YFG Shopping Centres Pty Ltd v Brisbane City Council & Ors - [2013] QPEC 59

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Y F G Shopping Centres Pty Ltd v Brisbane City Council and Ors [2013] QPEC 59

PARTIES:

Y F G SHOPPING CENTRES PTY LTD

(Appellant)

and

BRISBANE CITY COUNCIL

(Respondent)

and

FABCOT PTY LTD

(Co-respondent)

and

CHIEF EXECUTIVE, ADMINISTERING THE TRANSPORT INFRASTRUCTRE ACT 1994

(Co-respondent by election)

FILE NO/S:

237/2013

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning and Environment of Queensland, Brisbane

DELIVERED ON:

28 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18, 19, 20, 23, 24, 25, 26, 27 September 2013

JUDGE:

R S Jones DCJ

ORDER:

1. For the reasons given, I would be inclined to grant the subject Development Approval, but will adjourn final determination pending hearing from the parties;

2. The matter be listed for review at 09:30 am on 8 November 2013.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Appeal against approval of major commercial development including a supermarket, specialty shops and a large format hardware store.

OUT OF CENTRE DEVELOPMENT – Whether overwhelming need existed for development on an “out of centre” location – where proposed development a “centre “ use

CONFLICT – Whether there was genuine conflict with City Plan 2000 – In the even that there was conflict with City Plan 2000 were there sufficient grounds to approve the application despite the conflict – Substantive issues included alleged conflict with the Planning Scheme – Traffic – Storm water, flooding and drainage – Urban design and visual amenity

Intergrated Planning Act 1997

Sustainable Planning Act 2009

Transport Infrastructure Act 1994

Arpedco Pty Ltd v Beaudesert Shire Council (1980) QDR 88

Bunnings Building Supplies Pty Ltd v Redlands Shire Council & Ors [2000] QPELR 193

Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPLR 126

Elan Capitol v Corporation Pty Ltd & Anor v Brisbane City Council & Ors (1990) QPLR 209

Grosser v Council of City of Gold Coast (2001) 117 LGERA 153

Harburg Investments v Brisbane City Council [2000] QPELR 313

Intrafield v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350

Kotku Education and Welfare Society Inc v Brisbane City Council (2004) QPEC 068

Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [2003] QPELR 385

Luke v Maroochy Shire Council [2003] QPELR 447

Stockland Developments Pty Ltd v Townsville City Council & Ors [2013] QCA 210

Roosterland Pty Ltd v Brisbane City Council (1986) 23 APA 58

Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors [2007] QPEC 003

Webster v Caboolture Shire Council [2009] QPELR 455

Westfield Management Limited v Pine River Shire Council & Ors (2004) QPELR 337

Wincam Developments No. 3 Pty Ltd v Brisbane City Council [2004] QPELR 474

Woolworths Limited v Maryborough City Council (2) [2006] 1 Qd R 273

Yu Feng v Brisbane City Council [2007] QCA 382; (2007) 156 LGERA 399

COUNSEL:

Mr A N Skoien for the appellant

Mr T N Trotter for the respondent

Mr C L Hughes QC with Messrs B D Job and M A Williamson for the co-respondent

Ms J S Brien for the co-respondent by election

SOLICITORS:

Barry Nilsson Lawyers for the appellant

Brisbane City Legal Practice for the respondent

Connor O’Meara Solicitors for the co-respondent

Norton Rose Fulbright for the co-respondent by election

This proceeding is concerned with an appeal against a decision of the respondent to approve a large commercial development including a supermarket, speciality stores and a large format hardware/home improvement store located in the well established Brisbane suburb of Everton Park. For the reasons set out below the orders of the court are:

1.For the reasons given, I would be inclined to grant the subject Development Approval, but will adjourn final determination pending hearing from the parties;
2.The matter be listed for review at 09:30 am on 8 November 2013.

The site

The subject land is situated at 768 Stafford Road on the south-eastern corner of the Stafford Road, South Pine Road and Griffith Street intersection. The real property description of the land is Lot 1 on SP172758 and the site comprises a total area of 7.586 hectares. The site is fairly regular in shape having a 405 metre frontage to Stafford Road and a 63 metre frontage to South Pine Road. The sites’ frontage to South Pine Road is limited to 63 metres because of long standing strip commercial development on the eastern side of South Pine Road south of Stafford Road. The structures presently erected on the land (they could hardly be classified as improvements) comprise of an enormous abandoned warehouse/distribution centre and ancillary buildings once operated by Woolworths. The general scale of the existing structures on the land can be discerned from the aerial photograph, exhibit 36. These structures have long been abandoned and have been vandalised to a significant extent.

Under the applicable Planning Scheme, City Plan 2000 (“City Plan”), the site is subject to a number of relevant designations, namely:[1]
(i)         The north-western section fronting Stafford Road is designated Multi-Purpose Centre (“MP3”) under the Area Designations in chapter 3 of City Plan;
(ii)        That area of the site is also included in Precinct 1 and identified as Sub-Precinct 1(a) under the Everton Park Local Plan of City Plan;
(iii)       The balance of the site is included in Precinct 2, and identified as Sub-Precinct 2(a) under the Everton Park Local Plan of City Plan and is designated Medium Density Residential.
[1]Exhibit 22 – Extract from City Plan 2000 Planning Scheme Map 1 of 3 – Area classifications as of 1 January 2006.
Prior to the change of designation, the site and the land immediately to its south had been identified for light industry uses.

Generally speaking, the Stafford Road frontage of the site up to Cutbush Road sits opposite commercial development on the northern side of Stafford Road including a Coles supermarket, miscellaneous speciality shops and a gymnasium and medical centre. East of Cutbush Road the balance of the site sits opposite residential development. To the west the site abuts existing commercial development on the eastern site of South Pine Road. To the south the site adjoins significant commercial development including a Harvey Norman store, a Spotlight store and an Anaconda store. These stores are located in Sub-Precinct 2(b) under the Everton Park Local Plan. That Sub-Precinct is also identified for Medium Density Residential Development under City Plan. To the east, the site adjoins open space and public purpose areas including a waterway.

Proposed development on this site has been considered by this court on a previous occasion. In Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors[2] his Honour Judge Wilson SC (as he then was) described the site as, among other things, being run down, forlorn, obsolete, derelict, and a blight on Everton Park.[3] With the benefit of an inspection of the site it is clear that nothing has changed since then.
[2][2007] QPEC 003.
[3][2007] QPEC 003, at paragraphs 15 and 29.

Planning history

As previously indicated, formerly the site had been included in the light industry classification. A small area of land on the south-eastern corner of Stafford Road and South Pine Road was identified for commercial uses in recognition of the existing use of that land at the time.[4] In 2006, a number of important planning changes occurred affecting the site and, in particular that:
(i) The light industry classification was removed;
(ii) The Centres Area designation, which had been previously limited to a relatively small area of land surrounding the Stafford Road/South Pine Road intersection, was substantially expanded south of Stafford Road, east of South Pine Road. (“The MP3 area”).
[4]Exhibit 22 – Extract from City Plan 2000 Planning Scheme Map 1 of 3 – Area classifications as of 1 January 2006.
The proposal

Following a request for and the provision of additional information, the respondent issued a Negotiated Decision Notice on 18 December 2012, which approved the proposed development subject to a number of conditions including those required to by the co-respondent by election. The major components of the proposed development include:
(i)         a supermarket comprising 3,800m² of gross floor area (“GFA”) and specialty shops comprising 2,345m² of GFA and associated car parking located on the north western section of the site;
(ii)        a large format hardware store (“Masters”) comprising 13,743m² of GFA and associated car parking located, broadly speaking, on the south-eastern section of the site;
(iii)       a proposed Everton Avenue, which would run, broadly speaking, in a south-westerly direction from Stafford Road opposite Cutbush Road through to the south-western frontage of the site to South Pine Road;
(iv)       three medium density residential sites, two of which would be located on opposite sides of the proposed Everton Avenue opposite Cutbush Road and one to be located on the south‑western section of the site fronting South Pine Road,
But for a relatively small proportion of the specialty shops (about 600m²) and car parking, the supermarket and the balance of the specialty shops would be located within the multi-purpose centre (“MP3”) area of land designated under City Plan and within sub-precinct 1(a) of the Everton Park Local Plan. The westernmost residential site fronting Stafford Road also falls within that sub-precinct. The balance of the development including the Masters proposal and associated car parking is located within sub-precinct 2(a) of the Everton Park Local Plan.

The layout of the proposed development is shown on a number of plans, but is conveniently shown in Exhibit 7 at page 415.[5] For reasons associated with the final location of Everton Avenue, the Masters proposal would be located a number of metres further to the east of that depicted at page 415 of Exhibit 7 and Exhibit 36.
[5]See also exhibit 36 – Aerial photograph prepared by Alan Chenoweth.

As identified above, development on this site has been the subject of previous proceedings in this court. In particular, Wilson SC DCJ was concerned with a proposal which, while having some similarities to the subject proposal, had a number of distinct and material differences. In Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors[6], his Honour described the proposal before him in the following terms:[7]

“(The) proposal involves preliminary approval for an entire, large-scale development to be called ‘Everton Park Urban Village’ and associated permits for reconfigurations of lots and material changes of use. It incorporates a shopping centre (including a Woolworths supermarket) containing over 5,700m², a retail showroom precinct of 6,800m², a tavern and liquor barn, and almost 500 apartments in a number of buildings (which would also contain some small retail outlets). The proposal also includes a proposed new road, Everton Avenue, which will cut through the site between Stafford and South Pine Roads.”

[6][2007] QPEC 003.

[7][2007] QPEC 003, at paragraph 5.

The proposal dealt with in Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors[8], is shown in Exhibit 10 at page 213. As the above passage makes clear there are a number of differences between the two proposals, but of particular significance for the purposes of this appeal, is that that area of the site to the east of the proposed Everton Avenue would change from being predominantly of a medium residential density use to one of a large format retail outlet. In Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors[9], Wilson SC DCJ dismissed the appeal and his Honour’s decision in that respect was upheld by the Court of Appeal in Yu Feng Pty Ltd v Brisbane City Council & Ors[10].
[8][2007] QPEC 003.
[9][2007] QPEC 003.
[10](2007) 156 LGERA 399.

Grounds of appeal and the real issues

The substantive grounds of appeal are[11]:
[11]Exhibit 1 – Appeal book volume 1 Court Documents at page 4.

“13. The development proposed by the development application:
(a)would have unacceptable adverse hydraulic, traffic and amenity impacts;
(b)would result in inappropriate provision of retail, commercial and residential development with regard to the extent, location and mix of that development; and
(c)would not appropriately deal with hydraulic, traffic, amenity and economic issues relevant to the provisions of retail, commercial and residential uses on the subject land.

14.Further, the development application conflicts with City Plan 2000.
15.There are not sufficient grounds to approve the development application despite its conflicts with City Plan 2000.
16.The development application conflicts with the existing preliminary approval.
17.There is no need for the development proposed by the development application …”

By the conclusion of the hearing, the real issues were identified by the appellant to be[12]:
[12]Appellant’s written submissions at pages 7 - 9.

“2.1 The broad issues in this appeal are:
(a)whether there is any conflict between the development application and City Plan 2000;
(b)in the event that there is conflict with City Plan 2000:
(i)the nature and extent of those conflicts; and
(ii) whether there are sufficient grounds to justify approval of the development application despite such conflict.

2.2More specifically, dealing with the question of conflict with City Plan 2000, the issues are:
(a)whether the development application conflicts with the centre development provisions of City Plan 2000 (more accurately, the out of centre development provisions) and, in particular, whether there exists an overwhelming need for the proposed out of centre development;
(b)whether the proposed development conflicts with the intent for that part of the subject land designated Medium Density Residential under Chapter 3 of City Plan 2000 as a result of the predominance of large scale retail development on that part of the site, instead of Medium Density Residential development;
(c)whether the proposed development conflicts with the intent for sub-precinct 2(a) of the Everton Park Local Plan, as a result of the predominance of large scale retail development within that precinct, instead of medium density residential development (with its associated facilities and amenities);
(d)whether the proposed development will have significant adverse impacts upon the local road network;
(e)whether the proposed development conflicts with the provisions of City Plan 2000 with regard to the avoidance of development within the waterway corridor that sits in the north-east and east section of the subject land and the maintenance of the functions of that waterway corridor;
(f)whether the proposed residential development (or potential sites for proposed residential development) accords with the intent for residential development on the subject land; and
(g)whether the proposed large scale retail development of the subject land is in accordance with the provisions in relation to such retail development (in particular provisions of the Centre Design Code of City Plan 2000).

2.3 A key issue in the Appeal is whether there is any need and any overwhelming need for the proposed development. The question of the existence of such overwhelming need is relevant both to the question of whether there exists conflict with the provisions of City Plan 2000 (in particular the out of centre retail development provisions) and whether, if there is conflict whether grounds exist to justify approval of the Development Application despite conflict.”

In my view, the respondent and co-respondent have accurately broken the real issues down into the following broad categories:

1. Alleged conflict with City Plan 2000

2. Alleged conflict with the Everton Park Local Plan

3. The consequences of out of centre development

4. Urban design and visual amenity

5. Stormwater flooding and drainage (hydraulics)

6. Traffic

7. Sufficient grounds (in particular need for the Masters development)

At this stage, I would observe that the town planner for the respondent, Mr Brown, and for the co-respondent, Mr Schomburgk, gave evidence strongly in support of the proposed development. Mr Venn, the town planner relied on by the appellant, opposed the proposal. However, it became apparent at the conclusion of his cross-examination that the real point of difference between him and Messrs Brown and Schomburgk was with what should occur on the eastern side of the proposed Everton Avenue. At the conclusion of his cross-examination, I asked Mr Venn a number of questions and in particular the following[13]:
[13]T9-38 L25 – T9-39 L1-27.

“Look I have just got a couple of questions and I will ask them now. Now, Mr Venn, as I understand your position, it’s not – I don’t want to oversimplify it and I certainly don’t intend to, but if I do, you tell me, but as I understand it notwithstanding there being conflict with the planning scheme, you would see a proposal generally in accordance with what you sketched out in Exhibit was it 49 as being an acceptable town planning solution[14]?
[14]Exhibit 49 was a sketch plan prepared by Mr Venn showing the Masters development situated on the western side of the site west of the proposed Everton Avenue.
I suppose I don’t know that I’m going that far, your Honour. I’m saying it replicates to a large extent the 2008 approval[15] in the areas of precinct 2(a) that it uses for commercial development.
[15]Exhibit 10 – Appeal book volume 10 Joint Reports at page 213.
Yes?
And it offers the opportunity to retain the – retain the residential component. I’m not necessarily advocating that in those circumstances the Masters would be acceptable. I’m not really saying that.
What about then the approval – the prior approval with the supermarket in – on the western-side of Everton Avenue?
I think it comes down to, your Honour, the comment you made that it would become a commercial decision for Woolworths.
No, no, no. Leaving that aside, I appreciate that you’re not going so far as to say that Exhibit 49 reflected an acceptable planning solution, but again notwithstanding the conflicts what about in (sic) that proposal, the 2008 proposal you know, with the supermarket west of Everton Avenue, dominant residential east of Everton Avenue?
Yes.
Do you see that as an acceptable planning solution?
Well I suppose at the time I would have been against it, but given the local plan that came at the same time, it seems to be that it is an acceptable arrangement because of that history and that timing, if you like.
I’m not asking you to commit to the exact layout, I’m just trying to get a bit of a feel for this, and so?
If I could make further comment, your Honour, I think Mr Schomburgk talked about infill development, this is an infill site and I don’t necessarily agree in totality with that, but to the extent that you could say that you’re infilling retail development, then the linking of the Harvey Norman with the supermarket MP3 area could be construed as infill, but that would be the limit of it and that generally reflects what is in the 2008 approval.
So if I understand you, subsequent to the introduction of the local plan, supermarket development on the western side of Everton Avenue, despite there being conflicts, would be, in your opinion an acceptable planning solution?
But I would – I would have to say, yes, your Honour.

Yes?
It seems so.
All right. So then at the end of the day, the dispute – where you take issue with Mr Schomburgk and Mr Brown really comes down to what happens on the western side of Everton Avenue and, in your opinion that should be clearly dominantly for medium density residential?
That – that is my view, yes, your Honour.
So essentially that’s where you, Mr (Brown) and Mr Schomburgk really part company isn’t it?
I think so.”(emphasis added)

Apart from Mr Skoien clarifying that when I referred to the western side of Everton Avenue in the context of the medium density residential development, I was really referring to the eastern side of Everton Avenue, counsel had nothing further to raise following my interchange with Mr Venn.

That the proposed Masters development would effectively prevent a large area of that part of the site east of the proposed Everton Avenue for medium density residential uses was, in Mr Skoien’s final address identified as creating “the greater level of conflict” in response to a number of questions during final submissions Mr Skoien responded[16]:

“There is a level of conflict. If we were here talking about the MP3 site and 600 square metres of specialty retail straying over into the MP3 site we probably wouldn’t be here. The point to be made is that the greater area is consumed by the non-residential uses of the precinct 2A the greater the level of conflict. And, importantly, on the appellant’s submission, the greater the amount of need – the extent of need that needs to be identified to overcome the – that extended conflict with the planning scheme. Your Honour, in a more direct answer to your Honour’s question, can I say this. That what can be said is that, consistent with this court’s decision in the earlier case and the Court of Appeal’s decision is that it’s been identified that there’s a level of consistency that can be overcome by a level of need for uses which effectively are non-residential on that western side of the proposed Everton Avenue. So certainly it is the proposal to put large scale retail warehousing on the eastern side of the – of Everton Avenue and in particular to the effective exclusion of any meaningful residential development in that precinct that creates the very substantial conflict which the appellant says is effectively insurmountable in – on the facts of this case. Your Honour, in that regard, the appellant submits that the earlier decisions are not taken as some sort of binding authority in respect of how this matter ought be determined.” (emphasis added).

[16]T9-48 L45 – T9-49 L1-15.

I propose to deal with the issues identified above not in the order set out in paragraph 15, but in the order in which I feel I can more readily dispose of them.

As the subject development application was lodged in July 2009 this appeal must be determined under the repealed Integration Planning Act 1997 (“IPA”) pursuant to section 819 of the Sustainable Planning Act 2009 (“SPA”). Also, notwithstanding that in this proceeding, the appellant is a commercial competitor of the co-respondent, the onus rests with the co-respondent to satisfy me that the appeal should be dismissed.

Hydraulic Issues

In the second joint expert report the engineers retained by the appellant and co‑respondent (Mr Collins for the appellant and Dr Johnson for the co-respondent) identified the substantive points of disagreement between them in the following terms:[17]

“Neil Collins states that the Filling and Excavation Code requires compliance for any filling within a waterway corridor to be in accordance with the Compensatory Earthwork Policy (as required under Performance Criteria P3). He also believes that Council generally discourages filling or excavation within a mapped waterway corridor.
Trevor Johnson states that there is no formal proscription on development within a waterway corridor. The question of whether compliance is required with the Compensatory Earthworks Planning Scheme Policy is a matter which Council has determined in the negative in this case.”

[17]Exhibit 10 – Appeal book volume 10 Joint Reports at page 55.

The respective positions of the engineers were maintained and expanded on in their court reports.[18] The differences between Dr Johnson and Mr Collins were further refined in the evidence-in-chief of Mr Collins[19]. First, the extent to which there has been a proper assessment of offsite impacts resulting from works within the waterway immediately to the east of the subject site. Second, an associated matter, namely the extent to which the respondent council discouraged works within a waterway corridor. In this context, a significant part of the cross-examination of Dr Johnson was concerned with downstream impacts caused by the intended works associated with the proposed development. In Dr Johnson’s opinion, the works would result in a “non-worsening” situation and that the respondent had shown in the past a degree of flexibility in how it dealt with construction works within waterways.
[18]Exhibit 14 Individual Report of Dr Trevor Johnson; Exhibit 24 Statement of Evidence of Mr Neil Ian Collins – Report in Respect of Flooding and Stormwater Management.
[19]T2-40 L5-13.

It is not necessary to decide at this stage what works the respondent would or would not allow to be carried out within the waterway corridor. There is nothing to suggest that the respondent would act otherwise than in a considered appropriate way when considering that issue. In addition, as Mr Collins agreed, any adverse impacts could be addressed in the final design stages of the proposed development.[20] While it may be true that further uncontrolled and ongoing works carried out within the waterway corridor could eventually lead to unacceptable adverse impacts that is no basis for concluding that no works ought be permitted in the waterway corridor in the circumstances of this case. I did not understand Mr Collins to be saying to the contrary.
[20]T2-42 L12-22: T2-50 L3 - T2-51 L1-20.

As I understood the oral submissions made by Mr Skoien on behalf of the appellant, the issues associated with potential impacts on the water corridor would not of themselves amount to grounds to refuse the application, but they together with the traffic issues, tended to “exacerbate” the more substantive conflicts and, in particular, the Masters proposal on land identified for medium density residential uses.[21] For the reasons given above and later below, I do not consider that the hydraulic issues raised by Mr Collins either on their own or together with the other issues raised by the appellant would warrant refusal of the development application.
[21]T9-46 L35-45: T9-47 L24 – T9-49 L1-15.

Urban design and visual amenity

These issues raised hardly a mention in the appellant’s written and oral submissions at the conclusion of the hearing of the case. That is not particularly surprising in the context of this appeal. That is, in the event that the proposed development is in genuine conflict with the respondent’s planning scheme and there are not sufficient grounds to justify it despite the conflict, then the issues of urban and visual amenity become largely academic if not redundant.

One of the more significant issue raised under this broad heading was the level of amenity (or lack thereof) afforded to the three proposed residential sites. Mr King, the mechanical engineer called on behalf of the co-respondent, gave evidence to the effect that an acceptable level of internal amenity could be achieved in any medium density residential development fronting Stafford Road and South Pine Road subject to appropriate design and construction. Such remedial works might include acoustic sound barriers along South Pine Road and Stafford Road and a length of the southern boundary of the site adjoining the Harvey Norman Centre together with double glazing and air-conditioning. No witness was called to contradict that evidence of Mr King and I accept it.

Mr King acknowledged that with the doors open, particularly for those units fronting the roads, internal amenity would be reduced to a relatively low level and that that situation would of course also be the case for any person wanting to sit on his or her balcony. However, the evidence is that in established suburbs, particularly those reasonably proximate to the central business district and its environs, units/apartments are frequently built on major road corridors, which offer relatively low levels of external amenity and are purchased. The reason for this being the functions of price, proximity to the city, proximity to public transport, and convenient access corridors to the city. In this context, I agree with the observation of Mr Isles, one of the town planners called by the appellant, to the effect that medium density residential development close to Stafford Road and/or South Pine Road “would be fine”.[22]
[22]T3-69 L5-25: T3-70 L5-15.

Turning to the other issues raised under this heading, Mr Chenoweth, an experienced environmental scientist and landscape architect who was called by the co-respondent gave evidence to the effect that, on the assumption that the Masters development was an acceptable development within Sub-Precinct 2(a), its proposed location together with appropriate landscaping would result in an acceptable urban outcome. Also, in his opinion, the proposed development would be a great improvement on the present state of the site.[23] Proceeding on the assumption that the Masters proposal would be an acceptable use of the land, Mr Isles also had no difficulty with the proposed development being approved.[24] There are no urban design or visual amenity grounds for refusing the appeal.
[23]T3-41 L5-42.
[24]T3-65 L34-40: T3-66 L5-7.

Traffic

Both Stafford Road and South Pine Road are State-controlled roads for the purposes of the Transport Infrastructure Act 1994 (“TIA”). Pursuant to schedule 2, table 3, item 1 of the Intergraded Planning Regulation 1998 (“IPR”), as the proposed development would be on land contiguous to State-controlled roads, the co-respondent by election is a concurrence agency. Section 2 of the TIA relevantly provides:

“(1)The overall objective of this Act is, consistent with the objectives of the Transport Planning and Coordination Act 1994, to provide a regime that allows for and encourages effective intergraded planning and efficient management of a system of transport infrastructure.
(2)In particular, the objectives of this Act are: -
(a)to allow for Government to have a strategic overview of the provision and operation of all transport infrastructure; and
(b)for roads – to establish a regime under which: -
(i)a system of roads of National and State significance can be effectively planned and effectively managed; and
(ii)influence can be exercised over the total road network in a way that contributes to overall transport efficiency; and
(iii)account is taken of the need to provide adequate levels of safety, and community access to the road network; and
…..”

Traffic issues, particularly at the intersection of Stafford Road and South Pine Road were particularly important in the context of this appeal. All of the parties to the appeal retained experts in the field of traffic engineering. The traffic engineers were Mr Williams for the co-respondent by election, Mr Beard for the respondent, Mr Viney for the co-respondent, and Mr Pekol for the appellant.

Of particular importance to the traffic engineers was the traffic volumes that came together at the intersection of Stafford Road, South Pine Road, and Griffith Street. All agreed that at peak times this intersection operated at above desirable operation standards. According to Mr Viney (and this was not really disputed by any of the other traffic engineers) an acceptable operational standard for an intersection such as that involved here would be up to “somewhere around” a degree of saturation of about 0.9.[25] Under section 6.4.1 of the co-respondent by election’s Guidelines for Assessment of Road Impacts of Development (“GARID”), where an intersection is above capacity the developer is required to ensure that the intersection would be no worse (in terms of traffic impacts including pedestrian safety) in the after development situation than in the before development situation.
[25]T2-70 L30-35.

Following criticism from Mr Beard and Mr Pekol in particular to the effect that he had significantly underestimated the impact of the proposed development on the local road network, Mr Viney Carried out further investigations and concluded that as at the 2010 base case, the degree of saturation at the intersection would have been in the order of 1.14 before the proposed development and 1.09 in the after development case.[26] Accordingly, as there had been a slight improvement as distinct from a worsening, the relevant provisions of the GARID had been satisfied.
[26]Exhibit 10 – Appeal book volume 10 Joint Reports at page 38.

Mr Viney’s analysis was criticised by Mr Skoien, for failing to carry out a sufficient level of investigation and, in particular, failing to carry out an appropriate, what was described as a SIDRA analysis, which had it been done, would have revealed how all of the relevant intersections in the vicinity would have operated in an integrated way. In addition, Mr Viney’s analysis was criticised by Mr Beard at a number of levels. However, in my opinion, it is not necessary to deal with each and every of those criticisms in any detail. That is because following numerous joint meetings between the traffic engineers, including during the conduct of the hearing of the appeal, they produced a further joint report which relevantly provided:[27]
[27]Exhibits 32 – Joint Report of traffic engineers dated 19.09.13 and 32A – Joint Report of traffic engineers dated 19.09.13 typed.

“It was agreed that:
(i)South Pine Road/Everton Avenue intersection design 5654SKC35RevC(MPN Consulting) is agreed by the experts to be acceptable in accordance with the approved DTMR condition (condition 5);
(ii)Everton Avenue Functional Layout Plan 5654SKC44RevB(MPN Consulting) and Buchan Group Plan A-SK134 issue B is agreed by all to be an improvement in pedestrian safety which was seen as a critical issue.
While the design is not considered to be entirely satisfactory by Messrs Pekol, Beard and Williams they believe that it could be reasonably conditioned. Mr Viney believes the design is satisfactory;
(iii)With the Stafford Road/Everton Avenue intersection, all agree that the currently proposed layout is not so unsatisfactory as to justify refusal. AP (Pekol), CB (Beard) and SW (Williams) consider that the intersection performance and the performance of Everton Avenue would be improved by a free left turn slip lane and auxiliary lane (east to south). NV (Viney) notes that this would provide greater efficiency but the approved intersection is acceptable; and
(iv)SW, CB, and NV believe that the wider traffic impacts on the road network are not sufficient to warrant refusal. AP was of the view that the analysis to date has not sufficiently demonstrated that the “non worsening” criteria has been met.”

On the balance, I agree with the conclusions reached by Messrs Beard, Viney, and Williams to the effect that the traffic issues associated with the proposed development would not be sufficient to warrant its refusal. It is clear that conditions in addition to those already required by the co-respondent by election may be required to deal with matters such as pedestrian safety and an additional left turn slip lane from Stafford Road into the proposed Everton Avenue, but that such further conditions would probably be required is not sufficient grounds for refusal.

The further joint report of the traffic engineers (exhibit 32) came into existence after Mr Pekol’s court report[28]. It is clear from exhibit 32 and Mr Pekol’s evidence in chief that the only area left in dispute amongst the traffic engineers was the traffic impacts caused by the proposed development on the local road network and in particular at the “key” intersection at South Pine Road, Stafford Road, and Griffith Street.[29]
[28]Exhibit 27 – Evidence of Mr Adam Pekol.
[29]Exhibit 32 – Joint Report of traffic engineers dated 19.09.13; T4-90 L33-40.

Traffic issues were not dealt with at all in any meaningful way in the appellant’s written submissions and were only dealt with in oral submissions with the bold assertion that there was no basis for finding that in the after development case there would be a non-worsening on the local traffic network and in the event that there was a no worsening result that was of itself not a ground to support the proposal.[30] The first oral submission made by Mr Skoien fails to recognise or, at the very least, give sufficient weight to the expert evidence of Mr Viney and Messrs Williams and Beard in particular. As to the second point, while a non worsening traffic result might not, of itself, positively support the proposal it is clearly an important consideration.
[30]T8-47, L25-40.

In this appeal, the co-respondent by election was, if I may say so, quite enthusiastic about the proposed development. It of course had no real interest in satisfying a perceived need of the community for a supermarket and/or Masters, but it could see the benefits of a development that provided for the diversion of that traffic travelling north on South Pine Road intending to turn east on to Stafford Road. Diversion strategies could also be adopted by the Department, if thought necessary, in respect of traffic travelling west along Stafford Road intending to turn south into South Pine Road. Such options would be available by the introduction of the proposed Everton Avenue. The position of the co-respondent by election was articulated in its written submissions as follows:[31]

“The opinions of each of the experts are at best predictions based upon experience. As it was accepted by Mr Pekol, the Department does change phasing of signals on State controlled roads to achieve better outcomes at intersections rather than undertake road works. The introduction of the two new intersections provides the Department with additional options into the future for the management of a currently congested intersection.” (footnotes deleted).

[31]At paragraph 29.

The “two new intersections” referred to are the Everton Avenue intersections on Stafford Road and South Pine Road. Based on his experience rather than any particular traffic analysis, it was Mr Viney’s opinion that approximately 50% of the relevant traffic would be diverted via Everton Avenue. In his opinion, a diversion of that order would be sufficient to result in a non-worsening situation. In Mr Beard’s opinion, a diversion of 66% would be required to result in a non-worsening situation, but again based on experience rather than any specific analysis, a 66% diversion could be achieved with the introduction of the left turn slip way from Stafford Road east of the Stafford Road/South Pine Road intersection.[32]
[32]Exhibit 38 – Mr Bread’s diagram of Stafford Road – Everton Avenue intersection.

Whether the proposed Everton Avenue might attract 50% or 66% of the relevant traffic is not necessarily to the point according to Mr Williams, the traffic engineer relied on by the co-respondent by election. According to Mr Williams, as I understand his evidence, the Department could manipulate the traffic signals at the intersection of South Pine Road and Stafford Road to discourage or even “literally ban” that segment of the relevant traffic flow from using that intersection.[33] A total ban on the relevant traffic movements would of course alleviate traffic congestion at the intersection, but would force 100% of that traffic onto Everton Avenue and thereby increase the tension between that through traffic and the traffic (including pedestrians) associated with the custom of the various facilities proposed. However, I was not taken to any evidence to suggest that “tension” would result in unacceptable traffic conditions and/or amenity.
[33]T3-29 L20-40.

In cross-examination, Mr Pekol did not dispute that Everton Avenue would function as an effective bypass. Also, he agreed that it would allow the co-respondent by election a degree of flexibility regarding the operations of the signalised intersection at Stafford Road and South Pine Road and that on occasions signalised phasing has been interfered with to account for changed traffic conditions.[34]
[34]T5-3 L9-15: T5-6 L25-28

In my view, Mr Pekol expressed his real concerns in his evidence in chief when he said:[35]

“I think, Mr Williams, if I heard him correctly on Friday, was saying that the department would have the flexibility – with Everton Avenue in place – would have the flexibility of effectively banning the right turn from occurring from South Pine Road into Stafford Road at the key intersection we were talking about. And effectively forcing not giving people these – not giving these people a choice but forcing them to perform that manoeuvre via Everton Avenue. Now that might – I guess I cant question if he speaks on behalf of the department what the department may or may not do. My concern with such a drastic approach to managing traffic is that certainly no one’s tested the impact of sending 100% of that right turning traffic along Everton Avenue. Now, I am less concerned about the impact on Everton Avenue itself, okay? I think the road itself could accommodate those movements, but in terms of the additional delay caused at the two signalised intersections at either end of Everton Avenue, that’s what would concern me and I just can’t help but wonder whether we’re robbing Peter to pay Paul. We’re improving operations at this key intersection only to shift the delay from the key intersection and offset it to these other two intersections. And, so, by just focusing on that key intersection, we are getting the complete picture. I don’t think we are, your Honour.”

[35]T4-94 L5-22.

The onus of course is on the co-respondent to satisfy me that the traffic issues associated with the proposed development can be adequately dealt with. Based primarily on the evidence of three very experienced traffic engineers, I consider that they can be. At the end of the day Mr Pekol had no sound basis for doubting the conclusions reached by the other traffic engineers and the mere “wondering” about potential issues that may or may not arise is not sufficient to offset the more probative evidence of the other traffic engineers.

On balance, I am satisfied that with the introduction of Everton Avenue and other appropriate traffic conditions the proposed development would not worsen the traffic situation in the subject locality and, in particular, at the key intersection of Stafford Road and South Pine Road, and in fact might lead to a slight improvement in congestion at that intersection.

Conflict with the Planning Scheme

As already identified, the central issue is whether or not development of that part of the site identified for medium density residential uses for other uses constitutes a conflict with the relevant parts of the respondent’s planning scheme. Of particular significance is the amount of land identified for medium density residential uses now proposed to be used for car parking and the Masters proposal. As already referred to, Mr Skoien, quite properly in my view, essentially conceded that if the only infringing commercial development was limited to the 600m² or so of specialty shops intruding into the medium density residential area it would be hard to maintain that there was in reality real conflict with the planning scheme. To use Mr Skoien’s words if the extent of the encroachment was limited to that, the appellant “probably wouldn’t be here”.[36] That concession of Mr Skoien was of course premised on the assumption that the balance of that part or the site identified for medium density residential use would, to a significant extent, be in fact used for that purpose.
[36]T9-48 L45-50.

In the appellant’s written submissions, after referring to relevant provisions of the City Plan and the Everton Park Local Plan it was stated:

“Clear conflict
5.9The appellant submits that there are two clear conflicts between the proposed development and the intent for the land use on that part of the subject land designated Medium Density and Sub-Precinct 2(a). They are:
(a)The absence of any significant residential development on the subject land; and
(b)The proposal for large scale retail development instead of Medium Density Residential Development.
…

5.10It will, no doubt, be suggested that the need experts have agreed that there is no issue arising from the loss of residential land as a result of the consumption of land intended for residential development by the proposed large scale retail development. However, the absence of any issue in respect of the loss of land to accommodate population growth does not remove the planning implications of the conflict between the proposed development and the planning strategy for the subject land.
5.11The promotion of medium density residential living opportunities in an inner suburban location such as this, with high level of amenity, in close access to all relevant facilities, reflects sound planning strategies. It is clearly a strategy that is adopted by the planning authority in City Plan 2000. There is no reason (or justification) to depart from that strategy, in the absence of sufficient grounds.
Consequential impacts and conflicts
5.12The appellant notes, of course, that it is the departure from this strategy that gives rise to further conflicts with the Planning Scheme in relation to out-of-centre development, amenity impacts for potential residents of the potential residential sites, impacts upon the local road network and development within the waterway corridor (thereby creating potential problems with regard to flood storage and amenity and recreational functions of the waterway corridor.)
5.13Adoption of the clearly intended planning strategy avoids these impacts.
5.14In addition, the proposed large format hardware store gives rise to various urban design impacts, identified by Mr Isles which brings the proposed development into further conflict with the City Plan 2000.
Conclusion
5.15In all the circumstances, it is submitted that the court would conclude that there are stark conflicts between the proposed development and the relevant provisions of City Plan 2000. Those conflicts exist at all levels of those provisions, from the provisions identifying the intent for the use of the subject land, through to specific impacts that would arise from the proposed development itself, including amenity, traffic, urban design and an interference with function of the water way corridor.
5.16It is hard to see how there could be stronger conflict with the relevant planning provisions.” (footnotes deleted)

Essentially, it is contended by the appellant that material conflict exists at two levels. First, there is no overwhelming need for the proposed “out of centre” Masters development. Second, that such development is in clear conflict with the intended land use for Sub-Precincts 2(a) and 2(b) and there are no sufficient grounds to warrant the development being approved despite the conflict.

Before going on to deal specifically with the matters raised it is appropriate to make some general observations.

The first is that in appeals such as this, it is not the function or role of the court to substitute its own planning strategies for those actually adopted and put in place by the relevant planning authority.[37]
[37]Elan Capitol v Corporation Pty Ltd & Anor v Brisbane City Council & Ors (1990) QPLR 209 at 211: Grosser v Council of City of Gold Coast (2001) 117 LGERA 153.

The second is that planning schemes are to be construed as a whole and broadly rather than pedantically or narrowly and with a sensible practical approach. Planning schemes should also be construed in a way that best achieves their apparent purpose and objects.[38]
[38]Westfield Management Limited v Pine River Shire Council & Ors (2004) QPELR 337 at page 341 and Kotku Education and Welfare Society Inc v Brisbane City Council (2004) QPEC 068 at paragraph 18: also Stockland Developments Pty Ltd v Townsville City Council & Ors [2013] QCA 210 per de Jersey CJ at paragraph 26: Arpedco Pty Ltd v Beaudesert Shire Council (1980) QDR 88 at 94 per Dunn J.

The third broad principle is that for there to be genuine conflict with a Planning Scheme, the proposal must be capable of being identified as being at variance with or in disagreement with the relevant provisions of the planning scheme.[39]
[39]Webster v Caboolture Shire Council [2009] QPELR 455 at paragraph 110 where Brotherson QC DCJ sided with approval the decision of the Court of Appeal in Woolworths Limited v Maryborough City Council (2) [2006] 1 Qd R 273.

The relevant planning provisions

The site at the date of the development application was included partly in the Multi-Purpose 3 Centre and Medium Density Residential Area classifications. “Residential Areas” are intended to be comprised mainly of dwellings and shops and commercial activities are not to be located close to existing “Centres” and are intended to be small in scale and serve only local community needs. [40]
[40]Refer to exhibit 22 – Extract from City Plan 2000 Planning Scheme Map 1 of 3 – Area Classifications as of 1 January 2006 and Chapter 3 of City Plan (Exhibit 18 – Planning Scheme extracts at pages 27-29).

A suburban centre (“MP3”) is defined in s 7.2.1 of City Plan 2000:[41]

“Suburban Centres (“MP3”) provide a variety of services. They may be characterised by small tenancies within a limited area, or lower density larger tenancies over a broader area. They generally contain more than 6000m² of gross floor area.”

[41]Exhibit 18 – Brisbane City Plan 2000 – Extracts at page 41, section 7.2.1.

Section 7.2.2 of the Desired Environmental Outcomes for Multi-Purpose Centres includes, among other objectives, the following:

“1.All new shop office and cultural developments including low density retailing such as retail warehousing, are clustered in Multi-Purpose Centres unless an overwhelming community need dictates otherwise… and
….
5.Suburban centres provide for a variety of centre activities. Building bulk and form is more substantial then that of the surrounding residential neighbourhood while building height is generally consistent with that of the surrounding suburban development.” (Emphasis added.)

One of the more significant objectives of Multi-Purpose Centres is to act as focal point for:

· Service delivery and employment opportunities;

· Safe, convenient, and accessible public transport interchanges;

· Meeting places for social and community interaction; and

· Higher Density Residential Locations.[42]

[42]Exhibit 18 – Brisbane City Plan 2000 – Extracts at page 20, section 4.4.2.2.

The emphasis on maintaining the integrity of Multi-Purpose Centres is reflected in section 4.4.2.6 of the City Plan which relevantly provides:[43]
[43]Exhibit 18 – Brisbane City Plan 2000 – Extracts at page 21.

“4.4.2.6 Out-of-Centre Development
The plan strongly encourages Centre activities to locate in-centre and strongly discourages their location out-of-centre.
Out-of-centre development of Centre activities is inconsistent with the intent of the plan unless an overwhelming community need is demonstrated. Overwhelming community need will have to be demonstrated through preparation of a commercial impact assessment report as detailed in the Commercial Impact Assessment Planning Scheme Policy.
…
Where an assessment of overwhelming community need demonstrates that it is not possible to accommodate a Centre activity within a Centre within the life of the plan, preference will be given to that development occurring at the edge of an existing Centre rather than in a stand alone or isolated location.
Small scale shop or office activities of 250m² gross floor area or less are provided for within Residential or Emerging Community Areas where they do not constitute and incremental extension to a Centre, are located on a district access route or suburban route, and serve local community needs.
While it may be attractive from a commercial perspective to locate retail warehouses outside Centres this will only occur as a last resort when the proposed out-of-centre location satisfies the overwhelming community need test… .” (Emphasis added.)

The integrity of Multi-Purpose Centres is also emphasised in other provisions of the City Plan for example in Desired Environmental Outcome 5.1.1(8):[44]

“8.Shops and offices in residential areas are located on a district access or suburban route, are not located in close proximity of an existing Centre, are small in scale and only serve local community needs.”

[44]Exhibit 18 – Brisbane City Plan 2000 – Extracts at page 29; (refer also to sections 4.4.2.1, 4.4.2.2, and 4.4.2.4).

At page 87 of chapter 3 of the City Plan[45] it is relevantly stated:
[45]Exhibit 18 – Brisbane City Plan 2000 – Extracts at page 48.

“Centre activities: Where in a Multi-Purpose Centre or where specified in a local plan, use of premises for any of the following group of uses are termed Centre activities.
…
·   Display and sale activities;
…
·   Multi-Unit Dwelling;
...
·   Restaurant;
…
·   Shop;
…”

The term “shop” is also defined in the City Plan[46]:

“Shop: A use of premises for the display and retailing of goods and personal services such as betting, hair and beauty care, laundromats and dry cleaning shop fronts e.g. supermarket, department store, show room, retail warehouse, liquor store, place for the hire of domestic items, stall, market or salon.” (Emphasis added.)

[46]See exhibit 48 – Brisbane City Plan 2000 – Volume 1 Chapter 3, page 93.

Before going on to deal with the Everton Park Local Plan it is of some relevance to note that in the South-East Queensland Regional Plan, which post dates the City Plan, it is stated, in part in section 8.6:[47]
[47]Exhibit 30 – Extract from South East Queensland Regional Plan 2009-2013 – Part D, page 97.

“Large format retail premises such as bulky good retail activities, can occupy large sites and should be located on a Centres’ periphery. If there is no room in a centre the out-of-centre location of these larger premises should be assessed in terms of community need and potential impact on the:

§ Primacy and functionality of surrounding Centres;

§ Maintenance of pedestrian convenience and transport system efficiency;

§ Amenity of surrounding residential neighbourhoods. (Emphasis added)”

In the circumstances of this appeal, the relevant “Centre” is the “Suburban Centre” (“MP3”), which occupies broadly speaking the north western corner of the site west of the proposed Everton Avenue.

The proposed Masters Development is a large format retail premises and, as it can be seen from the numerous concept plans, will together with the necessary associated car parking, occupy a large area. In the event that the proposed supermarket and specialty stores where located within the MP3 area of the site there would clearly be insufficient room for the Masters proposal. While there was some discussion during the course of the appeal about the capacity to locate only it within the MP3 area, the evidence on this point, such as it was, was sufficient to convince me that it would be unlikely that the Masters proposal together with the necessary car parking could be located within that area.

Returning for the moment to section 8.6 of the South-East Queensland Regional Plan there is no room for the proposed Masters development within the “Centre” let alone at its periphery. It is a development intended to be situated on an “out-of-centre location” and, accordingly, has to be assessed in terms of community need and the potential impacts identified above.

The City Plan also contemplates a number of local plans designed to recognise the different characteristics and issues associated with various local precincts within the greater city of Brisbane area. Of particular significance is that in the event of any conflict between the provisions of a Local Plan and City Plan the Local Plan overrides any other part of the City Plan that it is in conflict.[48]
[48]Exhibit 18 – Brisbane City Plan 2000 – Extracts at page 49.

The subject site is located within the Everton Park Local Plan and in particular within Precinct 1, (Sub-Precinct 1(a)) and Precinct 2 (Sub-Precincts 2(a) and (2)(b).)[49]
[49]Exhibit 18 – Brisbane City Plan 2000 – Extracts at page 60.

The statement of intent for Precinct 1 is:[50]
[50]Exhibit 18 – Brisbane City Plan 2000 – Extracts at page 54.

“Precinct 1 – Everton Park Centre
This precinct is intended to accommodate a range of activities expected in a Suburban Centre. The built form and character of the Precinct as a traditional suburban shopping strip is to be retained.
Development in this precinct is to encourage pedestrian activity and movement by providing active street frontages and links across Stafford and South Pine Roads… .
Sub-Precinct 1(a)
Provides an opportunity for mixed use development with Centre uses located on the ground level and residential uses located on upper levels.”

The statement of intent for Precinct 2 relevantly provides:[51]
[51]Exhibit 18 – Brisbane City Plan 2000 – Extracts at page 55.

“Precinct 2 – Centre Residential
This precinct is intended for the development of residential, Centre, and recreation uses. Opportunities exist in the precinct for the redevelopment of land outside the Department of Main Roads proposed North-Western Transport Corridor which was previously used for industrial purposes.
…
A major impact on development of this precinct is the Department of Main Roads proposed North-Western Transportation Corridor. The corridor is being retained and protected pending investigations of future transport needs… . Development adjoining this corridor is to include adequate noise and landscape buffering.
…
Sub-Precinct 2(a)
Contains the former Woolworths Distribution Centre and is identified as a key redevelopment site. Development of Medium Density Residential Uses is intended in this Sub-Precinct due to its close proximity to the Everton Park Centre and public transport facilities.
Centre activities such as supermarkets, restaurants, department stores and group small scale tenancies are not supported within the Sub-Precinct.
…
Sub-Precinct 2(b)
Is intended (until approximately mid 2016) for large tenancy retail specialising in home wares or home improvement retailing, which requires larger tenancies and generates less traffic than convenient shops or shopping centres.
Centre activities such as supermarkets, restaurants, department stores and group small scale tenancies are not supported in within the Sub-Precinct.
Redevelopment proposals that include Medium Density Residential Uses would be support if intergraded with Sub-Precinct 2(a)” (Emphasis added.)

Superimposing the proposed development and the surrounding commercial activities over the MP3, Precincts 1 and 2 and Sub-Precincts 1(a), 2(a) and 2(b) areas within the Everton Park Local Plan:

1. The older more traditional strip retail component of Everton Park fronting South Pine Road is located within Precinct 1;

2. The north-western corner of the subject site, generally speaking west of the proposed Everton Avenue, lies within the MP3 and Sub-Precinct 1(a) designated areas;

3. The balance of the subject site falls within Sub-Precinct 2(a);

4. Immediately to the south of the subject site the existing Harvey Norman, Spotlight and Anaconda retail centres and associated car parking falls within Sub-Precinct 2(b).

The bulk of the shopping centre and specialty shops and associated car parking and the proposed residential site west of the proposed Everton Avenue fall within the MP3, Sub-Precinct 1(a) designated area. About 600m² of specialty shops, the proposed Masters proposal, car parking, and two residential sites, one fronting Stafford Road and the other fronting South Pine Road are all located within Sub-Precinct 2(a).

When the planning documents are read in a common sense way having regard to their primary objectives it could not be reasonably said that that part of the proposed development which lies primarily within the MP3, Sub-Precinct 1(a) designated area creates any genuine conflict with the Planning Scheme.

Notwithstanding the oral concession made by Mr Skoien in reference to the 600m² of commercial development extending beyond the boundaries of the MP3 Centre, in his written submissions, he appeared to be contending that the intrusion of that commercial development into Sub-Precinct 2(a) was not an acceptable planning outcome. The basis for this submission being, as I understand it, that there was no evidence to support a finding that there was anything more than a minor need for the supermarket and specialty shops.[52]
[52]Appellant’s written submissions at paragraphs 4.6 to 4.8; Exhibit 46 – Clarification of Appellant’s case.

I cannot accept that submission. The only sensible conclusion that can be derived from the economists’ joint experts reports is that they did not consider it necessary to consider the need for this development because it so clearly existed. That is not surprising given that no “full line” shopping centre presently exists at this locality. In addition, the proposed supermarket and associated shops would provide more choice and a more modern facility with greater and more convenient access and parking when compared to the smaller and ageing Coles Supermarket and shops on the other side of Stafford Road. That the supermarket development was considered appropriate and needed development by all of the town planners is also clear from any objective reading of their joint reports and indeed even Mr Venn’s court report, exhibit 23.

No adverse amenity issues arise and the evidence of the economists together with the evidence of Mr Barker[53] leads me to conclude that there is an “overwhelming” need for the proposed supermarket development and even with the “offending” 600m² and associated car parking it creates no genuine conflict with the planning scheme. As I have already observed, even the appellant’s town planner, Mr Venn, consistent with the other town planning evidence, accepted that such development west of the proposed Everton Avenue was an “acceptable (town planning) arrangement”.[54] In the event that I am wrong about this and the supermarket development was in conflict with the local plan, the level of conflict would be minor having regard to its scale and proximity to the MP3 Centre and commercial developments to the west. The level of need for the supermarket development and absence of any negative impacts would provide sufficient grounds to justify its approval despite the conflict.
[53]Exhibit 35 – Statement of Jonathan Ross Barker at paragraphs 30 and 32.
[54]T9-39 L1-27.

Out of Centre Development

The Planning Scheme while actively discouraging out-of-centre commercial developments such as the proposed Masters does not prohibit it. And, by reference to the planning documents discussed above, it is clearly contemplated that in appropriate circumstances such out-of-centre development may be permitted. Relevantly in this case, in circumstances where there is a demonstrated “overwhelming community need” and amenity and public safety are not unacceptably impacted. For the reasons already given, I do not consider the Masters proposal would have any unacceptable amenity and/or public safety implications.

On behalf of the appellant, it is submitted that the evidence establishes that, at best, only a minor demonstrated need exists for the Masters proposal. It was submitted in particular that the proposal would have no significant positive impacts on competition, choice, and convenience.

The concept of need has been dealt with by this court on a number of occasions. The parties set out a number of established principles that can be summarised:

· Need does not mean pressing need, critical need, wide spread desire of anything of that nature rather, a thing is needed if its provision, taking all things into account would improve the physical wellbeing of the community.[55]
[55]Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPLR 126 at 131.

· Need in planning terms is a relative concept and does not connote pressing urgency but rather relates to the general wellbeing of the community; a use would be needed if it would, on balance, improve the services and facilities available in a locality.[56]
[56]Roosterland Pty Ltd v Brisbane City Council (1986) 23 APA 58 at 60.

· To provide competition and choice where none exists can represent the filling of a need.[57]
[57]Bunnings Building Supplies Pty Ltd v Redlands Shire Council & Ors [2000] QPELR 193 at 198.

· The question whether need exists is to be decided from the perspective of the community not that of the applicant for development, its competitors or objectors.[58]

· The nature of the proposal is clearly relevant and less stringent tests might apply in cases where the proposal offers a range of goods and services providing genuine local convenience when compared to more specialised providers such as liquor barns, hardware warehouses and cinema complexes.[59]

· Where existing facilities provide adequate competition, choice and convenience this will tend to work against a proposal offering the same or very similar goods and services.[60]

[58]Luke v Maroochy Shire Council [2003] QPELR 447; Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [2003] QPELR 385 at page 411.

[59]Harburg Investments v Brisbane City Council [2000] QPELR 313 at pages 316 – 317.

[60]Intrafield v Redland Shire Council (2001) 116 LGERA 350.

The concept of overwhelming need might suggest that for a particular development it would have to be demonstrated that community convenience and wellbeing would be improved to a very significant degree by reference to matters including competition choice and convenience to satisfy the test. However, it is clear that that is not necessarily the case as factors other than need per se, such as the overall nature of the development, the location, size and other physical characteristics of the site, and the absence of negative impacts on amenity may also be relevant considerations. As Wilson SC DCJ observed in Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors[61], “It is the community’s perspective which is paramount.” In this regard, it is of some relevance that the responsible local authority strongly supports the proposal.
[61][2007] QPEC 003, at paragraph 23.

In this context I respectfully agree with the observations of Wilson DCJ in Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors, where it was said:[62]

“[27] As to the question of overwhelming community need (touching those parts of this proposal which are appropriate in MP3 areas but fall outside the MP3 section designated within the site under the local plan) the phrase has a particular meaning identified by Skoien SJ DCJ in Wincam Developments No. 3 Pty Ltd v Brisbane City Council [2004] QPELR 474 at 477:
‘[24] The witnesses and Council appear to share the difficulty I have in identifying a commercial development for which a community within the City of Brisbane would feel ‘an overwhelming’ need. ‘Overwhelming’ is generally defined by the dictionaries to mean something like ‘irresistible by force of numbers, influence, amount etc.’ That would seem to require something approaching a complete absence of an existing development of the type proposed, the development of being of a type vital to the conduct of life. An Office Works is not such a development and I do not know what might be. However, I note the excellent Encarta World English Dictionary gives, as a third meaning of ‘overwhelming’, ‘extremely large in amount or proportion’ and it seems to me to be obvious that the word as used in the City Plan must have been intended to mean something like that… (emphasis added).’

[29] This is an obsolete and derelict site, not unfairly described by Mr Robinson as a blight on Everton Park, which would be transformed by development which achieves all the broad planning objectives, newly adopted for the parcel by the local plan. The local authority has, in that new Local Plan, plainly accepted a pressing need for development of this type and moved to recognise that by extending the existing Everton Park MP3 Centre to include a significant part of the subject land, and encouraging Centre activities there...”

[62][2007] QPEC 003, at paragraphs 27-30.

As has already been indicated those observations have to be considered in the light of the proposal being considered in that case being more consistent with the intended use for Sub-Precinct 2(a) in that a much larger proportion of the land was to be used for medium density residential purposes.

However, as the Court of Appeal observed in Yu Feng v Brisbane City Council, the question of overwhelming need, is not a precise term and what may constitute such need may vary case by case. In Yu Feng v Brisbane City Council[63], Williams JA (with Holmes JA and Atkinson J agreeing) said:
[63](2007) 156 LGERA 399, at paragraphs 24-27.

“[24]The contention of counsel for the appellant is that the judge at first instance had to focus particularly upon the question whether there was an overwhelming need for centre uses to be located to some extent further into the designation of medium residential area on the local plan. It is said that the judge erred in focusing on the community need for the whole proposal, rather than focusing on the question whether there was ‘overwhelming need for those out of centre uses’.
[25]In my view it is useful at this stage to return to the chronology. As already noted from about November 2004 until December 2005 when the application by RNP was approved, the Council was considering both the new Local Plan for the subject site and the proposal by RNP. It does seem a little strange that almost at the same time the Council would approve a development proposal having a particular division between MP3 activities and medium density residential and a Local Plan providing for a somewhat different ratio between those two activities. But it is not necessary to find a logical reason for that. What is critical, in my view, is that both the approval to the development proposal and the approval to the Local Plan recognised that the area of land in question should be developed for MP3 and medium residential density purposes. It is not difficult to conclude that the decision whether the ratio between those uses should be 50:50 or 60:40 (or even 70:30) would be dependant upon consideration of a particular development proposal and the various assessments made with respect to that particular proposal. Here the concern is with the overall development of a relatively large area of land, not with the question of whether or not there should be some extension of an existing and functioning MP3 centre. One can well understand the significance of cl 4.4.2.6 of the City Plan if what was under consideration was some extension of a functioning MP3 centre.
[26]But in any event cl 4.4.2.6 is not on its face prescriptive. It is more in the nature of a ‘motherhood statement’ and what will constitute an ‘overwhelming need’ will vary enormously. There would be almost and infinite variety of facts which could impact upon the decision whether or not there was an ‘overwhelming need’ for the proposal under consideration.
[27]Given all those circumstances I am not persuaded that the judge at first instance erred in either construing or applying cl 4.4.2.6… .” (emphasis added)

There was some debate among the economist as to the extent of the potential catchment area for the proposed Masters. According to Mr Norling (for the respondent) and Mr Duane (for the co-respondent), the catchment area extended much further to the west then that calculated by Mr Coghlin (for the appellant).[64]
[64]Compare Map 1, Exhibit 10 – Appeal book volume 10 Joint Reports at page 68 and Map 4 at page 99.

According to Messrs Norling and Duane, the catchment population was in the order of 177,000. According to Mr Coghlin, the total catchment was closer to 119,000. At the heart of the difference between the economists was the impact of the proposed Bunnings development at Keperra.

On balance, I consider that Messrs Norling and Duane have tended to underestimate the impact of the proposed Bunnings at Keperra. However, that said, despite its approval – in its expanded form – by the respondent, there is no guarantee as to when it will begin trading. The proposal is the subject of 112 submissions of which Yu Feng Pty Ltd is one. Also, it would appear that the appellant in this case has asserted (through Mr Venn) that the proposed Bunnings at Keperra is, among other things, an unjustified out-of-centre development and otherwise is in conflict with the planning scheme of the respondent.[65] As this case, Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors and Yu Feng v Brisbane City Council (and others) show, litigation can lead to significant delays in development and in some cases development being refused.
[65]Refer to Exhibits 54 – John Venn submissions and 55 – Brisbane City Council decision notice.

The true catchment area is, in my view, likely to be somewhere between 120,000 and 170,000. However, it is not necessary to determine what the actual catchment might be. That is so because it is clear, even on the more pessimistic approach of Mr Coghlin, that there is a catchment sufficient to support the proposed Masters development and the existing and proposed Bunnings stores in the area.[66]
[66]T7-23 L30-40.

In their joint report, the economists agreed that while there were a number of similarities between Bunnings and Masters there were also a number of differences. Those differences were set out in the economists’ joint expert report[67] and expanded on by Mr James.[68] Mr Coghlin sought to resile form this agreement to an extent in his final court report where, he effectively asserted that the only difference of note between the two stores was their different names. In his report, Mr Coghlin explained:[69]
[67]Exhibit 10 – Appeal book volume 10 Joint Reports at page 59, paragraph 6.
[68]Exhibit 37 – Statement of Steven Robert James.
[69]Exhibit 25 – Individual Economic Report by Geoff Coghlin, at page 5.

“12.From my assessment and the descriptions provided by the other two experts, I conclude the following:
(a)Masters would not provide any significant selection of goods that are not already available from trade area retailers;
(b)Masters would essentially provide a store format that already exists within the trade area;
(c)the points of difference from existing retailers that Masters would provide would include ‘a slightly different offering to Bunnings’ plus some differences in terms of presentation and layout; and
(d)the applicant has not provided evidence that the community has indicated a need for the proposal.

13. I conclude that as:
(a)there is no identified need in terms of common measures of need; and
(b)the trade area already has access to all major types of hardware and home improvement retailing.

Therefore, in my opinion, the single most notable difference between Masters and Bunnings is the name of the store.
14.Accordingly, the subject application is in effect primarily arguing that there is a need for another brand of major home improvement retailer in the trade area. … .” (emphasis added)

Mr Coghlin’s assessment lacks a degree of objectivity in my respectful opinion. The evidence was that subtle differences in design, layout, products, and product brands do make a real difference to shoppers’ habits thus the so called “brand loyalty” that, by way of example, Woolworths and Coles attract. Mr Coghlin acknowledged that such brand loyalty exists, but said that it ranked a poor second to convenience.[70] In this regard, I am not saying that at this stage Masters has a recognisable level of brand loyalty. The point is that differences, even if subtle and to some largely inconsequential, do affect shopper preference for one retailer over another.
[70]T7-12 L18 – T7-13 L8.

It may be true that Bunnings offers a number of similar if not identical products. But Masters offers different brands of some products and some (albeit relatively limited in number) products that Bunnings does not. Also, it provides a different (again subtle) shopping experience. The evidence in this context is that Masters has deliberately set out to attract more female customers by providing a brighter, air conditioned and more “sophisticated” shopping environment, including in layout and product display.[71] There was some evidence that in response to Masters, Bunnings has started retro-fitting stores with air conditioning and stocking stores with products to match those provided by Masters. It must be accepted that the subject proposal was not of itself responsible for this, but such a reaction does tend to highlight the benefits to the community that often results from competition.
[71]Exhibit 37 – Statement of Mr Steven Robert James.

It may also be true that a shopper prepared to visit a number of different existing stores (including Bunnings) would probably be able to purchase most if not all of what Masters has to offer. However, that with respect fails to give sufficient regard to the fact that the hypothetical shopper would be able to make his or her purchases at the one location and under the one roof. Accordingly, convenience is increased not just by reference to that matter, but also by the introduction of a large hardware retail outlet west of the Bunnings located on Stafford Road. As Mr Coghlin had to concede, the Masters would increase choice not only in respect of different stores, but also in respect of where to and how far a shopper had to travel. In this regard, the public would be “winners”.[72]
[72]T7-23 L40-48.

In respect of the Stafford Road Bunnings, I should note that I do not accept that there is evidence of overtrading. It is clearly a very successful outlet, but on the evidence before me, I am not satisfied that it could be said that is overtrading in the sense that term is used by the economists to suggest a degree of associated shopper inconvenience and discomfort.

Turning briefly to the question of pricing, Bunning ensures strong competitive pricing by promising to beat any price offered by a competitor on its range of products lower than its own pricing by 10%.[73] I have no reason to doubt that that policy would continue without a Masters. However, there is also little room for doubt that Masters would adopt a similar pricing policy. This would not necessarily lead to lower pricing all round, but it would mean that a person wanting to take advantage of this pricing policy would have his or her choice of Masters or Bunnings or both.
[73]The “meet and beat” policy.

On balance, I consider that the evidence establishes a clear economic need for the proposed Masters development. There is already strong retail competition within the subject catchment, but the proposal would materially increase the level of shopping convenience and not insignificantly increase the level of product choice and shopping experience. As things presently stand, any shopper wanting to shop at Masters is confronted with a round trip of some 40 kilometres.[74]
[74]Exhibit 10 – Appeal book volume 10 at page 101, at paragraph 97(i).

In conclusion on this topic, I consider it appropriate to comment on two further matters. First, a strict application of the types of thresholds or tests posed by Mr Coghlin set out in paragraph 84 above and pages 101-102 of exhibit 10 would, as Messrs Norling and Duane observed, affectively mean that no new retailer of significance would be able to enter an established and mature retail community. The second matter is that I did not find Mr Coghlin’s evidence concerning the impact on existing retailers convincing. Despite the bold assertion that some retailers might be forced out of business upon the introduction of a Masters Store in the area, no meaningful attempt was made to identify what retailers they would be and why they would be forced out of business.

For the reasons given, I am satisfied that there is an economic need for the Masters proposal. However, that is not the end of the matter, as has already been indicated to warrant a use such as this on an “out-of-centre” location requires that there be an “overwhelming need”.

In my opinion, the evidence establishes that such a need does exist in that the “amount or proportion” of need is sufficient to justify out of centre development. In addition, to the existence of an economic need for the proposal the following additional matters have lead me to that conclusion:

1. Looking at the Masters proposal objectively:

(i) all the economists were agreed that there is no other suitable location for such a development within the relevant catchment area. In this regard the evidence concerning the possibilities of locating the Masters in the MP3 was so uncertain as to lack any probative value;

(ii) there is a relatively high level of integration of pedestrian and vehicle movements with the proposed supermarket development;

(iii) it is, as Mr Isles accepted, in a physical sense an ideal location for such development;

(iv) it is a “Centre” use located on land immediately adjacent to a MP3 centre.[75]
[75]T3-80 L35-45.

2. It will add to the commercial vitality of the Everton Park commercial centre;

3. Its development, together with that of the supermarket and associated specialty shops, will see the development of a large and strategically placed, but neglected site. In this context, it is relevant that the co-respondent is not a developer of residential property and in any event, there is no apparent current need for medium density residential development to such an extent as to occupy the balance of the site east of the proposed Everton Avenue.

4. While perhaps not strictly relevant to the issue of “need” the absence of any material negative impacts on amenity is also a relevant consideration.

It was submitted on behalf of the respondent and co-respondent that the proposal would also lead to improved traffic conditions by the introduction of Everton Avenue. I am not sufficiently satisfied that this would have an impact of any real significance. My understanding of the traffic engineering evidence was that while the proposed development would not worsen the traffic situation any improvements thereon would be likely to be only marginal or minor.

For the reasons given, there being “overwhelming need” the out-of-centre Masters proposal is justified. However, that does not necessarily mean that there is therefore no conflict with the planning scheme.

Conflict In Sub-Precinct 2(a)

In my opinion, the proposed use is, despite there being justification for out-of-centre development, in clear conflict with the Everton Park Local Plan. The plan was not been made redundant by the preliminary approval for the development proposed in 2008. Some modification of the local plan was approved by the respondent (and by this court) concerning that approval, but it still remains relevant, being as it is, the most site specific or localised planning document for the area.

It is clear that the Local Plan envisages some “Centre” activities within Sub-Precinct 2(a). It is also clear that as Williams JA observed in Yu Feng v Brisbane City Council[76], that it would not be appropriate to place too much focus or emphasis on how one land use compares to another in percentage terms. However, notwithstanding these observations, I agree with Mr Venn that medium density residential is the preferred (but not exclusive) land use identified for Sub-Precinct 2(a). In this context I respectfully agree with the observations of Wilson SC DCJ in Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors:[77]

“[37] Precinct 1 is intended to accommodate a range of activities expected in a suburban centre with active street frontages and links across Stafford and South Pine Roads. The language of the statement of intent for this precinct indicates that it is desired to provide overall guidance, as opposed to mandating a particular development outcome. In precinct 2, residential, Centre, and recreation uses are all promoted and its statement of intent, when read with the definition for Centre activities, makes it plain the area is intended to provide a range of development opportunities to meet public needs.
[38] While some Centre activities like supermarkets, restaurants and department stores are not supported in Precinct 2, the possibility of residential uses in Precinct 1 and Centre uses in Precinct 2 suggest no more than a desired emphasis on retail and commercial activities in the first and development at more medium density in the second. Certainly, nothing in the language of the Local Plan indicates strong planning imperatives for a clear demarcation between the Precincts.” (emphasis added)

[76](2007) 156 LGERA 399.

[77][2007] QPEC 003, at paragraphs 37 and 38.

In Mr Schomburgk’s court report he stated[78]:

“[34] The nature and extent of that inconsistency is, in my view, quite limited. The subject proposal still intends some degree of medium density residential uses, so that any inconsistency is limited to one of scale or dominance of that type of land use. With regard to the statement about Centre activities, this will be a matter of construction, but if the drafters had intended to discourage all forms of retail use, they could have easily said so. I disagree with Mr Venn’s comments in the JER at section 3.3(iii) that the language “is clearly aimed at centre retailing activities of all general types” (my underlining added). Rather, the drafters have identified a specific range of retail uses, being uses such as large scale, higher-order retail uses and local shops (grouped small scale tenancies), as being inappropriate. It seems clear to me that the drafters sought to particularly discourage a new (conventional) shopping centre, much as the Appellant in this case is keen to do.”

[78]Exhibit 12 – Individual report of Mr Chris Schomburgk at page 6, at paragraph 34; Also Mr Schomburgk’s evidence-in-chief T8-60 – T8-62.

It is not necessary to deal with all of the matters raised by Mr Schomburgk in this part of his evidence, much of which I agree with. However, I disagree in respect of two important matters, namely that the level of conflict is “quite limited” and that the focus of the discouragement was more particularly aimed at a “conventional shopping centre”.

The Masters proposal was often referred to as a “home improvement store” or “large format home improvement store” by the experts. Neither of those descriptions can be found in the definition section of the planning scheme. However, it is clearly a “shop” (possible a retail warehouse) and therefore a “Centre Activity” for the purposes of the scheme. While I agree that the intention of Sub‑Precinct 2(a) was not to exclude all Centre uses, including some activities that would fall within the definition of “shop”, the words “… such as supermarkets, department stores and restaurants …” must, in my opinion, be read to include the type of use involved with a Masters or Bunnings. That is so for a number of reasons. They are all uses of the type intended to be located within the MP3 Centre area if they can be, they are uses that often create adverse urban amenity and are land “hungry”. It seems to me inherently improbable that the planning scheme would contemplate a use within a Sub-Precinct, which would render the vast majority of the area incapable of accommodating the intended preferred use. The Masters proposal would have this consequence. At first blush, this might seem an unlikely conclusion considering that the same “such as” development is also discouraged in Sub-Precinct 2(b). However, it seems clear enough that, that situation was simply the result of the tension between the intended future preferred use and the existing uses of that land.

Accordingly, as the Masters proposal is in clear conflict with the planning scheme it can only be approved in circumstances where there are sufficient grounds to justify the proposal despite the conflict.[79]
[79]Section 3.5.14 of the Intergraded Planning Act 1997.

The number of units/apartments that would have been available under the Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors[80] proposal was about 480. Under the current proposal only approximately 100 and, on my understanding of the evidence, about 1/3 of those would in fact be located on the western side of the proposed Everton Avenue in Sub-Precinct 1(a). However, that the amount of medium density residential development is reduced, even to such a significant extent, need not necessarily be fatal. As Williams JA observed in Yu Feng v Brisbane City Council[81], the ratio between residential uses and other uses has to be considered in the light of the particular development under consideration and the various assessments made with respect to that proposal.
[80][2007] QPEC 003.
[81](2007) 156 LGERA 399.

On balance, the evidence leads me to conclude that there are sufficient grounds to justify the proposal despite the conflict. In addition, the matters discussed when considering the issue of need and overwhelming need[82] other grounds are:
[82]Refer to paragraphs 80 to 93 above.

1. The high level of integration of the proposal with the overall commercial centre of Everton Park. In this regard, the proposed development will reinforce the role of the existing centre by providing a strong vital community focal point for a range of retail uses.

2. The proposal envisages a not insignificant level of medium density residential development.

3. The proposal will not jeopardise the existing hierarchy of centres[83] nor the economic viability of the existing and proposed Bunnings at Stafford and Keperra.

[83]Exhibit 10 – Appeal book volume 10 Joint Report per Norling and Duane at pages 103-104 and per Coghlin at page 104.

Further, as already discussed it is relevant in this context that there are no significant adverse impacts on amenity associated with the proposed development. It is also relevant that the respondent’s predictions concerning Sub-Precinct 2(b) appear to be overly optimistic and to a significant extent so. The best evidence is that the existing commercial activates being carried out in that Sub-Precinct (Harvey Norman, Spotlight, and Anaconda) will be likely to continue trading for some time well past the predicted date of 2016.[84] Accordingly, any medium density residential development in Sub-Precinct 2(a) would not be part of a more extensive residential area, as originally intended, but would be for some time adjoined by significant commercial development along its southern boundary.
[84]Economists’ evidence Exhibit 10 – Appeal book volume 10 at pages 85-86 per Messrs Duane, Norling, and Coghlin; Also Exhibit 10 at page 102, paragraph (a); Exhibit 25 – Individual Economic Report by Geoff Coghlin at page 5; Also Exhibit 47 – Leases for Fabspot Land.

The Masters proposal would be part of a commercial precinct bounded by South Pine, Stafford Road and the open space to the east and south. In that sense, it would form a logical extension of the Everton Park retail centre. On the other hand, any residential development would be largely surrounded by commercial development to the west and south. It of course has to be recognised that significant commercial development within Sub-Precinct 2(a) might jeopardise the longer term intended use of Sub-Precinct 2(b) by limiting any residential development to only the southern most corner of Precinct 2 but that is not a consideration justifying refusal of the proposed development.

Neither on their own nor together do the proposed supermarket and Masters materially interfere with the local plan’s objective of retaining and enhancing the existing traditional strip shopping character[85], fronting as it does Stafford Road. Both Mr Venn and Mr Isles, the latter in particular, seemed to have initially commenced their analyses on the basis that the intent of City Plan, as amended by the 2008 approval, was to see the whole of the site developed as an “urban village”.[86] I agree with Mr Brown that there is no perceivable intent in the Local Plan for the site to be developed as an urban village. A possible source of this apparent confusion on the part of those witnesses was that the development envisaged in the 2008 approval was variously described as “Proposed Everton Park Village” and Everton Park Urban Village.[87]
[85]Exhibit 18 – Brisbane City Plan 2000 – Extracts at Development Principles at page 54.
[86]Exhibit 26 – Statement of Christopher Francis Isles at paragraphs 15, 31, and 35; Exhibit 10 – Appeal book volume 10 per Mr Venn at page 185, at paragraph (iii); Exhibit 10 – Appeal book volume 10 at pages 4-6.
[87]Exhibit 10 – Appeal book volume 10 refers to plans at pages 213, 214, and 215.

During cross-examination, Mr Isles acknowledged this error.[88] On balance, I do not think too much turned on it once it was recognised that there was no town planning imperative that the whole of the subject land be developed to create an “urban village” environment or character. Mr Isles’ final position was that at this intersection Everton Park already had the feel of an urban village and that the Local Plan required, to retain that character, the dominant form of development outside the MP3 Centre area to be residential. For the reasons given I disagree.
[88]T3-64 L8-10.

For the reasons given, I am satisfied on the evidence that:
(i) There is an overwhelming need for the Masters proposal justifying its out-of-centre development;
(ii) That despite conflict with the planning scheme there are sufficient grounds to warrant approval of the overall development despite the conflict;
Accordingly, the appeal ought be dismissed and the orders of the court are:

1.For the reasons given, I would be inclined to grant the subject Development Approval, but will adjourn final determination pending hearing from the parties;
2.The matter be listed for review at 09:30 am on 8 November 2013.

CITATION:	Y F G Shopping Centres Pty Ltd v Brisbane City Council and Ors [2013] QPEC 59
PARTIES:	Y F G SHOPPING CENTRES PTY LTD (Appellant) and BRISBANE CITY COUNCIL (Respondent) and FABCOT PTY LTD (Co-respondent) and CHIEF EXECUTIVE, ADMINISTERING THE TRANSPORT INFRASTRUCTRE ACT 1994 (Co-respondent by election)
FILE NO/S:	237/2013
DIVISION:	Planning and Environment
PROCEEDING:	Hearing of an appeal
ORIGINATING COURT:	Planning and Environment of Queensland, Brisbane
DELIVERED ON:	28 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	18, 19, 20, 23, 24, 25, 26, 27 September 2013
JUDGE:	R S Jones DCJ
ORDER:	1. For the reasons given, I would be inclined to grant the subject Development Approval, but will adjourn final determination pending hearing from the parties; 2. The matter be listed for review at 09:30 am on 8 November 2013.
CATCHWORDS:	PLANNING AND ENVIRONMENT – Appeal against approval of major commercial development including a supermarket, specialty shops and a large format hardware store. OUT OF CENTRE DEVELOPMENT – Whether overwhelming need existed for development on an “out of centre” location – where proposed development a “centre “ use CONFLICT – Whether there was genuine conflict with City Plan 2000 – In the even that there was conflict with City Plan 2000 were there sufficient grounds to approve the application despite the conflict – Substantive issues included alleged conflict with the Planning Scheme – Traffic – Storm water, flooding and drainage – Urban design and visual amenity Intergrated Planning Act 1997 Sustainable Planning Act 2009 Transport Infrastructure Act 1994 Arpedco Pty Ltd v Beaudesert Shire Council (1980) QDR 88 Bunnings Building Supplies Pty Ltd v Redlands Shire Council & Ors [2000] QPELR 193 Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPLR 126 Elan Capitol v Corporation Pty Ltd & Anor v Brisbane City Council & Ors (1990) QPLR 209 Grosser v Council of City of Gold Coast (2001) 117 LGERA 153 Harburg Investments v Brisbane City Council [2000] QPELR 313 Intrafield v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350 Kotku Education and Welfare Society Inc v Brisbane City Council (2004) QPEC 068 Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [2003] QPELR 385 Luke v Maroochy Shire Council [2003] QPELR 447 Stockland Developments Pty Ltd v Townsville City Council & Ors [2013] QCA 210 Roosterland Pty Ltd v Brisbane City Council (1986) 23 APA 58 Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors [2007] QPEC 003 Webster v Caboolture Shire Council [2009] QPELR 455 Westfield Management Limited v Pine River Shire Council & Ors (2004) QPELR 337 Wincam Developments No. 3 Pty Ltd v Brisbane City Council [2004] QPELR 474 Woolworths Limited v Maryborough City Council (2) [2006] 1 Qd R 273 Yu Feng v Brisbane City Council [2007] QCA 382; (2007) 156 LGERA 399
COUNSEL:	Mr A N Skoien for the appellant Mr T N Trotter for the respondent Mr C L Hughes QC with Messrs B D Job and M A Williamson for the co-respondent Ms J S Brien for the co-respondent by election
SOLICITORS:	Barry Nilsson Lawyers for the appellant Brisbane City Legal Practice for the respondent Connor O’Meara Solicitors for the co-respondent Norton Rose Fulbright for the co-respondent by election