Stockwell Development Group Pty Ltd v Bundaberg Regional Council
[2024] QPEC 44
•25 October 2024
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Stockwell Development Group Pty Ltd v Bundaberg Regional Council & Anor [2024] QPEC 44
PARTIES:
STOCKWELL DEVELOPMENT GROUP PTY LTD (ACN 149 899 856)
(appellant)v
BUNDABERG REGIONAL COUNCIL
(respondent)And
BLUEPOINT BARGARA PTY LTD (ACN 168 479 409)
(co-respondent)FILE NO/S:
3009 of 2023
DIVISION:
Planning and Environment
PROCEEDING:
Submitter appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
25 October 2024
DELIVERED AT:
Brisbane
HEARING DATE:
28 August, 2, 3, 4, 5 & 6 September 2024
JUDGE:
Williamson KC DCJ
ORDER:
THE APPEAL WILL BE MENTIONED ON FRIDAY, 1 NOVEMBER 2024 FOR THE PURPOSES OF MAKING FINAL ORDERS THAT REFLECT THE FOLLOWING:
1. THE APPEAL IS ALLOWED IN PART.
2. THE CO-RESPONDENT’S DEVELOPMENT APPLICATION IS APPROVED.
3. THE APPROVAL BE GRANTED SUBJECT TO THE CONDITIONS CONTAINED IN THE RESPONDENT’S NEGOTIATED DECISION NOTICE DATED 11 SEPTEMBER 2023, SAVE FOR THE FINAL BULLET POINT OF CONDITION 4, WHICH IS TO BE DELETED.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – where submitter appeal by a commercial competitor against the respondent’s decision to approve a supermarket based shopping centre in the Local centre zone – where a major full-line supermarket is anticipated in the Local centre zone subject to the demonstration of need – where the economic need experts agreed a need is demonstrated for a major full-line supermarket to serve an identified trade area – where the proposed development is included in the identified trade area – where the proposed development can be conditioned to meet the identified need absent unacceptable impacts on amenity – whether the proposed development will adversely impact on the respondent’s forward planning policy articulated in its planning scheme about an activity centre network servicing the Bundaberg region – whether impacts from the proposed development on specific centres in the network gives rise to non-compliance with the planning scheme – whether the proposed full-line supermarket is more appropriately located at the appellant’s shopping centre – whether there are relevant matters that call for approval or refusal of the co-respondent’s development application – whether the planning discretion should be exercised in favour of approval or refusal.
CASES:
Abeleda v Brisbane City Council (2020) 6 QR 441
Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
Fabcot Pty Ltd v Ipswich City Council& Anor [2022] QPEC 11
Fitzgibbons Hotel Pty Ltd & Ors v Logan City Council & Anor [1997] QPELR 208
I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36
Wilhelm v Logan City Council & Ors [2021] QPELR 1321Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309
LEGISLATION:
Planning Act 2016, ss 45, 59 and 60
Planning and Environment Court Act 2016, ss 43, 45 and 46Planning Regulation 2017, s 31
COUNSEL:
Mr G Gibson KC with Mr J Lyons for the appellant
Mr M Batty with Ms M Rodgers for the respondent
Mr B Job KC with Mr T Stork for the co-respondentSOLICITORS:
Colin Biggers and Paisley for the appellant
Connor O’Meara for the respondent
Anderssen Lawyers for the co-respondent
Introduction
The co-respondent applied for, and obtained, a conditional approval to develop a supermarket based shopping centre in the Local centre zone at Rifle Range Road, Bargara (the site). The approval is contained in a negotiated decision notice dated 11 September 2023: Ex.20, para 8(d).
This is a submitter appeal by a commercial competitor against Council’s decision to grant the conditional approval. The appellant owns and operates Bargara central, which is an existing activity centre included in the District centre zone of Council’s planning scheme. It is located 4 kilometres to the north of the site.
The appellant’s grounds for refusal focus on one component of the proposed development, namely, the full-line supermarket. Coles has expressed interest in operating this facility. The design of the proposal makes provision for a number of design features required by Coles to operate a modern full-line supermarket. This is most evident in the location and design of the ‘click and collect’ facilities.
The appellant’s opposition to the full-line supermarket is to be considered against the background of the following five matters, namely:
(a)the site is included in the Local centre zone, which forms part of the activity centre network identified in Council’s planning scheme;
(b)a full-line supermarket is anticipated in the Local centre zone where need is demonstrated;
(c)the evidence establishes there is a clear economic and community need, which exists today, for a large full-line supermarket (and some additional specialty shops) to serve an agreed trade area of which the site forms part;
(d)the site is centrally located in the agreed trade area to conveniently meet the identified need; and
(e)the proposed development, approved with conditions, can meet the identified need absent any unacceptable impacts on amenity.
The five background matters were not disputed by the appellant. They were supported by the evidence of expert witnesses called to assist the Court. Taken in combination, the five matters favour approval in the exercise of the discretion. The weight to be given to subparagraph (e) in the exercise of the discretion can also be considered in isolation. As is well recognised, the ability for a proposal to meet an identified need absent unacceptable amenity impacts has been held to be a decisive consideration in favour of approval: cfArksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347, [13].
The key issue in dispute is whether the proposed full-line supermarket would be more appropriately located at the appellant’s shopping centre, Bargara central. The appellant contends this issue should be resolved in its favour having regard to the role and function the proposed shopping centre will serve, and its likely economic impact on other centres, including Bargara central. The impacts are said to be adverse and manifest in non-compliance with Council’s planning scheme, particularly the forward planning strategy about the activity centre network intended to serve the Bundaberg region.
Council and the co-respondent joined issue with the appellant’s reasons for refusal.
The appeal is a hearing anew: ss 43 and 46(1) of the Planning & Environment Court Act 2016.
It is for the co-respondent to establish the appeal should be dismissed: s 45(2) of the Planning & Environment Court Act 2016.
The site and locality
The ‘Central coastal urban growth area’ is an area earmarked for significant future development in Council’s planning scheme. It comprises the suburbs of Burnett Heads, Bargara, Innes Park, Coral Cove and Elliott Heads: Ex.10, p.124. As the name suggests, the area is earmarked for urban growth opportunities, including residential and non-residential uses. The site is central to this growth area, located at the north-eastern corner of the intersection of four higher order roads: Rifle Range Road, Hughes Road, Windermere Road and Back Windermere Road. This intersection is controlled by a roundabout. Windermere Road provides an east-west access route to the urban areas of Bundaberg, including the central business district located 13 kilometres to the north-east.
Focussing on the site, it:
(a)is vacant and essentially flat;
(b)is 1.942 hectares in size;
(c)is free of inherent constraints to development (such as flooding, ecology etc.);
(d)has a 150 metre frontage to Rifle Range Road;
(e)has an 80 metre frontage to Hughes Road; and
(f)enjoys a high degree of exposure to passing traffic.
With paragraphs [10] and [11] in mind, it is unsurprising the economic need evidence establishes the site is well placed to perform its intended role as a Local centre.
An extant development approval attaches to the site: s 31(1)(f) Planning Regulation 2017. The approval was granted in September 2021 and changed in September 2022. It authorises the start of a new use, namely a staged development comprising a shopping centre, service station and showrooms. The shopping centre includes a supermarket with a gross floor area of 1,520 m2. The supermarket sits in the north-eastern corner of the site. The approved service station is orientated to face Hughes Road, with access taken from Rifle Range Road downstream of the roundabout referred to in paragraph [10]. The approved plans identify how the development will be staged: Ex.3, p.15.
A review of aerial photography confirms the site sits within a predominantly low-density residential context: Ex.4, para 21. Development in the surrounding area, which has experienced significant population growth (FG-1, para 69 and Figure 6), comprises mainly detached housing on residential lots. There are also community uses. Of note are the following matters relevant to the surrounding land use context (existing and approved (but not yet constructed) uses):
(a)land to the north and east of the site is developed, and approved to be further developed, with the Palm Lake Resort (an over 50s retirement village) – the resort provides medium density accommodation, with more than 630 home sites and 800 residents anticipated at completion;
(b)land further to the north and east of that identified in (a) comprises low density residential housing;
(c)land to the south of the site is developed with detached houses (on low density residential lots in the order of 2,000 m2) and community uses (place of worship and childcare centre); and
(d)contemporary planning for the land located in the north-western quadrant of the roundabout referred to in paragraph [10] promotes medium density residential development.
The appellant has an interest in land captured by subparagraph (d). It intends to develop nearly 17 hectares of land in this location over the next five to eight years; a lifestyle resort village is proposed. The village is expected to accommodate a population of approximately 600 residents. It was fairly observed that development of this kind finds support in a recent planning scheme policy promulgated by Council: Ex.10B.
The matters traversed in paragraphs [14] and [15] confirm the area surrounding the site has experienced, and will continue to experience, significant population growth. The existing and future population have a legitimate need for convenient access to, among other things, full-line supermarkets to undertake shopping for the necessities of life. The site is conveniently located to meet this important need.
Bargara central
The Bargara district centre is located within the Central coastal urban growth area. A helpful description of the centre is to be found in the need joint report. The description is as follows (FG-1, paras 104 and 105):
“104.The Bargara Central centre contains 8,260 m2 of net leasable area (NLA), of which 7,100 m2 is retail uses. The centre is anchored by two supermarkets Woolworths (3,810m2) and Aldi (1,659m2). External to the Bargara Central centre, although within the District Centre zone, is an EEG Fuels/Ampol service station with an approved area 80m2, a McDonalds fast food outlet with a driving through facility comprising some 380m2, a tavern with a GFA of 800m2 and a bottle shop of 400m2. The tavern and bottle shop are very recent developments.
105.Adjacent to the existing centre is a large vacant site of some 1.6 hectares which is proposed to be developed for a second full-line supermarket. This site lies within the District Centre zone and is the subject of a development application to establish a second full line supermarket, a childcare centre and additional shops.”
Evidence about the composition and past performance of Bargara central is contained in confidential information before the Court. The confidential material makes good the opinion expressed by Mr Duane. He said the trading level of Bargara central is very high and above industry benchmark standards. The same material also reveals there are no systemic issues (in terms of vacancies or unsustainable trading levels) with specialty stores in the centre.
The trading figures for Woolworths at Bargara central have been impacted in recent times by the opening of a new Woolworths store at the Kepnock district centre. This can be explained for two reasons. First, the location of the store at Kepnock, while some distance further to the west, is likely to intercept supermarket shoppers that reside south of Windermere Road. For these shoppers, the Kepnock district centre is likely to be equally, if not more conveniently located than Bargara central. Second, the Woolworths store at Kepnock is new; it has a modern and attractive layout. In contrast, the Woolworths store at Bargara central is dated and in need of a refresh, which is unsurprising given it is about 15 years old. Despite the reduction in sales at Woolworths Bargara central, there is no suggestion this supermarket will cease to trade, or trade unsustainably. Rather, the evidence establishes that the supermarket will continue to trade well, and above recognised industry benchmark standards, even allowing for the combination of: (1) adverse trading impacts caused by the new Woolworths supermarket at the Kepnock district centre; and (2) adverse trading impacts caused by the introduction of the proposed full-line supermarket on the site.
The development application referred to in paragraph 105 of the need joint report was made on behalf of the appellant to Council. The application was lodged after this appeal was commenced. It is subject to code assessment. At the time this appeal was heard: (1) Council had not decided the development application; (2) the appellant had not completed its response to an information request issued for the application: (3) the appellant had obtained an extension of time (to 29 November 2024) to provide a response to the information request: Ex.8, Tab 10; (4) the appellant was unsuccessful in its attempt to attract Coles as the operator of the second full-line supermarket in the expanded centre; and (5) there was no evidence to establish that any recognised operator had expressed interest in operating the second full-line supermarket proposed in the expanded centre.
Items (4) and (5) suggest there is good reason to doubt that a second supermarket would, in fact, be provided at Bargara central in the event the appellant’s development application was approved. The level of doubt, or uncertainty, that attends this aspect of the appeal is not insignificant given the evidence of Mr Ashley. He is the State Leasing Manager for Coles, who is the most likely, if not obvious, candidate to operate the second supermarket at Bargara central. Mr Ashley explained that Coles is not minded to take up a commercial opportunity to operate the second full-line supermarket at Bargara central. At paragraph 34 of Mr Ashley’s statement, he said:
“I acknowledge that if the development application lodged by Stockwell is approved, it would offer a potential site for a new supermarket. It is however Coles’ position, and my position, that it does not constitute a retail development outcome that is acceptable for a Coles Supermarket. Even if the Proposed Development is not approved, Coles would not consider taking up the Bargara Central proposal, for the reasons outlined below.” (emphasis added)
The reasons that follow paragraph 34 of Mr Ashley’s statement traverse a number of topics, including the size of the supermarket (too small), poor locational attributes, poor visibility, suboptimal customer access and parking, and poor loading access. A review of these reasons, in conjunction with the development application to extend Bargara central, reveals they are legitimate criticisms from Coles’ perspective. Taken collectively, the criticisms render the proposed second supermarket at Bargara central commercially unsuitable to Coles.
I am satisfied the position taken by Coles is a rational and reasonable one. This is so for a number of reasons. First, the plan of layout for the expanded centre depicts a second supermarket disconnected from the existing shopping centre by a large and visually unattractive loading dock. The disconnection is of such proportion as to give the impression that the second supermarket is an after-thought, removed from the vibrancy and foot traffic generated by the existing Woolworths and Aldi stores. Second, the proposed supermarket will be screened from the road network by an existing service station and McDonalds fast food outlet, adversely impacting on its visibility and exposure to, and from, the road network. This point reinforces the inferior nature of the location proposed for the second supermarket compared to the position enjoyed by Woolworths and Aldi, who have no such exposure constraints. Third, the proposed access and carpark entry for the extended centre is poorly configured and likely to be confusing for patrons.
After receiving Mr Ashley’s statement, the appellant proposed, and pursued, changes to its development application. The changes were intended to respond to Mr Ashley’s criticisms. The changes include an alternative access arrangement (roundabout). The access proposal requires land not presently owned, or controlled, by the appellant. The design includes 492 m2 of land owned and controlled by the Bargara Golf Club: Ex.27. While a recommendation has been made by the board of the Golf Club to support the appellant’s access proposal, the club’s position will not be finalised until it is put to members at an AGM sometime in October 2024. The final design of access to the proposed expansion to Bargara central is, as a consequence, uncertain.
In his oral evidence, Mr Ashley was asked whether the changes made to the appellant’s development application satisfactorily addressed points raised in his statement: T3-55 to T3-57. Mr Ashley fairly conceded that some, but not all, of the changes addressed his criticisms of the development. In his mind, no changes could address at least one key issue for Coles, namely, the poor positioning and compromised design for the supermarket. These shortcomings in the design struck me as legitimate obstacles and render the proposal an unsuitable commercial option for Coles.
Mr Ashley was cross-examined as to whether Coles would take up the opportunity presented by a second full-line supermarket tenancy in Bargara central in the event the development application before the Court was refused. The point pressed in cross-examination was not without merit given Coles has no existing store in the Coral Coast. The cross-examination did not cause Mr Ashley to change his mind or alter his position. He made it clear that Coles would not pursue an opportunity in the Coral Coast at all costs; he said a second supermarket at Bargara central would be unsustainable. This was made clear in the following interchange with Mr Gibson KC (T3-68):
“So Mr Ashley, in the situation where there is no…full-line supermarket opportunity available to you on the subject land, my suggestion to you is that you would choose either Bargara Central or Kepnock to open a supermarket if those opportunities remained available?---I disagree with that.
You would have no representation east of Bundaberg?---No. We wouldn’t be sustainable in the location at Bargara Central. We would remain interested in Kepnock and we invariably would open a supermarket in Kepnock if that opportunity remained once that catchment was established enough to support it.
You agree that companies, just as individuals, are open to changing their minds when changed circumstances present themselves?---It’s possible.
That circumstances could arise where one would relook at alternative sites, albeit considered to be inferior to a particular proposal?---It’s possible.
And that what may seem unacceptable when there is a choice available may suddenly become acceptable when there is no choice?---Possible. However, I would say the fundamentals of the catchment in this particular case, based on the matters that I’ve already raised and the issue overlay where the growth is occurring within this catchment, I think it’s unlikely that Coles would change its mind on the Bargara Central location.” (emphasis added)
I accept Mr Ashley’s evidence. He fairly acknowledged that Coles may change its view in the future about the second full-line supermarket tenancy at Bargara central. He also fairly acknowledged that the shortcomings in the design of the expanded centre may not be insurmountable. Overall, however, his fundamental position did not change. Contrary to the appellant’s case, his evidence does not support a submission that Coles, acting rationally, would choose to pursue the second supermarket tenancy proposed at Bargara central: Ex.32, para 96. The better view is that Coles is unlikely to pursue such an opportunity in the short-to-medium term (in the next 5 to 7 years). This is so given: (1) the design and siting issues discussed above, which are not fully resolved and include; (2) the uncertainty about the design of access to the expanded site; and (3) Mr Ashley’s concern about the lack of viability/sustainability of the second supermarket, although this may be cured with time as the size of the population north of Windermere Road grows.
With respect to item (3) above, the second supermarket, if approved, would commence trading in an established centre with established competition. This, in and of itself, does not give rise to any cause for concern. I am however satisfied that a concern about sustainability of the second supermarket at Bargara central arises when the existing level of competition is taken in combination with the access, design and siting issues traversed above, and three other matters, namely: (1) that Bargara central is located at the northern periphery of the trade area agreed by the economists for this appeal (the MTA: see paragraph [70]); (2) by reason of (1), there is a genuine prospect that supermarket shoppers residing in the southern part of the MTA may find it more convenient to patronise centres outside of the MTA, leading to a continuation of high levels of escape expenditure (see [19]) – high levels of escape expenditure reduce the amount of ‘super market spend’ available in the MTA, potentially to an unsustainable level for a second full-line supermarket at Bargara central; and (3) to offset the risk posed by item (2), meaningful population growth is required, particularly at the northern end of the MTA, to counteract escape expenditure – based on forecast population figures (FG-1), this is likely to take in the order of 5 to 7 years. In my view, based on forecast population figures and the estimated supermarket spend available in the MTA (FG-1), the year 2031 represents a reasonable time frame for the population of the MTA to reach a size that can offset the high level of escape expenditure from the MTA. At this time, the population of the MTA is forecast to be 20,030 persons: FG-1, Table 3. With this forecast in mind, the provision of two supermarkets in 2031 in the MTA is consistent with the upper end of a well-known rule of thumb for the provision of supermarkets (1 supermarket per 8,000 to 10,000 persons).
To decide this appeal on the footing that Coles may change its mind in the face of the above (lack of sustainability and siting and design issues) does not sit comfortably with the evidence. This is particularly the case in so far as it might be suggested that a change in mind is likely to occur in the short-to-medium term (i.e. in the next 5 to 7 years). My assessment of the development application the subject of this appeal has proceeded on the footing that, on the balance of probabilities, Coles is unlikely to pursue an opportunity for a new supermarket at Bargara central in the short-to-medium term (in the next 5 to 7 years).
The proposed development
The proposed development is a shopping centre comprising three elements: (1) a full-line supermarket (3,700 m2 GLA) with associated back of house areas and attached specialty shops, kiosk and medical centre; (2) a standalone food and drink outlet with a drive-thru facility; and (3) a landscaped at-grade carpark with associated access, circulation areas and pedestrian paths.
Vehicle access to the development is proposed via Hughes Road and Rifle Range Road.
The architecture of the development is low rise, consistent with modern shopping centres of the kind proposed. The built form with the largest footprint (supermarket) is sited to turn its back and eastern side to the adjoining land, which is developed (and approved to be developed) for medium density retirement living.
The evidence establishes that Coles have pursued the appellant for an opportunity to operate the proposed full-line supermarket, assuming it is approved: Ex.5, 26 and FG-7. Mr Ashley said the site, from Coles’ perspective, is the best location for a new full-line supermarket in Bargara. He gave three reasons for this, namely the site: (1) is centrally positioned in the trade area identified by Coles, which excludes Bargara central; (2) is of sufficient size to permit an uncompromised retail design to meet the legitimate convenience needs of Coles shoppers; and (3) enjoys a favourable position in the road network, allowing for ease of accessibility for customers within the trade area. I accept this evidence.
There was an unpersuasive attempt by the appellant to suggest Coles’ interest in the proposed development was uncertain and lacked board approval. The criticism was said to be founded on the uncertain terms of an offer to lease and the absence of board approval. Assuming there is uncertainty and a lack of board approval for the offer to lease, Mr Ashley’s evidence, in conjunction with the proposed plans, provides more than sufficient comfort to conclude that an operator has been identified for the proposed full-line supermarket on the site. The evidence reveals:
(a)Coles has more than a fleeting interest in leasing the supermarket tenancy on the site, if approved;
(b)Coles’ interest in the supermarket tenancy on the site was articulated through Mr Ashley, who was subject to cross-examination;
(c)the cross-examination of Mr Ashley did not elicit evidence to the effect that Coles’ interest in the proposed supermarket was anything other than bona fide; and
(d)the proposed plans of development for the site have been designed to accommodate Coles’ operational requirements, including its requirements with respect to ‘click and collect’ facilities.
Statutory assessment framework
The statutory assessment framework for this appeal is prescribed by the Planning Act 2016 (the Act). The Act requires the development application be assessed in accordance with s 45(5) and decided in accordance with ss 59(3) and 60.
Section 45(5)(a)(i) of the Act mandates assessment against assessment benchmarks in a categorising instrument. Section 45(7) confirms the reference to an assessment benchmark is one in effect when the development application was properly made. Here, that captures version 5.1 of Council’s planning scheme, namely Bundaberg Regional Council Planning Scheme 2015 (the planning scheme): Ex.10.
Section 45(8) of the Act permits weight to be given in an assessment to adopted planning controls that took effect after a development application was properly made. Here, this captures a planning scheme policy (Ex.10B) in force at the time the appeal was heard. While the policy provides some relevant background for paragraph [15], it has little impact on this appeal; the outcome of the appeal does not turn on this policy. The alleged non-compliances with assessment benchmarks are limited to version 5.1 of the planning scheme.
The statutory assessment framework is to be approached in accordance with the following Court of Appeal authorities, namely: Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; Abeleda v Brisbane City Council (2020) 6 QR 441; Wilhelm v Logan City Council & Ors [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309. Having regard to these authorities, it can be observed:
(a)the ultimate decision called for when making an impact assessment under ss 45 and 60 of the Act is a ‘broad, evaluative judgment’;
(b)in contrast to its statutory predecessor, the discretion conferred by s 60(3) of the Act admits of more flexibility to approve an application in the face of non-compliance with a planning scheme;
(c)the exercise of the discretion under s 60(3) of the Act is subject to three requirements, including that it be based upon the assessment carried out under s 45; and
(d)the Act does not alter the characterisation of a planning scheme – it remains a reflection of the public interest.
Planning context
Planning scheme provisions with respect to the establishment, and maintenance, of an activity centre network for the Bundaberg region are the point of focus for this appeal. Planning for the network is found at multiple levels of the planning scheme, including the Strategic framework, which articulates a forward planning strategy. The strategy is implemented through five zones that make up the ‘Centre zones category’: s 6.1(8)(d) to (h). It is also implemented through local plans. Before traversing relevant planning scheme provisions, three observations should however be made.
First, it was uncontroversial, as a matter of principle, that a forward planning strategy directed towards the establishment and maintenance of a centres hierarchy is important and, in the context of an appeal to this Court, should be respected. This principle has been recognised for many years: see I.B. Town Planning v Sunshine Coast Regional Council [2021] QPEC 36, [82] – [83]. Non-compliance with such a strategy will, ordinarily, be regarded as serious, attracting significant weight in the exercise of the planning discretion. The converse is also true. Compliance with the strategy will likely attract significant weight in the exercise of the planning discretion.
Second, while forward planning for an activity centre network is important and entitled to respect, this does not obviate the need to carefully examine the adopted planning controls articulating the strategy of interest. The reason for this is obvious enough. It cannot be assumed that all planning strategies for centres (articulated in adopted planning controls) are based on the same expressions of planning policy or assumptions; one planning scheme may promote, or encourage, what another discourages in light of town planning considerations particular to that planning scheme area.
Third, absent an indicator to the contrary, a centres hierarchy and associated provisions in a planning scheme should not be assumed to protect higher order centres from competition posed by lower order centres that: (1) will, like here, share an overlapping catchment or trade area; and (2) are planned to include similar commercial and/or retail uses. Competition in such circumstances should be anticipated; a negative effect on trading levels is inevitable. To suggest otherwise is unrealistic. The acceptability of any negative effect is however a different matter. Acceptability or otherwise will turn on matters of fact and degree, examined against the background of the adopted planning controls. In this context, particular attention will be given to provisions dealing with the planned role, function and scale of facilities in the network of centres.
The planning scheme was prepared under the Sustainable Planning Act 2009 and was amended for alignment with the Act in May 2017: ss 1.1(1) and (2). The document has a familiar structure. It includes, among other things, a Strategic framework, zones and local plans.
Part 3 of the planning scheme contains the Strategic framework. It sets the policy direction for the planning scheme area and forms the basis for ensuring that appropriate development occurs within the life of the planning scheme: s 3.1(1). The planning scheme has a 16 year horizon, ending in 2031: s 3.2.1. For the purposes of describing the policy direction, the Strategic framework has a number of parts, including eight themes, strategic outcomes, elements that further refine the strategic outcomes and specific outcomes for the stated elements: s 3.1(3).
The policy direction in the Strategic framework is articulated through, among other things, a settlement pattern for the planning scheme area, which is conceptually shown on map SFM-001. The settlement pattern is supported by, and integrated with, an activity centre network: s 3.3.1(g) and (i). The network is identified, in part, on map SFM-001.
The planned activity centre network provides for centres that perform different roles and functions. Centres are to be developed at different scales: s 3.2.4. There are seven types of centres: s 3.4.2.1. They are intended to be complementary, vibrant and support long term viability: ss 3.2.4, 3.2.7 and 3.4.1(g). In order of hierarchy, they comprise: (1) Principal activity centre; (2) Major activity centre; (3) District activity centre (urban): (4) District activity centre (rural); (5) Local activity centre; (6) Neighbourhood activity centre; and (7) Specialised activity centre. Section 3.4.2.1(a) of the Strategic framework describes, in further detail, each of these centre types. The descriptions for District activity centre (urban) and Local activity centre are relevant to this appeal and are in the following terms:
Activity centre
Description
District activity centre (urban):-
(a) Bargara central
(b) Kepnock
District activity centres (urban) serve catchments of district or sub-regional significance within the Bundaberg Region, accommodating concentrations of retail, commercial, offices, administrative and health services, community, small scale entertainment and recreational facilities, and catering to day-to-day and weekly shopping and service needs. They may have a residential component including visitor accommodation.
Local activity centre:-
…
(g) Bargara South
(h) Elliott Heads
…
Local activity centres provide for local shopping needs, function as local employment nodes and comprise a mix of commercial, cafes/dining, entertainment and community services for a surrounding residential neighbourhood. They may have a small residential component including visitor accommodation.
With the ‘further description’ for District centre (urban) in mind, the following observations can be made.
First, the evidence reveals Bargara central serves an expansive catchment that conforms with the above description; it serves at least a district, if not close to, an area of sub-regional significance: FG-2, Attachment A. The description also anticipates that the mix of uses in a District centre (urban) will comprise a concentration of retail and non-retail activities catering for day-to-day and weekly shopping and service needs. Bargara central meets this description. That Bargara central serves the catchment size described above, and includes the concentration of uses anticipated by the planning scheme, will not change if an approval is granted for the site authorising a new major full-line supermarket. Moreover, the vacant land adjoining Bargara central gives the District centre (urban) significant physical scope to grow and evolve with emerging demand from urban development planned for the Coral Coast. Quite apart from a second full-line supermarket, it was uncontroversial that the vacant land adjoining Bargara central can accommodate a wide range of retail, commercial and community uses. Such uses would be consistent with the description set out above for District centre (urban): FG-2, para 47 & FG-3, para 2.20-2.21.
Second, the proposed development, if approved, will not function as a District centre: FG-2, para 43. This is because the facility is too small and will not contain the concentration of retail and non-retail uses anticipated in a District centre. This can be demonstrated by comparing Bargara central with the proposal. The former: (1) serves a considerably greater trade area than the proposal (cf FG-1, Figure 5 and FG-2, Attachment A); (2) has a greater amount of floorspace than the proposal (8,260 m2 NLA vs. 5,200 m2 GLA); and (3) provides a more extensive range of uses/tenants compared to the proposal (FG-1, p.53), including a tavern/bottle shop.
The Strategic framework encourages development that establishes and maintains the planned activity centre network. Development that works against this intent is expressly discouraged. Section 3.4.2.1(c) provides:
“Development does not undermine or compromise the activity centre network either by proposing centre activities outside of an activity centre or by proposing a higher order or larger scale of uses than intended for a particular activity centre.”
Section 3.4.2.1(c) expressly discourages out-of-centre development. A similar policy statement is found in s 3.3.7.1(c). The policy has no direct application to this appeal as the site is included in the Local centre zone. This zone is one of a number that implement the forward strategic planning for the activity centre network.
Section 3.4.2.1(c) also imposes a limitation on development proposed inside an activity centre. It is to be of a scale consistent with that intended for a particular activity centre. This is reinforced by s 3.3.7.1(b), which has in mind that activity centres are focal points for community life and accommodate a range of activities reflective of their location, scale and service catchment.
The planning scheme area is divided into zones: s 6.1(8). Zones organise the planning scheme area in a way that ‘facilitates the location of preferred or acceptable land uses’: s 6.1(1). Forward planning with respect to the establishment and maintenance of a vibrant activity centre network is implemented through, among other things, the Centre zones category. There are five zones in this category, including the District centre zone and the Local centre zone. Bargara central is included in the former zone. The site is included in the latter zone.
Assessment benchmarks for the zones are contained in a zone code. These codes have a familiar structure, comprising a purpose statement, overall outcomes that achieve the purpose and tables containing performance outcomes and acceptable outcomes: s 6.1(7). Compliance with a zone code is demonstrated in one of three ways, namely through: (1) compliance with acceptable outcomes that achieve the purpose and performance and overall outcomes of the code; (2) compliance with the performance outcomes that achieve the overall outcomes and purpose of the code; and (3) compliance with the overall outcomes that achieve the purpose of the code: ss 5.3.3(4)(c) and 6.1(7).
The purpose of the Local centre zone code is in the following terms (s 6.2.7.2(1)):
“The purpose of the Local centre zone code is to provide for a limited range of land uses and activities to meet the local level retail, business and community needs of coastal towns and their surrounding rural catchments and residential neighbourhoods within Bundaberg.
The zone accommodate (sic) local shopping and commercial activities, cafes and dining, community services and residential development where it can integrate and enhance the fabric of the activity centre, but is not the predominant use.
Local centres are developed as well-designed, safe and visually attractive centres, predominantly in a low rise building format, where significant off-site impacts are avoided.
Local centres complement and do not undermine the role and function of higher order activity centres.”
The purpose of the Local centre zone code will be achieved through ten overall outcomes: s 6.2.7.2(2). The overall outcomes include the following:
“(a)development provides for a range of business activities that are compatible with the intended role and function of the Local centre zone, but does not include a department store or discount department store, and full-line supermarkets are only established in the zone where there is a demonstrated need;
…
(e)land uses contributing to employment, education and services in the Bundaberg Region are located in the centre commensurate with its local role and function. However, development does not undermine or compromise the activity centre network by proposing higher order or larger scale of uses that are more appropriately located in…district centres;”
Overall outcome (a) refers to ‘full-line supermarkets’. This is a defined term in the planning scheme:
“A supermarket with a full range of goods including packaged groceries, fresh meat, bakery and deli departments, fresh fruit and vegetables and frozen foods.”
The supermarket proposed for the site meets this definition.
Benchmarks for assessable development are set out in Table 6.2.7.3.1 of the Local centre zone code. The benchmarks include the following:
Performance outcomes
Acceptable outcomes
Land use composition and activity centre network
PO1
Development provides for a range of business activities that service the local level convenience needs of residents and surrounding tourism or primary production industries, and offers locally-based employment opportunities.
Note-such business activities include, but are not limited to, food and drink outlets, small-scale offices, shops, small shopping centres and veterinary services.
AO1
No acceptable outcome provided.
PO2
Development for business activities is of a scale and intensity that is consistent with the intended role and function of the local activity centre.
AO2
No acceptable outcome provided.
PO3
Development ensures that:-
(a) higher order shopping facilities, including department stores and discount department stores, are not established in the zone; and
(b) major full-line supermarkets are only established in the zone where there is a demonstrated need.
AO3
No acceptable outcome provided.
Performance outcome PO3 b refers to ‘major full-line supermarkets’. This is a defined term for the planning scheme:
“A full line supermarket with a gross lettable floor area exceeding 3,000m2.”
The supermarket proposed for the site meets this definition.
The table of assessment for the making of a material change of use in the Local centre zone identifies a number of ‘business activities’ that trigger code assessment. The defined uses falling into this category are Bar, Food and drink outlet, Garden centre, Hardware and trade supplies, Market, Office, Sales office and Veterinary services. Shop and Shopping centre uses are also categorised as code assessable in the zone, provided they do not incorporate a department store, discount department store or ‘major full-line supermarket’.
Having regard to the definition of ‘major full-line supermarket’, it follows from the table of assessment for the Local centre zone that a Shopping centre, including a full-line supermarket, triggers code assessment where the supermarket has a gross lettable floor area less than 3,000 m2. This point, taken in conjunction with overall outcome 2(a) and performance outcome 3 b of the Local centre zone code, conveys a number of things about a Local centre promoted by the planning scheme. The points convey: (1) that, subject to demonstration of need, a Local centre may include a full-line supermarket, which, by definition (paragraph [57]), offer a broad range and depth of products to cater for convenience, day-to-day and weekly shopping needs; (2) a reasonable expectation about the size of the trade area served by a Local centre and the extent to which it may compete with higher order centres that also include full-line supermarkets – the trade area, like here, may be commensurate with that of a supermarket 3,000 m2 (Gross lettable area) or greater in area, and overlap with a trade area for a District centre; (3) that a Local centre developed with a major full-line supermarket will contribute to local employment and act as an employment node; and (4) that a major full-line supermarket in the Local centre zone, for which a need has been demonstrated, is consistent with the range of business activities anticipated for that zone – the anticipated business activities are those that ‘meet…local level retail…needs’, ‘service the local level convenience needs’ and provide for ‘local shopping needs’. As an anticipated use in the zone, and having regard to the economic need and associated impact evidence, I am satisfied the proposed development will meet local level retail needs, will service local level convenience needs and provide for local shopping needs. It will do so in the manner anticipated by the planning scheme for a Local centre.
The planning scheme includes two local plans, one of which is the ‘Central coastal urban growth area local plan’ (CCUGA): Table 1.2.2. Local plans address matters at the local or district level and ‘may’ provide more detailed planning for the zones: s 7.1(1). Each local plan has a code that prescribes assessment benchmarks: s 7.1(5). Compliance is demonstrated with the code in the manner discussed at paragraph [54].
The site is included in the CCUGA and sits beneath an ‘L’ on relevant mapping, which is to indicate the presence of a Local activity centre: Ex.10, p.124.
The purpose of the code for the CCUGA local plan is said to be achieved through a range of overall outcomes: s 7.2.1.2(2). They include the following:
“(h) development supports the establishment of a network of centres for the broader Central coastal area, comprising:-
(i) a district activity centre at Bargara;
(ii) local activity centres at Burnett Heads, Bargara town centre, Bargara South and Elliott Heads;
(iii) a series of well-located neighbourhood centres at other strategic locations throughout the area as required to satisfy community need.
(i)development provides for any new activity centres to establish as vibrant, mixed use places with both residential and non-residential activities appropriate to their role and location, and displaying high quality urban design and landscaping;
Benchmarks for assessable development subject to the CCUGA local plan code are set out in Table 7.2.1.3.1. The benchmarks include the following:
Performance outcomes
Acceptable outcomes
Activity centres
PO6
New activity centres:-
(a) are well-located relative to the catchments they are intended to serve and other existing or proposed centres;
(b) are integrated with community facilities wherever possible;
(c) have high levels of accessibility to and from the higher order elements of the transport network;
(d) perform a role and function and have an intensity and scale commensurate with demonstrated need;
(e) do not detrimentally impact on existing or approved activity centres.
AO6
In partial fulfillment of Performance outcome PO6:-
Development provides for a network of activity centres with a function and location generally in accordance with Figure 7.2.1 (Central coastal urban growth area structure plan concept).
PO7
Development provides for the proposed local activity centres at Bargara South and Elliott Heads to be established and consolidated as pedestrian based lifestyle centres located at the heart of their respective communities.
AO7
No acceptable outcome provided.
PO8
Development ensures that any new activity centre:-
(a) has a configuration and includes a range of uses that help create an active, vibrant centre and focal point for the community;
(b) is compatible with the scale and intensity of existing and planned development in the neighbourhood; and
(c) provides for active modes of transport including the provision of sheltered and comfortable spaces for pedestrians with footpaths, walkways and other public spaces adequately sheltered from excessive sunlight and inclement weather.
AO8
No acceptable outcome provided.
Need
A major full-line supermarket is only established in the Local centre zone where a need is demonstrated: PO3 b, Local centre zone code, [59]. To examine the issue of need for the proposed supermarket, I had the benefit of evidence of three experts, Messrs Leyshon (appellant), Duane (respondent) and Stephens (co-respondent). They prepared an economic need joint report, which was admitted and marked FG-1. The report contains references to confidential information protected by Court order. These reasons for judgment refer to the joint report in general terms so as to avoid disclosing confidential information.
A review of the economic need joint report reveals the experts agreed there is a need for a supermarket, additional specialty stores, a fast-food outlet and medical centre to serve a defined trade area. The site is included in the defined trade area.
To arrive at this point of agreement, the experts identified a Main Trade Area (MTA). The MTA reflects the geographic area to be served by retail components of the proposed development. The area is linear, hugging the east coast. It spans from a location just north of Bargara central down to Elliott Heads in the south. The trade area comprises three sectors, namely a Primary Trade Area (PTA), Secondary North Trade Area (SNTA) and Secondary South Trade Area (SSTA). The site is located towards the middle of the PTA, which sits in the northern half of the MTA. The MTA and the trade area for Bargara central overlap: FG-2, Attachment A. The latter trade area is significantly greater in size than the MTA.
The MTA has experienced, and will continue to experience, significant population growth. The population of the MTA has increased from 12,950 persons in 2016 to 16,050 in 2023. This population is forecast to increase to 18,350 persons in 2028 and 20,030 persons in 2031: FG-1, Table 3. The population capacity of the MTA is estimated to be about 39,350 persons. Figure 6 of the joint report shows the site being well located to population growth hotspots: FG-1, p.23.
The level of population growth within the MTA is consistent with the growth forecast for the Coral Coast more broadly. This area is identified in Figure 5 of FG-1 and includes the MTA. It extends further to the west of the MTA. The population of the Coral Coast was 20,880 in 2023 and is forecast to increase to 23,580 in 2028 and 25,560 in 2031. Given the population of the Coral Coast in 2023 was 20,880 persons, and given one full-line supermarket is typically provided for every 8,000 to 10,000 persons, it is unsurprising the need experts agreed ‘the population is well-beyond the level at which two full-line supermarkets can operate successfully’.
The population capacity of the Coral Coast is estimated to be about 49,680 persons. Mr Duane pointed out, and I accept, that the population capacity of the Coral Coast, once realised, could be expected to serve five to six full-line supermarkets, assuming one is provided for every 8,000 to 10,000 persons.
The need experts identified that, at present, there is one existing full-line supermarket servicing the MTA and Coral Coast. This is Woolworths at Bargara central. The absence of competition (from a second full-line supermarket) within the MTA explains, in part, why Bargara central is vibrant and trading very successfully.
With the population trends and forecasts in mind, the need experts estimated the total retail spend for residents of the MTA. This was agreed to be $316.5 million in 2024, forecast to increase (in 2024 dollars) to $362 million in 2028 and $404.8 million in 2031. Of the total retail spend, it was agreed the MTA residents are likely to spend $87.3 million at supermarkets. This is forecast to increase (in 2024 dollars) to $99.3 million in 2028 and $110.3 million in 2031.
The evidence comfortably makes good a key point of agreement reached between the need experts. They agreed there is a clear economic need for a further full-line supermarket to serve the MTA. That need exists now and, in my view, should be given significant weight. This is because it is a need for a use that provides the necessities of life in circumstances where:
(a)there is only one full-line supermarket in the MTA, namely Woolworths, to serve a population of 16,000 persons (as at 2023);
(b)the existing Woolworths supermarket is neither modern nor centrally located to the population of the MTA – it is located at the northern periphery of the SNTA;
(c)those members of the public who reside in the MTA and prefer to undertake their grocery shopping at a full-line supermarket other than Woolworths are required to travel outside of the MTA (to locations such as Hinkler or the central business district); and
(d)the points in (a) and (c) are consistent with the proposition that there is considerable escape expenditure from the MTA, which will continue until it is intercepted, at least in part, by a new supermarket.
The need experts also assessed demand for the proposed medical centre and fast-food outlet. The analysis, which I accept, comfortably establishes there is an ongoing community and economic need for these facilities. That need exists now: FG-1, paras 129 and 133. As to the specialty stores, it was agreed the proposed development includes a modest floor area for uses of this kind. There was no requirement, in my view, to dwell upon the question of need for specialty stores given: (1) they are an expected part of a modern convenience shopping centre of the kind proposed; (2) the size of the specialty stores proposed is, as agreed, modest; (3) a specialty store is a Shop as defined in the planning scheme and anticipated for a supermarket based shopping centre in the Local centre zone; and (4) the planning scheme does not require a need to be demonstrated for a specialty store in the Local centre zone.
It was submitted on behalf of the appellant that while an ‘economic need’ has been demonstrated, there is no ‘planning need’ for the proposed development. This was said to follow because there is undeveloped and appropriately zoned land within the MTA capable of satisfying the economic need for a further full-line supermarket: Ex.32, para 87. The land to which reference was made is the vacant land adjoining Bargara central, which is the subject of the development application discussed at paragraph [20].
I have difficulty accepting this submission for three reasons.
First, the submission appears to be implicit with the proposition that overall outcome (2)(a) and PO3 b of the Local centre zone code are to be read with additional words of limitation that do not appear in the text. The additional words seem to be as follows: ‘that cannot be satisfied by land in the… District centre zone’. The submissions made on behalf of the appellant do not establish a proper basis to read these words of limitation into the overall outcome, or performance outcome, of the Local centre zone code. This is in circumstances where the code includes statements of limitation, which are directed to the function, scale and intensity of an activity centre: PO1, PO2 and PO3, [59]. The code also includes overall outcome (2)(e), which, separate to the need test stated in (2)(a), requires consideration to be given to whether the proposed use is more appropriately located in a higher order centre.
Second, the point is founded on the proposition that the co-respondent is required to demonstrate two things to establish ‘need’, namely: (1) a latent unsatisfied demand for a full-line supermarket; and (2) a gap in the provision made in the adopted planning controls to meet the identified demand. There is no doubt (1) is established here. As to (2), the appellant’s case overlooks that the planning scheme provides for the latent unsatisfied demand identified here to be met in the Local centre zone. Once this is appreciated, the traditional concept of planning need as defined by reference to items (1) and (2), has little application to this appeal. In simple terms, this is because provision is made by the planning scheme to meet the demand for a full-line supermarket in the very zone the land is included.
Third, the submission assumes need for a second full-line supermarket can be met in the short-to-medium term at Bargara central. This is not an assumption I am prepared to act upon; it is far from certain that this assumption is sound: see paragraphs [21] to [29]. This was not lost on Mr Buckley. At paragraph 27 of a separate report, Mr Buckley said, and I accept:
“To the extent that the Appellant’s application relies upon their code assessable application as a reason to defeat the…[co-respondent’s] …application, it is important to note that:
a)there is no approval;
b)there is no certainty about when an approval might be obtained by Stockwell and what that might look like especially given the access problems raised by SARA;
c)the development is not constructed; and
d)no supermarket tenant has been identified thus far.”
Each of these points were well made. In combination, they undermine the confidence the Court can have in assuming that a second full-line supermarket will be delivered at Bargara central in the short-to-medium term. Any confidence in making the assumption would, in my view, be misplaced. In practical terms, only one known supermarket operator is likely to take up the supermarket space, and it has no interest in doing so in the short-to-medium term. The operator has expressed negative views about the sustainability of a second full-line supermarket at Bargara central, which I accept is a reasonable view to adopt in the short-to-medium term: see paragraphs [26] to [29].
The real issues in this appeal can be put in these terms: whether approving the proposed full-line supermarket on the site would result in a development that: (1) exceeds the intended role, function and scale of a Local centre; and (2) is more appropriately located in a District centre (urban). The appellant, and its town planning expert, rely upon a number of matters that are said to be symptomatic of (1). These symptoms are relied upon to suggest (2) should be resolved in favour of the appellant. One of the symptoms relied upon is the impact on trading levels at Bargara central.
The impact on trading levels represents an important point of contention between the economists. They examined the potential for adverse competitive impacts from the proposed development on existing and planned centres in the activity centre network. Potential adverse impacts are tangible and intangible in nature. A tangible impact is a reduction in sales for centres that would compete with the proposal. The proposed development is forecast to achieve sales in the order of $47.3 million in 2028 (expressed in 2024 dollars and GST inclusive): FG-1, para 138. The vast majority of that sum (about $38 million) comprises supermarket sales. The remainder of the sales is shared between specialty stores and the fast-food outlet. The alleged intangible impacts in this case involve a suggestion that: (1) investment in the District centre at Bargara will be retarded in the event an approval is granted by this Court; and (2) an approval will adversely impact on the ‘vibrancy’ of Bargara central. Impacts of this kind do not lend themselves to empirical calculation or measurement; they are qualitative in nature.
The economists each assessed likely trading impacts and concluded the highest impact (on trading performance) would occur at Bargara central. Mr Stephens assessed the impact to equate to a 14.4% reduction in sales. This can be compared with Mr Leyshon, who assessed the impact to be 20.6%. Mr Duane assessed the same impact to be 18%.
Contrary to the appellant’s submissions, I am satisfied compliance has been demonstrated with:
(a)PO1 for the reasons given at paragraphs [150] to [152];
(b)PO2 for the reasons given at paragraphs [94] to [182]; and
(c)PO3, having regard to the nature of the use proposed and paragraphs [76] to [83].
Compliance with performance outcomes PO1 to PO3 here demonstrates compliance with the purpose of the Local centre zone code, which requires Local centres to, among other things, complement and not undermine the role and function of higher order activity centres: s 6.2.7.2(1).
For completeness, I am also satisfied compliance has been demonstrated with the overall outcomes of the Local zone code. In this regard, the appellant alleged non-compliance with overall outcomes 2(a) and 2(e). Compliance is demonstrated with overall outcome 2(a) for the reasons set out at paragraphs [76] to [83]. Compliance is demonstrated with overall outcome 2(e) for the reasons set out at paragraphs [163] to [174]. Compliance with these overall outcomes here also demonstrates compliance with the purpose of the zone code.
As I have already observed, the CCUGA local plan includes a code. The code contains provisions relevant to the assessment of a Local centre on the site. Compliance is demonstrated with the code in one of three ways: see paragraph [54]. This includes by demonstrating compliance with the performance outcomes of the code.
The appellant alleged non-compliance with two performance outcomes in the local plan code, namely PO6 and PO7. These provisions are set out at paragraph [67].
Non-compliance is pressed with subparagraphs (d) and (e) only of performance outcome PO6: Item 18, Annexure to Ex.32. This provision is directed to ‘new activity centres’. Council submitted this phrase applies to new facilities that are unplanned or out-of-centre (i.e. not identified in overall outcome 2(h)(i)) as distinct from planned centres). I have misgivings about this but need not dwell upon it. This is because, even assuming performance outcome PO6 applies to the proposed development, compliance has been comfortably demonstrated. In this regard:
(a)compliance is demonstrated with PO6 d for the reasons given in paragraphs [94] to [162] – the matters traversed therein establish the proposal will perform the role and function of a Local centre intended by the planning scheme, and be of an intensity and scale that can be justified by, and is commensurate with, the identified need; and
(b)compliance with PO6 e is demonstrated for reasons given at paragraphs [94] to [174].
Performance outcome PO7 of the local plan code is dealt with at paragraphs [140] to [149]. For reasons set out therein, I am satisfied compliance is demonstrated with this provision of the planning scheme, or alternatively, any non-compliance does not sound in adverse town planning consequences calling for refusal.
Compliance with performance outcomes PO6 and PO7 here demonstrates compliance with the CCUGA local plan code, inclusive of its stated purpose.
For completeness it can be observed that the appellant alleged non-compliance with overall outcomes 2(h) and (i) of the CCUGA local plan code. While compliance can be demonstrated with the local plan code, like here, through the performance outcomes, I was satisfied compliance was also demonstrated with overall outcomes 2(h) and (i). They are set out at paragraph [66].
Compliance is readily demonstrated with overall outcome 2(h) because the proposed development will support the establishment of a network of centres for the broader Central Coast. It will do so by establishing a new Local activity centre at Bargara south, consistent with subsection (ii) of the overall outcome. For reasons given above, the centre proposed will be consistent with the location, role and function intended for a Local activity centre on the site.
Compliance has been demonstrated with overall outcome 2(i). For reasons given above, this is because the development will be a vibrant, mixed use place, appropriate for its intended role and location. It is not suggested non-compliance arises with this overall outcome for any other reason.
The appellant alleges non-compliance with provisions of the Strategic framework, namely ss 3.2.4, 3.2.7, 3.3.1(g), 3.4.1(g), 3.4.2.1(a) and 3.4.2.1(c). A review of each provision, and the context in which they are addressed in the appellant’s submissions, reveals they are raised to support five assertions, namely the proposed development: (1) will adversely impact on the vibrancy of Bargara central; (2) will not complement Bargara central; (3) will not support the viability of Bargara central; (4) will be of a higher order or scale than intended by the planning scheme, adversely impacting on Bargara central and the Local centre planned for Elliott Heads; and (5) will adversely impact on the preferred settlement pattern. For the reasons already given, I am satisfied the factual foundation relied upon to establish non-compliance with these provisions of the Strategic framework has not been established. Compliance with the Local centre zone code and the CCUGA local plan code supports this finding.
Relevant matters
The appellant has identified a number of relevant matters said to support refusal: Ex.6. I agree with Mr Job’s submission that the matters raised by the appellant in this regard reflect allegations relied upon to found non-compliance with the planning scheme. Matters of this kind have already been addressed by the reasons above and, I accept, are without substance.
It should also be observed that the co-respondent has identified relevant matters said to support approval: Ex.6. Council has, for all intents and purposes, adopted the same relevant matters and contend they are supportive of approval.
It is unnecessary for the relevant matters said to favour approval to be canvassed in any detail. Considered broadly and fairly, they represent the identification of issues considered in the assessment of the proposal against the planning scheme. For example, the matters relied upon advance this proposition: the proposal will meet a need and deliver associated public benefits (choice, competition and convenience). These matters are already bound up in an assessment against the planning scheme, particularly the need test in the Local centre zone code. It is, in my view, unnecessary to dwell further upon considerations of this kind given the matter attracting significant, if not decisive weight in this appeal, is compliance with the planning scheme. This consideration, coupled with an absence of unacceptable amenity impacts, is compelling in favour of approval.
Exercise of the planning discretion
For reasons given above, I am satisfied the proposed development is meritorious and should be approved. It complies with the planning scheme. It will also meet an identified need in circumstances where there will be an absence of unacceptable amenity impacts. An approval, which would be in the public interest, will ordinarily follow unless there are significant town planning issues suggesting otherwise. I am satisfied there are no issues of this kind standing in the way of an approval.
Save for one reason, I would have confirmed Council’s decision to approve the development application (subject to conditions) and dismissed the appeal. The outstanding matter relates to condition 4 of the negotiated decision notice.
Condition 4 identifies the uses approved for the site. The last bullet point of the condition seeks to retain a discretion to approve future uses that were not the subject of the development application. The condition states, in part:
“The approved use of the Medical/Retail, Shop, Specialty Shops 01, Specialty Shops 02 and Kiosk buildings as shown on the Approved plans include:
…·Other uses consistent with the use of the premises for a shopping centre as defined in the Planning Scheme were approved in writing by the Assessment Manager.”
The last bullet point of condition 4 should be deleted. I would not impose it as a condition in the exercise of my discretion. In simple terms, this part of condition 4 lacks finality and purports to confer a future discretion on Council to change the approved land use rights for the site other than in a way provided for under the Act (i.e. ‘a minor change’, or ‘other than a minor change’, to a development approval).
Disposition of the appeal
The co-respondent has discharged the onus with respect to approval.
The development application will, in due course, be approved subject to conditions. Save for one change, the conditions of approval will be those contained in the respondent’s decision notice dated 11 September 2023. Condition 4 of the negotiated decision notice will be changed to delete the final bullet point.
The appeal will be reviewed on Friday, 1 November 2024 for the purposes of making final orders that reflect the following: (1) the appeal is allowed in part; (2) the co-respondent’s development application is approved; and (3) the approval is granted subject to the conditions contained in Council’s negotiated decision notice dated 11 September 2023, save for the final bullet point of condition 4, which is to be deleted.
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