Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION: Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95

PARTIES: In Appeal No 6189 of 2020 / TRINITY PARK INVESTMENTS PTY LTD / ACN 123 732 525 ATF AND L’ARMONIA PTY LTD / ACN 140 784 756 / (applicant) / v / CAIRNS REGIONAL COUNCIL / (first respondent) / FABCOT PTY LTD / ACN 002 960 983 / (second respondent) / DEXUS FUNDS MANAGEMENT LIMITED / ACN 060 920 783 / (third respondent) / CAIRNS COMBINED BEACHES COMMUNITY ASSOCIATION INC / (fourth respondent) / In Appeal No 6288 of 2020 / DEXUS FUNDS MANAGEMENT LIMITED / ACN 060 920 783 / (applicant) / v / FABCOT PTY LTD / ACN 002 960 983 / (first respondent) / CAIRNS REGIONAL COUNCIL / (second respondent) / CAIRNS COMBINED BEACHES COMMUNITY ASSOCIATION INC / (third respondent) / TRINITY PARK INVESTMENTS PTY LTD / ACN 123 732 525 ATF AND L’ARMONIA PTY LTD / ACN 140 784 756 / (fourth respondent)

FILE NO/S: Appeal No 6189 of 2020 / Appeal No 6288 of 2020 / P & E No 201 of 2018 / P & E No 221 of 2018 / P & E No 223 of 2018

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Planning and Environment Court Act

ORIGINATING COURT: Planning and Environment Court of Queensland at Brisbane – [2020] QPEC 17 (Everson DCJ)

DELIVERED ON: 7 May 2021

DELIVERED AT: Brisbane

HEARING DATE: 22 September 2020

JUDGES: Philippides and Mullins JJA and Brown J

ORDERS: In Appeal 6189 of 2020 and 6288 of 2020:

CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the grant of a development permit for a childcare centre, service station, food and drink outlet and shopping centre was sought – where orders were sought that the development be refused – where orders seeking that the development permit be refused were dismissed – where the site the subject of the development permit is within the low-medium density residential zone and within the Smithfield Local Plan – whether approval of the proposed development would compromise the planned role and function of the land – whether the primary judge misinterpreted or misapplied sections 45 and 60 of the Planning Act 2016 (Qld) – whether the primary judge misinterpreted or misapplied the Cairns Plan 2016 – whether the primary judge erred in finding that there was a town planning need for the proposed development – whether the primary judge erred in finding the only non-compliance with the low-medium density residential Zone Code and the Smithfield Local Plan was that the proposed development was not small scale – whether the primary judge erred in concluding that the proposed development complied with section 3.3.2.1(1) of the Cairns Plan 2016 – whether the primary judge erred in dismissing sub-precinct 3b as an obstacle in the path of an approval of a development application – whether the primary judge failed to take into account the hierarchy of shopping centres under the Cairns Plan 2016 – whether the primary judge took into account irrelevant considerations – whether the primary judge prejudged a code assessable development application / Acts Interpretation Act 1954 (Qld), s 14B / CairnsPlan 2016 / Far North Queensland Regional Plan 2009 / Planning Act 2016 (Qld), s 45, s 60 / Planning and Environment Court Act 2016 (Qld), s 43 / Statutory Instruments Act 1992 (Qld), s 15 / Sustainable Planning Act 2009 (Qld), s 326 / AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1; [2012] QCA 44, cited / Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, cited / Ashvan Investment Units Trust v Brisbane City Council [2009] QPELR 793; [2019] QPEC 16, cited / Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QPELR 608; [2008] QCA 157, cited / Bell v Brisbane City Council (2018) 230 LGERA 374; [2018] QCA 84, cited / CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, cited / Flori v Winter (2019) 3 QR 22; [2019] QCA 281, cited / Gerhardt v Brisbane City Council (2017) 226 LGERA 257; [2017] QCA 285, cited / Gold Coast City Council v K & K (GC) Pty Ltd [2020] QPELR 631; [2019] QCA 132, cited / Isgro v Gold Coast City Council [2003] QPELR 414; [2003] QPEC 2, cited / Kline v Official Secretary to the Governor General (2013) 249 CLR 645; [2013] HCA 52, cited / Lewis v Townsville City Council [2012] QPELR 575; [2012] QCA 99, cited / Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, cited / Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328; [2019] QPEC 46, cited / Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited / R v A2 (2019) 93 ALJR 1106; (2019) 373 ALR 214; [2019] HCA 35, cited / Redland City Council v King of Gifts (Qld) Pty Ltd (2020) 3 QR 494; [2020] QCA 41, cited / Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85; [2005] QPEC 70, cited / Sheezel v Noosa City Council [1980] QPLR 130, cited / Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, cited / Ugarin Pty Ltd v Logan City Council [2004] QPELR 392; [2004] QPEC 1, cited / WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126, cited / Wilhelm v Logan City Council [2020] QCA 273, cited / William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, cited / Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; [2014] QCA 147, cited

COUNSEL: G A Thompson QC, with E J Morzone, for the applicant in Appeal No 6189 of 2020 / No appearance for the fourth respondent in Appeal No 6288 of 2020 / D R Gore QC, with J G Lyons, for the applicant in Appeal No 6288 of 2020 the third respondent in Appeal No 6189 of 2020 / B D Job QC, with M J Batty, for the first respondent in Appeal No 6288 of 2020 and second respondent in Appeal Number 6189 of 2020 / R Litster QC, with K J Buckley, for the first respondent in Appeal No 6189 of 2020 and the second respondent in Appeal Number 6288 of 2020 / No appearance for the third respondent in Appeal No 6288 of 2020

SOLICITORS: HopgoodGanim for the applicant in Appeal No 6288 of 2020 and for the third respondent in Appeal No 6189 of 2020 / Keir Steel Waldon Lawyers for the first respondent in Appeal No 6288 of 2020 and for the second respondent in Appal No 6189 of 2020 / McCullough Robertson Lawyers for the second respondent in Appeal No 6288 of 2020 and for the first respondent in Appeal No 6189 of 2020 / Emanate Legal for the fourth respondent in Appeal No 6288 of 2020 and for the appellants in Appeal No 6189 of 2020

1. PHILIPPIDES JA: I agree with the orders proposed by Brown J for the reasons given by her Honour.

2. MULLINS JA: I agree with Brown J.

3. BROWN J: On 30 April 2020, the learned primary judge allowed an appeal, subject to the imposition of appropriate lawful conditions, for the grant of a development permit of Fabcot Pty Ltd (“Fabcot”) for a childcare centre, service station, food and drink outlet and shopping centre. His Honour dismissed appeals by Trinity Park Investments Pty Ltd and L’Armonia Pty Ltd (“TPI”) and Dexus Funds Management Limited (“Dexus”), who sought orders that the proposed development be refused. Both TPI and Dexus seek leave to appeal his Honour’s decision. Fabcot seeks to uphold the decision. That position is supported by the Cairns Regional Council (“the Council”).

4. Numerous grounds of appeal have been raised in the proposed grounds of appeal by each of Dexus and TPI.

Background

5. The site in respect of which the development permit was sought, is an area of 4.092 hectares and contains frontages to the Captain Cook Highway, Trinity Beach Road and Navigation Drive (“Fabcot Site”). It is located approximately mid-way between the Smithfield Shopping Centre, a centre operated by Dexus, and the Clifton Village Shopping Centre.

6. The Smithfield Shopping Centre is approximately four kilometres south of the Fabcot Site and is designated a major centre pursuant to the Council’s planning scheme, CairnsPlan 2016 (“CP 2016”). It is a centre of approximately 28,500 square metres and contains a Coles supermarket of 3,010 square metres and a Woolworths supermarket of 4,130 square metres.

7. The Clifton Village Shopping Centre is approximately four and a half kilometres north of the Fabcot Site and is a centre of 7,905 square metres and contains a Coles supermarket of 3,210 square metres. The operators of Clifton Village Centre are not a party to this appeal.

8. Approximately one kilometre north of the Fabcot Site is the Trinity Beach Shopping Centre. It primarily serves a convenience shopping role and contains a NightOwl mini supermarket of 660 square metres. The operators of the Trinity Beach Shopping Centre are not a party to this appeal.

9. TPI has lodged a code assessable development application for a shopping centre on land between Smithfield Shopping Centre and the Fabcot Site, which includes a supermarket of 4,200 square metres and two other shops. TPI’s site is within sub-precinct 3b of the Smithfield Local Plan under CP 2016 and it is two kilometres north of the Fabcot Site. The application is code assessable pursuant to CP 2016. No decision had been made in respect of that application at the time that this matter was heard by Everson DCJ. The TPI land is located approximately two kilometres north of the Smithfield Shopping Centre.

10. The Fabcot Site is in the low-medium density residential zone (“LMDR Zone”). It is also located within the Smithfield Local Plan. Fabcot is the development arm of Woolworths.

11. The proposed Fabcot development includes the following components: (a)a shopping centre with gross floor area of 4,680 square metres, consisting of a 3,600 square metre full line supermarket and nine small retail tenancies; (b)a medical centre with a gross floor area of 900 square metres; (c)a childcare centre with a gross floor area of 670 square metres; and(d)a service station and food and drink outlet with a gross floor area of 360 square metres and an associated forecourt area.

12. Originally, Fabcot had been granted a preliminary approval for the shopping centre and healthcare services on the condition that there was, at the time, a valid supermarket approval located in sub-precinct 3b and the existing planning scheme lends itself to a retail and commercial intent for the site. By the time of the hearing, that approval had lapsed and TPI had lodged a fresh code assessable development application for a shopping centre, including a supermarket of less than 5,000 square metres. Fabcot’s development application was an impact assessable development.

Principal Provisions of CP 2016

13. The principal provisions of CP 2016 identified by the primary judge were as follows:

“[19] “… The hierarchy of assessment criteria is addressed in s 1.5 which relevantly provides:

‘1.5 Hierarchy of assessment criteria

(1)Where there is inconsistency between provisions within the planning scheme, the following rules apply:

(a)the strategic framework prevails over all other components to the extent of the inconsistency;

…

(d)local plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency;

(e)zone codes prevail over use codes and other development codes to the extent of the inconsistency.’

[20] The Strategic framework includes the Settlement pattern theme which includes the strategic outcome that the region grows and evolves in a way that maintains the hierarchy of centres. This strategic outcome is then developed in s 3.3.2, which relevantly states:

‘3.3.2 Element – centres and centre activities

…

3.3.2.1 Specific outcomes

(1)Centres are concentrations of activity that may comprise of retail, business and employment, administration, research, residential, education, and health and community services consistent with the identified role and function of the centre.

(2)A hierarchy of centres is established and maintained, where each centre is characterised by its scale and function, and performs a defined role within the hierarchy. The identified hierarchy of centres and role and function of centres within the region is as follows:

(a)Principal centre: Cairns city centre

…

(ix)The Principal centre is the highest order centre in the region, supported by all other centres within the hierarchy of centres.

(b)Major centres: Earlville, Edmonton and Smithfield

(i)The major centres are concentrations of a mix of activities that consist of higher order retail, employment, commercial, administrative, community, cultural, education, higher density housing and entertainment.

…

(iv)Local plans have been developed for each major centre to ensure the orderly and strategic development of these centres.

…

(vi)Major centres do not compromise the role and successful function of the Principal centre and other Major centres within the hierarchy of centres.

(c)District centres: Babinda, Gordonvale, Manoora, Manunda, Mount Sheridan, Redlynch and Westcourt

(i)The district centres are concentrations of predominantly retail, business and community activities focussed on the weekly and fortnightly shopping and service needs of the surrounding communities.

…

(vi)District centres do not compromise the role and successful function of the Principal centre, Major centres and other District centres within the hierarchy of centres.

(d)Local centres

(i)Local centres provide a small cluster of uses including retail, employment nodes, cafes and dining, and community services that are focussed on the daily and weekly shopping and service needs of their surrounding local community.

(ii)Showrooms, department stores and other large floor space land uses are not located in Local centres.

(iii)Development within Local centres provides a high level of amenity and minimise (sic) the impacts on the surrounding residential areas.

(iv)Local centres do not exceed the needs of their surrounding local community.

(v)Local centres do not compromise the role and successful function of the Principal centre, Major centres, District centres and other Local centres within the hierarchy of centres.

(e)Neighbourhood centres

(i)Neighbourhood centres contain a limited range of small scale convenience or retail facilities that meet the basic, daily convenience needs of a surrounding neighbourhood community and encourage walkable neighbourhoods.

(ii)Neighbourhood centres do not exceed the needs of their immediate neighbourhood catchment.

(iii)Showrooms, department stores, full-line supermarkets and other large floor space land uses are not located in Neighbourhood centres.

(iv)Neighbourhood centres do not exceed the needs of their surrounding neighbourhood community.

(v) Neighbourhood centres do not compromise the role and successful function of the Principal centre, Major centres, District centres, Local centres and other Neighbourhood centres within the hierarchy of centres.

(3)Centres within the region are consolidated within existing identified areas. The expansion of centres only occurs where a community need can be demonstrated and the expansion does not compromise the amenity of surrounding areas or the role and successful function of other centres within the hierarchy of centres identified in section 3.3.2.1(2).

…

(7)Development of centre activities is of a design, scale and intensity that does not compromise the existing and ongoing hierarchy of centres by:

(a)competing with and compromising the economic viability of centres;

(b)adversely affecting the achievement of consolidated centres.

…

(10)New centres are only established where it is demonstrated that:

(a)there is a need for the development;

(b)the development is of a scale that is required to service the surrounding catchment;

(c)the development is highly accessible within the catchment it serves and not located on the periphery;

(d)the development does not compromise the character and amenity of adjoining premises and surrounding areas.’

[21] Part of s 3.3.5 is also relevant:

‘3.3.5 Element – residential areas and activities

3.3.5.1 Specific outcomes

…

(3)Residential areas are used for residential purposes. Non-residential uses are provided where they are appropriate, support the local community, do not detract from the residential amenity of the area or compromise the role and successful function of centres within the hierarchy of centres.’

[22] Part of the Economy Theme is also relevant:

‘3.5.2 Element – strong and diverse economy

3.5.2.1 Specific outcomes

(1)Existing economic activities continue to be facilitated in and around existing allocated areas and where possible are consolidated or colocated with similar or complementary activities.’

[23] As noted above, the site is within the Low-medium density residential zone and the following provisions of the Low-medium density residential zone code are relevant:

‘6.2.10 Low-medium density residential zone code

6.2.10.2 Purpose

(1)The purpose of the Low-medium density residential zone code is to provide for a range and mix of dwelling types including dwelling houses and multiple dwellings supported by community uses and small-scale services and facilities that cater for local residents.

…

(3)The purpose of the code will be achieved through the following overall outcomes: …

(g)non-residential uses are established where they serve the local community and do not detract from the residential amenity of the area.

…

6.2.10.3 Criteria for assessment

Performance outcomes Acceptable outcomes

… / PO3 / Development is consistent with the purpose and overall outcomes sought for the zone. … / AO3.1 / No acceptable outcomes are provided.

PO4 / Non-residential uses that serve the local community are established in appropriate locations and subject to detailed development requirements including: AO4.1 / No acceptable outcomes are provided.

… / PO7 / Development does not adversely affect the residential character and amenity of the area in terms of traffic, noise, dust, odour, lighting or other physical or environmental impacts. … / AO7.1 / No acceptable outcomes are provided

[24] To the extent that it is argued that the proposed development is contrary to and would compromise the existing and ongoing hierarchy of centres in the Planning Scheme and would result in unacceptable impacts, the following provisions of the Mixed use zone code are relevant:

‘6.2.14 Mixed use zone code

6.2.14.1 Application

(1)This code applies to assessing development in the Mixed use zone.

…

6.2.14.2 Purpose

(1)The purpose of the Mixed use zone code is to provide for a mix of activities that may include business, retail, residential, tourist accommodation and associated services, service industry and low impact industrial uses.

(2)The local government purpose of the code is to recognise the presence of areas of mixed land use outside the hierarchy of centres that contain a wide variety of uses.

(3)The purpose of the code will be achieved through the following overall outcomes:

(a)a mix of appropriate uses within the precincts are established;

…

Mixed use precinct 1 – Commercial

(4)In addition to 6.2.14.2(3), the overall outcomes sought for the precinct are:

(a)development within the precinct provides a mix of land uses where the predominant land use is for commercial purposes;’

[25] The following provisions of the Smithfield local plan code have been identified as relevant:

‘7.2.8.3 Purpose

…

(2)The purpose of the code will be achieved through the following outcomes:

(a)the structure of the Smithfield local plan code establishes a pattern of local activity and an economy, based on two key nodes being the James Cook University at the north and the Smithfield Major centre at the south;

(b)economic and employment activity supports local communities and activity, and strengthens self-containment in the suburbs of the Cairns Northern Beaches;

…

Precinct 1 – Smithfield Major centre

(3)In addition to 7.2.8.3(2), the overall outcomes sought for the precinct are:

…

(b)the Smithfield Major centre represents the focus of employment and economic activity in the Cairns Northern Beaches;

(c)Smithfield Shopping Centre is to remain the dominant retail centre for the Cairns Northern Beaches;

…

Precinct 3 – Future employment

(5)In addition to 7.2.8.3(2), the overall outcomes sought for the precinct are:

(a)development is predominantly for professional commercial or industrial uses in the precinct;

(b)a mix of retail, professional business, innovative and technology industries establishes in a finer grain model of development;

…

(d)Precinct 3 – Future employment contains the following subprecincts:

…

(ii)Sub-precinct 3b – Future retail and commercial area;

…

(f)Development in Sub-precinct 3b – Future retail and commercial area:

(i)establishes a structure plan allowing for a mix of uses, focussed on centre activities and mixed use developments;

(ii)ensures the transition of impacts and uses from the adjacent employment areas to the residential land to the east, considering the impact of infrastructure to be established in the area in line with growth demands.

…

7.2.8.4 Criteria for assessment

…

Performance outcomes Acceptable outcomes

PO1 / Development achieves a consolidated, dominant retail centre on the existing Smithfield shopping centre site and ensures new and additional floor space for the sale and supply of retail goods and services develops in line with the need of the Cairns Northern Beaches communities to 2025. AO1.1 / Development with a cumulative floor area of greater than 2,500m² on any one or adjacent sites, outside Precinct 1 – Smithfield Major centre demonstrates an economic and community need for the development which will not compromise the effective function of the Smithfield shopping centre site.

PO2 / Small-scale retail, businesses and restaurants establish to support local communities where they are: AO2.1 / Land uses in residential areas, other than for residential activities:

… / Additional requirements for Sub-precinct 3b – Future retail and commercial area

PO13 / Development in Sub-precinct 3b – Future retail and commercial area: AO13.1 / A structure plan supports development proposing reconfiguration of land or material change of use.

[26] The following provisions of the Centre design code are identified as being relevant:

‘9.4.2 Centre design code

9.4.2.1 Application

(1)This code applies to assessing development:

(a)for Centre activities; or

…

9.4.2.2 Purpose

(1)The purpose of the Centre design code is to ensure centre activities and activity centres:

(a)are developed to support community need and reinforce the hierarchy of activity centres;

(b)are of a high quality design and appropriately respond to local character, environment and amenity considerations.

(2)The purpose of the code will be achieved through the following overall outcomes:

(a)Development is established in accessible locations, consolidate development within existing centre zones and established areas of commerce, (sic) or meet an existing need identified within a local plan area.

(b)Development complements and reinforces the role and function of the established hierarchy of activity centres across the region, and does not compromise the future of consolidated and cohesive activity centres.

…

9.4.2.3 Criteria for assessment

…

Performance outcomes Acceptable outcomes

PO3 / Development is located within: AO3.1 / No acceptable outcomes are provided.

PO4 / A centre activity is only established outside an appropriately identified area where: / … AO4.1 / No acceptable outcomes are provided.”

Decision of the Planning and Environment Court

14. In the original hearing, Fabcot appealed the Council’s decision and sought a development permit for those parts of the development, namely the shopping centre and health care services and reconfiguration of a lot into 14 lots, which were only the subject of the preliminary approval. Both Dexus and TPI sought orders that the proposed development be refused. In the course of the hearing, it emerged that the preliminary reconfiguring of a lot into 14 lots and the development permit for the operational work for an Advertising Device and the appropriateness of the Service Station, Food and Drink Outlet component were not the subject of serious challenge.¹ Further, the Council conceded that a development permit rather than a preliminary approval was appropriate for the shopping centre and health care services.²

15. The Planning and Environment Court hears appeals by hearing them anew as if it is the assessment manager considering the application.³

16. Section 45(5) of the Planning Act 2016 (Qld) provides that an “impact assessment” is an assessment that:

“(a) must be carried out –

(i)against the assessment benchmarks in a categorising instrument for the development; and

(ii)having regard to any matters described by regulation for this subparagraph; and

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

17. Under s 43 of the Planning Act, a planning scheme, namely CP 2016 in this case, is a categorising instrument.

18. Section 60(3) of the Planning Act relevantly states:

“(3) To the extent the application involves development that requires impact assessment… the assessment manager, after carrying out the assessment, must decide –

(a)to approve all or part of the application; or

(b)to approve all or part of the application, but impose development conditions on the approval; or

(c)to refuse the application”.

Reasoning of the trial judge

19. Given the extensive matters raised by Dexus and TPI, and the fact that issue was taken in respect of a number of aspects of the judgment, it is necessary to set out his Honour’s reasoning in some detail, notwithstanding that any appeal is limited to grounds of law.

20. In determining to allow the appeal of Fabcot, his Honour:(a)considered that s 60 of the Planning Act conferred a wide discretion;(b)acknowledged that in undertaking the task required by s 60, it was important to have regard to the observations of McMurdo JA in Bell v Brisbane City Council & Ors that:

“a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.”⁴

(c)accepted the observations of Williamson QC DCJ in Ashvan Investment Units Trust v Brisbane City Council & Ors, ⁵ in relation to s 60(3) of the Planning Act and that the exercise of discretion is more flexible than existed prior to the introduction of s 60(3) of the Planning Act;⁶ and

(d)referred to the decisions of the Court of Appeal in Redland City Council v King of Gifts (Qld) Pty Ltd & Anor,⁷ and Gold Coast City Council v K & K (GC) Pty Ltd,⁸ which were given in the context of the requirements of s 326(1)(b) of the Sustainable Planning Act 2009 (Qld) (which had been repealed), noting that those cases suggested that a degree of precision is required to establish a need for a particular development on a particular site. His Honour, however, stated that under the current legislative scheme, the assessment process undertaken by the Court on an appeal is far less restrictive by reference to the observations of Williamson QC DCJ in Ashvan Investments Unit Trust v Brisbane City Council & Ors,⁹ and Kefford DCJ in Murphy v Moreton Bay Regional Council & Anor.¹⁰ The primary judge also noted that relevantly CP 2016 provides for the establishment of a new centre on the site provided certain preconditions, which included that there is a need for the development, are met.¹¹

21. Having identified the issues in dispute between the parties, which his Honour was required to determine, the primary judge considered each of those issues.¹²

22. In relation to whether there is a need for the development, his Honour:(a)Recognised that “need” was a significant issue, given provision was made for the establishment of new centres where it is demonstrated that there is a need for the development, and reference is made to need in a number of different provisions of the planning code.(b)Adopted the definitions of community need, economic need and planning need agreed by the four experts,¹³ which his Honour considered was supported by established principles. Of particular relevance to the present appeal is the fact that “Planning Need” was agreed by the experts to be “an assessment of the extent to which the proposed development can be accommodated by existing planning provisions. This necessarily involves an assessment of the existence of competitive approvals and the availability of suitably zoned and/or designated lands to accommodate the proposed development.”(c)In relation to the concept of “planning need” the primary judge referred to the decision of Carter DCJ in Williams McEwans Pty Ltd v Brisbane City Council,¹⁴ and Wilson SC DCJ in Isgro v Gold Coast City Council & Anor.¹⁵ Based on those decisions his Honour considered “need,” when used without qualification in the CP 2016, is to be interpreted as a reference to planning need.

23. The primary judge accepted the evidence of Mr Stephens, the expert appearing on behalf of Fabcot, and in particular his evidence that a three kilometre distance from a major supermarket is an appropriate benchmark which reflected the realistic expectations as to accessibility to major supermarkets in an outer urban area of a regional city, such as Cairns. The primary judge further accepted that a population of 8,000 – 10,000 persons was required to support a full line supermarket, which in the present case was satisfied.¹⁶ His Honour accepted the evidence that there were more than 10,800 permanent residents outside of the three kilometre radius of Clifton Village Shopping Centre and Smithfield Shopping Centre, and that the Fabcot Site is centrally located to service the demand of those residents for a full-line supermarket. The primary judge also accepted the evidence of Mr Stephens that the proposed supermarket would likely trade at a level of $11,000 per square metre, which is a relatively strong trading level for a Woolworths of the size proposed and in line with average industry benchmarks, which indicated most full line supermarkets in Australia achieved sales between $9,000 per square metre and $13,000 per square metre. His Honour accepted the evidence of Mr Stephens, supported by Mr Norling, that there was a sufficient economic need for an additional supermarket to service the main trade area at the time the proposed development would commence trading. His Honour further considered that the confidential trading figures for the supermarkets trading at Smithfield and Clifton confirmed the strong level of need for an additional full line supermarket.

“Not only will the proposed development not have unacceptable impacts on the role, function and economic viability of Sub-Precinct 3b in the Smithfield local plan, but there is no evidence before me of any intention by any supermarket operator to conduct such a use within Sub-Precinct 3b.”³⁵

37. The primary judge further found that to the extent it could be asserted that land in sub-precinct 3b was already appropriately designated for use of a shopping centre, which was contemplated by Fabcot’s proposed development, there was no evidence before the primary judge that it was likely to be used as such. The primary judge also found it was not currently able to meet the pressing need that his Honour had identified. His Honour then made reference to the fact the application was “seriously wanting in several respects,” which was the subject of concessions by TPI’s expert Mr Schomburgk.

38. The primary judge took into account several matters which his Honour found were relevant considerations pursuant to s 45(5) of the Planning Act, namely that:(a)the proposed development would bring price benefits, employment opportunities, choice, competition and convenience in circumstances where the only significant retail outlet for the necessities of life within the PTA was the NightOwl store in the Trinity Beach Shopping Centre;(b)the development would provide a second Woolworths store for the Northern Beaches Region where there is a community benefit associated with the existence of a committed anchor tenant;(c)the proposed development would be centrally located to meet the 10,800 residents outside of the three kilometre radius of an existing supermarket;(d)there would be various efficiencies achieved by the co-location of the uses in the proposed development, all of which his Honour found were well located to serve the growing community identified in the PTA;(e)the need for the uses in the proposed development, coupled with the gap in the provision of a full line supermarket to provide for the need, justifies the creation of a new centre on the site as contemplated in the strategic framework of the CP 2016 which could be met by the Fabcot Site;(f)the fact that the Fabcot Site was ideally located to meet the need identified above, together with the fact it would provide the local community with the opportunity of shopping for the necessities of life and utilising the ancillary uses, without having to journey along the, at times, congested Captain Cook Highway, clearly justified the proposed development, despite the fact that it was not small scale; and(g)the potential impacts of any un-actioned approval to extend shopping facilities at Smithfield Shopping Centre was irrelevant given his Honour found that the proposed development would not compromise each role and function in the region.

39. His Honour concluded:

“The proposed development is justified as being ideally located to meet the identified need for a shopping centre including a full-line supermarket, a Health Care Service, a Child Care Centre, and a Service Station and Food and Drink Outlet in a part of the Northern Beaches region of Cairns which lacks a centre to suitably co-locate the above uses. Where the proposed development is ideally located to meet the need for these uses without adverse character and amenity impacts, it can be justified as the establishment of a new centre pursuant to s 3.3.2.1(10) of the Planning Scheme. To the extent that the function and scale of the proposed development is not small scale as is contemplated by various provisions in the Planning Scheme, it is significant that the Strategic framework prevails over all other components to the extent of inconsistency and this fact does not, in any event, warrant a refusal of it. Each of the proposed uses will cater for local residents but not compromise the existing hierarchy of centres pursuant to the Planning Scheme.”³⁶

Nature of appeal

40. There are two applications for leave to appeal, one made by Dexus and one by TPI, and if granted two separate appeals. An appeal to this Court can only be made with leave, and is restricted to an error or mistake in law.³⁷

41. TPI contends that the present case is an appropriate one for leave because:(a)the primary judge erred in law in respects which materially affected his Honour’s decision;(b)the questions of law raised by TPI are of general importance because they concern:(i)the proper interpretation of s 45 and s 60 of the Planning Act, and the approach to be taken in the decision-making process under those provisions;(ii)the application to the Planning Act of principles established by three decisions of this Court known as the trilogy,³⁸ that a planning scheme is the embodiment of what, in the public interest, is the appropriate development of land; and(c)the issues are of special importance to TPI as approval of the proposed development will compromise the planned role and function of TPI’s land under CP 2016 and a code assessable development application made by it for a shopping centre on TPI’s land currently before the Council.

42. TPI relies on three errors of law, which it seeks to raise in this appeal, namely:(a)the primary judge misinterpreted or misapplied s 45 and s 60 of the Planning Act;³⁹(b)the primary judge misinterpreted or misapplied CP 2016;⁴⁰ and(c)the primary judge took into account irrelevant considerations, denied TPI procedural fairness and prejudged TPI’s code assessable development application.⁴¹

43. Dexus contends that it should be granted leave to appeal because:(a)the primary judge erred in law in respects which were material to his Honour’s decision; and(b)the correctness or otherwise of the decision is a matter of considerable public interest.

44. Dexus groups a number of errors which it alleges were made by the learned primary judge into five categories, which it contends involved misconstruing the CP 2016, or erring in principle, or an element of both, and which it contends are errors of law. Those categories in relation to which it is said that his Honour erred are described as:(a)the oversized development areas;⁴²(b)the wrong locations errors;(c)the adverse planning impact errors;(d)the predetermination error; and(e)the discretion miscarried.

TPI contentions

***(a)***Misinterpretation of the s 45 and s 60 of the Planning Act

47. Section 45(5) of the Planning Act provides for an impact assessable development to be carried out against benchmarks in a categorising instrument for the development. TPI contends that in the present case the primary judge erred in failing to find the proposed development was inconsistent with some of the relevant assessment benchmarks. In particular:(a)TPI contends that the Fabcot Site is in the LMDR Zone, which is not recognised under CP 2016 for retail development. It contends that the non-residential uses were to be “small scale” and provide for the needs of the “local community” and that the primary judge erred insofar as his Honour found the proposed development, while not “small scale,” would serve the need of the “local community”. His Honour interpreted the expression “local community” as extending to the PTA of the proposed development, which TPI contends consists of several communities under CP 2016. It contends that “local residents” and “local community” in the LMDR Zone Code are to be understood and read consistently with each other. As a result, it contends that his Honour therefore made an error of law in interpreting CP 2016 and, in doing so, failed to address the requirements of s 45(5) of the Planning Act. It further contends the primary judge did not take into account the planning intention with respect to sub-precinct 3b.(b)TPI further contends that in adopting the above interpretation, the primary judge departed from the principles established by the Court of Appeal in Gold Coast City Council v K & K (GC) Pty Ltd,⁴⁷ Bell v Brisbane City Council,⁴⁸ and Redland City Council v King of Gifts,⁴⁹ which have been described as “the trilogy.” TPI contends that the Planning Act does not legislate a departure from the principles in the trilogy, and that his Honour erred in failing to consider whether the “public interests would not be served by requiring that the land be developed according to the Planning Scheme.”⁵⁰

48. TPI further contends that the primary judge erred in determining that the proposed development would not have any unacceptable impacts upon the role, function and economic viability of sub-precinct 3b in failing to accurately identify the specific planned role and function of sub-precinct 3b in the Smithfield Local Plan. According to TPI:(a)The primary judge failed to take into account or give effect to the more specific provisions of CP 2016 applicable to the TPI land in sub-precinct 3b by emphasising the “wide mix” or “wide variety” of uses contemplated under the mixed use zone and sub-precinct 3b and that it is not part of the centre hierarchy under CP 2016, thereby misconstruing the precise designation of TPI’s land. TPI also contends that the primary judge failed to identify and give effect to the role and function of sub-precinct 3b in the Smithfield Local Plan as a future “retail and commercial area,” the overall outcomes in s 7.2.8.3(5)(b) and s 7.2.8.3(5)(f) and PO13(a). It submits the role and function of the TPI land is also supported by the provisions of the 2009 (“The Regional Plan”).(b)Upon proper construction of the CP 2016, sub-precinct 3b should have been found to have been a part of the planned hierarchy of centres. According to TPI, that ignores the specific land use intentions for sub-precinct 3b which, under the Smithfield Local Plan, has been made clear as being intended for future retail use, focussed on “centre activities” and “shopping.” In particular, it relies on the fact that it provided that the shopping centre of not greater than 5,000 square metres was designated as code assessable under the table of assessment as demonstrating it was to be part of the Northern Beaches area.(c)The finding that sub-precinct 3b did not form part of the hierarchy of centres ignored the fact that if the Council approved the code assessable TPI application, or any application for a shopping centre in sub-precinct 3b, practically it would be part of the centre activities network.

***(b)***No planning need

50. TPI contends that his Honour erred in principle in finding that there was a town planning need for the proposed development.⁵¹ TPI’s contention is that while the primary judge accepted that the reference to “need” for a further shopping centre in s 3.3.2.1(10) refers to town planning need, the primary judge erred in principle in failing to recognise that the need for an additional full line supermarket could be met by development on appropriately designated land in sub-precinct 3b, which did not give rise to a conflict with the CP 2016. There was therefore no unsatisfied demand which is not able to be met adequately or at all by the CP 2016 in its present form. According to TPI, the decision compromises the planning intentions for sub-precinct 3b under the Smithfield Local Plan including the intended strategy for retail uses to be located as part of the “pattern of local activity” and amongst a cluster of other activities at the location of sub-precinct 3b.

***(c)***Pre-judgment of TPI’s application

51. TPI also complain that the primary judge erred in prejudging the TPI application which was, and remained at the time of hearing, pending. TPI complains that notwithstanding the intimation to the contrary by the primary judge, his Honour did make findings that the TPI application was “seriously wanting in several respects.” Further, a finding by the primary judge that there was no evidence of any intention by any supermarket operator to conduct such a use within sub-precinct 3b was unsupported by any evidence. It contends his Honour erred in prejudging the adequacy of the TPI code assessable development application and further denied TPI procedural fairness in making the findings his Honour did when the TPI development application was not in issue. It further contends that his Honour took into account irrelevant considerations by considering which site was the better site.

52. TPI further submitted that even if it was open for his Honour to consider the merits of the TPI development application, his Honour failed to address evidence that there was a likelihood of a supermarket operator taking up a shopping centre use within sub-precinct 3b, and that his Honour acted upon evidence from the regional property manager from the Woolworths Group, which was irrelevant to any issue.

53. TPI contends that his Honour’s discretion miscarried in acting upon wrong principles and erring as to matters of law.

Contentions of Dexus

***(a)***Oversized Development Errors

54. The first category of errors alleged by Dexus are described as the “oversized development errors.”

55. Dexus contends that the primary judge therefore erred in finding that the only non-compliance with the LMDR Zone Code and the Smithfield Local Plan was that it was not “small scale,” when given the size of the proposed development, his Honour should have found that the PTA extended beyond the area of “local residents,” and served several communities. Dexus relies on the non-residential provisions in the LMDR Zone Code, the strategic framework of CP 2016 and the Smithfield Local Plan. The development proposal was not therefore in accordance with CP 2016 and therefore prima facie not in the public interest.

56. Dexus further contends that as a result of that initial error, his Honour also erred in concluding that the proposed development complied with s 3.3.2.1(10) of the CP 2016. Dexus contends that the primary judge erred in applying s 3.3.2.1(10) in isolation, and without regard to other aspects of the CP 2016. As a matter of construction, the provisions of s 3.3.2.1(10) are said to be vague and unbounded unless read with the other provisions of CP 2016, particularly those which ensure a centre does not compromise the role and function of other centres within the hierarchy, as well as provisions as to the Smithfield Shopping Centre and the consolidation of existing centres. It further contends that s 3.3.2.1(10) did not provide for a new centre to be approved on the basis of economic evidence, which was relied upon by the primary judge, and further, that the primary judge failed to recognise that CP 2016 did not contemplate a full line supermarket in a “Local Centre.” Dexus contends that the primary judge was in error insofar as there was no relevant inconsistency to which s 1.5(1)(a) of CP 2016 could apply such that the strategic framework prevailed over all other components of CP 2016.⁵² When read with the other provisions, Dexus contends that it does not authorise approval of a new and very large mixed use centre in a residential zone regardless of compliance or non-compliance with other provisions of CP 2016 or of the context of other provisions.

***(b)***Wrong Location Errors

57. The second category of errors are described as “wrong location errors.” Dexus contends that the primary judge erred in his Honour’s dismissal of sub-precinct 3b, which was the subject of TPI’s application, as an obstacle in the path of an approval of the Fabcot application.⁵³

58. His Honour erred in finding that there was a “planning need” for the Fabcot development, as CP 2016 catered for any planning need for a development in the nature of the proposed Fabcot development by the provision of sub-precinct 3b. His Honour erred in being influenced by the non-identification of sub-precinct 3b as a centre. If a shopping centre was approved in sub-precinct 3b, it would be a centre that needed to be taken into account for any out-of-centre development applications. Further, the primary judge gave no weight to the designation of a shopping centre of less than 5,000 square metres in sub-precinct 3b as code assessable.

59. Dexus further contends that the primary judge incorrectly had regard to the state of TPI’s application, rather than the provisions of CP 2016 in considering the impact on sub-precinct 3b. Further, Dexus contends that the primary judge’s approach preferred the Fabcot Site over sub-precinct 3b, contrary to established principles in planning cases and the role of the court.

***(c)***The adverse planning impact errors

60. In relation to what are described as “adverse planning impact errors,” Dexus contends that his Honour erred in failing to take into account the hierarchy of shopping centres under CP 2016 and the need to avoid prejudice to the viability of the established hierarchy. In addition it contends that the primary judge failed to take into account that CP 2016 intends consolidation within existing centres. According to Dexus, the primary judge failed to take into account the excessive size of the Fabcot development and incorrectly relied upon s 3.3.2.1(10) and a misconstruction of s 1.5(a) of the Strategic Framework in determining that the role and function of Smithfield Shopping Centre would not be compromised. It also contends that his Honour failed to take into account the monetary impact on Smithfield Shopping Centre and the Clifton Village Shopping Centre.

***(d)***The pre-determination error

61. As to the “predetermination error,” Dexus contends that his Honour prejudged the TPI application in finding that it was “seriously wanting in several respects.”⁵⁴ Dexus contends that the finding was even more problematic given the evidence of the Council’s economist that the approval of the Fabcot Site would deprive the TPI application of any prospect of approval. Dexus contends that in the circumstances, it would be wrong in principle for the primary judge to render TPI’s application worthless in favour of an out-of-centre application.

***(e)***Discretion miscarried

62. Finally, Dexus contends that the primary judge’s discretion miscarried on the basis of the “oversized development errors,” which had a cascading effect such that the primary judge would have viewed other issues quite differently had those errors not been made. In those circumstances the intervention by the Court on the basis that the decision below “might have been different” was satisfied.

63. Dexus request that the matter should be remitted to a different judge because of the necessity to ensure the appearance of impartiality is maintained.

Misinterpretation of local residents/ local community?

Summary of Contentions

64. As set out above, Dexus and TPI contend that the proposed development serves several communities and properly construed, particularly in the context of the purpose of non-residential uses in the LMDR Zone Code being “small scale” and which serve the needs of “local residents,” the primary judge had misconstrued the reference to “local” in the LMDR Zone Code . They emphasise other provisions in CP 2016 which refer to “small scale” in terms of non-residential uses and provisions which they contend demonstrate that, in the context of the CP 2016, it was not intended that there be a large supermarket of the scale proposed in the LMDR Zone Code.

65. The applicants emphasise the reference in the LMDR Zone Code to the provision of “small scale services and facilities” that cater for local residents. Dexus contends that the meaning of local is driven by the words “small scale” set out in the purpose of the LMDR Zone Code, which is mandatory to comply with, and which refers to “local residents” rather than “local community.”⁵⁵ The non-residential uses must be “small scale,” which serve local residents in the local community.

66. Dexus makes particular reference to “small scale” in other parts of the LMDR Zone Code and the Smithfield Local Plan, as demonstrating that it is a prominent feature of the intent of the CP 2016. According to Dexus, once it is accepted that a development is not small scale, as intended by CP 2016, it follows that its primary trade area will extend beyond the area of “local residents.”

67. According to TPI, the reasoning of the primary judge leads to the concepts of “local residents” and “local community” being regarded as elastic concepts which expand to accommodate the scale of the proposed development. TPI states that his Honour erred in his Honour’s interpretation of “local” and that when one analyses the relevant provision in the LMDR Zone Code, “local community” takes its meaning from “local residents.” It submits that the terms are co-extensive and the words “cater for” in s 6.2.10.2(1) and “serve” in s 6.2.10.2(3) should be given the same meaning. TPI contends that the expression “local residents” and “local community” are implicitly defined as those residents or community members who would be catered for or served by the particular small-scale services and facilities to which the section refers. It contends that the determination of the meaning of “local community” is not assisted by looking at a dictionary, because the determination of the “local community” depends on the context in which they appear in each relevant zone. Unlike the TPI site in sub-precinct 3b, the Fabcot Site doesn’t have any higher purpose under the Smithfield Local Plan suggesting any broader interpretation. TPI contends that the primary trade area comprises of several local communities, which demonstrates the error in his Honour’s approach. The proposed development is large scale which goes beyond servicing local residents and the local community.

Consideration

71. The question is whether his Honour erred in determining that the only non-compliance with the relevant assessment benchmark was that the proposed development was “small scale,” and whether his Honour erred in construing “local” to include the residents in the PTA.

72. The resolution of this question depends on the statutory construction of “local” when used in the LMDR Zone Code in relation to “local residents” and “local community.” Either phrase is a term capable of broad meaning. As was recognised by the primary judge and also in argument by the parties, little assistance is to be derived from the dictionary and the ordinary meaning of “local.”

73. The definition of the word “local” relevantly includes “belonging to or existing in a particular place or places” or “peculiar to or only encountered in a particular place or places”.⁵⁶ The Macquarie Dictionary defines it to include:

“Relating to or characterised by place, or position in space… relating to a town or a small district rather than the entire state or country”.⁵⁷

74. “Community” is defined in the Australian Oxford Dictionary as “all the people living in a specific locality.”⁵⁸ Similarly, the Macquarie Dictionary defines “community” to include “all the people of a specific locality or country.”⁵⁹ “Resident” is similarly non-descript: “someone who resided in a place.”⁶⁰

75. “Small scale” is defined to be “of limited size or extent,”⁶¹ in the Oxford Dictionary and, relevantly, is defined in the Macquarie Dictionary as “unambitious, or of small extent, as an enterprise.”⁶²

76. The scope of “local residents” and “local community” is to be determined by looking at the words used in the relevant provision itself as well as the terms of the CP 2016 as a whole to determine what meaning those terms were intended to have in CP 2016.

77. In Zappala Family Co Pty Ltd v Brisbane City Council,⁶³ Morrison JA, with whom McMurdo P and Douglas J agreed, stated that the same principles which apply to statutory construction applied to the construction of planning documents. In particular, his Honour referred to the principles set out by the majority in Project Blue Sky Inc v Australian Broadcasting Authority,⁶⁴ in the following terms:

“The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:

[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume, Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.

…

78. However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal 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 of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning …” (underlining added)

[78]Morrison JA in Zappala Family Co Pty Ltd v Brisbane City Council also referred to the decision of AAD Design Pty Ltd v Brisbane City Council,⁶⁵ where Chesterman JA stated in relation to planning schemes, they can “often lack clarity, contain ambiguities and sometimes appear contradictory,” and noted that the Court should adopt a common sense approach and endeavour to give words meaning. Justice Morrison stated that the approach should start and end with the text, seen in its context in the way suggested by Project Blue Sky.⁶⁶ His Honour also referred to High Court decision often cited as setting out the modern approach to statutory interpretation, CIC Insurance Ltd v Bankstown Football Club Ltd,⁶⁷ where the majority stated that the modern approach to statutory interpretation insists that the context be considered in the first instance, and context is to be used in its widest sense.

79. In the context of a planning scheme, such as CP 2016, the hierarchy of provisions is a matter of particular relevance in determining the correct construction, particularly where terms are not always consistently used throughout the planning scheme.

80. Section 1.5 of the CP 2016 provides for the hierarchy to be applied in the event that there is inconsistency between provisions within the planning scheme, such that the Strategic Framework prevails over all other components to the extent of the inconsistency. Statewide codes prevail over all other components to the extent of the inconsistency, then in order of priority there are overlay codes, local plan codes, zone codes and use codes and other development codes.⁶⁸

81. Two constructions of “local residents” and “local community” were essentially argued before this Court. Firstly, that the meaning of “local community” and “local residents” is interchangeable and driven by the reference to small scale. Thus, according to this construction, “local community” refers to that group of people who would be served by small scale non-residential uses. According to Dexus, this could be as small as residents living in part of a suburb. The alternative construction that was adopted by the primary judge is that “local” refers to the PTA on the basis that the “local community” is the community whose weekly shopping needs are met by the proposed shopping centre. On either interpretation there is no bright line to define who falls within or outside the group who are the “local residents” or the “local community.” Nor could there be, since it is a phrase which is incapable of a precise definition. As was noted by Rackemann DCJ in Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council,⁶⁹ when referring to the term “local area,” it is unrealistic in the modern context to expect that the services will not be used by people beyond the local area. As his Honour stated “Catchment areas are not borders within which patrons are quarantined.”⁷⁰ That is not to suggest however that the phrase is treated as having an open ended meaning but rather the fact people may be served outside a catchment does not mean it does not serve the local area. To the extent that Fabcot relies on Seven Eleven Stores Pty Ltd to contend that the LMDR Zone Code reference to serving the local community is flexible and not limited to only serving the local community, it may be accepted that if some people are served beyond those within the “local community” that would not necessarily result in a finding of non-compliance. While there is no provision in the LMDR Zone Code, similar to that found in the Strategic Framework in respect of Local centres providing that the proposed non-residential uses do not exceed the needs of the local community, the phrase “local community” must be construed to have some meaning and not be left open ended.

“Centres are concentrations of activity that may comprise of retail, business and employment, administration, research, residential, education, and health and community services consistent with the identified role and function of the centre.”

86. Section 3.3.2.1(2) provides that: “A hierarchy of centres is established and maintained, where each centre is characterised by its scale and function, and performs a defined role within the hierarchy.” The hierarchy of centres that are provided for consist of a principal centre, major centres and district centres which are nominated in particular locations. It also provides for Local Centres and Neighbourhood Centres:

“(d) Local centres

(i)Local centres provide a small cluster of uses including retail, employment nodes, cafes and dining, and community services that are focussed on the daily and weekly shopping and service needs of their surrounding local community.

(ii)Showrooms, department stores and other large floor space land uses are not located in Local centres.

(iii)Development within Local centres provides a high level of amenity and minimise (sic) the impacts on the surrounding residential areas.

(iv)Local centres do not exceed the needs of their surrounding local community.

(v)Local centres do not compromise the role and successful function of the Principal centre, Major centres, District centres and other Local centres within the hierarchy of centres.

(e)Neighbourhood centres

(i)Neighbourhood centres contain a limited range of small scale convenience or retail facilities that meet the basic, daily convenience needs of a surrounding neighbourhood community and encourage walkable neighbourhoods.

(ii)Neighbourhood centres do not exceed the needs of their immediate neighbourhood catchment.

(iii)Showrooms, department stores, full-line supermarkets and other large floor space land uses are not located in Neighbourhood centres.

(iv)Neighbourhood centres do not exceed the needs of their surrounding neighbourhood community.

(v)Neighbourhood centres do not compromise the role and successful function of the Principal centre, Major centres, District centres, Local centres and other Neighbourhood centres within the hierarchy of centres.”

87. Local centres are not to exceed the needs of the surrounding local community being met by the centres. Reference is also made to a “small cluster of uses.” Those matters bear some similarity to the language used in the LMDR Zone Code in respect of non-residential uses. Local centres are also to minimise the impact on the “surrounding residential areas.” Neighbourhood centres are also described using the phrase “small scale” similar to the purpose of non-residential uses in the purpose of the LMDR Zone Code, however the phrase is used in a specific context, of “small scale convenience or retail facilities” which are to meet the “daily convenience needs” of “surrounding walkable neighbourhoods.”

88. The language used in the LMDR Zone Code does not mirror either the language used in Local Centres or Neighbourhood Centres, such that it could be concluded that either centre is specifically contemplated as potentially being a centre within the LMDR Zone on the basis that the same phrases are used with respect to the same subject matter from which one would infer they bear the same meaning.⁷¹

89. Section 3.3.2.1(10) of CP 2016 does however specifically contemplate the establishment of new centres as part of the hierarchy of centres:

“New centres are only established where it is demonstrated that:

(a)there is a need for the development;

(b)the development is of a scale that is required to service the surrounding catchment;

(c)the development is highly accessible within the catchment it serves and not located on the periphery;

(d)the development does not compromise the character and amenity of adjoining premises and surrounding areas.”

90. The new centres are not zone specific, nor expressly limited to any particular type of a centre.

91. The Strategic Framework applies to CP 2016 and has primacy. It sets out “the policy direction for the planning scheme and forms the basis for ensuring appropriate development occurs within the planning scheme area for the life of the planning scheme.”

92. It includes a provision in relation to residential areas which supports the fact that some sort of centre could be established within the residential area in the nature of the centres to which the hierarchy of centres applies, providing that:

“3.3.5.1 Specific outcomes

…

(3)Residential areas are used for residential purposes. Non-residential uses are provided where they are appropriate, support the local community, do not detract from the residential amenity of the area or compromise the role and successful function of centres within the hierarchy of centres.”

93. The Fabcot Site falls within the Smithfield Local Plan Code area being at the northern point of the boundary. The purpose of the Smithfield Local Plan set out in s 7.2.8.3(1):

“…to facilitate development that contributes to an integrated community consisting of existing and transitioning residential neighbourhoods, a consolidated Major centre, new mixed use development and new employment nodes and the growth and integration of the James Cook University with the wider community.”

94. Under the Smithfield Local Plan there are four defined precincts – The Smithfield Major Centre (Precinct 1), James Cook University (Precinct 2), Future Employment, which includes the Future mixed use area (3a) and Future retail and commercial area (3b), and Residential Uses (Precinct 4).

95. The Fabcot Site is not within any of the defined precincts. General provisions for assessable development under the Smithfield Local Plan would however apply to any proposed development of the Fabcot Site.⁷² Fabcot contends however that it is free of the constraints otherwise imposed on residential areas, such as those found in Precinct 4, which provides that non-residential development “establishes at a scale consistent with a Neighbourhood centre.” Both Dexus and TPI however contend that the terms of the Smithfield Local Plan support the construction they contend should have been adopted by his Honour of “local,” and that the provision for non-residential use in the LMDR Zone Code does not contemplate development of the scale proposed by Fabcot.

96. Under the Smithfield Local Plan, the Smithfield major centre consists of two sub-precincts: the Smithfield Shopping Centre and employment (s 7.2.8.3(3)(a)). Smithfield Shopping Centre is one of the designated major centres in the Strategic Framework of CP 2016. The Smithfield Shopping Centre is to remain the dominant retail centre for the Cairns Northern Beaches under s 7.2.8.3(3)(c). According to s 7.2.8.3.2(a), one of the overall outcomes to achieve the purpose of the Smithfield Local Plan code is that “the structure of the Smithfield local plan establishes a pattern of activity and an economy, based on two key nodes being the James Cook University at the north and the Smithfield Major centre to the South.” The position of the Smithfield Shopping Centre as the “dominant focus of retail opportunities for the Cairns Northern Beaches” is expressly stated in the extrinsic evidence set out in s 7.2.8.2.

97. Both the applicants and the respondents seek to rely upon s 7.2.8.2 of the Smithfield Local Plan, which is stated to be extrinsic material intended to assist in the interpretation of the Smithfield Local Plan. Extrinsic evidence is relevant under s 14B of the Acts Interpretation Act 1954 (Qld) as modified by s 15 of the Statutory Instruments Act 1992 (Qld) if it is capable of assisting in the interpretation, if the provision is ambiguous or obscure, or the ordinary meaning of the provision leads to a result that is manifestly absurd or unreasonable and the extrinsic material provides for an interpretation that avoids such a result, or to confirm the interpretation conveyed by the ordinary meaning of the provision. Extrinsic evidence is also relevant to the context of the provision insofar as it indicates the purpose of the Smithfield Local Plan.⁷³

“(1) The purpose of the Local centre zone code is to provide for a limited range of retail, commercial and community activities to service local needs.

It includes local shopping…..where it can integrate and enhance the fabric of the centre.

(2)The local government purpose of the code is to ensure development is consistent with the identified role and function of Local centres within the hierarchy of centres.

(3)The purpose of the code will be achieved through the following outcomes:

(a)a small range of uses including retail, business, cafes and dining, and community activities are provided that are focussed on the daily and weekly shopping and service needs of their surrounding local community; Showrooms, department stores and other large floor space land uses, other than supermarkets, are not located in Local centres.” (underlining added)

113. Fabcot emphasises that supermarkets are not excluded, notwithstanding other large floor spaces are excluded from being located in such centres, and Local Centres in the Strategic Framework should similarly be read as permitting supermarkets but not other large floor spaces, notwithstanding it is not expressly included in s 3.3.2.1(d).

114. Dexus, however, emphasises that the purpose in s 6.2.7.2 is consistent with the provisions in the LMDR Zone Code with respect to non-residential uses. It further submits that the performance outcomes and acceptable outcomes PO6 and AO6.1 in the Local Centre Zone Code reinforces the fact that the Fabcot development is of a scale proposed that still exceeds that which is contemplated within the meaning of a Local centre. PO6 states that the development reinforces the role and function of Local centres within the hierarchy of centres while AO6.1 states that the development for a shop or single tenancy within a shopping centre, excluding a supermarket, does not exceed 200 square metres GFA. AO6.2 refers to “Showrooms or department stores are not established in the Local centre zone.” AO6.1 is however referring to an individual tenancy not the Local Centre as a whole.

115. In my view although Fabcot and the Council put forward persuasive arguments, “local residents” and “local community” in the LMDR Zone Code should be construed consistently with how they are used in the LMDR Zone Code, having regard to the fact that the stated purpose is to provide for “small scale services and facilities that cater for local residents.” Although “small scale” is used only in the context of the extension in PO4 of the LMDR Zone Code, PO3 of the LMDR Zone Code requires a development to be consistent with the purpose and overall outcomes. Construing the meaning of “local community” to be comparable to non-residential uses of a small scale is consistent with and supported by:(a)PO4 of the LMDR Zone Code providing for “non-residential uses that serve the local community” including “providing for the identified convenience needs of the local community” (emphasis added); (b)PO4 of the LMDR Zone Code contemplates non-residential uses being established in more than one area given the reference to “locations”; (c)PO2 in the Smithfield Local Plan which refers to “small scale retail, business and restaurants establish (sic) to support local communities where they are within a walking distance or catchment of predominantly residential neighbourhoods”;(d)the extrinsic evidence in s 7.2.8.2 which supports the fact that the Smithfield Local Plan is to provide for two anchors in the Smithfield local area to achieve its stated purpose but otherwise “Small scale and boutique retail markets may be established elsewhere to support local communities and tourist markets, although it is anticipated that these do not occur in significant shopping centre developments”;(e)while Local Centres refers to “local community,” the relevant provisions refer to “small cluster” of uses as opposed to scale and “small scale of uses”, the former referring to the nature of uses as opposed to size of the non-residential use which is relevant to scale, indicating “local community” is to be interpreted differently to the LMDR Zone Code; and(f)the reference to not compromising the hierarchy of centres can be read consistently as a reference to either a neighbourhood centres insofar as it refers to small scale convenience shopping or Local centres which refers to a small cluster of uses serving not just weekly needs but daily needs of the surrounding local community.

Construction of s 3.3.2.1(10) of the Planning Scheme

Contentions

122. As part of its contentions in relation to oversized development errors referred to above, Dexus contends that while that s 3.3.2.1(10) can apply to any land in any zone in any part of the local area and is not centre specific s 3.3.2.1(10) needs to be construed by reference to other provisions of CP 2016 that are zone specific, and centre type specific.

123. Dexus also contends that the omission in s 3.3.2.1(10) of a provision which seeks to ensure that a centre does not compromise the role and successful function of other centres within the hierarchy, such as found in other provisions in CP 2016 particularly the Strategic Framework is the result of poor drafting and should be implied by the Court. In that respect, it referred to the CP 2016 policy on “Centres and Centre activities” where paragraph 2(1)(b) provided that development involving the establishment of a new centre is only established where it is established that the proposed development “does not compromise the role and successful function of the hierarchy of centres within the region,” as supporting the fact that there had been such an omission. In addition, it points to the various codes which contained a similar provision.

124. Dexus contends that in construing s 3.3.2.1(10), it is unlikely to extend to a principal or major centre given the structure of a hierarchy and regard has to be had to provisions in CP 2016 show that it is intended that the Smithfield Shopping Centre will be “vibrant, engaging and active” and that there be consolidation within existing centres relying in particular on s 3.3.2.1(3) and (7). It further contends there was no warrant in any language in CP 2016 for regarding sub-paragraph 10 as authorising approval of any new centre on the basis of economic evidence, and that the primary judge treated the proposal as constituting a new “Local centre” in the hierarchy in CP 2016 and failed to recognise that CP 2016 did not expressly contemplate full line supermarkets in local centres.

125. TPI submitted a different approach applied in relation to the construction of subparagraph 10. It submitted that the primary judge misinterpreted subparagraph 10 because the provision did not authorise new centres to be established in locations which were inconsistent with the intent of CP 2016. As a matter of interpretation, TPI contends that it serves as a limitation or prequalification on the establishment of new centres, which is supported by the word “only” in the chapeau of s 3.3.2.1(10). His Honour erred insofar as TPI contends that his Honour allowed s 3.3.2.1(10) to be leveraged against the scheme provisions with respect to sub-precinct 3b and the provisions protecting the hierarchy of centres in favour of out of centre development.

126. TPI however contends that as a matter of interpretation, any new centre established must necessarily become one of the centres which are identified in CP 2016, such that if one passes through the “gateway” contained in s 3.3.2.1(10) for establishing a new centre, the centre has to then satisfy the criteria or indicia of one of the specific centres set out in s 3.3.2.1(2). Thus, it contends it is not an omission that s 3.3.2.1(10) does not to refer to the hierarchy of centres, but rather s 3.3.2.1(10) is a precondition to moving into one of those categories which provide for a hierarchy of centres. TPI contends that this is supported by the fact that there are no other descriptions of a centre, other than the centres which are identified in the hierarchy in CP 2016. Dexus adopts TPI’s construction in the alternative.

Consideration

130. I will deal first with the argument that the Court should imply in s 3.3.2.1(10) a provision requiring the new centre not to compromise the role and successful function of other centres.

131. The majority of the High Court in Taylor v Owners-Strata Plan No 11564,⁸² stated that purposive construction may allow a reading of a provision as if it contained additional words. However, the Court emphasised that whether a court would be justified in doing so is a matter of degree. The majority stated that the judgment was readily answered in favour of additional or omitted words in the case of simple grammatical drafting errors which, if uncorrected, would defeat the object of the provision. That was not the case, however, with respect to a construction that fills “gaps disclosed in legislation,” or makes an insertion which is too big or is too varied when compared with the language in fact used by the legislature. The implication of a provision in effect mirroring that found in respect of a specific centre which provides that the centre is not to compromise the role and successful function of other centres within the hierarchy of centres falls within the latter category.

132. While the Policy for Centre and Centre Activities in CP 2016 suggests that Parliament intended to include the provision as to centre hierarchy in s 3.3.2.1(10), it may equally be explained by the fact that the centre hierarchy is included in each of the zone codes.

133. More relevantly, such an implication is not required on a proper reading of s 3.3.2.1 which makes it clear that its omission in s 3.3.2.1(10) is not the result of any inadvertence, but rather because it was unnecessary on a proper construction of the strategic framework.

134. TPI’s contention as to the construction of s 3.3.2.1(10) should be accepted as a correct one. Section 3.3.2.1(10) should be read in context with the other provisions in CP 2016. There are no provisions which apply to “new centres.” Other zone codes, such as the LMDR Zone Code, which contemplate the creation of a centre provide that any non-residential use under the LMDR Zone Code, pursuant to PO4, must not impact on the role or function of the hierarchy of centres within the region. The hierarchy must refer to the hierarchy in s 3.3.2 of the Strategic Framework and to one of the centres within the hierarchy in order for the Strategic Framework to operate as intended. Section 3.3.2.1(2) provides that for each of the different types of centres identified, the centre does not compromise the role and successful function of the centres higher in the hierarchy or at the same level but not for a centre below it in the hierarchy. Thus, to be able to apply the hierarchy of centres, a centre must fall within one of the categories described in the hierarchy. Therefore, to establish a new centre an applicant would have to satisfy the requirements in s 3.3.2.1(10) and the requirements for one of the centres in the hierarchy which is the subject of the application. This is consistent with the fact that zone codes apply to the various centres identified in the hierarchy of centres in s 3.3.2.1, namely the Principal Centre, the Major Centres, the Local Centres and Neighbourhood Centres which are to ensure development is consistent with the identified role and function of the particular type of centre. There is no code for new centres established under s 3.3.2.1(10). The Centre design code also has a stated purpose of ensuring activities are amongst other things “developed to support community need and reinforce the hierarchy of centres” and ensure they meet design requirements.

“Where the development is inconsistent with the planning scheme, the assessment may form part of the basis for determining whether sufficient grounds exist to approve such a development.”

141. The specific acknowledgement that the proposed development may be inconsistent with CP 2016 in the policy supports the interpretation that the establishment of new centres pursuant to s 3.3.2.1(10) is not confined to existing zones for centres and may be included within the LMDR Zone Code even though it may conflict with other parts of CP 2016. The above construction gives effect to the CP 2016 as a whole and the primary position of the Strategic Framework while protecting the hierarchy of centres. The approach of Dexus fails to give effect to the clear legislative intention to include a provision for new centres without limiting it to any particular zone.

142. It is plain from the reasons of the primary judge that his Honour did consider the impact of the proposed development on the existing and ongoing hierarchy of centres, and whether it would compromise the existing and ongoing hierarchy of centres. His Honour accepted the evidence of expert economists in concluding that the hierarchy would not be compromised, in relation to surrounding shopping centres.⁸⁷ In that regard, his Honour stated that approval of the proposed development would maintain the hierarchy of centres as contemplated by s 3.3.2.1(2)(d) in the strategic framework, and that the proposed development would constitute a new Local centre in the hierarchy.⁸⁸ His Honour also considered the reference to “local community” by reference to s 3.3.2.1(2)(d) in his reasons at [50] by reference to weekly shopping needs of local residents, albeit assuming the same meaning for “local community” when referred to in the LMDR Zone Code. His Honour also considered the Centre Design Code and the impact sub-precinct 3b.

143. As is evident from the discussion above, I do not accept Fabcot’s argument that the reference to “local community” in the LMDR Zone Code bears the same meaning as “local community” in relation to Local Centres, which contemplates a larger section of the community. However, his Honour did not approach the application of s 3.3.2.1(10) in isolation from other provisions in CP 2016 as contended by Dexus.

144. The Strategic Framework prevails over all other components to the extent of any inconsistency (see 1.5(1)). His Honour appeared to consider that there was potentially a conflict between the strategic plan and the reference in the LMDR Zone Code to “small scale.”⁸⁹ If the centre satisfies s 3.3.2.1(10), and the requirements for Local centres, Local Centres do permit non-residential development of the scale that provides for weekly shopping. In the present case his Honour found that the Fabcot proposed development served the weekly needs of a local community within the PTA. The provision as to new Centres in combination with Local Centres is not confined to small scale development. Nor is the local community limited by the development only being small scale. There is an inconsistency between the LMDR Zone Code and the Strategic Framework in the scale of development permitted for Local Centres which is permitted under CP 2016 given the inclusion of s 3.3.2.1(10). That was the apparent basis of his Honour considering s 1.5 could apply and was not in error.

Sub-Precinct 3b and Planning Need/Wrong Location errors

147. An overview of the contentions of TPI and Dexus has been outlined above. TPI submits that his Honour erred in failing to take account or give effect to provisions in CP 2016 which provided for sub-precinct 3b to have a distinct and preferred position under CP 2016 for the development of a shopping centre borne out by s 7.2.8.3(5)(f) of the Smithfield Local Plan, and PO13(a) of the Smithfield Local Plan. That is said to be further supported by the Shopping Centre of less than 5,000 square metres being code assessable. It contends that the finding by his Honour that the proposed development would not unacceptably impact on the role, function and economic viability of sub-precinct 3b in the Smithfield Local Plan failed to accurately identify the specific plan, role and function of sub-precinct 3b in the Smithfield Local Plan. It contends that upon a proper construction of CP 2016, sub-precinct 3b should, by implication, have been found to have been part of the hierarchy of centres, or at least a location where CP 2016 intended or planned for a shopping centre less than 5,000 square metres total gross area, including a supermarket, to be located in the Northern Beaches area. It contends that if the TPI application for a shopping centre in sub-precinct 3b was approved, that approval would constitute a centre development. It further contends that the reference to “need” in s 3.3.2.1(10) is a reference to town planning need. That concept of planning need is that there is an unsatisfied demand which is not able to be met adequately or at all by CP 2016 in its present form.

148. TPI contends that the provisions applicable to sub-precinct 3b demonstrate a legislative intention that under CP 2016, particularly the Smithfield Local Plan, sub-precinct 3b is intended to have the function of a centre and form part of the retail and centre activities in the network in the Northern Beaches area and meet any planning need for a Shopping Centre which includes a supermarket. In contrast the Fabcot Site was assigned no higher purpose under CP 2016.

149. Under CP 2016, local plans provide for localised planning responses and development outcomes for discrete areas.⁹⁰ TPI also places some importance on the Regional Plan as supporting its contention that sub-precinct 3b was to be the primary site for a supermarket and other business activities. The Regional Plan prevails over a planning scheme to the extent of any inconsistency. The Regional Plan recognised that in relation to the James Cook University (“JCU”), there are opportunities in the future for “additional centre activities,” a technology park at JCU and additional industrial land. While the Regional Plan prevails over CP 2016 to the extent of any inconsistency, no apparent inconsistency is identified and, in terms of context, it adds little to the terms of CP 2016 itself, particularly given the lapse in time between the Regional Plan and CP 2016 and that the reference is contained in Part D. It is of no real relevance in resolving the proper construction of the provisions in respect of sub-precinct 3b in the context of the question of the planning need or the relationship with a new centre.

Consideration

152. Sub-precinct 3b is part of the Mixed Use Zone and within the Smithfield Local Plan. The Smithfield Local Plan states that sub-precinct 3b is to be a future retail and commercial area with development establishing a structured plan allowing for a mix of uses, focused on centre activities and mixed use activities as part of its purpose. That is supported by the criteria for assessment in relation to sub-precinct 3b, which provides a performance outcome in similar terms to the purpose, but which refers to it establishing “a structure plan allowing for a mix of uses, focussed on shopping, showrooms, low-scale industry and commercial activities,” (emphasis added).⁹⁴ Sub-precinct 3b is in a Mixed Use Zone and subject to the Mixed Uses Zone Code, although the Smithfield Local Plan prevails over the Mixed Uses Zone Code. Under the Mixed Uses Zone Code, the purpose is stated to be to provide for a “mix of activities that may include business, retail, residential, tourist accommodation and associated services, service industry and low impact industrial uses.”⁹⁵ Section 6.2.14.2(2) states that the local government purpose of the code is to recognise the presence of areas of mixed land use outside the hierarchy of centres that contain a wide variety of uses. However, s 6.2.14.2, which states how the purpose will be achieved through overall outcomes, states that the development in the mixed use zone does not compromise the role and successful function of centres within the hierarchy of centres.⁹⁶ The overall outcome sought for the sub-precinct 3b under the Mixed Use Zone Code is stated to include “development within the precinct provides a mix of land uses where the predominant land use is for commercial purposes,”⁹⁷ and that “medium density residential and short term accommodation uses are provided in a mixed use setting involving commercial or retail uses on the lower and ground floor storeys.”⁹⁸ The TPI site was designated Precinct 1 of the Mixed Use Zone Code, but sub-precinct 3b under the Smithfield Local Plan Code. The latter prevails to the extent of any inconsistency.

153. The use of Sub-precinct 3b for future retail use is supported by the outcomes in the Smithfield Local Plan for sub-precinct 3b (s 7.2.8.3(5) and PO13(a)), which refer to a structure plan allowing for a mix of uses focused on shopping, showrooms, low-scale industry and commercial activities. The table of assessment in respect of sub-precinct 3b provides that a shopping centre of less than 5,000 square metres is code assessable. This is in contrast to the position of other shopping centres, which are impact assessable if greater than 500 square metres in the mixed use zone.

Consideration of Public Interest

173. Dexus and TPI particularly rely on the cases which are referred to as the “trilogy,” namely Bell v Brisbane City Council,¹¹⁵ Gold Coast City Council v K & K (GC) Pty Ltd,¹¹⁶ and Redland City Council v King of Gifts (Qld) Pty Ltd.¹¹⁷

174. TPI contends that the trilogy of cases held that, prima facie, CP 2016 must be accepted as a comprehensive expression of what will constitute the appropriate development of land in the public interest. It submitted that if the placement of a development in a particular location would conflict with a planning scheme, then it must be accepted that it is the intent of the scheme, that subject to there being a matter of public interest that overrides the public interest in maintaining a scheme, the need should be met by a development on the site that does not give rise to the conflict.¹¹⁸ It further submits that merely to prove the existence of a need is insufficient. It submits that unless there is a matter of public interest that overrides the public interest in maintaining a planning scheme, the need for a development should be met by a development on a site that does not give rise to a conflict.¹¹⁹ TPI referred to the statement by Sofronoff P in Gold Coast City Council v K & K (GC) Pty Ltd:¹²⁰

“If the placement of a development in a particular location would conflict with a Planning Scheme, then it must be accepted that it is the intent of the Scheme that, subject to there being a matter of public interest that overrides the public interest in maintaining a Scheme, the need should met by a development on a site that does not give rise to a conflict.”

175. TPI also directed the Court to the statements in Redland City Council v King of Gifts,¹²¹ where the Court of Appeal emphasised that it was necessary to demonstrate that there is a need for the particular development on the particular location that the relevant planning scheme provided that it should not occur, as distinct from more generally in the area or part of the area governed by the planning scheme.¹²²

176. It was submitted by TPI that, contrary to the position stated by the primary judge that the trilogy of cases were given in the context of the requirements of s 326(1)(b) of the Sustainable Planning Act 2009 (Qld) whereas the current legislative scheme under the Planning Act provided for an assessment process to be undertaken by the Court that is far less restrictive,¹²³ the Planning Act does not legislate a departure from principles stated in the trilogy of cases, which are said to have a long history in planning law jurisprudence.

177. Fabcot, however, contends that his Honour correctly considered that a planning scheme is accepted as expression of public interest, but s 45 and s 60 of the Planning Act changed the previous regime. In that regard, it particularly relied upon the approach outlined in the decision of Ashvan Investments Unit Trust v Brisbane City Council.¹²⁴

178. The decision of Ashvan Investments Unit Trust v Brisbane City Council, the trilogy and the approach to be adopted in light of s 60 of the Planning Act was recently considered by this Court in the decision of Abeleda v Brisbane City Council.¹²⁵ Mullins JA provided the leading judgment.¹²⁶ While the approach set out in the trilogy of cases still has relevance under the Planning Act particularly the fact, as stated by McMurdo JA,¹²⁷ that “a planning scheme must be accepted as a comprehensive expression of what will constitute in the public interest the appropriate development of land,” in other respects the approach now to be adopted is quite different. As her Honour carefully set out in her judgment, s 60(3) of the no longer incorporates what was described as the two step test and it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved.

“…..The decision-maker under s 60(3) of the Act is still required to carry out the impact assessment against the assessment benchmarks in the relevant planning scheme and can take into account any other relevant matter under s 45(5)(b). The starting point must generally be that compliance with the planning scheme is accorded the weight that is appropriate in the particular circumstances by virtue of it being the reflection of the public interest (and the extent of any non-compliance is also weighted according to the circumstances), in order to be considered and balanced by the decision-maker with any other relevant factors.”

180. At [43], her Honour noted that in view of the fact that s 60(3) of the Planning Act reflects a deliberate departure on the part of the legislature from the two part test under s 326(1)(b) of the Sustainable Planning Act 2009 (Qld), it is no longer appropriate to refer in terms of one aspect of the public interest “overriding” another aspect of the public interest before a development application that is non-compliant with the assessment benchmarks can be approved.¹³² The process adopted by a decision-maker may now be one which involves balancing a number of factors to which consideration was permitted under s 45(5) of the Planning Act in making a decision under s 60(3) of the Planning Act where the factors in favour of approval have to be balanced with the factors in favour of refusal of the application. The weight that is given to each factor is a matter for the decision-maker.

181. Having analysed the trilogy of cases, Mullins JA at [51] pointed out the distinction from the decision-making process under s 60(3) of the Planning Act as opposed to that adopted in relation to s 326(1)(b) of the Sustainable Planning Act 2009 (Qld) as follows:¹³³

“The focus in K & K and King of Gifts in respect of s 326(1)(b) of the SPA was whether the planning need for the proposed development overrode the planning scheme in relation to the development of that particular site. Under s 60(3) of the Act, the decision is made in respect of the development application for a particular site, but the parameters of the impact assessment undertaken by the decision-maker do not necessarily suggest that, where planning need is a relevant matter, the planning need must be limited to the need for the proposed development on that particular site only and no other site, rather than a planning need for that type of proposed development that would be appropriately satisfied by the development on that site. The weight to be given to the planning need may be greater if the evidence showed that the need would be satisfied only by the proposed development on the particular site. The process of decision-making provided for by the Act under s 45(5), s 59(2), s 59(3) and s 60(3) does not restrict planning need to the proposed development of the specific site in the manner discussed in Bell, K & K and King of Gifts for the purpose of s 326(1)(b) of the SPA, but the existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter.”

182. In analysing the decision of Ashvan, her Honour stated that, subject to the recognition that status of the Planning Act has not changed as the embodiment of the community interest, her Honour agreed with the observations of Williamson QC DCJ at [53]-[54] as to the approach with respect to non-compliance with a planning scheme in the exercise of planning discretion. Having referred to the observations of McMurdo JA in Bell v Brisbane City Council in relation to a planning scheme being the embodiment of community interest, her Honour agreed with the observations of Williamson QC DCJ at [53] subject to the caveat to which I have referred.¹³⁴ That passage was referred to by the primary judge in his Honour’s reasons.¹³⁵

183. The primary judge’s approach as now provided for under s 45 and s 60 of the Planning Act, set out at [16]- [18] of his Honour’s reasons, was not in error. In particular, the fact that there are non-compliances with CP 2016 in relation to the proposed development does not exclude it from being a matter that a decision-maker may determine should be approved, notwithstanding the points of departure in the exercise of discretion.

184. However, given the finding above that his Honour erred in this consideration of the meaning of “local community” in the LMDR Zone Code, his Honour did not consider the relevant non-compliances of the assessment benchmarks in his Honour’s consideration.

185. For the reasons set out above the primary judge was not required to find a non-compliance with the planning scheme on the basis that any existing or imminent need for a supermarket could be met on the sub-precinct 3b site as contended by TPI. Given that, there was not a failure to consider “whether the public interest would not be served by requiring that the land be developed (sic) according to the planning scheme” as contended by TPI, aside from the fact that the approach to consideration of public interest under the Planning Act provisions provides for the approach outlined above.

186. While Dexus did not seek to depart from the approach set out in the decision of Ashvan,¹³⁶ it contended that his Honour erred by not taking into account the fact that the TPI site was appropriately zoned and available to satisfy the planning need. His Honour clearly did consider sub-precinct 3b in his Honour’s assessment of the planning need. The primary judge also quite rightly noted that the consideration of the legislative scheme requires consideration of the fact that it also provides for the establishment of a new centre on the site, provided certain preconditions, including the need for development are met. Even aside from the changes brought about by the , the inclusion of s 3.3.2.1(10) is a further point of distinction from the position considered in the trilogy of cases.

“It may be accepted that the need for a particular development in a particular place may constitute a matter of public interest because an identified section of the public has an interest in seeing that need satisfied by a development in the particular location. Whether that is so is a question for the decision maker to consider in the circumstances of the case.”

189. The submission by Dexus and TPI that the Fabcot application should not be considered until the question of how sub-precinct 3b is to be developed is resolved cannot be accepted, either on the basis that it necessarily met an unmet need, or having regard to the approach to be adopted under the Planning Act.

Assessment Planning Impact Errors

190. Dexus complains that the trial Judge did not deal with matters outlined in [22] of its submissions.¹³⁸ Those that are material to the status of the Smithfield Shopping Centre set out in s 6.2.11.2(3)(j) under CP 2016 and that CP 2016 intends “consolidation” within existing centres.¹³⁹

191. Dexus complains that his Honour failed to take into account that the Fabcot development was oversized, and had a significant monetary impact on the Smithfield Shopping Centre and Clifton Village Shopping Centre. There is no issue that the primary judge correctly identified the size of the Fabcot development. There is no logical connection between why the “oversized development errors” and s 1.5 impacted on his Honour’s consideration of the adverse impact on the Smithfield Shopping Centre or the Clifton Village Shopping Centre. His Honour considered the impact on both centres in assessing whether the proposed development is contrary to and would compromise the existing and ongoing hierarchy of centres. That consideration extends to the creation of new centres that is specifically provided for in s 3.3.2.1(10).

192. Section 6.2.11.2(3)(j) only applied to major centres and was not a provision that required specific consideration in the context of the Fabcot application. In any event, Fabcot correctly submits, the statement that the Smithfield Shopping Centre was to be “vibrant, engaging and active” does not provide any criteria by which compliance could be judged.¹⁴⁰ Failing to take into it account does not constitute a failure to take into account a relevant consideration having regard to the terms of the well known test set out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.¹⁴¹ The other provisions were identified in exhibit 10A as relevant provision for consideration as part of the dispute. His Honour identified the material provisions providing for consolidation of centres and centre activities.¹⁴² He considered that PO4 of the Centre design code which provided, amongst other things that the centre activity does not compromise the establishment of consolidated activity centres with distinct roles and functions across the regions.¹⁴³

193. The fact that his Honour did not deal with every aspect of the evidence or identify every provision referred to before his Honour in his reasons does not support a contention that his Honour failed to take into account a relevant consideration. The primary judge plainly considered the impact on Smithfield Shopping Centre and Clifton Village Shopping Centre including the financial impact upon them and the opinions of the economists. His Honour plainly refereed to the Joint Expert Report which contained the reference to the loss of turnover but where the experts concluded that the impacts were acceptable. In his reasons at [48] he referred to the relevant Planning Scheme Provisions noted above and in [49] referred to s 7.2.8.3 in finding the position of Smithfield Major Centre would still represent the focus of employment and economic activity in the Cairns Northern Beaches. In the circumstances, there is no basis to infer his Honour failed to take into account relevant considerations. This ground is not made out.

Prejudgment of issue

194. His Honour considered whether the proposed development would result in unacceptable impacts on the role, function and viability of sub-precinct 3b on the Smithfield Local Plan. His Honour found that the proposed development would not result in unacceptable impacts on the role, function and viability of sub-precinct 3b given the broad range of uses that were contemplated. The primary judge, however, went further and found that there was no evidence of any intention by any supermarket operator to conduct such a use within sub-precinct 3b and commented that “to the extent it could be asserted that the land in Sub-Precinct 3b already is appropriately designated for the use of a shopping centre as contemplated by the proposed development, there is no evidence that is likely to be used as such and it is certainly not currently able to meet the pressing need…”¹⁴⁵ The primary judge further commented on the fact that the TPI development application was seriously wanting in several respects. Dexus and TPI contend that by the primary judge’s comments, his Honour pre-judged the development application.

195. While TPI has framed its case by reference to a number of errors, its principal contention is that his Honour denied TPI natural justice in making the above findings. It also complains that the primary judge took into account an irrelevant consideration in determining which site was a better site, and by considering evidence from the Regional Property Manager for the Woolworths group.

196. Notwithstanding that it is only TPI affected by such an issue, Dexus also complains that the primary judge made an error in prejudging TPI’s application. This was particularly so, given the evidence of the economists that if Fabcot’s application was successful, it would deny the TPI application any prospect of approval. In particular, Dexus contends that given CP 2016 makes provision for a code assessable application for a shopping centre to be made on sub-precinct 3b, it was wrong in principle for the primary judge to render the application worthless in favour of an out-of-centre shopping centre proposal.

197. Fabcot and the Council contend there was no pre-judgment by the primary judge nor did he otherwise err in law given how the case unfolded before the primary judge, relying on the issues in disputes between the parties and evidence led.

Consideration

198. At the time of the hearing TPI had made a development application which was at the information request stage. The matter proceeded in an unusual way insofar as on the first day of trial, the Council submitted to his Honour that it did not want his Honour to engage in a prejudgment of the merits of the TPI application. That submission was made in the context of TPI initially not providing all information in respect of its application that had been requested, and that the Council was awaiting that further information having granted an extension. His Honour agreed to that course, and TPI contends it did not produce any evidence in support of the merits of the application.

199. It is evident there was much confusion before his Honour as to how the TPI application should be viewed. While both Dexus and TPI contend that Fabcot’s application, should not have been considered, beyond the fact of it having been made which was relevant to its intention as to the sub-precinct, there was evidence led at trial relevant to it. Further, as Fabcot submitted a number of live issues in relation to sub-precinct 3b which had been agreed for consideration by his Honour. His Honour had provided a summary of the issues at [27] of his reasons.

200. There were a number of exchanges during the cross-examination, particularly by experts, as to the TPI site. The primary judge emphasised on a number of occasions that it was not his Honour’s role to engage in an assessment of TPI’s proposal. The primary judge stated, however, that whether TPI was likely to be able to meet the need, particularly for a supermarket, in the timeframe that the experts have given in evidence was a matter that needed to be considered. That was disputed by Counsel for TPI. Counsel for TPI, however, conceded that if it was a timing issue, Counsel could understand the relevance of that. In re-examination, the expert appearing on behalf of TPI was then asked by Counsel for TPI as to whether the tasks of meeting information requests and the structure planned within the timeframes proposed created any difficulty following concessions made by him in cross-examination that TPI’s application was at that time wanting in a number of respects. The expert stated he knew of no reason why the extended time frame could not be met.

201. Prior to the hearing, the parties prepared a list of issues in dispute, which included as “Relevant Matters”:(a)whether the Council’s decision will prejudice the potential for, and vitality of, any future development on other suitably zoned land (in particular, land in sub-precinct 3b in the Smithfield Local Plan area); and(b)whether there is a need to approve the shopping centre and healthcare services elements of the development application if a full line supermarket is developed in sub-precinct 3b by 2022.

202. In relation to the assessment benchmarks, issue 3 identified whether the proposed development would result in unacceptable impacts on the role, function and economic viability of sub-precinct 3b in the Smithfield Local Plan.

Conclusion

220. I would order that leave should be granted for each of the appeals. This is appropriate on the basis that the primary judge erred in law as identified above in failing to consider the question of non-compliance with the requirements of a “local community” in the LMDR Zone which may have caused his Honour’s discretion to miscarry,¹⁵⁶ and the questions of law raised are of general importance.

221. I would further order that the decision be set aside and that the matter be remitted to the Planning and Environment Court to be determined according to law. The matter should be remitted to the primary judge given his Honour’s understanding of the evidence in the case. I find no good reason for a different judge to rehear the case or any good reason to make an order remitting it to a different judge as was sought by the appellants. While his Honour did make comments about TPI’s application given the context in which they arose they do not indicate that his Honour cannot hear the matter impartially.

222. No submissions were made by the parties in relation to costs. Both Dexus and TPI have been successful in relation to the ground which I have determined was made out. Costs should therefore follow the event and the respondents should pay the appellants’ costs of the application and appeal.

Proposed orders

223. The orders that should be made are that:

Application for leave to appeal granted.

Appeal allowed.

Set aside the orders made by the Planning and Environment Court on 30 April 2020 and 13 July 2020.

Remit the appeal to the Planning and Environment Court for determination by the primary judge.

The first and second respondents must pay the costs of Trinity Park Investments Pty Ltd and L’Armonia Pty Ltd and Dexus Funds Management Limited of the application and the appeal to this court.

Footnotes

1. At [6] of the Reasons. ↩

2. At [6] of the Reasons. ↩

3. Planning and Environment Court Act 2016 (Qld), s 43. ↩

4. (2018) 230 LGERA 374 at 391. ↩

5. [2009] QPELR 793. ↩

6. Particularly his Honour’s judgment at 806 – 807. ↩

7. (2020) 3 QR 494; [2020] QCA 41. ↩

8. [2020] QPELR 631; [2019] QCA 132. ↩

9. [2019] QPELR 793 at 806-807. ↩

10. [2019] QPEC 46 at [22]. ↩

11. At [33] of the Reasons. ↩

12. Issues identified at [27] of the Reasons. ↩

13. Summarised at [29] of the Reasons. ↩

14. [1981] QPLR 33 at 35. ↩