Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor - [2019] QPEC 46

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46

PARTIES:

TOSH ORDY MURPHY
(appellant)

v

MORETON BAY REGIONAL COUNCIL
(respondent)

and

BGM PROJECTS PTY LTD (ACN 102 165 328)
(co-respondent)

AND

AUSTRALIAN NATIONAL HOMES PTY LTD (ACN 020 903 189)
(appellant)

v

MORETON BAY REGIONAL COUNCIL
(respondent)

and

BGM PROJECTS PTY LTD (ACN 102 165 328)
(co-respondent)

FILE NO/S:

340 of 2018 and 694 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

8 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11-15 June, 18-22 June, 25-29 June, 7 and 19 September and 3 December 2018 and 8 – 10 April, 15-18 April and 13-17 May 2019, further exhibit received 20 May 2019, further written submissions received 19 September 2019, further written submissions and further hearing on 4 October 2019

JUDGE:

Kefford DCJ

ORDER:

Appeal No 694 of 2018 is dismissed.

Appeal No 340 of 2018 is dismissed. I will hear from the parties as to the need for any consequential orders, including with respect to conditions. The appeal will be mentioned at 9 am on 30 October 2019 for that purpose.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where BGM seeks a development permit to authorise it to carry out a material change of use to use its land for a proposed local centre – where the council approved BGM’s application –whether BGM’s proposed development complies with the relevant assessment benchmarks – whether BGM’s proposed development is appropriately located – whether BGM’s proposed development is appropriately designed – whether BGM’s proposed development would result in unacceptable headlight glare – whether there is a need for an additional local centre – whether in exercise of the discretion the proposed development ought be approved

PLANNING AND ENVIRONMENT – APPEAL – where ANH sought a preliminary approval for a local centre – where the council refused ANH’s application – where ANH now seeks a preliminary approval generally in accordance with a design – whether ANH’s proposed development complies with the relevant assessment benchmarks – whether ANH’s proposed development is appropriately located – whether ANH’s proposed development is appropriately designed – whether ANH’s proposed development would result in unacceptable noise impacts – whether ANH’s proposed development was unacceptable having regard to traffic engineering considerations – whether in exercise of the discretion the proposed development ought be approved

LEGISLATION:

Planning Act 2016 (Qld), s 45, s 59, s 60, s 61, s 311

Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 47

Planning Regulation 2016 (Qld), s 31

CASES:

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, approved

Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPEC 34, approved

Garyf Pty Ltd v Maroochy Shire Council [2008] QPEC 101; [2009] QPELR 435, approved

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved

Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, considered

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved

Jedfire Pty Ltd v Logan City Council [1995] QPLR 41, approved

Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17, cited

Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, approved

Mirani Solar Farm Pty Ltd v Mackay Regional Council 7 Anor [2018] QPEC 38, cited

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2018] QPEC 63, cited

SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24, approved

Smout v Brisbane City Council [2019] QPEC 10, approved

Vidakovic & Anor v Brisbane City Council [2009] QPEC 53; [2009] QPELR 739, approved

William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, approved

COUNSEL:

D R Gore QC and B D Job QC for the appellants
R Bain QC and J Ware for the respondent
C L Hughes QC, J G Lyons and M Batty for the co-respondent

SOLICITORS:

Connor O’Meara for the appellants
Moreton Bay Regional Council Legal Services Department for the respondent
McCullough Robertson for the co-respondent

TABLE OF CONTENTS

Introduction

The decision framework

How should the decision under s 60 of the Planning Act 2016 be approached?

What are the issues in this case?

What is the nature of BGM’s proposed development?

What are the relevant assessment benchmarks for BGM’s proposed development?

Will BGM’s proposed development be appropriately located?

What are the locational requirements in the Planning Scheme?

Will BGM’s proposed local centre provide convenient accessibility by motor vehicle?

Will BGM’s proposed local centre provide convenient accessibility by active transport?

Will BGM’s proposed local centre be at a location that is conducive to provision of access by public transport?

Will BGM’s proposed local centre “service an unserviced catchment”?

Conclusion regarding the appropriateness of the location of BGM’s proposed local centre

Will BGM’s proposed development be appropriately designed?

What are the design requirements in the Planning Scheme?

What are the general design features of BGM’s proposed local centre?

Will BGM’s proposed local centre be in a predominantly main-street format?

Will BGM’s proposed local centre have active frontages and street-fronting retail?

Will BGM’s proposed local centre avoid a parking-lot dominant retail format?

Will BGM’s proposed local centre provide quality urban design outcomes and attractive, high-amenity public spaces?

Will BGM’s intended design for street activation and an attractive centre be thwarted by noise attenuation measures?

Conclusion regarding the appropriateness of the design of BGM’s proposed local centre

Will BGM’s proposed development result in unacceptable headlight glare?

Conclusion regarding the assessment of BGM’s proposed development against the assessment benchmarks

What is the nature of ANH’s proposed development?

What are the relevant assessment benchmarks for ANH’s proposed development?

Will ANH’s proposed development be appropriately located?

What are the locational requirements in the Planning Scheme?

Will ANH’s proposed local centre provide convenient accessibility by motor vehicle?

Will ANH’s proposed local centre provide convenient accessibility by active transport?

Is there an appreciable prospect that pedestrian and cyclist connectivity will be improved in the future?

How important is convenient accessibility by active transport?

Conclusion regarding convenient accessibility by active transport?

Will ANH’s proposed local centre be at a location that is conducive to provision of access by public transport?

Conclusion regarding the appropriateness of the location of ANH’s proposed local centre

Will ANH’s proposed development be appropriately designed?

What are the design requirements in the Planning Scheme?

What are the general design features of ANH’s proposed local centre?

Will ANH’s proposed local centre be in a predominantly main-street format?

Will ANH’s proposed local centre have active frontages and street-fronting retail?

Will ANH’s proposed local centre avoid a parking-lot dominant retail format?

Will ANH’s proposed local centre provide quality urban design outcomes and attractive, high-amenity public spaces?

Conclusion regarding the appropriateness of the design of ANH’s proposed local centre

Will ANH’s proposed development result in unacceptable acoustic impacts?

Will ANH’s proposed development unacceptably affect residences on the Satterley land?

Will noise sensitive uses in ANH’s proposed development be unacceptably impacted by the use of the quarry haul route on Raynbird Road?

Is ANH’s proposed development unacceptable having regard to traffic engineering considerations?

Will ANH’s proposed development provide satisfactory pedestrian connectivity and create a walkable catchment?

Is the proposed Raynbird Road access intersection adequate to accommodate ANH’s proposed development?

Does the district collector street or road typology cross section apply?

Is strict adherence required?

Can ANH comply with the applicable street or road typology cross section?

Will the design of the loading dock create an unacceptable safety issue?

Will upgrades to the intersection of Oakey Flat Road and Raynbird Road affect ANH’s proposed development?

Will ANH’s proposed development unacceptably affect sight lines for the Raynbird Road and Oakey Flat Road roundabout?

Is ANH’s proposed access from Oakey Flat Road acceptable?

Is it acceptable to permit access from Oakey Flat Road?

Is ANH’s Oakey Flat Road access design acceptable?

Will ANH’s proposed development provide acceptable on-site servicing arrangements?

Are ANH’s traffic arrangements internal to its site acceptable?

Does the absence of a traffic impact assessment warrant refusal?

Will ANH’s proposed local centre comply with s 3.14.5.6(3) of the Strategic framework?

Conclusion regarding the traffic engineering considerations

Conclusion regarding the assessment of ANH’s proposed development against the assessment benchmarks

ANH’s preliminary approval overriding the planning scheme

Is there an economic, community and town planning need for an additional local centre and would it be appropriately met by the proposed development?

Will the proposed local centres provide appropriate services?

Will the proposed local centres address an identified economic need?

Conclusion regarding need

What are the comparative benefits of the proposed local centres and how should the planning discretion be exercised?

Do the relevant matters relied on by ANH favour approval of its proposed local centre?

Architecture and urban design

Traffic planning

Visual amenity

Economic need

Town planning and the exercise of the planning discretion in relation to ANH’s proposed local centre

Do the relevant matters relied on by BGM favour approval of its proposed local centre?

Timing and certainty

Quarry haul route

Accessibility

Site constraints

Design

Infrastructure

Preliminary approval

The exercise of the planning discretion in relation to BGM’s proposed local centre

Conclusion

Introduction

Approximately 30 kilometres north of the Brisbane CBD is the suburb of Narangba. Parts of Narangba, particularly east of Oakey Flat Road, have long established low-density residential development. An existing local convenience centre, Narangba Valley Shopping Centre, serves those residences. More recently, extensive residential development is underway west of Oakey Flat Road. There is a need for an additional local centre to serve that emerging population.

BGM Projects Pty Ltd (“BGM”) and Australian National Homes Pty Ltd (“ANH”) have each proposed to develop a shopping centre to address that need. Moreton Bay Regional Council approved BGM’s application for a local centre at Sovereign Drive, Narangba, but Mr Murphy (a director of ANH) appealed that decision. The Council refused ANH’s application for a local centre at 96 Raynbird Road. ANH appealed that decision.

The question for me to determine is whether the need for an additional local centre in the area should be addressed by approving one of the proposed shopping centres and, if so, which one.

The decision framework

The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) apply to the appeals.[1] In deciding the appeal, the court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the court considers appropriate.[2]
[1]The appeal against the Council’s decision to approve BGM’s application was filed on 30 January 2018, after the commencement of the Planning Act 2016. As such, even though BGM’s application was made under the Sustainable Planning Act 2009, the applicable regime is that in the Planning Act 2016. See s 311 of the Planning Act 2016 and Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, [16] – [89]. ANH’s application was made under the Planning Act 2016 (Qld).
[2]Planning and Environment Court Act 2016 (Qld), s 47.

The appeals proceed by way of hearing anew.[3] BGM and ANH each bears the onus with respect to its proposed local centre.[4]
[3]Planning and Environment Court Act 2016 (Qld), s 43.
[4]Planning and Environment Court Act 2016, s 45.

The nature of the approval sought by each of BGM and ANH differ.

BGM seeks a development permit to authorise it to carry out a material change of use of its site from its presently vacant use to use for a proposed local centre generally in accordance with the design reflected in the plans provided as Exhibit 4.

ANH’s development application, as originally made, did not contain a detailed design of its proposed local centre. As such, ANH did not seek a development permit to authorise it to carry out a material change of use. Rather, it sought a preliminary approval for a local centre with the full range of uses typically found in such centres and with a maximum retail gross floor area of 7 000 square metres. ANH provided a concept plan to show, in general terms, one way its site might be developed for the type of local centre it proposed. During the trial, ANH refined the design of its proposed local centre. It now seeks a preliminary approval for a local centre generally in accordance with the design reflected in the plans provided as Exhibit 111. It also seeks approval to vary the effect of the Moreton Bay Regional Council Planning Scheme 2015 (“the Planning Scheme”). This is to obviate the need for public notification of future applications for development of a local centre, provided it is generally in accordance with ANH’s proposed plans.[5]
[5]The variation request is described in more detail in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2018] QPEC 63. Particular uses are proposed to be code assessable, provided they form part of a shopping centre that is generally in accordance with ANH’s proposed plans (i.e. Exhibit 111).

There is a broad discretion in determining the appeals.[6] The exercise of the discretion must be based on an assessment that:[7]
[6]Planning and Environment Court Act 2016 (Qld), s 47; Planning Act 2016, s 60(3).
[7]Planning Act 2016, s 59 and s 45(5).

(a) must be carried out:

(i) against the assessment benchmarks in the Planning Scheme to the extent relevant;[8]
[8]Version 2 of the Moreton Bay Regional Council Planning Scheme was the categorising instrument for the development in effect when BGM’s application was properly made on 23 June 2017. Version 3 of the Moreton Bay Regional Council Planning Scheme was the categorising instrument for the development in effect when ANH’s application was properly made on 28 September 2017. See s 45(6) of the Planning Act 2016. It is common ground that there is no material differences between version 2 and version 3. Version 3 aligns the Planning Scheme with the terminology in the Planning Act 2016.

(ii) having regard to, relevantly, any development approval for, and any lawful use of, the premises or adjacent premises. For BGM’s development application, this includes an approval of a neighbourhood centre on part of its site. For ANH’s development application this includes an approval for development of the adjacent premises for low density residential development that provides access via a new intersection on Raynbird Road;[9]

(b) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise).

[9]See s 31(1)(f) of the Planning Regulation 2016.

As ANH’s application also sought to vary the effect of the Planning Scheme, the discretion can be exercised to approve all or some of the variations sought; or to approve different variations from those sought; or to refuse the variations sought.[10]
[10]Planning Act 2016, s 61(3).

The exercise of that discretion must be based on an assessment that considers:[11]
[11]Planning Act 2016, s 61(2).

(a) the result of the assessment of that part of the application that sought a preliminary approval for a material change of use;

(b) the consistency of the variations sought with the rest of the Planning Scheme;

(c) the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and

(d) any other matter prescribed by regulation.

How should the decision under s 60 of the Planning Act 2016 be approached?

It was common ground between the parties that how impact assessable development applications are to be assessed and decided is comprehensively, and correctly, analysed by His Honour Judge Williamson QC in Ashvan Investments Unit Trust v Brisbane City Council[12]. I agree.
[12][2019] QPEC 16, [35]-[86].

The observations of Judge Williamson QC in Ashvan[13] accord with the more recent observations of the Honourable President Sofronoff in Gold Coast City Council v K&K (GC) Pty Ltd.[14]President Sofronoff compares the decision-making process under the Local Government Act 1936 (Qld) with that under the Sustainable Planning Act 2009 (Qld). He described the former process as a flexible one where the applicable statutory criteria would vary from case to case.[15] That is not what s 326 of the Sustainable Planning Act 2009 requires.[16]
[13]Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16.
[14][2019] QCA 132.
[15]citing William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, 35.
[16]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, [60].

Under the Planning Act 2016, there has been a change in the decision-making process from that which existed under its predecessor in s 326 of the Sustainable Planning Act 2009. For impact assessable development, s 60 of the Planning Act 2016 affords greater flexibility than its immediate predecessor does. Both the decision of Judge Williamson QC and the later decision of President Sofronoff cite the decision of Judge Carter in William McEwans Pty Ltd v Brisbane City Council[17] when describing the exercise involved in a more flexible decision-making process. The explanation by Judge Carter about the nature of the balancing exercise required by that flexible decision-making process entails, while lengthy, bears repeating. Judge Carter said:

“Any zoning scheme must have as its basis the desire to so order land use as to best satisfy the needs and the physical well being of the community for whose benefit the zoning scheme is constructed. The enormously difficult task confronting the framers of a town planning scheme is to try to control land use in such a way that the needs of the community and its ability to enjoy life within that community are best served. This involves the subjection of the individual will to the overall good of the community, as it is perceived to be by those who frame, and by those who ultimately adopt, the scheme thereby giving it legal efficacy. The scheme, once it becomes law, must be seen to be an expression of the will of the community that its various needs are best provided for in the manner, by which the scheme controls the use to which land might be put. The scheme, in turn seeks to serve the need in the community for an agreeable residential amenity, the need to ensure adequate and suitably located land for heavy and light industry and for the manufacture and the retailing of consumer goods, the need for open space, the need for facilities for public purposes and so on. In respect of the scheme in its final form, the assumption is that these various needs are provided for in such a way that the physical well being of the total community is guaranteed. But is (sic) cannot be validly asserted that the needs of a community remain static and immutable. Rather, the concept of need in a community, in town planning terms, is a variable and is perhaps as volatile as human nature itself. The desire, perhaps the need, for change in a certain land use must be assessed in the first place, with a view to determining the justification for the change, which in turn involves a value judgment as to whether the people in the community will be positively advantaged by the change, and, in the second place, with a view to determining what effect the change will have on the other zoned land use, which in turn involves a value judgment as to whether the people in the community will be disadvantaged by the change. The ultimate task must be to ensure a proper balance which at a particular time adequately expresses the community will. My point is to emphasise, on the one hand, the necessity for control or the necessity for rigidity in a planning scheme, and on the other, the necessity to recognise the need for adjustment of that scheme if needs be or, the necessity for flexibility.”

[17][1981] QPLR 33, 35.

Judge Carter’s observations remain relevant for planning schemes under the Planning Act 2016. The purpose of the Planning Act 2016 is to establish an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning. Adopted statutory planning controls are an important element in that system. They provide a mechanism to achieve an orderly system of development and, conversely, avoid haphazard development. They facilitate the integration of land use and infrastructure planning, and the cost-effective provision of infrastructure to service development. Planning schemes strike a balance between the protection of ecological processes and natural systems; economic development; and the maintenance of the cultural, economic, physical, and social wellbeing of people and communities. Like planning schemes under the Local Government Act 1936, current planning schemes try to control land use in a way that best serves the needs of the community while maintaining the ability to enjoy life within that community. They continue to involve the subjection of the individual will to the overall good of the community (and the environment).

Judge Carter’s observation about planning schemes representing an expression of the will of the community also holds true under the current planning legislation. Planning schemes are given the force of law after an extensive preparation process that includes public notification and State interest checks.[18] As was observed by Judge Carter in Martin Dillon & Associates v Townsville City Council[19], the very raison d’être of a planning scheme is to best serve the needs of a community.[20] As such, where a planning scheme expresses a clear and deliberate policy about the appropriate development of land, one should not readily depart from it.
[18]Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, [57].
[19](1981) 2 APA 134. This was cited by President Sofronoff in Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132 at [47].
[20]Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, 139.

Judge Williamson QC explains the rationale underlying the need for rigid application of adopted planning controls in Ashvan.[21] Planning controls serve the wholesome purpose of building a community’s confidence in a planning scheme. This is a matter of importance as a planning scheme is a statutory document. It can inform public investment decisions, such as decisions about delivery of infrastructure. It can also inform private investment decisions, including decisions made by individuals about where to live and decisions made by corporations seeking returns on commercial development.
[21]Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, [57].

As was noted by Judge Carter in Martin Dillon & Associates v Townsville City Council,[22] control is inevitable for the good of all. However, it must also be recognised that blind adherence to that part of a planning scheme that is rigid is apt to obscure the fact that the need and the wellbeing of the community, or a significant part of it, may sometimes be better served by permitting an outcome that does not strictly comply with those controls. That flexibility may, in some instances, better serve the interests of the public is apparent when one considers the complexity of the task confronting a local government in preparing a planning scheme.
[22](1981) 2 APA 134, 139.

As I have mentioned in paragraph [15] above, a planning scheme seeks to strike a balance between ecological protection, economic development, and community well-being in a manner that expresses the will of the community. The Planning Scheme reflects how a local government strikes the balance, on behalf of its community, through the identification of strategic outcomes for the local government area.[23] To allow promulgation of the document in the manner provided by the legislation, the elected officials determine these forward planning policy decisions at a particular point in time.[24] As was noted by Judge Williamson QC in Ashvan,[25] it is not possible to forecast the will of the community, in land use terms, with scientific precision. The needs of a community are not static and immutable.[26]
[23]Planning Act 2016, s 16.
[24]The legislation provides a process for amendment, but the process takes time.
[25]Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, [59].
[26]Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, 139.

The legislation requires a planning scheme to include measures to facilitate the achievement of the strategic outcomes.[27] The local government must draft them in circumstances where the available information is limited. For example, while a local government may have studies that provide a reasonable indication of the ecological values present in a particular locality, or natural features that pose a constraint for development, it does not have detail about every attribute of every piece of land within its local government area. The available information reflects the position at a particular point in time. Further, a planning scheme expresses the controls that guide the parameters of development in performance-based terms.[28] They do not advance a particular design option or solution for a particular site. They are drafted without the benefit of a particular development option or design. While planning controls are generally drawn by town planners with experience of a great variety of applications, the combination of criteria applicable in any one case can differ, depending on the particulars of the development proposed and the location it is proposed. A local government could not possibly foresee every combination of controls that might apply, and their impact on every potential development scenario that individuals may seek to advance on every site across its local government area.
[27]Planning Act 2016, s 16.
[28]Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026, 1033 [26].

When viewed in that context, one can appreciate that development that differs from that encouraged by the planning controls, or that fails to comply with benchmarks set in a planning scheme, does not necessarily result in haphazard development. Development may differ from the planning controls but be compatible with, ancillary to or designed to complement the planning outcome sought by the planning controls, or otherwise advance the needs of a community in a particular area without undue adverse town planning consequence, because of its own merits and the particular combination of facts and circumstances relevant to it.[29] This underscores the importance of flexibility in the decision-making process.
[29]Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, 139-40.

I agree with Judge Williamson QC’s observation that a planning decision, and the inherent balancing exercise it entails, is invariably complicated and multifaceted. It must strike the balance between the maintenance of confidence in a planning scheme on the one hand and dynamic land use needs and recognition that town planning is not an exact science on the other. The Sustainable Planning Act 2009 gave primacy to the planning scheme in the striking of the balance. That is not what s 60 of the Planning Act 2016 requires. Under the Planning Act 2016, the discretion is to be exercised based on the assessment carried out under s 45. Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the planning scheme and proper planning practice.[30] Not every non-compliance will warrant refusal. It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.[31]
[30]Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, [60] citing Hua Sheng Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99, 102.
[31]Smout v Brisbane City Council [2019] QPEC 10, [54].

What are the issues in this case?

In this case, the relevant assessment benchmarks require evaluation of the proposed local centres by reference to:[32]
[32]Over the course of the trial, there was a narrowing of the issues in dispute. The parties agreed that the issues of bushfire, air quality, flooding, civil engineering and ecology do not warrant refusal of either BGM’s proposed development or ANH’s proposed development. Rather, they are matters that can be addressed by the imposition of conditions. They also agree that the matter of appropriate conditions with respect to the issues will be a matter between the successful applicant and the Council without the involvement of the other applicant or its agents or experts. In addition, lighting is no longer a reason for refusal of the ANH’s application and issues about visual amenity, acoustic and traffic impacts are no longer a reason for refusal of BGM’s application.

(a) for each of BGM and ANH’s development applications:

(i) whether the proposed development is appropriately located;

(ii) whether the proposed development is appropriately designed;

(b) for BGM’s development application only, whether BGM’s proposed development will result in unacceptable headlight glare for residences in Sovereign Drive;

(c) for ANH’s development application only:

(i) whether ANH’s proposed development would result in unacceptable noise impacts; and

(ii) whether ANH’s proposed development is unacceptable having regard to traffic engineering considerations.

BGM and ANH each also rely on relevant matters to contend their development application should be approved, namely:

(a) the need for an additional local centre; and

(b) the comparative benefits of their proposed local centre.

The Council supports approval of BGM’s proposed development, but not ANH’s.

What is the nature of BGM’s proposed development?

BGM seeks a development permit to facilitate a local centre on land located at the corner of Oakey Flat Road and Sovereign Drive and with a development area of approximately 3.973 hectares. The site is within the Narangba Heights residential estate, which is to be developed over 26 stages and is currently under construction. Part of the site is the subject of a development permit granted in August 2016 for a material change of use to facilitate a “Neighbourhood hub” of approximately 1 090 square metres comprising a restaurant, shop and takeaway food outlet. That approval has not been acted upon.

The local centre for which the Court’s approval is now sought is depicted in Exhibit 4. It has a gross floor area of 6 646 square metres comprised of a supermarket of 3 946 square metres, specialty retail of 2 149 square metres, a 170 square metre fast food outlet, and a service station with a building of 201 square metres and a fuel canopy over three petrol bowsers. The potential uses to be accommodated in the specialty retail area includes shops, veterinary services and indoor sport and recreation.

The building containing the supermarket is to be located at the rear of BGM’s site. Part of the specialty retail (described as Specialty Shop 1 and Specialty Shop 4 with areas of 1 389 and 200 square metres respectively) is proposed to be located in areas that sleeve either side of the supermarket. One of those areas is two storeys, with lift and stair access to the upper level tenancy and terrace area. Specialty retail is also proposed in two freestanding buildings that adjoin Sovereign Drive (described as Specialty Shop 2 and Specialty Shop 3 with areas of 350 and 201 square metres respectively). The service station is to be located adjoining the Oakey Flat Road frontage, although no direct access is proposed from that road. The food and drink outlet (fast food) is to be located centrally on BGM’s site. It will include a drive through facility.

A total of 300 car parking spaces are proposed. The majority of on-grade car parking is located between the supermarket and Specialty Shops 1 and 2. Additional parking is located to the north-west of the supermarket and between specialty shop 3 and the food and drink outlet. There is also car parking immediately adjacent the service station building.

Access is proposed from Sovereign Drive by way of two separate driveways. One is centrally located along the frontage and predominantly provides access to the supermarket and specialty retail facilities. The other predominantly provides access to the service station, food and drink outlet and Specialty Shop 3. No access is proposed from Oakey Flat Road.

What are the relevant assessment benchmarks for BGM’s proposed development?

Under the Planning Scheme, BGM’s site is mapped as part of the Next generation neighbourhood place type for the Strategic framework. That place type applies to new greenfield areas that have potential, and are suitable, to accommodate new residential development. BGM’s site is also located in the General residential zone (Next generation neighbourhood precinct).

The Planning Scheme contemplates development of new local centres in areas mapped in the Strategic framework as part of the Next generation neighbourhood place type and on land in the Next generation neighbourhood precinct of the General residential zone. Section 3.6.2(6) deals with activity centres in the region generally. It contemplates the development of new viable local centres “in appropriate locations in walkable neighbourhoods with street-fronting retail and non-retail commercial layouts instead of enclosed or parking-lot dominant retail formats”. Each of s 3.14.9, s 3.14.9.4(6) and s 3.14.9.4(7) also make specific provision for the establishment of new local centres in areas mapped Next generation neighbourhood place type, provided those centres meet specified location and design criteria. Further, s 6.2.6.3.1(1)(f) of the General residential zone code contemplates the provision of local centres in the Next generation neighbourhood precinct.

ANH does not dispute that new local centres are contemplated in the Next generation neighbourhood place type and the General residential zone (Next generation neighbourhood precinct). Rather, it alleges that BGM’s proposed local centre departs from the provisions of the Planning Scheme that guide the locational and design criteria for the establishment of new local centres, in particular:

(a) s 3.6.2 (introductory unnumbered paragraph), s 3.6.2(1), (6) and (7), s 3.13.3.4(11), s 3.14.9 (5^th para), s 3.14.9.4(6) and (7), s 3.14.11.3(2) and (7) and s 3.14.11.4(1) of the Strategic framework;

(b) s 6.2.1.2(4)(c) of the Centre zone code;

(c) s 6.2.1.6.1(1)(k)(iii) and (ix) and (l) and performance outcome PO2 of the Local centre precinct provisions of the Centre zone code; and

(d) with respect to headlight glare:

(i) performance outcome PO23 of the Local centre precinct provisions of the Centre zone code; and

(ii) s 6.2.6.3.1(1)(m) and performance outcome PO11 of the Next generation neighbourhood precinct provisions of the General residential zone code.

ANH submits that the departures from the Planning Scheme are a consequence of BGM’s proposed development resulting in unacceptable town planning outcomes, architecture and urban design outcomes and unacceptable headlight glare.

Leaving aside the provisions that relate to headlight glare, ANH submits that the relevant assessment benchmarks advance six planning “themes”, namely:

(a) a “main street theme”, whereby local centres are to be designed in a main street retail format;

(b) a “clear separation/walkable neighbourhood theme”, which requires a distribution of centres that reduces catchment overlap and provides a centre at a location that is central to a 15-minute walkable neighbourhood;

(c) an “anti-parking lot dominant theme”, whereby the Planning Scheme seeks to avoid a parking-dominant retail format;

(d) an “active frontage theme”, which requires local centres to be designed to address and activate streets and public spaces;

(e) a “quality design theme”, whereby the Planning Scheme requires centres to be vibrant and attractive with well-designed public and civic spaces; and

(f) a “quality accessibility theme”, which requires centres to be located to provide convenient accessibility by vehicle and active transport.

Counsel for ANH helpfully identified each of these themes in exhibit 171. That exhibit reproduced the text of the assessment benchmarks and identified, by colour coding, the parts of each benchmark that ANH submits relate to each of its “themes”.

Counsel for the Council also provided helpful written submissions about the key matters that arise for consideration in relation to each of the identified provisions. As is noted in the Council’s written submissions, the key matters it identifies “are not significantly different from the ‘six themes’ postulated in ANH’s document exhibit 171.”

Counsel for BGM did not assist in the identification of the themes or key matters that arise for consideration when assessing the proposed development against the identified assessment benchmarks.

Mr Schomburgk and Mr Vann, the town planners retained by BGM and ANH respectively, agreed with the themes identified by ANH. Mr Buckley, the town planner retained by the Council, generally agreed, except with respect to the main street theme. In his view, while the references to “main street” seek a design that involves a main street environment, those parts of the provisions that refer to “main through street” set a location requirement. They require local centres to be conveniently located on a street that has a thoroughfare function to them.

While I generally accept ANH’s characterisation of the planning goals sought by the identified assessment benchmarks, I agree with the qualification expressed by Mr Buckley.

The “themes” can be grouped into two overarching considerations, namely:

(a) whether BGM’s proposed development is appropriately located;[33] and

(b) whether BGM’s proposed development is appropriately designed.[34]

[33]This issue encompasses the “clear separation/walkable neighbourhood theme”, the “quality accessibility theme” and the “main street theme” to the extent that the provisions require local centres to be located on main through streets.

[34]This issue encompasses the “active frontage theme”, the “anti-parking lot dominant theme”, the “quality design theme” and the “main street theme” to the extent that the provisions require centres to be designed in a main-street format.

Will BGM’s proposed development be appropriately located?

The Planning Scheme recognises the potential establishment of new local centres in the General residential zone (Next generation neighbourhood precinct). It does not map the intended location of each new local centre for a Next generation neighbourhood. Rather, it stipulates criteria that guide the appropriate location of such new centres.

What are the locational requirements in the Planning Scheme?

The Planning Scheme stipulates new local centres are to:

(a) only occur where they are “located on a sub-arterial or collector road”;[35]
[35]See s 6.2.1.6.1(l)(v) of the Local centre precinct provisions of the Centre zone code.

(b) be conveniently located on a main through street (or on central intersections) and/or adjoin or be opposite to a public transport node;[36]

[36]See s 3.14.9, s 3.14.9.4(6) and s 3.14.9.4(7)(b) of the Strategic framework.

(c) be developed “in appropriate locations in walkable neighbourhoods”;[37]
[37]See s 3.6.2(6) of the Strategic framework.

(d) be at locations that encourage and support healthy and active lifestyles;[38]
[38]See s 3.6.2(7) of the Strategic framework.

(e) in combination with neighbourhood hubs, “create a series of 15 minute walkable neighbourhoods”. The Planning Scheme identifies that convenient locations for local centres and neighbourhood hubs are “on main through streets or on central intersections and within a 15 minute walking distance and responsive to active transport”;[39]

(f) “service an unserviced catchment and [be] located to form 15 minute walkable neighbourhoods, with the local centre … central to that neighbourhood”;[40] and

(g) only occur where “clear separation from existing … centres within the network are maintained to reduce catchment overlap and to establish 15 minute walkable neighbourhoods”. In support of that, the Planning Scheme states that “generally, local centres should be separated from other centres by 2400m … measured from the centre of each centre”.[41]

[39]See s 3.14.9.4(6) of the Strategic framework.

[40]See s 3.14.9.4(7)(d) of the Strategic framework.

[41]See s 6.2.1.6.1(l)(iii) of the Local centre precinct provisions of the Centre zone code.

These requirements are consistent with the stated planning goals that:

(a) there be a strong network of activity centres that are provided with “convenient access by a quality public transport and active transport system”;[42]
[42]See s 3.6.2 (unnumbered introductory paragraph).

(b) local centres within Next generation neighbourhoods are to “generally be located on central intersections with good accessibility and visibility” and “in locations that support active transport”;[43]

(c) activity centres are to be vibrant and attractive places “arranged within a public realm that provides ease of access”;[44] and

(d) the Local Centre Precinct in the Centre Zone have “good local accessibility, particularly active transport”.[45]

[43]See s 3.13.3.4(11) of the Strategic framework.

[44]See s 3.14.11.3(2) of the Strategic framework.

[45]See s 6.2.1.2(4)(c) of the Centre zone code.

The Planning Scheme defines “active transport” as “a form of manual transportation, including walking and cycling”.

These assessment benchmarks reveal two planning policies at play. The first is a planning objective to ensure new local centres provide convenient accessibility by motor vehicle and active transport modes, at a location that is conducive to provision of access by public transport (either now or in the future). The second is a planning objective directed at reducing overlap between catchments served by centres.

Will BGM’s proposed local centre provide convenient accessibility by motor vehicle?

BGM’s site is located within the Narangba Heights development. Narangba Heights is a master planned residential development that extends from Oakey Flat Road in the east, to Burpengary Creek in the north and towards Raynbird Road in the south. It is being developed over 26 stages and is currently under construction. It includes approximately 653 lots. A large balance lot remains at the intersection of Sovereign Drive and Oakey Flat Road. BGM proposes to develop it for a local centre (which is the subject of this appeal) and a possible future retirement village and childcare centre, subject to development approvals being obtained.

To the north and east of BGM’s site are more established parts of Narangba. Those areas have primarily been developed for single detached dwellings. Further to the west is rural residential development. Immediately south-east of BGM’s site, on the other side of the vegetated environmental corridor, is vacant land. The land was previously used for a quarry. South of that is ANH’s proposed local centre site.

BGM’s local centre is proposed to be located on the south-western corner of the intersection of Oakey Flat Road, Young Road and Sovereign Drive. That intersection is comprised of a four-leg roundabout. Oakey Flat Road forms the north-south connections to the roundabout. The Overlay Map – Road Hierarchy in the Planning Scheme classifies Oakey Flat Road as a Council arterial road. The eastern connection to the roundabout is Young Road. It is classified as a Council sub-arterial road. Leading west from the roundabout is Sovereign Drive, which is a two-lane median divided road. It is not identified on the Overlay Map – Road Hierarchy as having an arterial or collector status. As such, it is an access street for the purpose of the Planning Scheme.

BGM’s proposed local centre site has a frontage of approximately 70 metres to Oakey Flat Road and 400 metres to Sovereign Drive. Two vehicular access points are proposed to the local centre. Both are from Sovereign Drive. One is a left in – left out access approximately 20 metres west of the Oakey Flat Road, Young Road, and Sovereign Drive roundabout. The other is an all movement access about 60 metres from the roundabout. There is to be no access from Oakey Flat Road.

ANH submits that BGM’s proposed development does not comply with the requirement of s 6.2.1.6.1(1)(l)(v) that “for a new centre, it is located on a sub-arterial or collector road”. It says Mr Pekol, the traffic engineer retained by the Council, ultimately conceded as much.

The Council submits that while Sovereign Drive is not identified as a sub-arterial or collector road on the Council’s road hierarchy maps, the non-compliance with s 6.2.1.6.1(1)(l)(v) of the Planning Scheme should be given no weight in the assessment process. Counsel for ANH conceded this during oral submissions.

I consider the non-compliance with s 6.2.1.6.1(1)(l)(v) of the Planning Scheme to be of little significance in this case for three reasons.

First, the overlay map is reflective of the road hierarchy at a particular point in time. This is significant because Sovereign Drive is still being formed. The proposal plan for the future reconfiguration of the greenfield area to the west of Oakey Flat Road (designated Next generation precinct in the Planning Scheme) shows Sovereign Drive as a main through street. It is ultimately intended to connect Oakey Flat Road to Raynbird Road.

Second, the traffic engineers accept Sovereign Drive functions as a collector street. As was explained by Mr Viney, the traffic engineer retained by ANH, Sovereign Drive has been constructed as a two-lane median-divided local collector road and functions as such.

Third, I am satisfied BGM’s proposed development will not offend the underlying planning policy that local centres provide convenient accessibility by motor vehicle. I accept the evidence of Mr Buckley and Mr Schomburgk. They opine that BGM’s proposed development is located at the intersection of two locally recognisable main thoroughfares, on a site that is central and conveniently accessible to the intended catchment. Similarly, Mr Vann was of the opinion that BGM’s proposed local centre is in an accessible location to serve the catchment identified by the economic need experts. The economic need experts also all agree that BGM’s local centre is central to the catchment it will serve. The primary catchment includes areas generally west of Oakey Flat Road, including land in the Next generation precinct of the General residential zone and land on the eastern side of Oakey Flat Road, whose residents will also have access to the Narangba Valley Shopping Centre.

Mr Viney was of the opinion that access off a higher order road other than Sovereign Drive was preferable. He is of the view that the access arrangements from Sovereign Drive are unacceptable in the form approved by the Council and need to be modified. He does not say those concerns warrant refusal of the proposed development or materially affect the convenient accessibility of the proposed local centre. Mr Pekol and Mr Douglas, the traffic engineer retained by BGM, do not share Mr Viney’s concerns regarding the access. Ultimately, all of the traffic engineers were of the view that BGM’s local centre could be approved with suitable conditions. Accordingly, the proposed access off Sovereign Drive is appropriate.

For the reasons provided above, I am satisfied that BGM’s proposed local centre provides convenient accessibility by motor vehicle.

Will BGM’s proposed local centre provide convenient accessibility by active transport?

The established residential area to the east of Oakey Flat Road is served by formal pedestrian paths along Oakey Flat Road (north of Young Road) and Young Road, as well as pedestrian path links to Wedgetail Circuit, Coronata Crescent, Lily Pilly Court, Facer Road and Tuckeroo Street. That existing pedestrian network extends to the Oakey Flat Road and Sovereign Drive roundabout, which already has formed pedestrian crossing facilities on three of its four approaches. In addition, Sovereign Drive and connecting streets in the Narangba Heights estate include a pathway network to the west of BGM’s site. Photographs of the pathway network in the Narangba Heights estate show it to be of very high standard. There is a network of 2.5 metre wide paths along the major streets, which are suitable for shared cycle and pedestrian access. There are also paths of between 1.5 and two metres width along minor streets. There is no footpath provision along Oakey Flat Road south of Sovereign Drive.

Sovereign Drive also has on-road cycle paths in each direction, although they are not marked for cycle use. They connect into the Young Road on-road cycle paths.

In the first joint expert report of the traffic engineers, Mr Viney accepts that pedestrians and cyclists in the existing and future residential area to the west of BGM’s site will have relatively easy access to BGM’s proposed local centre. He does not consider that the residential area to the east of Oakey Flat Road allows pedestrians and cyclists easy access to Oakey Flat Road or to Young Road. However, during cross-examination, Mr Viney accepted that there were extensive, high quality footpaths in proximity to BGM’s site, other than along that section of Oakey Flat Road located south of the Sovereign Drive and Oakey Flat Road roundabout.

Mr Pekol and Mr Douglas are of the view that the established residential area to the east of Oakey Flat Road is relatively permeable by pedestrians. As such, they say BGM’s site is well placed to take advantage of the existing pedestrian network. They are also of the view that BGM’s site has very good pedestrian accessibility from residential areas to the west.

The town planners expressed similar views. Mr Buckley and Mr Schomburgk agree BGM’s site enjoys good pedestrian access from its catchment, including the developing Narangba Heights estate. Mr Vann also accepts BGM’s site could readily connect with the footpaths and road network of the Narangba Heights estate. Like Mr Viney, Mr Vann expressed reservations about the extent of convenient access by active transport from areas to the east given the heavily car-based nature of the design of that existing residential area.

I generally accept these opinions of the experts, though I do not share the concerns of Mr Viney and Mr Vann. Convenient accessibility by active transport is well demonstrated by Exhibit 63 and 65 prepared by Mr Douglas. Those exhibits map the location of paths in the area and provide photographs of the quality of those paths. The photographs demonstrate there is a very good walk and cycle network, other than along Oakey Flat Road south of the BGM site. The network provides quality pedestrian and cyclist accessibility to the BGM site.

The lack of footpaths on the section of Oakey Flat Road south of the Sovereign Drive and Oakey Flat Road roundabout does not prevent access from the neighbourhood to the east of that. It reduces its convenience because access by established paths involves a route that is less direct. Although that area is less permeable by active transport than the area to the west, this limitation is reflective of the age of that development. The Planning Scheme, in s 3.1.3, acknowledges that improving connectivity is a matter that will take time. It is to be achieved by giving existing and future residents a greater range of convenient travel choices in more walkable communities. Consistent with the Planning Scheme intent, the newly developed (and developing) areas to the west of Oakey Flat Road is being developed as a walkable neighbourhood.

For the reasons outlined above, I am satisfied BGM’s proposed local centre will provide very good pedestrian accessibility from residential areas to the west, and less convenient, but reasonable, accessibility by active transport from residential areas to the east. I am satisfied that it complies with the active transport and walkable neighbourhood requirements in s 3.6.2 (introductory paragraph), s 3.6.2(6), s 3.13.3.4(11), s 3.14.9 and s 6.2.1.2(4)(c) of the Planning Scheme.

I accept the opinions of Mr Pekol and Mr Viney that pedestrian accessibility to BGM’s site could be enhanced by conditions requiring:

(a) the extension of the existing pedestrian footpath along the southern side of Young Road, west toward the Oakey Flat Road and Sovereign Drive roundabout for a distance of about 270 metres; and

(b) the provision of a new pedestrian crossing facility on the southern (Oakey Flat Road) approach to the roundabout.

Mr Douglas recommends relocating the existing pedestrian refuse across Sovereign Drive immediately east of the right-turn egress from the shopping centre to a new location that is to the west of the shopping centre access intersection. This is to minimise vehicle and pedestrian conflicts and to improve sight lines for pedestrian crossings from north to south. A condition could address this.

These issues with respect to conditions do not alter my view about the overall merit of BGM’s proposed local centre. The Council can consider whether it wishes to impose the conditions at a later stage.

Will BGM’s proposed local centre be at a location that is conducive to provision of access by public transport?

BGM’s proposed local centre currently has poor access to public transport. The nearest bus stop is about 1.2 kilometres from BGM’s site. Despite this, I am satisfied that the proposed location of BGM’s local centre on a main through street and at a central intersection is conducive to the provision of access by public transport. I also accept the unchallenged evidence of Mr Douglas that the indented bus stops currently provided on Sovereign Drive, approximately 350 metres west of BGM’s site, have been provided in anticipation of future bus services through the expanding residential catchment. BGM’s proposed local centre is sufficiently proximate to those bus stops to make it conducive to provision of access by public transport.

Mr Douglas further notes that there is room to provide an indented bus bay (or bays) on Oakey Flat Road adjacent to BGM’s site and opposite BGM’s site. Mr Pekol agrees and says a condition should be imposed requiring the provision of an indented bus lay-by on Oakey Flat Road. The Council can consider whether it wishes to impose the conditions at a later stage.

Will BGM’s proposed local centre “service an unserviced catchment”?

ANH does not submit that BGM’s proposed local centre would not provide convenient accessibility by active transport. However, it submits that the 15-minute walkable catchment for BGM’s proposed local centre involves a very considerable overlap with the existing walkable catchment for the Narangba Valley Shopping Centre on Young Road. It says much of BGM’s proposed local centre catchment is not “unserviced”, and BGM’s proposed local centre does not achieve the “clear separation” that is unambiguously intended to “reduce catchment overlap”.

Section 3.14.9.4(7)(d) of the Strategic framework requires that a new local centre service an unserviced catchment and be located to form 15 minute walkable neighbourhoods, with the local centre central to that neighbourhood. Section 6.2.1.6.1(1)(l)(iii) of the Centre zone code requires a new local centre only occur where there is clear separation from existing centres within the network. This is to reduce catchment overlap and to establish 15-minute walkable neighbourhoods. In support of that requirement, the Planning Scheme states that, generally, local centres should be separated from other centres by 2 400 metres, measured from the centre of each centre.

Neither of these provisions require the “walkable” catchment of a new local centre to be exclusively served by the new local centre. The provisions admit of the potential for some catchment overlap. Compliance with them is a matter of fact and degree.

Mr Buckley acknowledged that a planning policy for separation is important. The greater the separation, the greater the ability for centres to serve the catchments they are intended to serve. The requirement for separation is consistent with the stated planning goals, noted in paragraph [44] above, that there be a strong network of activity centres and that activity centres are to be vibrant and attractive places. Section 3.6.2(6) of the Planning Scheme also anticipates that any new local centre will be viable.

The Centre and Neighbourhood Hub Design Planning Scheme Policy explains that, to remain economically viable, vibrant and attractive, existing centres need to evolve with time. It also notes that local centres (and neighbourhood hubs) are essential elements in the establishment of walkable neighbourhoods. Accordingly, the Planning Scheme allows for the establishment of new local centres provided they are well designed, located and distributed within the region. The Policy also says new local centres and neighbourhood hubs should not affect existing centres and should be provided centrally within the residential neighbourhood and not on the urban fringe.

In considering the issue of compliance, there is a need to strike a balance between, on the one hand, providing convenient accessibility to local centres by active transport and, on the other hand, ensuring existing centres remain economically viable, vibrant, and attractive.

BGM’s proposed local centre is 1.5 kilometres by road from the Narangba Valley Centre. The Planning Scheme designates that centre as a local centre. Mr Douglas accepts that his walkable catchment for BGM’s local centre stops just short of that existing centre. As such, a significant component of the walkable catchment for BGM’s local centre, being that part east of Oakey Flat Road, is already within the 15-minute walkable catchment for the Narangba Valley Centre. Each of the town planners also acknowledge this. The overlap approximates the primary east trade area identified by the economists.

BGM’s proposed local centre will also serve a developing, and presently unserviced, “walkable” catchment, being that located west of Oakey Flat Road. That unserviced catchment roughly coincides with that part of the primary west trade area located in the Next generation neighbourhood precinct of the General residential zone.

The combined effect of the following five aspects of the evidence satisfies me that the extent of catchment overlap for BGM’s proposed local centre is not unacceptable and BGM’s proposed local centre will service an unserviced “walkable” catchment to an appropriate degree.

First, the economists agree that the vast majority of growth in the primary trade area will be to the west of Oakey Flat Road. As Mr Duane explained, minimal growth is predicted in the primary trade area to the east as that land is effectively fully developed. The growth will occur in the land to the west of Oakey Flat Road that is in the Next generation precinct of the General residential zone. By 2026, the population in the primary trade area west of Oakey Flat Road will exceed the population in the primary trade area to the east by close to 2 000 residents. By 2031, the economists predict the population in the primary trade area to the west will be 8 500 – almost double that to the east. By 2031, the predicted population of the primary trade area west of Oakey Flat Road alone will be approaching the catchment population the Planning Scheme intends will generally be served by a local centre.[46] As such, as the trade area of BGM’s local centre matures, the greater balance of the population in the primary trade area will be in the primary trade area west (rather than east) of Oakey Flat Road.
[46]See s 6.2.1.6.1(l)(v) of the Local centre precinct provisions of the Centre zone code.
[46]See s 3.14.9, s 3.14.9.4(6) and s 3.14.9.4(7)(b) of the Strategic framework.
[46]See s 3.6.2(6) of the Strategic framework.
[46]See s 3.6.2(7) of the Strategic framework.
[46]See s 3.14.9.4(6) of the Strategic framework.

Second, I accept the evidence of Mr Duane that the aerial extent of the “walkable catchment” to the west, as shown on Exhibit 163 prepared by Mr Douglas, will increase as connections are established within new development in the Next generation precinct. I accept it is reasonable to assume, as both Mr Duane and Mr Brown do, that such development will include connections between the Narangba Heights estate and the land south of BGM’s site. That land is the subject of a development approval obtained by Satterley Property Group Pty Ltd. The masterplan prepared by Satterley Property Group Pty Ltd shows a possible future connection. As such, I am satisfied that although BGM’s proposed local centre is on the eastern extent of the primary trade area west, it is roughly central (north south) to the likely “walkable” catchment for residential development of the Next generation precinct west of Oakey Flat Road.

Third, although the economic need experts do not agree on the extent of impact on other centres, they agree that approval of BGM’s proposed local centre would not impact on the viability or vitality of the Narangba Valley Shopping Centre or Excelsior Park Village (the neighbourhood hub within the catchment). This is because of the significant growth anticipated in the primary trade area west of Oakey Flat Road. The economic need experts also agree that there would not be any unacceptable economic impact on the existing network of centres beyond the catchment.

Fourth, the economic need experts agree that there is need for an additional local centre within the catchment. As such, I am satisfied that, were it to be approved, BGM’s local centre would be viable.

Fifth, BGM’s proposed local centre is conveniently located on a main through street and central intersection. It is conveniently accessible by motor vehicle and active transport modes. It is at a location that is conducive to provision of access by public transport. I accept the evidence of Mr Schomburgk that there is little prospect that a more suitable intersection might be found somewhere further to the west and towards the centre of the Next generation precinct.

Conclusion regarding the appropriateness of the location of BGM’s proposed local centre

For the reasons set out above, I am satisfied that the evidence establishes that BGM’s proposed local centre, if approved, will be well located. It will be highly accessible by motor vehicle and active transport modes. Its location, on a central intersection and main through road into the Next generation precinct, is also conducive to future provision of access by public transport. The location does not achieve the preferred 2 400 metres for separation of centres and there is a degree of catchment overlap between BGM’s proposed local centre and Narangba Valley Shopping Centre. However, as the Next generation precinct is developed, the extent to which trade will be drawn from that part of the catchment near the Narangba Valley Shopping Centre will diminish because of the extent of growth that will occur west of Oakey Flat Road. As such, the proposed location is reasonably well aligned with the requirement that new local centres be viable and service an unserviced catchment. BGM’s proposed local centre is consistent with the planning goals that there be a strong network of activity centres and that activity centres be vibrant and attractive places. The location of BGM’s proposed local centre favours approval.

Will BGM’s proposed development be appropriately designed?

ANH submits that BGM’s proposed local centre is non-compliant with the requirements that local centres have a main street format, active frontages, attractive and activated public spaces, and a design that avoids visually dominant carparking and enclosed formats.

What are the design requirements in the Planning Scheme?

The Planning Scheme intends that:

(a) centres, including local centres, include a broad mix of land uses, and are structured as mixed use centres “in a predominantly main-street format to best serve their surrounding communities”;[47]
[47]See s 3.6.2(1) of the Strategic framework.

(b) new viable local centres are to be developed with “street-fronting retail and non-retail commercial layouts instead of enclosed or parking-lot dominant retail formats”;[48]
[48]See s 3.6.2(6) of the Strategic framework.

(c) activity centres have “attractive, high-amenity public spaces”;[49]
[49]See s 3.6.2(7) of the Strategic framework.

(d) in the Next generation place type in the Strategic framework, “non-residential uses have active frontages”;[50]
[50]See s 3.14.9 of the Strategic framework.

(e) new local centres only occur if they are “appropriately designed to have high quality urban design outcomes”;[51]
[51]See s 3.14.9.4(7)(e) of the Strategic framework.

(i) the design, siting and construction of buildings within a local centre are “centred around a main street”, and parking, manoeuvring and servicing areas are designed, located and aesthetically treated to “not be visually dominant features from the streetscape and public spaces”;[52]
[52]See s 6.2.1.6.1(k)(iii) and (ix) of the Local centre precinct provisions of the Centre zone code.

(f) the establishment of a new centre only occurs where it is designed to include “active frontages around a main street core”;[53]
[53]See s 6.2.1.6.1(l)(vi) of the Local centre precinct provisions of the Centre zone code.

(g) development “addresses and activates streets and public spaces” by:

(i) establishing and maintaining interaction, pedestrian activity and casual surveillance through appropriate land uses and building design (for example through the use of windows or glazing and by avoiding blank walls with the use of sleeving);

(ii) ensuring buildings and individual tenancies address street frontages and other areas of pedestrian movement;

(iii) locating new buildings to adjoin, or be within three metres, of a primary street frontage, civic space or public open space;

(iv) locating car parking areas behind or under buildings so they do not dominate the street environment;

(v) providing visual interest to the façade (for example by windows or glazing, variations in colours, materials, finishes, articulation, recesses or projections);

(vi) establishing a human scale;[54] and

(h) development ensures that the “amenity of the area and of adjacent sensitive land uses” is protected.[55]

[54]See s 6.2.1.6.2, Table 6.2.1.6.1 performance outcome PO2 of the Local centre precinct provisions of the Centre zone code.

[55]See s 6.2.1.6.2, Table 6.2.1.6.1 performance outcome PO23 of the Local centre precinct provisions of the Centre zone code.

“Main street” is defined as “a street having a primary role to facilitate and foster opportunities for formal and informal social and economic exchange framed within the realm of a civic space”.

The Planning Scheme defines “active frontage” as a building that ensures interactivity and encourages cross-movement between the public and private domains at ground level and above ground levels by the way buildings are designed and oriented. An active frontage is one that avoids blank walls and façades. Instead, it:

(a) includes windows, openings, entry statements, balconies and awnings;

(b) uses a variety of materials, textures and colours;

(c) creates opportunities for surveillance and interface between different user groups; and

(d) provides a variety of activities to occur along the building front.

The design requirements for new local centres referred to in paragraph [88] above are consistent with provisions that outline planning goals regarding activity centres generally. They require:

(a) there be a strong network of activity centres with well-designed public and civic spaces and active frontages that provide a focal point for compact, self-contained and diverse communities;[56]
[56]See s 3.6.2 of the Strategic framework.

(b) activity centres are to be “vibrant and attractive places” with a comprehensive variety of mixed uses arranged within a public realm that provides ease of access and space for activity and public events, important meeting places and focal points for the community;[57]
[57]See s 3.14.11.3(2) of the Strategic framework.

(c) in activity centres, “the street itself is the focus” of the public realm, providing the place for public interaction and exchange and the pathway for pedestrian movement and connection to the uses at the edge;[58]

(d) activity centres are designed “around a main street central core” that provides the focus of the centres’ employment and business activity; and

(e) land in the Local centre precinct of the Centre zone act as a focal point and meeting place for the local community. Local centres are generally to serve a catchment of 10 000 to 15 000 people and “are generally defined by the presence of a full-line supermarket or a fully functioning main street that caters for a catchment of the same size”.[59]

[58]See s 3.14.11.3(7) of the Strategic framework.

[59]See s 6.2.1.2(4)(c) of the Centre zone code.

The Centre and Neighbourhood Hub Design Planning Scheme Policy provides guidance about how to satisfy the assessment benchmarks. It encourages more innovative and site-specific design solutions and less “cookie cutter” development. It explains that the Planning Scheme places a high degree of importance on the policy that main streets form the core of centres. The shift is aimed at creating places for people.

The Policy explains that, in terms of urban structure, a main street usually refers to a vibrant and active street with a continuous row of shops, small office spaces, and restaurants. They are usually located along a major thoroughfare though preferably not an arterial or sub-arterial road, and often run perpendicular to a sub-arterial road. Local centres generally only contain active retail and commercial use buildings on one side of the street. In terms of local centres, and the achievement of a “main street”, the Policy also recognises that local centres are generally defined by the presence of a full-line supermarket or a fully functioning main street that caters for a catchment of the same size.

The Centre and Neighbourhood Hub Design Planning Scheme Policy also provides guidance on the intended urban form in centres. It explains that traditional shopping centres conflict with the type of centres that the Strategic framework, and the Planning Scheme more generally, are trying to encourage. It notes that the Planning Scheme seeks centres that provide:

(a) a diversity of activities, rather than retail centres with limited entertainment or community activities;

(b) a broad spectrum of hours of operation and activity, rather than traditional centres with an insular focus, large blank walls to external streets and a sea of at grade car parking;

(c) permeable environments, as opposed to controlled movement through the centre that is non-permeable after hours;

(d) smaller compact centres offering diversity;

(e) internal and external pedestrian environments, rather than a focus on an internal pedestrian environment and external vehicular environments;

(f) prioritisation of public and active transport over private motor vehicle; and

(g) emphasis on connections to surrounding neighbourhoods, rather than poor connections.

Design considerations noted in the Policy emphasise the importance of walkability and legibility for pedestrians and a design that fosters activity. Active frontages are intended to assist with walkability and access by public transport, as well as vibrancy of a centre, by facilitating natural surveillance of footpaths, bus stops and taxi ranks. The Policy indicates that those issues can also be addressed by a design that locates uses with extended hours to the street and around public spaces.[60]
[60]See s 7.2(6) and (8) of the Policy.

The Policy provides examples of potential building design responses to the Planning Scheme’s design requirements. Consistent with the Planning Scheme definition of active frontages, the Policy notes that the requirement for active frontages can be addressed by glazing, openings (such as doors and windows), and balconies. The Policy describes an active frontage as a concentration of activity or goings-on at the front of a site or building adjoining a public area such as a street or park. Active frontages are intended to make public spaces interesting and encourage people to linger. The Policy explains that many elements must combine to make a space interesting, inviting, walkable, and safe. A key component to active frontages is the use itself, involving activities such as shops, small offices and cafés.[61]
[61]See s 8.3 of the Policy.

Other planning scheme provisions also demonstrate the link between the Council’s design requirement for street activation and its goal with respect to active transport and walkable neighbourhoods. For example, the land use strategy in s 3.10.4(2) of the Planning Scheme seeks the activation of areas “to encourage a sense of community, creating a feeling of safety and encouraging more people to walk”. That land use strategy is directed at achieving the strategic outcome in s 3.10.4, which is to “influence sustainable travel behaviour by creating attractive places to walk and cycle”.

Another example of the interconnected nature of the policies is evident in performance outcome PO64 for the Next generation neighbourhood precinct in the General residential zone code. That outcome relates to “Retail, commercial and community uses”. It requires all buildings to exhibit a high standard of design and construction so as to, amongst other things, add visual interest to the streetscape; locate and orient to favour active and public transport usage by connecting to pedestrian footpaths on the street frontage and adjoining sites; and facilitate casual surveillance of all public spaces.

The provisions of the Planning Scheme identified above, as supported by the Centre and Neighbourhood Hub Design Planning Scheme Policy, reveal that the Planning Scheme’s design requirements for local centres are directed at two planning policies. The first is the provision of vibrant and attractive centres to promote social interaction and community identity. The second is creating an environment that encourages access to local centres by active transport and public transport.

What are the general design features of BGM’s proposed local centre?

The proposed design of BGM’s local centre is depicted in plans, elevations, and perspectives. The drawings provide details of:

(a) the size and proportions of the various tenancy areas;

(b) the extent of glazing;

(c) the architectural finishes proposed for the otherwise blank walls;

(d) the external (or open air) pedestrian environment, including:

(i) the proposed pedestrian access links from Sovereign Drive and between each of the standalone buildings;

(ii) the extent of cover proposed for the pedestrian access links;

(iii) the areas proposed for outdoor seating and outdoor dining;

(iv) a proposed plaza area;

(v) proposed surface finishes, furnishings and landscaping; and

(e) the location and architectural treatment of proposed amenities and service areas.

Those drawings show that BGM’s proposed local centre consists of five standalone building envelopes. Mr Lynch, the architect retained by BGM, explains that the design breaks up the buildings to facilitate the creation of a series of smaller-scale elements. This delivers smaller-scale buildings with full height glazing and covered and landscaped outdoor areas to the Sovereign Drive road frontage, whilst placing the bulk of the full-line supermarket, with its blank walls, to the rear of the site where it will have minimal impact upon the streetscape.

BGM proposes two vehicular crossovers along the Sovereign Drive frontage. One is centrally located along the frontage and predominantly provides access to the supermarket and specialty retail facilities. The other is located at the north-west end of Sovereign Drive and predominantly provides access to the service station, food and drink outlet and one of the standalone retail buildings. Each of the buildings has immediately adjacent carparks, but the majority of the on-grade car parking is located between the supermarket building and Specialty Shop 2. There are extensive pedestrian paths traversing the car park and internal roads and connecting the various standalone buildings.

Will BGM’s proposed local centre be in a predominantly main-street format?

ANH submits BGM’s proposed local centre does not accord with the assessment benchmarks that require a predominantly main-street format or a local centre designed around a main street core.

As I have noted in paragraph [56] above, I am satisfied that BGM’s proposed development is located at the intersection of two locally recognisable main thoroughfares, being Oakey Flat Road and Sovereign Drive. It does not follow that it is designed in a predominantly main-street format or around a main street core. Those considerations do not relate simply to the location of the centre. They relate to the experience the centre provides to pedestrians in terms of its level of activity, vibrancy, and “walkability”. The extent of active frontages is relevant in this regard.

The pedestrian experience along Oakey Flat Road and Sovereign Drive can be described by reference to a “walk” along each of those roads. The entire frontage of BGM’s site, for both Oakey Flat Road and Sovereign Drive, is to be improved by a pedestrian footpath.

BGM’s site has a frontage of about 68 metres to Oakey Flat Road. Mr Lynch accepts that BGM’s proposed local centre does not achieve a pedestrian connection from that road frontage and there is no active frontage to that road. His evidence is consistent with the plans and elevations, and the evidence of Mr McGowan (the visual amenity expert retained by BGM) and Mr Peabody (the architect retained by ANH).

During cross-examination, Mr McGowan accepted that the presentation to Oakey Flat Road is confined to the proposed service station. It is the only building interface. It is to comprise a building with a gross floor area of 201 square metres, and an associated awning over four fuel bowsers. The length of the service station building is to run parallel to Oakey Flat Road. It is to be located on a suspended slab that is between 2.7 and four metres above the level of the Oakey Flat Road footpath, with the smallest elevation proximate the corner of Oakey Flat Road and Sovereign Drive. Some glazing is proposed along the Oakey Flat Road elevation.

The visual perspective gives an indication of the view from Oakey Flat Road. I accept that the visual perspectives involve a degree of artistic licence, including with respect to the depiction of landscaping, the presentation of retail signage and branding, and the absence of appropriate depiction of the impact of retaining walls. I have placed little reliance on the perspectives, instead preferring the details shown in the plans and elevations, and the evidence of the experts about the visual presentation of the development.

I accept the evidence of Mr McGowan that the void underneath the slab will be partially screened from view by batten screening and landscaping. Mr Peabody accepts that the service station will present an attractive frontage to Oakey Flat Road but opines that it is not an activated frontage. I accept that there is only limited activation proposed along the Oakey Flat Road frontage. It comprises some glazing on the southern and northern corners of the building. The glazing at the southern end is unlikely to generate a sense of activity or much opportunity for surveillance of Oakey Flat Road as it is associated with the loading dock. The shop windows at the northern end of the Oakey Flat Road elevation may provide a limited opportunity for casual surveillance.

Fourth, ANH says its site is of a shape that allows a more conventional arrangement between the built form and location of retail space and car parking areas needed to support that retail space.

Mr Viney expresses concern that the first internal intersection within BGM’s proposed local centre, located approximately 30 metres from the all movements access to Sovereign Drive is too complex. Mr Pekol and Mr Douglas agree that it should be modified. Mr Pekol believes this could be achieved without materially altering the balance of the proposal. Mr Douglas expects it to be resolved as part of the operational works processes. I accept the evidence of Mr Pekol and Mr Douglas. It is consistent with Mr Viney’s view that the matter does not warrant refusal.

Mr Viney also considers that the layout of BGM’s centre will result in unnecessary on-site circulation by vehicles and unnecessary exposure to excess vehicle movements for those who choose to walk between the buildings. Mr Pekol disagrees. In his opinion, the layout is typical of developments of this type and does not result in any more on-site vehicle circulation than at other similar sites. Mr Douglas is of the view that the layout is similar to many comparable sites and the internal connectivity is beneficial because it avoids the need for trips between uses to unnecessarily impact Sovereign Drive. I prefer the evidence of Mr Pekol and Mr Douglas. I do not regard the layout of the centre to be unacceptable for the reasons provided in paragraphs [139] to [162] above.

In addition, while ANH’s site is of a shape that allows a more conventional arrangement, I am not persuaded this demonstrates its proposed local centre is more favourable. As was explained by Mr Buckley, the Planning Scheme is seeking to shift away from conventional shopping centre design.

Fifth, ANH contends that BGM’s proposed local centre involves widely separated retail areas with resultant disadvantages and inefficiencies for pedestrians. ANH has not established those contentions for the reasons provided in paragraphs [139] to [162] above.

Sixth, ANH says BGM’s proposed local centre requires the export of a large volume of excess fill onto the traffic network.

The excess soil to be removed from BGM’s site to facilitate the earthworks required for its proposed local centre is approximately 30 000 to 40 000 cubic metres. ANH’s proposed local centre requires the importation of fill in the order of approximately 15 000 cubic metres of fill.

In the Joint Expert Report of Civil Engineering Expert Witnesses, Mr McAnany (the civil engineer retained by ANH) disagreed with Mr Collins (the civil engineer retained by the Council) that the details of the haulage of soil off BGM’s site can be appropriately managed by conditions. He considered there to be unacceptable uncertainty about the ability to find an acceptable haulage route.

Mr Pekol is of the view that the issue can be managed with appropriate conditions. His opinion is informed by the fact that the movement of soil from construction sites occurs over a finite time period. The traffic impacts of such movements are typically mitigated by the preparation of a construction traffic management plan. He says it is common for such a plan to be required by a condition of a development approval and for it to be prepared after the grant of a development permit for a material change of use. Mr Douglas agrees with Mr Pekol.

Mr Viney does not raise the export of fill as a traffic engineering matter in any of his written reports or statements. When cross-examined about it, Mr Viney said he thought the associated truck movements may be a concern for local residents. However, he accepts that the existing approval of a neighbourhood hub on the BGM site is relevant in terms of the reasonable expectations a local resident would have in this regard. It would also entail construction vehicle movements. The existing and ongoing work within the Narangba Heights residential estate is also relevant to the reasonable expectations of local residents. It involves significant earthworks and construction vehicles utilising Sovereign Drive. During cross-examination, Mr Viney also agreed that the transport of the soil would be subject to a traffic-management plan and that it was not unusual to have heavy machinery and work undertaken on a particular site for a period of time to construct a centre.

I am satisfied that the issue can be satisfactorily addressed by way of conditions. Condition 33 of the Council’s decision notice addressed the issue. It required a construction management plan to ensure that the development works (including all construction, demolition and excavation) do not adversely affect the health, safety, amenity, traffic or environment in the surrounding area. The plan is to include a proposed haulage route for fill exported from the site. I accept the evidence of Mr Pekol that BGM’s operational works approval for bulk earthworks (dated 1 March 2018) also addresses the issue. It includes conditions that address the haulage of soil from the BGM site.

I would expect any approval of ANH’s proposed local centre would be subject to a similar condition to BGM’s proposed local centre. As such, the movement of fill is not a point of difference between the proposed local centres.

Visual amenity

ANH contends that its proposed local centre is superior from a visual amenity perspective for two reasons.

First, ANH contends that BGM’s proposed local centre has greater potential to generate visual amenity impacts, including light impacts, on existing sensitive receptors.

Exhibit 125 illustrates this difference in proximity and intensity of existing residential development between BGM’s site and ANH’s site. Nine of the ten houses on Sovereign Drive are located within 25 to 29 metres of BGM’s site. For ANH’ site, the closest residents live at least 60 metres away.

I accept that BGM’s proposed local centre would change the outlook for residents who live opposite it on Sovereign Drive. I have already considered the visual impact of BGM’s proposed development in paragraphs [100] to [172] above. The visual impacts from a retail centre on BGM’s site must be within the reasonable contemplation of the residents of Sovereign Drive. This is because a neighbourhood hub retail centre of approximately 1 090 square metres has already been approved over part of the site. In addition, the Planning Scheme provides for new local centres on central intersections in the Next generation neighbourhood precinct of the General residential zone. As such, I do not consider the visual impact of BGM’s proposed local centre to be unacceptable.

I have already considered the visual impact of ANH’s proposed development in paragraphs [270] to [310] above. There is no unacceptable visual impact on residents associated with ANH’s proposed local centre because of the substantial separation between ANH’s site and existing houses. During cross-examination, Mr McGowan agreed that ANH’s proposed local centre is better located to avoid the potential for adverse visual amenity or character impacts on existing residents. In addition to the separation distances of at least 60 metres, there is extensive areas of vegetation in between ANH’s site and the residences on Oakey Flat Road and Raynbird Road. For the Raynbird Road residents, the intervening topography is such that they will not get a view into the ANH site at all. Mr McGowan agreed that ANH’s proposed local centre is well separated visually from existing residences, and that “no existing residents will be affected, not in any unacceptable way”.

The potential lighting impacts on sensitive receptors relate to fixed lighting of the premises and signage, headlight glare within the car park and headlight glare from vehicles exiting the premises.

Mr King and Mr Forbes agree suitable conditions could be applied to both sites to achieve suitable lighting amenity outcomes in relation to the lighting of the premises and signage. I accept their evidence.

For the reasons provided in paragraphs [180] to [200] above, I am satisfied that BGM’s proposed local centre will not result in unacceptable impacts from headlight glare. I accept the evidence of Mr King and Mr Forbes that there will be minimal impact of headlight glare occasioned by ANH’s proposed local centre.

Although BGM’s proposed local centre is closer to existing residences, the sensitive receptors along Oakey Flat Road and Raynbird Road proximate ANH’s site presently enjoy a darker environment. Street lighting introduced because of ANH’s proposed local centre will change that. I accept the evidence of Mr King that the impact will not be unacceptable. Separation distances, topography and vegetation will mitigate the impacts. Nevertheless, I accept the evidence of Mr Forbes that there may be a more noticeable impact on the residents of houses proximate to ANH’s site from the introduction of street lighting than to the residences on Sovereign Drive because of lighting introduced as part of BGM’s proposed local centre. In addition, lighting impacts from a retail centre on BGM’s site must be within the reasonable contemplation of the residents of Sovereign Drive given a neighbourhood hub has already been approved over part of the site.

For the reasons provided above, I am not persuaded that there is any material difference between the acceptability of the proposed local centres with respect to visual and lighting impacts.

ANH’s second reason for contending its proposed local centre is superior is that BGM’s proposed local centre requires substantial earthworks. The earthworks will involve a greater overall vertical variation in topography, a greater depth of cut, and a steep section of retaining wall at the western end of the car park.

Broad quantitative comparatives of this nature are unhelpful in determining impacts. They ignore that BGM’s proposed local centre will present vastly more significant retaining walls along its road frontages and that the retaining walls required by BGM’s proposed local centre are not highly visible from the street or adjoining properties. For reasons provided in paragraphs [139] to [160] above and paragraphs [270] to [310] above, BGM’s proposed local centre will achieve a better interface with the street through active building frontages and less significant differences in the levels at the street edge. Further, the retention and enhancement of the natural waterway and the associated vegetation in the environmental corridor within BGM’s site ensures the main natural features of the site are maintained. In contrast, ANH’s proposed local centre will completely remove the natural gully that runs through the centre of the site.

Economic need

ANH contends that its proposed local centre is superior from an economic need perspective for four reasons.

First, ANH’s says its proposed local centre is accessible from a sub-arterial road, being Oakey Flat Road, and is prominent from the intersection of that road with Raynbird Road.

As I have already noted, the Planning Scheme Overlay Map – Road Hierarchy shows that part of Oakey Flat Road adjacent ANH’s site as a Council arterial road, not a sub-arterial road. Regardless, I accept that ANH’s proposed local centre is prominent from the intersection of that road with Raynbird Road. That is a positive feature of ANH’s proposed local centre.

Second, ANH says its proposed local centre is generally more accessible to the catchment population. ANH submits that because the locality and each of the proposed local centres are vehicle dependent, a vast majority of patrons will attend either centre by car. As such, it says its proposed local centre is better located to more conveniently cater for that great majority of customers. It submits that any advantage of BGM’s proposed local centre in terms of walkability (in isolation) is marginal and also relates to a far more minor portion of the community that the centre is intended to serve. Consequently, ANH submits its proposed local centre better fulfils the intent of the nominated assessment benchmarks with respect to accessibility.

With respect to its site’s greater accessibility by car, ANH relies on evidence about accessibility for residents on the homebound journey. During cross-examination, Mr Brown accepted that the homebound journey is an important one in terms of retail offer. It is associated with convenience. Mr Brown accepts that residents returning from the south are likely to exit the Bruce Highway and use Oakey Flat Road. A significant proportion of residents would undertake that journey. For those residents, the first centre they would reach would be the ANH site. For the residents to the south of Oakey Flat Road, New Settlement Road, and Raynbird Road, the ANH site would be as far as they need to travel. All residents in the Next generation neighbourhood precinct would have the option of turning into Raynbird Road, and then north into the developing estates, be it the Satterley land or the Narangba Heights estate. Mr Brown accepts that only residents living in the northern part of the primary west catchment would head further north and into Sovereign Drive. By way of contrast, Mr Brown accepts that a centre on BGM’s site would require residents in the southern part of the primary west catchment to travel further to BGM’s site, and then back to their residences to the south. Mr Vann also gave evidence about the advantage of ANH’s site being on the main road on the way home. Mr Duane accepts that BGM would pull customers into Sovereign Drive in circumstances where they would not otherwise enter that road network.

The evidence about the homeward journey assumes the majority of residents would approach their residences from the south. Even accepting that to be so, it is apparent from the UBD map showing the road network in the broader locality that there is little difference in the accessibility of BGM’s site by motor vehicle. Common sense suggests that local residents would quickly become familiar with the most convenient means of accessing BGM’s site and would use the broader road network to approach the centre from a direction that was most convenient.

In terms of accessibility overall, whilst Mr Vann considers BGM’s site is slightly better on the walkability score, when accessibility is rated overall, he considers that the ANH proposal is better for the catchment. I have considered the accessibility of the respective proposed local centres by motor vehicle, active transport and public transport, and the importance of walkability, in paragraphs [47] to [71] and paragraphs [216] to [265] above. For the reasons explained in those paragraphs, ANH has not demonstrated that its proposed local centre better fulfils the intent of the nominated assessment benchmarks with respect to accessibility.

ANH’s third contention is that its proposed local centre achieves better separation from the existing Narangba Valley Shopping Centre and will have a lower impact on that centre. Although it achieves better separation, I do not accept that it will have a lower impact on the Narangba Valley Shopping Centre for the reasons provided in paragraphs [503] and [504] above.

Fourth, ANH says its proposed local centre is capable of satisfying the established need for a local centre in the locality, as it involves a committed full line supermarket anchor tenant (Coles). It says it is not known whether BGM will secure a supermarket tenant. ANH also says it is not known whether any tenant secured by BGM would require the full gross floor area of the supermarket the subject of BGM’s proposal plans.

I have already addressed ANH’s contention about the respective level of commitment by supermarket tenants in paragraphs [473] to [478] above. ANH has not demonstrated that it is in a materially better position in this regard. As for ANH’s suggestion that there is uncertainty about BGM requiring the full gross floor area of the supermarket, the evidence does not demonstrate that the uncertainty is such that approval of BGM’s proposed local centre is futile. Should BGM seek to reduce the size of its proposed supermarket, it will need to demonstrate that the reduction is generally in accordance with the plans or that it involves no more than a minor change. That is not a matter for me to consider. That matter is appropriately left for consideration at the relevant time. I am to assess BGM’s local centre as proposed.

In addition to those four matters, in its submissions ANH notes that both ANH and BGM have an expansion area that could be the subject of future development applications. Mr Duane considered that feature of BGM’s site to be a public benefit as it provides an opportunity to accommodate further community facilities. ANH submits the benefit is amplified on its site because with Coles as an anchor tenant, its site will have superior success with activation of the centre. Having regard to the location and design constraints of ANH’s proposed local centre that I have already mentioned, I am not persuaded that ANH has any material advantage in this respect.

Town planning and the exercise of the planning discretion in relation to ANH’s proposed local centre

ANH contends that its proposed local centre is superior from a town planning perspective for three reasons.

First, approval of ANH’s proposed local centre still permits the development of the BGM site for its approved neighbourhood hub. Although the approval will not be subsumed by ANH’s proposed local centre, I accept the evidence of Mr Duane that BGM’s approved neighbourhood hub would not likely proceed if ANH’s proposed local centre is approved. The proximity of the ANH site would make it difficult to entice quality tenants to BGM’s site. Despite that, this matter is of little weight given any loss to the community associated with the extent and range of services offered by the neighbourhood hub would be offset by approval of ANH’s proposed local centre.

Second, ANH says its proposed local centre complies with the principal Planning Scheme requirements for a new local centre, including s 6.2.1.2(5) of the Centre zone code, whereas BGM’s proposed local centre does not. For reasons already provided, while ANH has established compliance with many of the assessment benchmarks against which its development is to be assessed, there are also material non-compliances.

Third, ANH contends its proposed local centre is superior in the respects relating to architectural and urban design, traffic planning, visual amenity and economic need addressed above.

ANH submits that Mr Vann encapsulated many of those matters in the original planning joint expert reports. ANH submits, by way of summary, that Mr Vann considers:

(a) BGM’s proposed local centre is fundamentally a car-based design; is not in any way a main street development; and is of a design that raised challenges for its overall usability, functionality, and therefore convenience for users;

(b) ANH’s proposed local centre, by its location in the road network, separation from the existing Narangba Valley Shopping Centre, and the ability for pedestrian access from new development to the west, represents a somewhat superior location to fulfil properly the local centre role to the catchment identified by the economic need experts. Additionally, it is the subject of long-term interest by Coles, and the very firm nature of Coles’ commitment to the ANH site is supportive of it being a better location to serve the catchment than the BGM site;

(c) ANH’s proposed local centre is well placed to be a community focal point. It is in a prominent location on the major thoroughfare serving the catchment;

(d) ANH’s proposed local centre is able to successfully deal with its amenity impacts;

(e) although ANH’s proposed local centre has a more traditional local centre design, it is a good response to providing the range of facilities required in a well-located site, and in a way that can provide pedestrian amenity and people-oriented civic areas;

(f) ANH’s proposed local centre would provide an attractive built form, particularly to the key view from the intersection Oakey Flat Road and Raynbird Road. Conversely, BGM’s proposed local centre, while attempting to achieve some level of street focus to Sovereign Drive, ends up with the “worst of both worlds”, resulting in a disjointed layout involving a car-dominated appearance and a prominent big box, and difficulties with its internal operations and practical street activity outcomes; and

(g) ANH’s proposed local centre would be on a prominent, central intersection with good accessibility and visibility. It would be well-connected to the catchment it would serve.

Looking at the competing proposals overall, Mr Vann opines that neither of the sites is “great” in terms of how it can be designed and respond to all of the themes in the Planning Scheme. He acknowledges though that there is a clear public interest in providing a centre to meet the needs of the community, and that the economic need experts all agree that there is a need for another centre. He considers that “neither is a lay down misere one way or another – there are pros and cons”. Altogether though, he considers ANH’s site to be preferable. One reason for that is the clear commitment from Coles. It is a recognised brand, and a type of facility that is very well accepted in the market. It is likely to be bigger than a Supa IGA and have a bit of a price advantage. Mr Vann considers that is likely to drive a more successful centre, which would create conditions for a good range of other tenancies to leverage off the activity that Coles creates. He considers that to be a public interest benefit.

These submissions by ANH provide a helpful summary of its position as to why, in the exercise of the planning discretion, its proposed development should be approved. I accept that each of Mr Vann’s observations are relevant to the exercise of the discretion. The extent to which they are established, and the weight to be afforded to them in the exercise of the discretion, is another matter.

Although I have already addressed each of the matters the subject of Mr Vann’s summary, it is convenient to provide a brief comment in response to each of them again here.

I accept that BGM’s proposed local centre will rely heavily on trade from customers accessing it by motor vehicles. I do not otherwise accept Mr Vann’s opinion in paragraph [570](a).

I do not accept the matters referred to in paragraph [570](b).

With respect to paragraph [570](c), I accept ANH’s proposed local centre is in a prominent location on the major thoroughfare serving the catchment. This matter favours approval. However, it is of limited weight in this case for three reasons. First, the attributes of ANH’s site relative to its surrounds constrain the ability of ANH’s proposed local centre to provide an appropriate community focal point, particularly because of the challenges they present in terms of encouraging active transport. Second, providing a local centre that is located and designed to encourage active transport is an important planning goal in the Planning Scheme. Third, the economic, community and town planning need for a new local centre in this locality can be met by BGM’s proposed local centre, which better addresses the planning goal with respect to active transport and walkable neighbourhoods.

I accept the matter referred to in paragraph [570](d). This matter favours approval, but is of diminished significance in this case given BGM’s proposed local centre is also able to successfully deal with its amenity impacts.

With respect to paragraph [570](e), I accept that ANH’s proposed local centre is a more traditional local centre design. It is not a wholly unacceptable response to the community’s need for a range of facilities. The design would provide pedestrian amenity and people-oriented civic areas. This matter favours approval, but is of diminished significance in this case given BGM’s proposed local centre is of a design that more closely aligns with the Planning Scheme design goals.

With respect to paragraph [570](f), I accept that ANH’s proposed local centre would provide an attractive built form, particularly to the key view from the intersection of Oakey Flat Road and Raynbird Road. This matter favours approval, but its weight is diminished given I do not accept the criticisms of BGM’s proposed local centre as valid.

I accept the matters referred to in paragraph [570](g), other than with respect to accessibility by active transport. In this case, the benefits of accessibility by motor vehicle are insufficient to overwhelm the underperformance of ANH’s proposed local centre with respect to active transport.

I do not accept all of Mr Vann’s opinions as noted in paragraph [571] above. The subject of his opinions have already been discussed by me elsewhere in this judgment.

I am not satisfied that ANH has discharged its onus.

Do the relevant matters relied on by BGM favour approval of its proposed local centre?

The relevant matters relied on by BGM can be grouped into seven broad subject matters. They relate to:

(a) timing and certainty;

(b) the quarry haul route;

(c) accessibility;

(d) site constraints;

(e) design;

(f) infrastructure; and

(g) ANH’s preliminary approval.

Timing and certainty

BGM contends that its proposed development is superior because it seeks a development permit, whereas ANH only seeks a preliminary approval.

BGM submits that there are many design issues that have been identified with the ANH proposal that would need to be resolved by the assessment of future development applications for the material change of use component. It asserts that it may take a long time to find solutions for these matters (particularly the planning and traffic issues), which would need to be addressed in the application material lodged in support of such future development applications. BGM also submits there is a prospect that the issues may not be able to be resolved satisfactorily to both the Council and ANH and there may be protracted litigation about them.

While there are a number of aspects that need to be addressed by way of detailed design, BGM has not pointed to any evidence that the issues are such that they will be time consuming to resolve. I reject its submissions in that regard.

The Council submits that the time associated with the further code assessment process that ANH would need to engage in is not necessarily significant. However, the process adds to the matters ANH must navigate before it could realise its proposed local centre. BGM does not face that same hurdle.

The Council submits that the preliminary approval sought by ANH also adds to the uncertainty surrounding the final form of any subsequent development should ANH’s proposed local centre be approved. It says that such an approval will not tie ANH’s proposed local centre, in an absolute sense, to the plans relied on in these appeals. A future developer could propose a centre that is not in accordance with the proposal plan. It would be impact assessable, but ANH would have the comfort of a determination that a local centre is appropriate on its site. While the preliminary approval gives ANH that comfort, it gives the public no certainty about the timing and form of any development on the site. The Council also notes that assuming those matters could eventually be overcome, ANH would still need to obtain operational works approval. In contrast, BGM already has the operational works approval it needs to carry out the earthworks for its proposed local centre.

I accept that ANH’s proposed local centre is less advanced than BGM’s in terms of its planning approvals. Any approval of ANH’s proposed local centre would require navigation of an extra layer of process before a local centre could be delivered. These matters may affect when the current need for the local community could be satisfied. Despite that, I do not consider the issue of timing and certainty to be a matter that significantly favours approval of BGM’s proposed local centre. The commencement of trading on either site is not only dependent upon the existence of a development permit. It requires finalisation of design. In that respect, there is a prospect that BGM still has work to do in relation to redesign of the supermarket with consequential amendment to the layout overall, as well as in relation to its access arrangements. In addition, BGM’s negotiations with an anchor tenant are less advanced than ANH’s. Cornetts still has its own investigations to carry out before its board considers approval. It also wants substantial incentives and to pay a low rent. Although Coles may be enticed to occupy BGM’s site, present indications are that it would require “pretty major changes”. Common sense suggests that negotiations of that type would take time. It is uncertain whether the changes would be such as to require another impact assessable application.

Quarry haul route

BGM contends that its proposed local centre is superior to ANH’s because BGM’s site is free of the important public safety issues that plague ANH’s site. It says the issue stems from the location of ANH’s site on a quarry haul route. The location necessitates turning movements across oncoming traffic on that route.

As I have already noted, Raynbird Road is a designated quarry haul route. Mr Vann explains that the purpose of the planning provisions related to that designation is to ensure that the haul route can continue to operate without development impinging on its operation. The main issue, in that respect, is the potential impingement caused by introducing sensitive receptors in terms of noise. I have already addressed that issue in paragraphs [327] to [334] above. ANH complies with the provisions of the Planning Scheme that are directed to the haul route.

Further, I accept the evidence of Mr Vann that the design of ANH’s proposed local centre is a sensible response to the haul road and the site’s topography. It is a sensible rationalisation of the site use to have the back wall of the centre on its southern boundary adjoining Raynbird Road. It allows the centre to be well below the road frontage and to be landscaped so that it is not dominant and not impacted by traffic on that road. Mr Schomburgk agrees that orientation to Raynbird Road is a sensible response by ANH. I accept it is preferable to locate a non-sensitive land use in that location than, for example, residences. As is evidenced by the Satterley development, residences would need to be set behind acoustic barriers. They may also require construction from materials that provide acoustic treatment.

Whilst Mr Schomburgk says it is undesirable to locate a centre adjacent to the Raynbird Road haul route, I do not accept his opinion. There is no unacceptable traffic engineering or acoustic amenity issue. As I have already found above, the proposed plaza area near the roundabout with Raynbird Road will have a pleasant outlook.

BGM has not established that there is a public safety issue. There is no evidence that ANH’s proposed local centre creates a safety issue. The quarry operators did not make a submission opposing the development. Additionally, the Council approved an access point onto Raynbird Road for the Satterley development. That access will direct residential traffic onto that part of Raynbird Road directly adjacent ANH’s site. The approved intersection is proposed to be used to access ANH’s site. This factor tells against any finding of an adverse safety impact.

Accessibility

BGM contends that its proposed local centre is in a superior position on the road network. It says, by way of contrast, ANH’s proposed local centre is located in a poor and inconvenient position on the road and pedestrian network. BGM contends that ANH’s proposed local centre has poor active transport connections whereas BGM’s proposed local centre has excellent active transport connections to the existing and developing community that it is designed to serve. BGM contends that the relevant trade area can more conveniently access BGM’s site.

For the reasons explained in paragraphs [558] to [561] above, I accept that BGM’s proposed local centre better fulfils the intent of the nominated assessment benchmarks with respect to accessibility.

Site constraints

BGM contends that ANH’s proposed local centre is poorly located and sited in terms of its topography, land area, shape, road frontages and configuration. It submits that the topography and other site specific features and constraints of ANH’s site make it a poor location for a shopping centre, particularly having regard to the desires of the Planning Scheme for activation and connectivity. I accept BGM’s submission for reasons already provided in paragraphs [221] to [256] and [270] to [311] above.

Design

BGM contends that, having regard to the intended function of the centre and the provisions of the Planning Scheme, the design and layout of BGM’s proposed local centre is superior.

For reasons provided in paragraphs [100] to [179] and [270] to [311] above about the design of the respective proposed local centres, I am satisfied that BGM’s proposed local centre better fulfils the intent of the nominated assessment benchmarks with respect to the appropriate design of a new local centre.

BGM also contends that the car park for ANH’s proposed local centre is inferior to that in BGM’s proposed local centre in terms of access, legibility and distribution of car parks convenient to the components of the respective proposed local centres. It says ANH’s proposed local centre has inferior and unacceptable external vehicle, internal vehicle, bicycle and pedestrian connections.

The basis for BGM’s assertion that car parking considerations favour BGM’s proposed local centre is unclear. ANH provides car parks at a similar rate and in close proximity to the two accesses to the Coles supermarket. I do not accept BGM’s submission in this respect. The constraints with respect to active transport connections have already been addressed in paragraphs [221] to [256] above.

Infrastructure

BGM contends that it has not been demonstrated that ANH’s proposed local centre can be serviced by infrastructure. It submits that, although the approval of the Satterley development has made it easier for ANH to obtain infrastructure servicing, an infrastructure agreement will still need to be negotiated with the relevant infrastructure providers. This submission was not supported by reference to any evidence. As is noted by ANH, the engineers all agree that the ANH site will be able to be serviced appropriately given the development of the Satterley land. As such, I reject BGM’s submissions.

Preliminary approval

BGM contends that approval of ANH’s proposed local centre would materially affect the community’s ability to make a properly made submission on later development applications. In particular, it notes the limited amount and detail of information included in, attached to, or given with the application and available to submitters. It contends that approval of ANH’s proposed local centre would deny the public the opportunity to make informed and meaningful submissions with respect to the local shopping centre intended to serve their convenient shopping needs.

BGM has not established those contentions for the reasons provided in paragraphs [459] to [467] above.

The exercise of the planning discretion in relation to BGM’s proposed local centre

BGM’s proposed development does not comply with all aspects of the Planning Scheme. It does not comply with every requirement about the intended design of local centres. Despite that, it achieves the planning policy that underlies those provisions. As such, the nature and extent of the non-compliance is not, of itself, a compelling reason to refuse BGM’s application.

I am satisfied that, in the exercise of the planning discretion, BGM’s application should be approved because of the combined effect of the following matters:

(a) BGM’s proposed local centre complies with the requirements in the assessment benchmarks that regulate the appropriate location of local centres;

(b) while BGM’s proposed local centre does not comply with every requirement about the intended design of local centres, it achieves the planning policy that underlies those provisions;

(c) BGM’s proposed local centre, if approved and constructed, will not result in any unacceptable impacts on the amenity or character of the local area;

(d) the Planning Scheme intends that Next generation neighbourhoods, such as that which is emerging to the west of Oakey Flat Road, are walkable neighbourhoods that contain a centre that will provide it with necessary goods and services and that will act as a focal point for the community. That community and town planning need is presently unsatisfied;

(e) there is an economic need for an additional local centre to serve the defined trade area; and

(f) BGM’s proposed local centre is appropriately located and designed to meet the economic, community and town planning need.

Conclusion

ANH has not discharged the onus in Appeal No 694 of 2018. That appeal is dismissed.

BGM has discharged the onus in Appeal No 340 of 2018. That appeal is dismissed. I will hear from the parties as to the need for any consequential orders, including with respect to conditions. The appeal will be mentioned at 9 am on 30 October 2019 for that purpose.

CITATION:	Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46
PARTIES:	TOSH ORDY MURPHY (appellant) v MORETON BAY REGIONAL COUNCIL (respondent) and BGM PROJECTS PTY LTD (ACN 102 165 328) (co-respondent) AND AUSTRALIAN NATIONAL HOMES PTY LTD (ACN 020 903 189) (appellant) v MORETON BAY REGIONAL COUNCIL (respondent) and BGM PROJECTS PTY LTD (ACN 102 165 328) (co-respondent)
FILE NO/S:	340 of 2018 and 694 of 2018
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	8 October 2019
DELIVERED AT:	Brisbane
HEARING DATE:	11-15 June, 18-22 June, 25-29 June, 7 and 19 September and 3 December 2018 and 8 – 10 April, 15-18 April and 13-17 May 2019, further exhibit received 20 May 2019, further written submissions received 19 September 2019, further written submissions and further hearing on 4 October 2019
JUDGE:	Kefford DCJ
ORDER:	Appeal No 694 of 2018 is dismissed. Appeal No 340 of 2018 is dismissed. I will hear from the parties as to the need for any consequential orders, including with respect to conditions. The appeal will be mentioned at 9 am on 30 October 2019 for that purpose.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – where BGM seeks a development permit to authorise it to carry out a material change of use to use its land for a proposed local centre – where the council approved BGM’s application –whether BGM’s proposed development complies with the relevant assessment benchmarks – whether BGM’s proposed development is appropriately located – whether BGM’s proposed development is appropriately designed – whether BGM’s proposed development would result in unacceptable headlight glare – whether there is a need for an additional local centre – whether in exercise of the discretion the proposed development ought be approved PLANNING AND ENVIRONMENT – APPEAL – where ANH sought a preliminary approval for a local centre – where the council refused ANH’s application – where ANH now seeks a preliminary approval generally in accordance with a design – whether ANH’s proposed development complies with the relevant assessment benchmarks – whether ANH’s proposed development is appropriately located – whether ANH’s proposed development is appropriately designed – whether ANH’s proposed development would result in unacceptable noise impacts – whether ANH’s proposed development was unacceptable having regard to traffic engineering considerations – whether in exercise of the discretion the proposed development ought be approved
LEGISLATION:	Planning Act 2016 (Qld), s 45, s 59, s 60, s 61, s 311 Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 47 Planning Regulation 2016 (Qld), s 31
CASES:	Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, approved Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPEC 34, approved Garyf Pty Ltd v Maroochy Shire Council [2008] QPEC 101; [2009] QPELR 435, approved Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, considered Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved Jedfire Pty Ltd v Logan City Council [1995] QPLR 41, approved Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17, cited Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, approved Mirani Solar Farm Pty Ltd v Mackay Regional Council 7 Anor [2018] QPEC 38, cited Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2018] QPEC 63, cited SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24, approved Smout v Brisbane City Council [2019] QPEC 10, approved Vidakovic & Anor v Brisbane City Council [2009] QPEC 53; [2009] QPELR 739, approved William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, approved
COUNSEL:	D R Gore QC and B D Job QC for the appellants R Bain QC and J Ware for the respondent C L Hughes QC, J G Lyons and M Batty for the co-respondent
SOLICITORS:	Connor O’Meara for the appellants Moreton Bay Regional Council Legal Services Department for the respondent McCullough Robertson for the co-respondent