32/13 Fabcot Pty Ltd v Cairns Regional Council [2013] QPEC 38

Applicant appeal against refusal of development application seeking a preliminary approval overriding the planning scheme – proposed supermarket based shopping centre on land in Residential 2 Area – whether achievement of relevant DEOs would be compromised – whether conflict otherwise with the planning scheme and / or Regional Plan – need – whether facilities could be accommodated in the designated town centre to the east – likely impact in the District Centre – likely impact on a vacant Local Centre site to the west – social impact – amenity and urban design

Integrated Planning Act 1997 (Qld), ss 1.3.1, 2.5A.10, 2.5A.20, s.5A.21, 2.5B.7, 2.5B.8, 3.1.6, 3.5.5, 3.5.5A, 3.5.14A, 3.5.32(1)(a)
Sustainable Planning Act 2009 (Qld), ss 802, 819,

Facts: This was an appeal by Fabcot, the development arm of Woolworths, against Council's refusal of its development application for a preliminary approval overriding the planning scheme for a material change of use for a supermarket based retail centre on land at the corner of Draper Road and the Bruce Highway, Gordonvale.

The proposed material change of use for which development approval was sought was for what the Appellant contended was a Local Centre. In particular, the contemplated centre was comprised of:

1. a full-line supermarket with a gross lettable area of 3206m2;
2. specialty shops with a GLA of 962m2 and a kiosk of 20m2;
3. a fast food / restaurant with a GLA of 385m2;
4. a service station; and
5. 248 carparking spaces.

The variations sought to the planning scheme were to apply the level of assessment table for the Local Centre Planning Area within the Gordonvale – Goldsborough District in substitution for the level of assessment table for the Residential 2 Planning Area with some modifications to accommodate the proposal without the need for further impact assessment.

The issues in the appeal related to need, economic impact and blight, visual amenity and urban design, traffic, acoustics, social planning, town planning and sufficiency of grounds to warrant approval. Council also relied upon alleged character, social and amenity impacts of the proposal.

It was common ground that Gordonvale needed a full-line supermarket. The central issues raised by the Third Co-Respondent by Election and Council related generally to the proposed location of such a facility and the fact that the subject site, which was otherwise planned for future residential development, lay to the west of the highway, rather than within, or adjacent to, the existing District Centre in the town centre to the east of the highway.

The Appellant acknowledged that the subject site was not planned for development of the kind proposed, that the proposed location involved conflict with the provisions of the planning scheme relating to the Residential 2 Planning Area and that the proposal would have an economic impact on some of the retail facilities in the District Centre. It submitted, however, that there were sufficient grounds to approval the proposal notwithstanding conflict, specifically that:

1. there was a strong town planning and economic need for the proposed development;
2. there would be limited impacts upon commercial competitors; and
3. overall the proposed development would provide a net benefit to the community.

In addition to the conflict acknowledged by the Appellant, Council contended that the proposal compromised the achievement of certain Desired Environmental Outcomes (DEOs) and conflicted with the Description of Intent of the Gordonvale-Goldsborough District and several codes.

The relevant planning documents considered by the Court were the Cairns Plan 2009, the Far North Queensland Regional Plan 2009 – 2031 and the draft Mount Peter Structure Plan. The subject site was in the Gordonvale-Goldsborough Planning District and the Residential 2 Planning Area under the planning scheme.

Decision: The Court held that:

1. The proposal was an inconsistent use in the level of assessment table for the Residential 2 Planning Area and was therefore in conflict with the purpose of the Code. The purpose did encourage the establishment of facilities which provided ancillary services to the local community but not on the scale proposed.
2. The proposal would have no unacceptable amenity or character impacts. It would not, in context, be bulky or visually obtrusive, it would be sufficiently accessible for the nature of the proposed development and it would not prejudice the efficient use of land or provision of infrastructure.
3. Likely commercial success did not, of itself, establish need. The issue of need must be considered objectively and reasonably.
4. The orderly provision of a convenient range of goods and services was a legitimate expectation for the residential community of the Gordonvale area. The satisfaction of that legitimate expectation in Gordonvale would reasonably involve the provision of a full-line supermarket. The subject proposal would not only provide the needed full-line supermarket but would provide greater convenience, increased competition and a higher level of choice for local residents. The need for the proposed full-line supermarket was strong.
5. The refusal of the subject application in the hope that the needed facilities (or at least the full-line supermarket) would be provided in or adjacent to the District Centre was unlikely to lead to the satisfaction of the community need in a timely way, if at all.
6. The proposal would not fragment the existing District Centre in the sense of splintering it. It would create a new additional centre separate and discrete from the identified District Centre. The extent of the impact of the proposal, while high when expressed in percentage terms, was not undue in context and was unlikely to lead to significant blight.
7. The proposal would not have an unacceptable negative social impact. It was more likely to be beneficial than harmful.
8. It was to be expected that a development of the nature of the proposal would include buildings of greater height, bulk and scale than detached dwellings. The arrangement of the built form and its proposed landscape treatment would assist in reducing the impact of the bulk and scale of the proposal. The bulk and scale of the proposal would not compromise the residential character of the broader west Gordonvale area.
9. The Appellant had discharged its onus in demonstrating that the application for the material change of use should be approved. The proposal would not compromise achievement of the DEOs and there were grounds sufficient to warrant approval notwithstanding conflict with the planning scheme.
10. The proposed variations to the planning scheme also appeared to be generally appropriate, but the parties should have the opportunity to consider whether there should be any modification to them.

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.