Planning and Environment Court of Queensland upholds decision to approve neighbourhood centre because of overwhelming need despite considerable non-compliance with the planning scheme

In brief

The case of Drivas v Brisbane City Council & Anor [2021] QPEC 68 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Brisbane City Council (Council) to approve a development application for a material change of use for a Shop (Supermarket and Liquor Store) and Office and for building work to reposition a pre-1946 building on land situated at 776, 786, 792, and 800 Ipswich Road and 10 Aubigny Street, Annerley (Land).

The issue for the Court to determine was whether there was a level of need that justified a full-line supermarket on the Land (Proposed Development) notwithstanding significant non-compliance with the Brisbane City Plan 2014 (version 17) (Planning Scheme).

The Court found approval was justified given an overwhelming need for the Proposed Development and allowed the appeal only to the extent necessary to impose revised conditions of approval to give effect to the agreed position of the parties' relevant experts.

Court found that the Proposed Development would result in considerable non-compliance with the Planning Scheme

The Land is categorised by the Planning Scheme as part of the Suburban Living Area, located within the Moorooka-Stephens Neighbourhood Plan and predominantly included within the Low-Medium Density Residential (2 or 3-storey mix) Zone. The Proposed Development is characterised as a neighbourhood centre under the Planning Scheme.

The Applicant conceded that the Proposed Development, which has a Gross Floor Area (GFA) of 3,639.8 m², does not comply with the Planning Scheme's various assessment benchmarks which seek to restrict neighbourhood centres to small-scale convenience services with a GFA of 2,500 m² or less (see Strategic Outcome SO6 and Land Use Strategies L6.1 to L6.3 of Element 5.5, Table 3.7.6.1 of the Strategic Framework). The Applicant also conceded that the Proposed Development is inconsistent with numerous provisions of the Low-Medium Density Residential Zone Code, Neighbourhood Centre Zone Code, and the Centre or Mixed Use Code, with respect to its size and scale.

The Court found that Land Use Strategy L6.3 of the Strategic Framework nonetheless offers an opportunity for providing a neighbourhood centre outside of a centre zone and although the Proposed Development's GFA greatly exceeds the limits contemplated by the Planning Scheme, this may be outweighed by an overwhelming need for the Proposed Development.

Court found that there was an overwhelming need for the Proposed Development

The Court took into account the following bases in determining the need for the Proposed Development:

1. Population basis, which involves applying the "well-established rule of thumb that there should be one full-line supermarket provided for every 8,000 – 10,000 residents within a metropolitan area" (at [36]).

2. Floor space basis, which involves applying the current rate of provision of supermarkets within metropolitan Brisbane, being 367 m² per 1,000 people (at [37]).

3. Expenditure basis, which involves allowing for the trade area of a supermarket to capture 70 per cent of the available supermarket expenditure before additional supermarket floor space is needed (at [38]).

The Court was satisfied that an analysis of need in respect of each of the above bases demonstrated that there is a very significant need for the Proposed Development, that the Land is ideally located to meet this need, and that there is no other land nearby which is capable of meeting this need at present.

The Court accepted that in circumstances where customers now shop several times a week and seek a greater range of choice in respect of products, the Proposed Development will serve local residents' day-to-day and local convenience needs despite its size and extent of stock.

The Court also found that the evidence did not demonstrate that the viability of existing centres within the catchment would be compromised by an approval of the Proposed Development.

Conclusion

The Court allowed the appeal only to the extent that revised conditions of approval could be imposed to give effect to the agreed position of the parties' noise and traffic experts.