Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51

The advice sought from Council, was that the site was considered invaluable in terms of its large land area (1.258ha) and its close proximity to the existing business centre and therefore should not be contravened for the use of older persons housing and/or speciality shops, but rather a supermarket containing a minimum gross floor area of 1500m².

An in depth discussion regarding this preferred pattern of development for the site has been included within the 'assessment' component of this report." (Page 78)

[44] The self-represented parties regarded the Council's letter of 27 April 2007 as important evidence of the history of the applications, a copy is part of Mr Giffard's exhibit 31 and reads:

"Re: Minutes of the discussions held on site between Council's Officer's (sic) and the Applicant (TJ Kelly) regarding a proposed Commercial development on land located at Main Western Road, North Tamborine and described as Lot 2 on RP 172604.

Pieter Van Der Linde, Mark Toombs and Clients of TJ Kelly Surveys

Cr Bull suggested the retention of an existing tree (species unknown) located approximately in the North-West corner of the site;

Cr Bull also suggested that the proposed development should contain adequate & modern toilet facilities throughout the proposal;

Council Officers advised the Applicant that the submitted application in its' (sic) current form would be unlikely to be supported as the proposal of "Specialty Shops & Professional Offices" could easily be accommodated on a smaller site within the Business Precinct.

If the Applicant wishes to pursue the current application before Council, then the Applicant will be required to justify the further need for the proposed uses within this locality.

Due to the subject site's large land area when compared with surrounding allotments within the Business Precinct, Council is of the mind not to compromise the sites potential to facilitate a supermarket development containing a minimum GFA of 1500 m² to service the future population of Tamborine Mountain.

The Applicant agreed with Councils (sic) request to amend the current proposal to reflect a development that is predominately of a Supermarket nature that may further include the initial proposed uses including Professional & Consulting Services, Specialty Shops & Medical Centre providing all that other requirements pertaining to a development of this nature are met.

The applicant further advised that they will address the issues raised at the meeting through Council's information requests, which at this stage is due on the 3 (sic) May, 2007.

The existing IGA Supermarket contains an approximate floor area of 600m² and with a current population of approximately 6,500 people including the surrounding catchment of Tamborine Mountain is considered over utilised with limited potential for further expansion due to site constraints.

[45] The assessment carried out in due course began, appropriately enough, by turning to the DCP:

It is intended that commercial development be located in the Village Centres at North Tamborine, Eagle Heights and Mount Tamborine and that any such development be in accordance with the existing character of the built environment of Tamborine Mountain, which is low-rise, of a domestic scale and generally uses traditional architectural elements and materials including verandahs, high pitched roofs, timber, brick and corrugated metal roofing.

The proposed development is generally consistent with the Intent of the Commercial Development Requirements of the DCP with the exception of its location outside the Village Centre. The subject site shares a common boundary between those areas identified as Village Centre and Village Area.

Nonetheless, the proposed development has not met the objectives of the Intent of this DCP and therefore does not comply.

(i) Commercial development except as provided for in (iii) below shall be restricted to the Village Centres at North Tamborine, Eagle Heights and Mount Tamborine as shown on Map DCP-1 Map 1.

The proposed development is to be located upon land designated Village Area and therefore does not comply with this provision.

However, Council's Strategic Planning Department as a result of undertaking the relevant studies and assessments in compiling the Beaudesert Shire Planning Scheme 2007, identified the subject site as being most appropriate to facilitate a supermarket large enough to service the current and future population of Tamborine Mountain and its surrounding catchment.

Therefore, considered to be appropriate in this instance.

[46] A pre-lodgement meeting focusing on the revised proposal was held on 8 November 2006. It involved a Councillor and two Council officers, one of whom prepared Minutes of the Meeting in the form of the letter of 2 January 2007 which indicates that "a proposal would generally be supported if the applicant's argument with regards to need is sufficient and supported by detailed consultant's report for traffic, services (water, sewerage, stormwater and electricity) and Landscape Concept Plan".

[47] The Planning Officer's report considered the submissions, but dealt with them rather peremptorily. It was superseded by one from outside consultants brought in by the Council (Hassall) which the court does not have; it recommended against approval and that is the line the Council took in the appeal and persists in - having failed to make any decision on the appellant's application within the time allowed by the IPA.

[48] It might be noted that the planners' desire for a traditional main street with shops built up to the alignment and continuous awnings in front to provide cover for pedestrians, which may accord with a traditional main street in a country town, has had little influence on developers, who have hardly taken it up enthusiastically. Mr Ovenden referred to examples of supermarkets operating in buildings constructed to the street alignment of their sites which shoppers enter directly from the street. It is not known how well these operate. On the evidence they do not correspond with what is needed or desired in the market of North Tamborine. That desired feature may be seen to a small extent on the east of Main Street (less on the west); otherwise, more recent development is typified by the familiar ranch style structure behind parking. The continuous awnings that may be there attached to the buildings are typically set well back from the street. DCP 3.1.3(b)(ii) does not require alignment to the footpath frontage south of Beacon Road. The proposal has the virtue of providing some screening for the parking by allocating it behind three small buildings (with verandahs), set back from the boundary to permit some softening by vegetation. For a supermarket in the DCP 3.1.3(b)(ii) area that has to be built up to the front alignment of the site, there will be parking limitations.

[49] The appellant has made a compelling case of need in the relevant sense: see Watts & Hughes Properties Pty Ltd v Brisbane City Council [1998] QPELR 273, 275 per Skoien SJDC, cited in Comkey Ptd Ltd v Caboolture Shire Council [2005] QPEC 114; [2006] QPELR 399 at 403:

"Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire. A thing is needed if its provision, taking all things into account, improves the physical well being of the community (see Cut Price Stores Retailers v. Caboolture Shire Council (1984) Q.P.L.R. p.126 at p.131). Need does not connote a pressing urgency but relates to the wellbeing of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality (see Roosterland Pty Ltd v. Brisbane City Council (1986) 23 A.P.A.D. p.58 at p.60)."

[50] It is clear that many residents of the plateau and a majority of those who have expressed a view consider that there is no need for the proposed new facilities, none for the supermarket, in particular. They - and it may well be the population generally - can get by comfortably with what is currently available. Constraints to do with availability of water and sewerage mean that for the foreseeable future any population growth will be so modest that it should be disregarded in considering need or demand for facilities.

[51] That present facilities permit life and commerce on the plateau to continue at a satisfactory level to the contentment of the majority does not determine the issue of planning need. Standards and expectations have been and remain on a rising trajectory, even in locations such as North Tamborine not characterised by rampant development. What is generally expected and provided in the wider community establishes a relevant benchmark in my opinion. More important, the Planning Scheme proclaims such an approach. See the Shire-wide Economic Development Objective 4 set out in paragraph [18] above (strategic Plan 3.5.5). Centres are to provide the "maximum range" of suitable local services, etc.[4]

There are relevant DCP provisions such as the leading objective in the aim in 1.7.4 regarding commercial use and community facililties:

"To permit the development within consolidated village centres of quality commercial, community facilities and other non-residential uses compatible with the existing semi rural character and amenity that adequately serve the needs of residents and tourists provided there is no adverse impact on the commercial and community needs of the local residents and any tourist uses or facilities are subservient to the commercial, community and other non-residential uses."

[52] Tension between serving needs at a high level and confining development in designated centres permeates these provisions. The appeal is about which of the desiderata is to prevail, serving established needs at an appropriate level by a development immediately abutting the wrong side of the "village centre" boundary on rejecting the development and leaving those needs inadequately served.

The planning intent behind the fixing of such a boundary is not to be overridden lightly: Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157; Main Beach Progress Association Inc v Gold Coast City Council [2008] QPEC 037.

[53] It is convenient to make some observations about aspects of the submissions of the self-represented parties. There is no need to cover their contents exhaustively, as they canvass issues raised in other submissions and considered elsewhere in these reasons.[5]

Tamborine Mountain Progress Association Incorporated

[54] Ms Peat's submission for the Association focussed on process considerations, referring to Judge Wilson's comment in Tamborine Mountain Progress Association Inc v Scenic Rim Regional Council [2009] QPEC 98 at [34] that "if that process miscarried, that is no basis for imposing unlawful development upon the community" in a context wherein the Council had given certain approvals without justification. The Association's concern is that the court here might be swayed by the appellant's having fallen in with suggestions from Council planning officers that it change its proposal to conform with their vision for a larger supermarket, perhaps one in this very location. The officer's report expressed reliance on a planning study which was not placed before the court. Any such study, Ms Peat says, presumably correctly, did not involve the community; it was not incorporated in the new planning scheme which had come into effect by the time assessment of the development application made under its predecessor was made. I accept that it would be wrong for the court to proceed on the basis that any officer's or Councillor's actions had committed the Council in any presently relevant way or undercut the provisions of other planning schemes or of the DCP.

[55] Regarding submissions from objectors and others, Ms Peat acknowledges the Association's role in facilitating "community response", providing pro formas for objections, and the like. She explained away the supermarket being the focus of objections as following from its central role leading to the planning officer's recommendation, which accepted the amended application as it was, albeit noting that other proposed uses could be accommodated within the Village Centre.

[56] The Association fears that a larger supermarket will take the trade of smaller independent retailers operating at present in the Main Street shopping area, as a "one stop shop". I am not persuaded that this would happen to a concerning extent; it would not if the Association is correct about the sentiment it says exists among local people in favour of the small retailers.

[57] Concern is expressed for the safety of traffic and pedestrians around the proposed entrance to the development, although expert evidence is not available to validate such concerns. In other respects, the Association's submissions reflect the comments of submissions from others. Thus, the central point that the site is on the wrong side of the Village Centre boundary is emphasised, likewise the possibility that the supermarket and other components of the proposal could locate separately within the Village Centre.

[58] Mr Hughes intimated that, for the supermarket at all events, this might be easier said than done, noting that the Association had opposed (and in the court) the proposal to extend the present IGA premises.

[59] Mr Giffard seeks to preserve the existing situation whereby the resident-oriented shopping centre is in Main Street, north of where Geissmann Road (access up the mountain from the north, although oriented close to east-west in this location) does a 120 degree turn to the south and changes its name to Main Western Road. The whole is known as Tamborine Mountain Road; it constitutes a principal route for tourists and through traffic. At the bend, Main Street is the northwards projection of Main Western Road. It leads nowhere apart from giving access to a few side streets where there is residential development. The southern part of Main Street is distinctive in accommodating commercial and community facilities (along with some large blocks featuring single dwellings), in having split levels separated by attractive landscaping and in featuring footpath awnings where commercial buildings are constructed to the alignment. This is the preferred form of development according to the DCP, but the ubiquitous phenomenon of site car parking in front is a feature too, for example at the IGA/library complex.

[60] Mr Giffard's view is that Main Street is for the residents, Main Western Road for the tourists, that the quality of life for the former is best protected by separation from the latter. It can be argued that there is a visual separation enhanced by the topography as Main Western Road falls to the south. Loss of the present supermarket (a "core activity"), if it relocates half a kilometre or so to the south at and immediately beyond the edge of present commercial development, threatens a loss of cohesion, which Mr Giffard fears is critical "in maintaining the social coherence of the community under pressure from a very high level of tourism"; people will be attracted away from the existing hub, will be compelled by distance considerations to drive to the supermarket and be less likely to patronise the 50 or so local businesses clustered around its present location. Further, expansion to 2,000 m2 to facilitate including some speciality lines will take business from those businesses whose present relationship with the IGA is "symbiotic" (the butcher supplies its meat, for example). He says there is no need for the supermarket to exceed 1200 m2 which can be achieved by expansion or by use of a more central and appropriately zoned site.

[61] Such arguments have a certain validity, but at bottom seem to arise from opposition to change; they lack force as planning arguments; they do not have the relevance or potency of other arguments based on planning scheme provisions to do with "zoning", preservation of existing character and the like (I do not think that maintaining character extends to preserving the mix of businesses presently trading, still less particular businesses). As Mr Giffard says, the DCP (3.1.1) itself seeks to encourage consolidation of shopping, office, entertainment, civic and community uses along Main Street/Main Western Road, particularly between Beacon Road and North Road. Beacon Road is a block south of Main Street. There is relatively recent commercial development south of Beacon Street - in the west shops and offices, to the east, a tourist information centre, Queensland Medical Laboratories (QML) and real estate, take-away and real estate and a medical centre (including pharmacy), according to Mr Ovenden's figure. These descriptions indicate facilities and services for residents (not just tourists); to the extent that shops or other offices are presently used for real estate of like activities (said to be tourist or visitor-orientated), those uses may well change.

[62] In my opinion it is not a proper function of the court (in the absence of planning arrangements and legislation requiring it) to act with a view to preserving the status quo, to restrict the introduction of competition, etc. Its proper function in cases like the present is to assess the merits of the development proposal and whether conflicts with the planning scheme must defeat it or can become overcome by sufficient grounds. There can never be a guarantee that valued activities conducted by private (or public) entities will continue to operate in their accustomed locations or at all. People moving to enjoy the advantages of proximity to shops, entertainment, doctors, even schools, may lose them.

[63] Reliance is placed on the 2007 planning scheme to submit that "an overwhelming need and an overwhelming economic need for the development" must be demonstrated. That requirement (ch 2, pt 1, div 2, s 2.1.3(2)(l)) arises where the development is not "of a scale, form and intensity appropriate for the locality". Physically, the buildings adjacent to Main Western Road ought not stand out from those on the land to the north, and the supermarket reflects the proportions of the Prescare building across Main Western Road. A supermarket offering the appropriate range of products is necessarily a bulky structure.

[64] The other economic DEOs Mr Giffard (points to seek), (j), maintenance and consolidation of the existing and planned structure of the North Tamborine Village Centre (with which the proposal conflicts, while not compromising its achievement - given the broad approach taken to that issue: cf Aldi Stores v Redland Shire Council [2009] QPEC 027; [2009] QPELR 602) and in (k), maintenance and enhancement of the distinctive character of North Tamborine. (Mr O'Brien, called by the appellant, has satisfied the court in that regard.)

[65] I have reached a clear view that the proposal results in economic and community benefit overall and would go so far as to hold that the "need" satisfied is "overwhelming". The flexibility of that term from case to case is acknowledged in Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7; [2008] QPELR 480 at [30]. As to "overriding need" Judge Quirk said in McCosker v Council of the Shire of Emerald [1996] QPELR 114 at 116:

"Section 4.4(3A) of the Local Government (Planning and Environment) Act provides that regard must be had to the provisions of this policy (SPP 1/92) when the application is being decided. Nonetheless it retains its status as a policy and in its own terms there must be a balance struck between competing considerations. While recognising that the guidelines set out to provide some assistance in determining whether there is an 'overriding need' in a particular case I do not see that concept as meaning more than a position where the community's interests which are served by the proposal can be seen to outweigh the community's interest in preserving the land for agricultural use."

(quoted in Sibi Girgenti Holdings Pty Ltd v Atherton Shire Council [2008] QPEC 108; [2009] QPELR 95 at 100). A slightly more demanding test was applied in Metroplex Management Pty Ltd v Brisbane City Council [2009] QPEC 110 at [104] and [115], likewise in Wincam Developments No. 3 Pty Ltd v Brisbane City Council [2004] QPEC 005, where Senior Judge Skoien has said at [24] ff,

"The witnesses and counsel 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." (Concise Oxford Dictionary). That would seem to require something approaching a complete absence of an existing development of the type proposed, the development being of a type vital to the conduct of life. An Officeworks is not such a development and I do not know what might be. However I note that 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. So that is the meaning I ascribe to it in s.4.4.2.6 and in the Commercial Policy."

[66] Mr Giffard points to the demonstrated extent of community opposition to the proposal, which he suggests would have been greater had the public been notified of the roundabout proposal which I have accepted was only minor change: see [2009] QPEC 119. Issues to do with the roundabout have been fully ventilated, to the extent that new co-respondents by election concerned with them have been joined in the appeal.

[67] Mr Foster's submission exemplifies the commitment to opposing the proposal of the local submitters who do not want to lose what they value about North Tamborine; that includes social and community aspects as well as the balance between the built and less developed or undeveloped elements in the village; they are genuine and passionate in their view that the proposal offers no gain. They do not want the planning scheme (essentially the DCP, seen as the product of community consultation and input) overridden. There is no need for the components of the development, or no need felt by them. If there is a need, it can be adequately met in other ways without ignoring the DCP, by extending the present IGA or relocating it within the commercial centre.

[68] Mr Foster may have been one of those taking exception to Mr McCracken's characterisation of the community as "activist" as his explanation for the volume of submissions (adverse ones in particular) and for his reluctance to carry out a survey to assess need (transcript 5-16, 5-28); I think they attached a pejorative connotation, not intended upon Mr McCraken. The Oxford English Dictionary Online would have an activist as an advocate of a doctrine or policy of energetic action; that does not imply the doing of anything unlawful, still less anything savouring of terrorism. One cannot know what the general community make of the current characterisation of many on board the ships recently seeking to run the Israeli blockade of Gaza of the media characterisation of them as activists. Branded one, Mr Foster concluded his submission with a reference to Big Yellow Taxi ("you don't know what you've got until it's gone"):

"The site upon which the developer seeks to put this development is bordered on one side by an avocado farm. Pastures with cows and sheep border the back portion of the site. It seems appropriate to bring up the words up of an "activist" song of many years ago: "They paved paradise and put up a parking lot." That is exactly what is happening here. The Appellant is requesting the court to degrade a Village Residential Precinct and fill it up with cement for no justifiable reason at all. I find that inexplicable. What is even more extraordinary is that none of this would have occurred if it were not for the request of Mr Mak that the Appellant amend its application to include a supermarket."

[69] The appellant's sincerity or commitment is not a relevant issue; presumably it is convinced of the need for its development as currently proposed, or we would not be here; it may well have held the same view all along, but preferred to try its luck at the outset with a different development proposal.

[70] Mr Lindenmayer challenges that there is need for the development, which he says is unwanted by the community, local traders and the Council. Population growth to support it is not going to happen. He disputes that the proposal offers the advantages claimed for it in reducing accidents on roads up and down the mountain (attributing the unflattering statistics for relevant stretches of road to the 1.3 million visitors who come yearly, rather than to residents), and reducing "escape" spending; he suggests that only the supermarket use would be likely to eventuate on the site, that its relocation would bring social disruption and disadvantage to existing elderly or pedestrian clientele who for the moment live nearby. He says undercover parking is preferable, especially in inclement weather and in a useful and relevant observation that "the reason customers do not use the existing IGA underneath car parking is the unacceptably steep slope to access it."

[71] The extent to which curtailing trips off the mountain for supermarket shopping might be an effect of the development is indeed speculative. Doubtless the development would tend to reduce traffic on the relevant roads and improve the safety of them, which counts as a potential plus for the proposal. I accept that it is too speculative to count as a "ground" or "planning ground" for approval under IPA in the face of conflict with the planning scheme.

[72] The court had the advantage of the views of five traffic engineering experts: Mr Holland called by the appellant, Mr Beard called by the Council, Mr Bitzios called by the ninth co-respondent (Chief Executive, Department of Main Roads), Mr Rytenskild called by the one hundred and forty-fifth co-respondent (Evergreen Corporation Pty Ltd) and Mr Camilleri called by Prescare (one hundred and forty-sixth co-respondent). Evergreen and Prescare have opposed interests centring on the location of the eastern arm of the now-proposed roundabout (which all accept is the appropriate solution for providing access to the appellant's proposed development - it will provide other advantages such as a convenient and safe location for those wishing to execute a U turn at the southern end of the village. Prescare's site is residential. Evergreen's, which is located in the Village Centre, lies immediately to the north but separated by a narrow "path" (Taylor Lane being so designated) connecting Taylor Street with Main Western Road. The Department is unlikely to favour direct access from Evergreen's land to Main Western Road in the event of future development. Evergreen has recently obtained approvals for commercial use of existing dwelling houses on its southern site (lot 2 on RP 130210) and the northern one (lot 1 on RP 907262). The Department has required as a concurrence agency condition that the appellant's development in the design of the roundabout "accommodate a potential future connection to Taylor Lane in place of the connection to lot 16 on RP163756 [Prescare's land]".

[73] I do not think that that condition should be treated as written in stone or, as it is said, "with the precision of a statute"; I am not even sure that Taylor Lane was intended to be named, rather than Taylor Street". On the contrary, I regard it as expressing a general idea whose implementation (if it ever occurs) is yet to be worked out. The Prescare connection is proposed to be in the middle of its frontage, where the existing driveway is. Exhibit 88 illustrated the concept of the Prescare connection sweeping through lot 16 to the north to connect with Taylor Lane as one potential future connection. Issues to be faced include the steeply rising terrain, the consumption of a lot of Prescare's land and interference with Prescare's water tanks. The appellant has no intention of constructing exhibit 88, presenting it merely as an illustration of what is possible. Another thought is that the path could be widened (roughly doubled in width), presumably at the expense of Evergreen, which would derive the benefit - and at the cost of destruction of some magnificent vegetation in the road reserve.

[74] A connection to Taylor Street might be made further north, which would presumably require use of more of Evergreen's land. It rather seems that the attention devoted by the experts to the appellant's proposal and the still-to-be-resolved mess where the unofficial road through Doughty Park presently provides a connection to Main Western Road from Taylor Street has led to the thought that it would be a good idea to devise a traffic management plan for the area. Such an exercise will require the co-operation of the Department and the Council. It is difficult to imagine that either would be likely to be devoting much by way of resources to the planning for the moment, much less to road construction. The reality is that nothing is going to happen except as part of future development by private developers on the eastern side of Main Western Road. Prescare is justifiably horrified at the prospect of exhibit 88, perhaps fearful that compensation, should its land be taken by authority, may be less than generous. Its submission states that its non-opposition to the approval sought by the appellant is premised on access arrangements for the new shopping centre having no material impact on its access. It accepts a roundabout as an appropriate solution "if it can be achieved". Prescare's final submission is that the appeal ought to be dismissed and the development application refused on the basis that the evidence presented by the appellant does not show that more likely than not, what it proposes can be implemented by way of a future detailed design. Evergreen and the Council (and their experts) take a similar position. The criticism of the evidence focuses on the lack of a "functional layout plan" to provide assurance that exhibit 72 can be constructed. It is a simple "overhead plan" which relocates the roundabout from where it was first proposed centrally in the road reserve opposite the Prescare entrance directly west and partly into the appellant's site, so that no Prescare land need be taken or even have works done on it. Mr Holland acknowledged the possibility that if grades encountered on entering or leaving the Prescare property were to be no steeper than at present, Main Western Road may have to be lowered up to half a metre. I have encountered the importance of road levels in other contexts (for example under the Local Government Act 1993 ss 917 and 918) and accept Prescare's concern as valid, although contemplating that Prescare might be more yielding or flexible in commercial negotiations. While the demand of Prescare (and other parties) for a functional layout plan is understandable, I do not think it is a reasonable one in the circumstances. The argument that the appellant's having produced such plans before to establish the feasibility of other design concepts proves the appellant could do it again is unimpressive and an illustration of how easy it is to spend other people's money. The burden of the traffic engineers' evidence is that confidence can be held that the presently missing detailed design work can be done satisfactorily. The possibility that it may not be was conceded, even by Mr Holland. The court acts on probabilities.

[75] The issue is a serious one in this appeal. Full detailed design is often left for later, once the court has decided that a proposal should proceed. Some proposals have to be refused because engineering detail to show that they are feasible - or just what work they will involve (sufficiently to enable impacts to be assessed) has not been provided. See for example Terton Corporation v Gold Coast City Council [2003] QPEC 60; [2004] QPELR 260 at 266-67. Mr Fynes-Clinton for Prescare referred to Garyf Pty Ltd v Maroochy Shire Council [2008] QPEC 101. At [128] - [133] one reads:

[128] It was submitted against the appellant that, at the conclusion of the case, the court still did not have before it a plan of development capable of incorporation into an approval showing all of the potential design changes. It was submitted for the council that, "considerable doubt still attends the final form of the development with respect to matters which, in all of the circumstances, cannot be regarded as immaterial or insignificant."

[129] Similarly, it was submitted, on behalf of the third and fourth co-respondents, that:

"The changes above are significant and the court could not have reasonable satisfaction that any plan it approved would have a reasonable prospect of development."

[130] An application for development approval for a material change of use is not ordinarily accompanied by full detailed design. That would, in many instances, be unnecessary for the purpose of deciding the application. As Skoien SC DCJ remarked, in the context of rezoing applications under the now repealed legislation[6]:

"On an application for a rezoning, it would obviously be unreasonable in most cases to require an applicant to supply detailed plans and specifications for the development which is to be constructed if the application should be successful. That would often involve great expense which would be wasted if the application were refused. All the applicant need do is supply conceptual plans which indicate with reasonable accuracy the proposed development together with evidence that it can be developed in accordance with acceptable principles of planning and engineering procedures. If the application should be successful conditions can properly be imposed requiring that technical and engineering works be carried out to the satisfaction of the council's proper officer. If the mater is sufficiently sensitive, that satisfaction may be required before approval to rezone is given."

[131] That is not to say that an applicant who seeks approval for material change of use will never be required to descend to matters of detail. What is required in a given case will depend upon the type of approval which is sought and the matters of relevance in the particular case. In Keristar Pty Ltd v Maroochy Shire Council [2003] QPEC 64, for example, the level of site investigation was insufficient to satisfy the court that a proposed reconfiguration was capable of being achieved.

[132] One area where more detail could have been provided in this case relates to the ability to relocate the stormwater discharge point. That relocation can, no doubt, be achieved. The difficulty is that to be acceptable, it must be achieved without loss of the trees which are marked for retention. Greater design detail would have been required to establish that that could be done. Had the acceptability of the proposal been dependent upon the relocation of the discharge point, then the level of detail provided would have been insufficient. I have already observed that the acceptability of this proposal is not dependant upon that. The issue does, however, illustrate the necessity for applicants to focus upon the matters of relevance to a particular case before assuming that all matters of "detailed design" can necessarily be left to a later stage.

[133] The evidence otherwise satisfies me that the proposal, if approved, could be developed and that changes necessitated by, for example, the need to set buildings back from the road and the need to attend to outstanding matters of internal layout are, in context, relatively minor and would not result in any substantially different proposal. Had I otherwise been minded to allow the development application, I would have adjourned the further hearing of the appeal to permit the formulation of conditions of approval, which could have included reference to an amended plan."

[76] In similar vein, as referred to by Ms Kefford, for the Department, his Honour said in SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24 at 27-28:

"[23] Development design is commonly an iterative process. As one would expect, the Applicant has not, at this stage, descended to the final detailed design phase. It would not be surprising if there were some changes as the design is refined and settled. That is, no doubt, why many approvals are subject to conditions which require development "generally" in accordance with the approval plans. The Respondent does not cavil with that, but suggests that the degree of "latitude", reserved by the Applicant in this case, is excessive.

[24] It is ordinarily appropriate for the applicant, when making an application of this kind, to produce plans which show the development with a reasonable degree of accuracy to permit a proper assessment of the application and to demonstrate that the development is capable of being carried out at least generally in accordance with those plans. Beyond that, the degree of detail and certainty required will depend upon the matters which the decision maker is called upon to assess in granting or withholding approval. In this case, the level of detail should be sufficient for a judgment to be made about whether the proposal will comply, or could be so conditioned as to comply, with the applicable codes.

[25] Various areas where changes might be required at the detailed design stage were canvassed in the evidence. These included the probable need to replace proposed boulder walls with different retaining structures, the removal of earth fill over basement roof slabs, an increase in the floor to ceiling height of the basement (with consequent additional excavation and/or an increase in the absolute height of some of the apartment buildings) and changes at or near the site frontage (including deletion of a previously contemplated retaining wall, the shifting of a drainage line and an increase in building setback) to assist tree retention. Some discrepancies in the floor levels as depicted in the landscape plan and landscape sections were also referred to.

[26] It was not contended that the application was a futility, in the sense that it could not be constructed. If approval were to be granted, it would be subject to conditions including a condition requiring development generally in accordance with nominated plans. The matters to which the Respondent drew attention during the course of the appeal do not lead me to the conclusion that such a condition could not be complied with.

[27] Further, the level of "uncertainty" was not such as to prevent a determination as to whether the proposal would comply, or could be so conditioned as to comply, with the relevant parts of the applicable codes of relevance to the issues in dispute in the appeal. Evidence was given in the course of the case about alternative retaining structures and the landscape treatments which could be applied to them, the likely design solution to the need to remove fill over basement roof slabs and the effect which an increase in height of some of the apartment buildings (if required by reason of an increase in the floor to ceiling heights of the basement) may have on visual impact. Further, insofar as building height is concerned, the maximum height could be set by conditions.

[28] I do not consider that the level of "uncertainty" in this case is to such a degree as to call for a refusal of the application on that basis."

[77] While modern expectations of experts are that their opinions will not necessarily coincide with what their clients desire, it happens that there is a good deal of coincidence in this appeal - a comment not intended to be critical of anyone. Thus, putting things broadly, Mr Holland expresses confidence that it will be feasible to design and construct whatever roundabout is required, Mr Camilleri and Mr Rytenskild, engaged by other land owners in the area concerned that the traffic outcome should be optimal for them, want to know much more of the detail to permit assessment of their situations and advise refusing approval, at least until every potentially significant detail is known. The Council, which engaged Mr Beard, required to take a position for or against the proposal in its traffic aspect, opposed it; Mr Beard even suggested that the proposal should be seen as premature before a traffic management plan for the area is established. He would like to see a functional layout plan, too. I think it is significant that the Department and its independent expert Mr Bitzios are aligned with Mr Holland. It is of comfort to the court that the responsible authority, which will be the arbiter (subject to any overriding court determination), does not foresee any traffic engineering issue that could not be adequately assessed at the detailed design stage, having been alerted to potential problem areas to do with grades, sightlines, pedestrian access, storm water drainage and necessary dedications of private land.

[78] The concurrence agency conditions in their current amended form are a nine page attachment to a letter of 25 February 2010 and commence:

Subject to the approval of satisfactory detailed drawings, access is to be located and maintained between Lot 2 on RP172604 and Main Western Road generally in accordance with the Site & Ground Floor Plan, prepared by LVO Architects, dated 31/07/2009, Ref No, SJI1-P3

Access at this location minimises the impact on the safety and efficiency of the State-controlled road network.

These conditions constitute a notice pursuant to section 67 of the Transport Infrastructure Act 1994 (TIA), for section 62(1) approval for conditions on the use of a permitted road access location.

In accordance with section 70 of the TIA, you are bound by this decision. A copy of section 70 of the Act is attached for your information:

Any persons whose interest are affected by the decision may:

(i) under section 485 - ask for the decision to be reviewed and appeal against the reviewed decision; and

(ii) under the Transport Planning and Coordination Act 1994, part 5 - ask for the decision or the reviewed decision to be stayed.

There is no guarantee of the continuation of road access arrangements, as this depends on future traffic safety and efficiency circumstances.

In the event of further development of the site or change in the use of the access, a further application is to be made to the Department of Transport and Main Roads South Coast Region for approval. Approvals may also be necessary for significant maintenance or upgrades.

Subject to the approval of satisfactory detailed engineering drawings, the access is to be designed and constructed as a roundabout generally in accordance with the Site & Ground Floor Plan, prepared by LVO Architects, dated 31/07/2009, Ref No. SK01-P3.

The detailed design of the access roundabout must accommodate:

• ● A potential future connection to Taylor Lane in place of the connection to Lot 16 on RP163756;

• ● Articulated vehicle through movements on Main Western Road;

• ● Kerb and channel and associated underground stormwater infrastructure for the full extent of the circulating carriageway of the roundabout and sufficient length of the approach legs to ensure no runoff from the road corridor is directed into adjacent properties unless appropriate approvals are in place;

● Overhead street lighting in accordance with Chapter 17 of the RPDM;

● Pedestrian crossing facilities across Main Western Road;

● Minimum footpath / verge width of 4.5 metres behind the pavement edge or back of kerb and channel as appropriate.

The Department of Transport and Main Roads will require the applicant to dedicate any land upon which the roundabout is to be constructed that is located outside of the road reserve. The extent of the required land dedication will be determined by the longer distance of:

- The nose of the splitter island approach to the roundabout;

- The kerb and channel associated with roundabout drainage;

- The tangent point of the curve on the corner of the roundabout; or

- At least one vehicle (6m) queuing distance back from the give way line.

The roundabout is to be designed and constructed at no cost whatsoever to the Department of Transport and Main Roads.

The applicant must obtain approval for the final design of the roundabout in accordance with section 33 of the Transport Infrastructure Act 1994 prior to the commencement of any construction on the site.

The roundabout must be constructed prior to the commencement of any use on the site

This roundabout is required as a result of the proposed development to maintain the safety and efficiency of the State-controlled network.

Based on the drawings specified in this condition, it is apparent that the design and construction of the roundabout is dependent upon the acquisition of land outside of the road reserve that is not currently owned or under the control of the applicant. The applicant must ensure that any land outside of the road reserve required for the construction of the roundabout is in the ownership of the applicant prior to the lodgement of any application for approval under section 33 of the Transport Infrastructure Act 1994.

In accordance with Section 33 of the Transport Infrastructure Act 1994, you must have written approval to carry out road works on a State-controlled road. These development conditions do not constitute such an approval. You will need to contact the Department of Transport and Main Roads' Corridor Management Branch South Coast Region on 5596 9500 to make an application for approval under Section 33 of the Transport Infrastructure Act (Qld) 1994 to carry out these road works.

The applicant must submit detailed engineering drawings of all the required works to the Department of Transport and Main Roads (South Cost Region Gold Coast District Office) for approval prior to construction. All drawings must be prepared in accordance with Main Roads' district document "Basic Requirements for Engineering Drawings and Specifications - Roadworks within State-controlled Roads" (DC03W02), Main Roads' Standard Specifications. All drawings and documentation must be certified by a Registered Professional Engineer of Queensland (RPEQ).

The Department of Transport and Main Roads' technical manuals can be accessed via the Department of Transport and Main Roads' website www.mainroads.qld.gov.au (click on: "Suppliers Partners Site" - technical Reference Centre").

The existing access located between Lot 2 on RP172604 and Main Western Road is to be removed and reinstated to match the adjacent roadside verge.

The closure of existing accesses minimises conflict points along the State-controlled road and ensures the safety and efficiency of the State-controlled road network.

These conditions constitute a notice pursuant to section 67 of the Transport Infrastructure Act 1994 (TIA), for section 62(1) approval for conditions on the use of a permitted road access location.

In accordance with section 70 of the TIA, you are bound by this decision. A copy of section 70 of the Act is attached for your information:

Any persons whose interest are affected by the decision may:

(iii) under section 485 - ask for the decision to be reviewed and appeal against the reviewed decision; and

(iv) under the Transport Planning and Coordination Act 1994, part 5 - ask for the decision or the reviewed decision to be stayed.

The applicant must install appropriate signage and line marking adjacent to the proposed development site to ensure that vehicles do not park in the State-controlled road reserve

Main Roads has a duty of care to minimise conflict points and protect the safety and efficiency of the State-controlled road network.

The Council, Evergreen and Prescare submit that in the circumstances the "generally in accordance with" formula in conditions 1.1 and 1.2 does not sufficiently overcome the difficulties of demonstrating certainty and feasibility of the development as discussed. In the circumstances, I am persuaded that theirs is not the correct view, and that Ms Kefford is correct that the level of uncertainty in this case is not of such a degree as to call for a refusal of the development application on that basis.

[79] There was a separate but related issue regarding the condition in the first dot point in 1.2. Mr Fynes-Clynton argues that the condition does not meet the test for development conditions imposed by s 3.5.30 of the IPA. He takes the precautionary approach that condition 1.2 "requires that the design of the roundabout incorporate 'a potential future connection to Taylor Lane in place of the connection to lot 16'", that what is required is "provision to close off the existing Prescare access ... and replace it with a new access in an unspecified location". It would be difficult to support such a condition as "reasonably required" by approval of the appellant's proposal, which has no implications of any significance for the eastern side of Main Western Road. On this approach it would seem equally difficult to support such a condition as "relevant to (but not an unreasonable imposition on)" the appellant's proposal. What is lacking is some rational and logical nexus between the proposal and what such a condition requires. The legislation referred to in the concurrence agency conditions (TIA) acknowledges Prescare's right to be heard. Section 44 appears to recognise this court's role in amending conditions. Here, the appellant does not cavil at the impugned condition; it would seem odd for the court to strike it out at Prescare's instance, even though Prescare may lose its access to Main Western Road should the notions expressed come to fruition in their rigour. Prescare's alarm is justified, although one might speculate that the lost access might be replaced by something preferable such as a much longer frontage allowing access along the Taylor Lane "path" on its conversion to a side street of conventional width (rather than something like exhibit 88).

[80] I doubt that the problematic dot point is a condition of the kind that concerns the court from time to time, rather than a design parameter accompanying the first sentence of 1.2. It is, in my view, the concurrence agency "thinking aloud" and taking care not to foreclose options. I do not think that "accommodate" means "incorporate" or provide: it means something like allow for in the sense of not precluding. As to "in place of", my interpretation is that one of the possibilities contemplated is that the lot 16 connection would go; another is that the future connection would be an additional one. Termination of Prescare's accustomed and important access to Main Western Road, if it ever comes under active consideration, will only be achieved by going through the processes the TIA establishes.

[81] The concurrence agency conditions have already been overtaken by events, and in a significant way. The roundabout is to be shifted to the west with a view to sparing the appellant the need to acquire Prescare land to accommodate it for subsequent dedication by the appellant as road. Such adjustments are unremarkable and do not trouble the court. Nor would it be of concern were the affected parties to adjust what I have described as "design parameters" with a view to alleviating concerns such as Prescare's.

[82] The contention that the appellant's proposal must await the uncertain event of a local traffic management plan for the immediate area being adopted is rejected. What is to be managed is traffic connected with the eastern side of Main Western Road and development that may occur there, matters which cannot fairly or realistically be connected with the appellant's proposal. Ms Kefford referred to Scullin v Brisbane City Council [1998] QPELR 12, where Shanahan CJ DC said at 16:

"The principle is that an owner of private land ought not to be prevented from developing such land on the basis of some indefinite and uncertain proposal which may or may not ever eventuate."

To similar effect, Mr Harding referred to his Honour's decision in SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36 at 51-52, where the above passage was reprised and other relevant authorities were referred to (Mixrose Pty Ltd v Brisbane City Council [1992] QPLR 194 at 197H and Esteedog Pty Ltd v Council of the Shire of Maroochy [1991] QPLR 7 at 9E. His Honour also mentioned that "as a planning principle sterility should be avoided", citing Storey v Director of Planning (No. 1) [1974] SAPR 473, 481. The other co-respondents who were active in the appeal found it difficult to keep away from traffic issues entirely. They approached them with some diffidence, being bound by an agreement reached in mediation by the registrar not to run traffic matters as an issue in the appeal.

[83] The appellant has persuaded the court to the requisite standard that traffic issues can be satisfactorily resolved by way of appropriate conditions and do not stand in the way of approval of the proposal.

[84] There is no room for operation of a system of precedent in this area, or in the court generally, its situation having to be approached on its own merits and in accordance with the provisions of applicable or relevant planning schemes. The stronger the planning scheme provisions against out of centre development, the more difficult will be the task of a developer propounding a site not within the designated centre. An example of de facto expansion permitted of a designated centre into the adjoining designation is Lend Lease Property Management Pty Ltd v Maroochy Shire Council [2002] QPEC 40; [2003] QPELR 23, referred to in Luke v Maroochy Shire Council [2003] QPEC 5; [2003] QPELR 447. Out of centre development across the road was approved in Fernhunt Pty Ltd v Mackay City Council [2002] QPELR 447. See also Gracemere Surveying v Peak Downs Shire Council [2008] QPEC 97; [2009] QPELR 416, affirmed in Gracemere Surveying and Planning Consultants P/L v Peak Downs Shire Council [2009] QCA 237. In these cases, the council was supportive, as it was not in Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157, where out of centre development was refused in a successful appeal. The Council's approach did not survive in Main Beach Progress Association v Gold Coast City Council [2008] QPEC 037 (another "expansion" case) - nor did the Council's opposition in an appeal following a deemed refusal carry the day to prevent approval in Comkey Pty Ltd v Caboolture Shire Council [2005] QPEC 114; [2006] QPELR 399.

[85] It was unsurprising that the planning experts agreed that if out of centre development is appropriate at all, it is preferable from a planning perspective to locate it at the boundary of a designated centre, rather than more remotely. I have gained assistance from a couple of contrasting decisions of Judge Rackemann. Comkey was an appeal against the deemed refusal of an application seeking a material change of use for a shopping centre and tavern in the relevant Special Rural Zone under the transitional planning scheme. The reasons include the following:

"[28] I am conscious that the existing facilities are on land which is appropriately zoned for the purpose and included in the Local Centre zone under the Draft Planning Scheme. I am satisfied that blight is unlikely and that the land is likely to continue to be used consistently with its existing and proposed zonings.

[34] There is no vacant appropriately zoned land in Beachmere available to accommodate the proposal. Existing appropriately zoned land is developed with existing facilities. The subject site is on available vacant land, otherwise suitable for the development, situated relatively closely to the main node and adjacent to existing urban development.

[35] Mr Sinclair gave evidence that he was considering an internal rearrangement of his centre, in order to make further space available to the supermarket, but that concept has not progressed and would not provide for the extent of additional facilities proposed or which, I am satisfied, are needed.

[36] I am satisfied of a need for further land, beyond that which is appropriately zoned, to meet the need. The issue of whether, from a town planning perspective, that should occur on the subject site is discussed below.

[40] The existing shopping facilities in Beachmere are in the Local Shopping Zone, the intent for which is "to meet the convenience needs of nearby residents".

[44] ... the subject land is partly in the Rural Areas and partly in the Residential Areas. No part of the land is within the Commercial Areas. Indeed, there is no land in Beachmere within the Commercial Areas. ... that if the provision of additional shopping facilities is justified at Beachmere, something which is probably accepted by all parties, then in the absence of a designated Commercial area, they must be accepted in either the Residential Area or the Rural Area".

[47] ... Objective 10 ... is to "develop a hierarchy of local centres and general stores to meet the convenience needs of the people". The Implementation Provisions to that objective are as follows: ...

[57] Even if conflict was said to arise by reason of the proposal's failure to "consolidate and reinforce" the existing node, or expand upon it, there are sufficient planning grounds, of relevance to this aspect of conflict, to justify approval notwithstanding that conflict. Of particular importance is the public or community need for which the proposal would provide, but which is unlikely to be met, at least in a timely way, if at all, by reliance on consolidation or expansion of the existing facilities in the appropriately zoned areas.

[59] ... The achievement of that about the existing facilities in the main node, would require: the purchase and assembly of contiguous properties currently in multiple ownerships and occupied by other (mostly residential) land uses; demolition of existing structures; possibly some redevelopment of existing facilities (which comprise separate developments with separate car parking areas fronting different streets), if an integrated centre was to be offered to the community, and a development approval, obtained in response to an application which would be subject to impact assessment (with attendant consideration of impact on the adjacent, mainly residential, land uses and public submission and appeal rights).

[60] Difficulties of that kind may not be unique in the development industry and might, at least in theory, be able to be addressed. There is, however, very little which would inspire confidence that, in the absence of the subject proposal, they would be overcome so as to provide development to meet the public and community need in a timely way, if at all. It is unlikely that the existing centre would be reasonably expanded within a reasonable time so as to meet the need.

[63] The only evident developer interest in providing additional facilities, to meet the needs of the community, is the interest of the Appellants and the First Co-Respondent in providing such facilities on competing sites removed from the existing node. Town planning cannot be overridden simply to suit developer preference, but the evidence of a public or community need, combined with the practical difficulties of meeting that need in the preferred way and the lack of any evident proposal or interest in doing so, notwithstanding interest elsewhere, satisfies me that refusing the current proposal to provide needed shopping and tavern facilities in the hope that at least the additional shopping facilities would then be provided by expansion, incrementally or otherwise, of the existing node, is unlikely to lead to satisfaction of the public or community need in a timely way, if at all ..."

[86] By contrast, although the developer's land in Tedder Avenue, Main Beach was directly adjacent to a three block "commercial strip", an extension of similar development was considered inappropriate in Main Beach Progress Association Incorporated v Gold Coast City Council [2008] QPEC 037. The reasons state:

"[56] It was not suggested that the atypical function of the existing strip is about to change. Considered on a first principles basis, it may seem logical for any extension of the strip to be in keeping with that existing function. That begs the question however, as to whether such an extension is intended by the planning scheme. The decision to include the existing commercial strip in the Local Business domain, and not to extend the boundaries of that domain any further than the existing three block strip, together with the failure to otherwise acknowledge its broader function (far less encourage the reinforcement of the broader function by expansion of the area developed for commercial uses) do not suggest an intention for the commercial strip to be extended, beyond the Local Business Domain and into the Residential Choice domain, by the commercial component of a mixed use development, which would provide more of the facilities which would serve the broader function of the commercial strip and reinforce its atypical nature.

(i) a number of the proposed non-residential uses fall within the "undesirable or inappropriate" category within the Residential Choice domain, which applies to the subject site;

(ii) the commercial component of the proposal does not answer the description of those non-residential uses which are sought by the statement of intent for the Residential Choice as domain;

(iii) the commercial component would operate, in effect, as a significant extension of the existing commercial strip, to which a different domain applies, and within which the same uses are not within the "undesirable or inappropriate" category;

(iv) the inclusion of the subject site in a different domain than that which applies immediately to the north, implies a different planning intent; and

(v) the commercial component of the proposed mixed use development would not only, in effect, extend the commercial strip into the Residential Choice domain, but would do so by the provision of a significant extent of further facilities to service a broader function, which is not acknowledged by the intent of the domain."

"[137] The proposal, in this case, is not without some merit. I am conscious of the obvious effort that has gone into the proposal and that the application was approved by the local authority, in accordance with the recommendations of its officers and an external consultant. This has caused me to pause and reflect upon the conclusion which I have reached. Ultimately however, I do not consider that the proposal is in accordance with the planning scheme and I do not consider there are sufficient grounds to justify approval of the development particularly in relation to its commercial component and the height of the building. I do not regard those matters as trivial or minor, I do not consider that the grounds in favour of the proposal overall justify an approval.

[138] The co-respondent has failed to discharge the onus. The appeal is allowed and the application refused."

[87] The Council's summary of the conflict that arises from out of centre development was:

"43. The following facts illustrate the significance of the conflict:

(a) the retail and commercial floor space within the designated Business Precinct is presently 5,850m2.[7] The 3,315 m2 floor space in the proposal represents an increase of 57% (in a single development) outside of the area it is intended to locate in;

(b) the proposed supermarket alone is probably the largest retail building on the Mountain.[8]

(c) the proposal would result in the removal of $13 million turnover from the designated Business Precinct;[9] and

(d) the proposal, located out of the centre, would of itself, achieve a turnover of about 40% more than the designated Business Precinct.

1. The conflict which arises will have tangible detrimental impacts. It will reduce the level of activity or vibrancy within the designated centre; will require customers to drive from the proposal to the Main Street centre to complete their shopping and associated tasks; and will locate the centre's supermarket away from the residential area which people, including the elderly, have moved to in the expectation that they would be able to undertake their shopping tasks on foot."[10]

There is some overstatement here: (a) is very much the result of the supermarket's contribution of 2,000 m2, which will double the size of the present IGA, without introducing a new trader; the correctness of (b) depends on characterising the bulkier Eagle Heights Shopping Centre as something other than "retail"; (b), (c), (d) and 44 (to a considerable extent) are premised on the assumption that the appellant's proposal would be successful, that no developer is likely to take up the supposed opportunities to establish a sizeable supermarket inside the Village Centre where, supposedly, residents would prefer to shop. Importantly, the expressions "out of centre" and "removal" are describing an extension of a Centre (which the Council correctly says is a different thing from the consolidation of commercial uses within a centre) rather than removal to a remoter location.

[88] The percentage increase in commercial floor space dwarfs by orders of magnitude the percentage increase of land in or abutting the Village Centre zoned or turned to commercial uses. There is indeed much land in the Centre presently vacant or accommodating single residences (a few with commercial uses approved); for whatever reason these tracts have remained unutilised or under-utilised; the experts agree an unhealthy situation exists of insufficient built space available for commercial use. It is a landlord's market.

[89] The arguments the appellant faces regarding conflict with planning scheme provisions about character and visual amenity presented by the Council (and four of the seven other active parties) are summarised by the Council by way of recapitulation of the views of the appellant's visual amenity expert, Mr O'Brien, after detailing the wealth of references in all relevant planning scheme documents to preserving the special character of the plateau which has appealed greatly to visitors for a century to the extent that many become residents (as many as are let in). It is unnecessary to collect all of the references to country villages, hamlets, undulating pastures, hedgerows, remnant and re-growth rainforest, remnant forests, the appearance of "English countryside", or, generally, the "special qualities" that make the plateau "unique". The special qualities are to be maintained and enhanced, development should have a "positive impact". The written submissions set out to identify:

1. Mr O'Brien's evidence[11] was that the subject land:

(a) has probably the longest site frontage in the Village area;

(b) presents an attractive view of 100m of continuous vegetation;

(c) contributes to the character of this particular locality in Tamborine Mountain - a character which both residents and visitors find attractive;

(d) forms a "significant element" of the streetscape (the terminology of SO5 for the Precinct); and

(e) currently represents an entirely different character to the adjoining commercial development to the north.

1. At present the character of the locality accords precisely with what both Planning Schemes have intended by virtue of their mapping. That was confirmed by Mr O'Brien.[12]

2. The change in character which the proposal would result in would be marked. It will cut across with the Schemes' intentions with respect to the protection of character in the area, and will exhibit an entirely different character to that which the Schemes intend. In particular the proposal:

(a) removes the existing vegetation along the frontage of the land,[13] and replaces it with a 100 metres long section of "related"[14] commercial development (along the largest frontage in the Village);

(b) includes what will be probably the largest single retail building on the Mountain, and involves the addition of 57% more retail/commercial floorspace than presently exists in the Business Precinct;

(c) will be elevated several metres above the road reserve, like the development to the immediate north (depicted in Mr Van Pelt's Figure 4, and Mr O'Brien's Figures 8 and 11);

(d) includes signage to attract custom (as illustrated by the adjoining commercial development depicted in Mr Van pelt's Figure 4);

(e) includes a supermarket and carpark which, although screened to some extent would be visible, 4m above the carriageway, through a 25 to 30m gap between buildings[15].

(f) will have entirely different character in terms of level of activity including traffic movement (predicted to reach 374 vehicles per hour in the peak period, or in the order of 2,500 vehicles per day - in stark contrast to the child care example which Gaven evidently attempts to rely upon.[16])

(g) after dark will involve additional activity, in addition to illuminated signage, carparking and the roundabout[17];

(h) necessitates the construction of a roundabout, the location of which remains uncertain, but which involves Chevron treatments (not depicted on Mr O'Brien's landscape drawing); kerb and channel for the full extent of the roundabout and sufficient length of its approach "legs" (a relevant feature with respect to character impacts[18]), a 15m wide driveway entrance (or probably more if the plan in Ex. 72 is implemented) with the appearance of a street[19] and probably low level shrubbery at best[20]. In the absence of details of its precise location, it may also require the removal of large trees in the road reserve.

That stark change in character will occur in a significant location - the entry point to the Village when travelling from the south.[21]

In addition, approval of the proposal would also have a detrimental effect on the character of Main Street, given the movement of concentrated activity.[22]

The Court would not accept Mr O'Brien's thesis that the proposal will somehow represent an improvement of the visual amenity of the area for a number of reasons.

Firstly, the appropriate "urban edge" is as presently exists. As Mr O'Brien acknowledged, it is entirely consistent with what both Planning Schemes intend by their mapping[23] and the numerous planning objectives identified above.

Secondly, the thrust of Mr O'Brien's opinion was that the proposal would provide greater "symmetry". That opinion was reliant upon the views he expressed, in his reports, about the scale of Roslyn Lodge, and in particular its 80m long side axis.[24] That reliance is, however, misplaced given his willing agreement that only a "glimpse" of that access was available from Main Western Road[25], and that screening vegetation (which is substantial, in terms of both scale and age[26]) almost completely obscures any view of that side of the building.[27] Further, the Lodge is located 3 to 4m below the level of the road, and 30 to 40m away from it.[28] He also agreed that Roslyn Lodge represented an entirely different character to the proposed use, and also involved a much lower level of activity.

Thirdly, his opinions were also based upon his "control test" that the subject land would, or could, be subdivided for detached houses.[29] That is not what either Scheme supports. In fact, the 2007 Scheme positively discourages subdivision of the land[30]. (Mr Schomburgk fell into that error also when he indicated that the land was "earmarked" by the Scheme for subdivision and he would expect the land to be developed for 12 to 13 dwellings.[31] The extent of the error was heightened by his vehement views about it.) Even if the land were developed for residential dwellings, that form of development would have a substantially different character and intensity to the commercial character of the proposal.[32] That commercial character would also be substantially different to the residential character intended by the Specific Outcomes for the Village Residential Precinct.

Fourthly, Mr O'Brien apparently ignores the community's views about character identified in the many objections. Those views are expressly recognised by the DCP.

Even if Mr O'Brien's thesis were accepted despite those difficulties with it, the "improvement" he suggests does not avoid the conflict which a decision to approve would create. That is, Mr O'Brien seeks to impose an entirely different planning strategy than that which successive Planning Schemes have adopted, and maintained."

[90] While accepting that some of the advantages Mr O'Brien suggests are really no more than looking on the bright side, I am in agreement with his broad approach. Visually, what the proposal will bring is a shift of the stark change in character (Mr van Pelt's characterisation) represented by commercial construction and uses 100 m further south on one side of Main Western Road (a change from the Cottage Tourist Designation disregarding the narrow intervening "Rural access strip") to align more or less with existing Prescare Facilities directly opposite. The change will be less visually offensive and less dominant than the stark change manifested at present further up the hill. So far as the representation of them before the court goes, "Cottage Tourist" developments, while modest in size, present as money-making uses, hard to distinguish from "commercial", with much visually prominent advertising. The "vibrancy" and traffic movements associated with the relocated, expanded supermarket will move a longer distance southwards. The proposed built forms are not out of character in my view, and would be unremarkable if located further north in the Village Centre, although constituting a striking change from present built character in some parts, such as the police station end. A supermarket of the floor area (appropriately) proposed will be a bulky structure, wherever located, as noted already - at [62].

[91] The character and visual amenity point, seems to me, is largely a reiteration of the basic planning issue of out of centre development. The loss of 1.285 ha presently accommodating a modest low set dwelling and some modest ancillary buildings (all proposed to be demolished) otherwise presents effectively as undulating pasture or the like, fringed by vegetation (flowering from time to time) that makes a huge contribution to the visual appeal of the area. That is undoubted. Notwithstanding that the evidence in this case suggests that virtually nothing can be done on the site other than constructing a large house (sub-division being precluded, and the Council opposing the originally proposed residential development for older people), there is nothing protecting the visual and amenity values of what is there now. Presumably the vegetation could be removed, and the whole site concreted over. It would probably please everyone except the appellant if the site remained as it is forever; however, the court cannot proceed on the basis that this is the alternative to the appellant's development. Similarly, while change to dynamics and locations within the Village Centre (effectively expanded) will result from the development, that is but an example of the changeability of things - which may be seen as inevitable, however much productive of regret. The crucial question is the acceptability of de facto expansion of the Village Centre. The concomitant changes in character and visual amenity are nothing out of the ordinary, in my view, which acknowledges that growing things are to be replaced by concrete, asphalt, brickwork, signage, lighting and the like. The physical context of the site is such that there is no adjacent or nearby existing or potential residential development or area having residential amenity or character to "maintain". See in the 2007 planning scheme, for example, Specific Outcome 7 for the Village Residential Precinct and in the strategic plan reference to compatibility of adjoining land uses (Economic Desired Outcome 4), also to the character of the village area being adversely affected (DCP 1.7.4(a)(ii)(C)), all of these being provisions referred to in the Council's written submission.

[92] The appeal should be adjourned generally, the court having assessed the appellant's proposal as one that is feasible, and should be approved subject to suitable conditions, because the need for it justifies overriding the conflict that exists with the planning schemes. Suitable conditions can now be worked out.

[2] The broader requirements of the section are in s 4.5(3) Local Government (Planning and Environment) Act 1990:

"(3) In considering an application to amend a planning scheme or the conditions attached to an amendment of a planning scheme a local government is to assess each of the following matters to the extent they are relevant to the application -

(a) whether the proposal, if approved, or buildings erected in conformity with the proposal, or both the proposal, if approved, and the buildings so erected would -

(i) create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network;

(ii) detrimentally affect the amenity of the neighbourhood;

(b) the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment;

(c) whether the land or any part thereof is so low-lying or so subject to inundation as to be unsuitable for use for all or any of the uses permitted or permissible in the zone in which the land is proposed to be included;

(d) whether, having regard to the permitted or permissible uses of the land and the potential for subdivision in the zone in which it is proposed to be included water, gas, electricity, sewerage and other essential services should be made available to the land and to each separate allotment thereof if the land were subsequently subdivided;

(e) the impact of the proposal on the environment (whether or not an environmental impact statement has been prepared);

(f) the situation, suitability and amenity of the land in relation to neighbouring localities;

(g) the advice given by it, in respect of any consideration in principle concerning the relevant land pursuant to section 4.2;

(h) whether any plan of development attaching to the application pursuant to a requirement of the planning scheme should be altered;

(i) where the land is land prescribed pursuant to section 8.3A, the site contamination report in respect of the land;

(j) such other matters, having regard to the nature of the application, as are relevant."

[4] "The preferred dominant land use provisions for urban centres intent begin:

Urban centres shown on Strategic Plan map 4 are the locations where it is intended that a wide range of businesses, industries, shopping facilities, community services and facilities and recreation facilities and services will be concentrated; these centres are intended to provide services to the Shire's population conveniently, and also to provide local employment and promote community identity. While there will be a limited number of smaller centres that will provide some additional lower-order convenient services, it is the urban centres designated on Map 4 that are intended to be the major focus of retailing, business and community services development. The size and range of functions in the urban centres varies, and will be determined for the most part by catchment populations, and size and location of existing and planned competing centres. The black squares shown on the strategic plan map are not intended to designate accurately the extent of centre development; that will be determined through more detailed planning in development control plans and/or through the development control process.

To encourage within the Shire the development of a range of centres that will provide convenient commercial and community services for the population.

(j) Tamborine. A small number of sites will be permitted to develop generally in the vicinity of the town's main intersection, for business and industrial land uses, so as to provide services for residents in the district, promote the possibility of tourist-oriented craft shops in this location, and develop the identity of the village of Tamborine as a service centre."

[5] I regret the extent of repetition that characterises these reasons in any event. It is a product of the segmented, protracted hearing resulting primarily from the parties' difficulty in identifying generally convenient dates. Work has been done on some topics during the breaks. It has seemed preferable to publish reasons before a substantial period of leave without desirable editing and rearrangement, rather than delay further.

[6] Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor [1996] QPELR 251 at 254.

[10] Eg Statements - Exs. 53, 54, 55, 58, 62, 63, 66.

[20] O'Brien T3-25/3 - also Exhibit 3, Tab 15, Conditions 1.2 and 7.1.

[29] e.g. paras 15 and 25 Joint Report; and paras 107, 108, 109, 110, 114(c) and 115 of his Court Report

[30] Specific Outcome SO49(b) for the Zone, and also the Reconfiguring a Lot Code SO1, SO8 and Table 5.4.6B.