Westfield Management Ltd v Moreton Bay Regional Council - [2012] QPEC 51

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Westfield Management Ltd v Moreton Bay Regional Council & Ors [2012] QPEC 51

PARTIES:

Westfield Management Ltd (ACN 001 670 579)
(appellant)

v

Moreton Bay Regional Council
(respondent)

And

Horizon Property Partners (ACN 089 540 625)
(co-respondent)

And

Land Partners Limited (ACN 118 0146 008)

FILE NO/S:

2580/2011

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

DELIVERED ON:

30/08/12

DELIVERED AT:

Brisbane

HEARING DATE:

18/06/2012 – 26/06/2012

JUDGE:

Searles DCJ

ORDER:

APPEAL DISMISSED

CATCHWORDS:

Whether Conflict with Panning Scheme – Local Area Plan

COUNSEL:

Applicant: JG Gallagher QC & M Johnston
First Respondent: N Kefford
Second Respondent: CL Hughes SC & J Lyons

SOLICITORS:

Minter Ellison

Morton Bay Regional Council

Clark Kann

INDEX

Introduction
The proposal
Impact Assessment
Subject site
Surround locality
The Previous Approval
Statutory regime
Issues in dispute
Planning documents
Preliminary Approval
Mango Hill Local Area Plan in context – weight to be attributed to Mango Hill Local Area Plan
Details of relevant Planning documents
Town Planning Evidence
Individual Planning Issues Identified by Experts

Mr Reynolds expanded on the Individual Report
Mr Simonic (Council)
Mr Schomburgk (Horizon)
Mr Schomburgk’s Individual Report

Economic Need Evidence – Joint Report

Areas of Agreement Amongst Economists

Trade Area – Proposed Development
Trade area population

Competition
Economic demand
Key issues in dispute amongst economic experts

Economic community and planning need

Mr Duane
Mr Leyshon
Mr Brown

Impact on retail hierarchy

Mr Duane and Mr Brown
Mr Leyshon

Scale of development as intended in the Planning Scheme

Mr Duane
Mr Leyshon
Mr Brown

Whether the proposed development is consistent with the orderly and balanced development of the area

Mr Duane and Mr Brown

Premature development

Mr Leyshon

Overall need

Mr Duane and Mr Brown
Mr Leyshon

Individual reports of Mr Duane and Mr Brown

Traffic

(a)          Kerb Lane taper inappropriately positioned
(b)          Access to Halpine Drive too close to access to development across the road
(c)Issue of U-turn at Halpine Drive/Mango Hill Ring Road Intersection
(d)      Site access from site access point to basement two indirect and subject to parking/unparking manoeuvres.
(e)       Suitability of Bowen Street as an access route

Conclusion re traffic issues
Consideration of issues in dispute
Is there a conflict with the Planning Scheme?
Westfield Submission
Mango Hill Development Control Plan (DCP)
Horizon’s response to Westfield’s submission
Mango Hill Development Control Plan
Council’s Submissions
Conclusion re conflict with Scheme
Assuming a conflict with the Planning Scheme exists, are there sufficient grounds to approve the application notwithstanding that conflict?
Westfield’s arguments re sufficient grounds
1. Adverse impact on planned local centres
2. Existing Coles Supermarket in close proximity
3. Lack of planning need
Responses of Horizon and Council re sufficiency of grounds
Conclusion re sufficient grounds
Does the proposal conflict with the Mango Hill Local Area Plan?

Westfield’s submissions
Horizon’s response re conflict with LAP

Council’s submissions re conflict with Mango Hill Local Area Plan
Conclusion re conflict with Mango Hill Local Area Plan
Conflict with Preliminary Approval?

Westfield Arguments
Horizon and Council response
Conclusion re conflict with Preliminary Approval

Overall conclusion

Schedules

Introduction

This submitter appeal was commenced on 18 July 2011 by the appellant (Westfield) against a decision of the Respondent (Council) to approve, subject to conditions, an application by Horizon for development permit for a material change of use (commercial services, food outlet, office, shop and showroom) in accordance with Preliminary Approval 2007/11432 negdec.

The proposal

The proposal is for a mix of commercial and retail tenancies with a total floor area of approximately 7,683m2 (excluding storage areas, plant and amenities). The development proposes four separate buildings on the site incorporating:-

· A full-line ‘Coles supermarket with a floor area of 3,920m2 located within Building 1 excluding storage areas and plant room’. The total floor area is 4,020m2;

· Specialty retail space of 1,331m2 and 593m2 of office space also within Building 1 with the supermarket, along with a plaza area, storage areas and plant room;

· Building 2 adjoining Halpine Drive with office space of 540m2 at ground level and specialty retail of 694m2 above ground level.;

· Stand alone Building 3 at the Corner of Anzac Avenue and Halpine Drive with a floor area of 259m2 along with an outdoor seating area;

· A fast food store with a drive through for a KFC restaurant with a floor area of 346m2 in Building 4;

· On-site carparking for 412 vehicles – 257 carparking spaces at ground level, 155 car spaces and 3 motorbike carspaces at basement level beneath Building 1;

· Covered pedestrian access from the corner of Halpine Drive and Anzac Avenue and;

· Bus stop and shelter on Halpine Drive adjoining Building 2.

As to the proposed full-line Coles Supermarket, Mr Atkins of Coles gave evidence that in the event the proposal proceeds, that Supermarket will include:

(a) a full fresh produce section;

(b) in-store bakery;

(c) butcher;

(d) full grocery line;

(e) gourmet deli;

(f) seafood; and

(g) general merchandise and apparel.[1]

[1]Exhibit 10, p 5 [32]

Apart from Coles, other businesses interested in a tenancy if the proposal proceeds is the Coffee Club[2] and Jetts Fitness[3] a 24 hour gym organisation. Vehicular access is proposed from Halpine Drive, with a secondary access located at the southeast corner of the site for service vehicles.

Impact Assessment

[2]Exhibit 11, Statement Craig O’Neill

[3]Exhibit 30, Statement Anthony Paul Merlo

Because the shop component exceeded a floor area of 2,500m2 the Application is Impact Assessable as to that component.[4]

Subject site[5]

[4]Joint Planning Report Exhibit 5(4), p 85

[5]Ibid, p 83

The site, described as Lot 1 and 2 on SP 221146 having a total area of 2.3685ha, is located at the corner of Anzac Avenue and Halpine Drive, Mango Hill. . It slopes down from Anzac Avenue and Halpine Drive to the rear of Bowen Street and is presently vacant and devoid of any significant vegetation. It is included within the Urban Locality and Major Employment Centres Locality under the Pine Rivers Plan 2006 (the Plan). That part of the site included in the Urban Localities is included in the Residential A zone and within sub-precinct RA-9. That part of the site included in the Major Employment Centres Locality is included in the Future Urban zone.

Surround locality[6]

[6]Ibid, p 83

The area immediately surrounding the site consists of a mix of retail, commercial and service activities along Anzac Avenue, with residential dwellings to the south of the site.[7]
[7]Ibid, p 120 – Surround Land Use Plan

The northern boundary of the site fronts Anzac Avenue with a range of commercial, retail and entertainment uses located along that Avenue. On the opposite corner of Anzac Avenue and Halpine Drive is the Mango Hill Tavern and a small retail centre with shops, takeaway food and offices. Diagonally opposite the site on the corner of Discovery Drive and Anzac Avenue is a BP service station, McDonalds and Red Rooster and a small number of shops. Further to the north of the commercial/retail development abovementioned are office buildings and to the northwest the North Lakes Development.

To the east of the site is a new residential subdivision with a range of residential lots. Land opposite the site on Halpine Drive is currently vacant but approved for a 78 unit apartment development. To the south of the site on land identified in the Mango Hill Local Area Plan as the Local Centre is another vacant site with a current approval for a 100 townhouse development. It is common ground that, as a result of the Preliminary Approval the subject site is now recognised as the Local Centre, given the proposed location of the Mango Hill Railway Station to the south of the site as part of the Moreton Bay Rail Link Project expected to be operational around 2016.[8]
[8]Ibid, p 84

Westfield North Lakes Shopping Centre is located on Anzac Avenue some 700m from the subject site and in the Centre Core. It has a floor space area of 57,000m2 and includes a Myer Department Store, discount department stores Big W, Target and Woolworths, Coles and Aldi Supermarkets and approximately 179 specialty retailers. The Centre is identified as a Major Activity Centre in the Plan.

Adjoining Westfield North Lakes is a range of mixed use facilities including shops, commercial services, food outlets and the like along North Lakes Drive, and to the north of the Centre a Woolworths Masters Hardware store is currently under construction, located in the Town Centre Frame area.

The Previous Approval

By Negotiated Decision Notice – Preliminary Approval and Development Permit dated 2 December 2009[9] the Council advised of its decision of 30 November 2009 to approve, with conditions, an application for a Preliminary Approval – Material Change Of Use (in relation to Lots 1 and 2) and Development Permit – Material Change Of Use for Lot 1. The Preliminary Approval included[10] a Table of Development approved by Council so that all future Development Applications in relation to the land were to occur in accordance with that Table. Further, Council identified, relevantly, that the Mango Hill Halpine Drive Mixed Uses Design Code was considered by the Council generally appropriate for the assessment of any future Development Applications over the land. It is common ground that, pursuant to s 3.1.6 of the Integrated Planning Act 1997 the Table of Assessment and Design Code overrode the Planning Scheme in relation to the future development on the land. Specific Outcome SO5 of that Code[11] specifically identifies Lot 1 as the Local Centre for Halpine Drive.

Statutory regime

[9]Exhibit 5(1), p 160

[10]Ibid, p 169

[11]Exhibit 5(1), p 129.

The Application (Application) was made during the currency of the now repealed IPA. By operation of s 819 of the Sustainable Planning Act 2009 (SPA) the appeal must be heard and decided under IPA as though SPA had not commenced. Westfield’s right of appeal is confined by IPA s 4.1.28 to that part of the Council’s approval which required Impact Assessment under IPA s 3.5.14 which is the shop component the definition of which[12] in the Scheme expressly includes a supermarket. The mandate for Impact Assessment is to be found in the abovementioned Council approved Table of Development as part of the Preliminary Approval.[13] The focus of the appeal was on the supermarket, its size and resultant impact.
[12]Exhibit 6, p 294.
[13]Exhibit 5(1), p 127.

The Application is to be assessed in accordance with IPA s 3.5.5 and decided in accordance with s 3.5.11. Under s 3.5.14 the decision must not compromise the achievement of the Desired Environmental Outcomes of the Planning Scheme, or conflict with the Planning Scheme unless there are sufficient grounds to justify the decision despite any conflict. The onus is on Horizon to satisfy the court that the appeal should be dismissed.[14] Finally, IPA s 3.5.5(2)(d) requires the court to have regard to any Development Approval which in this case calls for me to have regard to the Previous Approval and Development Permit.

Issues in dispute

[14]IPA s 4.1.52(2)(a).

Broadly speaking, the following issues are in dispute:-

(a) Whether the proposal is in conflict with the Planning Scheme and if so, whether there are sufficient grounds to approve the proposal notwithstanding that conflict;

(b) Whether the proposal is in conflict with the Mango Hill Local Area Plan (LAP);

(c) Whether the proposal is inconsistent with the previous shopping centre approval of 30 November 2009; and

(d) Whether there are any traffic issues which warrant refusal of the proposal.

Planning documents

The relevant Planning Documents are:

(a) The Planning Scheme, Pine Rivers Plan 2006 (Plan);

(b) The Mango Hill Infrastructure Development Control Plan (DCP).[15] That DCP is incorporated into the Scheme Chapter 3 of the Plan dealing with the North Lakes Locality.[16]
[15]Exhibit 6, p 315.
[16]Ibid, p 268.

(c) Council Policy No: 11-2150-10-Planning For Development within the Northern Growth Corridor (NGC) Exhibit D thereof being the Mango Hill Local Area Plan;[17]
[17]Ibid, p 481.

(d) The Pine Rivers Plan Temporary Local Planning Instrument (TLPI) 01/11 Moreton Bay Rail Link (TLPI);[18]
[18]Ibid, p 464.

(e) The Table of Development and Mango Hill, Halpine Drive Mixed Uses Design Code (Design Code)[19] forming part of the Preliminary Approval of the Council of 30 November 2009;[20] and
[19]Exhibit ,5 p 169.
[20]Ibid, p 160.

(f) The SEQRP.

Preliminary Approval

All parties agree on the relevance of the LAP but there is a divergence of views on the importance to be attached to it. Westfield says that, on the express wording of the LAP, it is an important document to be afforded significant weight as representing the Council’s planning for the Site.[21] Horizon submits that the policy intent of the LAP is to be discerned and applied without applying the policy blindly and automatically or interpreting it as if it was a statute.[22] The Council’s[23] position is that the LAP is neither a part of the Scheme nor a Planning Scheme policy and hence is not a mandatory consideration involved in the assessment under IPA s 3.5.5. Having said that, the Council acknowledges that it may be taken into account.

Mango Hill Local Area Plan in context – weight to be attributed to Mango Hill Local Area Plan

[21]Exhibit 39, Westfield’s closing submissions [93].

[22]Exhibit 41, Horizon’s closing submissions [132].

[23]Exhibit 40, closing submissions [90], [93] and [94].

It is appropriate to consider the LAP in context. Mr Rawlinson, the Council’s Regional Strategic Planner, was directly involved in the preparation of, and the Council adoption of, the LAP and gave evidence of its history.[24] He explained that, prior to the adoption by Council of the current IPA Planning Scheme, the Plan, the 1998 Consolidated Planning Scheme for the Shire of Pine Rivers was the Transitional Planning Scheme and included the Pine Rivers Strategic Plan. That Plan identified Urban Areas intended to be used principally for residential purposes and other uses including local shopping. Land at Mango Hill was included in that Urban Area preferred dominant land use though at that time, water and sewerage services were not available to the land.
[24]Exhibit 31.

In 2001, subsequent to the introduction of IPA in 1998, the Council, commenced preparation of a new Planning Scheme to comply with IPA. Resource constraints hindered the Council from undertaking planning studies and preparing Structure Plans to guide development in the identified un-serviced Urban Areas including Mango Hill. In 2003 the Council received a number of significant development applications relating to land within the intended future Urban Area but outside the water and sewerage headworks areas and, in response, decided to proceed with detailed infrastructure and structure planning. It formed a project group of which Mr Rawlinson was a member, to expedite preparation of Structure Plans for the localities of Mango Hill, Griffin and Dakabin, as Statements of Planning Policy in accordance with the Transitional Planning Scheme. The Mango Hill Structure Plan was prepared as a Statement of Planning Policy under s 38, Part 5 (Statement of Planning Policy) of the Transitional Scheme.

That Structure Plan failed to meet the IPA requirements for Planning Scheme policies and as a result was not intended by the Council to be an IPA Planning Scheme Policy. A letter from the Department of Local Government to Council dated 9 November 2005[25] detailed the reasoning why the Structure Plans were not considered suitable for adoption as Planning Scheme policies under IPA. It explained that they contained definitive statements on the development and use of land within the Structure Plan areas whereas Planning Scheme policies could not regulate development on, or the use of, premises and may only support the local dimensions of a Planning Scheme. Further, the letter advised that the Statement of Planning Policy prepared under the Transition Planning Scheme would cease to have force and effect upon adoption of the IPA compliant Planning Scheme which was adopted on 15 December 2006.[26]
[25]Exhibit 31.
[26]Exhibit 6, p 1.

On 16 March 2006 the Council resolved to adopt the Mango Hill Structure Plan as a Statement of Planning Policy under the Transition Planning Scheme. When the current IPA compliant Pine Rivers Plan came into force of 15 December 2006, the Statements of Planning Policy ceased to have force and effect[27] and on that day the Council resolved to adopt Policy number 11.2150-10-Planning for Development Within The Northern Growth Corridor (NGCP) which incorporated as Schedule D the Mango Hill Structure Plan, renamed the Mango Hill Local Area Plan.[28]
[27]IPA s 2.1.22(6).
[28]Exhibit 31, [14]; Exhibit 5(1), p 28, [1].

The Council minute of that 28 November 2006 meeting contains the following:-[29]
[29]Exhibit 31, Annexure PR1, p 22.

“Executive Summary: Council prepared three Structure Plans for the areas of Mango Hill, Griffin and Dakabin during 2005, 2006 and adopted Statements of Planning Policy for each area in March 2006. To facilitate the application of Council’s development intentions for the areas of Mango Hill, Dakabin and Griffin during the period between the introduction of the IPA Pine Rivers Plan and the completion of amendments to the Plan as a result of the Local Growth Management Strategy that is currently being prepared by Council, it is proposed that Council adopt a policy titled ‘Planning for Development within the Northern Growth Corridor’ incorporating the Griffin Local Area Plan, the Mango Hill Local Area Plan, and the Dakabin Local Area Plan.
Item: The IPA Pine Rivers Plan is expected to come into force and effect on 15 December 2006. While the Statements of Planning Policy PESP 21, 22 and 23 will continue to be considered by Council for applications lodged under the Transitional Planning Scheme, it is also proposed that Council adopt a policy titled ‘Planning for Development within the Northern Growth Corridor’ incorporating the three Structure Plans as Local Area Plans under the head of power provided to Council by the Local Government Act 1993, Integrated Planning Act 1997, SEQ Regional Plan and the Corporate Plan. The objectives of adopting the Planning for Development within the Northern Growth Corridor Policy are to provide:-
·A mechanism for fulfilling the obligations imposed under ‘Desired Regional Outcomes 1-4, 6 and 8-12’ of the SEQ Regional Plan; and
·Guidance to both development components and officers on Council’s planning intentions for development within the Northern Growth Corridor (NGC) of the shire.

It is intended that the policy will apply to development for:-
·A material change of use (including all associated Operational or Building Work); and
·Reconfiguring a lot (including all associated Operational or Building Work);
·Within the Northern Growth Corridor of the Shire for which a development approval is required under the Integrated Planning Act 1997 or the Planning Scheme for the Shire. The policies intended to form the basis for considering development applications over land within the Northern Growth Corridor and as the basis for negotiating infrastructure Agreements for development complying with policy. Applications for development that do not substantially comply with the purpose and intent of the Local Area Plans are unlikely to receive the support of Council, regardless of the actual date that the application is received.”

According to Mr Rawlinson, the Policy was prepared as an internal Council policy for use by Council officers as stated on page 2 of the Policy:-

“This policy forms part of a group of documents which apply for the development of land within the Northern Growth Corridor. Officers are to use that entire group of documents, including the Local Area Plans, as the basis for considering development applications over land within the Northern Growth Corridor and as the basis for negotiating infrastructure Agreements for development complying with those plans.”[30]

[30]Exhibit 31, [18].

He explained that the Policy was not intended as an IPA Planning Scheme Policy so that the required Policy implementation procedure in IPA Schedule 3 was not followed.[31]
[31]Ibid, [19].

This much is clear from the above:-

(a) Whatever its status under the Transitional Planning Scheme, it is not a part of the current IPA Scheme;

(b) It has never been made IPA Planning Scheme Policy pursuant to the procedure laid down in IPA for achieving that status and is an internal Council policy document only;

(c) In any event, having regard to IPA s 2.1.23(4), the content of the LAP is such that it would not qualify as a Planning Scheme Policy in its present form because it goes beyond that which is contemplated as the content of such a Scheme.

IPA s 2.1.23 relevantly provides:-

“2.1.23 Local planning instruments have force of law
(1) ….
(2) A local planning instrument may not prohibit development
on, or the use of, premises.

(3) …
(4) A planning scheme policy may only do 1 or more of the following—
(a) state information a local government may request for a development application;
(b) state the consultation the local government may carry out under section 3.2.7;

(c) state actions a local government may take to support the
process for making or amending its planning scheme;

(d) contain standards identified in a code;
(e) include guidelines or advice about satisfying assessment criteria in the planning scheme.

(5)…”

The process for making or amending an IPA Planning Scheme Policy is set out in IPA s 2.1.19 which requires that the process in Schedule 3 be followed. That involves three stages, the proposal stage, consultation stage and adoption stage.

IPA s 3.5.5(2) is not a code circumscribing the material which can be considered on impact assessment and, as I have said, all parties agree the LAP is relevant. I consider that relevance is founded on its status as common material within IPA s 3.5.5(2)(a) as defined in Schedule 10. Nevertheless, I have difficulty attaching determinative weight to it given its status or, should I say, lack of status, as what can only be an internal Council policy. Council clearly elected not to seek to modify the LAP to ensure its compliance with IPA s 2.1.23 as an IPA Planning Scheme Policy. That decision was made against the background of the preparation of the Local Growth Management Policy commissioned to address, inter alia, possible amendments to the Plan. It can be seen then that the LAP was intended as an interim document pending amendments to the Plan. Since then the Council has commissioned the preparation of a new Local Area Plan.[32] The LAP does not attract the significant weight contended for by Westfield. In Harburg Investments Pty Ltd v Council of the City of Gold Coast[33] and the two cases dealt with therein, namely, Vadale Pty Ltd v Landsborough Shire Council[34] and Percivale Hotels Pty Ltd & Ors v Noosa Shire Council,[35] all the policies under consideration had a relevant nexus to the Planning Scheme. That is, they were Planning Policies under the relevant Scheme and not internal policies as we have here with the LAP.

Details of relevant Planning documents

[32]Mr Rawlinson, T6.22.7-22.

[33][2003] QPELR 203.

[34][1985] QPELR 338 at 341.

[35][1983] QPELR 41 at 44.

The relevant Planning documents are set out in the Joint Planning Report.[36] I have included copies of the full content of the relevant documents in Schedules to this judgment. The relevant documents are:
[36]Exhibit 5(4) p 76.

Pine Rivers Plan 2006 – Schedule A to this Judgment

Some extracts from those documents follow:
Desired Environmental Outcomes
(a)        Division 2           Economic Development Desired Environmental Outcomes
2.2           Business and Industry Activity and Employment
Land use and development maintains a network of multipurpose activity centres, including viable Principal Activity and Major Activity Centres within and outside the Shire, ranging from major employment centres serving the region to local business centres and village centres.
2.3  Centres
Land use and development maintains and promotes a network of multipurpose activity centres ranging from major employment centres serving the region to local business centres and village centres.
(b)        Division 2 Overall Outcomes for the Urban Locality
The overall outcomes for the Urban Locality are the following:-
(1)  The Urban Locality is used principally for residential purposes, including medium density residential development, and also for non-residential uses such as business and community centres containing shopping and office facilities, business and industry areas containing predominantly service industries, schools, open space sporting facilities and some community facilities that are integral to the proper and normal functioning of the residential area;
(3)            Non-residential development is conveniently located and is integrated into the pattern of development so as to maintain the character and amenity of residential areas.

Business and Community Centres
(10)           Centres are attractive, vibrant and integrated places for business and community activities and provide services and facilities for the residents;
(11)           Centres contain a diverse mix of business and commercial activities and community services and facilities and are responsive to community and business needs;
(12)           A network of existing and future centres provide a full range of district neighbourhood and local level retailing administrative and commercial activities;
(13)           All existing business centres are consolidated and compacted rather than expanding or sprawling in a linear fashion;
(14)           New centres are developed in appropriate locations;
(15)           The role and functions of centres are not diminished by inappropriate development in areas adjacent to the existing centres or in unsuitable locations; and
(16)           Development does not have a significant adverse on:-
(a)       The capacity of the Caboolture-Morayfield Principal Activity Centre to fulfil its intended role as the Principal Activity Centre for retail, commercial, recreational, community and cultural uses in the northern Brisbane metropolitan area; or
(b)       Other nearby Regional Activity Centres within and outside the Pine Rivers Shire including Chermside, Strathpine, North Lakes and Brookside-Mitchelton.

(c) 2.3 Overall Outcomes Sought for Residential A Zone
The overall outcomes for the Residential A Zone are the following:-
(3) Non-residential land uses are only established in exceptional circumstances where residential character and amenity are maintained, the uses performed are allied to and compatible with the residential area and the uses do not undermine the viability of local centres.

(d) 2.16 Overall Outcomes Sought for Future Urban Zone
(5) Upon provision and availability of infrastructure required to service urban development a range of residential, commercial, retail, service industry, recreational and community uses of an appropriate scale and intensity occur in suitable locations.

(e)        Division 3 Specific Outcomes and Probable Solutions for the Urban Locality
Business and Community Centres
SO14 New centres are developed in appropriate locations which have the following characteristics:-
(1)              Sites that are centrally located within the catchment for the centre;
(2)              Sites that have a high level of accessibility; and
(3)              Sites that have a high level of visibility.

(f)        Division 2 Overall Outcomes for the Major Employment Centres Locality
2.1           The overall outcomes are the purposes of the Major Employment Centres Locality Code
2.2           Overall Outcomes Sought for the Major Employment Centres Locality

The overall outcomes for the Major Employment Centres Locality are the following:-
(1)              The role of the Major Employment Centres Locality as major centres for the following activities is consolidated:-
(a)       A range of retailing services including comparison-shopping and showroom and specialty merchandising activity;
(b)       A broad range of compatible employment opportunities, general industries and mixed business and industry uses including community services and facilities, business industry and commercial services; and
(c)       Intensive recreation, entertainment, community and cultural facilities and services.

(2) The Strathpine business area in conjunction with the Brendale integrated employment area and the North Lakes Town Centre, in conjunction with the North Lakes mixed business and industry area, are developed as complimentary, major, multipurpose, integrated centres having the following attributes:-
(c) North Lakes Town Centre is a major centre for retail, commercial, cultural, entertainment, leisure and tourist services and facilities.

(6) Development does not have a significant adverse effect on:-

(a) …
(b) Other nearby regional activity centres within and outside the Pine Rivers Shire including Chermside, Strathpine, North Lakes and Brookside-Mitchelton.

(g)        Part 4      North Lakes Locality
Division 1            General Provisions for the North Lakes Locality
Regulation of development within the 1.1             North Lakes Locality

The North Lakes Locality is:-
(2) Regulated by the Mango Hill Infrastructure Development Control Plan.
Status of the Mango Hill Infrastructure Development Control Plan1.2
The Mango Hill Infrastructure Development Control Plan is part of the Planning Scheme for the Pine Rivers Shire and section 6.1.45A of the Integrated Planning Act 1997 applies.

Mango Hill Infrastructure Development Control Plan (DCP) – Schedule B to this Judgment

Some extracts from the DCP are:-
(a)        3.3.1        Town Centre Core
The town centre core is intended to provide the focus for major retail, commercial, cultural, entertainment, leisure, and related development, possibly integrated with high density residential accommodation in either stand-alone buildings or as part of mixed used developments.
…
The town centre core is intended to meet the need for the provision of higher order goods and services in the Northern Growth Corridor in addition to meeting the needs of the DCP area. An integral component of the town centre core is a single major shopping centre, which will provide highly developed shopping, entertainment and leisure facilities. A bulky goods centre also is to be established in a town centre core location adjacent to the major shopping centre.
(b)        3.3.5        Local Community Facilities
The local community facilities element is intended to provide a wide range of community and education facilities for the delivery of primary education, local shopping, sporting and recreational services and social and community services to the growing population of the DCP area and adjacent areas (e.g. Mango Hill Village). These are to be provided in accordance with the agreements which must be entered into to ensure that appropriate and timely provision of a range of community facilities. These facilities are to be located conveniently to the community they are intended to serve and will be provided within the urban residential areas. Local community facilities also may be provided within major community facilities, the MIBA and the town centre.
Local community facilities within the urban residential areas are intended to offer an appropriate range of shopping and commercial services integrated with the open space areas and the road transport networks. The role and function of each centre is intended to be limited to the division of convenient services with high order services being provided by the town centre and the MIBA. It is intended the local community facilities be highly accessible from a network of paths, roads and open space connections.
(c)        4              Town Centre Core
4.1.2          Specific
(a)  To encourage vitality, viability and efficiency of the town centre core through a combination of a single major shopping centre of approximately 60,000m² gross lettable area (GLA), bulky goods retailing, other major commercial and community land uses and possibly high density residential development.

(d)        8              Community Facilities
8.1.2          Specific
(b)  To ensure, within the context of a growing population and changing demography, that an appropriate range of community facilities and services are provided within convenient reach of, and which remain highly accessible to residents of, the DCP and nearby urban areas.

(e)        8.2  Local Community Facilities
Local community facilities are intended to provide a wide range of community services meeting the daily needs of small populations contained in one of several villages. The range of community services intended includes:-
(a)        Convenience retailing and commercial services;
(b)        Community health and welfare services;
(c)        Primary education and childcare services; and
(d)        Limited cultural, dining and other entertainment services.

One shopping centre or group of shops only is to be established in each local community centre.

Mango Hill Local Area Plan –Schedule C to this Judgment

Following are some provisions from the LAP and Policy no: 11-2150-10-Planning for Development within the Northern Growth Corridor (NGC).   The LAP forms Schedule D to that Policy.
(a)        Policy no: 11-215-10-Planning for Development within the Northern Growth Corridor (NGC Policy)
Objective
The objectives of this policy are to provide:-
(3)              Guidance to both development proponents and offices on Council’s planning intentions for development within the Northern Growth Corridor (NGC) of the Shire.

Definitions
Northern Growth Corridor (NGC) - the three local planning areas of Mango Hill, Dakabin and Griffin identified in Schedule 8 to this policy.
Location
This policy applies to all developments for:-
(1) A Material Change of Use (including all associated Operational or Building Work)

Policy Statement
The local area plans for Griffin, Dakabin and Mango Hill:-
(1)              Are the culmination of decisions made by Council over recent years in relation to the “Greenfield” areas of the Northern Growth Corridor;
(2)              Are supported by detailed Infrastructure Plans;
(3)              Express Council policy for the orderly development of the areas of the Shire within the Northern Growth Corridor;
(4)              Have been prepared to align with the principals set out in the SEQ Regional Plan; and
(5)              Have formed the basis of Infrastructure Plans and Capital Works Programs required to deliver services to substantial development which is proposed to commence within the Northern Growth Corridor over the next few years.

This policy forms part of a group of documents which apply to the development of land within the Northern Growth Corridor. Officers are to use that entire group of documents, including these Local Area Plans, as the basis for considering development applications over land with the Northern Growth Corridor and as the basis for negotiating Infrastructure Agreements for development complying with those plans.
Any application for development that does not substantially comply with the purpose and intent of these Local Area Plans is unlikely to receive the support of Council regardless of the actual date on which the application is received.
Review Triggers
This policy is reviewed internally for applicability, continuing effect and consistency with related documents and other legislative provisions when any of the following occurs:-
(1)              The related documents are amended;
(2)              The related documents are replaced by new documents;
(3)              Amendments which affect the allowable scope and effect of a Policy of this nature and made to the head of power. For other circumstances as determined from time to time by a resolution of Council.

Notwithstanding the above, this Policy is to be reviewed at least once every two years for relevance and to ensure that its effectiveness is maintained.
(b)        Mango Hill Local Area Plan (LAP) – Exhibit D to NEGC Policy
Purpose of the Plan(1)
The purpose of this Local Area Plan is to provide detailed planning provisions for the future development of land within Mango Hill. The purpose is also to ensure the creation and maintenance of character within the area and to ensure that development occurs in an orderly and sustainable manner.
…
This Local Area Plan applies to all development regulated by the Pine Rivers Plan which is located within the plan area indicated on Figure 1 - Mango Hill Local Area Plan Area.
General Development Outcomes2.2
The general development outcomes to be achieved in the Plan Area include the following:-
·     Land use and development, based on interconnected neighbourhoods bounded by waterways, open space and recreational areas, maintains and promotes a network of activity centres, ranging from local centres, employment areas and sport and recreation facilities supported by inclusive and diverse residential communities;
·     The Plan Area is used principally for residential purposes, including medium density residential development, but also incorporates supplementary non-residential uses such as activity centres containing shopping, office and community facilities, commercial as well as service trades areas, schools, open space and sporting facilities.

Centres and Mixed Use Development Outcomes2.3
The design and development of centres and mixed use development incorporate the following outcomes:-
·     Centres and mixed use developments which area attractive, vibrant and integrated places for business and community activities and provide a mix of local-level services and facilities for the surrounding residential neighbourhoods;
·     The Plan Area and surrounds are serviced by a full network of regional district local and convenience level retailing, administrative and commercial activities within a hierarchy defined activity centres;
·     Land use and development within the activity centres of the Plan Area do not have a significant adverse effect on the North Lakes major centre and other designated centres within the Plan Area.

Centres and Mixed Use Development Statements3.2.3
(1) Local Centres generally serve neighbourhoods of 1,000-3,000 households and provide for traditional convenience shopping trips. Four local centres (designated 2, 3, 4 and 5 on Figure 2) are identified in the Plan Area. These local centres have total gross leasable areas for retail uses of between 600m²-3,000m² as specified in the Precinct Element provisions of this Plan. The centres are to be provide a local function that does not compete with the North Lakes major centre, and are to contain a range of uses (i.e. are not entirely comprised of retail/food retailing uses). Local centres are not to include a department store, variety store or discount department store, and are not to contain more than one supermarket/mini-major/grocery store/convenience store. Preferred uses include convenience shopping, retailing and personal services, cafes, restaurants, community facilities and social infrastructure, health care services and other office development that serves the immediate area.

Precinct Elements3.6

3.6.1        Precincts of the Local Area Plan
The Plan Area has been divided into precincts (refer Figure 1) to reflect the different outcomes desired for separate parts of the Plan Area. The precincts are intended to have distinctive characteristics, and the location of the boundaries is a reflection of existing land use patterns and the preferred future development pattern for this locality. Accordingly, the planning requirement within each precinct varies. The precincts depicted for this Local Area Plan are:-
·     Precinct 1:                  Mango Hill Village;
·     Precinct 2:                  Sports and Education;
·     Precinct 3:                  Kinsella Heights;
·     Precinct 4:                  Halpine Lake;
·     Precinct 5:                  Halpine Drive and Employment Area;
·     Precinct 6:                  Mango Hill Medium and High Density Residential; and
·     Precinct 7:                  Rural and Open Space Network

Precinct 3 – 3.6.4          Kinsella Heights Statements
(1)              …A combined maximum of 3,000m² gross leasable area of retail uses are intended to be provided within this Local Centre, with a maximum individual tenancy size of retail/commercial use of not more than 1,000m² gross leasable area. The centre is not intended to contain more than one supermarket/mini-major grocery store.
Precinct 4 – 3.6.5          Halpine Lake Statement
(1)  The convenience centre no. 5 near the North/South Urban Arterial Road (which may be located within either Precinct 3 or Precinct 4) is intended to contain convenience uses and a 24 hour service station to service passing trade along the Arterial Road. A combined maximum of 600m² gross leasable area of retail/commercial/service station uses are intended within this Convenience Centre, with a maxiumum individual tenancy size of retail/commercial uses of not more than 300m² gross leasable area. The centre is not intended to contain more than one mini-major/grocery store/convenience store. Supermarkets are not intended within the Convenience Centre.
Precinct 3.6.6          5 - Halpine Drive and Employment Area Statements
(1)  The Halpine Drive Local Centre is located on the eastern side of Halpine Drive and south of the Mango Hill Ring Road and is to contain mixed use development with the building heights up to three storeys. A combined maximum of 2,500m² gross leasable area of retail/commercial uses are intended within this Local Centre with a maximum individual tenancy size of retail/commercial uses of not more than 1,000m² gross leasable area. The Local Centre is not intended to contain more than one supermarket/mini-major/grocery store.

Pine Rivers Plan Temporary Local Planning Instrument (TLPI 01/11) – Moreton Bay Rail Link (that is effective 17 October 2011) Schedule D to this Judgment

The purpose of TLPI 01/11 Moreton Bay Rail Link stated in these terms:-

3. The purpose of this temporary local planning instrument

The purpose of this temporary local planning instrument is to ensure the development of land within the immediate vicinity of the planned railway stations along the Moreton Bay Rail Link supports and optimises future use of (sic) the railway as a strategic public transport asset, thereby avoiding the significant adverse economic and social impacts that would result from inappropriate development within those areas.

The primary purpose of this instrument is to provide controls for development of land within the immediate vicinity of those railway stations until such time as a more permanent mechanism having the same effect can be inserted in the Pine Rivers Plan.

Town Planning Evidence

A joint town planning report was prepared by Mr Schomburgk (Horizon), Mr Simonic (Council) and Mr Reynolds (Westfield).[37] Further individual reports were provided by Mr Schomburgk[38] and Mr Reynolds[39] The planning issues identified by these three experts were:-
[37]Exhibit 5(4), p 76
[38]Exhibit 7
[39]Exhibit 18(a).

(a) Need and demand and for the proposal;

(b) Compliance with the centres hierarchy;

(c) Inconsistency with the Preliminary Approval;

(d) Traffic impacts and insufficient car parking;

(e) Whether the proposal is premature;

(f) Good town planning principles; and

(g) Presence of sufficient grounds to overcome any conflict with the Scheme.

All experts agreed that the above planning issues essentially focused on the same matter, namely the role and function of the centre within the hierarchy of centres and whether the proposal will impact on this hierarchy and in particular the nearby North Lakes Town Centre. Whilst Mr Schomburgk and Mr Simonic both agreed that the proposal would satisfy the local level retailing needs of the surrounding community and would not impact on the role or function of the town centre, Mr Reynolds does not agree.

Individual Planning Issues Identified by Experts

After reviewing all the issues, the experts’ opinions were summarised as:-[40]
[40]Ibid, p 114

Mr Reynolds (Westfield)

Mr Reynolds acknowledges that a local centre was intended to be located on Halpine Road and that the Council, in issuing the Preliminary Approval accepts the location of the local centre now to be the intersection of Halpine Drive and Anzac Avenue. He considers the proposal exceeds the requirements expected by the local community of a Local Centre under the Planning Scheme and will have a detrimental impact on the planned centre’s hierarchy extending to the diminution of the role and function of the North Lakes Town Centre, adverse impacts on the existing Coles supermarket and specialty precinct there and the potential to result in the delay or prevention of the development and/augmentation of other planned centres.

He considers the proposal will duplicate services and facilities already provided within North Lakes Town Centre thus diluting the town centre core services and facilities offered. In his view, if a need for a supermarket of the size proposed is established, it should be located within Westfield North Lakes Shopping Centre. Its size clearly exceeds what is required of a local centre.

He regards the Planning Scheme as still relevant rather than overtaken by events and points to the centre’s hierarchy intention that the North Lakes Town Centre is to be supported by range of local centres serving the needs of the local communities surrounding them. I take his reference to the Planning Scheme to be to the LAP given that Mr Simonic was the one who said he considered the LAP had been overtaken by events. None of the planning experts suggested that the Planning Scheme had been overtaken by events. In Mr. Reynolds’ view, the proposal is premature and not needed.

Finally, Mr Reynolds says that, if an economic need is demonstrated for convenience retail of the size proposed, it ought to be located in one of the other six planned local centres identified in the Mango Hill LAP and the Mango Hill DCP, both of which are further away from North Lakes Town Centre than the proposed site which is 800 metres away. If that was done, he considers it would be more conveniently located to the local residential catchment, less likely to draw passing trade from outside the local catchment and would function as a true walk/cycle to Local Centre as intended by the Planning Scheme.

Mr Reynolds expanded on the Individual Report

In his individual report Mr Reynolds expanded on his views. In summary he made the following points:-

(a) The size of a large full line supermarket made the role and function of the proposed Centre much greater than that envisaged by the Centre’s hierarchy under the Planning Scheme resulting in the following impacts:-

(i) Assumption of the role intended for the North Lakes Shopping Centre;

(ii) Adversely affecting North Lakes Shopping Centre by drawing patronage from its primary catchment;

(iii) Constituted an ad hoc development and any need to be addressed instead by an amendment to the Planning Scheme;

(b) The change to the hierarchy will significantly affect investment in the North Lakes Shopping Centre and other local centres in the hierarchy;

(c) The proposal is not convenient to the identified Northern trade area, will delay the development of other local centres amounting to an inconvenience to residents close to the Centres.

(d) The proposal represents an inappropriate extension to the North Lakes Town Centre as it will service a similar catchment and is located very close to it. It is a duplication of functions in that Town Centre;

(e) It will erode confidence in the Centre’s network, being inconsistent with investors’ expectations of the scale and location of Centre development in the network. It will reduce the vitality of local centres. Whilst it will provide a community focus by the aggregation of activity that could have been done with a smaller proposal;

(f) And will cause unintentional vehicular traffic in residential areas.

Mr Reynolds summarised his views as follows:-

(a) The proposal represents a substantial change to the role and function of the Centre intended under the existing Preliminary Approval;

(b) The change to the role and function of the Centre will have serious adverse consequences, including changing the hierarchy of Centres in conflict with the Planning Scheme, may decrease investment in Centres and delay or prejudice other Centres in the network including smaller Centres and as yet unbuilt Centres;

(c) As against these conflicts and their consequences there exists no grounds to justify approval. There will be no increase in convenience or choice to the community. There exists no need in the local catchment. The Planning Scheme remains relevant and has not been overtaken by events;

(d) The proposal cuts across a clear and deliberate strategy of the Planning Scheme. As such, it is inappropriate to be determined via an ad hoc development application and should only be determined via the plan making process.

Mr Simonic (Council)

Mr Simonic considers the proposal not to be in conflict with the Planning Scheme and generally in line with the Preliminary Approval granted over the site except as to the size of the supermarket. Given that the LAP is not part of the Planning Scheme but rather Council’s policy, in his view it has been overtaken by events, namely the proposed location of the railway station south of the proposed site, the extent to which the town centre core has been developed and the Council acceptance that the site of the centre has been relocated in accordance with the Preliminary Approval. He says the increase in density which will be associated with the proposed railway station evidences the change in the area and the age of the LAP.

Mr Simonic explains that the scale of local centres anchored by supermarkets has increased over time and given that the LAP was not supported by a detailed economic assessment, development of the scale proposed would not have a significant impact on the town centre core. Nor, he says, would it have an impact on future proposed local centres envisaged in the LAP. They are well removed from the proposed site with Kinsella Heights Centre itself located in close proximity to a future rail station and higher residential area. The southern centre he points out, is located at a major intersection with the future North South Arterial Road and that it and Kinsella Heights Centre are both 1.5kms from the proposed site.

In the event the court forms the view that there is a conflict with the Planning Scheme, Mr Siminic considers that there are sufficient grounds to justify approval of the application notwithstanding that conflict for the following reasons:-

(a) The Preliminary Approval moved the site for the Halpine Centre to the proposed location;

(b) The proposed Mango Hill railway station to the south in proximity to the proposed site has changed the function and character of the area. The temporary local planning instrument requires higher densities than those envisaged by the LAP;

(c) Local Centres anchored by supermarkets have increased in size and the proposal is in line with this modern trend. The increased densities and high levels of activity which will be generated by the railway station justifies a larger centre in this locality; and

(d) The town centre core of North Lakes is well developed with all three major supermarket chains represented. The proposed development will not have a significant impact on their viability.

Mr Schomburgk (Horizon)

Mr Schomburgk said he generally agreed with Mr Simonic and, subject to the court’s acceptance of the evidence of the economic experts, Mr Duane and Mr Brown, that the proposed development will not unacceptably negatively impact on the centre hierarchy and the continued role and function of the Westfield North Lakes Shopping Centre and other existing or planned centres, he considers that the proposal will not compromise the achievement of the desired environmental outcomes. He sees no conflict with the Planning Scheme. As to any conflict with the LAP, he expresses the view that it is of no practical consequence given it is not a part of the Planning Scheme, the passage of time since its introduction on 15 December 2006 and the relevance to the area of the proposed railway station.

Mr Schomburgk regards the proposed development as a local convenience centre anchored by a full line supermarket which is an increasingly common and accepted practice for local centres. In his view it will provide an alternative an increased convenience doing a top-up and non-comparison shopping leaving the Westfield North Lakes Centre to continue to serve its role and function.

Mr Schomburgk’s Individual Report

Mr Schomburgk elaborated on the above expressed views in the joint report in his individual report[41]. He summarised his views in that report as follows:-
[41]Exhibit 7

(a) The LAP, DCP and the Preliminary Approval all point to the need for and desirability of having a Local Centre in the vicinity of the subject site as accepted by the Council in its planning for the wider locality and its planning for a centre’s hierarchy over the local government area;

(b) The Preliminary Approval specifically facilitated shops of up to 2,500m² and related non-residential uses on the subject site subject to compliance with the Mango Hill Halpine Drive Mixed Uses Design Code specific to the site thereby confirming the site within the location. A supermarket, albeit a smaller facility, was intended on the site as a part of that approval. Any shops, including a supermarket, larger than 2,000m² are required to undergo impact assessment;

(c) That impact assessment must necessarily consider any potential detrimental impacts on the overall retail hierarchy including the Westfield North Lakes Centre. The proposed development is entirely consistent with the provisions in the planning documents which contemplate the size of local centre being the subject of detailed economic analysis at the application stage;

(d) The views of the economic experts, Mr Duane and Mr Brown, are supported by a planning need and significant community benefit in having the proposed centre on the subject site; and

(e) In the event that the court finds there is any conflict with the provisions of the Planning Scheme, there are sufficient grounds to justify approval notwithstanding that conflict namely:-

(i) The site is approved and identified as the preferred location for a Local Centre;

(ii) The proposal offers a range of uses which will satisfy the convenience retailing needs of the community;

(iii) There is an identified need for a supermarket to serve the local area – the proposed full-line supermarket will offer a full range of grocery items as well as a delicatessen, seafood counter, bakery and butchery;

(iv) The location of the site is appropriate for this type of centre – and has good access and exposure;

(v) The proposal will, from a planning perspective, provide significant community benefits namely:-

· Access to a full-line supermarket in a convenient location without having to specifically go to the Major Activity Centre for their convenience retail needs;

· Greater choice;

· Create additional employment opportunities;

· Reduce the need for vehicle trips for convenience shopping.

(vi) The subject site is conveniently located, readily accessible and safe for the catchment it is intended to serve including both vehicular and pedestrian access; and

(vii) The subject site is suitable, being large enough for the use and having access to all necessary infrastructure.

Economic Need Evidence – Joint Report

Three economists gave evidence on economic need, Mr Duane (Horizon), Mr Brown (Council) and Mr Leyshon (Westfield). They produced a joint report and Mr Duane and Mr Brown each prepared a joint report.[42] Mr Duane[43] and Mr Brown[44] both produced individual reports.

Joint Economic Need Report

[42]Exhibit 5(4), p 16

[43]Exhibit 8

[44]Exhibit 14

Without seeking to repeat the full contents of the report, I set out matters which all three economists agreed upon. Where there is disagreement, I shall identify it. I shall then turn to the issues in dispute but amongst the three experts and deal with the views expressed.

Areas of Agreement Amongst Economists

In the course of dealing with the planning regime, the economists identified three sites designated as local community facilities in the DCP[45], two of which have been developed. They are Bounty Boulevard Shopping Centre at the intersection of Bounty Boulevard and Chrysler Parade, a centre of 3,000m² anchored by a Drakes IGA supermarket of 2,000m² and six specialty shops. The other is at the intersection of Discovery Drive and College Street where there is a childcare facility and convenience retail centre of around 2,000m². There is no major anchor supermarket in this centre. The third of the three is around the corner of Discovery Drive and Gardenia Parade adjoining a sports field. This, they agree, does not appear large enough to incorporate a supermarket so that it is highly unlikely that there will be another supermarket in the area. They note further that the DCP allows for shopping centres of less than 3,000m² whereas section 4.1.2 of the DCP indicates that the major North Lakes Shopping Centre would be around 60,000m² of gross leasable area, roughly the size of Westfield North Lakes Centre.[46]
[45]Exhibit 19 – aerial map
[46]Ibid, par 30-32

Using information sourced from the Westfield website, economists mapped out the supportable supermarket floor space in the Mango Hill/North Lakes area breaking it into the primary sector and the broader trade area.[47] The primary sector was identified as the region from where the Westfield North Lakes supermarket of Coles, Woolworths and Aldi would attract the majority of their business. Population in that area shown as at 2011 at 50,450 rising to 87,680 by 2026.
[47]Ibid, par 33 and 34, maps 2 and 3

They agree that a full-line supermarket that is one comprising the vast majority of departments including bakery, delicatessen, fresh produce, dry groceries, seafood etc is typically at least 2,500m² in size but usually 3,000m² to 3,200m² of gross leasing area (GLA). They say further that it is generally accepted in the industry that a full-line supermarket operated by one of the major national chains (Woolworths, Coles or Super IGA) requires a trade area population of around 8,000-9,000 persons depending on the competition. That suggests to the experts that the primary sector of Westfield North Lakes would require 10 to 12 full-line supermarkets by 2026 to service the expected population.

Currently there are eight supermarkets in this area of which only five could be classified as full-line stores which suggests to the experts that there is likely to be a need for a number of additional full-line supermarkets as the area continues to grow rapidly. Their view as the vast majority of growth is occurring within the Mango Hill/North Lakes area, it is logical that a further full-line supermarket would be located in this part of the defined Westfield North Lakes primary trade area.

Trade Area – Proposed Development

The trade area the proposed development will serve is defined by the economists to include two primary sectors and a secondary sector[48], namely:-
[48]Ibid, par 40, map 4

· The primary north sector (TAPNS) extending from Anzac Avenue in the south to Copeland Drive and North Lakes Resort Golf Course in the north and encompassing part of the North Lakes Residential Estate being developed by Stockland;

· The primary south sector (TAPSS) bounded to the north by Anzac Avenue, to the east by Salt Water Creek and Hays Inlet and to the south and west by Fresh Water Creek. This sector incorporates part of Mango Hill; and

· The secondary sector stretching to Boundary Road in the north and encompassing part of the North Lakes Residential Estate being developed by Stockland. The sector is the future focus of population growth within the North Lakes Residential Estate.

As to those three trade area sectors there is disagreement between Mr Duane and Mr Brown on the one hand and Mr Leyshon on the other as to the relative significance placed on them as contributors to the proposed development’s performance.

Whereas Mr Leyshon accepts that the trade area as described is appropriate for the scale and location of the proposed development, he notes the extent of the trade area is influenced by a number of factors including:-

(a) The size of the proposed development and in particular the large full-line supermarket of 4,717 m²;

(b) The subject site has an effective frontage to Anzac Avenue which should make the Centre more attractive to a sub-regional population than the site identified for the Centre in the LAP. This site it will be recalled was moved as a result of the proposed rail development and accepted as appropriate by the Council in the Preliminary Approval;

(c) Proximity of the site to Westfield North Lakes Centre;

(d) If the trade area was determined for the scale of a centre identified in the LAP namely 2500 m², it would be much reduced and restricted to residential areas to the east of Anzac Avenue and to the south of the alignment of the proposed north-south Urban Arterial Road that would significantly influence the resultant analysis of need/demand.

In response to those issues, Mr Duane says the trade area for a centre of 2,500 m² would ultimately depend on the composition of retailers therein and the overall general appeal of the facility. He exemplified a 1,000 – 1,300 m² Aldi Supermarket at the site which he said would also serve a broad trade area similar to the one detailed in the joint report.

Trade area population

Continuing now with agreed matters, the current trade area (primary and secondary sectors) population is 19,430 persons including 3,530 persons in the primary south sector. Those figures are projected to reach 34,180 and 10,130 respectively by 2026.[49]
[49]Ibid, paragraph 44-45.

The economists also analysed the socio-economic characteristics of that main trade area sourced from ABS Census 2006 which showed that:-

(a) Residents of the main trade area are considerably younger than the bench mark;

(b) Residents earn lower incomes on a per capita basis, but higher than average incomes on a household basis;

(c) The population is predominantly Australian born; and

(d) There is a large proportion of traditional families.

That profile is consistent with a growing population on the fringe of a major metropolitan area characterised by younger families with two working parents rendering it important to provide a range of convenience facilities within close proximity to their homes, including a choice of location for their food and grocery shopping.

The report contains two tables prepared by Mr Duane[50] setting out the main trade area retail spending levels and the main trade area food and grocery expenditure present and predicted. A total spend of $231.4 m in 2011 is projected to increase to $481.6 m by 2026. As to food and grocery expenditure the 2011 figure of $85.5 m is projected to rise to $177.9 m in 2026.
[50]Ibid, tables 4 and 5, pp 41 and 42.

As to these expenditure figures Mr Leyshon makes the point that the subject site is within the primary trade area south with a present population of 3,530 persons and projected to rise to 7,630 by 2021. That, he says, is still short of the minimum population of 8,000 to 9,000 who support a supermarket of the size proposed.[51] This, he says, will result in the majority of sales coming from parts of the trade area and beyond rather than from within the PTA south. That outcome is inconsistent with LAP s 2.4 and 3.2.3(1) providing for the local centre to provide “local level services” for “the surrounding residential neighbourhoods”, and to provide “traditional convenience shopping trips” for a population of “1,000-3,000 households”. It is uncontroversial that a household on average would house three people so the population Mr Leyshon speaks of can be translated to a population of 3,000 to 9,000 people in those households.
[51]Ibid, p 42, para 50.

In response to Mr Leyshon’s points Mr Duane says that the subject development would serve the primary south trade area but the main road exposure would always result in it attracting business from beyond the immediate area. He pointed further to the LAP which contemplated local centres to contain not more than one supermarket/mini-major/grocery store/convenience store to make the point that supermarkets were clearly envisaged at local centres under LAP. In Mr Duane’s view a full-line supermarket was clearly demanded and needed within the Mango Hill area.

To that, Mr Leyshon says:-

(a) The LAP does not envisage a centre in this locality having a main road location, i.e. frontage to Anzac Avenue;

(b) The future local centre is shown in the LAP fronting Halpine Drive to the south of a proposed Mango Hill ring-road;

(c) While the LAP envisages local centres containing supermarkets, it does not provide for a supermarket in excess of 4,000 m²in any centre; and

(d) It is possible to provide all the full-line uses described by Mr Duane in a modest supermarket within in the 2,500 m² identified for this local centre.

Competition

The experts identified that within the defined trade area (all three sectors) the only other existing major supermarket facility is Bounty Boulevarde Shopping Centre of 3,000 m² anchored by an IGA Supermarket of 2,000 m². That is in the secondary north sector. The largest existing facility in the trade area is Westfield North Lakes at 55,000 m² of floor space which includes a Myer Department Store, Big W and Target discount department stores together with Woolworths, Coles and Aldi supermarkets. That centre achieves sales of $355 m with the trade area extending 15 to 20 kilometres throughout the northern suburbs of Brisbane comprising some 300,000 residents and growing rapidly.

There is another small convenience centre in the primary north sector of around 2,000 m² without a major supermarket.[52] Beyond the main trade area the major supermarket facilities are more than three kilometres away including Woolworths and Aldi at Kallangur, Coles at Lillybrook Shopping Centre and Coles at Murrumba Downs.[53] There are then larger centres at Deception Bay and Kippa-Ring more than 7 kilometres from the subject site.

Economic demand

[52]Exhibit 19, Existing Shopping Centres No. 1.

[53]Exhibit 19.

The joint report then deals with an analysis by Mr Duane of the potential sales for the proposed supermarket.[54] This shows that the projected total sales volume for the trade area supermarkets in 2014 will be $147.2 m increasing to $220.7 m in 2025/2026 which are well above the typical averages for major chain and independent supermarkets in Australia of $8,000-$8,500 per square metre. His sales prediction for the proposed supermarket in 2014 is $27.9 m[55]
[54]Exhibit 5(4), p 47, paragraph 64.
[55]Ibid, p 51, Table 8.

Mr Leyshon comments on the Duane analysis saying it incorporates an assumption of a significant capture of supermarket spending from outside the defined trade area, noting also that local centres were never intended to capture trade from a broadly based regional trade area. Indeed Mr Leyshon considers the proposed supermarket will trade at a much higher rate of sales than Mr Duane suggests given its scale, location and potential to intercept supermarket based trips to Westfield North Lakes. Despite the growing demand for additional supermarket space Mr Leyshon says that the available supermarket spending in PTA south will still be insufficient even by 2021 to sustain a full-line supermarket of the scale proposed in its own right. At most it would support a supermarket of around 2,200 m² assuming a 15 per cent spending escape from PTA south. In his view from 2014 onwards significant sales from other parts of the trade area apart from PTA south or indeed outside the trade area will be required to make the proposed supermarket viable.

Mr Brown did his own analysis[56] and concluded that the proposed supermarket sales in 2014 are more likely to be $36 m rather than the figure of $27.9 m predicted by Mr Duane.[57] In relation to Mr Brown’s figures Mr Leyshon repeated his position that the PTA south sector would only contribute a minority share of total supermarket turnover throughout the forecast period being 30.6 per cent in 2014 rising to 45 per cent by 2026. Hence, the majority of the spending at the proposed supermarket would always come from areas north of Anzac Avenue not intended by the LAP.

Key issues in dispute amongst economic experts

[56]Ibid, paragraph 74.

[57]Ibid, p 51, Table 8.

I turn now to the key issues in dispute within the economists’ camp.[58]

Economic community and planning need1.

Mr Duane

[58]Ibid, s 8, p 61.

Mr Duane’s opinion is that there is a clear and overwhelming need for the subject of development which would serve a growing catchment and could support it now and into the future. Given a traditional full-line supermarket requires 8,000-9,000 persons in its catchment, by 2014 the main trade area will be over 24,000 to increase to 34,000 by 2026 indicating a potential for 3-4 supermarkets. As only two are currently provided, the growing population in the trade area including the primary south sector would demand a high level of convenience full-line shopping particularly given the large number of young and two working parent families in the area. The provision of a full range of departments such as bakery, deli, seafood, meat and the like offered by a full-line supermarket would provide a high level of convenience to the population for their everyday shopping needs. A smaller supermarket would not fulfil the needs of the local community.

He considers the success of full-line supermarket facilities located within close proximity of larger regional centres is evidenced by such centres as Westfield Chermside, Browns Plains and Victoria Point without those detrimentally impacting on the network of centres. In Mr Duane’s view the proposed development represents orderly development given the need to provide retail facilities for the growing population and it will provide greater convenience, increased competition and a high level of choice for local residents in this part of the Shire. The proposal will not impact on the viability, role or function of existing centres and will not reduce the potential for expansion of other centres such as Westfield North Lakes.

Mr Leyshon

Mr Leyshon says that the need identified for additional supermarket floor space is arrived at from the adoption of a trade area far more extensive than that intended for a local centre in this locality and is based on the capture of spending by supermarkets in the trade area from a much wider regional trade area created by the existence of Westfield North Lakes. Whilst he concedes there is likely to be a need for additional supermarket floor space in the defined trade area between now and 2021 and beyond he says there is no demonstrated need in the area south of Anzac Avenue until after 2021 which suggests to him that the proposed development is at best premature.

In his view, accepting there may be a need for a centre on the subject site with a smaller supermarket before 2021, the addition of the proposed major Coles supermarket will not substantially add to greater competition and choice for residents because there is already a Coles full-line supermarket at Westfield North Lakes. In his view the approval of the proposal will negate the potential for that Coles Supermarket to expand its existing supermarket at Westfield North Lakes.

Mr Brown

Mr Brown sees a high level of need for the proposed development given that the identified trade area catchments are anticipated to experience significant levels of growth in the short to medium term exceeding State and regional growth projections. The area is a high growth area. In his view retail expenditure analysis demonstrates the development could be accommodated within the anticipated expenditure base of the identified trade area and would provide improved levels of convenience for supermarket shoppers. However it does not of itself provide greater choice of supermarkets per se.

2. Impact on retail hierarchy

Mr Duane and Mr Brown

Mr Duane and Mr Brown are of the view that the proposed development will not adversely impact on the ultimate surrounding retail hierarchy because Westfield North Lakes serves a much broader region compared with the defined catchment of the proposed development which is a subset of the Westfield North Lakes trade area. Further, the large and growing population base within the broader region means the higher order non-food facilities at Westfield North Lakes will not be impacted by the subject development . They point out that Westfield North Lakes is some ten times larger than the subject development with proposals for further extension. Its floor space of 60,000 m² contains only 11,000-12,000 m² of supermarket and fresh food retailing leaving 48,000 m² as non food retailing which will not be impacted by the subject development. In their view the other local centres in the area as designated by the LAP will continue to fulfil a smaller role in the hierarchy than the subject development.

Mr Leyshon

Mr Leyshon disagrees and says the proposed development will adversely affect the development potential of other local centres. In his view if the LAP centre hierarchy is to be altered as the proposed development will do it should be done as a part of formal review of the adequacy of the LAP rather than through an MCU application particularly given the radical difference between the 985 m² supermarket upon which the Preliminary Approval was based.

Scale of development as intended in the Planning Scheme

Mr Duane

On the issue of the scale of the proposed development and the figure of 2,000 m² as the combined maximum gross leasable area of retail/commercial uses outlined in the LAP[59] Mr Duane considers the LAP to be outdated for several reasons. Firstly he makes the point that the LAP (16,000) and the DCP (25,000) provide for a combined population of 41,000 persons as the LAP and DCP do not limit supermarket facilities in local centres and points to the fact that within the town centre core where Westfield North Lakes is located there are only two full-line supermarkets when, in his view, four or five should have been planned for. He sees the proposed development as a logical location to service the growing convenience of needs of residents within that area.
[59]Paragraph 3.6.6, Exhibit 6, p 500.

He points to the development of full-line supermarkets in close proximity to larger more inconvenient retail centres since the inception of the LAP and says a convenient full-line supermarket has a greater role to play in the area proposed which he sees as a developing area. It will provide extended trading hours and easy accessibility for both private and public transport users.

Mr Leyshon

Mr Leyshon disagrees that the LAP is outdated but says in the event the court accepts that proposition, the proper procedure is for a formal review of the LAP to be undertaken to consider the range of factors influencing the Centre’s hierarchy in the Mango Hill area rather than allowing this application to determine the outcome.

Mr Brown

Mr Brown simply pointed to the fact that the LAP was introduced with no economic analysis undertaken to support the development of the Centre’s network.

4. Whether the proposed development is consistent with the orderly and balanced development of the area

Mr Duane and Mr Brown

Both Mr Duane and Mr Brown consider the proposed development represents orderly and balanced development especially, Mr Brown says, because of the relatively high levels of growth projected within the catchment areas. Mr Duane says that the development is also consistent with a hierarchy of centres because the site is a designated local centre and over time the primary south sector will have more than sufficient population to support the development. He points to the commitment from Coles to operate the supermarket and says other sites have been identified on the southern side of Anzac Avenue capable of providing a full-line supermarket. He agrees with Mr Brown that the significant population growth projections throughout the defined trade area support the development.

5. Premature development

Mr Leyshon

Not surprisingly Mr Leyshon does not agree that the proposed development is a orderly or balanced development because it exceeds the need for local retail services in the area south of Anzac Avenue or the area in the LPA.

For the reasons Mr Leyshon outlines he believes the development is premature with which both Mr Duane and Mr Brown disagree.

6. Overall need

Mr Duane and Mr Brown

Mr Brown says there is a high level of economic need for the proposed development and that the subject site represents an appropriate and logical location for a centre of the type proposed. Mr Duane says there is a clear and overwhelming economic community and planning need for the proposed facility and that the site is in an appropriate location for a full-line supermarket to serve the convenience shopping needs of future residents of the surrounding region.

Mr Leyshon

Mr Leyshon, while accepting that there is likely to be a need for additional supermarket floor space in the defined trade area between the present and 2021 and beyond, there is no demonstrated need of that in the area south of Anzac Avenue until after 2021. He says that in a proper reading of the relevant planning instrument, which I take him to mean includes the LAP, the appropriate area for any need analysis is that area south of Anzac Avenue.

Individual reports of Mr Duane and Mr Brown

As I have said both Mr Duane and Mr Brown provided individual reports in addition to the joint report. Those reports focused on the areas of disagreement and elaborated on the reasons for the views expressed in the joint report. There is no need for me to set out those details.

Traffic

Evidence was given by traffic engineers Mr Viney (Westfield) and Mr Holland (Horizon) in two joint reports.[60] There were six areas of dispute[61] which can be summarised as follows:-
[60]Exhibit 5(4), pp 1-4 and pp 5-15.
[61]Ibid, pp 2, 6 and 7.

As to Overall Outcome 16 dealing with the possible significant adverse effect on North Lakes, the evidence is that there is no such impact so there is no conflict with this Overall Outcome.

Mango Hill Development Control Plan

In response to Westfield’s assertion of conflict with the DCP, Horizon says that, accepting that the economic evidence and planning evidence establishes that the approval will not unacceptably adversely impact upon the levels of trade, viability or function of the North Lakes Town Centre or Westfield’s centre therein, no conflict with the DCP has been established.

Council’s Submissions

The Council is also of the view that no conflict with the Scheme or the DCP has been established. It makes the point that the following principles are evident from the Scheme provisions which form the basis for reasonable expectation of investors in, relevantly, centres:-

(a) The Scheme makes only rudimentary provision for a centre’s hierarchy. With respect to the highest order of centre in the Mango Hill and North Lakes area, the Scheme contains detailed provisions as to the role and function of the regional activity centre, its location and size. The major shopping centre is to include high order comparison shopping through, amongst other things, a full-line department store, discount departments stores, large supermarkets and a wide range of specialty stores. That centre is to be located in the North Lakes Town Centre Core and is ultimately to consist of 60,000m² of gross lettable area.

(b) At the lower levels however, the Scheme indicates the intended role and function of the local and village centres or local community centres but allows the market, within certain broad parameters, to determine the exact size and location of those low order centres.[89] Importantly, the intent that centres meet the daily needs of localised small populations[90] as compared to the weekly shopping needs met by a full-line supermarket is an intent reserved for local community facilities in the DCP area.[91] No such limitation is stipulated for the role and function of local centres in the Scheme more generally which simply encourages centres of an appropriate scale responsive to community needs.

[89]See for example, Specific Outcome SO14 Urban Locality Code, Exhibit 6, p 49 and 397

[90]Exhibit 17, p 32, par 106(a)

[91]Exhibit 6, p 397, par 8.2.2

The Council also points out that the Scheme does not require local centres to serve only the local residential area and points to section 8.2 of the DCP[92] which states that local community facilities are primarily intended for residents within the DCP area.
[92]Exhibit 6, p 396

Having a regard to the Scheme provisions including the DCP, the Council says there is no evidence that approval of the proposal would produce a clearly identified conflict with the Scheme.

Conclusion re conflict with Scheme

I prefer the evidence of Mr Schomburgk and Mr Simonic to that of Mr Reynolds and based on that evidence and my reading of the Planning Scheme, I am satisfied there is no conflict between the proposal and the Scheme. I found Mr Reynolds’ approach to the matter a little narrow, focused in many respects on the LAPas a result of what I perceived to be unwarranted significance being accorded to the LAP. For example, in the joint planning report[93] Mr Reynolds points to provisions of the LAP as supporting the maintenance of the Scheme centres hierarchy structure. He speaks of the provisions of the LAP as if they were a part of the Scheme, when, at its highest, it is an internal Council policy designed to assist Council officers as to the Council’s intentions for development in the Northern Growth Corridor.[94]
[93]Exhibit 5(4), pp 102-103, par 6.2.3(a),(h) and (i)
[94]Exhibit 6, p 476 – Objective no. 2

From Mr Reynolds’ individual report[95] it is clear to me he regards the LAP as a Planning Scheme Policy which it clearly is not. I do not wish to be seen to be critical of Mr Reynolds, an experienced planner, because Westfield’s pleaded case is that the LAP was indeed a part of the Planning Scheme[96] which it now accepts it is not.[97] Further, it appeared to me from the joint economists’ report that they also drifted into that area of elevating the LAP to a scheme document[98] where the heading refers to the Planning Scheme and the text refers to the LAP.
[95]Exhibit 18(a), par 12, 13 and 44
[96]Exhibit 5(1), p 8, par 2. Further and better particulars of Notice of Appeal, paragraph 6(a), particularising components of the Planning Scheme
[97]Westfield closing submissions, par 89
[98]See Exhibit 5(4), p 65, para 106.

As I have identified by the relevant provisions, the Planning Scheme contemplates a triple tiered network of multipurpose activity centres including Principal Activity and Major Activity Centres ranging from major employment centres, serving the region, to local business centres through to village centres.[99] As the Council has pointed out[100] there is no prescription as to the exact size and location of the local and village centres or local community centres nor is there a prescription on the role and function of local centres accept that they be of appropriate scale responsive to community needs. That is to be compared with the intent of the local community facilities in the DCP requiring that centres meet the daily needs of localised small populations.[101]
[99]Exhibit 6, p 38, DEO 2.2 and 2.3
[100]Exhibit 40, Council closing submissions, par 63-64
[101]Exhibit 7, p 32, par 106(a)

The Preliminary Approval introduced, relevantly, the Table of Development regulating development on the site adding for Self Assessable Preliminary Approval for a shop if the cumulative GFA of all shops on the subject site does not exceed 2,500m²[102] but requiring impact assessment if that figure of 2,500m² would be exceeded or any individual tenancy would exceed 1,000m². That means what it says, namely that the Scheme as varied[103] by the Preliminary Approval clearly contemplates shops in excess of 2,500m². In my view the present proposal is appropriate to this site.
[102]Exhibit 5(1), p 126
[103]IPA, s 3.1.6

As to Westfield’s argument that the proposal is too close to the Westfield North Lakes centre, it is obvious to me that the role and function of that centre is entirely different to that proposed apart from the commonality of presence of a full-line supermarket. Whilst patrons may visit other supermarkets in the Westfield centre during a shopping excursion, for them to do so simply to visit the supermarket and nothing more would be less likely if the proposed development was available. To visit Westfield would be an excursion. To visit the proposed development would be a visit.

Assuming a conflict with the Planning Scheme exists, are there sufficient grounds to approve the application notwithstanding that conflict?

Lest I be wrong in my finding that there is no conflict with the Planning Scheme, I propose to address arguments as to the existence of sufficient grounds under IPA s 3.5.14(2)(b) on the assumption that a conflict does exist. Those grounds are defined in IPA Schedule 10 to mean matters of public interest but do not include the personal circumstance of the applicant, owner or interested party.

Westfield’s arguments re sufficient grounds

Westfield provided a very detailed argument[104] in support of its argument that no sufficient planning grounds have been made out. Dealing with the matters raised:-

1. Adverse impact on planned local centres

[104]Opening submissions, Exhibit 17, par 156-162; Closing submissions, Exhibit 39, par 129-185

Westfield does not contend that the Westfield North Lakes Shopping Centre will be put in jeopardy by the proposal in the relevant sense but argues that the proposal will jeopardise a future development of planned local centres identified in the DCP and the LAP leading to a depression of the quality of services and facilities offered to the local community. That it is said will result in catchments further away from the site being deprived of the benefit of a local centre as envisaged in the DCP and LAP.

2. Existing Coles Supermarket in close proximity

Next, Westfield points to the closeness of approximately 800 m of the existing Coles Supermarket in the Westfield North Lakes Centre and says that all the goods and services proposed to be offered by the proposal can already be obtained in the local area from Westfield. In short there is no inadequacy in the existing retail arrangements in the area.

3. Lack of planning need

Westfield asserts that no planning need has been established and that mere increase in choice or net improvement in facilities is not sufficient on its own to establish need. That must be weighed against the detriment to existing and proposed centres and against the background of the Planning Scheme. It further says that, considering need for relevant planning considerations economic, social, environmental or strategic must be considered rather than confining the focus to economic need which does not necessarily equate to planning need. Consistent with the IPA definition of grounds, it is the community need and not any commercial need of either Horizon or Westfield which is relevant and that need cannot be established by the contrivance of a need through the exercise of entrepreneurial skill giving an applicant some commercial advantage. Next Westfield says that there must be existence at the time of the application a latent, unsatisfied demand on the part of the persons affected by the Planning Scheme which is not being met at all or being adequately met by the Scheme in its present form. Further, Westfield argues, the court must distinguish between a real planning need and mere demand of the populous who may visit a new shopping complex because it represents an attractive and additional choice for them. It says a significant need falls short of an established overwhelming need and merely because a proposal is predicted to be successful does not, of itself, mean that need is established. Finally, as to the principals relevant to need, it says that the need must have a link or connection with the proposed site.

All of the above principals relied upon by Westfield were supported by authorities which I have not set out in detail.

Against the above background, Westfield says that the proposal is too close to the existing Coles Supermarket at Westfield North Lakes, that the wide trade area relied upon by Horizon is not sufficient to establish need and that the proposal is premature by many years. In that regard Westfield points to the existing and predicted population figures showing that as at 2014 there will only be a population of 4,130 persons in the PTA south area which is insufficient to support a supermarket of the size proposed. By 2021 that population is projected to grow to 7,630 persons but even at that size, Westfield argues, the planning intention is for those people to be served by the two local centres referred to in the LAP namely Alpine Drive Local Centre and Kinsella Heights Local Centre the planned combined supermarket space 2000 m² GLA.

Westfield referred to Mr Leyshon’s agreement with Mr Duane and Mr Brown as to the need for a full-line supermarket in the trade area pointing out that Mr Leyshon does not agree that there is such a need for a supermarket of the size proposed at the subject site. His agreement on need is confined to the primary catchment of the Westfield North Lakes Shopping Centre.

Westfield also points to the evidence that the size of a full-line supermarket usually ranges from 2,500 to 5,000 m²and points to the lack of an explanation by Horizon as to what the need relied upon could not be satisfied by a supermarket similar to that at the Bounty Boulevard Local Centre[105] 3,000 m²including 2,000 m² IGA. Alternatively it is said that no explanation is offered by Horizon as to why a full-line supermarket of say 2,500 m²would not suffice. It points to the Coles representative Mr Atkins’[106] evidence that the average Coles Supermarket is 2,170 m² and to that of Mr Brown the economist called by the Council[107] who acknowledged, in his assessment of Mr Duane’s economic impact assessment lodged in support of the development application, that the majority of the demand for additional supermarkets within the two primary trade areas is being generated from PTA north this suggesting that the need may be best met within PTA north rather than the subject site.[108]

Responses of Horizon and Council re sufficiency of grounds

[105]Exhibit 19.

[106]Exhibit 10, para 15.

[107]Exhibit 5(3) pp 294-295.

[108]Ibid, p 295, first sentence.

When the need of the community under consideration involves the daily essentials of life such as food and groceries Horizon says the bar to established need should not be set too high and that the questions of convenience and perceived convenience and availability of choice to the public are matters of considerable import.[109] On the question of the convenience of the proposal when compared with that of the Westfield North Lakes Centre reference was made to Harburg Investments Pty Ltd v Brisbane City Council & Anor[110] where his Honour the late Skoien SJDC, when considering a case of convenience retail centres said:-

“However, less stringent tests would apply in a case such as this, where convenience retail centres are under consideration. 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. While the access to this site is not entirely convenient, many may prefer it to negotiating the heavy traffic likely to be encountered in the Aspley Business Centre; the ‘atmosphere’ of the proposed centre is likely to be more relaxed than at the Hyper-market or the other business centres …”

[109]Fabcot Pty Ltd v Gold Coast City Council [2001] QPELR 766.

[110][2000] QPELR 333 at 317.

In Horizon’s view the evidence of population projections, the points of difference between the location of the proposal and other full-line supermarkets, the importance to the entire community of food and grocery shopping and the absence of relevant impact on other facilities the court would be satisfied that need has been established and that that need is high. It repeats its earlier submission that no unacceptable impact will result on existing centres present or future.

The Council pointed to the agreement amongst the economists for a need for a further full-line supermarket to serve the defined primary sector for the Westfield North Lakes Shopping Centre pointing out that the majority of the projected growth in population is occurring in the Mango Hill/North Lakes area pointing to the logic of a further full-line supermarket being located in this part of the defined trade area. It also pointed to the importance of providing a range of convenience facilities including choice of location for food and grocery shopping which would provide greater convenience to the local population than Westfield North Lake. The Council’s view is that the high level of economic need renders the site an appropriate centre for the proposal ensuring the provision of the broadest range of retail facilities.

The Council points to the evidence[111] of the benefits to the public of a full-line supermarket compared to those offered by a smaller supermarket namely the greater range and breadth of product, easier facilitation of the weekly or fortnightly shopping trip, the convenience of chore shopping and more competitive pricing. Apart from that the site is very convenient to people south of Anzac Avenue and others throughout the trade area.

Conclusion re sufficient grounds

[111]Exhibit 40, Council’s submissions, paragraph 149.

I prefer the evidence of Mr Duane and Mr Brown to that of Mr Leyshon on the economic aspects. As with Mr Reynolds I gained the impression that Mr Leyshon’s focus was too limited arising from an misunderstanding as to the significance to be attached to the LAP. For instance in the joint report[112] he expressed the view that if the LAP was outdated which was the view expressed by Mr Duane[113] then the appropriate course was for that plan to be the subject of a formal review to allow consideration of the relevant factors influencing the Centre’s hierarchy in the Mango Hill area. That suggests Mr Leyshon considered that the LAP was a part of the planning scheme.
[112]Exhibit 5(4), paragraph 107.
[113]Ibid, paragraph 106.

Also in Mr Leyshon’s individual report he speaks of the centres in the LAP as if they were centres planned for the area in terms of the Planning Scheme.[114] In his view the inconsistency of the proposal with the provisions of the LAP were so significant that overwhelming need would in his view have to be demonstrated for the LAP provisions to be set aside. That is clearly wrong given the status of the LAP as a non-Scheme document and an internal Council policy document only.
[114]Exhibit 18B, p 9, par 3.4; p 11, par 4.3; pp 14-15, par 4.13-4.17

I am satisfied that the relevant need has been demonstrated. Without detailing the numerous authorities dealing with need in particular cases, I mention a statement of Robertson DCJ in PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144 at [128] where His Honour said:-

“[128] The principles to be applied are well known and, in this case, uncontroversial:
• need does not mean pressing need, critical need, widespread desire or anything of that nature. Rather, a thing is needed if its provision, taking all things into account, would improve the well being of the community: CutPrice Stores Retailers v Caboolture Shire Council [1984] QPELR126 at 131.
• A use is needed, if it would, on balance, improve the services and facilities available in a locality: Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515.”

I am satisfied that sufficient grounds have been made out and those grounds are as articulated by Mr Schomburgk[115] and Mr Simonic.[116]

Does the proposal conflict with the Mango Hill Local Area Plan?

Westfield’s submissions

[115]See para 41(e) above

[116]See para 38 above

I have earlier set out in paragraph 27.3 above the relevant provisions of the LAP relied upon by all parties. It is Westfield’s position that the LAP evinces a planning intention that the Halpine Drive local centre (Local Centre no. 3) will provide a convenience based local centre providing a local function including convenience shopping serving the immediate area.

The LAP shows the combined maximum size of retail/commercial uses contemplated is 2,500m² and the maximum individual tenancy size of not more than 1,000m². The proposal, it is said, is in stark conflict with the LAP because:-

(a) The proposed full-line Coles supermarket of 4,020m² is four times the contemplated size of the supermarket/mini-major/grocery store contemplated in the subject centre;

(b) The size of the retail and commercial component of the proposal is 7,683m² being approximately three times that contemplated by the LAP;

(c) The primary trade area agreed by the economists being PTA north and PTA south extends far and wide and has at lease a district level catchment taking it beyond the local function intended by the LAP; and

(d) The proposal will have a significant adverse effect on other designated local centres in the LAP area in that it will prevent or delay development of those local centres thus denying future population’s centres with local convenience shopping which the LAP contemplate. That gives rise to a conflict with LAP section 2.4[117] which requires any applicant for development approval to demonstrate need, timing and size of proposed retail floor space through a retail market feasibility report that includes consideration of existing and proposed retail floor space in competitive centres within the trade area of the proposed centre.

[117]Exhibit 6, p 491

Given the stated policy of Policy number: 11-2150-10 (Planning for Development within the Northern Growth Corridor (NGC)) as being for the orderly development of the areas within the NGC[118], Westfield says that the above conflict amounts to a fundamental conflict with the LAP, a strong persuasive factor tending against approval of the proposal. It further says that the proposal undermines and cuts across the LAP in a material way which will result in the Council’s stated planning intentions being put at naught. As previously recorded Westfield says the proposed centre will serve at least a district level catchment which is not contemplated by the LAP and will thereby have strategic implications for the future planning of the retail hierarchy of the area.

Horizon’s response re conflict with LAP

[118]Ibid, p 477

Horizon says that the intent of the LAP is for a number of local centres to be developed generally to include supermarkets but not higher order retail so as not to have any adverse impact on the North Lakes Town Centre. The role of those centres, both in the DCP and the LAP, is to provide the residents of these areas with appropriately located alternatives to their regional centre in terms of supermarket and other convenience shopping. So long as the function and size of the centre is not such as to challenge the regional centre, approval for a local centre ought to be determined with reasonable public requirements bearing in my mind the need to provide convenience shopping facilities for 1,000-3,000 households, that is up to 9,000 people.

The LAP actively discourages department stores, variety stores, discount department stores while encourage lower order retail including supermarkets which forge a protection any encroachment on the North Lake major centre. As to the fact that the proposed full-line supermarket may offer convenience shopping to residents beyond the immediate local area it is, Horizon says, a natural concomitant of its location on Halpine Drive and that it will be the first real alternative to regional centre shopping. Approval of the proposed development will achieve the policy of LAP.

Council’s submissions re conflict with Mango Hill Local Area Plan

Council starts with the proposition that as the LAP is not a part of the Scheme, and not a mandatory consideration under IPA s 3.5.5 but may nevertheless be taken into account given that the section does not limit consideration only to the matters referred to therein.

The Council relies upon a statement of Robin QC DCJ in Bird v Logan City Council[119] where His Honour said:-

“[44] The appellants argued that conflict with the SEQRP required refusal of the corespondent‘s impact assessable development application. The SEQRP not being identified in the planning scheme as appropriately reflected in it, by s 3.5.5(2)(c)(iii) of IPA the impact assessment process must be carried out “having regard” to that original plan. The IPA, in marked distinction from situations of conflict with a planning scheme, which may be overcome if “there are sufficient grounds” (s 3.5.14(2)(b)), allows no similar possibility for conflict with a regional plan. The appellants argue that an obligation to have regard to the SEQRP requires it to be taken into account and given weight as a “fundamental element” in making the determination, by reference to R v Hunt, ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, 329. That reference is not persuasive, given that in Hunt, there was only one factor (costs) to which regard must be had. In Evans v Marmont (1977) 42 NSWLR 70, the specified factors to which a court was required to have regard in adjusting property interests of de facto partners in adjusting interests in a “just and equitable” way were two only, namely contributions to financial resources of the partners of either of them and contributions to the welfare of the other or of children. There is an interesting note in Fogg, Meurling & Hodgetts, Planning & Development Queensland at [3440] about “having regard to” for provisions such as s 3.3.15(1)(b) and 3.5.5(2) of IPA which refers to a “stringent application of the duty to have regard where only one purpose is referred to” in Westfield Management Limited v Brisbane City Council [2003] QPELR 520 at [50], one of the appellants’ authorities, which makes reference to others: Zhang v Canterbury City Council (2001) 51 NSWLR 589 (at 602) and Ballymont v Ipswich City Council (No. 1) [2003] 1 Qd R 461 (at 470-471). In some of the cases the requirement is to take into consideration, which probably makes little difference. I find it impossible to conclude that anything like determinative effect can be ascribed to an applicable regional plan or anything else listed in s 3.5.5(2), which lists a wider range of matters for consideration than does s 3.5.15(1)(b). Zhang was concerned with a proscription of brothels within 200 metres of a church or school.
[45] In Ballymont the Court of Appeal considered that ―criterion 6(c) carried no indication that it was any more important than any other provision in criterion 6 – or that criterion 6 was ―any more important than any of the other implementation criteria for objective 12: see [38]. For purposes of s 3.5.5(2) the obligation to have regard to “(a) the common material” may bring in all manner of considerations, unsurprising given that it is implicit that the assessment must have regard to all relevant “impacts” of a proposal. If the IPA intends to attach consequences to some “conflict” in an assessment process, it says so, as it has done in s 3.5.14(2), which deals with conflict with a planning scheme, not with conflict with a regional plan. Compare a development application that is contrary to a State planning regulatory provision: s 3.2.1(7)(f) and (10)(b). If conflict with a regional plan such as the SEQRP were to have the dramatic effect contended for by the appellants, one would expect a court to discern conflict only in very clear cases. The present is not one. On the contrary, I am satisfied that there is no conflict in Jimboomba being provided with facilities that the SEQRP contemplates for it at a relatively early date, and in advance of other locations, which the SEQRP contemplates having more, getting anything at all. While s 3.5.5(2)(c)(iii) of IPA requires any conflict with the SEQRP to be taken into account, it does not render such conflict determinative. In marked contrast, when one comes to “Part F – South East Queensland Regional Plan 2009-2031 State Planning Regulatory Provisions”, conflict is determinative and defeats a development application: Chang v Laidley Shire Council [2007] HCA 37. There appears not to be a conflict with the SEQRP on the foregoing analysis.[120]”

[119][2011] QPEC 145 at [44]-[45]

[120][2011] QPEC 145, [44]-[45] (emphasis added).

Given the lack of prescription in the Scheme as to the size and location of any new retail development, the council says that the correct role of the Northern Growth Corridor policy of which the LAP forms Schedule D is that it assists by providing guidance on such matters but that it cannot be treated as the equivalent of a local planning instrument. The Council cautions against treating the reference to centre sizes in the LAP as stated planning intentions to be treated as, in any way, definitive or binding. It says that for five reasons:-

(a) Trends in retailing have changed to the point where supermarkets are now the major component of convenience centres and a convenient full-line supermarket has a greater role to play, including the provision of extended trading hours and being situated in a location that is easily accessible to patrons travelling by both public and private transport[121];
[121]Exhibit A, Lane report, p 13, par 3.19; Exhibit 5, volume 4, Economic joint report, p 65, par 106(c)

(b) The LAP was not underpinned by any economic analysis[122]. Rather, the centre sizes were selected to avoid protracted negotiations with the owners of North Lakes and Westfield so that the structure plan could be adopted as soon as possible[123];
[122]Evidence of Mr Simonic, T 3.18.1-T 3.19-12
[123]Mr Simonic T 3.25.35-48; T 3.55-20-22

(c) Despite the requirement for it to be reviewed every two years[124], it has not been reviewed since it was adopted;
[124]Exhibit 6, p 477, second last line

(d) At the time of the drafting of the policy document, the public transport corridor was anticipated as a bus corridor and, as such, anticipated must lower concentrations of centres along the corridor than is now envisaged in the temporary local planning instrument[125]; and

(e) Since the policy was adopted six years ago, Council has commissioned additional work in the preparation of new local area plan and undertaken additional planning work that will be included in the new Planning Scheme.[126]

[125]Mr Simonic T 3.56.41-48; T 3.63.40; T 3.64.1

[126]Rawlinson T 6.22.7-22

As to the LAP, the Council says that the relevant function of the local centre is generally to serve neighbourhoods of 1,000-2,000 residents and provide traditional convenience shopping trips and encourages supermarket facilities in Precinct 5 where the site is located. Those supermarket facilities are to be more than a mini-major, grocery store or convenience store and can be compared with the intent for Precinct 4 which is not intended to include a supermarket.[127] The LAP acknowledges the possibility of retail facilities greater than 2,500m² in size for the subject centre by providing any applications for such development be required to demonstrate need through a retail market feasibility report.
[127]Ibid

The LAP intends the total retail floor area in Precinct 5 will be greater than that in other precincts including the Kinsella Heights Local Centre no. 4.

In relation to the trade area and the fact that some of the trade will be drawn from outside the immediate area, Council says that this does not establish conflict and refers to a statement by Rackemann DCJ in 7-Eleven Stores Pty Ltd v Pine Rivers Shire Council[128] where His Honour said:-

“It is unrealistic, in dealing with facilities such as service stations/shop uses, in the modern context, to expect that they will not be uses by a proportion of people from beyond the local area. The catchment areas are not borders which patrons are quarantined. …”

[128][2006] QPELR 85 at [10]

Other issues raised by the Council have been dealt with in the submissions of Horizon.

Conclusion re conflict with Mango Hill Local Area Plan

I accept the submissions of Horizon and the Council and am satisfied there is no conflict with the LAP.

Conflict with Preliminary Approval?

Westfield Arguments

Westfield interprets the Preliminary Approval (PA) as constituted by both the Preliminary Approval and the Development Permit (DP) the subject of the Negotiated Decision Notice of 2 December 2009.[129] That, it says, approved only a supermarket of 985 m² in contrast to the present proposal of 4,020 m².
[129]Exhibit 5(1), p 160-179.

As I have earlier set out, the PA had the effect pursuant to IPA s 3.1.6 of varying the Planning Scheme so that, relevantly, the Table of Development (Table) and the Mango Hill Halpine Drive Mixed Uses Design Code (Code) governed development on the site. Against that background Westfield argues that when one has regard to Overall Outcome 2[130] it speaks of local neighbourhood retail and uses serving the local market and passing trade together with Specific Outcome 5[131] which speaks of Lot 1 being developed as a Local Centre for Halpine Drive and Lot 2 complementing that local centre.[132] In Westfield’s view the overall outcome clearly does not intend use of the Site for retail purposes other than as a local convenience function for the local market. The proposal, it says is inherently inconsistent with the PA and it is in conflict with the Code for the same reasons relied on by Westfield to establish conflict with the LAP. The extensive catchment makes it well beyond local neighbourhood retailer use serving local market and passing trade.
[130]Ibid, p 129.
[131]Ibid, p 30.
[132]Ibid, p 131.

Westfield also submits that the proposal is in conflict with the approved plans of the PA relying for that submission on what it says is the proper construction of the negotiated decision notice that those approved plans apply to both components of the PA namely Material Change of Use – Preliminary Approval and Material Change of Use – Development Permit. In support it points to the introductory words to the schedule of approved plans in the negotiated decision notice[133] which refers to both the approved plans … for this development approval …”.

Horizon and Council response

[133]Ibid, p 171.

Both Horizon and Council take issue with Westfield’s interpretation of the meaning of Preliminary Approval as including the Development Permit approval and say that the PA, properly construed, does no more than amend the assessment framework in the Scheme governing development on the Site. Council points to the fact that the PA relates to both Lots 1 and 2 while the Development Permit relates only to Lot 1 and that there is no reference to approved plans in any of the conditions relating to the Preliminary Approval. Rather that those conditions focus on the way in which the PA amends the affect of the scheme for future development applications through the new Table and the relevant codes identified.

Against the scheme as amended by the PA Horizon and Council argue that there is no conflict with the Code or the PA.

Conclusion re conflict with Preliminary Approval

I agree with the submissions of Horizon and the Council on the correct identification of the PA as not including the Development Permit the subject of the negotiated decision notice. I also accept their submissions that no conflict arises between the proposal and the PA.

Overall conclusion

For the above reasons I am satisfied that the case mounted by Westfield has been answered by Horizon and the Council and that the appeal should be dismissed.

Schedules

CITATION:	Westfield Management Ltd v Moreton Bay Regional Council & Ors [2012] QPEC 51
PARTIES:	Westfield Management Ltd (ACN 001 670 579) (appellant) v Moreton Bay Regional Council (respondent) And Horizon Property Partners (ACN 089 540 625) (co-respondent) And Land Partners Limited (ACN 118 0146 008)
FILE NO/S:	2580/2011
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:
DELIVERED ON:	30/08/12
DELIVERED AT:	Brisbane
HEARING DATE:	18/06/2012 – 26/06/2012
JUDGE:	Searles DCJ
ORDER:	APPEAL DISMISSED
CATCHWORDS:	Whether Conflict with Panning Scheme – Local Area Plan
COUNSEL:	Applicant: JG Gallagher QC & M Johnston First Respondent: N Kefford Second Respondent: CL Hughes SC & J Lyons
SOLICITORS:	Minter Ellison Morton Bay Regional Council Clark Kann