Westfield Ltd v Stockland (Constructions) Pty Ltd

[2002] QPEC 32

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Westfield Limited v Stockland (Constructions) Pty Ltd & Ors [2002] QPEC 032
PARTIES:	WESTFIELD LIMITED Appellant -v- GOLD COAST CITY COUNCIL Respondent and STOCKLAND (CONSTRUCTIONS) PTY LTD Co-Respondent and HOSPITALITY AND LEISURE HOLDINGS PTY LTD Co-Respondent
FILE NO/S:	3262 of 2001 3263 of 2001 3264 of 2001
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	22 May 2002
DELIVERED AT:	Brisbane
HEARING DATE:	7-10; 13-15 May 2002
JUDGE:	Senior Judge Skoien
ORDER:	Appeal dismissed
CATCHWORDS:	Material change of use application for integrated shopping centre; need, piecemeal application; frustration or delay to nearby sub-regional centre
COUNSEL:	Mr C. Hughes S.C. for the respondent Mr J. Gallagher Q.C. with Mr G. Houston for the co- respondents
SOLICITORS:	Minter Ellison Lawyers for the appellant McDonald Balanda & Associates for the respondent Corrs Chambers Westgarth for the co-respondents

1. Stockland (Constructors) Pty Ltd (“Stockland”) is the co-respondent in appeals numbered 3262 and 3263 of 2001, and Hospitality & Leisure Holdings Pty Ltd (“Hospitality”) is the co-respondent in appeal number 3264 of 2001. The three appeals were heard together.

2. The three appeals were instituted by Westfield Limited (“Westfield”) against the decision of the Gold Coast City Council, to approve three impact assessable development applications on land in the south eastern part of the Pacific Pines Estate at Gaven. The applications were made under the Integrated Planning Act 1997 (“IPA”):-

(a)	By Stockland on 13.12.00, for a development permit for a material change of use for stage 1 of a neighbourhood shopping centre for speciality shops with a gross floor area of 900m²;
(b)	By Hospitality on 18.12.00, for a development permit for a material change of use for a tavern with a gross floor area of about 1500 m²; and
(c)	By Stockland on 24.01.01, for a development permit for a material change of use for stage 2 of a neighbourhood shopping centre, comprising a full line supermarket of approximately 3,360m² initially and subsequently 3870m² and mixed commercial space of approximately 300m².

1. Although the three applications were lodged separately in anticipation of separate commencement dates, Stockland and Hospitality accept that they became an application for integrated development of a shopping centre and tavern. Now it is hoped to have the shopping areas open in October 2003 and the tavern in March 2003. Woolworths are committed to being the tenant of the supermarket. By three separate resolutions on 31 May 2001 the Council approved each application.

   Pacific Pines

2. Pacific Pines is a very large subdivision (820 hectares) on the western side of the Pacific Motorway, to the south of Oxenford and west of Helensvale. It is part of the rapidly urbanising corridor of Gold Coast City. Its staged development began in 1993 and is planned, by the end of its development in about another eight years, to contain some 6000 dwellings and house up to 18,000 people.

3. The estate has grown rapidly and continues to do so. There is now a total of about 3500 residential allotments (predominantly for detached housing) and over 1800 have actually had dwellings constructed on them. At an average of three people per dwelling (a rule of thumb the parties accepted here) that suggests a present population of over 5000. Pacific Pines expects to create more than a further 300 lots this year and is confident that the high rate of sales enjoyed to date will continue.

4. In addition the estate now contains two primary schools (State and private) a high school, two childcare centres, a service station, real estate sales offices and a substantial road and drainage system. Public utilities are available throughout the developed parts of the estate. Large areas have been set aside for active and passive recreation and much of these areas has been developed accordingly.

5. It is common ground that Pacific Pines is the fastest growing residential area in the relevant vicinity. The evidence of Mr Dutton, the project director, was that a great deal of attention has been, and is being, paid to the development of a high quality residential area. No one disputes that and my inspection of the estate confirmed it. I think it more probable than not that the predictions of Pacific Pines set out above will come about.

6. The site itself lies towards the south east of Pacific Pines. It is obviously not in the geographical centre of the estate but given the relatively short distances concerned and the road network (present and projected) it is conveniently enough situated to all parts of the estate and indeed to neighbouring areas, particularly further to the south.

7. A relatively small portion of the estate is in the Residential A zone with the balance area (including the site) being in the Special Residential Zone pursuant to a re- zoning in December 1993 subject to conditions the most relevant of which is (as now worded):-

   “The development of subdivision of the land must be carried out in accordance with Plan of Development No. 1-95 and the Development Agreement approved by Council ..... .”

8. That Plan of Development and Development Agreement descend into considerable detail on the manner and form of the proposed development of Pacific Pines Estate. Late in 2001 (after it had instituted these appeals) an application was brought by Westfield seeking a declaration that the two documents were unlawful and of no effect and that the Council’s approval of the subject applications, having been influenced by them, ought to be set aside. I dismissed that application and an appeal by Westfield to the Court of Appeal was also dismissed.

   Neighbouring Business Centres

9. The most relevant business centre in the relevant area is the Helensvale Town Centre which lies on the eastern side of the Pacific Motorway directly opposite Pacific Pines and about 4 km from it. It contains Helensvale Plaza (which has a full line supermarket and specialty shops). More importantly for the purposes of this appeal it contains a large vacant block of land, near the Helensvale Railway Station, on which Westfield proposes to build a sub-regional centre.

10. That Westfield proposal, as originally proposed in 1996, was for a centre of about 60,000m² to contain a department store, two discount department stores, two supermarkets (of a total area of 8,000m²). That involved an application to rezone to which there were objections (not from either Stockland or Hospitality) and subsequently, in 1998, Westfield sought to reduce the size to about 38,000 m² (still including two supermarkets totalling 8,000 m² floor area). This Court decided that the modification was not a minor one so that re-advertisement was called for.

11. Westfield’s current application, which has not yet been decided by the Council is for a sub-regional shopping centre with a floor area of 34,000 m² to contain two discount department stores, two supermarkets, a mini-major store and specialty shops. It may contain a cinema and it may contain a tavern. Woolworths have indicated an interest in taking up one of the planned supermarkets, notwithstanding their commitment also to take up the supermarket component of the Stockland development.

12. Other shopping centres in the relevant area are a district centre at Oxenford and neighbourhood centres at Studio Village (3 km to the north), Gaven Heights (4 km north-west) and Arundel Plaza (4 km to the east). There are taverns at Oxenford, Helensvale Plaza and Arundel Plaza.

    The Issues

13. The issues raised by Westfield were very many, highly detailed, and often overlapped. It might be described as a broadside delivery consisting more of canister than of round shot. I agree with the observation of Robin DCJ in Vynotas Pty Ltd v. Brisbane City Council (2001) QPELR 14 @ 16, that such a diversity of raised issues can lead to uncertainty about what is, and what is not, important. It can also extend the length of an appeal and can oblige the judge to write an overlong judgment which discusses many things which do not much matter.

14. Trying to avoid that trap I think I can reduce the many issues to a few and summarise them under the headings of (a) relevant statutory provisions; (b) piecemeal applications; (c) improper considerations; (d) need; (e) frustration or delay; (f) prematurity.

    Relevant Statutory Provisions

15. I was referred to nothing in the superseded town planning instruments for the land which argued against these applications. On the contrary, they appeared to contemplate some retail development at or about Pacific Pines.

16. The current planning scheme is the 1995 Albert Shire Planning Scheme, which is a “transitional planning scheme” under 1PA (s.5.6.1.3). Accordingly, because of s.6.1.29 of IPA these applications are to be assessed and decided to all intents and purposes as if they were applications for rezoning under s. 4.3 of the Local Government (Planning and Environment) Act 1990 (“the P&E Act”).

17. The two most relevant statutory documents are the 1995 Strategic Plan and the Albert Corridor Development Control Plan (“DCP”). There is also in existence now a draft new Town Plan for the City of the Gold Coast which has reached the public notification stage.

18. Careful attention must be paid to the provisions of the Strategic Plan and to those of the DCP which is the most detailed plan for the relevant area. While some weight can be put on the Draft Plan (see Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 177 @ 125; Colonial Sugar refining Co Ltd v Sydney City Council (1959) 4 LGRA 1 @ 28), it must be understood that the process for its promulgation still has a way to go and it could well change. So only moderate weight should be put on it. However it is noteworthy that in the Draft Plan the site is included in the Local Business Domain so that the proposed uses are compatible with the likely future planning instrument.

19. Westfield submitted that any support to be obtained by Stockland and Hospitality from the Draft Plan is colourable. As I have said the site lies in the Local Business Domain in that draft, but in the draft as it first appeared, the site lay in the Detached Dwelling Domain, a domain consistent with its current zoning, the Special Residential Zone. Such a domain does not contemplate the uses applied for by Stockland and Hospitality.

20. On a date between the Council’s decision to approve the applications and the institution of these appeals Stockland’s agents wrote to the Council suggesting the alteration of the relevant Domain and the Council complied with that request.

21. In Flinn v Bundaberg City Council (1972) 24 LGRA 408 at 411 Mylne DCJ treated as colourable an attempt by the Council to re-classify the type of activity under review so as to make the Council’s decision unappealable. At the time of the re- classification the appeal was actually afoot. That was not the fact here.

22. I see no warrant for the drawing of an inference adverse to Stockland here. Historically (as witness the Strategic Plan and the DCP) the Council has long intended commercial development of this site. A similar intention can be seen in the Detailed Precinct Plan for the relevant area, as to which see para [36] post. In the light of that it is a far more likely inference that the failure to put the site into the Local Business Domain was an oversight which Stockland’s agent brought to the Council’s attention.

[25] The relevant land is included within the Urban Residential Description under the
1995 Strategic Plan and in s. 1.4.4.8 this important provision appears:-

“Urban Residential Objective 7

To provide for the establishment of district level shopping and commercial facilities, to complement the proposed structure of Major Business Centres.

Implementation

(i)           While Major Business Centres are intended to provide the highest order retailing, commercial and community facilities for the residents of the Shire, in some situations, significant lower order centres are also planed, these will provide more convenient opportunities for residents to obtain, in particular, shopping requirements, and business and professional services. These centres may conveniently be described as district centres. The size of these centres will vary, depending upon their location, their relationship to Major Business Centres, and the population and character of the district they are intended to serve. They are not located specifically on Strategic Plan Map 5, but are intended to be established as part of the development of Urban Residential areas. The function of district centres is primarily related to the supply of weekly grocery shopping requirements. At the highest, they may included a discount department store as well as limited specialty shops; however whether a centre of such size will be appropriate in a particular situation will be evaluated, inter alia, taking into account the location of the centre in relation to proposed Major Business Centres, and the catchment areas intended to be served by the Major Business Centres. Large district centres will not be permitted to establish in situations where their development would unduly compromise the intended development of retailing facilities in a proposed Major Business Centre, nor in another district centre; alternatively, their size may be limited according to those criteria.

(ii)        While district centres are not located on the Strategic Plan Map 5, the location of future district centres should meet the following criteria –

(A)	convenient to the major road network of the district intended to be served;
(B)	where possible, physically associated with district- level recreational facilities, secondary schools, service industry areas, open space areas, and/or other major non-residential land uses; and
(C)	central to the population intended to be served.

(iii)       It is intended that district centres will be established in the

following locations, to serve the following respective areas –

…

(F) Gaven/Oxenford serving area west of the highway
between Coombabah Creek and the Coomera
River;..”

1. More specifically, the DCP contains this definition:-

   “2.6.1.5 Definitions

   ‘Neighbourhood Centre’ means the local or district commercial centre of an urban or suburban neighbourhood, typically comprising retail, professional services, local businesses, service industry, entertainment facilities, restaurants and community services.”

2. It is noteworthy that paragraph (i) of the Strategic Plan objective contemplates “weekly grocery shopping requirements” and it seems to be accepted by all that the phrase describes the service provided by a full line supermarket. I leave aside for the moment the important question whether in this case a Pacific Pines Woolworths would “unduly compromise” the intended development by Westfield. As to paragraph (ii), all three requirements would be met by this proposed development and it is, of course, within the area referred to in paragraph (iii)(F).

3. On the relevant DCP map within the sector which includes Pacific Pines, three “neighbourhood centre” symbols are displayed, one of which coincides with the site. Section 2.6.3.3 of the DCP provides that the sector will need up to 52,000m² of retail floor area, with 33,600 m² situated in the town centre and the balance distributed in neighbourhood centres. As the map contains only three neighbourhood centre symbols, that indicates that an average retail floor area of something just over 6,000 m² for each was contemplated. That is about the size of the Stockland/Hospitality proposed development and considerably larger than the Stockland development if one ignores the Hospitality tavern.

   Piecemeal Applications

4. The submission of Mr Bowie, the solicitor who appeared for Westfield, was that the three applications are in truth for one integrated development, the components of which are interdependent. He expressly abandoned any argument that the applications were misleading. Instead his submission was that because there were three applications, rather than one, the Council was unable to apply a proper consideration to them. This argument was based on the following passages from Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485:-

   “To sever an application in this fashion is likely to impeded its proper
   consideration. Only if it is presented as a whole and at the one time is there likely to be full opportunity for the tribunal and for objectors properly to assess it in all its aspects. The present case demonstrates the consequence of piecemeal application. Although the application before Judge Given was in terms confined to the quarry site, both the proposed access route to the south and the general topic of transportation of quarry products was necessarily much to the fore. His Honour’s judgment in consequence gave careful consideration to all aspects of the quarry operation and, in the outcome, strict conditions were imposed concerning amounts of quarry products which might be transported from the site and the times of day during which this might be done. All this would tend to make it difficult for the Council or, for that matter, the Local Government Court, to treat as other than somewhat of a formality any subsequent application for consent to the proposed access route. To a degree at least, the outcome of that subsequent application would have been prejudged, and this despite that fact that the consent given to the first application was conditional upon consent being granted to the later access route application.
   Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard, there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination in the first application, whether by the tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; but when that second application is heard, it is likely to be much dominated by the outcome of the first.” (At 504, per Stephen J)
   And at 505, his Honour added:
   “All this, of course, places no obstacle in the way of applications where
   consent becomes necessary for the extension of an existing use to adjoining
   land or where an applicant for consent to a proposed use contemplates that
   there will later be an extension of that use. It is only where land is
   proposed to be used for the one purpose at the one time that consent for its
   use must be applied for in the one application.”

5. And Wilson J said at 541:

   “…it is not open to an applicant arbitrarily to nominate a limited area of

   land and thereby restrict the range of incidental uses which he must disclose in his application. Rather the converse is true. The extent of the land in respect of which an applicant must seek consent is dictated by the proposed use including all incidental uses necessarily associated with the primary use in respect of which consent is required.”

   And at 518:
   “The area of ‘the land to which the application relates or applies’ will be
   identified by reference to the proposed use, including uses incidental to and
   necessarily associated with the proposed use.”

6. In this case I am unable to see any respect in which the consideration of any one of these applications could prejudice the fair consideration of the other two or either of them. None of them is “incidental to and necessarily associated” with another of them. They are quite independent, as reference to each application shows. Each identifies its intended position on the site. Each identifies its points of access and available car parking. The fact that each will, no doubt, complement the others does not make them interdependent when none of them relies on the existence of another as a sine qua non to its own existence.

1. Each application was considered by the Council on the same day and each received a separate approval. I was not referred to any condition of approval of any one application which necessarily relied on the approval of either of the other two.

2. I see nothing untoward in the fact that the Council considered the three applications on the same day (and no doubt considered each in the knowledge of the others). To do otherwise would have been a very curious exercise indeed. Councils live in a real world and in a real world they must know of, and take into account, such things as any plans which an applicant has to complement, improve or expand its initial intended development. Indeed, I expect a ground of appeal would have been forthcoming based on any apparent failure of this Council to do that in this case.

3. I have found that each application was independent of the other, and so dealt with by the Council, and that is enough to dispose of this issue. I could, however, add that in the circumstances of these appeals it is difficult to see how the Pioneer principle can arise. All three applications were made at about the same time. They were advertised at the same time. The available plans clearly show all three proposed developments. It is common ground that no member of the public could reasonably have been misled. The Council sought full information on each application. The three applications comprising the entire development came before the Council on the same day. On those facts I could not I infer that the Council, armed with such complete knowledge, could have been subject to the improper pressures to which their Honours referred in Pioneer.

Improper Considerations

1. It was argued by Westfield that the Development Agreement and the Plan of Development in some way improperly influenced the Council’s decision to approve these applications.

2. Pursuant to the Development Agreement and the Plan of Development, Stockland prepared various Detailed Precinct Plans (“DPPs”) in the course of development of Pacific Pines. One of them (“DPP3A) relates to the site and it contains an area, coloured blue, which is more or less identical with the site. The accompanying legend describes the blue area as “Commercial and Community Facilities” and lists, among other uses, shops and a tavern. These two uses were prohibited in the Special Residential Zone in which the site lay, so a re-zoning (or now material change of use) application would be needed to develop those uses. In the proceedings brought by Westfield before me for declaratory relief (see para [10] above) I said I saw nothing in these circumstances to invalidate the Development Agreement or Plan of Development. The Court of Appeal in dismissing the appeal from me said nothing to the contrary.

3. The Court of Appeal, at para [11] of its judgment, makes it clear that the central question before it was “whether the Council took [the documents] into account in deciding the applications or whether, if it did, it considered itself bound by those documents”. The Court held that the evidence showed that the documents were taken into account only as background information and that there was nothing to suggest that the Council had considered itself bound by them.

4. The applications to which the Court of Appeal referred were, of course, these very applications which are for commercial development. A submission by Mr Bowie (based on the use of the phrase “residential development” in para [13] of the Court of Appeal judgment) that reference to the documents can be had only for the purposes of residential development and not for commercial development therefore cannot be correct. The Court of Appeal at para [18] of its judgment held that the documents were relevant to the Council’s consideration of these three applications.

5. I do not accept, after the hearing of this merits appeal, that the evidence establishes any unlawful or improper use of the Plan of Development or the Development Agreement by the Council in reaching its decisions.

   Need

[40] In Elfband Pty Ltd and Vanhoff Pty Ltd v Maroochy Shire Council and Ors [1995]
QPLR 290, McLauchlan DCJ said (at p.313) that –

“Planning need is no doubt a more general issue than economic need, but it seems to be obvious in cases such as this that unless there is an economic need there will be no planning need. It is therefore essential that the evidence establish, as I consider it has, that there is an economic need for a shopping centre such as Maroochydore Marketplace within the Sunshine Coast retail network. The issue of planning need then focuses upon the question whether the particular development proposed should be permitted, involving as it does an amendment to the planning scheme.”

[41] In Cut Price Stores Retailers Ltd & Ors v Caboolture Shire Council [1984] QPLR
126, at 131 this appears: –

“’Need’ in cases such as this does not mean pressing need, critical need,

widespread desire, or anything of that nature. A thing is needed if its provision, taking all things into account, improves the physical well-being of the community.”

[42] In Harburg Investments Pty Ltd v BCC (2000) QPELR 313 at 317, where a
convenience retail centre was under consideration, this appears:-

“To state a truism in assessing need when a development is being proposed, one
must bear in mind the nature of that development…”
“Stress must be laid on the convenience to the likely patrons of those
developments. Some patrons will prefer to visit one centre rather than another for
idiosyncratic reasons which may relate to such things as the perceived
convenience of access, the atmosphere of the development, the range of goods and
services available and the personalities of the people employed there … it is in
this sense that convenience and thus need should be judged.”

1. In Landel Pty Ltd and Landres Pty Ltd v Redland Shire Council [Appeal No. 1363 of 2001; Judgment 25 March 2002; Unreported], in accepting the evidence of Mr Michel from Woolworths (who also gave evidence in this case) and other consultants whose evidence supported the proposed development, Quirk DCJ said this at his paragraphs [20] and [21]:

   “Economic need is only one component of need as it is understood in a planning sense. Weight must be attributed to the interests of the community and to a greater extent than to those of existing operators of retail facilities…”

   “It was explained that, in more recent times, with changes social patterns there have been subtle alterations in shopping habits. With more working couples, greater emphasis has been placed upon smaller and more frequent visits to supermarkets and these visits often being made on the way home from work. As a consequence patrons are arriving later in the evening and supermarkets have responded by extending trading hours. At such times large ‘mall’ type complexes are often uninviting, with speciality shops closed and car parking sometimes not really conveniently located. The advantages of the stand alone complex with nearby parking is obvious and, in this way, the proposal is aimed at providing a convenience opportunity to respond to a particularly community requirement.”

2. Expert evidence was given by Mr Norling on behalf of Stockland and Hospitality that there exists an urgent planning need for stage 1 of the proposed shopping centre there being at present virtually no availability of that service within the relevant catchment area. He concluded that for the other stages of the planned retail centre (notably the supermarket) there exists a strong planning need which was not being met by any other facility. He also found that there was a strong planning need for the proposed tavern.

3. Mr Henshall, another expert in the same field was called by Westfield and it was his view that, while there was some need for the Stage 1 development there was no need at all for the other retail development. Mr Kleineberg, another expert in the field considered that there was no planning need for the proposed tavern, the current demand being adequately met by taverns existing within convenient distances from Pacific Pines.

4. Three residents of Pacific Pines gave evidence that they would patronise the proposed development. I though they were genuine and their expressed wishes were understandable. A Pacific Pines resident who was called by Westfield was opposed to the development but while I do not doubt her genuineness it seemed to me that her work and life has caused her to become firmly attached to the Helensvale Town Centre, to the exclusion of Pacific Pines.

5. I would have thought that, considering the size of Pacific Pines, its rate of growth, the easy accessibility of the site to all parts of the estate (which will become easier still when another substantial collector road is constructed to the west of the estate) and the presence near the site of the schools, the concept of need would not be difficult to establish. But in any event I consider that the evidence of Mr Michel, of Woolworths, put the matter beyond any doubt.

6. Mr Michel is an experienced, senior, executive of the most successful supermarket operator in Australia, and more specifically, Queensland. He is confident that the full-line supermarket which Woolworths intends to run in the Pacific Pines shopping centre will trade successfully. He says, and I accept, that the likely pattern of shopping will be as he described it in Landel (see para [43] above), that is, frequent convenience trips.

7. The fact that sufficient residents of Pacific Pines (and possibly nearby areas) will patronise Woolworths on the site to make it a profitable venture for Woolworths establishes very clearly to my mind that those large numbers of people will consider that venue to be more convenient for that type of shopping than any other venue. That convenience will improve the physical well-being of the community. Thus the existence of the planning need for the supermarket has been established.

8. Mr Michel’s evidence, which I found to be compelling, persuades me that I should accept Mr Norling’s evidence of economic and planning need rather than the other experts. His evidence of the appropriate catchment and the likely numbers of patrons of the proposed development is more consistent with Mr Michel’s predictions.

9. Westfield’s opposition to the other retail and professional offices and to the tavern was by no means as vigorous as the opposition to the supermarket. Indeed, the oral submission of Westfield’s solicitor seemed to me to go very close to conceding the non-supermarket development. Leaving that aside, the evidence satisfies me that need for the integrated development has been established, that is not just for the supermarket but also for the specialty shops and the tavern. The fact that Mr Quinn of Hospitality, a greatly experienced hotelier, is confident of a profitable return for the tavern is an important step in establishing need. The catchment area identified by Mr Norling has none of those facilities at present. While access to them elsewhere would not be specially arduous, it is clear that access to the site is considerably more convenient. In saying that it is relevant to bear in mind the proximity of the site to the schools as well as the fact that trips to the specialty shops, professional offices and even the tavern could well occur as a side trip in association with the supermarket trip. That is an aspect of convenience to the residents of Pacific Pines.

10. On the question of convenience of access to the site, while I did not see a violent difference of opinion between the two traffic engineers Mr Holland and Mr Eppell, I preferred the evidence of Mr Holland on travel times. He himself drove and timed the trips and was careful to avoid skewed results. Furthermore I accept his evidence that the manoeuvre necessary to turn into Helensvale Plaza could be perceived by some drivers to be stressful. Indeed the necessity to drive among greater numbers of vehicles at higher speeds in order to get to the Helensvale Town Centre compared with getting to the site could well sway some people towards the site.

11. Finally, aided by the inspection I had, I do not think that Glade Drive can be considered an appropriate or convenient means of access to the Milaroo Road underpass and thereby to the Helensvale Town Centre.

    Frustration or Delay

12. Stated shortly, this issue deals with the effect of the development of the Pacific Pines shopping complex on the development of a sub-regional shopping complex in the Helensvale Town Centre by Westfield.

13. In my view the planning statement most relevant to this question lies in the extract from the Strategic Plan cited in para [25] above. It immediately establishes the importance of the major business centre (Helensvale Town Centre) but follows that with the statement that smaller, or district, centres which provide convenient shopping for the residents will be appropriate. The proposed Pacific Pines shopping development is such a district centre. It will have the function specified by the Strategic Plan of catering for weekly grocery shopping. While the planning documents do not satisfactorily define a district centre in terms of floor area, in my view a general reading of them (and of the Activity Centre Strategy commissioned by the Council for its preparation of the Draft Plan) suggests that a district centre ranges in size from about 5000m² to about 12,000m². So the proposed Pacific Pines district centre is a small one.

14. The caution laid down in the Strategic Plan is that a large district centre must not “unduly compromise” the intended development of the Westfield centre. What does the evidence establish on this point?

15. The phrase “unduly compromise” is of course a qualified statement. Any one shopping centre is likely to have some effect of compromise (that is, create some economic risk) on a nearby one. It may be a major risk or a very minor one. The strategic plan recognises that by applying the adverb “unduly”.

16. My first comment is that Westfield’s movements in the field to date have been rather unconvincing. In 1996 it proposed a centre of a size which now seems to have been grossly over-large. Its current application is for approximately half the size of the 1996 development. It is at least quite possible that, had the current application been made in 1996, the Westfield centre would now be trading.

17. The evidence of Mr Miles, on behalf of Westfield, consisted more of hints that a Pacific Pines shopping centre might delay or frustrate Westfield’s plans than hard evidence of that likelihood. His evidence suggested that, at least initially, Westfield might be forced to accept somewhat lower rentals. But despite that, he confirmed that Westfield was committed to developing the Helensvale site and that Woolworths was a likely tenant of one of the two planned supermarkets.

18. Mr Michel’s evidence was that if both the Pacific Pines and the Westfield developments proceeded he would be happy to establish a Woolworths full-line supermarket in each and would expect each to trade profitably in each and would expect each to trade profitably. Woolworths know that another full-line supermarket is planned for the Westfield Centre (for example Coles) and I infer that Coles would expect to trade competitively with Woolworths, that is, profitably. Otherwise I do not consider that it would operate there. But that was not Mr Michel’s view of it. He expects competition from another full-line supermarket.

19. So the evidence satisfies me that even with the Pacific Pines centre operating these two major tenants of Westfield would trade profitably. In the light of that finding, why would not Westfield press on to develop its sub-regional centre? I find, on the balance of probabilities, that it will.

20. I am unable to find that the Pacific Pines centre would be likely even to delay the Westfield development in any meaningful way. I note that the planning documents lay down no table or order of development of the different sorts of shopping centres. Mr Miles did not give any estimate of likely delay. Finally, there has already been extraordinary delay by Westfield and I would be reluctant to ascribe any further delay to the development of the Pacific Pines centre.

    Prematurity

21. Westfield has alleged that approval of the Pacific Pines centre is premature, apparently on the basis that the total population which the facilities will ultimately serve is not yet in place.

22. Prematurity is usually only a reason for refusing an application if it involves some substantial public disbenefit. The classic example is where the provision of infrastructure (such as water and sewerage) to a development will prejudice or make more expensive the provision of such services throughout a locality. This circumstance is not present here.

23. There is no principle that a commercial facility cannot be provided until population of its catchment is all in place. There are authorities to the contrary. See for example Cairns Real Estate Pty Ltd v Cairns City Council [1996] QPELR 319 at 327) where Daly DCJ said:

    “I should say that I accept the submission that it is not necessary for it to be established that either stage be immediately viable upon opening. It must be a rare investor who thinks a capital investment of this kind would give an immediate return.”

24. In reality a growing population enjoys early benefits if developers are prepared to provide them with facilities sooner rather than waiting for the catchment population to be filled. It is not good planning to allow a population to be created without any facilities, forcing it on to the arterial road system to obtain, for example, its convenience shopping. Furthermore it is difficult to see prematurity when the DCP specifically locates a shopping centre at the site. The people of Pacific Pines will benefit from the facilities and even if the developers (Westfield and perhaps Stockland and Hospitality too) do not immediately enjoy large profits from their developments that is of no real importance in considering the planning merits.

    Conclusion

25. There is no express conflict with the provisions of the Strategic Plan or the DCP in the development proposed by Stockland and Hospitality. Even were it to be the case that some technical conflict can be established, there are sufficient planning grounds (particularly need) to justify the approvals notwithstanding that conflict. The appeals are therefore dismissed.