In brief

The case of Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 concerned an application brought by Trinity Park Investments Pty Ltd (TPI) and an application brought by Dexus Funds Management Limited (Dexus) for leave of the Queensland Court of Appeal (Court of Appeal) to appeal the decision of the Planning and Environment Court of Queensland (P&E Court) in Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17 (Decision) allowing an appeal brought by Fabcot Pty Ltd (Fabcot) for the grant of a development permit for a shopping centre consisting of a supermarket, medical centre, childcare centre, service station, and food and drink outlet on land located in Trinity Beach and dismissing the related submitter appeals brought by TPI and Dexus (Fabcot Appeals). A summary of the Decision can be found in our June 2020 article.

The site the subject of the Fabcot Appeals is located, approximately 4 kilometres respectively, between the Smithfield Shopping Centre operated by Dexus, which contains a Coles supermarket and a Woolworths supermarket, and the Clifton Village Shopping Centre, which contains a Coles supermarket (Fabcot Site). Fabcot, being Woolworths' development arm, owns the Fabcot Site.

The Fabcot Site was included in the low-medium density residential zone to which the low medium density residential zone code applied (LMDR Zone Code) under the CairnsPlan 2016 (the Planning Scheme), and identified within the Smithfield Local Plan under the Planning Scheme.

TPI lodged a development application for a shopping centre on land approximately 2 kilometres north of the Smithfield Shopping Centre (TPI Application), and no decision in respect of the TPI Application had been made at the time the Fabcot Appeals were heard by the P&E Court (see [9]).

The key questions for the Court of Appeal to determine were the following:

  • Whether the P&E Court erred in adopting the meaning for "local community" by reference to the Primary Trade Area (PTA) and did not have sufficient regard to the term "small scale".

  • Whether the P&E Court erred in concluding that the proposed development complied with section 3.3.2.1(10) of the Planning Scheme.

  • Whether the P&E Court erred in finding that the proposed development would not unacceptably impact upon the role, function, and economic viability of sub-precinct 3b within the Smithfield Local Plan in consideration of the importance of the hierarchy of centres under the Planning Scheme.

  • Whether the P&E Court predetermined the TPI Application.

A grant of leave to apply to the Court of Appeal is relevantly limited to an error or mistake in law under the Planning and Environment Court Act 2016 (Qld) (see [40]). The Court of Appeal found that the P&E Court erred in its Decision, setting aside the orders made by the P&E Court and remitting the Fabcot Appeals to the P&E Court for determination 

The remitted Fabcot Appeals first came before the P&E Court in May 2021, and on 12 August 2021, the P&E Court granted leave to TPI and Dexus to allow limited additional evidence to be adduced at the rehearing of the Fabcot Appeals (see Fabcot v Cairns Regional Council (No 2) [2021] QPEC 40). The rehearing of the Fabcot Appeals is yet to occur.

Court of Appeal found that the P&E Court erred in adopting the meaning for "local community" by reference to the PTA and did not have sufficient regard to the term "small scale"

In considering the function and scale of Fabcot's proposed development, the P&E Court accepted the evidence of the town planning experts that the proposed development was not "small scale" and considered the meaning of "local" under the Planning Scheme to be "a flexible concept" that must refer to an area identified by the economic experts as the PTA, which encompassed the suburbs of Trinity Beach and Kewarra Beach, and so concluded that the proposed development would cater for local residents by providing a supermarket for their weekly needs (see [30]).

Dexus and TPI contended that the proposed development would serve several communities and, in the context of the purpose of non-residential uses in the LMDR Zone Code being "small scale", the P&E Court erred in construing the meaning of "local" in the LMDR Zone Code (see [64]). Dexus further contended that the proposed development was not in the public interest in accordance with the Planning Scheme (see [55]).

Fabcot contended that Dexus and TPI failed to consider relevant provisions of the Planning Scheme in respect of local centres, which was what Fabcot contended it was proposing (see [70]).

The Court of Appeal held that the resolution of the issue would depend on the statutory construction of "local" when used in the LMDR Zone Code in relation to "local residents" and "local community".

In construing the terms "local residents" and "local community", the Court of Appeal observed that little assistance would be derived from the ordinary or dictionary meaning of "local" (see [72]) and cited the oft-cited case of Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) QPELR 686; (2014) 201 LGERA 82, which established that the ordinary rules of statutory construction apply to planning documents (see [77]).

The Court of Appeal held that the terms "local residents" and "local community" should be construed consistently by reference to "small scale" as the terms are used in the LMDR Zone Code, however, that this is not "confined to a part of a suburb or even a single suburb" (see [115] and [116]).

Ultimately, the Court of Appeal found that the size of Fabcot's proposed development, namely its supermarket and PTA with an estimated population of 13,130 by 2022, extended beyond what could be regarded as serving the "local community", and that the P&E Court asked the wrong question in adopting the meaning of "local community" by reference to the PTA and did not have sufficient regard to the term "small scale" used in connection with catering for the local residents' needs in the LMDR Zone Code (see [117] to [119]).

Court of Appeal found that the P&E Court did not err in concluding that the proposed development complied with section 3.3.2.1(10) of the Planning Scheme

Dexus contended that as a result of the P&E Court's error in adopting the meaning for "local community" by reference to the PTA, the P&E Court erred in concluding that the proposed development complied with section 3.3.2.1(10) of the Planning Scheme and construed the provisions of section 3.3.2.1(10) in isolation and without regard to other aspects of the Planning Scheme (see [56] and [121]).

Section 3.3.2.1 of the Planning Scheme is contained in the Strategic Framework and provides the specific outcomes for a centre and centre activities. The Strategic Framework prevails over all other provisions of the Planning Scheme to the extent of any inconsistency (see [13]). Section 3.3.2.1(10) of the Planning Scheme, which provides for the establishment of new centres "out of centre", states the following (see [20] and [140] to [141]):

"(10) New centres are only established where it is demonstrated that:

(a) there is a need for the development;

(b) the development is of a scale that is required to service the surrounding catchment;

(c) the development is highly accessible within the catchment it serves and not located on the periphery;

(d) the development does not compromise the character and amenity of adjoining premises and surrounding areas."

Dexus further contended that the language of section 3.3.2.1(10) of the Planning Scheme did not warrant allowing the grant of the development permit on the basis of the economic evidence, and in treating the proposed development as constituting a new "Local centre" in the Planning Scheme hierarchy, the P&E Court failed to recognise that the Planning Scheme did not expressly contemplate full-line supermarkets within local centres (see [124]).

The Court of Appeal found that it was plain from the reading of the reasons of the P&E Court that the impact of the proposed development on the existing and ongoing hierarchy of centres was considered and in that regard the P&E Court stated that the proposed development would maintain the hierarchy of centres under the Strategic Framework (see [142]).

The Court of Appeal found that the P&E Court did not approach the application of section 3.3.2.1(10) in isolation and that the P&E Court correctly identified that the extent of any non compliance with the Planning Scheme is to be considered in the exercise of the P&E Court's discretion under the Planning Act 2016 (Qld) (see [143] and [145]).

Court of Appeal finds that the P&E Court did not err in finding that the proposed development would not unacceptably impact upon the role, function, and economic viability of sub-precinct 3b in consideration of the importance of the hierarchy of centres under the Planning Scheme

TPI contended that in finding that the proposed development would not unacceptably impact upon the role, function, and economic viability of sub-precinct 3b in the Smithfield Plan, the P&E Court failed to give effect to the specific planned role and function of sub-precinct 3b, which it alleged should have been found to be part of the planned hierarchy of centres, and so argued that the P&E Court misconstrued the precise designation of the TPI land which was within sub precinct 3b (see [48]).

Dexus also contended that the P&E Court "erred in dismissing sub-precinct 3b as an obstacle in the path of the approval of the Fabcot application" (see [150]).

The Court of Appeal found that while TPI "contends that sub-precinct 3b effectively has the function of a centre, and forms part of the retail and centre activities network, that is contrary to the express terms" of the Planning Scheme (see [155]) and that having regard to section 3.3.2.1(1) and the nature of sub-precinct 3b, the Decision "did not cut across the planning intentions of the [Planning] [S]cheme and intrude upon the integrity of sub-precinct 3b" (see [165]).

Court of Appeal finds that there was no denial of natural justice or predetermination of the TPI Application

Finally, TPI and Dexus contended that the P&E Court erred in prejudging the TPI Application, which at the time of the hearing of the Fabcot Appeals remained pending a decision, and that this was apparent in the P&E Court's finding that the TPI Application was "seriously wanting in several respects" (see [51] and [61]).

The Court of Appeal found that it was apparent from the P&E Court's reasons that "his Honour was conscious of not determining which was the better site" (see [169]), and that while the "determination of the primary judge in favour of Fabcot's proposal may practically mean it was not in TPI's interest to pursue developing a supermarket is an effect of the decision, it does not follow that his Honour's comments and findings were a predetermination or prejudgment of its application" (see [213]).

Conclusion

The Court of Appeal granted leave on the basis that the P&E Court erred in law in failing to consider the question of non-compliance with the requirements of a "local community" in the LMDR Zone Code and ordered that the Decision be set aside and remitted to the P&E Court for determination.

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.

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