Australia: 44/12 Westfield Management Ltd v Moreton Bay Regional Council & Ors [2012] QPEC 51 (Searles, DCJ - 30 August 2012)

Planning and Environment case updates – August and September 2012 cases

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Whether Conflict with Planning Scheme as varied by a Preliminary Approval – Relevance of Local Area Plan – Need

Facts: This was a submitter appeal by Westfield Management Ltd (Appellant) against the decision of Moreton Bay Regional Council (Respondent) to approve, subject to conditions, an application by Horizon Property Partners (Co-respondent) for a development permit for a material change of use (commercial services, food outlet, office, shop and showroom) in accordance with a Preliminary Approval (Material Change of Use) and Development Permit (Material Change of Use) granted on 30 November 2009.

The site was located at the Corner of Anzac Avenue and Halpine Drive, Mango Hill, approximately 700m from the existing Westfield North Lakes Shopping Centre.

The proposal comprised of both retail and commercial tenancies totalling a floor area of approximately 7,683m² (excluding storage areas, plant and amenities). The proposal specifically consisted of four separate buildings on the site incorporating:

  • A full-line supermarket located within Building 1;
  • Specialty retail space and office space also within Building 1 with the supermarket, along with a plaza area, storage areas and plant room;
  • Building 2 adjoining Halpine Drive with office space at ground level and specialty retail above ground level;
  • Stand alone Building 3 at the Corner of Anzac Avenue and Halpine Drive with an outdoor seating area;
  • A fast food store with a drive through take away restaurant in Building 4;
  • On-site car parking for 412 vehicles – 257 car parking spaces at ground level, 155 car spaces and 3 motorbike car spaces at basement level beneath Building 1;
  • Covered pedestrian access from the corner of Halpine Drive and Anzac Avenue; and
  • Bus stop and shelter on Halpine Drive adjoining Building 2.

The issues in dispute were:

  1. Whether the proposal was in conflict with the planning scheme and if so, whether there were sufficient grounds to approve the proposal notwithstanding that conflict;
  2. Whether the proposal was in conflict with the Mango Hill Local Area Plan (LAP);
  3. Whether the proposal was inconsistent with the preliminary approval; and
  4. Whether there were any traffic issues which warranted refusal of the proposal.

In addition to the above there was disagreement between the parties about the importance to be attached to the LAP.

The Appellant was of the view that the LAP was an important document which should have been afforded significant weight as it represented Council's planning intentions for the site. However, the Respondent and Co-respondent argued that the LAP should not be interpreted as statute and need not be considered under s3.5.5 (Impact Assessment) of the Integrated Planning Act 1997 (IPA). The Respondent gave evidence showing the LAP was only intended as internal Council policy and provided the Court with a history of the LAP noting that the LAP was drafted to assist with planning during a time when a transitional planning scheme was in force.

Decision: The Court held, in dismissing the appeal, that:

  1. With respect to the relevance of the LAP:
    1. Whatever its status under the transitional planning scheme, the LAP was not a part of the current IPA Scheme;
    2. The LAP has never been made an IPA planning scheme policy pursuant to the procedure laid down in IPA for achieving that status and was an internal Council policy only;
    3. In any event, having regard to IPA s2.1.23(4), the content of the LAP was such that it would not qualify as a planning scheme policy in its present form because it went beyond that which was contemplated as the content of such a Scheme.
  1. There was no conflict between the proposal and the planning scheme. Unwarranted significance was accorded to the LAP by the Appellant. The scheme as varied by the Preliminary Approval clearly contemplated shops of the size proposed. The present proposal was appropriate for the site.
  2. The role and function of the Westfield North Lakes Shopping Centre was entirely different to that proposed apart from the presence of a full-line supermarket. To visit Westfield would be an excursion. To visit the proposed development would be a visit.
  3. None of the traffic issues were determinative of the appeal.
  4. No conflict arose between the proposal and the preliminary approval.
  5. In the event that conflict with the scheme did exist the relevant need had been demonstrated and sufficient grounds had been made out. PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144 applied.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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