Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17

Planning and Environment Court of Queensland|2020-04-30

PLANNING AND ENVIRONMENT - APPEALS - appeals against a preliminary approval for a Shopping Centre and Health Care Services and a development permit for a Child Care Centre, Service Station and Food and Drink Outlet and reconfiguring a lot and operational work in the Low-medium density residential zone

ASSESSMENT - COMPLIANCE WITH THE PLANNING SCHEME - whether the proposed development complies with the planning scheme - whether there is a need for the proposed development - whether the proposed development would compromise the existing hierarchy of centres - whether there are relevant matters which justify approval

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; (2019) QPELR 793

Gold Coast City Council v K & K (GC) Pty Ltd [2009] QCA 132

HA Bachrach Pty Ltd v Caboolture Shire Council [1992] QCA 384; (1992) 80 LGERA 230

Hervey Bay Projects v Hervey Bay City Council [1993] QPLR 104

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414

Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447

Murphy v Moreton Bay Regional Council & Anor [2019] QPEC 46

Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPEC 7; [2008] QPELR 480

Redland City Council v King of Gifts (Qld) Pty Ltd & Anor [2020] QCA 41

Ugarin Pty Ltd v Logan City Council [2004] QPEC 1; [2004] QPELR 392

Williams McEwans Pty Ltd v Brisbane City Council [1981] QPELR 33

DR Gore QC and JG Lyons for the First Co-Respondent by Election

EJ Morzone for the Fourth Co-Respondent by Election

Hopgood Ganim for the First Co-Respondent by Election

Emanate Legal for the Fourth Co-Respondent by Election

[1] On 10 October 2018, the respondent ("the Council") issued a preliminary approval for a Shopping Centre and Health Care Services and reconfiguration of a lot into 14 lots together with a development permit for a Child Care Centre, Service Station, Food and Drink Outlet, operational work for an Advertising Device and reconfiguring a lot into four lots and an access easement ("the proposed development") on land situated at 171-173 and 175 Trinity Beach Road, Trinity Beach ("the site").[1]

[2] The decision of the respondent in the above terms resulted in four appeals to the Planning and Environment Court at Cairns. On 18 April 2019, the court ordered that all of the appeals be joined and that Appeal 201 of 2018 be the carriage appeal for each of them. Accordingly, in the course of this judgment I refer to each of the parties by the designations they have in Appeal 201 of 2018 which is an appeal by the applicant for the proposed development.

[3] In Appeal 201 of 2018, the appellant ("Fabcot") seeks a development permit for those parts of the proposed development which were the subject of a preliminary approval. In Appeal 221 of 2018, the First Co-Respondent by Election ("Dexus") seeks an order that the proposed development be refused. In Appeal 223 of 2018, the Fourth Co-Respondent by Election ("Trinity Park Investments") also seeks orders that the proposed development be refused. Appeal 225 of 2018 also sought an order that the proposed development be refused, however, it was the subject of a notice of discontinuance dated 24 January 2020 by the Third Co-Respondent by Election and it did not participate further in any of the appeals.

[4] Each Co-Respondent by Election has a commercial interest which may be adversely affected by the proposed development with the exception of the Second Co-Respondent by Election ("the Community Association"). Dexus owns the Smithfield Shopping Centre, approximately 4 kilometres to the south of the site, and Trinity Park Investments has lodged a code assessable development application for a shopping centre on land between the Smithfield Shopping Centre and the site. These appeals concern the suitability of the site for the proposed development, however, not the merits of any other development application.

[5] The Community Association called no evidence, cross examined no witnesses,[2] did not tender any evidence,[3] and merely made some general submissions at the end of the hearing that essentially there was no need for the proposed development, that it would adversely affect local businesses in the nearby Trinity Beach Shopping Centre and that the proposed development "should be amalgamated within the existing shopping centre hierarchy".[4]

[6] In the course of opening the case, Fabcot conceded that the preliminary approval for reconfiguring a lot into 14 lots for residential development was appropriate at this point in time.[5] An uncontested order that the proposed development proceed in accordance with changed plans was also made by me in the course of the opening.[6] Ultimately, the reconfiguring of a lot components of the proposed development were not, of themselves, contentious from this point. Neither was the development permit for operational work for an Advertising Device. The evidence before me also demonstrated the appropriateness of the Service Station, Food and Drink Outlet component and this use was not the subject of any serious challenge in the course of the hearing. Finally, at the commencement of day six of the hearing on 30 March 2020, the Council conceded that a development permit rather than a preliminary approval was appropriate for the Shopping Centre and Health Care Services components and stated that it did not now contend that a mere preliminary approval was appropriate in respect of these proposed uses.[7]

[7] In considering the components of the proposed development which remain contentious, unless I specifically state otherwise, the comments I make apply to all of the remaining components of the proposed development.

[8] The site is an area of 4.092 hectares and contains frontages to the Captain Cook Highway, Trinity Beach Road and Navigation Drive. It also joins land contained within the newly developed Bluewater Estate.[8] At this point on the Captain Cook Highway there is a significant roundabout which provides access to the suburb of Trinity Beach,[9] which is located in the northern urban corridor of Cairns, approximately 15 kilometres north of the CBD.[10] Through this corridor the Captain Cook Highway links Cairns to Port Douglas in the north. To the west are the forested slopes of the Macalister Range and to the east, the Coral Sea.[11] The site is located approximately midway between the Smithfield Shopping Centre to the south and the Clifton Village Shopping Centre to the north, being approximately 4 kilometres from each of them.[12] The Smithfield Shopping Centre is designated a Major centre pursuant to the Council's Planning Scheme, CairnsPlan 2016 ("the Planning Scheme").[13] It contains a Coles Supermarket of 3,010m² and a Woolworths Supermarket of 4,130m². The Clifton Village Shopping Centre contains a Coles Supermarket of 3,210m².[14] The Trinity Beach Shopping Centre is approximately 1 kilometre to the north of the site. It primarily serves a convenience shopping role and contains a NightOwl mini-supermarket of 660m².[15]

[9] The site is owned by Fabcot, the development arm of Woolworths.[16]

[10] The site is in the Low-medium density residential zone.[17]

[11] The site is also within the Smithfield Local Plan but not within a local plan precinct.[18] Of significance to this appeal, the Smithfield Local Plan also includes Sub-Precinct 3b which is identified for future retail and commercial development.[19] Relevant to the resolution of the dispute before me, Trinity Park Investments owns a site at 10L Captain Cook Highway, Smithfield ("the Trinity Park Investments land") in respect of which it has lodged a development application for a shopping centre which is code assessable pursuant to the Planning Scheme ("the TPI Development Application").[20] The Trinity Park Investments land is located approximately 2 kilometres north of the Smithfield Shopping Centre on the Captain Cook Highway.[21]

[12] The proposed development includes the following relevant components:

1. A Shopping Centre with a gross floor area of 4,680m², consisting of a 3,600m² full-line supermarket and nine small retail tenancies;

2. A medical centre with a gross floor area of 900m²;

3. A Child Care Centre with a gross floor area of 670m²; and

4. A Service Station and Food and Drink Outlet with a gross floor area of 360m² and an associated forecourt area.[22]

[13] Pursuant to the Planning and Environment Court Act 2016 the appeals are by hearing anew.[23] Fabcot must establish that Appeal 201 of 2018 should be upheld and that the other appeals should be dismissed.[24] Section 46 of the Act addresses the nature of an appeal and relevantly provides:

(2) The Planning Act, section 45 applies for the P&E Court's decision on the appeal as if -

(a) the P&E Court were the assessment manager for the development application; and

(b) the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision."

[14] As the proposed development was impact assessable, s 45 of the Planning Act 2016 ("PA") relevantly provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances before me, are the relevant provisions of the Planning Scheme.[25] Furthermore, the assessment may be carried out having regard to any other relevant matter, other than a person's personal circumstances, financial or otherwise.[26]

[15] The court in determining an appeal about a development application is conferred a wide discretion pursuant to s 60 of the PA which relevantly states:

"(3) To the extent the application involves development that requires impact assessment... the assessment manager, after carrying out the assessment, must decide -

(b) to approve all or part of the application, but impose development conditions on the approval; or

[16] In undertaking this task it is important to have regard to the observations of McMurdo JA in Bell v Brisbane City Council & Ors that:

"...a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land." [27]

[17] However, as Williamson QC DCJ recently observed in Ashvan Investments Unit Trust v Brisbane City Council & Ors:

"An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant 'fact and circumstance' in the exercise of the planning discretion under s 60(3) of PA. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question... It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s 60(3) of the PA. It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established." [28]

[18] The proper approach to non-compliance with the planning scheme in the decision making process was recently explained by Kefford DCJ in Murphy v Moreton Bay Regional Council & Anor in the following terms:

"Under the Planning Act 2016, the discretion is to be exercised based on the assessment carried out under s 45. Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the planning scheme and proper planning practice. Not every non-compliance will warrant refusal. It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case." [29]

[19] Although certain components of the proposed development such as the Child Care Centre are code assessable, the Planning Scheme provides that where a development "is comprised of a number of defined uses... the highest level of assessment applies".[30] The proposed development is therefore impact assessable. Impact assessable development "must be assessed against the whole planning scheme to the extent relevant".[31] The hierarchy of assessment criteria is addressed in s 1.5 which relevantly provides:

(1) Where there is inconsistency between provisions within the planning scheme, the following rules apply:

(a) the strategic framework prevails over all other components to the extent of the inconsistency;

(d) local plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency;

(e) zone codes prevail over use codes and other development codes to the extent of the inconsistency."

[20] The Strategic framework includes the Settlement pattern theme which includes the strategic outcome that the region grows and evolves in a way that maintains the hierarchy of centres.[32] This strategic outcome is then developed in s 3.3.2, which relevantly states:

(1) Centres are concentrations of activity that may comprise of retail, business and employment, administration, research, residential, education, and health and community services consistent with the identified role and function of the centre.

(2) A hierarchy of centres is established and maintained, where each centre is characterised by its scale and function, and performs a defined role within the hierarchy. The identified hierarchy of centres and role and function of centres within the region is as follows:

(ix) The Principal centre is the highest order centre in the region, supported by all other centres within the hierarchy of centres.

(b) Major centres: Earlville, Edmonton and Smithfield

(i) The major centres are concentrations of a mix of activities that consist of higher order retail, employment, commercial, administrative, community, cultural, education, higher density housing and entertainment.

(iv) Local plans have been developed for each major centre to ensure the orderly and strategic development of these centres.

(vi) Major centres do not compromise the role and successful function of the Principal centre and other Major centres within the hierarchy of centres.

(c) District centres: Babinda, Gordonvale, Manoora, Manunda, Mount Sheridan, Redlynch and Westcourt

(i) The district centres are concentrations of predominantly retail, business and community activities focussed on the weekly and fortnightly shopping and service needs of the surrounding communities.

(vi) District centres do not compromise the role and successful function of the Principal centre, Major centres and other District centres within the hierarchy of centres.

(i) Local centres provide a small cluster of uses including retail, employment nodes, cafes and dining, and community services that are focussed on the daily and weekly shopping and service needs of their surrounding local community.

(ii) Showrooms, department stores and other large floor space land uses are not located in Local centres.

(iii) Development within Local centres provides a high level of amenity and minimise (sic) the impacts on the surrounding residential areas.

(iv) Local centres do not exceed the needs of their surrounding local community.

(v) Local centres do not compromise the role and successful function of the Principal centre, Major centres, District centres and other Local centres within the hierarchy of centres.

(i) Neighbourhood centres contain a limited range of small scale convenience or retail facilities that meet the basic, daily convenience needs of a surrounding neighbourhood community and encourage walkable neighbourhoods.

(ii) Neighbourhood centres do not exceed the needs of their immediate neighbourhood catchment.

(iii) Showrooms, department stores, full-line supermarkets and other large floor space land uses are not located in Neighbourhood centres.

(iv) Neighbourhood centres do not exceed the needs of their surrounding neighbourhood community.

(v) Neighbourhood centres do not compromise the role and successful function of the Principal centre, Major centres, District centres, Local centres and other Neighbourhood centres within the hierarchy of centres.

(3) Centres within the region are consolidated within existing identified areas. The expansion of centres only occurs where a community need can be demonstrated and the expansion does not compromise the amenity of surrounding areas or the role and successful function of other centres within the hierarchy of centres identified in section 3.3.2.1(2).

(7) Development of centre activities is of a design, scale and intensity that does not compromise the existing and ongoing hierarchy of centres by:

(a) competing with and compromising the economic viability of centres;

(b) adversely affecting the achievement of consolidated centres.

(10) New centres are only established where it is demonstrated that:

(b) the development is of a scale that is required to service the surrounding catchment;

(c) the development is highly accessible within the catchment it serves and not located on the periphery;

(d) the development does not compromise the character and amenity of adjoining premises and surrounding areas." [33]

[21] Part of s 3.3.5 is also relevant:

"3.3.5 Element - residential areas and activities

(3) Residential areas are used for residential purposes. Non-residential uses are provided where they are appropriate, support the local community, do not detract from the residential amenity of the area or compromise the role and successful function of centres within the hierarchy of centres." [34]

(1) Existing economic activities continue to be facilitated in and around existing allocated areas and where possible are consolidated or co-located with similar or complementary activities." [35]

[23] As noted above, the site is within the Low-medium density residential zone and the following provisions of the Low-medium density residential zone code are relevant:

"6.2.10 Low-medium density residential zone code

(1) The purpose of the Low-medium density residential zone code is to provide for a range and mix of dwelling types including dwelling houses and multiple dwellings supported by community uses and small-scale services and facilities that cater for local residents.

(3) The purpose of the code will be achieved through the following overall outcomes:

(g) non-residential uses are established where they serve the local community and do not detract from the residential amenity of the area.

Development is consistent with the purpose and overall outcomes sought for the zone.

Non-residential uses that serve the local community are established in appropriate locations and subject to detailed development requirements including:

(a) being located in highly accessible locations;

(b) being co-located with other similar uses;

(c) providing for the identified convenience needs of the local community;

(d) not impacting on the role and function of the hierarchy of centres within the region;

(e) resulting in positive economic and social benefits for the local community;

(f) small scale extensions to existing non- residential uses.

Development does not adversely affect the residential character and amenity of the area in terms of traffic, noise, dust, odour, lighting or other physical or environmental impacts.

No acceptable outcomes are provided." [36]

[24] To the extent that it is argued that the proposed development is contrary to and would compromise the existing and ongoing hierarchy of centres in the Planning Scheme and would result in unacceptable impacts, the following provisions of the Mixed use zone code are relevant:

(1) This code applies to assessing development in the Mixed use zone.

(1) The purpose of the Mixed use zone code is to provide for a mix of activities that may include business, retail, residential, tourist accommodation and associated services, service industry and low impact industrial uses.

(2) The local government purpose of the code is to recognise the presence of areas of mixed land use outside the hierarchy of centres that contain a wide variety of uses.

(3) The purpose of the code will be achieved through the following overall outcomes:

(a) a mix of appropriate uses within the precincts are established;

(4) In addition to 6.2.14.2(3), the overall outcomes sought for the precinct are:

(a) development within the precinct provides a mix of land uses where the predominant land use is for commercial purposes;".[37]

[25] The following provisions of the Smithfield local plan code have been identified as relevant:

(2) The purpose of the code will be achieved through the following outcomes:

(a) the structure of the Smithfield local plan code establishes a pattern of local activity and an economy, based on two key nodes being the James Cook University at the north and the Smithfield Major centre at the south;

(b) economic and employment activity supports local communities and activity, and strengthens self-containment in the suburbs of the Cairns Northern Beaches;

(3) In addition to 7.2.8.3(2), the overall outcomes sought for the precinct are:

(b) the Smithfield Major centre represents the focus of employment and economic activity in the Cairns Northern Beaches;

(c) Smithfield Shopping Centre is to remain the dominant retail centre for the Cairns Northern Beaches;

(5) In addition to 7.2.8.3(2), the overall outcomes sought for the precinct are:

(a) development is predominantly for professional commercial or industrial uses in the precinct;

(b) a mix of retail, professional business, innovative and technology industries establishes in a finer grain model of development;

(d) Precinct 3 - Future employment contains the following sub-precincts:

(ii) Sub-precinct 3b - Future retail and commercial area;

(f) Development in Sub-precinct 3b - Future retail and commercial area:

(i) establishes a structure plan allowing for a mix of uses, focussed on centre activities and mixed use developments;

(ii) ensures the transition of impacts and uses from the adjacent employment areas to the residential land to the east, considering the impact of infrastructure to be established in the area in line with growth demands.

Development achieves a consolidated, dominant retail centre on the existing Smithfield shopping centre site and ensures new and additional floor space for the sale and supply of retail goods and services develops in line with the need of the Cairns Northern Beaches communities to 2025.

Development with a cumulative floor area of greater than 2,500m² on any one or adjacent sites, outside Precinct 1 - Smithfield Major centre demonstrates an economic and community need for the development which will not compromise the effective function of the Smithfield shopping centre site.

Small-scale retail, businesses and restaurants establish to support local communities where they are:

(a) within a walking distance or catchment of predominantly residential neighbourhoods;

Land uses in residential areas, other than for residential activities:

(a) have less than 250m² total gross floor area;

(b) are located within 400 metres of existing or future residential land uses;

(c) are located on a collector road or sub-arterial road;

(d) are located within 400 metres of a public transport route.

Additional requirements for Sub-precinct 3b - Future retail and commercial area

Development in Sub-precinct 3b - Future retail and commercial area:

(a) establishes a structure plan allowing for a mix of uses, focussed on shopping, showrooms, low-scale industry and commercial activities;

(b) ensures the transition of impacts and uses from the adjacent employment areas to the residential land to the east, considering the impact of infrastructure to be established in the area in line with growth demands.

A structure plan supports development proposing reconfiguration of land or material change of use." [38]

[26] The following provisions of the Centre design code are identified as being relevant:

(1) This code applies to assessing development:

(1) The purpose of the Centre design code is to ensure centre activities and activity centres:

(a) are developed to support community need and reinforce the hierarchy of activity centres;

(b) are of a high quality design and appropriately respond to local character, environment and amenity considerations.

(2) The purpose of the code will be achieved through the following overall outcomes:

(a) Development is established in accessible locations, consolidate development within existing centre zones and established areas of commerce, (sic) or meet an existing need identified within a local plan area.

(b) Development complements and reinforces the role and function of the established hierarchy of activity centres across the region, and does not compromise the future of consolidated and cohesive activity centres.

(c) Mixed use zone precinct 2 - trades and services; or

(d) a building containing an existing centre activity; or

(e) an identified centre precinct within a Local plan.

A centre activity is only established outside an appropriately identified area where:

(a) community need is demonstrated for the centre activity;

(b) the centre activity does not compromise the establishment of consolidated activity centres with distinct roles and functions across the Region;

(1) No acceptable outcomes are provided." [39]

[27] The disputed issues narrowed considerably in the course of the hearing. Ultimately, they can be summarised as follows:

1. Whether there is a need for the proposed development;

2. Whether the proposed development is contrary to, and would compromise the existing and ongoing hierarchy of centres in a manner contrary to what is intended by the Planning Scheme;

3. Whether the proposed development would have a function and scale which exceeds that intended by the Planning Scheme for the Low-medium density residential zone;

4. Whether the proposed development would result in unacceptable impacts on the role, function and economic viability of Sub-Precinct 3b in the Smithfield local plan; and

5. The significance of the following relevant matters:

(1) The extent of the need for the proposed development including whether:

(i) it would deliver price benefits, employment opportunities, choice, competition and convenience;

(ii) it would achieve a balance of demand for retail floor space in the Northern Beaches region or would exceed it;

(iii) it would exceed the convenience needs of the local community;

(iv) there is a community benefit associated with the existence of a committed anchor tenant, namely Woolworths;

(v) efficiencies are achieved by the co-location of the uses comprising the proposed development;

(2) Whether the proposed development is well located to serve the community;

(3) Whether the uses comprising the proposed development should be located in existing centres in the locality;

(4) Whether approval of the proposed development would:

(i) prejudice the implementation of an existing approval for an extension to the shopping facilities at the Smithfield Shopping Centre;

(ii) unacceptably prejudice the potential for, and vitality of, any future development on land located in Sub-Precinct 3b in the Smithfield local plan;

(5) Whether the design layout, amenity and traffic arrangements of the proposed development support its approval; and

(6) Whether the reasonable expectations of the community are being adhered to.[40]

[28] Need is a significant issue in the resolution of these appeals. As noted above in the Strategic framework, the Planning Scheme makes provision for the establishment of new centres where it is demonstrated, inter alia, that there is a "need" for the development.[41] Furthermore, the Centre design code provides that "centre activities" and "activity centres" are developed to support "community need" amongst other considerations.[42] The term "community need" is again used in PO4 of the table of assessment for the Centre design code which states that a centre activity is only established outside an appropriately identified area where community need is demonstrated for the centre activity.[43] The terms "need" and "economic and community need" are both used in PO1 and AO1.1 in the Smithfield local plan code.

[29] Four economists gave evidence at the hearing of the appeals. Mr Stephens gave evidence on behalf of Fabcot, Mr Norling gave evidence on behalf of Council, Mr Leyshon gave evidence on behalf of Dexus and Mr Brown gave evidence on behalf of Trinity Park Investments. In their joint experts' report they stated the following:

(a) Community Need refers to an assessment as to the extent to which the physical wellbeing of the community is improved. A range of qualitative factors are involved such as convenience, accessibility, choice, range, depth, competition, price, service, shopper amenity, etc;

(b) Economic Need refers to an assessment as to whether the extent of demand for the proposal is sufficient to support it at a sustainable level. This assessment is typically more quantitative in nature; and

(c) Planning Need refers to an assessment of the extent to which the proposed development can be accommodated by existing planning provisions. This necessarily involves an assessment of the existence of competitive approvals and the availability of suitably zoned and/or designated lands to accommodate the proposed development." [44]

[30] Their approach is supported by reference to established principles derived from case law. In Luke & Ors v Maroochy Shire Council & Anor, Wilson SC DCJ observed that the question of whether a community need exists "is to be decided from the perspective of a community and not that of the applicant for development, its competitors or objectors".[45]

[31] The concept of planning need was explained in Williams McEwans Pty Ltd v Brisbane City Council by Carter DCJ in the following terms:

"The basic assumption must be that there is in existence at the time of the application a latent unsatisfied demand on the part of the persons affected by the planning scheme which is not being met at all or not being adequately met by the scheme in its present form." [46]

[32] Much later in Isgro v Gold Coast City Council & Anor, Wilson SC DCJ comprehensively stated:

"Need in planning terms is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community... of course a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met". [47]

[33] Where the term "need" is used without qualification in the Planning Scheme it is to be interpreted as a reference to planning need as explained in Williams McEwans and Isgro referred to above. But that is not the end of the matter. Two recent decisions of the Court of Appeal which were given in the context of the requirements of s 326(1)(b) of the now repealed, and for present purposes, irrelevant Sustainable Planning Act 2009,[48] suggest that a degree of precision is required to establish a need for a particular development on a particular site. As McMurdo JA observed in Redland City Council v King of Gifts (Qld) Pty Ltd & Anor:

"What had to be established was not just that there was a need for such a development in the area, but that there was a need for the development in a location where the planning scheme provided that it should not occur." [49]

As noted above, under the current legislative regime the assessment process undertaken by the court on an appeal is now far less restrictive.[50] Furthermore, the Planning Scheme provides for the establishment of a new centre on the site providing certain pre-conditions, including that there is a need for the development, are met.[51]

[34] The economists analysed the need for each of the uses the subject of the proposed development, the most significant of which is the proposed full-line supermarket which is intended to be operated by Woolworths.[52] It is the need for this use, together with the nine small retail tenancies, one of which will be operated by Woolworths under the BWS brand as a bottle shop,[53] which lies at the heart of the submission of Fabcot that it is appropriate to establish a new centre on the site. In assessing the level of need required to justify such a use, Wilson SC DCJ made the following observation in Parmac Investments Pty Ltd v Brisbane City Council & Ors:

"when, as here, the need to be satisfied involves the daily essentials of ordinary life, the bar should not be set too high; and, when the planning scheme indicates a deliberate planning decision to provide an opportunity for appropriate convenience retail facilities to satisfy those needs, and where there are no unacceptable impacts on amenity, the efforts required to demonstrate need at that level are not onerous." [54]

[35] As a starting point, each of the economists agreed that the Northern Beaches region is primarily a dormitory region for Greater Cairns with 68 per cent of the labour force living there having a place of employment outside the Northern Beaches region.[55] It is a region which has enjoyed significant population growth in recent times and this will continue, albeit at a slower rate as the supply of residential land becomes exhausted.[56] The economic experts identified a Primary Trade Area ("PTA") which encompassed the suburbs of Trinity Beach where the site is located and Kewarra Beach to the north, together with an adjoining secondary trade area to the north and a secondary trade area to the south, the latter of which included the suburb of Trinity Park and part of the suburb of Smithfield.[57] These three areas form the Main Trade Area ("MTA").[58]

[36] There is an overlapping of these trade areas and those of the Smithfield Shopping Centre to the south and the Clifton Village Shopping Centre to the north, which is to be expected given the narrow linear catchment joined by the Captain Cook Highway and the significant number of workers who travel it every day. This is graphically illustrated in Exhibit 22 which shows that, as at 2018, there were more than 10,800 permanent residents outside of the 3 kilometre radii of the Clifton Village Shopping Centre and the Smithfield Shopping Centre, and that the site is centrally located to service the demand of these residents for a full-line supermarket.[59]

[37] I found the analysis of Mr Stephens compelling. I accept his evidence that a three kilometre distance from a major supermarket is an appropriate benchmark reflecting the "realistic expectations of accessibility to major supermarkets in an outer urban area of a regional city such as Cairns".[60] Furthermore, within the MTA, just 47 per cent of the residential population live within three kilometres of a major supermarket, which results in a substantial dis-benefit to access to food and grocery shopping.[61] The significance of this population without ready access to a full-line supermarket is significant in the context of the evidence of Mr Leyshon, which I accept "that a population of 8,000-10,000 persons is required to support such a store".[62] When allowance is made for the presence of tourists, students and other temporary visitors to the region, the relevant population is even greater.[63]

[38] A detailed analysis of demand for an additional supermarket was undertaken by the economists from an expenditure perspective. I accept the evidence of Mr Stephens that the proposed supermarket would likely trade at a level of $11,000/m2 which is a relatively strong trading level for a Woolworths of the size proposed,[64] and "which is in line with average industry benchmarks which indicate most full-line supermarkets in Australia achieve sales in the range of $9,000/m2 to $13,000/m2".[65] Mr Norling was supportive of this analysis undertaken by Mr Stephens, expressing the view that "this demonstrates that there is an economic need for an additional full-line supermarket-based centre to locate in the Northern Beaches by about 2022".[66] The evidence suggests both Mr Stevens and Mr Norling are of the view that there is a sufficient need for an additional supermarket servicing the MTA at the time the proposed development would commence trading.[67]

[39] Conversely, Mr Brown and Mr Leyshon relied upon figures produced by Mr Brown in concluding that an additional full-line supermarket would not be required in the Northern Beaches area before at least 2026.[68] This analysis is based upon an arbitrary selection of a low retention figure for expenditure within the MTA. I did not find Mr Brown a compelling witness. He was very prepared to take a partisan position if it was available to him.[69]

[40] In my view, the confidential trading figures for the supermarkets trading at the Smithfield Shopping Centre and the Clifton Village Shopping Centre confirm the strong level of need for an additional full-line supermarket.[70] The Woolworths supermarket and the Coles supermarket at the Smithfield Shopping Centre were trading far above the sales range of $9,000/m2 to $13,000/m2 which is the average industry benchmark quoted above. Indeed, Mr Duggan, the Regional Property Manager for Woolworths gave evidence that Woolworths at Smithfield "is by far and away the best performing Woolworths supermarket in the Cairns region. In fact, it is one of Woolworths' top traders in Queensland".[71] The Coles supermarket at the Clifton Village Shopping Centre also trades at a level significantly above the quoted benchmark range.[72]

[41] I therefore conclude that there is a significant economic, community and planning need for the supermarket component of the proposed development at the site which is centrally located to service the demand for a supermarket within the PTA which is not presently being met.

[42] Meeting the need for a full-line supermarket on the site was described by Mr Norling as "plugging a gap in the market" when regard is had to the analysed trade areas.[73] In the course of cross-examination, Mr Leyshon agreed with this proposition.[74] I agree with the views of Mr Norling and Mr Stephens that the nearby Trinity Beach Shopping Centre does not have the capacity to deliver a full-line supermarket for the community, particularly given the strata-titling of two-thirds of the centre.[75]

[43] As noted above, the proposed development is intended to be anchored by a full-line Woolworths Supermarket of approximately 3,600m2.[76] Therefore, the need for the retail uses lie at the heart of whether or not the proposed involvement as a whole is justified. As noted above, as a consequence of s 5.3(7) of the Planning Scheme,[77] the need for each of the separate uses has nonetheless been assessed.

[44] Each of the economists is of the view that there is a sufficient need for the Service Station and Food and Drink Outlet on the subject site.[78] The need for the other co-located uses at the site is less clear, however nonetheless significant. Whereas the other economists contented themselves with broad statistical analyses of the need for the Health Care Service and the Child Care Centre, Mr Stephens undertook a more specific analysis. While it is true that the exact mix of medical and para-medical services proposed to be offered from the Health Care Service use (also referred to in the evidence as a medical centre) remains to be determined, the focus of the economists was on the provision of general practitioners in the Northern Beaches region. Mr Stephens undertook a detailed audit of all relevant centres including making telephone calls to verify the numbers under consideration.[79] This supported his view that the provision of general practitioner services in the Northern Beaches region is "below general expectations",[80] and that there is a significant need for more general practitioners in the region aside from the need for other ancillary medical services. I prefer the evidence of Mr Stephens in assessing the need for this use and am of the view that there is a sufficient need for health services to justify the proposed use at the site.

[45] Again, there was a significant divergence of opinion as to the need for the proposed Child Care Centre. The approach of Mr Stephens was ultimately to move beyond the theoretical assessment by all of the economists in their joint experts' report and undertake "an audit of existing child care providers in the region to identify current levels of availability for child care spaces".[81] Six of the 11 child care centres in the Northern Beaches region were found to at least have some availability restrictions. One had no vacancies at all.[82] One centre with availability restrictions was the Bluewater Village Centre which had only recently opened in the residential precinct proximate to the site. Another child care centre, approximately 750 metres to the north-east, indicated availability restrictions including a lack of facilities to accommodate infants.[83] In the circumstances I find that there is a sufficient planning need to justify the proposed the Child Care Centre on the site.

[46] In assessing whether the proposed development is contrary to and would compromise the existing and ongoing hierarchy of centres, contrary to what the Planning Scheme intends, it is important to acknowledge that none of the economists were ultimately of the view that this would occur from the perspective of the Major centre at Smithfield.[84] The proposed development will not change the fact that the Smithfield Major centre will remain the focus of employment and economic activity in the Northern Beaches region and that the Smithfield Shopping Centre will remain its dominant retail centre. Insofar as other relevant identified centres are concerned, including the Clifton Village Shopping Centre and the Trinity Beach Shopping Centre, I accept the evidence of both Mr Stephens and Mr Norling that impacts will be within "the normal competitive range and would not lead to adverse impacts upon the viability of each centre".[85] In respect of their conclusions concerning the Clifton Village Shopping Centre, they are supported by the confidential trading information referred to above.[86] So far as the Trinity Beach Shopping Centre is concerned I accept the explanation of Mr Stephens that this centre, which includes a NightOwl store of 660m²,[87] performs a very different role and function, providing a convenient and accessible location for surrounding residents and visitors "to undertake basic top-up shopping and other convenience visits".[88]

At a glance

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Judgment (236 paragraphs)

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Legislation Cited (2)

Cases Cited (1)