Stephen Family Pastoral Pty Ltd as Trustee for the Stephen's Family Pastoral... [2025] QPEC 27 | Case summary

45Stephen Family Pastoral Pty Ltd as Trustee for the Stephen's Family Pastoral... [2025] QPEC 27 | Case summary | Zoe

[38]

[1] It has long been established that a planning scheme is taken to be an embodiment of the public interest. Its very purpose is to best serve the needs of a community in a particular area. For that reason, ordinarily one would expect that the extent of compliance with a planning scheme would be afforded significant weight in determining whether a development application should be approved or refused. That said, planning schemes reflect a local government's determination at a particular point in time. The same is true of amendments to planning schemes. The local government's determination about how best to meet the needs of a community is based on available facts and assumptions about the future of an area.
[2] Planning schemes are to be considered in a context where the needs of a community are not static and immutable: Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134 at 139. In some instances, parts of a local government area may experience an unforeseen rate or form of development that is not reflected in the expression of public interest constituted by the planning scheme: Gold Coast City Council v K & K (GC) Pty Ltd (as trustee for K & K Family Trust) [2020] QPELR 631; [2019] QCA 132 at 646 [68]. This is such a case.
[3] Logan Reserve is a suburb within the Council's local government area. It lies approximately 10 kilometres west of the Beenleigh central business district, 29 kilometres south of the Brisbane central business district and 39 kilometres north-west of the Southport central business district.
[4] Historically, Logan Reserve has been characterised by a predominance of rural residential development. That land is included in the Emerging community zone under Logan Planning Scheme 2015 ("Logan Planning Scheme"). Such land is intended for use for an urban purpose in the future but, until detailed land use and infrastructure planning has been completed, it is to be protected from uses other than interim uses.
[5] The Co-respondent, Loganview Road North Pty Ltd, made a development application with respect to land situated at 2-30 Noffke Court, 1-23 Noffke Court and 565-577 Logan Reserve Road, Logan Reserve ("the subject land"). The development application seeks to facilitate, amongst other things, the establishment of a new local centre at Logan Reserve on land in the Emerging community zone under Logan Planning Scheme.
[6] When Loganview Road North Pty Ltd made its development application in August 2018, Logan Planning Scheme contained no detailed land use planning for Logan Reserve, and the area was still characterised by rural residential development. Much has changed in the intervening years.
[7] The Council has adopted strategic land use and infrastructure planning for Logan Reserve. As part of its trunk infrastructure planning, the Council made provision for a trunk metropolitan sports park on land that immediately adjoins the subject land. It has also amended its centres' hierarchy strategy to facilitate new centres in the Emerging community zone in certain circumstances.
[8] In addition, the Council has granted many development approvals, thereby facilitating a substantial quantum of residential development in Logan Reserve. Some of the approved residential development is at a density greater than anticipated by the strategic land use planning for Logan Reserve.
[9] Aerial images of the area show that the approved developments are progressing at a rapid pace. This trajectory is likely to continue, particularly given the establishment of a large, previously unplanned, secondary school and special school. Construction of the school has commenced on land that is a short and easy walk from the subject land.
[10] Many of these recent changes are not anticipated by the forward planning in version 5.1 of Logan Planning Scheme, nor the subsequent amendments to Logan Planning Scheme in relation to the Logan Reserve land use area. Other than with respect to the road network, the detailed land use planning for Logan Reserve in Logan Planning Scheme has not kept pace with the presently emerging community in that area or its needs.
[11] It is in that context that Loganview Road North Pty Ltd seeks approval to establish a new local centre on the subject land. Logan City Council ("the Council") approved the development application and, in this appeal, continues to support an approval.
[12] The Appellant, Stephen Family Pastoral Pty Ltd as trustee for the Stephen's Family Pastoral Trust, resists that outcome. During the public notification period for the impact assessable development application, Stephen Family Pastoral Pty Ltd lodged a properly made submission opposing approval of the development application. Amongst other things, it submitted that the proposed use did not address the impact on Stephen Family Pastoral Pty Ltd's proposal for a new district centre at Chambers Flat Road, Park Ridge.
[13] In the appeal, Stephen Family Pastoral Pty Ltd maintains that the proposed local centre should be refused.
[14] Loganview Road North Pty Ltd bears the onus of establishing that the appeal should be dismissed: s 45 of the Planning and Environment Court Act 2016 (Qld).
[15] For the reasons that follow, I am satisfied that the development application should be approved subject to conditions. There is a need to change the conditions of the approval. As such, the Council's decision should be set aside and replaced with a fresh decision to approve the development application subject to conditions.

[49]

[30] Under s 43 of the Planning and Environment Court Act 2016, subject to s 46, the appeal proceeds by way of hearing anew. The Court has a broad discretion in determining the appeal. It is to be exercised judicially and subject to the limitations in the relevant statutes. The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect.
[31] The Court must assess the development application under s 45(5) of the Planning Act 2016 as if it were the assessment manager: Planning and Environment Court Act 2016 s 46(2). The Court's decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 59(3) and 60 of the Planning Act 2016.
[32] Sections 45(5)(a)(i) and (7) of the Planning Act 2016 mandate assessment against the assessment benchmarks in a categorising instrument that was in effect when the development application was properly made. Version 5.1 of the Logan Planning Scheme is such a categorising instrument: s 43 of the Planning Act 2016. The correct approach to the construction of planning schemes was recently confirmed in Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153; [2025] QPELR 633 at 653 - 5 [82]-[93].
[33] Weight can be given to amendments to Logan Planning Scheme: s 46(2) of the Planning and Environment Court Act 2016 and s 45(8) of the Planning Act 2016. It is common ground between the parties that there are relevant amendments that should be given weight. All the parties contend that the amendments are material to the exercise of the discretion in this case. Not all the relevant amendments were made at the same time, but they are all reflected in version 9.1 of the Logan Planning Scheme.
[34] Pursuant to s 45(5) of the Planning Act 2016 and ss 31(1)(f) and (g) and (2) of the Planning Regulation 2017 (Qld), the assessment must also be carried out having regard to, amongst other things and to the extent that they are relevant:

[204]

[158] During her oral evidence, Ms Meulman accepted that the subject land is in sector 2 of the trade area, which is in the south-eastern part of the trade area. She acknowledged that the population growth in that part of the trade area provides a strong indicator of the need for a full-line supermarket in a convenient location for people in the south-eastern part of the trade area. She also accepted that there was a need for a range of convenience uses to cater for the population in sector 2 of the trade area. Ms Meulman acknowledged that, other than a site very close to the existing Woolworths on which Stephen Family Pastoral Pty Ltd seeks to establish a district centre, there are no other sites that could conveniently cater for the demand. She conceded that approval of the proposed local centre would be an appropriate outcome for the community.
[159] Like Ms Meulman, Ms Rayment originally opined that the subject land is a-central to much of the development activity. She said it would contribute to a detached node of activity and centre uses in a location that is not particularly convenient or accessible to the established and considerable growth corridor of the catchment area. Ms Rayment proffered that opinion in the Second Joint Expert Report of Town Planners dated 6 August 2024. It predates the release of the data referred to in paragraphs [147](b) and [147](c) above and the information reflected in her mapping of approved and constructed dwellings.
[160] During cross-examination, with the benefit of that additional information and knowledge of the construction of the school, Ms Rayment abandoned her earlier expressed opinion. She acknowledged that the subject land is central to the emerging growth and the proposed local centre will be convenient and accessible.
[161] In his December 2024 Separate Report, Mr Dimasi conducted a finer-grained analysis of the population within the trade area. His analysis focusses on the population's relative proximity to the subject land as compared to the recently established shopping centre (anchored by Woolworths) at the intersection of Chambers Flat Road and Park Ridge Road. Based on his analysis, Mr Dimasi opines that the resident population that is closer to the subject land than the existing Woolworths will be in excess of 8,600 residents at 2027 and more than 11,000 at 2031. Mr Dimasi considers that to be sufficient population to reasonably warrant and support a full-line supermarket in the locality. He says it also shows that the subject land is well-located and central to the existing and future resident populations whose needs it will serve. Mr Dimasi's analysis was not challenged by Ms Meulman. Mr Leyshon agreed with it.
[162] Mr Dimasi considers the land to be well-located for the use. He says that a network of centres involving the existing Woolworths and the proposed local centre would result in a well-distributed provision of supermarkets and other convenience shopping facilities. It would offer at least one centre or supermarket within a few minutes' drive time for the entire trade area population. In addition, the spatial distribution would result in more residents benefitting from a supermarket and associated convenience shopping facilities within a reasonable walk time.
[163] According to Mr Dimasi, the subject land is also well-located to accommodate the proposed local centre as it is on a main road and at the heart of a significant growth area.
[164] Having regard to the evidence above, I am satisfied that the proposed development is sufficiently central to the population whose need will be served to provide a benefit to the surrounding community.
[165] In addition, I am satisfied that the location of the proposed local centre location provides a community benefit because it is consistent with the important and sound planning and economic principle of creating a spatially distributed network of centres.
[166] In that respect, I accept the oral evidence of Ms Meulman wherein she confirmed that providing a spatial distribution of centres is consistent with sound economic planning principles, namely that:

[206]

[167] Ms Rayment similarly agreed these principles inform the objective of a spatial distribution of centres and accord with sound town planning principles. She acknowledged that the concept of spreading centres throughout a trade area has the inevitable benefit of increasing the ability for residents to walk to a centre.
[168] Stephen Family Pastoral Pty Ltd's second proposition is that approval of out-of-centre development undermines investment in designated centres and encourages speculative behaviour for sites close to the out-of-centre development.
[169] In support of this contention, Stephen Family Pastoral Pty Ltd relies on evidence given by Ms Rayment to the effect that recent approvals for residential developments proximate the subject land have disrupted the finer-grain planning for Logan Reserve. Ms Rayment sought to link those decisions to the Council's decision to approve the proposed development. Ms Rayment opines that increasing residential density and the scale of activity beyond what is contemplated by the Logan Reserve General Layout Plan would result in development that is out of sequence, thereby impacting the delivery of infrastructure.
[170] I have reservations about the veracity of this proposition. It ignores that Logan Planning Scheme contemplates out-of-centre development in identified circumstances: see s 3.5.8.1.
[171] I also do not accept Ms Rayment's opinions in this regard. They are founded on speculation. They also ignore the impact of the Ministerial Infrastructure Designation for the school on the delivery of infrastructure proximate the subject land.
[172] The third proposition advanced by Stephen Family Pastoral Pty Ltd is that approval of the proposed local centre will create a new node of activity that is separated from an established centre.
[173] With respect to this issue, Stephen Family Pastoral Pty Ltd relies on the evidence of Ms Meulman. She opines that the community benefits more from a consolidation of retail facilities around an existing node than from a new, separated centre. She says that consolidation can improve the overall range of facilities and choice for the community. I do not accept that evidence. It is at odds with the principles to which I refer in paragraphs [165] to [167] above.
[174] In addition, inherent to Ms Meulman's evidence is an assumption that the consolidated centre is at a different level of the hierarchy and, as such, can provide a greater range of facilities. The economic analysis focuses on the need for a local centre, not a district centre.
[175] I accept the oral evidence of Ms Rayment during cross-examination. She acknowledged that Logan Planning Scheme specifically contemplates stand-alone local centres. As Ms Rayment appropriately accepted, the recent amendments to Logan Planning Scheme expressly require new local centres in the Emerging community zone to be separated from centre-zoned land. Ms Rayment ultimately recognised that a new stand-alone centre locationally removed from centre-zoned land is not a poor outcome for the intended centre hierarchy: it is a requirement of it. I accept this evidence.
[176] In the circumstances, I do not accept Stephen Family Pastoral Pty Ltd's proposition that the creation of a new node will not result in a net benefit to the community. To the contrary, given the economic need of the emerging community, there is a community benefit associated with the location of the proposed centre on the subject land, separated from the existing Woolworths on Chambers Flat Road.
[177] Stephen Family Pastoral Pty Ltd's fourth proposition is that the proposed local centre does not conform with reasonable community expectations for development in the locality and the type of centres that the community may reasonably expect to be delivered.
[178] Stephen Family Pastoral Pty Ltd cites no evidence in support of its submission. In any event, having regard to my findings above, I reject the submission.
[179] In addition to the community benefits identified above:

[226]

[192] In this case, there is no evidence of a commitment from, or interest expressed by, Woolworths, Coles or any other major supermarket tenant. On that basis, Stephen Family Pastoral Pty Ltd invites me to infer that it is unlikely that the proposed local centre can or will be delivered.
[193] Evidence of a commitment from, or interest expressed by, Woolworths, Coles or another major supermarket tenant is not direct evidence that a shopping centre anchored by a supermarket will be delivered. Nevertheless, evidence of that nature can support an inference or finding that there is a latent unsatisfied demand or need for a proposed shopping centre and a likelihood that a particular development will meet that need. The converse does not necessarily follow.
[194] An absence of evidence of a commitment from, or interest expressed by, Woolworths, Coles or another major supermarket tenant does not directly prove that the proposed local centre cannot or will not be delivered. It also does not establish a relevant fact from which a reasonable inference may be drawn that the proposed local centre cannot or will not be delivered. Reasonable inferences about whether the proposed local centre can or will be delivered may only be drawn from facts that I find to be proved by the evidence. There must be a logical and rational connection between the facts I find and any inferences that I draw.
[195] That is not to say that the absence of such evidence is entirely irrelevant. The economic need experts say the presence and absence of expressions of interest is a matter that they consider in their assessment of need. Having regard to their evidence, I accept that the absence of any expressions of interest from tenants may be indicative of an absence of need. However, that is not the case here.
[196] In this case, Mr Dimasi did not regard the lack of expressions of interest as indicative of an absence of need. In his experience, some developers delay commercial discussions with tenants where there may be a delay in opening. That situation pertains here: the Council's approval restricted the opening date, and the approval has been the subject of protracted litigation.
[197] In addition, despite the absence of an expression of interest or a commitment from a supermarket tenant, all the economic need experts opine that there is a demonstrated economic need for the proposed development. They also expect that any operator of a full-line supermarket would be interested in delivering a full-line supermarket on the subject land.
[198] I accept the evidence of the economic need experts in this regard. Their opinions are supported by cogent explanations. Their evidence satisfies me that, on the balance of probabilities, if the proposed local centre is approved, it will meet the community need and economic need in a timely way.

[270]

[229] The same principles that apply to statutory construction apply to the construction of planning documents: AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58].
[230] The Court should give the words of a planning document the meaning that the local government is taken to intend them to have. Ordinarily, that meaning will correspond with the grammatical meaning of the provision: but not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute, or the canons of construction may require the words to be read in a way that does not correspond with the literal or grammatical meaning: See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, 384 [78]. See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, 381-2 [69]-[71]; SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, 368 [14]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20].
[231] The planning scheme is to be read as a whole and in a way that is practical and intended to achieve a balance between the individual outcomes: AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58].
[232] The ordinary grammatical meaning of s 3.5.8.1(1)(b)(iv) in version 5.1 and s 3.5.8.1 1. a. iv. in version 9.1 of Logan Planning Scheme would require the requirements of the sub-paragraphs to be read disjunctively: Commonwealth Government, 'Style Manual' (John Wiley & Sons Australia, Ltd, 6th ed, 2002), 144.
[233] The ordinary grammatical construction sits comfortably with the amendments to the provision reflected in version 9.1 of Logan Planning Scheme. They expressly contemplate establishment of new local centres and new district centres on land in the Emerging community zone provided there is compliance with ss 3.5.8.1 1. a. v. and 3.5.8.1 2. This suggests that, properly construed, s 3.5.8.1 1. a. iv. in version 9.1 of Logan Planning Scheme does not require demonstration of sub-paragraphs (A) and (C).
[234] Not all the contextual indications in Logan Planning Scheme support that construction.
[235] A material obstacle to the ordinary grammatical construction is s 1.3.3 in version 5.1 of Logan Planning Scheme, which states:

[288]

[250] No other existing, planned or approved local centre, district centre, major centre or principal centre is within two kilometres of the subject land.
[251] There is disagreement between the parties about how the separation distances are to be measured and, as such, whether there is compliance with this provision.
[252] Stephen Family Pastoral Pty Ltd submits that this provision serves a legitimate planning purpose. The provision ensures that trade areas of centres do not unduly overlap so that the viability of existing, planned, and approved centres is maintained, and those centres are not unacceptably impacted by new centre proposals.
[253] According to Stephen Family Pastoral Pty Ltd, the provision is different in focus than provisions that require development to be located within a distance for a particular purpose (for example, high density development being located within a particular distance from a public transport station). Such a provision contemplates movement from the development to a particular point and, as such, would require a measurement by road.
[254] In addition, Stephen Family Pastoral Pty Ltd submits that measuring separation distance in a direct line is appropriate for a provision that relates to a new centre in the Emerging community zone because the road network in such an area is often subject to change. If the distance is to be measured by road, that begs the question: is the measurement undertaken by reference to the existing or planned road network? Measuring distances radially avoids the need to answer that question.
[255] The Council submits that there is merit in Stephen Family Pastoral Pty Ltd's construction but says there is also obvious logic in the alternative approach. During cross-examination, Ms Rayment acknowledged that measuring separation by roads addresses sensible objectives that underpin the planning goal. Those objectives include achieving an equitable spatial distribution of centres to provide convenience and accessibility (including by walking).
[256] In this case, it is unnecessary for me to determine how the provision is to be construed. I am prepared to assume that the proposed development fails to comply with it. That is a matter that tells against approval.
[257] That said, I am not prepared to ascribe material, let alone determinative, weight to this non-compliance for four reasons.
[258] First, the evidence readily establishes that the proposed local centre will be a vibrant centre and will not threaten the viability of existing, planned, and approved centres, or otherwise result in an adverse impact on the other centres.
[259] Second, as Ms Rayment conceded during cross-examination, she is unable to identify another site within Logan Reserve that is not already approved for residential development and that:

[298]

[267] Section 3.5.8.1 2. a. in version 9.1 of Logan Planning Scheme requires that a new local centre in the Emerging community zone must be integrated with future public transport and public open space.
[268] There is no allegation of non-compliance with this requirement. As such, it is sufficient to make five brief observations.
[269] First, the proposed local centre is ideally located within the planned road network to integrate with future public transport: see paragraphs [99] to [103], [113] and [114] above.
[270] Second, the subject land is immediately opposite a local park and part of the subject land adjoins the planned location of a trunk metropolitan sports park: see paragraph [122] to [124] above. On the balance of probabilities, I consider that the planned location of the trunk metropolitan sports park will be a catalyst for the provision of public transport along Logan Reserve Road.
[271] Third, the proposed local centre is an easy walk to the new school that is under construction. The Ministerial Infrastructure Designation for the Logan Reserve Special School and Secondary School was made under s 38 of the Planning Act 2016 and took effect on 20 September 2024. It affects land located at 642-648, 650-656 and 658-668 Chambers Flat Road, 1-37, 39-63, 65-79 and 81-97 Derby Road and 647-655 and 657-671 Logan Reserve Road, Logan Reserve.
[272] The decision notice dated 16 September 2024 records the requirements about the works for the infrastructure and the use of the premises the subject of the Ministerial Infrastructure Designation: Exhibit J13. The Ministerial Infrastructure Designation requires development of the designated land for a secondary school and a special school. There is no prescribed limit on the number of students, but the requirements with respect to onsite car parking and passenger loading zones anticipate student enrolment capacity of 2,200 secondary school students and 240 special school students.
[273] The Ministerial Infrastructure Designation is subject to requirements about active and public transport, including requirements to:

[353]

[324] There are no material differences to these provisions in version 9.1 of Logan Planning Scheme.
[325] A comparison of the strategic outcomes and specific outcomes for the Future urban area to those for the Priority development area reveal materially different goals. The goal for the former calls for detailed planning that provides well integrated and serviced new communities. The goal for the latter indicates that the detailed planning intent is fixed by the gazetted development scheme. (With respect to the latter, the Economic Development Act 2012 establishes a framework for economic and community development in priority development areas in Queensland. It operates in place of the planning and development assessment process under the Planning Act 2016. In effect, the gazetted development scheme for a priority development area takes the place of a local government's planning scheme.)
[326] In addition, when the strategic outcomes, elements and specific outcomes for the Settlement pattern theme are considered with SFM-01.00-Strategic framework map, there is no discernible intention to control the number and spatial distribution of local centres and neighbourhood centres as part of the strategy with respect to the Settlement pattern theme. The only centres mapped on the SFM-01.00-Strategic framework map in version 5.1 of Logan Planning Scheme are the principal centres and the major centres (including the major centres planned for the Priority development areas at Flagstone and Yarrabilba). The SFM-01.00-Strategic framework map in version 9.1 of Logan Planning Scheme also maps the district centres.
[327] A fourth obstacle to Stephen Family Pastoral Pty Ltd's characterisation of s 3.3.3.1 6. of Logan Planning Scheme as part of the centres' hierarchy is the context provided in s 3.5 of Logan Planning Scheme.
[328] Section 3.5 in version 9.1 of Logan Planning Scheme identifies the planned hierarchy and network of interrelated centres: see paragraph [73] above. It states:
[329] The strategic outcome in s 3.5.1 1. is refined and further described in ss 3.5.2 to 3.5.8. Those provisions reveal:

[369]

[341] Stephen Family Pastoral Pty Ltd also submits that the land use and infrastructure planning carried out by the Council, which is manifest in Figure 3.8 - Logan Reserve in version 9.1 of Logan Planning Scheme, represents a deliberate strategy to locate higher intensity uses in the northern part of the Logan Reserve land use area and lower intensity uses in the southern area. That strategy is said to relate to both residential development and centres, with higher order centres to the north (at Park Ridge and at the corner of Chambers Flat Road and Logan Reserve Road) and neighbourhood centres dispersed throughout the south.
[342] In support of its submissions, Stephen Family Pastoral Pty Ltd points to seven textual considerations in version 9.1 of Logan Planning Scheme.
[343] First, ss 3.3.3.1 1., 3., 6. and 7. (see paragraphs [62] and [112] above) each employ strong language: for example, "Logan Reserve ... is developed" in accordance with "the integrated and orderly pattern of land use and infrastructure networks identified on Figure 3.8". Stephen Family Pastoral Pty Ltd says that the wording of the provision is not aspirational; rather, it is a clear direction that development proceeds in a particular way.
[344] The second textual consideration relates to the estimated population for each area and the number and type of centres specified in the respective provisions. Stephen Family Pastoral Pty Ltd contends that, when read together, one can discern an intention to depart from the otherwise general approach that the population base be served by different centres in the hierarchy. The general approach is said to be that outlined in s 3.5.8.1 of the Strategic framework and s 6.2.1.2 3. l. of the Centre zone code.
[345] Third, the figures for Park Ridge and Bahrs Scrub provide fixed and indicative locations for the centres that are referenced in the text of the provision. For example, Figure 3.3 - Park Ridge shows a district centre in the eastern extent of the land use area, a local centre in the west, and a dispersed network of "up to" eight neighbourhood centres throughout the land use area. According to Stephen Family Pastoral, the textual reference to "up to" eight neighbourhood centres indicates that the final number of neighbourhood centres in the Park Ridge land use area is not fixed. This is said to support the notion that they are to be provided as the area develops.
[346] Fourth, Figure 3.3 - Park Ridge gives an indicative location of neighbourhood centres and includes dashed circles around each of those locations (and around the fixed location of the district centre and the local centre) to indicate "800m walking catchment". This indicates an intention for there to be a spatial distribution of centres such that residents who are outside the 800 metre walking catchment for the district and local centres are within the walking catchment of a neighbourhood centre.
[347] Fifth, when the provision is read with the indicative trade area populations for centres provided by s 3.5.8.1 1. of the Strategic framework and s 6.2.1.2 3. l. of the Centre zone code, it is apparent that:

[437]

[399] The parties arranged a site inspection of the local area. Although my observations during this inspection do not form part of the evidence, my appreciation of the photographic evidence and opinions expressed by the experts is greatly enhanced by it.
[400] My findings below are not attributable to a single statement by an expert. They reflect the aggregate impression that I have formed having regard to the collective effect of the evidence, including the photographs and aerial photographs. That said, in general terms, I prefer the evidence of Dr McGowan and Mr Curtis to the written evidence of Mr Butcher. The opinions of Dr McGowan and Mr Curtis, and their identified foundations, accord with my assessment of the character and visual amenity impacts based on the plans, landscape plans and photomontages. Other than those aspects of his evidence that comprise points of agreement in the joint reports and concessions made during cross-examination, Mr Butcher's evidence does not accord with my own independent assessment.
[401] I accept that the proposed local centre will have an appearance that is commensurate with its function, namely that of a local centre anchored by a full-line supermarket. In that sense, its appearance will be of a different character to the form of development that can be expected to form the predominance of development in Logan Reserve.
[402] By itself, the commercial appearance does not demonstrate that the character and amenity impact of the proposed local centre will be unacceptable. As was appropriately acknowledged by Mr Butcher during his cross-examination, throughout the Logan City local government area and Queensland generally, local centres are commonly found juxtaposed with residential development. This occurs within areas that are predominantly characterised by low density and low-medium density residential form. Such a situation exists for several centres within 10 kilometres of the subject land: see Exhibits 22, 23, 24 and 25. I also accept the evidence of Ms Roughan and Mr Perkins that centres are a form of development that can be reasonably expected in a growing urban area. It is a form of development that is reasonable expected in the Emerging community zone under version 9.1 of Logan Planning Scheme.
[403] Careful consideration needs to be given to the design of the proposed local centre to assess its appropriateness.
[404] Here, the proposed local centre comprises a mix of local centre activities (that I have identified in paragraph [23] above) provided in a built form that is designed such that:

[439]

[405] Mr Curtis, Dr McGowan and Mr Butcher agree that the buildings accommodating the food and drink outlets (other than to the extent that there is provision for a drive-through facility), the health care services and shops, and the childcare centre all have a small-scale appearance and accommodate uses that cater for residents of the local area. The visual amenity experts agree that the buildings fronting Logan Reserve Road have a residential scale and bulk. I accept this evidence.
[406] The visual amenity experts also agree that the visual impacts of the childcare centre, at the western extent of the subject land, will be well-mitigated by the proposed vegetation in the drainage reserve and directly adjacent the built form along Noffke Court. I accept this evidence also.
[407] The evidence of Mr Curtis and Dr McGowan in relation to the Logan Reserve Road streetscape is compelling.
[408] Dr McGowan says that the three buildings accommodating food and drink outlets will be setback between approximately six and 13 metres from the road frontage. In his view, they will be partially screened by an acoustic barrier, landscaping and street trees. He opines that they present attractive, articulated and active facades to Logan Reserve Road.
[409] Dr McGowan explains that the building containing the supermarket and the main car parking area will be setback at least 40 metres from the Logan Reserve Road boundary and will be partially screened and softened by intervening buildings and landscaping.
[410] Mr Curtis agrees with Dr McGowan about the presentation of the buildings fronting Logan Reserve Road. He explains that the building at the corner of Logan Reserve Road and Noffke Court is a simple building form with a parapet that conceals its roof. A sign projects above the parapet at the building's southwest corner, and louvres are used to screen the roof mounted mechanical equipment. These elements provide subtle variation to the building's profile. The south facing wall is articulated by fenestration, which modulates the length of the wall and assists to reflect the human scale and the building's use. The horizontal cladding joints and darker ground level colouration complement the fenestration to provide a relatively unremarkable but noncontroversial appearance.
[411] The next built form is the canopy over the fuel bowsers of the service station. Mr Curtis describes it as having minimal bulk and an appearance of a simple horizontal element on supporting columns.
[412] According to Mr Curtis, the next building is proposed to have a more animated appearance due to the stepped height of its parapet, the variation of materials and the large window in the centre of the façade that contrasts with the solid, but articulated, appearance of the adjoining wall panels.
[413] Mr Curtis explains that the final building along the Logan Reserve Road frontage has a stylised appearance with decorative wall-cladding flanking a large central signage panel. The eastern and western corners accommodate large, glazed doors, and windows that provide access to alfresco dining areas.
[414] Mr Curtis opines that the design of those buildings will provide adequate and appropriate activation to the Logan Reserve Road frontage. He says that the articulated appearances of the buildings fragment their visual bulk, reflect the human scale, and provide a reasonable level of visual interest that will be complemented by the landscaped setback.
[415] According to Mr Curtis, although the supermarket building will have a significantly greater bulk than the three frontage buildings, it will not dominate the frontage due to its setback and the visual focus and obstruction provide by the frontage buildings and landscaping.
[416] I am also assisted by the evidence of Mr Curtis and Dr McGowan in relation to the Noffke Court streetscape. They explain that most of the built form is comfortably set back from the road and behind generous landscaping. As such, that streetscape will be characterised more by landscaping than by built form.
[417] Another aspect to be considered is the acoustic barriers that are proposed at various locations throughout the development.
[418] Walls, fencing and acoustic barriers are not an uncommon feature of the area surrounding the subject land. Various photographs from the local area show several recently constructed residential developments along Logan Reserve Road that have large retaining walls and fencing or acoustic barriers along the road frontage. These are common visual features in the locality's streetscape.
[419] Here, the proposed acoustic barriers have heights ranging from 1.8 metres to four metres. Landscaping is proposed proximate each of the acoustic barriers. I accept the evidence of Mr Curtis and Dr McGowan that the potential adverse impacts associated with the visual presentation of the acoustic barriers will be mitigated by the combined effect of the inclusion of transparent panels and recesses and articulation in the barriers, variations in their alignments, and the proposed landscaping. These design features will reduce the acoustic barrier's prominence and apparent scale. I also accept Dr McGowan's opinion that the acoustic barriers will not have an unacceptable impact on the streetscape provided they are constructed of quality materials, such as blockwork with a timber render finish or appearance. This can be addressed by a condition.
[420] The proposed conditions of approval include conditions that will appropriately mitigate potential adverse amenity impacts by requiring landscaping and incorporating measures to address potential nuisance, noise, lighting and the hours of operation.
[421] In terms of the overall character and visual amenity impacts, Dr McGowan opines that the layout and scale of the proposed built form, combined with the screening potential of the proposed landscaping, will result in an attractive streetscape presentation to both Noffke Court and Logan Reserve Road. He says that the aspects of this type of commercial development that often detract from the quality of the streetscape and diminish the character of an area (such as large expanses of blank walls, loading and servicing areas, high retaining walls presented to the street edge, and large areas of exposed carparking) would not be apparent in the proposed local centre. In addition, Dr McGowan says that the proposed local centre will present a more interesting and less imposing streetscape to Logan Reserve Road than is being realised by recently constructed residential developments along Logan Reserve Road, where large retaining walls and fencing or barriers are constructed along the frontages.
[422] Mr Curtis opines that the proposed development will provide an appropriate interface with the Logan Reserve Road and Noffke Court frontages. He says that the interface will appropriately mitigate impacts of the proposed local centre on future development, which is likely to be a low-density residential environment. He explains that this mitigation is achieved through the well-considered site planning, building design and landscaping. According to Mr Curtis, the proposed local centre will complement and contribute to the streetscape character of the evolving development in the Emerging community zone.
[423] I accept the above evidence of Dr McGowan and Mr Curtis.
[424] I also accept the evidence of Mr Butcher that:

[450]

(a) the overall outcomes in ss 6.2.1.2(2)(c) and (d) of the Centre zone code because, despite its visibility and its apparent commercial design, the proposed local centre will provide:

(i) a built form that provides visual interest and a sense of place that is appropriate in its context, particularly having regard to the emerging character informed by the school;

(ii) development that is compatible with the adjoining uses and protects amenity;

(b) the overall outcome in s 6.2.1.2(3)(a)(i) of the Centre zone code because, even though the visual appearance of the proposed local centre is not that of a neighbourhood centre:

(i) a local centre is within the community's reasonable expectations for the subject land; and

(ii) the proposed local centre will present as a local centre;

(c) the overall outcome in s 6.2.1.2(3)(e)(iii) and (vi) of the Centre zone code because:

(i) the subject land and the land surrounding it is in the Emerging community zone, not a residential zone category;

(ii) although the built form of the proposed local centre exhibits an obvious commercial character, that character is one that is reasonably expected on the subject land;

(iii) the built form and character of the proposed local centre complements, and integrates with, the development that is emerging in the surrounding area;

(d) the overall outcomes in s 6.2.1.2(3)(h)(ii) and (k) and performance outcomes PO10, PO13, and PO14 of the Centre zone code because, although the proposed local centre presents a highly activated, commercial frontage to Logan Reserve Road with signage elements designed to be visible to people travelling through the area, the proposed local centre nevertheless:

(i) positively contributes to the immediate streetscape character that is emerging in the vicinity of the subject land, including by:

(A) providing buildings that orient to Logan Reserve Road;

(B) providing well-articulated façades;

(C) incorporating detailed design measures for visual aesthetics;

(D) integrating with public open space and the planned road network;

(E) adopting a design that has a human scale;

(ii) provides a consistent and coherent streetscape that creates visual interest, a sense of place and a safe pedestrian environment that is consistent with the intended character of a local centre. It does so by including:

(A) a generous extent of landscaping proximate the roads and throughout the proposed local centre;

(B) appropriate road treatments; and

(C) vehicular entrances that are designed and located to reduce the visual impact on the streetscape, for example by locating them offset from the bulkiest aspects of the built form; and

(e) the overall outcomes in s 6.2.3.2(3)(b)(i) of the Emerging community zone code and s 6.2.1.2(3)(h)(i) of the Centre zone code because, even though the supermarket will be elevated above Noffke Court and the adjoining property to the north, the overall built form of the proposed local centre appropriately responds to site characteristics and transitions sensitively to surrounding uses. It does so by adopting a design that utilises several buildings that are carefully positioned on the subject land to minimise their visual impact.

[460]

[437] As I have mentioned, the assessment and decision-making process is to be approached consistent with the principles in those cases identified in paragraph [35] and [36] above.
[438] As is apparent from those cases, it is well-established that whether a development application is to be approved or refused is not necessarily determined by a finding of non-compliance with an assessment benchmark. The starting point generally remains that the planning scheme is taken to be an embodiment of the public interest. In most instances, where a planning scheme is not affected by changed circumstances, the decision-maker would give significant weight to it. Nevertheless, the Planning Act 2016 affords flexibility for an assessment manager, or the Court on appeal, in deciding an impact assessable development application. The flexibility promulgated by the Planning Act 2016 permits approval of a development application in the face of non-compliance with a planning scheme. This is because the decision can be informed by other relevant matters. Inherent in the decision-making process is a balancing exercise that is invariably complicated and multi-faceted. Although the exercise is to be based on the assessment carried out under s 45 of the Planning Act 2016, the way the balance is struck will turn on the facts and circumstances of each case, informed by consideration of the verbiage of the planning scheme to appreciate the degree of importance that it attaches to a particular requirement or planning policy.
[439] As I identified in paragraph [53](c) above, Stephen Family Pastoral Pty Ltd's case against approval of the proposed development is founded on four key propositions.
[440] First, the proposed use does not comply with the development parameters that guide the establishment of new local centres in the Emerging community zone in s 3.5.8.1 of version 9.1 of Logan Planning Scheme.
[441] Second, Loganview Road North Pty Ltd has not demonstrated any commitment from a supermarket tenant.
[442] Third, the proposed use is an inappropriate use of the subject land as it does not comply with:

[466]

[448] The recent Council approvals and Ministerial Infrastructure Designation will create a hub of high-intensity uses immediately proximate to the subject land. The recently planned metropolitan sports park will add to the intensity of activity generated around the hub.
[449] Many of these recent changes are not anticipated by the forward planning in version 5.1 of Logan Planning Scheme, nor by the subsequent amendments to Logan Planning Scheme in relation to the Logan Reserve land use area. The detailed land use planning for Logan Reserve that was introduced in May 2019 anticipates that the residential community in Logan Reserve will be served by a series of neighbourhood centres. That planning and the indicative residential precincts on Figure 3.8 - Logan Reserve has been overtaken by the recent events that I have identified above. (I hasten to add, the same is not true of its planning with respect to the preferred road network.)
[450] Although the detailed land use planning for Logan Reserve in Logan Planning Scheme has not kept pace with the presently emerging community in that area or its needs, that was addressed, in part, by the subsequent amendments to s 3.5.8.1 of Logan Planning Scheme.
[451] These matters indicate that, to the extent that the Council's land use planning for Logan Reserve anticipates that the residential community will be served by a series of neighbourhood centres, it has been overtaken by events.
[452] The considerations identified above satisfy me that the public interest, in a planning sense, is not better served by blind insistence on complete compliance with every provision of versions 5.1 and 9.1 of Logan Planning Scheme put in issue. In this case, such an approach would result in the refusal of a meritorious proposal to the detriment of the emerging community.
[453] When considered in context, what rings with great finality is that the proposed development will deliver a local centre that provides essential convenience shopping and community facilities to residents of an emerging community who do not otherwise have convenient and appropriate access to a full-line supermarket. It will do so at a convenient location appropriately separated from existing and planned centres. These are relevant matters of benefit to the emerging community. In addition, the benefits to the community will be achieved without detrimental impacts on amenity, character or the centres hierarchy. Furthermore, the proposed local centre will positively contribute to the planned road network in a timely manner by providing external road upgrades to Noffke Court and Logan Reserve Road.
[454] Even if I were to accept that the proposed local centre offends the minimum separation requirements in Logan Planning Scheme because it is too close to the Woolworths-anchored centre, that consideration is eclipsed by the many merits of the proposed development and the overall circumstances that pertain in this case.
[455] Overall, the proposed development is meritorious and should be approved subject to the imposition of reasonable and relevant conditions.

Stephen Family Pastoral Pty Ltd as Trustee for the Stephen's Family Pastoral Trust v Logan City Council & Loganview Road North Pty Ltd [2025] QPEC 27

At a glance

Court

Decision date

Source

Judgment (467 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (6)