Planning and environment – appeal against approval of major commercial development including a supermarket, specialty shops and a large format hardware store.
Out of centre development – whether overwhelming need existed for development on an "out of centre" location – where proposed development a "centre" use – Whether there was genuine conflict with City Plan 2000 – In the event that there was conflict with City Plan 2000 were there sufficient grounds to approve the application despite the conflict – Substantive issues included alleged conflict with the Planning Scheme – Traffic – Storm water, flooding and drainage – Urban design and visual amenity
Integrated Planning Act 1997, s 3.5.14
Sustainable Planning Act 2009, s 819
Transport Infrastructure Act 1994, s 2
Facts: This appeal was in relation to land located at the corner of Stafford Road and South Pine Road, Everton Park in Brisbane. The site was a disused Woolworths distribution centre.
In 2008, the Planning & Environment Court gave judgment for a preliminary approval for the re-development of the subject land into the 'Everton Park Urban Village'. The Everton Park Urban Village included a supermarket, retail showroom, tavern, and almost 500 residential dwellings.
Fabcot Pty Ltd (the Co-Respondent) sought a new approval over the subject land for a supermarket and specialty retail shops, a Masters hardware store, new road (called Everton Avenue) and three future residential precincts. The development application was made pursuant to the Integrated Planning Act 1997 and was approved by Brisbane City Council (the Respondent) in August 2012.
YFG Shopping Centres Pty Ltd (the Appellant), a submitter and commercial competitor, appealed against the Respondent's approval.
The grounds of the appeal were as follows:
- Stormwater, flooding and drainage (hydraulics);
- Urban design and visual amenity;
- Alleged conflict with the planning scheme;
- Out-of-centre development; and
- Whether there were sufficient grounds to approve the development (in particular need for the Masters component of the development).
Decision: The Court held, in dismissing the appeal:
- The hydraulic issues raised by the Appellant did not warrant refusal of the development application.
- There were no visual amenity grounds for refusing the development.
- The introduction of Everton Avenue and other appropriate traffic conditions would not worsen the traffic situation and at the key intersection of Stafford Road and South Pine Road, might lead to a slight improvement. On the balance, the traffic issues associated with the proposed development would not be sufficient to warrant its refusal.
- When the planning documents were read in a common sense way having regard to their primary objectives, it could not be reasonably said that the part of the proposed development located primarily within the MP3 (Sub-Precinct 1(a) in the Local Plan) area (to be located west of the proposed Everton Avenue) created any genuine conflict with the planning scheme. If the Court was found to have erred in its view on the conflict issue, then any conflict would only be minor and the level of need for the supermarket development and absence of any negative impacts would provide sufficient grounds to justify its approval despite the conflict.
- The Masters component of the proposed development (to be located east of the proposed Everton Avenue) was in conflict with the planning scheme and was out of centre development.
- The concept of 'overwhelming community need' will vary enormously and there are an almost infinite variety of facts which could impact upon whether or not there was an overwhelming need for the proposal under consideration. To be overwhelming it required there to be an extremely large amount or proportion of need.
- The evidence established that a need did exist for the proposed development, because:
- It would add to the commercial vitality of the Everton Park commercial centre;
- There was no current demand for the development of medium density residential at the subject land to the extent anticipated by the Respondent's planning scheme; and
- While perhaps not strictly relevant to the issue of 'need' the absence of any material negative impacts on amenity was also a relevant consideration.
- On balance, there were sufficient grounds to justify the proposed development despite the conflict, because:
- there was a demonstrated overwhelming need for the proposed development;
- there would be a high level of integration with the overall commercial centre of Everton Park which would provide a strong vital community focal point for a range of retail uses;
- the proposal envisaged a not insignificant level of medium density residential development; and
- the proposal would not jeopardise the existing hierarchy of centres nor the economic viability of any existing uses.
- There were no significant adverse impacts on amenity from the proposed development.
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