Australia: 21/13 Mackay Shopping Centre Pty Ltd v Mackay Regional Council & Other [2013] QPEC 29: development application

Planning and environment case updates

(Robin QC DCJ - 27 June 2013)

Submitter appeal by commercial rival against approval of a new shopping centre – site zoned Higher Density Residential – planning scheme had a hierarchy of centres and disfavoured commercial development outside them – whether proposal compromised achievement of DEOs for Economic Development and Amenity and Community Well-Being – whether grounds existed sufficient to overcome conflict with planning scheme – whether scheme overtaken by events – whether changes to vehicle access to the new centres were only minor change – whether very high impact on trading of the nearby designated centre acceptable – alleged conflict with Regional Plan

Sustainable Planning Act 2009 (Qld), s 350

Integrated Planning Act 1997 (Qld), ss 2.1.23(2), 3.5.6, 3.5.14(2), 4.1.52

Facts: This was a submitter appeal by the developer of a small shopping centre in Mackay, which was still under construction, against Council's approval of a larger shopping centre in Mackay. The development application in issue was for a shopping centre which would include a Coles supermarket and a range of complementary specialty retailers.

The site was located within the Higher Density Residential Zone. Under the relevant planning scheme, a network of centres was also established and maintained under the Desired Environmental Outcomes (DEOs) according to a hierarchical arrangement of roles and functions to meet the needs of the population. The planning scheme disfavoured development outside the hierarchy of centres.

The issues for the Court to resolve were:

  1. Whether the Co-Respondent's change of proposal to comply with the recommendations of the expert traffic engineers represented a "minor change";
  2. Whether a decision to approve the development would compromise the achievement of the DEOs set out in the planning scheme; and
  3. If the development did not compromise, but instead conflicted with the planning scheme, whether sufficient grounds existed to overcome the conflict.

The (repealed) Integrated Planning Act 1997 (Qld) (IPA) was in force at the time the development application was lodged.

The Appellant relied on s 350(1)(d) of the Sustainable Planning Act 2009 (SPA) that provided that a change was minor if it did not result in a "substantially different development". The Appellant also sought to rely on Statutory Guideline 06/09 in submitting that the proposed change would significantly alter the distribution of traffic movements and introduce new impacts.

The Appellant submitted that the DEOs called for a centres hierarchy but that no provision was made to include the current site. It submitted that the proposal compromised the achievement of two DEO provisions (Economic Development and Amenity and Community Well-Being) and conflicted with the planning scheme so far as the DEOs were part of it. The Appellant also argued that the DEOs encouraged the land to be developed for residential use, rather than retail use.

Pursuant to s 3.5.14(2) of the IPA, if the Appellant's submissions were accepted and the Court considered that the proposal compromised the DEOs (as opposed to conflicted with the DEOs and planning scheme) the development application had to be refused regardless of the grounds that existed for approving.

The Appellant also alleged impacts of the proposal which went against approval. These included traffic and parking matters, acoustic concerns, general amenity concerns and impact on viability of designated centres.

Decision: The Court held, in approving the proposal as now changed, that:

  1. There was no substantially different development involved in the proposed change. The change was considered a minor change.
  2. It was difficult for development proposals to establish compromise. DEOs operated on a city-or shire-wide basis, so their achievement was unlikely to be compromised by any particular development.
  3. The evidence did not suggest that the proposal would result in the reduced provision of affordable housing in Mackay or any loss of land within the site that might be turned to residential use.
  4. The statements in the planning scheme against commercial development outside designated centres, did not suffice to preclude such development.
  5. The Council's persistence in advocating strongly for the proposal in the appeal was a factor the court was entitled to take some notice of, as might strong Council opposition. A developer with Council support would usually be in a better position.
  6. The Regional Plan left it to Council, in their planning authority role, to provide for appropriate hierarchies of centres and, in its assessment manager role, to consider the strength of grounds to support out-of-centre commercial development which necessarily conflicts with planning scheme provisions discouraging it.
  7. The proposal presented a clear conflict with the planning scheme. The planning scheme wanted to see higher density residential development. More significantly, the planning scheme did not want to see commercial development in the area in issue. There was also a centres hierarchy which the planning scheme did not want departed from.
  8. The proposal had no negative impacts, which was now recognised as relevant to establishing grounds. However, a lack of negative impacts would not suffice on its own. There must be shown some positive ground of public interest which otherwise benign impacts might serve to augment or reinforce.

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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