In brief

The case of QIC Noosa Civic Pty Ltd v Noosa Shire Council & Ors [2016] QPEC 69 concerned an appeal against a decision of the Noosa Shire Council to refuse a development application to substantially expand the existing Noosa Civic Shopping Centre within the Shire Business Centre Zone.

The key issues raised in the appeal related to town planning, economic and community need, visual amenity and traffic, with a particular focus on the Council’s strategic planning for the Shire Business Centre Zone; a major centre in the Council’s centres hierarchy.

The Court dismissed the appeal and refused the proposed development, noting that it was in serious conflict with the intended and planned uses for precincts within the Shire Business Centre and, while the merits of the proposal were finely balanced, there were insufficient grounds to justify approval despite the conflict.

Proposed development

The proposed development involved a substantial expansion of the existing Noosa Civic Shopping Centre, including a total retail floor area of 22,230m2 and a roofed area 35,059m2.

In addition to the existing discount department store, major supermarket and numerous specialty shops, the proposed expansion would provide a second discount department store, a second major supermarket, a subordinate supermarket, more than 50 additional specialty shops, as well as other mixed uses including commercial uses, sophisticated entertaining and dining, childcare, education, wellbeing and temporary markets.

Planning framework

The proposed development was contained predominantly within the Shire Business Centre Zone and partly within the Open Space Conservation Zone under the relevant planning scheme.

The planning scheme contemplated the Shire Business Centre as a mixed-use centre with non retail diversification and employment growth as part of a long-term strategy to reduce Noosa's economic dependence on the tourism industry and comprises a number of district precincts which remain largely undeveloped.

Relevantly, the proposed development was to occupy the entirety of the E1 – Employment (Technology Based R&D Business Offices and Civic) precinct and encroach materially into the E7 – Employment (Business and Offices) precinct.

The Shire Business Centre is designated in the SEQ Regional Plan 2009–2031 as a "new economy" science and technology opportunity area for government and private sector investment in major research infrastructure and land secured for future creative industry, science and knowledge-based hubs.

Strategic planning for the Shire Business Centre

The town planning experts agreed the proposed development was in stark conflict with the site specific planning intentions for the Shire Business Centre which had been in place for many years and regularly reviewed.

The economic experts agreed that there was low demand for the non-retail uses contemplated for the Shire Business Centre and there was otherwise a surplus of land available elsewhere within the Council's area to meet any future demand that may arise. The Shire Business Centre was otherwise a logical location for the proposed development.

The Council acknowledged that demand for non-retail commercial uses was currently low, but argued that demand could increase dramatically and suddenly in the future given the pace of technological change. In the event that demand did grow, the Shire Business Centre was ideally located. The planning scheme expressly recognised that "protecting the long term viability of the Shire Business Centre may mean setting aside short term needs to ensure the medium-long term implementation of the centre".

The Court considered the current lack of demand for non-retail uses and the surplus of land elsewhere to be significant factors in favour of the proposed development, noting that the Council's planning for such uses had been materially if not grossly optimistic.

Nevertheless, the Court recognised that the planning scheme provided a legitimate and clear statement of planning intent by the Council to encourage non-retail commercial enterprise to reduce the area's dependency on tourism. The Court held that in such circumstances it should adopt a self-limiting approach and not substitute alternative planning strategies to those adopted by the Council.

Economic and community need

The economic experts agreed there was an economic and community need for an additional discount department store, at least one major supermarket, more specialty shops and other uses.  However, the experts disagreed on the need for a shopping centre of the scale proposed.

The Court accepted the evidence of the Council's economic expert that the proposed development would have a material negative economic impact on the existing nearby Noosa Junction shopping centre by as much as 15 percent, leading to a high levels of vacancy in the short to medium term which could take up to seven to ten years to recover.

The Court was not satisfied that the benefits to the community from the proposed development would offset the negative consequences that would likely flow from the impact on the Noosa Junction shopping centre or that there was a genuine need for a shopping centre of the scale proposed.

Visual amenity

The proposed development was significant in size, being approximately 300m in length and up to 160m wide. Nevertheless, the built form was to be articulated and well screened by landscaping such that a person situated in or driving by the existing shopping centre would be unlikely to be able to observe the proposed development in any material way.

The Court found that the proposed development was not of a form or scale desired or anticipated in the Shire Business Centre and far from enhancing the adjacent open space it would effectively turn its back on it.

The Court held that while the visual amenity impact of the proposed development was inconsistent with the planning scheme, it did not warrant refusal in its own right.

Traffic impacts

The scale of the proposed development would bring forward the need for planned future road upgrades, including traffic signals, and had the potential to divert from the major road corridors.

The Court found that it was more likely than not that traffic signals would be required in the future in any event and that any delays at those intersections would be relatively modest and not likely to result in an unacceptable traffic impact. Further, while the diverted traffic generation would likely be greater than if the Shire Business Centre had been developed as intended, it could be addressed in a meaningful way by further works if not entirely eradicated.

The Court held that while the proposed development would cause some limited adverse traffic impacts, those impacts did not warrant refusal in their own right.

Outcome

The Court dismissed the appeal and upheld the Council's decision to refuse the proposed expansion of the Noosa Civic Shopping Centre, observing (at [142]) that "to permit the proposed development to go ahead would effectively defeat a clear and long standing statement of planning intent."

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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