Fabcot v Cairns Regional Council (No 2) [2021] QPEC 40 [2022] QPELR 921

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Fabcot v Cairns Regional Council (No 2) [2021] QPEC 40 PARTIES: FABCOT PTY LTD ACN 002 960 983 (Appellant) v CAIRNS REGIONAL COUNCIL (Respondent) AND DEXUS FUNDS MANAGEMENT ACN 060 920 783 (First Co-Respondent by Election) AND CAIRNS COMBINED BEACHES COMMUNITY ASSOCIATION INC (Second Co-Respondent by Election) AND INDIGENOUS BUSINESS AUSTRALIA AS TRUSTEE FOR THE IREIT SUB-TRUST (Third Co-Respondent by Election) AND TRINITY PARK INVESTMENTS PTY LTD ACN 123 732 525 ATF AND L’ARMONIA PTY LTD ACN 140 784 756 ATF (Fourth Co-Respondent by Election) FILE NO: 201, 221 and 223 of 2018 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court, Cairns DELIVERED ON: 12 August 2021 DELIVERED AT: Brisbane HEARING DATE: 14 July 2021 -- 1 of 12 -- 2 JUDGE: Everson DCJ ORDER: Leave to adduce further evidence granted, limited to the extent set out in paragraphs [22] – [25]. CATCHWORDS: PLANNING & ENVIRONMENT – APPLICATION – Application to adduce further evidence at the remitted hearing of the appeal – extent to which further evidence should be adduced LEGISLATION: Planning Act 2016 (Qld) ss 45 and 60 Planning and Environment Court Act 2016 (Qld) ss 46, 63 and 65 CASES: Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 H A Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 COUNSEL: B D Job QC and M J Batty for the Appellant R S Litster QC and L Sheptooha for the Respondent D R Gore QC and J G Lyons for the first Co-Respondent by Election G A Thompson QC and E J Morzone QC for the Fourth Co- Respondent by Election SOLICITORS: Keir Steele Waldon Lawyers for the Appellant McCullough Robertston for the Respondent Hopgood Ganim for the Frist Co-Respondent by Election Emanate Legal for the Fourth Co-Respondent by Election Introduction [1] The applications in pending proceeding before me both have their genesis in the reasons for judgment in Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17 (“the P&E Court decision”). [2] The P&E Court decision concerns three appeals relating to the decision of the respondent (“the Council”) to the issue a preliminary approval for a Shopping Centre and Health Care Services and reconfiguration of a lot into 14 lots together with a -- 2 of 12 -- 3 development permit for a Child Care Centre, Service Station, Food and Drink Outlet, operational work for an Advertising Device and reconfiguring a lot into four lots and an access easement on land situated at 171 – 173 and 175 Trinity Beach Road, Trinity Beach (“the proposed development”). [3] On 18 April 2019, the P&E Court ordered that all of the appeals be joined and that Appeal 201 of 2018 be the carriage appeal for each of them. Accordingly, in the course of this judgment, I refer to each of the parties by the designations they have in Appeal 201 of 2018. The appellant (“Fabcot”) sought a development permit for those parts of the proposed development which were the subject of a preliminary approval. The first co-respondent by election (“Dexus”) and the fourth co-respondent by election (“TPI”) seek orders that the proposed development be refused. Both Dexus and TPI have a commercial interest which may be adversely affected by the proposed development. [4] In the P&E Court decision, I allowed Appeal 201 of 2018 subject to the imposition of lawful conditions and dismissed the other appeals which sought orders that the proposed development be refused. [5] Dexus and TPI applied for leave to appeal to the Court of Appeal. In each instance the application for leave to appeal was granted and the appeal allowed. The decision of the Court of Appeal is Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95 (“the Court of Appeal decision”). Therein, the judgment of Brown J, with whom Philippides and Mullins JJA agreed, included an order remitting the appeal to the Planning and Environment Court for determination by me (“the remitter”). [6] The applications in pending proceeding before me are brought by Dexus and TPI and seek leave to adduce further evidence at the remitted hearing of the appeal. Relevant legislative considerations [7] In considering the applications before me it is important to bear in mind the legislative provisions which are particularly relevant to the conduct of the remitted hearing. The Planning and Environment Court Act 2016 (“PECA”) relevantly states: -- 3 of 12 -- 4 “63 Who may appeal (1) A party to a P&E Court proceeding may appeal a decision in the proceeding, but only on the ground of error or mistake in law or jurisdictional error. (2) However, the appeal may be made only with the leave of the Court of Appeal.” [8] While the right to appeal to the Court of Appeal is heavily constrained, the powers of the Court of Appeal are extremely broad as the PECA subsequently states: “65 Court of Appeal’s powers The Court of Appeal may do 1 or more of the following— (a) return the matter to the P&E Court to decide in accordance with the appeal decision; (b) affirm, amend, or revoke the decision appealed against and substitute another order or decision for the decision; (c) make an order it considers appropriate.” [9] It is also important to consider the jurisdiction of the Planning and Environment Court on the hearing in the remitted appeal. Section 46 of the PECA addresses the nature of an appeal and relevantly provides: “46 Nature of appeal … (2) The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if— (a) the P&E Court were the assessment manager for the development application; and (b) the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.” [10] As the proposed development was impact assessable, s 45 of the Planning Act 2016 (“PA”) relevantly provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances before me, are the relevant provisions of the respondent’s planning scheme (“CP 2016”).1 Furthermore, the assessment may be carried out having regard to 1 Planning Act 2016 (Qld) s 45(5)(a)(i). -- 4 of 12 -- 5 any other relevant matter, other than a person’s personal circumstances, financial or otherwise.2 [11] In determining an appeal about a development application, the Planning and Environment Court is conferred a wide discretion pursuant to s 60 of the PA which relevantly states: “(3) To the extent the application involves development that requires impact assessment… the assessment manager, after carrying out the assessment, must decide— (a) to approve all or part of the application; or (b) to approve all or part of the application, but impose development conditions on the approval; or (c) to refuse the application.” The Court of Appeal decision [12] Both Dexus and TPI appealed the P&E Court decision on numerous grounds. All but one were comprehensively considered and rejected by Brown J. Given a right of appeal only arose on the ground of error or mistake in law or jurisdictional error, understandably the findings of fact made in the P&E Court decision were undisturbed. In order to identify the scope of the remitter it is necessary to have regard to the relevant reasoning of Brown J. This concerns my failure to consider the question of non-compliance with the requirements of parts of the Low-medium density residential zone code (“LMDR Zone Code”) of CP 2016 which require non-residential uses to serve the local community. Relevantly, her Honour stated: “[116] However, while the meaning of “local residents” or “local community” must still be consistent with the reference to “small scale,” it is not confined to a part of a suburb or even a single suburb. The fact that a shop is “small scale” does not mean it necessarily may only serve people in a particular suburb depending upon the speciality of the shop concerned. Thus it may serve people beyond the immediate suburb in which the shop is located to an adjacent or surrounding suburb, which supports the fact that “local community” or “local residents” has a broader meaning. The reference to “small scale” development in PO4 of the LMDR Zone Code contemplates the establishing of centres within the meaning of the hierarchy and is not defined by a 250 square metre benchmark. That is consistent with PO2 in the Smithfield 2 Ibid s 45(5)(b). -- 5 of 12 -- 6 Local Plan which provides for “small-scale retail, businesses, and restaurants” to support “local communities.” [117] In the present case however the size of the proposed Fabcot development, particularly the supermarket, and its PTA extends beyond what could be regarded as serving the “local community” within the meaning of the LMDR Zone Code given the large scale of the development. That is different from what is contemplated by a Local Centre which contemplates uses which can meet the daily and weekly shopping and service needs of their surrounding local community which suggests, at least in relation to retail, something larger than small scale non-residential uses. The primary trade area identified as being served by the proposed development spans two suburbs or part thereof with an estimated population in 2022 of 13,130. There was evidence accepted by the primary judge that the Fabcot shopping centre would be centrally located to serve an estimated 8,000-10,000 people located outside a radius of three kilometres from other shopping centres. [118] The definition adopted by the primary judge adopted the area that would be primarily be met by a full line supermarket which could meet weekly shopping needs by reference to Local centres in the Strategic Framework rather than examining the scope of “local community” in the context of the LMDR Zone Code. In doing so the primary judge asked the wrong question by reference to the provision for the Local centres assuming the meaning of “local community” was the same as when it was used in the LMDR Zone Code. In doing so, his Honour adopted a meaning of “local community” consistent with meeting weekly needs of a local community rather than commensurate with “small scale” development. [119] The use of such general words such as “local residents” and “local community” made the task before his Honour a difficult one, particularly when the same phrase is used in different contexts in other provisions. While his Honour noted “local” is a flexible concept, his Honour erred insofar as his Honour acted upon the basis that the PTA defined the area which was a “local community” or “local residents,” in relation to the LMDR Zone and did not have sufficient regard to the reference to “small scale,” used in connection with catering for the needs of local residents. … [183] The primary judge’s approach as now provided for under s 45 and s 60 of the Planning Act, set out at [16]- [18] of his Honour’s reasons, was not in error. In particular, the fact that there are non-compliances with CP 2016 in relation to the proposed development does not exclude it from being a matter -- 6 of 12 -- 7 that a decision-maker may determine should be approved, notwithstanding the points of departure in the exercise of discretion. [184] However, given the finding above that his Honour erred in this consideration of the meaning of “local community” in the LMDR Zone Code, his Honour did not consider the relevant non-compliances of the assessment benchmarks in his Honour’s consideration. … [220] I would order that leave should be granted for each of the appeals. This is appropriate on the basis that the primary judge erred in law as identified above in failing to consider the question of non-compliance with the requirements of a “local community” in the LMDR Zone which may have caused his Honour’s discretion to miscarry, and the questions of law raised are of general importance. [221] I would further order that the decision be set aside and that the matter be remitted to the Planning and Environment Court to be determined according to law. The matter should be remitted to the primary judge given his Honour’s understanding of the evidence in the case. I find no good reason for a different judge to rehear the case or any good reason to make an order remitting it to a different judge as was sought by the appellants. While his Honour did make comments about TPI’s application given the context in which they arose they do not indicate that his Honour cannot hear the matter impartially.” [citations omitted] The scope of the remitted hearing [13] Relevant considerations for the conduct of a remitted hearing where the subject matter of an appeal is a question of law were canvassed by the New South Wales Court of Appeal in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority.3 In the leading judgment of Basten JA, with whom Beazley and Young JJA agreed, his Honour noted that the starting point in considering the nature of an order of remittal from the Court of Appeal “is the statutory conferral of power”,4 and that the next question which arises is “the identity of the ‘matter’ which is the subject of the remitter.”5 [14] Basten JA subsequently observed: 3 (2009) 168 LGERA 1 at 9. 4 Ibid at 10 [26] 5 Ibid [29]. -- 7 of 12 -- 8 “It is commonplace for orders of remittal to be made without indication to the court below as to how it should proceed to determine a matter, otherwise than ‘according to law’, a phrase which undoubtedly includes the conclusions of the appellate court as to the applicable law.”6 Unsurprisingly, his Honour further noted that where the terms of the order are unclear “it is appropriate to have regard to the judgment constituting the reasons for the order”.7 In the circumstances before me the identified error of law was stated by Brown J at paragraph [220] of the Court of Appeal decision to be my failure to consider the question of non-compliance with the requirements of a ‘local community’ in the LMDR Zone which may have caused my discretion to miscarry. Therefore, on 28 May 2021 I made the following order: “The determination on the rehearing of the appeal requires the re-exercise of the Court’s discretion having regard to the identified error in the construction of the identified provisions of the LMDR zone, having regard to the judgment of the Court of Appeal and the undisturbed findings of fact and law.” [15] Given that any right of appeal was restricted to, relevantly “the ground of error or mistake in law” and all of the findings of fact were undisturbed, the scope of the order set out above is, in my view, readily apparent. Concerningly, at the hearing on 14 July 2021 Mr Gore QC for Dexus stated: “I’ll be perfectly blunt, the way your Honour has framed the question begs the question, what are the undisturbed findings of fact? They are not identified in the question. They are not identified by any party. What are they? It’s a part of your Honour’s framing of the question which, with great respect, remains live for debate. It’s for debate at the remitted hearing as to which of your Honour’s findings should be regarded as disturbed or undisturbed.”8 [16] For the avoidance of any further doubt, the order dated 28 May 2021 contemplates the rehearing of the appeal being confined to the identified error in construction referred to in the passages of the judgment of Brown J quoted above and nothing else. The discretion which I must re-exercise arises pursuant to s 46 of the PECA and ss 45 and 60 of the PA. All of the findings of fact are undisturbed. Only the error of law 6 Ibid at 11 [33]. 7 Ibid at 12 [37]. 8 T1-33, ll 10-15. -- 8 of 12 -- 9 identified above is the subject of the remitter. It is not a matter for debate at the remitted hearing. The applications to adduce further evidence [17] I now turn to the applications before me which seek leave to adduce further evidence. A good starting point is the observations of Basten JA in Walker Corporation where he affirmed the approach of Briscoe J below in exercising the discretion to allow further evidence on the re-hearing of the matter following the remitter: “First, he noted that an appeal which had succeeded on a question of law should be treated as identifying the limits of the defects in the earlier judgments. He continued at [24]: On the pending remitter, the undisturbed findings stand and all that seems to be called for is a determination of the outstanding issues on the existing evidence in accordance with law – subject to the admission of any further evidence and any leave to amend, which lie in my discretion … That statement reveals no error. Secondly, his Honour identified as a constraint the public interest in the finality of litigation: at [25]. He continued: There is a book containing the undisturbed findings of the primary judge and the evidence at the earlier hearings. There is no reason why the book should be rewritten or supplemented by additional evidence unless the errors of law found on appeal require it or other circumstances make it appropriate to do so. So far as it goes, that statement is also unexceptionable: the real question was whether there were circumstances which made it appropriate to rehear evidence or to allow further evidence to be called.”9 [18] Both Dexus and TPI have placed before the court the further evidence which they intend to adduce. Essentially this evidence falls into two categories, firstly, planning evidence and secondly, evidence relevant to considerations of economic impacts and need. 9 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 at 22, [86] – [88]. Also affirmed by Young JA at 27, [117] – [118]. -- 9 of 12 -- 10 [19] TPI expressly submits that the circumstances which have changed since the hearing giving rise to the P&E Court decision which are relevant to the exercise of my discretion at the remitted hearing are: 1. the proposed major amendment package to CP 2016 known as version 3.0; 2. the progression and status of the TPI code assessable development application for a shopping centre which was lodged on 6 November 2020 (“the TPI application”); 3. population growth and projections and their impacts on the extent of the economic, community and planning need for the proposed development; and 4. whether and to what extent the trading performance and tenancy vacancy rates at Smithfield Shopping Centre have changed since the hearing. Similar submissions are made by Dexus. Furthermore, both TPI and Dexus seek leave to call further expert evidence addressing these issues and also as to the meaning of the provisions of the LDMR Zone Code in the context of the proposed development. Both Fabcot and the Council reserve the right to call evidence of their own in response. [20] To the extent factual circumstances relevant to the exercise of my discretion on the rehearing have changed, I am of the view that considerations of procedural fairness make it appropriate to allow further evidence to be called, but only to the extent it updates the evidence which has already been considered by me. In my view, there is no warrant for completely fresh evidence being given about a matter already the subject of a finding of fact, which remains unaffected by any changes in circumstances since the P&E Court decision. [21] So far as the applications to adduce further expert evidence are concerned, it is important to have regard to what the Court of Appeal said in H A Bachrach Pty Ltd v Caboolture Shire Council: “The opinion of a town planner upon a question of construction, whether that question is one of law or fact, is irrelevant. No doubt an expert may give evidence of the meaning of a technical word or phrase but that was not what was done here.”10 10 (1992) 80 LGERA 230 at 235. -- 10 of 12 -- 11 [22] As Brown J observed in the Court of Appeal decision, the words which must be construed by me at the rehearing of the appeal are “general words”.11 Accordingly, I am of the view that I would not benefit from further planning evidence or evidence from other experts concerning the meaning of the relevant words in CP 2016 which must be construed by me at the re-hearing. [23] The amendments which have been proposed to CP 2016 may give rise to an application of the Coty Principle.12 A bundle of these amendments should be prepared for tender as an exhibit together with a statement identifying their status at the time of the rehearing. So too an agreed bundle showing the current status of the TPI development application should be prepared and tendered at the remitted hearing.13 [24] In my view considerations of procedural fairness warrant any changes in demographics and economic activity in the primary and secondary trade areas identified in the P&E Court decision,14 being taken into account at the rehearing. The statement of Mr Cooper which addresses tenancy issues at Smithfield Shopping Centre can be adduced.15 Each of the parties is also given leave to adduce need evidence limited to changes in circumstances relevant to the economic, community and planning need for the proposed development from the date of the hearing of the appeals, which commenced on 16 March 2020, until the present. The need evidence which has been placed before the court in the course of the applications before me by Dexus and TPI goes well beyond this and includes opinions as to what relevant terms in the respondent’s planning scheme mean. Each party to the appeals is given leave to prepare fresh evidence from their need experts which is limited to the parameters I have set out above. [25] In the exercise of my discretion, no evidence ought to be adduced by any of the parties save for the additional evidence expressly set out above. The rehearing of the appeals is to otherwise proceed on the basis of the evidence which has already been adduced and the undisturbed findings of fact which have already been made. 11 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2021] QCA 95 at [119]. 12 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117. 13 T 1-37. 14 At [35]. 15 Exhibit FG1. -- 11 of 12 -- 12 -- 12 of 12 --