Bird v Logan City Council & Ors [2011] QPEC 145 [2012] QPELR 502

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bird v Logan City Council & Ors [2011] QPEC 145 PARTIES: GJ & PK BIRD (Appellants) v LOGAN CITY COUNCIL (Respondent) And STOCKLAND DEVELOPMENT PTY LIMITED (ACN 000 064 835) (Co-Respondent) And CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS (Co-Respondent by Election) FILE NO/S: 3197/2010 DIVISION: Appellate PROCEEDING: Submitter appeal against development approval ORIGINATING COURT: Brisbane DELIVERED ON: 16 December 2011 DELIVERED AT: Brisbane HEARING DATE: 29 August 2011 - 2 September 2011, 3 October 2011 - 7 October 2011 and 31 October 2011 - 2 November 2011 JUDGE: Robin QC DCJ ORDER: Appeal dismissed subject to appropriate adjustments of the proposal CATCHWORDS: Integrated Planning Act 1997 s 3.2.1(7)(f), s 3.2.1.(10)(b), s 3.3.16(1)(b), s 3.5.5(20(c), s 3.5.14(2), s 4.1.52(1) South East Queensland Regional Plan 2009-2031 South East Queensland Regional Plan 2005-2026 and Amendment 1 (October 2006) Submitter Appeal against approval of shopping centre -- 1 of 47 -- 2 including a ―discount department store‖ – whether South East Queensland Regional Plan (SEQRP) established an hierarchy of centres that precluded approval – inconsistent development in (the relevant) mixed use precinct – proposal would double commercial GFA in Jimboomba which already exceeded planning scheme cap and offended centres hierarchy to extent that Beaudesert‘s primacy in retail was jeopardized – Beaudesert Shire Planning Scheme remained in effect for Jimboomba notwithstanding assignment of the town area to Logan City Council – relevance of Draft Jimboomba Local Plan prepared on assumption proposal had been approved – economic experts unanimous regarding need for the proposal but in disagreement as to whether such facility should be in Jimboomba or await population growth in the surrounding designated centres sufficient to support it – whether a Jimboomba facility should be located on the developer‘s preferred site (separated from existing development by a school) or on the site of its existing shopping centre - established community and planning need overcame conflict with planning scheme – effect of conflict (none being found) with SEQRP considered - whether scale and presentation of proposal consistent with Jimboomba‘s existing/intended character - fragmentation of town‘s commercial area. COUNSEL: Mr D. R. Gore and Mr B. Job for the Appellants Mr G. Gibson and Mr N. Loos for the Respondent Mr C. L. Hughes, Mr M. A. Williamson and Mr J. G. Lyons for the Co-Respondent Mr M. D. Hinson and Ms J. S. Brien for the Co-Respondent- by-Election SOLICITORS: McCullough Robertson for the Appellants Corrs Chambers Westgarth for the Respondent Connor O‘Meara for the Co-Respondent HopgoodGanim for the Co-Respondent-by-Election [1] The issue in this appeal comes down to whether, on the assumption that there is a planning need that ought to be satisfied for a Discount Department Store (DDS) in Jimboomba, it should be provided in the developer‘s existing shopping centre on the northern side of Cusack Lane as contended by the appellants, who have land on the southern side where a child care centre operates – or, in accordance with the co- respondent developer‘s proposal, which won Council approval, on its other site further north in the same town ―block‖. The block is completed by (and both sites have frontages to) the Mt Lindesay Highway (Brisbane Street) in the east and Johanna Street in the west. These thoroughfares intersect, because the latter curves to the east at the northern end. The sites are both identified as ―the land‖ in the development application. The idea is to present as a package refurbishment and a certain amount of alteration of the existing shopping centre, in ways said to improve Cusack Lane‘s performance as a ―Main Street‖ for Jimboomba and the establishment of a new shopping facility similar in extent to accommodate not only the DDS and a range of food and speciality shops (including ―mini-majors‖) but also a slightly expanded area for the Woolworths supermarket, which is proposed to -- 2 of 47 -- 3 relocate from the existing shopping centre. One future use indicated for the space to be vacated is gymnasium, another a liquor store or barn; a number of new restaurants are envisaged. [2] If new land is needed at all, the proposal for the northern site (described as site 1) gives rise to some serious issues. It does not represent growth of the existing shopping centre (―site 2‖) or of the existing retail facilities of Jimboomba (Cusack Lane runs through the middle of them) by expansion at the edges, being remote from those facilities. It is separated by Jimboomba State Primary School, which has around 1,000 students and in the west also by the library and government services such as police and ambulance which are separated from site 2 by Honora Street, a ―dead end‖ which opens only to Johanna Street. That area of the school was seen as a significant one, not because of the impacts of commercial development on the school, but because of the school‘s effect of disrupting the cohesion of the shopping areas. Thus there is an issue of fragmentation of the Jimboomba Town Centre. [3] The proposal for site 1 is not consistent with its zoning arrangements under the Beaudesert Shire Planning Scheme which commenced in March 2007;1 it does not fall within the Town Centre Core Precinct, where commercial development is at present, but (along with the school) in the Mixed Use Precinct, where lower order commercial development is envisaged. Conflict with the planning scheme is admitted, hence the focus in the appeal on whether there is a planning need for the proposal justifying its approval. The development application was made, and it is be assessed under the Integrated Planning Act 1997 (IPA). [4] Further, the proposal allegedly cuts across the vision of the South East Queensland Regional Plan 2009-2031 (SEQRP), which wants to see Flagstone (extending to about 10 kms to the north-west) and Yarrabilba (extending to about 10 kms to the east) as Major Regional Activity Centres, along with Logan Central, Browns Plains and Logan Hyperdrome, and to see Jimboomba, apparently lower in the hierarchy, ―retain its role as a major rural activity centre, providing district level services to surrounding rural residential development‖. The argument is that if the proposal goes ahead Yarrabilba (where to date there is little development) and Flagstone (which had been seen in the 1985 Town Planning Scheme for the whole of the Shire of Beaudesert as potentially ―a substantially larger urban centre than the other centres‖ (4.5.1 Urban Residential Intent) will have to wait. Presently, on the economic experts‘ figures, Jimboomba has twice Yarrabilba‘s population, three times Flagstone‘s (which it is thought will ultimately be the biggest). [5] Other issues concern the visual impact and compatibility of the proposal (and whether enough is known about that to permit judgments to be made). Planning Scheme Provisions [6] Although Jimboomba is now part of Logan City, the only planning scheme which regulates development there is the Beaudesert Shire Planning Scheme which commenced on 30 March 2007,2 in particular in provisions for the Mt Lindesay 1 See [70] below 2 The appellant‘s written submissions, at paragraphs 184 ff show that Jimboomba was a ―transferring area‖ as defined in s 159YD of the Local Government Act 1993 excluded from Beaudesert Shire and included in Logan City with effect from 15 March 2008 under s 159YI(1). Section 42(1) in Part 3 of the Local Government Reform Implementation (Transferring Areas) Regulation 2007 (inserted 2008) -- 3 of 47 -- 4 Corridor Zone whose boundaries are shown in the map exhibit 26. Land in the zone is allocated to precincts, potentially 15: ―Town Centre Core Frame Mixed Use Minor Convenience Centre Industry Residential Park Living Rural Residential Emerging Community Future Investigation Conservation Countryside Active Recreation Passive Recreation Community Facilities‖ [7] Other townships in the Zone are Logan Village, Flagstone and Greenbank. A future one will be Yarrabilba. Intent Statements for relevant precincts are: ―OO47 Development within the Town Centre Core Precinct has a retail and commercial office character at ground floor level and a commercial office character above ground floor level. The Precinct serves the prime retailing and entertainment function by providing for the convenience needs of localised catchments through ready access to comparison retail, speciality shopping, lower order professional offices and businesses and financial or personal services within a compact, centralised location. OO48 Development within the Frame Precinct has a commercial character. The Precinct provides a supporting role to the Town Centre Core Precinct in that it accommodates a range of uses supplying non-convenience goods, commercial uses and business activities that would not traditionally locate within primary Town Centre locations. It does not contain high turnover retail activities. OO49 Development within the Mixed Use Precinct has a commercial office character on larger lots and is transitional in nature. It offers access primarily to lower order professional offices and businesses including a range of low-impact retail showroom-type activities and some low-impact industrial activities. At Logan Village, the Mixed Use Precinct provides for limited additional residential activity. OO50 Development within the Minor Convenience Precinct has a retail and commercial office character generally within single storey buildings and is typified by a limited range of small-scale convenience or speciality shopping activities of a local order provides that the planning scheme for a transferring area continues, binding the receiving local government until a new planning scheme for it is approved under relevant legislation. -- 4 of 47 -- 5 centre. The Precinct includes a limited number of specialised lower order professional offices and businesses. OO51 Development within the Industry Precinct has a predominantly industrial character. The Precinct provides for a mix of compatible business and industry activities, including commercial, service and trade activities and appropriate low- impact manufacturing activities that support and are within close proximity to the Town Centre Core, Frame, Mixed Use and Minor Convenience Precincts.‖ [8] Earlier in the planning scheme desired overall outcomes for the Zone are set out, including: ―Community Identity, Urban Design and Principles and Image OO10 Development provides for the establishment, conservation and enhancement of local character and the promotion of a distinctive local identity and sense of place. OO11 Development in the Town Centre Core Precinct, Frame Precinct and the Mixed use Precinct is located, designed and managed so as to - (a) maintain connectivity and provide a high level of integration and legibility between uses; and (b) provide a high level of amenity and contribute positively to landscaping, streetscape and existing built form; and (c) provide for a rationalisation of vehicular and pedestrian access; and (d) provide appropriate parking, manoeuvring and access areas. OO12 Development within the Town Centre Core Precinct, Frame precinct and Mixed Use Precinct is generally consistent with the existing scale[,] form, intensity and character of development. Community Services OO13 Development supports a range of community services commensurate with the size and density of the individual community in which the development is proposed. OO14 Development for community services is located to provide the most effective and efficient delivery of those services. OO15 Development contributes to the collective provision of appropriate community facilities serving the needs of residents. Economic Development OO22 Development provides for the enhancement of employment and investment opportunities through improved integration of -- 5 of 47 -- 6 residential and business activities, whilst maintaining residential amenity. OO23 Development involving retail uses, retail-bulky goods and office/professional uses may be supported, where the total gross floor area/(existing and proposed) for each locality does not exceed - (a) 6,000m2 at Logan Village for development at Logan Village; and (b) 14,000m2 at Jimboomba for development at Jimboomba; and (c) 10,500m2 at Greenbank for development at Greenbank; and (d) 6,700m2 at Flagstone for development at Flagstone; and (e) 500m2 in the Minor Convenience Centre for development at a Minor Convenience Centre. OO24 Development for the extension of centres beyond the designated total gross floor area limits, does not occur until further planning studies are completed to determine the appropriateness of such expansions. Growth Management OO62 Development in respect of land in the Mt Lindesay Corridor Zone identified in the Urban Footprint of the South East Queensland Regional Plan is to comply with the South East Queensland Regional Plan which provides that - (a) the land is not necessarily suitable for urban development; and (b) the land suitable for urban development is to be identified through structure planning and associated Planning Scheme amendments or, where otherwise provided for, through consideration of constraints affecting the land; and (c) the timing and sequencing of development shall be determined through structure planning and the local growth management strategy; and (d) structure planning is to be undertaken for all Major Development Areas identified in Schedule 6 prior to development unless the development would not compromise the future use and planning of the Major Development Area. Intensity of Development -- 6 of 47 -- 7 OO63 Development is at a scale, form and intensity which is intended for development in the Zone and is consistent with the reasonable expectations of residents of the Zone.‖ Schedule 6 names and maps: ―Bromelton Flagstone Greenbank Central Yarrabilba Beaudesert – north Beaudesert – south Beaudesert – central; and Canungra‖ [9] Jimboomba is conspicuous by its absence, which may be seen as a curiosity. It features in all of the many maps included in the SEQRP which extend to cover its location as part of the urban footprint situated on a ―major road‖ (Mt Lindesay Highway) with the sole exception of the map of koala areas. Flagstone and Yarrabilba are named mainly in the Activity Centres Network Map. No expectation that or reason why Jimboomba will or ought not to experience development is mentioned anywhere in the SEQRP or the Planning Scheme, although the latter evinces an intention (after the horse has bolted, in the sense that the cap had been surpassed by March 2007) to restrict commercial/office development there. One would assume that the notion of securing the pre-eminence of Beaudesert as the Shire ―capital‖ was important in the drafting of the Planning Scheme. Indeed, under Vision and Strategic Issues and 2.2.5 Broad Strategies for the Shire, the pattern of townships is said to be: ―(a) Beaudesert, which is the principal rural centre of the Shire; and (b) Logan Village, Jimboomba, Canungra and Greenbank which provide local business, retail, industrial and community activity; and (c) Other smaller villages, which provide local convenience services … .‖ Under 2.2.6 Local Strategies for the Mt Lindesay Corridor Zone, one finds: ―(1) The townships of Logan Village, Jimboomba and Greenbank incorporate commercial, retail and low impact industrial components as appropriate in the local catchment area of each township. (2) The townships of Logan Village and Jimboomba provide the predominant location for new urban development (including secondary dwellings, small-scale medium density developments and aged persons accommodation) in the Shire within the life of the Planning Scheme. (3) Community facilities are contained within the townships of Logan Village, Jimboomba and Greenbank.‖ -- 7 of 47 -- 8 2.2.10 Local Strategies for the Beaudesert and Canungra Townships Zone stipulates that: ―(1) Beaudesert functions as the principal administrative centre for the Local Government Area and provides a range of retail, commercial and industrial services whilst maintaining a rural vintage town character. (2) Development is appropriately located in the Beaudesert and Canungra Townships Zone to ensure appropriate access to infrastructure … .‖ There are in 3.2.11 specific outcomes and prescribed solutions for the Mt Lindesay Corridor Zone which include the following: “Column 1 Specific Outcomes Column 2 Acceptable Solutions – If Self- assessable Probable Solutions – If Code- assessable SO1 Development is limited to development which is ‗Consistent Development‘ as identified in Table 3.2.7 Consistent Development in the Mt Lindesay Corridor Zone. Community Identity, Urban Design Principles and Image SO7 Development for non-residential purposes within the Town Centre Core Precinct, Frame Precinct and Mixed Use Precinct is consistent with existing and intended scale and built form by providing that development – (a) is of a scale and form which is compatible with existing and planned buildings or structures having regard to - … (c) has an attractive and functional appearance; and (d) is orientated toward the road network; and (e) contributes positively to streetscape and built form; and -- 8 of 47 -- 9 (f) is integrated with existing buildings; and (g) provides a cohesive built form. SO8 Development is designed to provide for social interaction Economic Development SO19 Development provides a range of employment opportunities for residents within the Zone. … SO21 Development for non-residential purposes within the Town Centre Core Precinct, Frame Precinct, Mixed Use Precinct, Minor Convenience Precinct and Industry Precinct provides a benefit to and satisfies both a community need and an economic need of the residents of the Zone.‖ In my view the references to the ―Zone‖ in SO19 and SO21 are deliberate and important and should not be read down (as the appellants contended) to be taken to refer to some more confined area such as the precincts referred to or the town of Jimboomba. [10] The ―specific outcomes‖ for the Town Centre Core Precinct, appropriate to set out in full for their relevance to the site 2 aspects of the proposal being located there (no acceptable or possible solutions appear except for SO8), are: ―SO1 Development exhibits a retail and commercial office character when occurring at ground floor level and a commercial office character when occurring above ground floor level and, within a compact, centralised location – (a) provides for the convenience shopping needs of localised catchments; and (b) provides access to - (i) comparison shopping; and (ii) speciality shopping; and (iii) higher order professional offices and business; and (iv) financial or personal services. SO2 Development operates in conjunction with other nearby community service functions such as schools, meeting places and the like. -- 9 of 47 -- 10 SO3 Development within the Town Core Precinct at Jimboomba is comprised predominantly of – (a) a Shop; or (b) Commercial activity; or (c) a Convenience Restaurant; and a Food Establishment/Reception Centre; or (d) a Shopping Centre. SO4 Development for all Commercial and Retail, Bulky Goods and Office/Professional Uses within – (a) the Town Centre Core Precinct, Frame Precinct and Mixed Use Precinct at Jimboomba shall not exceed a total maximum GFA of 14,000m2. (b) the Town Centre Core Precinct, Frame Precinct and Mixed Use Precinct at Logan Village shall not exceed a total maximum GFA of 6,000m2. (c) the Town Centre Core Precinct at Greenbank shall not exceed a total maximum GFA of 6,700m2. SO5 Development – (a) protects and enhances the role of the Precinct as a local retail centre which functions as a retail and commercial office node; and (b) functions in an integrated manner alongside existing commercial and retail activity by providing integrated parking areas, access areas, built form, landscaping and advertising devices; and (c) protects existing and intended amenity; and (d) has a high level of accessibility to the local road network; and (e) provides a high level of amenity in relation to built form, landscaping, streetscape and advertising devices. SO6 Development is designed to provide for social interaction. SO7 Development for non-residential urban type uses within the Town Centre Core Precinct provides a benefit to and satisfies both a community need and an economic need of the residents of the Zone. SO8 Development being Building Work and Engineering Work does not – -- 10 of 47 -- 11 (a) interfere with or adversely impact upon any existing or planned infrastructure; and (b) place an adverse loading on any existing or planned infrastructure. SO9 Development within the Town Centre Core Precinct at Jimboomba makes provision for public transport services which – (a) service the development; and (b) integrate with existing public transport services; and c) protect and enhance the safe, efficient and legible operation of public transport services.‖ [11] For the Mixed Use Precinct, where site 1 is, the specific outcomes begin with: ―SO1 Development exhibits a commercial office character on larger lots, is transitional and – (a) at Jimboomba, provides for access primarily to lower order professional offices and businesses including a range of low- impact retail showroom type activities and some low-impact industrial activities; and …‖ SO2 replicates SO2 above, and SO3 replicates SO4 above (omitting reference to Greenbank); SO4 replicates SO5 above and SO5, referring to development generally and with the precinct name changed, SO7 above. SO6 replicates SO8 above and SO7, again with a name change, SO9. [12] For completeness, the specific outcomes for the Frame Precinct (which includes the appellants‘ childcare centre adjacent to the Town Centre Core land south of Cusack Lane immediately to the east and a triangular ―mirror image‖ of that land across the railway reserve) replicate in SO2, SO4 and SO5 the similarly named ones for Town Centre Core and in effect SO7 (deleting ―non-residential‖), SO8 and SO9 there as well; there are the following particular Frame Precinct provisions: ―SO1 Development exhibits a predominately commercial character with limited business and retail activity and – (a) provides for limited additional convenience retail needs; and (b) provides access to - (i) a limited range of additional comparison retail activity; and speciality retailing; and (ii) higher order professional offices and business; and (iii) financial or personal services. -- 11 of 47 -- 12 SO3 Development within the Frame Precinct at Jimboomba is comprised predominantly of – (a) Commercial activity; or (b) a Retail Showroom; or (c) a Child Care facility; or (d) a Community Care Centre; or (e) Indoor Sports, Recreation and Entertainment; or (f) A Convenience Restaurant; or a Food Establishment /Reception Centre.‖ [13] The extent of assimilation or aggregation of the three precincts (especially for development for commercial and retail, bulky goods and office/professional) is noteworthy, and suggests that the distinctions may be of reduced importance given the precincts are contiguous within a relatively confined geographical area. However, the ―social interaction‖ outcome (SO6) for the Town Centre Core is distinctive, indeed is pointed to as a virtue that will be achieved in the site 2 proposal. The proposition regarding the three precincts being considered as a combination is underlined by Overall Outcomes 11 and 12 set out above. [14] A general approach of seeing precincts as merging with adjoining or nearby ones is discernible in some of the Industrial Precinct SOs: ―SO1 Development exhibits a predominantly industrial character and provides for a mix of compatible business and industry activities including – (a) commercial and service and trade activities; and (b) appropriate low-impact manufacturing activities that support and are within close proximity to - (iii) the Town Centre Core Precinct; and (iv) Frame Precinct; and (v) Mixed Use Precinct; and (vi) Minor Convenience Precinct. SO2 Development within the Industry Precinct is comprised predominantly of – (a) Industry – General; or (b) Industry – Low Impact/service; or (c) Commercial activity; or -- 12 of 47 -- 13 (d) a Retail Showroom; or (e) Warehouse/Storage Facility.‖ SO7 comes with one solution: ―SO7 Development providing limited retailing activities does not compromise the role of the Town Centre Core Precinct, Frame Project, Mixed Use Precinct or Minor Convenience Precinct. S7.1 Development ensures that the retailing of goods is generally limited to goods manufactured on site.‖ The familiar public transport, etcetera outcomes are there too. The draft Jimboomba Local Plan [15] The respondent Council inherited Jimboomba from the Beaudesert Shire Council in March 2008 and set about developing a Jimboomba Local Plan ―to guide and plan for population growth and pressures to the year 2031 so the township of Jimboomba can meet the needs of existing and future residents‖ – as set out on page 3 of a document entitled Jimboomba Local Plan 2009-2031; although it may have a finished look, the document has not undergone any of the formal steps that may lead to its becoming part of the planning scheme for the City of Logan. The court is told that the Council‘s intention is to promulgate a new planning scheme for the whole city in 2012. Rather than go through a process of piecemeal amendments, the Council apparently intends to use this draft local plan (LP), as the planners describe it, and other similar ones to ―inform preparation of the 2012 planning scheme‖. The extent to which the expectation may be realized in respect of Jimboomba, for present purposes, is unknown. [16] The planners are at odds over what if any weight should be given to the draft LP. Mr Reynolds, the planning expert nominated by the appellants, says the answer is ―none‖; his professional colleagues, accepting that it is a matter for the court, suggest that some weight should be accorded to the draft LP, as local area planning that exhibits substantial progress and as ―the most contemporary expression‖ of it. [17] The draft LP assigns all of the land between Johanna Street and Mt Lindesay Highway to the railway reserve in the south to an expanded Town Core Precinct - which accounts for most of the new District Centre Zone. The balance is the current Frame Precinct land south of the railway (proposed to be a small commercial precinct) and a slightly larger rectangular area of Mixed Use – Commercial Residential Precinct on the western side of Johanna Street (roughly in the middle). Somewhere in the present school grounds a much smaller Civic Park (Town Square) Precinct is indicated. [18] Needless to say, the draft LP offers strong support for the present proposal. Indeed, the proposal is presented in it as approved: see 6.3.1 (page 44), where the school is blamed for ―further fragmentation‖ and being a ―barrier to integration of potential commercial or retail development to the north‖. Map 6 indicates a Potential Future Jimboomba State School site in East Street adjoining the existing Emmaus College. An Education Department officer‘s evidence is that the school is not going to move and the East Street land is probably going to be sold. Her evidence suggested that -- 13 of 47 -- 14 the site was acquired for a high school, a facility which has now been established for the area at Flagstone. [19] Mr Reynolds and the appellants say that it is wrong to premise the draft LP on certain listed development proposals being ―givens‖ which have to be accommodated in future planning. The draft LP says on page 9: ―2.4 Current Development Applications in the Study Area The Jimboomba Local Plan will require consideration for all Development Applications that have been lodged and/or approved within the study area to ensure that there all development is well integrated with future adjacent land uses. Some of the larger development applications that have either been recently approved or are awaiting approval include: 1. Jimboomba Industrial (Cerina) – Development Permit for a Material Change of Use and Reconfiguration of Lot. Material Change of Use (Preliminary Approval) for Light/Service Industry and Reconfiguration of Lot (1 into 34) (Development Permit). This development is complete; 2. Jimboomba Commercial (Cerina) – Development Permit for veterinary surgery/hospital and convenience restaurants. There is currently another development application for a proposed use of indoor sports, recreation and entertainment (gymnasium) to be part of the development. McDonalds restaurant has also been issued a Development Permit on part of this block and is under construction; 3. Shopping Centre (Stocklands) – application approved by Council pending infrastructure Agreement: - Development Site No. 1 (northern site) – application for Shopping Centre (incorporating a supermarket (relocation from existing centre), discount department store, 2 mini- major stores, speciality stores and food establishments (food court). This application has Council approval pending the outcomes of an Infrastructure Agreement; and - Development Site No. 2 (southern site) – redevelopment of existing shopping centre (incorporating shops, food establishments, bottle shop and drive through, commercial activity, indoor sport, recreation and entertainment (gymnasium) and extension to existing hotel); 4. Hardware Store – Development Permit issued for a Shop (over 500m2).‖ The hardware store (formerly the occupant of a now vacant building on site 2 central in the Cusack Lane frontage and proposed to be demolished) is operating in the new premises, which are on the eastern side of the highway. The ―Shopping Centre (Stocklands)‖ proposal cannot boast similar certainty. For one thing, the approval may not survive this appeal. The co-respondent has to satisfy the court -- 14 of 47 -- 15 that approval is appropriate. There must be some stage, however, at which in practical terms it is reasonable to talk of ―approval‖ even though something might happen to render an approval ineffective – as in Allen v Toowoomba Regional Council [2011] QPEC 81, when a submitter was entitled to appeal at an unexpectedly late date because he had been overlooked when the Council notified others of its decision to approve expansion of a feed lot. [20] According any weight to the draft LP in the circumstances is problematic. There is too much of the tail (the development application) wagging the dog (the proposed Jimboomba Local Plan). However, I think it is reasonable for the court to have regard to the views of the Council in its assessment manager capacity rather than as the propounder of planning schemes and planning scheme amendments. Doing so is justified, notwithstanding s 4.1.52(1) of IPA, now s 495(1) of the Sustainable Planning Act 2009, in line with the approach (enunciated by Stephen J, other members of the High Court concurring) in Scurr v Brisbane City Council (1973) 133 CLR 242 at 257: ―The Court determines the appeal and the council is then bound to give effect to the Court‘s determination – sub-s. (4); the council is thus deprived of all independent power of consideration and decision making and this is assumed by the Court. This substitution of the Court for the council as the true arbiter of applications under s 22 once an appeal is instituted is significant for the light it throws upon the role of the Court. The Court has before it no final decision of the council on which to adjudicate but merely a proposal which will never of its own force become operative but will, whatever the outcome of the appeal, be superseded by the Court‘s determination of the appeal. … The fact that once an appeal is instituted by an objector the Court assumes from the council the task, initially the council‘s of considering an application and the objections to [if not] … all the requirements of the giving of public notice in due form have been complied with. … will result in it having before it a council proposal to which it would no doubt ordinarily wish to pay some regard as to the expression of the views of the responsible planning authority but which it will know has been arrived at without necessarily having benefited from a proper presentation to the council of objectors‘ views;‖ Acknowledgment of the appropriateness of proceeding in this way to give some weight to an approval the subject of an appeal to the court under the IPA regime may be found in Wingate Properties Pty Ltd v Brisbane City Council [2001] QPELR 272, in which Judge Brabazon said: ―[21] It is not the function of this Court (or indeed any planning authority) to refuse an application because it considers that the proposed use is not the best possible use for the site. It is not the function of the Court to redesign a proposal. Its function is to pass judgment on that which is proposed. In this case, the issue is whether or not the current proposal has been shown to be acceptable. The fact that some alternative proposal may be -- 15 of 47 -- 16 thought to be even more acceptable is by the way. If the current proposal is acceptable, then that is enough. [22] The Brisbane City Council is the planning authority for this city. It is not the function of the Court to conduct a review of its planning schemes, or hold any opinions as to whether its schemes are good or bad. The role of the Court is a narrow one. It is to resolve appeals in particular cases. It is subject to the same principles and constraints which apply to the planning authority. Whilst the Court acts on all the evidence given in the appeal, there is no reason why it might not place weight on an approval by a local authority, as that represents an expression of the views of the [responsible] planning authority.‖ Further Issues Regarding the Draft Jimboomba Local Plan [21] The appellants‘ criticisms of the draft Jimboomba Local Plan and the processes leading to it were strongly supported by Mr Reynolds‘ evidence. The Council engaged consultants to prepare a draft plan for the town of Jimboomba which represented an important addition to the Council‘s Local Government Area. The appropriateness of planning arrangements condemning Jimboomba to continued subservience to Beaudesert would have been a most relevant issue. The consultants brought in envisaged increased commercial development of the parts of Jimboomba relevant in this appeal, but with significant (or even predominant) residential components in options propounded. It is difficult to avoid the impression that the Council‘s enthusiasm for Stockland‘s proposal led the Council (or a sub-committee of designated Council members) to embrace a different planning vision from the consultants‘. The process, which included inviting public comments, appears to have been influenced or controlled with a view to favouring the proposal. It seems the differences were such that the consultants‘ services were terminated. The court should be mindful of the notion that it may be ―quite inappropriate … to deal with an individual application … in a way which might be construed as determinative of some wider question‖ (Sheezel v Noosa Shire Council (1980) 6 QL 207). These considerations provide another reason for not placing weight on the draft LP as support for the application. The court is not placing weight on it. On the other hand, it must not be overlooked that the planning authority is the Council, and not the consultants (or the court). The Council‘s considered view has been that conflict with the planning scheme should not condemn the proposal to failure, indeed that at the appropriate time the planning scheme should be changed. [22] Mr Reynolds and the appellants were critical of the draft LP for its failure to consider possibilities of the Jimboomba Town Centre expanding in locations other than to the north of site 2, it being contended that locations south of Cusack Lane ought to be considered. Expansion in this direction would be to the advantage of the appellants and on the face of things reasonably call for consideration. However, the notion runs up against the SEQRP‘s restricted ―urban footprint‖ for Jimboomba. Persuading the State to change the urban footprint would be easier said than done. It is not simply a matter of lines on a map; there are serious potential flooding constraints affecting the land in question. Site 1 and the school land enjoy the advantage of being sufficiently elevated and drained. -- 16 of 47 -- 17 Site 1 [23] Site 1, north of the school, contains about 17 ha and is comprised of four separate parcels. The low lying northern end is in the Industry Precinct in the 2007 Planning Scheme, but shown in the draft LP with the rest of site 1 as Town Centre Precinct. It had been Comprehensive Development (effectively, Rural with restrictions evidently calculated to protect surrounding amenity) or Rural under the 1985 scheme zoning. [24] The 21,566 m2 shopping centre proposed, which will include a Big W DDS (8044 m2), and an enlarged Woolworths supermarket (4187 m2) to be relocated from site 2 and two ―mini-majors‖ (610 m2), speciality retail (6410 m2) and a small (315 m2) food court will be on the southern, elevated part of site 1. The low-lying Industry Precinct land will be used only for a detention basin for water run-off and a short length of access road to incorporate a roundabout off Johanna Street, which is to be widened at the expense of the site. There is to be another Johanna Street entrance further south. The built form, some 200 m in length at least, will be dominant as seen from Johanna Street, the effect of which is alleviated by elements being in different planes. Access to site 1 will also be available from the service road which runs parallel to Mt Lindesay Highway immediately to the west of it, terminating just north of site 1‘s southern boundary. There will be two large, separate buildings for the major tenants, sections of distinctive free-standing (one might say ―salient‖ walls) with openings, some hiding loading bays from view; the walls are to be replicated in places on site 2, perhaps to suggest the developments are related, especially at the Cusack Lane corner, surrounding a new open space area where hotel patrons can sit at tables. There will be very wide landscaped setbacks for all buildings on site 1, serving to attenuate visual impacts, and preserve some of the rural appearance site 1 presently offers.3 That observation is more pertinent on the Mt Lindesay Highway side, from which the development will not be dominant at all, rather buried in the landscape. Site 1 is sufficiently elevated along that frontage to allow vehicles to drive in, more or less on the horizontal, to access the principal car parking which will be over the rooftops of the buildings, and feature the increasingly ubiquitous shade sails. The principal entrance to the buildings will be from the roof via travelators – whose location can and should be made more convenient, according to architectural evidence. An ―at grade‖ car park is to be provided north of the northern building which will house the supermarket, for the convenience of its customers who might prefer that. To the extent that the site 1 proposal has an active frontage and an entrance from or opening to the outside world, this is where it will be, the other sides being closed off, except for service vehicles. The relevant experts agreed this will be ―largely an internalised shopping centre‖. Site 2 [25] Site 2 contains about 4 ha and two parcels of land. The existing shopping centre there has six buildings, with total GFA of 10,492 m2. The largest is the Woolworths building which includes adjoining tenancies and a petrol station. In descending order of GFA are the medical centre building and adjoining tenancies (elevated over 3 As the visual amenity expert, Mr Chenoweth says in the Joint Report at 3.3.9, the new shopping centre on site 1 will be ―compatible with its current town edge and semi-rural location because of the substantial setbacks‖. -- 17 of 47 -- 18 car parking), the Jimboomba Country Tavern, the Mitre 10 building, the Dollars and Sense building and the Australia Post building. All of the buildings turn their backs to, or ignore the street. Along Cusack Lane in particular, the supermarket on the corner of Johanna Street which is the usual big closed box and the adjoining Mitre 10 building which holds the middle do so, although the latter has its blank wall (of more modest height) decorated and relieved by a veranda or colonnade featuring a line of timber posts – which I considered pleasing and a gesture to some notion of what Jimboomba township‘s character was or should be. Ramps for car park access (also available from Honora Street) are constructed between buildings. Where there is no building, site 2 is a car park. The terrain falls steeply to Johanna Street and to Cusack Lane. The sloping nature of the open car park is said to be a problem for shoppers. The Post office, Dollars and Sense building and tavern address Cusack Lane no more than the other two on Cusack Street do. [26] Across Cusack Lane on terrain that continues to fall away to the south west (where Henderson Creek meanders) is a Town Centre Core Precinct area. Centrally located is a modern shopping centre anchored by Coles supermarket. Operators of some of the speciality stores gave evidence in the appellants‘ case. It is unsurprising that they might view with concern the relocation to the far side of the school of Woolworths, whose replacements are unlikely to attract a corresponding volume of visitors to the area: Woolworths may be followed by other tenants, if not on account of its drawing power, then out of concern to avoid the disruption of further refurbishment of site 2. To the west of Coles (which is set well back from Cusack Lane behind the ―at grade‖ car parking, with the main parking underneath) is the appellants‘ child care centre; to the east a petrol station and between that and the corner a lauded complex of professional offices, shops, restaurants and the like accommodated in a line of removal ―Queenslander‖ houses which have been linked by steeply sloping A frame roofs at upper storey level enclosing the gaps between the buildings, which are not set back. They thus give Cusack Lane the desired ―activation‖ in the sense of proper Main Street shop fronts. They represent the only construction in the town centre in recent decades to win any praise at all from those assessing Jimboomba‘s visual/aesthetic amenity. They bring pedestrian activity and sights of people moving, rather than cars. Cusack Lane is compromised from a pedestrian-friendliness standpoint. Apart from the terraced effect noted above (strongest between site 2 and the footpath on its side), Cusack Lane is the link between Jimboomba and Flagstone which will be used by many from the latter wanting to access the Mt Lindesay Highway in the vicinity of Jimboomba. [27] The proposals for site 2 are intended to and would increase activation of Cusack Lane. Stage 1, to occur before site 1 is developed as part of the overall development, will see the tavern expanded and an open eating/dining area established at the corner, also replacement of the Mitre 10 building by two new L- shaped two-storey buildings to contain restaurants and what appears to be a covered courtyard or similar newly opened up area, addressing the street. Ms Treadwell‘s statement shows that the Mitre 10 proposal may have approval already, pursuant to Judge Andrews‘ order of 8 October 2010 changing an approval granted in appeal 283 of 1996 on 10 April 1996. The changes now envisaged for site 2 will increase GFA to 11,161 m2. Submissions -- 18 of 47 -- 19 [28] There were only five submissions received during the public notification of the development application. One, strong in support, was from a developer of residential land in the area (River Bend). One was made by ―Colonial First State Property Management on behalf of the owners of Grand Plaza Shopping Centre, Browns Plains‖. Jimboomba is some 20 km south of that shopping centre. Jimboomba residents and others in the general area, such as Flagstone, even Beaudesert, 20 km to the south, who require the ―comparison shopping‖ facilities that a DDS (Target, K-Mart or Big W) might offer are presently obliged to travel to Browns Plains or further afield. The proposal will presumably reduce the custom from those areas presently patronising Grand Plaza. Another adverse submission came in which the planning consultants engaged advised was ―prepared on behalf of the Motor Traders Association of Australia‖, not revealing the interest of the submitter which is the developer of Flagstone. The submission says the proposed development ―is considered to undermine the regional Major Activity Centres such as Flagstone and Yarrabilba, being of a size and scale not envisaged by the SEQ Regional Plan and being inconsistent with both the Major Rural Activity Centre Designation and the development intended for Jimboomba‖. Compromise of the Beaudesert Shire Planning Scheme DEOs and of the overall outcomes for the Mt Lindesay corridor zone is alleged, also compromise of the intent of the relevant and the surrounding precincts and the lack of ―demonstrated overwhelming community need and an overwhelming economic need for the development‖. The appellants‘ submission was also put in by consultants. The document is in Exhibit 4, p 50 ff; it contains some inexplicable materials such as a 20 page Princess Alexandra Hospital Health, Science and Education Precinct – Preliminary Economic Impact Analysis. The remaining submission (ibid p 105) was from the Scenic Rim Regional Council, based in Beaudesert. Unsurprisingly, it complains that the proposal will undermine the role of Beaudesert as the principal rural centre within the Planning Scheme Area. In particular, there is reference to overall outcome 23 for the Mt Lindesay Corridor Zone which seeks to restrict the gross floor area for retail and commercial development at Jimboomba to 14,000 m2, whereas the proposal will increase what is available for such purposes to approximately 41,000 m2. Southeast Queensland Regional Plan [29] The appeal was conducted on the basis that the SEQRP 2009-2031 (Exhibit 14) was the relevant version of the original 2005-2026 one (Exhibit 7), notwithstanding its relatively late date. At the date of the co-respondent‘s development application there had been only Amendment 1 of October 2006 (Exhibit 79), a significant document which embodied decisions made about the original Mt Lindesay North Beaudesert study area that had been quarantined against subdivision in the short term by ―Regulatory Provisions‖. The 2005 document identified a ―Regional Activity Centres Network‖, Brisbane CBD as the Primary Activity Centre above Activity Centres (ACs) such as Ipswich, Springfield, Indooroopilly, Upper Mount Gravatt, Springwood, Beenleigh, Southport and Robina, serving ―catchments of sub-regional significance‖. They are ―complemented‖ by ―Major ACs‖, oddly (perhaps) serving ―catchments of regional significance‖. Major ACs (for example Browns Plains, Logan Hyperdome, Coomera and Nerang) were envisaged in proximity to residential densities of 30-80 dwellings per hectare, Principal ACs to densities of 40-120. Specialist ACs were listed next, being the Port of Brisbane, Brisbane Airport, a couple of universities and a leading hospital/medical school. The remaining ACs were Principal Rural (only Beaudesert and Gatton for the whole -- 19 of 47 -- 20 of Southeast Queensland) and Major Rural (Boonah, Laidley, Fernvale, Esk and Kilcoy). [30] In 2006 the following was added to the SEQRP: ―Summary of the Mt Lindesay/North Beaudesert Study Area Urban Footprint sites The regional land use pattern for the Mt Lindesay/North Beaudesert Study Area (Map 18) sets out the preferred settlement pattern through to 2026. Land included in the Urban Footprint will be sufficient to cater for expected urban growth to 2026, while not compromising the intent of the Regional Plan. Inclusion of land in the Urban Footprint does not imply that all land can be developed for urban purposes as it may include land with a range of regional and local development constraints, including environmental constraints. Further planning is required for each Urban Footprint site. It is important to note that State Infrastructure Agreements may apply to designated Major Development Areas. The development intent for each Urban Footprint site is as follows: 1 Greenbank Central The Urban Footprint site at Greenbank Central is located north of Pub Lane. It is included in the Urban Footprint to ensure that the final stages of the Teviot Downs estate are developed as an urban community, supporting retail and commercial activity to the east of the interstate railway. Land located on the corner of Pub Lane and Teviot Road is expected to accommodate an activity centre where transit oriented development principles should be applied. A structure plan for this area of Greenbank Central should provide for urban scale development, rather than rural residential development. Beaudesert Shire Council‘s Local Growth Management Strategy will specify appropriate timing for development. 2 Flagstone The Urban Footprint site for Flagstone includes land in the existing urban area of Flagstone, the rural residential area east of the interstate railway and land west of the railway. The area immediately west of the railway is appropriate for a Major Activity Centre and enterprise precinct. Further planning for this area should provide for urban scale development, but must also ensure important areas of biodiversity, including endangered regional ecosystems and strategic wildlife/landscape corridors, are carefully investigated and protected with adequate buffers. Although much of the area west of the rail line will not be required until post-2016, it has been included as Urban Footprint to ensure the structure planning incorporates a Major Activity Centre, enterprise precinct and integrated transport solutions. New development must contribute to the creation of a functional community with a full range of services, employment and transport options. Timing of land release will be dependent upon the capacity of Beaudesert Shire Council and state agencies to provide essential services and infrastructure. Beaudesert Shire Council‘s Local Growth Management Strategy will provide guidance on appropriate timing for development. -- 20 of 47 -- 21 3 Jimboomba The Urban Footprint site for Jimboomba acknowledges growth of the town is restricted by flood-affected land to the west and north. However, it also enables the town to develop in a way that reinforces its role as a Major Rural Activity Centre, servicing the surrounding semi-rural community. Beaudesert Shire Council‘s Local Growth Management Strategy will specify appropriate timing for development. 4 Yarrabilba Located in close proximity to the Gold Coast, Yarrabilba has the potential to accommodate future urban growth when Greenfield allotments in the Gold Coast corridor begin to be exhausted around 2017. However, this is conditional on the provision of transport links to the east and other urban infrastructure and services. Further planning for this area should provide for urban scale development, with any new development contributing to the creation of a functional community with a full range of services, employment and transport options. In particular, planning must accommodate a future Major Activity Centre and enterprise precinct. Development is not intended to occur before 2016, however it could commence before 2016, provided the detailed structure planning has been undertaken and a State Infrastructure Agreement is in place. Beaudesert Shire Council‘s Local Growth Management Strategy will specify appropriate timing for development. 5 Logan Village Inclusion of the Logan Village in the Urban Footprint enables it to maintain its current role and character. Beaudesert Shire Council‘s Local Growth Management Strategy will specify concepts for future development in this area. 6 Bahrs Scrub The original Urban Footprint surrounding Beenleigh has been extended to include an area of Bahrs Scrub. This area‘s close proximity to Beenleigh will assist ongoing development of this Principal Activity Centre. It should be noted that not all lands in this area will be suitable for urban activity. Future planning for Bahrs Scrub must address the issues of through-traffic, water supply, wastewater treatment and the connectivity of biodiversity areas and wildlife corridors. Gold Coast City Council‘s Local Growth Management Strategy will specify appropriate timing for development. 7 Park Ridge/Boronia Heights/Logan Reserve The Urban Footprint site in the Park Ridge/Boronia Heights/Logan Reserve area is an extension south of the original Urban Footprint for Logan City. Park Ridge is expected to develop as an integrated urban community and enterprise precinct, providing employment opportunities to the surrounding community. It is expected the Park Ridge enterprise precinct will focus on knowledge-based industries and contain commercial offices, service industries, business parks, research parks and low-impact industrial uses. Future planning for Park Ridge will ensure, where possible, existing areas of significant biodiversity and endangered regional ecosystem are -- 21 of 47 -- 22 incorporated into open space corridors - buffering the enterprise precinct from urban communities and existing rural residential properties to the south. The structure plan for Park Ridge/Boronia Heights/Logan Reserve should provide for the consolidation of existing rural residential properties to create well-planned, functional urban communities and enterprise precincts. Logan City Council‘s Local Growth Management Strategy will specify appropriate timing for development.‖ [31] Large investigation areas remain southwest of Flagstone and southeast of Yarrabilba. [32] The 2009-2031 SEQRP (correcting an apparent anomaly in the original descriptions of the Principal and Major Regional ACs) left the descriptions in the Activity Centres Network essentially unchanged. They are found in Part D – Regional Policies under the heading ―Compact Settlement‖, following Part C – Regional Land Use Pattern, where the ―Sub-Regional Narratives‖ are found. Part D describes the Activity Centres Network in this way: ―Activity centres network Map 10 and Map 11 show SEQ‘s activity centres network. The network is based on the following definitions, and incorporates existing and planned activity centres. Primary activity centre The Brisbane central business district (CBD) is the region‘s primary activity centre, accommodating the largest and most diverse concentration of activities and land uses. For some activities, it has a statewide function—it is the key focus of government administration, retail, commercial, and specialised personal and professional services. In addition, it accommodates cultural, entertainment, health and education facilities of state, national and international significance. The CBD is the focus of the region‘s radial public transport system. As it is the centre of highest employment mix and density, and it supports a large, in-centre residential population, the CBD generates and attracts a large number of transport trips. The role of Brisbane‘s CBD as the primary activity centre has expanded over time into the surrounding frame area West End). The frame area provides distinct commercial, legal, government, retail, community and entertainment precincts, and significant residential communities. The increasing role of the frame area should be acknowledged and supported with appropriate land use forms of development and services. Principal regional activity centres SEQ‘s principal regional activity centres serve catchments of regional significance and accommodate key employment concentrations. They also serve business, major comparison and convenience retail, and service uses. These centres provide a secondary administrative focus, accommodating regional offices of health, education, cultural and entertainment facilities that have governmental and regional significance. Outside the Brisbane -- 22 of 47 -- 23 CBD, principal regional activity centres serve as key focal points for regional employment and in-centre regional development. As major trip generators, these centres typically have existing or planned, dedicated public transport, including rail, bus or light rail, and comprise key nodes in the regional public transport system. Residential development densities in principal regional activity centres should be around 40–120 dwellings per hectare (net) or greater. Major regional activity centres These centres complement the principal regional activity centres by serving catchments of sub-regional significance and accommodating key employment concentrations. They also provide business, service, and major retail and convenience functions. With a secondary, sub-regional administration focus, they accommodate district or branch offices of government facilities, and cultural and entertainment facilities of regional significance. These centres are typically located around key suburban or inter-urban public transport stops, and provide frequent public transport services to link the centre to surrounding communities. Residential development densities in major activity centres should be around 30–80 dwellings per hectare (net) or greater. Specialist activity centres As centres of regional economic significance, these provide a primary focus for specialised economic activity, employment or education rather than having a retail function. The core emphasis of these centres results in high levels of trip generation. Principal rural activity centres These centres are important service and community hubs in rural areas. They support a sub-regional rural catchment and contain concentrated rural services, as well as commercial, retail, government and community activities. Principal rural activity centres have excellent roads and basic public within the Urban Footprint to encourage appropriate investment and residential development to support each centre‘s growth. Major rural activity centres Rural towns that provide more than one function to the surrounding rural catchment are major rural activity centres. They provide concentrated retail, commercial, community and some government services. They also have excellent road connections and possibly public transport services.‖ [33] Part C has this to say about the urban footprint: ―Urban Footprint Intent The Urban Footprint identifies land that can meet the region‘s urban development needs to 2031 in a more compact form. Description -- 23 of 47 -- 24 The Urban Footprint includes established urban areas, broadhectare and remnant broadhectare areas that could be suitable for future urban development. It incorporates the full range of urban uses, including housing, industry, business, infrastructure, community facilities and urban open space. Remnant broadhectare lands are undeveloped lots that could potentially be developed for urban residential purposes but are not currently zoned for higher density development. They are located within the Urban Footprint, and are usually surrounded by urban development or near existing or planned urban infrastructure services. The Urban Footprint defines the extent of urban development to 2031 by using cadastral or other clearly defined boundaries. The Urban Footprint does not imply that all included land can be developed for urban purposes. For example, national parks and state forests will continue to be protected and managed under state legislation such as the Nature Conservation Act 1994 and the Forestry Act 1959, and remnant vegetation will continue to be protected under the Vegetation Management Act 1999. Land in the Urban Footprint may be unsuitable for urban development for other reasons, including constraints such as flooding, land slope, scenic amenity, and the need to protect significant biodiversity values. Local government planning schemes are the main instrument that will establish and refine the desired use of land and the preferred timing of development within the Urban Footprint. The Urban Footprint focuses urban growth in location that:  provide reliable and effective transportation choices or otherwise reduce car use, particularly for infill and redevelopment in and around existing urban centres, and along high-frequency public transport corridors  physically connect to existing communities wherever possible, or otherwise provide new development with direct transport linkages to established urban areas early in the development  promote cohesive communities that support a wide range of services and facilities  include or have access to existing or planned employment centres. The Urban Footprint includes some areas designated or already developed for rural residential purposes that are well located with respect to urban services required to review these areas to identify potential opportunities for developing or redeveloping them for urban purposes. Regulatory provisions Areas that the South East Queensland Regional Plan 2005-2026 previously identified as major development areas are included as Development Areas -- 24 of 47 -- 25 where appropriate. The regulatory provisions ensure that development does not adversely affect the future development intent of these areas.‖ [34] Although the planning scheme for Jimboomba is the 2007 Beaudesert scheme, the town has been part of Logan City since March 2008 and it is recognised in the Sub- Regional Narrative for Logan. It and Logan Village are rural communities providing ―limited opportunities for alternate residential development‖, rating mention after Flagstone (―ultimately … a major regional activity centre‖) and Yarrabilba North which has potential but ―it is remote … and requires significant extensions to existing transport networks and new urban infrastructure networks‖. As regards ―Economy and Employment‖: ―Jimboomba will retain its role as a major rural activity centre, providing district level services to surrounding rural residential development.‖ [35] The appellants argue that development in Jimboomba is intended to be confined by the SEQRP by its being limited to services at ―district level‖ and to a catchment in terms of the ―surrounding‖, rural or rural/residential community. The suggestion is that ―surrounding‖ cannot be read in terms of distance, such as five, seven, or 10 kilometres, but has to exclude nearby Flagstone and Yarrabilba because they are intended, when ready, to be or have activity centres enjoying higher standing in the centres ―network‖ which, although not said in the SEQRP to be a hierarchy, is capable of being seen as one. [36] The suggestion that reference to district level services precludes or views unfavourably the establishment of a DDS in a location must be rejected. That is certainly the case if one looks at what is happening on the ground. The sub-regional narrative for Gold Coast states that, Helensvale, Nerang, Surfers Paradise, Coolangatta and Bundall ―will provide complementary and district level retail, commercial and specialist services‖. A DDS is, on the evidence, ―proposed‖, which I took to mean approved, for Nerang and there are two at Helensvale. In Moreton Bay, there is a long list of locations which ―all provide district level services‖. At least one of the 17 (Arana Hills) has a DDS. Acquisition of a DDS would not in my view result in Jimboomba providing something exceeding ―district level services‖. Nor would acquisition of such a facility, assuming it attracted custom from Flagstone and Yarrabilba residents (in particular), be serving a geographical area beyond its ―surrounding rural catchment‖ referred to in the definition of major rural ACs or ―surrounding rural residential development‖ as referred to in the sub- regional narrative. As it happens, Jimboomba is extraordinarily well located to the Mt Lindesay Corridor Zone (as defined in the local planning scheme) given its location on the eponymous highway and at the junctions thereof with Cusack Lane (to the west) and Camp Cable Road (to the east). There was some suggestion that the economic experts‘ selection of Jimboomba as the focus of a trade area somehow begged the question of its suitability, as if an equally favourable assessment would result if the focus had been some other location. There is nothing in such a suggestion. No other single location would serve residents of the general area so well. The general area may be taken to include Beaudesert. If a new DDS were based there, it would serve only Beaudesert; residents of Flagstone, Jimboomba and Yarrabilba would use Browns Plains, especially given that most travel is likely to be directed northwards, where, overwhelmingly, relevant attractions lie. A DDS at -- 25 of 47 -- 26 Flagstone or Yarrabilba is likely to be seen as too much off the beaten track or out of the way for residents of the other or residents of Beaudesert or Jimboomba. By contrast, a DDS at Jimboomba would conveniently serve all locations. There are developers ready and willing to provide the facility now, but no-one can safely predict when, if ever, the same may be said of any of the other three locations. Terminology [37] This appeal calls for construing expressions in planning instruments descriptive of the levels of service(s) Jimboomba is expected to provide. The proposition that the proposal involves Jimboomba usurping the roles intended for other centres or locations was supported by descriptions of it as a ―sub-regional centre‖, notably in the economic impact assessment prepared for Stockland in December 2007 by Mr Duane at paragraph 1.2: see exhibit 2, page 393. It is impossible to know what significance to attach to a term such as ―sub-regional‖; Mr Duane does not seem to have been alluding to any particular concept of sub-regional centre. In the SEQRP 8.6 the ―region‖ is fairly obviously South-East Queensland. Principal regional activity centres (of which there are fifteen) ―serve catchments of regional significance‖; major regional activity centres complement them ―by serving catchments of sub-regional significance‖, principal rural activity centres ―support a sub-regional rural catchment‖: see Exhibit 14, page 97. The emerging big cousins, Greater Flagstone and Yarrabilba may ―accommodate regionally significant levels of residential and employment growth‖, while Park Ridge will be ―providing sub- regional employment‖. (Ibid, page 28). Mr Reynolds suggested that the SEQRP‘s offering ―sub-regional narratives‖ might be an indication that a sub-region was a local government area. Such terms, it seems to me, are used loosely. Contrasting Mr Duane‘s expression with others in planning instruments confining Jimboomba to ―district‖ or ―local‖ significance does not in the circumstances amount to a telling or useful point. I would add here that if the appellants‘ written submission by emphasising the SEQRP statement that Jimboomba ―retain‖ its role is intended to make a point that Jimboomba is not intended to grow, I respectfully disagree: see paragraph 94. [38] In relation to a development such as that presently proposed for Jimboomba, I detect nothing in the SEQRP that would count against the proposal being approved and going ahead. The site is within the urban footprint where urban development, such as the proposal, is presumably favoured. I detect nothing in the SEQRP that indicates that development in particular locations within the urban footprint might have to await the achievement of development to similar or higher levels in other locations within the urban footprint. The express purpose of the plan is to ―manage regional growth and change in the most sustainable way to protect and enhance quality of life in the region‖. I would take that to envisage providing for the established shopping needs of the population; there is no reason to think that quality of life will be enhanced by restricting growth in Jimboomba. Again, I would observe that I do not find in the SEQRP anything long the lines of a philosophy that some populations may have to wait to be served when developers are eager to do the job until some other parts of the grand vision are implemented. In the SEQRP 8.6 Activity Centres and transit corridors, the governing principle is: -- 26 of 47 -- 27 ―Focus employment, infill housing and community services in well- planned, vibrant and accessible regional activity centres and along high- frequency transit corridors.‖ [39] Half a dozen ―Policies‖ follow, including: ―8.6.1 Ensure that development supports the activities centres network and the transport system … 8.6.5 Exclude out-of-centre land use and development that would detrimentally impact on activity centres.‖ [40] There is evidence from Mr Eagles (who happens to be an experienced planner), the Chief Executive Officer of the Urban Land Development Authority (ULDA) to the effect that implementation of this proposal for Jimboomba will in all probability promote population growth in Flagstone and Yarrabilba by offering retail facilities that people contemplating moving there would not otherwise have, at least in the short term. Flagstone and Yarrabilba are declared Urban Development Areas among 15 in the State. The ULDA is responsible for planning and assessing development applications in them. The Flagstone and Yarrabilba declarations were made on 8 October 2010. On 17 November 2010, having been asked for comments by the Chief Executive Officer of Capital Growth Management Queensland regarding the Jimboomba proposal, Mr Eagles advised that ULDA was not opposed to it. At transcript 10-73, Mr Eagles was specific about the advantages which implementation of the Jimboomba proposal would have by way of encouraging the development of both Flagstone and Yarrabilba. [41] In similar vein, the acting principal planner for the relevant division in the Department of Infrastructure and Planning had written in a letter of 15 December 2008: ―The Southern Region Division does not believe the proposed development would compromise the principles and policies of the South East Queensland Regional Plan 2005-2026 Amendment 1 (SEQ Regional Plan). This position has been discussed directly with Logan City Council in late October 2008. Notwithstanding, Council will be required to assess and decide the application against the applicable provisions under the Beaudesert planning scheme and other applicable planning requirements.‖ [42] Mr Heydon‘s and Mr Eagles‘ views would be beside the point if the court were persuaded that the SEQRP and the proposal were in conflict, comforting as it might be for the co-respondent to have the attitudes of State authorities thus made known. The State authorities have by no means abandoned the notion of a hierarchy of centres. Indeed, Mr Eagles‘ letter of 17 November 2010 explains: ―While this application is not opposed by the ULDA, we recognise that further significant increases in the retail floor space at Jimboomba may prejudice the future development of the centres at Flagstone and Yarrabilba. -- 27 of 47 -- 28 I note that the SEQ Regional Plan designates both Flagstone and Yarrabilba as Major Regional Activity Centres and Jimboomba as a Major Rural Activity Centre. We would ask that both Growth Management Queensland (GMQ) and LCC consider this aspect in the preparation of the new planning scheme for Logan City as well as any future reviews of the SEQ Regional Plan. Through the development scheme process for Flagstone and Yarrabilba the ULDA will be developing a centres hierarchy with LCC and GMQ. It has been suggested that a Gross Floor Area limitation for the centres be developed and we would seek ongoing discussions with GMQ to set an appropriate retail floor area cap in Jimboomba reflecting its Major Rural Activity Centre status and to protect the Flagstone and Yarrabilba Major Regional Activity Centres.‖ [43] The wisdom of setting a cap for Jimboomba suitable to current circumstances seems clear. The policy of the SEQRP is to ―exclude out-of-centre land use‖ detrimentally impacting on activity centres. The proposal now under consideration is not out-of- centre. The SEQRP concept of ―centre‖ in this context does not necessarily coincide with boundaries that might be assigned to centres identified in a local planning scheme. In the SEQRP (see 8.6) centres not only ―concentrate goods and services … efficiently‖, they ―provide appropriate locations for public investment in public transport, health, education, cultural and entertainment facilities, provide a focus for community and social interaction, [even] accommodate high density residential development‖. Even if the planning scheme be taken to set boundaries for the Jimboomba major rural AC, that may reasonably be seen as being in the town centre core, frame, mixed use, minor convenience and industry precincts aggregated together: see [6]-[14] above. Conflict with SEQRP [44] The appellants argued that conflict with the SEQRP required refusal of the co- respondent‘s impact assessable development application. The SEQRP not being identified in the planning scheme as appropriately reflected in it, by s 3.5.5(2)(c)(iii) of IPA the impact assessment process must be carried out ―having regard‖ to that original plan. The IPA, in marked distinction from situations of conflict with a planning scheme, which may be overcome if ―there are sufficient grounds‖ (s 3.5.14(2)(b)), allows no similar possibility for conflict with a regional plan. The appellants argue that an obligation to have regard to the SEQRP requires it to be taken into account and given weight as a ―fundamental element‖ in making the determination, by reference to R v Hunt, ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, 329. That reference is not persuasive, given that in Hunt, there was only one factor (costs) to which regard must be had. In Evans v Marmont (1977) 42 NSWLR 70, the specified factors to which a court was required to have regard in adjusting property interests of de facto partners in adjusting interests in a ―just and equitable‖ way were two only, namely contributions to financial resources of the partners of either of them and contributions to the welfare of the other or of children. There is an interesting note in Fogg, Meurling & Hodgetts, Planning & Development Queensland at [3440] about ―having regard to‖ for provisions such as s 3.3.15(1)(b) and 3.5.5(2) of IPA which refers to a ―stringent application of the -- 28 of 47 -- 29 duty to have regard where only one purpose is referred to‖ in Westfield Management Limited v Brisbane City Council [2003] QPELR 520 at [50], one of the appellants‘ authorities, which makes reference to others: Zhang v Canterbury City Council (2001) 51 NSWLR 589 (at 602) and Ballymont v Ipswich City Council (No. 1) [2003] 1 Qd R 461 (at 470-471). In some of the cases the requirement is to take into consideration, which probably makes little difference. I find it impossible to conclude that anything like determinative effect can be ascribed to an applicable regional plan or anything else listed in s 3.5.5(2), which lists a wider range of matters for consideration than does s 3.3.15(1)(b). Zhang was concerned with a proscription of brothels within 200 metres of a church or school. [45] In Ballymont the Court of Appeal considered that ―criterion 6(c)‖ carried no indication that it was any more important than any other provision in criterion 6 – or that criterion 6 was ―any more important than any of the other implementation criteria for objective 12‖: see [38]. For purposes of s 3.5.5(2) the obligation to have regard to ―(a) the common material‖ may bring in all manner of considerations, unsurprising given that it is implicit that the assessment must have regard to all relevant ―impacts‖ of a proposal. If the IPA intends to attach consequences to some ―conflict‖ in an assessment process, it says so, as it has done in s 3.5.14(2), which deals with conflict with a planning scheme, not with conflict with a regional plan. Compare a development application that is contrary to a State planning regulatory provision: s 3.2.1(7)(f) and (10)(b). If conflict with a regional plan such as the SEQRP were to have the dramatic effect contended for by the appellants, one would expect a court to discern conflict only in very clear cases. The present is not one. On the contrary, I am satisfied that there is no conflict in Jimboomba being provided with facilities that the SEQRP contemplates for it at a relatively early date, and in advance of other locations, which the SEQRP contemplates having more, getting anything at all. While s 3.5.5(2)(c)(iii) of IPA requires any conflict with the SEQRP to be taken into account, it does not render such conflict determinative. In marked contrast, when one comes to ―Part F – South East Queensland Regional Plan 2009-2031 State Planning Regulatory Provisions‖, conflict is determinative and defeats a development application: Chang v Laidley Shire Council [2007] HCA 37. There appears not to be a conflict with the SEQRP on the foregoing analysis. The economic experts [46] Mr Duane (engaged by the co-respondent) and Mr Stephens (engaged by the Council) are of the opinion that there is a ―clear and overwhelming need for the subject development‖, there being in the ―trade area‖ more than 56,000 people without access to any DDS (which would require a catchment of 35,000 to 40,000 persons) unless they are prepared to make a round trip of some 40 kilometres or longer. The joint economic report sets out that the appellants‘ expert, Mr Norling: ―87. … agrees that there is an economic and community need for the sparse and largely rural residential population of the expansive trade area to be serviced by improved retail facilities, particularly a discount department store anchored shopping centre such as proposed at Jimboomba. However, this need does not translate to a planning need for the proposed development on the subject site for the following reasons: -- 29 of 47 -- 30 (a) The Regional Plan identifies three higher order centres within the trade area that are capable of satisfying this need: Flagstone Major Regional Activity Centre, Yarrabilba Major Regional Activity Centre; and Beaudesert Principal Rural Activity Centre; (b) The trade area of the proposed development is far more extensive than and in conflict with “the surrounding rural catchment” of a Major Rural Activity Centre, by relying on significant urban populations in Beaudesert, Flagstone and Yarrabilba; (c) The most populous and disadvantaged (in terms of distance to discount department store based centres) is the Beaudesert sector, indicating that this is an appropriate location for the proposed development. (d) Once shopping centres at Flagstone, Yarrabilba and Beaudesert have matured, the remaining catchment at the Jimboomba Major Rural Activity Centre would shrink to only the Jimboomba sector, with its 2031 population being insufficient to support the proposed development; (e) The proposed development would unduly delay the development of retail facilities at the higher order centres of Flagstone, Yarrabilba and Beaudesert; (f) The proposed development is an example of short term commercial opportunitism at the [expense] of long term community benefits which the Regional Plan has sought to prevent.‖ [47] In paragraph 99 Mr Norling says that the proposed development should be located at Beaudesert as a ―higher order centre‖ than Jimboomba, as its projected growth in population over the next 16 years will far outstrip Jimboomba‘s, giving it more than double Jimboomba‘s population by 2031 and as Beaudesert is more disadvantaged with respect to access to a DDS-based centre than the Jimboomba population. The fact is that no developer will look at Beaudesert for the moment. No convincing argument has been presented to the court to show why, with a DDS-based centre offering at Jimboomba, the inhabitants of the ―trade area‖ identified should be forced to wait. If Mr Norling‘s point (d) is expressing a view that the Jimboomba centre will fail some 20 years in the future, that is pointing to a risk which the co- respondent is presumably prepared to run. The centre will have had a useful record of trading for two decades for the benefit of the population. At paragraph 90 of the joint economic report the experts agree that the proposed development will not impact on the viability of existing retail centres outside Jimboomba. Nor, on the evidence, would it delay unacceptably or significantly the establishment of comparable facilities in Beaudesert, Flagstone or Yarrabilba. As to the last two, Mr Eagles described the reluctance of developers to come into such emerging communities: ―If the application is approved do you see it having unacceptable impacts on your role in delivering the centres plan for Flagstone or Yarrabilba?-- No. -- 30 of 47 -- 31 If the application is approved do you see it bringing advantages, particularly for the early years, in the development of both Flagstone and Yarrabilba?-- Yes, I believe it will. Again if I may just in terms of context from background experience, master planned communities are always very slow to start with very low residential numbers and it takes a long time to [get] support facilities, whether they're community facilities, retail and the like, and in this particular situation the towns are quite remote from the urban edge, 12 to 15 kilometres from the urban edge, and so hence in the early years there's going to be a need for people who are living in those emerging communities to travel to other places for the higher order shopping, apart from your local convenience store if that's established early. Beenleigh and Browns Plains would be the natural location or Logan Hyperdome, natural location for those big shops, but Jimboomba which is five to six minutes west of Yarrabilba and perhaps a little longer from Greater Flagstone offers, you know, a level of convenience shopping which just wouldn't normally be found in an emerging master planned community. Mr Eagles, have you formed a view as to whether that will make it easier for you to attract people to those communities or not in the early years?-- My personal view would be yes, it would, … , just from my background and experience, … , because it's quite difficult to ask somebody to drive 12 kilometres and there's no facilities. Having some facility six kilometres down the road would be an advantage, I would imagine.‖ [T10-73/10-42] [48] Much was made in the appellants‘ case of a proposition that the present population of Jimboomba can be regarded as having decided to live there fully conscious of a lack of DDS and associated facilities. They are said to be people prepared to travel 40 kilometres to get a pair of school shoes or a new toaster. They have chosen their lifestyle, either from economic necessity or for the opportunity to have a horse, etcetera. It did not seem to be suggested that, should the DDS come, the customers will not. The benefits in keeping money (and jobs?) in the area, limiting ―escape expenditure‖ and in reducing the risks of road use and consumption of fuel (emissions-producing) would seem obvious. The corresponding arguments could be advanced to show that those people who move into Flagstone and Yarrabilba do so without firm expectations of a DDS. I am not persuaded that a population‘s having gone without, more or less willingly, reduces the extent of need for planning purposes where, as here, the need is established by competent expert evidence and a development proposal to meet it is under consideration. The proposal will meet the need and its location in Jimboomba is appropriate: for the next decade and more, Jimboomba happens to be the best location. Where in Jimboomba? [49] The next issue is whether the new facilities should be located somewhere else in Jimboomba than on site 1. Site 1 is not optimal, given its remoteness from present commercial development. The best site, (assuming conflict with the Planning Scheme could be overcome) may be the school premises, but the school is not going to move (unless someone offers the Department the $36 million or more that this would cost). The appellants have shown interest in having the commercial area extend south and west from their premises. An insuperable difficulty for the -- 31 of 47 -- 32 moment is that this requires going outside the urban footprint accepted by the SEQRP; the relocation of the boundary, which has been sought, may be difficult to achieve, given flood constraints. Finally, it is suggested that most of what is intended for site 1 could be constructed on site 2, including the DDS. A scheme for achieving this, which the co-respondent, rather than the devisers of the scheme would have to pay for, was suggested. Inevitably, there would be some costly disruption, very likely a great deal of disruption, which may prevent the supermarket from trading continuously, although there was a plan propounded to avoid that; disruption to many tenants‘ operations would be inevitable. That a predecessor owner contemplated a DDS on site 2 and had plans prepared does not establish feasibility. [50] Counsel for the co-respondent enjoyed the exercise of pointing out that the dominating structures proposed if a DDS was to be developed on site 2 would incorporate many of the features of what was proposed for site 1, attracting criticism. Exercises of the kind envisaged may be observed in the big cities, but strike me as inappropriate, probably inordinately expensive, for somewhere like Jimboomba. The outcome would be built form close to Cusack Lane of dominating proportions. The co-respondent‘s unwillingness to pursue these lines means though that they need not be further considered. The real question for the court is whether the proposal it is prepared to pursue is acceptable. Conflict with the Planning Scheme: are DEOs compromised? [51] It is convenient to take from the Council‘s written submissions the appellants‘ case for refusal of the development application under s 3.5.14(2)(b) of IPA whereby the assessment manager‘s decision must not compromise the achievement of the desired environmental outcomes for the Planning Scheme area: ―BEAUDESERT PLANNING SCHEME 2007 Desired Environmental Outcomes 50. Desired Environmental Outcome 2.1.3(2)(j) (Ex. 8, p. 14) states that development: “(j) maintains and consolidates the existing and planned structure of urban centres which provide that – (i) Beaudesert is the principal rural centre of the Shire; and (ii) retail, business, industry, community services and recreational activities which provide local employment opportunities are located in Jimboomba, Logan Village, Greenbank, Canungra, North Tamborine, Eagle Heights; and (iii) local convenience services are located at Spring Mountain Drive, Woodhill, Homestead Drive, St Aldwyn Road, John Collins Drive, Tamborine and within the Shire’s rural villages. -- 32 of 47 -- 33 51. In addition to DEO 2.1.3(2)(j), Mr Reynolds asserts that the proposed development ―conflicts with and would compromise the achievement of Desired Environmental Outcomes 1(a), 2(a) .. and 2(1)‖: Town planning JER, Ex. 7, Tab. 1, p. 27, para [6.2.2]. 52. DEO 1(a) (Ex. 8, p.12) states, ―the environment is conserved such that - (a) lawful uses (which are not lawful non-conforming uses) are protected and an efficient land use pattern, that promotes integrated communities (which enjoy enhanced liveability, effective growth management, sustained economic growth, good urban design and ecological sustainability) is created and maintained”. 53. DEO 2(a) (Ex 8, p.13) states, ―development - (a) protects both the urban and rural economic bases of the Shire”. 54. DEO 2(1) (Ex. 8, p.13) states, ―development – (l) is of a scale, form and intensity appropriate for the locality and is only developed at a greater scale, form or intensity where it can be demonstrated that there is both an overwhelming community need and an overwhelming economic need for the development.” [52] In his individual report (Exhibit 29) Mr Reynolds resiled in respect of DEO 2(a). On the evidence before the court, Beaudesert‘s role as the principal rural centre will be unaffected. It, and not Jimboomba will have important State facilities such as a hospital and court. It will be the seat of the Scenic Rim Regional Council, which is now the local authority; it will be the focus for services such as banking. Even if Jimboomba may by virtue of the proposal rival or for a time leapfrog Beaudesert in the extent of retail space, Beaudesert will remain the principal rural centre. On no basis will Jimboomba fulfil such a role. [53] The 1(a) argument appears to focus on the lack of ―integration‖ in a stretched commercial precinct which Mr Reynolds says will be more than two kilometres in length, equivalent to the full length of the Brisbane CBD from George Street to Ivory Street (and larger than Beaudesert‘s town centre). If Jimboomba is to have this kind of development at all its being located in this way may be inevitable. While commercial development will assuredly not radiate in multiple directions from a core, and while there may be intervening land uses such as the school, I do not think that it is appropriate to characterize what the proposal would produce in a vehicle-dominated context like Jimboomba as lacking integration, while recognising that the school lies in the way of pedestrian connectivity so long as we are disinclined to walk distances longer that about 400 metres. In any event achievement of this DEO on a local government area-wide basis (whatever that may be in the unusual circumstances since March 2008) cannot be seen as threatened. As to DEO 2(l), one has to take care not to be overwhelmed by use of the expression ―overwhelming‖, which does not necessarily require something of -- 33 of 47 -- 34 gigantic or irresistible dimensions, merely something countervailing of sufficient potency to merit being respected and accorded effect. See Yu Feng Pty Ltd v Brisbane City Council (2007) 156 LGERA 399; [2007] QCA 382 at [26]: ―what would constitute an ‗… need‘ would vary enormously. There would be almost an infinite variety of facts which could impact upon the decision whether or not there was an ‗overwhelming need‘ for the proposal under consideration‖. The co- respondent, which bears the onus of proof in this appeal, has shown what it needs to in this regard. The DEO in terms allows for such an exercise. Established need does not necessarily lead to approval [54] The appellant pointed to a cluster of cases in which shopping centre proposals were rejected as indicating that established need for retail facilities in a location does not necessarily justify approval: Bowden v Brisbane City Council [1991] QPLR 271, Mustercliffe Pty Ltd v Brisbane City Council [1991] QPLR 111, Overton v Redcliffe City Council & Family Assets Pty Ltd [2000] QPELR 250 and Wilispap Pty Ltd v Mulgrave Shire Council [1992] QPLR 51. At the headnote of the last case records, it was held that: ―(1) There is a need for the provision of further retail facilities in the region. (2) The proposed development would prejudice the feasibility of the hierarchy of shopping centres proposed by the draft Development Control Plan.‖ There is no principle that an established need should be satisfied, even if that is established to be a ―planning need‖ or ―community need‖. In the present context, as in many of the authorities, need can be as a factor justifying overlooking conflict with relevant planning arrangements. In the balancing exercise to be undertaken, need will not necessarily prevail. [55] While the court in determining that there is no conflict with the SEQRP given that the proposal does not lead to Jimboomba serving a more grandiose role than the SEQRP envisages for it, conflict with the 2007 Beaudesert Shire Planning Scheme is clear, most starkly in exceeding of the 14,000 square metre cap on retail uses. There is also alleged fragmentation (or lack of ―integration‖) of retail uses in Jimboomba of the kind which helped to defeat a proposed shopping development in Anka Builders (Gold Coast) Pty Ltd v Maroochy Shire Council [1986] QPLR 476. The buildings proposed, for site 1 in particular, are contended to be inconsistent with the character intended for that part of Jimboomba and also Jimboomba‘s present character. The co-respondent concedes that even site 2 will create conflict insofar as lacking an ―office‖ appearance in upper levels. (See outline of submissions para 115). More important, it is contended that the proposal runs counter to the hierarchy intended to be preserved by the Planning Scheme whereby Beaudesert is the pre-eminent centre and Jimboomba and other recognized centres provide only ―local‖ business, retail, industrial and community services and activities and ―local employment opportunities‖, while Beaudesert is the ―principal rural centre of the Shire‖. See DEO 2.1.3(2)(j) and 2.2.5(2) (Broad Strategies for the Shire). In this regard, both the appellants and the Council (defending its approval) claim support from HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230 in which the Court of Appeal allowed an appeal against a -- 34 of 47 -- 35 decision of this court which had dismissed an appeal to it from the Council‘s decision to approve a re-zoning of a five hectare site on Morayfield Road from the Special Rural Zone to Central Commercial Zone to accommodate a shopping centre. Caboolture Shire‘s Strategic Plan had the objective of encouraging consolidation and expansion of existing major commercial and business areas within the shire and with the exception of a new major centre indicated for Bribie Island, all significant commercial and business developments were to expand upon or support existing concentrations of such activity. The objective said: ―Council will not approve applications which would facilitate a significant increase in shopping or business activity unless it can be clearly demonstrated that the proposed development represents an expansion of, or is complementary to an existing centre. The central business area of Caboolture, through continuing development and pre-development is continuing to maintain its role as the administrative, business and retail centre of the Shire and the maintenance of this position will be encouraged to ensure that a business centre of regional significance is retained in the Shire to serve the Shire‘s population. Expansion of the town centre is envisaged …‖ The following objective of encouraging development along Morayfield Road south of the Caboolture River for commercial-service industry and showroom type use at appropriate locations was nullified by the stipulation that it was ―considered inappropriate to permit uses on Morayfield Road which would operate in competition with the retailing and business activities of the Caboolture Town Centre. The Morayfield Road area excluding the Morayfield Town Centre is designed to function as a complementary area to the town centre‖. The Court of Appeal said in reference to Objective (1) at 235: ―The reason why her Honour held that the proposal did not conflict with cl 6(1) was that, notwithstanding that the proposed centre would be a larger retail centre than any in the central business area, the central business area would remain the commercial business centre for the shire and the centre for a range of quality comparative shopping (whatever that means) in consequence of which it would remain a business centre of regional significance. In other words, her Honour did not think that the fact that the central business area would no longer be the major retail centre in the shire meant that it would no longer be the administrative, business and retail centre of the shire. Divorced from its context cl 6(1) is capable of bearing that construction; that is, that the phrase ―administrative business and retail centre‖ must be read so that it is sufficient if any combination of administrative business and retail activities ensures that the central business area of Caboolture is a business centre of regional significance. However, the context, in our view, dictates that the phrase should be construed distributively; the intention being that the central business area of Caboolture should be and remain the administrative centre, the business centre and the retail centre of the shire. The second last paragraph of subcl (1) and the paragraph to which we have referred in subcl (2) must be read together. So read together, that paragraph in subcl (1) indicates, in our view, that the Council would not approve an application which would facilitate a significant increase in -- 35 of 47 -- 36 shopping activity on the combined area of land consisting of the subject site and the existing Franklins store unless it could be clearly demonstrated that the proposed development represented an expansion of, or is complementary to, the existing centre functioning as the town centre for Morayfield. Moreover the phrases in subcl (2) ―It is considered inappropriate to permit uses along Morayfield Road which would operate in competition with the retailing and business activities of the Caboolture town centre‖ and ―The Morayfield Road area excluding the Morayfield town centre is desired to function as a complementary area to the town centre‖, that is, the Caboolture town centre, recognise that, except for the area that is to function as the town centre for Morayfield, the Morayfield Road area generally will not detract from but will complement the retailing and business activities of the Caboolture town centre, thus ensuring its pre- eminence as the major retailing and business centre of the shire. It is significant in our view, that a great deal of that Morayfield Road area is zoned central commercial by the plan of which the strategic plan forms part and that the area so zoned is in close proximity to the subject land. …‖ [56] The Court of Appeal‘s conclusion did not lead inevitably to an outcome of the developer‘s proposal being rejected; the proceeding was remitted to this court for further consideration in light of the Court of Appeal‘s having declared the proper construction of Objectives (1), (2) and (4). [57] The provisions protective of Beaudesert‘s role which require consideration in this appeal are very different. In my opinion, it is not necessary for Beaudesert to retain predominance in retail for it to remain ―the principal rural centre of the Shire‖. Further, I do not think that the proposal involves Jimboomba providing services more extensive than ―local‖ or serving more than its own ―local catchment area‖ (for the purposes of 2.2.6 Local Strategies for the Mount Lindesay Corridor Zone) because it does not result in Jimboomba trespassing into the catchments of Logan Village, Greenbank or Canungra which are identified as having their own catchments. The relevant provisions go on to recognize smaller centres which provide ―local convenience‖ services or are serving ―local convenience needs‖. The Jimboomba State School and Fragmentation [58] The proponents of the draft Jimboomba Local Plan envisaged the school being relocated, the space it occupies becoming available for commercial development as well as community purposes, such as a town square, apparently seen as the future heart of the town, displacing Cusack Lane, if it be the present ―heart‖. Whatever the future planning scheme may envisage or encourage, the school is entitled to remain where it is, and on the evidence will remain, however compelling the arguments for relocation based on dangers from traffic, etcetera may appear to be. The school principal perceives no difficulties for the school if the proposal proceeds, suggesting only minor improvements along the northern interface with the proposal to limit impacts of moving vehicles within the school, which the co-respondent is willing to adopt. The traffic experts (none of whom suggests traffic issues should preclude approval) identified important advantages to the school community by way of -- 36 of 47 -- 37 increased parking and improved patterns of movement in and about the school‘s eastern ―setdown‖ area, and above all by the closing of access which presently exists there between Mt Lindesay Highway and the service road (to which the school has frontage) by a short east-west connector road. This creates a confusing, complex double intersection which is undesirable for safety reasons. I prefer the view that the proposal will not greatly or unacceptably increase traffic volumes along the service road past the school. [59] As noted, the proximity of school and commercial uses (the former splitting the latter, which will not be integrated in the sense of being contiguous) would be seen as potentially problematic for commercial uses, as opposed to the school‘s activities. The drafter of the currently favoured draft Jimboomba Local Plan took this line. The introduction of non-integrated (non-contiguous) commercial uses is of little concern in the circumstances. There must be many instances of long established schools operating harmoniously in town centres alongside commercial uses. There is no suggestion of problems occurring over past years flowing from the operating of the nearby tavern at the northern corner of the service road and Cusack Lane. It is considered that shopping centre parking facilities are much availed of by parents having reason to come to the school. [60] That the school will be staying put frustrates to an extent the expectations underlying the draft Jimboomba Local Plan and inflicts upon the town‘s centre, should it expand to the north (to which there appears no viable alternative), the consequences of lack of integration – a situation the draft LP in various places bemoans or condemns. My view is that the fragmentation of the commercial heart of Jimboomba which will come with the proposal is of only modest significance. Existing development is highly fragmented. People will drive rather than walk between the existing shopping centres as they will if they decide to patronize site 1. The change worked by the proposal will be to separate the two supermarket based shopping centres by a slightly longer drive. Site 1, as it happens, will offer internally a greater integration of the variety of destinations for customers than is presently available in Jimboomba. To the extent that the planners Mr Schomburgk and Ms Rayment claimed support for the proposal from the draft Jimboomba Local Plan based on prospects of integration of commercial facilities, their reliance is shown to be misplaced by the evidence of Ms Minnery of the Education Department. However, the factor was something of a ―make weight‖ and not essential to their conclusions. [61] Apropos the planning scheme, the appellants submit: ―89. [The] planning intent is reflected in the current scales of Beaudesert and Jimboomba. The total retail provision in Jimboomba is currently 12,266m2, and when vacant and commercial space is included it is in the order of 21,500m2. Beaudesert has approximately 26,000m2 of retail floorspace, and a total of approximately 44,000m2 of commercial, retail and community space. With the subject proposal added to Jimboomba, it will be of a similar size to Beaudesert in terms of total floorspace, but will have a considerably larger retail provision. -- 37 of 47 -- 38 90. Mr Norling‘s comparison of populations and floorspace provision in the Principal Rural Activity Centres of Gatton (and Beaudesert) with various Rural Activity Centres illustrates the effect of the proposal in hierarchical terms. It is significant that none of the 6 Major Rural Activity Centres has (or is identified to provide) a DDS. … … 92. The proposed increase in floorspace is demonstrative of the extent of the conflict with the Planning Scheme. It envisages only 14,000m2 of commercial and retail, bulky goods, and office/professional uses. Whilst that is already exceeded (the extent and the timing of the excess are a little unclear), the proposal is to add a further 22,000m2 of retail again. The greater the exceedence, the greater the extent of the conflict.‖ [62] I do not think it is helpful to conflate the SEQRP and planning scheme notions of hierarchy, it being preferable to consider them separately. So far as the concluding observation in paragraph 90 is concerned, it is perhaps unsurprising that Jimboomba is offered a DDS by a developer and the other major rural activity centres (Boonah, Laidley, Fernvale, Esk and Kilcoy) are left waiting. I detect no implication that those places ought not to have a DDS. The local and nearby residents in each case would probably welcome one, as I would expect planning authorities to, given the distances separating these centres from larger ones. [63] Otherwise, I accept what is said in the passage quoted. The asserted conflict does exist. Its significance is slightly reduced by Overall Outcome 24 (see [8] above). Studies determining the appropriateness of the expansion (including the joint economic experts‘ report, one might suggest, as well as Mr Duane‘s 2007 report) have been done. I consider it is arguable that OO24 leads to there being no conflict, but in the end the co-respondent and the Council have not persuaded me of that, given that the proposal doubles what Jimboomba has in a single hit and that it incorporates components, specifically the DDS, which the Planning Scheme would have envisaged being developed at Beaudesert. (I note the appellants‘ contention at paragraph 102 that there are no ―planning studies‖; it is recorded there that an economic study referred to in a report by the consultants engaged to prepare the draft Jimboomba Local Plan did not support the proposal: see Exhibit 67 tab 1, pages 63-67.) [64] While the insult to the Planning Scheme‘s planned structure of centres does not, in my view, compromise achievement of any relevant DEO, it does involve ―conflict‖ with the planning scheme, being the one which is at this point under discussion. [65] I accept that there exists what the appellants call ―the fragmentation conflict‖. It is hardly necessary to identify specifically the precinct provisions which call for ―a high level of integration‖ and retail/commercial development having a ―compact, centralised location‖. An aspect unfavourable to the proposal in this context (which doubtless causes great concern to businesses presently trading in Jimboomba) is the removal of the Woolworths supermarket from site 2 to site 1. Most Woolworths‘ customers may cease to use site 2 or to find themselves in the vicinity of Cusack Lane. The likelihood is that implementation of the proposal will create, to use Mr Reynolds‘ language, ―two separate centres in separate locations which are not -- 38 of 47 -- 39 integrated with each other, or with the town centre as a whole‖. Unfortunately, Jimboomba already has separate centres in separate locations which are not integrated with each other or with the town centre as a whole. The other planners conceded the new separation brought about by the proposal was ―not an ideal situation‖ (joint economic report paragraph 7.1.8, transcript for day 8, page 12, lines 8-10 (Ms Rayment)). The question for the court is not whether the proposal is ideal, but whether it is acceptable. [66] Next, there is said to be a ―character conflict‖. As they had done for the ―fragmentation conflict‖, the appellants rely on policies set out in the SEQRP along with planning scheme provisions to support their case. This is a novel forensic exercise in my experience. The SEQRP in expressing a desire that strong, healthy and safe communities be established wants to encourage walking and cycling, integration of land uses and transport to support them. 6.3 is specifically relied on here. These are conventional statements nowadays of which Fryberg J might have said they are ―utopian statements of [the planning authority‘s] aim and vision for the future, couched in motherhood terms and apparently useless for the purposes of interpreting the remainder of the document‖ (Ballymont Pty Ltd at [39]). The ―character conflict‖ submission relies on part of ―Desired regional outcome 8‖ (compact settlement), having skipped 7 Engaging Aboriginal and Torres Strait Islander peoples:- ―8.8 Mixed-use activity centres Principle Include a broad mix of land uses in activity centres and structure them as mixed-use centres in a predominantly main-street format to best serve their surrounding communities. Policies 8.8.1 Provide for a range of land uses to be incorporated into activity centres appropriate to their roles and functions in the network. 8.8.2 Develop new activity centres with street-fronting retail layouts instead of enclosed or parking-lot dominant retail formats. Notes Mixed-use centres on priority transit corridors and other high-frequency transit corridors improve environment, economic and social outcomes for regional communities. This results in:  improved support for public transport, cycling and walking  increased urban and streetscape amenity, and public realm, with an enhanced sense of place and community ownership  support for a wider variety of uses, local employment and small businesses  an appropriate setting for higher density housing -- 39 of 47 -- 40 8.8.3 Provide activity centres with attractive, high-amenity public areas at locations that encourage and support social interaction, casual meeting and active lifestyles. 8.8.4 Transform activity centres that are dominated by enclosed retail into a main-street format as redevelopment occurs by including active street frontages, integrating development with surrounding public spaces and activities, and introducing more employment opportunities and a wider range of services. All centres should be planned as activity centres, not just shopping centres, and provide for high-yielding employment uses as well as retail and residential land uses. Enclosed retail formats are generally not supported because they connect poorly to the surrounding communities, do not have streets for social interaction and do not support sufficient non-retail jobs. If existing retail-dominated centres undergo necessary expansion, developers should take the opportunity to introduce active street frontages, more employment and a wider range of services. This enables residents and workers to meet and interact, builds social capital, and creates networking and business opportunities.‖ While demonstrated compliance with such aspirations may well be a potent factor supporting a particular development proposal, I am unpersuaded that the SEQRP has the intention or the effect that failure to provide the benefits described is a factor telling against approval of a development proposal. [67] It is unnecessary to go beyond the planning scheme to find chapter and verse supporting the appellants‘ point, although the SEQRP is more specific in seeking ―a predominantly main-street format‖. It is accepted that the proposals for site 2 achieve what is intended. Staging conditions require that the bulk of what is to happen on the Cusack Road frontage will be completed before development on site 1 can start. The co-respondent does not have the option of using the approval to develop site 1, but ―abandoning‖ site 2. The essential complaint is that what is proposed for site 1 is an inward-looking (very) big box, whereas the overall outcomes for the zone call for establishment, conservation and enhancement of local character and the promotion of a distinctive local identity and sense of place, development generally consistent with the ―existing scale, form, intensity and character of development‖ (Zone OO12) and the like. In the Mixed Use Precinct (site 1) SO1 intends that development exhibit ―Commercial Office Character‖ on larger lots, a range of low impact retail showroom and low impact industrial type activities being envisaged. The appellants‘ written submissions refer to the Retailing and Commercial Activity Code which has as its overall outcome retail activities making a positive contribution to the streetscape. Quoting paragraph 128(e), ―the Probable Solutions refer to façade, design and detailing which complements traditional building elements; achieving a traditional character by the incorporation of high pitched roof forms, rectangular building plan forms or extensive use of timber, brick, corrugated iron or similar materials; provision for cantilevered or suspended awning or veranda over adjoining footpaths; addressing the street frontage with the main entrance visible from the street; and providing car parking areas that do not become the dominant frontage feature‖. The co- -- 40 of 47 -- 41 respondent mounts the familiar justification for its site 1 proposal in terms of form following function and there being a certain inevitability as to what a large shopping centre will look like. No decisions of this court or any similar one rejecting a proposed shopping centre on aesthetic/character grounds was given to the court.4 It is not a situation in which there is any heritage place or pleasing streetscape that requires protection against some jarring new development. No one could point to anything resembling a Jimboomba character of any value in the relevant precincts. The proposal is markedly superior in presentation to existing (and in particular the more recent) commercial construction. In defence of the site 1 proposal is its location well inside a large site and buffered by vegetated open space which will spare passers by any experience of being dominated by a larger structure at close quarters. This is another respect in which, even if Stockland might have done better, its proposal is acceptable. [68] Traffic considerations, unlike the foregoing ones, were not pressed as constituting an independent ground for refusal; the evidence about those matters is said to reinforce the appellants‘ town planning case, particularly as regards the ―fragmentation conflict‖, that is, that people will drive between the centres. On balance, what the development will bring by way of parking provision and roadworks in the area provides positive support for the proposal, although there is no reliance on the court‘s part on anything other than ―need‖ for the purposes of overturning conflict under s 3.5.14(2) of the IPA. As will appear the supporters of the proposal advanced other factors. [69] The co-respondent by election (Chief Executive, Department of Transport and Main Roads) was represented in the appeal, but participated only to a limited extent, in relation to traffic matters which proved uncontentious. Queensland Transport and the Department of Main Roads were concurrence agencies for the development application. In the end, their conditions were unchallenged, nor was it sought that they be changed should the appeal be dismissed, although ―there may be some minor changes necessary to reflect current plan numbers‖. The written submissions note that Mr Pekol considered that the level of public transport infrastructure provided falls short of what New South Wales guidelines provide (there are no Queensland guidelines), leading him to suggest further consideration of how a bus stop closer to the proposed centre‘s main pedestrian entry and additional facilities might be provided; all traffic engineers agreed that the development does not jeopardize or limit choices that might be made in the future about the appropriate location of a bus interchange when and if Jimboomba requires such a facility. [70] The planning scheme in 1.2.14 identifies as ―inconsistent development‖ any development not specified as Consistent Development in the Relevant Consistent Development Table. Inconsistent development is declared to be inconsistent with applicable Zone Code and the relevant Overlay Code (see 1.2.14). 2.2.7 is the Consistent Development Table for the Mt Lindesay Corridor Zone. A shopping centre (being what is proposed here) is consistent development only ―Where in the Town Centre Core Precinct‖. Likewise a ―shop‖ which is also consistent in the Minor Convenience Centre Precinct. Consistent development in the Mixed Use Precinct is limited to a child care facility, (somewhat confusingly) commercial activity, community care centre, convenience or restaurant, educational establishment, food establishment/reception centre, funeral premises, hospital, 4 Cf. PMM Group (infra) -- 41 of 47 -- 42 indoor sports creation and entertainment), ―industry-low impact/service‖, market, motel, passenger terminal, produce stall, public worship, retail plant nursery, retail showroom, service station, telecommunication facility, tourist facility, veterinary surgery/hospital and warehouse/storage facility. It is in this context that impact assessment is required under the IPA, which establishes a regime in which, as it is said, no use or development is ―prohibited‖; development proposals are examined on their merits for their acceptability, paying due regard to the planning scheme, etcetera. [71] In PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144 at [92] Robertson DCJ declared himself satisfied that a proposal for a Bunnings Warehouse ―conflicts significantly with the provisions in the Planning Scheme dealing with scale, appearance, integration and built form‖. His Honour found a ―planning need for a mega hardware store of the kind proposed by Bunnings‖ but not an ―overwhelming‖ need. The Bunnings proposal had other serious conflicts with the planning scheme to overcome, including retail hierarchy provisions and provisions protecting industrial land. [72] In my opinion need for the proposal (which, given the way in which the appeal was conducted, was tested by reference to the need for a DDS) as a matter of public interest, therefore potential ―grounds‖ for the purposes of s 3.5.14, has been established and the correct decision is one that will lead to that need being satisfied if the development, which ought to be approved, proceeds. The need is a community one, a planning one and, in the circumstances, an ―overwhelming‖ one. [73] Established need will not necessarily carry the day. There should be noted the appellants‘ points raised against giving effect to need to overcome conflict here. PMM Group (in which the Council opposed the development proposal) was relied on. The relevant perspective in considering need was (correctly) said to be that of the community. I took the suggestion in paragraph 145 of the written submissions to be that, while Jimboomba might be ―at the centre of the trade area‖, geographically, it is so small that it cannot be seen as containing a community that needs a DDS. In my opinion, it is appropriate to regard Jimboomba, particularly given its location on principal thoroughfares, as the centre of a community broadly corresponding in its distribution with the Mt Lindesay Corridor Zone. [74] The nature of the use was said to be a relevant consideration, so that a need for a supermarket in a location where there was none to provide the day to day necessities of life would merit recognition, whereas one for a facility resorted to less frequently (say, fortnightly) might be left unsatisfied. I do not accept that approach, given the everyday nature of many of the product lines carried by Big W stores as shown in attachment ―LH-1‖ to exhibit 33, nor the related argument that the relevant community already enjoys access to DDS facilities (indeed has a choice of them) at Browns Plains which boasts a Big W, a K Mart and a Target. Browns Plains and other DDS locations like Orion, Springfield are too far away. I am not impressed by the suggestion that the ―need‖ for DDS facilities could be seen as satisfied by a DDS near residents‘ places of employment. Paragraph 149 makes an argument that predicted population growth will see the percentage of customers at a Jimboomba DDS from the ―local‖ Jimboomba sector decline from 50 per cent to 17 per cent by 2021, Beaudesert retaining a 30 per cent contribution and Greenbank and Munruben combined falling from 20 per cent to 17 per cent. The big change will be the -- 42 of 47 -- 43 growth of Flagstone, Yarrabilba and Beaudesert. I do not think it correct to discount a presently existing need on such a basis. [75] The economic experts used the following population data and projections: The ―disputed territory‖ lies between Jimboomba and Flagstone. There is disagreement as to whether it ought to be allocated to the Jimboomba primary sector or to the Flagstone primary sector. Not a lot turns on the issue, as the numbers are small. I prefer the allocation to Jimboomba (the majority view) if only because of existing road links and the proximity of the territory to Jimboomba (and the north- south thoroughfare, ie the Highway), with which, no doubt, it is presently well- integrated (as it could not have been with Flagstone). Jimboomba on its own, while only ―half‖ entitled to a DDS, will not be overtaken until well into the next decade (on the numbers used); even at that time, its central location would dictate its being selected over its rivals. [76] In my opinion the need for a DDS (being the relevant yardstick in this appeal) is not discounted by there being a total vacancy at Jimboomba of 3,521 square metres ―representing 30 per cent of the occupied retail floor space‖ which was said to provide evidence that the Jimboomba Retail Node was ―significantly under- performing‖. The poor performance of businesses in shopping centres south of Cusack Lane may well be attributable to the poor design of those centres or other factors. While the proprietors of a number of those businesses gave (unchallenged) evidence of their concerns about the proposal which I accept was an honest expression of concerns genuinely held, the economic experts do not anticipate that the proposal will have unacceptable impacts on such proprietors. This may be of little comfort to Mr Kelly, representing the owner of the Jimboomba Junction centre but one would think that the exposure of his tenants is less than his and limited to the terms of their leases; opportunities may well arise for them to follow Woolworths to site 1. That development of site 1 may have an adverse impact on the existing Jimboomba Shopping Centre (site 2), which Mr Norling estimates as high as 74 per cent in consequence of the Woolworths supermarket relocation does ―Trade Area Sector Estimated Resident Population Forecast Population 2006 2010 2013 2016 2021 2026 Primary Sectors Jimboomba 13,900 14,700 15,300 15,750 16,500 17,000 Yarrabilba 7,580 7,780 8,230 10,030 15,530 24,030 Flagstone 4,350 4,550 5,300 7,850 18,350 30,850 Disputed Territory 1,040 1,040 1,100 1,160 2,410 4,410 Total Primary 26,870 28,070 29,930 34,790 52,790 76,290 Secondary South Sector Beaudesert 15,720 16,920 19,020 21,720 28,720 36,220 Secondary North Sectors Munruben 7,480 7,800 8,040 8,190 8,440 8,690 Greenbank 3,230 3,430 3,730 4,630 6,130 7,380 Total Secondary North 10,710 11,230 11,770 12,820 14,570 16,070 Main Trade Area 53,300 56,220 60,720 69,330 96,080 128,580” -- 43 of 47 -- 44 not in my view tell against the need for a DDS. Under the heading Absence of Planning Need in paragraph 161ff, the appellants have two arguments: firstly, the population should wait for a DDS at Beaudesert ―and subsequently in Flagstone and Yarrabilba‖; and secondly the facility can be provided on site 2. Those contentions have been dealt with elsewhere. The court rejects them. The Council’s case concerning conflict [77] The Council accepts that the proposal is in conflict with planning scheme provisions that: (b) ―relate to the achievement of a consolidated town centre within a compact, centralised location; (c) provide for a ―cap‖ of 14,000m2 gross floor area intended for the Jimboomba town centre; (d) provide for development to maintain and enhance the distinctive character of the Jimboomba town centre; (e) seek to provide pedestrian, cycle and vehicular connectivity.‖ That is a useful summary of the conflict, broadly similar to the co-respondent‘s which adds the ―inconsistent development‖ point, given that the court rejects the contention that the proposal involves usurping Beaudesert‘s role in the centres hierarchy (assuming that to remain a relevant potential consideration, notwithstanding the alteration of local government area boundaries from March 2008). The factors or ―grounds‖ the Council points to which allegedly justify approval notwithstanding the identified conflicts are need for the proposal (in a context of DDS facilities at Flagstone and Yarrabilba not being significantly delayed if the proposal goes ahead – as to which issue I accept the criticisms made of Mr Norling‘s approach at paragraphs 149 and 150 of the written submissions),5 the benefit to Flagstone and Yarrabilba sworn to by Mr Eagles, the improvements to Cusack Lane area by works on site 2, traffic works at four different locations producing benefits such as three new signalised intersections and improvements in safety for pedestrians as well as in traffic safety and a capacity (contributions Mr Viney opined were unusually large given that the development will only increase overall traffic generation for site 1 and site 2 combined by about 1200 users in peak hour). [78] More expansively, the co-respondent proposed ―grounds‖ as follows: ―153. The sufficient grounds are: (a) the development satisfies a town planning and community need for the provision of DDS based retail facilities for the residents of the Main Trade Area agreed by the economic experts; 5 The delay in Flagstone, Yarrabilba and Beaudesert, assuming there is some, would be even less significant if Mr Norling‘s scenario of operators willing to bear financial losses in early years and establishing a DDS to serve a population of only 21,500 people (see his report Exhibit 28 paragraphs [26] to [28]) should be borne out. -- 44 of 47 -- 45 (b) Jimboomba is an ideal location to equitably serve all residents of the agreed main trade area for the foreseeable future; (c) the development will improve the wellbeing of the community by the provision of an increased non-food retail offer, including a discount department store, saving many residents in the trade area a round trip (to Browns Plains) in the order of 40 (from Jimboomba) to 80 kilometres (from Beaudesert); (d) the development will expand the limited choice of the non-food retail offer within the agreed trade area; (e) because of its central location, the facility is ideally located to serve the existing communities of Beaudesert and Flagstone, and the future community at Yarrabilba, until such time as the population of those areas supports comparable retail facilities; (f) the proposal will enhance competition in the area and will substantially reduce the need for shoppers to travel outside the catchment to Browns Plains and beyond to satisfy basic retail needs for non-food items; (g) the development is an attractive modern facility that will consolidate, enhance and improve the existing character and amenity of Jimboomba in terms of not only its retail facilities, but also its built amenity; (h) approval of the development will improve the physical wellbeing of the residents of Jimboomba and surrounds by providing modern and convenient retail, dining and entertainment facilities, not currently available within a reasonable driving distance; (i) the need for the provisions of these facilities cannot be satisfied within the Town Centre Core Precinct and the proposal is effectively on the edge of the existing centre; (j) the proposal exhibits a high level of urban design which will enhance the amenity of the locality generally, and compliment the character of the area; (k) the development will revitalise Cusack Lane, ensuring that the existing Woolworths centre will actively focus upon and positively contribute to the vitality of the precinct by providing, amongst other things, cafes and outdoor eating areas, an extension to the existing tavern and the provision of other facilities (such as a gym) all of which will contribute to an active entertainment and retail precinct for the local residents; (l) the provisions of the Beaudesert Shire Planning Scheme 2007 was, when it came into force, unsoundly based, as evidenced by the fact that at the date it took effect, the -- 45 of 47 -- 46 combined gross floor area of Commercial and Retail Bulky Goods and Office/Professional Uses already exceeded the so-called ―Cap‖ of 14,000m2; (m) the development is consistent with and gives effect to and assists to achieve the Council‘s planning objectives for Jimboomba as embodied in the draft Jimboomba Local Plan 2009-2031; (n) the proposed development gives effect to the objectives for Jimboomba as a Major Rural Activity Centre in the SEQ Regional Plan 2009 including concentrating the provision of goods and services more efficiently, encouraging shorter travel distances and providing a focus for community and social interaction; (o) approval of the development will ensure the provision of important road infrastructure, high quality pedestrian connections, street furniture, shade trees and other infrastructure in the locality which will improve levels of service to the community; (p) the development will not unacceptably impact on existing retail centres nor unacceptably delay the development of designated, but yet to be developed, centres at Flagstone and Yarrabilba: to the contrary the proposal will serve those communities as they grow over the next 10 to 15 years when their respective populations may well justify the development of those locations; and (q) the development will ensure the uninterrupted provision of retail facilities to the Jimboomba community because the existing Woolworths supermarket will trade at Site 2 until the new centre at Site 1 is completed. The new modern retail facilities can be delivered without interruption to, or diminishment of, the existing services available to the public.‖ [79] All of those propositions are defensible. The bulk of them come down to need for the facility and the praiseworthy aspects identifiable in the means by which the need is to be satisfied. I doubt that (g) can be accepted as a ―ground‖; it comes down to giving effect to a judgment of the proposal to be better than what the planning scheme desires; the point made in (i) is essentially that a location contra-indicated in the planning scheme can be seen as less conflicting than some hypothetical remoter one; that does not strike me as a ground the court should recognize. An interesting point is raised by (k), namely whether good things to be done on site 2 can justify problematic aspects of things proposed for site 1. I am not in a position to reject arguments along such lines generally; however, I think that what is proposed for site 1 here is of such a scale that it must be justified on its own terms. As the appellants observed in their submissions, it seems that much of what is proposed for Cusack Lane will come about anyway. The revitalization referred to may occur, but it will be in the context of Cusack Lane and its immediate environs being less busy than they presently are. All that can be taken from (l) is that conflict with the cap is of less moment than it otherwise might be. Further reducing the significance of the -- 46 of 47 -- 47 conflict is the planning scheme‘s recognition in overall outcome 24 that a case could be made for exceeding the cap and (in the Specific Outcomes for the Zone) that the relevant precincts in Jimboomba can appropriately play an economic role for the benefit of the residents of the Zone as a whole. The unusual circumstances of the Draft Jimboomba Local Plan, discussed above, are such that it cannot be given recognition as a ―ground‖. Nothing is added by (n); while there is relevance in making the SEQRP come true, this is part and parcel of the proposal‘s satisfying the identified need. If (l) is available as a ground, which may be open to argument in principle (see Australian Capital Holding Pty Ltd v Mackay City Council [2008] QCA 157 at [63]) it is not a persuasive one here, as what is to be provided is not shown to the court‘s satisfaction to exceed what the development itself might render necessary to any remarkable degree. The last points, (p) and (q), strike me as asserting a lack of negative impacts, which in my understanding cannot count as the positive ―grounds‖ required. I reserve judgement on the appellants‘ assertion that providing what the planning scheme calls for in other respects cannot be a ground for overcoming conflict. There would be some situations where a ground arose, eg if some historical non-complying use were to cease. [80] It has proved difficult for the parties supporting the proposal and for the court to formulate any ―ground‖ based on the Beaudesert Shire Planning Scheme having been overtaken by events which have seen the respondent Council, rather than the Council to which the development application was made, become the relevant planning authority and assessment manager, likely to espouse a quite different planning philosophy. It is unnecessary in the circumstances to consider this interesting aspect. Those supporting approval do not need to rely on it. The co- respondent, which bears the onus of establishing that the appeal should be dismissed, amply satisfied that onus without it; indeed; it had no need to invoke grounds other than the principal and obvious one of ―overwhelming need‖. Conclusion [81] The appeal should be dismissed, except to endorse some changes in detail of the proposal that were canvassed in the course of the hearing which Stockland indicated its inclination to accept. These all have the effect of increasing the obligations an approval would impose upon it. The parties will have the opportunity to make submissions about appropriate final orders. -- 47 of 47 --