function not supported in the locality.

Whilst, the co-respondent accepts that the proposed development would represent out of centre development, it argues that the proposed development does not affect the “primacy” of the centres network, as the centres referred to in the DEO will retain their role and function as higher order centres, regardless of whether the Court grants the approval the subject of this appeal. Further, it points to the term -“discouraging”, (in relation to out of centre development in DEO 6 (iv)) as not the strongest possible language, the stated 8 year “effective life” of the scheme, council’s earlier approvals of out of centre development, and approvals of large centres for existing centres.

Even so, it seems to me that the conflict with the 2006 scheme is plain and significant since the proposed centre is not contemplated by the scheme in it’s location, scale or function, and is ‘out of centre development’. In my view, the proposed development would:

1. Result in an additional centre inconsistent with the 2006 scheme’s planned centre network;[59] and

2. Impact upon the City’s planned centre-driven economic and employment opportunities at Cleveland and Victoria Point.[60]

[59]Lanrex Grounds [13(a)]; Victoria Point Grounds [8(a)]; and Lipoma Particulars [2(a)].

[60]Victoria Point Grounds [8(g)].

Strategic Framework

The appellants also assert conflict with provisions of the strategic framework, particularly, ss. 3.2.3 and 3.2.4(5), and diagrams 2 & 3.[61]
[61]Exhibit 3: p. 8, para 13(b); Exhibit 3: pp. 21-23, paras 1(b) & (c) and 2(b) & (c); and Exhibit 3: p. 14, para 8(a).

Section 3.2.3 of the Strategic Framework, which relevantly states (using the appellant’s bolding):

“3.2.3 Strategies for the City
(1) Urban Settlement Pattern and Population Growth -
(k)The development of centres is in accordance with a functional network, with the major centres at Capalaba, Cleveland and Victoria Point. These areas will accommodate the primary concentrations of higher order commercial, retail, administrative, community and entertainment facilities. Both Capalaba and Cleveland are recognised in the Regional Plan as Principal Activity Centres which service catchments of sub regional significance and accommodate key concentrations of employment.
…

(3) Centres -
(a)The Redlands Planning Scheme encourages the development of centres in accordance with a functional network, with individual centres of varying level differentiated from one another on the basis of a centres matrix that distinguishes centre role and function, scale and use composition. The geographical extent of each of the larger centres is defined by Diagram 12 Capalaba Principal Activity Centre, Diagram 13 Cleveland Principal Activity Centre and Diagram 14 Victoria Point Major Centre. The extent of other smaller centres is determined solely by the extent of the relevant centre zoning(s) in that area.
…

(h)District centres at Birkdale, Alexandra Hills and Redland Bay provide for the commercial and retail needs of surrounding district catchment population of approximately 15,000 persons. The extent of these District Centres are geographically defined on the zoning maps by the District Centre zone.
(i)Neighbourhood centres are located at Wellington Point, Redland Bay, Mount Cotton Village, Dunwich and Colburn Avenue – Victoria Point. These centres are intended to fulfil a traditional village centre role. They provide for neighbourhood commercial and retail needs of a catchment population generally up to 7,500 persons, except Mount Cotton Village and Colburn Avenue – Victoria Point where the catchment size is reduced to reflect location circumstances. Retail and commercial activity within these centres is to encompass mini-markets, specialty shops, and limited commercial premises. Full-line supermarkets are inconsistent with the intended role and function of these centres and accordingly are not considered appropriate. The extent of Neighbourhood Centres are geographically defined on the zoning maps by the Neighbourhood Centre zone.
(j)All remaining centres in the City are local centres. Local centres are encouraged to develop in locations zoned for such purposes.
(k)The Redlands Planning Scheme actively protects the primacy of the City’s centres by discouraging out of centre development – that is, development outside of the geographical extents of the larger centres as shown in Diagrams 12-14 and the extent of the centre zonings in other centres – and ensuring no existing centre expands to the next level in the centre’s matrix by virtue of size or function.”

Section 3.2.4(5)(b), with respect to the Kinross Road Structure Plan Area[62] provides as follows (using the appellant’s bolding):
[62]Exhibit 4 Planning Scheme Extracts, Vol 1 p 54 (emphasis added).

“3.2.4 Local Level Strategies applying to certain parts of the City

(5) Kinross Road Structure Plan Area
(b)Overall development intent and vision statement
(i)Vision for the Kinross Road Structure Plan Area – “The Kinross Road Structure Plan Area is a sustainable, integrated and well planned urban community accommodating a range of dwelling types, integrated movement and public open space networks and a range of local community, commercial and retail facilities. The Kinross Road Structure Plan Area has a distinct sense of place and community built upon a strong respect for the natural environment including Hilliards Creek, flood affected areas, bushland habitats and fauna movement corridors.

The integration and land uses and transport infrastructure ensures the community enjoys a range of travel choices including pedestrian and cycle networks, public transport and private vehicles. Internal linkages ensure good access to the Mixed Use Local Centre Precinct, Community Facilities Precinct and Greenspace Precinct. External linkages ensure strong connectivity to higher order retail, employment and community facilities at Cleveland, Capalaba and Victoria Point.
…
Urban areas within the Kinross Road Structure Plan Area are attractive and functional neighbourhoods with convenient walkable access to public transport. The Mixed Used Local Centre Precinct, in combination with the Community Facilities Precinct and local recreation park creates a community hub and focal point for the urban community.
Urban form in the Kinross Road Structure Plan Area is typified by a range of residential densities and building heights, with the greatest densities located in proximity to the Mixed Use Local Centre Precinct. A diversity of dwelling types provides housing choice and improved affordability within a unique urban form that enjoys the amenity and values of the surrounding environment.
….

(e)Land Use Precincts Strategy – Mixed Use Local Centre Precinct (Precinct 1)
(i)The Mixed Use Local Centre Precinct will provide convenience shopping catering for the local resident’s day to day convenience needs, commercial employment opportunities and residential accommodation in a vibrant central hub of community activity.

(ii)Outcomes for the Mixed Use Local Centre Precinct include:
a.providing limited retail and commercial services to meet the convenience needs of surrounding residents;
b.providing for small scale commercial offices or service industry activities that encourage and support local employment opportunities while respecting and protecting the amenity of adjoining housing precincts;
c.exhibiting the basic characteristics of a transit orientated community by integrating land uses and public transport infrastructure;
d.providing, in association with the adjoining Community Facilities Precinct, local recreation park, pedestrian and cycle network and bus stop, a focal point for the urban community;
e.providing opportunity for medium density housing above the ground story;
f.ensuring the built form incorporates:
§ sustainable sub-tropical building design in a mid-rise form; and
§ active street frontages on the ground level.
g.ensuring site planning and building design addresses the Greenspace Precinct and facilitates connections to the adjoining local recreation park;
h.demonstrating principles of Water Sensitive Urban Design;
i.managing urban stormwater and wastewater quality and flows to protect receiving water quality and improve waterway stability through construction and operational phases to meet the design objective.

….

(g)Sub-Precinct 3a Medium Density Residential Housing – Kinross Road:
§is designed to maximise views and outlook across the adjoining Greenspace Precinct;
§supports an increased density of dwelling units in proximity to the Mixed Use Local Centre and Community Facilities precinct;
§incorporates pedestrian and cycle pathways which provide convenient linkages to the Mixed Use Local Centre Precinct, Community Facilities Precinct, Greenspace Precinct and bus stops; and
§supports development in a mid-rise (3 storeys) built form.

(h)Sub-Precinct 3b Medium Density Residential Housing – Boundary Road and Panorama Drive:
§provides low-rise medium density residential development in close proximity to line haul bus services along Boundary Road and Panorama Drive;
§provides physical breaks in the built form to facilitate convenient pedestrian access to the public transport services along Boundary Road and Panorama Drive;
§incorporates acoustic treatments and building setbacks which mitigate noise impacts from Boundary Road and Panorama Drive;
§ensures consistent acoustic treatments incorporate high quality landscaping design and façade treatments that are visually attractive to address acoustic requirements and provide a transition to the rural land to the south of Boundary Road included in the Regional Landscape and Rural Production Area of the SEQRP 2009-2031; and
§limits development to a low-rise (1-2 storeys) built form”

The proposed development is inconsistent with the 2006 scheme’s Strategic Framework as identified by the appellant, in that:

1. The development would result in an additional centre inconsistent with the Scheme’s planned centre network;[63]
[63]Lanrex Grounds [13(b)(i)-(ii)]; Lipoma Grounds [2(b)(i)-(ii)].

2. The development would potentially jeopardise the ability of higher order centres to function at the level intended by the centres hierarchy;[64]

3. The development is inconsistent with the intention for the land to be utilised for medium density residential housing (sub-precinct 3b), urban residential housing (sub-precinct 4b) and green space network (sub-precinct 7(e));[65] and

4. The development would jeopardise the ability for the planned local centre in the Kinross Road Structure Plan area to properly function.[66]

[64]Lipoma Grounds [(2)(b)(iv)].

[65]Lanrex Grounds [13(b)(iii)-(iv)]; Lipoma Grounds [2(b)(iii)].

[66]Lipoma Grounds [2(c)].

However, I accept the co-respondent’s argument that the 2006 scheme expressly and effectively excludes these Strategic Framework provisions from the assessment of the proposed development. Section 3.2.1(2) of the 2006 scheme provides:[67]

“The Strategic Framework does not have a role in the development assessment under the Redlands Planning Scheme.”

[67]Exhibit 4, vol 1, p. 32: 2006 planning scheme part 3, division 2, p. 1.

In Viridian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council,[68] Robin QC DCJ considered a similar provision in circumstances where a council alleged conflict with the Strategic Framework. His Honour said at [20]:

“The Council relies on 1.7.8 Visitor Facilities in the strategic framework which introduces the planning scheme. It provides that ‘(a) Noosa Heads and Noosaville will remain the principal focus of visitor accommodation with some sites protected for the exclusive use of visitor accommodation.’ Telling against that provision constituting a relevant basis for a finding of conflict is 1.3.2: ‘This division does not have a role in development assessment under the planning scheme.’ Conflict is something to be established with reasonable clarity, and in the circumstances I do not consider that it exists with either of the provisions set out above, although the Council sought to rely on it in that regard…”

[68]Viridian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council [2013] QPEC 54.

I agree. Since the Court in a merits appeal “stands in the shoes” of the local government as the assessment manager,[69] I conclude that the appellants’ reliance upon conflict with the Strategic Framework provisions is rendered impotent by s 3.2.1(2) of the 2006 scheme. I do rely upon any conflict in this regard.
[69]Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333, [59]-[60]; see also Wheldon & Armview Pty Ltd v Logan City Council [2015] QPELR 640, [40]-[44].

The zones

The appellants also contend conflict with the zone provisions as follows:

(a)overall outcomes for the Community Purposes Zone, particularly ss 4.2.7(2)(a)(i)g. and 4.2.7(2)(a)(ii), and Specific Outcomes S1.1 and S1.2 for the Community Purposes Zone; and
(b)overall outcomes for the Medium Density Residential Zone, particularly ss 4.14.7(2)(a)(i)i. and j., and overall outcomes for the Kinross Road Structure Plan Area Overlay, particularly ss 5.15.8(2)(b)(i)k.

The Overall Outcomes for Medium Density Residential Zone Code, include (using the appellant’s bolding):

(i)Section 4.14.7(2)(a)(i) i and j:[70]
“Provide for a range of residential uses that -
…
i.in sub area MRD5 – provide for permanent residential uses including multiple dwellings, tourist accommodation and aged and special needs housing with no direct vehicular access from Boundary Road.
j.in sub area MDR5 – non residential uses are highly restricted to protect the higher order function of Boundary Road as a primary road link between the City’s southern districts and Brisbane.”
[70]Exhibit 4 Planning Scheme Extracts, Vol 1 p 93 (my bolding).

(ii)Section 4.14.7(2)(a)(ii):[71]
“Provide for a range of non-residential uses that -
[71]Exhibit 4 Planning Scheme Extracts, Vol 1 pp 93 – 94 (my bolding).
a.fulfill a local community need and provide opportunities for social interaction and activity;
b.are highly accessible to the residents served;
c.do not compromise the role and function of centres;
d.are not large land consumers that by their scale and nature will diminish the quantity of land within this zone;
e.are located on the major road network rather than local residential streets;
f.do not result in commercial ribbon development; …”

The Overall Outcomes for the Major Centre Zone Code, includes s 4.12.7(3)(a)(v) (again using the appellants’ bolding):[72]
[72]Exhibit 4B Planning Scheme Extracts, pp 6 - 7.
“Sub-areas MC9, MC10, MC11 and MC12 comprise the Victoria Point Major Centre which provides for a range of uses that –
…
b. serves a catchment of less than 50 000 people;
c.include one (1) discount department store, supermarkets, specialty stores and commercial activities;
…
f.provide entertainment facilities such as cinemas, nightclubs, restaurants and other like activities;
g. incorporates a public transport interchange;
h.has high accessibility by private transport with driving time of less than 15 minutes to the majority of its catchment and provides higher order services to the Southern Moreton Bay Islands; …”
The Overall Outcomes for the District Centre Zone Code, relevantly states in s 4.4.7(2)(a)(i) (with the appellants’ bolding):[73]
[73]Exhibit 4B Planning Scheme Extracts, p 1 (emphasis added).
Provides for a range of uses that –
a.enhance and protect the primacy, vitality and vibrancy of the City’s network of centres;
b.meet demonstrated community needs to serve a district sized catchment;
c.includes supermarkets, specialty stores, commercial activities and community services;
d.provides employment opportunities;
e.provides focus for community interaction and activity;
f.are located near schools, parkland and community facilities to form part of a district community node and support the function of retail and commercial activities to be located in the district centre zone;
g.are conveniently accessible to the district catchment area they serve by private vehicle, public transport and pedestrian and cycle routes;
h.in sub-area DC1 – are predominantly for residential and tourism accommodation uses where part of a mixed use development;
i.in sub-area DC2 – provide opportunity for the redevelopment or expansion of existing hotel.
The Overall Outcomes for the Neighbourhood Centre Zone Code, includes in s 4.15.7(2)(a)(ii) (with the appellants’ bolding):[74]
[74]Exhibit 4B Planning Scheme Extracts, p 9 (emphasis added).
Provides for a range of centre uses that –
a.enhance and protect the primacy, vitality and vibrancy of the City’s network of centres;
b.fulfil a traditional village centre role;
c.meet community needs to serve neighbourhood catchments;
d.limit the size and scale of retailing activities, proportionate to catchment size;
e.includes mini-supermarket, specialty stores, refreshment establishments, limited commercial activities and limited community services;
f.provide for employment opportunities;
g.are conveniently accessible by private vehicle, public transport and pedestrian and cycle routes to the neighbourhood they serve;
h.in sub-area NC1 – provide local convenience shopping for the day to day needs of the local catchment.
(c)the Overall Outcomes for the Local Centre Zone Code, includes s 4.10.7(2)(a)(i) (with the appellants’ bolding):[75]
[75]Exhibit 4B Planning Scheme Extracts, p 3 (emphasis added).
Provides for a range of centre uses that –
a.enhance and protect the primacy, vitality and vibrancy of the City’s network of centres;
b.serve a local catchment;
c.provide local convenience shopping for day to day needs;
d.provide for local employment opportunities;
e.provide a focus for local community interaction and activity;
f.are located near schools, parkland and community facilities to form part of a local community node;
g.are conveniently accessible to the catchment area they serve by private vehicles, public transport and pedestrian cycle routes.

As discussed above, the proposed development is more accurately characterised functioning more like a District Centre, or at least, a larger centre than a Neighbourhood Centre (so called by the co-respondent).

It seems to me that the proposed development conflicts with the zone provisions as contended by the appellants. It involves uses that are inconsistent with the zone and use of the planned road. The proposed road connection in an alternative location will also affect the adjacent land because it does not align with the land that is zoned road on the land to the immediate west. Further, the proposed development involves direct vehicular access from Boundary Road.

In any event, the Kinross Road Structure Plan overlay code provides that it prevails over any other provisions within the 2006 scheme to the extent of any inconsistency.[76] As to the zoning of the road shown in the Kinross Road Structure Plan, it is true that a reconfiguration will cause a change of the level of assessment under the 2006 scheme,[77] however, this is dissipated by the draft scheme which does not identify or zone roads differently to the rest of the parcel.[78] Further, the road network for the Kinross Road Area is shown more indicatively.[79]
[76]Exhibit 4, vol 1, p. 192: 2006 planning scheme part 5, division 15, p. 1, s.5.15.2(4).
[77]T4-67/25-34.
[78]Exhibit 4, vol 2, p. 480.
[79]Exhibit 4, vol 2, pp. 398-399.

Kinross Road Structure Plan

The land is within the Kinross Road Structure Plan Area. The provisions of the structure plan overlay code prevail over any other provisions within the 2006 scheme to the extent of any inconsistency.[80]
[80]Exhibit 4, vol 1, p. 192: 2006 planning scheme part 5, division 15, p. 1, s.5.15.2(4).

The structure plan area comprises 7 precincts: mixed used local centre precinct (precinct 1); community facilities precinct (precinct 2); medium density residential housing precinct (precinct 3); urban residential housing precinct (precinct 4); low density residential housing precinct (precinct 5); bushland living precinct (precinct 6); and green space precinct (precinct 7).[81] There are also sub-precincts within some precincts.
[81]Exhibit 4, vol 1, pp. 212-217: 2006 planning scheme part 5, division 15, pp. 21-26, s.5.15.8(2).

The Kinross Road Structure Plan Area is subject to the Kinross Road Structure Plan overlay code. Map 1 of that overlay code shows the precincts and sub-precincts.[82] It contains overall outcomes which are the purpose of the code,[83] and specific outcomes that contribute to achieving the overall outcomes.[84] Development that is consistent with the specific outcomes will comply with the Kinross Road Structure Plan overlay code.[85]
[82]Exhibit 1 p. 16; Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 57.
[83]Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 20, s.5.15.7(8).
[84]Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 20, s.5.15.7(3).
[85]Exhibit 4, vol 1, p. 211: 2006 planning scheme part 5, division 15, p. 20, s.5.15.7(4).

Section 5.15.8(2)(a)(ii) of the Kinross Road Structure Plan Overlay, relevantly provides:[86]
[86]Exhibit 4 – 2006 Scheme extracts, Tab 7 pp 212 – 213 (bolding added).

“Uses and other development reinforce the specific development intent for each Land Use Precinct, depicted on Map 1 – Kinross Road Structure Plan Area – Land Use Precincts, as follows –
a. Mixed Use Local Centre Precinct – (Precinct 1)
§provides limited retail and commercial services to meet the convenience needs of surrounding residents;
§provides for small scale commercial offices or service industry activities that encourage and support local employment opportunities while respecting and protecting the amenity of adjoining Housing Precincts;
§exhibits the basic characteristics of a transit orientated development by integrating land uses and public transport infrastructure;
§provides, in association with the adjoining Community Facilities Precinct, local recreation park, pedestrian and cycle network and bus stop, a focal point for the surrounding housing precincts;
§provides opportunity for medium density housing above ground level;

c. Medium Density Residential Housing Precinct – (Precinct 3)
§provides a range of housing types including apartment buildings, multiple dwellings, town houses, terraces, and aged care and special needs housing to meet the community’s diverse housing needs;
§takes advantage of the views and amenity offered by the Greenspace Precinct ensuring development addresses and provides passive surveillance of public open spaces;
§provides a higher density of dwelling units in proximity to the Mixed Use Local Centre Precinct and Community Facilities Precinct;
§incorporates pedestrian and cycle pathways which provide convenient linkages to the Mixed Use Local Centre Precinct, Greenspace Precinct and bus stops;
§Sub-Precinct 3a Medium Density Residential Housing – Kinross Road
ê ensures building design maximises views and outlook across the adjoining Greenspace Precinct;
ê provides for a higher density of dwelling units in proximity to the Mixed Use Local Centre and Community Facilities Precinct;
ê incorporates pedestrian and cycle pathways which provide convenient linkages to the Mixed Use Local Centre Precinct, Community Facilities Precinct, Greenspace Precinct and bus stops;
ê supports a mid-rise built form;
§Sub-Precinct 3b Medium Density Residential Housing – Boundary Road and Panorama Drive
ê provides for low-rise medium density residential development in close proximity to line haul bus services along the public transport corridors on Boundary Road and Panorama Drive;
ê provides physical breaks in the built form to facilitate convenient pedestrian access to the public transport services along Boundary Road and Panorama Drive; …”

The appellants point to these provisions to demonstrate conflict with the overall outcomes for the Kinross Road Structure Plan Area Overlay, particularly ss 5.15.8(2)(a)(ii) a. and c. The appellants contrast, accurately in my view, the structure plan with the proposal. It seems to me that the proposal’s retail and commercial services exceed the convenience needs of surrounding residents; it will restrict the medium density residential housing planned near the intersection of Boundary Road and Panorama Drive in the south-east corner of the land; and the impact on the function and viability of the planned local centre.

The co-respondent accepts that the proposed development conflicts with the provisions of the Sstructure Pplan, in that it will use the land for centre uses instead of its designated use for housing uses; other land is designated in the structure plan to be used for centre uses; and it also provides a centre that is a larger in scale than that anticipated within the structure plan area.

The local centre contemplated under the structure plan was the subject of evidence, which the co-respondent relies upon to highlight some issues with the centre. [87]
[87]T2-13/40-T2-14/5, T2-36/25-40; Exhibit 6 pp. 76-77, paras 197-198; T2-79/5-20; Exhibit 6 p. 77, para 199; T3-94/40-T3-95/5; Exhibit 7 pp. 40-41, paras 110-113; T4-22/20-25, T4-23/20-45; Exhibit 7 pp.39-40, paras 106-107.

The co-respondent emphasised Mr McCracken’s testimony about the evolvement of the plan as follows:[88]

“And so you’re saying that the centre’s hierarchy is wrong. That is that the council got it wrong – weren’t prepared to see this hierarchy?‑‑‑Well, my involvement in the Kinross Road structure plan in 2006 – a centre was envisaged there but so were access from Kinross Road through to Panorama Drive at Goddard Road and another crossroad, which I think is still shown in the cadastral maps, but they’re not to be built is my understanding. Which would’ve opened that area up so that people to the – I mean even the people who live in Kinross Road structure plan now on the Panorama Drive cannot access that centre without having to – well, they can’t drive to it.

Mr McCracken, can you go to page 16 of exhibit 1? Am I correct in saying that that shows a future road network that will be built as and when the urban areas, particularly those precincts 4A are built throughout the Kinross structure plan area?‑‑‑Yes.
Am I correct in saying that if once that road system is in place and once that area is developed the mixed-use local centre shown in blue in the centre will be indeed conveniently centrally located to all of that population in where they live?‑‑‑If the road through our site is – the subject site is built they would be able to – my point is, that when these centres were being talked about this Kinross Road area had – it wasn’t a cul-de-sac. It had access through to – I think it was through Goddard Road and one other road which I’ll see a name for. So I don’t know what happened after our input as part of the Parsons Brinckerhoff team that did the structure plan, but something went awry. It seems they’ve lost – left a big local centre in there but with no way of accessing, even the part of the structure plan area that exists.”

[88]T2-14/15-40 (bolding to emphasise).

It is also relevant that the Council has previously approved a centre on the subject land, which would have impacted the local centre. Further, at the time that Mr Fiteni entered into a call option to purchase 53-65 Kinross Road (which is now the subject of a centre designation), that parcel was not the subject of a centre designation and instead the subject land had the benefit of a centre designation[89].
[89]T3-69/10-40; T3-70/1-5.

Mr Ovenden, who was the planner called by the Council, accepted that it hasn’t got the planning “quite right”.[90] Mr Norling emphasised that the designated centre was poorly located in respect of servicing the needs of the community.[91] Indeed, Mr Zeller on behalf of Coles has explained that the designated location for retail is not a location of interest for Coles.[92] In contrast, Mr Schomburgk posited that the structure plan provided for a local centre for residents to undertake a ‘top-up shop’ or for ‘day to day needs’, and they would undertake ‘chore’ shopping at the major centres at Cleveland to the north and Victoria point to the south.[93]
[90]T1-17/20-45; Exhibit 11: Individual Report of Mr Ovenden, p. 3, para 3.4.
[91]Exhibit 6 need JER p. 77, para 199.
[92]Exhibit 8 p. 4, para 17; see also T3-6/30-35 and T3-11/10-25.
[93]T4-55/42 – T4-56/4; see also Mr McCraken at T2-13/23 – 30.

The appellants have seized upon the provision in the structure plan overlay code that anticipates a centre with only “limited retail and commercial services to meet the convenience needs of the surrounding residents”.[94]
[94]Exhibit 4, vol 1, p. 212: 2006 planning scheme part 5, division 15, p. 21, s.5.15.8(2)(a)(ii)a (precinct intent for the mixed use local centre precinct).

A similar provision was considered in Aldi Stores (A Limited Partnership) v Redland City Council,[95] where Wilson SC DCJ said:

“[39]It is accepted by both parties that although ALDI stores have a limited range of products, they sell a much larger range of goods than anticipated to meet a local community need. Council also argues that, due to the location of the proposed ALDI store vis a vis the existing Shopping Centre, as well as the positioning of its entry and exit points, social interaction or activity would not be promoted.
[40]The fact that paragraph (c) of Specific Outcome S1.3(1) (‘providing only for the identified convenience needs of the local community’) is not able to be met by this proposal has been properly conceded by Mr Schomburgk, ALDI’s town planning expert. This concession is necessarily qualified by the observation that the Court has been commonly confronted with this type of problem, and accepted that the provision of services to a community wider than the local community is not necessarily a disqualifying factor.”

[95]Aldi Stores (A Limited Partnership) vRedland City Council [2009] QPELR 602.

For the latter proposition, His Honour cited, amongst other cases, Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council,[96] wherein Rackemann DCJ emphasised that provisions within planning schemes which seek to limit retail uses to the needs of the local community “should be construed and applied in a practical rather than pedantic way”. That approach to the construction of planning schemes has more recently been endorsed by the Court of Appeal in Zappala Family Co v Brisbane City Council.[97] But in doing so, the court ought not usurp the role of the local authority.[98]
[96]Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85, [10].
[97]Zappala Family Co v Brisbane City Council [2014] 201 LGERA 82, [56].
[98]Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209, 211. Affirmed by the Court of Appeal in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] 1 QdR 372, Grosser v Gold Coast City Council [2001] 117 LGRA 153, [6] & [38], Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271, [23], Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157, [55].

Ascertaining the seriousness or nature of the conflict involves discerning from the verbiage of the 2006 scheme, the degree of importance it attaches to compliance with particular principles, requirements or Codes and, then, analysis of the particular proposal within that regime.[99]
[99]Stappen Pty Ltd v. Brisbane City Council [2005] QPELR 466, 473 [31] per Wilson DCJ

It seems to me that the 2006 scheme provides for a detailed, prescriptive and purposeful planning strategy and centres hierarchy. It plans for, and identifies the location and trade area for existing or planned major centres, district centres, neighbourhood centres, and smaller local centres, and each is galvanised by zoning. The 2006 scheme establishes a hierarchy of centres, and expressly discourages out-of-centre development unless specifically intended in a zone or precinct. The 2006 scheme facilitates local centre shopping, and access to a range of full-line supermarkets in designated major centres within a five to six minute drive both to the north and the south.

For the reasons set out above, I prefer the appellant’s arguments. The proposal plainly and seriously conflicts with the 2006 scheme as a consequence of the size and location of the retail components of the proposed development; non-compliance with the prescribed and mapped centres hierarchy, and the land use intents contained within the Scheme’s Kinross Road Structure Plan Area Overlay Code Overall Outcomes, and the inclusion of inconsistent uses in all of the prevailing zones, namely, the Medium Density Residential, Low Density Residential, Open Space and the Community Purpose Zones.

Despite the idealistic suitability of the proposed development on this land, it seems to me that the proposal conflicts with the Kinross Road Code, in that the development compromises Overall Outcome 5.15.8(2)(a)(ii), and the Structure Plan, in that:

1. The development is inconsistent with that proposed for the land use precincts that apply to the site;[100]

2. The only precinct type that deals with provision of retail and commercial services, being precinct 1 (noting that this does not apply to the land), envisages delivery of “limited retail and commercial services to meet the convenience needs of surrounding residents” from a centralised location within the structure plan area, whereas the proposed development will provide broader services to a larger catchment, and in a location different to that proposed in the structure plan;[101] and

3. The proposed development would impact the ability for the planned local centre with adjoining community facilities in the Kinross Road Structure Plan area to properly function.[102]

[100]Lanrex grounds 13(d)(iii)-(iv) and 13(e); Victoria Point grounds 8(b); Lipoma grounds 2(h)(iv)]; and Order of Rackemann DCJ dated 22 July 2016.

[101]Lanrex grounds 13(d)(i)-(ii); Victoria Point grounds 8(b)-(d).

[102]Lipoma grounds 2(h)(i) and (iii) grounds.

Draft Scheme

The draft scheme is also relied upon by one appellant.[103] The draft scheme was subject of public notification between September and November 2015, but is yet to commence. The zoning maps for the draft scheme effectively replicate the current zoning pattern of the Kinross Road area with the subject land zoned a mixture of:[104]

(a)medium density residential;
(b)low-medium density residential; and
(c)open space.

[103]Exhibit 3: p. 3, para 4(f).

[104]Exhibit 7 town planning JER p. 47, para 136.

The draft scheme effectively replicates the current zoning pattern, and attracts the same issues as the 2006 scheme discussed above. The only material difference is that “Neighbourhood Centres” will be called “Local Centre” to conform with Queensland Planning Provisions centre zone designations.

It seems to me that the draft scheme’s maintenance of full-line supermarkets in the centres hierarchy and centre zoning, after a whole scheme review, dilutes Council’s arguments and expert opinion of a planning deficiency to meet population growth in the Kinross Road Structure Plan area, and the broader Thornlands area.[105] Whilst there is significant force in this argument and opinion, it is a matter for the Council to address perceived deficiencies in its scheme.
[105]Exhibit 7 town planning JER p. 48, paras 143-144; Council’s Submission para 6(6), 75, 76.

At this point, the argument is not supported by the expression of intent in the draft scheme.

Nature and extent of the conflict with the South East Queensland Regional Plan

One appellant relies on the State perspective through the South East Queensland Regional Plan 2009-2031 (“SEQRP”) as strengthening the importance of the centres hierarchy and planned network of centres in the 2006 scheme, in particular, at page 31:[106]
[106]Exhibit 25.

1. The SEQRP refers to the Kinross Road local development area to provide a residential community in combination with additional employment opportunities, together with local retail and commercial functions and community services;

2. It notes the low self-containment levels of employment in Redland City and indicates that employment growth is to be focused within the planned network of multi-purpose activity centres;

3. It records that Victoria Point is a major regional activity centre and notes that there are lower-order centres across Redland City that otherwise accommodate the remaining centre-based employment growth; and

4. It notes that timely provision of transport infrastructure, including quality public transport infrastructure is essential to support Redland City’s expected population and employment growth and that plans to support such growth include ‘bus priority measures between Cleveland and Capalaba principal regional activity centres and Victoria Point’.

The SEQRP is in the nature of a higher order strategic planning document expressed in broad terms and ought be considered with that in mind.[107] Mr Ovenden opined that the development is consistent with desired regional outcomes 3 and 8 of the SEQRP.[108] On the contrary, Mr Schomburgk opined that the SEQRP was not supportive of out of centre development.[109] It is also apparent that the SEQRP deals mainly with higher order centres, save that it includes the district centre of Victoria Point.
[107]Cf. Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, 318.
[108]Exhibit 7 town planning JER p. 64, para 202(e); see also Exhibit 25 p. 55 (Desired Regional Outcome 3) and p. 90 (Desired Regional Outcome 8).
[109]Exhibit 7 town planning JER p. 49, para 147; Exhibit 13: Individual Report of Mr Schomburgk p. 7, paras 39-40.

It seems to me that the nature and extent of the conflicts identified by the appellant, add little, if anything, to the issues raised about the 2006 Scheme (and draft scheme). Even so, conflict with the SEQRP does not mandate refusal in the absence of sufficient grounds.[110]

Sufficient Grounds

[110]Bird v Logan City Council [2012] QPELR 502, [44]-[45].

Against this analysis, it must be considered whether there are sufficient grounds to approve despite the conflicts and departure from the 2006 scheme (and the draft scheme). Relevant grounds are matters of public interest, and do not include the personal circumstances of a party.[111]
[111]SPA, Schedule 3; s. 326(1)

In light of the nature and extent of the identified conflicts with the respective schemes, I think the co-respondent needs strong grounds to overcome the identified conflicts.

The co-respondent relies upon the following:[112]
[112]Exhibit 3: pp. 31-35.

“1. There is need for the proposed neighbourhood centre development on the site, because
(a)the provision of additional neighbourhood level retail facilities in the Thornlands area is needed to service existing and future populations;
(b)the proposed development will provide the growing trade area population with retail facilities that are not conveniently available within a reasonable proximity of the site;
(c)the proposed development will provide a more geographically balanced distribution of retail and community services in the local government area;
(d)there has been significant growth in dwellings and population in the southern Thornlands area, and the growth is predicted to continue in the future in such areas as Kinross Road and Woodlands Drive;
(e)the proposed development will be convenient to the large volumes of vehicular traffic travelling east along Boundary Road;
(f)the proposed development will be convenient to a major industry and healthcare employment precinct to its north;
(g)the proposed development will involve a vibrant and accessible centre, which will provide a commercial and community focal point for the Kinross Road growth area;
(h)the proposed development will provide choice and variety with the introduction of a full-line supermarket based centre, and will provide most trade area residents with access to a greater range and variety of convenient shopping options, and promote competition in a price and service;
(i)the proposed development will provide a significant community benefit by providing healthcare services in a convenient location.

2.There is need for the proposed residential development on the site, because:
(a)there has been significant growth in population in the southern Thornlands area, and the growth is predicted to continue in the future;
(b)the proposed development is a logical extension of;
(i)existing residential development on the northern boundary;
(ii)future residential development to the west;

(c)the site has been recognised by the respondent as being suitable for residential development;
(d)the proposed development will add to the provision of choice in relation to available housing stock and will provide the community with residential development that is proximate to and within walking distance of shopping, health and community services.

3.The proposed development will contribute to and promote transport network efficiency, because
(a)it is at the intersection of two main roads (Boundary Road and Panorama Drive) which provide convenient and safe vehicular access to the site;
(b)it will facilitate vehicular and pedestrian movements between Boundary Road and Panorama Drive by the inclusion of a link road;
(c)it is centrally located to serve trade area residents, and will reduce vehicular trips, travel times and distances presently experienced in accessing retail centres more removed from the trade area of the proposal;
(d)it will provide an east-to west road link through the site that will ultimately connect Panorama Drive to Kinross Road, as contemplated by the Kinross Road Structure Plan (including the signalisation of the intersection of that east-west link with Panorama Drive);
(e)it is proximate to an existing and future local population and so will encourage pedestrian and cycle trips.

4.The proposed development will result in yet further community benefits, because:
(a)it will provide a hub for social and community interaction in a family friendly environment (with the proposed tavern also providing a family friendly leisure/entertainment venue);
(b)it will enhance the potential for convenient, multi-purpose trips to a single location;
(c)it will provide facilities that are complementary to the future land uses envisaged for the Kinross Road Structure Plan area;
(d)it will contribute to the amenity of a growing residential area (including by the provision of a central community and recreational area along the waterway in the north western part of the site);
(e)it will establish a neighbourhood centre that is likely to stimulate residential development in the Kinross Road Structure Plan area and to assist in achieving the residential outcomes envisaged for the area;
(f)it will result in the rehabilitation of the dam in the north-western part of the site, the improvement and rehabilitation of onsite vegetation, and the provision of central community parkland;
(g)it will result in the provision of a useable open space area in close proximity to the residential and neighbourhood centre uses (it being likely that the open space area would be used for walking, recreation, a market garden and other community uses);
(h)it will promote interaction between the open space, residential and retail uses by the particular layout proposed;
(i)it will require over 200 part-time and full-time employment positions.

5.The proposed development is in the public interest, because:
(a)it represents an efficient and appropriate use of the site to satisfy the need for retail facilities to serve a growing population;
(b)it will complement Redland City’s existing and planned hierarchy of network of centres;
(c)it can achieve the outcomes referred to in subparagraph 5(a) and (b) without threatening the viability of any existing supermarket or retail centre;
(d)it remedies a deficiency in the centres hierarchy in the planning scheme (as it was not suitably updated to account for the Kinross Road Structure Plan Area being incorporated into the planning scheme);
(e)it will satisfy a need in circumstances where there is no unacceptable impact on amenity, traffic movements or competing retail outlets;
(f)of the matters referred to in paragraphs 1 to 4 (above) …..”

These grounds can be synthesised as follows:[113]
[113]Co-respondent’s Outline of Argument, para 145.

1. The site is an excellent site, from all relevant perspectives, for the development of a full-line supermarket based centre of the size and the type proposed;

2. There is a strong community and economic need for the proposal, having regard to the location of the site with respect to its trade area, and significant growth in population that has occurred, and is likely to occur, in that trade area;

3. Part of the subject land has been earmarked for retail development since the commencement of the 2006 scheme (save for a period of c.14 months);

4. The development of the proposal will not give rise to any adverse impacts, with respect to either amenity or centres hierarchy issues.

The Council supports approval of the development, notwithstanding conflict with the 2006 scheme (and the draft scheme) because:

1. There is community, economic and planning need for the development the subject of the appeal;

It was agreed between the need experts that, with respect to detrimental impact, anything more than 15% impact on turnover would give rise to real concern.[208] For the reasons which follow, I am satisfied that the proposed development will not detrimentally impact other existing and planned centres.
[208]Exhibit 6, paras [158], [167].

Victoria Point

The three full-line supermarkets at Victoria Point are trading at healthy and profitable levels, with the supermarket at Town Centre performing well.[209]
[209]Norling XXN, T3-105.

The need experts assessed the impact of the subject development, in the first year of operation (2018), would be in order of 5.7% (Mr Norling), 6.5% (Mr McCracken) and 7.28% (Mr Brown), being less than the benchmark 15% threshold.

However, Mr Brown also relied upon cumulative impacts on the Victoria Point Major Centre summarised in Table 20 of the need experts’ joint report.[210] All economists acknowledge that it is normal to assess cumulative impact,[211] in particular, the proposed full-line supermarkets for Mt Cotton and Redland Bay will, in turn, have an impact on the supermarkets at Victoria Point.[212] Mt Cotton has an approval for a 3,200 square metre supermarket.[213] Mr McCracken acknowledged that the 2006 scheme was recently amended, and there would be a sufficient population to support a full-line supermarket at Redland Bay.[214] The developer is likely to develop with a major retail anchor.[215]
[210]Exhibit 6 p.66.
[211]T2-25/L23-29 and T2-26/L15-22 (McCracken); T2-54/L8-15 (Brown); T2-76/L27-30 and T3-109/L20-21 (Norling).
[212]T2-25/L16-21 and T2-25/L37-38 and T2-26/L24-33 (McCracken); T2-54/L22-27 (Brown); T3-110/L13-28 (Norling).
[213]T2-25/L7-14 (McCracken).
[214]T2-24/L18-22 & /L24-37 (McCracken); T2-54/L17-20 (Brown). T2-24/L24-37 (McCracken).
[215]Exhibit 16 Statement of Mr Hargrave; Exhibit FGA Second Confidential Statement of Mr Hargrave; T4-30/L6 – T4-31/L9; T4-31/L11-37 (Hargrave).

Even so, I accept the evidence of Mr McCracken and Mr Norling to the effect that any impact ought be considered in the context of commensurate future population increases, which effectively neutralise any concern.[216] I think it unlikely that the prospective development will all become operational simultaneously or before 2018.[217] Therefore, I think that any material impact[218] upon the performance of the Victoria Point Major Centre will be relatively small.[219]
[216]Exhibit 9 para 36 (McCracken) and T2-77/15-23 (Norling); Exhibit 6 at [176]; Brown XXN T3-56 – T3-57.
[217]Mr Brown conceded that it was ‘probable’ that development would not occur before 2018 - T3-56 & T3-55.
[218]Exhibit 6, Table 19 need JER, p.65.
[219]T3-51/1-15.

Further, the Victoria Park Shopping Centre has an approval for a 9,000 square metre extension. Such expansion will likely involve a second Discount Departure Store, Mini-Major and additional specialty shops.[220] I do not accept that the proposed development would by itself unduly delay expansion plans for the Victoria Point Shopping Centre.[221] However, it will nevertheless contribute to the delay. In my view, the economic impact of the proposed centre upon the Victoria Point Major Centre is within tolerable limits, and would lessen over time.
[220]Exhibit 6, para [102]; Exhibit 17 Statement of Mr Cornish, [26] – [28]. See also Exhibit 15 Statement of Mr Lancini, [45] and Exhibit 16 Statement of Mr Hargrave, [19] - [22]; T4-37/L27 – T4-38/L34; T4-40/L11-39 (Lancini).
[221]Exhibit 6, para [160(d)].

With respect to the hotel or tavern, the experts were in agreement that detrimental impacts of that development on other hotels would not be significant.[222]
[222]Exhibit 6, paras [179]-[181].

Crystal Waters Local Centre

Mr Brown’s evidence about the impact on Crystal Waters differs to the evidence of the other need experts.[223] Mr Brown assessed a 2018 impact of some $2.16M (or -18.35%), whilst Mr Norling assessed the impact as $0.8M (or -6.7%).[224]
[223]Table 19 need JER Exhibit 6 p.65; the cross examination at T3-29/11-36.
[224]Exhibit 6, p.61 (Table 18).

Mr Brown accepted that the local centre presented well, appeared to carry a reasonable range,[225] and had a trade area that lies outside the proposal’s trade area.[226] Additionally, Mr Norling explained the different assessments this way:[227]

“Again, that is a matter of professional judgment, and he’s entitled to apply the factors that he thinks are appropriate. But when I applied the factors here, that is, that Crystal Waters – so the relevant factors I’ve applied, (1) Crystal Waters is the best performing neighbourhood centre in Thornlands at the moment; it is well located on that north-south road; it has a suite of pretty good tenants. As a negative, I took into account, it doesn’t have great exposure to that road, in – in the sense that it faces to the rear, so that’s – that’s a negative. But I felt that once this – if this court approves, and it’s developed, this supermarket-based centre is to be developed, it is my view that it would take trade more away from the supermarket-based centres, and that there was a sufficient geographical distance between the subject site and Crystal Waters such that the Crystal Waters centre would continue to act as a – in that neighbourhood role for that top-up shopping trip, and that the tenants – and the suite of tenants that were there would largely be able to continue to trade to that north-eastern quadrant of the primary trade area and the secondary trade area east. So – so I – I considered that a relatively low amount of trade would be taken from that centre, and those are the reasons that I factored into my professional judgment.”

[225]T3-30 to T3-31.

[226]Exhibit 6 pp.39-40.

[227]T2-76.

During his cross-examination, Mr McCracken remarked about the distinctive functions, roles and markets of the respective centres, as follows:[228]

“How can you – well, can I suggest to you? Is it the case that Crystal Waters with its IGA will not be able to compete with a Coles full-line supermarket in terms of range of product, range of packaging products and offer in terms of range of bakery items, range of meat items, range of fish items, range of delicatessen items. It will simply not compete? No. They compete for different markets. Different – different functions.

And it won’t compete in terms of price? Well, the IGA’s tend to be a – a bit more expensive than the – the majors.”

[228]T2-15/30-40.

Although, I prefer the assessment of Mr Norling and I conclude that they are overly optimistic about the likely impact on the local centre. I find that the Crystal Waters local centre will only be partially insulated by an adverse impact of the proposed development. Despite its nature as a local centre dislocation from the land, it will be be eroded by the proposal’s relative full-line, convenience and location.

Kinross Road Local Centre

I have already remarked about this mixed use local centre contemplated under the Kinross Road Structure Plan.

Mr Fiteni, the director of the corporate owner of the planned local centre site, testified that his investment decisions relied upon the 2006 scheme and the need for a local centre in the planned location surrounded by land zoned for medium density residential intended to be for an over-50s attached to a centre.[229] Mr Fiteni considered that the planned local centre at Kinross Road would be ‘very unlikely to survive’,[230] given the size and location of the proposed centre.[231] He opined that this would have warranted a reduced purchase prise for the Kinross Road land.[232]
[229]T3-67/L30 – T3-68/L3 (Fiteni).
[230]T3-68/L8-12 (Fiteni).
[231]Exhibit 18A Statement of Mr Fiteni, [17] and [18]; T3-67/L1 – T3-67/L12 (Fiteni).
[232]T3-67/L43-45 (Fiteni).

I accept Mr Norling’s evidence that the proposed local centre site is dislocated and isolated, which would have impacted its development in any event.[233] But it is favourably proximate to prospective residential development, a district park and Community Facility.[234] Further, as Mr Ovenden opined, it will have more localised and convenient retail products, and a different form and function to the proposed development.[235] Nevertheless, it is tolerably clear that the development will have a significant impact on the Kinross Road mixed use local centre in both nature and size of uses.[236]
[233]T2-79.
[234]Schomburgk XXN, T4-67/1-15.
[235]Exhibit 11, para [3.39].
[236]T2-13/L42 – T2-14/L10 and T2-30/L24-39 (McCracken).

Put in its proper context, for the planned local centre to retain its place and function as a local centre serving proximate residents, it will struggle to be relevant and provide complimentary function with the very proximate higher order role and function of the proposed centre, if developed. Therefore, I conclude that the proposed development will unduly impact on the planned local centre on Kinross Road.

Planning need

Planning need, and its relationship with economic need, was considered by McLauchlan QC DCJ in Elfband Pty Ltd and Vanhoff Pty Ltd v Maroochy Shire Council, [237] as follows:

“Planning need is no doubt a more general issue than economic need, but it seems to be obvious in cases such as this that unless there is an economic need there will be no planning need. It is therefore essential that the evidence establish, as I consider it has, that there is an economic need for a shopping centre such as Maroochydore Marketplace within the Sunshine Coast retail network. The issue of planning need then focuses upon the question whether the particular development proposed should be permitted, involving as it does an amendment to the planning scheme.”

[237]Elfband Pty Ltd and Vanhoff Pty Ltd v Maaroochy Shire Council [1995] QPLR 290, 313.

There is little dispute that the land is physically ideal for the proposed development. Mr Schomburgk accepted that the land, being proximate to the main road network, was a highly strategic location for retail and commercial development.[238] Indeed, he described the suitability of the subject site for the proposed development as follows:[239]

“If you were to accept that proposition that a district centre is warranted in this area, it’s an excellent location for a district centre, isn’t it?‑‑‑I don’t disagree with you there. I mean, it’s a good location. It’s accessible, easy. It’s on the left-hand side of the homeward journey, as we heard Mr Lancini say, and as this court has heard so many times before about larger-scale centres, convenience centres. That’s the preferred sort of location. It’s a very busy road, it’s visible – all of those things. Yes.”

[238]T4-59/15-35.

[239]T4-65 ll 5-12.

This is not altogether surprising since the Council has already accepted that the subject land is suitable for centre type activities with development approval and permit (which has not lapsed) for a shopping centre with a gross floor area of over 1,000m².[240] The land has, since the commencement of the 2006 scheme on 30 March 2006,[241] been identified for centre uses either by way of zoning or development approvals except for a period of 14 months.[242]
[240]Exhibit 7 - town planning JER p. 13, paras 20-21.
[241]Exhibit 4C.
[242]T4-56/45, T4-57/25-30 and ex.29.

The appellants do not rely upon the availability of alternative land for the proposed ‘out of centre’ development. Although, they acknowledge that ‘out of centre’ development may be justified in appropriate circumstances, they argue that this is not such a case having regard to the hierarchy of centres established by the 2006 scheme.

The consideration of planning need ought not be undertaken in a vacuum and ought always be cognisant of other town planning considerations and controls.[243]
[243]Cf. Intrafield Pty Ltd v. Redland Shire Council [2001] 116 LGERA 350 at [5].

This court has from time to time acknowledged proper planning of locating centres. So much is consistent with the approach taken by Skoien SJDC in Provincial Securities Pty Ltd v Brisbane City Council,[244] when considering a more generic provision of a scheme. The approach was explained by Wilson SC DCJ (as he then was) in Luke v Maroochy Shire Council:[245]

“Faced with a statement of intent in the planning scheme for Brisbane requiring consideration whether a shopping proposal would ‘mainly serve residents in the immediate locality’, his Honour determined that this was not a critical point or an absolute requirement but, merely, a consideration to be taken into account – and referred, as authority for that conclusion, to Prime Group Realty v. Brisbane City Council (1995) QPLR at 173, at 176; and Phil Fletcher Planning and Investment Services v. Brisbane City Council (1991) QPLR 16, at 18. The Brisbane planning scheme also contained another requirement that shopping centres should be ‘on neighbourhood access roads’ and, at 145, His Honour suggested that centres located in these places would very likely wither and die for lack of custom, and the requirement was:
‘…an example of the drafter’s wishful thinking and admirable as may be the wish it is unlikely to be met in today’s real world.’”

[244]Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143.

[245]Luke v Maroochy Shire Council [2003] QPELR 447, [48].

The courts have afforded no or less weight to an aspect of a planning scheme if that planning is not “soundly based or logically conceived”.[246] Such matters are a matter of context of the scheme, and the approach ought be tempered in these circumstances where a centres hierarchy has been deliberately planned and zoned.
[246]Sellars Holdings Pty Ltd v Pine River Shire Council [1998] QPELR 12, 17 and SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36, 50 line (a).

In Wilispap Pty Ltd v. Mulgrave Shire Council,[247] Quirk DCJ emphasised the strategic planning importance of locating and ordering retail centres:

“The location and order of retailing facilities in developing areas is no doubt a very important part of strategic planning. This is a matter appreciated by (and to which careful attention has been given by) the Respondent Planning Authority for this area in its recently exhibited Development Control Plan. The Respondent's opposition to this proposal is in my opinion quite consistent with the planning strategies found in the Development Control Plan and no real basis for any serious questioning of the strategies has been shown. I fully appreciate that Draft Development Control Plan does not yet have the force of a statutory planning instrument. It does, however, constitute a recent expression of planning strategy formally made public as required by the Act. In a matter of this kind it would, in my view, be entirely inappropriate for this Court to make a decision which would run contrary to such a considered and carefully expressed planning strategy of a Local Authority.”

[247]Wilispap Pty Ltd v. Mulgrave Shire Council [1992] QPLR 51, 52-53.

Later, in Overton v. Redcliffe City Council[248] Quirk DCJ consistently observed that:

“The provisions with which we are concerned have fundamental importance to the establishment of a suitable and ordered hierarchy of commercial development. As I have indicated to ignore these provisions could have fundamental and far reaching consequences for expectations based on the Strategic Plan as it is presently drawn.”

[248]Overton v. Redcliffe City Council [2000] QPELR 250, 253.

Beyond the planning, Newton DCJ remarked about the vitality of a centres hierarchy to a functioning City in Lewiac Pty Ltd and ING Real Estate, Joondalup BV v. Gold Coast City Council[249] as follows:

“It does not appear to be in dispute that the achievement of a sustainable and effective centre hierarchy should be recognised as a good town planning principle for reasons of orderly development, increased accessibility and convenience, greater economic efficiency and investment opportunities. Indeed, in his written submissions Senior Counsel for the Respondent observed that it is remarkable that not one witness criticised the town planning principles requiring a hierarchy of centres and not one witness criticised the appropriateness of the specific hierarchy put in place for this region by the relevant planning documents.

It may be accepted then, that a centre hierarchy is vital to the functioning of a City in order to ensure the efficient, equitable and adequate provision of goods and services to all communities having regard to their needs, size and location. This evidence was given by Professor Brannock, a consultant town planner who testified on behalf of the Fourth Co-Respondent, and it accords in general with the evidence of all the town planning experts. A successful and well-implemented centre hierarchy correlates the economic and social functions of a centre with the needs and interests of its catchment.”

[249]Lewiac Pty Ltd and ING Real Estate, Joondalup BV v. Gold Coast City Council [2003] QPELR 385, 389.

This was reinforced by the Court of Appeal in Australian Capital Holdings Pty Ltd v Mackay City Council,[250] Muir JA (with whom the others agreed) said:
[250]Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157 per Muir JA, with whom the others agreed at [1] and [73].

“[58] The importance of the hierarchy of retail shopping centres or precincts established by planning schemes and the necessity of not acting so as to prejudice the viability of the established hierarchy has been recognised in a number of planning decisions. In Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council & Ors,[251] Newton DCJ observed:
[251]Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council [2003] QPELR 385, 389.
‘[15]It does not appear to be in dispute that the achievement of a sustainable and effective centre hierarchy should be recognised as a good town planning principle for reasons of orderly development, increased accessibility and convenience, greater economic efficiency and investment opportunities.
…

[16]It may be accepted then, that a centre hierarchy is vital to the functioning of a City in order to ensure the efficient, equitable and adequate provision of goods and services to all communities having regard to their needs, size and location.’

[59] Newton DCJ referred with approval to passages from the reasons of Quirk DCJ in Wilispap Pty Ltd v Mulgrave Shire Council [1992] QPLR 51 at 52-53 and in Overton & Anor v Redcliffe City Council & Anor [2000] QPELR 250 at 253. In Wilispap Quirk DCJ, referring to the potential impact of an application, after remarking that it would ‘prejudice the feasibility of the hierarchy of shopping facilities proposed by the plan’ said, ‘In a matter of this kind, it would, in my view, be entirely inappropriate for this Court to make a decision which runs contrary to such a considered and carefully expressed planning strategy of a local authority.’ In Overton Quirk DCJ drew attention to the fundamental importance of such provisions to (at 253) ‘a suitable and order hierarchy of commercial development’ and commented that ‘to ignore these provisions could have fundamental and far-reaching consequences for expectations based on the Strategic Plan as it is presently drawn”.

In terms of the benefit of centres hierarchies, Mr McCracken gave evidence that hierarchies:

(a)encourage consolidation of existing centres;[252]
(b)encourage investment and re-investment in the existing centres that have been located in appropriate locations to serve the public;[253]
(c)discourage out of centre development in order to maintain the vitality, trading vigour and viability of existing centres;[254] and

(d)ensure planning for a relatively equitable distribution of facilities at different levels.[255]

[252]T2-27/1-2 (McCracken).

[253]T2-27/4-7 (McCracken).

[254]T2-27/9-12 (McCracken).

[255]T2-27/14-18 (McCracken); T4-9/5-8 (Norling).

Centres are also focal points for investment in infrastructure and transport road systems. It is in the community’s best interest to both establish and protect focal points for retail, commerce, community infrastructure, transport and social discourse.[256]
[256]See for example, T4-8/L24-30 (Norling).

There has been significant growth in dwellings and population in the southern Thornlands area, and the growth is predicted to continue in the future in such areas as Kinross Road and Woodlands Drive. The area has been recognised by the respondent as being suitable for residential development.

I am satisfied that there is a strong planning argument supporting the need for an additional neighbourhood centre level of retail facilities in the Thornlands area to service existing and future populations in the Kinross Road growth area, with more convenient and proximate retail shopping facilities. Such a centre will provide a more geographically balanced distribution of retail and community services in the local government area, despite the distribution of scheme network and centres hierarchy. An additional neighbourhood centre will add to the provision of choice in relation to available housing stock and will provide the community with residential development that is proximate to, and within walking distance of shopping, health and community services.

The proposed development is of the nature of a vibrant and accessible centre, which will provide a commercial and community focal point for the Kinross Road growth area. The proposed development will provide a significant community benefit by providing healthcare services in a convenient location. It will provide a hub for social and community interaction in a family friendly environment (with the proposed tavern also providing a family friendly leisure/entertainment venue).

The co-respondent characterises the proposed centre as a “Neighbourhood Centre” with a total floor space of 6,875m², comprising a full-line supermarket and specialty shops comprising 5,700m² retail and associated uses totalling 1,175m² (tavern, service station and medical centre). In my view, the proposal will have a higher function than a Neighbourhood Centre with its full-line supermarket, size and scale of retailing activities, and reliance on passing trade extending beyond the neighbourhood catchment. It would function more like District Centre (at a lower order). It would service local residents and well as large volumes of vehicular traffic travelling east along Boundary Road. Albeit at a lower order District Centre, the full-line supermarket, specialty stores, commercial activities and community services, would service a wider district sized catchment. In that way it would enhance the potential for convenient, multi-purpose trips to a single location.

The proposed development would not impact on transport network efficiency. It would reduce local residents’ vehicular trips, travel times and distances presently experienced in accessing retail centres, and be conducive to pedestrian and cycle trips. The intersection of two main roads (Boundary Road and Panorama Drive) would provide convenient and safe vehicular access to the land. Vehicular and pedestrian movements between Boundary Road and Panorama Drive would be facilitated by a link road. An east to west road link through the site that would ultimately connect Panorama Drive to Kinross Road, as contemplated by the Kinross Road Structure Plan (including the signalisation of the intersection of that east-west link with Panorama Drive).

The proposed development would be of a higher order and provide facilities and generally complement the future land uses envisaged for the Kinross Road Structure Plan area. It may even stimulate residential development and employment in the Kinross Road Structure Plan area. But it will have a significant impact on the planed local centre on Kinross Road.

The co-respondent has shown a marginal community, economic and planning need for the development. It will be viable, without inflicting adverse impacts on the viability of the larger existing and planned supermarket or centres. I think that the development would fill an obvious gap in the Redland City’s existing and planned hierarchy and network of centres. However, it’s larger size and function (more than a Neighbourhood Centre and more like District Centre) would erode and prejudice the existing and planned smaller proximate centres, and the centres hierarchy, given it’s size, location, overlap and function.

Conclusion

The proposed development significantly conflicts with the current planning scheme. There are strong arguments and opinion about the deficiencies in the scheme, but they are replicated in the zoning pattern, maintenance of full-line supermarkets in the centres hierarchy and centre zoning proposed in the draft scheme despite a whole scheme review. Having considered the grounds in favour of the application as a whole, I am not satisfied that they are, on balance, sufficient to justify approving the application despite the conflicts.

I allow the appeal and refuse the development application.

I will hear from the parties about any consequential orders.

Judge DP Morzone QC

CITATION:	Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2017] QPEC 53
PARTIES:	LIPOMA PTY LTD ACN 002 203 581 (Appellant) and LANREX PTY LTD ACN 010 740 191 (Appellant No. 2 of 2016) and VICTORIA POINT LAKESIDE PTY LTD ACN 106 781 757 (Appellant No. 44 of 2016) and REDLAND CITY COUNCIL (Respondent) and NERINDA PTY LTD ACN 001 325 720 (Co-Respondent)
FILE NO/S:	4940 of 2015, 2 of 2016 and 44 of 2016
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	6 September 2017
DELIVERED AT:	Cairns
HEARING DATE:	27, 29 & 30 September 2016 & 7 October 2016
JUDGE:	Morzone QC DCJ
ORDER:	1. Appeal allowed. 2. The development application is refused. 3. I will hear the parties as to any consequential orders.
CATCHWORDS:	PLANNING AND ENVIRONMENT – Appeal against approval of major commercial development including a “full-line” supermarket; specialty shops, including retail warehouse (discount chemist); family tavern; medical centre; service station; and parking – retail/commercial component of the appeal - 5.4 km of the major centre – Partly in the Medium Density Residential Zone, Urban Residential Zone, Open Space Zone and the Community Purposes Zone - Designated as partly Medium Density Residential Housing, partly Urban Residential Housing and partly Greenspace Network. OUT OF CENTRE DEVELOPMENT – Conflict with the scheme – at serious end of spectrum - provision of the necessities of life (food and groceries) - whether unacceptable adverse impacts on the centre network and centres hierarchy. GROUNDS –- whether the proposal will meet an existing community, economic and planning need - whether the scheme provisions “overtaken by events” - whether sufficient grounds to approve the application despite the conflicts. Legislation Acts Interpretation Act 1954, s 14A. Redlands Planning Scheme 2006. Sustainable Planning Act 2009 (Qld), ss 242, 314, 316, 324, 326, 329, 462, 493, 495. Cases Abacus Funds Management v. Sunshine Coast Regional Council [2012] QPELR 669. Aldi Stores (A Limited Partnership) vRedland City Council [2009] QPELR 602. All-A-Wah Carapark v Noosa Shire Council [1989] QPLR 155. Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157. Bird v Logan City Council [2012] QPELR 502. Bunnings Building Supplies Pty Ltd v. Redland Shire Council and Ors [2000] QPELR 193. Cut Price Stores Retailers v. Caboolture Shire Council [1984] QPLR 126. Degee v Brisbane City Council [1998] QPELR 287. Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209. Elfband Pty Ltd and Vanhoff Pty Ltd v Maaroochy Shire Council [1995] QPLR 290. Fabcot Pty Ltd v Cairns Regional Council [2013] QPEC 38 Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208. Friend v Brisbane City Council [2014] QPELR 24. Garyf Pty Ltd v Maroochy Shire Council [2009] QPELR 435. Grosser v Gold Coast City Council [2001] 117 LGERA 153. Handley v Brisbane City Council [2005] QPELR 80. Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313. Holts Hill Quarries Pty Ltd v Gold Coast City Council [2001] 1 QdR 372. Hydrox Nominees Pty Ltd v Sunshine Coast Regional Council [2014] QPEC 18. Intrafield Pty Ltd v. Redland Shire Council [2001] 116 LGERA 350. JPF Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359. Kangaroo Point Residents Association Inc v Brisbane City Council [2015] QPELR 230. Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271. Lewiac Pty Ltd and ING Real Estate, Joondalup BV v Gold Coast City Council [2003] QPELR 385. Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266. Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302. Luke v Maroochy Shire Council [2003] QPELR 447. Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPELR 661. Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333. Nordale Management Pty Ltd v Maroochy Shire Council[1995] QPLR 368. Overton v. Redcliffe City Council [2000] QPELR 250. Parmac Investments v. Brisbane City Council [2008] QPELR 480. Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 143. R v Brisbane City Council ex parte Read [1986] 2 Qd R 22. Roosterland Pty Ltd & its agents v. Brisbane City Council [1986] QPLR 515. Scurr v Brisbane City Council (1973) 133 CLR 242. Sellars Holdings Pty Ltd v Pine River Shire Council [1988] QPELR 12. SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36. Seven-Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85. Skateway Pty Ltd v. Brisbane City Council [1980] QPLR 245. Stappen Pty Ltd v. Brisbane City Council [2005] QPELR 466. Virdian Noosa Pty Ltd (Receivers and Managers Appointed) v Sunshine Coast Regional Council [2013] QPEC 54. Weightman v Gold Coast City Council [2003] Qd R 441. Westfield Management Limited v. Pine Rivers Shire Council [2004] QPELR 337. Wheldon & Armview Pty Ltd v Logan City Council [2015] QPELR 640 Wilispap Pty Ltd v. Mulgrave Shire Council [1992] QPLR 51. Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 Qd R 273. Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306. Zappala Family Co v Brisbane City Council [2014] 201 LGERA 82. ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352.
COUNSEL:	C Hughes QC and N Kefford for the Appellant KW Wylie for the Respondent D R Gore QC and J G Lyons for the Co-Respondent
SOLICITORS:	McCullough Robertson solicitors for the Appellant Redland City Council for the Respondent Anderson Lawyers for the Co-Respondent

Proposed zone/precincts	Approximate area (ha)	Percentage of site area	Proposed components
Neighbourhood Centre	2.4	38	Supermarket and specialty shops comprising 5,700m² retail and associated uses totalling 1,175m² (tavern, service station and medical centre). Total floor space of 6,875m².
Medium Density Residential Housing – 3b Boundary Road and Panorama Drive	1.4	23	A mixture of 35 (approx.) two-storey, attached and semi-detached terraces, townhouses and duplexes on small lots.
Urban Residential Housing – 4b Panorama Drive	0.2	3	Larger lots along the northeast boundary.
Greenspace – 7e Eastern Wetlands Corridor	1.4	22	Rehabilitated watercourse, detention basin, retained vegetation, market garden, outdoor cafe, “common”, northern boundary buffer. The irrigation dam would be drained
Access Road	0.85	14	Collector Road. To be a public road.
TOTAL	6.25	100

Centre Name	Estimated lettable area (m²)	Major tenants	Total Shops (No.)	Vacancies as at May 2016
Centre Name	Estimated lettable area (m²)	Major tenants	Total Shops (No.)	Shops (No.)	Area (m²)	Vacancy rate (%)
Victoria Point Shopping Centre	26,936	Kmart, Coles, Woolworths	110	10	1,042	3.9
Towncentre Victoria Point	26,080	Bunnings, Woolworths	36	2	534	2.0
Victoria Point Lakeside	25,000	Cineplex Cinemas, Aldi, Lincraft	85	12	1,312	6.6