Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty... [2019] QPEC 46 | Case summary

Planning and Environment Court of Queensland|2019-10-08

PLANNING AND ENVIRONMENT - APPEAL - where BGM seeks a development permit to authorise it to carry out a material change of use to use its land for a proposed local centre - where the council approved BGM's application -whether BGM's proposed development complies with the relevant assessment benchmarks - whether BGM's proposed development is appropriately located - whether BGM's proposed development is appropriately designed - whether BGM's proposed development would result in unacceptable headlight glare - whether there is a need for an additional local centre - whether in exercise of the discretion the proposed development ought be approved

PLANNING AND ENVIRONMENT - APPEAL - where ANH sought a preliminary approval for a local centre - where the council refused ANH's application - where ANH now seeks a preliminary approval generally in accordance with a design - whether ANH's proposed development complies with the relevant assessment benchmarks - whether ANH's proposed development is appropriately located - whether ANH's proposed development is appropriately designed - whether ANH's proposed development would result in unacceptable noise impacts - whether ANH's proposed development was unacceptable having regard to traffic engineering considerations - whether in exercise of the discretion the proposed development ought be approved

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, approved

Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPEC 34, approved

Garyf Pty Ltd v Maroochy Shire Council [2008] QPEC 101; [2009] QPELR 435, approved

Gaven Developments Pty Ltd v Scenic Rim Regional Council & Ors [2010] QPEC 51; [2010] QPELR 750, approved

Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, considered

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

Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved

Jedfire Pty Ltd v Logan City Council [1995] QPLR 41, approved

Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17, cited

Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, approved

Mirani Solar Farm Pty Ltd v Mackay Regional Council 7 Anor [2018] QPEC 38, cited

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2018] QPEC 63, cited

SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74; [2007] QPELR 24, approved

Smout v Brisbane City Council [2019] QPEC 10, approved

Vidakovic & Anor v Brisbane City Council [2009] QPEC 53; [2009] QPELR 739, approved

William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, approved

C L Hughes QC, J G Lyons and M Batty for the co-respondent

Moreton Bay Regional Council Legal Services Department for the respondent

[1] Approximately 30 kilometres north of the Brisbane CBD is the suburb of Narangba. Parts of Narangba, particularly east of Oakey Flat Road, have long established low-density residential development. An existing local convenience centre, Narangba Valley Shopping Centre, serves those residences. More recently, extensive residential development is underway west of Oakey Flat Road. There is a need for an additional local centre to serve that emerging population.

[2] BGM Projects Pty Ltd ("BGM") and Australian National Homes Pty Ltd ("ANH") have each proposed to develop a shopping centre to address that need. Moreton Bay Regional Council approved BGM's application for a local centre at Sovereign Drive, Narangba, but Mr Murphy (a director of ANH) appealed that decision. The Council refused ANH's application for a local centre at 96 Raynbird Road. ANH appealed that decision.

[3] The question for me to determine is whether the need for an additional local centre in the area should be addressed by approving one of the proposed shopping centres and, if so, which one.

[4] The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) apply to the appeals.[1] In deciding the appeal, the court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the court considers appropriate.[2]

[5] The appeals proceed by way of hearing anew.[3] BGM and ANH each bears the onus with respect to its proposed local centre.[4]

[6] The nature of the approval sought by each of BGM and ANH differ.

[7] BGM seeks a development permit to authorise it to carry out a material change of use of its site from its presently vacant use to use for a proposed local centre generally in accordance with the design reflected in the plans provided as Exhibit 4.

[8] ANH's development application, as originally made, did not contain a detailed design of its proposed local centre. As such, ANH did not seek a development permit to authorise it to carry out a material change of use. Rather, it sought a preliminary approval for a local centre with the full range of uses typically found in such centres and with a maximum retail gross floor area of 7 000 square metres. ANH provided a concept plan to show, in general terms, one way its site might be developed for the type of local centre it proposed. During the trial, ANH refined the design of its proposed local centre. It now seeks a preliminary approval for a local centre generally in accordance with the design reflected in the plans provided as Exhibit 111. It also seeks approval to vary the effect of the Moreton Bay Regional Council Planning Scheme 2015 ("the Planning Scheme"). This is to obviate the need for public notification of future applications for development of a local centre, provided it is generally in accordance with ANH's proposed plans.[5]

[9] There is a broad discretion in determining the appeals.[6] The exercise of the discretion must be based on an assessment that:[7]

(i) against the assessment benchmarks in the Planning Scheme to the extent relevant;[8]

(ii) having regard to, relevantly, any development approval for, and any lawful use of, the premises or adjacent premises. For BGM's development application, this includes an approval of a neighbourhood centre on part of its site. For ANH's development application this includes an approval for development of the adjacent premises for low density residential development that provides access via a new intersection on Raynbird Road;[9]

(b) may be carried out against, or having regard to, any other relevant matter, other than a person's personal circumstances (financial or otherwise).

[10] As ANH's application also sought to vary the effect of the Planning Scheme, the discretion can be exercised to approve all or some of the variations sought; or to approve different variations from those sought; or to refuse the variations sought.[10]

[11] The exercise of that discretion must be based on an assessment that considers:[11]

(a) the result of the assessment of that part of the application that sought a preliminary approval for a material change of use;

(b) the consistency of the variations sought with the rest of the Planning Scheme;

(c) the effect the variations would have on submission rights for later development applications, particularly considering the amount and detail of information included in, attached to, or given with the application and available to submitters; and

(d) any other matter prescribed by regulation.

How should the decision under s 60 of the Planning Act 2016 be approached?

[12] It was common ground between the parties that how impact assessable development applications are to be assessed and decided is comprehensively, and correctly, analysed by His Honour Judge Williamson QC in Ashvan Investments Unit Trust v Brisbane City Council[12]. I agree.

[13] The observations of Judge Williamson QC in Ashvan[13] accord with the more recent observations of the Honourable President Sofronoff in Gold Coast City Council v K&K (GC) Pty Ltd.[14] President Sofronoff compares the decision-making process under the Local Government Act 1936 (Qld) with that under the Sustainable Planning Act 2009 (Qld). He described the former process as a flexible one where the applicable statutory criteria would vary from case to case.[15] That is not what s 326 of the Sustainable Planning Act 2009 requires.[16]

[14] Under the Planning Act 2016, there has been a change in the decision-making process from that which existed under its predecessor in s 326 of the Sustainable Planning Act 2009. For impact assessable development, s 60 of the Planning Act 2016 affords greater flexibility than its immediate predecessor does. Both the decision of Judge Williamson QC and the later decision of President Sofronoff cite the decision of Judge Carter in William McEwans Pty Ltd v Brisbane City Council[17] when describing the exercise involved in a more flexible decision-making process. The explanation by Judge Carter about the nature of the balancing exercise required by that flexible decision-making process entails, while lengthy, bears repeating. Judge Carter said:

"Any zoning scheme must have as its basis the desire to so order land use as to best satisfy the needs and the physical well being of the community for whose benefit the zoning scheme is constructed. The enormously difficult task confronting the framers of a town planning scheme is to try to control land use in such a way that the needs of the community and its ability to enjoy life within that community are best served. This involves the subjection of the individual will to the overall good of the community, as it is perceived to be by those who frame, and by those who ultimately adopt, the scheme thereby giving it legal efficacy. The scheme, once it becomes law, must be seen to be an expression of the will of the community that its various needs are best provided for in the manner, by which the scheme controls the use to which land might be put. The scheme, in turn seeks to serve the need in the community for an agreeable residential amenity, the need to ensure adequate and suitably located land for heavy and light industry and for the manufacture and the retailing of consumer goods, the need for open space, the need for facilities for public purposes and so on. In respect of the scheme in its final form, the assumption is that these various needs are provided for in such a way that the physical well being of the total community is guaranteed. But is (sic) cannot be validly asserted that the needs of a community remain static and immutable. Rather, the concept of need in a community, in town planning terms, is a variable and is perhaps as volatile as human nature itself. The desire, perhaps the need, for change in a certain land use must be assessed in the first place, with a view to determining the justification for the change, which in turn involves a value judgment as to whether the people in the community will be positively advantaged by the change, and, in the second place, with a view to determining what effect the change will have on the other zoned land use, which in turn involves a value judgment as to whether the people in the community will be disadvantaged by the change. The ultimate task must be to ensure a proper balance which at a particular time adequately expresses the community will. My point is to emphasise, on the one hand, the necessity for control or the necessity for rigidity in a planning scheme, and on the other, the necessity to recognise the need for adjustment of that scheme if needs be or, the necessity for flexibility."

[15] Judge Carter's observations remain relevant for planning schemes under the Planning Act 2016. The purpose of the Planning Act 2016 is to establish an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning. Adopted statutory planning controls are an important element in that system. They provide a mechanism to achieve an orderly system of development and, conversely, avoid haphazard development. They facilitate the integration of land use and infrastructure planning, and the cost-effective provision of infrastructure to service development. Planning schemes strike a balance between the protection of ecological processes and natural systems; economic development; and the maintenance of the cultural, economic, physical, and social wellbeing of people and communities. Like planning schemes under the Local Government Act 1936, current planning schemes try to control land use in a way that best serves the needs of the community while maintaining the ability to enjoy life within that community. They continue to involve the subjection of the individual will to the overall good of the community (and the environment).

[16] Judge Carter's observation about planning schemes representing an expression of the will of the community also holds true under the current planning legislation. Planning schemes are given the force of law after an extensive preparation process that includes public notification and State interest checks.[18] As was observed by Judge Carter in Martin Dillon & Associates v Townsville City Council[19], the very raison d'être of a planning scheme is to best serve the needs of a community.[20] As such, where a planning scheme expresses a clear and deliberate policy about the appropriate development of land, one should not readily depart from it.

[17] Judge Williamson QC explains the rationale underlying the need for rigid application of adopted planning controls in Ashvan.[21] Planning controls serve the wholesome purpose of building a community's confidence in a planning scheme. This is a matter of importance as a planning scheme is a statutory document. It can inform public investment decisions, such as decisions about delivery of infrastructure. It can also inform private investment decisions, including decisions made by individuals about where to live and decisions made by corporations seeking returns on commercial development.

[18] As was noted by Judge Carter in Martin Dillon & Associates v Townsville City Council,[22] control is inevitable for the good of all. However, it must also be recognised that blind adherence to that part of a planning scheme that is rigid is apt to obscure the fact that the need and the wellbeing of the community, or a significant part of it, may sometimes be better served by permitting an outcome that does not strictly comply with those controls. That flexibility may, in some instances, better serve the interests of the public is apparent when one considers the complexity of the task confronting a local government in preparing a planning scheme.

[19] As I have mentioned in paragraph [15] above, a planning scheme seeks to strike a balance between ecological protection, economic development, and community well-being in a manner that expresses the will of the community. The Planning Scheme reflects how a local government strikes the balance, on behalf of its community, through the identification of strategic outcomes for the local gover[23]ent area.23 To allow promulgation of the document in the manner provided by the legislation, the elected officials determine these forward planning policy decisions at a particular poi[24] in time.24 As was noted by Judge Williamson QC[25]n Ashvan,25 it is not possible to forecast the will of the community, in land use terms, with scientific precision. The needs of a community are not static and[26]mmutable.26

[20] The legislation requires a planning scheme to include measures to facilitate the achievement of the strategic outcomes.[27] The local government must draft them in circumstances where the available information is limited. For example, while a local government may have studies that provide a reasonable indication of the ecological values present in a particular locality, or natural features that pose a constraint for development, it does not have detail about every attribute of every piece of land within its local government area. The available information reflects the position at a particular point in time. Further, a planning scheme expresses the controls that guide the parameters of development in performance-based terms.[28] They do not advance a particular design option or solution for a particular site. They are drafted without the benefit of a particular development option or design. While planning controls are generally drawn by town planners with experience of a great variety of applications, the combination of criteria applicable in any one case can differ, depending on the particulars of the development proposed and the location it is proposed. A local government could not possibly foresee every combination of controls that might apply, and their impact on every potential development scenario that individuals may seek to advance on every site across its local government area.

[21] When viewed in that context, one can appreciate that development that differs from that encouraged by the planning controls, or that fails to comply with benchmarks set in a planning scheme, does not necessarily result in haphazard development. Development may differ from the planning controls but be compatible with, ancillary to or designed to complement the planning outcome sought by the planning controls, or otherwise advance the needs of a community in a particular area without undue adverse town planning consequence, because of its own merits and the particular combination of facts and circumstances relevant to it.[29] This underscores the importance of flexibility in the decision-making process.

[22] I agree with Judge Williamson QC's observation that a planning decision, and the inherent balancing exercise it entails, is invariably complicated and multifaceted. It must strike the balance between the maintenance of confidence in a planning scheme on the one hand and dynamic land use needs and recognition that town planning is not an exact science on the other. The Sustainable Planning Act 2009 gave primacy to the planning scheme in the striking of the balance. That is not what s 60 of the Planning Act 2016 requires. Under the Planning Act 2016, the discretion is to be exercised based on the assessment carried out under s 45. Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the planning scheme and proper planning practice.[30] Not every non-compliance will warrant refusal. It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.[31]

[23] In this case, the relevant assessment benchmarks require evaluation of the proposed local centres by reference to:[32]

(a) for each of BGM and ANH's development applications:

(i) whether the proposed development is appropriately located;

(ii) whether the proposed development is appropriately designed;

(b) for BGM's development application only, whether BGM's proposed development will result in unacceptable headlight glare for residences in Sovereign Drive;

(i) whether ANH's proposed development would result in unacceptable noise impacts; and

(ii) whether ANH's proposed development is unacceptable having regard to traffic engineering considerations.

[24] BGM and ANH each also rely on relevant matters to contend their development application should be approved, namely:

(a) the need for an additional local centre; and

(b) the comparative benefits of their proposed local centre.

[25] The Council supports approval of BGM's proposed development, but not ANH's.

What is the nature of BGM's proposed development?

[26] BGM seeks a development permit to facilitate a local centre on land located at the corner of Oakey Flat Road and Sovereign Drive and with a development area of approximately 3.973 hectares. The site is within the Narangba Heights residential estate, which is to be developed over 26 stages and is currently under construction. Part of the site is the subject of a development permit granted in August 2016 for a material change of use to facilitate a "Neighbourhood hub" of approximately 1 090 square metres comprising a restaurant, shop and takeaway food outlet. That approval has not been acted upon.

[27] The local centre for which the Court's approval is now sought is depicted in Exhibit 4. It has a gross floor area of 6 646 square metres comprised of a supermarket of 3 946 square metres, specialty retail of 2 149 square metres, a 170 square metre fast food outlet, and a service station with a building of 201 square metres and a fuel canopy over three petrol bowsers. The potential uses to be accommodated in the specialty retail area includes shops, veterinary services and indoor sport and recreation.

[28] The building containing the supermarket is to be located at the rear of BGM's site. Part of the specialty retail (described as Specialty Shop 1 and Specialty Shop 4 with areas of 1 389 and 200 square metres respectively) is proposed to be located in areas that sleeve either side of the supermarket. One of those areas is two storeys, with lift and stair access to the upper level tenancy and terrace area. Specialty retail is also proposed in two freestanding buildings that adjoin Sovereign Drive (described as Specialty Shop 2 and Specialty Shop 3 with areas of 350 and 201 square metres respectively). The service station is to be located adjoining the Oakey Flat Road frontage, although no direct access is proposed from that road. The food and drink outlet (fast food) is to be located centrally on BGM's site. It will include a drive through facility.

[29] A total of 300 car parking spaces are proposed. The majority of on-grade car parking is located between the supermarket and Specialty Shops 1 and 2. Additional parking is located to the north-west of the supermarket and between specialty shop 3 and the food and drink outlet. There is also car parking immediately adjacent the service station building.

[30] Access is proposed from Sovereign Drive by way of two separate driveways. One is centrally located along the frontage and predominantly provides access to the supermarket and specialty retail facilities. The other predominantly provides access to the service station, food and drink outlet and Specialty Shop 3. No access is proposed from Oakey Flat Road.

What are the relevant assessment benchmarks for BGM's proposed development?

[31] Under the Planning Scheme, BGM's site is mapped as part of the Next generation neighbourhood place type for the Strategic framework. That place type applies to new greenfield areas that have potential, and are suitable, to accommodate new residential development. BGM's site is also located in the General residential zone (Next generation neighbourhood precinct).

[32] The Planning Scheme contemplates development of new local centres in areas mapped in the Strategic framework as part of the Next generation neighbourhood place type and on land in the Next generation neighbourhood precinct of the General residential zone. Section 3.6.2(6) deals with activity centres in the region generally. It contemplates the development of new viable local centres "in appropriate locations in walkable neighbourhoods with street-fronting retail and non-retail commercial layouts instead of enclosed or parking-lot dominant retail formats". Each of s 3.14.9, s 3.14.9.4(6) and s 3.14.9.4(7) also make specific provision for the establishment of new local centres in areas mapped Next generation neighbourhood place type, provided those centres meet specified location and design criteria. Further, s 6.2.6.3.1(1)(f) of the General residential zone code contemplates the provision of local centres in the Next generation neighbourhood precinct.

[33] ANH does not dispute that new local centres are contemplated in the Next generation neighbourhood place type and the General residential zone (Next generation neighbourhood precinct). Rather, it alleges that BGM's proposed local centre departs from the provisions of the Planning Scheme that guide the locational and design criteria for the establishment of new local centres, in particular:

(a) s 3.6.2 (introductory unnumbered paragraph), s 3.6.2(1), (6) and (7), s 3.13.3.4(11), s 3.14.9 (5th para), s 3.14.9.4(6) and (7), s 3.14.11.3(2) and (7) and s 3.14.11.4(1) of the Strategic framework;

(c) s 6.2.1.6.1(1)(k)(iii) and (ix) and (l) and performance outcome PO2 of the Local centre precinct provisions of the Centre zone code; and

(i) performance outcome PO23 of the Local centre precinct provisions of the Centre zone code; and

(ii) s 6.2.6.3.1(1)(m) and performance outcome PO11 of the Next generation neighbourhood precinct provisions of the General residential zone code.

[34] ANH submits that the departures from the Planning Scheme are a consequence of BGM's proposed development resulting in unacceptable town planning outcomes, architecture and urban design outcomes and unacceptable headlight glare.

[35] Leaving aside the provisions that relate to headlight glare, ANH submits that the relevant assessment benchmarks advance six planning "themes", namely:

(a) a "main street theme", whereby local centres are to be designed in a main street retail format;

(b) a "clear separation/walkable neighbourhood theme", which requires a distribution of centres that reduces catchment overlap and provides a centre at a location that is central to a 15-minute walkable neighbourhood;

(c) an "anti-parking lot dominant theme", whereby the Planning Scheme seeks to avoid a parking-dominant retail format;

(d) an "active frontage theme", which requires local centres to be designed to address and activate streets and public spaces;

(e) a "quality design theme", whereby the Planning Scheme requires centres to be vibrant and attractive with well-designed public and civic spaces; and

(f) a "quality accessibility theme", which requires centres to be located to provide convenient accessibility by vehicle and active transport.

[36] Counsel for ANH helpfully identified each of these themes in exhibit 171. That exhibit reproduced the text of the assessment benchmarks and identified, by colour coding, the parts of each benchmark that ANH submits relate to each of its "themes".

[37] Counsel for the Council also provided helpful written submissions about the key matters that arise for consideration in relation to each of the identified provisions. As is noted in the Council's written submissions, the key matters it identifies "are not significantly different from the 'six themes' postulated in ANH's document exhibit 171."

[38] Counsel for BGM did not assist in the identification of the themes or key matters that arise for consideration when assessing the proposed development against the identified assessment benchmarks.

[39] Mr Schomburgk and Mr Vann, the town planners retained by BGM and ANH respectively, agreed with the themes identified by ANH. Mr Buckley, the town planner retained by the Council, generally agreed, except with respect to the main street theme. In his view, while the references to "main street" seek a design that involves a main street environment, those parts of the provisions that refer to "main through street" set a location requirement. They require local centres to be conveniently located on a street that has a thoroughfare function to them.

[40] While I generally accept ANH's characterisation of the planning goals sought by the identified assessment benchmarks, I agree with the qualification expressed by Mr Buckley.

[41] The "themes" can be grouped into two overarching considerations, namely:

(a) whether BGM's proposed development is appropriately located;[33] and

(b) whether BGM's proposed development is appropriately designed.[34]

Will BGM's proposed development be appropriately located?

[42] The Planning Scheme recognises the potential establishment of new local centres in the General residential zone (Next generation neighbourhood precinct). It does not map the intended location of each new local centre for a Next generation neighbourhood. Rather, it stipulates criteria that guide the appropriate location of such new centres.

What are the locational requirements in the Planning Scheme?

[43] The Planning Scheme stipulates new local centres are to:

(a) only occur where they are "located on a sub-arterial or collector road";[35]

(b) be conveniently located on a main through street (or on central intersections) and/or adjoin or be opposite to a public transport node;[36]

(c) be developed "in appropriate locations in walkable neighbourhoods";[37]

(d) be at locations that encourage and support healthy and active lifestyles;[38]

(e) in combination with neighbourhood hubs, "create a series of 15 minute walkable neighbourhoods". The Planning Scheme identifies that convenient locations for local centres and neighbourhood hubs are "on main through streets or on central intersections and within a 15 minute walking distance and responsive to active transport";[39]

(f) "service an unserviced catchment and [be] located to form 15 minute walkable neighbourhoods, with the local centre ... central to that neighbourhood";[40] and

(g) only occur where "clear separation from existing ... centres within the network are maintained to reduce catchment overlap and to establish 15 minute walkable neighbourhoods". In support of that, the Planning Scheme states that "generally, local centres should be separated from other centres by 2400m ... measured from the centre of each centre".[41]

[44] These requirements are consistent with the stated planning goals that:

(a) there be a strong network of activity centres that are provided with "convenient access by a quality public transport and active transport system";[42]

(b) local centres within Next generation neighbourhoods are to "generally be located on central intersections with good accessibility and visibility" and "in locations that support active transport";[43]

(c) activity centres are to be vibrant and attractive places "arranged within a public realm that provides ease of access";[44] and

(d) the Local Centre Precinct in the Centre Zone have "good local accessibility, particularly active transport".[45]

[45] The Planning Scheme defines "active transport" as "a form of manual transportation, including walking and cycling".

[46] These assessment benchmarks reveal two planning policies at play. The first is a planning objective to ensure new local centres provide convenient accessibility by motor vehicle and active transport modes, at a location that is conducive to provision of access by public transport (either now or in the future). The second is a planning objective directed at reducing overlap between catchments served by centres.

Will BGM's proposed local centre provide convenient accessibility by motor vehicle?

[47] BGM's site is located within the Narangba Heights development. Narangba Heights is a master planned residential development that extends from Oakey Flat Road in the east, to Burpengary Creek in the north and towards Raynbird Road in the south. It is being developed over 26 stages and is currently under construction. It includes approximately 653 lots. A large balance lot remains at the intersection of Sovereign Drive and Oakey Flat Road. BGM proposes to develop it for a local centre (which is the subject of this appeal) and a possible future retirement village and childcare centre, subject to development approvals being obtained.

[48] To the north and east of BGM's site are more established parts of Narangba. Those areas have primarily been developed for single detached dwellings. Further to the west is rural residential development. Immediately south-east of BGM's site, on the other side of the vegetated environmental corridor, is vacant land. The land was previously used for a quarry. South of that is ANH's proposed local centre site.

[49] BGM's local centre is proposed to be located on the south-western corner of the intersection of Oakey Flat Road, Young Road and Sovereign Drive. That intersection is comprised of a four-leg roundabout. Oakey Flat Road forms the north-south connections to the roundabout. The Overlay Map - Road Hierarchy in the Planning Scheme classifies Oakey Flat Road as a Council arterial road. The eastern connection to the roundabout is Young Road. It is classified as a Council sub-arterial road. Leading west from the roundabout is Sovereign Drive, which is a two-lane median divided road. It is not identified on the Overlay Map - Road Hierarchy as having an arterial or collector status. As such, it is an access street for the purpose of the Planning Scheme.

[50] BGM's proposed local centre site has a frontage of approximately 70 metres to Oakey Flat Road and 400 metres to Sovereign Drive. Two vehicular access points are proposed to the local centre. Both are from Sovereign Drive. One is a left in - left out access approximately 20 metres west of the Oakey Flat Road, Young Road, and Sovereign Drive roundabout. The other is an all movement access about 60 metres from the roundabout. There is to be no access from Oakey Flat Road.

[51] ANH submits that BGM's proposed development does not comply with the requirement of s 6.2.1.6.1(1)(l)(v) that "for a new centre, it is located on a sub-arterial or collector road". It says Mr Pekol, the traffic engineer retained by the Council, ultimately conceded as much.

[52] The Council submits that while Sovereign Drive is not identified as a sub-arterial or collector road on the Council's road hierarchy maps, the non-compliance with s 6.2.1.6.1(1)(l)(v) of the Planning Scheme should be given no weight in the assessment process. Counsel for ANH conceded this during oral submissions.

[53] I consider the non-compliance with s 6.2.1.6.1(1)(l)(v) of the Planning Scheme to be of little significance in this case for three reasons.

[54] First, the overlay map is reflective of the road hierarchy at a particular point in time. This is significant because Sovereign Drive is still being formed. The proposal plan for the future reconfiguration of the greenfield area to the west of Oakey Flat Road (designated Next generation precinct in the Planning Scheme) shows Sovereign Drive as a main through street. It is ultimately intended to connect Oakey Flat Road to Raynbird Road.

[55] Second, the traffic engineers accept Sovereign Drive functions as a collector street. As was explained by Mr Viney, the traffic engineer retained by ANH, Sovereign Drive has been constructed as a two-lane median-divided local collector road and functions as such.

[56] Third, I am satisfied BGM's proposed development will not offend the underlying planning policy that local centres provide convenient accessibility by motor vehicle. I accept the evidence of Mr Buckley and Mr Schomburgk. They opine that BGM's proposed development is located at the intersection of two locally recognisable main thoroughfares, on a site that is central and conveniently accessible to the intended catchment. Similarly, Mr Vann was of the opinion that BGM's proposed local centre is in an accessible location to serve the catchment identified by the economic need experts. The economic need experts also all agree that BGM's local centre is central to the catchment it will serve. The primary catchment includes areas generally west of Oakey Flat Road, including land in the Next generation precinct of the General residential zone and land on the eastern side of Oakey Flat Road, whose residents will also have access to the Narangba Valley Shopping Centre.

[57] Mr Viney was of the opinion that access off a higher order road other than Sovereign Drive was preferable. He is of the view that the access arrangements from Sovereign Drive are unacceptable in the form approved by the Council and need to be modified. He does not say those concerns warrant refusal of the proposed development or materially affect the convenient accessibility of the proposed local centre. Mr Pekol and Mr Douglas, the traffic engineer retained by BGM, do not share Mr Viney's concerns regarding the access. Ultimately, all of the traffic engineers were of the view that BGM's local centre could be approved with suitable conditions. Accordingly, the proposed access off Sovereign Drive is appropriate.

[58] For the reasons provided above, I am satisfied that BGM's proposed local centre provides convenient accessibility by motor vehicle.

Will BGM's proposed local centre provide convenient accessibility by active transport?

[59] The established residential area to the east of Oakey Flat Road is served by formal pedestrian paths along Oakey Flat Road (north of Young Road) and Young Road, as well as pedestrian path links to Wedgetail Circuit, Coronata Crescent, Lily Pilly Court, Facer Road and Tuckeroo Street. That existing pedestrian network extends to the Oakey Flat Road and Sovereign Drive roundabout, which already has formed pedestrian crossing facilities on three of its four approaches. In addition, Sovereign Drive and connecting streets in the Narangba Heights estate include a pathway network to the west of BGM's site. Photographs of the pathway network in the Narangba Heights estate show it to be of very high standard. There is a network of 2.5 metre wide paths along the major streets, which are suitable for shared cycle and pedestrian access. There are also paths of between 1.5 and two metres width along minor streets. There is no footpath provision along Oakey Flat Road south of Sovereign Drive.

[60] Sovereign Drive also has on-road cycle paths in each direction, although they are not marked for cycle use. They connect into the Young Road on-road cycle paths.

[61] In the first joint expert report of the traffic engineers, Mr Viney accepts that pedestrians and cyclists in the existing and future residential area to the west of BGM's site will have relatively easy access to BGM's proposed local centre. He does not consider that the residential area to the east of Oakey Flat Road allows pedestrians and cyclists easy access to Oakey Flat Road or to Young Road. However, during cross-examination, Mr Viney accepted that there were extensive, high quality footpaths in proximity to BGM's site, other than along that section of Oakey Flat Road located south of the Sovereign Drive and Oakey Flat Road roundabout.

[62] Mr Pekol and Mr Douglas are of the view that the established residential area to the east of Oakey Flat Road is relatively permeable by pedestrians. As such, they say BGM's site is well placed to take advantage of the existing pedestrian network. They are also of the view that BGM's site has very good pedestrian accessibility from residential areas to the west.

[63] The town planners expressed similar views. Mr Buckley and Mr Schomburgk agree BGM's site enjoys good pedestrian access from its catchment, including the developing Narangba Heights estate. Mr Vann also accepts BGM's site could readily connect with the footpaths and road network of the Narangba Heights estate. Like Mr Viney, Mr Vann expressed reservations about the extent of convenient access by active transport from areas to the east given the heavily car-based nature of the design of that existing residential area.

[64] I generally accept these opinions of the experts, though I do not share the concerns of Mr Viney and Mr Vann. Convenient accessibility by active transport is well demonstrated by Exhibit 63 and 65 prepared by Mr Douglas. Those exhibits map the location of paths in the area and provide photographs of the quality of those paths. The photographs demonstrate there is a very good walk and cycle network, other than along Oakey Flat Road south of the BGM site. The network provides quality pedestrian and cyclist accessibility to the BGM site.

[65] The lack of footpaths on the section of Oakey Flat Road south of the Sovereign Drive and Oakey Flat Road roundabout does not prevent access from the neighbourhood to the east of that. It reduces its convenience because access by established paths involves a route that is less direct. Although that area is less permeable by active transport than the area to the west, this limitation is reflective of the age of that development. The Planning Scheme, in s 3.1.3, acknowledges that improving connectivity is a matter that will take time. It is to be achieved by giving existing and future residents a greater range of convenient travel choices in more walkable communities. Consistent with the Planning Scheme intent, the newly developed (and developing) areas to the west of Oakey Flat Road is being developed as a walkable neighbourhood.

[66] For the reasons outlined above, I am satisfied BGM's proposed local centre will provide very good pedestrian accessibility from residential areas to the west, and less convenient, but reasonable, accessibility by active transport from residential areas to the east. I am satisfied that it complies with the active transport and walkable neighbourhood requirements in s 3.6.2 (introductory paragraph), s 3.6.2(6), s 3.13.3.4(11), s 3.14.9 and s 6.2.1.2(4)(c) of the Planning Scheme.

[67] I accept the opinions of Mr Pekol and Mr Viney that pedestrian accessibility to BGM's site could be enhanced by conditions requiring:

(a) the extension of the existing pedestrian footpath along the southern side of Young Road, west toward the Oakey Flat Road and Sovereign Drive roundabout for a distance of about 270 metres; and

(b) the provision of a new pedestrian crossing facility on the southern (Oakey Flat Road) approach to the roundabout.

[68] Mr Douglas recommends relocating the existing pedestrian refuse across Sovereign Drive immediately east of the right-turn egress from the shopping centre to a new location that is to the west of the shopping centre access intersection. This is to minimise vehicle and pedestrian conflicts and to improve sight lines for pedestrian crossings from north to south. A condition could address this.

[69] These issues with respect to conditions do not alter my view about the overall merit of BGM's proposed local centre. The Council can consider whether it wishes to impose the conditions at a later stage.

Will BGM's proposed local centre be at a location that is conducive to provision of access by public transport?

[70] BGM's proposed local centre currently has poor access to public transport. The nearest bus stop is about 1.2 kilometres from BGM's site. Despite this, I am satisfied that the proposed location of BGM's local centre on a main through street and at a central intersection is conducive to the provision of access by public transport. I also accept the unchallenged evidence of Mr Douglas that the indented bus stops currently provided on Sovereign Drive, approximately 350 metres west of BGM's site, have been provided in anticipation of future bus services through the expanding residential catchment. BGM's proposed local centre is sufficiently proximate to those bus stops to make it conducive to provision of access by public transport.

[71] Mr Douglas further notes that there is room to provide an indented bus bay (or bays) on Oakey Flat Road adjacent to BGM's site and opposite BGM's site. Mr Pekol agrees and says a condition should be imposed requiring the provision of an indented bus lay-by on Oakey Flat Road. The Council can consider whether it wishes to impose the conditions at a later stage.

Will BGM's proposed local centre "service an unserviced catchment"?

[72] ANH does not submit that BGM's proposed local centre would not provide convenient accessibility by active transport. However, it submits that the 15-minute walkable catchment for BGM's proposed local centre involves a very considerable overlap with the existing walkable catchment for the Narangba Valley Shopping Centre on Young Road. It says much of BGM's proposed local centre catchment is not "unserviced", and BGM's proposed local centre does not achieve the "clear separation" that is unambiguously intended to "reduce catchment overlap".

[73] Section 3.14.9.4(7)(d) of the Strategic framework requires that a new local centre service an unserviced catchment and be located to form 15 minute walkable neighbourhoods, with the local centre central to that neighbourhood. Section 6.2.1.6.1(1)(l)(iii) of the Centre zone code requires a new local centre only occur where there is clear separation from existing centres within the network. This is to reduce catchment overlap and to establish 15-minute walkable neighbourhoods. In support of that requirement, the Planning Scheme states that, generally, local centres should be separated from other centres by 2 400 metres, measured from the centre of each centre.

[74] Neither of these provisions require the "walkable" catchment of a new local centre to be exclusively served by the new local centre. The provisions admit of the potential for some catchment overlap. Compliance with them is a matter of fact and degree.

[75] Mr Buckley acknowledged that a planning policy for separation is important. The greater the separation, the greater the ability for centres to serve the catchments they are intended to serve. The requirement for separation is consistent with the stated planning goals, noted in paragraph [44] above, that there be a strong network of activity centres and that activity centres are to be vibrant and attractive places. Section 3.6.2(6) of the Planning Scheme also anticipates that any new local centre will be viable.

[76] The Centre and Neighbourhood Hub Design Planning Scheme Policy explains that, to remain economically viable, vibrant and attractive, existing centres need to evolve with time. It also notes that local centres (and neighbourhood hubs) are essential elements in the establishment of walkable neighbourhoods. Accordingly, the Planning Scheme allows for the establishment of new local centres provided they are well designed, located and distributed within the region. The Policy also says new local centres and neighbourhood hubs should not affect existing centres and should be provided centrally within the residential neighbourhood and not on the urban fringe.

[77] In considering the issue of compliance, there is a need to strike a balance between, on the one hand, providing convenient accessibility to local centres by active transport and, on the other hand, ensuring existing centres remain economically viable, vibrant, and attractive.

[78] BGM's proposed local centre is 1.5 kilometres by road from the Narangba Valley Centre. The Planning Scheme designates that centre as a local centre. Mr Douglas accepts that his walkable catchment for BGM's local centre stops just short of that existing centre. As such, a significant component of the walkable catchment for BGM's local centre, being that part east of Oakey Flat Road, is already within the 15-minute walkable catchment for the Narangba Valley Centre. Each of the town planners also acknowledge this. The overlap approximates the primary east trade area identified by the economists.

[79] BGM's proposed local centre will also serve a developing, and presently unserviced, "walkable" catchment, being that located west of Oakey Flat Road. That unserviced catchment roughly coincides with that part of the primary west trade area located in the Next generation neighbourhood precinct of the General residential zone.

[80] The combined effect of the following five aspects of the evidence satisfies me that the extent of catchment overlap for BGM's proposed local centre is not unacceptable and BGM's proposed local centre will service an unserviced "walkable" catchment to an appropriate degree.

[81] First, the economists agree that the vast majority of growth in the primary trade area will be to the west of Oakey Flat Road. As Mr Duane explained, minimal growth is predicted in the primary trade area to the east as that land is effectively fully developed. The growth will occur in the land to the west of Oakey Flat Road that is in the Next generation precinct of the General residential zone. By 2026, the population in the primary trade area west of Oakey Flat Road will exceed the population in the primary trade area to the east by close to 2 000 residents. By 2031, the economists predict the population in the primary trade area to the west will be 8 500 - almost double that to the east. By 2031, the predicted population of the primary trade area west of Oakey Flat Road alone will be approaching the catchment population the Planning Scheme intends will generally be served by a local centre.[46] As such, as the trade area of BGM's local centre matures, the greater balance of the population in the primary trade area will be in the primary trade area west (rather than east) of Oakey Flat Road.

[82] Second, I accept the evidence of Mr Duane that the aerial extent of the "walkable catchment" to the west, as shown on Exhibit 163 prepared by Mr Douglas, will increase as connections are established within new development in the Next generation precinct. I accept it is reasonable to assume, as both Mr Duane and Mr Brown do, that such development will include connections between the Narangba Heights estate and the land south of BGM's site. That land is the subject of a development approval obtained by Satterley Property Group Pty Ltd. The masterplan prepared by Satterley Property Group Pty Ltd shows a possible future connection. As such, I am satisfied that although BGM's proposed local centre is on the eastern extent of the primary trade area west, it is roughly central (north south) to the likely "walkable" catchment for residential development of the Next generation precinct west of Oakey Flat Road.

[83] Third, although the economic need experts do not agree on the extent of impact on other centres, they agree that approval of BGM's proposed local centre would not impact on the viability or vitality of the Narangba Valley Shopping Centre or Excelsior Park Village (the neighbourhood hub within the catchment). This is because of the significant growth anticipated in the primary trade area west of Oakey Flat Road. The economic need experts also agree that there would not be any unacceptable economic impact on the existing network of centres beyond the catchment.

[84] Fourth, the economic need experts agree that there is need for an additional local centre within the catchment. As such, I am satisfied that, were it to be approved, BGM's local centre would be viable.

[85] Fifth, BGM's proposed local centre is conveniently located on a main through street and central intersection. It is conveniently accessible by motor vehicle and active transport modes. It is at a location that is conducive to provision of access by public transport. I accept the evidence of Mr Schomburgk that there is little prospect that a more suitable intersection might be found somewhere further to the west and towards the centre of the Next generation precinct.

Conclusion regarding the appropriateness of the location of BGM's proposed local centre

[86] For the reasons set out above, I am satisfied that the evidence establishes that BGM's proposed local centre, if approved, will be well located. It will be highly accessible by motor vehicle and active transport modes. Its location, on a central intersection and main through road into the Next generation precinct, is also conducive to future provision of access by public transport. The location does not achieve the preferred 2 400 metres for separation of centres and there is a degree of catchment overlap between BGM's proposed local centre and Narangba Valley Shopping Centre. However, as the Next generation precinct is developed, the extent to which trade will be drawn from that part of the catchment near the Narangba Valley Shopping Centre will diminish because of the extent of growth that will occur west of Oakey Flat Road. As such, the proposed location is reasonably well aligned with the requirement that new local centres be viable and service an unserviced catchment. BGM's proposed local centre is consistent with the planning goals that there be a strong network of activity centres and that activity centres be vibrant and attractive places. The location of BGM's proposed local centre favours approval.

Will BGM's proposed development be appropriately designed?

[87] ANH submits that BGM's proposed local centre is non-compliant with the requirements that local centres have a main street format, active frontages, attractive and activated public spaces, and a design that avoids visually dominant carparking and enclosed formats.

What are the design requirements in the Planning Scheme?

(a) centres, including local centres, include a broad mix of land uses, and are structured as mixed use centres "in a predominantly main-street format to best serve their surrounding communities";[51]

(b) new viable local centres are to be developed with "street-fronting retail and non-retail commercial layouts instead of enclosed or parking-lot dominant retail formats";[52]

(c) activity centres have "attractive, high-amenity public spaces";[53]

(d) in the Next generation place type in the Strategic framework, "non-residential uses have active frontages";[54]

(e) new local centres only occur if they are "appropriately designed to have high quality urban design outcomes";[55]

(i) the design, siting and construction of buildings within a local centre are "centred around a main street", and parking, manoeuvring and servicing areas are designed, located and aesthetically treated to "not be visually dominant features from the streetscape and public spaces";[56]

(f) the establishment of a new centre only occurs where it is designed to include "active frontages around a main street core";[57]

(g) development "addresses and activates streets and public spaces" by:

(i) establishing and maintaining interaction, pedestrian activity and casual surveillance through appropriate land uses and building design (for example through the use of windows or glazing and by avoiding blank walls with the use of sleeving);

(ii) ensuring buildings and individual tenancies address street frontages and other areas of pedestrian movement;

(iii) locating new buildings to adjoin, or be within three metres, of a primary street frontage, civic space or public open space;

(iv) locating car parking areas behind or under buildings so they do not dominate the street environment;

(v) providing visual interest to the façade (for example by windows or glazing, variations in colours, materials, finishes, articulation, recesses or projections);

(vi) establishing a human scale;[58] and

(h) development ensures that the "amenity of the area and of adjacent sensitive land uses" is protected.[59]

[89] "Main street" is defined as "a street having a primary role to facilitate and foster opportunities for formal and informal social and economic exchange framed within the realm of a civic space".

[90] The Planning Scheme defines "active frontage" as a building that ensures interactivity and encourages cross-movement between the public and private domains at ground level and above ground levels by the way buildings are designed and oriented. An active frontage is one that avoids blank walls and façades. Instead, it:

(a) includes windows, openings, entry statements, balconies and awnings;

(b) uses a variety of materials, textures and colours;

(c) creates opportunities for surveillance and interface between different user groups; and

(d) provides a variety of activities to occur along the building front.

[91] The design requirements for new local centres referred to in paragraph [88] above are consistent with provisions that outline planning goals regarding activity centres generally. They require:

(a) there be a strong network of activity centres with well-designed public and civic spaces and active frontages that provide a focal point for compact, self-contained and diverse communities;[60]

(b) activity centres are to be "vibrant and attractive places" with a comprehensive variety of mixed uses arranged within a public realm that provides ease of access and space for activity and public events, important meeting places and focal points for the community;[61]

(c) in activity centres, "the street itself is the focus" of the public realm, providing the place for public interaction and exchange and the pathway for pedestrian movement and connection to the uses at the edge;[62]

(d) activity centres are designed "around a main street central core" that provides the focus of the centres' employment and business activity; and

(e) land in the Local centre precinct of the Centre zone act as a focal point and meeting place for the local community. Local centres are generally to serve a catchment of 10 000 to 15 000 people and "are generally defined by the presence of a full-line supermarket or a fully functioning main street that caters for a catchment of the same size".[63]

[92] The Centre and Neighbourhood Hub Design Planning Scheme Policy provides guidance about how to satisfy the assessment benchmarks. It encourages more innovative and site-specific design solutions and less "cookie cutter" development. It explains that the Planning Scheme places a high degree of importance on the policy that main streets form the core of centres. The shift is aimed at creating places for people.

[93] The Policy explains that, in terms of urban structure, a main street usually refers to a vibrant and active street with a continuous row of shops, small office spaces, and restaurants. They are usually located along a major thoroughfare though preferably not an arterial or sub-arterial road, and often run perpendicular to a sub-arterial road. Local centres generally only contain active retail and commercial use buildings on one side of the street. In terms of local centres, and the achievement of a "main street", the Policy also recognises that local centres are generally defined by the presence of a full-line supermarket or a fully functioning main street that caters for a catchment of the same size.

[94] The Centre and Neighbourhood Hub Design Planning Scheme Policy also provides guidance on the intended urban form in centres. It explains that traditional shopping centres conflict with the type of centres that the Strategic framework, and the Planning Scheme more generally, are trying to encourage. It notes that the Planning Scheme seeks centres that provide:

(a) a diversity of activities, rather than retail centres with limited entertainment or community activities;

(b) a broad spectrum of hours of operation and activity, rather than traditional centres with an insular focus, large blank walls to external streets and a sea of at grade car parking;

(c) permeable environments, as opposed to controlled movement through the centre that is non-permeable after hours;

(d) smaller compact centres offering diversity;

(e) internal and external pedestrian environments, rather than a focus on an internal pedestrian environment and external vehicular environments;

(f) prioritisation of public and active transport over private motor vehicle; and

(g) emphasis on connections to surrounding neighbourhoods, rather than poor connections.

[95] Design considerations noted in the Policy emphasise the importance of walkability and legibility for pedestrians and a design that fosters activity. Active frontages are intended to assist with walkability and access by public transport, as well as vibrancy of a centre, by facilitating natural surveillance of footpaths, bus stops and taxi ranks. The Policy indicates that those issues can also be addressed by a design that locates uses with extended hours to the street and around public spaces.[64]

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46

At a glance

Court

Decision date

Source

Judgment (1027 paragraphs)

Legislation Cited (7)

Cases Cited (1)