Planning and Environment Court of Queensland upholds refusal of proposed "out-of-centre" shopping centre

In brief

The case of Fabcot Pty Ltd v Ipswich City Council & Anor [2022] QPEC 11 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Ipswich City Council (Council) to refuse a development application for a material change of use to facilitate the development of a shopping centre on land situated at 91 and 93 Raceview Street, Raceview (Proposed Development).

The development application required impact assessment, and was therefore assessed against the assessment benchmarks in the Ipswich Planning Scheme 2006 (Planning Scheme) and having regard to any other relevant matters.

The Court considered the following issues:

1. Whether the Proposed Development would be an inappropriate use of the land.

2. Whether the Proposed Development makes a positive contribution and is consistent with community expectations in relation to built form, design, and streetscape outcomes.

3. Whether there is an economic, community, and planning need for the Proposed Development on the subject land.

4. Whether the Proposed Development would have an unacceptable economic impact upon the centres network.

5. Whether there are relevant matters that otherwise support approval or refusal of the Proposed Development.

Ultimately, the Court dismissed the appeal and refused the development application because although there were some factors in favour of the Proposed Development, the Court found that the determinative issues of need and impact were not satisfied because the level of public or community need was relatively modest and the level of impact of the Proposed Development on the centres network was compromising.

Court finds that the Proposed Development would be an inappropriate use of the land 

The subject land is located within the Residential Medium Density Zone under the Planning Scheme. A shopping centre is listed as one of the specific uses which "…are inconsistent with the outcomes sought and are not located within the Residential Medium Density Zone, and constitute undesirable development which is unlikely to be approved" (at [15]). Therefore, the Court found that the relevant zoning did not provide support for the Proposed Development.

Court finds that the Proposed Development is consistent with community identity

The Court found that the Proposed Development would not have a significant detrimental impact upon the character or amenity of the locality or on the amenity of any existing or future residential uses or upon the streetscape (see [27] to [29]). However, this was not a significant factor to substantially weigh in favour of approval.

Court finds that there is no economic, community, or planning need for the Proposed Development 

This was a determinative issue in the appeal. The Court found that although the Proposed Development offered some potential benefit in terms of choice, competition, and convenience, an examination of the population proposed to be served and the existing facilities used by that part of the community did not fully justify the need for an additional full-line supermarket. The Court relevantly found as follows:

• The area is not one of high population growth.

• The area is not one of high growth in disposable income.

• The level of adverse economic impact from the Proposed Development on the existing centres was high, being approximately -16.5 per cent to -17.5 per cent.

The Court therefore found that the level of public or community need was relatively modest and insufficient to warrant approval in the circumstances of the case, particularly given the Proposed Development's likely impacts on other centres (at [73]).

Court finds that the Proposed Development would have an unacceptable impact on the centre network 

This was another determinative issue in the appeal. The Court stated that there is a focus in the Planning Scheme for commercial activity within Ipswich to be directed towards development of the area as a "City of Centres" (at [30]). The Court accepted that the centres network is the core around which other land uses are allocated and that the number and location of centres are critical "land use planning decisions" (at [31]). The Court also stated that the Planning Scheme contains a high level of detail with respect to centres network planning, and that there was no proposed centre designation in the vicinity of the subject land. Therefore, the Court held that the Proposed Development is inconsistent with the centres network in the Planning Scheme and is therefore an out-of-centre development (at [41]).

The likely impact of the Proposed Development on the existing centres network and its effect was described by the Court as compromising rather than within the bounds of normal competition and therefore did not fall within the bounds of acceptability. In determining this, the Court considered the impact on two existing centres in the centres network, being Raceview and Winston Glades, which the Court found to be vulnerable. The Court was satisfied that one likely consequence on both centres would be more vacancies, due to adverse impacts on tenant viability (at [111]). The Court found that the Proposed Development would have a noted impact on both centres and not just one, which reinforced the conclusion that the Proposed Development would inhibit the capacity of the existing centres to properly achieve their planned function.

Court considered other relevant matters including need for residential land and site suitability

The relevant matters considered by the Court included the need for residential land and general site suitability. The Court accepted that the Proposed Development ought not be refused on account of the loss of the land for potential residential development because the Proposed Development would not have a significantly detrimental impact on the amenity of existing or future residential development or on the character of the locality. The Court was also satisfied that the subject land was a suitable location for the Proposed Development had it had no impact on the centres network. However, these relevant matters were not of sufficient weight to overcome the non-compliances with the Planning Scheme.

Conclusion

The Court therefore dismissed the appeal and upheld the Council's decision to refuse the development application.