Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104 [2012] 2 QPELR 346

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Blacks Beach Cove No. 2 P/L v Mackay Regional Council & Anor [2011] QPEC 104 PARTIES: BLACKS BEACH COVE NO. 2 PTY LTD (Appellant) v MACKAY REGIONAL COUNCIL (Respondent) and HAWKHAVEN PTY LTD (Co-respondent by Election) FILE NOS: 211/2009 1201/2010 1202/2010 DIVISION: Planning and Environment PROCEEDING: Appeals ORIGINATING COURT: BRISBANE DELIVERED ON: 05/08/11 DELIVERED AT: BRISBANE HEARING DATE: 14/03/11 – 24/03/11 & 15/06/11 JUDGE: Searles DCJ ORDER: 1. THREE APPEALS ALLOWED 2. APPEAL D211/2009 ADJOURNED TO ALLOW ISSUE OF CONDITIONS TO BE RESOLVED ONE OF WHICH WILL BE THAT THERE BE NO RESIDENTIAL DEVELOPMENT SOUTH OF BONDI ROAD OPPOSITE THE BBC SITE AND THAT ANY DEVELOPMENT OF THE BBC PROPOSAL NOT COMMENCE UNTIL THAT IS ACHIEVED. CATCHWORDS: Integrated Planning Act 1997 – Minor Change – Adjoining Owners Consent – Validity – Network of Centres – Identification of Local Centre – Co-Location of Liquor Barn – Traffic – Layout – Access – Amenity – Need – Economic – -- 1 of 138 -- 2 Planning – Future Expansion Potential COUNSEL: Appellant: MD Hinson SC & EJ Morzone Respondent: CL Hughes SC & AN Skoien Co-Respondent: DR Gore QC & J Houston SOLICITORS: Appellant: P&E Law Respondent: McCullough Robertson Co-Respondent: Anderssen Lawyers -- 2 of 138 -- 3 CONTENTS Appeals ................................................................................................................................ 5 Proposals ............................................................................................................................. 6 HH Proposal .................................................................................................................... 6 BBC Proposal .................................................................................................................. 7 Submitters ........................................................................................................................... 8 Legislative Framework ...................................................................................................... 9 Approach to Appeals .......................................................................................................... 9 Two Preliminary Issues.................................................................................................... 10 Minor Change Issue ......................................................................................................... 10 HH’s Adjoining Owners Consent Issue .......................................................................... 11 Remaining Issues to be Determined ................................................................................ 13 Consideration of Issues .................................................................................................... 14 Town Planning .............................................................................................................. 14 Zoning ............................................................................................................................ 14 Mr Brownsworth (BBC) .......................................................................................... 14 Mr Buhmann (HH) ................................................................................................... 18 Mr Schomburgk ....................................................................................................... 21 Arguments on Zoning .................................................................................................. 22 BBC Arguments ........................................................................................................ 22 HH Argument on Zoning ......................................................................................... 24 Council’s Argument on Zoning ............................................................................... 32 Conclusion Re Zoning .............................................................................................. 33 Identification of the Blacks Beach Local Centre ....................................................... 35 Mr Brownsworth’s Opinion re Local Centre ........................................................ 35 Mr Buhmann – Network of Centres ....................................................................... 37 Mr Schomburgk – Network of Centres .................................................................. 38 Arguments re Local Centre ......................................................................................... 39 BBC Argument re Local Centre ............................................................................. 39 HH Argument – Local Centre ................................................................................. 42 Council’s Argument – Local Centre ....................................................................... 42 Conclusion re Local Centre ..................................................................................... 44 Planning Need – Community Benefit – Co-Location, Assessability, Convenience, Expansion Potential ...................................................................................................... 44 Mr Brownsworth (BBC) .......................................................................................... 44 Mr Buhmann – Planning Need................................................................................ 46 Mr Schomburgk ....................................................................................................... 48 Economic Need.............................................................................................................. 49 Individual Reports – Economic Need ......................................................................... 50 Mr Duane (BBC) ...................................................................................................... 50 Mr Shimmin (HH) .................................................................................................... 53 Mr Malkiewicz .......................................................................................................... 53 Arguments re Need ....................................................................................................... 54 BBC ............................................................................................................................ 54 HH – Economic Need ............................................................................................... 56 Council – Need .......................................................................................................... 56 Conclusion re Planning Need, Community Benefit, Co-Location, Accessibility, Convenience and Expansion Potential ....................................................................... 57 Traffic ............................................................................................................................ 58 -- 3 of 138 -- 4 Mr Holland (BBC) .................................................................................................... 59 Mr McClurg (HH) .................................................................................................... 63 Mr Camilleri (Council) ............................................................................................ 66 Arguments Re Traffic .................................................................................................. 67 BBC ............................................................................................................................ 67 HH Argument – Traffic ........................................................................................... 70 Council Argument – Traffic .................................................................................... 71 Conclusion re Traffic Issues .................................................................................... 73 Noise, Lighting, Architecture and Urban Design ...................................................... 73 Mr King (HH) ........................................................................................................... 75 Ms Adams (BBC) ...................................................................................................... 76 Submissions on Noise and Light.................................................................................. 76 BBC ............................................................................................................................ 76 HH .............................................................................................................................. 77 Council ....................................................................................................................... 78 Conclusion re Noise and Light ................................................................................ 79 Architecture - Urban Design ....................................................................................... 79 First Joint Report ..................................................................................................... 79 Matters Agreed ..................................................................................................... 79 Matters Not Agreed .............................................................................................. 80 Second Joint Report ................................................................................................. 81 Matters Agreed in Second Joint Report ............................................................. 81 Individual Reports .................................................................................................... 82 Mr Richards (BBC) .............................................................................................. 82 Mr Middleton (HH) .............................................................................................. 85 Arguments re Architecture/Urban Design ................................................................. 88 BBC ............................................................................................................................ 88 HH’s Asserted Killer Point ...................................................................................... 94 HH .......................................................................................................................... 95 BBC ........................................................................................................................ 97 The Council ......................................................................................................... 100 Conclusion re Asserted Killer Point ................................................................. 101 Council – Architecture/Urban Design .................................................................. 105 Conclusion re Architecture/Urban Design ........................................................... 106 Hydraulics Issues ........................................................................................................ 106 Final Conclusion ............................................................................................................. 106 SCHEDULE A ................................................................................................................ 109 -- 4 of 138 -- 5 Appeals [1] There are presently five appeals before the court relating to the two competing shopping centre applications under consideration. Three are the subject of this judgment. They are:- (a) BD1202/2010, a submitter appeal by Blacks Beach Cove No. 2 Pty Ltd (BBC) against the Council‟s approval on 28 January 2009 of Hawkhaven‟s (HH) Material Change of Use (MCU) application for shops – supermarket and six speciality shops; (b) BD1201/2010, a submitter appeal by BBC against the Council‟s approval on 28 January 2009 of HH‟s MCU application for an extension to an existing hotel-liquor barn and drive-through; and (c) D211/2009, an appeal by BBC against the Council‟s refusal on 28 January 2009 of its MCU application for a shopping centre. [2] The remaining two are conditions appeals by HH against the conditions imposed on approvals (a) and (b) above. The appeals were ordered to be heard together1 and have been conducted on the basis that the question of approval or refusal in the present three appeals be determined firstly with the conditions appeals determined later if appropriate. 1 Order 24 June 2010, Exhibit 3, vol 1, p 53. -- 5 of 138 -- 6 Proposals HH Proposal [3] The HH proposal is for a local shopping centre, comprising a supermarket, speciality stores and a liquor barn on land north of Blacks Beach Road comprising two adjoining lots, lot 240 and 241. It involves two separate applications, one for the supermarket and speciality shops and the other for the liquor barn described as a hotel extension. There is an existing Tavern on lot 240 with a Gross Floor Area (GFA) of 1840 m2. [4] All of the development proposed will be on lot 241 for which Council approval has been granted to create three lots.2 The GFA of the proposal, allowing for changes to which I shall shortly refer, totals 2,908 m2 comprising: (a) Supermarket 1855 m2 (b) Speciality Shops 398 m2 (c) Liquor Barn 600 m2 (d) WC and Cleaners 55 m2 TOTAL 2908 m2 That GFA, when combined with the 1840 m2 GFA of the existing Tavern gives a combined centre GFA of 4748 m2. [5] The existing Tavern site (lot 240) is on the corner of Slater Avenue and Blacks Beach Road with existing access from Slater Avenue. That access is to be maintained under the proposal with the addition of a signalised intersection to be created at Blacks Beach Road and Chenoweth Drive to the south of Blacks Beach Road allowing direct -- 6 of 138 -- 7 access into the development from both Chenoweth Drive and Blacks Beach Road. Additionally, it is proposed that a further left-in only access off Blacks Beach Road be positioned on the western side of lot 241. [6] The proposal involves ancillary cleaners‟ facilities, toilets, two loading docks (one at the rear of the supermarket and one at the rear of the shops and liquor barn), and service vehicle bays (one near the shop and one between the existing Tavern and liquor barn). BBC Proposal [7] The BBC proposal is for a local shopping centre3 comprising a supermarket and speciality stores on land south of Blacks Beach Road at the corner of Chenoweth Drive and Bondi Road more or less directly across Blacks Beach Road from the existing Tavern. This proposal is to be located on lot 901 on SP 199843. By a decision dated 28 January 20094 Council approved the reconfiguration of lot 901 to create two lots 901A (1.268 ha) and 901B (.9447 ha).5 The proposed shopping centre will have a GFA of 2750 m2 comprising a supermarket of 1500 m2 and speciality shops of 1250 m2. [8] The BBC proposal will have two access points from Bondi Road which runs in a south easterly direction off Chenoweth Drive. The first will be a left-in only access close to the intersection with Chenoweth Drive to the west and the second an all-turns access via a roundabout to the east near the south east corner of lot 901.6 2 Council approval 12 March 2010, Exhibit 65, p 197. 3 See Exhibit 6, p 39. 4 Exhibit 3, vol 4, p 1249. 5 See plan attachment D, Joint Traffic Report, Exhibit 3. 6 Exhibit 3, Joint Traffic Report attachment. -- 7 of 138 -- 8 [9] The BBC site is part of a larger Master Planned Development approved by this court on 29 May 2008.7 That approval was for a Material Change of Use for Urban Residential and High Density Residential (dual occupancy) and the reconfiguration of one lot in relation to the then lot 24 on K124412 (later lots 901 and 903 SP199843) into 249 Urban Residential lots.8 That reconfiguration was to be generally in accordance with Blacks Beach Cove Master Plan No. C3503:00:03A.9 On that plan, the use of the BBC site is identified as Future Mixed Use, defined in the Planning Scheme for the City of Mackay (Scheme)10 as meaning premises comprising a mix of uses being primarily a combination of commercial uses and residential uses located on the one site. Of the 720 lots the subject of the Master Plan, 360 have been developed to date, The State has recently purchased a 7 ha parcel to the north east of the Master Plan area for school purposes. That site, and other land to the west of Chenoweth Drive, also shown on the Master Plan as Future Mixed Use, is also currently vacant. [10] Under the Scheme both the HH and BBC sites are within the Mackay Frame Locality and in the McCready‟s Creek Precinct. Submitters [11] There were ten submitters, their respective interests varying from commercial concerns to the impact upon personal use and enjoyment of the area for residential purposes. Each submitter has provided a written statement detailing their concerns. They provided me with a valuable insight into local concerns. 7 Exhibit 19. 8 Exhibit 19, pp119-121. 9 Ibid, p 78. 10 Effective from 24 March 2006. See dictionary, Exhibit 1, Pt 12. -- 8 of 138 -- 9 Legislative Framework [12] Notwithstanding the repeal of the Integrated Planning Act 1997 (IPA) by the Sustainable Planning Act 2009 (SPA), s 819 of SPA requires that these Appeals be heard and determined as if IPA had not been repealed.11 [13] Pursuant to s 4.1.52(1) of IPA, the appeals are hearings anew in relation to the development applications with the onus of establishing an application should be approved being on the applicant in each case.12 Approach to Appeals [14] It is accepted by all parties that, ordinarily, the court sitting, in essence, as the assessment manager under IPA to determine the development application, would not, when considering competing shopping centre applications, approach the assessment process on the basis of which is the best site.13 However in the present case where the uncontroverted evidence is that there is a need for only one of the two proposals, the parties agree that it falls within the exception to that general rule as one where circumstances dictate that a comparison be made.14 Of course that does not relieve the court of the responsibility of deciding each application individually in accordance with IPA s 3.5.14(2). Importantly, no application can be approved where conflict 11 For Appeal 211 of 2009, ss 819(1) and 819(2); Appeals 1201/2010 and 1202/2010, ss 819(5) and 819(6). 12 IPA ss 4.1.50(1) and (2). 13 See for example SEAQ v Warwick City Council [1971] 24 LGRA 391. 14 See Green & Anor v Moreton Shire Council [1985] QPELR 328, Ugarin Pty Ltd v Logan City Council [2004] QPELR 392 at [67]; Capricorn Green Pty Ltd v Livingstone Shire Council [2007] QPELR 420 at 413; Glenvale Properties v Toowoomba City Council; McNab Developments v Toowoomba City Council [2008] QPELR 609 at [621]-[622]. -- 9 of 138 -- 10 with the Planning Scheme is involved unless there are sufficient grounds to justify the decision despite the conflict. [15] The comparison exercise will involve a consideration of all relevant issues to determine ultimately which of the two proposals is to be preferred by reference to those issues. Two Preliminary Issues [16] There are two preliminary issues to be determined before proceeding, a Minor Change issue and an Owner‟s Consent issue. Minor Change Issue [17] The HH proposal has been amended in the following respects15:- (a) A reduction in the size of the proposed liquor outlet from 1200 m2 to 600 m2 to accord with the joint view of the economic experts;16 (b) A minor reduction in the size of the speciality shop from 420 m2 to 398 m2; (c) A changed service vehicle manoeuvring arrangement to address concerns raised, regarding excessive vehicle reversing;17 and 15 Exhibit 14, report S Buhmann, para 6. 16 Joint Economic Report, Exhibit 3, vol 5, para 85. 17 Joint Traffic Report, Exhibit 3, vol 5, pp 4-5 – (Mr Holland). -- 10 of 138 -- 11 (d) A minor change to noise mitigation barriers resulting from the changed internal manoeuvring in (c) above and as identified by Mr King a noise and lighting amenity expert.18 [18] Mr Buhmann, HH‟s town planning expert expressed the view that the changes were minor changes within s 350 of SPA and I agree with that conclusion as does BBC.19 The Council made no submission on the issue which I take to be an acceptance that it finds no issue with the status of the changes. I find that the changes both individually and collectively constitute a minor change within the s 350 of SPA. [19] Section 4.1.52(2)(b) of IPA only allows the court to hear and determine an appeal in respect of a changed application where the change is a “minor change”. The meaning of which is to be found in SPA s 350 by virtue of the operation of IPA s 4.1.52(2)(b). HH’s Adjoining Owners Consent Issue [20] The owners of lot 240 (existing tavern) are Mr and Mrs Crombie and Mr O‟Neill. By a document clearly prepared by themselves without legal advice20 they, as owners of the land adjoining lot 241 purported to consent to the development on lot 241 in these terms: “We being the registered proprietors of land described as lot 240 on RP 140, 130, Mackay City, hereby consent to an application for the use of such land for a Reconfiguration of a Lot. Dated this 15th day of February 2008” 18 Exhibit 17, p 12, fig 5, p 20. 19 T10.4.18; T10.55.27. 20 Exhibit 51 dated January 2008. -- 11 of 138 -- 12 Clearly that does not address the application relating to lot 241. The issue arose on the 7th day of the hearing21 when Mr Gore QC for HH called upon Mr Hinson SC for BBC to say whether the shortcomings in the consent were to be an issue. Mr Hinson indicated that he wished to complete his cross-examination of Mr O‟Neill who was then in the box before providing his final position. In the result his written submissions did not address the issue from which I infer BBC does not take issue. [21] That, of course, is not the end of the matter because it raises the issue of whether an application has been properly made is raised and again in turn raises the question of whether the court has jurisdiction to consider the application. [22] HH firstly submits that I should find that the consent was properly granted by the owners for the following reasons:- (a) Mr O‟Neill was aware of the overall proposal and discussed it with the Crombies the operators of the Tavern, before the consent was signed.22 Hence, it is argued, it could not be said that Mr O‟Neill‟s interest was simply as a passive land owner given that the liquor barn application was made at his suggestion and he had a strong interest in operating it if the application was successful;23 (b) The liquor barn IDAS form identified the site as both lots 240 and 24124 where Mr O‟Neill and Mr and Mrs Crombie are identified as owners of lot 240; and 21 T7.54. 22 Exhibit 38, (Statement of Mr O‟Neill) paras 47-49; T7.55-57. 23 Exhibit 38, para 22 24 Exhibit 3, vol 3, p 661; p 663. -- 12 of 138 -- 13 (c) A copy of the consent25 was included in the ROL application relating to lot 241.26 [23] In the alternative HH argues that in the event that I find non-compliance with the formal requirements of IPA in relation to the consent I am empowered by virtue of the operation of SPA s 819(7) and 820(1) to deal with the matter as I consider appropriate. [24] Given the HH application was impact assessable , I am satisfied that the defect in the consent would not have been more than a very minor influence, if any at all, on any potential submitter‟s decision on whether or not to object to the proposal. I accordingly, excuse the non-compliance under the above provisions of SPA. Remaining Issues to be Determined [25] Joint reports, and in most cases individual reports, were provided by experts in the following fields: (a) Town Planning; (b) Need; (c) Traffic; (d) Noise and Light; (e) Architecture and Urban Design; and (f) Hydraulics 25 Exhibit 51. 26 Exhibit 65, p 2. -- 13 of 138 -- 14 [26] There appears to be no dispute that the Blacks Beach locality is planned to have27 and needs,28 local shopping facilities to be located in the vicinity of the two proposed sites. Likewise, it is not in dispute that the type of facilities offered by the two proposals, namely a supermarket and speciality shops with a liquor barn in the case of HH, are the types of retailing facilities needed or appropriate to the Blacks Beach locality, but that the need is for only one such facility29 [27] Relevant extracts from the Scheme are set out in Schedule A to this judgment. Consideration of Issues Town Planning [28] The town planning experts Mr Brownsworth (BBC), Mr Buhmann (HH) and Mr Schomburgk (Council) each gave two joint reports and an individual report.30 The disagreements amongst them in the joint reports were quite extensive and the views of the individual planners are to be found in their individual reports. Zoning Mr Brownsworth (BBC)31 [29] In relation to the HH proposal, Mr Brownsworth considered it offended Urban Overall Outcomes 2(a) and (f) of the Urban Residential Zone which speaks of any 27 Exhibit 1, Network of Centres Map, yellow dot. 28 Exhibit 3, vol 5, Joint Economics Report, p 39, paras 95 and 96. 29 Ibid, p 34, paras 77-82. 30 Exhibit 3, vol 5 (Interim and Final Joint Report); Exhibit 16 (Brownsworth); Exhibit 14 (Buhmann); Exhibit 15 (Schomburgk). 31 Exhibit 16, pp 4-7. -- 14 of 138 -- 15 development being predominantly single detached dwellings and with non- residential development not to adversely affect the residential amenity of the zone. He referred also to Specific Outcome P5 requiring non-residential activity in the zone to be limited to small scale uses directly related to servicing the needs of residential areas. In his view the scale of the shopping centre proposed by HH was in conflict with this requirement for small scale development. [30] His view the HH proposal would have an unreasonable and adverse affect on the residential amenity of the zone particularly on the dwellings in Kinghorn Street, McAlary Drive and Slater Avenue, the owners and occupiers of which, he said, would have an expectation of residential development on lot 241 rather than a shopping centre. For those reasons he considered the HH proposal to be inconsistent with both the Overall and Specific Outcomes for the Urban Residential Zone in the relevant locality. [31] Mr Brownsworth also made reference to the fact that, prior to the introduction of the Scheme which came into effect on 24 March 2006, namely in May 2005 HH lodged a submission to the Council seeking to persuade it that lot 241 was suitable for a mix of commercial/local business uses and Medium Density Residential Development to compliment a local centre in the locality. That submission was unsuccessful and the land remained in the Urban Residential Zone when the new plan was introduced. In his view, had the Council intended that lot 241 be developed for commercial purposes other than small scale purposes contemplated by SOP5, it would have placed the land in the Commercial Zone. -- 15 of 138 -- 16 [32] In that May 2005 submission,32 HH made the following points:- (a) Lot 241 was created in October 2004 as part of Stage 5 of the Sunrise Estate; (b) As Council records would show, throughout the development of the Estate, it had been intended that the site would be developed as a local shopping centre; (c) The site was the subject of a re-zoning approval to a local business zone and the Council still held a bank guarantee to the value of $36,225 from 1994 specifically against Shopping Centre rezoning; (d) The land at the corner of Slater Avenue and Blacks Beach Road had been developed as a Tavern which was intended to compliment an adjoining commercial centre; (e) Under the existing Transitional Planning Scheme Strategic Plan map the site was part of a node identified as Commercial surrounded by Higher Density Residential to the west as well as to the south on the opposite side of Blacks Beach Road.33 (f) In its conclusion and recommendations:-34 32 Exhibit 16, Fig 5. 33 Exhibit 16, fig 5, p 32 (Introduction) 34 Ibid, p 36. -- 16 of 138 -- 17 (i) The Draft Planning Scheme identifies this locality as a Local Centre for the existing and future Blacks Beach area; (ii) The proposed Urban Residential Zoning of the site will not allow for the establishment of a Centre in this locality; (iii) The only land zoned to accommodate retail and commercial uses within this Centre is the adjoining allotment to the east which contains an established Tavern; (iv) The opportunity exists for this site to be developed in a manner which achieves a vibrant attractive mixed use centre whilst offering the traditional services and facilities of a local centre; (v) The land needs to be zoned to facilitate the establishment of the Blacks Beach Local Centre. [33] Mr Brownsworth next dealt with the Urban Expansion Zone in which the BBC site is located. By reference to the Overall Outcomes of that Zone35 he made the point that, whilst it was intended that development in the Zone be predominantly residential in nature, it is also intended to include support uses such as “local commercial and community purposes, which are co-located with recreational open space and school in nodes”. In his view the reference to local commercial purposes included the BBC proposal which would be consistent with the Overall Outcomes. Further, those Outcomes provide for a Master Planned Community and BBC has a development 35 Exhibit 1 p 5-48 -- 17 of 138 -- 18 approval dated 29 May 2008 earlier referred to, designating the BBC site as mixed use land. [34] Mr Brownsworth said the Mackay Frame Locality Code and Specific Outcome P1, both of which favour commercial development within the Commercial Zone, should be read in conjunction with the Urban Expansion Zone provisions which latter zone recognises the requirement for master planning and that commercial uses may be provided within that Zone. In his view both of those requirements would be furthered by the BBC proposal which would be consistent with the zoning intent of the Urban Expansion Zone. In contrast, he said the Tavern land (lot 240) is within the cadastrally based Commercial Zone which neatly terminates at the boundary between the Tavern site and lot 241 the adjoining Urban Residential land in the HH proposal, repeating the point that the lot 241 zoning was made in the face of the May 2005 submission by HH prior to the introduction of the plan. He sees the rejection of the HH submission for rezoning as significant and concludes that the HH proposal conflicts with the intent of the Urban Residential Zone which contemplates small scale non-residential uses. As against that, the BBC proposal is consistent with the intent of its Urban Expansion Zone and not in conflict with the Scheme. Mr Buhmann (HH) [35] Mr Buhmann, in dealing with the issue of zoning,36 acknowledged that the HH proposal would expand commercial functions into Residential Zoned land which should not be undertaken lightly and only done with due and proper consideration of the economic needs for the expansion, site constraints and the Residential/Commercial Land Use conflicts. -- 18 of 138 -- 19 [36] In his view an overriding consideration was the opportunity to integrate development on to the same site. He spoke of the disadvantages of fragmentation by road infrastructure having a significant adverse impact on communities resulting in multiple vehicle trips and a disincentive to “walk-up” patronage where there is a significant barrier precluding a one stop shop. [37] For those reasons he considers that, where opportunities exist to consolidate commercial centre activities on a single site, they should be pursued in preference to a fragmentational alternative. This approach, he says, is supported by the Retail and Commercial Code37 which speaks of accessibility and the desirability of consolidating existing designated centres. [38] Mr Buhmann considers the HH proposal better complies with the zoning intent set out38 in the Strategic Framework of the Scheme.39 In relation to Commercial Centres he points to the reference that commercial development should follow the established network of centres, with any additional centre activities to be situated within or immediately adjacent to a designated centre and for these City centres to develop as a concentration of multi-purpose activity. They are relevant, he says, because the HH proposal is a proposal which includes the Commercial Zone and expands in to the Residential Zone. [39] As to the reference to urban areas Division 2 in the Scheme‟s Strategic Framework, he points to the encouragement of service and amenity for residents and the concept 36 Exhibit 14, pp 13-17. 37 Exhibit 1, p 9-114, s 9.97(2)(b). 38 Exhibit 1, p 1-4. 39 Division 2 – 1.4 Strategic Framework, Exhibit 1, pp 1-4. Note: Paragraph 1.3(2) provides – “This division does not have a role in development assessment under the Planning Scheme.” -- 19 of 138 -- 20 of local centres serving the high frequency convenience shopping needs of the immediate locality. [40] Mr Buhmann contrasts his above conclusions regarding the HH proposal‟s compliance with the Division 2 - Strategic Framework with those in relation to the BBC proposal and points to the following intents in relation to the Urban Expansion Zone – that it identifies a land bank generally physically suitable for urban development; that the preferred locations are identified as, amongst others, Rural View; that the development of land in this zone will occur as “out of sequence development”; that, at a strategic level the Urban Expansion Areas are merely those considered generally suitable for development with no specific strategic intent for the zone; that the Scheme sets out sufficient land to accommodate residential expansion from the nominated planning period of 2005-2013 including land in the Urban Residential Zone and Urban Expansion Zone; and finally, based on the preceding, the Urban Expansion Areas are to be viewed as Suburban Fringe Expansion Areas generally intended to be serviced within the existing retail hierarchy nominated in the network of centres. [41] As to the Overall Outcomes in the Urban Expansion Zone which speaks of incorporating support uses for residential communities such as Local Commercial and Community purposes, he does not see that as evidencing any specific intent on the part of the authors of the Scheme to encourage commercial development in this zone. Rather, he takes the view that those Urban Expansion Areas within the zone should be commercially serviced within the existing Network of Centres unless there is economic justification to expand the existing Centre hierarchy. -- 20 of 138 -- 21 [42] As to the unsuccessful HH 2005 submission, Mr Buhmann sees that as irrelevant because, he says, the Council, in these Appeals, has made it‟s position clear in refusing the BBC proposal and approving the HH proposal. [43] As to the 29 May 2008 development approval over the BBC land showing its use as mixed use, Mr Buhmann says those uses did not form part of the relevant Development Application No. DA-2006-202 and subsequently were not subject to the appropriate assessment scrutiny or public scrutiny and that to rely upon that use designation appears somewhat opportunistic. It points to what he sees as significant departures from BBC‟s original Master Plan. [44] Finally, in terms of community expectations from any public notification of the abovementioned 2006 Development Application DA-2006-202, Mr Buhmann considers that current information on the BBC development available on website (www.blacksbeachco.com.au) better informs the community than public notification of the BBC proposal. He goes on to say that that website does not currently indicate any proposed commercial development for the BBC land. Mr Schomburgk [45] Mr Schomburgk accepted there was no need for co-location of a supermarket with a liquor barn though he thought that such co-location was appropriate with the convenience it offers to the public. In his view it makes very good sense to have a liquor barn on the same or adjacent site as the Tavern. Whereas he acknowledged that separation of such facilities is not uncommon in some centres, he thinks that it is less desirable from the functional perspective. -- 21 of 138 -- 22 [46] For those reasons he thought the HH proposal represents a better overall outcome than the BBC proposal when looking at the role and function of a local centre. It is clear from Mr Schomburgk‟s report40 that he regards the existing Tavern as the Local centre for Blacks Beach as contemplated by the Scheme. In his words “- it is my opinion that the Local Centre for Blacks Beach can only be taken to be that (Tavern) site”. Arguments on Zoning BBC Arguments [47] BBC points to the Overall Outcomes of the Urban Expansion Zone41 and to the reference in Overall Outcome (2)(d) to a Master Planned community being predominantly residential in nature but which incorporates support uses for the residential communities such as Local Commercial and Community purposes to be co-located with recreational open space and schools in nodes. By contrast, BBC says, the HH site is predominantly in the Urban Residential Zone which is adjoined to the north and west by land in the same zone and it is only in this zone (Lot 241) where any new development is proposed. [48] BBC points to Overall Outcomes (a) and (f). The first, dealing with development in the zone, speaks of the protection of the high level of amenity by restricting the development predominantly to single detached dwellings. Paragraph (f) deals with non-residential development as here under consideration and speaks of any such development not adversely affecting the residential amenity of the zone. Specific 40 Exhibit 15, para 3.2.3. 41 Annexure A, pp 5-48. -- 22 of 138 -- 23 Outcome P5, also dealing with non-residential activity in the zone speaks of that non- residential activity being limited to small scale uses directly related to servicing the needs of the residential areas and involving design and siting measures to control any external impacts from the activity. [49] In summary BBC says the Urban Expansion Zone contemplates development in a master planned way incorporating support uses for residential communities such as local, commercial and community purposes as outlined above which is to be contrasted with the Urban Residential Zone which only intends non-residential activity of a small scale and directly related to servicing the needs of a residential area. [50] BBC next refers to the Retail and Commercial Code42 and to the Overall Outcomes of that Code particularly outcomes (a), (b)(i) and (iii), (c) and (e) which speak of uses complying with the location of Centres as identified in the Network of Centres in the City and of such uses being situated within Designated Centres. Specific Outcome P143 addresses the establishment of retail and commercial activities outside a Designated Centre and provides that they be of a size and function consistent with the provision of local facilities. Local facilities are defined44 as retail and commercial facilities which service the daily convenience needs of a local trade catchment containing no more than 2500 households. BBC then points to Specific Outcome P545 which limits the gross floor area for such uses in a Local Centre to 2500 m2. BBC further says that under Specific Outcome P6 the concept of servicing the local 42 Exhibit A, pp 9-114 to 9-116. 43 Annexure A, pp 9-116. 44 Annexure A, pp 9-116, para 9.99. 45 Annexure A, pp 9-117. -- 23 of 138 -- 24 community is reinforced by the provision that the driving time for residents visiting a Local Centre should be under five minutes. [51] For the above reasons BBC submits that, whilst neither of the proposals is in the Commercial Zone and both are, thereby, in conflict with the Scheme, the need of the community for a shopping centre of the size of both proposals overcomes any issue of conflict. It says that the above provisions relied upon by it demonstrate that the BBC site is the preferred site under the Planning Scheme and by reference to the master planning of the BBC land. It points also to the Council‟s decision in response to the detailed submission by HH for a rezoning, not to extend the Commercial Zone to lot 241 in the current Scheme. [52] The requirements in the Urban Expansion Zone, BBC says, require that development provide all necessary community facilities and services such as local commercial and community purposes and that that be done in a master planned way. The BBC land has been so planned with the BBC site and nearby land being set aside for future mixed use development with a school to be established on the southern side of Blacks Beach Road. In short the BBC proposal will implement the town plan and achieve the purpose for which its land was zoned. HH Argument on Zoning [53] HH attacked various aspects of Mr Brownsworth‟s evidence as misleading and misconceived resulting in the favourable impression conveyed being falsely based. The parts of his report under attack are: -- 24 of 138 -- 25 (a) Paragraph 10(n) – The Scheme46 “Further, the Mackay Frame Locality Code and the Specific Outcome seeking that commercial development is located in the Commercial Zone (P1), should in my view be read in conjunction with the Urban Expansion zone provision, that recognises two things: a requirement for master planning; and that commercial uses be provided. Both these intents are furthered in the case of the Blacks Beach Cove proposal, leaving the Blacks Beach Cove proposal consistent with the zoning intent of the Urban Expansion Zone”; (b) Paragraph 11(c) “The zoning of Blacks Beach Cove land as urban expansion, (in respect of which commercial uses are specifically envisaged by the Planning Scheme) envisaged that master planning will be undertaken to set aside the land for mixed use purposes as well as residential and community uses. Such master planning has been previously undertaken and approved on the Blacks Beach Cove land including the site of the Blacks Beach Cove proposal (see Fig 1). The Blacks Beach Cove proposal is consistent with the intent of its zoning and is not in conflict with the zoning provisions of the Scheme”; (c) Paragraph 14 “Generally, broader provisions of planning schemes, such as DEO‟s, do not attempt to provide detailed solutions for land use and planning matters within planning schemes. Rather they set a broad strategic framework 46 Exhibit 16, para 10(n). -- 25 of 138 -- 26 around which land uses are to occur. More specific provisions are generally found in other parts of a planning scheme such as zoning provisions and planning scheme codes. These more specific provisions attempt to achieve the DEOs in a specific precinct in this case, McCready‟s Creek. As set out above, the specific provisions clearly support the Blacks Beach Cove proposal and do not support the Hawkhaven proposal”; (d) Paragraph 21 “One must firstly take into account the zoning of each of the relevant sites to determine which is supportive of the application. As set out previously, the Hawkhaven application conflicts with its zoning while the Blacks Beach Cove application is supported by its zoning”; (e) Paragraph 22(a) “Given the two current applications, it is then a question as to which of the sites best accommodates the proposed Local Centre development. In my view the most suitable site is the Blacks Beach Cove proposal for the following reasons: (a) A more detailed zoning provision of the Planning Scheme supports a “Local Centre” on the Blacks Beach Cove site as opposed to the Hawkhaven site whose zoning effectively discourages such a use. (f) Paragraph 45(a) “The Network of Centres provisions of the Mackay City Plan stipulate a requirement for a Local Centre in the vicinity of Blacks Beach Road and Chenoweth Drive Intersection. Both proposals satisfy that provision. Given -- 26 of 138 -- 27 that neither proposal is located on commercially zoned land in this locality, (it is occupied by the existing Blacks Beach Tavern) other land in the vicinity must be found to accommodate the needed „Local Centre‟ proposed by both applications. My view is that the Blacks Beach Cove proposal provides the best alternative site because:- (a) It is appropriately zoned and consistent with master planning that has been undertaken for the Blacks Beach Cove estate.” (g) Paragraph 44 “The Blacks Beach Cove proposal is supported by its zoning. As such, it does not need to demonstrate grounds to justify approval, however the Blacks Beach Cove proposal is better positioned to accommodate the various „roles and functions‟ required of the Local Centre (and future Neighbourhood Centre) both now and in the future. This is because more vacant land is available immediately adjoining the Blacks Beach Cove proposal than the Hawkhaven proposal as shown on the Urban Expansion Plan at Fig 4. Given the objective of planning for the future, this ground must be given substantial weight.” [54] HH says that Mr Brownsworth did not analyse the BBC proposal with reference to division 6 of the Scheme – Overall Outcomes for the Mackay Frame Locality.47 Overall Outcome 2(h) provides that new commercial uses are located in the Commercial Zone and the additional Overall Outcomes for the MacCready‟s Creek Precinct stipulates that commercial activity including shopping in the Precinct is limited to the Commercial Zone. Specific Outcome P1 also provides that commercial 47 Annexure A, pp 5-21. -- 27 of 138 -- 28 development is to be located in the Commercial Zone.48 HH also submits that Mr Brownsworth ignored the Retail and Commercial Code Overall Outcome No. 2 of which provides that retail and commercial development be situated within a designated Centre and retail and commercial uses do not occur outside the designated Centres.49 [55] In relation to the above provisions HH pointed to Mr Brownsworth‟s evidence.50 In summary Mr Brownsworth under cross-examination by Mr Gore QC:- (a) Agreed that the BBC proposal was not within a designated Centre as contemplated by Retail and Commercial Code paragraph 9.97(2)(b)(i) and hence did not comply with that part of the Code;51 (b) Agreed that as a result, the proposal also did not comply with paragraph (2)(e) of that Code which provided that Retail and Commercial Uses do not occur outside the Designated Centres;52 (c) Agreed that the proposal was in conflict with paragraph 4(a) of the Overall Outcomes for the Mackay Frame Locality53 in that commercial activity was limited to the commercial zone;54 48 Ibid, pp 5-20. 49 Ibid, pp 9-114 to 9-116. 50 T3.88-91. 51 T3.88.35-45; Annexure A, pp 9-115. 52 T3.88.45-60; T3.89.1; Annexure A, pp 9-116. 53 Annexure 3, pp 5-21 and 5-25. 54 T3.89.10-38. -- 28 of 138 -- 29 (d) Agreed that the BBC proposal conflicts with Specific Outcome P1 of the Mackay Frame Locality55 which provides that commercial development is located in the Commercial Zone;56 (e) Agreed that the BBC proposal was in conflict with Mackay Frame Locality Overall Outcome 2(h) requiring new commercial uses to be located in the Commercial Zone;57 (f) Finally agreed that the above conflicts needed to be justified by sufficient grounds under IPA 3.5.14 before the BBC application could be approved.58 [56] Consistent with Mr Brownsworth‟s concession, and as I have earlier said, BBC acknowledges that its proposal is in conflict with the Scheme because it is not located in the Commercial Zone. All town planners agree that the demonstrated need for a Local Centre is sufficient to overcome any conflict either proposal presents.59 [57] The next point made by HH is that the Strategic Framework of the Urban Expansion Zone identifies a land bank60 which connotes that land will be held for development at some stage in the future supported by the provision61 that development of the land in this zone during the life of the Planning Scheme “will occur as out of sequence development”. HH further points to Overall Outcomes 2(a) and (d) which provide, respectively, that land in the zone is retained in low-level largely rural use until 55 Annexure 3, pp 5-28. 56 T3.89.40-52. 57 T3.89.55-60; T3.90.1-10. 58 T3.91.25. 59 Second Joint Planning Report, para 144, Exhibit 3, vol 5. 60 Annexure A, pp 1-8. -- 29 of 138 -- 30 required for development such that its future use for urban development is not compromised by inappropriate development; and that will be predominantly residential in nature.62 [58] HH accepts that the intent in the Urban Expansion Zone is that development be master planned but does not accept that the BBC proposal forms any part of any approved Master Plan. It says that the 2008 Court approval63 related only to a Material Change of Use for Urban Residential and Higher Density Residential (Dual Occupancy) and the development permit for the reconfiguration of a lot into 251 lots. It says the land uses plan, whilst forming part of that approval, did not confer any rights in relation to the development of lot 901, therein designated for future mixed use development which, by reference to the definition of mixed use in the Scheme suggests a combination of commercial uses and residential uses. That definition of mixed use is in these terms: “Mixed use means premises comprising a mix of uses being primarily a combination of commercial uses and residential uses located on the one site.”64 HH referred to Fig 4 to Mr Brownsworth‟s report which is a plan of indicative centre expansion opportunities and Exhibit 18 which is a proposed future Master Plan and said that neither of those have Council approval. [59] Likewise HH submits the two Northern Beaches Master Plan of the BBC land annotated as produced by council and both dated 21 October 201065 have not been 61 Annexure A, pp 1-8, sub-paragraph (g), third paragraph. 62 Annexure 3, pp 5-48. 63 Exhibit 19, p 121; Land Uses Master Plan C3503:00:03 A. 64 Exhibit 1, tab Pt 12. 65 Exhibit 20 (enlargement of Fig 2, Brownsworth Report, Exhibit 16), Exhibit 21. -- 30 of 138 -- 31 endorsed by the Council and are, in the words of the Council‟s Planner, Mr Cardiff “work in progress” documents.66 Interestingly on the first of those plans67 there was a notation referring to lot 241 – “this and the lot to the right are both identified as being commercial/retail” with a note to similar effect on the second plan.68 As to the BBC land, it is depicted on one with a commercial/retail land use and on the other as a proposed commercial site. But, that as Mr Brownsworth accepted in cross- examination with reference to the Coty principle, the weight to be attached to those plans is relatively limited.69 [60] HH focused on Mr Brownsworth‟s opinion that the HH proposal was in conflict with Specific Outcome P5 in the Urban Residential Zone70 which refers to non-residential activity being limited to small scale uses directly related to servicing the needs of residential areas. In cross-examination of Mr Brownsworth Mr Gore sought to elicit the basis for Mr Brownsworth‟s opinion that the scheme did not provide guidance as to what constitutes a “small scale”.71 The thrust of Mr Gore‟s questioning was that the meaning of small-scale in Specific Outcome P5 in the Urban Residential Zone referred to above would be assisted by considering the table in para 9.20.1 of the Retail and Commercial Code72 which tabulates the function of each of the five categories of Centres in the Scheme – City Centre, Sub-Regional Centre, Major Neighbourhood Centre, Neighbourhood Centres and Local Centres. That table shows the functions intended for Local Centres as being business and commercial services, convenience shopping, entertainment and leisure and service trades being five of the 66 Exhibit 22, third paragraph; T4.15.1; T4.16.10-40; T4.70-80. 67 Exhibit 20. 68 Exhibit 21. 69 T4.18.15. 70 Annexure 3, pp 5-42. 71 Exhibit 16, para 10(d); T4.24-27. 72 Annexure 3, pp 9-115. -- 31 of 138 -- 32 seven in the table. Each of those functions has a note to the table as meaning “small scale, low intensity facilities and services.” [61] Despite quite persistent questioning Mr Brownsworth adhered to his view as expressed in his report that the Scheme does not provide guidance as to what constitutes small scale in Specific Outcome P5 in the Urban Residential Zone. In his view the intent of table 9.20.1 is to compare highly developed major facilities and services with small scale low intensity services and facilities as between the higher order Centres in the hierarchy and the smaller Centres.73 On the other hand, as to Specific Outcome P5, he saw that as specifically relating to the intended scale of a development for what is essentially a residential area. He considered small scale in that context meant things like a home based business, a corner store or the like which would be typically found in a residential area. That is the type of development he considers is contemplated by Specific Outcome P5.74 In short Specific Outcome P5 in Mr Brownsworth‟s view speaks of a residential zone with predominantly residential uses whereas table 9.20.1 speaks specifically of commercial uses and the various scales and functions of such uses.75 Council’s Argument on Zoning [62] In the Council‟s view both the Urban Residential and Urban Expansion Zones intend that land within those zones will be predominantly used for residential development. The Council relied upon the opinions expressed by its planner Mr Schomburgk76 who expressed the view that both zones envisage that there will be local or small scale 73 T4.25.1 – 12. 74 T4.26.10 – 40. 75 T4.26.50-60. 76 Exhibit 15, para 4.1.6. -- 32 of 138 -- 33 commercial uses to support residential communities or servicing the needs of residential areas and both zones admit of some non-residential uses. In Mr Schomburgk‟s view neither zone or designation places any greater weight on either of the two proposals. [63] The Council considers that it is significant that the HH proposal adjoins and in the Commercial Zone (Tavern) which it considers gives rise to the benefits of co-location and triggers the requirements of IPA s 3.5.5(2)(d) that any assessment have regard to adjacent premises. Conclusion Re Zoning [64] I prefer the evidence of Mr Brownsworth to that of Mr Buhmann and Schomburgk on the issue of zoning. Mr Schomburgk proceeded on the basis that the existing Tavern is a Designated Local Centre which, for reasons which will become clear I do not agree with. Mr Buhmann relies extensively on Division 2 – Strategic Framework of the Scheme which is expressly stated in paragraph 1.3(2) not to have a role in development assessment under the Planning Scheme. Further his peremptory dismissal of the relevance of the rejection by the Council of the 2005 HH submission in relation to lot 241 cannot, in my view, be justified. The Council‟s attitude to the present HH application can hardly determine the proper interpretation of the scheme as reflecting the intention of its authors. [65] I regard the submission by HH and its rejection by the authors of the present Scheme and the Council as a significant factor in consideration of the operation of the zoning provisions. I shall speak more of that in relation to the Local Centre issue. -- 33 of 138 -- 34 [66] It seems patently clear to me that the Scheme intends that lot 241 remain as residential land within the Urban Residential Zone. [67] Further, I do not think one can lightly dismiss the reference in Urban Residential Zone Overall Outcomes to (a) and (f) and Specific Outcome P5 which are clearly designed to protect the high level of amenity in this Residential Zone and at ensuring that any relevant non-residential development does not adversely affect that amenity, ensuring that it be of a small scale nature. [68] The absence of a definition of, or guidance as for the meaning of small scale in the Scheme does not, in my view, present any obstacle to interpretation. Read in the context of what is sought to be achieved in the Urban Residential Zone, it seems to me that the types of non-residential uses foreshadowed are those of a much smaller scale than that proposed on lot 241. Given that, and the intent of the Scheme that such uses should be confined to Commercial Zoned Land, it is clear to me that the HH proposal is in conflict with the Scheme. [69] Of course that is not the end of the matter because the BBC proposal is also in conflict with the Scheme as being outside the Commercial Zone. At the end of the day I must determine, having regard to all issues and not just this issue, whether there are sufficient grounds in relation to the HH proposal to justify the intrusion of this development into the Urban Residential Zone, if, all other matters considered, I find that the HH proposal is to be preferred. [70] As to the BBC proposal, for the reasons advanced by Mr Brownsworth I find that the proposed use is more in harmony with the Urban Expansion Zone than the HH proposal is in harmony with the Urban Residential Zone. -- 34 of 138 -- 35 Identification of the Blacks Beach Local Centre Network of Centres [71] The Retail and Commercial Code in the Scheme77 identifies the hierarchy of Retail and Commercial Centres78 the five categories of which I have earlier set out in paragraph 60. The relevant Centre here is a Local Centre with a catchment population of more than 2,500 and less than 7,500 households. Those Centres are shown on the Information Map – Network of Centres.79 Footnote 5 to the reference to that Map in the Retail and Commercial Code80 provides:- “Footnote 5: The Designated Centres in the Network are shown in an indicative manner on Information Map – Network of Centres, whereas the Zone Maps provide more definitive Centre boundaries. Existing Centres not shown on this Map are not intended to expand. On the Network of Centres Map a Local Centre is shown with a yellow dot.” That yellow dot for the Blacks Beach Local Centre is in a position predominantly located in an area north of Blacks Beach Road, crossing that road and covering a small area to the south of Blacks Beach Road. To the west its boundary is the eastern boundary of lot 241. Lot 240 is wholly within the yellow dot. Mr Brownsworth’s Opinion re Local Centre [72] Mr Brownsworth, in addressing the issue of the intended location of the Blacks Beach Local Centre,81 considers that the Network of Centres Information Map (Map) depicts 77 Paragraph 9.97(2)(c). 78 Annexure 3, pp 9-115. 79 Exhibit 1, Tab Map - Centre 80 Annexure A, pp 9-114; it also appears in the Strategic Framework, pp 1-4 but as previously mentioned that does not play a role in development assessment under the Scheme. 81 Exhibit 16, pp 7 and 8. -- 35 of 138 -- 36 the general location for Centres of various suitable sizes and functionalities within the Planning Scheme Area. In relation to the Blacks Beach Local Centre it shows a location generally in the vicinity of both proposals. In relation to the abovementioned footnote 5 he made three points. Firstly that neither proposal was within lot 240, the Commercially Zoned Land in the Zone Map, although both are in proximity to such land. Secondly, the strategic intent of the Map is a valid consideration in determining the most appropriate location for the Blacks Beach Local Centre. Finally, lot 240, the Tavern site zoned Commercial, commenced operating in approximately 2003 well prior to the drafting and implementation of the current Scheme which took effect on 24 March 2006. In his view the Commercial Zoning in the locality neatly reflects the existence of the Tavern. [73] Against the above, Mr Brownsworth‟s view is that the Map evinces a clear intention that the Blacks Beach Local Centre will be located in or around the intersection of Chenoweth Drive and Blacks Beach Road which he considers is consonant with first principles of town planning perspective given that that location is at the centre of the Local Centre catchment and on the corner of two higher order roads. In his view, as the Commercially Zoned Tavern site is not available or proposed to be used in either of the proposals, the question to the determined is where the Local Centre should be located. In his view the zoning amenity and better opportunity for future expansion favours the BBC proposal. He sees no reason why there must be co-location of the proposed Shopping Centre with the Tavern. [74] Mr Brownsworth‟s view is that the roles and functions of a Local Centre, as set out in the Retail and Commercial Code,82 Centre Role and Function was not limited to 82 Annexure A, pp 9-115, Tab 9-20.1. -- 36 of 138 -- 37 shops (convenience shopping) the subject of both proposals but included others namely business and commercial services, entertainment and leisure and services and trades. He disagreed with Mr Schomburgk and Mr Buhmann that the HH proposal incorporated an entertainment and leisure function (Tavern) and that co-location of convenient shopping with the Tavern achieved an integrated and consolidated Development Outcome. [75] He regards the BBC proposal as better placed to cater for other intended roles and functions not the subject of either proposal both now and in the future when, as the need experts agree, and the Scheme forecasts, those roles and functions broaden to those of a “neighbourhood centre” so as to include expanded comparison shopping and community uses. [76] Given his view of the inevitably of commercial development occurring on the southern side of Blacks Beach Road, he considers any attempt to consolidate all commercial development to the north of that road to his mind would be a futility. Finally, he says the Council‟s current Master Planning for the Northern Beaches generally reflects previous Master Plans for the BBC development site as suitable for mixed use development. I have already dealt with HH‟s position those plans are a work in progress, as yet not endorsed by the Council Mr Buhmann – Network of Centres [77] Mr Buhmann regards the Map as identifying the location of the Blacks Beach Local Centre. His view is that, when the Planning Scheme Network of Centres‟ provisions are read with footnote 5 to the Map, the proper interpretation is that the designated location of the Local Centre is lot 240, the existing Tavern. That approach is, he -- 37 of 138 -- 38 says, consistent with similarly nominated Local Centres. He provides the example of Slade Point and Bucasia which are other Northern Beach localities where the Network of Centres‟ provisions spatially nominate a Local Centre that is focussed on an existing commercial zoning currently developed with a small Commercial Centre.83 Mr Buhmann considers that Overall Outcome 4(a),84 Commercial Zone Overall Outcome 39(a)85 and Retail and Commercial Code Overall Outcome 2(a)86 and Specific Outcome P787 all show similar outcomes and evidence a clear intent in the Scheme that the Local Centres are to be located within the Existing Commercial Zoned Land. His view is that the extension of the existing Commercially Zoned land is more closely aligned with the provisions of the Scheme dealing with Network of Centres than an expansion, as proposed by BBC, which creates a separate commercial element isolated from the Commercial Zone. The HH proposal, in his view, would fulfil the role of contributing to the local community‟s needs for convenience shopping and entertainment and leisure functions. Mr Schomburgk – Network of Centres [78] Mr Schomburgk‟s88 view is that it is a generally accepted town planning principle that consolidation of centres is to be preferred to fragmentation or separation where the potential for consolidation exists. He describes the existing Tavern as an existing Local Centre and says that, considering the HH site abuts the Tavern site with access to be gained from that site as well as off Blacks Beach Road, that represents to him a better form of Centre consolidation than does the BBC site. As to the BBC site, he 83 Exhibit 14, ss 2.3 and 2.4. 84 Annexure A, pp 5-25. 85 Annexure A, pp 5-31. 86 Ibid, pp 9-114. 87 Ibid, p 9-118. 88 Exhibit 15, para 4. -- 38 of 138 -- 39 said it necessarily gains vehicular access from Blacks Beach Road via Chenoweth Drive and then on to Bondi Road which is a more circuitous route for patrons and hence “less-consolidated” than the HH proposal. [79] He accepts that it is not necessary to co-locate a supermarket with a liquor barn but he sees co-location of those two uses as appropriate because of the convenience to the public. He accepts it would be feasible to have the liquor barn on the HH site and the supermarket and speciality shops on the BBC site, but the HH proposal as amended shows an integration of the supermarket shops and the liquor barn which he sees as a desirable outcome. He says such an integration of uses is a common feature of modern shopping centres where tenants such as BWS and Liquor Land are commonly found within those centres, but accepts that separation is not uncommon in some centres. Arguments re Local Centre BBC Argument re Local Centre [80] BBC points out that all town planners agree that neither proposal compromises the Network of Centres provisions of the Planning Scheme. In its view, as the Network of Centres provisions are indicative only and not site specific the question to be determined is where the Blacks Beach Local Centre should be located. The answer to that question is to be found in the Overall Outcomes and Specific Outcomes for the Mackay Frame locality and the zoning provisions of the Commercial Zone, the Urban Residential Zone and the Urban Expansion Zone. -- 39 of 138 -- 40 [81] It argues that, as all the new uses proposed by HH are confined to lot 241 and not the existing commercial Tavern site lot 240, its proposal is in conflict with the Scheme. As I have said, BBC acknowledges that its proposal is also in conflict with the scheme because it, likewise, is not within the Commercial Zone. [82] BBC contrasts paragraphs a(ii) with (b) of Overall Outcome in the Commercial Zone in the McCready‟s Creek Precinct.89 . Paragraph a(ii), according to BBC, speaks of the future development of a Local Centre at Blacks Beach whereas paragraph (b) refers to an existing Local Centre at Blacks Beach in setting out development limitations on the increase and size of that Centre. It is common ground that the reference to the existing Centre in paragraph (b) is to the Local Centre at Turtle Shores east of the subject sites and on the southern site of Blacks Beach Road. In BBC‟s view paragraph (a)(ii) is the relevant provision here as referring to the future establishment of a Local Centre at Blacks Beach. Given that, the argument runs, that the existing Tavern being a single use defined by the Scheme as a hotel, is not, of itself, a Local Centre. [83] Finally BBC points to Specific Outcome P6(iii)90 which limits any growth of the Blacks Beach Local Centre to be in keeping with the needs of its local population. Specifically it provides that any such Centre will only grow beyond 2500 m2 when the catchment population exceeds 2500 dwelling households. Again it is common ground, as the three experts on need and economics concluded91 that both proposals under consideration are larger than what is designated for the Blacks Beach Local Centre under the Scheme. Those experts also concluded however that the passage of time and the growth experienced within the Mackay region including Blacks Beach 89 Schedule A, Plan Extracts, pp 5-31. -- 40 of 138 -- 41 and Dolphin Heads meant that a larger Local Centre is now required to service residents of the region.92 [84] BBC continues its comparing and contrasting argument by looking at the intents of the Urban Residential Zone and the Urban Expansion Zone. As to the former, it says the intent is to accommodate small scale non-residential uses only, whereas the Urban Expansion Zone is intended to provide all necessary development infrastructure, community infrastructure and community facilities and services needed which incorporates uses for residential communities such as local, commercial and community purposes. The Blacks Beach Local Centre is expected to grow over time93 beyond a Local Centre perhaps to a Neighbourhood Centre in response to population growth. By contrast, BBC argues, there is no such expectation that a small scale requirement of non-residential development in the Urban Residential Zone will develop beyond that scale. The BBC site is accordingly the appropriate site for the Local Centre. [85] BBC focused on the opinion expressed by Mr Schomburgk94 that the Local Centre was the existing Tavern on the commercial zoned land. Mr Buhmann95 expressed similar views. BBC argues that this view is flawed for three reasons. Firstly it artificially treats a single use (Tavern) as a Centre merely because it is on land in the Commercial Zone when, in no meaningful sense, is a Tavern a Local Centre. Secondly it says that view assumes that there is some advantage or benefit in co- locating a shopping centre with a Tavern which view is not supported by the 90 Annexure A, pp 5-35. 91 Joint Economic Report, Exhibit 3, p 18, para 40. 92 Ibid, para 40. 93 Annexure A, p 525, para 4(a)(iii). 94 Exhibit 15, paras 3.2.3 and 3.2.4. 95 Exhibit 14, paras 20, 24, 25 and 90(i). -- 41 of 138 -- 42 economic experts. Finally it argues that this approach focuses too much on the present and ignores two things namely the Scheme‟s intent that the Centre is expected to grow and that the BBC site is better placed to accommodate expansion opportunity. It says that the Scheme is clear in its intent that when a new Local Centre is proposed which cannot be accommodated in the Commercial Zone, as is the case here, such a Centre should be located in the Urban Expansion Zone not the Urban Residential Zone. That is important according to BBC because residents derive their expectations of the character and amenity of their neighbourhood from the provisions of the Scheme and any resident looking at the zoning maps and relevant Scheme provisions would have no doubt that lot 241 was intended for residential development and that land to the south of Blacks Beach Road was the intended location of the Blacks Beach Local Centre. HH Argument – Local Centre [86] HH submits that, consistent with the views expressed by Mr Schomburgk and Mr Buhmann, the Map shows the Local Centre as a yellow circle generally to the north of Blacks Beach Road and centred on the Tavern site lot 240 which, it argues, is the existing Blacks Beach Local Centre acknowledged by the Scheme. As to future expansion HH says that lot 241 adjoining the Tavern is a logical site for the expansion and consolidation of the existing undersized and inadequate Local Centre, namely the Tavern. Council’s Argument – Local Centre [87] The Council‟s argument is consistent with that of HH, relying upon the position of the yellow dot on the Map. It says that on any fair examination it is apparent that the -- 42 of 138 -- 43 yellow dot is situated predominantly on the northern side of Blacks Beach Road. It acknowledges that the Map is schematic and indicative, and that in the absence of a real alternative, may admit of development south of Blacks Beach Road. The Council points to footnote 5 earlier referred to96 – “The Designated Centres in the Network are shown in an indicative manner on the Information Map – Centres Network, whereas the Zone Maps provide more definitive Centre boundaries. Existing centres not shown on the Centres Network Map are not intended to expand”. It argues that, because the Tavern site is zoned Commercial Land and is within the yellow dot on the Map, this evidences the Scheme‟s intention that the Tavern site is the designated Blacks Beach Local Centre. From there, the Council says, consequences flow namely that the BBC proposal conflicts with the Scheme because it is neither within the designated Local Centre nor does it consolidate that designated Local Centre. These outcomes, it is said are at odds with the Retail and Commercial Code Overall Outcomes 9.97(2)(b)(i) which speaks of Retail and Commercial Development being situated within a designated Centre, 9.97(2)(b) (v) which speaks of the desirability of consolidating existing designated Centres and 9.97(2)(e) which provides that Retail and Commercial uses do not occur outside the designated Centres. [88] The Council then addresses the BBC argument that the only new use proposed in the HH proposal is discretely on lot 241 and not the Commercial Zoned lot 240. It acknowledges that the Strategic Framework97 has no formal role (I note the word “formal” is not used to qualify “role” in the Division 2) in development assessment under the Scheme, but argues that the HH proposal could not be said to be a retail development which was not within the Designated Local Centre. Put another way, it 96 DEO 3(c)(iv) -- 43 of 138 -- 44 was not outside the Designated Local Centre because the Strategic Framework98 provides that additional Centre activity be situated within or immediately adjacent to a designated Centre. On this argument it is said that the HH proposal is within (and not outside, the designated Centre) and in any event, is clearly consistent with the intent for the growth of such a Centre. Conclusion re Local Centre [89] Again I prefer the evidence of Mr Brownsworth and the submissions of BBC in support of the identification of the location of the local centre. I reject the view that the existing tavern, of itself, is the existing Designated Local Centre. Footnote 5 makes it clear that the yellow dot on the Network of Centres Map is not cadastrally based but indicative only. It is nevertheless interesting, as I view it, that its boundary stops at the eastern boundary of lot 241. In my view the intent of the Scheme is that the Local Centre is to be in an area generally depicted by the dot which includes lot 240 and is not confined to the area north of Blacks Beach Road. Given the rejection by the Council of the 2005 HH submission in relation to 241, I am comfortably satisfied that it was not intended that lot 241 form part of the Local Centre. Planning Need – Community Benefit – Co-Location, Assessability, Convenience, Expansion Potential Mr Brownsworth (BBC) 97 Annexure A, para 1.3(2). 98 Annexure A, pp 1-5 and 1-6; para 1.4(2)(d). -- 44 of 138 -- 45 [90] Mr Brownsworth99 considered that there was no need for there to be co-location between the existing Tavern and the Shopping Centre proposed by HH which accords with Mr Schomburgk‟s view100 and on the concept of co-location considered that the BBC proposal would be sufficiently close to the Tavern to achieve any benefit of co- location. He also expressed the view that, if the Local Centre was built on the HH land it would almost certainly lead to the future separation of segments of that Local Centre, or Neighbourhood Centre when it achieves that status, to the north and south of Blacks Beach Road. In his view that is reinforced by the recent designation of a school site on the southern side of Blacks Beach Road and the Council‟s indicative master planning showing commercial development split between the northern and southern sides of Blacks Beach Road.101 [91] On the issue of the potential for expansion Mr Brownsworth considered the BBC more desirable because:- (a) Its immediately adjoining land is regularly shaped and comparatively flat in contrast to the HH land; (b) The immediately adjoining land is relatively isolated from existing residential development and allows for easier management of development interfaces with residential development whereas the HH development would require intrusion into residential areas; 99 Exhibit 16, paras 34-37. 100 Exhibit 15, para 4.1.4. 101 Exhibit 19, p 78; definition of Mixed Use. -- 45 of 138 -- 46 (c) The indicatively designated mixed use land to the west of the BBC site and on the other side of Chenoweth Drive could act as an additional land bank for expansion. HH has no such area available and is land locked by existing residential allotments. (d) The role and function beyond convenience and comparison shopping102 including service trades, further entertainment and leisure and business and community uses could not be provided under the proposal whereas they could under the BBC proposal; and (e) With the future construction of Chenoweth Drive and the continued development of the BBC estate the area south of Blacks Beach Road will experience increased activity. Mr Buhmann – Planning Need [92] Mr Buhmann103 believes that the HH proposal delivers an integrated centre which will fulfil the role of contributing to the local community‟s need for convenience shopping and entertainment and leisure functions. His view is that the Tavern expansion incorporating the proposed liquor barn integrated with the Shopping Centre on the one site will provide convenience that cannot be provided by separate locations envisaged by the BBC proposal. With 74% of the existing dwellings located north of Blacks Beach Road and 26% to the south, in terms of existing community need, with priority traffic movements being from Blacks Beach Road and with good pedestrian connectivity provided by the proposed signalised Chenoweth -- 46 of 138 -- 47 Drive/Blacks Beach Road intersection, he is firmly of the view that the HH proposal best serves the existing community. [93] As to future need, he said the 10 year design horizon to 2021 will see the trade area of the locality reach capacity. At present the northern catchment is essentially built out for standard detached residential housing and the bulk of the future growth will occur south of Blacks Beach Road generally in the BBC Estate and the adjoining Urban Expansion Area to the west. By 2021 he sees the catchment population split 50:50 between north and south of Blacks Beach Road but does not see that as a significant reason to favour the BBC proposal. [94] Whilst acknowledging that the BBC proposal may have a marginal benefit to the residents south of Blacks Beach Road he sees the following negative aspects which balance any such benefit:- (a) In the intervening period until 2021 the residents north of Blacks Beach Road would be disadvantaged for most of the time; (b) There is no certainty of the timing of the Chenoweth Drive connected transport route which the BBC proposal relies upon. (c) As future development progresses to the south west, the convenience of a centre in the opposite direction to the primary traffic movements diminishes and the comparative attractiveness and convenience of the Rural View Centre becomes more attractive in actual proximity and convenience; and 102 Retail and Commercial Code Overall Outcome 9.97(2) (Table 9-20.1; Annexure A, pp 9-114 and -- 47 of 138 -- 48 (d) Until Chenoweth Drive is connected through to Rural View access will be provided via Blacks Beach Road which favours the HH site in the foreseeable future so far as connectivity and convenience is concerned. [95] As to the potential for expansion Mr Buhmann acknowledges that both sites offer potential in that regard and that expansion on both will create issues of proximity to residential development which will have to be resolved. Mr Schomburgk [96] Mr Schomburgk104 acknowledges that the economic experts agree that only one Local Centre is needed in the general locality, but not two. As to community benefit he sees both proposals offering the same retail elements despite the fact that HH also had a liquor barn. He could not readily discern any difference between the proposals in that regard. He did see a difference in terms of convenience of accessibility particularly for someone on a homeward journey that is driving west/east along Blacks Beach Road which would provide the left turn entry to the HH site directly off Blacks Beach Road. For those turning to the northern residential area, their exit from the site could be either on to Blacks Beach Road or into Slater Avenue. [97] As against that, a person travelling west/east along Blacks Beach Road would require to execute a right hand turn into Chenoweth Drive and then a left hand turn at the roundabout into Bondi Road and then a further left hand turn at the Bondi Road roundabout into the BBC site. Mr Schomburgk saw that as a more circuitous route 115). 103 Exhibit 14. -- 48 of 138 -- 49 for patrons and, by inference, less convenient. He said that whilst those differences in convenience and accessibility may be relatively minor in his opinion they were just more factors that favour the HH proposal over BBC. [98] A further instance of convenience of accessibility identified by Mr Schomburgk was having the Tavern and the proposed liquor on the same site which he saw as another factor favouring HH, but acknowledged that it may not be a major factor for some patrons. [99] As to the potential for expansion Mr Schomburgk thought that both sites would probably be capable of expansion to accommodate the growth projected by the economic experts but thought that major expansion is unlikely ever to be required or desirable from a town planning point of view because of the proximity of the Major Neighbourhood Centre at Rural View some 2.5 kilometres away. Economic Need [100] The three experts in the area of economic need Mr Duane (BBC), Mr Malkiewicz (Council) and Mr Shimmin (HH) provided a joint report dated February 2010105 and separate reports on issues they were unable to agree upon.106 [101] There were very few areas of disagreement and in their joint report they concluded107 that the trade area of the Local Centre of Blacks Beach108 would have a need for a small supermarket based centre comprising a supermarket of around 1,000 – 1,200 m2 104 Exhibit 15. 105 Exhibit 3. 106 Mr Duane, Exhibit 8; Mr Malkiewicz, Exhibit 12; Mr Shimmin, Exhibit 5. 107 Joint Experts‟ Report (JER) Pt 6.5. 108 Ibid Map 4.1. -- 49 of 138 -- 50 (Mr Malkiewicz) and 1,800 – 2,000 m2 (Mr Shimmin and Mr Duane) by 2013 which in their view represented an immediate need. A small component of speciality shops and services would also be appropriate. They considered the trade area was likely to reach full capacity between 2013 and 2021 and is expected to continue to grow at a solid rate. Accordingly the Blacks Beach Local Centre should be planned to be capable of expanding with the needs of the market. In their view, by 2021 a Local Centre of approximately 3,000 – 5,500 m2 including a supermarket and a complimentary range of speciality shops and services would be supportable in the location in addition to the existing Tavern and proposed liquor store. [102] The experts said that either of the proposals would satisfy the community need. As to their impact on any other centres in the hierarchy of the Scheme, most notably the Northern Beaches Centre at Rural View they considered it unlikely there would be any discernible difference between the impact of either proposal. Importantly in their view only one proposed Shopping Centre development was supportable as of 2013.109 Individual Reports – Economic Need Mr Duane (BBC) [103] Mr Duane identified three areas of disagreement with the other two experts in the joint report namely: (a) The need for a liquor barn in the proposed size of 1,212 m2. HH has in the light of Mr Duane‟s views reduced the size to 600 m2 so this is no longer an issue; -- 50 of 138 -- 51 (b) Whether the HH proposal best meets the retail, commercial and entertainment activities needs of the local population; and (c) Co-location of facilities. [104] On the issue of whether the HH proposal best meets the needs of the local population Mr Duane said that both HH and BBC had further land to accommodate an expansion and said that the regularly shaped and flat BBC land would enable a relatively simple centre expansion to incorporate additional facilities such as a Tavern and liquor store as well as non-retail facilities such as medical centre, service station, small gymnasium and child care facility, which facilities would be demanded at Blacks Beach in the future. He was not sufficiently familiar with the topography of the HH land to express an opinion as to whether it would or would not restrict further development. [105] As to the issue of co-location he said that all experts had agreed that the liquor barn would draw customers from a broader region than the local trade area and its co- location with a shopping centre and Tavern would be a mutual benefit to consumers.110 Mr Duane expressed the view that there is an expectation amongst consumers that, when they undertake some form of food or grocery shopping, there be an ability to purchase take home liquor supplies in the same trip. He said it was very common for detached liquor stores to be co-located as part of shopping centres or nearby to centres. He also said that generally there would be an expectation by a 109 Ibid, Pt 6.6. 110 Exhibit 3, JER, para 6.7.1. -- 51 of 138 -- 52 consumer that a Tavern would provide take home liquor facility and possibly a drive- through facility. [106] However, he saw minimal, if any, benefits of having a shopping centre co-located with a Tavern because in his view, in the vast majority of situations, the two facilities would not be used by customers on the same shopping trip. He instanced the case that in the whole of the Mackay area there is not one situation where a Tavern is currently co-located on the same site as the shopping centre anchored by a supermarket. In the proposed shopping centre development in Mackay at Ooralea, he said, a Tavern is not proposed as part of the development but rather other speciality shops, such as a service station and fast food sites. [107] He referred to other locations such as Cairns (Mount Sheridan Plaza, Raintrees Shopping Centre and Smithfield Shopping Centre) where a Tavern is located on the same land as the shopping centre and where the bottle shop is located in the Centre near the supermarket in addition to the liquor store drive-through facility operated at the Tavern. [108] In Mr Duane‟s view an equally good outcome for residents of the region would be for a liquor store to be co-located with the shopping facilities on the BBC site opposite the existing Tavern with the latter continuing to operate a take-away/drive through facility or allowing shoppers to purchase take-home liquor at the Tavern. In his view there is no need for co-location of the Tavern and the shopping centre on the one site. [109] As to the second issue of whether the HH proposal best meets the needs of the local population Mr Duane concluded that the BBC land being regularly shaped and flat -- 52 of 138 -- 53 would enable a relatively simple Centre expansion to incorporate additional facilities required. He was not sufficiently familiar with the HH land to express an opinion. Mr Shimmin (HH) [110] Mr Shimmin111 identified only two areas of disagreement amongst the experts namely the size of the supermarket and the preferred location. The difference in opinion on size is outlined above in relation to the joint report. As to the preferred site Mr Shimmin set out a table of criteria under the headings exposure, scale, supporting uses, pedestrian accessibility, bus routes, vehicular access and car parking convenience, giving his comments. He concluded that the HH proposal was superior mainly due to the higher level of customer convenience flowing from the benefits to customers of co-location and the far better ingress/egress Mr Malkiewicz [111] Mr Malkiewicz112 expressed the view that the location of the existing Tavern in the HH proposal had a number of positive attributes namely the likelihood of longer multi-purpose visits to the Centre, the potential attractiveness of the Centre to residents because of the multi-purpose trip availability and the convenience offered by existing travel patterns in the area. He said there was no economic reason to refuse either proposal on economic grounds just as there was no economic reason to justify both proposals. In his view the HH proposal would best serve the community for convenience retail needs because of its co-location with the existing Tavern and the left-hand access off Blacks Beach Road. For those reasons he said the HH 111 Exhibit 5 112 Exhibit 12. -- 53 of 138 -- 54 proposal was better positioned to deliver a stronger community outcome giving the existing Tavern activity on the site and the Centre being located on the drive home northern side of Blacks Beach Road. Arguments re Need BBC [112] As the experts‟ evidence showed there are few areas of difference amongst them. On one such issue, co-location, BBC pointed to the evidence of Mr Shimmin and Mr Malkiewicz against the background of Mr Duane‟s evidence113 that there would be minimal, if any, benefits of having a shopping centre co-located with a Tavern. Under cross-examination Mr Shimmin said114 that his firm conducted a lot of consumer research in shopping centres of various types involving hundreds of thousands of interviews with Centre patrons. He said the information he had showed that something less than five per cent of customers using a shopping centre would use a Tavern located adjoining on the same trip. In the instant case he thought the figure may be five per cent or a little more because of the nature of the Tavern and the local area and the presence of a lot of people at home with money and young children for which the Tavern would offer a good opportunity. [113] Mr Malkiewicz115 agreed with Mr Shimmin‟s estimate of five per cent but made the point that that percentage represented quite a large number of Tavern patrons. He gave the example of a supermarket on average receiving a thousand to two thousand visitors per day, five per cent of which visiting the Tavern would represent 50 to 100 113 Exhibit 8, para 3.5. 114 T3.71.9-25. -- 54 of 138 -- 55 extra patrons per day for the Tavern which he regarded as significant. In BBC‟s view there was no need for co-location of a shopping centre with a Tavern because it is not something the community is looking for or wants or which offers benefits to the community. [114] As to the left hand turn off Blacks Beach Road BBC pointed to Mr Shimmin‟s acceptance that, absent such a left hand turn, and given that there will only be one shopping centre in the locality, people would nonetheless patronise that Centre. Mr Shimmin also said that in this particular case where the customers would have to go around the back of the BBC site to get into the supermarket some would choose to continue to Rural View some 2.5 kilometres away.116 [115] BBC further relied on Mr Shimmin‟s later evidence that the importance of convenience and accessibility to shoppers needs to be seen in context because shoppers can be quite quirky as to reasons for visiting a particular supermarket e.g. convenience, appropriate car parking spaces, existence of a circuitous route and dedicated Woolworths shoppers being turned away because of the presence of Coles only.117 [116] BBC made the point that the Woolworths Centre at South Mackay does not have left- in access on the home bound trip which benefit, BBC says, is more relevant to a heavily trafficked situation where there is a competitor supermarket which is not the situation at Blacks Beach.118 In BBC‟s view, given that both sites would be 115 T4.62.10-30. 116 T3.72 Shimmin said. 117 T3.73.15-45. 118 T7.18.25-35. -- 55 of 138 -- 56 accessible to the local population convenience in the current context should be judged by the five minute driving time.119 HH – Economic Need [117] HH focused on the evidence of Mr Duane120 that any co-location of the shopping centre and liquor store could be accommodated on either site but later accepted in cross-examination121 that it would not be lawfully possible to develop on the BBC site a liquor barn of the size proposed by HH (600 m2) and that such a liquor outlet on the BBC site would be restricted to a maximum floor area of 150 m2122 which is consistent with s 7(1)(b)(ii) of the Liquor Regulation 2002.123 HH sees this restriction as significant because the comparison of the type of liquor outlet on each of the sites is not the same and all experts on need agreed that a larger liquor barn offers more choice and co-location with a shopping centre was mutually beneficial to customers.124 Council – Need [118] Council says Mr Schomburgk‟s view of the community benefit favours the HH proposal. It accepts there is no need to co-locate a liquor barn with a supermarket based shopping centre but says it would be desirable and would benefit the community by expanding the range of retail facilities availability at the one Centre.125 The Council further argues that the HH proposal is to be preferred on the question of 119 Specific Outcome P6, Annexure A, pp 9-118. 120 Exhibit 8, para 3.8. 121 T4.83.1.35. 122 T4.83.40-50. 123 Exhibit 53. 124 T3.70.5; T4.59.30-45; T4.84.40; T7.44.29; Exhibit 3, vol 5, Joint Economic Report, p 41; T7.6.30- 38; T3.69.45; T3.79.30-50. -- 56 of 138 -- 57 need because it consolidates an existing Local Centre (the Tavern) with the proposal and offers better accessibility and convenience to the public. The need for a supermarket is not in issue. As for the need for a liquor barn the Council sees the only issue as whether it needs to be included in a retail facility. Given the reduced size of the HH proposed liquor barn from 1202 m2 to 600 m2, the Council argues that this will bring obvious benefits to the community without any detriment.126 In summary the Council says the HH proposal provides greater benefits to the community than the BBC proposals. Conclusion re Planning Need, Community Benefit, Co-Location, Accessibility, Convenience and Expansion Potential [119] Having regard to all the evidence and submissions, I do not consider that any of the above issues raised either individually or collectively would qualify or disqualify either proposal as the preferred site. Looking at the present and a few years out, it is clear that more people would benefit from the HH site because of the larger number of residents north of Blacks Beach Road. But looking to the future, beyond a few years out, as I believe one must do in considering a development of this type, it will be a relatively short period of 10 years from now before the current north/south population imbalance is corrected. [120] As to co-location, I see benefits flowing from the co-location of the shopping centre and liquor barn on the HH site, but do not regard the concomitant lack of such a benefit flowing from the absence of co-location in the BBC proposal as a significant negative factor in considering that proposal. Doubtless, whichever proposal is 125 Exhibit 15, Schomburgk Report, para 4.1.4. 126 Exhibit 3, vol 5, Joint Economic Report, pp 40-48 -- 57 of 138 -- 58 successful, there will be residents dissatisfied with the outcome for a variety of reasons. [121] As to access, I see some minor benefits in the Blacks Beach Road traffic being able to access the HH site by a left-in turn but, again, I am unpersuaded that either proposals‟ access arrangements are so superior to the other as to be determinative of the matter. Life‟s experience tells one that visiting any shopping centre can, at times, be a less than ideal experience. The point I wish to make is that patrons, whilst having firm views on access, convenience, co-location, parking and the like would not, in my view, necessarily boycott a centre if those expectations are not met. That would be even more the case, in my view where there is only one centre in the locality. Of course, I speak here of the reasonable shopper, one with reasonable expectations not those of an unreasonable, intolerant or inflexible disposition. [122] As to the potential of each proposal for future expansion, subject to any impact the Gore QC labelled killer point of HH (see later) may have on my opinion, I consider that both sites have capacity to expand in the future as demand requires. However, in my view the BBC proposal has an advantage over the HH proposal in that it will have better opportunity to minimise adverse impacts on residential amenity than would HH, given the BBC surrounding land is, as yet, undeveloped. The HH expansion site on the other hand, adjoins residential development. Traffic Experts -- 58 of 138 -- 59 [123] The three traffic experts Mr Holland (BBC), Mr McClurg (HH) and Mr Camilleri (Council), provided a joint report127 and each provided a separate report.128 Mr Holland (BBC) Joint Report Opinion129 [124] In the joint report Mr Holland expressed the following views:- (a) In the absence of a major redesign of the HH proposal the convenience, safety and ease of car park operation for patrons of the Blacks Beach proposal when compared with the HH proposal would outweigh any advantage associated with ease of access to the HH site; (b) The likelihood of inappropriate usage of McAlary Drive by HH Shopping Centre patrons strongly favours the BBC proposal; (c) The BBC proposal should proceed only on the basis that:- (i) There is no residential development abutting the southern side of Bondi Road immediately opposite the site130; and (ii) The development should include the installation of traffic signals at the intersection of Blacks Beach Road and Chenoweth Drive. 127 Exhibit 3, vol 5. 128 Exhibit 10 (Holland); Exhibit 6 (McClurg); Exhibit 11 (Camilleri) 129 Exhibit 10, Catchment A, pp 11 and 12. 130 Exhibit 18 – BBC amended proposal is for park land in this area. -- 59 of 138 -- 60 (d) Subject to the matters in (c), the revised BBC proposal would have a significantly lesser adverse impact than would the HH proposal. Mr Holland’s - Individual Report [125] In his individual report Mr Holland expressed the following further opinions:131 (a) The concerns expressed by Mr McClurg and Mr Camilleri that customer traffic and service vehicles associated with the BBC proposal may utilise the future residential street system south of Bondi Road is unfounded. The BBC revised Master Plan guarantees that no extraneous vehicles associated with the Shopping Centre would utilise that road system; (b) His earlier concerns in the joint report were relating to the unamended HH site layout were: : (i) The layout is contrary to driver expectation; (ii) It makes inadequate provision for the manoeuvring and standing of service vehicles and is contrary to established guidelines; and (iii) It makes inadequate provision for safe pedestrian movements. 131 Exhibit 10, pp 1-3. -- 60 of 138 -- 61 (c) The HH amended plan now complies with established guidelines but involves large service vehicles (probably semi-trailers) traversing the parking isle along the western end of the supermarket contrary to AS 2890.2-2002 (parking facilities Pt 2 off-street commercial vehicle facilities which requires circulation roadways to be provided to connect the access driveway with the service area. To that extent the amended plan is unacceptable, accentuated by inherently unsafe and unacceptable pedestrian carriageway outcomes. (d) The provision for service vehicles in the amended plan is inadequate in relation to the speciality shops; (e) The amended plan reinforces his joint report concern about co-location as it is likely on the amended plan that pedestrian access to the liquor barn will be via the concourse which reinforces his concern that some prime parking space is available for supermarket patrons to be occupied by liquor barn patrons to the disadvantage of the former (f) Despite the lack of any detailed intersection analysis the overall traffic delays at the proposed Blacks Beach Road/Chenoweth Drive signalled T- Junction will result in greater overall delays in accessing the HH proposal than the BBC proposal; (g) In the event that HH fails to obtain reciprocal easement rights over the Tavern site, access to the HH Shopping Centre and Tavern will be restricted to Blacks Beach Road whereas all patrons living south of Blacks Beach -- 61 of 138 -- 62 Road would be able to access the BBC site without entering Blacks Beach Road. In that respect the BBC proposal is significantly more user friendly; (h) His view is unchanged as in the joint report that the BBC proposal should only proceed if there is no residential development abutting the southern side of Bondi Road immediately opposite the site, in which circumstances the Bondi Road access to the BBC site could not be said to be a residential street; (i) As against that, patrons of the HH proposal may well use McAlary Drive for access particularly if easements across the Tavern site are in fact achieved in accordance with Council conditions for the HH proposal; and (j) Both Blacks Beach Road and Chenoweth Drive are classified as Traffic Distributor/Sub Arterial Roads on KI Infrastructure Map A forming part of the Mackay City Council Planning Scheme MCCPS. Chenoweth Drive is depicted as a future route, because it is not yet fully constructed over its entire length. (k) Apart from the above Mr Holland adhered to his views expressed in the joint report. -- 62 of 138 -- 63 Mr McClurg (HH) [126] On site layout issues Mr McClurg expressed the view that the HH proposed modifications132 satisfactorily addressed the key traffic and transport related issues identified in the joint report namely: (a) Absence of service vehicle bays for the speciality shops and existing Tavern; excessive reverse manoeuvring length for articulated vehicles when entering the service dock bay immediately north of the supermarkets; (b) Blind aisle length for the pocket of car parks immediately north east of the primary access from Blacks Beach Road and in the south west corner of the site; (c) Internal T junction immediately north of the primary access to the site from Blacks Beach Road; and (d) Car park search and circulation pattern; [127] As to the BBC proposed amended layout133 Mr McClurg still entertains the following concerns:- (a) That satisfactory longitudinal grades can be achieved at the proposed site access driveway intersection with Bondi Road. To comply with Council 132 Exhibit 6, Appendix D, Drawings SK-05 to SK-07. -- 63 of 138 -- 64 engineering design guidelines changes may be needed at the roundabout at that intersection and/or the proposed site access driveway and car park; (b) The amended plans do not confer that an appropriate driveway form to accommodate an articulated vehicle can be achieved without further modification to the site design which may result in loss of car parking; (c) The amended site layout does not include provision for service vehicles associated with speciality shop provision of which will be at the expense of car parking spaces which is unacceptable. [128] As to traffic impacts Mr McClurg acknowledged that one of the conditions of the HH approval was the requirement of a signalised intersection at Blacks Beach Road and Chenoweth Drive. In his view the proposed configuration for such an intersection will operate acceptably to provide access into the HH site. As to vehicular access he considers such access to the HH site as very convenient via a left-in turn off Blacks Beach Road or from Slater Avenue. To him it is a very efficient and convenient means of access which does not rely upon backtracking or the use of local residential streets inappropriately. [129] On the other hand he considers the access to the BBC site as significantly less convenient via Blacks Beach Road, Bondi Road and then into the site which he does not regard as an efficient and convenient means of access given that the majority of the patrons will drive off Blacks Beach Road onto Chenoweth Drive and then on to 133 Exhibit 6, Annexure B. -- 64 of 138 -- 65 Bondi Road, or part of the local residential street network. This, Mr McClurg says has the potential for intrusion and impacts on the local amenity. [130] Mr McClurg expressed the following reasons for his opinion that the HH proposal is the preferred development from a traffic perspective:- (a) Its location and proposed access arrangements make it the most convenient site in terms of vehicular access for patrons; (b) Its co-location with the existing Tavern provides for integration of land use activities which will lessen the traffic demand/load on the external road network; (c) Approval of the BBC proposal would fragment commercial/retail facilities in the area to the detriment of vehicular and pedestrian trips; (d) The HH Proposal has no adverse impact on adjacent residential streets; and the BBC proposal would result in 2,720 vehicles per day of additional non- local traffic in the local street network namely Bondi Road which would be inappropriate. [131] In Mr McClurg‟s view any traffic related issues for the HH site layout can be satisfactorily addressed with minor modification which are identified in his report. In respect of the BBC proposal he said that a number of changes to the plan of development will be necessary to achieve a satisfactory site layout and access arrangement. -- 65 of 138 -- 66 Mr Camilleri (Council) – Traffic [132] Mr Camilleri134 confirmed that all traffic engineers agreed that traffic signals needed to be installed at the Blacks Beach Road/Chenoweth Drive Intersection regardless of which proposal is approved.135 On the traffic issue he regarded both sites as providing parking well in excess of expected practical peak parking demands and that neither proposal was expected to generate any adverse impacts in that regard. On site layout, having regard to car park layout, service vehicle facilities and pedestrian linkages he expressed the view that both proposals would operate in a safe and efficient manner though he did say that the BBC layout is deficient in that no dedicated service vehicle bays have been provided for the speciality retail component. [133] As to accessibility, he said that access to the BBC site is far more circuitous than that of HH because of the number of right turns required and the distance from the major road network. He thought it beneficial that the HH Centre was on the home bound journey either from work or school pickup. On the issue of the impact of each proposal on the local road network, Mr Camilleri considered that the HH proposal offers least potential impact although he did not have the final layout for the BBC proposal and said there was uncertainty as to the impact the BBC proposal will have on the surrounding road network. [134] In conclusion he said that both sites are considered acceptable as stand alone developments so far as traffic engineering matters are concerned but that the HH proposal is preferable due to the higher level of accessibility maximising convenience 134 Exhibit 11. 135 Ibid, para 2.3. -- 66 of 138 -- 67 and minimising the impact on the external road network and the fact that the proposal involves a consolidation of commercial uses on one side of Blacks Beach Road. Arguments Re Traffic BBC [135] BBC submit that none of the traffic issues warrant refusal of either application which is consistent with the view expressed by Mr Camilleri.136 Neither of the other traffic engineers said to the contrary. BBC says its parking layout is user friendly as being segmented and not integrated which avoids the whole of the expanse of available parking being exposed to view upon entry which is the case with the left-in turn entry to the HH proposal.137 [136] A major defect in the HH layout according to BBC is that the service vehicles use the same access points as customer vehicles in the same areas to circulate through those parking areas which involves considerably greater interaction between service and customer vehicles than would occur on the BBC site. This it is said has safety implications138 and is a bad design.139 [137] BBC argues that this situation is to be compared with the very limited interaction between service and customer vehicles on the BBC layout because service vehicles will only use the eastern access point at the roundabout which will be used by only thirty percent of patrons entering the site. The remaining seventy percent of patrons 136 T7.26.1-5. 137 T7.28.50-60; T7.29; T5.40.10-20. 138 T5.49.25; T5.81.40; T6.5.20-40. 139 T5.48.40-60. -- 67 of 138 -- 68 will enter the left-in western access off Bondi Road.140 All exiting vehicles, it is said, will use the eastern access but the only interaction between those vehicles and the service vehicles will be in the space between the eastern access from the Bondi Street roundabout and the first left turn off the driveway into the car park area. There is no movement of service vehicles through customer parking areas as there is with the HH site.141 [138] BBC referred to the evidence of Mr McClurg that the present HH layout had room for improvement and was yet to get through a detailed design stage142 but to design the layout to provide for service vehicles to have a dedicated carriageway to access the service area could be achieved.143 However he said that there was a question of whether one would want to achieve that on the HH site because it might result in losing some desirable elements impacting on the physical amenity. As against that view of Mr McClurg of the HH site layout BBC compared it with that expressed by its expert Mr Holland who said he could achieve a workable layout but it would involve starting from scratch and it would not look much like the current HH layout.144 Absent such a major re-design, it is said that the BBC proposal is clearly superior which, it is said, is consistent with the views of all traffic engineers subject to some minor changes. [139] As to Mr Camilleri‟s preference for the HH proposal because it minimised the number of trips and turn movements on the road network, BBC says that the volume of trips is not significant because this is not a highly trafficked area and there are no 140 T6.79.30-60; T6.80.15; T6.82.1-5. 141 T6.78.40-60. 142 T6.96-50-60. 143 T6.87.20-40. 144 T6.25.30; T6.31.15; T6.40.10-20; T6.48.25; T6.48.35. -- 68 of 138 -- 69 capacity issues because there will only be one Centre approved.145 I have already earlier stated the BBC view that the left-in turn to the HH site is overstated and BBC made the point that it is relevant only to those living to the north and east of the sites which was acknowledged by Mr Camilleri.146 It is also argued that McClurg‟s evidence was that the left-in turn on the homebound journey is not a traffic issue147 and is not a make or break issue. Mr Camilleri acknowledged148 that the proposed extension of Chenoweth Drive south from the BBC site to Rural View would have a significant input on the distribution of traffic surrounding both sites. In BBC‟s view its proposal will have lesser impact on Blacks Beach Road for people travelling from the south west because they will not have to use that road.149 As to the Blacks Beach Road and Chenoweth Road Intersection, BBC points to the evidence of Mr Holland150 that the HH proposal will necessitate a four way intersection which inevitably operate less efficiently than the existing T junction which will remain if the BBC proposal is approved. In that event, as Mr Camilleri acknowledged151 the demand for vehicular and pedestrian trips between the Tavern and the BBC development would not be significant. [140] As to the proposed school to be established on the southern side of Blacks Beach Road, BBC pointed to the evidence of both Mr Holland and Mr McClurg152 that any access to the school should be off Chenoweth Drive rather than Blacks Beach Road. Mr Camilleri also acknowledged that there is some connection between a school drop 145 T7.26.25-40; T7.21.30; T7.37.55; T7.38.5; T7.37.30-60. 146 7.35.35-45. 147 T6.98.35; T6.99.38. 148 Exhibit 11, p 6. 149 T5.53.40-60. 150 Exhibit 10, p 2, para 7. 151 T7.39.20. 152 T5.46.25; T6.88.45-50. -- 69 of 138 -- 70 off/pick up and a shopping trip in that many parents combine the two153 and, given that BBC argues that the BBC proposal would be more conveniently located for that traffic. [141] As to the issue of traffic intrusion into the residential streets of the BBC site access on Bondi Road and McAlary Drive, and access for the HH site, BBC argues that both Mr Holland and Mr Camilleri154 were unconcerned about non-residential traffic on that part of Bondi Road and that Mr McClurg ultimately was unconcerned about this issue.155 I am not persuaded that Mr McClurg changed his view. [142] As to the HH site BBC argues that McAlary Drive is a residential street with a 8 m carriageway and houses and both Mr McClurg and Mr Camilleri agreed that the presently undeveloped northern section of the HH site should not have direct access to that street.156 In Mr Holland‟s view157 the patrons of the HH proposal, particularly those living to the northwest of the site would find it more convenient to leave the site via Slater Avenue and McAlary Drive rather than Blacks Beach Road. [143] In summary BBC says that the traffic issues favour its proposal as a more convenient and safe layout with access equal to that of the HH proposal, and does not create a risk of intrusion of shopping centre traffic into residential streets. HH Argument – Traffic 153 T7.40.50. 154 T7.38.55 – T7.39.15 155 T6.73-75. 156 T6.87.40 – T6.89; T7.41.40. 157 Exhibit 10, p 3. -- 70 of 138 -- 71 [144] HH argues that lot 241 is the logical site for the extension and consolidation of the existing undersized and inadequate Local Centre (the Tavern). It points to the opinion expressed by the need experts in relation to the vehicular access of Chenoweth Drive and Bondi Road that this indirect access and lack of main road ingress/egress points are considered to be poor design elements of the BBC proposal as compared with the HH proposal.158 Mr Brownsworth the BBC town planner agreed with that statement.159 Mr Holland agreed that the access into the HH site from Blacks Beach Road would reduce the travel distance compared with access to the BBC site;160 accepting the benefit of the frontage of HH to Blacks Beach Road. [145] HH raised what has been described by Mr Gore as a killer point in relation to Mr Holland‟s opinion that the BBC development should not proceed unless there is no residential development abutting the southern side of Bondi Road immediately opposite that site. I shall deal with this point shortly. Council Argument – Traffic The Council first focuses on Mr Holland‟s concern about the HH amended layout plan addressing the problem of larger vehicles being required to perform significant manoeuvring within the site. Mr Holland was also concerned that larger vehicles would use Centre patrons parking isles. [146] Council argues that Mr Holland‟s views should not be accepted. For these reasons: 158 Exhibit 3, vol 5, Joint Economic Report, para 28. 159 T4.23.48. 160 T5.67.38; see also evidence of Mr Richards T8.57, l 40. -- 71 of 138 -- 72 (a) The “requirements and recommendations of the Australian Standard 2890.2- 2002161 are guidelines only accepted by Mr Holland in his reports;162 (b) The relevant section of the standard relied upon does not distinguish amongst types of shopping centres or their levels of activity so applies to both a small supermarket based shopping centre as here under consideration and to large regional shopping centres; (c) The design principles163 depicts the design of any access area dependent on frequency with which vehicles of different classifications use the facility; (d) On the HH proposal the large articulated vehicles will number about three vehicles per week; (e) If the Australian standard was applied to the BBC proposal as Mr Holland has applied it to the HH proposal, BBC likewise would fail to meet the requirements he relies upon. For instance with regard to the manoeuvring of service vehicles outside the service area (i.e. the three point turn required by the articulated vehicle on both sides of the circulation isle and amongst the parking areas at the rear of the buildings), absence of a separate access for service vehicles and absence of arrangements for service by smaller service vehicles; (f) Both the other traffic engineers Mr Camilleri and Mr McClurg were satisfied the proposed arrangements were satisfactory. 161 Exhibit 29, Australian Standard s 3.3.2. 162 Exhibit 10, p 1, s 5. 163 Ibid, para 3.2.1(b), p 11. -- 72 of 138 -- 73 [147] As to Mr Holland‟s expressed concern about the use of patrons parking isles by service vehicles this has been addressed by Mr McClurg who produced an additional plan.164 As to the remaining concerns of Mr Holland being convenience of access, size of service bays, location of pedestrian access and the potential and proper use of McAlary Drive north of the HH land by non-residential traffic the Council says that all of those concerns can be dealt with by conditioning or at the detailed design stage. In summary the Council submits that the court should not accept Mr Holland‟s views as to the convenience and accessibility offered by the HH proposal as that proposal will involve co-location and integration of non-residential retail and service facilities in one convenient and accessible place which is what Centre planning is all about. Conclusion re Traffic Issues [148] None of the above site traffic issues raised would, in my view, warrant refusal of either application. Any remaining concerns can be dealt with at conditioning stage. As to access/convenience, I have already expressed my view in paragraph [122] above. Noise, Lighting, Architecture and Urban Design Noise and Lighting [149] The expert witnesses on noise and light, Ms Adams (BBC) and Mr King (HH), provided a joint statement165 and separate reports.166 In their joint report the experts agreed on the following:-167 164 Exhibit 31. 165 Exhibit 3, vol 5. 166 Ms Adams, Exhibit 25; Mr King, Exhibit 17. -- 73 of 138 -- 74 (a) The noise and lighting criteria and noise source data relevant to the proposals and the application of that information to each site; (b) That each site can be conditioned, designed, constructed and operated to achieve the appropriate noise limits at off-site noise sensitive areas; (c) The BBC site has greater set-back to existing and potential residential areas than the HH site unless residential development occurs on the balance of lot 901 on the BBC site; (d) In comparing the merits of each site in terms of noise amenity impact the following is relevant: (i) Noise limits can be met for both proposals; (ii) The extent of noise control measures in the form of noise barriers and acoustic controls to plant and equipment will be greater for the HH development than the BBC development, due primarily to the interface to existing residential development; and (iii) If no noise barriers/control were in place, the BBC site would have the lesser potential for noise/light impact due to generally greater separation distance to residential areas. 167 Joint report, p 12. -- 74 of 138 -- 75 [150] The joint report recommended that a 2 m barrier be placed along the eastern boundary of the BBC site for a length of 130 m. In relation to the HH site the experts agreed that there be a 2 m barrier along the western boundary for the benefit of the existing residences to the west and that a similar 2 m boundary be constructed along the northern boundary for the benefit of the residences to the north except for the loading dock area where the barrier was to be 3 m in height. [151] The only area of disagreement is the question of which site would have least impact on the surrounding amenity. Ms Adams says that, considering the extent of amenity controls required, BBC would typically require fewer control measures by way of barriers and plant noise controls than HH. For that reason she believes BBC has the lesser impact of the two proposals. Mr King, on the other hand, considers that provided appropriate amenity controls are in place to achieve the relevant noise amenity limits, there is no appreciable difference in amenity impact at sensitive uses for either development site. He considers the existence of the Tavern adjacent to the HH proposal provides an existing expectation of some residents of commercial activity and on this basis he sees the HH site as an expansion of an existing commercial area. Mr King (HH) [152] Mr King, in his report, considered the modification to the HH site plan resulting from issues raised by the traffic and economic experts, and he revisited the extent and -- 75 of 138 -- 76 height of noise barriers he considered necessary for attaining compliance with agreed noise limits under that revised site plan.168 [153] That revised plan shows a two metre barrier along the western boundary rising to a three metre barrier towards the north, with a three metre barrier along the northern boundary increasing to 3.2 m near the loading dock and then stepping back to 3 m. Ms Adams (BBC) [154] The individual report of Ms Adams dealt with the noise and lighting amenity in the event of expansion of either of the shopping centre proposals and commented on Mr King‟s revised opinion. Ms Adams expressed the view that the barriers along the western boundary should be 3 m in height for the entire boundary rather than 2m as referred to in the Joint Report. Submissions on Noise and Light BBC [155] BBC pointed to Ms Adams‟ opinion that the 2 m component of the western boundary barriers (increased to 3 m in the northern section under Mr King‟s new amended proposal) should be 3 m for the whole length. It said that both Ms Adams and Mr King acknowledged that, whereas an acoustic fence might protect acoustic amenity 168 Exhibit 17, pp 8 and 12, Fig 5 -- 76 of 138 -- 77 there remained an issue of visual amenity. Ms Adams169 acknowledged that and said that in her experience the expectation of the height of acoustic barriers in a typical developed area would have an upper limit of 2 m. Mr King said he was conscious that the height of any noise barrier can cause visual amenity and said it was true that one doesn‟t commonly find acoustic fences more than 1.8 m or 2 m in height in residential areas. He qualified that to say it was becoming more and more difficult to find developable sites away from busy roads and commercial areas so that in residential and commercial developments he has been involved in, it has become quite common to find such fences of 2 m to 3 m in height.170 [156] BBC points to the Council condition on the HH approval171 limiting the height of an acoustic fence on the western boundary to 2 m. In BBC‟s view the need for a 3 m acoustic fence in a residential area may address the acoustics of the area but produces an unacceptable visual outcome for the amenity of the area. HH HH pointed to Mr King‟s expressed opinion that the existing commercial activity in the form of the Tavern founded an existing expectation for adjoining residents that the HH proposal is an expansion of existing commercial area. It pointed to the amended HH proposal which provides for service vehicles to access the supermarket and delivery dock area by travelling through the western car park along the northern part of the site between the supermarket and site boundary which change was assessed by Mr King and found to be appropriate. It pointed to Mr King‟s evidence as to the size and frequency of service vehicles delivering to the supermarket and liquor barn. In his 169 T5.8.52; T5.9.1-8. 170 T5.34.10-50. -- 77 of 138 -- 78 view they would range from an articulated vehicle to a semi-trailer with a frequency of one or two times a week for the supermarket and the same frequency for the liquor barn. On top of that there will be other deliveries to the supermarket by small vans, small rigid vehicles and medium rigid vehicles.172 HH submits that that level of activity is relatively infrequent and that the proposal by Mr King for the barriers to the HH site took into account compliance with all technical noise limits, the proximity of houses to Blacks Beach Road and the implication of that for their amenity.173 [157] Finally HH adopts as correct the reasons given by the Council on this issue when refusing the BBC application174 which relevantly provided:- “The potential for amenity impacts adjacent sensitive used (sic) is more pronounced in the case of the Hawkhaven proposal owing to the existing presence of a direct residential interface to the west, and the relevant proximity of residences on the northern frontage of McAlary Drive. Notwithstanding this, the requirement for amelioration measures including screen fencing and acoustic barriers will attenuate impacts to an appropriate level. …” Council [158] The Council agrees with the submissions of HH and argues that the opinion of Mr King should be accepted. It points to the joint expert report agreement that for the BBC land a 2 m acoustic fence would be required along the eastern boundary. The Council says that, having regard to the topography of the land and the potential residential uses on the adjoining land would have to be at least 4 m in height to screen the noise emitting sources on large trucks which considerations would apply also with any extension eastwards of a BBC Shopping Centre. 171 Condition 34. 172 T5.30.52-54 173 T5.31.28-40; T5.33.29-30. 174 Exhibit 3, vol 4, p 1226. -- 78 of 138 -- 79 [159] The Council says in summary that any impacts upon the HH proposal are unlikely to be significant, not likely to exceed impacts that would reasonably be expected in the location and would be no greater any impacts associated with the BBC proposal. Conclusion re Noise and Light [160] I prefer the evidence of Ms Adams to that of Mr King on this issue. I agree with her that the BBC proposal would require fewer noise control measures than would the HH proposal. I shall shortly deal with what I see to be unacceptable intrusion of the barriers proposed by Mr King into the visual amenity of the surrounding residential area. Architecture - Urban Design [161] The two experts in this area are Mr Richards (BBC) and Mr Middleton (HH). They provided two joint reports of 15 December 2010 and 4 February 2011175 and individual reports.176 First Joint Report Matters Agreed [162] Of the agreed matters recorded in the first joint report I mention the following:- (a) That the HH site represents a logical point of development for retail facilities at the current stage of development in this part of Mackay; 175 Exhibit 3, vol 5. -- 79 of 138 -- 80 (b) That either site presents similar locational functionalities in the event of full build out of both sites; (c) The HH site is a logical final stage of the land uses established in the overall setting of development to the north of Blacks Beach Road; (d) Access from Blacks Beach Road to the HH site is superior to access from Blacks Beach Road to the BBC site; and (e) The HH site is well connected to the surrounding urban areas whereas the BBC site does not present this amenity for other than the limited number of sites currently close to the site. First Joint Report Matters Not Agreed [163] The Following matters were not agreed in the first joint report: (a) HH cannot simply accommodate expansion of the retail centre without significant disruption of the existing proposal; (b) The BBC site has a simple expansion potential without altering the proposed Master Planned High Density Residential development on the expansion site. 176 Exhibit 9, Mr Richards; Exhibit 7, Mr Middleton. -- 80 of 138 -- 81 (c) The BBC site is not conducive to a simple expansion, building on the orientation and layout as proposed; (d) The BBC site has a degree of difficulties of access; (e) HH is the only appropriate location of a Neighbourhood Centre to serve the future Blacks Beach Community; (f) The signalised intersection access at the Blacks Beach Road and Chenoweth Drive intersection is provided by BBC but forms part of the HH approved application; and (g) The BBC site will have a greater population within walking distance; Second Joint Report 4 February 2011 [164] The second joint report was prepared specifically in response to a revised development plan for the BBC proposal. Matters Agreed in Second Joint Report [165] The second joint report records agreement on the following matters: (a) The revised entry improves access for vehicular movements to and from the loading area particularly large rigid vehicles and articulated vehicles; -- 81 of 138 -- 82 (b) The revised configuration does not worsen any impacts on the adjoining residential area; (c) The new traffic arrangements created by the new roundabout limit the flexibility of the entry and exit movements to the car park; (d) The car parking numbers are fewer than the original proposal; (e) Intrusion of the retail areas into the landscaped zone has reduced the setback of the Centre from the street; Individual Reports Mr Richards (BBC) [166] In his individual report Mr Richards expressed the view that the two sites are of a similar car based format and will produce a similar type of Local Centre but with the following differences: (a) The cumulative impacts of the Hawkhaven proposal on the adjoining existing residential neighbourhood are greater than those of the BBC proposal on the as yet undeveloped Master Planned Residential Neighbourhood; -- 82 of 138 -- 83 (b) The HH proposal involving a large drive-in liquor barn and shopping centre is of a larger scale than the BBC proposal which is for a shopping centre only which latter proposal is more consistent with a Local Convenience Centre; (c) The BBC proposal will service the existing residential neighbourhood and provide direct access to the emerging residential development to the south of Blacks Beach Road; and (d) The Blacks Beach proposal on flat land being part of a larger parcel of land is suitable for future expansion without impacting on the adjoining residential neighbourhood. As against that the HH proposal cannot be readily expanded upon without impacts upon the existing residences and difficulty in design. [167] Mr Richards expressed the following further opinions in his report:- (a) The residential settlement pattern north of Blacks Beach Road has not been developed around a Commercial Centre in a Master Planned manner and, even without substantial development south of Blacks Beach Road, the Blacks Beach site is a logical extension of the development pattern from the north; (b) The vacant land including the school site in the BBC Residential Estate south of Blacks Beach Road will serve a wider developing community including existing and future communities to the south west which will -- 83 of 138 -- 84 change the current pattern of settlement shifting the focus of the community to south of Blacks Beach Road. (c) The existing residential neighbourhood north of Blacks Beach Road consists of numerous cul-de-sacs and convoluted access roads not directly connected to either Blacks Beach Road or the HH site; (d) As to the left hand in access to the HH site, many centres are on the right hand side of the home journey including the Northern Beaches Central development just south of the Blacks Beach area reflecting that a well designed shopping centre across the primary street through the area is relatively common; (e) The co-location of the Tavern and supermarket is of limited benefit because they are not necessarily closely related uses accessed by the same trip; (f) The HH proposal is incompatible with the adjoining residential uses which cannot be mitigated by building articulation, landscaping or fences but only by increasing setbacks of the retail use involving decreased building bulk. The proposed acoustic fences recommended rising to 3.2 m in height in parts are not in keeping with the existing residential character; (g) Conversely the BBC site permits its arrangement on site to have no impacts on adjoining residential sites master planned and would involve the commercial centre use preceding residential development. There are no -- 84 of 138 -- 85 character conflicts because there is an expectation of a Centre and its associated built form outcomes in this location; (h) The BBC proposal preserves the intent of the image corridor in the Scheme while the HH proposal does not. The intent of an image corridor is to create a vegetated zone that is not easily seen through and the HH proposal reduces the designated image corridor from 10 m to 5 m which will be broken by three vehicle crossovers resulting in the reduction in the corridor‟s effectiveness. Mr Middleton (HH) [168] Mr Middleton expressed the following opinions: (a) That the HH site is demonstrably superior on all measures of urban design, site planning and functional performance; (b) The HH site allows for an immediate establishment of additional commercial amenity for the local area and long term expansion if required. That expansion on undeveloped adjoining land can be achieved without significant disruption; (c) The HH site builds off the existing community patterns of progressive development over the last 10 to 15 years; -- 85 of 138 -- 86 (d) The HH site has superior accessibility for patronage and servicing and is consistent with the range of built form solutions already existing in the locality namely the Tavern. It builds on well established commercial and community activity in the location; the HH site is better suited for development in a transitional scale that delivers immediate retail amenity alongside the commercial Tavern site and provides for the establishment of a longer term focus for the commercial built form. It has high visibility to the major public street frontages and although it will enhance the overall streetscape of Blacks Beach Road it will deliver a more substantial setback to the street and present the clear proposition for access and function; (e) The HH proposal will not unreasonably impact the adjoining properties through servicing access or conflicting use whereas the BBC proposal will create undesirable impacts to adjoining properties through servicing and general access requirements; and (f) The HH site delivers a stronger pedestrian focus than the BBC site particularly for the existing communities but also establishes an easy location to the newer sub-divisions developing in the south. [169] In amplification of those views Middleton made the following further points. As to site planning HH proposal offers incremental growth from an existing commercial Tavern use whereas the BBC site is removed from existing residential settlements and turns its back to the external presentation of commercial uses to Blacks Beach Road which is a fundamental functional shortcoming of the planning on that site. He sees the expansion for the HH site as better than the BBC site which he says appears to be -- 86 of 138 -- 87 limited by the proposed land uses around it. As to amenity he says the HH site offers a wider range of mixes providing for a variety of patronage, patterns and a more beneficial setting within the surrounding area positioning itself appropriately to deliver minimal intrusion into the residential character of the surrounding area by virtue of its direct access onto Blacks Beach Road. [170] Mr Middleton says that the HH proposal offers a legible and identifiable use pattern that will provide easy and logical patterns for patronage and service access and use with the high volume traffic patterns accessing and departing from the site without nuisance to the local area residents. In his view that pattern of use is not available on the BBC site due to the complex access patterns for vehicle access. Further he says that the service vehicle patterns of use on the BBC site will generate a high level of nuisance with a potential, as I understand his report, to increase the potential risk in the safety environment surrounding the site due to the very limited access patterns. [171] As to the image corridor issue raised by Mr Richards, Mr Middleton says that neither site is considered to intrude into that corridor by any unacceptable degree. On the issue of reasonable community expectations Mr Middleton says it is important to understand the history of the two applications under consideration. Up to the present time, he says, the majority of the local population has established settlement patterns on the northern side of Blacks Beach Road and the existing Tavern offers entertainment to many residents who live within walkable distance of that venue. The balance of the northern residential area available for development is now quite restricted and he sees the logical local final build out delivering local support facilities in the form of retail amenity with several access and identity for the majority now settled in the adjoining street. -- 87 of 138 -- 88 [172] In Mr Middletone‟s view it is a reasonable expectation by that section of the community that the retail amenity which the HH proposal will deliver will be available on a site that offers the best operation and residential amenity of the area which includes access, familiarity, identity and complimentary position to the existing patterns of development. He says the HH site has consistently been portrayed to the community as the location proposed for the establishment of retail amenity for this part of the Blacks Beach locality so that the long term history of this site development and the present HH proposal reflects a reasonable expectation for the community. Arguments re Architecture/Urban Design BBC [173] The BBC submits, in accordance with the opinion expressed by Mr Richards that the use, scale and size of the HH proposal conflicts with the character and amenity of the surrounding area as intended by the Scheme and the expectations of the residents in the Urban Residential Zone. It points to the evidence of Mr Middleton that the residential development in McAlary Drive to the north of the HH site is fully developed with typical detached single dwellings of reasonable quality and amenity. Along Kinghorn Street to the west of the HH site all allotments are developed with similar single detached housing apart from the southern most adjoining Blacks Beach Road which is being used as a temporary detention basin. All those houses have good amenity.177 177 T3.4.50-60; T3.5.1-25. -- 88 of 138 -- 89 [174] BBC submits that the reasonable expectations of the residents in both McAlary Drive and Kinghorn Street would be consistent with Urban Residential Zone Overall Outcomes (2)(a) and (f)178 requiring development in the Zone to protect the high level of amenity of the Zone and comprised predominantly of single detached dwellings with any non-residential development not adversely affecting the residential amenity of the Zone. Those expectations would further be based on Specific Outcome P5179 of the Zone requiring non-residential activity to be limited to small scale uses directly related to servicing the needs of residential areas or of a small scale, home based business or home occupations with design measures to control any external impacts from the activity. [175] In BBC‟s submission the HH proposal conflicts with those provisions. It fails to provide a good interface with the surrounding residential neighbourhood. It relies upon the evidence of Mr Richards180 who said that the expectation of residents in the Urban Residential Zone would be of predominantly residential type uses rather than commercial with any fence up to 2 m or so in height. He said the fences proposed were very high and to have a tall fence interfacing with the street is not a good interface in a residential environment. He sees it as visually intrusive and not creating a very safe walking environment for people. In his view such a fence would be obviously visible and would block breezes, views and sunlight causing shadowing thus detracting from the light and air amenity otherwise available181 [176] As to the western boundary he thought the scale of any fence should be 1.8 m to 2 m not 3 m or more as proposed. For the western residents the impact was more 178 Annexure A, pp 5-41. 179 Annexure A, pp 5-42. 180 T8.37-38. 181 T8.8.20-50; T8.37.40. -- 89 of 138 -- 90 significant in his view because the dwellings were built generally towards the HH site with their rear gardens and primary outdoor area towards the east. The effect of the HH proposal would be for a significant wall being built on their boundary to a significant height. In Mr Richards‟ opinion no amount of landscaping would achieve a good outcome, but rather, at best, could assist in trying to make a poor solution slightly better. [177] BBC also pointed to the evidence of Mr Middleton who conceded that a 2 m fence would be preferred along the western boundary. As to access BBC pointed to the plan182 prepared by Mr Middleton identifying that it had no direct pedestrian access for residents to the north via McAlary Road, that the nearest point was at the north east corner of the Tavern site and that if access was available for McAlary Drive it would involve pedestrians entering at the back of the building and service area. That would be neither attractive nor safe. [178] As to vehicle access BBC pointed to the lack of any direct access to the HH site from the north and says that the HH plans do not reflect that all vehicle and pedestrian access must be from the front of the site unless through the neighbouring Tavern land. [179] As to its site, BBC says its proposal is not to be located within an urban residential zone but will be built on vacant land with no existing adjoining residential development so that such development can be planned as a part of a Master Planned Community allowing for greater possibilities of integration of commercial development with new forms of housing, better urban designs and easier means to 182 Exhibit 7, p 21 -- 90 of 138 -- 91 mitigate potential impacts.183 In other words the commercial development can precede the majority of residential development and future residences can be designed and developed to ameliorate and cater for any impacts associated with proximity to an existing commercial development. By way of example, it is said, any townhouses built on the vacant land immediately to the east of the BBC site184 can, with the knowledge of the existing BBC proposal, be orientated north and away from the supermarket with double-glazed windows and with the entertainment and living areas to the east of the building. Such smaller lots of higher density housing near a supermarket transport and the like is within the expectations of good urban design and provides a variation in built form.185 Mr Middleton acknowledged that, in principle, it is good urban design to have higher density residential development within walking distance of retail facilities but thought that any such development on the block to the east of the BBC would be quite complementary to the HH site allowing residents to walk down to the traffic lights at Chenoweth Drive and straight into the HH site. He said that in some ways it would be easier to do that than to be right alongside the loading dock of the BBC development.186 [180] BBC argues that Mr Middleton placed too much emphasis upon the location of the HH proposal by reference to existing residences to the north187 when, as he acknowledged188 that good urban design plans for the future as well as the present. It pointed to the fact that existing residential population growth in the north is almost 183 T8.87.10-15. 184 Exhibit 18, cherry coloured block at top of plans. 185 8.26.55-60. 186 T8.26.40-6; see also T8.40-50-60 to T8.41.5. 187 Exhibit 7, paras 5.2, 5.3, 6.19, 6.25, 7.1.1 and 7.2.1. 188 T8.19.45. -- 91 of 138 -- 92 completed with little land remaining and to Mr Middleton‟s view that the HH site is the last parcel on the northern side of Blacks Beach Road.189 [181] Looking to the future and given the economists‟ evidence that by 2021 the population to the north and south will be equally distributed, BBC argues that its proposal is the logical position being on the same side of the road and directly complementing the settlement pattern proposed by the Master Planned Community south of Blacks Beach Road. Just as those to the north will have to cross Blacks Beach Road to access the BBC site, similarly those to the south are faced with the same situation. For those existing residents to the west of the HH proposal, the HH development will not be on the homeward journey so that the left-in advantage will not be available to them. Similarly future residents south of Blacks Beach Road will not access the HH site on a homeward journey. BBC submit Mr Middleton‟s view190 that pedestrian access to the BBC site is less convenient for the majority of local residents, is wrong when one looks beyond the present. [182] As to the image corridor and landscaping BBC says that the HH proposal conflicts with the Landscape Character Overlay Code Specific Outcomes P1 and P2.191 BBC says that the requirement in P1 of a minimum building setback of 10 m to the road frontage of the image corridor, 192 is breached by the HH proposal because the car park area along the southern boundary is within 10 m of the road frontage and a new sign is located at the south west point within that 10 m. 189 T8.20.1. 190 Exhibit 7, para 7.4.4 191 Annexure A, pp 8-57. 192 Exhibit 1 – Map – Corridors. -- 92 of 138 -- 93 [183] It further says that the HH proposal conflicts with P2 because it does not enhance rural views or vistas by providing a building design blending into the associated urban or rural settings and does not provide a continuous (no gaps) vegetated strip of landscaping as required. Further it says the HH proposal involves a new pylon sign193 to be constructed within the 10 m setback area in breach of P2. [184] As against that, the BBC says its proposal recognises and maintains the image corridor as required194 and provides a landscape buffer of at least 9 m in width to the boundary line only 1 m less than the 10 m Code requirement. [185] The required buffer of no less than 2 m high with no gaps can be provided for the full frontage of the BBC proposal along Blacks Beach Road. [186] As to each site‟s potential for expansion, BBC points to what it says are constraints on the triangular allotment adjoining the HH site to the north195 which it says is designated for residential purposes. Those constraints are:- (a) The land slopes relatively severely from north to south with an 8 m difference between the two ends of the allotment196 any expansion will require significant cutting, an extension of the fencing along the northern topside of the site resulting in the roof line being likely to be visible to surrounding residents; 193 Exhibit 7, p 37; Exhibit 2, p 5. 194 T8.41.50. 195 Exhibit 7, p 15. 196 T8.13.1-5. -- 93 of 138 -- 94 (b) Integration will not be easy.197 Service vehicles will have to access the rear of the existing shopping centre. It is said that the difficulty of integrating the two sites not only will compromise the service vehicle circulation driveway but will also result in the inability to co-ordinate and provide a continuation of shop frontage particularly speciality shops around to their new expanded area which would need to have a direct connection to existing speciality facilities; (c) The expansion will push the development further towards the established Low Density Residential Area to the north bringing the shopping centre and its related impacts, including noise sources, closer to those adjacent residences.198 Further it is said, because of the contours on the triangular allotment any expansion will result in the shopping centre sitting below the residents towards the top end of Kinghorn Street on the western boundary resulting in increased visual impacts.199 HH – Architecture and Urban Amenity HH’s Asserted Killer Point [187] As I have said, Mr Gore raised what he described as a killer point against the BBC proposal relying on the view of the BBC traffic engineer Mr Holland. As I have already said in dealing with his evidence, Mr Holland‟s view is that the BCC proposal should proceed only if there is no residential development abutting the southern side of Bondi Road immediately opposite the site”.200 However, the 2008 approval authorised the creation and use for residential purposes of lots at that 197 T38.39. 198 T8.38-39. 199 T8.22.35-45 200 ex.10 p.3; see also ex.3 vol 5 traffic JER p.7 -- 94 of 138 -- 95 location.201 Mr Holland accepted that with out a reconfiguration of the land south of Bondi Rd it would create a point of weakness for BBC in seeking approval of their current application.202 All three parties have provided supplementary written submissions on this issue, the outcome of which will ultimately go to the amenity point of the BBC application. HH [188] At the heart of the HH submission on this point is that this matter must be determined, according to the state of things existing at the time when the appeal comes to be heard and determined. It relies on CDJ v VAJ203 where it was said that the Court “must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of the hearing of the appeal”. [189] HH also relies on a number of authorities which it says supports the view that it is not a proper exercise of discretion for a Court to grant an adjournment of a hearing on the ground that it is believed that the law may or will be changed some time in the future.204 In this context, it is said that it would be unjust to adjourn these appeals on the speculative basis that the 2008 approval may be amended some time in the future to accommodate Mr Holland‟s views. 201 ex.19 202 T5-61 line 50 to T5-63 line 58 203 1998 197 CLR 172. 204 HH supplementary submissions para 3-5 -- 95 of 138 -- 96 [190] HH contends that the above mentioned principle is reinforced by Rule 4 of the Planning and Environment Court Rules 2010 which relevantly states: “Philosophy – overriding obligations of parties and court 1. The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in proceedings at a minimum of expense. 2. Accordingly, these rules are to be applied by the court with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules. 3. In a proceeding in the court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.” [191] In addressing the possibility of making the Holland requirement a planning condition of approval, HH seeks to distinguish Property Estates Ltd v BCC 1988 QPLR 18. In that matter an appeal was allowed subject to many conditions one of which was that the appellant, a developer of a large shopping centre, secure approval from the respondent Council, as land owner, for the use of some of the land which was an essential part of the appellants proposal. The Court treated the outstanding approvals as coming within “one of the many conditions precedent to the successful erection of the shopping centre”, and held that the Court should not decide the order in which the approvals must be obtained, or pre-empt other applications by assuming they will fail.205 HH submits that the present matter is distinguishable because; (a) there are 3 appeals, involving 2 competing proposals, and the Court must decide all appeals at the one time, and according to the facts established during the hearing thus far; 205 Property Estates Ltd v BCC 1988 QPLR 18, 26 -- 96 of 138 -- 97 (b) a proposal to change the terms of the 2008 approval involves a proposal to change the facts established during the hearing thus far; (c) it is common ground that the determination of the appeals involves a comparison between the 2 proposals, with one applicant being a winner, and the other applicant a loser; (d) as a matter of principle, it would be wrong to reject Hawkhaven‟s development applications, and to adjourn the Blacks Beach Cove appeal (whether on application by Blacks Beach Cove, or by the Court of its motion) to enable Blacks Beach Cove to gain the benefit of a change to the 2008 approval on the speculative basis (or even expectation) that the change may be approved.206 [192] HH says it is not open to the court to impose a condition of approval that would have the effect of preventing the implementation of the 2008 approval. Any such a condition, it is said, would offend either the statutory prohibition in s3.5.32 of IPA against conditions inconsistent with a condition of an earlier development approval,207 or the rule that a condition of an approval may not restrict the use of land for purposes which are otherwise lawful.208 BBC [193] BBC‟s response is that that the issue of undesirable residential development abutting the southern side of Bondi Rd can be addressed by the imposition of a condition that development not commence until that result is achieved.209 206 HH supplementary submissions para 10 207 IPA s.3.5.32(1)(a); now set out in SPA s.347(1)(a) 208 Transcontinental Development Pty Ltd v Pine Rivers SC 1969 25 LGRA 7, 12; Ponton v BCC 1970 25 LGRA 73, 77; Comiskey v Pine Rivers SC 1996 QPELR 158, 160; Genamson Holdings Pty Ltd v Caboolture SC 2009 QPELR 15, 20-23; Genamson Holdings Pty Ltd v Caboolture SC 2008 163 LGERA 386, 395; Fogg “Land Development Law in Queensland” (1987) p.647; see also Re Giant Supermarket Properties Ltd 1993 QPLR 229, 230; Turner v Noosa SC 1995 QPLR 158, 158-159 209 BBC supplementary submissions para 3 -- 97 of 138 -- 98 [194] It points to a number of Queensland authorities where planning approval was given subject to some further consent or permission from a third party. 210 One such case is Walker v Noosa Shire Council [1983] 2 Qd R 86 which held that a planning approval should not be rejected because of a need to obtain other approvals, and that it should not be assumed that any such future applications will fail. [195] With respect to gaining approval to amend its presently 2008 approved plan, BBC argues that the 2008 approval211 required the reconfiguration it approved to be carried out “generally in accordance” with the identified plan.,212 It argues that it is difficult to imagine that the revised master plan213 showing parkland, rather than residential lots, fronting the relevant part of Bondi Rd with lots behind the parkland, would not be considered to be generally in accordance with the 2008 plan. All that is required, according to BBC, is a reconfiguration of a lot application to create park frontage along Bondi Rd, and there is no reason why such an application would be refused. Finally BBC observed that neither HH nor the Council identified any possible ground of refusal. [196] In response to HH‟s breach of s3.5.32(1)(a) IPA submission, BBC relied on Stockland Developments Pty Ltd v Gold Coast City Council [2008] QPELR 529. There, a preliminary approval had been granted for a material change of use and contained a condition stating a particular basis for payment of infrastructure contributions. A later development permit was issued in 2006 for a material change 210 BBC supplementary submissions para 9 211 Exhibit 19 p.75 212 Ex 19 p 75 213 Exhibit 18 -- 98 of 138 -- 99 of use and reconfiguration of a lot, and a condition attached to the reconfiguration approval required infrastructure contributions to be paid on a different basis. The Court held that the preliminary approval related to a different development than the reconfiguration approval the subject of the appeal, and s.3.5.32(1)(a) was not engaged.214 [197] BBC‟s position is that s3.5.32(32)(1)(a) is not engaged. What is in issue is a condition to be attached to a shopping centre approval, and there is no earlier development approval in effect for a shopping centre. [198] As to the HH argument relating to adjournment, BBC states the reality, that it has not sought, and does not seek, an adjournment, hence there is no issue of the Court being asked to postpone its determination. Rather it is being asked to impose a condition in the event that the BBC application is approved.215 [199] As to Rule 4 of the Planning and Environment Court Rules 2010, BBC says it has no relevance as it refers to “conduct of the proceedings”, and it is agreed that these proceedings for this matter have concluded. [200] BBC submit that preventing residential development on the southern side of the relevant part of Bondi Road to avoid possible amenity impacts could be made a 214 Stockland Developments Pty Ltd v Gold Coast City Council [2008] QPELR 529 see 536 [15], 540 [28] between G-H and 542 [35]. -- 99 of 138 -- 100 condition precedent to the successful erection of the BBC shopping centre, just as a satisfactory drainage solution (for either proposal), construction of the eastern access roundabout, and the creation of a signalised cross-intersection on Blacks Beach Road (for HH) could be. [201] Finally, in response to the HH submission that the matter must be decided on the facts as they stand, BBC agrees, and points out that, although the condition in question will alter the present facts, any approval will require changes to be made to existing circumstances, like those in the previous paragraph. 216 BBC rejects the HH argument that Property Estates is distinguishable and says approval to prevent residential development fronting the relevant part of Bondi Road can be made a condition, just as approval for the use of land for road purposes was made a condition in Property Estates. The Council [202] The Council says it is not unusual for a development approval to involve a condition, in the nature of a condition precedent to the commencement of the use, requiring some further approval to be obtained.217 [203] It points out that BBC would be within its rights to pursue any necessary arrangements to satisfy the condition stipulated. It points to the fact that BBC 215 BBC supplementary submissions para 27 216 BBC supplementary submissions para 27 -- 100 of 138 -- 101 controls all of the relevant land and is developing it in what the Council terms a “master planned” estate.218 Council agrees with BBC that, in the event that an approval of the BBC proposal did impose such a condition, it would be unlikely the Council would refuse the application the subject of the condition. Council notes that if it did refuse to approve such an application, its decision would be subject to review by this Court on appeal.219 Conclusion re Asserted Killer Point [204] HH have advanced a number of authorities supporting the position that an adjournment of this matter to allow BBC to seek approval to change the 2008 plan would be an improper exercise of the courts discretion. But, as BBC has said, it does not seek an adjournment. I find it unnecessary to consider those arguments. [205] I am not persuaded that s3.5.32 IPA will operate to prevent a condition being imposed in this case. After considering the more recent authorities220 on this point it is clear that the words in s3.5.32 IPA “for the development” are to mean “for the same development”.221 The issue here is the imposition of a condition on a shopping centre approval, for which there is no prior approval of that type. Consequently the section has no application here. 217 Council supplementary submissions para 2 218 Council supplementary submissions para 4 219 Council supplementary submissions para 5 220 Reana Development Pty Ltd v Thuringowa CC 2002 QPELR 56, Stockland Developments Pty Ltd v Gold Coast City Council [2008] QPELR 529, Liquorland (Australia) Pty Ltd v Gold Coast City Council (2002) 121 LGERA 197 221 Developments Pty Ltd v Gold Coast City Council [2008] QPELR 529 at 540 -- 101 of 138 -- 102 [206] The proposals will be considered on the facts that have been adduced in the proceedings thus far, but one must recognise that approving either application will involve an alteration of the facts as they presently stand. If BBC are successful in their application, I see no issue in imposing a condition that a reconfiguration of a lot approval be attained so that no residential development will abut the southern side of Bondi Road opposite the site. [207] In conclusion, I am unpersuaded by the HH arguments and prefer those of BCC and the Council. It follows that I consider that any venom in the HH killer point has been neutralised by the BBC antidote. [208] Returning now to the urban design issue, HH argues that there are a number of flaws in BBC‟s urban design case that it had a better opportunity to expand to the east to meet future demand. Those flaws are these: (a) The constraint on eastward expansion by the BBC proposal to develop the service and loading bay areas at the common boundary with the eastern site.222 It points to the evidence of Mr Richards223 who said that expansion to the east on the current BBC proposal was both challenging and difficult and that a redesign would be required; (b) The current plans which is a part of the BBC application material224 show that the land to the east is to be used for residential development and which is not consistent with the current claim that the land is available for retail expansion purposes. HH says that BBC has not offered to submit any 222 Exhibit 7, para 6.2.9, 6.2.10; T7.106. -- 102 of 138 -- 103 condition which would preserve that site for future expansion purposes and in any event any such condition is likely to be invalid for the same reasons as were raised in relation to the land on the southern side of Bondi Road (HH killer point). (c) As to any future expansion needs by 2021 there would be potential to expand from the existing proposed supermarket sizes of 1,855 m2 (HH) and 1,500 m2 (BBC) to a 3,000 m2.225 HH argues that even if the more pessimistic view of Mr Malkiewicz of a potential for 2,000 m2226, on either assessment that need is 10 years away and it would not be commercially realistic to expect BBC to sterilise the land to the east for such a long period in anticipation of expansionary demands if some other use for that land was supportable in the meantime. Nor, it is said, would that be good planning policy for a combination of the following reasons relating particularly to the present appeals it would not be appropriate to place significant weight on BBC‟s capacity to expand for future needs:- (i) The current Scheme limit for a Local Centre is 2,500 m2227 and the BBC proposal already exceeds that limit; (ii) While the Scheme recognises Blacks Beach Local Centre may grow, a Neighbourhood Centre contemplates a catchment population of 223 T8.56-57; T8.60.1. 224 Exhibit 3, p 1049, 1093. 225 Exhibit 3, vol 5, Joint Economic Report, para 81; Tab 6.1, pp 34-35. 226 Ibid, p 36, Tab 6.2. 227 Annexure A, pp 5-35. -- 103 of 138 -- 104 between 7,500 and 20,000 households228 whereas the ultimate projected population by the economic experts is 11,820 people representing 4,400 households or 2.7 persons per household;229 (iii) The Northern Beaches Shopping Centre 3.5kms to the south west of the two current sites is currently undergoing extensions with further stages already contemplated;230 (iv) The trade area in the joint economic report did not take into account the possible extension in the future of Chenoweth Drive to the Mackay-Bucasia Road which extended would provide an opportunity for those in the southern part of the primary trade area here under consideration to use the Northern Beach Shopping Centre more conveniently.231 When any such extension may occur is speculative with Mr Brownsworth the BBC town planner agreeing that it is very much up in the air, would not occur in the next two or three years and could be up to 10 to 20 years away.232 For all the above reasons HH argues it is preferable for the court to decide these appeals primarily by reference to the current facts and circumstances and that the court would be satisfied that the current need for retail and liquor barn uses on the HH site is well established. Given that 85 per cent of the trade area of population currently resides north of Blacks Beach Road. 228 Retail and Commercial Code, 9.97(2)(c) – Annexure A, pp 9-115. 229 Exhibit 3, vol 5, Joint Economic Report, p 25, Table 4. 230 Ibid, p 31, Exhibits 47-50. 231 T3.78.1. 232 T4.20.20-55. -- 104 of 138 -- 105 Council – Architecture/Urban Design [209] The Council submits that the court would accept the following submissions which are consistent with the views of the HH expert Mr Middleton in answer to matters raised by Mr Richards:-233 (a) It is difficult to see that any impacts on the adjoining residential neighbourhood would arise from the HH proposal particularly given the history of the development in the area and the expectations of the community that the subject land would be used for something other than a residential development; (b) Any impacts, individual or cumulative from the HH proposal are unlikely to be any greater than those from the BBC proposal; (c) The suggestion that the BBC proposal is more consistent with the Local Convenience Centre is at odds with the agreed views of the economic experts; (d) The HH proposal will provide the most convenient service to the existing residential neighbourhood and would be directly accessible to the emerging residential development to the south of Blacks Beach Road; and (e) Both proposals are equally positioned to expand as may become necessary or desirable. 233 Summarised, Exhibit 5, p 3. -- 105 of 138 -- 106 Conclusion re Architecture/Urban Design [210] I prefer the evidence of Mr. Richards to that of Mr. Middleton on this issue, particularly his opinion as to the impact the HH proposal, including the acoustic barriers, will have on the visual amenity of the surrounding residential area. Hydraulics Issues [211] Expert evidence was given by Mr Walsh (BBC), Dr Johnson (HH) and Mr Bratt (Council) who provided a joint report234 and individual reports.235 All parties agree as do I, that the issue of drainage is a question for conditioning whether as a part of the current appeals of HH against Council conditions if HH is successful in these appeals or to be resolved between BBC and the Council in the event that BBC is successful. Accordingly I do not intend to spend time dealing with those issues. Final Conclusion [212] In many respects the decision to be made as to which site is to be preferred is finely balanced. On most issues a persuasive argument can be, and has been, mounted by each party which would support a decision in favour of either site. But there can only be one successful application. In the end result one issue has continued to exercise my mind throughout and that issue is the impact the HH proposal will have on the amenity of the surrounding area. That issue has tipped the scales in favour of the BBC proposal. I consider that the impact on the surrounding residential amenity of its -- 106 of 138 -- 107 proposal will be better able to be managed so as to avoid any unacceptable impact on that amenity, because it is largely a greenfields site. [213] I am unable to reach the same conclusion on the impact the HH proposal would have on its surrounding amenity. In my view that would constitute an appreciable and unacceptable detrimental impact on that amenity despite the light and acoustic barriers proposed. [214] The effect of the acoustic buffering of lot 241 would, in my view, result in the presentation to the residents of the surrounding areas to the north, north-west and west of something akin to a compound within their residential environs. They should not have to endure that. [215] Further, given my view that it is the clear intention of the Scheme that lot 241 remain in the Urban Residential Zone notwithstanding the robust submissions from HH to the contrary, I cannot accept that an intrusion into that zone by the HH development is supported by sufficient grounds to allow me to approve the HH application notwithstanding any conflict with the Scheme. [216] To my mind the residents of the surrounding areas would have had, and would continue to have, a soundly based reasonable expectation that lot 241 would be developed for residential purposes and not as a shopping centre. [217] As against that, I am satisfied that there are sufficient grounds to approve the BBC application notwithstanding its conflict with the scheme. Those grounds are sourced in the urgent economic need for such a development in the locality. All town 234 Exhibit 3, vol 5. -- 107 of 138 -- 108 planners agreed that the expansion of either proposal beyond the existing commercial zone would be warranted given that need. In my view the BBC proposal will better allow the needs of the locality to be met as future growth unfolds. Despite the urging of HH for me to consider the matter on the present circumstance, that, to my mind is not the correct approach. This area is growing and one must look beyond the immediate future, to a few years out as a plan for the future needs of the present and future residents of the area. [218] The three appeals are allowed I adjourn Appeal D211/2009 to allow the issue of conditions to be resolved, one of which will be that there be no residential development south of Bondi Road immediately opposite the BBC site and that any development of the BBC proposal not commence until that is achieved. 235 Exhibit 54 (Walsh), Exhibit 36 (Johnson) and Exhibit 35 (Bratt). -- 108 of 138 -- 109 SCHEDULE A -- 109 of 138 -- -- 110 of 138 -- -- 111 of 138 -- -- 112 of 138 -- -- 113 of 138 -- -- 114 of 138 -- -- 115 of 138 -- -- 116 of 138 -- -- 117 of 138 -- -- 118 of 138 -- -- 119 of 138 -- -- 120 of 138 -- -- 121 of 138 -- -- 122 of 138 -- -- 123 of 138 -- -- 124 of 138 -- -- 125 of 138 -- -- 126 of 138 -- -- 127 of 138 -- -- 128 of 138 -- -- 129 of 138 -- -- 130 of 138 -- -- 131 of 138 -- -- 132 of 138 -- -- 133 of 138 -- -- 134 of 138 -- -- 135 of 138 -- -- 136 of 138 -- -- 137 of 138 -- -- 138 of 138 --