Wilhelm v Logan City Council & Ors [2020] QCA 273

SUPREME COURT OF QUEENSLAND

CITATION: Wilhelm v Logan City Council & Ors [2020] QCA 273

PARTIES: OTTO WILHELM / (applicant) / v / LOGAN CITY COUNCIL / (first respondent) / CITIMARK PROPERTIES PTY LTD / ACN 066 613 349 / (second respondent) / CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING / (third respondent)

FILE NO/S: Appeal No 1555 of 2020 / P & E No 3364 of 2018

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Planning and Environment Court Act

ORIGINATING COURT: Planning and Environment Court at Brisbane – [2019] QPEC 67 (Williamson QC DCJ)

DELIVERED ON: 4 December 2020

DELIVERED AT: Brisbane

HEARING DATE: 5 June 2020

JUDGES: Morrison, Philippides and Mullins JJA

ORDERS: Application for leave to appeal refused.The applicant must pay the first and second respondents’ costs of the application.

CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the planning scheme set out a number of “centre activities” – where the planning scheme also established a hierarchy of centres – where “centre” is not defined – where the proposed development consisted of three uses that fell within “centre activities” – where the primary judge found that the planning scheme contemplated centre activities could be undertaken in a centre and outside of a centre – where the proposed development was of a small scale – whether the proposed development was for a new centre under the planning scheme / ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the proposed site was of an urban character – where the anticipated noise, light and activity of the use of the development was inconsistent with the character of the Rural residential zone, but not with the urban character of the site – where the proposed development did not seek approval for any of the uses anticipated in the Overall Outcomes for the precinct in the Rural residential zone in which the site is situated – whether, as a matter of interpretation of the planning scheme, the uses that were not mentioned in the Overall Outcomes for the Rural residential zone were expressly discouraged in that zone / ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENTAL JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – OTHER MATTERS – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the primary judge was satisfied that there was a community and economic need for the Service station and a planning need for the Service station – where the primary judge was satisfied that the development would not adversely affect existing or planned centres – where impact assessment under s 45(5) Planning Act 2016 (Qld) is one assessment that is carried out against the mandatory benchmarks under paragraph (a) and may be carried out having regard to any other relevant matter that is permitted for the purpose of the assessment under paragraph (b) – whether the primary judge erred in exercising the planning discretion under s 60(3) Planning Act 2016 (Qld) / Acts Interpretation Act 1954 (Qld), s 35C / Planning Act 2016 (Qld), s 45, s 59, s 60 / Planning and Environment Court Act 2016 (Qld), s 45, s 63 / Abeleda v Brisbane City Council [2020] QCA 257, cited / Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793; [2019] QPEC 16, cited / Gold Coast City Council v K & K (GC) Pty Ltd (2019) 239LGERA 409; [2019] QCA 132, cited / Peet Flagstone City Pty Ltd v Logan City Council [2016] QPELR 538; [2016] QPEC 24, considered / Woolworths Limited v The Warehouse Group (Australia) Pty Ltd (2003) 123 LGERA 341; [2003] NSWLEC 31, cited / Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; [2014] QCA 147, cited

COUNSEL: D R Gore QC, with D D Purcell, for the applicant / B D Job QC for the first respondent / C L Hughes QC, with M J Batty, for the second respondent

SOLICITORS: Connor O'Meara Solicitors for the applicant / Minter Ellison Gold Coast for the first respondent / Sparke Helmore for the second respondent

1. MORRISON JA: I have read the reasons of Mullins JA and agree with those reasons and the orders her Honour proposes.

2. PHILIPPIDES JA: I agree with the orders proposed by Mullins JA for the reasons given by her Honour.

3. MULLINS JA: The applicant Mr Wilhelm applies pursuant to s 63 of the Planning and Environment Court Act 2016 (Qld) (PECA) for leave to appeal against the orders of the learned primary judge in the Planning and Environment Court who dismissed the applicant’s submitter appeal against the Logan City Council’s approval of the development application by the second respondent Citimark Properties Pty Ltd (Citimark) for a Service station, a Shop and a Food and drink outlet on the site at the corner of Beenleigh Redland Bay Road and California Creek Road, Cornubia to operate seven days per week and 24 hours per day. The proposed operator of the Service station is 7-Eleven. Another submitter appeal against the Council’s approval brought by Navara Back Right Wheel Pty Ltd (Navara) was heard together with Mr Wilhelm’s appeal in the P & E Court. The primary judge’s reasons are set out in Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2019] QPEC 67 (the reasons). The third respondent had no interest in the issues raised by the application and did not participate in the hearing. Any appeal to this court pursuant to s 63 of PECA is limited to errors of law or jurisdictional error.

Background

4. The following background information is summarised from [1]-[16] of the reasons.

5. The subject site is in the Park living precinct of the Rural residential zone (RRZ) of the Logan Planning Scheme 2015 (version 4.0) (the Scheme). In May 2017, Citimark made an impact assessable application to the Council for an approval to authorise the redevelopment. The application was approved, subject to conditions. The approval is set out in a negotiated decision notice dated 12 July 2018.

6. The subject site is rectangular in shape and has an area of 4,063 square metres. Beenleigh Redland Bay Road is a State controlled four lane arterial road that carries 22,000 vehicles per day past the land. California Creek Road is a two lane Council urban collector road carrying appropriately 14,000 vehicles per day past the land. The land is adjoined by two properties, one to the north and one to the east. The land to the north fronts California Creek Road and is a large rural residential sized lot that is improved with a dwelling and a swim school. The adjoining land to the east is owned by Navara. It fronts Bromley Street to the north and Beenleigh Redland Bay Road to the south. The Navara land is improved with a detached house, shed, a substantial driveway and pool.

7. Mr Wilhelm has a commercial interest in a BP service station located some 200 metres south-west of the land. It fronts the southern side of Beenleigh Redland Bay Road.

8. In broad terms, Mr Wilhelm contended before the primary judge that the development did not comply with the Scheme and should be refused. It was argued that the application was seeking approval to locate “Centre activities” on land included in the RRZ, where those activities were not anticipated, or encouraged, in the RRZ and would, if approved, be located contrary to an express planning strategy which was that Centre activities are located in designated centres. In addition, Mr Wilhelm contended that the proposed development would have unacceptable impacts on the character and amenity of the surrounding rural residential area and unacceptable traffic impacts. Before the primary judge, Citimark contended the proposed development complied with the Scheme and, consistent with its decision, the Council contended the application should be approved. Pursuant to s 45(2) of PECA, Citimark had the onus before the primary judge of establishing that Mr Wilhelm’s appeal against the Council’s approval should be dismissed.

9. Section 1.5 of the Scheme sets out the hierarchy of assessment criteria where there is inconsistency between provisions within the Scheme. As recorded in [42] of the reasons, the subject land is identified in the strategic framework as within the Urban footprint and adjacent to an existing strategic arterial road and is not included in a local plan area. Relevantly under s 1.5(1), the strategic framework prevails over all other components of the Scheme to the extent of the inconsistency; and zone codes prevail over use codes and other development codes to the extent of the inconsistency.

“Logan has a hierarchy and network of interrelated centres comprising principal centres, major centres, district centres, neighbourhood centres, and specialised centres. Centres are vibrant, accessible and integrated places.”

12. The strategic outcomes for the theme of settlement pattern are set out in s 3.3.1 of the Scheme. One of the elements of settlement pattern is the Urban footprint. Section 3.3.2.1(1) states that urban development is located in the Urban footprint identified on SFM–01.00–Strategic framework map. Under s 3.3.1, the Urban footprint provides high quality places for people to live, work, learn and play, accommodates predominately urban development, but also includes land that may not be suitable for urban development.

13. In the strategic outcomes for the residential theme set out at s 3.4.1 of the Scheme, reference is made again to rural residential development providing a lifestyle housing choice in Logan.

The reasons

14. It was noted (at [39] of the reasons) that there was no issue as to the statutory assessment and decision making framework applicable to the appeals before the primary judge that are prescribed by the Planning Act 2016 (Qld) (the Act). As the primary judge observed (at [40] of the reasons), the exercise of the discretion under s 60(3) of the Act must be based on the assessment under s 45(5) of the Act carried out against the assessment benchmarks and the principal assessment benchmark is the Scheme.

15. The primary judge recorded (at [44] of the reasons) the submission made on behalf of Mr Wilhelm that the proposed development materially offends the centre provisions of the Scheme which embody an important forward planning strategy that is to be treated as an expression of the public interest, in a planning sense, and ought not be readily departed from. The primary judge accepted (at [44] of the reasons) the submission that was made that “it is not a matter for the Court to gainsay an expression of public interest embodied in the adopted planning controls”: Bell v Brisbane City Council (2018) 230 LGERA 374 at [67].

16. The primary judge also noted (at [45] of the reasons) that the authorities including, and discussed in, Australian Capital Holdings Pty Ltd v Mackay Regional Council [2008] QCA 157 recognised centre hierarchy planning as an important forward planning tool in a planning scheme which is not readily departed from and is an important part of any planning strategy.

17. Because of the reliance placed by Mr Wilhelm on the centres planning strategy, the primary judge examined the Scheme to determine the extent to which that strategy would be offended by the proposed development, if it were approved.

18. The primary judge set out (at [52] of the reasons) s 3.5.1(1) of the Scheme, noting that it provides for a hierarchy and network of interrelated centres and states:

“Logan has a hierarchy and network of interrelated centres comprising:

(a)principal centres, being Beenleigh and Springwood that are the dominant centres in Logan;

(b)major centres, being Browns Plains, Jimboomba, Logan Central, and Shailer Park that complement and are subordinate to the principal centres;

(c)district centres, being Marsden, Meadowbrook, Park Ridge, and Underwood that complement and are subordinate to the principal centres and major centres;

(d)local centres that complement and are subordinate to the principal centres, major centres and district centres;

(e)neighbourhood centres that complement and are subordinate to the principal centres, major centres, district centres and local centres;

(f)specialised centres that complement principal centres, major centres and district centres.”

19. The primary judge then summarised (at [54] of the reasons) s 3.5.1(2) of the Scheme that provides:

“Centres are vibrant, accessible and integrated places that:

(a)are characterised by a high quality, well designed built environment;

(b)have a built form consistent with the intended character of the centre;

(c)utilise land efficiently;

(d)are well serviced by public transport;

(e)have a safe, convenient and comfortable pedestrian network;

(f)support walking and cycling;

(g)include a mix of uses;

(h)support the growth of tourism experiences.”

20. The primary judge concluded (at [55] of the reasons) from the description of each centre type as an element and the specific outcomes set out respectively for each centre type in s 3.5.2 to s 3.5.7 that each of the centre types in the hierarchy has “an intended role, function and scale”.

21. As Mr Wilhelm asserted that the proposed development had to comply with s 3.5.8.1 of the Scheme, the primary judge then referred (at [58] of the reasons) to the cumulative requirements set out in s 3.5.8.1(1)(a), the first of which required Centre activities to be located in a “centre”. After referring (at [60] of the reasons) to the fact that “Centre activities” is a defined activity group for the purposes of the Scheme, the primary judge noted (at [61] of the reasons) that Centre activities are defined by reference to five further defined activity groups, namely District centre activities, Local centre activities, Major centre activities, Neighbourhood centre activities, and Principal centre activities, which align with the centres specified in s 3.5.1(1). The primary judge also noted (at [61] of the reasons) that each of five defined activity groups are, in turn, defined by reference to a cluster of defined uses that are “significant and wide ranging”. The primary judge then analysed (at [62] of the reasons) the defined activity groups that are centre related into which each of the uses for which approval is sought by Citimark may fall.

22. The Scheme does not define the term “centre”. The primary judge therefore agreed (at [66] of the reasons) with the submission of Mr Wilhelm that the word “centre” should be given its ordinary meaning, consistent with the context in which it appears. The primary judge observed (at [67] of the reasons) that s 3.5.8.1(1)(a) (ii) and (iii) seek to protect the identified role and function of each of the centres and the context of s 3.5 is reinforced in the Centre Zone Code, particularly s 6.2.1.2(3), which contains the Overall Outcomes for the zone. The primary judge’s conclusion on the construction of the word “centre” is then set out at [69] of the reasons:

“Given the above context, in my view, the word ‘centre’ in the planning scheme ought be understood to mean a centre identified in s.3.5.1(1), and described in ss.3.5.2 to 3.5.7. It should also include a new centre, which is approved in a manner anticipated by s.3.5.8.1(1)(b). A centre of this type, which will likely exclude a principal and major centre by operation of s.3.5.8.1(2), will be described by reference to ss.3.5.4 to 3.5.7. I was not referred to any specific part of the planning scheme that suggests a different meaning should be adopted for the word ‘centre’ in the circumstances.”

23. The primary judge therefore rejected (at [70] of the reasons) the submission of Mr Wilhelm that the word “centre” should be construed broadly as “a place where a number of activities are conducted”. To illustrate the difficulty that would follow from that broad construction of “centre”, the primary judge noted (at [71] of the reasons) that if it were assumed a proposed development included a Centre activity (which should be located in a centre), the assessment against s 3.5.8.1(1)(a) would make little sense, if compliance with the Scheme could be demonstrated by locating the use other than in a centre described in s 3.5.2 to s 3.5.7 or a new centre approved pursuant to s 3.5.8.1(1)(b).

24. The primary judge considered (at [72] of the reasons) Mr Wilhelm’s argument that s 3.5.8.1(1)(b) was an exception to the rule established by what he contended was meant by s 3.5.8.1(1)(a). The primary judge then referred (at [73] of the reasons) to the submission made by Mr Wilhelm that, if the proposed development did not fall within s 3.5.8.1(1)(a) of the Scheme, it had to comply with the exception in s 3.5.8.1(1)(b). As a matter of construction of the Scheme, the primary judge considered (at [74] of the reasons) that the Scheme permitted uses which are Centre activities to be located in out-of-centre locations without having to comply with s 3.5.8.1(1). The primary judge proceeded to demonstrate by reference to the variety of defined activity groups under the Scheme into which each of the defined uses of the proposed development were included that those uses may occur in a number of different land use contexts. One example given at [81] of the reasons was that the three uses for the proposed development were encouraged in the Mixed use zone and there was no provision in the Mixed use zone code that requires compliance to be demonstrated with s 3.5.8.1 of the Scheme which was described as “a clear example where defined uses can appropriately exist within, and outside of, the identified centres hierarchy”.

25. The primary judge observed (at [84] of the reasons) that the fact that pursuant to s 6.2.13.2(2)(a) Dwelling houses are to predominate in the RRZ does not exclude the prospect of non-residential uses in the RRZ which is confirmed by Overall Outcome (3)(e)(i) and PO1. The primary judge further observed (at [84] of the reasons) that no part of the RRZ Code requires the three land uses that are Centre activities in the Park living precinct (Emergency services, Home based business and Sales office) to satisfy s 3.5.8.1 of the Scheme which is a recognition that Centre activities can exist in the RRZ outside of the centre hierarchy. The primary judge observed (at [85] of the reasons) that the uses of Shop and Food and drink outlet are anticipated in 10 of 15 zones and Service station is anticipated in three zones, namely the Centre zone, Specialised centre zone and the Mixed use zone.

26. The primary judge noted (at [87] of the reasons) that this analysis of the Scheme indicated that uses anticipated in a centre can also be located in a zone and exist outside the centre hierarchy and posed (at [88] of the reasons) the question as to when is s 3.5.8.1 of the Scheme applicable. At [90] of the reasons, the primary judge construed s 3.5.8.1 by reference to its heading “Element – New and expanded centres” (as permitted by s 35C(1) of the 1954 (Qld)) and the terms of the provision itself. The primary judge considered (at [91]-[92] of the reasons) that s 3.5.8.1 therefore applies to new, and/or expanded centres as confirmed by the provision itself and its structure.

“(a)Centre activities proposed in an existing centre identified in s.3.5.1(1), and do not comply with either, or both of, ss.3.5.8.1(1)(a) (ii) and (iii);

(b)Centre activities proposed in an existing centre approved under s.3.5.8.1(1)(b), and do not comply with either, or both of, ss.3.5.8.1(1)(a) (ii) and (iii);

(c)Centre activities proposed in an out-of-centre location, and if approved, would have the effect of expanding an existing centre identified in s.3.5.1(1);

(d)Centre activities proposed in an out-of-centre location, and if approved, would have the effect of expanding an existing centre approved under s.3.5.8.1(1)(b); and

(e)Centre activities that, if approved, would create a new centre in addition to those identified in s.3.5.1(1), or approved under s.3.5.8.1(1)(b).”

28. The primary judge then stated (at [95] of the reasons):

“Central to each of the five categories above is the proposition that the proposed development involves Centre activities that create a new centre, or expand an existing centre, be it one identified in s.3.5.1(1), or approved under s.3.5.8.1(1)(b). When considered in this light, it is necessary to determine, as a threshold issue, whether development proposed, which involves uses that fall within a number of defined activity groups, including Centre activities, creates a new centre or, expands an existing centre.”

29. The primary judge observed (at [96] of the reasons) that if the threshold question were answered in the negative, s 3.5.8.1 of the Scheme had little work to do and the Centres planning strategy would not be engaged, but that was supported by the balance of the Scheme and principally the Centre Zone Code which anticipates only a limited range of non-residential uses in the zone and does not expressly anticipate a Service station, Shop and Food and drink outlet. The primary judge therefore concluded (at [97] of the reasons) that limiting s 3.5.8.1 in its operation to centres, “permits the zone codes to work harmoniously with it”.

30. The primary judge dealt (at [102]-[133] of the reasons) with the question whether the proposed development would constitute a new centre under s 3.5.8.1 of the Scheme (as contended for by Mr Wilhelm). The primary judge addressed this question after having construed s 3.5.8.1 of the Scheme as applying to a new centre.

31. The primary judge’s conclusion on the application of his construction of the Scheme to the proposition advanced by Mr Wilhelm that the proposed development would be a new centre is set out at [116] of the reasons that it would not be a centre of the kind anticipated by s 3.5.1 to s 3.5.7 of the Scheme and it would not be a new centre for the purposes of s 3.5.8.1 of the Scheme. The primary judge then considered (at [119]-[122] of the reasons) the evidence of the town planners Mr Perkins and Mr Ovenden on whether the proposed development would constitute a new centre. The primary judge agreed (at [130] of the reasons) with the opinion of Mr Perkins and Mr Ovenden that the scale of the proposed development is smaller than that anticipated as a centre in the identified hierarchy of centres. The primary judge considered other aspects of the Scheme (at [123]-[129] of the reasons) before concluding (at [132] of the reasons) that the proposed development was not a centre for the purposes of s 3.5.8.1 of the Scheme, but “is a development that comprises three activities which are anticipated in, and out of, centre”.

32. If the primary judge were wrong in his conclusion that s 3.5.8.1 of the Scheme did not apply to the proposed development, he dealt with the issue of compliance with s 3.5.8.1(1)(b) at [134]-[163] of the reasons and was satisfied that Citimark had established the proposed development substantially complies with that provision. The primary judge set out (at [136] of the reasons) that he was satisfied there is a community and economic need for the proposed Service station, but the evidence did not demonstrate there is an economic need for the Shop and Food and drink outlet and also falls short in demonstrating an economic need for the development to operate 24 hours a day. The primary judge noted (at [137] of the reasons) that s 3.5.8.1(1)(b)(ii) had not been put in issue by Mr Wilhelm.

33. For the purpose of considering s 3.5.8.1(1)(b) (iii), the primary judge noted (at [139] of the reasons) that the trade area includes the land in the Centre zone to the south-east of the subject land which is located at the corner of Beenleigh Redland Bay Road and Logandale Boulevard and described as the Cornubia local centre, but the primary judge was satisfied (at [157] of the reasons) that the proposed development could not be located there. The primary judge also considered whether the proposed development would have an adverse impact on the Loganholme local centre that was near the trade area (as accepted by the primary judge). In dealing with s 3.5.8.1(1)(b)(iii), the primary judge was satisfied (at [154] of the reasons) that the proposed development would not adversely affect any existing or planned centre either in the identified trade area, or in the broader locality and the impact of the proposed development on an existing centre (Loganholme local centre) would be, at its highest, theoretical which should not be characterised as unacceptable.

“(e)in the Park living precinct:

(i)land use comprise Caretaker’s accommodation, Dual occupancy (auxiliary unit), Dwelling house, Emergency services, Home based business or Sales office.”

37. The primary judge then referred to that part of PO1 and the corresponding AO1 of the RRZ Code which relate specifically to Overall Outcome (3)(e)(i) and both provide that “A use in the Rural residential zone is for uses identified in … section 6.2.13.2(3)(e)(i) overall outcomes for the Park living precinct;”.

38. The primary judge expressed his views on the proper construction of the Scheme in determining the consequence where a proposed use falls outside the list of uses anticipated by this Overall Outcome at [167] and [169] of the reasons:

“[167]The planning scheme does not, like other contemporary planning schemes, prescribe a planning consequence where a use falls outside the range of uses anticipated in a particular zone. For example, the planning scheme does not, like other contemporary planning schemes, deem such a use ‘ inconsistent development’ in the zone, or as being ‘ inconsistent’ with the zone code. This, in my view, suggests one ought not be too ready to conclude a non-compliance with the zone code is established because, as here, the proposed uses are not expressly anticipated in the Overall outcomes of the zone code.

(footnote omitted)

…

[169]Overall outcome (3)(e)(i) and Performance outcome PO1 are expressed in positive terms. They encourage particular uses in the zone. The provisions do not, in terms, expressly discourage uses. A non-compliance, in such circumstances, would, in my view, only arise where it can, as a matter of implication or inference, be said to follow having regard to relevant context in the planning scheme.”

39. The primary judge observed (at [170] of the reasons) that he was not persuaded that “discouragement” for the proposed development should be assumed as a matter of implication, or by inference, from the absence of encouragement in Overall Outcome (3)(e)(i) and PO1 of the RRZ Code, unless it was assumed that the Overall Outcomes covered the field of uses anticipated in the RRZ. The primary judge considered (at [170] of the reasons) that the inference that the RRZ Code discouraged the proposed development should not be readily drawn when non-residential uses, including Centre activities, are expressly anticipated in the RRZ, and PO7 of the RRZ Code anticipates a range of uses in the RRZ, mainly a Child care centre and specific Accommodation activities (Multiple dwelling, Relocatable home park and Retirement facility), in circumstances where they are not anticipated in the Overall Outcomes for the RRZ Code. The primary judge accepted (at [172] of the reasons) that where a use is not provided for in the RRZ Code, it is necessary to look beyond Overall Outcome (3)(e)(i) and PO1 of the RRZ Code and this requires an assessment of the extent to which the RRZ Code anticipates non-residential uses in the RRZ and an assessment of the development against specific controls in the RRZ Code, particularly those in relation to amenity and character, to ensure the controls are respected.

40. The primary judge noted (at [173] of the reasons) that the RRZ Code “admits of the prospect that non-residential uses may occur in the Park living precinct” of the RRZ, as three non-residential uses are identified in Overall Outcome (3)(e)(i) and PO1, namely Emergency services, Home based business and Sales office which are uses anticipated in mixed use developments under the Scheme and are Centre activities, and PO7 expressly anticipates Child care centres in the RRZ. The consequence of that was recorded (at [174] of the reasons) as creating “a reasonable expectation that uses in the zone may include non-residential uses that have non-residential impacts”. The primary judge then proceeded to assess the proposed development against the provisions of the RRZ Code intended to protect the amenity and character of the zone.

41. The primary judge noted (at [176]-[177] of the reasons) that Mr Wilhelm did not suggest there was non-compliance with Overall Outcome (3)(a) or PO3, PO4, PO5, PO22 and PO23. The primary judge recorded (at [179] of the reasons) that Mr Wilhelm relied on s 6.2.13.2(1), s 6.2.13.2(2)(b) and (c), and s 6.2.13.2(3)(b) to claim the proposed development would have an unacceptable impact on amenity and character.

42. The primary judge noted (at [181] of the reasons) that “the proposed development has been well designed, and can be conditioned, to ensure the amenity and character of this particular locality is appropriately protected” and concluded that the proposed development would not cut across the intent of the RRZ Code to protect the character and amenity of the RRZ. Even though it was noted that the proposed development would generate noise, light and activity that is not of a character, nature or extent anticipated in the RRZ or Park precinct, the primary judge relied (at [182] of the reasons) on the evidence that also demonstrated that the anticipated noise, light and activity of the use would be within acceptable limits in the circumstances where the character of the land and surrounding area is not strictly rural residential, but is more urban in character, the proposed development will be well removed from the dwelling on the Navara land and significant attention had been given to the design to provide appropriate interfaces to adjoining development and adjoining major roads.

“Against the background of the above considerations, it is my view the public interest, in a planning sense, is not better served by refusing the development application. To refuse it would represent a triumph of form over substance. The form constitutes textual non-compliance with s.3.5.8.1 of the planning scheme. The substance involves ameritorious proposal.”

50. The primary judge had undertaken the exercise required under s 60(3) of the Act by weighing up the outcome of the assessment carried out pursuant to s 45(5) of the Act by assuming that the proposed development had to comply with s 3.5.8.1(1)(b) of the Scheme, despite the primary judge’s conclusion that that provision had no application to the proposed development. The primary judge therefore took into account in favour of the approval of the development the degree to which there was compliance with s 3.5.8.1(1)(b) and weighed against that as a factor in favour of refusal those respects in which the proposed development did not comply with s 3.5.8.1(1)(b), finding that the non-compliance with s 3.5.8.1(1)(b) should not be decisive of the outcome for the reasons identified. It is apparent from this analysis that the primary judge undertook on the basis of the assumption that, if the assumption were removed and both factors based on s 3.5.8.1(1)(b) taken out of the process of weighing up the factors, the primary judge had, in effect, concluded that the application should be approved, subject to conditions. This is also borne out by [369] of the reasons and, the fact that after removing from the matters of refusal the aspects of non-compliance with s 3.5.8.1(1)(b) of the Scheme, there were no matters that warranted refusal of the application.

Proposed grounds of appeal

51. There are six respects in which Mr Wilhelm asserts the primary judge erred in law (using the shorthand description applied by Mr Wilhelm to each of the asserted errors):(a)the first centre point – in determining that the word “centre” in the Scheme meant a centre identified in the hierarchy and network of centres identified in s 3.5.1(1) of the Scheme, including a new centre, which was approved in a manner anticipated by s 3.5.8.1(1)(b);(b)the second centre point – in determining that the proposed development would not constitute a “centre” for the purposes of s 3.5.8.1 of the Scheme;(c)the third centre point – in relying upon expert evidence to determine whether the proposed development would constitute a centre for the purposes of s 3.5.8.1 of the Scheme;(d)the RRZ Code point – in concluding that the RRZ Code did not discourage the proposed development, and the proposed development was consistent with the Overall Outcomes and the Performance Outcomes of the RRZ Code;(e)the first public interest point – in failing to carry out the assessment required by s 45(5) of the Act on the assumption that an approval of the proposed development was not in the public interest; and(f)the second public interest point – in failing to apply the planning strategies set out in the Scheme.

The first and second centre points

52. It is convenient to deal with the first and second centre points together, as the first centre point concerns the interpretation of the Scheme and the outcome in respect of the first centre point affects the outcome in respect of the second centre point.

53. Section 3.5.8.1 of the Scheme provides:

“(1)Centre activities, other than an Accommodation activity:

(a)must be:

(i)located in a centre;

(ii)consistent with the intent of the centre;

(iii)at a scale compatible with the role and function of the centre in the centre hierarchy being:

(a)a principal centre, which is a dominant centre in Logan and services a main trade area over 100,000 people;

(b)a major centre, which is subordinate to a principal centre and services a main trade area of approximately 40,000 to 50,000 people;

(c)a district centre, which is subordinate to a principal centre and major centre and services a main trade area of approximately 15,000 to 20,000 people;

(d)a local centre, which is subordinate to a principal centre, major centre and district centre and services a main trade area of approximately 8,000 to 10,000 people;

(e)a neighbourhood centre, which is subordinate to a principal centre, major centre, district centre and local centre and services a main trade area of approximately 3,000 to 4,000 people;

(b)unless:

(i)there is community need and economic need for the use;

(ii)the use is of a scale compatible with its role and function in the centre hierarchy;

(iii)the use does not have unacceptable adverse effects on any existing or planned centre;

(iv)the use:

(a)cannot be located in a principal centre, major centre, district centre, local centre, or neighbourhood centre;

(b)is located in the specialised centre zone, or in an employment area where it cannot be located in a specialised centre; or

(c)has a specific locational need requiring its location outside a centre and the use is located in accordance with the specific locational need.

(2)No new principal centre or major centre other than shown on SFM– 01.00– Strategic framework map are created.”

54. There is arguably ambiguity in s 3.5.8.1(1)(a)(i), as the literal meaning of that provision suggests that Centre activities must be located in a centre (unless the exception in s 3.5.8.1(1)(b) applies), but that does not appear to be consistent with the general nature of centres under the Scheme and the well-defined distinctions in the six centres identified in s 3.5.2 to s 3.5.7 of the strategic framework. The interpretation of the word “centre” must, however, be construed in the context of all the provisions of the Scheme: Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82 at [52]-[58].

55. Even though the word “centre” is not defined for the purpose of the Scheme, it is apparent from the focus given to centres in the Scheme as one of the themes of the strategic framework, the importance of the centre hierarchy in the Scheme, the detail of the hierarchy of the centres set out in s 3.5.1(1), the general nature of centres set out in s 3.5.1(2), the Centre Zone Code and the Specialised Centre Zone Code that there is consistency in the use of the concept of centre in the Scheme as one of the centres in the centre hierarchy. It is also relevant in interpreting the reference to “centre”, as the primary judge showed (at [74]-[87] of the reasons), that uses which are Centre activities can be undertaken outside of a centre that is in the centre hierarchy in accordance with the relevant zone code.

56. On the hearing of this application, Mr Wilhelm seeks to diminish the analysis summarised by the primary judge (at [85] of the reasons) by pointing out that in respect of the nine zones (apart from the Centre Zone) in which the uses of a Shop and Food and drink outlet are anticipated, there are specific quantitative or qualitative limitations on the scale or function of facility anticipated, such as that the facility is small scale or directly serves another use anticipated in the particular zone, which Mr Wilhelm argues is consistent with the strategy of those uses intended primarily to be located in a centre. This argument is effectively countered by the Council’s pointing out that there are many other uses that fall within the definition of Centre activities permitted in zones (and not subject to a requirement of being located in a centre) that also are subject to specific quantitative or qualitative limitations, so that nothing should be inferred about the Council’s centre strategy from the restrictions placed on the uses of Shop and Food and drink outlet under various zone codes.

57. The literal meaning of s 3.5.8.1(1)(a)(i) that Centre activities must be located in a centre is displaced by taking into account the heading of s 3.5.8 (which is treated as part of s 3.5.8.1 pursuant to s 35C of the Acts Interpretation Act 1954), the entirety of s 3.5.8.1.(1)(a), and considering the whole of s 3.5.8.1 in the context of the Scheme. As the heading indicates, the provision deals with new and expanded centres. Section 3.5.8.1(1)(b) deals with a new centre. Section 3.5.8.1(1)(a) deals with the expansion of a centre by locating Centre activities in an existing centre that must also comply with the requirements of s 3.5.8.1(1)(a)(ii) and (iii). Those requirements facilitate consistency with the intent of the centre and at a scale compatible with the role and function of that centre, when an existing centre is expanded by the inclusion of additional Centre activities. It would be inconsistent with the intention of the strategic framework for ad hoc centres to be constituted merely by a cluster of defined uses that fall within the definitions of activities that are under the umbrella of Centre activities without preserving the centre hierarchy that is emphasised in the Scheme.

The third centre point

59. The need to construe the word “centre” in the Scheme arose out of Citimark’s position that the proposed development would not constitute a new centre for the purpose of the Scheme and Mr Wilhelm’s contrary assertion that the proposed development constituted a new centre, because the development comprises three Centre activities. The threshold issue on this alleged ground is whether, in fact, Mr Wilhelm is correct in asserting the primary judge relied on the evidence of two town planners, Mr Perkins (who was engaged by Citimark) and Mr Ovenden (who was engaged by the Council), to construe the Scheme for the purpose of deciding whether the proposed development would constitute a new “centre”.

60. The evidence of Mr Perkins and Mr Ovenden summarised by the primary judge (at [120]-[122] of the reasons) was in relation to the scale of the proposed development in comparison to the respective descriptions of the centres in the centre hierarchy. That evidence had been included in the town planning joint report for the purpose of assessing whether the proposed development would constitute a new centre by reference to the respective characteristics under the Scheme of centres in the centre hierarchy. In order to illustrate the scale of the proposed development, the primary judge quoted (at [120] of the reasons) from Mr Perkins’ evidence that the gross floor area of the Service station, Shop and Food and drink outlet was 331m² plus 20m² for the outdoor dining area. The conclusion these town planners reached that the proposed development sat outside the centre hierarchy, because it was small in scale, was evidence used by the primary judge in answering the question posed at [100] of the reasons of whether the proposed development constituted a new centre for the purposes of the Scheme by applying the construction of s 3.5.8.1 of the Scheme the primary judge had otherwise reached that was set out at [91] of the reasons.

61. The assumption made on behalf of Mr Wilhelm that the primary judge relied on the evidence of the two town planners to construe the Scheme is not made out on an analysis of the reasons. There is no basis for this proposed ground of appeal.

The RRZ Code point

62. There are two limbs to this proposed ground: the first error that is alleged by MrWilhelm is the primary judge’s conclusion that the RRZ Code did not discourage the proposed development and the second asserted error is the primary judge’s conclusion that the proposed development was consistent with the Overall Outcomes and the Performance Outcomes of the RRZ Code. It was the first error that was the focus of the written and oral submissions in respect of this proposed ground. MrWilhelm’s written submissions described the second error as arising from the primary judge’s carrying through the alleged first error to the conclusion (at [368] (a) of the reasons) that the proposed development could be conditioned in a way that complies with the RRZ Code. It is therefore only necessary to deal with the alleged first error.

63. None of the three uses that are the subject of the proposed development is identified in the uses specified for the Park living precinct of the RRZ Code.

64. Mr Wilhelm submits the reasoning in Peet Flagstone City Pty Ltd v Logan City Council [2016] QPELR 538 at 545 should be adopted as it applied to the same provisions in the Scheme of s 6.2.13.2(3)(e), PO1 and AO1. In Peet Flagstone, the Council had approved a development application for a new service station and caretaker’s residence at Jimboomba that was made under the 2007 Beaudesert Shire planning scheme, but also had to give such weight as it considered appropriate to the new laws and policies in the Scheme. It was argued that the application was for an inconsistent use with the 2007 planning scheme, but also with the Scheme where the site was included in the RRZ and the Park living precinct. The submission had been made in Peet Flagstone that the approach under the Scheme was “softened”, because there was no designation of “consistent” and “inconsistent” development and reliance was placed on s 6.2.13.2(2)(a) that the purpose of the RRZ Code is to “predominantly” provide for dwelling houses on larger lots, but admits the possibility of development for other purposes. Rackemann DCJ (at 545) did not accept the “softening” argument, because s 6.2.13.2(3)(e)(i) was reinforced by PO1 and AO1 and concluded that the “inconsistent use” point was also valid for the Scheme, as the plain meaning of the words used in s 6.2.13.2(3)(e)(i) (ie. what land use will “comprise”) suggests discouragement of other uses. Rackemann DCJ concluded his construction of this aspect of the Scheme (at 545) as follows:

“That the performance outcome is as restricted as the acceptable outcome in terms of the identified uses, suggests that the intention is to confine non-conflicting land use to the list in s 6.2.13.2(3)(e)(i). Iaccept that the ‘inconsistent use’ point is also valid for the 2015 scheme.”

65. The primary judge’s conclusion (at [169] of the reasons) that Overall Outcome (3)(e)(i) and PO1 do not expressly discourage uses was therefore contrary to the interpretation given to those provisions by Rackemann DCJ in Peet Flagstone. In failing to employ the same reasoning as in Peet Flagstone, Mr Wilhelm submits the primary judge erred in his interpretation of the RRZ Code which is an error of law.

66. The Council and Citimark support the interpretation given by the primary judge to the effect of a limited number of uses being specified for the Park living precinct of the RRZ in s 6.2.13.2(3)(e)(i) and the relevant parts of PO1 and AO1. Mr Job of Queen’s Counsel who appears for the Council endorses the approach to construction of the primary judge (at [167] of the reasons) in noting that the Scheme does not prescribe a planning consequence where a use falls outside the range of uses anticipated in a particular zone and (at [170] of the reasons) in observing that it was not appropriate to draw an inference that the uses that were expressly mentioned in the Overall Outcomes for the RRZ covered the field of uses anticipated in that zone. Mr Hughes of Queen’s Counsel who appears with Mr Batty of Counsel for Citimark submits that it would be unusual if it were the intent of the Scheme that uses in the RRZ were to be limited only to the stated uses, particularly when the provisions in question are expressed in positive or inclusive terms in that they encourage particular uses in the RRZ, where there is no provision that expressly discourages certain uses in the zone.

67. The RRZ Code has to be construed in the context of the Scheme. The application of the RRZ Code is dealt with expressly in s 6.2.13.1:

“(1)This code applies to:

(a)self-assessable and code assessable material change of use for which Rural residential zone code is identified in the assessment criteria column in Table 5.5.13.1–Rural residential zone in Part 5–Tables of assessment;

(b)material change of use made impact assessable in Table5.5.13.1–Rural residential zone in Part 5–Tables of assessment.

(2)When using this code, reference should be made to section5.3.2–Determining the level of assessment and, where applicable, section 5.3.3–Determining the assessment criteria located in Part 5–Tables of assessment.”

68. Under s 5.3.2 of the Scheme, a material change of use is impact assessable, if the use is not listed or defined in the table of assessment. Section 5.3.3 of the Scheme sets out the rules that apply in determining assessment criteria for each level of assessment. Under s 5.3.3(5), impact assessable development is to be assessed against all identified codes in the assessment criteria column (where relevant) and against the Scheme, to the extent relevant. Table 5.5.13.1 is the table of assessment for the RRZ and sets out the level of assessment and assessment criteria for each use in the RRZ. Apart from two uses which are exempt, namely Transport depot (with restrictions) and Park, the specific uses that are incorporated in the Overall Outcomes for the RRZ are the specific uses listed in the table of assessment and all other uses fall under the generic description at the end of the of the table of assessment of “[a]ny other use not listed in this table” and are, in effect, impact assessable and the assessment criteria are specified in the table as the Scheme. The table of assessment for the RRZ does not therefore exclude or prohibit uses that are not specifically listed.

69. Section 6.2.13.2 sets out the purpose of the RRZ Code. The general purpose of the RRZ Zone Code is set out in s 6.2.13.2(1) as “to provide for residential development on large lots where local government infrastructure and services may not be provided on the basis that the intensity of residential development is generally dispersed”. The local government purpose of the RRZ Code is then set out in s 6.2.13.2(2) as:

“(a)predominantly provide for Dwelling houses on larger lots;

(b)provide for development in a semi-rural, landscaped or bushland setting;

(c)protect rural residential amenity.”

70. Those purposes of the RRZ are consistent with the strategic intent of the residential theme in relation to rural residential development to continue to provide a lifestyle housing choice in Logan. The development in the RRZ is predominantly for Dwelling houses on larger lots, but with other development in a semi-rural, landscape or bushland setting that protects rural residential amenity.

71. The Overall Outcomes that apply to the RRZ on the basis that the purpose of the RRZ Code will be achieved through them are set out in detail in s 6.2.13.2(3). Overall Outcome (3)(a) deals with the design of the built form. Overall Outcome (3)(b) requires development to protect amenity “consistent with its location in the Rural residential zone or precinct and the surrounding area”. Overall Outcome (3)(c) concerns the Carbrook precinct. Overall Outcome (3)(d) concerns the Cottage rural precinct. I have referred earlier to Overall Outcome (3)(e) that concerns the Park living precinct. Overall Outcome (3)(f) relates to the Park residential precinct. PO1 and AO1 are in Table 6.2.13.3.1 which contains the criteria for self-assessable and assessable development that applies to the uses identified in the Overall Outcomes for each of the four identified precincts in the RRZ.

72. Some of the other Performance Outcomes relate to the other precincts in the RRZ. PO7 permits some uses that are not otherwise specified under PO1. PO22 and PO23 are relevant to design of developments in the Park living precinct and Park residential precinct, but do not assist in the interpretation of the RRZ in respect of uses that are not specified in the Overall Outcomes.

73. It is a compelling aspect of the primary judge’s reasoning that non-residential uses, including Centre activities, are expressly contemplated for the RRZ under the RRZ Code and that uses are anticipated (as in PO7) which are not otherwise specified in the Overall Outcomes for the RRZ. It is also consistent with the structure of the table of assessment for the RRZ that a use that is not listed in the table is impact assessable against the Scheme. The criteria in Table 6.2.13.3.1 for self-assessable and assessable development must also apply to impact assessable development for other uses not so identified in the Overall Outcomes, as the assessment criteria for the other uses is the Scheme, including the RRZ. The primary judge was therefore correct to conclude (at [170] of the reasons) that no inference should be drawn that a use that is not referred to in the Overall Outcomes for the RRZ should be treated as discouraged by the Scheme as a use in the RRZ.

74. Even though this interpretation of the effect of the specification of uses in Overall Outcome (3)(e)(i), PO1 and AO1 differs from that expressed by Rackemann DCJ in Peet Flagstone at 545, the interpretation undertaken in that case was of the Scheme for the purpose of discerning any difference to the 2007 planning scheme that did apply to the relevant development and there was no analysis of the Scheme as a whole undertaken in on this point to the extent that was done by the primary judge on Mr Wilhelm’s appeal. In any case, Rackemann DCJ disposed of the appeal before him on the basis of the 2007 planning scheme and not the Scheme.

The first and second public interest points

76. It is also convenient to deal with the first and second public interest points together.

77. Although all parties on this application relied on the approach in Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793 to the decision-making required under s 60(3) of the Act, there was a difference in emphasis between MrWilhelm and the other parties as to the weight to be given by the decision-maker to compliance with the Scheme. Since the hearing of this application, the Court has delivered judgment in Abeleda v Brisbane City Council [2020] QCA 257 which considered (at [38]-[51]) the regime for decision-making under s 60(3) of the Act in respect of a development application for which an impact assessment was required and the extent to which some statements made in recent cases on s 326(1)(b) of the Sustainable Planning Act 2009 (Qld) remain applicable. The change in the decision-making regime has not affected the fundamental nature of a planning scheme as the reflection of the public interest in the appropriate development of land. Mr Gore of Queen’s Counsel who appears with Mr Purcell of Counsel on behalf of MrWilhelm submits that one of those statements by Sofronoff P (with whom Fraser JA and FlanaganJ agreed) in Gold Coast City Council v K & K (GC) Pty Ltd (2019) 239LGERA 409 at [67] that “[i]t is, in general, against the public interest to approve a development that conflicts with the Planning Scheme” remains relevant under the Act. That statement cannot be applied to the new regime for decision-making on development applications under the Act without modifying it for the effect of the new regime.

78. Mr Wilhelm also relies on an observation made by Lloyd J in Woolworths Limited v The Warehouse Group (Australia) Pty Ltd (2003) 123 LGERA 341 at [20] to the effect that there is public interest “in securing obedience to the planning laws”. This statement was made in the course of a decision on an application by a retailer for adeclaration that the use of premises by a competitor was prohibited under the relevant environmental planning instrument. The observation is not relevant to an application for proposed development where the decision-maker under the Act can approve the development under s 60(3) in appropriate circumstances, even if there is some non-compliance with the relevant assessment benchmarks.

79. To the extent that the ground of appeal for the first public interest point is framed in terms that the assessment required by s 45(5) of the Act should have been carried out on the assumption that an approval of the proposed development would be against the public interest, this ground is inconsistent with the decision-making regime set up under s 45(5), s 59(2), s 59(3) and s 60(3) of the Act.

80. Mr Wilhelm submits that the assessment process under s 45(5) should proceed first against the mandatory assessment benchmarks under s 45(5)(a) and that, if there is non-compliance with any of the mandatory assessment benchmarks, the assessment manager would be entitled under s 45(5)(b) to consider another relevant matter that may diminish the significance of the non-compliance. It is not correct to describe an impact assessment under s 45(5) of the Act, as Mr Wilhelm did, as involving “two steps in the intellectual process that the section contemplates”. Section 45(5) refers to an assessment that is the one assessment that is carried out against the mandatory benchmarks under paragraph (a) and may be carried out having regard to any other relevant matter that is permitted for the purpose of the assessment under paragraph(b). As explained in at [43], the assessment manager’s decision under s 60(3) of the Act based on the assessment carried out under s 45(5) depends on the weight given by the assessment manager to each of the matters that can be taken into account for the purpose of exercising the discretion either to approve all or part of the application (with or without conditions) or to refuse the application.

Orders

87. Mr Wilhelm has not shown that any of the proposed grounds of appeal would succeed. The appropriate orders are therefore:

Application for leave to appeal refused.

The applicant must pay the first and second respondents’ costs of the application.