Planning and Environment Court finds insufficient grounds to support the approval of an out of centre development involving a shopping centre

by Ian Wright, Nadia Czachor, Daniel Tweedale
30 November 2017

In brief

In the Planning and Environment Court decision of Lipoma Pty Ltd & Ors v Redland City Council & Nerinda Pty Ltd [2017] QPEC 53 the Appellants, who own and operate three nearby shopping centres, successfully appealed the decision of the Redland City Council (Council) to approve a new mixed-use development in a nearby out-of-centre location. 
 
The key issues in the appeal centred around the retail and commercial aspects of the development and related to the following:
 
  1. the nature and extent of the conflict with the Redlands Planning Scheme 2006, the draft Redlands City Plan 2015 and the South East Queensland Regional Plan 2009-2031; and
  2. whether there were sufficient grounds to justify the approval despite the conflicts having regard to the need for the development, commercial, traffic and amenity impacts of the development and whether the Redlands Planning Scheme 2006 had been overtaken by events.
The Court allowed the appeal and refused the development, noting that the development conflicted with the Redlands Planning Scheme 2006 and did not demonstrate sufficient grounds to justify approval despite the conflict.

Development application

The development application sought the following:
  1. a development permit for a reconfiguration of a lot (one lot into two lots subdivision); 
  2. a preliminary approval under section 242 of the Sustainable Planning Act 2009 (SPA) for a mixed-use development incorporating both:
a.residential uses, including a mixture of 35 two-storey attached and semi-detached townhouses and duplexes on small lots as well as detached houses on a larger lot; and
 
b.centres uses, including a full-line supermarket, retail warehouse, speciality shops, tavern, medical centre and service station.

Planning framework 

The development application was made under the SPA in August 2014 when the Redlands Shire Planning Scheme 2006 was in force. The draft Redland Shire City Plan 2015 was publicly exhibited by the time the Council approved the application in November 2015.
 
The land the subject of the development application was 6.25 hectares in size and located at the junction of two major roads, namely Boundary Road and Panorama Drive in Thornlands. 
 
Under the Redland Planning Scheme 2006 the land was as follows:
  1. partly in the Medium Density Residential Zone – Sub Area MDR5;
  2. partly in the Urban Residential Zone – Sub Area UR1; 
  3. partly in the Open Space Zone and the Community Purposes Zone – Sub Area CP7;
  4. designated under the Kinross Road Structure Plan as:
a. partly Medium Density Residential Housing; 
 
b. partly Urban Residential Housing; and 
 
c. partly Greenspace Network.
 
The draft Redland City Planning Scheme 2015, which was publicly exhibited in September and November 2015, effectively replicated the zoning of the Redland Planning Scheme 2006 for the subject land with the land zoned a mixture of medium density residential, low-medium density residential and open space.

Issues in the appeal 

The Appellants took no issue with the reconfiguration of the lot or the residential aspect of the development. The issues in the appeal centred around the retail and commercial component of the development, with particular focus on the full-line supermarket and associated retail and tavern uses.
 
The Court refined the issues in the appeal to the following:
  1. the nature and extent of the conflict with the Redlands Planning Scheme 2006, the draft Redlands City Plan 2015 and the South East Queensland Regional Plan 2009-2031
  2. whether there were sufficient grounds to justify the approval despite the conflicts having regard to:
a. the need for the development;
b. commercial, traffic and amenity impacts of the development; and 
c. whether the Redlands Planning Scheme 2006 had been overtaken by events

Nature and extent of the conflict with the Redland Planning Scheme 2006 and the draft Redland City Plan 2015

The Court's consideration of the nature and extent of the conflict predominantly involved a comparison of the distinguishing characteristics between a major, district, neighbourhood and local centre and an analysis of whether the development constituted out-of-centre development. 
 
In this respect, the Court noted that despite the Applicant's characterisation of the development as a "neighbourhood centre", it represented the second largest full-line supermarket in the Redland City local government area. The Applicant accepted that the development did represent an out-of-centre development, but argued that it did not affect the primacy of the centres network. 
 
The Court found that the development was out-of-centre development and that the conflict with the Redland Planning Scheme 2006 was plain and significant because it was not contemplated in its location, scale, or function. The Court noted the following about the development:
  1. it would result in an additional centre inconsistent with the Scheme’s planned centre network;
  2. it would potentially jeopardise the ability of higher order centres to function at the level intended by the centres hierarchy;
  3. it was inconsistent with the intention for the land to be utilised for medium density residential housing, urban residential housing and green space network; and 
  4. it would impact the ability of the planned local centre in the Kinross Road Structure Plan area to properly function.
In relation to the draft Redlands City Plan 2015, the Court noted that it replicated the existing zoning pattern and attracted the same issues as the Redlands Planning Scheme 2006, with the only material difference being that the term "neighbourhood centres" changed to "local centres" to conform with the Queensland Planning Provisions. The Court therefore concluded that the maintenance of full-line supermarkets in the centres hierarchy and centre zoning by the draft Redlands City Plan 2015, after it had undergone a whole planning scheme review, defeated the argument advanced by the Applicant and the Council that there was a "planning deficiency" to meet population growth in the Kinross Road Structure Plan area, and the broader Thornlands area.

Nature and extent of the conflict with the South East Queensland Regional Plan 2009-2031

In its consideration of the South East Queensland Regional Plan 2009-2031, the Court noted that "[the South East Queensland Regional Plan 2009-2031] is in the nature of a higher order strategic planning document expressed in broad terms and ought be considered with that in mind" and that "conflict with the [the South East Queensland Regional Plan 2009-2031] does not mandate refusal in the absence of sufficient grounds”.

Sufficient grounds 

The Court moved to considered whether there were sufficient grounds to approve the development despite the "plain and significant" conflicts. 
 
The Applicant pursued the following two key points:
 
1. The Redlands Planning Scheme 2006 had been overtaken by events and no longer was consistent with the needs of the community. The Applicant relied on evidence from its town planning expert whom identified a number of discrepancies and conflicts within the Redlands Planning Scheme 2006.
 
The Council also acknowledge these shortcomings, in response to which the Court observed as follows:

"It is very rare that a Council is so critical and damning about its own current scheme. But this submission and the body of expert opinion must be properly considered in light of the legislative force and intent of the [Redlands Planning Scheme 2006], which is reinforced by the evolvement of the [Redland City Plan 2015].

Notwithstanding sound expert opinion or Council’s submitted aspiration, the Court is bound to have regard to the relevant scheme and ought not usurp the role of the local authority."

2. The development fell within a "geographic hole" of centres for which the development responded to:
a.   a community need, in the sense that it promotes convenience and affordability within the local area;  
b.   an economic need, in the sense that it would be economically viable as it serviced a catchment area with a population in excess of 10,000 people and would not have a significant impact upon other centres;
c.   a planning need, in the sense that it responds to significant growth in dwellings and population in the southern Thornlands area, which is predicted to continue in the future in such areas as Kinross Road and Woodlands Drive.

Conclusion

While the Court acknowledged that there were strong arguments and opinion about the deficiencies in the Redlands Planning Scheme 2006, it was reticent that the draft Redland City Plan 2015 effectively replicated the zoning pattern, maintenance of full-line supermarkets in the centres hierarchy and centre zoning.

To this end, having considered the grounds in favour of the application as a whole, the Court was not satisfied that there were, on balance, sufficient grounds to justify approving the application despite the conflicts.

The Court allowed the appeal and refused the development.  

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.

Contact

Ian Wright Partner

Nadia Czachor Senior Associate