In brief
The case of Trinity Park Investments Pty Ltd & Anor v Cairns Regional Council [2022] QCA 261 concerned an application for leave to appeal to the Queensland Court of Appeal (Court of Appeal) against the decision of the Planning and Environment Court of Queensland (P&E Court) in the case of Trinity Park Investments Pty Ltd v Cairns Regional Council [2022] QPEC 15 to dismiss an appeal against the refusal by the Cairns Regional Council (Council) of the Applicant's development application for a development permit for a material change of use for a shopping centre in Smithfield located in the Cairns Northern Beaches (Development Application).
A summary of the P&E Court's decision is set out in our September 2022 article.
The Applicant alleged that leave to appeal to the Court of Appeal ought to be granted because the P&E Court erred in law in the following ways:
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By not considering the use that people in Kuranda make of supermarkets in the Cairns Northern Beaches and the impact of that use on the need for the proposed development (Alleged Error 1).
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By assessing the existing need for the proposed development having regard to a development permit for a Woolworths supermarket in a nearby suburb (Woolworths Approval), and not having regard to the proposed development's use being proposed to commence in 2026 (Alleged Error 2).
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By failing to consider whether compliance with the assessment benchmarks could in accordance with section 60(2)(d) of the Planning Act 2016 (Qld) (Planning Act) be achieved by the imposition of conditions limiting the time within which the use of the proposed development may commence (Alleged Error 3).
The alleged errors were under section 63(1) of the Planning and Environment Court Act 2016 (Qld) required to be on the grounds of an error or mistake in law or jurisdictional error in order for the appeal to be allowed.
The Court of Appeal observed that the process under the Planning Act for the determination of a development application involves the following two stages:
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The first stage is the assessment stage, which in this case required an assessment of the proposed development against the relevant assessment benchmarks in the CairnsPlan 2016 (version 2.1) (Planning Scheme). Alleged Error 1 and Alleged Error 2 relate to the assessment stage.
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The second stage is the decision stage, which in this case was to be under section 60(2) of the Planning Act. Alleged Error 3 relates to the decision stage.
The Court of Appeal was not satisfied that Alleged Error 1 and Alleged Error 2 were errors of law and observed that they "…have the appearance of attempts to clothe factual challenges in the cloak of an error of law" (at [16]).
The Court of Appeal was not satisfied that any of the alleged errors of law had been made out and refused to grant the Applicant leave to appeal.
Background
The proposed development comprised a full-line Coles supermarket which is code assessable under the Planning Scheme.
There are relevantly three existing full-line supermarkets in the Cairns Northern Beaches, and a fourth full-line supermarket was approved by the P&E Court in the case of Fabcot Pty Ltd v Cairns Regional Council & Ors (No. 3) [2022] QPEC 12 some 10 days before the hearing in the P&E Court in respect of the subject Development Application (at [9]).
Relevant assessment benchmarks
The following relevant provisions of the Planning Scheme provided that need is important to the assessment of the proposed development:
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Part 3.3.2.1(1) of the Strategic framework, which relevantly states that "[n]ew centres [which the proposed development would be] are only established where it is demonstrated that…there is a need for the development".
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Part 7.2.8.4 of the Smithfield local plan code (SLP Code), which relevantly states in performance outcome PO1 that "Development...services develops in line with the need of the Cairns Northern Beaches communities to 2025" and in acceptable outcome AO1.1 that "Development…demonstrates an economic and community need".
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Part 9.4.1.2 of the Centre design code (CD Code), which relevantly states that the purpose of the CD Code is to ensure centre activities and activity centres "…are developed to support community need…" that will relevantly be achieved through development that "…meet[s] an existing need identified within a local plan area" (see overall outcome (2)(a) of the CD Code).
The P&E Court held based on the interpretation and construction principles established in the case of Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) 201 LGERA 82 that the Planning Scheme placed strategic importance on demonstrated need. The Court of Appeal endorsed the P&E Court's approach (at [46]).
P&E Court's decision
In respect of the issue of the need for the proposed development, the P&E Court preferred the evidence of the Council's need expert, who opined that the relevant area to be considered in determining whether there was a need for the proposed development did not include Kuranda and that there would not be a need for the proposed development until 2031 or later.
The P&E Court relevantly dismissed the appeal against the Council's refusal of the Development Application because it was not satisfied that there was a need for the proposed development as required in the relevant assessment benchmarks in the Planning Scheme, and furthermore that conditions could not be imposed to bring the proposed development into compliance with the relevant assessment benchmarks.
Alleged Error 1 is not an error of law
The Applicant submitted that the P&E Court erred in excluding Kuranda from the assessment of need because it is outside of the Cairns local government area and the Northern Beaches community (at [23]).
The Court of Appeal held that the P&E Court's findings ought to be understood in the context of the P&E Court's discussion of the expert evidence and preference of the evidence of the Council's need expert, who had excluded Kuranda from the assessment of need because of the improbability of residents of Kuranda using a shopping centre in the Cairns Northern Beaches as a primary supermarket because there are two full-line supermarkets in Kuranda (see [27] to [31]).
The Court of Appeal held that Alleged Error 1 was an allegation of a factual error, and even if it was a legal error, it would not grant leave to appeal because the allegation lacks merit and would be without material consequence unless the Applicant was also successful in respect of Alleged Error 2 or Alleged Error 3 (at [32]).
Alleged Error 2 is not an error of law and is unmeritorious
The Court of Appeal was not satisfied that the P&E Court erred in having regard to the Woolworths Approval in assessing need because the Woolworths Approval was relevant to determining whether there is an existing need. The Court of Appeal observed that "…it must be logically relevant to consider the impact on that need of already approved developments, unless it is anticipated they will not proceed. To do otherwise would be to ignore the known impact of Council's already made decisions upon local capacity to service the known existing need" (at [42]).
The Court of Appeal held that the proposed development's expected opening date of 2026 was irrelevant in circumstances where the P&E Court found that there would not be a need for the proposed development until 2031, and that overall outcome (2)(a) of the CD Code refers to "existing need" and performance outcome PO1 in the SLP Code refers to need "to 2025" (at [35]).
The Court of Appeal held that Alleged Error 2 was a complaint of a factual nature and involved an "absurd approach" in which the P&E Court would have had to disregard the fact that another full-line supermarket would be developed in the Cairns Northern Beaches (at [44]).
Alleged Error 3 is not made out
Section 60(2)(d) of the Planning Act relevantly states for development requiring code assessment that the assessment manager, after carrying out the assessment, "may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions".
The Court of Appeal held that in some cases it will be obvious based on the factual findings and the nature of a non-compliance that compliance cannot be achieved by the imposition of a condition (at [48]).
The P&E Court in this case did not have before it a proposal of conditions that may achieve compliance with the relevant assessment benchmarks, which deprived the Council and the P&E Court of the opportunity to consider the conditions (at [50]). The Court of Appeal held that this was a matter that trends against granting leave to appeal.
The Court of Appeal also held that the Applicant's submission that a condition could be imposed to restrict the commencement of the proposed use until 2026 or until the population in the relevant catchment reaches a certain number was not a means of achieving compliance, because the P&E Court found that there was no need for the proposed development until 2031 and would be at odds with PO1 in the SLP Code which refers to need "to 2025" (at [52]).
The Court of Appeal held that the proposed conditions would not achieve compliance with the relevant assessment benchmarks as required by section 60(2) of the Planning Act, but rather a condition of the kind proposed would avoid compliance.
Conclusion
The Court of Appeal did not grant leave to appeal because Alleged Error 1 and Alleged Error 2 were complaints of a factual nature, and Alleged Error 3 had not been made out.