Stephen Family Pastoral Pty Ltd as Trustee for the Stephen's Family Pastoral Trust v Logan City Council & Loganview Road North Pty Ltd
[2025] QPEC 27
•18 November 2025
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Stephen Family Pastoral Pty Ltd as Trustee for the Stephen’s Family Pastoral Trust v Logan City Council & Loganview Road North Pty Ltd [2025] QPEC 27
PARTIES:
STEPHEN FAMILY PASTORAL PTY LTD AS TRUSTEE FOR THE STEPHEN’S FAMILY PASTORAL TRUST
ACN 087 776 369
(Appellant)
v
LOGAN CITY COUNCIL
(Respondent)
and
LOGANVIEW ROAD NORTH PTY LTD
ACN 616 370 597(Co-respondent)
FILE NO/S:
2401 of 2021
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
18 November 2025
DELIVERED AT:
Brisbane
HEARING DATE:
18, 19, 20, 25, 26, 27 and 29 August 2025
JUDGE:
Kefford DCJ
ORDER:
THE APPEAL IS RETURNED TO THE APPLICATIONS LIST FOR REVIEW ON 28 NOVEMBER 2025.
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 to establish a local centre – where the development application is for land in the Emerging community zone at Logan Reserve – where the proposed development is to include a full-line supermarket – whether the proposed development complies with the criteria for a new a local centre – whether there is an economic need for the proposed local centre – whether there is a community need for the proposed local centre – whether the proposed local centre is appropriately separated from existing, planned and approved centres – whether the absence of a commitment from a supermarket operator supports refusal – whether the land use is appropriate – whether the design of the proposed development is appropriate – whether the proposed development will result in adverse character and visual amenity 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 1997 (Qld) ss 7, 14A
Planning Act 2016 (Qld) ss 43, 45, 59, 60
Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46, 47
Planning Regulation 2017 (Qld) s 31
Statutory Instruments Act 1992 (Qld) s 7
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
Australian Capital Holdings Pty Ltd v Mackay City Council & Ors [2008] QCA 157, applied
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied
Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153; [2025] QPELR 633, applied
Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39; [2025] QPELR 610, applied
Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2023] QPEC 24; [2024] QPELR 860, approved
Edwards & Anor v Gold Coast City Council & Anor [2005] QPELR 226, approved
Gold Coast City Council v K & K (GC) Pty Ltd (as trustee for K & K Family Trust) [2020] QPELR 631; [2019] QCA 132, applied
I.B. 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
JPF Australia Pty Ltd v Livingstone Shire Council & Anor [2006] QPELR 359, approved
Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, approved
Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, approved
Middle Pond Pty Ltd v Whitsunday Regional Council & Ors [2024] QPEC 45, 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
Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899, followed
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
Sanad Capital Pty Ltd v Sunshine Coast Regional Council & Anor [2023] QPEC 8; [2024] QPELR 627, approved
SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied
Stockwell Development Group Pty Ltd v Bundaberg Regional Council & Anor [2024] QPEC 44, approved
SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied
Taylor v Owners - Strata Plan 11564 & Ors [2014] HCA 9; (2014) 253 CLR 531, 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
Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied
Wu & Kuo Childcare Pty Ltd & Anor v Brisbane City Council & Anor [2022] QPEC 27; [2023] QPELR 1004, approved
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 R Gore KC and W Macintosh for the Appellant
B D Job KC, J G Lyons KC and O Wilson for the Respondent
C L Hughes KC and B Rix for the Co-respondentSOLICITORS:
HWL Ebsworth Lawyers for the Appellant
Colin Biggers & Paisley for the Respondent
Mills Oakley Lawyers for the Co-respondent
TABLE OF CONTENTS
Overview
What are the key features of the subject land and the locality?
What does the proposed development involve?
What is the relevant framework for the decision?
What are the key issues that inform the exercise of the discretion?
What does the Logan Planning Scheme reveal about planning for land in Logan Reserve and the location of centres?
What is the policy intent for the Future urban area in version 5.1 of Logan Planning Scheme?
What is the policy intent for centres in version 5.1 of Logan Planning Scheme?
What does consideration of the Local government infrastructure plan in version 5.1 of Logan Planning Scheme reveal?
What does consideration of the zones and zone codes in version 5.1 of Logan Planning Scheme reveal?
How has the planning in Logan Planning Scheme evolved?
What is the change to the planning for future development in Logan Reserve?
What are the changes to the strategic planning for centres?
What is the change to the trunk park infrastructure planning in Logan Reserve?
Key issue 1: Does the proposed use comply with the strategy regarding establishment of new centres in the Emerging community zone?
What are the relevant principles about centres’ hierarchy planning strategies?
What is required under s 3.5.8.1 of Logan Planning Scheme?
Is there a community need and economic need for the proposed local centre?
What general principles inform and guide the assessment of need?
Is there an economic need for the proposed use?
Is there a community need for the proposed use?
Will the community need and economic need be met by the proposed local centre?
Conclusion about whether there is a community need and economic need for the proposed local centre?
Is the proposed local centre of a scale compatible with its role and function in the centre hierarchy?
Will the proposed local centre have unacceptable adverse effects on any existing or planned centre?
Can the proposed local centre be located in a designated centre or in the Specialised centre zone or does is have a specific locational need?
Is there a specific locational need demonstrated on the evidence?
Is it necessary to demonstrate the proposed local centre has a specific locational need requiring its location outside a centre?
Conclusion regarding the locational requirements
Is the proposed local centre appropriately separated from existing, planned and approved centres?
Are the proposed centre activities consistent with the intent for a local centre?
Is the proposed local centre integrated with future public transport and public open space?
Is the proposed local centre located adjoining an urban arterial road?
Will the proposed local centre be accessed from an urban collector road?
Does the proposed local centre provide for the orderly and efficient provision and integration of land use and infrastructure?
Conclusion regarding compliance with s 3.5.8.1
Key issue 2: What is the significance of the absence of commitment from a supermarket tenant?
Key issue 3: Is the proposed local centre an inappropriate use on the subject land?
Does the proposed local centre comply with the Emerging community zone code?
Does the proposed local centre comply with s 3.3.3.1 6. a. in version 9.1 of Logan Planning Scheme?
What is the significance of the non-compliances?
Does the non-compliance involve non-compliance with the centres’ hierarchy and the planning strategy for centres?
Is a rigid application of s 3.3.3.1 6. a. in version 9.1 of Logan Planning Scheme appropriate?
Conclusion regarding significance of non-compliances and appropriateness of the proposed use
Key issue 4: Is the proposed use out of character with the planned character of the area?
Does the proposed development comply with the specific outcomes for the Design, place making and amenity theme?
What does the evidence establish in terms of design and character and amenity impacts?
Conclusion regarding the specific outcomes for the Design, place making and amenity theme
Does an assessment against the lower order assessment benchmarks support refusal?
Does an assessment against the lower order provisions in version 9.1 of Logan Planning Scheme support refusal?
Conclusion about whether the design of the proposed local centre and its character and amenity impacts support refusal
Should the proposed development be approved in the exercise of the discretion?
Conclusion
Overview
It has long been established that a planning scheme is taken to be an embodiment of the public interest. Its very purpose is to best serve the needs of a community in a particular area. For that reason, ordinarily one would expect that the extent of compliance with a planning scheme would be afforded significant weight in determining whether a development application should be approved or refused. That said, planning schemes reflect a local government’s determination at a particular point in time. The same is true of amendments to planning schemes. The local government’s determination about how best to meet the needs of a community is based on available facts and assumptions about the future of an area.
Planning schemes are to be considered in a context where the needs of a community are not static and immutable: Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134 at 139. In some instances, parts of a local government area may experience an unforeseen rate or form of development that is not reflected in the expression of public interest constituted by the planning scheme: Gold Coast City Council v K & K (GC) Pty Ltd (as trustee for K & K Family Trust) [2020] QPELR 631; [2019] QCA 132 at 646 [68]. This is such a case.
Logan Reserve is a suburb within the Council’s local government area. It lies approximately 10 kilometres west of the Beenleigh central business district, 29 kilometres south of the Brisbane central business district and 39 kilometres north-west of the Southport central business district.
Historically, Logan Reserve has been characterised by a predominance of rural residential development. That land is included in the Emerging community zone under Logan Planning Scheme 2015 (“Logan Planning Scheme”). Such land is intended for use for an urban purpose in the future but, until detailed land use and infrastructure planning has been completed, it is to be protected from uses other than interim uses.
The Co-respondent, Loganview Road North Pty Ltd, made a development application with respect to land situated at 2-30 Noffke Court, 1-23 Noffke Court and 565-577 Logan Reserve Road, Logan Reserve (“the subject land”). The development application seeks to facilitate, amongst other things, the establishment of a new local centre at Logan Reserve on land in the Emerging community zone under Logan Planning Scheme.
When Loganview Road North Pty Ltd made its development application in August 2018, Logan Planning Scheme contained no detailed land use planning for Logan Reserve, and the area was still characterised by rural residential development. Much has changed in the intervening years.
The Council has adopted strategic land use and infrastructure planning for Logan Reserve. As part of its trunk infrastructure planning, the Council made provision for a trunk metropolitan sports park on land that immediately adjoins the subject land. It has also amended its centres’ hierarchy strategy to facilitate new centres in the Emerging community zone in certain circumstances.
In addition, the Council has granted many development approvals, thereby facilitating a substantial quantum of residential development in Logan Reserve. Some of the approved residential development is at a density greater than anticipated by the strategic land use planning for Logan Reserve.
Aerial images of the area show that the approved developments are progressing at a rapid pace. This trajectory is likely to continue, particularly given the establishment of a large, previously unplanned, secondary school and special school. Construction of the school has commenced on land that is a short and easy walk from the subject land.
Many of these recent changes are not anticipated by the forward planning in version 5.1 of Logan Planning Scheme, nor the subsequent amendments to Logan Planning Scheme in relation to the Logan Reserve land use area. Other than with respect to the road network, the detailed land use planning for Logan Reserve in Logan Planning Scheme has not kept pace with the presently emerging community in that area or its needs.
It is in that context that Loganview Road North Pty Ltd seeks approval to establish a new local centre on the subject land. Logan City Council (“the Council”) approved the development application and, in this appeal, continues to support an approval.
The Appellant, Stephen Family Pastoral Pty Ltd as trustee for the Stephen’s Family Pastoral Trust, resists that outcome. During the public notification period for the impact assessable development application, Stephen Family Pastoral Pty Ltd lodged a properly made submission opposing approval of the development application. Amongst other things, it submitted that the proposed use did not address the impact on Stephen Family Pastoral Pty Ltd’s proposal for a new district centre at Chambers Flat Road, Park Ridge.
In the appeal, Stephen Family Pastoral Pty Ltd maintains that the proposed local centre should be refused.
Loganview Road North Pty Ltd bears the onus of establishing that the appeal should be dismissed: s 45 of the Planning and Environment Court Act 2016 (Qld).
For the reasons that follow, I am satisfied that the development application should be approved subject to conditions. There is a need to change the conditions of the approval. As such, the Council’s decision should be set aside and replaced with a fresh decision to approve the development application subject to conditions.
What are the key features of the subject land and the locality?
The subject land is comprised of three lots, namely Lot 2 on RP 178689, Lot 16 on RP 178689 and Lot 17 on RP 178689. Lot 2 on RP 178689 is on the north-west corner of Logan Reserve Road and Noffke Court, Logan Reserve. Lot 16 on RP 178689 is on the north-east corner of Logan Reserve Road and Noffke Court and is adjoined, along Logan Reserve Road, by Lot 17 on RP 178689. Each lot contains a single detached dwelling house.
The total area of the subject land is approximately 6.127 hectares. That said, Lot 2 on RP 178689 is included in the development application for the sole purpose of accommodating a proposed intersection upgrade. Lots 16 and 17 on RP 178689 form the primary development area for the proposed use and have a combined area of approximately 4.126 hectares.
There is a church and local park immediately opposite the subject land.
As I have already mentioned, the character of the broader Logan Reserve area is rapidly changing. Historically it was characterised by a predominance of rural residential development comprising dwelling houses on large lots. In recent years, it has become increasingly urbanised, with a substantial quantum of residential development and a new, large scale, school under construction.
What does the proposed development involve?
Since the commencement of the appeal, an order made by His Honour Judge Everson on 8 October 2024 permitted Loganview Road North Pty Ltd to make a minor change to its development application.
The development application (as changed) seeks development permits for:
(a)a material change of use for child care centre, service station and shopping centre;
(b)reconfiguration of the subject land into eight lots and a drainage reserve of 2,077 square metres at the northwestern corner of the subject land;
(c)reconfiguration of a lot to create access easements; and
(d)operational works to facilitate:
(i)earthworks that change the ground level; and
(ii)clearing of vegetation.
Although the Notice of Appeal challenged the Council’s decision to grant each of the development permits, Stephen Family Pastoral Pty Ltd no longer challenges the grant of development permits for reconfiguration of a lot and operational works. The focus of the dispute is the proposed material change of use.
The proposed use comprises seven buildings accommodating:
(a)a childcare centre for 75 children;
(b)a supermarket flanked by two shop tenancies;
(c)several tenancies to be used for either shops or health care services;
(d)a food and drink outlet with a drive-through facility;
(e)a service station;
(f)an additional food and drink outlet; and
(g)an additional tenancy used for either a shop or a food and drink outlet.
The site plan depicts a web of interconnected internal roads and pedestrian paths that facilitate access between the buildings and the 413 carparking spaces and 39 bicycle parking spaces. The site plan creates an impression that the proposed use is to operate as an integrated local centre. The survey plan depicting the proposed reconfiguration of lots and proposed reciprocal easements for access, parking, drainage and services presents a different picture.
Comparison of the survey plan to the site plan reveals that each building is to be located on a separate lot, and one of the proposed lots only contains carparking and internal roads. The extent of easements depicted on the survey plan is limited to those that are necessary to avoid some of the proposed lots from being landlocked or otherwise unable to access the adjoining road. No easements are proposed to facilitate vehicle circulation or parking. These matters create doubt about the intention to operate the proposed use as an integrated local centre.
The Council’s conditions for the proposed use required steps to be taken towards creation of access and service easements over the full extent of all internal roads and aisles and, for some lots, reciprocal access and parking easements. Loganview Road North Pty Ltd did not appeal those conditions. As such, it is reasonable to infer that they inform the intended use of the subject land. They support a conclusion that the proposed use can be properly characterised as a local centre.
On the evidence presently before me, the maintenance of the interconnected internal roads and pedestrian paths and the shared use of the carparking and bicycle parking spaces appear to be integral to the proposed use. In those circumstances, I have serious reservations about:
(a)the appropriateness of the development permit for the reconfiguration of a lot, particularly to the extent that it creates a separate lot that is only used for the necessary carparking for the local centre; and
(b)the adequacy of the Council’s conditions.
It is unnecessary to dwell on this issue at this stage for three reasons. First, Loganview Road North Pty Ltd has advanced its case for approval on the basis that the proposed use involves a single, integrated local centre and that, given the effluxion of time, the previously proposed staging of the supermarket is no longer necessary. Second, each of the parties, and their respective experts, approached the assessment on the basis that the proposed use involves a single, integrated local centre. Third, the characterisation of the proposed use as a single, integrated local centre is open on the evidence before me. In those circumstances, I will assess the proposed use on the basis that it involves a single, integrated local centre and that staging is unnecessary.
My reservations with respect to the appropriateness of the proposed reconfiguration of a lot and the adequacy of the Council’s conditions are not material to whether the proposed use should be approved or refused. They can be addressed at a later stage, including through revision of the conditions.
What is the relevant framework for the decision?
Under s 43 of the Planning and Environment Court Act 2016, subject to s 46, the appeal proceeds by way of hearing anew. The Court has a broad discretion in determining the appeal. It is to be exercised judicially and subject to the limitations in the relevant statutes. The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect.
The Court must assess the development application under s 45(5) of the Planning Act 2016 as if it were the assessment manager: Planning and Environment Court Act 2016 s 46(2). The Court’s decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 59(3) and 60 of the Planning Act 2016.
Sections 45(5)(a)(i) and (7) of the Planning Act 2016 mandate assessment against the assessment benchmarks in a categorising instrument that was in effect when the development application was properly made. Version 5.1 of the Logan Planning Scheme is such a categorising instrument: s 43 of the Planning Act 2016. The correct approach to the construction of planning schemes was recently confirmed in Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153; [2025] QPELR 633 at 653—5 [82]–[93].
Weight can be given to amendments to Logan Planning Scheme: s 46(2) of the Planning and Environment Court Act 2016 and s 45(8) of the Planning Act 2016. It is common ground between the parties that there are relevant amendments that should be given weight. All the parties contend that the amendments are material to the exercise of the discretion in this case. Not all the relevant amendments were made at the same time, but they are all reflected in version 9.1 of the Logan Planning Scheme.
Pursuant to s 45(5) of the Planning Act 2016 and ss 31(1)(f) and (g) and (2) of the Planning Regulation 2017 (Qld), the assessment must also be carried out having regard to, amongst other things and to the extent that they are relevant:
(a)the development approval for, and the lawful use of, the premises or adjacent premises; and
(b)the common material for the development application, including any properly made submissions.
The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of 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; and 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.
Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at 803-13 [35]-[86]. The 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 [2019] QPEC 46; [2020] QPELR 328 at 333—7 [12]–[22].
As is explained in those authorities, when making an impact assessment, the ultimate decision called for is a broad, evaluative judgment that admits of flexibility to approve an application in the face of non-compliance with a planning scheme.
With that framework in mind, I now turn to identify the key issues that inform the exercise of the discretion.
What are the key issues that inform the exercise of the discretion?
It can readily be accepted that the exercise of the discretion under s 60(3) of the Planning Act 2016 is to be based on, amongst other things, the assessment carried out under s 45 of the Planning Act 2016.
As I observed in Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2023] QPEC 24; [2024] QPELR 860 at 889 [76]:
“The extent to which the Court must assess the development application against applicable assessment benchmarks, assess against and have regard to other matters referred to in s 45 of the Planning Act 2016, and consider amended or new statutory instruments is informed by the issues put in dispute by the parties. The issues put in dispute inform the extent to which expert reports tendered in the appeal are relevant and admissible. The Court’s ability to have regard to matters put in issue in s 45 of the Planning Act 2016 is constrained by the admissible evidence placed before it. A Planning Act appeal under the Planning and Environment Court Act 2016 is adversarial litigation: it is not an inquiry. It must be borne in mind that the Court hears the matter afresh in a litigious context. The scope of the exercise to be undertaken is defined by the issues raised by the parties and the determination is to be made by reference to relevant and admissible evidence placed before the Court. This is a material limitation that should not be overlooked.”
(emphasis added)
Prior to the commencement of the hearing, the issues in dispute were identified by an order of His Honour Judge Everson made on 23 October 2023, which referred to a document titled “Consolidated List of Issues”. That document poses a series of questions. The questions are grouped into three broad topics, namely land use and infrastructure planning, design character and non-traffic amenity impacts, and relevant matters. For the first two topics, the document contains a list of assessment benchmarks.
At the conclusion of the hearing, Stephen Family Pastoral Pty Ltd tendered an updated version of that document. For several reasons, neither document assists in determining the key issues that inform the exercise of the discretion.
One of the key shortcomings of the Consolidated List of Issues is that it does not reveal the position of any party with respect to the questions posed. As such, it does not assist to identify issues in dispute, let alone their alleged relevance to the exercise of the discretion.
Another key shortcoming is that the document does not identify the relevance of the listed assessment benchmarks. It is not clear whether, for example, the listed assessment benchmarks:
(a)found allegations of non-compliance; or
(b)are relied on:
(i)for context to construe other assessment benchmarks; or
(ii)to support arguments about the importance of non-compliance with other assessment benchmarks.
In more recent times, the Court has sought to address the potential difficulty posed by list of issues of framed in this manner in Planning and Environment Court Practice Direction Number 7 of 2023 (“the Practice Direction”).
Paragraph 25 of the Practice Direction requires:
“In proceedings where non-compliance is alleged with adopted or draft planning instruments, written submissions prepared by, or on behalf of, a party must:
(a)identify the provisions, or part thereof, of the adopted or draft planning instrument in issue in the appeal;
(b)identify those provisions, or parts thereof, of the adopted or draft planning instruments for which non-compliance or compliance (as circumstance requires) is conceded, and, explain the weight to be attributed to the provision;
(c)make submissions, where required, about the proper interpretation of each provision in issue, particularly where they contain compound propositions;
(d)explain why non-compliance or compliance (as the circumstance requires) arises with each provision in issue;
(e)identify the evidence relied upon to establish compliance or non-compliance with each provision in issue; and
(f)provide an analysis of the evidence, and where relevant, explain why evidence relied upon should be preferred to other contrary evidence.”
Paragraphs 28 and 29 require a party contending for refusal to prepare a Schedule of assessment benchmarks (and, if applicable, a Schedule of adopted planning documents to which s 45(8) of the Planning Act 2016 applies) that, amongst other things, identifies those assessment benchmarks (and provisions of the adopted planning documents) with which it is alleged there is non-compliance. With respect to each identified provision, the party contending for refusal must also identify:
(a)whether the non-compliance with a particular provision is, by itself, alleged to be determinative;
(b)the paragraphs of the submissions that address:
(i)the evidence relied upon to establish non-compliance;
(ii)the nature of the non-compliance; and
(iii)why non-compliance with that single provision is said to be determinative of the appeal.
Unfortunately, Stephen Family Pastoral Pty Ltd’s Schedule of assessment benchmarks (and Schedule of planning documents to which s 45(8) of the Planning Act 2016 applies) do not provide the assistance anticipated under the Practice Direction. They did not assist me to identify the key issues in dispute. To the contrary, they created an impression that the dispute was more extensive than that identified and explained by the written submissions.
For example, according to item 2 of the Schedule of assessment benchmarks, Stephen Family Pastoral Pty Ltd alleges non-compliance with s 3.5.1(1) of version 5.1 of Logan Planning Scheme and says the non-compliance, by itself, is determinative of the appeal. For submission about those allegations, the Schedule directs my attention to paragraphs 193 to 220 of Part B Submissions of Stephen Family Pastoral Pty Ltd. Those paragraphs address an allegation of non-compliance with s 3.3.3.1 6.a. of version 9.1 of Logan Planning Scheme and the evidence relevant to that allegation.
Further, consideration of the entirety of Part B Submissions of Stephen Family Pastoral Pty Ltd reveals limited submissions about s 3.5.1(1) of Logan Planning Scheme. Stephen Family Pastoral Pty Ltd does not address the matters required by paragraph 25 of the Practice Direction. Rather, Stephen Family Pastoral Pty Ltd only submits:
(a)s 3.5.1(1) provides an overview of the role that each type of centre is to perform: paragraph 31;
(b)the hierarchy of centres established by the Strategic framework is reinforced by the provisions of the Centre zone code, which requires protection of the centre hierarchy, being the centres described in ss 3.2.4 and 3.5.1 to 3.5.7 of the Strategic framework and having the same cascading subordinate function as provided by the Strategic framework: paragraph 47;
(c)what Logan Planning Scheme intends for a local centre is gleaned from s 3.5.1(1) of the Strategic framework, which sets its place in the hierarchy: paragraph 175(a);
(d)for the reasons set out in paragraphs 182 to 209 of the submissions, the proposed use does not comply with the requirements of ss 3.5.1(1) or 3.5.5.1(1) of the Strategic framework as it is in fundamental conflict with the centres hierarchy and the centres planning strategy embodied in Logan Planning Scheme; and
(e)the proposed use does not comply with s 3.5.1(1) because what is proposed to be delivered in Logan Reserve by the proposed use is a local centre, rather than a neighbourhood centre, contrary to the requirements of s 3.3.3.1 6.a.ii. of version 9.1 of Logan Planning Scheme: paragraph 220.
Stephen Family Pastoral Pty Ltd does not advance any meaningful case of non-compliance with s 3.5.1(1) of the Strategic framework in version 5.1 of Logan Planning Scheme. It certainly does not advance a persuasive case of non-compliance that is, by itself, determinative of the outcome of the appeal.
This is just one example of the lack of consistency between the Schedules prepared by Stephen Family Pastoral Pty Ltd and its written submission. As the Schedules do not accurately reflect the case for refusal advanced by Stephen Family Pastoral Pty Ltd in its written and oral submissions, they are of limited assistance in identifying the real issues in dispute.
Having regard to the overall conduct of the case, including the substance of the submissions made by the parties and the evidence adduced by them, it is apparent that:
(a)the outcome of an assessment against the assessment benchmarks in version 5.1 of Logan Planning Scheme is not likely to materially inform the exercise of the discretion;
(b)many of the matters that lend weight to the case for approval are undisputed between the parties or, at the very least, are the subject of concessions by the experts retained by Stephen Family Pastoral Pty Ltd; and
(c)the case for refusal is founded on four key propositions, namely:
(i)the proposed use does not comply with the development parameters that guide the establishment of new local centres in the Emerging community zone in s 3.5.8.1 of version 9.1 of Logan Planning Scheme;
(ii)Loganview Road North Pty Ltd has not demonstrated any commitment from a supermarket tenant;
(iii)the proposed use is an inappropriate use of the subject land as it does not comply with assessment benchmarks in the Emerging community zone code, and it does not comply with the recent planning for Logan Reserve in s 3.3.3.1 6. of version 9.1 of Logan Planning Scheme; and
(iv)the proposed local centre is out of character with the planned residential character of the area and will have unacceptable visual amenity impacts.
Although there are aspects of the parties’ submissions and the evidence that I do not address in these reasons, I have carefully considered all submissions and evidence before reaching my conclusions. These reasons identify those aspects of the evidence that I consider to be material to make and explain the factual findings that underpin my conclusions.
Before addressing the issues in dispute, it assists to first consider the relevant planning context provided by version 5.1 of Logan Planning Scheme and relevant amendments to it. Such considerations inform the weight to be afforded to version 9.1 of Logan Planning Scheme.
What does the Logan Planning Scheme reveal about planning for land in Logan Reserve and the location of centres?
The subject land is in Logan Reserve, which is within the Council’s local government area and subject to Logan Planning Scheme. Logan Planning Scheme was first adopted on 12 May 2015 and took effect on 18 May 2015. It sets out the Council’s intention for future development in the Council’s local government area for a period of 20 years, i.e., until 2025: s 1.1(3) of Logan Planning Scheme.
Under version 5.1 of Logan Planning Scheme, the land in Logan Reserve, including the subject land, is:
(a)identified as part of the Urban footprint and the Future urban area on Strategic framework map SFM-01.00 – Settlement pattern; and
(b)to be served by a proposed long distance public transport corridor along Chambers Flat Road and a proposed secondary public transport corridor along a realigned School Road on Strategic framework map SFM-03.00 – Public transport.
The Strategic framework sets the policy direction for Logan Planning Scheme and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of the Planning Scheme: s 3.1(1) of Logan Planning Scheme. The Strategic framework comprises:
(a)the strategic intent;
(b)11 themes that collectively represent the policy intent of Logan Planning Scheme (including themes about settlement pattern, residential, centres, community, design, place making and amenity, transport, and infrastructure);
(c)the strategic outcomes proposed for development in the planning scheme area for each theme;
(d)the elements that refine and further describe the strategic outcomes; and
(e)the specific outcomes sought for each or several elements: s 3.1(3) of Logan Planning Scheme.
Although each theme has its own section, the entire Strategic framework is the policy direction for Logan Planning Scheme: s 3.1(4) of Logan Planning Scheme.
What is the policy intent for the Future urban area in version 5.1 of Logan Planning Scheme?
Strategic framework map SFM-01.00 – Settlement pattern identifies the broad settlement pattern across Logan City. The associated planning goals are addressed in the Settlement pattern theme in s 3.3.1 of Logan Planning Scheme. The strategic outcomes are:
“(1)The Urban footprint, as identified on SFM–01.00–Strategic framework map:
(a)provides high quality places for people to live, work, learn and play;
(b)accommodates predominantly urban development;
Editor’s note––Urban development includes housing, industry, business, infrastructure, community facilities and urban open space.
(c)includes land that may not be suitable for urban development.
Editor’s note––The urban footprint contains important environmental areas, constrained land and other areas that because of their character may not be suitable for urban development.
(2)The Future urban area, identified on SFM–01.00–Strategic framework map, accommodates greenfield development that is to be comprehensively planned to provide well integrated and serviced new communities.
(3)The Priority development areas, identified on SFM–01.00–Strategic framework map is developed in accordance with the gazetted development schemes for the area.
(4)The Regional landscape and rural production area identified on SFM–01.00–Strategic framework map, is an expansive non-urban area with a non-urban character.
(5)The Rural living area identified on SFM–01.00–Strategic framework map comprises integrated rural residential communities.
Editor’s note––The Urban footprint is the urban area for the purpose of section 1.5(1)(a) of the South East Queensland Regional Plan 2009-2031 State planning regulatory provisions.”
(emphasis added)
Premises in the Urban footprint that is identified in a non-urban type of zone is to retain a non-urban character. The Emerging community zone is not so identified. It is coextensive with the Future urban area, which forms part of Urban footprint.
The specific outcomes for the “Future urban area” element in the “Settlement Pattern” theme refine and further describe the strategic outcome in s 3.3.1(2). They identify areas for which there is a detailed, forward-planning land use strategy. They state:
“3.3.3.1 Specific outcomes
(1)Park Ridge in the area identified on Figure 3.2–Park Ridge plan area is developed in accordance with:
(a)the integrated and orderly pattern of land use and infrastructure networks identified on Figure 3.3–Park Ridge land use area to provide:
(i) a residential community of over 30,000 people;
(ii) over 13,000 jobs;
(iii) a district centre, a local centre and up to eight neighbourhood centres;
(iv) a range of infrastructure;
(v) environmental areas and corridors;
(vi) an integrated movement network;
(b)the sequence of development:
(i) identified on Figure 3.4–Park Ridge development sequencing area; or
(ii) identified on a plan for the area approved by the local government that:
(A)provides for the orderly and efficient provision and integration of land use and infrastructure;
(B)ensures the integrated provision of all infrastructure networks.
(2)Park Ridge outside the area identified on Figure 3.2–Park Ridge plan area is not developed until detailed land use and infrastructure planning has been completed for the area and approved by the local government.
(3)Bahrs Scrub is developed in accordance with:
(a)the integrated and orderly pattern of land use and infrastructure networks identified on Figure 3.5–Bahrs Scrub Local Development Area Plan to provide:
(i) a residential community of over 10,000 people;
(ii) a local centre;
(iii) a range of infrastructure;
(iv) environmental areas and corridors;
(v) an integrated movement network.
(b)a sequence of development approved by the local government that:
(i) provides for the orderly and efficient provision and integration of land use and infrastructure;
(ii) ensures the integrated provision of all infrastructure networks.
(4)The Flinders development area identified on Figure 3.6–Flinders is not developed until detailed land use and infrastructure planning has been completed for the area and approved by the local government.
(5)The area north of Jimboomba identified on Figure 3.7–Jimboomba North is not developed until detailed land use and infrastructure planning has been completed for the area and approved by the local government.”
Figure 3.3 – Park Ridge land use area is a map with a cadastral base. It shows the existing road network and, through differently coloured dots, maps the location of one district centre, one local centre, one neighbourhood centre and seven neighbourhood centres (indicative location only).
When Figure 3.3 – Park Ridge land use area is compared to the Zoning and precincts map, it is apparent that:
(a)the district centre is in the Centre zone;
(b)the local centre is in the Centre zone (Local centre precinct);
(c)the neighbourhood centre is in the Centre zone (Neighbourhood centre precinct); and
(d)of the seven neighbourhood centres that are depicted as “indicative location only”:
(i)three are in the Low density residential zone;
(ii)three are in the Emerging community zone; and
(iii)one is in the Mixed use zone.
Figure 3.5 – Bahrs Scrub Local Development Area Plan is a map with a cadastral base. It maps parts of the existing road network that are to be upgraded and shows:
(a)“Bahrs Scrub local centre” immediately adjacent the “Upgraded urban arterial road”; and
(b)“Bahrs Scrub neighbourhood centre” adjoining the “Upgraded urban collector road”.
When Figure 3.5 – Bahrs Scrub Local Development Area Plan is compared to the Zoning and precincts map, it is apparent that both mapped centres are in the Emerging community zone.
The centres shown on Figure 3.5 – Bahrs Scrub Local Development Area Plan do not completely accord with those described in s 3.3.3.1(3)(a).
The fact that the number and types of centres shown in the figures do not mirror those described in s 3.3.3.1 indicates an intention to adopt a degree of flexibility in achieving the underlying planning goal of well-integrated and serviced new communities: see s 3.3.1(2) of Logan Planning Scheme.
In version 5.1 of Logan Planning Scheme, the specific outcomes for the “Future urban area” element in the “Settlement Pattern” theme do not contain any detailed land use and infrastructure planning for Logan Reserve.
What is the policy intent for centres in version 5.1 of Logan Planning Scheme?
The planning strategy relating to centres is articulated in the Strategic framework.
The strategic intent is to have a hierarchy and network of interrelated centres. Centres are intended to be vibrant, accessible, and integrated places: s 3.2.4(1) of Logan Planning Scheme.
The details of the centre strategy are set out in the Centres theme in s 3.5 of Logan Planning Scheme.
The strategic outcome in s 3.5.1(1) sets out the planned hierarchy and network of centres. It states:
“Logan has a hierarchy and network of interrelated centres comprising:
(a)principal centres, being Beenleigh and Springwood that are the dominant centres in Logan;
(b)major centres, being Browns Plains, Jimboomba, Logan Central, and Shailer Park that complement and are subordinate to the principal centres;
(c)district centres, being Marsden, Meadowbrook, Park Ridge, and Underwood that complement and are subordinate to the principal centres and major centres;
(d)local centres that complement and are subordinate to the principal centres, major centres and district centres;
(e)neighbourhood centres that complement and are subordinate to the principal centres, major centres, district centres and local centres;
(f)specialised centres that complement principal centres, major centres and district centres.”
The strategic outcome in s 3.5.1(2) provides that:
“Centres are vibrant, accessible and integrated places that:
(a)are characterised by a high quality, well designed built environment;
(b)have a built form consistent with the intended character of the centre;
(c)utilise land efficiently;
(d)are well serviced by public transport;
(e)have a safe, convenient and comfortable pedestrian network;
(f)support walking and cycling;
(g)include a mix of uses;
(h)support the growth of tourism experiences.”
These strategic outcomes are refined and further described by specific outcomes that relate to each of the elements for the Centres theme. There is an element, and associated specific outcomes, for each of the six centre types that comprise the hierarchy and network of centres. They are contained in ss 3.5.2 to 3.5.7. Each adopts a similar structure when describing the intended role, location, function and scale of the centre.
Sub-paragraph (1)(a) in each of those provisions defines the role of the centre as compared to other centres in the hierarchy. For example, s 3.5.2.1(1)(a) states that principal centres at Beenleigh and Springwood are vibrant, accessible and integrated centres that are the dominant centres in Logan. In a similar vein, s 3.5.3.1(1)(a) states that major centres at Browns Plains, Jimboomba, Logan Central and Shailer Park are vibrant, accessible and integrated centres that are subordinate to principal centres. Relevantly:
(a)local centres are subordinate to the principal centres, major centres, and district centres: s 3.5.5.1(1)(a); and
(b)neighbourhood centres are subordinate to the principal centres, major centres, district centres, and local centres: s 3.5.6.1(1)(a).
Each of the principal centres, major centres, district centres, local centres, and neighbourhood centres that, together with specialised centres, comprise the hierarchy and network of interrelated centres are to be located on land in the Centre zone: ss 3.5.2.1(1)(b), 3.5.3.1(1)(b), 3.5.4.1(1)(b), 3.5.5.1(1)(b), and 3.5.6.1(1)(b) of Logan Planning Scheme.
Sub-paragraph (1)(c) in the respective provisions identifies the uses to be accommodated in the centre. The principal centres, major centres, district centres, local centres, and neighbourhood centres are to accommodate principal centre activities, major centre activities, district centre activities, local centre activities and neighbourhood centre activities respectively. Schedule 1.1.1 of Logan Planning Scheme provides relevant definitions of these activity groups.
In terms of function:
(a)local centres are intended to serve weekly convenience needs and may include a single full-line supermarket that is supported by a range of small-scale specialty shops and services: ss 3.5.5.1(1)(d) and (e) of Logan Planning Scheme; whereas
(b)neighbourhood centres are intended to support residential growth and include a limited line supermarket and small-scale shops and services that serve daily and weekly convenience needs: ss 3.5.6.1(1)(d) and (e) of Logan Planning Scheme.
Both local centres and neighbourhood centres are intended to:
(a)have an urban built form and character that integrates with and complements its surroundings;
(b)be integrated with public open space;
(c)protect the amenity of surrounding residential uses;
(d)be located and designed to maximise the walkable catchment; and
(e)have access to an urban arterial or urban collector road: ss 3.5.5.1(1)(f) – (j) and 3.5.6.1(1)(f) – (j) of Logan Planning Scheme.
Local centres are to be integrated with public transport and neighbourhood centres are to be integrated with the movement network: ss 3.5.5.1(1)(g) and 3.5.6.1(g) of Logan Planning Scheme.
Section 3.5.8 deals with “Element—New and expanded centres”. The related specific outcomes in version 5.1 of s 3.5.8.1 of Logan Planning Scheme state:
“(1)Centre activities, other than an Accommodation activity:
(a)must be:
(i) located in a centre;
(ii) consistent with the intent of the centre;
(iii) at a scale compatible with the role and function of the centre in the centre hierarchy being:
(A)a principal centre, which is a dominant centre in Logan and services a main trade area over 100,000 people;
(B)a major centre, which is subordinate to a principal centre and services a main trade area of approximately 40,000 to 50,000 people;
(C)a district centre, which is subordinate to a principal centre and major centre and services a main trade area of approximately 15,000 to 20,000 people;
(D)a local centre, which is subordinate to a principal centre, major centre and district centre and services a main trade area of approximately 8,000 to 10,000 people;
(E)a neighbourhood centre, which is subordinate to a principal centre, major centre, district centre and local centre and services a main trade area of approximately 3,000 to 4,000 people;
(b)unless:
(i) there is community need and economic need for the use;
(ii) the use is of a scale compatible with its role and function in the centre hierarchy;
(iii) the use does not have unacceptable adverse effects on any existing or planned centre;
(iv) the use:
(A)cannot be located in a principal centre, major centre, district centre, local centre, or neighbourhood centre;
(B)is located in the specialised centre zone, or in an employment area where it cannot be located in a specialised centre; or
(C)has a specific locational need requiring its location outside a centre and the use is located in accordance with the specific locational need.
(2)No new principal centre or major centre other than shown on SFM-01.00-Strategic Framework Map are created.”
Centre activities are defined in Logan Planning Scheme by reference to the defined activity groups of District centre activities, Local centre activities, Major centre activities, Neighbourhood centre activities and Principal centre activities.
The centre strategy and the application of s 3.5.8.1 in version 4.0 of Logan Planning Scheme were considered by His Honour Judge Williamson QC in Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899 at 909—18 [47] – [97]. His Honour’s construction of Logan Planning Scheme was upheld by the Court of Appeal in Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321.
In determining the proper construction of s 3.5.8.1, His Honour Judge Williamson QC and the Court of Appeal found other provisions of Logan Planning Scheme provided relevant context. None of those provisions were amended between versions 4.0 and 5.1 of Logan Planning Scheme.
As such, the proper construction of s 3.5.8.1 of Logan Planning Scheme (version 5.1) is that identified by His Honour Judge Williamson QC and the Court of Appeal. Relevantly:
(a)the word “centre” in s 3.5.8.1 of Logan Planning Scheme is properly construed as a reference to a centre in the centre hierarchy identified in s 3.5.1(1) or any centre that is approved pursuant to s 3.5.8.1(b), and which is subject to the limitation in s 3.5.8.1(2);
(b)s 3.5.8.1(a) articulates the planning strategy for a proposed expansion of a centre identified in ss 3.5.1(1) and 3.5.2 to 3.5.7, which requires that the proposed expansion of a centre complies with the requirements of s 3.5.8.1(1)(a)(ii) and (iii); and
(c)s 3.5.8.1(1)(b) articulates the planning strategy for the establishment of a new centre: Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899, 916—8 [90] – [97]; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, 1335 [57] and [58].
What does consideration of the Local government infrastructure plan in version 5.1 of Logan Planning Scheme reveal?
The purpose of the local government infrastructure plan, amongst other things, is to:
(a)integrate infrastructure planning with the land use planning identified in the planning scheme;
(b)provide transparency regarding a local government’s intentions for the provision of trunk infrastructure; and
(c)ensure that trunk infrastructure is planned and provided in an efficient and orderly manner.
Land within the priority infrastructure area is prioritised to accommodate urban growth up to 2026 and for the provision of trunk infrastructure to service the existing and assumed future development up to 2026: ss 4.1(3)(b) and 4.3 of Logan Planning Scheme.
Outside of the priority infrastructure area, infrastructure is provided only where it is supplied or funded by someone other than the Council, such as when it is part of development: s 3.13.2.1(1)(d) of Logan Planning Scheme.
Logan Reserve, including the subject land, is identified as outside of the priority infrastructure area on Local Government Infrastructure Plan Map – LGIP – 09.00 – Priority Infrastructure Area and Planning Scheme Zone Map.
Local Government Infrastructure Plan Map 07.00 – Plan for trunk parks infrastructure and Table SC 3.2.5 in version 5.1 of Logan Planning Scheme indicate that between 2024 and 2027, the Council intended to acquire land at Halycon Way to provide Logan Reserve East Metro Park.
What does consideration of the zones and zone codes in version 5.1 of Logan Planning Scheme reveal?
In Logan Planning Scheme, zones organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses. Most of the Logan Reserve area, including the subject land, is within the Emerging community zone on Zone Map ZM-01.00.
The purpose of the Emerging community zone is to:
(a)identify land that is intended for an urban purpose in the future;
(b)protect land that is identified for an urban purpose in the future from incompatible uses; and
(c)provide for timely conversion of non-urban land to land for urban purposes: s 6.2.3.2(1) of Logan Planning Scheme.
That purpose is to be achieved through:
(a)the overall outcomes; or
(b)the performance outcomes that are said to achieve the overall outcomes and the purpose of the code: ss 5.3.3(4)(c) and 6.1(7) of Logan Planning Scheme.
The overall outcomes in s 6.2.3.2(3) of Emerging community zone code relevantly state:
“(a)land uses comprise:
(i)urban purposes after detailed land use and infrastructure planning has been completed; or
(ii)an interim use that does not prevent the land being used in the future for urban purposes, being Animal husbandry, Animal keeping, Caretaker’s accommodation, Cropping, Dual occupancy (auxiliary unit), Dwelling house, Home-based business, Park or Roadside stall;
(b)the design of the built form:
(i)is responsive to site characteristics, including the shape, frontage, size, orientation and slope;
(ii)for urban purposes is consistent with the detailed land use and infrastructure planning;
…
(c)development protects amenity consistent with its location in the Emerging community zone and the surrounding area.”
Performance outcome PO1 of the Emerging community zone code is of similar effect to the overall outcome in s 6.2.3.2(3)(a) and performance outcome PO8 is of similar effect to the overall outcome in s 6.2.3.2(3)(b)(ii).
Logan Planning Scheme contains an administrative definition of “urban purposes”, which states:
“For the purpose of local government infrastructure plans, urban purposes includes residential (other than rural residential), retail, commercial, industrial, community and government related purposes.”
There is no detailed land use and infrastructure planning about Logan Reserve in Logan Planning Scheme. The only guidance to which I was referred is in Planning scheme policy 5 – Infrastructure (version 5.1).
The purpose of Planning scheme policy 5 – Infrastructure is to ensure that development adheres to the local government’s standards for the planning design, location and construction of infrastructure: s 1.2(1) of Planning scheme policy 5 – Infrastructure. Part 7 includes general planning layouts for identified areas, which demonstrate an indicative proposed road network: s 7.2.1(2) of Planning scheme policy 5 – Infrastructure.
Figure 7.2.1.8 – Logan Reserve general planning layout relates to that part of Logan Reserve that is outside of the priority infrastructure area, including the subject land. It was adopted on 28 August 2017 and took effect on 8 September 2017. A note on the plan states:
“This plan is provided only for the purpose of illustrating a preferred road network plan and indicative residential precincts. …”
On Figure 7.2.1.8, most of the land in Logan Reserve is mapped as “Low density residential”. Some areas are mapped as “Environmental management and conservation”. Land on the corner of Logan Reserve Road and Halcyon Way is mapped as “Neighbourhood centre”. Figure 7.2.1.8 divides the “Low density residential” land into indicative precincts that are described as “Small lot precinct”, “Suburban precinct”, and “Village precinct”. The subject land is mapped as part of the Village precinct.
Planning scheme policy 5 – Infrastructure does not detail the planning intention for land that is mapped on Figure 7.2.1.8 as low density residential, or the intention for each of the identified precincts on the figure. That said, the precinct descriptors correspond to precincts in the Low density residential zone in Logan Planning Scheme.
In terms of the preferred road network, Figure 7.2.1.8 indicates a planning intention for:
(a)Logan Reserve Road to be an urban arterial single carriageway road;
(b)the existing extent of Noffke Court to be an urban collector road;
(c)several controlled intersections along Logan Reserve Road, including where that road intersects each of Noffke Court and Chambers Flat Road;
(d)extensions to the road network to create connections between the existing extent of Noffke Court and:
(i)a proposed controlled intersection with Chambers Flat Road to the north-west;
(ii)a controlled intersection with a realigned School Road to the north; and
(iii)the existing extent of Glen Road via a controlled intersection at the corner of Logan Reserve Road and Noffke Court and road extensions to the south and east.
The parties also identify provisions of the Centre zone code that they say are relevant.
The Centre zone code applies to development applications for material change of use of land in the Centre zone. As the subject land is not in the Centre zone, I have reservations about whether the provisions of the Centre zone code are assessment benchmarks against which the development application must be assessed. It is unnecessary to determine that issue as the Centre zone code provides context relevant to the centre strategy.
The Centre zone code has a local government purpose to, amongst other things, protect the centre hierarchy: s 6.2.1.2(2)(a) of Logan Planning Scheme. The overall outcomes of the Centre zone code are consistent with the specific outcomes for the Centres theme in the Strategic framework.
The overall outcomes of the Centre zone code about protecting the centre hierarchy and the intended mix of uses, location and design requirements for local centres and neighbourhood centres in ss 6.2.1.2(3)(a), (e), (f) and (l) mirror the specific outcomes in ss 3.5.1(1), 3.5.5.1, 3.5.6.1 and 3.5.8.1(1)(a)(iii) of Logan Planning Scheme.
How has the planning in Logan Planning Scheme evolved?
Although Logan Planning Scheme was prepared with a 20-year horizon, it has been reviewed periodically to respond to changes at a local, regional and State level.
It is common ground between the parties that the evolution of the land use planning for Logan Reserve and the evolution of the centre strategy is relevant. I agree.
As general propositions, I accept the observations of His Honour Judge Wilson SC (as His Honour then was) in Edwards & Anor v Gold Coast City Council & Anor [2005] QPELR 226 at 228 [9], wherein His Honour said:
“It might be thought that when the laws and policies of a Planning Scheme touching a particular parcel change it would be unusual, if not artificial, to give little weight or credence to the altered provisions. In the past, this Court has acknowledged that in those circumstances the provisions of a new planning scheme may be entitled to considerable weight. It is reasonable to presume that planning schemes are evolutionary and that a later scheme would usually (but not necessarily) contain a more informed and timely understanding of all the relevant town planning issues. Those considerations alone would ordinarily suggest a new planning scheme will attract not insignificant weight. When, as here, the new scheme becomes effective in the course of deliberations about the proposed development relevant provisions of that new scheme must attract close attention and considerable weight.”
(emphasis added, endnotes omitted)
In this case, there are three aspects of amendment to Logan Planning Scheme warrant careful consideration. They relate to:
(a)future development in Logan Reserve;
(b)new centres in the Emerging community zone; and
(c)trunk park infrastructure in Logan Reserve.
What is the change to the planning for future development in Logan Reserve?
On 15 May 2019, the Council adopted the Logan Reserve Land Use Area Amendment to Logan Planning Scheme. That amendment was incorporated in version 6.0 of Logan Planning Scheme and took effect on 27 May 2019. The amendment introduced specific outcomes about Logan Reserve as part of the Future urban area element of the Settlement pattern theme in s 3.3.3.1 of the Strategic framework. Those amendments have been maintained in subsequent versions of Logan Planning Scheme, including version 9.1. They state:
“6.Logan Reserve is developed in accordance with:
a.the integrated and orderly pattern of land use and infrastructure networks identified on Figure 3.8 – Logan Reserve land use area to provide:
i. a residential community of about 23,000 people;
ii. neighbourhood centres;
iii. a range of infrastructure;
iv. environmental areas and corridors;
v. an integrated movement network;
b.a sequence of development approved by the local government that:
i. provides for the orderly and efficient provision and integration of land use and infrastructure; and
ii. ensures the integrated provision of all infrastructure networks.”
There are minor differences between Figure 3.8 – Logan Reserve land use area in version 9.1 of Logan Planning Scheme and Figure 7.2.1.8 – Logan Reserve general planning layout in version 5.1 of Planning Scheme Policy 5 – Infrastructure. The differences are not material to the outcome of this appeal. Relevantly, Figure 3.8 in version 9.1 of Logan Planning Scheme contains the features that I have identified in paragraphs [100] to [103] above.
The provisions of version 5.1 of Logan Planning Scheme referred to above, and the Logan Reserve Land Use Area Amendment adopted in version 6.0 and maintained through to version 9.1, indicate that Logan Reserve is planned to emerge as a new low-density residential community.
What are the changes to the strategic planning for centres?
After the amendments about Logan Reserve, on 16 September 2020, the Council adopted the Unlocking Logan’s Prosperity Amendment to Logan Planning Scheme. That amendment was incorporated in version 8.0 of Logan Planning Scheme and took effect on 16 November 2020. It amended s 3.5.8.1 of the Strategic framework of Logan Planning Scheme, including by introducing new criteria that guide the establishment of new centres in emerging communities.
On 25 January 2023, the Council adopted the Major Planning Scheme Amendment 2021 to Logan Planning Scheme. That amendment was incorporated in version 9.0 of Logan Planning Scheme and took effect on 6 February 2023. It included an administrative amendment to renumber the subparagraphs of s 3.5.8.1 of the Strategic framework of Logan Planning Scheme to achieve consistency in formatting.
In version 9.0 of Logan Planning Scheme (and subsequent versions up to and including the current version 9.2), s 3.5.8.1 states:
“1.Centre activities, other than an Accommodation activity, must be:
a.located in a centre unless:
i. there is community need and economic need for the use;
ii. the use is of a scale compatible with its role and function in the centre hierarchy;
iii. the use does not have unacceptable adverse effects on any existing or planned centre;
iv. the use:
A.cannot be located in a principal centre, major centre, district centre, local centre or neighbourhood centre;
B.is located in the Specialised centre zone, or in an employment area where it cannot be located in a specialised centre; or
C.has a specific locational need requiring its location outside a centre and the use is located in accordance with the specific locational need;
v. where in the Emerging Community Zone:
A.a new district centre is separated by a minimum of 1 kilometre to an existing, planned or approved neighbourhood centre or a minimum of 2 kilometres to an existing, planned or approved local centre, or a minimum of 5 kilometres to an existing, planned or approved district centre, major centre or principal centre; or
B.a new local centre is separated by a minimum of 1 kilometre to an existing, planned or approved neighbourhood centre or a minimum of 2 kilometres to an existing, planned or approved local centre, district centre, major centre or principal centre; or
C.a new neighbourhood centre is separated by a minimum of 1 kilometre to an existing, planned or approved neighbourhood centre, local centre, district centre, major centre or principal centre;
b.consistent with the intent of the centre;
c.at a scale compatible with the role and function of the centre in the centre hierarchy being:
i. a principal centre, which is a dominant centre in Logan and services a main trade area over 100,000 people;
ii. a major centre, which is subordinate to a principal centre and services a main trade area of approximately 40,000 to 50,000 people;
iii. a district centre, which is subordinate to a principal centre and major centre and services a main trade area of approximately 15,000 to 20,000 people;
iv. a local centre, which is subordinate to a principal centre, major centre and district centre and services a main trade area of approximately 8,000 to 10,000 people;
v. a neighbourhood centre, which is subordinate to a principal centre, major centre, district centre and local centre and services a main trade area of approximately 3,000 to 4,000 people.
2.Where in the Emerging community zone, a district centre, local centre or neighbourhood centre must:
a.be integrated with future public transport and public open space;
b.be located adjoining an urban arterial road, where a district centre or local centre;
c.be accessed from an urban collector road;
d.provide for the orderly and efficient provision and integration of land use and infrastructure.
3.No new principal centre or major centre other than shown on SFM-01.00 Strategic framework map are created.”
The Major Planning Scheme Amendment 2021 also changed the heading that describes the element in s 3.5.8 from “Element – New and expanded centres” to “Element – New and expanded centres and centre activities”.
In relation to the change to s 3.5.8, the Major Planning Scheme Amendment 2021 Explanatory Report states:
“Section 3.5.8.1 of the Strategic Framework guides new and expanding centres by prescribing an ‘out of centre’ test for centre activities. These comprehensive criteria address community and economic need, scale, impact on centre hierarchy and separation distances. It has been identified through a Planning and Environment Court appeal, however, that the heading of this section, being “Element – New and expanded centres”, only applies to centres and not standalone centre activities. The heading is therefore to be expanded to explicitly capture centre activities thereby enabling this portion of the Strategic Framework to be applied not only to centres but also standalone centre uses (such as Service stations) as part of the application assessment process. This will enable, where impact assessable, the demonstration of community need and economic need to justify a proposed use.”
(emphasis added)
I have reservations about whether this change alone is sufficient to widen the applicability of s 3.5.8.1 in the way suggested in the Major Planning Scheme Amendment 2021 Explanatory Report. The explanation overlooks that the proper construction of s 3.5.8.1 was not only informed by the words in the heading in s 3.5.8. The adopted construction was founded on other provisions in Logan Planning Scheme that provide relevant context: see, for example, Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67; [2020] QPELR 899 at 914—6 [74] – [87] and Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321 at 1335 [55]. There has been no material change to those other provisions.
That said, it is unnecessary for me to resolve whether s 3.5.8.1 applies in the way referenced in the Major Planning Scheme Amendment 2021 Explanatory Report. Here, it is common ground that the proposed use is for a new local centre.
What is the change to the trunk park infrastructure planning in Logan Reserve?
Since the development application was lodged, the Council has reviewed its trunk park infrastructure planning such that:
(a)there is no provision for a metropolitan sports park proximate to Halycon Way; and
(b)a trunk metropolitan sports park is proposed on land at the northeastern corner of Derby Road and Logan Reserve Road, immediately adjoining that part of the subject land that is comprised of Lot 2 on RP 178689;
Metropolitan parks are at the apex of the trunk park infrastructure in Logan Planning Scheme. They are intended to be large, multi-use parks that serve the entire population of the local government area. Metropolitan parks are planned to facilitate a variety of sport or recreational activities to be undertaken simultaneously by multiple large groups of people.
Logan Reserve Metro Park is planned to be delivered in two stages. The first stage is proposed on land immediately adjoining Logan Reserve Road and Derby Road. The estimated timing for acquisition that land was 2024. Works to establish the park are estimated to occur between 2027 and 2029.
With the planning framework and its evolution in mind, I now turn to consider the issues in dispute.
Key issue 1: Does the proposed use comply with the strategy regarding establishment of new centres in the Emerging community zone?
A key foundation of Stephen Family Pastoral Pty Ltd’s case for refusal is its allegation that the proposed use does not comply with the planning strategy for centres embodied in s 3.5.8.1 of version 5.1 of Logan Planning Scheme as strengthened in version 9.1 of Logan Planning Scheme. Stephen Family Pastoral Pty Ltd contends that the Court should give significant weight to the non-compliance with s 3.5.8.1 of version 9.1 of Logan Planning Scheme.
Loganview Road North Pty Ltd and the Council dispute the nature and extent of the alleged non-compliance and, to the extent that non-compliance is conceded, the weight to be attributed to any such non-compliance.
Before turning to address the factual matters in dispute, it is convenient to first identify relevant principles about centres’ hierarchy planning strategies.
What are the relevant principles about centres’ hierarchy planning strategies?
The principles that inform consideration of a centres’ hierarchy planning strategy are well-established and not disputed. Relevantly, it is accepted by all parties that:
(a)the establishment and maintenance of a hierarchy of centres articulated in an adopting planning control is a matter of town planning importance: Australian Capital Holdings Pty Ltd v Mackay City Council & Ors [2008] QCA 157 at [58] – [59];
(b)centres’ hierarchies represent an important and deliberate planning strategy typically articulated in the part of a planning scheme that deals with a local government’s forward planning intent: I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 791 at 811 [82] – [83];
(c)one would ordinarily expect considerable weight to be attached to established compliance, or non-compliance, with a centre strategy when exercising the planning discretion: I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36; [2022] QPELR 791 at 811 [82] – [83]; and
(d)although forward planning for an activity centre network is important, it does not obviate the need to carefully examine the adopted planning controls that articulate the relevant strategy as the underlying planning policy or assumptions that inform the strategy may vary from scheme to scheme: Stockwell Development Group Pty Ltd v Bundaberg Regional Council & Anor [2024] QPEC 44 at [40] – [41].
What is required under s 3.5.8.1 of Logan Planning Scheme?
It is common ground between the parties that the proposed use is a new local centre and the question of compliance with s 3.5.8.1 of Logan Planning Scheme is a central issue in the appeal. I agree.
As I have already mentioned, the development application must be assessed against the assessment benchmarks in version 5.1 of Logan Planning Scheme to the extent that the parties put compliance with the assessment benchmarks in issue. Weight may also be given to version 9.1 of Logan Planning Scheme.
The parties agree that it is appropriate that the Court consider the extent of compliance with s 3.5.8.1 of Logan Planning Scheme as amended by the Unlocking Logan’s Prosperity Amendment and the Major Planning Scheme Amendment 2021. The amendments are reflected in version 9.1.
Stephen Family Pastoral Pty Ltd contends that to demonstrate compliance with s 3.5.8.1 in version 5.1 of Logan Planning Scheme (set out in paragraph [82] above), Loganview Road North Pty Ltd must demonstrate:
(a)there is community need and economic need for the proposed local centre: s 3.5.8.1(1)(b)(i);
(b)the proposed local centre is of a scale compatible with its role and function in the centre hierarchy: s 3.5.8.1(1)(b)(ii);
(c)the proposed local centre will not have unacceptable adverse effects on any existing or planned centre: s 3.5.8.1(1)(b)(iii); and
(d)the proposed local centre:
(i)cannot be located in a principal centre, major centre, district centre, local centre or neighbourhood centre: s 3.5.8.1(1)(b)(iv)(A); or
(ii)is located in the Specialised centre zone, or in an employment area where it cannot be located in a specialised centre: s 3.5.8.1(1)(b)(iv)(B); or
(iii)has a specific locational need requiring its location outside a centre and the use is located in accordance with the specific locational need: s 3.5.8.1(1)(b)(iv)(C).
The Unlocking Logan’s Prosperity Amendment introduced additional requirements. According to Stephen Family Pastoral Pty Ltd, to demonstrate compliance with s 3.5.8.1 in version 9.1 of Logan Planning Scheme (set out in paragraph [117] above), Loganview Road North Pty Ltd must demonstrate:
(a)there is community need and economic need for the proposed local centre: s 3.5.8.1 1. a. i.;
(b)the proposed local centre is of a scale compatible with its role and function in the centre hierarchy: s 3.5.8.1 1. a. ii.;
(c)the proposed local centre will not have unacceptable adverse effects on any existing or planned centre: s 3.5.8.1 1. a. iii.;
(d)the proposed local centre:
(i)cannot be located in a principal centre, major centre, district centre, local centre or neighbourhood centre: s 3.5.8.1 1. a. iv. A.; or
(ii)is located in the Specialised centre zone, or in an employment area where it cannot be located in a specialised centre: s 3.5.8.1 1. a. iv B.; or
(iii)has a specific locational need requiring its location outside a centre and the use is located in accordance with the specific locational need: s 3.5.8.1 1. a. iv.C.;
(e)the proposed local centre is separated by a minimum of one kilometre to an existing, planned or approved neighbourhood centre or a minimum of two kilometres to an existing, planned or approved local centre, district centre, major centre or principal centre: s 3.5.8.1 1. v. B.;
(f)the type of centre activities proposed for the proposed local centre are consistent with the intent for a local centre under Logan Planning Scheme: s 3.5.8.1 1. b.; and
(g)the proposed local centre:
(i)is integrated with future public transport and public open space: s 3.5.8.1 2. a.;
(ii)is located adjoining an urban arterial road: s 3.5.8.1 2. b.;
(iii)is accessed from an urban collector road: s 3.5.8.1 2. c.; and
(iv)provides for the orderly and efficient provision and integration of land use and infrastructure: s 3.5.8.1 2. d.
I now turn to consider the factual issues identified in paragraph [134] above.
Is there a community need and economic need for the proposed local centre?
Section 3.5.8.1(1)(b)(i) in version 5.1 and s 3.5.8.1 1. a. i. in version 9.1 of Logan Planning Scheme both require that there be a community and economic need for the use. The use is a proposed local centre comprised of a childcare centre, a service station, and a shopping centre anchored by a full-line supermarket.
What general principles inform and guide the assessment of need?
The general principles that inform and guide an assessment of need are well-settled and uncontested. Many of them are conveniently summarised in Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414 at 417—9 [20] — [26]. They are not a checklist that must be established in every case. Rather, the assessment of need in this context is a flexible process. This has long been recognised. It was again confirmed by the Court of Appeal in Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, [30].
Planning need is not limited to the need for the proposed use on the specific site in question and no other site. The existence of other sites on which the proposed development is permitted may be a relevant matter, depending on all the circumstances of the case: Abeleda & Anor v Brisbane City Council & Anor [2022] QCA 168; [2021] QPELR 1003, 1018 [51].
Need is a relative concept to be given a greater or lesser weight depending on all the circumstances that the decision maker is to consider: Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [20]. Ultimately, whether there is a need for a proposed development is a question of fact: Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39; [2025] QPELR 610, 623 [53].
The nature of the proposed use is relevant to a consideration: see, for example, Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 419 [27]. As was observed by His Honour Judge Wilson SC (as His Honour then was) in Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPEC 7; (2008) 160 LGERA 356; [2008] QPELR 480, 484—5 [30]:
“In a recent decision of the Court of Appeal, Yu Feng Ltd v. Brisbane City Council [2007] Q.C.A. 382 Williams JA described the phrase “overwhelming community need” as a “motherhood statement” — a phrase which the Australian Oxford Dictionary defines as “... platitudinously endorsing that which everyone accepts as worthy”. The point his Honour was, with respect, making is that the meaning and effect of the phrase will vary enormously from case to case and when, as here, the need to be satisfied involves the daily essentials of ordinary life, the bar should not be set too high; and, when the planning scheme indicates a deliberate planning decision to provide an opportunity for appropriate convenience retail facilities to satisfy those needs, and where there are no unacceptable impacts on amenity, the efforts required to demonstrate need at that level are not onerous.”
(emphasis added)
This approach has been long recognised by this Court: JPF Australia Pty Ltd v Livingstone Shire Council & Anor [2006] QPELR 359, 364 [43]; Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, 455 [35].
In relation to the provision of childcare services, I respectfully adopt His Honour Judge Williamson QC’s observations in Wu & Kuo Childcare Pty Ltd & Anor v Brisbane City Council & Anor [2022] QPEC 27; [2023] QPELR 1004 at 1021—2 [77], wherein His Honour notes:
“Childcare centres provide an important community service function. As Mr Buckley said, and I accept:
“…childcare centres are important to the fabric of a community. Apart from the service they provide, they are also places of social and community connection. Inter-family and personal relationships, albeit focussed around children, are often formed when children from different households are at a centre at the same time; and if local, they continue and proceed to other levels of education as a group or larger cohort;
…
…the service provided has become increasingly important for Australia economically. The ability for both guardians of a child to work, and, in particular, for women to maintain participation in the work force, are desirable aspirations in the public interest. An extension of this is the ability to access a centre conveniently to and from a place of work.”
With respect to the anticipated nature of the surrounding development, I do not accept Stephen Family Pastoral Pty Ltd’s submission that:
“It is, with respect, obvious that the LRN land and the land that immediately surrounds it was, and remains, intended by the planning scheme to be placed into the low density residential zone.”
Under version 5.1 of Logan Planning Scheme, the subject land and land proximate to it is mapped as part of the Emerging community zone. To date, that zoning has been maintained. As such, in terms of the planned context, the character and amenity expectations for development on and around the subject land would be informed by the provisions in the Emerging community zone code and the detailed land use and infrastructure planning called up by it: see paragraphs [92] to [103] and [112] and [114] above. Consequently, the expectations about the planned outcome would include those matters to which I refer in paragraphs [365] and [368] above.
The reasonable expectations for development on the subject land include low density residential development: see paragraphs [365](a), [365](b), and [365](d) above. The Low density residential zone code provides helpful context when seeking to appreciate the planned character and visual amenity outcomes for a new residential community.
It must be reasonably expected that the planned outcomes for the subject land also include a neighbourhood centre (see [365](e) above). With respect to those expectations, useful context is provided by:
(a)the strategic outcome about centres in s 3.5.1(2): see paragraph [74] above;
(b)the specific outcomes for Element–Neighbourhood centre in s 3.5.6: see paragraphs [79](b), [80] and [81] above; and
(c)provisions of the Centre zone code about the intended design, built form and character of neighbourhood centres, including the overall outcomes in ss 6.2.1.2(2)(c) and (d) and (3)(a)(i), (f), and (h)(i) and (ii) and performance outcomes PO10, PO13 and PO14 of the Centre zone code.
Reasonable communities expectations would also be informed by other relevant changes to Logan Planning Scheme that foreshadow the type of development that might proceed in the Emerging community zone: see paragraphs [115] to [124] above. As such, a local centre might reasonably be expected on the subject land given such land is:
(a)in the Emerging community zone;
(b)at the intersection of an urban arterial road and an urban collector road; and
(c)about two kilometres from the nearest local centre.
To that extent, the reasonable expectations about character and amenity impacts would also be informed by:
(a)the specific outcomes for Element–Local centre in s 3.5.5: see paragraphs [79](a), [80] and [81] above; and
(b)provisions of the Centre zone code about the intended design, built form and character of local centres, including the overall outcomes in ss 6.2.1.2(2)(c) and (d) and (3)(a)(i), (e)(iii), (vi), (vii) and (ix), and (h)(i) and (ii) and performance outcomes PO10, PO13 and PO14 of the Centre zone code.
There is no suggestion that the design of the local centre does not accord with that which would be expected for a local centre under Logan Planning Scheme.
In terms of the existing and emerging character of the area, my findings in paragraphs [7] to [10], [18], [19], [370] and [372] above are relevant. They indicate that the area in the immediate vicinity of the subject land is evolving into a highly urbanised hub. The land in question, and the broader locality surrounding the subject land, is all in the Emerging community zone.
With those matters in mind, I turn to consider the design of the proposed local centre and the appropriateness of its character and amenity impacts.
What does the evidence establish in terms of design and character and amenity impacts?
To assist me with my assessment about the design of the proposed local centre and the appropriateness of its character and amenity impacts, I have the benefit of, amongst other evidence:
(a)many photographs and aerial photographs of the area;
(b)copies of recent development approvals and the requirements of the Ministerial Infrastructure Designation, which inform the emerging character of the area;
(c)architectural and landscape plans (including elevations and sections) depicting the proposed local centre and its landscaping; and
(d)expert evidence from Dr Nicholas McGowan, Mr Leslie Curtis and Mr Dean Butcher, the visual amenity experts retained by Loganview Road North Pty Ltd, the Council and Stephen Family Pastoral Pty Ltd respectively.
The parties arranged a site inspection of the local area. Although my observations during this inspection do not form part of the evidence, my appreciation of the photographic evidence and opinions expressed by the experts is greatly enhanced by it.
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 photographs and aerial photographs. That said, in general terms, I prefer the evidence of Dr McGowan and Mr Curtis to the written evidence of Mr Butcher. The opinions of Dr McGowan and Mr Curtis, and their identified foundations, accord with my assessment of the character and visual amenity impacts based on the plans, landscape plans and photomontages. Other than those aspects of his evidence that comprise points of agreement in the joint reports and concessions made during cross-examination, Mr Butcher’s evidence does not accord with my own independent assessment.
I accept that the proposed local centre will have an appearance that is commensurate with its function, namely that of a local centre anchored by a full-line supermarket. In that sense, its appearance will be of a different character to the form of development that can be expected to form the predominance of development in Logan Reserve.
By itself, the commercial appearance does not demonstrate that the character and amenity impact of the proposed local centre will be unacceptable. As was appropriately acknowledged by Mr Butcher during his cross-examination, throughout the Logan City local government area and Queensland generally, local centres are commonly found juxtaposed with residential development. This occurs within areas that are predominantly characterised by low density and low-medium density residential form. Such a situation exists for several centres within 10 kilometres of the subject land: see Exhibits 22, 23, 24 and 25. I also accept the evidence of Ms Roughan and Mr Perkins that centres are a form of development that can be reasonably expected in a growing urban area. It is a form of development that is reasonable expected in the Emerging community zone under version 9.1 of Logan Planning Scheme.
Careful consideration needs to be given to the design of the proposed local centre to assess its appropriateness.
Here, the proposed local centre comprises a mix of local centre activities (that I have identified in paragraph [23] above) provided in a built form that is designed such that:
(a)all the buildings will be single level and none will have a height greater than nine metres above the pad level;
(b)the frontage to Logan Reserve Road contains three buildings, which accommodate a food and drink outlet with a drive-through facility, a food and drink outlet and a shop/food and drink outlet, and canopies covering fuel bowsers associated with the service station;
(c)the buildings fronting Logan Reserve Road are separated by vehicular access and egress points, landscaping and pedestrian links;
(d)the building containing the full-line supermarket, flanked by small-scale shops, is setback a considerable distance (about 43.5 metres) from Logan Reserve Road, behind the landscaping and small-scale buildings that accommodate the food and drink outlets;
(e)the building containing tenancies that are to be used for health care services or shops sit towards the rear of the subject land;
(f)the building containing the childcare centre is proximate Noffke Court but is visually screened from Logan Reserve Road by the intervening supermarket and the buildings that front Logan Reserve Road;
(g)at grade parking is, in large measure, visually removed from Logan Reserve Road and Noffke Court and is to contain numerous shade trees; and
(h)a substantial extent of the carparking spaces is consolidated at a location behind the built form that fronts Logan Reserve Road and Noffke Court and, as such, is partially screened from the view of people moving along Logan Reserve Road and Noffke Court by the buildings and landscaping along the road frontages.
Mr Curtis, Dr McGowan and Mr Butcher agree that the buildings accommodating the food and drink outlets (other than to the extent that there is provision for a drive-through facility), the health care services and shops, and the childcare centre all have a small-scale appearance and accommodate uses that cater for residents of the local area. The visual amenity experts agree that the buildings fronting Logan Reserve Road have a residential scale and bulk. I accept this evidence.
The visual amenity experts also agree that the visual impacts of the childcare centre, at the western extent of the subject land, will be well-mitigated by the proposed vegetation in the drainage reserve and directly adjacent the built form along Noffke Court. I accept this evidence also.
The evidence of Mr Curtis and Dr McGowan in relation to the Logan Reserve Road streetscape is compelling.
Dr McGowan says that the three buildings accommodating food and drink outlets will be setback between approximately six and 13 metres from the road frontage. In his view, they will be partially screened by an acoustic barrier, landscaping and street trees. He opines that they present attractive, articulated and active facades to Logan Reserve Road.
Dr McGowan explains that the building containing the supermarket and the main car parking area will be setback at least 40 metres from the Logan Reserve Road boundary and will be partially screened and softened by intervening buildings and landscaping.
Mr Curtis agrees with Dr McGowan about the presentation of the buildings fronting Logan Reserve Road. He explains that the building at the corner of Logan Reserve Road and Noffke Court is a simple building form with a parapet that conceals its roof. A sign projects above the parapet at the building’s southwest corner, and louvres are used to screen the roof mounted mechanical equipment. These elements provide subtle variation to the building’s profile. The south facing wall is articulated by fenestration, which modulates the length of the wall and assists to reflect the human scale and the building’s use. The horizontal cladding joints and darker ground level colouration complement the fenestration to provide a relatively unremarkable but noncontroversial appearance.
The next built form is the canopy over the fuel bowsers of the service station. Mr Curtis describes it as having minimal bulk and an appearance of a simple horizontal element on supporting columns.
According to Mr Curtis, the next building is proposed to have a more animated appearance due to the stepped height of its parapet, the variation of materials and the large window in the centre of the façade that contrasts with the solid, but articulated, appearance of the adjoining wall panels.
Mr Curtis explains that the final building along the Logan Reserve Road frontage has a stylised appearance with decorative wall-cladding flanking a large central signage panel. The eastern and western corners accommodate large, glazed doors, and windows that provide access to alfresco dining areas.
Mr Curtis opines that the design of those buildings will provide adequate and appropriate activation to the Logan Reserve Road frontage. He says that the articulated appearances of the buildings fragment their visual bulk, reflect the human scale, and provide a reasonable level of visual interest that will be complemented by the landscaped setback.
According to Mr Curtis, although the supermarket building will have a significantly greater bulk than the three frontage buildings, it will not dominate the frontage due to its setback and the visual focus and obstruction provide by the frontage buildings and landscaping.
I am also assisted by the evidence of Mr Curtis and Dr McGowan in relation to the Noffke Court streetscape. They explain that most of the built form is comfortably set back from the road and behind generous landscaping. As such, that streetscape will be characterised more by landscaping than by built form.
Another aspect to be considered is the acoustic barriers that are proposed at various locations throughout the development.
Walls, fencing and acoustic barriers are not an uncommon feature of the area surrounding the subject land. Various photographs from the local area show several recently constructed residential developments along Logan Reserve Road that have large retaining walls and fencing or acoustic barriers along the road frontage. These are common visual features in the locality’s streetscape.
Here, the proposed acoustic barriers have heights ranging from 1.8 metres to four metres. Landscaping is proposed proximate each of the acoustic barriers. I accept the evidence of Mr Curtis and Dr McGowan that the potential adverse impacts associated with the visual presentation of the acoustic barriers will be mitigated by the combined effect of the inclusion of transparent panels and recesses and articulation in the barriers, variations in their alignments, and the proposed landscaping. These design features will reduce the acoustic barrier’s prominence and apparent scale. I also accept Dr McGowan’s opinion that the acoustic barriers will not have an unacceptable impact on the streetscape provided they are constructed of quality materials, such as blockwork with a timber render finish or appearance. This can be addressed by a condition.
The proposed conditions of approval include conditions that will appropriately mitigate potential adverse amenity impacts by requiring landscaping and incorporating measures to address potential nuisance, noise, lighting and the hours of operation.
In terms of the overall character and visual amenity impacts, Dr McGowan opines that the layout and scale of the proposed built form, combined with the screening potential of the proposed landscaping, will result in an attractive streetscape presentation to both Noffke Court and Logan Reserve Road. He says that the aspects of this type of commercial development that often detract from the quality of the streetscape and diminish the character of an area (such as large expanses of blank walls, loading and servicing areas, high retaining walls presented to the street edge, and large areas of exposed carparking) would not be apparent in the proposed local centre. In addition, Dr McGowan says that the proposed local centre will present a more interesting and less imposing streetscape to Logan Reserve Road than is being realised by recently constructed residential developments along Logan Reserve Road, where large retaining walls and fencing or barriers are constructed along the frontages.
Mr Curtis opines that the proposed development will provide an appropriate interface with the Logan Reserve Road and Noffke Court frontages. He says that the interface will appropriately mitigate impacts of the proposed local centre on future development, which is likely to be a low-density residential environment. He explains that this mitigation is achieved through the well-considered site planning, building design and landscaping. According to Mr Curtis, the proposed local centre will complement and contribute to the streetscape character of the evolving development in the Emerging community zone.
I accept the above evidence of Dr McGowan and Mr Curtis.
I also accept the evidence of Mr Butcher that:
(a)the visual impacts of the childcare centre at the western end of the subject land would be well-mitigated by the combination of:
(i)vegetation within the drainage reserve and directly adjacent the built form along Noffke Road;
(ii)the modest height of the built form;
(iii)the setback from Noffke Road;
(iv)landscaped areas proximate the childcare centre; and
(v)a modest vehicular access and parking area;
(b)many of the buildings and structures that comprise the proposed local centre have a small-scale appearance;
(c)the buildings and structures that front Logan Reserve Road all have a residential scale and bulk and are of an appropriate scale and mass;
(d)barriers and retaining walls, including multi-tiered walls and structures, up to five metres in total height are a feature adjacent residential development in the immediate locale, including along Logan Reserve Road; and
(e)efforts have been made to soften the proposed retaining walls and acoustic barriers, and the result is better than the existing outcomes in the locality.
Conclusion regarding the specific outcomes for the Design, place making and amenity theme
The evidence satisfies me that the combination of design elements and the proposed conditions results in a well-considered centre that appropriately integrates with, and complements, the emerging development in the surrounding locality. It involves a high-quality, attractive and functional built environment that is of an appropriate height, bulk, scale, and mass. That is highlighted by consideration of the emerging development in the immediate vicinity of the subject land, including the recently designated school.
In that respect, during cross-examination, Ms Rayment appropriately conceded that a centre use in the form of a neighbourhood centre would be appropriate on the subject land. She also accepted that the proposed local centre will:
(a)be vibrant;
(b)be accessible to the population it will serve;
(c)be integrated with other uses and the road network;
(d)have easy access to other facilities in the immediate locality, such as the recently designated secondary school and special school and the trunk metropolitan sports park; and
(e)is consistent with the strategic intent for transport in s 3.2.11 of the Strategic Framework in that it will encourage walking and the use of public transport and reduce reliance on public vehicles.
The proposed local centre will not have a residential appearance, nor will it appear small in scale. Nevertheless, it accords with what might be reasonably expected given the matters identified in paragraphs [385] to [396] above.
I have carefully reviewed all the relevant evidence, including the photographs and aerial photographs of the area, the recent development approvals, the requirements of the Ministerial Infrastructure Designation (including the plans of the school), and the architectural and landscape plans depicting the proposed local centre. Based on the evidence, including that referred to above, I am satisfied that:
(a)the proposed local centre:
(i)complies with ss 3.11.2.1(1)(c);
(ii)delivers an amenity outcome that accords with reasonable expectations for development on the subject land having regard to the emerging character and, as such, accords with the specific outcomes in s 3.11.3.1(1);
(iii)accords with the strategic outcomes for the “Design, place making and amenity” theme in s 3.11 of version 5.1 of Logan Planning Scheme;
(b)the design of the proposed local centre is appropriate; and
(c)the proposed local centre will not result in unacceptable adverse character or amenity impacts.
Does an assessment against the lower order assessment benchmarks support refusal?
In addition to the key assessment benchmarks in the Strategic framework addressed above, Stephen Family Pastoral Pty Ltd alleges non-compliance with:
(a)the overall outcomes in s 6.2.3.2(3)(b)(i) and (c) of the Emerging community zone code;
(b)the overall outcomes in ss 6.2.1.2(2)(c) and (d), (3)(a)(i), (e)(iii), (vi), (vii) and (ix), (h)(i) and (ii), and (k) and performance outcomes PO10, PO13 and PO14 of the Centre zone code; and
(c)the overall outcome in ss 9.4.4.2(2)(a)(viii) and performance outcome PO1(j) of the Landscaping code.
Having regard to my findings above, I am satisfied that the proposed local centre accords with the planning goals sought by:
(a)the overall outcomes in ss 6.2.1.2(2)(c) and (d) of the Centre zone code because, despite its visibility and its apparent commercial design, the proposed local centre will provide:
(i)a built form that provides visual interest and a sense of place that is appropriate in its context, particularly having regard to the emerging character informed by the school;
(ii)development that is compatible with the adjoining uses and protects amenity;
(b)the overall outcome in s 6.2.1.2(3)(a)(i) of the Centre zone code because, even though the visual appearance of the proposed local centre is not that of a neighbourhood centre:
(i)a local centre is within the community’s reasonable expectations for the subject land; and
(ii)the proposed local centre will present as a local centre;
(c)the overall outcome in s 6.2.1.2(3)(e)(iii) and (vi) of the Centre zone code because:
(i)the subject land and the land surrounding it is in the Emerging community zone, not a residential zone category;
(ii)although the built form of the proposed local centre exhibits an obvious commercial character, that character is one that is reasonably expected on the subject land;
(iii)the built form and character of the proposed local centre complements, and integrates with, the development that is emerging in the surrounding area;
(d)the overall outcomes in s 6.2.1.2(3)(h)(ii) and (k) and performance outcomes PO10, PO13, and PO14 of the Centre zone code because, although the proposed local centre presents a highly activated, commercial frontage to Logan Reserve Road with signage elements designed to be visible to people travelling through the area, the proposed local centre nevertheless:
(i)positively contributes to the immediate streetscape character that is emerging in the vicinity of the subject land, including by:
(A) providing buildings that orient to Logan Reserve Road;
(B) providing well-articulated façades;
(C) incorporating detailed design measures for visual aesthetics;
(D) integrating with public open space and the planned road network;
(E) adopting a design that has a human scale;
(ii)provides a consistent and coherent streetscape that creates visual interest, a sense of place and a safe pedestrian environment that is consistent with the intended character of a local centre. It does so by including:
(A) a generous extent of landscaping proximate the roads and throughout the proposed local centre;
(B) appropriate road treatments; and
(C) vehicular entrances that are designed and located to reduce the visual impact on the streetscape, for example by locating them offset from the bulkiest aspects of the built form; and
(e)the overall outcomes in s 6.2.3.2(3)(b)(i) of the Emerging community zone code and s 6.2.1.2(3)(h)(i) of the Centre zone code because, even though the supermarket will be elevated above Noffke Court and the adjoining property to the north, the overall built form of the proposed local centre appropriately responds to site characteristics and transitions sensitively to surrounding uses. It does so by adopting a design that utilises several buildings that are carefully positioned on the subject land to minimise their visual impact.
I accept the evidence of Dr McGowan about the use of landscaping to appropriately mitigate the impact on the visual amenity of future neighbouring residential uses. When challenged about the ability to achieve the landscaping depicted in sections along the eastern boundary, Dr McGowan explained that it would be surprising if landscaping, such as trees, could not be accommodated in the three-metre-wide drainage corridor along the eastern boundary. Having regard to that evidence and the landscaping plans, I am satisfied on the balance of probabilities that the proposed local centre will adequately protect the visual amenity of future neighbouring residential uses, including on the eastern boundary of the proposed local centre. It complies with the overall outcomes in s 6.2.3.2(3)(c) of the Emerging community zone code and s 6.2.1.2(3)(e)(ix) of the Centre zone code, and the overall outcome in ss 9.4.4.2(2)(a)(viii) and performance outcome PO1(j) of the Landscaping code.
With respect to the overall outcome in s 6.2.1.2(e)(vii) of the Centre zone code, Stephen Family Pastoral Pty Ltd alleges non-compliance on the basis that the landscaping does not adequately screen the building height of the large supermarket building. The allegation does not appropriately engage with the planning outcome sought, which is that the development in a local centre has a height in accordance with the building height provisions. In the circumstances, Stephen Family Pastoral Pty Ltd does not raise any issue regarading non-compliance with overall outcome in s 6.2.1.2(e)(vii) of the Centre zone code that I need to address.
For the reasons provided, an assessment of the proposed local centre against the lower order assessment benchmarks put in issue by Stephen Family Pastoral Pty Ltd does not support refusal of the proposed development.
Does an assessment against the lower order provisions in version 9.1 of Logan Planning Scheme support refusal?
Stephen Family Pastoral Pty Ltd alleges non-compliance with several lower order provisions in version 9.1 of Logan Planning Scheme. They are:
(a)the overall outcomes in ss 6.2.1.2 3. a. iv. and performance outcome PO12(e) of the Centre zone code; and
(b)the overall outcome in ss 9.3.3.2 2. b. ii. and v. of the Health care service code.
Those provisions contain similar requirements to those in the assessment benchmarks already addressed. As such, it is unnecessary to address them individually. It is sufficient to observe that:
(a)I have considered each provision; and
(b)I am satisfied that an assessment of the proposed local centre against them does not support refusal of the proposed development.
Conclusion about whether the design of the proposed local centre and its character and amenity impacts support refusal
The design of the proposed local centre and its character and amenity impacts are not matters that support refusal. To the contrary, I am satisfied that the proposed local centre is well-designed, attractive and functional. This lends supports to its approval.
Should the proposed development be approved in the exercise of the discretion?
As I have mentioned, the assessment and decision-making process is to be approached consistent with the principles in those cases identified in paragraph [35] and [36] above.
As is apparent from those cases, 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. The starting point generally remains that the planning scheme is taken to be an embodiment of the public interest. In most instances, where a planning scheme is not affected by changed circumstances, the decision-maker would give significant weight to it. Nevertheless, the Planning Act 2016 affords flexibility for an assessment manager, or the Court on appeal, in deciding an impact assessable development application. The flexibility promulgated by the Planning Act 2016 permits approval of a development application in the face of non-compliance with a planning scheme. This is because the decision can be informed by other relevant matters. 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 it attaches to a particular requirement or planning policy.
As I identified in paragraph [53](c) above, Stephen Family Pastoral Pty Ltd’s case against approval of the proposed development is founded on four key propositions.
First, the proposed use does not comply with the development parameters that guide the establishment of new local centres in the Emerging community zone in s 3.5.8.1 of version 9.1 of Logan Planning Scheme.
Second, Loganview Road North Pty Ltd has not demonstrated any commitment from a supermarket tenant.
Third, the proposed use is an inappropriate use of the subject land as it does not comply with:
(a)assessment benchmarks in the Emerging community zone code; and
(b)the recent planning for Logan Reserve in s 3.3.3.1 6. of version 9.1 of Logan Planning Scheme.
Fourth, the design of the proposed local centre is unacceptable, out of character with the planned residential character of the area and will have unacceptable visual amenity impacts.
For the reasons outlined above, I do not accept that any of these propositions are established on the evidence.
Although the proposed local centre does not comply with some assessment benchmarks in version 5.1 of Logan Planning Scheme and parts of some identified provisions in version 9.1 of Logan Planning Scheme, the non-compliances do not manifest any appreciable or unacceptable planning or amenity impacts.
On balance, I am satisfied that the extent to which the proposed local centre does not comply with the assessment benchmarks and the other provisions relied on by Stephen Family Pastoral Pty Ltd should not prevent 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.
It bears repeating that the locality in which the subject land sits is rapidly evolving. Relevant changes in the locality include:
(a)a rapid rate of development for urban purposes in those parts of Logan Reserve that are in the Emerging community zone and proximate the subject land;
(b)approval of residential development in the immediate vicinity of the subject land that has a density that is greater than that anticipated by the Council’s detailed land use planning;
(c)the recent Ministerial Infrastructure Designation approving the establishment of the Logan Reserve Special School and Secondary School, and the commencement of construction of the school; and
(d)the recent plan to establish a metropolitan sports park on land adjoining the subject land.
The recent Council approvals and Ministerial Infrastructure Designation will create a hub of high-intensity uses immediately proximate to the subject land. The recently planned metropolitan sports park will add to the intensity of activity generated around the hub.
Many of these recent changes are not anticipated by the forward planning in version 5.1 of Logan Planning Scheme, nor by the subsequent amendments to Logan Planning Scheme in relation to the Logan Reserve land use area. The detailed land use planning for Logan Reserve that was introduced in May 2019 anticipates that the residential community in Logan Reserve will be served by a series of neighbourhood centres. That planning and the indicative residential precincts on Figure 3.8 – Logan Reserve has been overtaken by the recent events that I have identified above. (I hasten to add, the same is not true of its planning with respect to the preferred road network.)
Although the detailed land use planning for Logan Reserve in Logan Planning Scheme has not kept pace with the presently emerging community in that area or its needs, that was addressed, in part, by the subsequent amendments to s 3.5.8.1 of Logan Planning Scheme.
These matters indicate that, to the extent that the Council’s land use planning for Logan Reserve anticipates that the residential community will be served by a series of neighbourhood centres, it has been overtaken by events.
The considerations identified above satisfy me that the public interest, in a planning sense, is not better served by blind insistence on complete compliance with every provision of versions 5.1 and 9.1 of Logan Planning Scheme put in issue. In this case, such an approach would result in the refusal of a meritorious proposal to the detriment of the emerging community.
When considered in context, 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 of an emerging community who do not otherwise have convenient and appropriate access to a full-line supermarket. It will do so at a convenient location appropriately separated from existing and planned centres. These are relevant matters of benefit to the emerging community. In addition, the benefits to the community will be achieved without detrimental impacts on amenity, character or the centres hierarchy. Furthermore, the proposed local centre will positively contribute to the planned road network in a timely manner by providing external road upgrades to Noffke Court and Logan Reserve Road.
Even if I were to accept that the proposed local centre offends the minimum separation requirements in Logan Planning Scheme because it is too close to the Woolworths-anchored centre, that consideration is eclipsed by the many merits of the proposed development and the overall circumstances that pertain in this case.
Overall, the proposed development is meritorious and should be approved subject to the imposition of reasonable and relevant conditions.
Conclusion
Loganview Road North Pty Ltd has discharged the onus.
In due course, the Council’s decision will be set aside and replaced with a decision to approve the development application (as changed) subject to conditions. It seems to me that some of the earlier conditions imposed by the Council may no longer be appropriate, such as the condition that restrains commencement of the supermarket to a date that has already passed. Other conditions, such as those related to the reconfiguration, may also require careful consideration.
To facilitate the preparation of a suite of conditions, I will return the appeal to the applications list for review on 28 November 2025. The appeal will remain on that list unless and until a dispute arises about conditions of approval.
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