Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 30

SUPREME COURT OF QUEENSLAND

CITATION: Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 30

PARTIES: SUNLAND GROUP LIMITED ACN 063 429 532 (applicant) v TOWNSVILLE CITY COUNCIL (first respondent) BUSHLAND GROVE PTY LTD TRADING AS MT LOW DEVELOPMENTS ACN 131 841 953 (second respondent)

FILE NO/S: Appeal No 6771 of 2011 / P & E Appeal No 222 of 2010

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Sustainable Planning Act

ORIGINATING COURT: Planning and Environment Court at Townsville

DELIVERED ON: 28 February 2012

DELIVERED AT: Brisbane

HEARING DATE: 9 November 2011

JUDGES: Muir and Fraser JJA and Margaret Wilson AJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Application for leave to appeal granted.Appeal allowed.Set aside the orders of the Planning and Environment Court made on 23 June 2011.The matter be remitted to the Planning and Environment Court to be determined according to law by a judge other than the primary judge.The second respondent pay the applicant’s and the first respondent’s costs of the appeal.

CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the first respondent approved the applicant’s application for a material change of use to develop a Neighbourhood Centre – where an appeal by the second respondent to the Planning and Environment Court was successful on the basis that the use proposed by the applicant was in conflict with the planning scheme – where the planning scheme designated the subject land for use as a Convenience Centre – where the applicant submitted that the primary judge erred in finding that the proposal conflicted in a number of respects with the planning scheme – where the applicant argued that the primary judge misconstrued and incorrectly applied the Urban Growth Policy – where the Urban Growth Policy was not a part of the planning scheme – where the applicant submitted that the primary judge failed to give adequate reasons for his conclusion that the proposal conflicted with the planning scheme – whether the applicant’s proposed use was in conflict with the planning scheme – whether the primary judge failed to provide adequate reasons for his conclusions as to the existence and extent of such a conflict / Integrated Planning Act 1997 (Qld), s 2.1.23(2), s 3.5.14(2) / Sustainable Planning Act 2009 (Qld), s 498, s 499 / Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66, considered / Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, cited

COUNSEL: R S Lister SC, with B D Job, for the applicant / N J Kefford for the first respondent / C L Hughes SC, with T Fantin, for the second respondent

SOLICITORS: Hopgood Ganim for the applicant / Townsville City Council Legal for the first respondent / Stuart Watson Lawyers for the second respondent

MUIR JA: Introduction The applicant, Sunland Group Limited, applies for leave to appeal pursuant to s 498 and s 499 of the Sustainable Planning Act 2009 (Qld) (“the Act”) against a decision of the Planning and Environment Court at Townsville on 23 June 2011 in which a Judge of that Court allowed an appeal by the second respondent, Bushland Grove Pty Ltd (trading as Mt Low Developments), against a decision of the first respondent, Townsville City Council, approving an application by Sunland for a material change of use to facilitate development of a “Neighbourhood Centre” within the meaning of that term in the City of Thuringowa Planning Scheme (“the Scheme”).

Sunland is the proprietor of a “Convenience Centre” at the intersection of Mt Low Parkway and Lionel Turner Drive in Bushland Beach, a northern coastal suburb of Townsville. The centre presently has a gross floor area of 1,000 square metres and has within it an IGA store with a gross floor area of 502 square metres. If Sunland’s development proceeds, the site will meet the Scheme’s definition of “Neighbourhood Centre” and have a gross floor area of 5,260 square metres, 2,800 square metres of which will be occupied by a Super IGA store. Mt Low owns a shopping centre, presently designated under the Scheme as a “Convenience Centre”, in reasonably close proximity to the Bushland Beach Centre. It is centrally located within an area which the retail analysts called by Sunland and Mt Low agreed comprised the “trade area” for the Bushland Beach Neighbourhood Centre. The “trade area” is the description given by the expert witnesses to the catchment from which the Bushland Beach Neighbourhood Centre could be expected to draw its customers. The unchallenged evidence of the retail analyst called by Sunland was that in 2003 (when the Scheme commenced) the total trade area population was 3,463. The current actual population of Bushland Beach, in which some 2,035 of the total 2,750 potential lots have been fully developed, is about 4,900, which was said to be 72 per cent of the total trade area population. The ultimate population of Bushland Beach is anticipated to be about 7,000.

The primary judge’s reasons

The primary judge, in holding that Sunland’s proposal conflicted with the Scheme, said:¹

“I conclude that [Sunland’s] proposal does conflict with the provisions of [the Scheme] for the following reasons:

The proposal seeks to use land identified for use as a convenience centre for a higher order use.

The proposal seeks to use residential land for commercial purposes.

The proposal seeks to increase (by a factor of five) the area restriction for commercial activity permitted by the provisions of the plan.

[Sunland’s] proposal cannot sensibly be described as being of a ‘domestic scale’.

[Sunland’s] proposal does not seek to meet only the needs of the immediate residential population (emphasis added).”

The primary judge then considered whether the proposal should be approved notwithstanding its conflict with the Scheme. The first matter he addressed in this regard was whether Sunland had established a present need for a Neighbourhood Centre based on a full line supermarket. His Honour held that a need had not been established as:²

“1.The population will not be sufficient to support a full line supermarket until at least 2013 - 2014 and may even arise later (see the evidence of Mr Owen).

The alleged ‘need’ is currently met (albeit with some inconvenience) by the existing facilities.

The public interest in the provision of such a shopping centre inferred from the evidence of the local residents is not evidence of need in the strict sense.

The need is not an existing thing but one which it is hoped will develop in time.

While a neighbourhood centre of a different sort could perhaps serve the needs of 3,500-6,000 people, the proposal here requires 8,000-10,000 people for continued successful operation and there is a risk that approval of a project of doubtful viability will not serve the long term interests of Bushland Beach or the broader population for the reasons given by Mr Owen.”

The merits of Sunland’s proposal were otherwise dealt with in three brief paragraphs which are quoted later.

The remaining explanations for his Honour’s refusal of the application are to be found in paragraph [60]:

“In my opinion this decision will have the following benefits for the identified trade area including the Bushland Beach area.

It will ensure that the amenity of Bushland Beach is not diminished in any way.

It will encourage orderly development in accordance with the provisions of the scheme.

It will allow consideration to be given to the development of a centrally located (geographical or population centred) shopping centre as contemplated by the scheme.”

The City of Thuringowa Planning Scheme

The City of Thuringowa is divided by the Scheme into the following Planning Areas:

Rural Planning Area;

Industrial Planning Area;

Centres Planning Area;

Open Space and Recreation Planning Area; and

Residential Planning Area.

Clause 1.4.1 of the Scheme provides:

“1.4.1No development is prohibited under the Planning Scheme. The character statements for each Planning Area and Local Area identify development considered to be consistent with the desired development outcomes for development in those areas. They also identify development considered to be inconsistent with desired development outcomes.”

Bushland Beach is within the Residential Planning Area to which Part 3.5 of the Scheme applies and is also within the Centre Planning Area provided for in Part 3.3 of the Scheme. Part 2 of the Scheme headed “Desired Environmental Outcomes (DEOs) and City Strategies” relevantly provides:

“2.5****ECONOMY

2.5.1****DEO 5

Economic development in the City is strong, diversified, supports local employment and enhances quality of life.

2.5.2****City Strategies

DEO 5 is intended to be achieved by –

(a)protecting land and providing an adequate supply of land for employment generating development (at a local, regional, state or national scale) and the future expansion of employment generating land uses in designated locations.

(b)creating an economic environment in the City that provides a range of economic development opportunities, access to employment and maintains community well-being and lifestyle by –

…

(v)establishing and supporting a hierarchy of Centres and preventing ribbon development; and

…

2.6****LAND USE PATTERNS

2.6.1****DEO 6

The City’s land use patterns create cohesive communities that balance economic, social and environmental considerations.

2.6.2****City Strategies

DEO 6 is intended to be achieved by –

(a)integrating new and existing development and providing a range of land uses that create cohesive, safe and sustainable communities.

(b)establishing the City’s Urban Growth Boundaries (refer to map 5.7) to create an efficient urban form by –

(i)providing for higher residential densities and a mix of uses around centres and public transport nodes;

(ii)ensuring orderly and sequential growth defining Urban Growth Boundaries;

…

establishing a land use pattern that is consistent with the location and capacities of existing infrastructure items, plans and programs of service providers.

(c)protecting land from encroachment by incompatible development, promoting the co-location of compatible and complementary development and allowing development where need is demonstrated.”

Part 3.3 of the Scheme headed “Centres Planning Area”, relevantly provides:

“3.3.1****CHARACTER STATEMENT

(a)At the Commencement Date, premises within the Centres Planning Area consisted of –

(i)development of varying scale and intensity; and

(ii)other development that may be inconsistent with the future intent for the Centres Planning Area described below.

…

(e)A Centres hierarchy based on convenience, neighbourhood, district and sub-regional functions has been identified. These centres are shown on maps 3.3 and 3.3A – Centres Planning Area: Convenience Centre, Neighbourhood Centre, District Centre and Sub-Regional Centre. In particular –

(i)Convenience Centre are identified in Schedule 3.3. The development of Convenience Centres at these locations is consistent with the desired outcomes for the Centres Planning Area.

Convenience Centres –

A.provide for the particular needs of a specifically defined community with high levels of local accessibility;

B.have a maximum 1,000m² GLA, comprised of Commercial Development and Service Premises; and

C.are designed to be sympathetic to the local environment and Residential Development in such matters as overall scale, building height and boundary treatment, and are consistent with the desired development outcomes for a particular community.

(ii)At the Commencement Date, the identified Neighbourhood Centres are located at Greenwood, Mt View, Parkside and Kirwan North. The development of Neighbourhood Centres at these locations is consistent with the desired outcomes for the Centres Planning Area.

Neighbourhood Centres –

A.provide for the everyday local shopping and commercial needs of local residents for its immediate population catchment between 3,500 and 6,000 persons and are easily accessible to pedestrians, cyclists and local residential traffic;

B.have a maximum 8,000m² GLA, comprised of Commercial Development not exceeding 5,000m2 GLA and Service Premises not exceeding 3,000m² GLA; and

C.are designed to be sympathetic to adjoining Residential Development in such matters as overall scale, Building Height and boundary treatment.

(iii)The identified District Centres are Upper Ross Shopping Centre and Woodlands Shopping Centre. The establishment of additional District Centres within the life of this Planning Scheme is inconsistent with the desired outcomes for the Centres Planning Area.

District Centres are intended to cater for the needs of their respective residential catchments.

District Centres –

A.cater for the weekly needs of a population of up to 25,000 persons and act as a Neighbourhood Centre for its immediate population catchment;

B.have a maximum 15,000m² GLA, comprised of Commercial Development not exceeding 10,000m2 GLA and Service Premises not exceeding 5,000m2 GLA; and

C.are located on arterial roads to prevent non-local traffic entering residential areas.

(iv)The identified Sub-Regional Centres are Mt Low-Deeragun and the Thuringowa City Centre.

The establishment of a Sub-Regional Centre in the Mt Low-Deeragun area is intended beyond the life of this Planning Scheme. This centre will start as a Neighbourhood Centre, progress towards a District Centre and ultimately develop into a Sub-Regional Centre.

…

3.3.3****CENTRES PLANNING AREA CODE

Centres Planning Area Code

**Purpose:**The purpose of this code is to ensure that development within the Centres Planning Area is consistent with the character of the Centres Planning Area described in the character statement. / **Applicability:**This code applies to self-assessable and assessable development in the Centres Planning Area.

Part A

Performance Criteria Acceptable Solutions for Self-Assessable and Assessable Development

CHARACTER AND BUILT FORM

P1.The GLA of a centre is appropriate for its function within the centres hierarchy. A1.The GLA does not exceed a maximum of – / (a)for a Convenience Centre - / (i)identified in Schedule 3.3 – 1,000m2 for Commercial Development and Service Premises; / (b)for a Neighbourhood Centre – / (i)identified in Schedule 3.3 – the GLA identified for that Neighbourhood Centre in Schedule 3.3; or / (ii)not identified in Schedule 3.3 – 5,000 m2 for Commercial Development and 3,000m2 for Service Premises; / …

P2.The design and height of buildings in the Centres Planning Area is appropriate to the centre’s function and context. A2.The height of buildings and other structures – / (a)in the Thuringowa City Centre Sub-Regional Centre does not exceed - / (i)20m in the Commercial 1 sub-area; or / (ii)16m in the Commercial 2 sub-area; or / (iii)12m in the Commercial 3 sub-area; or / (iv)10m in the Commercial 4 sub-area and Commercial 5 sub-area. / (b)in the Centres Planning Area, other than in the Thuringowa City Centre Sub-Regional Centre, does not exceed - / (i)7.5m in a Neighbourhood Centre; or / (ii)10m in a District Centre.

…

Part B

Performance Criteria Acceptable Solutions for Assessable Development Only

NEED

P20.Development – / (a)does not adversely affect the achievement of the Centres hierarchy described in section 3.3.1(e); and / (b)is located to meet the needs of residential catchments not adequately met by existing or approved development. A20.No acceptable solution prescribed.

SCHEDULE 3.3 – IDENTIFIED CENTRES

CONVENIENCE CENTRE

LOCATION

…

361 Mt Low Pky, Bushland Beach

0 Mt Low Pky, Mount Low

…

0 Mt Low Pky, Bushland Beach

…

NEIGHBOURHOOD CENTRE MAXIMUM GLA

Greenwood 2,200 m2 GLA

Mt View 3,200 m2 GLA

Parkside 4,000 m2 GLA

Kirwan North 3,000 m2 GLA

DISTRICT CENTRE MAXIMUM GLA

Upper Ross Shopping Centre 15,000 m2 GLA

Woodlands Shopping Centre 15,000 m2 GLA

SUB-REGIONAL CENTRE MAXIMUM GLA

Thuringowa City Centre – Commercial 1 sub-area 55,000 m2 GLA

…

3.5****RESIDENTIAL PLANNING AREA

3.5.1****CHARACTER STATEMENT

(a)At the Commencement Date, premises within the Residential Planning Area consisted of –

(i)Residential Development of varying scale and intensity; and

(ii)other development that may be inconsistent with the future intent for the Residential Planning Area described below.

(b)The Residential Planning Area is intended for Residential Development that contributes to the amenity and landscape of the area. In particular –

(i)buildings and structures are sited to protect the residential amenity of adjoining premises and contribute to maintaining the residential landscape;

…

(iii)development is compatible with the residential landscape or has a nexus with Residential Development;

…

(e)Development, other than Residential Development, is only located in the Residential Planning Area where that development is required to meet the needs of residents and will not detrimentally impact on residential amenity and the residential landscape.”

It is now convenient to consider the grounds of appeal argued on the hearing of the appeal.

Ground 1 – the primary judge erred in finding that the applicant’s proposal conflicted with the Scheme insofar as it:

used land identified for use as a Convenience Centre for a higher order use; and

increased (by a factor of five) the area restriction for commercial activity permitted by the provisions of the Plan.³

Sunland’s arguments

The applicant submitted, and it was not contentious, that the Scheme cannot lawfully operate to prohibit use of premises identified as a Convenience Centre for a Neighbourhood Centre.⁴ It does not purport to do so.⁵ Clause 3.5.1(e) expressly contemplates development that meets the needs of residents and does not impact on residential amenity and landscape.

The hierarchy to which the Scheme refers expressly identifies the Neighbourhood Centres which existed “at the commencement date” of the Scheme. It refers to “establishing” (rather than maintaining) a hierarchy. It expressly contemplates that Neighbourhood Centres which are not identified in Schedule 3.3 can be established and encourages development which does not affect the “achievement” of the four level hierarchy.⁶

The hierarchy which is intended is one which includes both the Neighbourhood Centres which are identified in Schedule 3.3 and those which are not: Centres which service an “immediate” population catchment of between 3,500 and 6,000 people and which are easily accessible.⁷ Land within the Residential Area may be developed for uses which have a nexus with residential development where it is required to meet the needs of residents and does not detrimentally impact upon amenity.⁸

Mt Low’s contentions

Mt Low’s arguments were to the following effect. There was no error of law. The Scheme sets out a carefully planned and described hierarchy of Centres, the establishment and support of which is emphasised in Desired Environmental Outcome (DEO) 5.⁹ The characteristics of each of the four levels in the hierarchy are spelt out in three parts of the Scheme.

Clause 3.3.1(e) – Character Statement for the Centres Planning Area;

Clause 3.3.3 – Centres Planning Area Code in Performance Criteria 1, Acceptable Solution A1; and

The definitions of different Centres in Part 7 of the Scheme.

The Sunland site is nominated in the Scheme for a particular role in the hierarchy of Centres: a Convenience Centre having a “domestic” scale.

The proposal further conflicts with the Scheme in that, to achieve a level of Centre neither planned nor expected by the Scheme, it is necessary for the applicant to use land in the Residential designation.

Consideration

It was common ground that the subject application fell within s 3.5.14(2) of the Integrated Planning Act 1997 (Qld) and that, in consequence, if the application was in “conflict with the planning scheme”, it had to be refused unless there were “sufficient grounds to justify [the Council’s] decision despite the conflict”.

Clause 3.3.1(e) of the Scheme states that “A Centres hierarchy… has been identified”. Scheme maps show the location of the Centres. The Convenience Centres are listed, together with their respective real property descriptions, in Schedule 3.3. The four Neighbourhood Centres are listed by reference to general suburban location: Greenwood, Mt View, Parkside and Kirwan North. Their respective maximum Gross Lettable Areas (“GLA”) are also stated. The two District Centres listed in schedule 3.3, Upper Ross Shopping Centre and Woodlands Shopping Centre, were shopping centres in existence when the Scheme came into effect. The prescribed maximum GLA for each is 15,000m2.

It may be inferred from cl 3.3.1(e) that the Scheme contemplates that there may be a Neighbourhood Centre or centres during the life of the Scheme in addition to the four Neighbourhood Centres identified in cl 3.3.1(e)(ii) and Schedule 3.3 and shown on map 3.3. Clause 3.3.1(e)(i) states that “Convenience Centre(s) are identified in Schedule 3.3”. Clause 3.3.1(e)(ii), dealing with Neighbourhood Centres, commences with the qualification “At the Commencement Date, the identified Neighbourhood Centres are located…”. That wording may be contrasted also with the statement that “The establishment of additional District Centres within the life of [the] Scheme is inconsistent with the desired outcomes for the Centres Planning Area”.¹⁰

However, the possibility that there may be a Neighbourhood Centre additional to the four specified in the Scheme does not resolve, necessarily, the question of whether a decision to approve the conversion of a Convenience Centre into a Neighbourhood Centre may be in conflict with the Scheme. A Convenience Centre must be “designed to be sympathetic to the local environment”; “provide for the particular needs of a specifically defined community with high levels of local accessibility” and “have a maximum 1,000m2 GLA”. The latter requirement cannot be satisfied by the subject proposal.

Whether the other requirements for a Convenience Centre can be met is dependent on factual determinations.

Sunland sought to meet these difficulties by arguing that cl 3.3.1(e)(i) provides merely that the development of a Convenience Centre at the subject site is “consistent with the desired outcomes for the Centres Planning Area”. The provision does not, it was asserted, provide that “the consequence of exceeding 1,000m2 GLA, and thereby falling outside the definition of a Convenience Centre, is a development which is inconsistent with the desired outcomes for the Centres Planning Area”.

The broader argument has substance but a conflict with a planning scheme is not to be found only where the approval of an application would have a consequence which the scheme expressly identifies as a conflict. Whether or not a conflict exists is to be determined by a consideration of the relevant provisions of the Scheme in the light of all relevant facts.

Mt Low submitted:

“…the Sunland site is nominated for a particular role in the hierarchy: a Convenience Centre, no doubt to serve the discrete immediate residential population of the Bushland Beach area with a shopping centre of a ‘domestic’ scale. In three separate sections of the Scheme… a Convenience Centre is planned to be no greater than 1,000m2 GLA. The decision to limit that site to this role in the hierarchy was… a result of deliberate decisions.”

It is relevant also that the Sunland site is identified as a Convenience Centre in Schedule 3.3 and map 3.3. Plainly, the precise location of the Convenience Centre sites played a significant role in their selection. It does not follow from the identification of the subject site in the Scheme as the location of a Convenience Centre that the site must be used only for that purpose. It does follow, however, that its use as a Neighbourhood Centre would be incompatible with its use as a Convenience Centre having regard to the different roles of and requirements for those Centres and to its deliberate selection as a Convenience Centre site.

In my view, it has not been shown that the primary judge erred in finding a conflict with the Scheme resulting from the proposed use of the land as a Neighbourhood Centre. Such a use would prevent the use of the land for its Scheme designated use as a Convenience Centre – a use which was selected, no doubt, with regard to factors such as existing and expected development in relevant localities, questions of amenity and the greater suitability of other sites for more intensive and intrusive development. The Scheme contemplated only two Convenience Centres in the Bushland Beach locality: Sunland’s site which is near the beach in the centre of residential development and the Mt Low site which is outside the developed area of Bushland Beach and at the intersection of two substantial roads. Although it appears to me, with respect, that there was conflict with the Scheme, I consider it preferable, having regard to the necessarily limited ventilation of factual questions before this Court, to express no concluded view on the point.

Because of the conclusion I have reached in relation to the adequacy of the primary judge’s reasons, there is little to be served by separately considering the second limb of ground 1 or the components of ground 2. The latter are simply a re-statement of sub-paragraphs 2, 4 and 5 of paragraph [51] of the Reasons. The five sub-paragraphs of paragraph [51], quoted earlier, are said by the primary judge to be the reasons why the subject proposal conflicts with the Scheme. Sunland’s submissions assume that a separate area of conflict is identified by the primary judge in each of the five sub-paragraphs, but it is unclear whether the primary judge was doing more than finding that the five matters taken together demonstrated the existence of a relevant conflict.

Ground 2 – the primary judge erred in finding in paragraph [51] of the reasons that:

The proposal seeks to use residential land for commercial purposes.

Sunland’s proposal cannot sensibly be described as being of a ‘domestic scale’.

Sunland’s proposal does not seek to meet only the needs of the immediate residential population.

Both Sunland’s and Mt Low’s submissions in relation to these matters were variations of those advanced in support of the first ground. For the reasons given above, there is no need to consider them further.

Ground 3 – The primary judge erred in construing and applying the Urban Growth (“UG”) Policy

Sunland’s contentions

The primary judge referred to the UG Policy (which was not part of the Planning Scheme) in paragraph [20] of the reasons as: “Another Planning Scheme document which assumed significance in this case” as the starting point of Mt Low’s case.¹¹ The reasons attributed to Mt Low a claim that the construction of a Centre on its land “accords with the aims of the Planning Scheme…”¹² and speak of “a wish evidence to buy (sic) [i.e. evidenced by] the policy… that more intense commercial activity should be located outside the Bushland Beach Community”.¹³ A number of matters relevant to the application and construction of the UG Policy were raised in submissions by the parties at first instance, but were not material in the reasons. Moreover, the primary judge did not rule on the lawfulness of the UG Policy having regard to s 2.1.23(4) of the Act and gave no guidance as to the proper construction of the UG Policy.

Consideration

There does not appear to me to be any substance in Sunland’s argument. The primary judge expressly stated:¹⁴

“I take the policy as giving a general indication of the area in which commercial development is anticipated and no more.”

The reason for this observation is apparent from paragraphs [48] and [49] of the reasons. Having regard to the peripheral, at best, role of the UG Policy in the primary judge’s reasoning and the absence of any contention by Sunland that it should have played a more important role, there was no need for the primary judge to make findings of the kind contended for by Sunland. For the same reasons, the primary judge was not required to provide a more elaborate explanation of his reasoning in this regard. No error of law in the primary judge’s treatment of the UG Policy was identified.

Ground 4 – the primary judge erred in law by failing to give adequate reasons

Sunland’s submissions

Counsel for Sunland contended that the primary judge failed to give adequate reasons for his conclusion¹⁵ that Sunland’s proposal conflicted with the provisions of the Scheme. Another limb of this ground was an alleged failure to give sufficient reasons for his findings that insufficient grounds existed to allow Sunland’s proposal notwithstanding its conflict with the Scheme.

Mt Low’s contentions

Counsel for Mt Low submitted that the conflicts with the Scheme identified by the primary judge were obvious and, in any event, were “very much peripheral questions – when read broadly and fairly, against the matrix of facts determined by the learned Judge”.

Consideration

Whether Sunland’s proposal conflicted with the Scheme and, if so, the nature and extent of the conflict were the critical issues at first instance. Both Sunland and the Council contended that there was no conflict, although the Council’s claim in this regard was perhaps faintly pursued. Mt Low argued for the conflict or conflicts subsequently found to exist by the primary judge. It is apparent from earlier discussion that the existence of a conflict or conflicts was by no means obvious. In order to decide the question it was necessary to identify and construe the relevant provisions of the Scheme and, in some instances, to consider the application to the facts of the provisions so construed.

It was thus incumbent on the primary judge to provide adequate reasons for his conclusions as to the existence and extent of conflict. Failure to give such reasons would be an error of law.¹⁶ What constitutes adequate reasons was discussed as follows in Drew v Makita (Australia) Pty Ltd:¹⁷

“[58]The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with ‘a justifiable sense of grievance’ through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide ‘the foundation for the acceptability of the decision by the parties and the public’ and to further ‘judicial accountability’.

[59]The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and ‘the function to be served by the giving of reasons.’ For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:

‘… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.’

[60]McHugh JA’s view was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but ‘…it is necessary that the essential ground or grounds upon which the decision rests should be articulated.’

[61]In Strbak v Newton, Samuels JA said:

‘…What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.’

[62]Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v Wraith, said that the decision maker:

‘…should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions.’

[63]Meagher JA in Beale v Government Insurance Office of NSW stated these propositions:

‘…there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).

Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.’

[64]Whilst, in my respectful opinion, it would be inconsistent with authority to apply the three “fundamental elements” rigidly, and I do not understand his Honour to be suggesting otherwise, they provide useful guidance for a determination of the sufficiency of reasons in the general run of cases.

[65]The following remarks of Henry LJ in Flannery v Halifax Estate Agencies Ltd relating to expert evidence were referred to with approval in the reasons of Ipp JA in Wiki v Atlantis Relocations (NSW) Pty Ltd:

‘It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible ... But with expert evidence, it should usually be possible to be more explicit in giving reasons: see Bingham LJ in Eckersley v Binnie (1988) 18 ConLR 1 at 77–78:

“In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ...”

And:

“... [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other ... .”’” (citations omitted)

The primary judge’s reasons as to the existence of conflict essentially consisted of assertions. There is no discussion or even identification of the critical provisions of the Scheme. The process of reasoning in which the critical conclusions were reached was not identified even in a rudimentary way. Consequently, Sunland has succeeded in identifying an error of law.

The argument advanced by Sunland that the primary judge failed to give adequate reasons for concluding that insufficient grounds existed to allow the proposal notwithstanding its conflict with the Scheme was elusive. Counsel eschewed the conventional, and to my mind obvious, course of identifying particular issues, explaining their materiality to the outcome of the case and explaining why no or inadequate reasons had been given in respect of them. Instead, in one or more places in each of 11 of the 35 paragraphs of Sunland’s outline of submissions reference is made to matters not mentioned in the reasons for judgment which, it seems to be implied, should have been mentioned.

Reference to the parties’ written arguments at first instance shows that the grounds relied on by Sunland to overcome the difficulty posed by any conflict with the Scheme which the primary judge might find were: community “need” for and public benefit to be derived from the subject development; compatibility of the proposal with Scheme DEOs, Performance Criteria P1, P20 and P12 and Acceptable Solution A1; whether any unacceptable amenity impacts would arise from implementation of the proposal; whether the proposed development would prejudice or delay a shopping centre proposed by Mt Low for its land; whether development of Mt Low’s site which was more centrally located in the trade area was to be preferred; whether the existence of the Mt Low proposal was relevant; and whether the proposal conflicted with the UG Policy and, if so, the significance of the conflict.

Mr Leyshon, an expert witness called by Sunland, and Mr Owen, an expert witness called by Mt Low, agreed in a “Joint Economic Need Report” with respect to the relevant trade area that:

(i)the “proposed development is not consistent with the centres hierarchy identified in Section 3.3.1(e) of the Planning Scheme in that the subject site is not identified as a location for a Neighbourhood centre. The site (in part) is identified in the Planning Scheme as a location for Convenience centre”;

(ii)a supermarket anchored shopping centre requires a population “trigger” of about 8,000 persons whereas:

-the present population of Bushland Beach (2011) is in the order of 4,721 to 4,895 people; and

-the ultimate population at Bushland Beach itself (only part of the trade area) is only likely to reach in the order of 7,000 people (Leyshon: 7,054; Owen: 6,930).

Counsel for Mt Low submitted that:

“Two out of three planning experts agreed that the proposal was inconsistent (or conflicted) with the Centres hierarchy in s.3.3.1(e). Only Sunland’s expert, Mr Vann, contended there was ‘arguably’ no conflict. However, in the planning joint report, he was guarded saying that ‘whilst it might be considered that the proposed development is in conflict with the scheme’ and ‘to the extent there might be considered to be a conflict with the scheme’ there were sufficient grounds to approve the proposal.”

Counsel for Mt Low submitted that although the Court was not bound by such agreements they informed “the extent to which such issues required further analysis in the Reasons”.

It does not appear to me that Mr Vann agreed with the proposal’s alleged inconsistency with the hierarchy of Centres, apart from conceding, together with Ms James, the Council’s Town Planning Expert, that “it might be considered that the proposed development is in conflict with the scheme by virtue of some of the land being included in the Residential Area (Traditional Residential Precinct)”. The concession was qualified in the paragraph of the joint experts’ report in which it was made. Amongst other things it was said, “It is therefore arguable that there is no conflict with the planning scheme if the nominated criteria are met”. Ms James, however, in summarising her views, accepted the existence of inconsistency but expressed the opinion that there were “sufficient grounds to justify an approval”. The town planning “Experts’ Joint Statement on Planning Issues” contained paragraphs which revealed fundamental differences of opinion between Mr Vann and Ms James on the one hand and Ms Rayment on the other.

Neither the Council nor Sunland in submissions to the primary judge accepted that any such conflict or inconsistency existed. They both urged on the primary judge that there was both an economic need for, and a public benefit to be derived from, the proposal. Questions of past, present and predicted future populations in the “immediate population catchment” were addressed by the parties in oral evidence and submissions.

The Council submitted to the primary judge that:

“1.When the Scheme is properly construed, a decision to approve the proposed development would not compromise the achievement of desired environmental outcomes for the planning scheme area or conflict with the Scheme.

…

Any conflict, should one be found to exist, is not serious as:

(a)the proposed Neighbourhood Centre will continue to serve the role intended for a Convenience Centre;

(b)the size and location of the proposed Neighbourhood Centre will not frustrate the deliberately planned centre hierarchy put in place by the local planning authority;

(c)there are no unacceptable amenity impacts; and

(d)approval of the proposed development will not have an adverse impact on the residential land supply.

There is a need for, and a community benefit that derives from, the provision of the proposed development. This ground is sufficient to overcome conflict, should conflict be found to exist.”

In a document before the primary judge headed “Summary of Sunland’s Position”, it was asserted that, in the event of a finding that the proposal was in conflict with the Scheme, the grounds supporting approval included:

“●The absence of a Neighbourhood Centre in Bushland Beach, or even the agreed trade area;

The absence of any land in Bushland Beach (or the agreed trade area) designated for Neighbourhood Centre;

The existence of a population within Bushland Beach that presently falls within the range that the Centres Hierarchy identifies as being served by Neighbourhood Centre and will inevitably grow to comfortably exceed the top of that range;

Sunland’s proposal will continue to serve the function of a Convenience Centre for that community;

The range and depth of products available for choice by that community will be greatly improved;

The convenience of Sunland’s proposal to that community - it is walkable and all must pass it when travelling by car to or from Bushland Beach on either of the two major arterial roads;

Sunland’s proposal will provide choice that is not presently available in a location that will reduce travel to utilise such facilities;

Sunland’s proposal will contribute to the liveability and sense of place for that community;

The logical nature of extension of the existing facility;

Sunland’s proposal accords with sound town planning principles;

Sunland’s proposal can be developed without adverse impacts on other centres and the amenity of the locality;

Employment opportunities will increase.”

The primary judge dealt with the expert evidence in three brief paragraphs: [42], [43] and [44]. Paragraph [44], which was concerned with traffic, was the longest although traffic issues had been largely resolved before addresses.

In paragraph [43], the primary judge explained:

“I had some reservations about the evidence of Mr [Vann] in that he was so obviously committed to the cause of those who had retained him. He was quite unable to answer questions directly without adding a rider or qualification to advance the case of [Sunland]. He did this even when the rider or qualification was quite unnecessary to answer the question.”

Plainly, the whole of Mr Vann’s evidence was not rejected and the primary judge’s explanation was not sufficient to identify those parts of Mr Vann’s evidence which his Honour rejected or in respect of which the evidence of Ms Rayment was to be preferred. No mention was made of the evidence of Ms James, which was generally supportive of Sunland’s position.

Paragraph [42] of the reasons stated:

“I heard evidence from a number of experts and in the main found their evidence helpful.”

The primary judge’s approach to the expert evidence may be contrasted with the nine paragraphs devoted to the evidence of non-experts: two local residents and the proprietor of the IGA Store operating on the subject site. The evidence of the residents was of marginal use, to put it at its highest, and the evidence of the proprietor counted for little in the scheme of things.

The issue of whether there were grounds which justified the approval of the proposal notwithstanding any conflict with the Scheme occupied the final eight paragraphs of the reasons: paragraphs [52] to [60]. “Need” was addressed in paragraphs [52] to [56]. Sunland argued that these paragraphs failed to address a substantial body of evidence which conflicted with the primary judge’s findings in relation to “need”. There may be substance in the complaint but, in view of my conclusions as to the inadequacy of reasons generally, it is unnecessary to pursue it.

Paragraphs [57], [58] and [59] stated:

“[57]Mr Vann sought to advance other grounds to justify the approval despite the conflict.

[58]I do not accept his evidence as to those additional matters justifying the proposal despite the conflict because in part he seems to rely upon the absence of negative amenity considerations as a positive planning ground. Further, it does not seem to me that the scheme has been overtaken by events and in particular overtaken by faster growth in the Bushland Beach area. Further, the council’s scheme must be seen as incorporating a deliberate decision to down scale the sort of commercial activity to be permitted in the Bushland Beach suburb. Such a decision is not only consistent with a wish to maintain a higher level of residential amenity in that area but also consistent with a wish evidence to buy the policy that I have referred to that more intense commercial activity should be located outside the Bushland Beach community.

[59]I conclude that there is no good reason to allow the development, notwithstanding the conflict.” (emphasis added)

Counsel agreed that the words “evidence to buy” in paragraph [58] should read “evidenced by”.

The first sentence of paragraph [58] does not purport to deal with Mr Vann’s evidence in full. It certainly does not address in any comprehensive or substantial way the grounds relied on by either Sunland or the Council to warrant approval of Sunland’s application notwithstanding conflict with the Scheme. Nor do the remaining three sentences of the paragraph, although further explaining the finding of inconsistency, give a reasoned explanation for the rejection of such grounds. The reasons do not explain, adequately, the findings of the primary judge in relation to the expert evidence, the reasons for such findings or why the arguments advanced by the Council and Sunland as to why the proposal should be approved, notwithstanding inconsistency, were rejected. The inadequacy of the reasons in this regard also constitutes an error of law.

Conclusion

This Court was invited by Sunland and the Council to order that the development application be approved subject to the conditions contained in the Amended Negotiated Decision Notice dated 11 August 2010. I do not regard that course as appropriate. There was a great body of evidence before the primary judge which was not referred to, let alone investigated, in the course of submissions. I do not say this critically; the course taken by counsel was appropriate. However, this Court is not in a position to determine the application on its merits. It must be remitted to the Planning and Environment Court.

Whilst not doubting the primary judge’s ability and capacity to determine the matter according to law, consistently with these reasons, I am of the view that any rehearing should be before a different judge in order to avoid a real risk of allegations of apprehended bias with the attendant possibility of a further appeal and delays.

For the above reasons, I would:

give leave to appeal;

allow the appeal;

set aside the orders of the Planning and Environment Court made on 23 June 2011;

order that the matter be remitted to the Planning and Environment Court to be determined according to law by a judge other than the primary judge; and

order that the second respondent, Mt Low, pay the applicant’s and first respondent’s costs of the appeal.

**FRASER JA:**I agree with the reasons for judgment of Muir JA and the orders proposed by his Honour.

MARGARET WILSON AJA: I agree with the orders proposed by Muir JA, and with his Honour's reasons for judgment.

Footnotes

1. Bushland Grove Pty Ltd t/a Mount Low Developments v Townsville City Council and Sunland Group [2011] QPEC 84 at [51]. ↩

2. Reasons at [56]. ↩

3. Paragraphs (a) and (b) are in terms of sub-paragraphs 1 and 3 respectively of paragraph [51] of the reasons for judgment. ↩

4. Integrated Planning Act 1997 (Qld), s 2.1.23(2). ↩

5. Clause 1.4.1 of the Scheme. ↩

6. See cl 3.3.1(e)(ii); 2.5.2(b)(v) and P20 of 3.3.3 Planning Centres Area Code. ↩

7. Clause 3.3.1(e)(ii)(A). ↩

8. Clause 3.5.1(b)(iii) and (e). ↩

9. Clause 2.5.2(b)(v). ↩

10. Clause 3.3.1(e)(iii). ↩

11. Reasons para [23]. ↩

12. Reasons para [25]. ↩

13. Reasons para [58]. ↩