In brief

The case of Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17 concerned four appeals (Appeals) to the Planning and Environment Court (Court) in relation to development approvals given by the Cairns Regional Council (Council), being a preliminary approval for a material change of use for a Shopping Centre and Health Care Services and for reconfiguring a lot into 14 lots, a development permit for a material change of use for a Child Care Centre, Service Station, and Food and Drink Outlet, a development permit for operational work for an Advertising Device, a development permit for reconfiguring a lot into four lots, and an access easement (Proposed Development).

The case involved the following four appeals which were heard together:

  • Appellant's Appeal – The Appellant sought a development permit for the uses which were the subject of the preliminary approval. 

  • First Co-Respondent by Election's Appeal – The First Co-Respondent by Election, which owned the Smithfield Shopping Centre located approximately four kilometres south of the subject site, sought an order that the Proposed Development be refused. 

  • Third Co-Respondent by Election's Appeal – The Third Co-Respondent by Election sought an order that the Proposed Development be refused, however, withdrew its appeal prior to the hearing. 

  • Fourth Co-Respondent by Election's Appeal – The Fourth Co-Respondent by Election, which had lodged a development application which required code assessment for a shopping centre on land located between the subject site and the Smithfield Shopping Centre and within sub precinct 3b of the Smithfield Local Plan in the CairnsPlan 2016 version 1.2 (Planning Scheme) (TPI Development Application), sought an order that the Proposed Development be refused. 

The issues in dispute were as follows:

  • Issue 1 – Whether there was a need for the Proposed Development. 

  • Issue 2 – In respect of the Planning Scheme, whether the Proposed Development was contrary to or would compromise the hierarchy of centres; whether the Proposed Development would have a function and scale which exceeded that intended for the low-medium residential zone; whether the uses comprising the Proposed Development ought to be located in an existing centre within the locality; and whether the Proposed Development would result in an unacceptable impact on the role, function, and economic viability of sub-precinct 3b of the Smithfield Local Plan in the Planning Scheme (Sub-Precinct 3b).

  • Issue 3 – The following relevant matters: 

    • the extent of the need for the Proposed Development including whether it would deliver price benefits, employment opportunities, choice, competition and convenience, achieve a balance of demand for retail floor space in the Cairns Northern Beaches region or would exceed it, exceed the convenience needs of the locality, deliver a community benefit associated with the existence of a committed anchor tenant being Woolworths, and achieve efficiency by the co location of the uses comprising the Proposed Development;

    • whether the Proposed Development would be well located to serve the community;

    • whether an approval of the Proposed Development would prejudice the implementation of an existing approval for an extension to the shopping facilities at the Smithfield Shopping Centre; 

    • whether the layout, amenity, and traffic arrangements of the Proposed Development support its approval; 

    • whether the reasonable expectations of the community were being adhered to.

The development approvals in respect of reconfiguring a lot, the Advertising Device, and the Service Station and Food and Drink Outlet became uncontentious between the parties. The issues for the Court to decide were therefore limited to the preliminary approval for a material change of use for a Shopping Centre and Health Care Services, and the development permit for a material change of use for a Child Care Centre. 

The Court held that the Proposed Development ought to be allowed to proceed with conditions, on the basis that: 

  • it met the need identified for a shopping centre with co-located uses which the Cairns Northern Beaches region lacked; 

  • would cater for local residents without compromising the existing hierarchy of centres or Sub-Precinct 3b in the Planning Scheme;

  • was ideally located to meet the need of the community without having an adverse impact on character and amenity; and 

  • it could be justified as a new centre under the Strategic Framework of the Planning Scheme. 

Subject site 

The subject site is located on land approximately 15 kilometres north of the Cairns CBD and within the low-medium residential zone and the Smithfield Local Plan of the Planning Scheme, which relevantly includes Sub-Precinct 3b that is identified in the Planning Scheme for mixed use future retail and commercial development. 

Of relevance to the Appeals was the subject site's location midway between and within four kilometres of, two shopping centres: the Smithfield Shopping Centre, a designated major centre in the Planning Scheme, and the Clifton Village Shopping Centre. Both shopping centres and the subject site were held by the Court to be within the primary trade area (PTA) of Cairns. 

Issue 1 – there is a significant economic, community, and planning need 

The Court found that the Planning Scheme has as a prerequisite to the establishment or use of a centre that there be a need for the development. 

The Court held that where the term "need" is used in a planning scheme without qualification, as it was in the relevant Planning Scheme, need is to be interpreted to be reference to a "planning need", which "will improve the ease, comfort, convenience and efficient lifestyle of the community" and for which there is "a latent unsatisfied demand which is either not being met at all or is not being adequately met" (see [31]).

The Court held that in circumstances where proposed development will provide members of the community with day-to-day shopping necessities that the requisite need ought not be set too high, and that where a planning scheme has demonstrated a deliberate planning decision to provide for appropriate facilities to satisfy need, and there are no unacceptable outcomes on amenity, the effort required to establish need is not onerous. 

The Court held that in the outer urban area of Cairns it was a realistic expectation to be located within three kilometres of a major supermarket and concluded that there is current significant economic, community, and planning need within the PTA for the Proposed Development that was not being met. In support of this, the Court found that the supermarkets in the Smithfield and Clifton Village Shopping Centres are producing sales substantially above the Australian average industry benchmark of sales for a full-line supermarket. 

Issue 2

Proposed Development would maintain the hierarchy of centres 

The Court held that the Proposed Development was not contrary to or would not compromise the existing hierarchy of centres for the reasons that: 

  • the Smithfield Shopping Centre would remain the major centre and focus of employment and economic activity in the region; 

  • other existing shopping centres would be impacted by the Proposed Development in an ordinary competitive way; and 

  • providing local residents with choice, which may result in them choosing to shop at the Proposed Development as opposed to an existing centre, was not supportive of the lesser foot traffic compromising the role and function of the existing centre. 

Proposed Development would cater for local residents and is a suitable use for the locality 

The Planning Scheme required that the Proposed Development be of a "local" focus and "small-scale", though the Planning Scheme did not define the meaning of either term. 

The Court interpreted "local" to mean within the PTA and held that although the Proposed Development could not be described as small-scale, it would "cater for local residents" as required by the low-medium residential zone code of the Planning Scheme by providing a shopping centre for residents' weekly shopping needs, and was in a suitable location having regard to the impacts on amenity and character, the ability of residents to access the site by walking or cycling, and compliance with parts of the Planning Scheme. 

The Court noted that the function and scale of the Proposed Development was not critical particularly given that the Strategic Framework in the Planning Scheme prevailed over other parts of the Planning Scheme to the extent of any inconsistency, which allowed for the establishment of a new centre on the basis of a need for the development.

Proposed Development would not unacceptably impact Sub-Precinct 3b 

Sub-Precinct 3b is identified in the Smithfield Local Plan and the mixed use zone code of the Planning Scheme as a future retail and commercial area that permits a development application for the code assessment of a shopping centre with a mix of activities of not greater than 5,000 m2 gross floor area.

The Court did not consider the opportunity for code assessable development in Sub-Precinct 3b to mean that the Proposed Development would result in an unacceptable impact on the role, function, and economic viability of the precinct. This was particularly so because of the broad range of uses contemplated by Sub-Precinct 3b. The Court held that in any event development in Sub-Precinct 3b is intended to be of such a scale that it would not be able to meet the pressing need of the community that would be met by the Proposed Development. 

Issue 3 – other relevant matters 

The Court held that the Proposed Development would: 

  • bring about price benefits, employment opportunities, competition, and convenience; 

  • provide a benefit to the community through the association of a committed anchor tenant by the establishment of another Woolworths; 

  • be centrally located to meet the 10,800 residents located outside of a three-kilometre radius of an existing supermarket; 

  • satisfy a need in the community for each of the proposed uses and would create efficiency by the co-location of those uses; and 

  • be an ideal location and opportunity for residents to shop without using the highway. 

The Court also held that any potential impact the Proposed Development would have on any existing un-actioned approval to extend the shopping facilities at the Smithfield Shopping Centre is irrelevant, where the Proposed Development would not comprise that shopping centre's role and function in the region. 

Conclusion

The Court determined that the Proposed Development would not compromise the existing hierarchy of centres in the Planning Scheme and warranted approval with conditions, despite the minor non-compliance with the Planning Scheme in circumstances where the need for the Proposed Development was strongly supported by expert evidence, and the Strategic Framework of the Planning Scheme, and the Proposed Development would not impact on existing shopping centres within the locality. 

The Appellant's appeal was allowed and each appeal of the Co-Respondents by Election was dismissed.

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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