Mackay Shopping Centre Pty Ltd v Mackay Regional Council and Other - [2013] QPEC 29

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Mackay Shopping Centre Pty Ltd v Mackay Regional Council & Other [2013] QPEC 29

PARTIES:

MACKAY SHOPPING CENTRE PTY LTD A.C.N. 140 014 875 AS TRUSTEE FOR THE MSC UNIT TRUST

(appellant)

v

MACKAY REGIONAL COUNCIL

(respondent)

and

PARKSIDE DEVELOPMENT PTY LTD A.C.N. 009 802 233

(co-respondent)

FILE NO/S:

1786/2012

DIVISION:

Appellate

PROCEEDING:

Submitter appeal against approval of a shopping centre

ORIGINATING COURT:

Brisbane

DELIVERED ON:

27 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Hearing: 15 April, 17-19 April, 22-26 April, 29 April, 30 May 2013

Site inspection: 16 April 2013

Further written submissions: 5 June 2013

JUDGE:

Robin QC DCJ

ORDER:

Minor change application acceded to.

The appeal should be allowed but only to permit imposition of certain new conditions.

CATCHWORDS:

Integrated Planning Act 1997 ss 3.5.6, 3.5.14(2) and 4.1.52 – Sustainable Planning Act 2009 s 350 – submitter appeal by commercial rival against approval of a new shopping centre – site zoned Higher Density Residential – planning scheme has a hierarchy of centres and disfavours commercial development outside them – whether proposal compromised achievement of DEOs for Economic Development and Amenity and Community Well-Being – whether grounds existed sufficient to overcome conflict with planning scheme – whether scheme “overtaken by events” – whether changes to vehicle access to the new centre were only “minor change” – whether “very high” impact on trading of the nearby designated centre acceptable – alleged conflict with Regional Plan

COUNSEL:

Litster R S SC, Fahl D for the appellant

Hughes C L SC, Skoien A N for the respondent

Gore D R QC, Williamson M A for the co-respondent

SOLICITORS:

Kelly Legal for the appellant

McCullough Robertson for the respondent

Wilson Ryan Grose for the co-respondent

This is a submitter appeal by the developer of a small shopping centre on Bridge Road, Mackay which is still under construction against the Council’s approval of a much larger one about 500 metres to the east along Bridge Road, on the site of a former sawmill (2.81 hectares[1]) at the corner of Paradise Street which will offer a 3649m² Coles “full line” supermarket and some 18 specialty shops (2022m²). Stage one of the appellant’s project will incorporate a 1650m² “full line” IGA supermarket, a bottle shop and a couple of specialty shops; stage two will be a medical centre for a group of practitioners presently accommodated across Bridge Road on the northern side, and stage three a small hotel. Its site is within the designated West Mackay Local Centre (also known as “Fourways”), although two parcels of land allocated as “higher density residential” in the planning scheme are included, in exchange for the loss of which the Council apparently required the hotel component.
[1]Allowing for the addition of some 4000m² of Council land (Lot 1 on RP34890).

The Local Centre straddles the intersection of Bridge Street and Nebo Road (Bruce Highway). The largest section lies north of Bridge Road, west of the highway and extends to Milne Lane in the north and to somewhere opposite Brooks Street in the west; this can accurately be called the northern part. The appellant’s site is in the western part, which does not extend as far west (towards the Hospital) as the northern. The Nebo Road frontage is enjoyed by other owners, with a Shell service station at the (signalised) corner. Unless Mr Pekol’s vision of a new controlled four way intersection at the site’s entrance is realised, requiring the cooperation of a good many of the dozen or so land owners in the centre, access to the IGA supermarket will be restricted to left in, left out, which bodes to be inconvenient for departing customers, especially the latter restriction.

The eastern segment is occupied by a fairly new commercial development, again at the cost of higher density residential land, as would be the co-respondent’s project. Only the southern segment remains available for the higher density residential use desired by the planning scheme.

The proposed development

It is convenient to adopt the co-respondent’s description of its proposal:

“2.The decision the subject of the appeal[2] [3] is one which approved, subject to conditions, a development application for a modern shopping centre which will include a full line Coles supermarket and a range of complimentary specialty retailers to serve the convenience shopping needs of a substantial population (approximately 20,950 people[4]), who the economists agreed have an above average demand for grocery products[5].
[2]Pursuant to s.819(6) of SPA and s.4.1.28 of IPA.
[3]Ex. 3, Tab 21.
[4]This is the 2013 population for the Main Trade Area – see Ex. 4, Tab 3, p. 93, Table 4.2.
[5]Ex. 4, Tab 3, p. 89, para 52.

3. The subject land:
(a)at the time the development application was made, comprised two lots with a total area of 2.41 hectares;
(b)included a lot owned by the Mackay Regional Council, namely Lot 1 on RP734890 which adjoins the Paradise Street road reserve[6];
[6]Ex. 3, Tab 1, p. 24 read with p. 18, Item, Owner’s consent.
(c)is a large, flat, undeveloped and strategically located parcel in the local road network at the confluence of two significant traffic carrying roads[7];
[7]Bridge Road carries in the order of 9,000 vehicles per day (vpd) in the vicinity of the land (Camilleri: T8-2, Line 44-45) and Paradise Street carries in the order of 11,000 vpd in the vicinity of the land (Camilleri: T8-2;, Line 29-30).
(d)has four frontages, Wilson Street (200m), Bridge Road (140m); Paradise Street (200m) and Edmond Street (100m)[8]; and
[8]Ex. 3, Tab 1, p. 4, section 2.1.
(e)is listed, in part (Lot 1 on SP139604) on the Environmental Management Register (EMR)[9] because it has been contaminated as a consequence of its historical use as the Parkside Sawmill.[10]
[9]Ex. 3, Tab 1, p. 53.
[10]The sawmill ceased operation in about 1998 (Ex. 12, para 5).

4.The proposed supermarket based shopping centre will only utilise 1.8408 hectares of the subject land[11]. To achieve this, Parkside sought, and the Council granted, an approval in March 2012 to facilitate the reconfiguration of the subject land into 13 lots[12]. The survey plan required to give effect to this reconfiguration has not been registered under the Land Title Act 1994.
[11]Ex. 1, p. 7, see future lot 12.
[12]Ex. 65, p. 104.
5.With respect to the thirteen proposed lots:
(a)Lots 1 to 11 inclusive have frontage to Wilson Street and are small lots with an area of generally about 235m²;
(b)Lot 12 is intended to be developed with the supermarket based shopping centre which is the subject of this appeal; and

(c) Lot 13 is located at the corner of Bridge Road and Wilson Street. This proposed lot is 3,057m² in size and is intended to be developed with 56 Multiple Dwelling Units[13]. This development was approved by the Council in April 2012.”

Acoustic issues in respect of Lots 1 to11 have been the subject of consideration by experts who have agreed on sensible ways of responding which ought to be incorporated in conditions.

[13]Ex. 65, p. 137.

The proposal presents clear conflict with the planning scheme, the date of which is 2006, although there is a consolidated version adopted on 13 May 2009. The planning scheme wants to see higher density residential development on both sides of Bridge Street, both west to Holland Street and east to Paradise Street. More significantly, it does not want to see commercial development in that area, except at West Mackay Local Centre. There is a centres hierarchy which the planning scheme does not want departed from. In this appeal, the Council has been as vigorous in championing the proposal as has the co-respondent, in marked contrast to its stance in Australian Consolidated Holding v Mackay City Council [2008] QCA 157 which its written submissions took pains to distinguish. See para 5.11. Arguments included the present proposal’s being comparatively remote from the designated centre sought to be protected, and that centre having outstripped its own designated local centre level of function – as to which see Mr Reynolds’ evidence on day 11 at 82ff: at 8000m²GFA, apparently, it is approaching the benchmark for a neighbourhood centre.

A new planning scheme is in preparation, which was expected to go on public display on 9 May 2013 (and in the event it appears to have been put out then or the following day); it was treated as “Fielder Gillespie” evidence at the hearing, which was completed a few days earlier, except for closing addresses. Suffice to say, there is little if anything in the proposed new scheme to assist the co-respondent’s proposal, nor anything to embarrass it in any additional respect. Essentially there is no change. I regard that as a neutral factor. It is only in a technical sense that the putative new scheme can be said to endorse the content of the current one. Nothing appears to show whether the drafters knew of the co-respondent’s development application, lodged 17 December 2009 or the Council’s favourable decision of 3 April 2012. One would assume that they did. But criticism would have been attracted had the proposed new scheme presumed things in favour of the co-respondent’s proposal and challenged approval: cf Bird v Logan City Council [2011] QPEC 145; [2012] QPELR 502 at [20] – [22]. Mr Hughes SC, for the Council submitted it was a case of “damned if you do, damned if you don’t”.

The Desired Economic Outcomes under (c) Economic Development include:

“(iv)A network of centres is established and maintained according to a hierarchical arrangement of roles and functions to meet the needs of the population, and includes the following elements, as shown on the Information Map – Network of Centres:
(A)the Mackay City Centre (including a core area and a frame area) as the principal centre for all multi-purpose centre activities in the City and the region;
(B)the Mt Pleasant Sub-Regional Centre, including Greenfields, Sams Road and Heaths Road as the second major focus for shopping, commercial and entertainment in the City, functioning as a supporting role to the City Centre;
(C)The Rural View Major Neighbourhood Centre as the third major focus for shopping, community and commercial needs in the City.
(D)the neighbourhood centres, including Andergrove, Bucasia, Rural View and Walkerston, providing for weekly or high-frequency shopping, community and commercial needs; and
(E)a mixed use centre at North Mackay; and
(F)the local centres, including the small convenience centres at Bucasia, Blacks Beach, North Mackay, Mt Pleasant, Slade Point and West Mackay.

(v)the growth of the centres occurs in step with demonstrated community need, recognising the role and function of other centres within the network of centres.
(vi)retail and commercial activities outside a centre identified within the network of centres are limited to premises with a size and function consistent with the provision of local facilities.”

This closely replicates what appears in the Strategic Framework in the planning scheme’s “introduction”. There are minor differences in expression, and more. Only the DEO mentions Bucasia (otherwise “local”) and Rural View as neighbourhood centres. Such inconsistencies would appear to have little relevance in the appeal, unless it be to demonstrate that the hierarchy of centres is not something set in stone. In my opinion the definition of “Local Facilities” in the Retail Commercial Code is not, as a matter of construction, to control (vi).

The structural elements of the planning scheme are rather complex. The local government area is divided into four “Localities”, being City Centre, Frame, Hinterland and Off-Shore Islands. The localities are divided into zones; the Mackay Frame Locality, which contains both the co-respondent’s and the appellant’s sites, comprises 13 zones, being Commercial, Higher Density Residential, Urban Residential, Rural Residential, Urban Expansion, Rural, Village, Special Activities (Tourism), Industry (High Impact), Industry (Low Impact), Sport and Recreation, Public Purposes and Open Space. The co-respondent’s site, as already observed, is in the Higher Density Residential Zone, although it is doubtful whether it has actually been put to residential use, at least within living memory. The Mackay Frame Locality is one of the localities divided into precincts; the site falls within Pioneer River (Urban), rather than Goose Pond Creek or McCready’s Creek.

At page 5-3 of the planning scheme are general provisions for assessment tables. Table 5.1 identifies assessment categories for development in a zone by way of making a material change or use. Criteria are provided for self-assessable development and assessable development in each zone and noting “a defined use or use class that is an inconsistent use in the particular zone” (5.6(1)); a use not noted in that way is a consistent use in the particular zone: 5.6(2). In every zone in the Mackay Frame Locality, a “Shopping Centre” is in fact assessable (page 5-16). That use is unsurprisingly defined (page 12-18) in a way that covers the co-respondent’s proposal, which is one “comprising one or more buildings established in a co-ordinated manner, used predominantly for a shop or shops, with a total gross floor area of at least 2500m² together with any one or more of the following:

“(i) Catering Shop;
(ii) Commercial Premises; … etc”

At page 5-22 are set out Overall Outcomes for the Mackay Frame Locality in Division 6. These are “the purpose of the code” and include that:

“(h)New commercial uses are located in the Commercial zones or the Village zone in accordance with the Overall Outcomes of those zones and the network of centres referred to in the Desired Environmental Outcomes and illustrated, for information, on the Information Map – Network of Centres.”

There are (page 5-25):

“In addition, overall outcomes for the Pioneer River (Urban) precinct [which] are the following:
(a) the Pioneer River (Urban) precinct accommodates:
(i)a range of discrete visually cohesive urban residential areas and highly accessible, well serviced, higher density residential areas;
(ii)high quality long-stay and highway orientated short-stay tourist accommodation in appropriate locations designed and sited to be compatible with adjoining residences and to retain the operational capacity of the adjacent major road;
(iii)associated local convenience services and community facilities;
(iv)open space and recreation areas, such as the racecourse, sporting fields, botanical gardens to service both local residents, visitors and the wider residential community of the City and the region;
(v)the dominant industrial service functions for the City and the region located in the Paget and south Mackay industrial areas;
(Note: Development of greenfield industrial areas of more than 2ha is undertaken in accordance with a Master Plan Planning Scheme Policy);
(vi)major infrastructure of the Mackay Airport, Bruce Highway, Peak Downs Highway and the North Coast Railway which is protected form inappropriate development that may impede the operation or reduce the capacity of such infrastructure; and
(vii)remnant rural areas retained for continued rural use.

(b) residential activities are:
(i)not located in noise affected corridors of the North coast railway, Paradise Street, and Nebo Road, unless effective design and siting measures to mitigate transport noise are incorporated; and
(ii)located away from major infrastructure, such as the Mackay Airport, unless effective design and siting measures are provided to mitigate any adverse effects of that major infrastructure.

(c)commercial activity occurs within the boundaries of the commercial zone and accords with the network of centres described in the Desired Environmental Outcomes and as shown on the Information Map – Network of Centres and includes:
(i)convenience services which meet the needs of existing nearby residential and visitor accommodation areas: and … .

The special mention of Paradise Street in (b)(i) should be noted. That provision may have provided support for the new commercial development mentioned in paragraph [3] above. It also provides some justification for the co-respondent’s not proposing a residential development along Paradise Street. At the more general level, Division 7 (from page 5-29) sets out specific outcomes in some cases with probable and acceptable solutions for the Locality. These commence with specific outcomes for assessable development:

P1 Commercial development is located in the Commercial zone and does not detract from the network of centres referred to in the Desired Environmental Outcomes.
P2 Residential development where residential use is the predominant activities (as distinct form farming for example) occurs on land located within the Village zone, Urban Residential zone and the Rural Residential zone.”

No solutions are specified. (page 5-29).

Division 8 (commencing page 5-32) sets out overall and specific outcomes, in some cases with probable and acceptable solutions, for the Commercial zone in the locality - which zone does not include the co-respondent’s site - giving an indication that commercial facilities are expected at only a modest level:

“(2)The overall outcomes for the Commercial zone within the Pioneer River (Urban) precinct are the following:
(a)commercial facilities and services are small-scale and located in an existing centre which:
(i)has a floor area significantly less than 2,500m² GFA;
(ii)does not provide the complete range of functions anticipated for a local centre as established in the network of centres referred to in the Desired Environmental Outcomes; and
(iii)consists of a re-development of or addition to an existing premises but does not change the role and function of the existing centre.

(b)specialised commercial activities servicing the needs of highway traffic and short-stay visitor accommodation are established in the Commercial zone along Nebo Road and in the Illawong Beach area and include family restaurants, fast food stores and service stations.”

The specific outcome for the Pioneer River (Urban) Precinct is:

“

Pioneer River (Urban) Precinct

P1 New shopping facilities in the commercial zone are limited to small scale convenience shopping and other convenience based commercial facilities in West Mackay.

S1 New facilities in a centre or the combination of existing and additional facilities in a centre comply with the following:

(i) additional gross floor area does not exceed 50m²;

(ii) additional retail floor area does not exceed 250m²; and

(iii) access is provided directly to either an arterial or sub-arterial road.

”

It is Division 9 which governs the case for the Higher Density Residential zone, in which the site is located (page 5-40). The overall outcomes include that:

“(2)(a)development in the higher Density Residential Zone protects higher level amenity of the locality…
(b)higher Density Residential Development is well serviced with and highly accessible to retail, commercial and other community facilities.
(c)within the Pioneer River (Urban) precinct infill development at urban renewal projects provide for increased residential densities whilst retaining the character of the precinct and making the most efficient use of the existing development infrastructure.

(d)all residential development is located on land suitable for the use such that residents are not put at serious risk of loss of life or property damage…
(i)non residential development does not adversely affect residential amenity (page 5-40)

and on the following page, with no solution specified is a specific outcome or “purpose”:
‘P4 Non-residential activity in the zone;
(i)is limited to small-scale uses which are directly related to servicing the needs of residential areas or are small-scale, home-based businesses or home occupations; and
(ii)includes design and siting measures to control any external impacts from the activity’

Division 22 introduces the Retail and Commercial Code whose provisions are central for this appeal:

“9.99 Retail and Commercial Code
(1)The provisions of this division comprise the Retail and Commercial Code as follows:
(a)Compliance with the Retail and Commercial Code (Section 9.100);
(b)Overall outcomes for the Retail and Commercial Code (Section 9.101); and
(c)Specific outcomes, acceptable solutions, probable solutions for the Retail and Commercial Code (Section 9.102).

9.100 Compliance with the Retail and Commercial Code
(1)For assessable development, compliance with the Retail and Commercial Code is achieved when development is consistent with the specific outcomes in Table 9-21.2.
9.101Overall Outcomes for the Retail and Commercial Code
(1)The overall outcome is the purpose of the Retail and Commercial Code.
(2)The overall outcomes sought for the Retail and Commercial Code are the following.
(a)The establishment of retail and commercial uses complies with the location of Centres as identified in the network of centres in the City and includes the following elements:
(i)the Mackay City Centre (including a core area and a frame area) as the principal centre for all multi-purpose centre activities in the City and the region;
(ii)the Mt Pleasant Sub-Regional Centre, including Greenfields, Sams Road and Heaths Road, as the second major focus for shopping and entertainment in the City, functioning in a supporting role to the City Centre;
(iii)the Rural View Major Neighbourhood Centre providing the third major focus for shopping, community and commercial needs in the City
(iv)the neighbourhood centres, including Andergrove and Walkerston, providing for weekly or high-frequency shopping, community and commercial needs;

(v) a mixed use centre at North Mackay; and
(vi)the local centres, including the small convenience centres at Bucasia, Blacks Beach, North Mackay, Mt Pleasant, Slade Point and West Mackay.

(b) Retail and commercial development in the City:
(i)is situated within a designated centre and is accessible and convenient for all members of the community;
(ii)provides safe and convenient vehicular and pedestrian access to meet the mobility requirements for all persons;
(iii)is attractive, functional, safe and serves to reinforce the role of the designated centres as community foci and complements the scale, intensity and character of the surrounding activities;
(iv)is established on suitable premises appropriate in their scale, intensity and character to the intended role and function of the designated centre;
(v)has regard to accessibility and the desirability of consolidating existing designated centres;
(vi)provides conveniently located and visually screened on-site service areas, such as garbage bin enclosures, loading/unloading areas and outdoor storage and/or display areas.

(c)Centres within the network have facilities and services to meet the needs of trade catchment populations. The catchment population for each type of centre is as follows:
(i) City Centre - 50,000 or more households;
(ii)Sub-Regional Centre – more than 30,000 and less than 50,000 households;
(iii)Major Neighbourhood Centre – more than 7,500 and less than 30,000 households;
(iv)Neighbourhood centre – more than 7,500 and less than- 20,000 households; and
(v)Local centre – more than 2,500 and less than 7,500 households.

(d)All land uses in centres are appropriate to the intended role and function of a particular centre as set out in the following

Table 21.1 – Centre Role & Function.

Administration	Business & Commercial Services	Comparison Shopping	Convenience Shopping	Entertainment & Leisure	Community Facilities	Service Trades
City Centre	·	·	·	·	·	·	·
Sub-Regional Centre	o	o	·	·	·	·	·
Major Neighbourhood Centre	o	·	·	o	·	o
Neighbourhood Centres	o	·	·	o	o	o
Local Centres	o	o	o	o

Notes:

· means highly developed, major facilities and services
o means small scale, low intensity facilities and services

(e)Retail and commercial uses do not occur outside the designated centres:
(f)Non-retail activities, such as service trades, commercial offices, and low impact light industries locate in the designated centres, particularly in the City Centre Locality and the Mackay Frame Locality, in order to provide employment opportunities ‘closer to home’.

9.102 Specific outcomes, acceptable solutions and probable ` solutions for the Retail and Commercial Code
(1)The specific outcomes sought for the Retail and Commercial Code are included in Column 1 of Table 9-21.2 and the acceptable solutions / probable solutions are in Column 2 of Table 9-20.2.

9.103 Definitions
‘Local Facilities’ are defined as retail and commercial facilities which service the daily convenience needs of a local trade catchment containing no more than 2500 households.

Table 9-21.2 Specific Outcomes and Acceptable and Probable Solutions for Retail and Commercial Code
Retail & Commercial Development

Specific Outcomes		Acceptable / Probable Solutions
Assessable Development
P1 Retail and commercial activities outside a designated centre are limited to premises with a size and function consistent with the provision of local facilities	S1 For activities located outside a designated Centre, the premises has a maximum gross floor area of 25m² and a maximum building height of 8.5m.
P2 The building is integrated into the streetscape to respect the character and amenity of the locality.	S2.1 Buildings are: (i) set back from the road frontage a minimum of 6m; or (ii) built to the front boundary alignment where a footpath awning is provided in accordance with this code S2.2 The carparking area is situated at the front, or on the approach side, of the premises.
P3 Premises have garbage bin areas, loading/unloading areas and any outdoor storage and/or display facilities: (i) of sufficient size; and (ii) screened from view.	S3.1 Garbage bin storage and loading/unloading areas are located at the rear of the premises. S3.2 Garbage bins, when within the storage area, cannot be viewd from adjoining premises.
Awnings Over Footpaths
P4 Awnings over the footpath are: (i) a continuous weather protection for pedestrians: (ii) set back from the road pavement to ensure the safety of passing traffic; and (iii) designed to suit and enhance the character and streetscape of the area. Note: This applies to all Class 2, 3, 4, 5, 6, 7, 8 and 9 buildings that are proposed to be built up to or within 3.0m of a road boundary.	S4 The awning: (i) is setback at least 300mm from the kerb at a minimum height of 3m above the kerb; (ii) has a continuous lining or soffit; and (iii) is constructed of non-combustible materials (except timber battens for fixing linings); (iv) is impervious to water and drained to avoid water dropping onto the footpath; (v) has a fascia depth of not more than 600mm; and (vi) is of cantilever design; or (vii) has non-load bearing ornamental posts or columns.
P5 Apart from the Mt Pleasant Sub-Regional Centre, Sub Regional Centres, the Rural View Major Neighbourhood Centre, neighbourhood centres and local centres have floor space for industrial, commercial and retail uses commensurate with their role and function as set out below: (i) a floor area limit of 50,000m²GFA for a Sub-Regional Centre; (ii) a floor area limit for Neighbourhood Centre of: a) 10,000m² GFA for all centres except Rural View; b) 20,000m² GFA at the Rural View Major Neighbourhood Centre, of which only 10,000m²is for shopping facilities; and (iii) a floor area limit of 2,500m² GFA for a Local Centre.	S5 No solution specified.
P6 Development of additional facilities not anticipated in a designated centre meets the following criteria for community need: (i) the proposed use does not alter the role and function of a designated centre in the network; (ii) population has increased in the trading catchment of the centre since the commencement of this scheme such that the population is able to support the proposed services; (iii) the proposed use contributes to convenient access to a range of centre services and facilities for residents; (iv) residents in the City have a choice of services and facilities without unnecessary duplication, particularly for shopping, entertainment and leisure, business and commercial services and service trades; and (v) residents in the urban areas of the City have access to the different levels of facilities within the travel times nominated in the Table below.	S6 No solution specified.

City Centre	Mt Pleasant Sub- Regional Cetnre	Major Neighbour- hood Centres	Neighbour- hood Centres	Local Centres
Driving Times (mins)	>20	<20	<15	<10	<5
P7 Premises are located to reinforce the viability of designated centres and are accessible to the population of the Locality it is intended to serve. Note: Council will take into consideration compliance with the location and role of centres and the retail hierarchy illustrated in the Information Map Network of Centres.						S7 No solution specified.
*Activity Mix and Generation*
P8 Activity generators are provided at ground level in centres.						S8 Ground level facades to buildings are highly interactive and provide interest through windows, displays and visible indoor activity.

Public Transport Infrastructure for Shopping Centres with a 10,000m² GFA

P9 Facilities and connections are provided for convenient, safe and comfortable movement of pedestrians and cyclists. In particular, connections are –

(i) safe and efficient; and

(ii) highly permeable to the site; and

(iii) link to surrounding development.

S9.1 A public passenger transport facility is provided to accommodate both buses and taxis and caters for the transport requirements of the Centre and links the surrounding development.

S9.2 A facility is designed to ensure:

(a) public transport vehicles will not travel through parking aisles; and

(b) public transport stops will be located adjacent to the Centre pedestrian access points; and

(d) pedestrian paths will be provided along the lines of sight; and

(e) connectivity will be provided from the public passenger transport trip generators; and

(f) stop locations will consider bus routes and site suitability, minimising travel distances within the site.

S9.3 Opportunities for cycling as a modal choice for employees and customers are provided through –

(i) clearly defined on-site paths and facilities; and

(ii) secure cycle storage areas and facilities, including showers and lockers for employees; and

(iii) provision of cycle racks for customers.”

Features to note are the use of includes and including in 9.10(2)(a) and the references in P5 to “Sub-Regional Centres” over and above Mount Pleasant, and the general rule for “Sub-Regional Centres” in (i), meaning, literally construed, that there can be more centres than are named, even at Sub-Regional level. What the planning scheme seeks is that those named survive to fulfil their indicated functions. In my opinion there is no basis for determining that there is a mistake (or more than one mistake) here even if one admits, as the parties suggested, that 25m²in S1 is intended to be 250m² (something far from clear to me).

“Compromise” is an important word in this appeal. In my opinion the relevant synonym is “threaten”. By s 3.5.14(2) of IPA, the decision upon the co-respondent’s application must not:

“(a)Compromise the achievement of the desired environmental outcomes for the planning scheme area”.

The draft planning scheme requires in Performance Outcome 1(b) of the District Centres Code that District Centres must not compromise the viability, role, or function of other District Centres or (higher in the hierarchy) major centres or the Mackay CBD: Table 6.2.3.3.A. See also the Strategic Framework Element – network centres 3.3.11 Specific Outcomes (7) and (8). This may arguably represent a watering down of the present requirement in the Specific Outcomes of the Retail and Commercial Code that “Premises are located to reinforce the viability of designated centres” (P7). Given my general approach that the draft plan is not of relevance in the circumstances of this appeal, I do not propose to allow that possibility to lighten the co-respondent’s task of proof that P7, in which one notes the reference to the population of the “Locality” being served is satisfied, or that grounds exist to overcome its not being satisfied.

If the appellant is correct in submitting that the proposal compromises (threatens) the achievement of DEOs for the planning area, the appeal must be allowed and the development application be refused: IPA s 3.5.14(2) – however seductive the grounds presented for approving it might be. Those grounds go only to potentially overcoming conflict, which may be with DEOs or other parts of the planning scheme: subsection (2)(b). The Court of Appeal has explained the difference in Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273 at 286:

“…observing in passing the contrast between ‘compromise’ in that paragraph [(a)] and ‘conflict’ in para. (b).
[23] ‘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.”

It has proved difficult for those opposed to particular development proposals to establish compromise and the challenge is not often taken up. The thought has been that DEOs operate on a city-or shire-wide basis, so that their achievement is unlikely to be compromised by any particular development. Obviously there can be DEOs whose achievement is more easily found compromised, such as ones relating to more or less specific locations, activities or functions. In Webster v Caboolture Shire Council [2008] QPEC 82 in which a proposal was rejected for compromise of DEOs, at [102] – [107] putting the “traditional” gloss on the section was deprecated. The older approach may too readily regard “for the planning area” as qualifying “achievement” rather than “desired economic outcomes”. Webster has received some endorsement in dicta in the Court of Appeal: Redland City Council v Aldi Stores [2009] QCA 346 at [16], [19] and Lewis v Townsville City Council [2012] QCA 99 at [55] – [56]: “a development application which cannot exist together with the achievement of a DEO must compromise the DEO.”

Taking the practical approach that is appropriate in construing and applying planning schemes requires taking that approach to the issue whether achievement of the DEOs examined is “compromised” rather than still able to be realised, albeit to an extent less than completely in every detail. Speaking generally, I think the court should avoid being unduly officious in seeking aspects in which achievement of a DEO is less than perfect. Many of them are justly described as aspirational (rather than realistic). They often overlap, and may conflict, even internally. Thus, the key one here sets out “to meet the needs of the population” but on the face of things (at least so far as the appellant would have it) in 15 locations only, apart from some “provision of local facilities.” Of the 15, Rural View and Bucasia are counted twice (at different levels in the hierarchy) and so may be Mt Pleasant. The co-respondent presents a strong case for its site to be added (as others have been). The DEOs are preceded by the caution that:

“3.1…(2) The Desired Environmental Outcomes are to be read as a whole. Each Desired Environmental Outcome is to be achieved to the extent practicable having regard to the other Desired Environmental Outcomes.”

Minor change

The first question to be resolved is whether the co-respondent Parkside may change its proposal to comply with the recommendations of the expert traffic engineers who deemed the approved plans inappropriate insofar as vehicular access to the shopping centre car park was provided from Wilson Street as well as from Paradise Street and Bridge Road. They considered the introduction of the anticipated traffic volumes to a residential street (which the Council had required as part of an Information Request) unacceptable. At a late stage they advised alternative arrangements which are acceptable, whereby vehicular access from Wilson Street is no longer provided – pedestrian access will be – and the Paradise Street entrance is widened, also relocated slightly further to the south. The Paradise Street access was originally proposed for trucks and staff vehicles only – “removable bollards” precluding general access to the main car parking area. That impediment now goes. To the extent that Parkside’s written submissions seem to suggest there is no general access, I believe those submissions are mistaken and approach the minor change issue in accordance with my understanding. This enlarged access is recommended to be signalised, to allow turning in and out in both directions, and so located as to incorporate the driveway of a double allotment opposite in Paradise Street (which contains a house, and appears to be used as a depot for a courier service or the like) as a fourth arm of the intersection with a facility to request a green light to allow safer exit into Paradise Street. Acknowledging the possibility that this change would be unwelcome to the occupants, I accept the traffic engineering opinion that the new proposal is appropriate and acceptable; it would be open to the occupants (or owner of the site opposite) to decline the opportunity to trigger priority entry to Paradise Street, already carrying high volumes of traffic, much of which is heavy traffic connected with the Paget industrial area, for which it is the main thoroughfare. Traffic lights would give the opposite site ability to exit into Paradise Street by a right turn, a manoeuvre that would otherwise be unavailable.

Other objections to the removal of Wilson Street access are that it will or may lead to parking problems in that street, because shopping centre customers may choose to park there and use the surviving pedestrian access, rather than have to travel down Bridge Road and then turn right into Paradise Street at a very busy intersection (the consequences for which intersection of increased traffic volumes have, it is said, not been worked out). While appreciating that annoyances may occur compared with what the approved plans would offer some customers of the shopping centre (may occur), which those who were frustrated could avoid without too much inconvenience should those annoyances prove enduring, I find that the proposal as now desired to be presented involves no unacceptable impacts from traffic and parking perspectives.

That conclusion does not provide an automatic answer to the question whether the legislation allows the court to deal with the appeal on the basis of a changed proposal. IPA s 4.1.52 precludes the court’s considering a change to the development application on which the decision appealed against was made unless the change is “only a minor change”.

Although the appeal procedure is generally under IPA, the SPA in s 821(2)(b) enacts that s 350 of it governs what is a minor change. Mr Litster SC (as he then was) for the appellant relies on s 350(1)(d) as providing that a change is minor if it does not result in a “substantially different development”. It is submitted that “the new arrangements will significantly change the distribution of traffic movements” and “introduce new impacts”; these are references to parts of Statutory Guideline 06/09, made under s 759(1)(c) of SPA, the subject of discussion in Auspacific Engineers Pty Ltd v Scenic Rim Regional Council [2010] QPEC 117 at [21]-[23]:

“[21] The court was provided with a copy of the Chief Executive’s guidelines recognised by Judge Rackemann in Heritage Properties Pty Ltd v Redland City Council [2010] QPEC 19; [2010] QPELR 510 in a useful passage at 511:
‘The only party to the present proceeding who submits that the changes do not constitute a minor change is the fourth co-respondent by election. However, the matter is not simply one for determination between the parties. The Court must exercise its own judgment in these matters. In determining whether a development constitutes a substantially different form of development, it is appropriate to have regard to the guidelines made by the Chief Executive under section 760 of the SPA (Statutory Guideline 06/09), which provides relevantly as follows:
‘Although it will depend on the individual circumstances of the development, the following list identifies changes that may result in a substantially different development and would, therefore, not be a minor change or permissible change under the SPA. This list is intended as a guide to assist assessment managers and applicants to determine whether a change will result in a substantially different development and is not intended to be exhaustive. A change may result in a substantially different development if the proposed change:
§involves a new use with different or additional impacts;
§results in the application applying to a new parcel of land;
§dramatically changes the built form in terms of scale, bulk and appearance;
§changes the ability of the proposal to operate as intended. For example, reducing the size of a retail complex may reduce the capacity of the complex to service the intended catchment; removes a component that is integral to the operation of the development;
§significantly impacts on traffic flow and the transport network, such as increasing traffic to the site;
§introduces new impacts or increases the severity of known impacts;
§removes an incentive or offset component that would have balanced the negative impact of the development;
§impacts on infrastructure provision from a location or demand.’

It may be noted that the list provided in the guideline is a list of those changes which ‘may’ result in a substantially different development. It is not the case that a change of the kind there listed is necessarily to be judged to be substantially different. It may also be noted that the list is not intended to be exhaustive. There may be other changes not listed in the guideline which, in a particular case, can be judged to be more than minor, in that it involves a substantially different development. It may also be noted that the focus of the list in the guideline is, in some respects, on changes that would involve new, additional or increased impacts, rather than on changes which tend to ameliorate impacts.’

Here, there is to be a one-third increase in yield of residential lots, many as small as 750m². The guidelines do not seize on the bare fact of an intensification of that (or any particular) order; nor, in my opinion, does the definition of “minor change”, without which I would have difficulty in accepting what the appellants propose as minor change. (That is notwithstanding the generous approach which has been taken under s 4.1.52(2)(b), as to which Mr Hughes referred to Gaven Developments Pty Ltd v Scenic Rim Regional Council [2009] QPEC 119; [2010] QPELR 385 at 391K. But for s 350 of the SPA, the outcome for the appellants may well have been akin to that under earlier legislation in Heilbronn & Partners v Gold Coast City Council [2004] QPEC 80; [2005] QPELR 386.)
[22] As to the “dot points” in the guidelines:
•There may be different or additional impacts, but there is no new use here;
•No new land comes in;
•The changes Mr Panaretos identifies, assuming they happen, are far from ‘dramatic’ in my view;
•There is no change to the ability of the proposal to operate as intended;
•No component of the development is removed;
•There will be significant impacts on traffic flow, etc., presumably to increase by a third;
•Similarly, there will be new or increased impacts from integration with Canungra’s general water and sewerage infrastructure arrangements (no doubt the new households will come in on a ‘user pays’ basis);
•No component is removed, although the domestic water storages will be smaller;
•There will be a one-third increase in demand for everything above what would apply; there is no suggestion of any concerning impact on any particular location from which infrastructure is provided.

[23] As the quoted passage states, the satisfaction of any dot point (or combination of dot points) indicates that a substantially different development may be involved, not that one is. For the reasons given, the appropriate determination is that there is not a substantially different development proposed here; accordingly, the changes represent ‘minor change’, even when considered collectively, as the court must consider them. I agree with his Honour that there may be a substantially different development use though application of the guidelines would not lead to that outcome.”

I am comfortably satisfied that there is no substantially different development involved here. The Wilson Street impacts will reduce. Those in Paradise Street will essentially be the same, any changes, in my view, are of no moment. Access arrangements apart, the proposal is unchanged. All change proposed is minor change: IPA s 4.1.52 does not stand in the way of the appeal proceeding on the basis of it.

Compromise of desired environmental outcomes

The appellant presents a second line of attack on the proposal (original or changed) which if successful would oblige the court to allow the appeal and refuse the development application (the onus in this proceeding lies on the co-respondent Parkside to establish that the appeal ought to be dismissed), namely that a decision to approve would compromise the achievement of desired environmental outcomes set out in the planning scheme. IPA s 3.5.14(2) is:

“If the application is for development in a planning scheme area, the assessment manager's decision must not–
(a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.”

The appellant’s argument for “compromise” relates to DEOs calling for a centres hierarchy in which no provision is made to include the site and DEOs which encourage the land being developed for residential use; as to the latter, reference was made to DEO (d), which commences:

“(d) Amenity and Community Well-Being
Community identity is established through the following:

(i) a wide range of affordable and accessible housing is available which is suitable for the climate, meets the needs of the City's population and is convenient to community facilities, employment and recreation opportunities.
(ii) convenient access is provided to a range of community facilities and services, including health care, education, shopping and business services, cultural and entertainment facilities, and recreation and sporting facilities to achieve a standard of living coincident with residents’ expectations.”

In both respects the proposal is said to compromise achievement of the DEO provisions. The written argument presented conflates the arguments for compromise of achievement of DEOs and for conflict with the planning scheme so far as the DEOs are part of it:

“Compromise of and conflict with DEOs 3(c)(iv), (v) and (vi)
94.The desired environmental outcomes, or ‘DEOs’, are identified as the basis for the measures of Mackay Plan. They are to be read as a whole and each is to be achieved to the extent practicable having regard to the other DEO’s.[14]
[14]See sections 3.1(1) and 3.1(2) at p.19 of Ex 5
95.Pertinent to this appeal, s.3.1(3)(c) identifies the outcomes for Economic Development in Mackay.
96.Under section 3.1(3)(c)(iv) it is a desired environmental outcome that a network of centres is established and maintained according to a hierarchical arrangement of roles and functions to meet the needs of the population.
97.That network (which is shown on the Information Map referenced in the Strategic Framework[15]) includes a series of elements which are described by reference to the function of each type of centre.
[15]Ex 5 p.122
98.West Mackay, including MSC’s land is identified as a local centre.[16] Parkside’s land is not identified as a centre.[17]
[16]Ex 5 pp. 122, 117 and 121
[17]Ex 5 pp. 122, 117 and 121
99.It may be argued by the other parties that the centres hierarchy is not an exhaustive list (i.e. where the network is identified on a map “and includes” various named centres[18]).
[18]E.g. DEO 3.1(3)(c)(iv) and Retail and Commercial Code para 9.101(2)(a)
100.That approach to construction of these aspects of Mackay Plan would however be wrong because:
(a)while it can be true to say that use of the phrase “and includes” can result in a provision which is neither exhaustive nor exclusive, there will be circumstances where the context of a provision, suggests an alternate construction;[19]
[19]See YZ Finance Co v Cummings (1964) 109 CLR 395, where the majority of the High Court held that the items included in a definition (and others not included) would have fallen within the ordinary use of the expression, thus leading to a construction of the exhaustive character or exclusivity of the definition; see McTiernan J at p396-399 (with whom Windeyer and Taylor JJ agreed); Kitto J p402 to 403; Menzie J, dissenting, applied the same reasoning but reached the opposite conclusion
(b)the terms of a planning scheme are not taken to be drafted with the precision of statutes drawn by parliamentary counsel and care must be taken to applying an overly rigorous approach;[20]
[20]See Lockyer Valley Regional Council v Westlink & Ors [2011] QCA 358 at [20] & cases cited; Ganter & Ors v Townsville City Council & Anor [2004] QPEC 058 at [102].
(c)read fairly, Mackay Plan s not using the expression “and includes” in a definitional sense, but in a way intended to identify by status and location, the elements of the hierarchy;
(d)the use of the expression “and includes” in a planning document calls for a commonsense approach, reading the provision in context (i.e. DEO 3.1(3)(c)(iv) must be read in the context of DEO 3.1(3)(c)(v) and DEO 3.1(3)(c)(vi); likewise, Retail & Commercial Code para 9.101(2)(a), must be read in the context of the following provisions of para 9.101(2)(b) to (e));
(e)once that context is appreciated, it is apparent that the drafters of the scheme intended the list (illustrated by the Information Map – Network of Centres and clarified by the zone maps) to be exhaustive (or exclusive), qualified by the associated provisions that allow “commercial activities”[21] outside identified centres to play a limited role[22];
[21]The use of this language, as distinct from using “new centres” also appears to be deliberate
[22]This is consistent with Mr Reynold’s evidence as to the practical application of the scheme, discussed later in these submissions
(f)thus, a fair reading of the Mackay Plan shows that the authors of the scheme were treating the expression “and includes” as one of precision, while identifying clear limits of any flexibility that might obtain[23].
[23]As to the significance where the drafter’s apparent intentions suggested precision in the use of the term, see Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242.

101.Under section 3.1(3)(c)(v) it is a desired environmental outcome that the growth of centres occurs in step with community need, recognising the role and function of other centres within the network of centres.
102.The focus is on growth of centres, not the creation of a new centre which is the obvious (and apparently uncontentious) outcome of approval of the Proposal.[24]
[24]See evidence of Mr Motti T11-20 L5-20, T11-35 L5-39; Mr Buckley T11-46 L10-25, T11-55 L20‑45.
103.Under section 3.1(3)(c)(vi) it is a desired environmental outcome that retail and commercial activities outside a centre identified within the network of centres (i.e. on land that is not shown on the Information Map as informed by the extent of land in the commercial zone[25]) are limited to premises with a size and function consistent with the provision of local facilities.
[25]Ex 5 p.122 and Note 5 at bottom of p.20
104.The term “local facilities” is not defined in this part of, or more generally in, Mackay Plan.[26]
[26]cf. Ex 5 p.99
105.The term is defined in the Retail and Commercial Code[27] as:
[27]cf. Ex 5 p.92
“retail and commercial facilities which service the daily convenience need of a local trade catchment containing no more than 2500 households.”

106.Given that, consistent with DEO 3.1(3)(c)(iv), the Retail and Commercial Code seeks, as an overall outcome, the establishment of retail and commercial uses which comply with the location of Centres as identified in the network of centres[28], reference to that definition is apposite.
[28]cf. Ex 5 p.90 s.9.101(2)(a)
107.It is common ground that the Proposal is intended to service a total trade area with an estimated population in 2013 of 28,460[29] with an average household size of 2.4[30]. This equates to over 11,850 households.
[29]Ex 4 Tab 3 p.28, table 4.2
[30]Ex 4 Tab 3 p.25, table 4.1
108.Even the primary trade area is intended to be serviced by the Proposal has an estimated population in 2013 of 9,630[31], which with the average household size of 2.4[32], equates to over 4,000 households.
[31]Ex 4, Tab 3, p.28, table 4.2
[32]Ex 4, Tab 3, p.25, table 4.1
109.The Proposal is on land that is not identified as a centre.
110.The Proposal is not directed to achieving growth of a centre.
111.The Proposal is not directed to achieving growth of a centre.
112.For reasons that will be developed later in these submissions, the Proposal is not in step with community need.
113.The Proposal intends to supplant, rather than recognise the role and function of other centres within the network.
114.The Proposal is not of a size and function consistent with the provision of local facilities.
115.In consequence, the DEOs for Economic Development, numbers 3(c)(iv), (v) and (vi), would be compromised (in the sense recognised by the authorities to which we have referred above) by a decision to approve the Proposal and thus attracts the operation of section 3.5.14(2)(a) of IPA.
116.That a decision to approve the Proposal will result in compromise of this kind does not afford an opportunity to consider whether there may be relevant matters of public interest that might justify a decision to approve. Put shortly, section 3.5.14(2)(a) of IPA forbids development which compromises the achievement of a DEO.
117.For reasons that will be developed later in these submissions, the operation of section 3.5.14(4)(c) is not enlivened. Indeed, far from being necessary to further the outcomes of the Regional Plan, that DEOs 3(c)(iv), (v) and (vi) are compromised reflects the way in which the Proposal is at variance with the relevant aspects of the Regional Plan.
118.At the very least, the Proposal is in conflict with each of the DEOs for Economic Development, numbers 3(c)(iv), (v) and (vi).
119.While that might attract the operation of section 3.5.14(2)(b) of IPA, there are, for reasons that will be developed later in these submissions, no matter of public interest that would warrant approval of the Proposal despite those conflict.

Compromise of and conflict with DEO 3(d)(i)
120.It bears repeating that DEOs are the basis for the measures of Mackay Plan. They are to be read as a whole and each is to be achieved to the extent practicable having regard to the other DEOs.
121.Pertinent to this appeal, s.3.1(3)(d) identifies the outcomes for Amenity and Community Well-being in Mackay.
122.Under section 3.1.3(d)(i) it is a desired environmental outcome that community identity be established through making available a wide range of affordable and accessible housing, convenient to community facilities, employment and recreation opportunities.
123.Parkside’s land is included in the Higher Density Residential zone under Mackay Plan. It is convenient to community facilities, employment and recreation opportunities.
124.Parkside’s land is:
(a)well located within 500 metres of the existing designated West Mackay local centre;
(b)a large landholding that does not require amalgamation to proceed;
(c)vacant and available;
(d)located close to both the CBD and another major employment area (i.e. Paget);
(e)the largest vacant allotment within the Higher Density Residential zone on the southern side of Mackay with an ability to deliver an “affordable” outcome (with the median price of units being consistently below the median price of houses and the subject site not being a waterfront site)[33].
[33]Ex 4, Economist’s JER, para.149

125.These and other relevant characteristics were acknowledged by experts called by the other parties, although Messrs Duane and Leyshon preferred to treat affordability as indicating a special variety of low cost housing, in contrast to Mr Norling who saw affordability as a more comparative concept.[34]
[34]See evidence of Mr Motti, T11-22 L40 to T11-23 L30; evidence of Mr Buckley T11-46 L35‑45, 11‑48 L35-40 (and agreeing that remediation for residential purposes was feasible) T11-60, L30‑45; Mr Leyshon, T4-89 to T4-91 L50.

126.Put shortly, the Proposal is intended to take up land that is identified for intensified residential use; land that is available and convenient to community facilities, employment and recreation opportunities.
127.In consequence a DEOs for Amenity and Community Well-being, number 3(d)(i) would be compromised (in the sense recognised by the authorities to which we have referred) by a decision to approve the Proposal and thus attracts the operation of section 3.5.14(2)(a) of IPA.
128.That a decision to approve the Proposal will result in compromise of this kind does not afford an opportunity to consider whether there may be relevant matters of public interest that might justify a decision to approve. Again, section 3.5.14(2)(a) of IPA forbids development which compromises the achievement of a DEO.
129.Again, the operation of section 3.5.14(4)(c) is not enlivened. Putting land identified and suitable for residential use to use for commercial purposes is not consistent with the Regional Plan for reasons that are developed later in these submissions.
130.At the very least, the Proposal is in conflict with DEO for Amenity and Community Well-being, number 3(d)(i), which might attract the operation of section 3.5.14(2)(b) of IPA, although there are no matters of public interest that would justify approval of the Proposal despite this conflict for reasons that will be developed later in these submissions.”

Against that contention, reference was made to DEO (d)(ii) as supporting the proposal to the extent that it enables “convenient access to … shopping and business services …coincident with residents’ expectations”. The entirety of 3(d) is:

“(d) Amenity and Community Well-being
Community identity is established through the following:
(i)a wide range of affordable and accessible housing is available which is suitable for the climate, meets the needs of the City’s population and is convenient to community facilities, employment and recreation opportunities.
(ii)convenient access is provided to a range of community facilities and services, cultural and entertainment facilities, and recreation and sporting facilities to achieve a standard of living coincident with residents’ expectations.
(iii)the City’s population has a high level of mobility through an efficient and viable transport system, including public transport and pedestrian and cycle transport.
(iv)a diverse range of public open spaces and recreation opportunities is provided in generally accessible locations or in locations and settings suitable for the desired range of recreational experiences and for the appreciation of the City’s habitat and biodiversity values.
(v)a wide range of living and lifestyle options are available to residents including urban, rural residential, village, rural and island living.
(vi)the open space network of the City is established and enhanced for the continued use and enjoyment of the City’s population.”

In my opinion conflict, which may be overcome or circumvented if there are “sufficient grounds”, is established, but not compromise of (i.e. threat to) achievement. Paragraphs 115 and 127, set out above, allege compromise of DEOs 3(c)(iv), (v) and (vi) and of DEO 3(d)(i) rather faintly. The centres hierarchy described by reference to locations mentioned in the planning scheme will continue to operate as desired, although some centres, including West Mackay, play roles exceeding those envisaged, and, of course, there have been developed new centres, which happen to go beyond the “local” facilities contemplated by the planning scheme, notably at Ooralea. One may also regard the recently approved South Mackay Bunnings as a new “shopping centre” having regard to the definition of that term – and one very large in area, to boot. See Woodman McDonald Hardware Pty Ltd v Mackay Regional Council [2013] QPEC 021, an unsuccessful appeal by a commercial rival against approval of a Bunnings Hardware store on industrial land at Paget The Council and Parkside claimed that this decision supported their case that the planning scheme had been overtaken by events. Paragraph 132 of the reasons commences:

““[132] An overview of the grounds relied upon by Bunnings to justify the approval despite the conflicts is:
(a) the planning scheme is due for review in 2013 and has been overtaken by events. That is primarily as a consequence of the fact that the underlying assumptions of population growth upon which the scheme was based at the time of its commencement in 2006 have proven to have been substantially underestimated; I accept that submission.
(b) the failure of the planning scheme to cater for the needs of the unanticipated population is reflected by the Council’s recent approval of various large scale retail developments on land which is not within the Commercial Zone, or within the network of centres, and which involved what Mr Reynolds accepted were clear and high levels of conflict with the planning scheme; and also by the manner in which the Industrial (High Impact) zoned land has been developed; I accept these propositions.
(c) there is a need for the proposed development:
(i) large format hardware stores are a relatively recent, and very popular, phenomenon. They enjoy tremendous popularity with the public. More particularly, Bunnings is at the forefront of the phenomenon and, as Mr Malkiewicz agreed, “people want to go to Bunnings”; I accept this submission. Aside from economic need, I find that there is a latent, unsatisfied demand by those south of the river for a large format store of the type proposed and that approval does more than provide an attractive additional choice for consumers.
(ii) in its current form the planning scheme does not adequately cater for such stores to meet the need of the residents of Mackay and the region. That is evidenced by the recent approval of the “Masters” centre and the expanded Bunnings to the north of the River. There is no existing designated centre on the southern side of Mackay within which such a store can be located; I accept this submission.
(iii) …”

As for DEO provisions in respect of provision of housing, higher density residential in particular, if the zone comes into consideration, while the size of the site may point to its suitability and ready availability for housing on a large scale (whether or not “higher density”), given its presently being vacant, there are problems such as the impacts of Paradise Street traffic which the planning scheme recognises, and the damage that the previous use has done to the site, necessitating remediation to render it suitable for residential use. The appellant’s written submissions at paragraph 249ff established that there are no particular barriers to residential development of the site such as would apply were it on the contaminated land register; it is on the environmental management register, which led to the Department of Environment and Heritage being a concurrence agency. The general point remains, notwithstanding the inappropriateness of the co-respondent’s placing before the court estimated costs of remediation (alleged to preclude economic development for residential purposes), cost estimates that were highly misleading by reason of inclusion of a dumping levy, said to amount to nearly $1 million, a levy which is no longer chargeable. The co‑respondent’s evidence of prices achievable were apartments of various sizes produced on the site was hardly convincing. Higher density housing will be provided on the north-western corner of the sawmill site, now lot 13, where remediation was less burdensome and 56 apartments will be developed. There will also be 10 or 11 small residential lots developed to the south along Wilson Street, screening the built form of the shopping centre for the benefit of the well-established residential areas across Wilson Street.

The court accepts that the co-respondent does not wish to develop its property for higher density residential uses otherwise. It cannot be compelled to develop in that way. The question for the court concerns the merits of the development proposal it has settled upon and whether conflict with the planning scheme is outweighed by “sufficient grounds”. There will be higher density residential development along the whole Wilson Street frontage. As noted, the planning scheme contains indications against residential uses in Paradise Street. The evidence does not suggest the proposal will result in reduced provision of “affordable housing” in Mackay or that any loss of land within the site that might be turned to residential use is concerning.

The statements in the planning scheme against commercial development outside designated centres, however strong, do not suffice to preclude such development: IPA s 2.1.23(2). The “no prohibitions” aspect of IPA is illustrated in Vynotas Pty Ltd v Brisbane City Council [2002] 1 Qd R 108 in the analogous context of s 6.1.2(3) at [13].

The appellant’s own commercial development extends beyond the designated centre, incorporating higher density residential land. At the intersection on the diagonally opposite corner, again outside the centre and on higher density residential land is a new and large two-storey commercial building including a very large pharmacy, newsagency, food (including takeaway) outlets and professional offices, especially health-related. Even more significant is the established new Woolworths supermarket-based centre at Ooralea, a development not contemplated in the current planning scheme and as repugnant to it as, according to the appellant, Parkside’s proposal is. It represents an appropriate response to the growth of Mackay, and the needs of the expanding population. Unsurprisingly, the Ooralea centre is recognised in the draft of the proposed new planning scheme, there designated a major centre along with Mount Pleasant and Rural View, subordinate only to the City Centre and outranking Fourways (West Mackay) and the other “district centres”. These district centres have identified “relevant catchments (p 6-14); development in them must not “compete with or compromise” (compare the current requirement to ‘reinforce’) the viability, role or function of the others or any higher level centre; an acceptable outcome for the performance outcome of development that “fulfils but does not exceed” the relevant catchment’s needs. Centre activities in West Mackay would not exceed a GFA of a modest .35 times site area. The eponymous code wants “centre activities” located in a centre zone unless a “strong, local need will be fulfilled” and viability of designated centres will not be compromised: 9-19. As indicated above, the draft plan is of little relevance here. It designates the site medium density residential. In the circumstances, I do not think Parkside’s proposal can be said to cut across the draft scheme.

Economic impacts – on West Mackay in particular

Mr Duane prepared a table summarising the economists’ views regarding the impact of the proposal on existing centres likely to be affected, on West Mackay in particular. As regards West Mackay, all three accepted that the impact would be very high, exceeding the 15% benchmark beyond which the acceptability of the impacts may come into question:

“
TABLE 4.1 – PROJECTED SALES AND IMPACTS, MACKAY WEST

Sales & Impact 2015 (PL)			Sales & Impact 2015 (GD)			Sales & Impact 2015 (JN)
Unit	Post Exp.	$M	%	Post Exp.	$M	%	Post Exp.	$M	%
Subject Development	$M	40.7	40.7	n.a.	37.4	37.4	n.a.	33.0	33.0	n.a.
Mackay CBD
• Caneland	$M	336.5	-11.0	-3.2%	326.1	‑11.0	‑3.3%	331.8	-8.2	‑2.4%
• Sydney Street Markets	$M	65.9	-10.6	‑13.9%	67.2	-9.6	‑12.5%	66.3	-9.6	‑12.2%
• Other CBD	$M	161.0	-4.0	-2.4%	163.9	-3.3	-2.0%	161.0	-1.0	-0.6%
Total Mackay CBD	$M	563.4	-25.6	-4.3%	557.2	-23.9	-4.1%	559.1	‑18.8	-3.2%
Sub-regional centres
Mt Pleasant SC	$M	239.5	-2.5	-1.0%	244.1	-1.2	-0.5%	244.3	-0.7	-0.3%
Total Sub-Regional Centres	$M	239.5	-2.5	-1.0%	244.1	-1.2	-0.5%	244.3	-0.7	-0.3%
Other centres
West Mackay	$M	25.0	-5.5	-18.0%	24.7	-4.5	-15.5%	18.4	-9.6	-34.3%
East Mackay	$M	n.a.	n.a.	n.a.	14.2	-1.5	-9.5%	9.0	-1.0	-10.0%
North Mackay	$M	26.0	-0.5	-2.0%	26.8	-0.1	-0.5%	25.5	0.0	0.0%
Ooralea	$M	35.0	-5.5	-13.6%	35.6	-5.6	-13.5%	36.7	-3.3	-8.2%
Total Other Smkt Centres	$M	86.0	-11.5	-11.8%	101.3	-11.7	-10.4%	89.6	-13.9	-13.4%
Other Floorspace	$M	-1.1	-0.6

”

The initials PL, GD and JN refer to Mr Leyshon, Mr Duane and Mr Norling respectively. Mr Norling explained that the differences are not quite as dramatic as first appears, depending as they do on varying commencing dollar amounts, for example. Nonetheless he held greater fears for West Mackay than did the others. I prefer their lower estimates and the view that there is no unacceptable impact on West Mackay, essentially on the basis of the peculiar advantages West Mackay has, which can be expected to secure its long-term future. It straddles a key intersection in the transport network, enjoying high visibility from the Bruce Highway and Bridge Road, an important east-west connector in Mackay. Its proximity to the hospital in combination with the (presumably) consequential location of a high representation of medical and health-related tenancies (which will not relocate out of West Mackay in my view and certainly not to Parkside’s centre) will continue to draw people. Another “captive” potential clientele is provided by the large number of motels nearby along Nebo Road. The Australia Post mail facility in Bridge Road on a site which forms part of the centre and would be needed to accommodate any redevelopment at West Mackay to provide the currently expected scale and style of facilities as proposed by Parkside, contains one of the major banks of post office boxes in Mackay, constituting another drawcard.

While the Parkside development to an extent may discourage renewal, the disparate ownership of land in the West Mackay centre will, for the foreseeable future, stand in the way of any large scale redevelopment there. Indicative of the limitations of that centre is that Coles explored the prospects of establishing a full line supermarket there. As I understood the evidence, there would have been barely sufficient parking available even for a store of only 2500 m².

The planning scheme (current or draft) seeks protection of the viability, role, function, etc of West Mackay and other main centres. Viability connotes ability to survive, and, I suppose, thrive, to adopt a higher threshold for competition wanting to enter the marketplace. It does not connote a high or any particular level of profitability. The focus is upon the fate of the centre as a whole, which the economists’ evidence persuades me will continue to fulfil or even operate beyond the levels intended by the current and draft planning schemes, as it has been doing already. The focus is not on particular owners or developers in the centre, such as the appellant, still less on particular businesses.

A good deal of the evidence concerned the likely impacts of a large full-line Coles at Parkside on the comparatively modest Supa IGA supermarket expected at West Mackay on the appellant’s site. Of the evidence, much centred on the special abilities of Mr Hyslop, who is not yet finally committed, but is expected to become sub-lessee of the supermarket premises still under construction and operator of the Supa IGA supermarket there. He would sign up aware of the potential of a new competitor at Parkside. His would be a full-line supermarket, purporting to offer the same range of products as any Coles or Woolworths. This is achieved by means such as reduced “facings” of particular product lines on shelving in narrower aisles (allowing more aisles to be fitted in), a reduced range of sizes of particular product lines, more efficient use of storage space not accessible to customers, and the like. The evidence showed that there will nevertheless be considerably greater offerings in terms of variety of products by a large Coles, say, in fresh meat products. It would seem unlikely that families would opt to do all of their weekly food shopping consistently at the IGA if variety were sought. Meat was the persuasive example, among others offered, to support the views expressed by Mr Leyshon and Mr Duane and others that in present day conditions, consumers expect to have access to the larger-format supermarkets said to offer a different (and the nowadays generally expected) shopping experience. In other words, there are in a way overlapping but also separate markets – an IGA of the scale proposed at West Mackay is not in the top league and does not offer the community generally satisfaction of what they regard as their supermarket shopping needs. Thus Mr Duane and Mr Leyshon are persuasive that there is a need constituting a ground for purposes of s 3.5.14(2) of IPA for the proposed supermarket (and the other components – the parties effectively chose to fight the appeal on the supermarket issue) in Parkside’s proposal – in the trade area(s) identified by the economists.

The new IGA, many times the size of the tiny one now operating across Bridge Road and unconnected with Mr Hyslop, will be there for those who find it more convenient, congenial or cost-saving to patronise. The Council sought to show that Mr Hyslop’s history is one of successfully competing with larger full-line Coles or Woolworths supermarkets in towns such as Warwick, Gatton and Kingaroy. He has skills and access to resources that enable him to provide fresh food offerings outstanding in quality, variety and quantity. The appellant uses this consideration in seeking to show that there is no need for a Coles at Paradise Street, the other parties say it shows that Mr Hyslop’s IGA, like the West Mackay centre as a whole, will trade successfully against new competition.

The predictions the economists make here about the impacts of the proposal on other centres have the extra dimension that a Supa IGA at West Mackay is not yet established; they have had to predict what its likely performance will be against the existing supermarkets in the area, including the relatively new Coles establishing itself at the Canelands Centre, a couple of kilometres away in expanded premises where an IGA previously traded – no evidence was given as to the reasons for IGA’s departure – and the Coles at Sydney Street, said to be too popular and “over-trading”. Coles’ motivations are said to be, in one aspect, to assist Sydney Street by drawing off some of its customers.

It is convenient at this point to mention the suggestion that residents of the trade area identified by the economists that would be serviced by the Paradise Street Coles could conveniently continue to shop as they presently would be doing at Canelands (Woolworths and Coles) or Sydney Street (Coles) in the CBD. In recent times the option has been there for those in the south to use the new Woolworths at Ooralea; it was asserted that travel times came within guidelines in the planning scheme, that – Sydney Street possibly excepted – there was ample convenient parking provision. I reject this suggestion to the extent that it is put up to disprove need in respect of that trade area. Its population, albeit relatively stable and not growing as is Mackay more generally, is demonstrably sufficient to support the new supermarket-based centre, according to accepted rules of thumb economic experts embrace. It is not a case of extra convenience or services offered for the benefit of only a few. By those “rules”, Mackay as a whole is not at risk of being oversupplied with supermarkets. Paragraph 300(d) of the appellant’s submission records that Mr Norling considered the coming Supa IGA proposal as “half” a supermarket and contends that this should have been counted. Even if that is right, the difference is not great and is likely to be subsumed by the huge population growth anticipated around Ooralea. Relevant here is that the CBD supermarkets to an extent serve not just their own nearby residents, but indeed the whole of Mackay, both south and north beyond the Pioneer River. Accepting that Mackay is very different from the metropolis, I think it appropriate to accept the existence of a “need” for a new full-line supermarket to be satisfied by local facilities, as opposed to ones, even relatively nearby, in a CBD. Notwithstanding the appellant’s criticism of Mr Duane’s Map 2.4 as paying too little regard to the “nearby” supermarkets and ignoring its own development[35], I find that map persuasive to demonstrate the economists’ identification of a viable Main Trade Area in need of Parkside’s facility, by reference to the supermarket.[36] The new development stands as an ideally and centrally located focus south of the Pioneer River. It is a southern Andergrove, to Canelands (Mount Pleasant) and Ooralea (Rural View/Northern Beaches).
[35]What is now expected to be the IGA supermarket has been long approved (since 2006) and been slow to eventuate. It may still not eventuate, although the building is substantially up. I have accepted the “majority” view of economists and planners that, regardless of the merits of smaller facilities in offering impressive numbers of Stock Control Units (SCUs), their comparatively small size and more limited parking facilities justify their being overlooked in the market identification exercises ultimately irrelevant here.
[36]The appellant’s closing submissions advanced the point that the need for 18 or so new specialty shops on the site was not demonstrated. That may be the case, but in my view the parties should be held bound by their having conducted the appeal as if the test of need for the proposal was in terms of need for the supermarket.

Mr West, representing the entity behind IGA which finds premises suitable for IGA stores, then leases them on to operators like Mr Hyslop, gave interesting evidence. He said Mr Hyslop’s successes had been achieved in towns, deliberately selected, where the competition was from only one Coles or Woolworths outlet, the inference being that although there were already two of each reasonably close south of the Pioneer River, a new Coles within 500 metres would be intolerable. Estimates of the shares of the anticipated supermarket spend achievable at IGA West Mackay to be lost started at one-third and went upwards. I thought Mr West somewhat defeatist in his apparent attitude that, whatever the IGA operator might do, market shares would be worked out in line with general statistics for Queensland (if not for Queensland and beyond) whereby the two dominant supermarket players achieved their high market shares, almost regardless of local circumstances. It is difficult to accept that. The success of any supermarket must depend on the way in which it is run in the circumstances of its trading context, which I accept might be overwhelming in some cases, of which this is not shown to be one. Statistics do not dictate particular outcomes. Mr West gave an example of a supermarket with sales far above standard benchmarks, but not trading profitably, because the rent demanded by the landlord was unusually high. Mr West may well be able to organise rent at an appropriate level to assure Mr Hyslop of an acceptable outcome if he performs at his accustomed high standards; there was no suggestion that this could not occur.

The foregoing discussion is really by-the-by. The outcome or decision here depends on more general considerations of West Mackay local (or district) centre’s viability, not on considerations of the viability of a project of one owner on one site of many in the centre, still less of the viability of one of a number of traders expected to operate once the project comes to fruition.

Something was made of expectations based on the planning scheme that nothing like Parkside’s proposal would emerge on the site to offer competition. No doubt anyone interested learned of that proposal as soon as it was made. The court heard from the appellant’s principal that it was considered the planning scheme precluded Council approval. The appellant decided to pursue its own project even when the Council’s decision disabused it of any such belief. While planning schemes may be replete with statements that expectations should be met, not be frustrated, history shows that our planning regime is one in which, often, expectations are frustrated. In former times it could happen whenever there was a rezoning. Planning schemes get changed more generally. Expectations that “acceptable solutions” will be insisted upon and achieved in practice are unrealistic. Expectations cannot constrain the court’s decision here. It is a truism that under IPA nothing was prohibited. Under this planning scheme, the approach of identifying larger numbers of uses as “inconsistent” has not been followed. The proposal can claim consistency, in the sense that it is not one of the few use(s) identified as inconsistent. It is nevertheless impact assessable and requires to be justified on its merits (compare Woodman McDonald Hardware at [94]) and in circumstances before the court of conflict with the planning scheme, obliged to show special “grounds” justifying approval nevertheless.

Relevance of the Council’s attitude

Although this appeal is a rehearing, in which the co-respondent must establish before the court a case for approval of its proposal (i.e. that the appeal should be dimissed), uninfluenced by the Council’s favourable determination, the Council is the planning authority, and its persistence in advocating strongly for the proposal in the appeal is a factor the court is entitled to take some notice of in line with certain judicial utterances (Scurr v Brisbane City Council (1973) 133 CLR 242, 257; Wingate Properties v Brisbane City Council [2001] QPELR 272, [22]), as might have been strong Council opposition. A developer with Council support would usually be in a better situation. Of course, what counts in the end is the persuasiveness of the Council’s case, from the standpoint of assisting the developer to satisfy the onus the developer bears. I reject the veiled suggestion by the appellant (submissions paragraph 435) that the Council’s decision under appeal being a “delegated decision” in some way deprives it of whatever weight it might otherwise have, and that the delegate erred in approving because the proposal cut across the draft scheme, of which the Council is the proponent. Its endorsement of the decision could hardly have been any more enthusiastic.

Dimensions of conflict

There is conflict with the essentially similar overall outcome (h) for the Locality (para [10]) and overall outcome (c) for the precinct (para [11]), thus necessarily with P1 so far as it calls for location in the Commercial zone. The proposal may be seen as conflicting with (as opposed to compromising) DEO (c)(vi) (para [7]) if the proposal provides more than “local facilities”, which I regard as debatable.

Turning to the Commercial zone provisions applicable in the precinct, there is inconsistency with Overall Outcome 2 and specific outcome P1 (para [11]) based on the same considerations of scale of the proposal; strictly, there is not conflict, as the site is not in this zone. In the Higher Density Residential zone provisions, the overall outcomes (2)(a) to (d) and (i) set out above (para [12]) are strongly satisfied, but there may be conflict with P4 according to whether the proposal uses are “small‑scale uses … directly related to servicing the needs of residential uses”, the only issue being “small-scale”.

The Retail and Commercial Code (para [13]) is important. It contains a definition of “Local Facilities” in 9.103 for its purposes under which the proposal does not qualify; its size is such that it will serve an excessive number of households, as, indeed, it is intended to do. I agree with the appellant’s characterisation of the proposal as a new centre.

So far as the proposal is not or is not within a centre identified by name in the planning scheme, there is conflict with (2)(d)(i) and (2)(e) if such identification is vital to constituting a “designated centre”. However, P1 acknowledges there can be retail and commercial activities in premises (which one would think must constitute retail or commercial “development” or “uses”). P5 literally contemplates additional centres, at least at Sub-regional level. There is much debate as to whether P6 applies in such a way as to permit development only within a designated centre (but of a kind not anticipated in it – for example, comparison shopping in a local centre) or more widely to permit development in locations outside a designated centre; in other words going beyond what the planning scheme anticipated would occur in the centres designated in it, and contemplating additional centres (facilities); P6(ii) refers to “centre” generally and not to “designated centre”. Why would not P6(i) refer to “the designated centre” rather than “a designated centre” to indicate reference to the “designated centre” called up by the preamble which precedes it? Accepting that the expression is clumsy, I am of the view that the wider application should be preferred, while making it clear that the outcome of this appeal does not depend on giving effect to that preference. In my view the proposal satisfies P5 in the sense of fitting somewhere between the neighbourhood and local levels, also satisfies all elements of P6 (assuming it to be applicable) and P7 in terms of accessibility, taking “Locality” as reference to the Frame Locality. For (iv), if there is duplication, I do not consider it to be “unnecessary duplication”. For P7 this leaves a question as to “reinforcing” the vitality of designated centres, in particular West Mackay. “Reinforce” normally means “strengthen”. But what would need to be strengthened, in my view, is West Mackay’s designated role as a local centre, not any role at some higher level that it may come to fulfil. It is interesting that the draft scheme is in terms of not competing with or compromising. One would think no new centre in Mackay south of the river would reinforce the others, that it would inevitably compete and take trade away; this consideration must be kept in mind; “reinforce” does have less literal connotations, as noted in the Cambridge Dictionaries Online:

“reinforce
Definition
C2 to make something stronger:
The pockets on my jeans are reinforced with double stitching.

C1If something reinforces an idea or opinion, it provides more proof or support for it and makes it seem true:
The final technical report into the accident reinforces the findings of initial investigations.

His behaviour merely reinforced my dislike of him.
to provide an army with more soldiers or weapons to make it stronger:
The garrison is to be reinforced with/by another two battalions of soldiers.

(Definition of reinforce verb from the Cambridge Advanced Learner’s Dictionary & Thesaurus © Cambridge University Press)”

Traffic, parking

The court had assistance from three traffic engineers, Mr Pekol (engaged by the appellant), Mr Beard (by the Council) and Mr Camilleri (by Parkside) who provided opinions regarding issues the appellant contended placed difficulties in the way of the proposal being acceptable. These experts formed fluctuating coalitions. I found myself accepting the majority view on their issues, which typically were Mr Beard’s. There is a potential threat to a dozen or so parking spaces on land which has been dedicated to the Council to facilitate road-widening, although the precise areas concerned are apparently needed to accommodate services rather than a roadway or footpath; the Council has made this land available for car parking for the shopping centre, but has the right to terminate the arrangement on notice, on the face of things taking away parking spaces indicated in the present design. There is confidence that if the worst came to the worst, the car park could be redesigned to replace lost spaces – the risk of actual provision falling below acceptable standards to serve the centre was considered not to justify the refusal of the development application. The majority view was that the shopping centre should not operate until the Paradise Street – Bridge Road intersection was signalised. Mr Camilleri’s view that the existing arrangements could be tolerated for some time in expectation of traffic lights eventuating, conceded to be less than satisfactory, is unpersuasive given that the potential duration of the indulgence may prove unacceptably long. Parkside already is obliged to make significant dedications of land to improve the intersection by provision of additional lanes and a general widening of Bridge Road, arguably a “s 3.5.14 ground”; it may find itself prepared to contribute to a further public benefit by way of signalisation – the only recommended way while improving both traffic flow and pedestrian safety. I reject the suggestion that approval should be withheld until the impacts of signalisation in combination with the redesigned Paradise Street entry are worked out. Signalisation is required not only to enhance safety and efficient operation of the intersection but because (in consequence) it will reduce queue lengths. Signalisation is an improvement already needed, even without the proposal and we can be confident that it will prove efficacious, on the evidence as I understand it. Mr Pekol considered that the interests of pedestrian safety required certain changes such as a different pedestrian circulating pattern within car park and for pedestrians moving along Bridge Road across the vehicle entry, as well as closing off the corner of the car park at the busy intersection to preclude people gaining entry to the shopping centre at that point. I am unpersuaded of any need for those changes, which did not find favour with the other traffic experts.

The Coty principle and IPA ss 3.5.6 & 4.1.52(2)(a)

The Coty principle, recognised by the Court of Appeal in Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266 at 271 and Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306 at 328, allows reference to be made to draft planning instruments in the assessment of development applications, especially where they have “progressed a substantial distance along the statutory path to gazettal”. Reference to draft instruments may support a proposal that is problematic under the current planning scheme or tend to stand in the way of a proposal which would cut across or frustrate planning policies that appeared close to being adopted. As far as the draft planning scheme here (parts of which were tendered) is concerned, I consider it has no implications for the outcome of this appeal. The evidence shows that the Council has “endorsed” the draft scheme deliberately (Exhibit FG10) and is in the course of propounding it. On the other hand, on the face of things inconsistently, it embraces Parkside’s development proposal, which conflicts with the draft scheme in roughly the same ways as it conflicts with the current one. I think the Council has proceeded correctly in leaving the draft scheme as it presently stands, rather than (inappropriately, in my view) inserting provisions that might assist Parkside. That the draft scheme envisages new centres or expansion of centres not contemplated in the current planning scheme is evident: the newcomer Ooralea, for example, is allocated 50,000m² of commercial space. It is convenient to set out the appellant’s related argument presenting the relevant Regional Plan adopted by the State as telling against the development application, which, of course, has the advantage of having been lodged well before the Regional Plan came about. The following paragraph reproduces, with a small number of additions made by me, the appellant’s written submissions in this regard.

“Conflict with the Regional Plan

“365. The Mackay, Isaac and Whitsunday Regional Plan is a statutory instrument prepared in consultation with Council representatives which was released in draft for public comment on 31 May 2011. It took effect in February 2012. It recognises the region’s accelerated growth over the past five years.
366.It is not a document that is identified in Mackay Plan as being appropriately reflected therein; nor could it be given Mackay Plan was consolidated on 13 May 2009. It is a document to which regard must be had in assessing an impact assessable development (if in force when the application was made: IPA s.3.5.5(2)(c)(iii)).
367.To the extent of any inconsistency between a local planning scheme and the Regional Plan, the Regional Plan prevails. It is a document to which the Council was, and this Court is, entitled to give weight, having regard to IPA ss 3.5.6 and 4.1.52(2)(a). A development application for unwelcome residential development was refused on this basis having regard to the corresponding Far North Queensland Regional Plan 2009-2031 in Prettlejohn v Cairns Regional Council [2012] QPELR 485.
368.The purpose of the Regional Plan is to establish a vision and direction for the region to the year 2031. It provides certainty and a framework to respond to challenges and opportunities.
369.To achieve its purpose the Regional Plan provides strategies to inform future decision making.
370. To that end:
‘As the pre-eminent plan for the region, the regional plan takes precedence over all planning instruments and provides context at a local level planning. The Regional Plan will be implemented by the coordination actions of State and Local governments and the community to achieve this shared vision for the future.’

371.Part B of the Regional Plan defines and describes the regional vision and summarises the strategic directions taken within the Regional Plan to achieve this vision. It goes on to describe the desired regional settlement pattern and outlines the strategic intent for each sub-region.
372.Part C contains the desired regional outcomes. These are expressed in terms of a statement of Principle, followed by a series of Policy statements germane to the advancement of that Principle.
373.‘Urban Form’ is one of the topics of the regional outcomes sought to be achieved by the plan. A subset of this theme is Centres.
374.Paragraph 8.3.1 identifies a relevant principle as being:
‘Regional centres in towns are the focal point for the provision of retail, commercial and community services, economic growth and diversity.’

going on to recognise the prospect of multiple centres in towns and cities which should be reinforced to ensure they remain vibrant and sustainable.

375.As with the various other outcomes, policies are identified which are intended to support the principle.
376.Of particular relevance are the following policy statements:
‘8.3.7Develop centres of appropriate type, diversity, scale and form suitable for the size and need of its catchment.
8.3.8Out of centre development is not supported as it may detrimentally impact on the role and function of defined activity centres.’

377.The ‘notes’ which then follow the statements and principle and policy contained in Part C, although not part of the Regional Plan, are to provide guidance to assist the interpretation of the Regional Plan. The notes include the following:
‘…Centre activities should be located within defined centres, only allowing them to occur outside of centres where:
•There is a demonstrated public need or a sound economic justification for its location outside a centre.
•There are no alternatives within the centre.
•There would be no adverse impact on the economic or social function of the existing centres, or on the urban infrastructure network.

…’
378.Regional Outcome 7 – ‘Managing Growth’ recognises the unprecedented growth in the region and the challenges for efficient land use.
379.Principle 7.1.1 records the aspiration that land be used efficiently, taking into account the costs of servicing, projected demand on and from existing urban infrastructure and employment. The supporting policy statements include:
‘7.1.2   Urban growth is consolidated in a compact settlement pattern within areas identified for this purpose.
7.1.3    Development includes a mix of uses in … infill areas …
7.1.4    Development is located and sequenced to make the best use of existing infrastructure, and ensure efficient and cost-effective investment in new infrastructure.
7.1.5    A mix of uses, including diverse housing opportunities… are provided to create more accessible and self-contained communities.
…
7.1.7    Land required for future urban growth is protected from fragmentation and inappropriate land use.
7.1.8    A range of … housing types is provided within urban areas to cater to diverse needs, including resident and non‑resident workers.
…
7.1.10 Promote and accommodate growth in areas where existing planned infrastructure and services can accommodate it.
…
7.1.12 Identify and address the social and community needs of higher density residential development when preparing plans for activity centres and established urban areas to accommodate additional growth.’

380.Parkside’s land is within the Urban Footprint on Map 8: Development Areas and Identified Growth Areas.
381.Principle 7.4.1221 expresses the outcome that housing meets the needs of the community, considering all life-style stages, varying demands and economic circumstances. Its policy statements go on to express how this is to be achieved, including:

‘7.4.2 Housing options are accessible, sustainable, respond to demographic characteristics and are adaptable to the changing needs of residents and households over time
7.4.3 Encourage the incorporation of affordable housing, including suitable housing for entry level buyers and low-income earners’

382.The planners gave the following consideration to the Regional Plan in the Planning Joint Expert Report (or JER), Mr Reynolds having indicated its relevance:
‘5.5Further to the centres planning principles set out above, SR notes and endorses the statements in the Mackay, Isaac and Whitsunday Regional Plan 2012 relevant to these centres planning principles:
‘Principle 8.3.1…Reinforcing established centres within each town and city as the focal point for commercial, retail, government services, tourism and civic activities will ensure they remain vibrant and sustainable.’
‘Policy 8.3.8… Out-of-Centre development is not supported as it may detrimentally impact on the role and function of defined activity centres.’
‘Notes (for 8.3)… The traditional centres in most large regional communities have been affected by out-of-centre development, including the decentralisation of retail, industrial and government services. Further decentralisation is not supported. Out-of-centre development can undermine the role and function of a centre, diminish the vitality of activity centres and detract from economic growth by diluting public and private investment in centre‑related activities, facilities and infrastructure.’

5.6CB notes, and SM agrees, the Regional Plan’s higher level status as regional policy, but believes because it post-dates the current planning scheme, it is the current planning scheme that has most relevance.’

383.The approach adopted by Messrs. Buckley and Motti is wrong.
384.The Regional Plan was a matter to which the report on which the delegated decision to approve the Proposal gave inadequate consideration.
385.The Regional Plan reinforces the planning approach adopted in Mackay Plan and the Draft Scheme, the Strategic Framework of which is specifically identified as appropriately advancing the Regional Plan.
386.The Regional Plan is a matter to which this Court should give significant weight given its preeminence.
387.The Proposal is at variance with the identified principles and policies within the Regional Plan.
388.The Proposal involves development of a new centre, outside the hierarchy identified in both Mackay Plan and the Draft Scheme. The Proposal does not reinforce the established centre at West Mackay …”

The Regional Plan, which strongly influenced the outcome in Prettlejohn, was given some weight in Woodman McDonald Hardware Pty Ltd at [138]-[140]. In the result, his Honour considered that the proposal approved “would not result in an unacceptable loss of industrial land”. Here, the argument based on the Regional Plan appears to be something of a makeweight or afterthought. The grounds in the notice of appeal do not mention it, Mr Reynolds did not return to it, it was not even tendered as evidence in the usual way (although the court is required to take cognisance of it as a statutory instrument – and the appellant did include a copy in its bundle of authorities). The other parties’ written submissions do not deal with the Regional Plan at all. Taxed with the issue in closing addresses, Mr Hughes said (T12-60):

“The regional plan argument falls, really, into the same category as – as the arguments that have been raised against approval with respect to in-centre, out-centre development. The only thing really that comes from the regional plan of much assistance – apart from promoting growth in Mackay, which underlies the general demand for these type of facilities – the only thing that comes is there’s a general discouragement about a centre development, but the regional plan still believes, from [in?] the assessment at the planning scheme level, of applications such as this. In terms of – we’ve conceded that there’s a conflict with the notion of discouraging – or encouraging in-centre development, but there are plenty of grounds, we say, that overcome that, and the extent of that conflict is not great in the scheme itself that contemplated new centres.”

and Mr Gore, as well as making same reference to Bird (supra) at [44-45], at relied on the issue not having been properly raised or pursued (T12-78, 79). I agree with that. For what it is worth, I think that the Regional Plan leaves it to Councils, in their planning authority role, to provide for appropriate hierarchies of centres and, in their assessment manager role, to consider the strength of grounds to support out-of-centre commercial development which necessarily conflicts with planning scheme provisions discouraging it.
Impacts of the proposal

The appellant, as is appropriate in any impact assessment process, alleged impacts of the proposal which it said told against approval, whatever the merits otherwise. Those include traffic and parking matters, acoustic concerns, “general amenity” concerns and “impact on viability”. The general amenity concerns related to the plainly commercial use intruding in an area intended to be residential – large structures, noise, obvious advertising and the like, said to be inconsistent with expectations engendered by a fair reading of Mackay Plan. The proposal is in fact well conceived in being accompanied by development in Wilson Street, which provides the interface with the existing residential area, and is to be wholly residential. I accept Mr Motti’s point that given that the site has never been used for residential development, any local “expectation” of residential development should be diluted to a considerable extent. Acoustic and traffic concerns have been satisfied, in my view, by expert evidence.

I have been troubled by the so-called “viability” point, it being novel in my experience to confront commercial impacts which economic experts unanimously accept are very high. Asked by me if the court had been faced with a similar situation before, Mr Gore provided comfort in the form of Fabcot Pty Ltd v Gold Coast City Council [2011] QPEC 85; [2011] QPELR 766. I had occasion to read the reasons for judgment of Judge Dorney QC only on receipt of supplementary written submissions about that case, as promised, dated 5 June 2013, and after I had formed conclusions as to the proper outcome of this appeal. His Honour made some interesting observations, including, in the context of the trade the proposal he had under consideration might attract from the secondary trade area, preferring the higher estimate:

“[63] Turning to the secondary trade area, the factors which incline me to accept Mr Duane’s approach are that the proposed supermarket here would be modern and larger than the nearest ones to the north of the secondary trade area, with concomitant attraction (even though areas further to the west are closer to Nerang), together with the ease of access from the secondary trade area to the Site via Ross Street, a major and direct route, easily overcoming the relevant physical barrier.”

and that:
“[81] … it has not been shown that the local community will lose anything of substance, even though the profitability of certain individual existing business may well be adversely affected.”

and that:
“[84] The second aspect is the impact on other centres. The estimates concerning Woolworths Carrara range from 16% to 20%. While initially potentially concerning in planning terms, both are, or will be, controlled by the one entity. It is unlikely therefore that either facility will not continue to trade and become a planning casualty. As for Coco’s Carrara, which I viewed with Counsel from both sides, I find that it has unique aspects and it would, inferentially, absorb the impact of the nearby Woolworths.”

My view is that the proposal has no unacceptable or negative impacts, although it conflicts with the planning scheme. The discussion above shows that the conflict with the scheme is essentially as summarised in paragraph [5] above and is important. Conflict has to be clearly made out, and may require more than mere inconsistency. It is rendered less serious here by the extent to which the planning scheme contemplates development outside the centres specifically named by it; in the planning scheme lists of centres, “includes” does not mean “includes only”. Further, the planning scheme has been overtaken by events in the form of new centres or shopping centres approved and in some cases in existence, as the draft plan put on display last month in some respects attests. Not to forget the expansion of the centres including Mackay West well beyond the limits set by the planning scheme. The “grounds” to justify approval notwithstanding the conflict are summarised by Mr Buckley in the joint expert report of the planners as:

“a)there is a strong need for the proposal to meet local retail demand;
b)it provides choice, and improves convenience to full line shopping facilities within the trade area;
c)it is a desirable conversion of contaminated land to residential and retail uses, and improves an important intersection, all positive contributions to local amenity;
d)it is complementary to the role and function of the West Mackay centre; and
e)it meets the stated criteria of the retail and commercial code, for facilities not otherwise on designated land.”

and by Mr Motti, more expansively:
“a.The use is located on land that is well dimensioned and regular shaped, allowing the construction of a premises that has the capacity to serve community needs in an attractive, functional and modern facility by providing a full-line supermarket with complementary specialities. Such capacity is otherwise unavailable at the nominated local centre.
b.The function and role of the network of Centres identified on the information Map-Network of Centres is maintained.
c.There is currently a sufficient population in the Primary Trade Area to support a full-line centre.
d.The use delivers a full-line supermarket to a catchment not adequately served, providing choice and convenience for residents and workers in the area.
e.Infrastructure and Transport networks have been established and connect to the site. The use is well positioned to meet the needs of the South, West and East Mackay community and is conveniently located with high accessibility from arterial roads, Bridge Road and Paradise Street; from the minor collector, Wilson Street; and to the Bluewater Trail.
f.The use will not offer unacceptable impacts on amenity and will otherwise result in:
·     the practical and economical remediation of a degraded former sawmill site.
·     the provision of land to allow road widening along Bridge road to improve the design standard of the road and to permit the long term upgrade of the intersection with Paradise Street.
·     the enhancement of the green space corridor along Paradise Street for the purposes of the Bluewater Trail in order to facilitate pedestrian and cyclist-friendly activity and link to other Council corridors. This use will deliver landscaping treatments and the provision of a cycle rest stop.

g.For reasons discussed at section 8.2.1[37] below, the use provides a positive planning outcome for the surrounding residential area. It will not compromise the provision of a range of affordable and accessible housing in the City”

[37]This appears to be an erroneous reference – paragraph 8.2.1 is Mr Reynolds’ defence of the importance of the site for housing; the reference should be to paragraph 8.1.1. where his counterparts advance an opposing view, which I accept.

To an extent the respective lists rely on lack of negative impacts. I accept that the proposal has no negative impacts – which, at the least, is now recognised as relevant to establishing grounds: Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370 at [24]-[25]. For the moment, my view is that a lack of negative impacts, while keeping the door open for a developer in a way that would not occur if there were negative impacts, will not suffice on its own (it would not satisfy me here in any event); there must still be shown some positive ground of public interest which otherwise benign impacts might serve to augment or “reinforce”. Essentially, the grounds amount to. The satisfaction of a community need on a site which is highly appropriate; anything else is minor and must not be relied on[38]. I am comfortably satisfied that the grounds are sufficient. I am not persuaded that the co-respondent’s proposal should be allowed credit for remediating “contamination” which it or its associated entities are responsible for.
[38]In Australian Capital Holdings at [35] and [36] it was held that provision by a developer of a deviation road desired by the Council, but not in the location favoured by it was not a “planning ground”. It may make a difference here that the Council takes a positive view of roadworks offered: see Mr Buckely’s ground (c).

The proposal as now changed should be approved, but with additional conditions to meet circumstances as they now are. My inclination would be to dismiss the appeal on the foregoing basis, but I am invited by the co-respondent’s written submissions to indicate that the appeal might be allowed, with a view to making orders regarding the development application as indicated above.

CITATION:	Mackay Shopping Centre Pty Ltd v Mackay Regional Council & Other [2013] QPEC 29
PARTIES:	MACKAY SHOPPING CENTRE PTY LTD A.C.N. 140 014 875 AS TRUSTEE FOR THE MSC UNIT TRUST (appellant) v MACKAY REGIONAL COUNCIL (respondent) and PARKSIDE DEVELOPMENT PTY LTD A.C.N. 009 802 233 (co-respondent)
FILE NO/S:	1786/2012
DIVISION:	Appellate
PROCEEDING:	Submitter appeal against approval of a shopping centre
ORIGINATING COURT:	Brisbane
DELIVERED ON:	27 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	Hearing: 15 April, 17-19 April, 22-26 April, 29 April, 30 May 2013 Site inspection: 16 April 2013 Further written submissions: 5 June 2013
JUDGE:	Robin QC DCJ
ORDER:	Minor change application acceded to. The appeal should be allowed but only to permit imposition of certain new conditions.
CATCHWORDS:	Integrated Planning Act 1997 ss 3.5.6, 3.5.14(2) and 4.1.52 – Sustainable Planning Act 2009 s 350 – submitter appeal by commercial rival against approval of a new shopping centre – site zoned Higher Density Residential – planning scheme has a hierarchy of centres and disfavours commercial development outside them – whether proposal compromised achievement of DEOs for Economic Development and Amenity and Community Well-Being – whether grounds existed sufficient to overcome conflict with planning scheme – whether scheme “overtaken by events” – whether changes to vehicle access to the new centre were only “minor change” – whether “very high” impact on trading of the nearby designated centre acceptable – alleged conflict with Regional Plan
COUNSEL:	Litster R S SC, Fahl D for the appellant Hughes C L SC, Skoien A N for the respondent Gore D R QC, Williamson M A for the co-respondent
SOLICITORS:	Kelly Legal for the appellant McCullough Robertson for the respondent Wilson Ryan Grose for the co-respondent