Stockland Development Pty Ltd v Townsville City Council
[2012] QPEC 84
•7 December 2012
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Stockland Development Pty Ltd v Townsville City Council & Ors [2012] QPEC 84
PARTIES:
STOCKLAND DEVELOPMENT PTY LTD
(ACN 000 064 835)
(appellant)v
TOWNSVILLE CITY COUNCIL
(respondent)
and
DEXUS WHOLESALE PROPERTY LIMITED
LIMITED
(ACN 006 036 442)
(co-respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(co-respondent by election)FILE NO:
1212/12
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
7 December 2012
DELIVERED AT:
Brisbane
HEARING DATE:
22-26 October 2012, 29-30 November 2012
JUDGE:
Robin QC DCJ
ORDER:
Appeal dismissed.
CATCHWORDS:
Sustainable Planning Act 2009 s 326
Submitter appeal by commercial competitor against approval for shopping centre expansion – planning scheme divided Thuringowa City Centre (“intended for a mix of commercial development”) into 5 sub-areas, including C1, named “City Centre Core” and C3, named “City Centre Support” – expansion of the shopping centre on C1 proposed by way of a large supermarket and specialty shops to be located entirely on C3 land together with a recently approved discount department store already constructed on C3 – no residential component proposed (although there was a limited potential for minor residential use on the site) – statement of character and performance criterion for “development” in C3 envisaged “an integrated commercial and residential focus” – whether conflict with planning scheme – held that there was no conflict – no requirement that every development proposal incorporate both commercial and residential uses
COUNSEL:
Mr D. R. Gore QC and Mr B. D. Job for the appellant
Mr S. M. Ure for the respondent
Mr G. J. Gibson QC and Mr T. T. Trotter for the co-respondent
SOLICITORS:
Clayton Utz for the appellant
Townsville City Council Legal Services for the respondent
Allens for the co-respondent
This is an appeal against the Council’s decision ultimately incorporated in a Negotiated Decision Notice in February 2012 to approve a development application made by the co-respondent Dexus in November 2010 for a material change of use – extensions to a shopping centre and preliminary approval for building works on land at 13 Hervey Range Road, Thuringowa Central, where the co-respondent owns and operates (but did not develop originally) the large and very successful shopping centre known as The Willows. The appellant, Stockland operates another large, successful shopping centre some 4.5 kilometres to the east which straddles Ross River Road; some time during the appeal hearing, in an expansion on the southern side, Townsville’s first department store (the first in the current era, at least), operated by Myer, opened there. Stockland operates a smaller shopping centre, Stockland Northshore, at approximately double the distance, to the north west. Whatever Stockland’s thoughts on the matter, the economic experts consider that the impacts of the proposed expansion (which they expect to be successful) on the trading of other shopping centres in Townsville will fall within a “normal” competitive range and be acceptable.
The main issue in the appeal is the appropriateness under the applicable City of Thuringowa Planning Scheme of the location of the largest element in the proposed expansion, a new supermarket increasing by some 532 square metres to 4,580 square metres the space available to one of the present supermarket operators in the existing shopping centre (Woolworths) or another operator. There is a smaller Coles supermarket, which was the first to be established at The Willows.
The new structure is proposed for Lot 2 on RP 865794 which has a frontage to Carthew Street and presently accommodates an open ground level parking area serving The Willows. It will be connected to one of the malls, in the familiar arrangement which will require customers visiting the supermarket to walk past speciality stores. Carthew Street runs generally parallel to Hervey Range Road, and is linked by Thuringowa Drive in the east and Kern Brothers Drive in the west; it follows a distinct convex path (from the point of view of the Willows site, whereas the other roads are straight in this location. Dexus owns another, larger parcel to the east of Lot 2 which completes the Carthew Street frontage The Willows enjoys; the western half of that parcel accommodates a Big W discount department store (DDS), the balance being used for car parking. The development application involves yet other Dexus parcels, because the supermarket building proposed to be replaced is to be converted to speciality (maybe “mini-major”) stores and expanded, to boot. Other works are proposed as well, to improve The Willows.
What is special about Lot 2 for the purposes of this appeal is that, like the other Carthew Street parcel, and its western neighbour, Lot 1 on the RP (where a bulky goods outlet and a fitness centre are accommodated on a similarly sized block of land), for town planning purposes it is allocated to the Commercial 3 (City Centre Support) sub-area, as opposed to the Commercial 1 (City Centre Core) sub-area, to which the rest of Dexus’ land is allocated, and where the shopping centre buildings were located, until the approval and construction of the Big W in Commercial 3.
The City of Thuringowa Planning Scheme, which took effect on 20 October 2003, has been at all material times the relevant planning scheme. Map 3.3A depicts the Thuringowa City Centre which is divided into five sub-areas: Commercial 1 (City Centre Core), Commercial 2 (Cannon Park), Commercial 3 (City Centre Support), Commercial 4 (Kirwan Traders Area) and Commercial 5 (City Centre Frame). Commercial 1 straddles Hervey Range Road which is the name taken by Ross River Road, which leads to the Townsville CBD, west of where it intersects with Thuringowa Drive, a major arterial road proceeding north to south. Thuringowa Drive marks the eastern extremity of Commercial 1, Kern Brothers Road the western extremity, except for a curious stub apparently protruding along Canterbury Road. Commercial 2 is entirely south of Hervey Range Road, and borders the Commercial 1 land on that side to the south and west. Along the western boundary of Commercial 2 and the western half of its southern boundary is a separate Commercial 3 area. It will be convenient to refer to the sub-areas in places as C1, C2, C3, C4 or C5.
This swathe of Commercial 3 land is essentially undeveloped, although there are some uses established, such as a facility for Australia Post. Before turning to the other swathe of Commercial 3 which is of concern in the appeal, mention should be made of Commercial 4 which is remote from sub-areas C1, C2 and C3, representing a northern “island” of established commercial development west of Thuringowa Drive, the road which connects it to the rest of Thuringowa City Centre. The land opposite (extending further south to the high school and a little further to the north (all patently small residential parcels, typically with houses on them, a good number of which have gone over to commercial uses) is in Commercial 5 which, at its northern extremity, extends across Thuringowa Drive to accommodate a particular large development. On that western side, south of Commercial 4 (and not within Thuringowa City Centre or any of the commercial areas) are the Thuringowa Council premises. South of them, and south of the high school, Thuringowa Drive becomes Commercial 5 on both sides, but only for the depth of a single parcel (with the exception of a “crescent” feature of C5 opposite the high school containing 5 parcels, 4 of them small). As well as this northern arm, Commercial 5 has an eastern arm comprising Ross River Road proper and 70 or so residential blocks (a few turned to commercial uses) having frontages to the northern side of the road.
While there is private Commercial 5 land across Thuringowa Drive from Commercial 1, there is, self evidently, none west of Thuringowa Drive in that location; nor is there any on the western side south of or having frontage to Carthew Street. Every parcel having partly Carthew Street frontage is in Commercial 3, likewise, as far as the general northern limit, everything having a frontage to Kern Brothers Drive north of Canterbury Drive. Apart from the parcels mentioned, there is a fourth parcel south of Carthew Street but with a frontage only to Thuringowa Drive where a service station operates that comes within Commercial 3. This is not Dexus land. The rear boundaries of all four lots form a continuum running parallel to Carthew Street, extending about a quarter of the distance to Hervey Range Road. They account for rather more of the area of the city block mentioned because Thuringowa Drive and Kern Brothers Drive diverge increasingly as they head north. Uses in this swathe of C3 south of Carthew Street are entirely commercial. The appellant’s planning expert, Mr Motti, reckons the area of this swathe to be 4.7 ha. The two large buildings (the Big W and that on Lot 1) are, of course, commercial.
Of the 25 or so Commercial 3 parcels on the northern side of Carthew Street, which Mr Motti calculated aggregate 1.9 ha,[1] the largest (equivalent to three standard ones) accommodates a church child care centre. The parcel on the corner with Thuringowa Drive, similar in size, with “double” frontage to Carthew Street has commercial buildings (shops and restaurants). Otherwise, the built form is that of dwelling houses. At least three have been turned to commercial uses (whether or not there may be a residential component upstairs): offices at No 54, a cake shop at No 42 and a photographic business at No. 8. To all relevant intents and purposes, the Thuringowa City Centre is surrounded by Residential Planning Area land. Across Thuringowa Road south of Ross River Road lie the extensive open space and recreational attractions of Pioneer Park/Riverway. The relevant residential sub-area is “Traditional”, “intended for development which is predominantly detached dwelling houses on separate lots of an average size of 600 m2.” Indicative that the planning scheme is not without imperfections is that the 25 or so Commercial 3 parcels mentioned are also mapped and accordingly designated Traditional Residential. There is an area of Mixed Residential on the west side of Kern Brothers Drive, north of Canterbury Drive.[2]
[1]He estimates the C3 area west of Kern Brothers Drive to be 1.2 ha, and the whole C3 area south of Hervey Range Road 7.8 ha.
[2]
Mr Gore QC’s written opening for Stockland begins by asserting that the primary issues for determination are whether the proposed expansion of The Willows “would conflict with the Planning Scheme’s intention that land within the Commercial 3 City Centre Support sub-area is for “development that has an integrated commercial and residential focus”, and that the Centre’s dominant commercial focus is within the Commercial 1 (City Centre Core) sub-area; and if so, whether there are sufficient grounds to justify approval despite that conflict.” The other active parties in the appeal submit there is no such conflict. A fall back position is taken that sufficient grounds to justify approval exist.
As well as seven Local Areas, the Planning Scheme establishes five Planning Areas: rural, industrial, centres, open space and recreation (the fourth) and residential. Each Planning Area has a character statement, that for the Centres Planning Area being:
“3.3.1 CHARACTER STATEMENT
(a)At the Commencement Date, premises within the Centres Planning Area consisted of -
(i) development of varying scale and intensity; and
(ii) other development that may be inconsistent with the future intent for the Centres Planning Area described below.
(b) The Centres Planning Area is intended for a mix of Commercial Development that contributes to the amenity and landscape of the Centres Planning Area. In particular –
(i) buildings and structures are sited to protect the amenity of adjoining premises;
(ii) a high level of visual amenity is provided through the design of building, landscaping, Streetscapes and public art that results in a distinctive character;
(iii) the design layout of development is secure, safe and legible; and
(iv) development is adequately serviced by infrastructure.
(c) Public transport, clear pedestrian routes, bikeways, adequate onsite manoeuvring and on and offsite parking are provided to meet the needs of proposed users, customers and employees.
(d) Development, other than Commercial Development, and Residential Development, or development that does not have a nexus with Commercial Development, is inconsistent with the desired outcomes for the Centres Planning Area.
(e) A Centres hierarchy based on convenience, neighbourhood, district and sub-regional functions has been identified. These centres are shown on maps 3.3 and 3.3A – Centres Planning Area: Convenience Centre, Neighbourhood Centre, District Centre and Sub-Regional Centre. In particular –
(i) Convenience Centre are identified in Schedule 3.3. The development of Convenience Centres at these location is consistent with the desired outcomes from the Centres Planning Area.
Convenience Centres –
A. provide for the particular needs of a specifically defined community with high levels of local accessibility.
B. have a maximum 1,000m2 GLA, comprised of Commercial Development and Service Premises; and
C. are designed to be sympathetic to the local environment and Residential Development in such matters as overall scale, building height and boundary treatment, and are consistent with the desired development outcomes for a particular community.
(ii) At the Commencement Date, the identified Neighbourhood Centres are located at Greenwood, Mt View, Parkside and Kirwan North. The development of Neighbourhood Centres at these locations is consistent with the desired outcomes fro the Centres Planning Area.
Neighbourhood Centres –
A. provide for the everyday local shopping and commercial needs of local residents for its immediate population catchment between 3,500 and 6,000 persons and are easily accessible to pedestrians, cyclists and local residential traffic;
B. have a maximum of 8,000m2 GLA, comprised of Commercial Development not exceeding 5,000m2 GLA and Service Premises not exceeding 3,000m2 GLA; and
C. are designed to be sympathetic to adjoining Residential Development in such matters as overall scale, Building Height and boundary treatment.
(iii) The identified District Centres are Upper Ross Shopping Centre and Woodlands Shopping Centre.[3] The establishment of additional District Centres within the life of this Planning Scheme is inconsistent with the desired outcomes for the Centres Planning Area.
[3]The Woodlands Shopping Centre is expected to expand on premises to the south-east of the existing Centre, on premises identified as Commercial Area in the Concept Plan for the Mt Low Deeragun Area as shown in the Urban Growth Boundaries Planning Scheme Policy.
District Centres are intended to cater for the needs of their respective residential catchments.
District Centres –
A. cater for the weekly needs of a population of up to 25,000 persons and act as a Neighbourhood Centre for its immediate population catchment;
B. have a maximum 15,000m2 GLA, comprised of Commercial Development not exceeding 10,000m2 GLA and Service Premises not exceeding 5,000m2 GLA; and
C. are located on arterial roads to prevent non-local traffic entering residential areas.
(iv) The identified Sub-Regional Centres are Mt Low-Deeragun and the Thuringowa City Centre.
The establishment of a Sub-Regional Centre in the Mt Low-Deeragun area is intended beyond the life of this Planning Scheme. This centre will start as a Neighbourhood Centre, progress towards a District Centre and ultimately development into a Sub-Regional Centre.
The Thuringowa City Centre is intended as the primary focus for the City catering for the needs of locals and visitors. This centre is completely integrated, directly linked to Riverway and characterised by five sub-areas that complement each other – the Commercial 1 sub-area; the Commercial 2 sub-area; the Commercial 3 sub-area; the Commercial 4 sub-area; and the Commercial 5 sub-area. These sub-areas are shown on map 3.3A – Thuringowa City Centre and –
A. the commercial 1 (City Centre Core) sub-area is intended for development that has a dominant commercial focus. This sub-area is expected to expand up to 55,0000m2 GLA. The height of buildings and other structures is predominantly 20 metres or less;
B. the Commercial 2 (Cannon Park) sub-area is intended for development that has a dominant recreational and entertainment focus. All development is designed and located to avoid detrimental impacts on Residential Development. The height of building and other structures is predominantly 16 metres or less;
C. the Commercial 3 (City Centre Support) sub-area is intended for development that has an integrated commercial and residential focus. The height of buildings and other structures is predominantly 12 metres or less.
D. the Commercial 4 (Kirwan Traders Area) sub-area is intended for development that is a mix of Commercial Development and Light and Service Industry. Development contains a high level of visual amenity by incorporating design elements recognising the sub-area’s “gateway” location. The height of buildings and other structures is predominantly 10 metres or less; and
E. the Commercial 5 (City Centre Frame) sub-area is intended for development that has an integrated commercial and residential focus. Development in this sub-area is set back from the street, incorporates street furniture and landscaping. The height of buildings or other structures is predominantly 10 metres or less.
(v) Where premises are within both the Centres Planning Area and a Local Area, development of the premises is consistent with the desired development outcomes for the Local Area.”
One of the appellant’s arguments is that the bracketed description of C3 (City Centre Support) shows that sub-area must be and remain subordinate to C1 (City Centre Core). Both sub-areas are part of the City Centre. It should be accepted that C1 is the core or heart, in part given its central location. The context is the Centres Planning Area “intended for a mix of Commercial Development” (3.3.1(b)), where one could expect all development to be commercial or, at least, have a commercial aspect. The primacy of C1 in regard to commercial development, where the commercial focus is to be “dominant”, is expected. My view is that that dominance is a feature to be measured within the C1 sub-area, as opposed to a notion of C1 commercial development dominating commercial development in the five sub-areas generally.[4] The view in no way affects the outcome of this appeal. C1 will be dominant commercially, comprising as it does not only The Willows but also additional development on the western side of Hervey Range Road and the Dexus shopping centre Sunland on the southern side. That effect will be promoted by the generous 20 metre height limit (which the qualifier “predominantly” suggests may be exceeded). The history of development to date shows that effect established.
[4]In the same way, the “dominant focus” in C2 (3.3.1(iv)B) is, in my view one within the C2 sub-area, rather that in the Centre generally (even if the effect might be the same).
I reject suggestions that development in C3 must, when a particular proposal is being considered, in some way be held down to a lower level than C1 might achieve, and a fortiori, any suggestion made that the asserted potential to establish the enlarged supermarket on Dexus’ C1 land is a reason for refusing planning permission to put it on Lot 2 in the C3 sub-area on the basis of conflict with the planning scheme.
Not too much should be made of the bracketed description (City Centre Support). The corresponding descriptions for C2 (Cannon Park), C4 (Kirwan Traders Area) and C5 (City Centre Frame) tell us nothing useful about what development is intended. “Frame” is encountered in many planning schemes to delineate locations surrounding an important central area. The term is not particularly helpful or enlightening here; it was suggested “City Centre Entry” would be better. Included is essentially the northern side of Ross River Road and, for the relevant stretch, both sides of Thuringowa Road, excluding very large parcels turned to other uses, such as the school and the former Thuringowa City Council premises. The characters/intents indicated for the sub-areas are replete with expressions whose meaning is elusive or vague, such as support, integrated, focus and mix, also development. I have found dictionary definitions in the Oxford and Macquarie dictionaries generally less helpful then those that can be found in Webster. Support, as a verb, it tells us, may mean to uphold by aid, countenance or adherence; to provide means, force or strength that is secondary to; to bid in bridge so as to show support for (one’s partner or his suit); to provide a basis for the existence or subsistence of. Synonyms offered include bolster and buttress. One of the meanings of the noun is “a supporting means, agency, medium, proof or reserve”. The notion of a supporting actor is well known and enshrined in the Academy Awards (Oscars) of “leading” and “supporting”. The view might be held that, these days, there is often not much to choose between the categories. The Oxford gives an example of a support group “of musicians taking a subordinate part in a concert”, defining support as:
“f. The provision or availability of services that enable something to fulfil its function or help to keep it operational.
…b. The action of contributing to the success of maintaining the value of something.”
I accept that in planning law, a location that is expressly designated to provide “support” to some other area or for some desired outcome ought not to be allowed to supplant or overtake it: Atkinson v Ipswich City Council [2006] QPELR 550.[5] In my opinion, Dexus’ proposal comes nowhere near doing that. C3 would emerge with the larger supermarket (more or less balanced by the relatively modest Coles one in C1, which may well be suitable for expansion) and the existing Big W DDS, which may be thought balanced by the smaller Target in C1 and some of the specialities. Everything else except for a limited amount of parking, is in C1. In my opinion it is a perfectly natural use of the notion of support to admit the new supermarket, although coming as it does with the existing Big W already in C3. It should not be forgotten that the proposal does include expansion of specialities and introduction of mini-majors, within C1, whose offering is thus strengthened.[6]
[5]There the text of the planning scheme in multiple places assigned development on the relevant site to a “support” function; here there is the bare use of the term in the description of a sub-area.
[6]The appellant asserts that the C3 sub-area alone will become one of the largest shopping centres in Townsville. Its closing submissions in para 57 give figures:
“The combined floor area of the supermarket and the DDS in C3 (13,000m2) exceeds the combined floor space of the supermarket and DDS in C1 (8,737m2) by 4,318m2 – ie the floor space is 50% larger. The total floor space in C3 (15,601m2) is 35% of the total GLA of 44,883m2. This hardly qualifies as “City Centre Support”. It is more like the backbone to the centre. C3 will accommodate the 2 largest individual stores in the entire Thuringowa City Centre.”
The performance criteria in the Centres Planning Area Code specific to the sub-areas (none of which offers any acceptable solution) are:
“P23.Development in the Commercial 1 (City Centre Core) sub-area has a dominant commercial and service focus.
P24.Development in the Commercial 2 (Cannon Park) sub-area has a dominant recreation and entertainment focus.
P25.Development in the Commercial 3 (City Centre Support) sub-area has a integrated commercial and residential focus.
P26.Development in the Commercial 4 (Kirwan Traders) sub-area has a mix of Commercial Development, Service Premises and Light and Service Industry.
P27.Development in the Commercial 5 (City Centre Frame) sub-area is a mix of Commercial Development, Service Premises and Residential Development.”
In view of the change from the wording of the character statements (service uses or premises being added to P23 and P27 and “mix” replacing “focus” in the latter), these performance criteria should be taken to govern, notwithstanding that the Code’s purpose is expressly to ensure consistency of development “with the character of the Centre Planning Area described in the character statement”. Fortunately, P25 picks up in terms the requirement from the Centres hierarchy provision in 3.3.1(e) that in C3 development have “an integrated commercial and residential focus”, so that it hardly matters what part of the planning scheme is the source of the crucial requirement.
The first block of evidence presented in the appeal was that of the architecture and visual amenity experts, being Messrs Sheehan, Howard, O’Brien and Chenoweth. Their joint report revealed the main issue separating the parties. Typical passages are:
“5.1.5GS and GO’B consider that the intention of the Planning Scheme for the Commercial 3 Sub-area is for integration of commercial and residential uses, where commercial development is represented by shops and other uses listed in the Part 7.3 definition, not a shopping centre or an extension to the existing shopping centre. CH and AC disagree and consider that the Commercial 3 intention for “development that has an integrated commercial and residential focus” along Carthew Street can be achieved over time and at broad scale, and does not require that each site on Carthew Street be developed as a mix of commercial and residential development. Rather, they consider this integrated focus would be achieved in the future if residential properties along the northern side of the street continue to be progressively redeveloped with commercial uses, and the existing shopping centre expanded in a way which allowed for future integration along the southern side of the street, as would be achieved by the proposed opportunity illustrated in (see SK-10/1 in Attachment 3). GO’B considers that the word “integrated” in the phrase “development that has an integrated commercial and residential focus” relates to a comprehensively designed and coordinated development in which there is a mixture of uses both horizontally and by storeys. He also considers that it requires a degree of balance in the extent of the uses for example a development of 100 apartments and a “corner” shop of 60m² would not comply with the description. By contrast he considers that in P26 and P27 the expressed desire for a “mix” of development types allows premises designed as standalone developments which rely on the existing subdivision pattern of relatively small lots and the existing roads for their vehicular and pedestrian circulation.
5.1.7Also, CH and AC consider that the terms ‘mix’ and ‘focus’ imply different scales of application, in that the integrated commercial and residential focus required in the Commercial 3 Sub-area by P25 does not require a mix of these two uses on all development sites, while P27 requires a mix of uses on development sites in the Commercial 5 Sub-area. GS and GO’B disagree because the Character Statements for Commercial 3 and Commercial 5 Sub-areas both require an integrated commercial and residential focus, and the difference in terminology more likely reflects the higher proportion of small allotment sizes, road hierarchy and ribbon development in the designated Commercial 5 Sub-area. They consider that the Planning Scheme intention for integration in the Commercial 3 Sub-area requires that some larger development sites (such as those on the subject land) be developed with a mix of residential and commercial uses, notwithstanding that smaller sites (such as those on the northern side of Carthew Street) may not be capable of achieving a mix on each site. While they do not argue that new development on all larger sites needs to behave both commercial and residential development, they consider that development needs to allow for future integration opportunities.
GS and GO’B consider that the Planning Scheme intentions for Carthew Street require that the development site is developed for an integrated mix of residential and commercial uses, and that the proposed development does not achieve this mix nor allow for future integration. CH and AC disagree because the proposed development will not prevent Carthew Street from having an overall integrated residential and commercial focus, and the proposed development will allow sufficient space for future residential development which could reinforce this integration.
Although the exiting Big W site with its largely blank wall facing Carthew Street is unlikely to be redeveloped for integrated commercial / residential development, the existing bulky goods / gymnasium building and the north-eastern carpark corner have some potential for such future redevelopment. Given that the Big W site is unlikely to be redeveloped, and the bulky goods / gymnasium building and the north-eastern carpark are only future possibilities, GO’B considers that the Planning Scheme intentions for the Commercial 3 Sub-area need to be implemented on the proposed development site.”
In his individual report, Exhibit 10, Mr Sheehan wrote:
“I believe that “development that has an integrated commercial and residential focus” is not just that proving a mix of uses on the ground plane on individual sites but is development that requires a higher degree of coordinated design to provide a variety of uses that integrate both vertically and horizontally, within and across the sites and in doing so provide a different character to that of the adjacent shopping centre in Commercial 1 sub-area.”
The contention the appellants rely on is that each development application in the C3 sub-area must include both commercial and residential components. Concessions are offered, which may be alternatives. One is that the requirement only applies to a site that is big enough, although no parcel in the sub-area is so small that the combination would be precluded: in every case there could be a shop downstairs, a residence above. Another is that a proposal for one of the uses must leave a potential of the other one; and that, I infer, must be a potential for the following use not to be too dominated or overshadowed by the first one in light of Mr O’Brien’s view, in accordance with (in which the five townhouse proposal for the setback area of the Lot 2, in SK-10/1 would not qualify). Then, by way of another alternative, it seems to be accepted that whether a development achieves the desired character depends on looking more widely than at the particular site in isolation, to the whole of the southern side of Carthew Street. It is not so clear that we were invited to look at both sides of Carthew Street as an agglomeration, or to bring in Kern Brothers Drive – much less the remote swathe of C3 off to the southwest. The idea is that commercial uses or residential uses are allowed to proliferate until some balancing point is reached, when applications for a commercial use, or a residential one, as the case may be, will be refused. This is likely to be unworkable, also capricious and unjust. Does it mean that a quick favourable decision on a later development application may dictate rejection of an earlier, more meritorious one still to be determined, perhaps because for some reason or other the “decision stage” has not been reached?
Mr Motti espoused the same view of what a development proposal in C3 must include as Messrs Sheehan and O’Brien, but was less disposed to offer concessions. He opines that the co-respondent’s proposal will present commercial development as the dominant focus (which, of course, Lot 2 as a car park for The Willows currently presents) – something “otherwise expected in Commercial 1 (City Centre Core) sub-area”. He regards the proposal as not “an integrated development” (5.2.10), not only for its lack of a residential element, but also because it is out of scale and lacks “connection” with residential elements in Carthew Street and because it intensifies the commercial impact and character. Apropos the element lacking, he adopts the Encarta dictionary meaning of integrated:
“Made up of aspects or parts that work well together … bring together processes or functions that are normally separate.”
I found assistance in Webster’s explanation:
“Characterized by integration: a: composed of separate parts united together to from a more complete, harmonious, or coordinated entity <her tightly plotted, admirably ~ novel – John Barkham> <an ~ series of twenty-six dams – Lamp> b: combining elements usu. Taught in separate academic courses or departments <to establish the behaviour sciences on an ~ footing – J.W.Bennett> <~ courses> c: having in common and equal membership individuals or groups differing in some group characteristic (as race) <Negro units were broken up and reassigned in ~ groups –New Republic> <an ~ school> d: characterized by psychological integration <an ~ personality> e: characterized by close cooperation or partial unity of constituent units <a more closely ~ economic and political system – D.D Eisenhower> <an ~ Europe> <an ~ military staff> f (1): operating economically as a single coordinated physically interconnected unit or system usu. Confined to a specific region <an ~ public utility system> (2): characterized by possession of sources of supply and continuous control of production and often distribution from raw materials to diversified finished products <an~ company…occupies a favored position as compared with a competitor which is at the mercy of the market –Financial World> g of the bar: characterized by the compulsory membership of all lawyers practicing in a specific area (as a state) <the states having an ~ bar have codes of professional ethics enforceable upon all members –Jour. of the Amer. Judicature Society> h: characterized by social solidarity, coherency of form and function, and moral or psychological unity among members <its culture is … more stable and better ~ - A.L.Kroeber> 2: incorporated into a group or organization on the basis of common and equal membership despite differing characteristics (as race) <most Indians are ~ with the other residents –W.R.Moore> <Negroes … have long been ~ in the police department –Gladwin Hill>.” (Italics added)
In my opinion in the present context integration is an absence of segregation or an absence of separation on the basis of some rule or compelling factor operating to preclude integration. Thus, a school may be “integrated” though from time to time it has no students from a particular category, if it is available and willing to accept them. An example of such a rule may be found in s 15(8) of the Integrated Resort Development Act1987 (originally s 19(6)):
“A person must not use land, or a building or other structure, within a precinct for a use that is not a use specified in the approved scheme as a permitted use in relation to the precinct.”
“Development” here is used in a couple of senses, often at the same time; one is the content of a particular development proposal under consideration contemplating some action being taken to carry out development (this being the indicated meaning based on legislation), the other the overall state of development achieved in the relevant geographical area (or likely to be achieved as a result of the new “development”). The C3 sub-area presently contains a particular balance of commercial development (including the car park on Lot 2) and residential development. The planning arrangements are accepting of what exists (with a reservation concerning “inconsistent” existing development) and welcoming of applications for more or new development in either category. In my opinion it offends our “free enterprise” system to dictate to developers in such a context which of the two types of use they may or may not propose for their sites. If the planning scheme favours either, in my view it is “Commercial Development” (defined to “include” all of “Bottle Shop, Fast Food Store, Local Shop, Market, Medical Centre, Restaurant, Shop and Showroom”). See 3.3.1(b). P21 Residential Development in (a) imposes a higher obligation on development in that category to integrate Commercial Development than does P25 on commercial development. I agree with the Council’s planner, Ms Kalnins, and Mr Schomburgk that P21 indicates what is expected if a developer wants to propose residential development in C3. It does not require (nor does P25) that residential development be proposed at all in any particular development application.
Confirmation that it could not have been intended that every development proposal in C3 must comprise both commercial and residential components comes from considering corresponding performance criteria in other sub-areas, particularly C4, Kirwan Traders and C5, City Centre Frame, where development is to be a “mix” of no less than three defined uses (“development terms”). The land parcels are modest in size, traditional residential or smaller, so that without amalgamations (which the planning scheme does not call for), a “mix” would rarely be feasible in practice. It was accepted, by Mr Gore at least, that there was no distinction able to be made between a mix of uses and an integrated focus involving them. My view is that a development for any one of the listed uses alone is acceptable, provided that in its particular situation it does not preclude developments for the other(s) listed, indeed provided there is compatibility.
The acceptance of residential uses in C3 and also in C5 may be by way of acknowledgment that they are already there and should be permitted to persist and, if there is demand, expand. Commercial and residential developments/uses are expected to be compatible and operate harmoniously together – which I take to be the point of references to integration. That commercial development might prevail in C3, being an area “in transition” was the message of Urbis in their report accompanying the development application. This material was not presented as expert evidence, but it does contain a helpful explanation and justification of the proposal:
· “The proposal is an extension of an existing commercial development already located within the Commercial 3 sub-area comprising the Big W store and centre car parking. The aspect of the proposed development that will be located within the Commercial 3 sub-area is the proposed supermarket tenancy, which will be situated upon land already used for car parking for the centre. Whilst the proposal is to replace centre car parking with built form and roof top car parking, ultimately this does not alter the already established character of this land parcel as commercial development.
· The Commercial 3 sub-area is an area in transition. Land to the south of Carthew Street already exhibits a retail/commercial focus through the previous extension to the shopping centre, approved in 2007, which introduced retail development to this area. The land to the northwest of the site already has an established commercial function as a gym/bulky goods use. These uses have already strengthened the retail/commercial function of the part of the Commercial 3 sub-area that adjoins the Commercial 1 sub-area. The proposed development will complement the character of this area and acts as a logical expansion of the Commercial 1 sub-area. Consolidation of development to the south of Carthew Street will be achieved through the development of the one remaining Lot within the Commercial 3 sub-area with built form of a commercial nature. It is considered that Carthew Street forms a more logical boundary between the Commercial 1 and Commercial 3 sub-areas.
· The part of Commercial 3 sub-area to the north of Carthew Street has a more residential focus, although, this is also an area in transition and is experiencing some changes by way of more integrated commercial uses.
· An important aspect of integration of the commercial and the residential uses is the design of the proposed development along Carthew Street. The proposed maximum height of the development is 9.33 metres where there is mechanical plant and 8.33 metres for the majority of the building, which is below the proposed 12 metre height limit for this sub-area. Whilst the bulk and scale of the building are of significant proportions, the design of the Carthew Street elevation is such that the built form is broken up with architectural elements, glazing and the active edge feature softening the built form and appearance and contributing positively to the streetscape. The proposed soft landscape zone introduces a human sale and functional activity through the pedestrian trail to this part of the development. The landscape treatment proposed also enhances the streetscape and provides a well designed transition.
· The intent of Commercial 3 sub-area is to establish an integrated commercial and residential focus. The proposed development consolidates the southern part of the Commercial 3 sub-area as having a commercial focus. The proposed development provides a logical transition form commercial use on the south of Carthew Street to residential/commercial use on the north of Carthew Street. Together, these uses achieve the integrated commercial and residential focus.”
(Exhibit 16, Vol 2, p 146; see also p 267).
The appellant relies on the above and similar statements by Urbis as confirmation that Dexus is bent on treating C3 as if it were C1.
The foregoing “dot points” conveniently reiterate the views of experts relied on by Dexus which the Court accepts. As well as transition over time in the uses and built form in Carthew Street, the locality is one of transition in another sense, one used by Mr Gibson QC, for Dexus. The drafters of the 2003 Planning Scheme had to map out a planning regime for the parcels of land with Carthew Street frontages. To the south was the well-established Willows Shopping Centre and a good deal of other similar development extending to and beyond Hervey Range Road: Fast food outlets, the Sunland Shopping Centre, etc. To the north was extensive well-established “traditional residential” development. Rather than adopt the street as a planning boundary, commercial to the south, residential to the north, the drafters opted to set boundaries at the conveniently neat continuum of the rear alignments of the parcels with street frontages, rather than follow a philosophy of having different planning areas on different sides of the street. Thus the C3 area came about. The height limits represent a true transition between C1 and traditional residential. Residents further north will be concerned with the transition from development on the northern side of Carthew Street in their direction, rather than anything that happens on the southern side.
Apart from the appellant and the companies operating another shopping centre, there was only one submission received by the Council from a resident directly across Carthew Street from the proposed new supermarket (whose neighbour is the cake shop):
“We have occupied the address of 40 Carthew Street for the past 30 years and have watched and enjoyed the convenience of the developments in our area.
Since the last redevelopment was completed at the shopping centre there has been a major increase in noise including throughout the night with trucks, sweepers, blowers and alarms constantly on the go.
This has severely impacted on the lifestyle of residence [sic] along Carthew Street, the latest proposal gives no consideration to the residence and will impact even further with another loading dock proposed.
This proposal will block what views we have left and a considerable amount of the breeze which we receive from this direction, there has been no consideration given to the residence that have been here long before the shopping centre was established.
There are a number of sites around the shopping centre that would be suitable for development without impacting on the residence of Carthew Street.
I would like to lodge my objection to the proposal and believe there is sufficient vacant land around the shopping centre that would be suitable without impacting on the residence of Carthew Street.”
The court notes those concerns, which for the most part are reflected in evidence adduced by the appellant, but it is an unfortunate reality that has to be confronted by residents and users of areas “in transition” that planning schemes get amended in ways that permit in close proximity to them development that may be uncongenial. The large supermarket box proposed for Lot 2 may have some of the effects complained of; so would a proposal of similar bulk accommodating residential units above shops. On the other hand, there may be improvements, for example the combination of two enclosed loading docks in a “keyhole” configuration with a single relatively narrow gate from Carthew Street which will often be closed, with heavy vehicle movements taking place behind. The visual presentation of the gate and the new 75 metre long supermarket back wall will be of unprecedentedly high quality, thanks to articulation, varying finishes, a panel offering public art (it depicts a cyclist and pedestrians in motion) across the adjacent driveway is a (tall free-standing “bolt of lightning” sculptural feature) and screening trees, located in an unusually generous landscaped setback. There are even windows overlooking the street at the mezzanine level of the supermarket building. The architecture and visual amenity experts (including the appellant’s) could not call to mind anything better. I accept that a consultation process established that local people were against “active” uses, such as a basketball court, in the setback. The appellant’s calculation (closing submissions, para 45) is that the proposal will result in “a total length of blank walls facing the Street of 340 metres, including the gymnasium building, the Woolworths box, the loading dock and the Big W box”, asserting that this is incompatible with residential (indeed with commercial) character. It is inescapable that the proposal (which does not exploit to the maximum the height available) will improve amenity, doing away with an uninspiring, characterless open car park. Size alone, or length of walls in particular, does not disqualify a development proposal, if sensitively done, as the appellant established in Bird v Logan City Council [2011] QPEC 145; [2012] QPELR 582, at [24] and [67].
As suggested already, “development” is used with various shades of meaning in the planning scheme in provisions set out in these reasons. One is to pick up the existing development that had occurred by the time when the planning scheme commenced. A second is to describe in a collective way the development that might occur next, that is once the planning scheme came into effect; another sense aggregates this with the “existing development”. Yet another may be to describe the development proposed by a particular development application, which is the sense most coinciding with “development” in the Integrated Planning Act 1997 (IPA) s 1.3.2 and now in the Sustainable Planning Act 2009 (SPA) s 7. I consider it untenable to apply this last interpretation in a way that would require every development proposal in C3 to include both residential and commercial components. The latter are, it seems, less regulated; at the most strict, development in the commercial category must contribute to an integrated commercial and residential focus in its locality. Under P21 “Residential Development” in the sub-area must “integrate[…] with Commercial Development”, the capitalised expressions being defined terms; in my opinion this creates a requirement of a proposal for residential development: absent integration internally (which may well be the expectation), the proposal must surely integrate with nearby existing or anticipated Commercial Development. For purposes of P25, the “focus” in my opinion is assessed by looking at the pattern of development in the relevant locality, not limited to the developer’s site alone. P25 is satisfied if commercial uses (not necessarily restricted to Commercial Development as defined) and the residential ones are both represented.
“Focus” has been defined by Webster as a centre of activity or attraction or one drawing the greatest attention and interest or “a point of concentration”. The Macquarie says “a central point, as of attraction, attention or activity”. Arguably it is odd to have a double or combined focus, but that may be what is desired. It is attained if both kinds of development are in evidence, as they are in Carthew Street, to the exclusion of others. I can see no reason why the two sides of the street should be required to be considered separately, anymore than the eastern and western ends should. My impression is that the curve of Carthew Street (which is convex towards the north) serves to focus the attention of those traversing it upon the northern side, which overwhelmingly features detached residences, most of two storeys set well back from the street and, typically, elevated above it, given the (natural or artificial) ground level where buildings are.
For the moment, if one counts them up, the number of separate residential uses or structures would exceed that of commercial ones, with or without the proposal. It is unnecessary at this time to say whether there is any point at which the “integrated focus” disappears, so that some owners may find their sites rendered sterile if unwilling to propound a development proposal in the “endangered” category – alternatively wait in hope that another developer will step in and re-establish the threatened species. Such reflections suggest to me that the planning scheme could not have been intended to have effects of that kind.
Although Mr Motti appeared to express reservations, I would consider that P25 must be given the same effect in the C3 area south of Hervey Range Road as in the southern portion in Carthew Street and was very impressed by Ms Kalnins’ point that the planning scheme ought to be construed in the context of Thuringowa and that it could not have been intended that in that part of C3 abutting the Conlan light industry and services area, development for a showroom, say, must include a residential component, given that in light industry applications for a material change of use for the following uses are code assessable (indicating consistent development, as opposed to inconsistent), rather than impact assessable:
“- brothel; or
- car wash / cleaning station; or
- caretaker’s residence; or
- estate sales office; or
- funeral parlour; or
- garden centre; or
- landscape supplies; or
- light and service industry; or
- local shop; or
- produce store; or
- sales or hire yard; or
- service station; or
- showroom; or
- storage yard; or
- telecommunications facility; or
- timber yard; or
- veterinary hospital.”
Integrated
The Integrated Planning Act has many references to integration and variants, which do not suggest that the concept is one of combining disparate elements together to form something different from what they might otherwise be. The long title tells us that the Act is “for a framework to integrate planning and development assessment” – which one would think are necessarily or should be separate things. They are simply being dealt with together in a single Act hundreds of pages long. Section 1.2.1 includes a purpose of integrated planning at local, regional and State levels; local government planning schemes are vetted to ensure integration of various “matters”, including “core matters” (s 2.1.3(1)(a)) again. Section 3.1.1 identifies IDAS as a system for integrating State and local government assessment and approval processes for development – which to an extent has been achieved by the system of referral agencies. Integration of factors that may tend in different directions is important in achieving ecological sustainability by balancing them (s 1.3.3). The factors can be summarised as environmental protection, economic development and maintaining “the cultural, economic, physical and social wellbeing of people and communities”, the last of which requires provision of “integrated networks of pleasant and safe public areas [etc]”. The SPA continues with much of this: see s 3(c), s 11(c)(iii), s 88(1)(d), also s 131, referring to “integrated land use and infrastructure planning”.
The Thuringowa Planning Scheme begins with a declaration that it has been prepared in accordance with IPA. Underlying all of this and pertinent to understanding the Planning Scheme in my view is a concept of integration as avoidance of separation of matters, processes, uses or things that can advantageously be brought or kept together. I do not think that it requires anything like some homogenous combination or amalgamation of them. My view is that the intended character of C3 “can be achieved over time and at a broad level”, to seize on a statement in the joint report. This aligns with understanding “development” in P25 to denote (and admit consideration of) that pattern of development which will exist in the relevant locality if the particular development proposal under consideration is implemented. It is unsurprising that the planning scheme uses “development” in different senses. If one turns to the legislation, one finds that the very first use of “development” in SPA after the definition in s 7 carries a different meaning: see s 8(b) referring to “economic development”. The IPA provisions are s 1.3.2 and s 1.3.3(b).
The character statement intends the C3 sub-area for development having an “integrated commercial and residential focus”. Exactly the same (with a lower height limit and a set back requirement) is sought in C5. In C4 a “mix” of two types of development is sought. Only in C2 is there an explicit requirement to avoid detrimental impacts on Residential Development.
The appellant’s argument is that in the C3 sub-area, development proposals for any particular site must include both commercial and residential components to provide the integrated focus sought. Some refinement of that has to be made in acknowledgment of the preponderance of very small lots for which combined proposals may well be impracticable, notwithstanding that they are possible. There is no warrant in the planning scheme for any such gloss. It would have been a simple matter to single out the class of larger lots. Although Mr Gore kept his options open, it did not appear to be argued seriously that the development immediately east of Lot 2 (Big W) should not have been approved as it was in February 2008[7] under the current scheme along with the commercial use of Lot 2 as shopping centre parking and access. The “gymnasium” development immediately to the west was said to have been approved under an earlier planning scheme. But it was argued that the neighbouring sites having gone to commercial exclusively stood in the way of Lot 2 going the same way, that it would put an end to prospects of a commercial and residential focus on the south side of Carthew Street. The idea seems to be that no development should occur in the car park area unless it has a residential component.
[7]The court was told that Stockland appealed against the approval, but that its appeal was withdrawn.
Some time was devoted to exploring whether residential development could feasibly occur on Lot 2, rudimentary drawings showing how a group of five townhouses facing Carthew Street could be provided nestling against the setback rear wall of the new supermarket. The traffic experts share concerns about the multiple driveways proposed close to a busy shopping centre car park entrance. The expectation is that there could be a rationalisation reducing the direct links to Carthew Street to one.
Another issue might be whether the townhouses could be accommodated if the requirement of P21(f) of the Code that Residential Development be “located above ground level” means that it be at first floor level or higher. Mr Sheehan thought that what was intended was residential development above commercial (shops). He provided the court with examples of recent developments of unit accommodation above commercial uses in locations such as Fortitude Valley in Brisbane and Gold Coast (Varsity Lakes in particular). One wonders whether this part of Townsville is ready for growth in that style of residential living. My impression is that, historically, living above a shop was not considered particularly desirable (unless one owned the shop). Mr Sheehan’s examples confirm that this is changing. The economic experts were not given an opportunity to say whether that is likely to be the case in the foreseeable future in Townsville/Thuringowa. The Planning Scheme does not define “ground level”. It uses the expression at times to denote the level at which the ground is, at other times to denote habitable or useable space above the level of the ground, so that “above ground level” would mean above ground floor level, i.e. at first floor level or higher. It is unnecessary to resolve such issues, it being sufficient to say that I am satisfied that, if it became necessary or desirable to provide some residential development on Lot 2 alongside the supermarket, that could happen.[8] It is also the case that east of the Big W, on the balance of Carthew Street frontage, Dexus could, if so minded, and granted planning permission, establish more townhouses, 13 according to the “concept” illustrated in SK10. If the SK10 scenario eventuated, at 18, the number of dwelling units south of Carthew Street would rival that to the north. All that it is necessary to say at this stage is that Dexus’ proposal does not preclude residential development on Dexus land within C3. There is the possibility that Lot 1 may be developed for residences, if that is what the market wanted. It has to be said that the quality of residential amenity in Carthew Street and the whole of C5 is extremely poor, given the volumes of traffic using the roads and the (obviously) quickening intrusion of commercial uses. (It would appear that, to satisfy the traffic experts, driveway arrangements for the eastern 13 townhouses would have to be revised.)
[8]The evidence establishes that arrangements could be made to cancel the drainage easement along the Lot 2’s Carthew Street frontage, which to an extent dictates the generous setback there while it exists. The purpose of the easement is to drain The Willows; this could be achieved in other ways.
A better site for the larger supermarket?
The appellant contends that there is no necessity for the new supermarket to be located on the present Lot 2 car park or in the C3 sub-area at all, because it can appropriately and feasibly be located in the area of another car park on C1 land between the large enclosed agglomeration that is The Willows and Kern Brothers Drive. There may be a couple of implications, one being that the use of C3, far from being its intended role of providing “support” for C1, the “core”, is supplanting C1 by taking over its function. Another implication is that “need” for the proposal is not available as grounds for overlooking conflict with the planning scheme for purposes of s 3.5.14(2)(b) of IPA. (The first implication owed much to retail economists’ concept of “core retail”, which would encompass any DDS or large supermarket, as Mr Schomburgk agreed – so too did Dexus’ spokesman Mr Dodds. However, this concept, in my opinion, is not part of the notion of “core” in the description of the C1 sub-area. I think that it is a recognition of the centrality of C1 as a matter of geography from which certain consequences by way of “higher” development may ensue in practice, although the planning scheme does not require or otherwise provide for them than by height stipulations, etc. (Only in C1 is a shopping centre a code assessable use.)
I am inclined to agree with the principle of that second implication. If it is established that the community need for the new supermarket facility could be met as effectively without locating it on the site where the planning scheme does not want it to be, why is it necessary to accept the conflict? Why should Dexus’ preference, no doubt its rational response to multiple considerations, be given effect? They would come down to matters of private economics. One consideration is that Target has special rights over that area of car park, which it is reluctant to waive, to allow development there. It seems reasonable to expect a more accommodating attitude from Target if the development was to bring in a K-Mart, the two enterprises being in common ownership.
It is enough to say that while Mr Sheehan’s alternative plan may be feasible, if Target can be accommodated, in the sense that it could be made to work with sufficient determination, it is shown to be very much second best. It would generate new traffic conflicts and pedestrian safety issues within the site, effectively require an extra loading dock accessed from Kern Brothers Drive, by abandoning the shared “keyhole” one in Carthew Street; it would compromise the effectiveness of the shopping centre malls, said to require “majors” at the end of them, to draw customer traffic past other traders, by isolating some speciality tenancies. It is not necessary for the court to resolve the grounds issue by deciding whether the community need (which the economists accept exists) can be held to be satisfied, albeit in a clearly inferior way, given its view that the proposal under consideration does not conflict with the planning scheme.
Precluding community involvement
Both the IPA in s 1.2.3(1)(f) and the SPA (which governs the present development application) in s 5(1)(g) identify as one of their purposes “providing opportunities for community involvement in decision making”; the obligation upon entities (such as the Council or the court) exercising any function or power under the legislation to do so in a way that advances the legislation’s purpose under s 1.2.2 or s 4 respectively should be borne in mind. By sub-section (2) (in each case) the obligation does not apply to code assessment. Stockland says that Dexus may develop (if it does not already have) a plan to shut the public out of having a say about a proposal to expand The Willows further by establishing another discount department store on C1 land to the west of the existing Woolworths Supermarket (which the proposal under consideration by the court will see turned to other uses) that is presently used as a car park. This may be as large as 10,000m2. Dexus envisages that it would accommodate a K-Mart. Implementing that proposal would involve exceedence of the cap or quasi-cap of 55,000m2 GLA for C1 referred to in 3.3.1(e)(iv)A and other places such as P1 in the Code (Acceptable Solution A1(d)).[9] The argument is that the “K Mart” proposal would be code assessable in C1 as a material change of use for a “Shopping Centre”. The two part category is:
[9]The planning scheme does not indicate that exceeding the “cap” makes a proposal unacceptable, as Mr Gibson QC (for Dexus) point out: it only renders a development application impact assessable.
“· Material Change of Use of premises –
- where development does not cause an existing or an approved Sub-Regional Centre identified in Schedule 3.3 to exceed the GLA as identified for that Sub-Regional Centre in Schedule 3.3; or
- Shopping Centre,
AND where the premises are NOT –
- of High Cultural Heritage Significance
(maps 5.1A, 5.1B and Schedule 5.1); or
- in an Of Concern Regional Ecosystems (map5.2)”
(This is from Schedule 3.3.2 Table of Assessment)
Dexus has already flagged its thinking in this regard in 2007 and applied for a preliminary approval based on Willows Shopping Town example master plans (Exhibit 27, pp 1 and 2) depicting the new supermarket essentially in the same location and another “big box” roughly in the location of the putative K-Mart in the existing car park accessed directly from Kern Brothers Drive. The appellant contends that if Dexus should apply for further expansion on C1 in future, say to incorporate a third discount store, the public (including it) will be denied the opportunity to be informed of the proposal and to make submissions, if so advised. Particular emphasis was placed on the economic experts (who considered the effect of the larger supermarket and 13 new specialty stores proposed wholly or partially for C3 on other shopping centres in Townsville, judging it acceptable) having no opportunity to consider the cumulative economic effects of the present proposal and a 10,000 m2 DDS in The Willows coming within the 55,000 m2 “cap”. There may well have been such an opportunity offered the public during public notification of the application made in 2007 under s 3.1.6 of IPA to increase the size of The Willows to something like 82,000 m2 GLA, which public notification occurred in July 2011, the court was told.
From the point of view of facilitating or keeping the way open for public participation, the circumstances may be seen as more concerning than those considered in Brisbane City Council v Cunningham (2001) 115 LGERA 326, in which the Court of Appeal set aside a declaration in this Court that a planning approval was ultra vires because the “Pioneer principle” had been infringed. The Eastern Suburbs Leagues Club made separate development applications to the Council, one for redevelopment of a swimming pool complex on a site adjoining that of its Club premises which had recently been acquired and an application for redevelopment of the Club. There was adjacent to both other land which the Club intended to use for parking to service the expanded club house. The Council imposed on the pool application a condition that this parking area be made available for patrons of the pool. Whereas the club application was impact assessable (and Mr Cunningham and others had made submissions), the pool application involved a permitted use such that the Council’s entitlement was to impose conditions and that the public had no entitlement to make submissions. Mr Cunningham’s residence adjoined the car parking area. He contended that the impact assessable application ought to have been dealt with first, so that the public could have a say.
The Club application remained undetermined, but there was concern that “the history of the Pool Redevelopment Application, in particular the incorporation of the car parking and the approved access to the club premises, could be thought to give rise to legitimate expectations by the Club in the other application, and compromise the Council’s consideration of it, and of relevant submissions”: Cunningham v Brisbane City Council [2000] QPELR 600 at [26]. Notations on the plan clearly identify the “adjoining Eastern Suburbs League Club” as what is referred to in “entry to Club” (ibid) [12]. Certain “overall plans” prepared by consultants showed the Pool Redevelopment Site (including car parking area) as providing access between the Club and Wilpunda Street. Thomas JA, for the Court of Appeal said at 329-30:
“7.The club redevelopment application is for adding of a food court, gaming space and additional bar areas. As earlier indicated, it also requests approval be given to the use of the carpark area south of the swimming pool for club purposes. The evidence shows that the club does not intend to use the carpark which has been approved as part of the pool redevelopment for any purpose unassociated with pool redevelopment unless and until the council gives approval for such use. Indeed, it could not lawfully do so.
8.Any rational analysis of the evidence shows that the club’s desire for eventual double usage of part of the pool carpark has never been concealed. Whether or not one characterises separate projects which overlap in one respect only as a grandiose scheme does not in the end matter. There is one point of overlap, and that is the circumstance upon which it must be decided whether the Pioneer case mandates a single application in respect of both matters.
9.The respective applications are for different uses and are subject to entirely different streams of advertisement, objection and determination under the City of Brisbane Town Plan. The use the subject of the swimming pool application was ‘outdoor sport and recreation”. The use of the subject of the club application was that of “licensed club”. The pool application is described as a “code assessable” application, and as earlier indicated could not be refused by the council, although conditions could be and were imposed. Members of the public have no rights of appeal against the approval of such an application. The club application is described as an “impact assessable” application, that is to say it requires an impact assessment study to be provided. Public notification is necessary, and members of the public have rights of objection and appeal. …
16.If there is some long-term desire on the part of the club to solve its parking problems through usage of this particular carpark, it will be necessary for it to satisfy the council that this is an appropriate use in relation to the club application. The application for that particular use might be refused or it might be made subject to conditions. It is not as if the making of these two applications has deprived Mr Cunningham of the opportunity of objecting to such a usage. The club exposed its intention and Mr Cunningham has in fact objected. If he or any other objector does not agree with the council’s decision he may appeal. The approval of the car parking area for car parking for pool patrons, which is ancillary to the pool use, in no way makes it difficult for the council to forbid use of that area by club patrons, ancillary to the club use, if the council is minded not to approve the use of that car parking area for club purposes. In my view the club has not breached any town planning requirement and the making of two separate applications in the circumstances of the present case does not fall within any principle expressed in Pioneer Concrete.
17.In the present case the essential separateness of the applications is emphasised by the two regimes that are in place for dealing with them. Whilst it would have been theoretically possible for both applications to be combined, separate parts of that application would then have had to have been separately advertised and separately dealt with. In substance the pool application would have to be granted, and the club application would have to be decided after taking due account of objections. I am at a loss to know what Mr Cunningham has lost by reason of the bringing by the club of the two applications in the manner chosen.”
This represents a clear warning against proceeding on the basis of some presumed (or even admitted) “grandiose plan” by a developer to deprive it of its prima facie entitlement to have a particular development application dealt with on its merits, without reference to other development applications about or affecting the site that may, exist, have existed or come into existence in the future. In any of those situations, the other development application(s) will be dealt with on their merits according to law. If it is the case that Dexus can make a code assessable application for a discount department store in C1, the present situation is worse for any person like Stockland who might wish but would have no right to make a submission in opposition than was Mr Cunningham’s situation. He survived to fight another day against what he thought the menace of a car park for patrons of Eastern Suburbs Leagues Club immediately across his back fence. What I take from his case is that, where a developer pursues “properly made” applications, it is wrong for the court to seek to create opportunities that would not otherwise arise for community involvement in the decision making process by associating the proposal with another one the developer might pursue in respect of which there would be entitlement to make submissions. It might be noted that s 3.5.5(2)(d) of IPA requires regard to be had to existing development “approvals”, not applications or proposals. The planning experts all accepted that the 2007 application is presently irrelevant. I agree with Mr Gore, who describes Dexus as keeping a spare 10,000m2 of “Code Assessable GLA in its back pocket” (with the consequence that the public would have no say in a code assessable application for the material change of use) that there would be potential implications of the exclusion if the court were called on to consider the sufficient grounds issue on the basis there is conflict between the current proposal and the planning scheme. A countervailing consideration against finding sufficient “grounds” established would be this exclusion of the public.
Conclusion
It is not for the appellant to persuade the court that its appeal should be allowed and the development application refused. Rather, it is for the co-respondent developer to persuade the court that the appeal should be dismissed. Nonetheless, in a typical appeal in the court, the submitter appellant identifies the relevant issues and important points for consideration. It is convenient to set out the closing submission regarding asserted conflict with the planning scheme of the proposal, which, if established, would mandate refusal of the application in the absence of sufficient grounds (of public interest) to justify approval notwithstanding:
“42.Notwithstanding Dexus’ refusal to acknowledge it, conflict between the proposal and the Planning Scheme’s intention for C3 is obvious. In particular:
(a) the development is entirely commercial, and turns its back on the street;
(b) there is a complete absence of any residential component in the proposal, or elsewhere on the southern side of Carthew Street;
(c) there is no physical integration, with the existing residential uses on the northern side of Carthew Street;
(d) development on the northern and southern sides of Carthew Street is quite separate, and the 2 do not combine in any focused way.
43.
It cannot be sensibly argued that the proposal represents “development that has an integrated commercial and residential focus”.
44.
In fact, it was no part of the project architect’s brief to incorporate any residential component. Instead, Dexus’ planning consultants suggested that the integration which the Planning Scheme required for C3 could be provided by purely commercial development to the south of the street and residential to the north. They had ignored the clear identification of the sub-areas by the Planning Scheme, and approached the application on the basis that Carthew Street forms “a more logical boundary” between C1 and C3. It was not surprising therefore, that the architect, Mr Howard, agreed that the proposal has the effect of consolidating a commercial focus in the southern part of C3.
45.It is clear that the Planning Scheme does not contemplate the centre turning its back on Carthew Street with a total length of blank walls facing the Street of 340 metres including the gymnasium building, the Woolworths box, the loading dock, and the Big W box.”
The contentions in para 42 are valid, with the exception of the last part of (a). The co-respondent developer easily establishes that its proposal is respectful of the streetscape and the residential uses opposite in a way that its neighbours are not; it will markedly improve the streetscape in a way that is exceptional in a “big box” development. Point 43 is founded on the proposition that a particular development proposal in C3 must have a residential focus. That proposition is rejected. The whole point of the Thuringowa City Centre is that it be commercial. It is not a City Centre of the kind that contains a town hall and such facilities. Indeed, uses other than commercial (including residential) are let in on sufferance.
Dexus has established convincingly that there is no conflict with the planning scheme. It is therefore appropriate that its development application (incorporating changes identified at the beginning of the appeal hearing which were accepted to represent minor or permissible changes that did not stand in the way of determination of the appeal on the basis of incorporation of them) should be approved.
If the conflict asserted had existed, being the absence of a residential component from the proposal, although it may be considered a close question, my judgment is that sufficient grounds are shown to warrant approval under s 326. The sub-regional centre of Thuringowa City Centre is ideally located to serve a large and growing population, probably the principal one in Greater Townsville in both respects. There is no planning instrument in effect (or imminent) that would require it to be held back to ensure that other centres attain, or retain pre-eminence. The Willows is central here, as a large, successful shopping centre under a single roof, and Lot 2 represents a logical extension, arguably necessary, of the C1 sub-area. Expansion of The Willows is self-evidently in the public interest. While the experts do not expect much by way of new kinds of retail ventures, replication of established branded outlets inarguably adds to convenience for the local population.
The appeal should be dismissed.
The character statement for the Residential Planning Area (3.5.1) provides that:
“(f) Three sub-areas are identifies for the Residential Planning Area: the Traditional Residential sub-area; the Mixed Residential sub-area and the Park Residential sub-area. These sub-areas are shown on maps 3.5 - 3.5C and -
the Traditional Residential sub-area is intended for development which is predominately detached Dwelling Houses, on separate lots of an average sixe of 600m² or density of 12 - 15 Dwelling Houses per hectare;the Mixed Residential sub-area is intended for development which is predominately for higher density Residential Development on lots with an average size of 800m² or density of 40 Dwelling Units per hectare. Where the Mixed Residential sub-area frames a Centre, the relationship between the Residential Development and Commercial Development is integrated by the provision of areas that have a pedestrian and community focus; and …”
The troublesome word “focus” makes an appearance.