North Harbour Holdings Pty Ltd v Moreton Bay Regional Council
[2024] QPEC 21
•8 May 2024
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
North Harbour Holdings Pty Ltd v Moreton Bay Regional Council & Anor [2024] QPEC 21
PARTIES:
NORTH HARBOUR HOLDINGS PTY LTD (ACN 101 569 457)
(Appellant)
v
MORETON BAY REGIONAL COUNCIL
(Respondent)
AND
LANCORP PTY LTD (ACN 165 102 330)
(Co-respondent)
FILE NO/S:
1687/22
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
8 May 2024
DELIVERED AT:
Brisbane
HEARING DATE:
28 – 31 March, 3 and 4 April 2023
JUDGE:
Kefford DCJ
ORDER:
IN DUE COURSE, THE MORETON BAY REGIONAL COUNCIL’S DECISION WILL BE SET ASIDE AND REPLACED WITH A DECISION THAT APPROVES THE DEVELOPMENT APPLICATION SUBJECT TO CONDITIONS. TO THAT END, I ADJOURN THE APPEAL FOR FURTHER HEARING ON 5 JUNE 2024.
I ORDER:
(A) THE COUNCIL PREPARE A DRAFT JUDGMENT THAT ATTACHES CONDITIONS OF APPROVAL THAT GENERALLY ACCORD WITH THOSE PROVIDED IN ITS NEGOTIATED DECISION NOTICE WITH NECESSARY AMENDMENTS TO REFLECT THE CONDITIONS AND PLANS REFERRED TO IN PARAGRAPHS [329] AND [330] BELOW;
(B) UNLESS THE COURT ORDERS OTHERWISE, THE COUNCIL IS TO PROVIDE THE DRAFT JUDGMENT AND CONDITIONS TO EACH OF THE PARTIES BY NO LATER THAN 15 MAY 2024 AND IS TO FILE AND SERVE AN AFFIDAVIT EXHIBITING THE RELEVANT CORRESPONDENCE AND DRAFT JUDGMENT BY NO LATER THAN 16 MAY 2024; AND
(C) UNLESS THE COURT ORDERS OTHERWISE, IF ANY OF THE PARTIES CONTEND THAT THE DRAFT JUDGMENT DOES NOT ADEQUATELY REFLECT THESE REASONS, OR OTHERWISE CONTENDS THAT THE CONDITIONS ARE NOT APPROPRIATE:
(I) THE PARTY SO CONTENDING IS TO FILE AND SERVE AN OUTLINE OF ARGUMENT WITH RESPECT TO SUCH MATTERS, AND ANY ADDITIONAL EVIDENCE ON WHICH IT SEEKS TO RELY IN THAT RESPECT, BY NO LATER THAN 22 MAY 2024;
(II) THE OTHER PARTIES ARE TO FILE AND SERVE ANY OUTLINES OF ARGUMENT IN RESPONSE, AND ANY ADDITIONAL EVIDENCE ON WHICH IT SEEKS TO RELY IN THAT RESPECT, BY NO LATER THAN 29 MAY 2024; AND
(III) THE OUTLINES OF ARGUMENT ARE NOT TO EXCEED FIVE PAGES IN LENGTH AND ARE TO PROVIDE AN ESTIMATE OF THE TIME REQUIRED ON 5 JUNE 2024 TO HEAR ARGUMENT ABOUT THE MATTERS RAISED.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s approval of a development application – where the Co-respondent made a development application seeking a development permit for a material change of use – where the development application is for redevelopment of land at Burpengary East – where the proposed development is to include a full-line supermarket – whether the proposed development is a local centre – whether the land use is appropriate – whether the character and design of the proposed development is appropriate – whether the proposed development will result in adverse traffic impacts – whether there is a need for the supermarket – whether the proposed development should be approved in the exercise of the discretion
LEGISLATION:
Acts Interpretation Act 1954 (Qld) ss 14D, 32D
Planning Act 2016 (Qld) ss 45, 59, 60
Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46, 47
Planning Regulation 2017 (Qld) s 31, sch 24
CASES:
AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied
Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied
Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39, applied
Fabcot Pty Ltd v Ipswich City Council & Anor [2022] QPEC 11; [2023] QPELR 693, considered
Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101; (2008) 166 LGERA 245; [2009] QPELR 435, approved
Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved
IB Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 791, approved
Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied
Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved
Jedfire Pty Ltd v Logan City Council [1995] QPLR 41, approved
K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 40; [2021] QPELR 518, approved
Kenlynn v Noosa Shire Council [2019] QPEC 65; [2020] QPELR 834, approved
Kentucky Fried Chicken Pty Ltd v Gantidis & Anor [1979] HCA 20; (1979) 140 CLR 675, applied
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, cited
Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, approved
McKay v Brisbane City Council & Anor; Panozzo v Brisbane City Council & Anor; Jensen v Brisbane City Council & Anor [2021] QPEC 42; [2022] QPELR 963, approved
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved
Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, cited
Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPEC 7; (2008) 160 LGERA 356; [2008] QPELR 480, approved
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied
SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied
Sumvista Pty Ltd v Redland Shire Council & Anor [2005] QPEC 2; [2005] QPELR 460, approved
Taylor v Owners - Strata Plan 11564 & Ors [2014] HCA 9; (2014) 253 CLR 531, applied
Self Storage Helensvale Holdings Pty Ltd v City of Gold Coast Council [2021] QPEC 29; [2022] QPELR 609, approved
SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied
Ugarin Pty Ltd v Logan City Council & Anor [2004] QPEC 1; [2004] QPELR 392, approved
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, applied
Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272, approved
Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, applied
Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied
COUNSEL:
D Gore KC and L Walker for the Appellant
M Batty and K Buckley for the Respondent
GA Thompson KC and R Yuen for the Co-respondentSOLICITORS:
Thynne + Macartney for the Appellant
Moreton Bay Regional Council Legal Services for the Respondent
Steele Project Strategy and Advisory for the Co-respondentTABLE OF CONTENTS
Introduction
What is the character of the subject land and the locality?
What is the nature of the proposed development?
What are the issues that require determination?
What is the relevant framework for the decision?
Key issue 1 - Is the proposed development an inappropriate use of the subject land when assessed against the Planning Scheme?
What planning outcomes with respect to land use are sought in the Rural residential zone code?
Does an assessment of the proposed development against the Rural residential zone code tell against approval?
What does the Strategic framework reveal about the settlement pattern, walkable communities and the creation of new local centres?
Does the proposed development comply with s 3.6.1 1.c. of the Strategic framework?
Does the proposed development comply with s 3.6.1 4. of the Strategic framework?
Does the proposed development comply with s 3.10.1 3. of the Strategic framework?
Does the proposed development comply with s 3.10.1 8. of the Strategic framework?
What is the significance of non-compliance with ss 3.6.1 1.c., 3.6.1 4, 3.10.1 3. and 3.10.1 8. of the Strategic framework?
Does s 6.2.1.5.1 1.l. of the Centre zone code tell against approval?
Conclusion about whether the proposed development involves an inappropriate use of the subject land
Key issue 2 – Will the proposed development have unacceptable character and visual amenity impacts?
What do the provisions of the Rural Residential zone code stipulate in relation to design and appearance of development and character and visual amenity impacts?
What is the character of the locality?
What are the design attributes of the proposed development?
Will the proposed development have a detrimental impact on the character and visual amenity of the Rural residential zone?
Will the proposed development maintain a distinct and recognisable transition between urban and rural areas?
Conclusion about whether the design and appearance of the proposed development complies with the Rural residential zone code?
Does non-compliance with the planning outcomes with respect to design of centres in the Local centre precinct in the Centre zone code tell against approval?
Key issue 3 – Will the proposed development give rise to unacceptable traffic impacts unless conditioned?
Key issue 4 – What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
Key issue 5 – Is there a need for the proposed development?
What are the general principles that inform and guide an assessment of need?
Does the evidence establish a latent unsatisfied demand for a new local centre?
Is the latent unsatisfied demand appropriately met on the subject land?
Will approval of the proposed development have unacceptable trading impacts on The Hub Convenience Centre?
Could the latent unsatisfied demand be met on land owned by North Harbour Holdings Pty Ltd?
Is there other evidence that demonstrates a need for the proposed development?
Conclusion re need
Key issue 6 – Should the proposed development be approved in the exercise of the planning discretion?
Conclusion
Introduction
This appeal relates to a development application made by the Co-Respondent, Lancorp Pty Ltd, seeking a development permit to make a material change of use to facilitate a local centre (“the proposed development”). The development application relates to land at 116-122 Buckley Road and 137-143 Uhlmann Road, Burpengary East (“the subject land”).
Burpengary East is approximately 35 kilometres north of the Brisbane central business district. It is on the eastern side of the Bruce Highway and within the local government area of Moreton Bay Regional Council (“the Council”). It is a dormitory suburb that is accessed via the Uhlmann Road exit from the Bruce Highway.
The subject land is approximately 230 metres east of the Bruce Highway and Uhlmann Road grade-separated interchange. It is on the northeastern corner of a major intersection, being the intersection of Buckley Road and Uhlmann Road.
At present, there is a cluster of non-residential uses that are centred around the signalised intersection of Buckley Road and Uhlmann Road. They include:
(a)a service station and childcare centre on the south-eastern corner of the intersection;
(b)a development on the north-western corner of the intersection, known as The Hub Convenience Centre, which comprises four buildings and a large area of at-grade carparks. The Hub Convenience Centre contains a mix of commercial, retail and community uses, including two medical centres, a dentist, a psychologist, a large pharmacy, a childcare centre, shops, a small IGA supermarket, cafes, take away food stores, bakeries, personal grooming services and a takeaway liquor store; and
(c)a commercial tennis centre with three tennis courts and associated lighting on the north-eastern corner of the intersection, which is part of the subject land.
The subject land, and the other land surrounding the intersection that contains non-residential uses, form part of a discrete pocket of land to the east of the Bruce Highway that is in the Rural residential zone under the Moreton Bay Regional Council Planning Scheme 2016 (“the Planning Scheme”). Just north of that discrete pocket, about two kilometres from the subject land, is land that is being developed as a residential and mixed industry and business estate known as North Harbour.
This area to the east of the Bruce Highway is experiencing rapid population growth. At present, there is no full-line supermarket east of the Bruce Highway to serve the growing population of Burpengary East. The residents of the area must cross the Bruce Highway to satisfy their essential convenience shopping needs.
Lancorp Pty Ltd seeks to fill that gap in the market by providing a local centre on the subject land and submitted a development application to that end, which was accepted as properly made on 31 August 2021. The development application was publicly notified. During the public notification period, the Council received 20 properly made submissions opposing the proposed development and one submission in support of it.
One of the properly made submissions opposing the proposed development was made by the Appellant in this appeal, North Harbour Holdings Pty Ltd. It is the developer of the residential and mixed industry and business estate known as North Harbour. North Harbour Holdings Pty Ltd hopes to develop some of its land nearby for a local centre.
By negotiated decision notice dated 17 June 2022, the Council approved Lancorp Pty Ltd’s development application, subject to conditions.
On 14 July 2022, North Harbour Holdings Pty Ltd commenced this appeal.
There is much to commend approval of the proposed development. Matters that support approval include that:
(a)there is a need for a local centre to the east of the Bruce Highway to provide essential convenience shopping and community facilities;
(b)no unacceptable tangible amenity impacts would arise from approval of the proposed development;
(c)the subject land is conveniently located in that it is:
(i)at the gateway to Burpengary East and its residents;
(ii)on a major thoroughfare;
(iii)within easy walking distance of an existing residential aged care facility and nursing home in the Rural residential zone;
(iv)proximate to, and within easy walking distance of, complementary land uses such as child-care facilities and medical centres, consequently encouraging a higher level of linked trips; and
(d)the provision of a new local centre on the subject land is consistent with higher order provisions of the Planning Scheme that set the forward planning policy direction for the Planning Scheme area, including key policies that are intended to address the cost of living.
Against those matters, when exercising the planning discretion, I must balance the considerations that tell against the grant of approval. In support of its contention that the proposed development should be refused, North Harbour Holdings Pty Ltd principally relies on:
(a)a provision of the Rural residential zone code that lists the proposed uses as uses that are not to be included in that zone;
(b)an alleged undesirability of approving the proposed development as its catchment overlaps with the catchment for The Hub Convenience Centre;
(c)the alleged absence of a walkable neighbourhood served by the proposed development; and
(d)alleged unacceptable impacts on the character and amenity of the surrounding rural residential area.
North Harbour Holdings Pty Ltd no longer contends that there are unacceptable traffic impacts that, of themselves, warrant refusal. Although it still contends that the traffic impacts will be unacceptable, it says that this lends weight to the case for refusal (unless the recommendations of the traffic engineer retained by it, Mr Adam Pekol, are adopted).
Consistent with its decision, the Council contends that the development application should be approved.
The appeal generally[1] proceeds as a hearing anew.[2] Lancorp Pty Ltd bears the onus of establishing that the appeal should be dismissed.[3]
[1]Subject to ss 46(2) to (5) of the Planning and Environment Court Act 2016 (Qld).
[2]Planning and Environment Court Act 2016 s 43.
[3]Planning and Environment Court Act 2016 s 45.
What is the character of the subject land and the locality?
Before considering the issues in dispute, it assists to first appreciate the features and character of the subject land and the locality generally.
To assist me in that regard, I have the benefit of:
(a)expert evidence with respect to town planning given by Mr David Perkins, Mr Leo Mewing and Ms Jennifer Morrissy, the town planners retained by Lancorp Pty Ltd, the Council and North Harbour Holdings Pty Ltd respectively;
(b)expert evidence with respect to character and visual amenity given by Dr Nicholas McGowan, the visual amenity expert retained by Lancorp Pty Ltd; and
(c)many photographs of the area.
The parties arranged a site inspection of the local area. Although my observations on the site inspection do not form part of the evidence, my appreciation of the photographic evidence, and the opinions conveyed by the experts, was greatly enhanced by that site inspection.
My findings below are not attributable to a single statement by an expert. They reflect the aggregate impression that I have formed having regard to the collective effect of the evidence, including the photographic evidence.
The subject land comprises Lot 2 on SP 230232, Lot 1 on RP 183727 and Lot 4 on RP 101194, which have a combined area of 21,812 square metres. It is trapezoidal in shape and has a frontage of approximately 140 metres to Buckley Road and approximately 166 metres to Uhlmann Road. Two of the lots contain dwelling houses and associated outbuildings. The other lot is developed with a commercial tennis centre and a dwelling house.
As I have already mentioned, the subject land is part of Burpengary East, which is a discrete pocket of land in the Rural residential zone located east of the Bruce Highway.
The subject land is on the northeastern corner of a major intersection, being the intersection of Buckley Road and Uhlmann Road. The intersection is approximately 230 metres east of the Bruce Highway grade-separated interchange that provides access to Burpengary East.
The Planning Scheme classifies Uhlmann Road as an arterial road west of Buckley Road and a sub-arterial road east of Buckley Road. Apart from localised widening at intersections, Uhlmann Road has a two-lane-wide undivided form.
Under the Planning Scheme, Buckley Road is classified as an arterial road. At its intersection with Uhlmann Road and adjacent to the subject land, Buckley Road is a four-lane wide divided arterial road. North and south of the intersection, the cross-section of Buckley Road reduces to a two-lane-wide, undivided form. Buckley Road and Uhlmann Road each have posted speed limits of 60 kilometres per hour.
Along the frontage of the subject land, and in nearby areas, active transport infrastructure has already been established. The existing infrastructure includes:
(a)a 1.8-metre-wide concrete pedestrian path that extends away from the intersection of Uhlmann Road and Buckley Road for several blocks along Uhlmann Road;
(b)a 2.5-metre-wide concrete pedestrian path that extends along most of Buckley Road;
(c)concrete pedestrian paths that extend from the intersection of Uhlmann Road and Buckley Road to the western side of the Bruce Highway; and
(d)on-road cycle lanes on both sides of Buckley Road and Uhlmann Road in the vicinity of the subject land.
As one enters Burpengary East from the Bruce Highway, one is immediately confronted by the cluster of non-residential uses that are centred around the signalised intersection of Buckley Road and Uhlmann Road. As I have already mentioned, they include:
(a)a service station and childcare centre on the south-eastern corner of the intersection;
(b)a conglomeration of commercial, retail and community activities accommodated in four buildings and served by a large area of at-grade carparks on the north-western corner of the intersection. The conglomeration is the development known as The Hub Convenience Centre, which accommodates two medical centres, a dentist, a psychologist, a large pharmacy, a childcare centre, shops, a small IGA supermarket, cafes, take away food stores, bakeries, personal grooming services and a takeaway liquor store; and
(c)a commercial tennis centre with three tennis courts and associated lighting on that part of the subject land that is at the north-eastern corner of the intersection.
The locality surrounding the subject land contains other development that involves intensive built form or non-residential uses (or both), including:
(a)a residential aged care facility and nursing home about 250 metres to the north-west of the subject land at 135 Buckley Road;
(b)a service station (being the Caboolture South BP Service Centre) to the north at the corner of Coach Road East and the Bruce Highway;
(c)the Church of Jesus Christ of Latter-Day Saints to the south at 27–35 Buckley Road; and
(d)several open storage areas, including at the corner of Junction Road and Buckley Road.
About two kilometres north of the intersection of Buckley Road and Uhlmann Road, and north of the pocket of land in the Rural residential zone, North Harbour Holdings Pty Ltd is constructing the development known as North Harbour. The North Harbour development area is approximately 809 hectares. The approved residential component will contain about 1,600 lots, of which about 1,400 are developed to date. The balance of the North Harbour development area is located within the Mixed industry and business precinct of the Industry zone, the Limited development zone and the Recreation and open space zone of the Planning Scheme.
Dr McGowan opines that the local extent of the Rural residential zone has a varied character. He explains that parts of that area possess the qualities referred to in the purpose of the Rural residential zone code, namely a semi-rural or bushland amenity where the intensity of residential development is generally dispersed and there is a strong dominance of open area. However, Dr McGowan opines that much of the local extent of the Rural residential zone does not exhibit these qualities. Rather, he says that there are extensive areas of residential development that present as part of a low-density residential area rather than as part of a rural residential area. According to Dr McGowan, much of the area does not portray a sense of spaciousness or a semi-rural or bushland setting with a dominance of open area.
I accept Dr McGowan’s evidence. It is made good by the many photographs of the local area.
The evidence demonstrates that the character of Burpengary East is informed by three elements. First, at its core, there is a predominance of detached dwelling houses on varying lot sizes that are located within a street network characterised by many cul-de-sacs and a suburban appearance. Second, towards the outer edges of the area, adjacent land in the Rural zone, there are larger lots with a semi-rural or bushland amenity. Third, at the gateway to Burpengary East, there is a conspicuous cluster of non-residential uses centred around a major, signalised intersection that give the area immediately surrounding the subject land a more urbanised character.
The character of the locality is strongly influenced by the predominance of detached housing that present as part of a large-lot suburban housing estate and the urbanised gateway to the suburb. Combined, they give the locality a feel that is more urbanised than semi-rural or bushland in character and amenity.
What is the nature of the proposed development?
Lancorp Pty Ltd seeks a development permit to authorise the commencement of a new use on the subject land. In its development application, Lancorp Pty Ltd applied for the uses of shopping centre, food and drink outlet, indoor sport and recreation, office, service industry, shop and veterinary services. Each of these are defined uses in the Planning Scheme. It is proposed that the uses will collectively operate as a new local centre, which will comprise:
(a)a full-line supermarket with 3,300 square metres of gross lettable area;
(b)approximately 1,445 square metres of gross lettable area for specialty shops, including 25 square metres for a kiosk and 150 square metres for a liquor store;
(c)226 carparking spaces, of which six are proposed to be dedicated to “click and collect” services; and
(d)amenities areas totalling 195 square metres.
These uses are to be accommodated in three buildings. Each is a single storey building with a maximum building height of 8.42 metres, save for those parts of the building that comprise mezzanine plant room and rooftop mechanical plant that extend up to 11.5 metres in height.
Two of the buildings are positioned at the south-western corner of the subject land, near the intersection. They will be used for various retail and commercial activities. One fronts Buckley Road and has a gross lettable area of 278 square metres. The other fronts Uhlmann Road and has a gross lettable area of 358 square metres. There is a small entry plaza between those two buildings, which leads to an open area that is suitable for outdoor dining and overlooks a play space for children.
The third building is much larger. It is set back from the road frontages and sits behind the main customer car parking area. It accommodates the proposed supermarket and other smaller tenancies for retail and commercial activities, including the liquor store and kiosk.
Vehicular access is proposed to be via crossovers at the Uhlmann Road and Buckley Road frontages, near the boundary between the subject land and adjoining residential development.
Parking is provided for approximately 226 cars. The car parking area and the vehicle circulation area are to be at grade and partially sleeved behind the buildings. The car parking area includes shade canopies, pedestrian pathways and refuges raised within the vehicle surface.
An area designated for staff parking and a drive through for customer parcel collections are to be located on the northern side of the supermarket building, separated from the adjoining residential property to the north by a three-metre-wide landscape buffer and acoustic barrier. A service vehicle circulation driveway lies between the supermarket building and the adjoining residential property to the east, and there will be an acoustic barrier on the boundary.
Refuse collection and servicing areas are to be located:
(a)for the supermarket, within the supermarket building adjoining the supermarket loading dock at the north-eastern corner of the subject land; and
(b)for all other tenancies, adjacent to the services area on the southern side of the subject land.
Acoustic barriers are proposed along the northern and eastern boundaries. The height of the barriers varies across the length of the boundaries, but they have a maximum height of 3.5 metres along the northern boundary and a maximum height of 3.2 metres along the eastern boundary. The side of these barriers that address neighbouring properties are to be painted with artwork that references the locality.
The proposed development also facilitates various upgrades to the road networks by:
(a)providing a bus stop with covered seating on Buckley Road at the frontage of the subject land and carrying out associated roadworks;
(b)dedicating land to facilitate future road widening; and
(c)undertaking external roadworks on Buckley Road and Uhlmann Road, part of which incorporate a northbound bus stop in Buckley Road at a position north of the proposed signalised access to the subject land.
What are the issues that require determination?
The issues in dispute were agreed by the parties and identified in Exhibit 8.13.[4] There are six key issues that require determination, namely:
1. Is the proposed development an inappropriate use of the subject land when assessed against the Planning Scheme?
2. Will the proposed development have unacceptable character impacts?
3. Will the proposed development give rise to unacceptable traffic impacts unless conditioned?
4. What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
5. Is there a need for the proposed development?
6. Should the proposed development be approved in the exercise of the planning discretion?
[4]Some of the identified issues were abandoned during the hearing, such as the issue about community expectations.
Each of these questions is to be determined by reference to the applicable statutory assessment and decision-making framework.
What is the relevant framework for the decision?
As is evident from s 47 of the Planning and Environment Court Act 2016 and s 60 of the Planning Act 2016, the Court has a broad discretion in determining the appeal. It has power to 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 entity that made the decision with directions the Court considers appropriate.
The Court’s broad discretion should be exercised judicially, and subject to the limitations in the relevant statutes.[5] The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 provides relevant guidance in that respect.
[5]Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20.
As the development application required impact assessment, pursuant to ss 45(5) and 59 of the Planning Act 2016, the exercise of the discretion must be based on an assessment that:
(a)must be carried out:
(i) against the assessment benchmarks in the Planning Scheme to the extent that they are relevant;
(ii) having regard to any matters prescribed by regulation, which in this case relevantly includes:
(A) any development approval for, and any lawful use of, the premises and adjacent premises; and
(B) the common material, including properly made submissions about the development application;[6] and
(b)may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise).
[6]Planning Regulation 2017 (Qld) s 31 and sch 24. The regulations prescribe additional matters, but they have not been put in issue in this appeal.
Section 43 of the Planning Act 2016 defines assessment benchmarks to include those matters set out in a planning scheme as matters that an assessment manager must assess assessable development against.
The development application was accepted as properly made on 31 August 2021. At that time, version 4 of the Planning Scheme was in effect. As such, version 4 of the Planning Scheme is a categorising instrument containing assessment benchmarks relevant to the assessment called for by s 45 of the Planning Act 2016.
There have been amendments made to the Planning Scheme since the development application was made, but it is common ground that nothing arises from them that requires consideration under s 45(8) of the Planning Act 2016.
The development application was impact assessable but did not trigger referral to any referral agencies prescribed by the Planning Regulation 2017 (Qld).
In relation to s 45(5)(b) of the Planning Act 2016, although examples are given, the term “relevant matter” is not defined. In an appropriate case, the absence of a negative impact or detrimental effect may be taken into account as a relevant matter.[7] Personal circumstances of a person (including a corporation),[8] financial or otherwise, are not a relevant matter to which regard may be had.[9]
[7]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1021 [61].
[8]Acts Interpretation Act 1954 (Qld) s 32D.
[9]Planning Act 2016 s 45(5); Acts Interpretation Act 1954 s 14D.
The assessment and decision-making process is to be approached in a manner that is consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,[10] Abeleda & Anor v Brisbane City Council & Anor,[11] Wilhelm v Logan City Council & Ors[12] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[13] Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors.[14] That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[15]
[10][2020] QCA 253; [2021] QPELR 987.
[11][2020] QCA 257; [2021] QPELR 1003.
[12][2020] QCA 273; [2021] QPELR 1321.
[13][2021] QCA 95; [2022] QPELR 309.
[14][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].
[15][2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].
I now turn to consider each of the disputed issues.
Key issue 1 - Is the proposed development an inappropriate use of the subject land when assessed against the Planning Scheme?
Lancorp Pty Ltd seeks approval to start a new use of the land. The uses sought are shopping centre, food and drink outlet, indoor sport and recreation, office, service industry, shop and veterinary services. As I have already mentioned, each of these are defined uses in the Planning Scheme.
North Harbour Holdings Pty Ltd contends that the proposed development involves an inappropriate use of the subject land. In support of its contention, North Harbour Holdings Pty Ltd points to three aspects of the Planning Scheme, namely provisions directed at:
(a)the nature of development anticipated in the Rural residential zone, and those uses that are not;
(b)criteria for the establishment of a new local centre where the new local centre involves out-of-centre development; and
(c)creating a more compact settlement pattern and walkable communities.
The Agreed List of Issues in Exhibit 8.13 records that North Harbour Holdings Pty Ltd relies on:
(a)ss 6.2.11.2 1., 6.2.11.2 3.h. and 6.2.11.2 3.s. of the Rural residential zone code; and
(b)s 6.2.1.5.1 1.l. of the Centre zone code; and
(c)ss 3.6.1 1.c., 3.6.1 4., 3.10.1 3., and 3.10.1 8. of the Strategic framework.
North Harbour Holdings Pty Ltd says they are assessment benchmarks.
In this case, whether the proposed development is an appropriate use of the land is not a matter that can readily be resolved by an assessment against only those provisions of the Planning Scheme referenced in the Agreed List of Issues. It is necessary to discuss the Planning Scheme in some detail.
What planning outcomes with respect to land use are sought in the Rural residential zone code?
When considering whether the Planning Scheme supports the use of the subject land for the proposed development, the applicable zone code is a useful starting point. That is because the Planning Scheme explains, in s 6.1, that:
(a)the Planning Scheme uses zones to organise the Planning Scheme area in a way that facilitates the location of preferred or acceptable land uses; and
(b)the assessment benchmarks that specifically relate to a zone are contained in the zone code.
Section 6.1 of the Planning Scheme also explains that each zone code identifies:
(a)the purpose of the code;
(b)the overall outcomes that achieve the purpose of the code;
(c)the performance outcomes that achieve the overall outcomes and the purpose of the code;
(d)examples that achieve aspects of the corresponding performance outcomes identified in the code;
(e)precinct specific performance outcomes and examples; and
(f)some overlay specific performance outcomes and examples relevant to land in the zone.
As I have already observed, the subject land is in the Rural residential zone.
Section 6.2.11.1 1. of the Planning Scheme states that the assessment benchmarks in the Rural residential zone code apply to development in that zone if the development has been categorised as requiring impact assessment.
The purpose of the Rural residential zone is identified in s 6.2.11.2 1. of the Planning Scheme, which states:
“The purpose of the Rural residential zone is to provide for residential development on large lots where infrastructure and services may not be provided and where the intensity of residential development is generally dispersed. The zone is generally located at the urban-rural fringe, having a semi-rural or bushland amenity and character with a strong dominance of open area and scope for planting. Development is characteristically low density (large lots), low intensity of built form and catering for a range of lifestyle choices. The opportunity and ability for rural uses to occur is retained. Limited provision for other low intensity non-residential uses is also provided where it is demonstrated they have minimal adverse impacts on the amenity and character of the zone.”
Section 6.2.11.2 2 states that the Rural residential zone seeks to implement the policy direction set in the Strategic framework.
According to s 6.2.11.2 3. of the Planning Scheme, the purpose of the Rural residential zone will be achieved through the overall outcomes in the Rural residential zone code. Collectively, the overall outcomes in ss 6.2.11.2 3.b., g., h., i., j., k., r. and s. of the Rural residential zone code provide guidance about the types of low intensity, non-residential uses for which limited provision is made in the Rural residential zone. Those overall outcomes state:
“b.The ongoing operation of existing rural uses and primary production activities is retained. Rural uses and primary production activities establish where they do not adversely impact on the use, character and amenity values of adjoining properties.
g.Home based business establish where the scale and intensity of the activity does not detrimentally impact upon the low density, low intensity and open area character and amenity associated with the Rural residential zone.
h.Retail and commercial activity group uses establish within existing Neighbourhood Hubs (see Overlay map - Community activities and neighbourhood hubs). Redevelopment or development within existing Neighbourhood Hubs occurs where:
i.development does not result in nuisance or amenity impacts on adjoining residents or the wider streetscape;
ii.development is small scale, low intensity and consistent with the rural residential character and amenity associated with the particular Neighbourhood hub; and
iii.development associated with retail and commercial activity group activities does not involve the expansion of existing Neighbourhood hubs onto adjoining lots.
i.Community activity group uses establish within existing Community Activities locations (see Overlay map - Community activities and neighbourhood hubs). Community activity group activities may only establish on lots that immediately adjoin existing Community activities and neighbourhood hubs only. Redevelopment or development within existing Community Activities locations, or on lots immediately adjoining Community activities and neighbourhood hubs occurs where:
i.development does not result in nuisance or amenity impacts on adjoining residents or the wider streetscape; and
ii.development is small scale, low intensity and consistent with the rural residential character and amenity associated with the particular Community Activities location.
j.Development generating high volumes of traffic or involving heavy vehicle traffic movements are located on roads of a standard and capacity to accommodate traffic demand.
k.Development does not result in the establishment of industrial activities.
r.Development in the Rural residential zone includes one or more of the following:
· Animal husbandry
· Animal keeping – excluding catteries and kennels
· Aquaculture - if water area associated with ponds and dams are less than 200m2 or housed tanks are less than 50m2
· Community Activity Group – where in or adjoining a Community Activity location
· Community residence
· Cropping, where not forestry for wood production
· Dwelling house
· Emergency Services
· Environment facility
· Home based business
· Intensive horticulture – where on lots 1 ha or more
· Non resident workforce accommodation – where on lots 2 ha or more
· Outdoor sports and recreation – if located on Council owned or controlled land and in accordance with a Council approved Master Plan
· Park
· Permanent plantation
· Retail and Commercial Activity Group - where in a Neighbourhood Hub
· Roadside stall
· Rural Industry – where on lots 1 ha or more and GFA no more than 150 m2
· Rural workers’ accommodation – where on lots 2 ha or more
· Sales office
· Telecommunication facility
· Veterinary services – where on lots 1 ha or more
· Wholesale nursery – where on lots 1 ha or more
· Winery
s.Development in the Rural residential zone does not include one or more of the following:
· Adult store
· Air services
· Bar
· Brothel
· Bulk landscape supplies
· Car wash
· Caretaker’s accommodation
· Cemetery
· Community Activity Group – where not in or adjoining a Community Activity location
· Crematorium
· Cropping, where forestry for wood production
· Detention facility
· Dual occupancy
· Dwelling unit
· Extractive industry
· Funeral parlour
· Function facility
· Hardware and trade supplies
· High impact industry
· Hospital
· Hotel
· Intensive animal industry
· Landing
· Low impact industry
· Major sport, recreation and entertainment facility
· Marine industry
· Medium impact industry
· Motor sport facility
· Multiple dwelling
· Nature-based tourism
· Nightclub entertainment facility
· Outdoor sales
· Outdoor sport and recreation – where not located on Council owned or controlled land
· Parking station
· Port services
· Relocatable home park
· Renewable energy facility
· Research and technology industry
· Residential care facility
· Resort complex
· Retail and Commercial Activity Group - where not in a Neighbourhood Hub
· Retirement facility
· Rooming accommodation
· Service station
· Shopping Centre
· Short-term accommodation
· Showroom
· Special industry
· Theatre
· Tourist attraction
· Tourist park
· Transport depot
· Warehouse
(endnotes omitted)
In sch 1, s 1.1.1, the Planning Scheme clusters certain defined uses into identified activity groups. The Retail and commercial activity group and the Community activity group are two such activity groups.
In the Rural residential zone, the Retail and commercial activity group comprises:
(a)agricultural and supplies store;
(b)food and drink outlet;
(c)indoor sport and recreation – for a gymnasium;
(d)office;
(e)service industry;
(f)shop;
(g)shopping centre; and
(h)veterinary services.
In the Rural residential zone, the Community activity group comprises:
(a)child care centre;
(b)community use;
(c)educational establishment;
(d)health care services; and
(e)place of worship.
Table SC1.2.2 of the Planning Scheme contains administrative definitions that assist with the interpretation of the Planning Scheme. In that table, Neighbourhood hub is defined as:
“A cluster of non-residential uses. A conveniently located public place that is recognised and valued in the local community as a gathering place for people, and an access point for a wide range of community activities, programs, services and events. Includes, a lot shown on Overlay map - Community activities and neighbourhood hubs.”
The purpose and the overall outcomes of the Rural residential zone code are complementary. They seek to limit non-residential uses in the Rural residential zone to those that are low intensity and that will have minimal adverse impacts on the amenity and character of the zone.
Does an assessment of the proposed development against the Rural residential zone code tell against approval?
It is uncontroversial that:
(a)each of the uses sought to be established in the proposed development are within the Retail and Commercial Activity Group for the Rural residential zone;
(b)part of the subject land, being Lot 2 on SP 230232:
(i)currently contains a commercial tennis centre;
(ii)is depicted on Community Activities and Neighbourhood Hubs Overlay Map OM-43 as “Community Activity”; and
(c)the subject land is not mapped as a Neighbourhood Hub on the Community Activities and Neighbourhood Hubs Overlay Map.
Consequently, a decision to approve the proposed development:
(a)does not comply with the overall outcome for the Rural residential zone in s 6.2.11.2 3.s. of the Planning Scheme; and
(b)does not find support in the other overall outcomes that indicate the type of low intensity, non-residential uses for which limited provision is made, including the overall outcome for the Rural residential zone in s 6.2.11.2 3.h. of the Planning Scheme (being one of the provisions put in issue by North Harbour Holdings Pty Ltd).
North Harbour Holdings Pty Ltd submits that if the Court accepts that the proposed development offends those provisions and s 6.2.1.5.1 1.l. of the Centre zone code, it would be a rare case for the Court to nevertheless conclude that the proposed development should be approved. North Harbour Holdings Pty Ltd did not identify any authority on which it relies for that proposition. Care must be taken not to blindly apply findings or propositions from cases that relate to different planning schemes or different statutory decision-making regimes. It is the decision-making regime in question that must inform the decision and one must examine the verbiage of the Planning Scheme to determine the importance of the non-compliance.
Here, if an assessment of the appropriateness of the proposed development was limited to an assessment against those parts of the Rural residential zone code referred to above, it may be easy to accept North Harbour Holding Pty Ltd’s case that the development application should be refused. However, the assessment process under s 45 of the Planning Act 2016 requires me to assess against all relevant assessment benchmarks. In this case, that includes provisions that reveal the planning policy about:
(a)the creation of a new local centre on land that is not in the Centre zone; and
(b)the settlement pattern and walkable communities.
Those provisions, and others in the Planning Scheme, inform the degree of importance that the Planning Scheme attaches to the requirements of the Rural residential zone code. They impact on the weight to be attributed to the non-compliances with the Planning Scheme in this case.
I will now turn to the provisions of the Strategic framework that provide guidance about the appropriateness of the use in this case.
What does the Strategic framework reveal about the settlement pattern, walkable communities and the creation of new local centres?
Section 3.1 of the Planning Scheme explains that the Strategic framework sets the policy direction for the Planning Scheme and forms the basis for ensuring that appropriate development occurs within the entire Planning Scheme area for the life of the Planning Scheme. The Strategic framework articulates the policy direction of the Planning Scheme through provisions that identify:
(a)the strategic intent;
(b)twelve themes that work together to articulate the complete policy direction;
(c)the strategic outcomes sought for development in the Planning Scheme area for each theme;
(d)the elements that refine and further describe the strategic outcomes;
(e)the specific outcomes sought for each or several elements; and
(f)the land use strategies for achieving these outcomes.
Section 3.1 4. of the Planning Scheme explains that although each theme has its own section, the Strategic framework is read in its entirety as the policy direction for the Planning Scheme.
The Strategic intent in s 3.2 of the Planning Scheme states:
“We live, work and play in well connected urban areas, suburbs, towns and villages extending from Moreton Bay to the D'Aguilar, Blackall and Conondale Ranges. The Region includes mountain ranges, water supply catchments, coastal wetlands, national parks, state forests, coastal lowlands, rural hinterland and urban areas.
Our region by 2031 is a network of, safe, more self contained, well connected communities each with a unique identity and sustainable lifestyle within a healthy and resilient natural environment.
The significant natural values and resources and the beauty of our Region’s landscape are protected and managed for future generations.
Our towns and villages will be attractive and vibrant places offering housing and employment choices to residents, ease of access to facilities and services and are the hub of social and community life and cultural diversity. Our residents have access to facilities that support life long learning and active and healthy lifestyles.
Our Region’s prosperity is underpinned by our many well planned centres, enterprise and employment areas, urban growth areas and our well managed natural resources that are attractive to investment and provide a broad range of appropriate employment and business opportunities.
We value the variety of rural lifestyle opportunities offered within our region and seek to sustainably develop and service productive and economically viable rural communities.
Our built form and essential infrastructure are well designed, integrated, functional and safe, responsive to lifestyle needs and provide quality places for people to live sustainably.”
(emphasis added)
As is apparent from this statement, there are many types of communities within the Moreton Bay Region. They are not intended to exhibit the same identity traits. As such, having regard to the Strategic intent alone, one might reasonably expect that the form of development required to sustainably develop and service an area in a way that is responsive to lifestyle needs may well vary across the Moreton Bay Region. Such an expectation is reinforced by a consideration of the twelve themes that work together to articulate the complete policy direction for the Planning Scheme area.
The themes relate to sustainability and resilience; natural environment and landscape; strong communities; settlement pattern and urban form; employment location; rural futures; natural resources; integrated transport; infrastructure; water management; Planning area structuring; and the Moreton Bay Regional Council Place Model.
Although each theme has its own section, not all provisions for every theme have direct application or relevance to the assessment of every development application. One must take care to read the provisions in their relevant context. For example, the first theme relates to sustainability and resilience. It is dealt with in s 3.3 of the Planning Scheme. In that section, the Planning Scheme explains that not every outcome is one that is sought to be achieved by the Council through its approach to development decisions. Some are outcomes that the Council will seek to achieve through the Planning Scheme and through its approach to the planning and design of land use and infrastructure.
The theme relating to strong communities in s 3.5 of the Planning Scheme is of relevance in this case. It seeks that:
“A range of appropriate housing types, community facilities and services and safe public spaces are provided across the Region to meet community needs and lifestyle expectations, promote cultural, recreational and social interaction and community identity.”
(emphasis added)
In s 3.5, the Planning Scheme explains the three key challenges that inform this theme.
First, the Planning Scheme identifies that there is a growing appreciation of the negative health and social impacts (i.e., psychological, social and cultural well-being impacts) of longer daily commute times undertaken on congested transport systems to work in the city.
Second, the structural ageing of the population is expected to have profound impacts on the nature of Moreton Bay. For instance, between 2006 and 2031, the population of residents over the age of 70 years in the Moreton Bay Region is expected to quadruple. The Planning Scheme explains that as rates of disability are closely related to age, it is critical that accommodation and services are planned for universal accessibility and to enable people to age in their place of choice.
Third, the Planning Scheme explains that the change in the nature of the Moreton Bay Region’s community over time and the increasing cost of housing will dictate the need for greater diversification of dwelling types. Currently, detached housing provided on standard residential allotments accounts for about 85 per cent of housing stock. In the future, there will be a far greater emphasis on the provision of a range of housing types delivered by the private sector, including housing to meet special needs and community housing purposes.
In response to those challenges, the Planning Scheme records that two of the Council’s key policies are to:
(a)increase the population living near services, public transport and employment; and
(b)bring services and facilities closer to where people live.
These policies are intended to address the costs of living by reducing overall lifestyle costs, particularly those relating to transport and energy use.
The Planning Scheme recognises that these policies will require a change in the nature of the Moreton Bay Region’s community over time. This is because, over the last 60 years, the Moreton Bay Region has developed as a dormitory corridor for Brisbane. Many have chosen to live in the area for lifestyle reasons or because the housing is more affordable but are dependent on Brisbane City for work. In that context, the Planning Scheme explains that a more consolidated urban form, incorporating a greater range of economic activities, housing types, services and facilities, combined with improved transport connections to the broader region, is critical.
The Planning Scheme considers consolidation an essential catalyst to the development of social capital, providing the range of social infrastructure required for strong communities, and re-orienting the public transport system to better service our local centres. It considers that the lack of these resources leaves residents (particularly those in the outer metropolitan areas) more vulnerable to external shocks (for example energy and fuel costs increases). The Planning Scheme identifies this as one of the greatest challenges for the development of strong communities within the Moreton Bay Region. For that reason, the Planning Scheme explains that the Strategic framework seeks to promote resilient communities. This is to be achieved through a more self-contained and supportive urban form that provides for the range of employment, housing, facilities and services and community, cultural and sporting needs of the population.
This theme seeks to increase the population living near services, public transport and employment and to bring services and facilities closer to where people live. However, those policies do not authorise increased urbanisation without regard to the situation that pertains for the relevant community. Whether a particular development provides appropriate services to meet community needs and lifestyle expectations and promote community identity is a question of fact to be considered having regard to the community in question. Not all communities across the Moreton Bay Region will have the same needs, nor are they expected to develop in a manner that is uniform. That is apparent from the provisions of the Strategic framework that relate to the Moreton Bay Regional Council Place Model theme, which I will address shortly.
The next theme of relevance in this case is the theme about settlement pattern and urban form in s 3.6 of the Planning Scheme. In respect of that theme, the Planning Scheme seeks that:
“A compact urban structure of existing and new well planned walkable neighbourhoods, contiguous with and interconnected to established neighbourhoods and supported by a network of accessible and convenient centres and transit corridors linking residential areas to employment locations establishes the context for achieving a consolidated settlement pattern and urban form.”
With respect to this theme, s 3.6 of the Planning Scheme explains that the Moreton Bay Region is made up of diverse urban, rural and coastal places. One of the tools that was available to the Council to facilitate planning for that diverse region was the SEQ Place Model. That tool is based on the idea that the settlements of the Moreton Bay Region can be understood as a series of place types. Each place type is recognisable by its function, including related and compatible land uses, intensity, special qualities and character. The Planning Scheme states that the SEQ Place Model is useful for promoting a more compact urban form, more diverse housing, walkable neighbourhoods, mixed use communities, access to transportation choices, and protection of the natural environment.
The Council has endorsed the use of the SEQ Place Model in the preparation of the Planning Scheme. In applying the SEQ Place Model to the Moreton Bay Region, the Council has sought to expand the concept of place types to encompass the wide variety of places that make up the Moreton Bay Region. It has also incorporated the strategic outcomes that the Council is seeking to achieve across the Moreton Bay Region. The Planning Scheme refers to this expanded model as the Moreton Bay Regional Council Place Model. It is the focus of a separate theme that is dealt with in s 3.14 of the Planning Scheme. I will consider that theme in more detail shortly.
The first of the two provisions of the Strategic framework on which North Harbour Holdings Pty Ltd relies are strategic outcomes for the settlement pattern and urban form theme, namely ss 3.6.1 1.c. and 3.6.1 4. They state:
“3.6.1 Strategic Outcome - Compact urban form within the urban footprint
A more compact urban form is developed within the urban footprint by a program of urban design and sustainability principles aimed at increasing the jobs and people per hectare in targeted locations (to help achieve Council's long term 70% local employment target), creating walkable communities, and a viable quality transit system.
1.A more efficient land use and development pattern will be achieved progressively over time by:
…
c.requiring new development to be integrated into existing neighbourhoods in a spatially cohesive manner to help create walkable communities with an emphasis being placed on active transport and access by transit; and
…
4.Within the Urban Footprint, Council will consolidate and maintain rural residential development in the identified rural residential areas in locations where this form of development will not compromise the orderly, progressive and efficient expansion of the urban area and its associated infrastructure networks …”
Before assessing the proposed development against those provisions, it assists to consider the balance of the relevant provisions of the Strategic framework.
In addition to the strategic outcomes for the settlement pattern and urban form theme put in issue by North Harbour Holdings Pty Ltd, s 3.6 contains strategic outcomes with respect to the provision of centres. They relevantly state:
“3.6.2 Strategic Outcome - Network of centres
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 and convenient access to an appropriate mix of businesses, services, community facilities, recreation, entertainment and employment opportunities and provided with convenient access by a quality public transport and active transport system.
1.Include a broad mix of land uses in activity centres appropriate to each centre’s role and function in the network - higher order centres (principal and major regional activity centres), district and local centres - and structure them as mixed-use centres in a predominantly main-street format to best serve their surrounding communities;
2.Connect well designed higher order activity centres and district activity centres to surrounding local centres and neighbourhood hubs by feeder transit services and to other major centres by high frequency transit services;
…
6.Develop new viable local centres through possible new neighbourhood plans in appropriate locations in walkable neighbourhoods with street-fronting retail and non-retail commercial layouts instead of enclosed or parking-lot dominant retail formats; …”
(endnotes omitted)
North Harbour Holdings Pty Ltd says that the fact that the resultant community detriment from impact on an existing centre will be made good by the proposed development is of less relevance where there is a hierarchy of centres in the planning scheme and a clear strategy to protect the viability of those centres. In support of its submission, North Harbour Holdings Pty Ltd refers to the observations of His Honour Judge Rackemann in Fabcot Pty Ltd v Ipswich City Council & Anor,[57] wherein His Honour found:[58]
“That case was concerned with prospective competition between an existing take-away food premises and a proposed Kentucky Fried Chicken outlet. The passage remains good law in relation to the relevance of competition from a first principles perspective. Having regard to the age of the case (and its subject matter) however, it is unsurprising that it does not deal with the consequences of economic impact in the context of a contemporary planning scheme featuring a planned network of centres. In such a context an attempt to simply compare what is offered by a proposed new facility, outside the planned network, to what would be lost or unduly affected within the network, fails to bring to account the public interest in the planned network and the centres which comprise it, as expressed through the planning scheme provisions. Senior counsel for the appellant acknowledged that one cannot apply the above passage without regard for what the planning scheme says about the centres network.”
[57][2022] QPEC 11; [2023] QPELR 693.
[58]Fabcot Pty Ltd v Ipswich City Council & Anor [2022] QPEC 11; [2023] QPELR 693, 721 [100].
In this case, it is relevant that the Planning Scheme contemplates the introduction of further local centres in unplanned locations. That is what is proposed here.
On balance, I am satisfied that the level of trading impact is not sufficient to undermine overall trading viability of competing centres, nor their role and function in the hierarchy. Although there may be a business impact on the IGA, I am satisfied that the impact is unlikely to sound in material consequences for The Hub Convenience Centre given the characteristics of the neighbourhood hub in question. As I have observed at paragraph [188] above, the uses at The Hub Convenience Centre are dominated by uses from the Community activity group, particularly health care services, not the Retail and commercial activity group. There is no evidence to suggest that this position will change in the foreseeable future, if at all. In those circumstances, the colocation of the proposed development with The Hub Convenience Centre will likely consolidate and strengthen the level of self-containment in Burpengary East with respect to food and groceries and other essential convenience shopping and improve the overall attraction and performance of The Hub Convenience Centre.
Could the latent unsatisfied demand be met on land owned by North Harbour Holdings Pty Ltd?
North Harbour Holdings Pty Ltd contends that it is relevant for the Court to consider that the need for a full-line supermarket could equally be satisfied on land in North Harbour in circumstances where:
(a)it is located closer to the critical mass of more intense urban development than the proposed development intends to serve, being the existing and future residents of North Harbour;
(b)as is observed by Mr Pekol, it will be equally accessible to residents of both the main trade area east and the main trade area west but will be surrounded by residential uses such that it will result in a lower proportion of travel by private vehicle and, consequently, less vehicle crashes and lower fuel consumption and emissions;
(c)it is better located to implement the policy intent of the Planning Scheme for local centres to establish in locations that promote walkable neighbourhoods, noting that it will be located directly across a proposed arterial road (that is presently under construction) from 1,150 dwellings, including proposed retirement and aged care facilities; and
(d)as was acknowledged by Mr Brown, approval of the proposed development would be likely to prevent the North Harbour proposal for a local centre from proceeding.
North Harbour Holdings Pty Ltd submits that the Court would have a level of confidence that, if the proposed development is refused, the community will not “miss out” on the opportunity to access a further full-line supermarket because one would establish in North Harbour.
North Harbour Holdings Pty Ltd accepts that it is not appropriate to carry out a “best site” analysis, but observes that this Court has previously found that the presence of another application in the area, which could satisfy the purported need, is a relevant consideration. In that respect, North Harbour Holdings Pty Ltd notes that in Ugarin Pty Ltd v Logan City Council & Anor,[59] His Honour Senior Judge Skoien observed:[60]
“There were occasional cases in which there was a genuine contest between competing proposals in which the Court took the realistic view that a comparison was a necessary course to adopt and that approval should be given to that site which provided the most desirable outcome. Such a course was adopted in Kern Konstruction Pty Ltd v Cairns City Council (1978) 38 LGRA 54, Jennings Industries Ltd v Cairns City Council (1978) 37 LGRA 297 and Raintrees Pty Ltd v Cairns City Council (1978) 37 LGRA 435. Those three appeals concerned three separate sites on which each Applicant proposed a regional shopping centre. They were not heard together but consecutively and Byth DCJ gave judgment in all three on the one day. He held that only one such development was needed and permitted only one to proceed. And in Green v Moreton Shire Council (1985) QPLR 328 Quirk DCJ recognised that where there was an existing application for the same use nearby to the site under appeal it would be artificial to ignore the fact. At 330-1 he said:
‘If, in a given area, a community need for shopping facilities is identified, and it is also shown that it is unlikely that any site other than the one under consideration can be developed to meet that need, such a matter might add considerably to the combined weight of those factors which favour an approval. On the other hand, if it is shown that the relevant need of the community is, in the event of a proposal being rejected, likely to be satisfactorily met by the development of another site, those factors which tell against an approval may more readily prevail. The town planning exercise involves the consideration and resolution of many (and sometimes conflicting) factors. As I see it, the matter of the competing application is but one of the factors that could be taken into account in considering this application.’”
(emphasis added)
[59][2004] QPEC 1; [2004] QPELR 392.
[60]Ugarin Pty Ltd v Logan City Council & Anor [2004] QPEC 1; [2004] QPELR 392, 400-1 [66].
More recently, in Abeleda & Anor v Brisbane City Council & Anor,[61] the Court of Appeal confirmed that whether a site is the only available site on which a need could be met is relevant to the weight to be given to need.
[61][2020] QCA 257; [2021] QPELR 1003.
I accept the relevance of the proposal of a local centre at North Harbour.
Here, the evidence does not establish that the need could be met on a site other than the subject land. As I have identified in paragraphs [134] to [138] above, the likelihood of a local centre being delivered on a site in North Harbour is far from certain. I am prepared to assume that there is a material possibility of that occurring. The possibility is to be weighed in the balance when considering whether the proposed development should be approved.
Is there other evidence that demonstrates a need for the proposed development?
There are several other matters that are relevant to need that are established on the evidence.
First, approval of the proposed development will generate employment and training benefits. In that respect, it was the unchallenged evidence of Mr Duggan that the supermarket will require a minimum of 60 employees, being a combination of full time, part-time and casual employees.
Second, it can readily be accepted that the proposed development will result in enhanced choice, competition and convenience given there is no full-line supermarket in the main trade area.
Otherwise, in relation to those relevant matters advanced by Lancorp Pty Ltd that I have extracted at paragraphs [364] and [365] above, I am satisfied that the evidence establishes the matters referred to in paragraphs 5(a)(iv), (ix) and (xii) of Exhibit 8.13 and paragraphs 3, 4, 5, 6, 8(a) to (c), 9, 10, 11, 12, 13, 14, 15, 16 (in part, in that the proposed development will complement existing retail and commercial uses in the existing locality), 20, and 21 of Exhibit 1.04. These are all matters that demonstrate a need for the proposed development on the subject land and weigh in favour of its approval.
I am not satisfied that Lancorp Pty Ltd has demonstrated that the proposed development will lead to reduced prices as alleged in paragraph 7 of Exhibit 1.04.
Conclusion re need
For the reasons provided above, I am comfortably satisfied that:
(a)there is a latent, unsatisfied demand for a new local centre in the locality;
(b)the proposed development can appropriately meet that latent, unsatisfied demand on the subject land without any unacceptable impacts on amenity or character;
(c)there is a possibility that a local centre at North Harbour might also address the latent, unsatisfied demand; and
(d)the well-being of the community would be enhanced by approval of the proposed development on the subject land. It will improve the ease, comfort, convenience and efficient lifestyle of the community.
Overall, I am satisfied that there is a need for the proposed development that weighs in favour of its approval.
Key issue 6 – Should the proposed development be approved in the exercise of the planning discretion?
It is well established that whether a development application is to be approved or refused is not necessarily determined by a finding of non-compliance with an assessment benchmark.[62] The starting point generally remains that the planning scheme is taken to be an embodiment of the public interest.[63] In most instances, where a planning scheme is not affected by changed circumstances, the decision-maker would give significant weight to it.[64] Nevertheless, the Planning Act 2016 affords flexibility for an assessment manager, or the Court on appeal, in deciding an impact assessable development application.[65] The flexibility promulgated by the Planning Act 2016 permits approval of a development application in the face of non-compliance with a planning scheme.[66] This is because the decision can be informed by other relevant matters.[67] Inherent in the decision-making process is a balancing exercise that is invariably complicated and multi-faceted. Although the exercise is to be based on the assessment carried out under s 45 of the Planning Act 2016, the way the balance is struck will turn on the facts and circumstances of each case, informed by consideration of the verbiage of the planning scheme to appreciate the degree of importance that the planning scheme attaches to a particular requirement or planning policy.[68]
[62]Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309.
[63]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1016 [42] and 1019 [54]; Wilhelm v Logan City Council & Ors [2020] QCA 273, [2021] QPELR 1321, 1339 [77].
[64]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1015-6 [40].
[65]Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, 804-6 [40]-[51]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 334 [13]-[14].
[66]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1019 [53].
[67]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1015 [40].
[68]Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, 1020 [56]-[57]; IB Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 791, 847-8 [288]; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, 335-7 [18]-[22].
North Harbour Holdings Pty Ltd’s case against approval of the proposed development is founded on four matters.
First, the proposed development does not comply with the land use intentions of the Planning Scheme in that it seeks to locate out-of-centre development in a manner that is inconsistent with the requirements of the Planning Scheme.
Second, the result of the out-of-centre nature of the proposed development is that it will have significant catchment overlap with the adjacent designated neighbourhood hub and will have significant to severe impacts upon its trading, which impacts are not anticipated and are sought to be avoided by the Planning Scheme.
Third, the proposed development does not comply with the requirements of the Planning Scheme in respect of the character and amenity intended for the Rural residential zone.
Fourth, consistent with its unplanned nature, the proposed development will have unacceptable traffic impacts, although such impacts could be avoided if the recommendations of Mr Pekol are adopted.
North Harbour Holdings Pty Ltd says that these matters sound in appreciable and unacceptable planning impacts.
For the reasons outlined above, I do not accept that any of these allegations are established on the evidence.
On balance, I am satisfied that the extent to which the proposed development does not comply with the assessment benchmarks and the other provisions relied on by North Harbour Holdings Pty Ltd[69] should not stand in the way of an approval given:
(a)the matters that I have identified that temper the significance of the non-compliances; and
(b)the relevant matters that I have identified that support approval.
[69]This includes s 6.2.1.5.1 1.l for the Local centre precinct in the Centre zone Code.
What rings with great finality is that the proposed development will deliver a local centre that provides essential convenience shopping and community facilities to residents who do not otherwise have convenient and appropriate access to a full-line supermarket. It will do so at a convenient location and without detrimental impacts. These matters sound strongly in favour of approval of the proposed development.
Even if I were to accept that the proposed development was required to, and did not, comply with the requirements of the Planning Scheme about the location of out-of-centre development because of its proximity to The Hub Convenience Centre, the many merits of the proposed development, and a consideration of the overall circumstances that pertain in this case, are such to eclipse that consideration.
Overall, the proposed development is meritorious and should be approved subject to the imposition of reasonable and relevant conditions.
Conclusion
The Co-respondent has discharged the onus.
In due course, the Council’s decision will be set aside and replaced with a decision that approves the development application subject to conditions. To that end, I will adjourn the appeal for further hearing on 5 June 2024 and I order that:
(a)the Council prepare a draft Judgment that attaches conditions of approval that generally accord with those provided in its negotiated decision notice with necessary amendments to reflect the conditions and plans referred to in paragraphs [329] and [330] above;
(b)unless the Court orders otherwise, the Council is to provide the draft Judgment and conditions to each of the parties by no later than 15 May 2024 and is to file and serve an affidavit exhibiting the relevant correspondence and draft Judgment by no later than 16 May 2024;
(c)unless the Court orders otherwise, if any of the parties contend that the draft Judgment does not adequately reflect these reasons, or otherwise contends that the conditions are not appropriate:
(i)the party so contending is to file and serve an outline of argument with respect to such matters, and any additional evidence on which it seeks to rely in that respect, by no later than 22 May 2024;
(ii)the other parties are to file and serve any outlines of argument in response, and any additional evidence on which it seeks to rely in that respect, by no later than 29 May 2024; and
(iii)the outlines of argument are not to exceed five pages in length and are to provide an estimate of the time required on 5 June 2024 to hear argument about the matters raised.
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