Australia: Court upholds the decision of the Council to refuse a commercial centre on the basis of conflicts with the centre hierarchy and zoning of the planning scheme

Last Updated: 1 June 2018
Article by Ian Wright and Nadia Czachor

In brief

The case of Hawkhaven Pty Ltd v Mackay Regional Council & Anor [2017] QPEC 40 concerned a Planning and Environment Court appeal against the Council's decision to refuse a development application for a development permit for material change of use for a commercial premises, shop, catering shop, healthcare centre and indoor entertainment at Blacks Beach, Mackay.

There were three matters for the Court to determine. The first matter was whether the proposed development conflicted with the Planning Scheme for the City of Mackay 2006, being the then Current Scheme. The second matter was whether the proposed development conflicted with the Draft Mackay Region Planning Scheme, being the Draft Scheme. The third matter was, in the event of a conflict, whether there were sufficient grounds to justify approval notwithstanding the conflict.

Before it could determine these matters, the Court was required to establish the weight to be given to the Draft Mackay Region Planning Scheme and applied the principle established in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117. The Court found that the Draft Mackay Region Planning Scheme should be given considerable weight in the assessment of the proposed development because it identified the most recent planning intent for the local government area and had progressed to the public notification stage.

The Court then dealt with and divided the three matters for determination into the three discrete areas of evidence as submitted by the parties namely, town planning, amenity and need.

In its consideration of the town planning evidence, the Court addressed the out of centre development and zoning issues and found that the proposed development raised conflict in a town planning sense with both the Planning Scheme for the City of Mackay 2006 and the Draft Mackay Region Planning Scheme. Further, the Court found that an approval of the proposed development, in its current form, would cut across the clear planning intent of both the Planning Scheme for the City of Mackay 2006 and the Draft Mackay Region Planning Scheme.

As there was no evidence submitted by the Council or the Co-Respondent by Election in respect of acoustic amenity, the Court could only consider the evidence submitted by the Appellant. Further, the co-respondent by election submitted that issues pertaining to visual amenity, odour and light amenity in conjunction with community expectations were also relevant to the Court's findings. Accordingly, the Court found that the Appellant had not demonstrated that the proposed development would satisfactorily protect the amenity of the surrounding area as envisaged by the Planning Scheme for the City of Mackay 2006 and the Draft Mackay Region Planning Scheme.

In respect of need, the Council submitted that the Appellant had not demonstrated that there was a need for the proposed development, to which the Appellant responded that the Court would be satisfied there was an existing, urgent need for additional convenience retailing and services in the Black Beach area. Conversely, the Co-Respondent by Election submitted that any commercial need for such a development would be satisfied by its 2011 approval for a local shopping centre or by other vacant commercial sites in the area.

After considering the evidence submitted by the parties in respect of town planning, amenity and need, the Court found that the proposed development seriously conflicted with the Planning Scheme for the City of Mackay 2006 and the Draft Mackay Region Planning Scheme and that the nature of the conflict went to the heart of each scheme and were "planning scheme wide". In dismissing the appeal, the Court held that the grounds submitted by the Appellant were insufficient to overcome the established significant conflicts.

Proposed development conflicted with the centres hierarchy and zoning, cutting across the clear planning intent of both planning schemes

The Court did not accept the Appellant's primary position that the proposed development was located within a local centre under the Planning Scheme for the City of Mackay 2006 and the Draft Mackay Region Planning Scheme . Instead, the Court found in favour of the Council and agreed that the proposed development conflicted with the centres hierarchies envisaged under the Planning Scheme for the City of Mackay 2006 and the Draft Mackay Region Planning Scheme. In respect of both schemes, the proposed development was not located in a designated local centre and did not fall within the limited exceptions of permissible out of centre development, being small scale, locational specific uses where there is a demonstrated need for such development.

The Council submitted that the proposed development conflicted with the zoning under the Planning Scheme for the City of Mackay 2006. The planning intent of the Urban Residential Zone was clear, being land to be developed for residential, rather than commercial purposes. Further, the Council submitted that the planning intent for the Medium Density Residential Zone under the Draft Mackay Region Planning Scheme continued that of the Urban Residential Zone under the Planning Scheme for the City of Mackay 2006, in that the land was to be primarily used for residential purposes.

In dismissing the Appellant's evidence to the contrary, the Court found that the proposed development conflicted with the centres hierarchy and zoning under both the Planning Scheme for the City of Mackay 2006 and the Draft Mackay Region Planning Scheme. The Court concluded that, in its current form, the proposed development would cut across the clear planning intent of both planning schemes.

In the absence of probative evidence before the Court, the Court was not satisfied that the Appellant had demonstrated the proposed development would appropriately protect the amenity of the surrounding area

In respect of acoustic amenity, the Appellant submitted that the proposed development could "readily co-exist with surrounding residential development on the basis of suitable noise amenity controls and reasonable and relevant development control conditions". However, although the Appellant was the only party to submit evidence addressing the acoustic amenity, the Council submitted that this evidence was insufficient to discharge the onus of establishing that the appeal should be upheld. This was especially so considering the evidence submitted by the Appellant was based largely, if not wholly, on previous assessments and investigations undertaken for a previous development application.

The Court found that the proposed development would undoubtedly create an impact on the acoustic amenity of the surrounding area, with the evidence submitted by the Appellant insufficient to satisfy the Court that the proposed development would not cut across the relevant provisions of the Planning Scheme for the City of Mackay 2006 and the Draft Mackay Region Planning Scheme which seek to protect amenity.

The Co-Respondent by Election submitted that visual amenity, odour and light amenity were also relevant considerations for the Court to determine whether acceptable measures could be implemented to integrate and protect the high level of character and amenity of the residential area in which the site was located. Conversely, the Appellant submitted that the odour and light amenity issues could be dealt with by way of conditions.

The Court agreed with the Co-Respondent by Election and found that there was no probative evidence before the Court dealing with how such matters might in fact be conditioned. Further, the Court found that there was insufficient evidence for the Court to conclude that amenity had been appropriately considered so as to be satisfied that the proposed development did not cut across the relevant provisions of the Planning Scheme for the City of Mackay 2006 and the Draft Mackay Region Planning Scheme seeking to protect amenity.

Court found that additional need for retail facilities could be satisfied by the existing and proposed infrastructure

In respect of need, the Council submitted that the absence of demonstrated need for the proposed development was supported by a decline in Mackay's economy since the downturn of mining in 2013. The Appellant submitted a more optimistic view that although the decline had "dampened market confidence" it had "not extinguished it". The Court found that the state of the economy was important to the context in which to assess whether there was a demonstrated need for the proposed development.

The Council and the Co-Respondent by Election submitted that the Appellant had not demonstrated that there was a need for the proposed development and that an approval of the proposed development would prejudice the implementation of the Co-Respondent by Election's current approval. The Appellant submitted that this was an irrelevant consideration, however the Court found that it was relevant, when determining if a proposed development should be approved, to consider whether an existing approval would be prejudiced by a subsequent proposal.

The Court also considered the vacancy rate of nearby centres as further demonstrating the lack of economic need with the Council submitting that any need that did exist could be easily met by vacant tenancies at those nearby centres.

The Court was unconvinced by the Appellant's submission that "things will turn around" and found that, combined with the Co-Respondent by Election's current approval, there was no economic need demonstrated for the proposed development. The Court found that additional need for retail facilities could be satisfied by the existing and proposed infrastructure.

In dismissing the appeal, the Court held that there were insufficient grounds to overcome the established significant conflicts with the planning schemes

The Court repeated its earlier findings with respect to town planning and amenity and stated that the proposed development materially conflicted with both the Planning Scheme for the City of Mackay 2006 and the Draft Mackay Region Planning Scheme, cutting across the clear planning intent for the site. To approve the proposed development would be inconsistent with the planning strategy envisaged by the Council for the local government area in both planning schemes.

The Court found that the proposed development seriously conflicted with the Planning Scheme for the City of Mackay 2006 and the Draft Mackay Region Planning Scheme with the nature of the conflict going to the heart of each scheme and the extent of the conflict being "planning scheme wide".

The Court went on to determine whether there were sufficient grounds to approve the proposed development despite the conflict. The Appellant submitted that there was a need for the proposed development, that the site was appropriate for the proposed development and that the proposed development was appropriately located and would promote transport network efficiency.

In dismissing the appeal, the Court considered the grounds submitted by the Appellant to be insufficient to overcome the real and material conflict so as to justify the approval of the proposed development. In considering the first two grounds, the Court had already determined there was no economic need for the proposed development and the Court accepted the Council's submission that the second ground was not a proper ground within the meaning of schedule 3 of the Sustainable Planning Act 2009. In respect of the final ground, the Court accepted the Council's submission that such a ground was not adequately addressed during the hearing as the Appellant had not submitted probative evidence about the existing deficiencies in the transport network which could be improved by the proposed development.

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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