Declaration of interest: Colin Biggers & Paisley acted for McConaghy Properties in the case discussed in this article.
In the recent Planning and Environment Court decision of McConaghy Properties Pty Ltd v Townsville City Council & Anor  QPEC 011
, McConaghy properties, the operator of an established shopping centre in Townsville, successfully appealed a decision of the Townsville City Council to approve a new shopping centre in a nearby out-of-centre location.
The key issues in the appeal centred on the planned centres hierarchy established under the Council's current and former planning schemes, the economic need and impact of the proposed development, the loss of sport and recreation zoned land, and the impact of the proposed development on the city's existing and planned transport infrastructure network.
The Court allowed the appeal and refused the development, finding significant conflict with the Council's current and former planning schemes and insufficient grounds to justify approval despite the conflict.
The proposed development
The proposed development comprised a shopping centre with a gross floor area of 7,042m2 (including a 4,199m2 full-line Coles supermarket and an additional 2,432m2 of retail) and a drive-through fast food outlet.
The site of the proposed development was approximately 1km from McConaghy Properties' existing shopping centre, in a location not serviced by public transport, and owned and operated by Townsville District Rugby Union.
The planning framework
The development application for the proposed development was lodged under the Townsville City Council City Plan 2005
. Around 12 months prior to the development application being decided by the Council, the Townsville City Plan 2014
came into force, and could therefore be given weight by the Council in its assessment of the proposed development.
The site of the proposed development was located within the Green Space Precinct under the 2005 planning scheme and the Sport and Recreation Zone under the 2014 planning scheme. Neither planning scheme supported shopping centre development in the location of the proposed development.
The Court’s findings on key issues
The Court heard evidence from experts in the fields of town planning, economics, sports and recreation, and traffic, as well as non-expert evidence on behalf of McConaghy Properties, Townsville District Rugby Union and Coles.
Centres hierarchy and economic need and impact
The Court found that both the 2005 and 2014 planning schemes establish a hierarchy of centres which planned for the development of centres in specific locations and expressly discouraged out-of-centre development. Accordingly, the Court held that the proposed development was in significant conflict with both planning schemes.
The development proponent readily conceded the conflict, but argued that approval could be justified on the grounds that there was an economic need for a neighbourhood or local scale convenience-based shopping centre which was not able to be satisfied by the nearby major shopping centre operated by McConaghy Properties.
The Court disagreed, finding that the scale of the proposed development was greater than that of a neighbourhood or local centre. While the Court accepted that there was a modest economic need for an additional full-line supermarket within the catchment, it was not satisfied that the need could not otherwise be satisfied by development within the centres zone consistent with the 2014 planning scheme.
In reaching this position, the Court had regard to its observation in an earlier case that the Court is not the planning authority and should not substitute planning strategies, such as the location of centre development, for those which the planning authority has chosen to adopt after careful and proper consideration (see Brazier v Brisbane City Council
(1972) 26 LGRA 332).
The Court noted that the centres hierarchy is a central plank or core policy underpinning the planning scheme, which encourages consolidation and redevelopment of the existing centres network.
The Court gave particular weight to the evidence of the economic expert called by McConaghy Properties which showed that the impact of the proposed development on the viability of individual retailers within McConaghy Properties’ centre would not be insignificant and overall would prejudice the future development and expansion of the major centre as intended under the 2014 planning scheme.
Loss of sport and recreation zoned land
The Court found that the proposed development conflicted with the 2005 and 2014 planning schemes in that it would not protect and maintain the open space and recreational resources of the district.
In this respect, the Court acknowledged that the parks and recreation experts agreed that there is a significant shortfall of sport and recreation zoned land in Townsville, and that the proposed development would exacerbate that situation.
Impact on planned and existing transport infrastructure network
The Court found that the proposed development was only in minor conflict with the transport planning strategies under the 2005 and 2014 planning schemes.
Nevertheless, the Court accepted the evidence of the traffic expert called by McConaghy Properties that transport planning is interrelated to the creation and maintenance of a centres hierarchy. In particular, the Court noted that the 2014 planning scheme highlights that centres are to be well connected to the surrounding community, maximising accessibility by walking, cycling and public transport.
The Court held that the absence of public transport services along the frontage of the proposed development, among other traffic impacts identified by the experts, were symptomatic of the unplanned centre. In contrast, McConaghy Properties’ existing centre provides three onsite public bus stops integrated with associated routes.
Other grounds relied on by development proponent
In addition to an economic need for the proposed development, the development proponent argued additional grounds for justifying approval despite the conflicts with the 2005 and 2014 planning schemes.
In particular, it argued that it would promote a compact urban form by consolidating compatible development within a definable node, would improve the existing road network, provide additional employment opportunities, and facilitate the relocation of Townsville District Rugby Union to new facilities to be constructed on other land owned by the development proponent.
Ultimately, the Court found that none of the above grounds particularly favoured approval of the proposed development. In respect of the relocation of Townsville District Rugby Union, the Court noted that any new facilities would be subject to a future planning application, assessment and approval, and that the Council’s decision in respect of such an application should remain unfettered.
The Court held that the proposed development was in significant conflict with the 2005 and 2014 planning schemes, and that the grounds contended for by the development proponent were not sufficient to justify approval despite the conflict.
In the Court’s words, the proposed development was simply “too close, too big and too disruptive to the centres hierarchy
” (at ).
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 2021.