In brief

The case of Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 concerned an appeal to the Planning and Environment Court of Queensland in respect of two proposed shopping centre developments for a local centre to be located at Narangba, 30 kilometres north of the Brisbane CBD.

The relevant developers of the proposed shopping centres were BGM Projects Pty Ltd (BGM) and Australian National Homes Pty Ltd (ANH). The first named appellant was a director of ANH, which was the second appellant. 

The Court held that, although BGM’s proposed development had not complied with all aspects of the Council's Planning Scheme, the proposed development had adequately demonstrated the planning policy underlying the relevant provisions of the Planning Scheme more so than ANH, such that the nature and extent of the non-compliance was not a compelling reason for Council to refuse the application.

Background

Council had approved BGM’s application for a development permit authorising a material change of use of land for the purpose of establishing a local centre, which would feature a supermarket, specialty retail uses, fast food outlet and service station. ANH applied for a preliminary approval for a material change of use and a variation approval with respect to the use of the land as a local centre which would feature similar services to BGM’s proposal such as a supermarket, specialty shops, medical centre, gym, service station and fast food outlet. 

The director of ANH appealed against the Council's decision to approve BGM’s proposed development. ANH appealed against the Council’s refusal of its proposed development. 

The issue for the Court to determine was whether either proposal was appropriately located and designed having regard to the Council’s strategic intent for activity centres under the Planning Scheme, in addition to considering other relevant issues concerning need, traffic engineering, lighting and acoustic impact. 

Deciding development applications

Section 60 of the Planning Act 2016 requires the Court to exercise its planning discretion in deciding a development application. The Court said that "a planning decision must strike the balance between the maintenance of confidence in a planning scheme on the one hand and dynamic land use needs and recognition that town planning is not an exact science on the other" ([22]; see also Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16 [60]).

Location

The Court was satisfied that BGM’s proposed development was appropriately located as it was highly accessible by motor vehicle, as well as provided for other active transport modes such as walking, cycling or public transport (active transport), in that the development was "reasonably well aligned with the requirement that new local centres be viable and service an unserviced catchment … consistent with the planning goals that there be a strong network of activity centres and that activity centres be vibrant and attractive places" ([86]).

The Court was not satisfied that ANH’s proposed development would "provide convenient accessibility by active transport from existing or developing residential areas", and that although it was accessible by motor vehicle, the development was "not well located to encourage a shift to greater access by active transport" ([265]). 

Design

The Court held that although BGM’s proposed development did not achieve a "main street" format or the extent of street-fronting retail activation as encouraged under the Planning Scheme, the development’s design did not "unsatisfactorily compromise the proposed local centre’s ability to achieve the associated planning goals with respect to social interaction and encouraging access to active transport" ([174]). 

The Court said that BGM’s proposed development would result in "a vibrant and attractive centre that promotes social interaction and community identity [and] an environment that encourages the public to access it by active transport and public transport" ([179]). 

The Court was satisfied that ANH’s proposed development would result in a vibrant and attractive centre which promoted social interaction and community identity within the site itself. However, it was noted that the proposed development would be more suited to access by car, therefore failing to achieve "an active frontage that would encourage walkability in any meaningful way" ([311]). 

Having considered ANH’s proposed development against the assessment benchmarks under the Planning Scheme, the Court held that the proposal did not align with the Council’s planning strategy for the location and design of local centres under the Planning Scheme, having failed to address the requirement for a "walkable community" ([458]).

Need

The Planning Scheme recognises that a new local centre may be established to appropriately serve the needs of emerging communities provided that the economic need is "sufficient to ensure it is viable, and that the establishment of a new local centre does not affect the vitality of other centres" ([469]). 

Both BGM and ANH submitted that their respective proposals would meet an unmet economic, community and town planning need in light of the extensive residential development and emerging population occurring in the area at the time. 

The Court determined that although either proposal would improve the services and facilities accessible by active transport and provide opportunities for social interaction, BGM’s proposal favoured approval over that of ANH, given that it was more closely aligned with the requirements under the Planning Scheme that need be met by new local centres that have convenient accessibility by way of active transport ([511]-[513]).

Conclusion

In refusing the appeal, the Court held that although BGM’s proposed development did not comply with all aspects of the Planning Scheme or every requirement regarding the intended design of a local centre, the proposed development was aligned with the planning policy underlying the relevant provisions of the Planning Scheme, including location, design, amenity and character of the local area, walkability, and need ([605]).

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 2020.

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