Glenvale Properties Pty Ltd v. Toowoomba City Council & Ors; McNab Developments P/L v Toowoomba City Council & Ors; Sunset Superbowl P/L v Toowoomba City Council & Anor; Beck v Toowoomba City Council & Anor [2008] QPEC 20

[2] The Glenvale site contains in excess of 2.4 hectares, the corner portion of which has constructed on it a ten-bowling facility known as Sunset Superbowl. One aspect of the proposal is a reconfiguration to sub-divide off that facility and its curtilage, including part of the existing parking. This will leave a site in excess of 1.7 hectares having separated frontages to Greenwattle Street and South Street. It is proposed to have accesses shared by Sunset Superbowl and the L-shaped shopping centre site, those accesses being linked by a continuous roadway along the west and north of the Sunset Superbowl facility. The site falls in elevation towards the north and east. Indeed, in the north-east it is traversed by the invert of a watercourse being one element of a large network of watercourses linking to Spring Creek in the "block" I have described which is the focus of the Council's planning for the general area. The shopping centre is to be located at an elevation considerably lower than the bowling facility, but, in my understanding, at its own single level (subject to parking areas possibly having some minor degree of slope). A positive feature of the design was said to be that no parking space took direct access from the road dividing the bowling and shopping centre components. I agree that this is an advantage. Parking provision is to be aggregated. In all, the combined uses would have available something in excess of 300 spaces. Suggestions that an uphill trek to the higher car park would be difficult for those pushing loaded shopping trolleys were met by the late production of a plan providing for a zig-zag ramp.

[3] An attractive aspect of the proposal, perhaps inspired by the existence of the bowling facility, is the creation of two separate buildings, the major one, occupying the north-west corner of the site to be a 3,200 m2 supermarket proposed to be operated by Woolworths with a small rank of speciality shopping (250 m2) half abutting the southern side, half extending beyond the eastern side. The south-western area within the "L" is marked "future expansion 500 m2". It seems immaterial (it is not clear) whether the supermarket or the specialities will take up the expansion. A separate rank of speciality shops (850 m2 net lettable area) occupies the balance of the northern boundary. I understand (although we are of course far from final design) that the specialities will be accessed directly from the eastern car park area (said to be a "courtyard"). At the eastern end of them is an "al fresco" eating area which overlooks Greenwattle Street, and thus provides a "connection". The balance of the site, south of the supermarket, is devoted to parking (117 cars). The eastern area will accommodate 121 cars, the bowling precinct 78. The floor level of the shops is indicated as 605.5, that of the bowling facility as 608.4. It is not entirely clear how the fall is to be accommodated. The fall of the land is such that along the northern boundary of the site a retaining wall four metres high in the east and three metres high in the west will be required underneath the buildings. Considerable filling will be required behind the retaining wall. The joint report of the parties' visual amenity and landscape experts, Mr Chenoweth, Mr Simpson and Dr Hassall pertinently observes in paragraph 5 that "the drawings submitted to Council for assessment are sketchy and difficult to read, with many design issues unresolved and no landscape plans." Another missing element which will have to be incorporated if the proposal is built is the services tower above the supermarket. We have no idea where that would go or what its dimensions might be.

[4] Mr Beck is the alter ego of Glenvale, as appears, for example, at page 52 of exhibit 20, the Glenvale Structure Plan for Toowoomba City Council prepared by consultants - the Draft Glenvale Structure Plan (DGSP). Glenvale's proposal incorporates a second South Street access close to the western boundary. This is to be restricted to service vehicles which can enter, then move along the western boundary in order to turn right about the middle of the site in an area of driveway abutting car space openings, to permit reversing to almost the northern extent of the western boundary where Woolworths' unloading facilities will be. To criticisms of the safety of the turning arrangements and the proximity of heavy vehicle movements to the future residential development likely to occur immediately adjacent to the western boundary was added the possible replication in this location of the potential for high set headlights of service vehicles to shine directly into houses across the road. (The South Street situation is more speculative than the Glenvale Road one; however, aerial photographs appear to depict a residence opposite at risk of similar intrusion of headlight glare.)

[5] Glenvale's site, like McNab's, is zoned Rural and allocated to the Future Urban Land Precinct. So is the vast bulk of the land in the four large blocks of south west Toowoomba bounded by Glenvale Road, Greenwattle Street, Euston Street and Boundary Street. There is established residential development in small pockets in Greenwattle Street (towards Euston) and west of McNab's site in Glenvale Road. The north-south separation into the four blocks is effected by McDougall Street, the east-west one by South Street. In the north-western block are located the Glenvale State School (in Glenvale Road) and the Darling Downs Christian School, on a much larger L-shaped block with frontages to McDougall and South Streets. The dominating feature of the Zoning/Precinct Map is Open Space Zoned Land incorporating Spring Creek and its tributaries which runs with the direction of flow from north-east to south-west. West of Boundary Street lies Jondaryan Shire, as noted. In Toowoomba, there are connections across Glenvale Road and Greenwattle Street. One of the "tributary" segments runs between the developed Greenwattle Street pockets mentioned above. There is another (not shown as connected) in the far north-west corner, "cradling" the State school. These green swaths of "major open space" appear on the Strategic Plan Map of the Toowoomba City Planning Scheme which came into effect on 8 April 2003.

[6] A sliver of the Glenvale site in its north-eastern corner is zoned Open Space and specifically in the City Parks Precinct. Mr Venn, a town planner who has assisted the Council in assessing the rival development applications and who gave evidence in its case deals with relevant provisions as follows:

"3.6 Intent of the Open Space Zone & City Parks Precinct

3.6.1 The Glenvale site include a small portion of land zoned 'Open Space' and in the 'City parks Precinct' (refer Figure 4) and adjoins land in this zone along the northern boundary and which forms part of the waterway/open space corridor referred to throughout this report. The McNab site borders land included in the Open Space zone along its western boundary. The Intent of this one is articulated in section 4.14.1 of the planning scheme as:

(a) the existing and proposed public open space network (but not all future local parks in the developing urban area); and

(b) major existing outdoor private recreation facilities.

(a) a connected, comprehensive open space network that:

(i) meets many of the leisure, recreation and environmental education needs of the community;

(ii) protects and conserves significant natural values and ecological processes; and

(iii) provides visual relief to urban development, protects scenic values and enhances Toowoomba's 'Garden City' image; and

(b) land in the Environmental Precinct, City Parks Precinct or Local Parks Precinct is for the provision of public (not private), recreation facilities. Land not currently in public ownership in these Precincts is to be progressively acquired for open space purposes.

(3) The Open Space zone contains the following precincts as shown on the Zone Map.'

3.6.2 The Intent of the City Parks Precinct is expressed as:

(a) the protection and enhancement of the hydrological and ecological processes, values and function of the creek system in accordance with adopted Stormwater Catchment Management Strategies;

(b) the provision of visual relief to the urban area;

(c) the provision of public facilities, at a city and regional level, to meet the outdoor recreation needs of the community. Most of the City's public sporting fields and facilities are to be located in this Precinct but not to the detriment of the creek system or the established informal recreation parks;

(d) the provision of a safe, pleasant and accessible pedestrian and cycling network throughout the City;

(e) the provision of public spaces to showcase a range of garden styles and horticultural displays;

(f) the provision of public spaces suitable for community gatherings, display of public art works and commemoration of people and events of City and regional significance; and

(g) ancillary provision of areas and facilities to meet the recreation needs of the surrounding local community.

3.6.3 As the Glenvale site includes land within this Zone and Precinct, it must be assessed against the Intent Statements and with reference to the Assessment Table. This is included in section 4.14.2 of the scheme and requires that all commercial uses are impact assessable inconsistent uses. Clearly, this zone is not intended for commercial development of the type proposed and it must be viewed that the proposal is in conflict with those provisions."

in his report, Exhibit 9. The conflict referred to relates at least to the conservation and visual/scenic aspects in 4.14.1(2)(a) and to jeopardizing the intent that the relevant land be acquired in (b) following. At present, of course, the land is privately owned and its owner or occupier would be entitled to exclude members of the public, but it could reasonably be expected that no significant development would occur of the overall site without the relevant area ending up in public hands, whether as part of park provision or on some other basis.

[7] As Glenvale's proposal currently stands, the invert of the water course at the bottom of the valley (accommodated east to west by a culvert under Greenwattle Street and a concrete spillway constructed as part of the road surface) continues through the site itself towards the west. The present design appears to envisage a three metre setback for the supermarket and the speciality shops which are separated by four metres, allowing some view through. Landscaping possibilities will be limited as it is anticipated part of the three metre strip will be occupied by the batter of the four metre (or more or less) foundation required to support a floor level for the shops of RL 605.5. The heights of the buildings (12.5 (exclusive of any structure to accommodate plant) and nine metres or so above the back of the water course) will be accentuated by the further falling away of the terrain to the north. In the east, perhaps for 17 metres or so, there is proposed to be a ramp in the setback to facilitate rear access to the shopping centre from the public open space it adjoins on the north. This will lead to a cantilevered slab protruding beyond the specialities building to or virtually to the site boundary, to allow access around the east of that building to the al fresco eating area. The threat to hydrological and ecological processes recognised in the City Parks Precinct Intent has now been dealt with by Mr Larkins who proposes that the filling and retaining wall under the projecting slab at the north east corner be recessed sufficiently to leave the watercourse unimpeded. This will create a four metre high "undercroft" which it was hinted might attract vermin and undesirable human elements and offend design principles against incorporating in developments areas not much frequented or easily surveilled. I think this concern (reflected in one McNab advanced as a basis for resisting the provision of a pathway along its own southern boundary from public open space in the west to Greenwattle Street) is unduly pessimistic. The "undercroft" will be fully visible from Greenwattle Street and further east, also from the public open space to the north, far to the west. While (1)(a) of the Intent is catered to, (b) and (d) are components that probably should be, but have not been addressed. That comment is made while acknowledging the evidence of Mr Simpson, Glenvale's landscape and visual amenity expert, who expressed interesting ideas of what could be done with appropriate planting up the retaining wall, imaginative design of the ramp (not to mention the facades of the buildings) and so forth.

[8] The circumstances are that, along a significant part (if not the whole) of the northern frontage, screening by trees of the large built forms intended for the site will require planting on the adjoining public open space land. It is unusual to rely on the other land for provision to ameliorate impacts of a development. Something on similar lines, but of smaller scale, has been suggested by McNab: see [24]-[25].

[9] The opposition to intrusion in the north east corner of substantial built form above (privately owned) open space zone and city parks precinct land was expressly founded on some supposed principle that, just as the ground is to be left open, so should be the space above, without limit. There must be many circumstances in which the principle is theoretically infringed by the bridging of creeks, and the like. In a different context, we are becoming used to the roofing over of public thoroughfares to create space that may be used for other purposes, including commercial ones. Instances in Brisbane are the roofing-over of parts of Ann Street and of the Queen Street Mall and the use made of air space above Vulture and Stanley Streets by facilities of the Cricket Ground at Woolloongabba. Invited by me to nominate precedents for Glenvale's proposal, Mr Ryter has, for the moment, come up with a development incorporating balconies projecting over open space or public open space he said was occupied by a lake; the circumstances are somewhat different in that the land where the lake was located was originally the developer's, but to become a lake to be enjoyed by the public as part of the relevant approval. I can see no compelling reason why, in appropriate circumstances, development (even for commercial purposes) in the airspace might not be acceptable if sufficiently in the public interest. The public interest might be observed in various ways, including the provision of some countervailing benefit enhancing the values of the open space area to those who use it. No such benefit can be pointed to here. Provision of the new shopping centre can hardly qualify where a rival developer is ready to proceed with a comparable project in the near neighbourhood which does not intrude upon the open space zone.

[10] McNab's site of 1.6 hectares will reduce to 1.4 hectares because of dedication of land for the widening of Glenvale Road. Rather than offering the prospect of a group of buildings, it will be a single structure incorporating some design features exceeding what pure functionality would call for. I do not know whether architectural reference is being made to the large Baptist Church on the very large corner site immediately across Greenwattle Street. The supermarket (3,100 m2, reduced from 3,200 m2 as previously proposed in deference to the enthusiasm of the Council and its consultants for a wider southern setback) will not dominate the built form, rather, a "clerestory" covering the internal courtyard with the supermarket at its head opposite the entrance, speciality shops and two small kiosks adjacent the travellators (aggregating about 2,000 m2 of lettable area) on either side. The rooftop plant structure above the supermarket will challenge the "clerestory to internal mall" for height, but not for bulk, its extent, the elevations would suggest, being less than a quarter when viewed from north or south, less than a third when viewed from the west (it seems not to be visible from the east). There is near consensus of relevant experts that the design has merit visually.

[11] The layout proposed, including traffic arrangements, has undergone considerable evolution. Setbacks have changed; for example, even during the course of the appeal hearing there was another such change, to increase to six metres from the southern boundary the setback of the building which in that location will be lofty, as the site falls away to the west and the south from its road frontages. An advantage (replicated in Glenvale on the South Street side, at least) is that the shops will be less dominating from the street; another is that undercroft car parking can be provided to the extent of half of the total provision made (which exceeds by about nine spaces the planning scheme requirements, allowing some flexibility should sacrifice of spaces permit desirable changes to arrangements in future). Travelators will connect the underground parking with the shopping area. They will run to and from the mall internally. While final determination of the layout of speciality stores is premature, the proposal is to have shop fronts to some specialities internally, to others externally, which will add interest to the development from the streets.

[12] I harboured concerns about traffic arrangements as illustrated on plans before the court, particularly as regards congestion around the principal street access to and from the site in Glenvale Road, close to the western extremity of the site, where paths of pedestrians, patrons' vehicles (about three quarters of movements in and out) and service vehicles will converge and/or cross. As Glenvale argued, this tends to separate the development from the public open space adjoining the western boundary. Vehicles entering from Glenvale Road by a left or right turn will have to execute a sharp left hand turn within the site and, to avail themselves of the undercroft parking, a sharp right hand turn (potentially across the path of oncoming traffic) to the down ramp. Although "medium rigid vehicles" servicing speciality stores will have ground level parking near the north-eastern corner of the building, the larger service vehicles will be restricted to the west of the site where, once past the short section of roadway to be used by patrons, they will have exclusive use of the tarmac area. There is to be provided a turning zone fenced off from the ramp and the roadways to which patrons have access which large articulated vehicles may use for turning, so as to reverse to the supermarket loading dock which is located about mid-site. Traffic movements on the site will have minimal noise impacts off it. To the west of the site is public open space. The Greenwattle Street entrance near the site's southern boundary is restricted to left-in, left-out along a short stretch of driveway. All boundaries with the exception of Greenwattle Street adjacent the proposed bus stop there are proposed to be planted with trees for screening purposes.

[13] Reference to the traffic arrangements proposed when McNab's development application was originally made confirms the considerable changes made after mature consideration and collaboration by experts. Originally, they were designed consistently with Council intimations that access should be from Greenwattle Street rather than Glenvale Road. The primacy now accorded the Glenvale Road entrance may owe less to Glenvale Road's being the more convenient access, as a major east-west road link, than to the important safety consideration that the Greenwattle Street entrance was seen as too close to the intersection, which will certainly become busy, if it is not already. It is likely to be signalised at some time and the undesirability of having a major shopping centre entrance so close to a signalised intersection where queuing of vehicles is anticipated is clear. The access to the undercroft parking has been much improved. Patrons entering from Greenwattle Street, originally conceived to be most of them, would have to traverse the eastern, northern and western roads round the building to access the undercroft parking. During the appeal hearing, the current proposal for pedestrians to cross the Glenvale Road entrance some distance back into the site (where the public footpath was to be diverted) was abandoned; this change will improve sight lines. Anticipated traffic volumes, even at the Thursday evening and Saturday morning peaks are predicted at lower levels than I had surmised and, in the end, my concerns about traffic matters on site are allayed by the near consensus reached by the experts, whose skills and judgment have been brought to bear collaboratively over a considerable period. McNab's application was lodged at the end of September 2006.

[14] In respect of both proposed developments, there was more contention about traffic arrangements off site. These included suggested difficulties large articulated vehicles might have negotiating a sharp left hand turn from Glenvale Road into the McNab site or turns in or out of the driveway of an established nursery/garden supplies business in Greenwattle Street opposite Glenvale's proposed entrance there, attributable to the accepted need to preclude right hand turns out of the site by a raised median strip. The experts are confident such issues can be worked out satisfactorily.

[15] Another traffic issue still to be finally resolved concerns the treatment of the intersection adjoining each site, where at present there is a single lane roundabout. This may be seen as a more pressing issue in respect of McNab, given the importance of Glenvale Road as an east-west artery, but in neither instance was upgrading of the intersection seen as urgent, whether it be in the form of addition of a second lane to the roundabout (something considered for McNab) or by signalisation. Either improvement would require acquisition of land, it seems, and from owners other than the relevant developer. The idea is abroad of widening Greenwattle Street by taking (among other land) a strip along the Baptist Church frontage; this may not be attributable to the McNab development to the extent it might have been had the principal road access been taken from Greenwattle Street. Whatever the extent of it, this potential need to take land of third parties was pointed to as a reason for McNab's development application to be rejected, or be given no more than a preliminary approval. I disagree with that approach (made by reference to Prentice v Brisbane City Council [1966] Qd R394), which has less merit than it might have had, given the enactment of s 5.5.1 of IPA, which would authorise the Council's taking of land should a development in its view create a need to construct infrastructure on that land. This is an aspect that does not have to be resolved by the court at this stage, although it may need consideration when conditions are finalised. The same comment is apposite in relation to signalisation, the burden of which may to a greater or lesser extent justly be imposed upon a development. If the court determines a development can go ahead, such matters will have to be resolved when conditions are formulated.

[16] Mr Quinn, the Traffic Engineer called in Glenvale's and its supporters' case, relied on the approach he said was taken by the Department of Main Roads in which a 10 or 11 year timeframe is employed in determining whether or not some new or enhanced infrastructure such as signalisation is required, considering all relevant factors. If the answer is affirmative, the development, even if not the only contributor to the need, has to bear the cost; if the answer is negative, then, even if contributing to a need later arising, the development escapes. Mr Quinn was good enough to include in his report Exhibit 16 a copy of Neilson v Gold Coast City Council [2004] QPEC 089 in which Senior Judge Skoien considered the DMR guidelines, but found them inappropriate to apply against a development. He scaled back the "bring forward" cost of works for purposes of assessing an external road works contribution, which, in the result, was made proportionate to the relative contribution of the development to creation of the need for the future works. This is another matter for the conditions stage, as is the matter of signalisation or an enhanced roundabout. No traffic consultant thought there was an immediate or even a short term need for signalisation in terms of anticipated traffic volumes. It is considerations of pedestrian safety that favour signalisation. Minds may differ, but the cautious and better view appears to be that signalisation would be desirable as from the commencement of trading of McNab's shopping centre. A corresponding assessment was resisted by Glenvale, which proposed a pedestrian crossing across South Street from the entrance there. I would observe that existing and likely residents of areas to the south (and the south-east, too) are likely to be crossing at the Greenwattle - South Street intersection after travelling northwards to it along Greenwattle Street. On that basis, as the number of residents within walking (or cycling) distance increases, signalisation would become more appropriate. It may be recalled that South Street is likely to remain a comparative backwater, given that the connection through to Boundary Street is unlikely ever to eventuate, although uses in the "block" north of it, such as the schools, may generate traffic in South Street. The DGSP (Draft Glenvale Structure Plan) envisages terminating South Street east of McDougall Street (a lake and/or surrounds to take over the intersection), the link to be replaced by a new dog-leg "boulevard" connecting a few hundred metres to the north and east.

[17] Mr Quinn's preference that shopping centres not take their access from arterial or principal roads (an approach which would favour Glenvale with its South Street access) is honoured in many shopping centre developments in Queensland. The Council may have been thinking on similar lines in favouring Greenwattle Street access, even though that street is envisaged as an arterial road. I agree with Mr Quinn that we have here a factor telling in Glenvale's favour, especially when married with the possible implications for the residential and commercial occupants on the northern side of Glenvale Road; see [22] and [23] below. It is not a decisive or compelling factor, in my view. While we should not readily accept outcomes that are "second best", the court acknowledges the reality that compromises often have to be made, that the benefits a particular development may bring may outweigh the adverse impacts and problematical aspects. As it was put, we do not expect to achieve a "counsel of perfection".

[18] Occupying the corner site immediately across Glenvale Road from the McNab site is an older style line of shops with parking immediately in front. Traders there at present include a bakery, convenience store, liquor store, hairdresser and newsagency. The owners of the Centre made submissions against both the McNab and Glenvale proposals. Their concern about the threatened competition is supported by the economic experts, who thought that McNab would take most of the trade in the short term; Mr Leyshon says 60%. He and Mr Brown predicted slightly reduced impact if Glenvale's centre in South Street went ahead; Mr Owen estimated an insignificant effect of 5% to 10%. Here I would prefer the majority view, thinking it is likely that the diversion south along Greenwattle Street to access a newer, larger shopping centre anchored by a Woolworths with considerable parking at the shop fronts would not be much of a deterrent. The Glenvale Convenience Plus submission against the South Street proposal complained that its newsagent was already committed to that proposal. While Mr Owen doubted that the existing Centre could ever compete with or gain any advantage from its proximity to McNab, I accept the opposed view that after a year or so of relatively crushing competition, it has good prospects of revival, indeed flourishing by reason of its proximity to McNab. In this aspect of the appeals, and generally, in recognition of the introduction to Glenvale's written submissions, I would make the following comment: that there may be "numerical preponderance" of expert planning (or traffic or amenity) witnesses, as the submission observes is not and has not been used by the court in any warrant for acceptance of the majority view; Glenvale doubtless regrets the disappearance of support from Wilsonton and expert evidence it might have presented. I have set out to evaluate expert opinions on their merits, aware they should be rejected if based on facts not proved or if unconvincing in their reasoning.

[19] There was some discussion of the effect of parts of the planning scheme reproduced by Mr Venn in his report, with emphases that highlight those parts most relevant presently:

Toowoomba is a regional centre with a diverse economic base that builds upon the City's strengths in manufacturing, education, community and health services, retailing and commercial activity, and provides a wide range of regional and local employment opportunities.

(1) Facilitate and strengthen a hierarchy of Centres (based on function and catchment) that:

(a) enhances Toowoomba's role as the principal regional service centre for South West Queensland and northern inland New South Wales, and as an employment centre for retail, commercial, industrial, entertainment, cultural, tourism, education and community and health service activities;

(b) enhances the City centre as a Principal Activity Centre in South East Queensland and as a local and regional centre for retail, commerce, government, entertainment and cultural facilities;

(c) best caters for the retail, commercial and community service needs of the existing and future population; and

(2) The hierarchy consists of existing Centres (expanded in some cases), as well as locations for new Centres in established and developing parts of the City to serve future population increases. The Centres hierarchy comprises:

(a) the regional centre, which corresponds with the Principal Activity Centre in the South East Queensland Regional Plan 2005-2026 - precincts within the zone indicate the preferred location of activities with the highest intensity preferred in the City Core Precinct.

(b) the sub-regional Centres at Kearneys Spring and Wilsonton and the Clifford Gardens Shopping Centre; and

(c) suburban Centres that cater for the retail and related needs of the community at the neighbourhood and local levels. Neighbourhood and Local Centre Precincts indicate whether the centre is meeting a local or neighbourhood need.

(3) Other Centres in the hierarchy are not to compromise the role of the regional centre. Large offices and other regionally significant businesses are encouraged to locate in the regional centre rather than in other Centres.

(4)) In relation to any proposal for additional floor space outside a zoned centre:

(i) there is a need for additional floor space to serve the community. This will be considered in the context of such factors as additional population arising from in-fill residential development and the need for more modern floor space than may exist in older local or neighbourhood centre buildings;

(ii) the existing Centres do not, and cannot, satisfy that need; and

(iii) the economic viability of any existing centre will not be adversely affected; and

(b) where the additional floor space is justified by (a) above, it is provided as an extension of an existing centre, rather than as a new centre.

(5) No existing centre is to expand to the next level in the Centres hierarchy by virtue of size or function.

(6) The upgrading and refurbishing of existing Local Centres is supported (including small expansions in some cases), so that local communities have up-to-date and modern local centres and an expanded range of local services.

(7) Allow for adaptation to economic and retail trends and cycles by allowing a reasonable range of uses in Centres.

(8) Cluster non-Residential ues (retail, commercial, community, recreational), apart from those that may require large areas of land such as churches, into 'community nodes' to encourage community identity and develop economic synergies rather than disperse them throughout Residential Areas. The community nodes consist of Centres identified in the Suburban Centres Zone along with the adjacent Suburban Centre Support Precincts.

(9) Ensure that the design and development of the Centres and community nodes is good quality, legible and coordinated and satisfies the needs of customers and businesses."

In terms of the foregoing it would be correct to have concern for the viability of Glenvale Plus Convenience Centre. The foregoing discussion explains my view that in the long or medium term (notwithstanding what will happen at the outset) there is no threat to viability.

[20] Debate took place about whether McNab would be a usurper in the hierarchy referred to in the provisions quoted. In particular, there was argument as to whether Toowoomba had established a three level hierarchy in terms of 2.2.1(2)(a)(b) and (c) or a four level hierarchy because (c) creates both neighbourhood centres and local centres. In other parts of the planning scheme the two are dealt with in different ways. On no view is McNab threatening to create a level (a) or (b) centre. As to (c) Wilsonton Holdings Pty Ltd was formerly active in challenging both of the present proposals: see the views attributed to its planner, Mr Reynolds, in the Town Planners' joint report in paragraphs 11 to 14; whatever view is taken of the (c) issue, I am not persuaded that McNab (or Glenvale) creates any conflict with the hierarchy. McNab has the advantage of satisfying (4)(a) and (b), as well as the following numbered paragraphs (as for 2(iv), in the sense that it is not offended).

[21] A special circumstance that exists here is that the Glenvale Plus Convenience Centre has changed hands very recently. As the L J Hooker Commercial "Information Memorandum" prepared for the sale by tender dated November 2007 (exhibit 21) establishes, the market was clearly informed that "the development application" by McNab Developments has been approved as a preferred site by Toowoomba City Council, accompanied by advice that the approval was under appeal. The further information of potential relevance in this context is that the terms of the existing tenants have no more than one year or two to run. The court has the comfort of knowing that there will be no struggling traders committed to burdensome leases. It is not known whether the sale was considered advantageous by the vendor. That is by the by. The purchaser may be presumed to be satisfied with the bargain and confident about the investment. While Mr Hinson SC made the point that the planning decisions ought not to be based on commercial judgments that business people appear to have made, but rather on the planning documents, it would be unrealistic to disregard this sale and its implications. Whether or not one relies on its being bolstered by economic evidence I have accepted, the sale offers some assurance that the court need not be concerned about "blight" or the Centre's becoming disused. The evidence suggests that, at the worst, so-called "tenants of opportunity" would be found. I would expect a better outcome for the community than that. The other aspect raised in Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 of possible loss to the community of services of the kind provided by a threatened centre is not a concern. Speaking generally, it can be expected that anything lost will be replaced in the McNab Centre.

[22] A different kind of impact in prospect for the existing shopping centre is that signalisation of the intersection is likely to force relocation of the entry/exit in Glenvale Road closer to the western boundary of its site. The terrain slopes in such a way that a steeper driveway would need to be accommodated; one would assume that this is possible in engineering terms, maybe with some loss of parking. It is not so much the McNab development that would bring about this requirement, but, rather, signalisation of the intersection; queuing of vehicles would compromise the movement of vehicles across the access. There is a second entrance in Greenwattle Street close to the intersection, but on the "departure" side. For most patrons that would be less convenient than Glenvale Road access.

[23] A more general disadvantage for the shopping centre and the residential properties further to the west on that side of Glenvale Road is that the availability of a right-hand turn in (or out) may be lost. Experience is that new restrictions of this kind on long standing vehicle manoeuvring possibilities people may value should be assessed as negatives, but they are inevitable concomitants of finding oneself in a growing city. In practical terms, the extent of disadvantage depends on distance from the nearest round-about or location where a u-turn is available.

[24] Headlight glare from vehicles exiting the McNab site is another concern. Speaking generally, I would access the fleeting intrusions of headlight glare sweeping as vehicles manoeuvre as another instance of the impacts on traditional peaceful amenity that growth and progress bring. It is potentially of real concern for the residents located immediately across Glenvale Road from the proposed shopping centre driveway. The driveways are essentially opposed; a short distance up the residential driveway one encounters a window more or less directly in line with the direction of travel for vehicles exiting the shopping centre. Mr King's analysis is that, the northern side of Glenvale Avenue being considerably more elevated than the southern, glare from patrons' vehicles (unless the lights have inappropriately been set on high beam) ought to be at too low a level to cause nuisance (one assumes that care will be taken in constructing driveway levels that preserve this advantage). There remains a potential for nuisance attributable to heavy vehicles with higher set lights, and the balancing exercise one is led to where a useful "needed" facility like the shopping centre impacts adversely on a particular household. (Mr Hinson cited Skateway Pty Ltd v Brisbane City Council (1980) 6QL 207 for the proposition that in such cases the stage may be reached where "it can in truth be said there is no need".) One would not expect such light intrusions to be particularly frequent. As was observed more than once during the hearing, conditions limiting hours of operation may be useful in such a context. The room or rooms affected may be effectively curtained already, or easily curtained, and considerations of privacy in hours of darkness may dictate curtaining in any event. McNab offered to pay for the cost of a solid timber fence along the boundary of the opposite property, incorporating an automatic sliding gate across the driveway, along which driveway, as it happens, annoying beams of light would shine. I sympathise with Mr Simpson's observation that it is unattractive to be resolving one bad situation by creating another - which he says one would do by introducing into this neighbourhood where the residences address the street across open front gardens (typically well maintained) the unfriendly element of a high fence, which may well be replicated by neighbours and deprive the whole locality of its present valued ambience. On balance, I think that the recording of McNab's commitment (which may not be taken up, or be taken up in some modified way) represents a reasonable outcome on this aspect.

[25] I am not dissuaded by arguments referring to the oddity of a developer undertaking or being required to do (or provide for) work on private land owned by others, or indeed on public land. Proposals for dealing with this headlights issue included provision of planting on the footpath on the northern side of Glenvale Road to screen out headlight glare. In principle, I see no difficulty about a condition requiring a developer to assume the physical or financial burden of that. Given the location of existing physical features and other considerations such as the preservation of site lines for any driver coming out of a site, the practicality of proceeding in this way seems highly doubtful.

[26] The joint report of the parties' expert planners (also signed by Mr Reynolds, who had been engaged by Wilsonton Holdings Pty Ltd) in paragraph 10 noted the Council's adoption in July 2007 of the DGSP which had "been sent to the State government for a State interest check and is expected to be publicly notified in early 2008." The planners agreed that the weight to be given to the DGSP was a matter for the court, Messrs Schomburgk and Venn emphasising that it "reflects Council's current planning intentions for the locality, based on recent planning and economic studies." Council has not gone beyond the stage of passing a resolution for preparation of amendments to its planning scheme to facilitate the incorporation of the DGSP; it has not passed a resolution to proceed with the amendment itself. The procedures described in Schedule 1 of the IPA are yet to be commenced. Given the current amalgamation of the Council with neighbouring Councils (including Jondaryan) is not clear when, after April 2008, the matter will advance. The Glenvale Structure Plan is not likely to have an effect before the end of the year at the earliest. That said, however, the document (exhibit 20) is the product of an apparently thorough process which has involved approaches to and feedback from relevant branches of the State Government and "stakeholders", over and above the general public, who have had the opportunity (and taken it up) to present their views about the proposals under consideration. McNab submits that the existence of Structure Plans for contiguous parts of Toowoomba underlines the Council's seriousness.

[27] The original concept plan (map 06 opposite page 47) in Exhibit 20 proposed for consideration for a "local centre" four sites: Glenvale's, McNab's and the south-eastern and south-western corners of the Glenvale Road - McDougall Street intersection. The conclusion to favour McNab was made in the face of feedback supporting the view that "our local centre should not be located at the current proposed position due to traffic flow and proximity to Wyalla and Clifford Gardens (alternate areas include Sunshine Super Bowl Region)" (page 51) and (among the "stakeholder responses") from A Beck - Glenvale Properties Pty Ltd:

"▪ Council should re-consider its decision on the positioning of the future local centre.

• A Beck has existing contractual agreements concerning developing a local centre at 527 South Street (Discussed with TCC 17-5-06).

• The site was previously noted as a potential site for a future Local Centre.

• South Street should be designed to become the major distributor within the locality as it has similar connectivity to the Gore Highway."

It cannot be said that McNab was selected in ignorance of alternatives. The final document, which proposes the McNab site as Suburban Centre Zone-Neighbourhood Precinct, is dated 7 November 2006. Glenvale's development application was lodged 11 July 2006, McNab's on 29 September 2006.

[28] In the DGSP, the executive summary points to Part 1 as comprising the Key Recommendations and proposed amendments to the Toowoomba City Planning Scheme, Part 2 as the Glenvale Structure Plan to be reviewed by Council and incorporated in the Scheme and Part 3 as containing supporting information and consultation activities. The Structure Plan area adjoins Jondaryan Shire on the western side of Boundary Road and is bounded by Glenvale Road to the north, Spring Creek South to the south and Greenwattle Street to the east. The consultation is said to have included "meetings, two public briefing sessions and the exhibition of the Draft Structure Plan material on Council's website". There is recommended amendment of the Planning Scheme to introduce the "Strategic Importance of the Glenvale Structure Plan" and insert it into the Planning Scheme along with new residential and housing zones and "precincts" within them (hillside residential, urban residential and small lot housing), along with proposing other Council policy and initiatives, for example intersection upgrades in Greenwattle Street at Glenvale Road, South Street and Alderley Street, further south), establishment of lakes in the lower lying areas and provision for design of key open space areas and corridors - all according to parameters set out in the South East Queensland Regional Plan. There are two Structure Plan Maps in Part 2 - Land Use Elements (figure 1) and place making features (figure 2). The Glenvale site (apart from the north eastern corner being City Parks Precinct) is designated small lot housing precinct (15 dwelling units per hectare) as part of the mixed housing zone. Also in that zone immediately south of the McNab site are two larger parcels and some additional land in the same zone but in the urban residential precinct (20 dwelling units per hectare). The northern of those two parcels whose northern boundary coincides with McNab's southern one, and which is 2 hectares in area has the special status within that zone of "suburban centre support precinct". The McNab site is designated suburban centre zone - neighbourhood precinct, as noted. In the DGSP in 3.6.5 one learns that the development intended is "in accordance with the planning scheme's Statement of Intent of the Mixed Housing Zone-Suburban Centre Support Precinct" with the following refinement:

"1) The precinct designation applies to land adjacent to the land identified for the Neighbourhood Centre at the corner of Glenvale Road and Greenwattle Street".

The Glenvale Neighbourhood Centre is intended to be developed in accordance with the Statement of Intent for Suburban Centre zone - Neighbourhood Precinct of the Planning Scheme with following refinements:-

1. The neighbourhood centre will be subject of a detailed master planning exercise which:-

1. maximises exposure to passing traffic on both streets and achieves a high degree of accessibility to Glenvale and Jondaryan residents;

2. includes Commercial, Community and Recreational Uses, as well as Special uses such as a Bus Passenger Terminal, and Local Utilities;

1. Complements and enhances the existing commercial and retail activities on the opposite corner of Greenwattle Street and Glenvale Road; and

1. Accommodates a suitable mix of commercial/retail activities and other community support facilities and services (eg childcare, health services).

2. Development which may also be permitted where the Council is satisfied that the proposed development will meet a proven community need includes:-

• - Home-based Business or Display Home/Office;
  • - Accommodation Buildings;
  • - Aged person housing/Care; or
  • - Multiple Dwelling Units

[29] Justification for that 3.7 provision is found in Part 3 at 6.5:-

"The Toowoomba Retail Study (2005) indicates that there will be a need for an additional Neighbourhood Centre on Glenvale in the future. The Centre will be necessary to support the growth in Glenvale and adjacent residential areas in Jondaryan Shire.

A Neighbourhood Centre for Glenvale is preferred to be located at the corner of Glenvale Road and Greenwattle Street. This location fulfils the following criteria:-

● Suitable topography and aspect for commercial activities

● Maximum catchment accessibility for both Glenvale and Jondaryan Shire residents

● Site area suitable to accommodate approximately 3,500 - 5,000 sq metres in nett lettable area

● Direct access to the primary pedestrian and cycle network

● Complements the existing neighbourhood precinct (on the opposite side of Glenvale Road) to service the residential and business community."

The Intent of the Suburban Centre Support Precinct (shorn of special provision in (3) for Harlaxton) is set out in the following provision:

"4.7.1 [Mixed Housing Zone - Suburban Centre Support Precinct - Statement of Intent]

(1) Houses and lot reconfigurations for Residential Uses (other than Multiple Dwelling Units) do not occur in order to reserve the land within the Precinct for the preferred uses;

(2) Veterinary Clinics, Community Clubs, Community Facilities, Child Care Centres, Medical Centres, Places of Public Worship, Educational Establishments and Indoor Recreation Facilities are clustered around particular suburban centres in order to:

(a) contribute to the creation of community nodes (with the Suburban Centres Zone as the core) with which the surrounding population can identify and which gives the local community a sense of place;

(b) maintain or improve the attractiveness and viability of the suburban centres as a place to visit and do local business; and

(c) reduce potential conflicts between Residential Uses and non-Residential Uses that might otherwise occur if the non-Residential Uses were located throughout the balance of the Zone.

(4) development complements, not replicates, the core Suburban Zone; and

(a) exhibit typical characteristics of low density residential development; and

(b) may have a scale and bulk greater than, but must still be compatible with, that prevailing in the surrounding Residential Area."

In relation to the above passages, and the establishment of a "node" in that location, it should be noted that the northern neighbour of "the existing commercial and retail activities on the opposite corner" is an established child care centre.

[30] The McNab proposal's proponents could hardly ask for more complete support than the DGSP sets out. One may surmise that, if only in general terms, some thought was given to the problematic impacts of the proposal discussed in these reasons, with the judgment being made that those could be managed to be kept within acceptable levels, and were not likely to stand in the way of a development like McNab's even though it comes in at the top end of the nett lettable area range.

[31] The question for the court is whether any weight at all may be placed upon the DGSP, which is still very far from becoming part of the Planning Scheme for Toowoomba. It may never be incorporated, or, if incorporated, it may be in significantly amended form. Although exhibit 20 sets out views (which are not at present final ones) of the State Department of Natural Resources Mines and Water, Office of Urban Management, Environmental Protection Agency and Queensland Transport, there has been no formal "consideration of State interests" for Part 2 of Schedule 1 of the IPA; nor, despite such involvement of the public as there has been, has the formal "consultation stage" been embarked on. The DGSP's greater potential for significance may lie in its constituting a factor against the Glenvale proposal. It is a proposal which would "cut across" the planning intentions identified by withdrawing the Glenvale site from its projected future of small lot housing and frustrating for the foreseeable future (since there is a need for only one supermarket-based shopping centre) the development envisaged for the McNab site and the supporting two hectare precinct immediately to the south. The Court of Appeal helpfully considered the Coty principle in Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41, a pre-IPA decision, at 61-62 (Fitzgerald P), 76 (Pincus JA) and 77 (Mackenzie J). Subsequently, the Coty principle has been applied on occasions, for example Chellash v Maroochy Shire Council [2000] QPELR 139, Sol Theo as trustee for the Solon Theo Family Trust v Caboolture Shire Council [2001] QPELR 101, Edgarange Pty Ltd v Brisbane City Council [2002] QPELR 183, Kentbrock Pty Ltd v Gold Coast City Council [2003] QPEC 20; [2003] QPELR 587, Jones v Redcliffe City Council [2004] QPELR 275 Ugarin Pty Ltd v Logan City Council [2004] QPELR 142 and Iverach v Cardwell Shire Council [2006] QPEC 114; [2007] QPELR 196. See now Hervey Bay City Council v BGM Projects Pty Ltd [2007] QCA 298 at [38]. While great store has been set by draft planning arrangements having been advertised if they are to be accorded any recognition, Fitzgerald P in Yu Feng appeared to take a more flexible approach. The particular circumstances of the history of the DGSP arguably make that appropriate here. One would expect practical people to make some reference to the DGSP in organising their affairs, rather than ignore it as no pointer at all to what the future may hold. The outcome of these appeals is the same whether the DGSP as such is accorded some weight as an indication of the planning authority's likely intentions for the area or whether it is regarded as no more than another expert (it is to be hoped) opinion about relevant planning matters accompanied by supporting detail and argument. That supporting material would provide some justification for the court's reaching the same conclusion as to optimal planning outcomes for the area, and for preferring, since a choice must be made, unless both are to be rejected, McNab over Glenvale. It is not that the DGSP embodies the same preference: it is that its arguments in support of that preference appear sound. They are amply supported by other evidence in these appeals.

[32] That there is scope for only one new shopping centre in the general area is universally accepted. That there is a need for that one is amply demonstrated, as is the capacity of each proposal to satisfy that need. The court has on other occasions been called on to choose between competing applications, either of which, standing alone, might have been accepted. See for example Ugarin Pty Ltd v Logan City Council [2004] QPEC 1; [2004] QPELR 392 and, more recently Capricorn Green Pty Ltd v Livingstone Shire Council [2007] QPEC 14; [2007] QPELR 410. In Vynotas Pty Ltd v Brisbane City Council [2001] QPELR 14 an existing approval (not acted on) for a similar shopping centre near to the correspondent's proposal (but smaller) did not stand in the way of a second approval: see 27ff. Here, the court should go along with the parties' unanimous urging that there should be no more than one approval.

The sites may be considered equal so far as neither is presently designated Neighbourhood Precinct or on a site nominated as suitable in a "Structure Plan". Glenvale asserts its superiority by the following argument:

(b) the planning scheme does not explicitly contemplate the creation of such new centres, but explicitly requires that:-

(i) such new centres are not created by expansion (or "consolidation") of an existing identified local centre so that it is converted into a centre further up the hierarchy;

(ii) such new centres do not adversely impact upon the viability of existing centres already identified in the planning scheme;

(iii) such centres be, in the context of their neighbourhood centre function (as distinct from a local centre function) conveniently located to serve that neighbourhood function;

(iv) subject to that convenience requirement, such centres be separated or buffered from residential development to minimise adverse amenity impacts on existing and future residential areas;

(c) the Glenvale proposal meets all those requirements or criteria;

(d) the McNab proposal meets only the convenience requirement;

(e) the Glenvale proposal is therefore demonstrably superior to the McNab proposal in terms of what is required by, or aspired to by, the planning scheme;

(f) the Glenvale proposal ought to be approved and the McNab proposal refused."

My view is that the shortcomings alleged against McNab are not made out.

[33] Glenvale may be seen as superior in taking access from quieter roads and in the absence of existing surrounding residential development which may suffer amenity impacts. The obverse is that likely new residential development (small lot housing, if the DGSP comes into effect) will be constrained by the establishment immediately across the boundary of a lofty 3,200 square metre supermarket building with rooftop plant area and by heavy vehicle movements between the supermarket building and the boundary, often to be accompanied by alarms to indicate reversing. McNab's heavy vehicle impacts (confined to a much shorter length of driveway) will be adjacent to public open space not likely to be much frequented at night. The McNab buildings will tower over the residential development likely to the south; however, the DGSP (for what it is worth) designates that two hectare parcel suburban centre support precinct, so that the listed non-residential uses are welcomed. Glenvale asserts it deserves preference on account of its more modest impact on the Glenvale Convenience Plus Centre. This aspect is dealt with at length elsewhere, to the broad effect that McNab will bring real difficulty in the short term, but assist in the long term, whereas Glenvale will not have that helpful effect, rather will remain a competitor of greater size in the long term. There was no expert support for my suggestion that the ten-pin bowling facility and the landscaping supplies/nursery business immediately across Greenwattle Street could be considered as contributing to a South Street "node", they regarded the mix of uses as too eclectic.

[34] Glenvale asserts with justification that, in a geographical sense, it is located more centrally in the catchment identified by the economic experts. More to the point is the convenience of the new facility in terms of which location would be more beneficial for most customers. Residential development in this western part of Toowoomba for the moment is established north of Glenvale Road, favouring McNab, as does Glenvale Road providing the link to Jondaryan, whose residents are recognised as part of the catchment. For those living east of Greenwattle Street, McNab will be more convenient. Midway between the contending sites mapping suggests there is a collection of up to 50 allotments. There may be something similar further south, near Alderley Street. Otherwise, effectively, all of the land east of Glenvale is industrial to the north of South Street and the land to the south, given its established uses, including a large cemetery, is unlikely to generate much custom for any shopping centre. One witness swore to the enormous number of extra kilometres to be travelled (and litres of fuel consumed) by reason of additional travel down Greenwattle Street, should Glenvale be developed, rather than McNab.

[35] Favourable factors for McNab, in my assessment, include its being located closer to the population served, its access to Glenvale Road, which carries the "through traffic" between east and west. It seems more likely to suit the Council's planning intentions, as the Council's stance in assessing the applications and as a party in the appeals strongly confirms. McNab consolidates commercial activity in a "node" in a confined location, consistently with the existing planning scheme. With its underground parking, it is more space-efficient. The 50:50 distribution, the remaining parking being at "grade" in the open, will give customers a choice. McNab asserts superiority in being located on the homeward bound side for much of the agreed trade area and (here I think it is correct) being within walking distance of more potential consumers. McNab's impacts on adjoining public open space land would be less concerning. McNab also asserts that its proposal is more advanced in design, placing the court in a better position "to properly ascertain its likely form with some precision and, therefore, to properly access its impacts. It is therefore capable of satisfying the existing need now."

[36] Indeed, it is asserted that so much additional work has been done on McNab that the development permit originally applied for (which would permit development to proceed) rather than the preliminary approval which the Council issued, which would necessitate further development applications to be successfully pursued before any development could be undertaken, is now justified. Indeed, the Council at this stage takes that same position. An example of an appeal against the grant of a preliminary approval rather than a development permit succeeding is Frizzo v Caloundra City Council [2004] QPELR 366. In Frizzo, as paragraph [42] notes, work done by the parties and relevant experts in preparation for and during the appeal led to a number of contentious or potentially contentious matters being resolved, so that "issues" in respect of a couple of preliminary approval areas identified in paragraphs [43] and [55] no longer stood in the way of the granting of an appropriately conditioned development permit. In respect of a third "refusal" area, it was considered inappropriate to have "adjustments ... to address the areas of concern left to operational works stage:" see [71]. Here, the Development Approval Decision Notice dated 19 June 2007 given by the Council called for amended plans addressing landscaping and visual amenity issues (including bulky appearance) and the Council's desire for "a visual and physical pedestrian/cycle path connection to the open space areas identified in the Toowoomba Planning Scheme 2003 and the draft Greenvale Structure Plan to respect and provide an appropriate interface between the development and the open space areas", amended plans addressing such requirements to "be submitted upon lodgement of an application for a development permit for Material Change of Use". A revised traffic report was required, Council's concerns including lack of access to the area south of the site in Greenwattle Street, which it was thought should be addressed by right turn entry and exit movements being made available there or in Glenvale Road. Other traffic concerns included a desire to accommodate bus and taxi facilities on site, rather than on the street, unease about semi-trailers entering the site from the east and manoeuvring inside it to create traffic conflicts and the desirability of the addition of a ramp from the undercroft car parking area to the Greenwattle Street access - all sensible concerns by any measure. The formal reasons for decision predominantly extolled the merits of the proposal, but concluded:

"12. Additional analysis is required to identify the ultimate traffic requirements for the Centre, including the design and operation of the traffic signals, which may also require amendment of the plans of development and as such preliminary approval only is recommended."

[37] It is unsurprising that the Council, adhering to its generally favourable view of the McNab proposal (with which it submits Glenvale compares unfavourably) presents the following conclusion:

1. It was entirely appropriate for the Council to grant only a preliminary approval rather than a development permit when the application as lodged was decided. The proposal was bulky, had limited set backs to the southern and western boundaries, limited landscaping and in the view of Mr Venn at that time:-

"McNab, as it stands, is a proposal that attempts to maximise lettable floor area at the expense of appropriate amenity considerations."

1. However, during the appeal process, the height of the building has been reduced, the western and southern set backs have been increased to 6.65 and 6 metres respectively and there has been significant development in proposed landscaping, connectivity to the open space network to the west has been added and there have been refinements to the internal traffic circulation and car parking.

2. The proposal as amended has advanced to a stage that it is difficult to see any utility, if the McNab proposal is ultimately preferred by the Court in these appeals, to compel the proposal to go through another impact assessment process with a likely attendant re-run of these appeals at some later time."

It might be noted that Mr Venn continues to cling to some of his earlier views, for example in respect of "leisure strategies", of which his report says:

"3.2.16 DEO 5, 'Leisure', and associated Strategies that are relevant are:

2.6 Desired Environmental Outcome 5 - Leisure

A city where a network of high quality and useable open space and other facilities offers a variety of recreational, sporting, cultural and social opportunities.

(2) Provide a public open space network based on the major creeks and the escarpment, with linkages to the surrounding Residential Areas, activity centres and sports facilities.

(3) Protect and enhance the functions of the main creek systems to:

(a) link the City's open spaces and main activity nodes;

(b) provide visual relief to urban development; and

(c) provide linear and local recreation opportunities.

(12) Ensure that development adjacent to the public open space network:

(a) respects, and does not compromise, the useability, attractiveness, value and function of the open space;

(b) where appropriate, integrates with the open space; and

(c) allows safe and adequate public access to the open space.

3.2.17 In regard to these Strategies, it must be said that:

(i) both proposals ignore the potential for linkages through residential and local areas via the waterway/open space corridors (Strategies (2) and (3));

(ii) neither proposal pays due regard to the interface with the open space system but, instead, and particularly Glenvale, they compromise both the attractiveness and, more importantly, have the potential to compromise the functionality, of these corridors (Strategy (12)).

3.2.18 In these terms it must be said that both proposals have the potential to compromise the achievement of DEO 5. However, I refer again to, and rely upon, my comments at section 3.2.10 of this report. Both proposals need to be considerably amended to ensure appropriate interface with the contiguous waterway/open space corridors."

I find myself in agreement, and, pertinently, in respect of McNab, which, for all the claims made about connection to public open space in the south west will wall itself off from that public open space, which forms the focus of Council's planning intentions for the area (whether or not one takes into account the confirmation and greater elaboration included in the DGSP). Access into the site for those who ride or cycle from locations in the south and west will be available only by their getting themselves to the footpath in Glenvale Road before entering the site. In this regard, the Glenvale proposal is superior, as such patrons will be offered the possibility of a "back entry" to the shopping centre; they would have the choice of getting to Greenwattle Street either through the centre or through public open space. McNab offers no useful connection through its site to Greenwattle Street. An obvious possibility is to use the now expanded southern setback (made available by a reduction of the supermarket area by 100 m2) for such a connection. McNab have little enthusiasm for such a notion, perhaps being fearful of management and potential liability problems; it was suggested that a useable path there would be unattractive to users, being dominated by the high southern wall of the carpark and surmounting built form and that possibilities of tree planting there for screening purposes would be compromised. I am reluctant to accept that this is so. The evidence indicated that care would need to be taken to ensure that lofty trees planted there did not inappropriately shade or drop their leaves and branches on the land to the south. Whether or not any notice is taken of the "S" designation of that two hectare parcel assigned by the DGSP, there is potential for that parcel, should a development occur there, to make its contribution by way of widening of a link from Greenwattle Street to the public open space to the west. McNab may even choose to incorporate access from it to its centre.

[38] Given the court's intimation of its view that McNab's appeal should be allowed, and that a development permit should be granted to it, it and the Council will doubtless be busy trying to sort out a complete conditions package which should bring to finality those aspects thought incapable of proper resolution last June. If the parties cannot agree, some matters, such as contribution towards external road works, may have to come back to the court. Mr Venn notwithstanding, the Council may end up persuaded that the Greenwattle Street connection is a bad idea. There are all manner of ways of providing it, which might include provision of an easement in favour of the Council, which it can make available for the connection or not, as future events in the area unfold. While the Council agrees, McNab could exclude whomever it liked from the easement area.

[39] It follows from the foregoing conclusions that, there being (by common assent) a place for only one shopping centre, Glenvale's appeal must be dismissed, notwithstanding the merits of its proposal. The success of McNab's means that the Beck and Sunset Super Bowl appeals must be dismissed.