_Metroplex v Brisbane City Council & Ors_

Planning and Environment Court of Queensland|2009-11-11

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND OTHER INSTRUMENTS - Deemed refusal of a development application for a preliminary approval for mixed uses in accordance with a plan of development and variations to the planning scheme - proposed Industry and Business development including up to 98,000 m2 GFA of non-ancillary office space - whether non-ancillary office component acceptable - whether Ipswich Planning Scheme relevant - whether conflict with the 2005 South East Queensland Regional Plan - whether weight ought be given to 2009 South East Queensland Regional Plan - whether conflict with that plan - whether conflict with Brisbane City Plan - whether special purpose (Mixed Industry and Business Area) designation on Strategic Plan Map applies to the site - whether that designation conflicts with the Western Gateway Local Plan, which provides for industry supported by a convenience centre only - whether Strategic Plan designation authorises non-ancillary office space in excess of that provided for in the Local Plan - whether overwhelming or significant need - adequacy of public transport - non-ancillary office component unacceptable - whether application could or should be approved in part or subject to different variations - traffic - where evidence did not permit the court to assess traffic impact - whether approval premature - whether court should entertain publishing reasons on a hypothetical basis - environmental impact - fauna - flora - scar trees - visual amenity - hydrology - whether proposed new code ought be amended

Local (Planning and Environment) Act 1990 (Qld), s 4.1, s 4.15

Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157

Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGRA 99; [1995] QPLR 107

Bowden v Brisbane City Council [1991] QPLR 271

CB Darvall & Darvall v Maloney & Ors (2006) 236 ALR 796; [2006] QSC 345

Chesol v Logan City Council [2007] QPELR 285; [2007] QPEC 1

Genamson Holdings Pty Ltd v Caboolture Shire Council (2008) 163 LGERA 386; [2008] QCA 374

Grant v Pine Rivers Shire Council [2006] QPELR 112; [2008] QPEC 81

Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347; (1994) 85 LGERA 408; [1995] QPLR 182

Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495; [1999] FCA 718

Transequator v Brisbane City Council [2007] QPELR 486; [2007] QPEC 37

Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337; [2004] QPEC 14

Wincam Developments No 3 v Brisbane City Council [2004] QPELR 474; [2004] QPEC 5

Yu Feng v Brisbane City Council (2007) LGERA 399; [2008] QPELR 153; [2007] QCA 382

Mr P Flanagan SC and Ms J Brien for the first and co-respondent

Mr C Hughes SC with Mr M Williamson for the first co-respondent by election

Mr R Bowie for the second and third co-respondent by election

Ms S Whitehouse for the fourth co-respondent by election

Mr P Lyons QC (as he then was) and Ms N Kefford for the fifth co-respondent by election

Mr E Parker for the sixth co-respondent by election (self-represented)

Ms S Walker for the seventh co-respondent by election (self-represented)

Ms N Parker for the eighth co-respondent by election (self-represented)

Legal Department of the Environmental Protection Agency for the third co-respondent

Brian Bartley and Associates for the first co-respondent by election

Minter Ellison Lawyers for the second and third co-respondent by election

Barry and Nilsson Lawyers for the fourth co-respondent by election

Russel and Company Solicitors for the fifth co-respondent by election

Mr E Parker for the sixth co-respondent by election (self-represented)

Ms S Walker for the seventh co-respondent by election (self-represented)

Ms N Parker for the eighth co-respondent by election (self-represented)

G. Approved in part or subject to different conditions

[1] This appeal concerns the future of the site of the former Wacol Army Barracks, located near the Ipswich Motorway-Centenary Highway interchange. The appellant (Metroplex) proposes what was referred to as an integrated industry and business complex to be known as "Metroplex at Westgate". It appeals against the Brisbane City Council's deemed refusal of its development application.

[2] The development application did not seek the development permits which would be required to authorise the development to occur, rather, it sought preliminary approval for mixed uses in accordance with a plan of development. It also sought to vary the effect of the planning scheme, in accordance with a plan of development which contains assessment tables for future development and a new code (the Metroplex code). In this way, Metroplex seeks to establish the planning framework for future applications for development permits[1].

[3] The plan of development divides the site into two precincts, namely a Waterways and Open Space Precinct (11.554 ha) and a Metroplex Industry Precinct (80.541 ha). The Metroplex Industry Precinct includes an "etro sub-precinct" which is intended to be developed for 6,000 m2 gross floor area (GFA) of centre activities, in order to provide for the retail and service needs of the on-site workforce. It is also proposed to accommodate several relocated buildings, to create a commemorative precinct, honouring the role of national service men and women in the defence of Australia. The Metroplex Industry Precinct otherwise would comprise substantial development as well as areas for parks, stormwater, roads and a sewerage treatment plant.

[4] The "developable area" of the Metroplex Industry Precinct is said to be some 63 ha which, applying a plot ratio of 0.7[2], would yield 441,259 m2 GFA, including 6,000 m2 for the etro sub-precinct. The balance would be available for the uses identified by reference to the proposed assessment tables for development. The primary use which is contemplated is "Metroplex Industry"[3] which is defined, in the proposed plan of development, as follows:

"Use of Premises for the following uses are termed Metroplex Industry:

Industry, in accordance with the Brisbane City Plan 2000 definition;
Warehouse, in accordance with the Brisbane City Council's Brisbane City Plan 2000 definition, and including any ancillary office space for administration or staff amenities in connection with or resulting from that activity;
Office, up to a maximum of 22.2% of the total potential gross floor area for the Metroplex at Westgate site, where not ancillary to industry or warehouse".

[5] That would provide for the development of offices which are not ancillary to industry or warehousing of up to 98,000 m2 GFA. That is what was assumed in Metroplex's "proposed land use makeup" in its planning summary as follows:

Industry (including ancillary office) and warehousing

MP4 Convenience Centre (excluding NSAA commemorative precinct buildings)

The intended mix of land uses is similar to that at another development of the appellant "Metroplex on Gateway" at Murrarie, which is a successful example of the development of industrial and office activity within a master-planned integrated development, providing a high level of amenity.

[6] On the first morning of the hearing the second, third and fourth co-respondents by election were excused from attendance, on the basis that they did not wish to be heard, so long as there was no change to the application which increased any retail component. The issues pursued by the various active parties may be summarised as:

• whether the proposed uses are appropriate, particularly having regard to the provision for up to 98,000 m2 of offices which are not ancillary to industry or warehouse development;

• whether approval would be premature having regard to the likely impact on the road system, and

• whether the application appropriately responds to the environmental values of the site.

[7] There are two aspects of the application namely:

(a) a development application for preliminary approval for material changes of use, and

(b) an additional aspect involving a request to vary the effect of a local planning instrument (the Brisbane City Plan) for the land.

[8] Impact assessment for the development application is carried out pursuant to s 3.5.5 of the Integrated Planning Act 1997 (Qld) (IPA), with a decision on the application being governed by s 3.5.14. Where part of an application for a preliminary approval states the way in which the applicant seeks the approval to vary the effect of the planning scheme, that part is assessed under s 3.5.5A(2) and a decision on that part of the application is governed by s 3.5.14A. Those sections provide as follows:

"3.5.5A Assessment for s 3.1.6 preliminary approvals that override a local planning instrument

(1) Subsection (2) applies to the part of an application for a preliminary approval mentioned in section 3.1.6 that states the way in which the applicant seeks the approval to vary the effect of any applicable local planning instrument for the land.

(2) The assessment manager must assess the part of the application having regard to each of the following -

(b) the result of the assessment manager's assessment of the development under section 3.5.4 or 3.5.5, or both;

(c) the effect the proposed variations would have on any right of a submitter for following applications, with particular regard to the amount and detail of supporting material for the current application available to any submitters;

(d) the consistency of the proposed variations with aspects of the planning scheme, other than those sought to be varied;

(e) if they are not identified in the planning scheme as being appropriately reflected in the planning scheme -

(i) State planning policies, or parts of State planning policies; and

(ii) for the planning scheme of a local government in the relevant area for a State planning regulatory provision - the provision; and

(iii) for the planning scheme of a local government in a designated region - the region's regional plan;

(f) the matters prescribed under a regulation (to the extent they apply to a particular proposal)..."

"3.5.14A Decision if application under s 3.1.6 requires assessment

(1) In deciding the part of an application for a preliminary approval mentioned in section 3.1.6 that states the way in which the applicant seeks the approval to vary the effect of any applicable local planning instrument for the land, the assessment manager must -

(a) approve all or some of the variations sought; or

(b) subject to section 3.1.6(3) and (5) - approve different variations from those sought; or

(a) to the extent development applied for under other parts of the application is refused, any variation relating to the development must also be refused; and

(b) the assessment manager's decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area; and

(c) paragraphs (a) and (b) do not apply if compromising the achievement of the desired environmental outcomes is necessary to further the outcomes of any of the following if they are not identified in the planning scheme as being appropriately reflected in the planning scheme -

(i) State planning policies, or parts of State planning policies;

(ii) for the planning scheme of a local government in the relevant area for a State planning regulatory provision - the provision;

(iii) for the planning scheme of a local government in a designated region - the region's regional plan."

[9] The decision on the part of the application which seeks the variation must have regard to the result of the assessment under s 3.5.5 in relation to the material change of use. Further, pursuant to s 3.5.14A, the refusal of a preliminary approval for the material change of use necessitates a refusal of any variation which sought in relation to that development. Accordingly,

• each aspect of the application must be assessed and decided in accordance with the statutory provisions which relate to that aspect, and

• the assessment and decision on the aspect of the application which seeks to vary the effect of City Plan will be influenced by the assessment and decision on the aspect of the application which seeks preliminary approval for the material changes of use.

[10] There was some debate about the extent to which (if at all) it was appropriate, in assessing and deciding a development application for a material change of use, to have regard to the variations sought. Mr Hinson SC, for Metroplex, submitted[4] that the consistency of the proposed material change of use with the variations sought might assist in justifying an approval which departs from the existing planning instruments. Mr Lyons QC (as he then was) and Mr Hughes SC, in particular submitted that this was, in effect, an attempt to pull the application up by its own bootstraps.

[11] The gravity of conflict between an application for approval of a material change of use and the existing planning scheme cannot be put at nought simply because the applicant applies to vary the effect of the planning scheme so as to obviate the conflict. On the other hand, the request for variations[5] may inform the identification of the material change for which approval is sought. In this case, for example, Metroplex sought approval for mixed uses in accordance with the plan of development. It is by going to the plan of development that one can identity the nature and extent of the uses for which approval is sought. Further, the power to approve different variations from those sought might, in some circumstances, reduce the extent of departure from the existing planning documents, which is inherent in an application as made.

[12] While the proposed assessment tables for development refer to a number of different uses, debate centred upon the appropriateness of "Metroplex Industry" and in particular, the non-ancillary office component thereof. There was no dispute about the nature of the uses proposed in the etro sub-precinct[6].

[13] The "Metroplex industry" use definition has three components. The first is "industry" as defined in City Plan. That definition includes "any ancillary office space for administration, staff amenities or storage of articles used in connection with, or resulting from that activity". The second component is "warehouse", the definition of which in City Plan does not expressly extend to ancillary office space, but the definition of "Metroplex Industry" in the plan of development does so. That was not controversial.

[14] The planning documents (discussed later) envisage that the area of which the subject site forms part will be developed for industrial purposes (including warehousing). The economic experts agreed, in their joint report[7]:

"The industrial sector of Brisbane's economy will be fostered by the provision of ample vacant serviced industrial lands clustered in highly accessible multiple locations, offering differing size configurations and having sufficient capacity to ensure that the demand can be met in the short, medium and longer terms. This provision will ensure that industrialists have a high degree of choice within a competitive market offering differing occupancy costs across a range of potential locations to suit the myriad of industrial type uses".

[15] Mr Norling (the economist called by Metroplex) saw a very strong level of planning need for the industry and warehousing components. Mr Brown (the economist called by Springfield) and Mr Leyshon (the economist called by the Brisbane City Council) also saw a strong market and planning need. Mr Duane (the economist called by Ipswich City Council) expressed some concern for short term implications (for other industrial developments) of the size and timing of the Metroplex proposal, but conceded that it would ultimately not impact on the long term development of other precincts[8]. When asked, in cross examination, whether there was any reason why there should not be an approval for the industrial and warehouse components (including ancillary office) he responded that "in isolation I don't have any issue with them", although he was opposed to providing for up to 98,000 m2 of non-ancillary office space in addition to the ancillary office provided for within the industry and warehouse components[9].

[16] I accept that there is an economic and planning need for those components of "Metroplex Industry", that they would not have undue economic impact and that, subject to the traffic, environmental and other issues discussed later, they are consistent with the planning for this area.

[17] Where the parties (and their respective economic and town planning experts) differed was in respect of the non-ancillary offices. While that may be intended to be limited to 22.2% of the "developable area", the size of the site is such that the resulting potential GFA is very large. The economists were not able to point to any other development in an existing major business centre in the region (other than in the Brisbane CBD/Milton area) which contains more than 100,000 m2 of office space. By comparison, most of the largest office buildings in the Brisbane CBD provide only about half that[10]. The provision is greater than is developed or proposed at the smaller Metroplex on Gateway development.

[18] It was contended that the location of such a substantial amount of non-ancillary office space on the subject site would amount to unjustified "out-of-centre" development, which would conflict with the relevant planning documents and impact upon the development of the existing and planned centres. The importance of respecting the hierarchy of centres is well established[11] and was accepted by the parties and their experts.

[19] Metroplex intends to release its development to market over a 10 year period with office lands being sold by 2015 and industrial and warehouse lands by 2020. All economic experts agreed however, that the actual release of land will be dependent upon market conditions and that the development period is more likely to extend beyond the targeted timeframes.

[20] In assessing need for the office component, the economists considered the future need for new jobs in the south west Brisbane and Ipswich area. They concluded that approximately 93,000 new jobs were required to be accommodated in those areas in 2026 with 24,000 jobs expected to be directed towards industrial lands and 20,000 to 23,000 required in the office sector. That corresponds to a demand, over time, for around 350,000 to 385,000 m2 of office space in the western corridor. The proposed development would represent approximately 9% of the new jobs required, with the office component presenting about 25% of new all office sector jobs within the corridor over the forward projections[12].

[21] The debate was not about whether the western corridor needs another 98,000 m2 of non-ancillary office space. It will need that, and more, over time. The question was whether there is a planning need to provide for that on the subject site and whether doing so would conflict with the planning documents and detrimentally impact upon the development of designated centres.

[22] As Mr Leyshon, Mr Duane and Mr Brown pointed out, there is capacity to provide for office development in existing and approved centres including at Springfield, Goodna, Ripley Valley and the Ipswich CBD. The economists (including Mr Norling) agreed that the proposal would impact on a range of centres and business parks, although they were unable to reach agreement on the distribution of that impact[13].

[23] The question of planning need and the acceptability of any impact should be judged in the context of the strategies contained in the planning documents. The principles which apply to the construction of planning documents are well known[14] and include that they should be construed as a whole, broadly rather than pedantically or narrowly and with a sensible, practical approach. They should be construed in a way which best achieves their apparent purpose and objects, and in light of the proscription against prohibiting development contained in the IPA. In this case, reference was made to:

1. the South East Queensland Regional Plan (SEQRP);

[24] The Ipswich Planning Scheme is not directly relevant. Although the site is situated near the boundary between Brisbane and Ipswich, no part of the subject site is within Ipswich. The site does not form part of the planning scheme area to which the Ipswich Planning Scheme applies[15]. The "planning scheme" to which regard must be had in carrying out impact assessment[16] and with which the application for preliminary approval of the proposed material change of use must not conflict (unless there are sufficient grounds to justify the decision despite the conflict)[17] is the planning scheme which applies to the subject land.

[25] Some reference was made to s 3.5.5(3) of the IPA, which relates to "development outside of the planning scheme area", however this provision is properly understood as referring to development which is not within the planning scheme area of any planning scheme. I was not referred to any other provision of the IPA which would require development within Brisbane to comply with the Ipswich Planning Scheme.

[26] Reference was made to Bowden v Brisbane City Council [1991] QPLR 271, in which the court considered that the rezoning of land within Brisbane would conflict with the strategic planning for the shire of Pine Rivers and the city of Redcliffe. Row DCJ said[18]:

"As the sphere of influence of the proposed development will extend into such areas, it is appropriate that regard be had to the provisions of the town planning schemes for those Shires and the City of Redcliffe for the purposes of assessing whether the application should be approved".

[27] That case was considered under different legislation. Further, as his Honour noted, the town plan there under consideration expressly recognised its relationship with adjoining areas in neighbouring localities.

[28] That the Ipswich Planning Scheme does not directly apply to the subject site does not mean that one should ignore the existing or planned facilities within Ipswich. Here, as in Bowden, the "sphere of influence" of the subject development would extend into Ipswich. In considering whether there is a planning need to provide for the non-ancillary office space in particular, it is relevant to have regard to the existing and proposed facilities otherwise available to fulfil that need, whether they be in Brisbane or in Ipswich. Further, planning does not stop at the city boundaries. One of the purposes of the IPA is to coordinate and integrate planning at the regional level[19]. That is provided for in Part 5 of Chapter 2 of the IPA, pursuant to which regional plans are made. The South East Queensland Regional Plan (SEQRP), which is directly relevant to an assessment of the subject application, recognises existing and proposed centres within Ipswich.

[29] The SEQRP is the pre-eminent plan for the region. It has the force of law[20]. It prevails to the extent of inconsistency with any other plan, policy or code of a planning nature, including any other planning instrument[21]. As the SEQRP is not identified in City Plan as being appropriately reflected in that scheme[22], impact assessment must be carried out having regard to the SEQRP[23].

[30] The SEQRP contains regional policies, which set out the desired regional outcomes, principles and policies to address growth management in south-east Queensland. The desired regional outcomes which were referred to are 8 and 9, as follows:

A compact and sustainable urban pattern of well-planned communities, supported by a network of accessible and convenient centres close to residential areas, employment, locations and transport.

A strong, resilient and diversified economy - growing prosperity in the region by utilising its competitive advantages to deliver exports, investment, sustainable and accessible jobs".

[31] Metroplex claims that its proposal gives effect to the SEQRP, particularly by supporting Desired Regional Outcome 9. Others say that it is in conflict with Desired Regional Outcome 8 and the principles and policies in support thereof.

[32] One of the principles in support of Desired Regional Outcome 8 is to:

"Focus employment and community services in well-planned, vibrant and accessible regional activity centres".

[33] The regional activity centres network for greater Brisbane and the western corridor is shown on Map 9. It includes:

(a) a Primary Activity Centre, at the Brisbane CBD, which accommodates the largest and most diverse concentration of activities and land uses;

(b) Principal Activity Centres, which serve catchments of sub-regional significance and accommodate key concentrations of employment, at Indooroopilly, Upper Mount Gravatt, Springfield and Ipswich;

(c) Major Activity Centres, which complement the Principal Activity Centres, serving catchments of regional significance and accommodating key concentrations of employment, at Goodna and Ripley.

[34] The notes to that principle state, in part, as follows:

"Regional activity centres are a concentration of business, employment, research, education, services, high density living and social interaction. A strong and successful network of regional activity centres provides a community focus and can help to achieve compact, self-contained and diverse communities. They facilitate an efficient public transport system, provide a focus for government investment and infrastructure and services, promote commercial confidence and encourage complimentary private sector investment

Developments that provide concentrated employment opportunities or generate significant community patronage should be located within activity centres.

Out-of-centre development is inconsistent with the strategic intent of the regional plan. It can diminish activity centre vitality and detract from economic growth by diluting public and private investment in centre related activities, facilities and infrastructure..."

[35] The policies in support of the principle include:

"8.6.1 Ensure all new development supports the regional activity centres network defined in the Regional Plan.

8.6.2 Locate major employment and trip generating activities within regional activity centres;

8.6.5 Control inappropriate forms of out-of-centre land use and development".

[36] The proposal would provide concentrated employment opportunities. That is particularly so with respect to the office component which, whilst being limited to 22.2% of the total potential gross floor area, is estimated to accommodate 5,600 jobs, or approximately 65% of all jobs which would be accommodated by the development[24]. At up to 98,000 m2, the office space would exceed what exists at the principal activity centres of Mount Gravatt, Indooroopilly and Springfield and the major activity centres of Goodna and Ripley. It is of a scale contemplated for regional activity centres. The office component would also be a high vehicle trip generating activity, particularly in terms of journey-to-work trips. While offices are only one component of regional activity centres, they are a source of high rates of employment and activity and assist to bring vibrancy and vitality to an activity centre[25]. Mr Hinson SC conceded that conflict can arise with the SEQRP by reason of a development which, while not itself a centre, develops one component of a centre in an out-of-centre location[26].

[37] The non-ancillary office component is a major employment and trip generating activity of a kind which Policy 8.6.2 seeks to locate within a Regional Activity Centre. Its location outside of such a centre fails to support the Regional Activity Centres networks, as sought by Policy 8.6.1.

[38] Mr Hinson SC for Metroplex, conceded that if all his client was asking for was stand alone offices of a kind that could and should go into a regional activity centre then "we'd be in serious trouble as far as the regional plan is concerned"[27]. In justifying the location of such a large non-ancillary office component on the subject site, outside of the regional activity centres, Metroplex emphasised that its development does not try to replicate a centre. Its focus is more industrial and its development would provide the opportunity for businesses to co-locate with industry, in a way which is not intended or encouraged in Regional Activity Centres.

[39] While it may be accepted that there are those who would prefer to locate their offices in the subject development than in a Regional Activity Centre and that there are some types of offices (such as law firms) which would be likely to take up space in a Regional Activity Centre, but not at the subject site, that is not a complete justification. The notes to Principle 8.6 acknowledge that certain development may not always be appropriately located in centres. Non-food bulky goods retailing is an example which is given. The SEQRP contemplates out-of-centre locations for such activities, assessed on community need and the potential impact on, amongst other things, the primacy and functionality of surrounding centres. That part of the notes however, is dealing with development which would be inappropriately located within a centre. As Mr Leyshon acknowledged[28], there are a wide range of industrial, service and even retail uses which will never be captured by centres, but high employment and activity uses, like intense office space activities, are appropriately located in centres.

[40] The notes to Principle 8.6 of the SEQRP contemplate that appropriate non-centre locations will be determined by Local Growth Management Strategies (LGMS). Brisbane has a draft LGMS. It has not yet reached the stage where I would accord it substantial weight. It includes the site within a "productive precinct" (which is a "key economic zone to be considered for prioritised infrastructure provision and land use facilitation"), a "major industrialised areas" designation and within one of the growth corridors. Wacol is referred to as within the south-western industrial areas[29]. That does not provide particular support for major non-ancillary office development on the subject site.

[41] There may be some for whom a regional activity centre location for an office is unattractive, if co-location with industry is important. Mr Leyshon had no particular problem with Metroplex providing for industrial space with an office component in the same building for the same firm[30]. It is also quite appropriate for industrial development to be served by some office uses. The office component in the etro sub-precinct provides some scope for that. As Mr Leyshon pointed out[31], the scale of this proposal is significant. The evidence falls short of satisfying me that there is a need to provide for up to 98,000 m2 of non-ancillary office space on the subject site in order to accommodate offices which could not appropriately be located within the Regional Activity Centres Network.

[42] Despite the more industrial nature of the Metroplex at Westgate proposal, it is clear that the non-ancillary office component would not simply be complementary to what is offered in the Regional Activity Centres, but would be competitive. For example, Mr Norling referred to the Springfield Town Centre as being "in the market now trying to target that same office park market"[32], with respect to freestanding offices. As Mr Duane said, the overall development may have a more industrial focus, but the freestanding office component can be likened to an office park[33].

[43] It has already been noted that the proposed development is estimated to provide around a quarter of the projected need for new office sector jobs in the western corridor. That would obviously have some effect on the centres which might otherwise have attracted office development to provide for those jobs. As Mr Leyshon said[34], the provision of up to 98,000 m2 of office space would be injected into a competitive environment with existing centres. In the case of Springfield, for example, Mr Norling estimated that the subject development would divert the development of something like 30,000 m2 of office space from Springfield, with a consequential delaying effect[35].

[44] I accept that Regional Activity Centres are not solely about office development, and that, as Mr Norling pointed out, the impact on the Springfield centre as a whole would be less than the impact on the office component of that centre. The impact is unlikely to prevent Springfield from achieving its designated role under the SEQRP over the longer term, but it will have an effect which even Mr Norling described as material[36].

[45] The SEQRP is not just concerned with preventing out-of-centre development which would decimate a regional activity centre. It is concerned with supporting the network by in-centre development. It has already been noted that the SEQRP, in discouraging out-of-centre development, speaks of its potential to "diminish activity centre vitality and detract from economic growth by diluting public and private investment in centre related activities". The proposal would dilute activity and militate against maximising the use of infrastructure[37]. The effects would not be catastrophic but, as Mr Leyshon said, it is difficult to see why such an impact should be seen as a desirable or appropriate planning outcome[38], given the planning strategy to support the regional activity centres network, which has capacity to accommodate office development.

[46] Other regional activity centres are less directly comparable. Ripley is more remote from the subject site, being located to the west of Springfield. Further, development of offices and major town centre activities at Ripley is well into the future[39].

[47] The Ipswich CBD is the historic service centre for Ipswich residents. It currently provides a modest amount of office accommodation, with tenants mainly comprising government agencies. Significant regeneration and intensification of the Ipswich CBD is expected in the relatively near future. That is likely to be given some impetus by a State government proposal to locate more government jobs in that location. The Ipswich City Council engaged consultants to prepare a draft master plan for the Ipswich CBD. That master plan identifies the opportunity for significant commercial office development. The non-ancillary office component of the subject proposal would take up some of the otherwise available demand.

[48] Goodna contains a small centre anchored by the St Ives Shopping Centre, but has capacity to provide significant further development, including for offices. The Ipswich City Council also engaged consultants to prepare a Goodna Town Centre Master Plan, which indicated capacity to provide commercial floor space of 40,000 m2 over the next 20 years. That would, however, only be achievable "if it is demand driven and pro-actively marketed to medium to large tenants"[40].

[49] Whilst the "offer" at the Ipswich CBD and Goodna is less comparable to that at Springfield, even Mr Norling conceded that the proposed development would likely have some impact[41]. He acknowledged that the non-ancillary office component would:

(a) have an effect on the demand for office space in the Ipswich CBD[42], although the extent of that dilution would be less than for Springfield[43];

(b) reduce the rate of provision of office by diluting demand[44];

(c) result in the office component of Springfield being about 25% less than it otherwise would be at a given point in time[45];

(d) have flow on effects at Springfield[46];

(e) detract somewhat from the prospect of redevelopment at Goodna[47], notwithstanding the differences in its underlying market.

[50] Mr Leyshon's evidence was that the proposed offices would inevitably delay development of designated centres, by slowing the rate of development of office space in those centres[48]. He pointed out[49] that approving major components of office space in locations outside the designated centres can affect confidence in the centres' strategy. He held some concern for whether Goodna would achieve its role if demand was diluted, given that it does not have a strong platform[50]. He found it "impossible to accept" that "we add to the impediments of people achieving outcomes by inserting 98,000 m2" at the subject site[51].

[51] Similarly, Mr Brown and Mr Duane considered that the proposed offices would tend to undermine the orderly development of designated centres[52]. In the joint report, Mr Brown said that commercial office floor space of the scale proposed would prejudice the orderly development of designated activity centres. He opined that the most significant impacts would be on the development at Goodna and Springfield, with an approval at the subject site undermining the development of Goodna[53]. He also considered that it would undermine the potential utilisation of the infrastructure network[54].

[52] Mr Duane said that the proposed development would have a significant economic impact on the proposed hierarchy of centres[55]. In his opinion the reduced opportunity for commercial facilities at designated centres such as Springfield and Ipswich may well impact on the total development of those centres. In his view the proposal would also impact on the use of infrastructure within the centres. Its development outside of a centre would, in his view, also create uncertainty and reduce confidence.

[53] I accept that the proposed office space would likely have a material impact on Springfield, with flow on effects and would also dilute demand for office development in a way which would tend to undermine, to some extent, redevelopment potential at Ipswich and Goodna.

[54] It was submitted, on behalf of Metroplex, that the SEQRP does not confine employment growth to the regional activity centres and that the proposal gives effect to the SEQRP by realising opportunities for economic development and employment creation in the western corridor. The SEQRP identifies the Western Corridor as a significant growth area for the region, providing major opportunities for economic development and employment creation, an area to which increased economic and population growth is intended to be attracted and in which employment and industrial growth is supported. The SEQRP describes[56] factors which support the major opportunities for economic development and employment creation in the Western Corridor as including:

• suitable land available for large-scale industries and logistics with adequate separation from sensitive land uses;

• good freight transport links to state and national highway and rail networks;

• a workforce with the appropriate mix of skills for local industries;

Priority industries for the Western Corridor comprise food, manufacturing, aviation, aerospace and education. Key initiatives[57] include the development of regional activity centres at Ipswich, Springfield and Ripley.

[55] Principle 9.1 relates to economic development and growth strategies it is to:

"Develop a diversified regional economy, characterised by knowledge-based, high value adding industries that build on existing regional and sub-regional competitive advantage and specialisations".

[56] The policies in support of that principle include:

"Initiate and implement projects that support economic development of the Western Corridor".

[57] Principle 9.2 relates to industry and business development it is to:

"Expand business activity, increase business competitiveness and encourage regional exports".

[58] Principal 9.4 relates to employment and economic activity areas and is to:

"Maximise job creation and employment diversity in centres of economic activity, including Regional Activity Centres, major industry areas, mixed-use developments and knowledge precincts".

[59] The policies in support of that principle include:

"9.4.2 Encourage employment growth in regional activity centres and economic activity locations".

[60] I accept that the SEQRP does not intend all economic activity and employment to be concentrated in the Regional Activity Centres. It is also contemplated in other economic activity locations. The SEQRP also promotes mixed use developments "that foster collaboration and relations between business, industry and research institutions"[58]. As was submitted on behalf of Springfield however, the SEQRP does not simply encourage the creation of any jobs in any location. Major employment and trip generating activities are to be located in the regional activity centres[59]. The notes to Policy 9.4, on the other hand, refer to the Western Corridor, including Wacol, as a major economic activity area and industry cluster for manufacturing.

[61] When the SEQRP is read as a whole, it does not provide a warrant for the out-of-centre location of a major employment and trip generating activity, such as major non-ancillary office development, particularly where that would be of such a scale as to adversely affect a regional activity centre or centres. As Mr Norling rightly conceded in cross-examination[60], the development, insofar as it relates to the non-ancillary stand alone office component, is out-of-centre development of a major employment and trip generating activity, which would unavoidably dilute public and private investment in centre-related activities, erode the principle in 8.6.1[61] and depart from 8.6.2.

[62] There was a regrettable delay in preparing these reasons[62]. In the meantime the new SEQRP, which was released in draft form on 7 December 2008, came into force on 28 July 2008. By reason of s 4.1.52(2)(a) of the IPA, the court must decide the appeal based on the laws or policies applying when the development application was made (in 2006) but may give weight to any new laws and policies the court considers appropriate. The weight to be given to those new laws or policies is a matter for the court.

[63] The 2009 SEQRP was not in existence, even in draft form at the time the application was made, at the time the decision making period expired (so as to create the right to appeal against a deemed refusal) or at the time the appeal was made or heard. I accept the submission on behalf of Metroplex that, in the circumstances, little weight should be afforded it.

[64] The respondent and the first, fourth and fifth co-respondents (who each adopted the respondent's further submission on the 2009 SEQRP) do not contend that any materially new objection to the development arises by reason of the 2009 SEQRP. Rather, they submit that it simply reinforces the strategy evident in the earlier document. Similarly, Metroplex did not submit that the 2009 SEQRP gave any materially greater level of support for its proposal.

[65] Under the 2009 SEQRP the Ipswich CBD and Springfield are recognised as principal regional activity centres while Goodna and Ripley as major activity centres[63], but Wacol does not have that status. The respondent (and those who adopted its submissions) again pointed to the provisions which seek to promote the regional activity centres and discourage out-of-centre development, while Metrolplex drew attention to those provisions which encourage enterprise growth in the western corridor, including business and industry.

[66] The planning strategy evident in the 2009 SEQRP is a development upon the 2005 SEQRP. As with the earlier document, there are some statements from which Metroplex could gain some comfort however, when the document is read as a whole, it is difficult to see that it supports the development of a major non-ancillary office development in an out-of-centre location, particularly one of such a scale as to be likely to have an adverse impact upon a designated activity centre or centres.

[67] Ms Parker, and the sixth and seventh co-respondents by election (who adopted her further submissions) also did not suggest that the 2009 SEQRP raised any materially new issue. She referred to parts of the document which deal with environmental issues. She drew attention to the "overriding" intent of the SEQRP, which is to "ensure that the region grows and changes in a sustainable way" and to the fact that the first two desired regional outcomes are related to "sustainability and climate change" and the "natural environment". She drew particular attention to the notes to Principle 2.1 (Biodiversity), which speaks of the challenge of re-connecting wildlife habitats by clearly identifying and protecting biodiversity network and corridors at regional and local scale and to provisions which relate to Koala Conservation. She also pointed out that the 2009 SEQRP has a new section (8.4) devoted to green space. As was pointed out for Metroplex, the 2009 SEQRP is an evolution of that in the 2005 SEQRP in these respects.

[68] The environmental issues are discussed later in these reasons. That includes consideration of ecological sustainability, the protection of fauna, flora and biodiversity, including the protection of corridors identified in the planning documents. The 2009 SEQRP does not alter the conclusion in relation to those matters.

[69] The site falls in a special purpose centre area under City Plan. The intent for those centres is to provide for particular major activities which are individually shown on the scheme maps. In the case of the subject site, the special purpose centre is described as SP3 - Major Defence and Communications Facility. The level of assessment table contemplates development for the purposes specified on the Scheme Map, as defined in the definitions in City Plan. The definition for SP3 refers to "a use of premises for defence and communications activities". Office development, of the magnitude proposed, is impact assessment (generally inappropriate) development[64].

[70] The existing area designation obviously reflects the previous use of the site by the Army. The site is no longer used for those purposes. It was sold by the Commonwealth to Metroplex in 2005. The existing area designation has been overtaken by events and rendered redundant. This provides sufficient grounds to permit a form of development which is not contemplated by the existing area designation. The question is whether the subject development is an appropriate alternative use for the site.

[71] The Strategic Plan represents an obvious starting point for determining whether the proposal in accordance with the future planning intentions for this part of Brisbane. The site is included within an industrial locations designation, on the Strategic Plan Map[65]. In particular, it falls within the Brisbane-Ipswich corridor which is described as one of the major industrial locations which offer "enormous potential for industrial, business and transport related employment growth"[66]. Wacol is one of the locations which is referred to as being "suitable for service, light and general industries, and warehousing and transport activities".

• sequence industrial growth in accord with the economic provision of utility and transport infrastructure;

• provide buffers to existing and future residential growth areas, and

• develop open space corridors along creeks, wetlands and watercourses for flooding, drainage and wildlife.

Those provisions provide no specific support for the development of major non-ancillary office development.

[73] The site also falls within the Western Gateway Local Plan (WGLP). Local plans provide detailed guidance for development outcomes across particular localities in the city. They override any other part of the City Plan with which they conflict[67]. They put forward more locally focussed desired land use and built form outcomes than those contained in the area provisions of Chapter 3. Local plans for the outer suburbs are said to contain greater detail, in order to achieve more functional and integrated communities and to protect the environmental features of the localities[68].

[74] The development principles for the WGLP include the following:

"2.1 The western gateway district is to provide a base for major industrial development and accommodate a diverse, residential community. The area is to exhibit well-integrated living, working and recreation areas and is to be supported by high quality transport links, retail and commercial facilities.

2.4 Major industrial development is to be concentrated south of the Ipswich Motorway and is to be supported by a specialised retail and commercial centre and an efficient, appropriately designed road network. The impact of industrial activities on residential areas is to be minimised through strict environmental controls and landscaped buffers.

[75] The vision of this locality being developed for major industrial development, serviced by a specialised retail and commercial centre is reflected in the Statement of Intent to the Wacol Industrial Precinct, within which the subject site falls. It provides, in part, as follows[69]:

"This precinct is to become an industrial area of City Wide and regional significance. Industrial activity is to generally be contained by the Ipswich Motorway, the Centenary Highway and elements of the greenspace network. Residential development within this precinct will not be supported.

A Convenience Centre for the Wacol Industrial Precinct is encouraged south-west of the intersection of the Ipswich Motorway and Centenary Highway and north of Progress Road. This centre is to contain office activities with limited shop activities to meet the needs of the local industries and workforce. The centre is not intended to service the needs of residents in the surrounding localities. Residential activities and other centre activities deemed to conflict with adjoining industrial activities will not be supported in this centre. In any detailed design for a convenience centre, adequate provision for the convenience parking of service vehicles needs to be achieved. It is intended that a district park be co-located with a convenient centre to provide workers and visitors to the precinct with adequate open space for informal and recreational uses".

[76] A "convenience centre" in the context of City Plan refers to smaller centres generally less than 6,000 m2 GFA[70]. The statement of intent supports the industrial and etro sub-precinct components of the subject proposal, but provides no support for the development of up to 98,000 m2 of non-ancillary offices.

[77] Generally speaking, the City Plan directs significant office development to multi-purpose centres. Multi-purpose centres provide for a wide range of uses to develop at convenient and accessible locations throughout the city. The categories of multi-purpose centres are the City Centre, Major Centres, Suburban Centres and Convenience centres. They act as focal points for, amongst other things, service delivery and employment opportunities[71]. The desired environmental outcomes for multi-purpose centres[72] include:

"All new shop, office and cultural developments, including low density retailing such as retail warehousing, are clustered in Multi-purpose centres unless an overwhelming community need dictates otherwise".

[78] Special purpose centres, such as the subject site, are not to take on the role of a multi-purpose centre, unless that is specifically provided for in a local plan[73]. The WGLP only provides for a convenience centre of the order proposed for the etro sub-precinct.

[79] Where part of a multi-purpose centre, an office use is one of the defined "centre activities" under the City Plan[74]. City Plan "strongly encourages centre activities to locate in-centre and strongly discourages their location out-of-centre"[75]. Out-of-centre development of centre activities is said to be "inconsistent with the intent of the plan unless an overwhelming community need is demonstrated". Insofar as new office development is concerned, the plan's encouragement for in-centre development would ordinarily be a reference to development in a multi-purpose centre[76].

[80] Whilst special purpose centres are also a form of centre, the level of assessment table for special purpose centres only contemplates shops or offices to 250m2 GFA or less[77]. Other offices are impact assessment (generally inappropriate) forms of development[78]. That is, of course, subject to the particular purpose specified on the Scheme Map (as defined) itself contemplating substantial office development in a special purpose centre[79].

[81] The centres strategy is reflected in the commercial impact assessment planning scheme policy. The policy guides preparation of a commercial development impact assessment report, which is called for to determine overwhelming community need for out-of-centre development of centre activities. The policy notes that the plan clearly articulates that out-of-centre development is inappropriate and, in Table 1, describes the type of development requiring a commercial development impact assessment report as including "commercial eg shop or office development" outside of a multi-purpose centre (except where on a site identified in a local plan as a desirable centre location) [80].

[82] Consistently with this strategy, the intent for industrial areas[81] includes:

"Industrial areas include only those office activities that serve an administrative function directly related to a specific manufacturing or distribution activity on the same site or that directly and predominately services the needs of industries in the locality".

Within industrial areas, ancillary offices can locate as part of an 'industry' use, but non-ancillary offices of greater than 250m2 GFA[82] are impact assessment (generally inappropriate) uses[83].

(a) the centres strategy emerges from a number of the provisions of City Plan;

(b) Centres are identified through the area classifications on the Scheme Maps;

(d) except in the case of special purpose centres where office development is part of the nominated special use, office development in a special purpose centre is limited.

[84] It was submitted, on behalf of Metroplex, that its proposal, including the office component, is consistent with the future planning strategy under City Plan. That contention relies upon a special purpose centres designation which appears on the strategic plan map, close to the subject site. That designation is described, on the map, as a mixed industry/business area (MIBA). The designation is not cadastrally based and is not carried forward in any area designation of land in this vicinity under Chapter 3. It was submitted, for Metroplex, that the designation refers to an intended future MIBA and that it is logical for the subject site, being a large undeveloped site in close proximity to the designation, to take up that intent. The Strategic Plan contemplates the development of new special purpose facilities[84].

[85] There was debate about whether the MIBA symbol should be taken to authorise any greater office component than is provided for within the convenience centre encouraged by the WGLP. The strategic plan does not quantify the size or area of the MIBA or the extent of its "business" component. It was submitted, against Metroplex, that it is the WGLP which has specified the appropriate (and limited) extent of business facilities planned.

[86] It was pointed out, for Metroplex, that special purpose centres are intended to provide for particular "major activities". Further, insofar as SP12 "Mixed Industry and Business" is concerned, the intention is to provide for the use of premises "on a large parcel of land" to accommodate those seeking to "combine their major office and industry functions in one central location". This would, on its face, appear to be referring to something different from the convenience centre which is encouraged in the WGLP "to meet the needs of the local industries and workforce", although, as is noted later, MIBA's in Brisbane do not always conform to the description in SP12[85].

[87] It was pointed out that the WGLP does not contain any express countermanding of the MIBA symbol on the strategic plan and it was submitted, consistently with the evidence of Mr D Brown[86], that there is no necessary inconsistency between an intention for the precinct to become an industrial area of city wide and regional significance and the notion that it may also incorporate a MIBA. It was submitted that there is no conflict between the strategic plan and the WGLP. Rather, the strategic plan intent remains, albeit that the WGLP does not provide any greater level of planning with respect to the future MIBA.

[88] Attention was drawn to the statement, in City Plan, that:

"for some parts of a local plan area, more localised planning direction is not necessary. These locations are usually left blank on the local plan map"[87].

At a glance

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Judgment (527 paragraphs)

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Legislation Cited (4)

Cases Cited (5)