Ross Nielson Properties Pty Ltd v Brisbane City Council; Yu Feng v Brisbane City Council; C&B Consultants v Brisbane City Council

[2007] QPEC 3

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Ross Nielson Properties Pty Ltd v Brisbane City Council & Anor;
Yu Feng v Brisbane City Council & Ors;
C&B Consultants v Brisbane City Council & Ors [2007] QPEC 003
PARTIES:	4777/2005
ROSS NIELSON PROPERTIES PTY LTD (ACN 010 754 873)
Appellant V
BRISBANE CITY COUNCIL
Respondent And
STATE OF QUEENSLAND
Co-Respondent And
YU FENG PTY LTD AND BUCKLEY VANN PTY LTD
First Co-Respondents by Election And
C & B CONSULTANTS PTY LTD (ACN 055 931 096) (TRADING AS C & B GROUP)
Second Co-Respondent by Election
___________________________________ 187/2006 YU FENG PTY LTD
Appellant V
BRISBANE CITY COUNCIL
Respondent And
ROSS NIELSON PROPERTIES PTY LTD (ACN 010 754 873)
First Co-Respondent And
STATE OF QUEENSLAND
Second Co-Respondent
______________________________________
296/2006
C & B CONSULTANTS PTY LTD (ACN 055 931 096) (TRADING AS C & B GROUP)
Appellant V
BRISBANE CITY COUNCIL
Respondent And
ROSS NIELSON PROPERTIES (ACN 010 754 873)
First Co-Respondent And
STATE OF QUEENSLAND
Second Co-Respondent
FILE NO/S:	BD 4777/2005, BD 187/2006, BD 296/2006
DIVISION:	Planning and Environment
PROCEEDING:	Appeals
ORIGINATING  COURT:	Planning and Environment Court of Queensland
DELIVERED ON:	1 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	Inspection 18 September 2006; hearing 18, 19, 20, 21, 22, 26, 29 September 2006
JUDGE:	Alan Wilson SC, DCJ
ORDER:	1 Appeals 187/2006 and 296/2006 are dismissed;
2 Appeal 4777/2005 is adjourned to the 21 day of February 2007.
CATCHWORDS:	PLANNING – PLANNING LAW – preliminary approval for large retail/residential development on derelict suburban site – subsequent introduction of new Local Plan – weight to be given to that Plan – whether preliminary approval compromises Desired Environmental Outcomes under planning scheme – whether conflict with new Local Plan – conditions concerning nearby road and traffic works – whether developer obliged to pay for road works which provide a benefit for other nearby retail outlets
Integrated Planning Act 1997, s 3.5.5, s, 3.5.5A, s 3.5.14, s 3.5.14A, s 4.1.52
Cases considered: Green v Brisbane City Council [2002] QPELR 324 Grosser v Gold Coast City Council (2001) 117 LGERA 153 Kentbrock Pty Ltd v Gold Coast City Council [2003] QPELR 587 Luke v Maroochy Shire Council [2003] QPELR 447 Maher v Hervey Bay City Council [2006] QPEC 098 Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515 Silverton Ltd v Maroochy Shire Council [1982] QPLR 182 Skateway Pty Ltd v Brisbane City Council [1980] QPLR 245 Wincam Developments No. 3 Pty Ltd v Brisbane City Council [2004] QPELR 474 Woolworths Ltd v Maryborough City Council [2005] QCA 262
COUNSEL:	C Hughes SC, R Litster and M Williamson for Ross Nielson Properties Pty Ltd
S Keim SC for Yu Feng Pty Ltd and Buckley Vann Pty Ltd E Morzone for C & B Consultants Pty Ltd T Trotter for Brisbane City Council M Hinson SC and W Cochrane for State of Queensland
SOLICITORS:	Connor O’Meara for Ross Nielson Properties Pty Ltd Barry & Nilsson for Yu Feng Pty Ltd Deacons for C & B Consultants Pty Ltd Brisbane City Legal Practice for Brisbane City Council Crown Law for State of Queensland

1. These three appeals all concern Ross Nielson Properties’ (RNP) proposal for a large new retail and residential development at Everton Park. They were heard together pursuant to an Order of Robin QC, DCJ made on 3 March 2006. The principal opposition comes from Yu Feng, which operates very large shopping centre complexes in other suburbs[1] in the region. The third appellant, C & B, has an adjoining warehouse complex but the issues raised in its appeal were resolved and it was excused during the course of the hearing.

2. The State has a particular interest in road and traffic issues in the vicinity of the proposal and, at the end of the hearing, some questions about conditions concerning necessary works, and contribution to their cost, remained to be resolved. RNP’s own appeal descended to noise questions which can also be resolved by conditions if Yu Feng’s appeal fails – as, for reasons which follow, it does.

3. The site[2] is large (7.7 hectares) and well known. It is the former Woolworths distribution centre at Everton Park, lying generally in the south-east quadrant of the intersection of Stafford and South Pine Roads, with a major frontage to the former and access to the latter. The land is still occupied by some structures including the very large, empty Woolworths building. It presented on inspection as run down, and forlorn – the self-explanatory term ‘brown fields’ fairly describes it.

4. The intersection harbours, in both directions, a number of shops and small businesses including, in particular, a Coles supermarket on the north side of Stafford road. They are spread along these roads in what is usually called a ‘strip’ formation. To the south of the site there is, differently, a large retail warehouse development housing Harvey Norman, Spotlight, and Anaconda stores.

[5]     RNP’s proposal involves preliminary approval for an entire, large-scale development to be called ‘Everton Park Urban Village’ and associated permits for reconfigurations of lots and material changes of use. It incorporates a shopping centre (including a Woolworths supermarket) containing over 5,700m2, a retail showroom precinct of 6,800m2, a tavern and liquor barn, and almost 500 apartments in a number of buildings (which would also contain some small retail outlets). The proposal also includes a proposed new road, Everton Avenue, which will cut through the site between Stafford and South Pine Roads.

[1] Brookside Shopping Centre, and Stafford Plaza Shopping Centre

[2] It is comprised of Lots 1-4 on RP 108888, Lot 1-2 on RP 80720, Lot 3 on RP 80099, and Lot 13 on

1. RNP’s dealings with Council, and the local planning instruments touching the land, have followed an unusual path. After RNP lodged its application in October 2004 Council resolved to review its overall planning strategy for this part of Everton Park. A new Local Plan for the area was drafted and publicised in the first part of 2005. Council’s consideration of the RNP proposal was detailed and careful[3], and took over a year. It was finally approved in December 2005. The new Local Plan became law on 1 July 2006.

   [3] Council’s very careful scrutiny is confirmed, eg, by the extensive supporting material which accompanied

2. At the time RNP applied to Council the land was designated under Brisbane’s City Plan 2000 for Light Industry - a reflection of its historical use. When the Local Plan was promulgated the zonings changed in a highly significant way: the area in the north was re-categorised for Multi-Purpose Centre (MP3) uses, and the balance to the south and west for Medium Density Residential.

3. These events also coincided with the release of the draft SEQ Regional Plan (SEQRP), which was adopted in June 2005. The SEQRP includes, relevantly, requirements that Brisbane must aim to increase ‘infill’ development, which involves new residential facilities on urban land previously used for other purposes (as distinct from ‘greenfield’ sites) – exactly what is proposed here. Council had the opportunity, then, to consider both RNP’s proposal and the new Local Plan, and the State plan, almost simultaneously. Although there were, ultimately, differences between the first two, Council did not resile from its approval of the development and its position in these appeals was supportive of RNP.

4. A fundamental issue concerns the weight to be given to the new Local Plan in light of its promulgation after Council approved this development. Under the Integrated Planning Act 1997 (IPA), s 4.1.52, appeals of the present kind are by way of hearing anew but the Court ‘…must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate’[4] .

   [4] Section 4.1.52(2)(a)

5. Mr Buckley, the senior and experienced town planner who gave evidence on behalf of Yu Feng, expressed the view that the principal document against which the merits of the proposal ought to be assessed is the new Local Plan. During the hearing he abandoned any contention that conflict with City Plan (in its form before 1 July 2006) was a basis for refusal. While it is true that the provisions of the Local Plan were not in existence in any form at the date RNP lodged its original applications[5] it is inescapable that, from a time shortly thereafter, the Local Plan arose for discussion and those discussions (which actively involved RNP’s representatives) were continuing throughout the ensuing 12 months while Council was considering the proposal and, in effect, negotiating with RNP. In other words, the Local Plan was being discussed, and developed and polished, as a process which was almost concurrent with Council’s consideration of the various elements of RNP’s large scale, homogenous proposal.

   [5] See Maher v Hervey Bay City Council [2006] QPEC 098, and the discussion (and cases collected) at paras

6. To ignore the Local Plan and the zoning changes it makes would, in those circumstances, be illogical. While the weight to be given to a new planning instrument like the Local Plan might, in some cases, be tempered by the fact that it did not achieve its final form until six months after RNP’s proposal was granted approval, the issues raised in these appeals cannot be allowed to slip through the cracks created by this unusual conjunction of events. The clear aims of IPA and the planning schemes promulgated under it mean the court must do its best to determine an appeal by reference to a statutory yardstick which can be located by those with a relevant interest. Here, logic and the prevailing circumstances compel the conclusion that it is the Local Plan which should be the primary, determinative planning instrument.

7. This case also has, however, an additional twist – the granting of a preliminary approval which, of course, dramatically overrode the provisions of the planning scheme at the time it was granted, with its designation of the parcel for Light Industry. By its very nature, a preliminary approval which meets the description in IPA s 3.1.6 involves something which changes a planning scheme and there will almost invariably be differences, distinctions and even conflicts between the development sought by the preliminary approval, and the relevant scheme.

8. Yu Feng’s submissions unsurprisingly emphasise that an approval of that kind should not be allowed to make RNP’s path in this appeal easier, but it cannot be immaterial that special provisions apply to applications for approval of that kind (discussed later); nor that, until the Local Plan was released in its final form, it was impossible for RNP to design the proposed development in a way which precisely, or even generally, anticipated the lineaments of that new Plan.

9. These significant changes in planning direction reflected in both the preliminary approval of RPG’s proposal and the new Local Plan are entirely consistent with the provisions of the SEQ Regional Plan. They also mean that the provisions in force under Brisbane’s planning scheme in 2004 have been quite overtaken by events. Mr Buckley put the matter succinctly:

   In simple terms, the Local Plan retrospectively ‘braced’ the Council approval. Accordingly, there is a connection or synergy between the two. In short, the developer’s intention to provide new retail facilities and showrooms, supported by residential development was positively acknowledged by the planning authority[6].

   [6] Town Planning Report by Mr Buckley, Exhibit 14, page 7.

10. As an inspection of the site and the surrounding area (including nearby shopping centres) showed, the need for these planning scheme changes was compelling. The site is derelict, and ripe for redevelopment. The surrounding shopping centre presents as tired and the existing retail facilities do not include a ‘full line’[7] supermarket. There is more than sufficient local population to support a supermarket of that kind but the district is only served at present by the smaller Coles Supermarket, which has inadequate car parking.

    [7] i.e., one with the largest range of goods and products

11. The operators of the Coles Supermarket did not join in these proceedings. Ultimately, the substantive issues in dispute (save for the cost of changes to local traffic arrangements, about which RNP and the State of Queensland remained at arm’s length) were advanced by Yu Feng, and involved alleged conflict with City Plan or the new Local Plan; whether a need has been established for the proposed development, or, whether it would create unacceptable economic impacts; traffic; noise; and, to the extent there are any conflicts with elements of the planning schemes, whether there are sufficient planning grounds to warrant approval despite those conflicts.

12. As previously mentioned, IPA contains special provisions concerning applications for preliminary approvals. They are to be assessed under s 3.5.5A, which requires the assessment manager to consider (in particular) the consistency of the proposed variations with aspects of the planning scheme, other than those sought to be varied and, also, the SEQ Regional Plan: s 3.5.5A(2). The applications are to be decided under s 3.5.14A which relevantly provides that the assessment manager’s decision must not compromise the achievement of the Desired Environment Outcomes (DEOs) for the planning scheme area. It is notable that this part of the application does not require the assessment manager to consider conflict with the planning scheme.

13. That question does arise, however, in respect of RNP’s other applications for development permits for a material change of use for shops and multi-unit dwellings. Those applications are impact assessable under s 3.5.5, and to be decided under s 3.5.14, which materially provides:

    3.5.14

    …

(2)

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

(a)	Compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b)	conflict with the planning scheme unless there are sufficient planning grounds to justify the decision

…

(4)

Sub-sections 2(a) and (3) do not apply if compromising the achievement of desired environmental outcomes is necessary to further the outcomes of any of the following if they are not identified in the planning scheme as being appropriately reflected in the planning scheme –

(a)	State planning policies, or parts of the State planning policies.
(b)	For the planning scheme of local government in the SEQ region – the SEQ Regional Plan.

1. The provision is not, as Fryberg J[8] explained in Woolworths Ltd v Maryborough City Council [2005] QCA 262, to be applied in an excessively formulaic way[9] but does have the effect that, if conflict can be identified, a question may arise whether planning grounds exist which may yet justify approval, and their sufficiency for that purpose. The term ‘planning grounds’ is not defined but as McLauchlan QC, DCJ explained in Kentbrock Pty Ltd v Gold Coast City Council [2003] QPELR 587, at para [31], they are likely to include:

   ‘…all matters necessary or expedient for securing the improvement, orderly development, health forms, amenity, embellishment, convenience, conservation or commercial advancement of an area or a part of an area’.

   [8] With whom McMurdo P and Holmes J agreed

   [9] At paras [23]–[25]

2. In the course of these proceedings some aspects of the proposal were refined during further discussions between expert witnesses and, ultimately, it took the form shown in Exhibit 35A.

3. Materially, no party alleged that the uses for which the development permits were sought are in conflict with the preliminary approval itself (which, of course, would involve significant overriding of the planning scheme in effect at the time).

4. The issue of need arises in two contexts: first, it is relied upon by RNP as one of the planning grounds to warrant approval of the proposed development (despite the conflict with the planning scheme in its form at the time the applications were made); and, secondly, Yu Feng asserts that because some parts of the proposal involve retail development outside that part of the site which is now designated MP3 under the new Local Plan, the applicant must demonstrate an overwhelming community need: City Plan, Chapter 3[10] and, s 4.4.2.6.

   [10] Desired Environmental Outcomes, at p 52

5. As to the first, it is clear there is a general need (in the town planning sense) for redevelopment of this site and the economic need experts Mr Leyshon and Mr Brown generally agreed that there is at least a moderate and in some instances a significant need for a variety of the facilities to be provided (save the supermarket). The conclusion is uncontentious: the traditional approach to town planning need involves a focus upon the well being of the community and the provision of appropriate services and facilities, including greater competition and choice. It is the community’s perspective which is paramount[11].

   [11] Skateway Pty Ltd v Brisbane City Council [1980] QPLR 245, at 249-250; Roosterland Pty Ltd v Brisbane

6. The need which will be addressed by this development involves obvious public and community benefit at, firstly, the level of redevelopment of an unused derelict site in the middle of a long-settled urban area and, at a higher level, by the provision of additional facilities including dwelling units in an established suburb, and daily essentials. So much has plainly been recognised by the introduction of the Local Plan.

7. Yu Feng nevertheless asserts that the proposed supermarket will have unacceptable economic impacts on the Coles Supermarket on the northern side of Stafford Road, and a Supa IGA supermarket at Flockton Street, McDowell. Neither, however, made submissions in response to RNP’s development application or was called to give evidence to support these assertions. Nor, relevantly, was it alleged that supermarkets in Yu Feng’s own shopping centres at Brookside and Stafford City would be affected and, neither, did Woolworths itself (the proposed operator of the new supermarket on this site) suggest it was troubled by the proposal although it has large stores at both those centres.

8. The small Coles supermarket across Stafford Road apparently trades successfully and information relied upon by Mr Leyshon, which was persuasive, showed that it operates well above industry averages; and that circumstance suggests there is a strong likelihood it could withstand competition from a new supermarket. The IGA supermarket at Flockton Street, which was inspected, is in a shopping centre with an attractive range of other tenancies and, as Mr Leyshon also said and I accept, should continue to trade viably. It is also material that any resultant community detriment from the decline of other supermarkets (which is improbable) would be off-set by the provision of the proposed new full line Woolworths supermarket, conveniently located on a major road network.

9. As to the question of overwhelming community need (touching those parts of this proposal which are appropriate in MP3 areas but fall outside the MP3 section designated within the site under the Local Plan) the phrase has a particular meaning identified by Skoien SJDC in Wincam Developments No. 3 Pty Ltd v Brisbane City Council [2004] QPELR 474, at 477

   [24]           The witnesses and Council appear to share the difficulty I have in identifying a commercial development for which a community within the City of Brisbane would feel ‘an overwhelming’ need. ‘Overwhelming’ is generally defined by the dictionaries to mean something like ‘irresistible by force of numbers, influence, amount etc.’ That would seem to require something approaching a complete absence of an existing development of the type proposed, the development of being of a type vital to the conduct of life. An Office Works is not such a development and I do not know what might be. However, I note the excellent Encarta World English Dictionary gives, as a third meaning of ‘overwhelming’, ‘extremely large in amount or proportion’ and it seems to me to be obvious that the word as used in the City Plan must have been intended to mean something like that (emphasis added).

1. The proviso falls to be considered in a context where neither Mr Buckley nor any other witness could identify any real impacts, let alone unacceptable ones, arising as a consequence of inconsistencies with the planning scheme. Mr Humphreys, the Town Planner called in RNP’s case, Mr Robinson (a very senior and experienced architect) and Mr Leyshon were all persuaded that there is a significant town planning and community need for the proposed development.

2. This is an obsolete and derelict site, not unfairly described by Mr Robinson as a blight on Everton Park, which would be transformed by a development which achieves all the broad planning objectives newly adopted for the parcel by the Local Plan. The local authority has, in that new Local Plan, plainly accepted a pressing need for development of this type and moved to recognise that by extending the existing Everton Park MP3 Centre to include a significant part of the subject land, and encouraging Centre activities there.

3. In the unusual context applying here, the requirement to demonstrate overwhelming need must also be considered, again, in light of the fact that this application initially sought a preliminary approval to override the planning scheme and, in particular, to do so in the very way in which that planning scheme (in the new Local Plan) now seeks to provide guidance and direction about the location of Centre uses. As RNP also submitted, and I accept, Yu Feng does not (and cannot) allege that approval would give rise to the impacts which are sought to be avoided by the out of Centre provisions of City Plan, mentioned earlier. That is unsurprising when the new Local Plan expressly promotes Centre uses on the subject land.

4. RNP makes out its case for need in the classic, town planning sense. The further statutory requirement to show overwhelming need falls to be considered in a particular, and most unusual, set of circumstances. The evidence points strongly to the conclusion that the provision of the amenities offered by the elements of the proposal is a very good thing for the local community. The ‘Centre’ elements of the proposal outside the MP3 designation are not remote to it, and will form a logical part of this retail centre of Everton Park around the intersection. They are situated within a coherent and logically laid-out development. They have the benefit of a preliminary approval.

5. When, as here, the community whose need is be considered is large and the facility is proved to be highly desirable, this conjunction of factors means the requirement (as explained in Wincam Developments, and limited in its application and effect by the unusual history of the matter and the major changes in the statutory regime) is not difficult to meet. Any conflict with, or compromise of the provisions of City Plan concerning out of Centre development, is, then, of a relatively minor kind. I did not understand Yu Feng to advance any other areas of conflict with the earlier planning instrument, or assert any additional matters of compromise of the DEOs.

6. The claimed inconsistencies with the new Local Plan also focussed upon the incursion of Centre activities into parts of the site outside the MP3 designation in the Local Plan, and upon alleged failures, in the MP3 section closest to Stafford Road, to retain the strip shopping character of the area generally or provide mixed use development with Centre uses at ground level, and residences above. Attacks were also mounted against alleged non-compliance with certain aspects of the Local Planning code touching building heights, and gross floor area/site ratios.

7. Again, these assertions fall to be considered in a particular context: one in which it is not alleged that any impacts flow from the conflicts or inconsistencies (or unacceptably cut across the implementation of those provisions of the Local Plan which have not, previously, been already varied by the preliminary approval) or unacceptably cut across or compromise city wide DEOs (or fail to advance the objectives of the SEQ Regional Plan). It must also be accepted that the later Local Plan, while different in form from the preliminary approval, plainly contemplates similar Centre uses in broad terms and, in particular, a combination of retail and medium density residential uses and the proposed development meets those broad objectives.

8. Ultimately, Yu Feng’s criticisms took on the flavour of an argument that RNP’s proposal is not the best form of development in the context of that to which the Local Plan might be said to aspire; but that is not the test a developer must meet[12].

   [12] Silverton Ltd v Maroochy Shire Council [1982] QPLR 182, per Byth DCJ at 183; Green v Brisbane City

9. Although, the Local Plan contains different precincts with a different emphasis on types of use, it plainly promotes Centre activities in the expanded MP3 Centre as well as the introduction of medium density multi-level residential development. It contains design guidelines, referred to in the ‘intent’ for both precincts 1 and 2, which also form part of the Acceptable Solutions for each precinct identified in map B. This map shows a public road connecting Stafford and South Pine Roads; a gradation in building heights generally from Stafford Road in the North, up to the southern part of the area; an active frontage along the southern side of Stafford Road between South Pine Road and Cutbush Road; the provision of mid-block pedestrian connection, and pedestrian movement within the area; and, public park land. In broad terms, the preliminary approval meets these requirements. More specifically, there is no town planning imperative which would compel a rigid application of the map B design guidelines.

10. Precinct 1 is intended to accommodate a range of activities expected in a suburban centre with active street frontages and links across Stafford and South Pine Roads. The language of the statement of intent for this precinct indicates that it is desired to provide overall guidance, as opposed to mandating a particular development outcome. In precinct 2, residential, Centre, and recreation uses are all promoted and its statement of intent, when read with the definition for Centre activities, makes it plain the area is intended to provide a range of development opportunities to meet public needs.

11. While some Centre activities like supermarkets, restaurants and department stores are not supported in precinct 2, the possibility of residential uses in precinct 1 and Centre uses in precinct 2 suggests no more than a desired emphasis on retail and commercial activities in the first, and development at more medium density in the second. Certainly, nothing in the language of the Local Plan indicates strong planning imperatives for a clear demarcation between the precincts.

12. The particular areas of conflict identified in written submissions delivered by Mr Keim SC, for Yu Feng, assert a failure to provide commercial development of a traditional strip character focussed on Stafford Road; the improper use of parts of sub precinct 2(a) for Centre activities including car parking; a scattering of retail outlets which ‘fails to comply with the LP vision’; and, it may be gleaned, the objections mentioned early.

13. All these areas of alleged conflict, in the context of a preliminary approval some months before the introduction of the Local Plan, were not unfairly described by Mr Trotter, for the Council, as rich in technicalities but poor in substance. The assault upon the design of the frontage in Stafford Road is an example. It is clear the proposal will not remove any existing strip shopping or involve development which is inconsistent with the existing strip shopping character. The frontage to Stafford Road includes shops and car parks and, to South Pine Road, showrooms – outcomes consistent with the existing character of the area on those roads.

14. While it is true the proposal does not strictly comply with some Acceptable Solutions concerning site cover and building height, Yu Feng was, again, unable to identify any unacceptable impacts arising as a consequence. In any event, those Solutions are simply one way of achieving the relevant Performance Criteria. It was established, through the evidence of Mr Robinson and Mr Humphreys, and the landscape architect Mr Chenoweth, that the proposal does comply with the relevant criteria in that building heights are appropriate to this particular location. Mr Buckley was also prepared to fairly concede that the building size and bulk was consistent with the medium density scale.

15. The introduction of car parking and retail warehousing into precinct 2(a) is, similarly, not productive of any unacceptable impact. Previous conclusions concerning out of Centre development militate against the force of this submission (which, yet again, must be considered in the context of a preliminary approval overriding a planning scheme).

16. Another aspect of existing development also tells against Yu Feng’s argument that the Local Plan should be construed so as to permit residential development only in that part of precinct 2(a) immediately south of precinct 1. The existing retail tenancies to the south turn their rather dull and unattractive backs to the subject land but appear to be relatively modern and well established. Development which addresses that aesthetic problem, as this proposal does, is not inappropriate in a case where, as sometimes occurs, the planning scheme has been overtaken by events or is not soundly based on the prevailing conditions[13].

    [13] Grosser v Gold Coast City Council (2001) 117 LGERA 153, at 165

17. Ultimately Yu Feng’s submissions did not touch upon traffic issues (save in respect of car parking). Nevertheless, during the hearing itself, the various traffic consultants continued to meet and ultimately produced a joint report[14]. The five experienced experts were able to agree that compliance could be achieved with the State’s set back requirements; upon the design of the new road to be constructed through the site; and, that surrounding roads and intersections could be appropriately revised. They were also confident that an appropriate, overall number of parking spaces could be provided.

    [14] Exhibit 8, attachment DD

18. The State appeared via both senior and junior counsel. It agreed with RNP’s submission that DMR works conditions touching the various local intersections and the proposed internal road were a matter of detail which could be left to the parties. It also remained uncontentious that a contribution should be paid by RNP towards the costs of a signalised pedestrian crossing on Stafford Road, at the location shown in Ex 35, and the contribution should be somewhere between the limits identified at the second traffic engineer’s meeting by one of the experts, Mr Holland[15].

    [15] Exhibit 17, pg 71

19. RNP and the State (in the guise of the DMR) remain at odds, however, about contribution toward the cost of associated changes to the existing point of access for Everton Plaza Shopping Centre which lies on the opposite, northern side of Stafford Road. RNP contends that its contribution should reflect what was approved and shown in Ex 35 and, in particular, that it should not be required to fund works associated with that pedestrian crossing which have the additional effect of providing a new, controlled access to the existing (and, in the future, rival) neighbouring development.

20. IPA s 3.5.32(2) authorises the imposition of conditions requiring a monetary payment to protect or maintain the safety or efficiency of State controlled transport infrastructure. RNP’s submission rests upon the notion that, as the developer of an adjoining site, it has no moral (or legal) obligation to the users of Everton Plaza and it would be unjust to require it make a contribution which carries that benefit.

21. While Everton Plaza would conceivably benefit from signalised control of its access driveway, it is the subject development which generates the need for safe pedestrian movement across Stafford Road in the vicinity of the driveway to those premises, in a way which does not prejudice the safe and efficient functioning of Stafford Road. If vehicle movements in the vicinity of the pedestrian crossing need to be controlled to ensure pedestrian safety, and the proper operation of Stafford Road, it is not unreasonable to require the development which generates the pedestrian movement to pay for the cost of controlling those vehicle movements. Neither benefit nor moral obligation are part of the statutory tests.

22. The conclusions reached earlier establish that (in the context of the rather unusual history of this development and the associated planning instruments) any conflict with both the planning scheme in force at the time RNP’s applications were made, or the Local Plan introduced some time after those applications were approved, never rises above the level of minor. The earlier version of City Plan, before 1 July 2006, has been significantly overtaken by events including this approval, and by the subsequent introduction of the Local Plan which promotes Centre uses and medium density residential infill development – a change appropriately described in RNP’s submissions as a ‘paradigm shift’. Any conflict also falls to be considered in the context of the fact the applications here include one for preliminary approval under IPA s 3.1.6, which overrides the planning scheme and, necessarily and inevitably, involves significant departures from it.

23. The Local Plan, understood in context and properly construed, provides guidelines and does not contain, for present purposes, prescriptive development requirements. In any event, no unacceptable town planning consequences arise from the elements of the approved development which are different from those depicted in map B of the Local Plan or the Local Plan itself, which must be considered with a degree of flexibility.

24. Planning grounds identified in RNP’s submissions are of more than sufficient force to overwhelm the minor level of relatively technical conflict. The proposal satisfies a plain, strong town planning and community need for the redevelopment of an unattractive and derelict light industrial site. It is consistent with the objectives of the SEQ Regional Plan touching residential infill development targets. It will add modern and complementary retail facilities to the range of facilities and services presently available in Everton Park and, in particular, provide a full line supermarket which is readily accessible and conveniently located. The other new retail facilities will enhance choice, range and competition. The development itself is attractive and modern and will reinforce and consolidate existing Centre activities and improve the amenity and physical wellbeing of the residents of the locality and, it is at least probable, lift the tone of existing development.

25. The proposal, as helpfully illustrated in a large model, exhibits a high level of urban design and architectural merit which will enhance the amenity of the locality generally. This view was advanced by Mr Robinson, a well known and experienced architect, and no contrary view was suggested. In practical terms it provides active street frontages and, in particular, a new, pedestrian friendly area between the two main roads which will contain a range of café, dining and entertainment facilities, a liquor outlet and other retail stores. The proposal also incorporates medium density residential living in a form which will provide real residential choices at a major transport hub.

26. For these reasons, Yu Feng’s appeal 187/2006 should be dismissed, and appeal 296 of 2006 (C&B Consultants), which was resolved in the course of the hearing, may also be dismissed. RNP’s own appeal (4777 of 2005) concerned certain conditions imposed by Council touching noise, but was addressed in a report prepared by a noise expert Mr Rumble[16] which contained recommendations accepted by Council.

    [16] Exhibit 11, appendix B

27. While RNP has established that appeals 187 and 296 of 2006 should be dismissed (for which it carried the onus: IPA s 4.1.50(2)) it was plain in the course of the hearing that, as had been mentioned from time to time, further conditions relating to traffic and noise need to be resolved and the interested parties (RNP, the Council, and the State of Queensland) are content to adjourn to discuss and settle those conditions.

28. The dispute concerning the signalised crossing and vehicle movements into and out of Everton Plaza should be resolved by a condition requiring RNP to pay the cost of that crossing and signals controlling it and associated vehicle movements. The State also seeks orders requiring RNP to carry out works at the intersections of South Pine Road and Stafford Road and the new road between them, Everton Avenue, in accordance with Exs 35 and 35A, and to pay for the cost of providing two right turn lanes from Stafford Road to South Pine Road at the intersection of those roads and for those works to be completed prior to the commencement of the approved uses. I did not understand RNP to dispute these latter conditions.

RP87716. The address is 752 Stafford Road, Everton Park

the application (Ex 2) and Council’s information request of 10 December 2004 and the various responses
(Ex 2, vol 4, pp 318-357, and vol 5)

[33] – [37]

City Council [1986] QPLR 515, at 517; and, Luke v Maroochy Shire Council [2003] QPELR 447

Council [2002] QPELR 324 at 328