Need for a new local centre outweighs requirements that development be "small scale" and service the "local community" in a remitted planning appeal in the Planning and Environment Court of Queensland

In brief

The case of Fabcot Pty Ltd v Cairns Regional Council & Ors (No. 3) [2022] QPEC 12 (Fifth Decision) concerned a rehearing in the Planning and Environment Court of Queensland (P&E Court) in respect of a development permit (Development Approval) granted by the P&E Court in the case of Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17 (First Decision) for land located in Trinity Beach, Queensland.

The rehearing was required as a result of a successful appeal to the Queensland Court of Appeal (Court of Appeal) in 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; (2022) QPELR 309 (Second Decision) by two Co-Respondents by Election (Commercial Co-Respondents), who each had a commercial interest that may be adversely affected by the Development Approval.

The Court of Appeal was persuaded by the Commercial Co-Respondents' submission that "local residents" and "local community" in the Low-Medium Density Residential Zone Code (Code) of the CairnsPlan 2016 version 1.2 (Planning Scheme) ought to be construed having regard to the purpose of the Code to provide for "small scale services and facilities that cater for local residents" (see [115] of the Fifth Decision).

The Court of Appeal in the Second Decision relevantly remitted the matter for the P&E Court to reconsider "…the question of non-compliance with the requirements of a 'local community' in the [Code], which require non-residential uses to serve the local community" (see [26] of the Fifth Decision).

The Court of Appeal held that what is meant by the term "local" covers something more than a part of a suburb up to something less than the primary trade area (PTA) identified by the economic need experts in the First Decision. However, where "local" falls on that spectrum is not clear (see [43] to [46] of the Fifth Decision).

The P&E Court in making the Fifth Decision heard further evidence from the parties and held, as was also found in the First Decision, that contrary to the Code, the proposed development is a local centre that is not "small scale" and is inconsistent with the concept of serving the "local community" (see [11], [46], and [51] of the Fifth Decision).

However, the following factors supporting approval of the proposed development far outweighed the factors supporting refusal and the P&E Court again granted the Development Approval subject to lawful conditions (at [53] of the Fifth Decision):

• The significant economic, community, and planning need for the supermarket component of the proposed development, which need had increased since the First Decision, and the sufficient need for the child care centre, medical centre, food and drink outlet, and service station components of the proposed development (see [31], [40], and [51]).

• The lack of impact on the hierarchy of centres in that despite the loss of some foot traffic "…the Smithfield major centre will still represent the focus of employment and economic activity…and remain the dominant centre…" (at [32]).

• The location is ideal having regard to fundamental planning principles in that it is well-located and physically suitable for the proposed development and has excellent access to the Captain Cook Highway, as well as walking and cycling access which is an advantage to local residents who can access the site without using the Highway (at [32]).

• Other relevant matters, including the efficiencies of co-locating the uses of the proposed development and the need which "…justifies the creation of a new centre on the site as contemplated in the Strategic Framework of the Planning Scheme" (at [34] and [51]).

• The other full-line supermarket proposed to be developed by one of the Commercial Co-Respondents "…is not as well located to serve the pressing need identified within the PTA" and the proposed development is in a far superior and central location to service that need (see [31] and [52]).

Litigation history

The following proceedings comprise the relevant litigation history in respect of the Development Approval that ultimately led to the Fifth Decision:

1. First Decision – The First Decision, which is summarised in our June 2020 Article, concerned the following four appeals in the P&E Court in respect of which the P&E Court allowed the appeal by the Applicant subject to the imposition of conditions and dismissed the other three appeals:

   • Applicant's appeal – The Applicant relevantly appealed against the decision of the Cairns Regional Council (Council) to grant a preliminary approval for the shopping centre, health care services, and reconfiguring a lot components of the proposed development and sought a development permit for those components.

   • Commercial Co-Respondents' appeals – The Commercial Co-Respondents sought an order that the proposed development be refused.

   • Other appeals – A community association located in the Cairns Beaches area and another local company sought orders that the proposed development be refused. However, the community association did not take an active role in the proceeding and the local company discontinued its appeal and did not participate further.

2. Second Decision – The Commercial Co-Respondents were both granted leave to appeal to the Court of Appeal, which remitted the matter back to the P&E Court because of an error in the construction of the provisions of the Code (Remitted Issue) as was summarised in our October 2021 Article.

3. Third Decision – Further limited evidence that updated the evidence already considered in the First Decision was permitted by the P&E Court to be adduced in respect of the Remitted Issue in the case of Fabcot v Cairns Regional Council (No 2) [2021] QPEC 40 (see [20] of the Third Decision).

4. Fourth Decision – The Commercial Co-Respondents sought leave to appeal the Third Decision, which the Court of Appeal refused in the case of Trinity Park Investments Pty Ltd v Fabcot & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 276.

Factual background 

The Subject Land is 4.092 hectares with three street-frontages, one of which is to the Captain Cook Highway. The Subject Land is relevantly located approximately four kilometres from the Smithfield Shopping Centre, which is a major centre under the Strategic Framework of the Planning Scheme (Strategic Framework), and the Clifton Village Shopping Centre (see [15] and [20] of the Fifth Decision).

The proposed development is for a "local centre" under the Strategic Framework which comprises a shopping centre, including a full-line supermarket and nine small retail tenancies, a medical centre, a child care centre, a service station, operational work for an advertising device, reconfiguring a lot, and an access easement (see [2] of the Fifth Decision). 

The Subject Land is within the Low-Medium Density Residential Zone and the Smithfield Local Plan under the Planning Scheme, but is relevantly not within a Local Plan Precinct. In particular, the Subject Land is not within Sub-precinct 3b which is identified for future retail and commercial development and in which precinct a Commercial Co-Respondent has a code assessable development application for a shopping centre (Competitor Development) on land approximately two kilometres from the Subject Land (see [18] to [19] of the Fifth Decision).

The Strategic Framework prevails over all other components of the Planning Scheme to the extent of any inconsistency (see [27] of the Fifth Decision and section 5.4(1)(d) of the Planning Scheme). In particular, section 3.3.2.1 of the Strategic Framework contemplates the establishment of a new centre in circumstances where the new centre does not compromise the existing and ongoing hierarchy of centres, there is a need for the new centre, the new centre is of a scale required to service the surrounding catchment, is highly accessible and not located on the periphery, and does not compromise the character and amenity of adjoining premises and surrounding areas (see [28] of the Fifth Decision).

Remitted Issue considered and Development Approval again granted

The P&E Court held that the proposed development was a "local centre" under the Strategic Framework, which in the context of the Remitted Issue was not "small scale" and would serve the PTA that was beyond serving the "local community" as required by the Code.

The P&E Court was satisfied that, despite the non-compliance with the Code, the significant need for the proposed development and the "…gap in the provision of a full-line supermarket to provide for the need, justifies the creation of a new centre on the [Subject Land] as contemplated in the Strategic framework…" (at [34] of the Fifth Decision).

The P&E Court also held that other relevant matters, including the location of and access to the proposed development, the co-location of the proposed uses, the convenience to local residents, the lack of impact on the Smithfield Shopping Centre, which is a major centre under the Strategic Framework, and the inability of the Competitor Development to service the need of the PTA, supported the Development Approval.

Conclusion

The P&E Court allowed the appeal and granted the Development Approval subject to the imposition of lawful conditions.