Planning and Environment Court of Queensland dismisses an appeal against a refusal of a proposed shopping centre on the basis that the applicant failed to demonstrate need

In brief

The case of Trinity Park Investments Pty Ltd v Cairns Regional Council [2022] QPEC 15 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Cairns Regional Council (Council) to refuse a development application for a material change of use for a shopping centre in Smithfield, Cairns.

The Court considered the following issues:

1. Whether there was a need for the proposed shopping centre.

2. Whether the proposed shopping centre would compromise the effective function of centres provided for in the CairnsPlan 2016 (version 2.1) (Planning Scheme).

3. Whether the proposed shopping centre would strengthen self-containment of the Cairns Northern Beaches.

4. Whether the proposed shopping centre compromised the delivery of the requirements for a Gateway site, a structure plan, and a particular development form.

The Court ultimately held that the Applicant did not establish a sufficient need for the proposed development as required in the Planning Scheme and therefore dismissed the appeal.

Court finds that a need for the proposed shopping centre would not arise until 2031 or later

Acceptable Outcome AO1.1 of the Smithfield Local Plan Code (SLPC) of the Planning Scheme relevantly states that development must demonstrate "an economic and community need". This theme is echoed in section 9.4.1.2 of the Centre Design Code (Centre Design Code) of the Planning Scheme, which again requires centres to "support community need".

The economic need experts for the Council and the Applicant did not conclude that there was an existing need for the proposed shopping centre. The Applicant's economic need expert opined that the need for the proposed shopping centre would arise "by around 2026", however the Court agreed with the Council's economic need expert, who opined that the need would only arise "by around 2031 or later" (at [21]).

The Applicant submitted that "any absence of need would not warrant refusal of this application" as the proposed development is code assessable (at [25]). However, the Court disagreed and found that the fact that the proposed shopping centre is code assessable did not negate the obligation to meet the need requirements in the SLPC (at [25]). The Court also stated that the Planning Scheme when read as a whole contains a clear strategy that need is to be justified prior to approval (at [25]).

Court finds that proposed shopping centre is compliant with the relevant function of centres and self-containment benchmarks

The Court referred to section 7.2.8.3 of the SLPC and section 9.4.1.2 of the Centre Design Code, which emphasise the importance of development reinforcing the hierarchy of centres and strengthening self-containment of the Cairns Northern Beaches. The Court found that the proposed shopping centre would reinforce the centre hierarchy given that it is code assessable on the site, and that, according to evidence from both parties' economic need experts, surrounding centres would continue to function even with the development of the proposed shopping centre (at [29]).

The Court also found that the proposed shopping centre would strengthen self-containment, as it would provide residents of the Cairns Northern Beaches another opportunity to "shop within their community" (at [30]).

Court finds that the proposed shopping centre demonstrates compliance with requirements relating to Gateway sites, structure plans, and development design

Whilst the Council raised an issue with a section of the site being designated as a Gateway site, the Court found that the Applicant did not have to meet any Gateway site requirements as the development application was outside of the area designated as a Gateway site.

The Council also raised an issue with the Applicant's structure plan, submitting that it did not meet the requirement under section 7.2.8.3(5)(f)(i) of the SLPC (at [35]). However, the Court agreed with the Applicant and found that the submitted structure plan, which demonstrated that the balance of the site could be developed in accordance with relevant assessment benchmarks, was sufficient (at [37]).

Finally, the Council submitted that the Applicant failed to meet numerous assessment benchmarks relating to street frontage, scale, and character, including section 6.2.14.2(4)(d), Performance Outcome PO3, Acceptable Outcome AO3.1, and Performance Outcome PO5(c) of the Mixed Use Zone Code of the Planning Scheme, as the balance of the site was shown as a future mixed use development area. The Court found that the only obvious non-compliances were that "…the building is not built to the boundary fronting the Captain Cook Highway and that the proposed provision of car parking is between the building and the highway" (at [40]). Overall, the Court found that the design was "…entirely consistent with other similar developments in the Cairns Northern Beaches" (at [40]).

Conclusion

The Court dismissed the appeal, finding that the code assessable nature of the proposed shopping centre did not exempt it from meeting the need requirements of the relevant assessment benchmarks. Whist the Court did not find that any other issues raised by the Council warranted a refusal of the development application, the failure to meet the need requirements in itself was reason enough to dismiss the appeal.