Family Assets Pty Ltd v Gold Coast City Council [2008] QPEC 3 (2007)161 LGERA 43

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Family Assets Pty Ltd v Gold Coast City Council [2008] QPEC 003 PARTIES: FAMILY ASSETS PTY LTD (Appellant) v GOLD COAST CITY COUNCIL (First respondent) and LEWANI SPRINGS RESORT (First co-respondent) FILE NO/S: Number 415 of 2004 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 5 February 2008 DELIVERED AT: Brisbane HEARING DATE: Site Visit – 24 July 2007. Hearing – 25, 26, 27, 31 July 2007 and 1, 2, 3 August 2007. JUDGE: Rackemann DCJ ORDER: The Appeal is dismissed CATCHWORDS: COUNSEL: Mr Gore QC, with him Mr Job of Counsel for the appellant Mr Hughes SC, with him Mr Morzone of Counsel for the first respondent -- 1 of 49 -- 2 Mr Gallagher QC, with him Mr L. Kelly SC and Mr Johnston of Counsel for the first co-respondent SOLICITORS: DLA Phillips Fox for the appellant McDonald Balanda & Associates for the first respondent Hopgood Ganim for the first co-respondent Introduction [1] The appellant (Family Assets) appeals against the Council’s deemed refusal of an application for a development permit to facilitate the development of a supermarket based shopping centre on land situated at the north-western corner of the intersection of Days Road and Old Coach Road Coomera. That is a significant intersection in the area and is subject to a planned upgrade, by which the northern arm of Old Coach Road is to become a 4 lane road. The proposal comprises a 3,200 m² supermarket, together with 800 m² of specialty shops, a carwash and a childcare centre. [2] The subject site, which has an area of approximately 20 hectares, is mainly vegetated by a patch of partly cleared bushland, surrounded by existing and proposed development. That part proposed for development is an area of approximately 3.3 hectares in the eastern part of the site, on a low-lying area, near the said intersection and adjacent to the base of 2 hills. There are existing detention basins in the south west corner, which pick up stormwater from upstream. From the detention basins, water flows through a series of depressions indicating an intermittent watercourse close to the base of parts of the southern hill and across the low-lying area to Oakey Creek South, which flows through a culvert under Old -- 2 of 49 -- 3 Coach Road in the north eastern corner of the site.1 The proposal would involve the loss of some vegetation and the placing of fill over the development site and the construction of a new engineered channel for stormwater. [3] The proposal, the subject of the appeal hearing, differs from that which was before the Council. The changes are identified in the second joint report of the town planners. Neither the respondent nor co-respondent by election submitted that the changes were more than minor for the purposes of s 4.1.52(2) of the IPA. The components of the proposal remain the same and I accept the submission, on behalf of Family Assets, that the proposal, considered broadly and fairly, is substantially the same proposal. I am satisfied that the changes represent minor changes for the purposes of s 4.1.52(2). [4] The application was made during the currency of the transitional planning scheme. Accordingly, while it was made and processed under the IPA, ss 3.5.4 and 3.5.5 do not apply for assessing the application and ss 3.5.13 and 3.5.14 do not apply for deciding it. Rather the relevant provisions of the Local Government (Planning and Environment) Act 1990 (“the repealed Act”) apply.2 The subject application is one which would, under the repealed Act, have required a scheme amendment. The matters referred to in s 4.4(3) of the repealed Act are relevant, as are subsections 4.4(5) and (5A). The latter requires that if there is conflict with a Strategic Plan or 1 Hassall / Chenoweth joint report. 2 See ss 6.1.29 and 6.1.30. -- 3 of 49 -- 4 DCP, the development application must be refused unless there are sufficient planning grounds to justify approval of the application despite that conflict. [5] In accordance with the Court’s usual practice, the expert witnesses were required to meet and produce joint reports, in advance of preparing individual appeal reports or giving evidence. Agreement was reached that matters of flooding, storm water quality and quantity and traffic could be adequately addressed by the imposition of conditions of approval. The outstanding issues in the appeal related to need, town planning and environmental impact. [6] The proposal has a long history. The application was lodged with the Council in 2003. The appeal against the Council’s deemed refusal was instituted in mid 2004. The appellant deliberately took no step in the appeal for a considerable period of time. This led to an application, by the co-respondent by election, for the appeal to be struck out for want of prosecution, and a successful cross-application for leave to proceed. During the period of the delay Family Assets’ consultants, agents and representatives actively engaged in discussions with, and representations to, the Council with a view to obtaining favourable amendments to the existing planning scheme and, in particular, the Coomera Local Area Plan (LAP), with which the proposal conflicts.3 It has, to date, been unsuccessful in having the LAP amended in a way which is supportive of its proposal and the Council contends that the subject application ought be refused. 3 Family Assets Pty Ltd v Gold Coast City Council & Ors [2007] QPEC at [11]. -- 4 of 49 -- 5 [7] The case was described by Mr Gore QC, for Family Assets, as unorthodox. Indeed he acknowledged that “if it was an orthodox case, we would (be) lost at the threshold”.4 Family Assets seeks to have the Court uphold its appeal and grant a development approval for shopping facilities which, on any view, are not currently needed and will not be needed in the near future. Further, it seeks that approval for a site which is not planned for such development under the existing LAP and in circumstances where it is likely that the relevant provisions will be reviewed before the need for additional shopping facilities, of this kind, arises. The case for approval may be broadly summarised as relying on the following propositions: (1) It is likely that there will, at some point in the future, be a need for a further supermarket-based shopping centre within the catchment area. (2) The current planning documents do not recognise that future need, do not make provision for it to be met and have been overtaken. (3) The subject site is a suitable site. (4) Other than for the Family Assets site there is a dearth of potential alternative sites to meet the future need. (5) There is a public or community need to grant an approval for the Family Assets site now, lest it be lost in the meantime, by being put to some other use. Mr Gore QC, for the appellant, conceded that he had to win every point in order for his client’s appeal to be successful. 4 T543. -- 5 of 49 -- 6 Need for shopping facilities [8] While, as the appellants written submissions acknowledge, need is a key issue in the appeal, it was common ground that there is no current public or community need for the facilities proposed to be developed on the Family Assets site. The locality within which the subject site is situated is a developing residential area, but to the extent that such development has created a need for supermarket-based shopping facilities, that need is catered for by other developments in the area. [9] There is a Coles-anchored centre two kilometres to the south, on the corner of Reserve and Abraham Roads. It opened in October 2005. It includes a 2, 445m 2 Coles supported by three speciality shops, containing an additional 305m2 . A neighbourhood centre is also located on the south-eastern corner of the intersection of Reserve Road and Brygon Creek Drive. That is known as the Brygon Reserve Shopping Centre. It includes a 300 m² IGA supermarket and eight specialty shops, providing local top up shopping and convenience needs. Further, the co-respondent by election (Lewani) was, in the course of the hearing, completing the construction of another supermarket-based shopping centre on the north-eastern corner of the Old Coach Road / Days Road intersection, immediately opposite the subject site. The Lewani development will have a gross floor area of a little in excess of 6,000 m² and is to include a 3,200 m² Woolworths supermarket. A further retail / commercial development known as “the Hub” is under construction on the south-eastern corner of the same intersection. It is to comprise 3,945 m² of gross floor area including -- 6 of 49 -- 7 retail / warehousing, restaurants, a service station and commercial office space, but does not include a supermarket. There is also the prospect of 2 full line supermarkets in the future Coomera town centre, although that site is to the east of the motorway. [10] Whatever need might otherwise have existed for facilities of the type proposed by Family Assets, has now been taken up or overtaken by the provision of other facilities, most recently in the Lewani centre. It is unlikely that the Family Assets shopping centre would provide anything substantially different. Given that it would be a “stand alone” centre, separated from the Lewani centre across what is planned to be a four lane road, it would be likely to involve a level of duplication of the tenancy types offered at the Lewani centre. [11] There is presently insufficient population within the catchment to demonstrate need for a further supermarket-based shopping centre of the kind proposed. In their joint report, the economists agreed that a population of “at least 25,000 people” in the trade area would be required in order to support a third full line supermarket. The census data for August 2006 reveals a then population of less than 12,000, that is, less than half the agreed minimum population required to support a further centre of this kind. Each of the economists adopted somewhat different predictions as to when the minimum 25,000 population would likely be reached. Mr Coghlin, who was retained by Family Assets, had the most optimistic of the predictions, but even he did not expect the population to be reached until 2012. -- 7 of 49 -- 8 [12] As was pointed out on behalf of Lewani Springs, Mr Coghlin’s estimates of population in the trade area have, in the past, proved to be grossly optimistic.5 In his 2003 report, Mr Coghlin predicted that the trade area population would reach 20,700 by 2007. In 2004 he predicted that the population would reach 15,800 in 2005 and 26,300 by 2007.6 In a report published in 2006, Mr Coghlin identified the then population as being 19,600. Subsequent publication of the census data proved this to be grossly erroneous. To be fair, Mr Coghlin did not, at the time of these predictions, have access to the census data which has been recently published. Mr Leyshon’s predictions also changed consequent upon the publication of the census data.7 [13] The prediction of future population growth and the point at which there might be a need for a further full line supermarket is not an exact science. My ultimate conclusion, in this case, would not differ irrespective of whether I accepted Mr Coghlin’s predictions or those of Mr Leyshon or of Mr Shimmin. I do however, prefer the evidence of Mr Shimmin, whose report impressed as a particularly thorough, thoughtful, detailed and persuasive analysis. [14] As to population growth, Mr Shimmin considered the PIFU predictions, which heavily influenced the work of Mr Coghlin in particular, but also carried out detailed analysis of actual residential development in the area as at April 2007. This 5 A comparison of forecasts is contained in Ex 22. 6 T 84, Ex 10 pg 67. 7 T 411. -- 8 of 49 -- 9 included carrying out aerial surveys. The analysis was presented in his report. In his view, which I accept, the PIFU population projections for the 2006-2011 period are optimistic and unlikely to eventuate. In Mr Shimmin’s view, the 25,000 population level will not likely be achieved until late 2014.8 Mr Leyshon, who was also more conservative than PIFU to 2011,9 predicted that the population will reach 25,000 in 2013. [15] In addition to population forecasts, Mr Shimmin also carried out a supermarket capacity analysis and an analysis of supermarket floor space provision per person in the trade area, compared with industry standards. As Mr Gore QC, for Family Assets, pointed out, his analysis is sensitive to assumptions. It is, however, appropriate for Mr Shimmin to have carried out such analysis and to take it into account in forming his opinions. Mr Shimmin’s evidence was that there is unlikely to be a need, within the trade area, for an additional supermarket of the size proposed until possibly as late as between 2017 and 2019. [16] Mr Leyshon also did an analysis of when there might be a sufficient shortfall in floor space to generate demand for a further full line supermarket (leaving any future supermarket development in the Coomera town centre to one side).10 He concluded the need would arrive by 2016. 8 Exhibit 15, table 5.2 at page 53. 9 T 404. 10 Ex 14 pg 10. -- 9 of 49 -- 10 [17] I am satisfied that any need for a further full line supermarket-based development in the catchment area is unlikely to mature until at least 2013 and probably more in the later timeframe suggested by Mr Shimmin. Planning need [18] While there is no existing or imminent public or community need for additional facilities of the type proposed, the appellant contends that there is a planning need to grant a development approval which would, in effect, designate the subject site as being the site to provide for the future need when it arises. It was suggested that an approval could be granted now but be subject to a condition which postponed the opening of the centre until the need arrived. [19] It was suggested that a condition could be imposed, on any approval, which postponed the operation of the shopping centre until the catchment population reached 25,000 or until a certain future date, determined in accordance with current predictions as to when the future need is likely to arise. That is not without difficulty. I would be reluctant to grant an approval on the basis of a condition which required a determination as to when the catchment population reached 25,000. In the absence of a proximate census, it would be difficult to determine with certainty whether and when the threshold had been met, so as to authorise the commencement of the use. Selection of a future opening date, by reference to current predictions of future need, carries the risk that current predictions (which are, in any event, the somewhat imprecise product of an inexact science) might, as -- 10 of 49 -- 11 they have in the past, prove significantly inaccurate or that changes of circumstances otherwise might render the selected date inappropriate. [20] In support of such an approval, I was referred to Cairns Real Estate Pty Ltd v Cairns City Council [1996] QPLER 319, in which an application for rezoning and consent to facilitate development of a shopping centre in two stages, was approved subject to a condition that development beyond Stage 1 not commence until 2002, or until the catchment population reached 40,000 persons, whichever was the earlier. Daly DCJ said that the proposed staged development was an appropriate way of planning for the shopping needs of the community and would give a degree of certainty to residents, retailers, competing retailers and planners. It should be noted however, that the case involved a proposal, approved by the Council, to establish a sub-regional centre (not a neighbourhood supermarket-based centre) in a location which was supported by the draft planning documents and the condition related the delayed start of subsequent stages, beyond Stage 1. This case involves a neighbourhood sized centre, which conflicts with the current planning documents, is not supported by any draft planning documents, is not a staged development and is wholly unnecessary at this point, or at any point in the immediate future. [21] It was contended that the planning documents do not provide for satisfaction of the future need and have been overtaken by events. [22] The application was made during the currency of the transitional planning scheme. Accordingly, the appeal is to be decided in accordance with that scheme, although -- 11 of 49 -- 12 weight may be given to new laws or policies (s 4.1.52(2)). Conflict with new laws or policies (to which weight is given) does not engage the requirement, in s 4.4(5A), to refuse the application unless there are sufficient planning grounds. In this case, the application was made only some three days prior to commencement of the IPA planning scheme. That scheme has been in force now for some years. The transitional planning scheme is dated and will not guide future development in the area. The existing scheme should, in circumstances, be afforded substantial weight. It was accepted, in the appellant’s written submissions, that it is entitled to considerable weight. It is the more relevant document to consider in the context of the appellant’s submission that there is currently a planning need to make some provision for a future need. [23] Under the IPA planning scheme the subject site is designated “Urban Residential” within Strategic Map PS1. That map designates centres down to and including district centres. No such designation appears on or near the subject site. A similar observation can be made about the Employment, Investment and Service Centres (Activities Centres) Planning Strategy map PS4. [24] The site also falls within the area covered by the Coomera LAP. Within that LAP the site is partly within Precinct 2 “Coomera Residential” but mostly within Precinct 10 “Rural Living / Open Space” with a Conservation and Landscape Protection overlay designation.11 LAP Map 9.2 shows only one local centre in the catchment, 11 Precinct Map 9.2. -- 12 of 49 -- 13 west of the Pacific Motorway, and north of the Coomera River. That is at the corner at Brygon Drive and Reserve Road. It does not acknowledge the Coles-based centre at the corner of Abraham Road and Reserve Road, nor the Lewani Springs development, and does not make provision for a further supermarket-based shopping centre, outside the designated centre at Brygon Drive. Since 2004 the Council has been taking advice from Mr Leyshon about the need for neighbourhood retail facilities in Coomera. [25] In so far as the omission of the existing developments are concerned, the Coles- based centre at Reserve / Abraham Roads post-dated the LAP, as did the Lewani Springs development application. The Lewani site had the benefit of an earlier rezoning and the centre was approved in response to a development application (superseded planning scheme). The current LAP should be amended, at least to reflect the existing approvals. The Council appears to have recognised that. It has formulated a draft new LAP which would recognise those other developments, without designating the subject site in a way which would support the current Family Assets proposal. That draft has not progressed significantly along the statutory path. [26] While it is fair to say that the LAP underestimated the need for additional centres and now requires updating, at least to recognise subsequent development, it is more difficult to conclude that its provisions have been overtaken in relation to the future need for yet another full line supermarket-based centre. There is no current or -- 13 of 49 -- 14 impending need for such development, the need is some years into the future, the “lead time” for such centres is generally not so long as to require a site to be chosen this far in advance and the LAP is likely to be reviewed, in any event, prior to the need arising. [27] In the circumstances it would seem appropriate to leave it to the Council, as the planning authority, to designate, through the planning scheme provisions, where that need should be met. Ordinarily, the Court should not usurp that role to, in effect, designate a particular site, not favoured by the current planning documents, or any draft amendments thereto, by prematurely giving a development approval for a supermarket-based shopping centre, many years in advance of the need maturing, subject to a condition of the kind suggested on behalf of Family Assets. [28] Mr Gore QC, for Family Assets, acknowledged the “unorthodox” nature of the case but submitted that: (a) It did not involve usurping the function of the local authority; and (b) A decision on the location for the next supermarket-based shopping centre should not be further delayed. [29] In contenting that the Court would not, in the circumstances, be usurping the planning authority’s role, Mr Gore QC placed a deal of reliance upon a Council resolution of 28 May 2007, following receipt of an April 2007 report from Mr Leyshon. The resolution was: -- 14 of 49 -- 15 “That Council officers review the appropriateness of the Coomera Local Area Plan’s existing Brygon Reserve Local Centre Designation based on changed traffic and land use circumstances in the locality. In the event that the expansion of that centre is identified as undesirable, Council recognise the recommendation from Leyshon Consulting’s work that an amendment to the Local Area Plan be brought forward to designate the area surrounding the intersection of Old Coach Road and Days Road as a District Centre.” [30] It was submitted that the Court was in a position to find that an expansion of the Brygon Reserve Local centre was improbable and consequently, could appropriately approve the Family Assets application consistently with the Council’s resolution and without usurping its role as planning authority for the area. It was submitted by Mr Gore QC that “the planning authority has spoken”.12 [31] While the resolution demonstrates that a change to the LAP, in a way which is favourable to the Family Assets site, is a future possibility, the resolution falls a long way short of an amendment or a draft amendment to the planning scheme, or the final discharge of the Council’s role as the planning authority. Firstly, it is a resolution for Council officers to carry out a review. The outcome of that review is unknown. Secondly, the Council’s preparedness to “recognise” the recommendation for amendment to the LAP is dependent upon the review identifying that an expansion of the Brygon Road centre is undesirable. Thirdly, the relevant recommendation of Mr Leyshon was expressly subject to a qualification, albeit not one repeated in the resolution, that it was based on a “broad review” of economic 12 T595 l 46. -- 15 of 49 -- 16 and need issues and that other town planning and environmental considerations would need to be analysed to determine the appropriateness of development sites.13 [32] Fourthly, Mr Leyshon’s April 2007 report was prepared without the benefit of the 2006 Census figures, which had yet to be published.14 He had made his own forecasts, by which the population of the Upper Coomera trade area would reach 25,816 in 2011. He also took account of Mr Coghlin’s then population forecasts, which were significantly higher.15 He concluded that, depending on which forecast was more accurate, there would be a demand for an additional supermarket- anchored centre in the Upper Coomera trade area between 2009-2010 or 2008-2009. Taking account of lead times, he was then of a view that a decision to approve such development would need to be taken within 12 months.16 The evidence now establishes that the need for facilities is not imminent and Mr Leyshon was called by the Council to give evidence to the effect that he does not now support approval of another supermarket anchored shopping centre at the Family Assets site so far in advance of his current need forecast.17 [33] Fifthly, since making that recommendation, Mr Leyshon has been called by the Council to give evidence to the effect that, in the event that the existing local centre at Brygon Creek Drive cannot be extended, the next best option would be a consolidated centre on one side of the subject intersection (the Lewani Springs site) 13 Ex 14 Appendix C pg 34. 14 See pg 14 of that report. 15 pg 15. -- 16 of 49 -- 17 rather than approving an additional centre on the Family Assets site across the road. That is an option which the Council may well consider if and when it decides to proceed with an amendment of the LAP to designate additional land for the development of such a centre. [34] Sixthly, even if all contingencies fell into place and the Council resolved to instigate an amendment to the planning scheme, so as to redesignate the Family Assets site in a favourable way, an appropriate amendment would need to be formulated and progress along the statutory path. I note, in this respect, that while seeking to place weight on this Council resolution, the appellant submitted that the draft LAP should not be given significant weight. [35] In short, the resolution, to which the appellant points, falls well short of demonstrating that the Council has discharged its role as the planning authority and settled on a redesignation of the Family Assets site, such that the Court could give an approval at this stage without, in effect, usurping the role of the Council as planning authority. [36] Mr Gore QC invoked an old federal election campaign theme to contend that “it’s time” to determine the issue as to whether his client’s land should be the site for the third (and probably last) supermarket-based shopping centre, and that it was not in the interests of anybody for the matter to be deferred, by refusing his client’s appeal. 16 pg 22. 17 T 393. -- 17 of 49 -- 18 That is an understandable position for Family Assets to take. It has held the land, free from development, for a significant time and is desirous of obtaining a development approval, to give it certainty that it will be able to develop a shopping centre on the site, when such development becomes timely. The evidence of Mr Rix was to the effect that Family Assets might otherwise develop the land, if it is not now given that certainty. [37] I accept the submission on behalf of the Lewani Springs, that the mere commercial interests of a developer to secure plans for its site is not a sufficient basis to approve a development. Nor is it the function of the Court to secure the appellant’s commercial plans for the long-term use of its land, without other justification. [38] As was submitted for the respondent,18 the grant of inappropriately premature approvals can have implications and create uncertainties. One cannot say that all things will remain unaltered or that assumptions made at this stage will necessarily be borne out. Circumstances can change. Development intentions and proposals can alter over time by reason of, for example, changes of ownership, potential key tenants or other circumstances. Uncertainties can subsequently arise as to whether a proposal, approved years in advance of an intended opening, will proceed or proceed in its approved form.19 Other changes can also occur in relation to population growth and distribution and market needs and trends, to name but a few 18 And consistently with Mr Leyshon’s evidence. 19 It might be noted that the Lewani Springs development was not contemplated in the LAP, despite the site’s earlier rezoning. -- 18 of 49 -- 19 variables. These can reflect on the appropriateness of a development prematurely approved years earlier. Approvals, although prematurely given and not yet acted upon, are prone to weigh on the planning authority, in considering the appropriate planning strategy to adopt as part of a planning scheme review and in considering other applications on the subject site or on other sites.20 They can become a practical impediment or at least a hurdle to competing proposals which might otherwise have been brought forward. [39] In Mr Leyshon’s view, which I accept, there is no need to give an approval at this time, so far in advance of any need for the proposed facilities. His view might have been different had the proposal been for a higher order centre, such as the Coomera town centre, which is of more importance to the retail hierarchy and involves much greater investment, longer lead times, the formulation of master plans and the coordination of infrastructure.21 [40] It was submitted, on behalf of the appellant, that it is in the public or community interest to give the appellant the certainty it desires. It was submitted that other potential opportunities to fulfil the likely future need are limited, constrained and/or inferior, such that there is a public or community interest in ensuring that the Family Assets site remains available for satisfaction of the future need, rather than risk it being put to another use. In effect, the Court was invited to give a development 20 Compare Coogal Developments Pty Ltd v Hervey Bay City Council [1992] OPLR 240 at 246 where the consequences of an approval not promptly acted upon in spite of need were discussed. 21 T 393-395. -- 19 of 49 -- 20 approval to Family Assets, for what is likely to be the last new supermarket-based centre in the catchment, well in advance of any need for those additional facilities, or risk the satisfaction of future need being imperilled by a prospective possible decision by Family Assets to commit its land to some other use. Mr Gallagher QC, for Lewani Springs, described this as an attempt to obtain a “private benefit cloaked under the guise of community interest”. [41] As Mr Brown agreed,22 the identification of the place or location for the next full line supermarket development some years into the future, would ordinarily be done by the local planning authority, upon a review of the planning documents affecting the area, rather than by the Court, in the context of assessing a particular development application. As was submitted on behalf of the Council, the nature of the inquiry in an appeal on a particular development application is generally more limited than that undertaken by a local authority in the review of its planning documents. Further, it is some years since the subject application was publicly notified and the Court only has before it a limited number of parties. The Court has traditionally taken a self-limiting approach to invitations to use appeals on development applications as a vehicle for determining what the Council’s planning strategy for the area should be. [42] As Mr Brown pointed out, there are circumstances in which it is appropriate to give an approval, to meet the needs of the community, where events have run ahead of 22 T 469-470. -- 20 of 49 -- 21 the planning scheme. But, as he also acknowledged, that is generally in response to a current need.23 In this case the need is still well in the future. It is neither current nor proximate. [43] The appellant’s case depends on the proposition that there will be a lack of appropriate potential alternative sites in the future in the event that the Family Assets site is not now approved and subsequently becomes unavailable. [44] In effect, the argument was that the Family Assets site is not only an appropriate site but is the best and only potentially appropriate site to meet a future need. An inquiry as to whether a site is the best or only potential site is one which the Court has, in the past, been reticent to embark upon. In Baptist Union of Queensland v Brisbane City Council [2003] OPLER 61 Brabazon QC DCJ said: “The evidence, and this appeal, shows that the church is genuine in its belief that this is the only suitable land. Quite rightly, there was no attempt to investigate whether the church was right or wrong in preferring this site over many others. Traditionally it has not been the function of the Court to determine whether better sites exist – or, for that matter, determine whether a better site does not exist. Such inquiries would place an intolerable burden on the parties and the Court and should be seen as irrelevant”. [45] It was contended, on behalf of the appellant, that it is an exercise which could be embarked upon in respect of the limited catchment area relevant to the subject proposal, given the attention which has already been paid to alternatives. It is appropriate however, to bear in mind the limitations which apply to the nature and 23 T 470. -- 21 of 49 -- 22 extent of such an inquiry in the determination of an adversarial proceeding between the parties to an appeal against a decision on a particular application. [46] The evidence as to alternatives focused upon a possible expansion at Brygon Creek Drive, particularly through development of vacant land on the western side, or at the Lewani site. They are the two most obvious alternatives. Mr Rix relied upon his experience with development in the area to suggest that if there was an alternative site he would have purchased it by now.24 I accept that he is genuine in that belief, and in his enthusiasm for the potential of the Family Assets site as the location of a future shopping centre, but I am not persuaded to treat his evidence as conclusive. The existence of other possible sites is not a matter which appears to have been exhaustively investigated by the appellant’s experts otherwise.25 [47] The evidence is that a shopping centre is one of the most beneficial land uses, in providing a return on investment. Mr Leyshon thought it possible to envisage other applications coming forward.26 Given the return on investment, Mr Vann thought it possible that sites could be created in the future by amalgamation and/or demolition of existing development.27 In Mr Vann’s view one could not say that there are no other potential sites.28 Mr Vann’s opinion was that “if the market is given the 24 T 552. 25 See e.g. Coghlin at T 59. 26 T 395. 27 T 531. See also Brown T472. I note that in the course of the appeal the Council produced a document which became Ex 35 which envisaged some redevelopment of the existing Brygon Creek Drive Centre. That perhaps illustrates that redevelopment of sites can be contemplated, but did not relate to a supermarket development and does not take the matter very far. 28 T 533. -- 22 of 49 -- 23 opportunity, alternative sites will emerge”.29 Even Mr Brown did not seem to completely exclude the prospect of another site.30 I am not prepared to find, even on the balance of probabilities, that no other alternative can or will be found in the future, when the need matures. [48] Brygon Creek Drive is the location presently favoured by Mr Leyshon for a further supermarket in the future. Under the current planning scheme it is the only designated local centre, but it would appear to be somewhat underdeveloped for retailing; given its designation. The owners of that site are not parties to this appeal and were not called to give evidence in the appeal. [49] Mr Coghlin dismissed the site noting, amongst other things, that “to my knowledge the owner of the site has not indicated any intent to develop retail facilities on the site”,31 but Mr Coghlin does not know the owners and has not contacted them to ascertain their intentions. Further, it is at least possible, that in the intervening years between now and when the need for a further supermarket materialises, there might be changes in ownership and/or development intentions. [50] Dr Webb, the appellant’s flooding expert, relied on a “desk top” study to conclude that the site on the western side of the Brygon Drive / Reserve Road intersection is substantially constrained by flooding. He did not walk the site or undertake 29 T 492. 30 T 470 ll 13-23. 31 Exhibit 4 page 32. -- 23 of 49 -- 24 hydraulic modelling to reach his conclusion.32 Mr Collins, on the other hand, previously conducted a detailed study for a retirement village on the site immediately to the north of the Brygon Creek site across the other side of Reserve Road.33 He concluded that the creek flooding does not actually reach the alterative site for a shopping centre and found that the Brygon Creek site, in comparison to the subject site, is superior in terms of flooding constraints. Mr Collin’s evidence, which I accept, was that the only inundation which now occurs is local floodwater and it is likely that only a third of the area cross hatched in yellow on Mr Webb’s plan might realistically be necessary for a drainage reserve for detention of runoff from the site.34 [51] Mr Holland’s evidence, that there would be traffic difficulties which would “appear” to render impractical the satisfactory positioning of a supermarket “box” at Brygon Creek Drive, on the south western side, was partly on the basis of what he was informed as to the developable portion of the site, the extent of hydraulic constraints and an unproven assumption, that the supermarket could not encroach on the existing power easement. As to traffic difficulties, particularly arising from congestion and access issues, Mr Beard’s evidence was that the site looks worse than it is, because of school generated congestion for brief parts of the day. He acknowledged that development would involve some changes, including some road widening. While a design development exercise has not been carried out, he said 32 T 203, 204. 33 T 212. -- 24 of 49 -- 25 that he would be surprised if a satisfactory solution could not be found, given the raft of experts which would be involved.35 I was not persuaded that traffic difficulties would necessarily preclude development. [52] Mr Sheehan, an architect, specialising in the design of shopping centres was called by the appellant to give evidence that, in his view, a combination of constraints precluded a solution.36 However, he relied, in part, upon assumptions about the effect of the electricity transmission easement and on the evidence of others, particularly Mr Webb and Mr Holland. [53] The evidence in relation to Brygon Creek Drive establishes that there are a number of constraints to development which would have to be considered and addressed in the design of any future proposal. It is, of course, not uncommon for constraints to be encountered and overcome, by the application of technical expertise. The investigation of the constraints, and possible solutions, to date, is limited and the evidence falls short of satisfying me, even on the balance of probabilities, that there is no potential for future supermarket development in that area. [54] There was also a deal of debate about the potential for expansion of the Lewani site. As with the Family Assets site, the Lewani site is not designated for a centre under the LAP, but unlike the Family Assets site, it is already partially developed for retailing. The current construction of the Lewani centre occupies only around 2.5 34 T212 35 T 254 ll 19-39. -- 25 of 49 -- 26 hectares out of a 14 hectare holding, leaving a balance of 11.5 hectares for potential future development, subject to approvals being obtained. Mr Coghlin acknowledged that the Lewani Springs site would “theoretically” be the preferred location for another supermarket and that there is an advantage in the consolidation which it may be able to achieve.37 [55] The appellant raised two particular constraints with respect to the Lewani site, namely the existing lease arrangements with Woolworths and physical site constraints. Upon further examination it appeared that those matters do not necessarily preclude further development of another supermarket somewhere within the Lewani holding. Mr Gore QC, for Family Assets, ultimately conceded that it is possible to locate another centre on the Lewani Springs site.38 [56] Having failed to establish that the Lewani centre could not be expanded to incorporate a second full line supermarket, the appellant sought to establish that its site was the better site. It was contended, amongst other things, that development of the Family Assets site would reinforce the intersection as the emerging district centre, that the Family Assets site has a greater potential to provide pedestrian/cycle connection with the nearby residential development, can also support other development of a residential and/or commercial nature and would provide a superior location to attract a major supermarket competitor. 36 T 344 lines 40-50. 37 T 30. 38 T 609. -- 26 of 49 -- 27 [57] Mr Atkins, the northern region leader for retail property with the Coles Group Limited, was called by the appellant. Coles has a level of interest in the Family Assets proposal, but has not committed to taking up a tenancy, in the event of approval and has not done its own internal needs analysis as yet. He expressed the view that the schematic options for further development of the Lewani site would not give a competitor, such as Coles, a “comparable offer” to that enjoyed by Woolworths. In his view, a further supermarket on the Lewani site would be a “secondary location” compared to that enjoyed by Woolworths. [58] While I accept that the matters referred to by Mr Atkins would be relevant considerations for a prospective supermarket operator, his evidence does not persuade me to find that no supermarket operator would choose to tenant a future additional full line supermarket on the Lewani Springs land, if that were approved at some future time, when the need for such a facility matures. [59] There are other matters which, on their face, do not favour the Family Assets site. I have already observed that the Family Assets site does not offer the same potential for integration, with the likelihood that its development would lead to a level of duplication and dislocation of any district centre at this location. Further, the Family Assets site has some environmental values, which would be detrimentally affected to greater degree, by a supermarket-based centre, as proposed, than would be the case if it were put to a sensitively designed alternative use. That is discussed later. Expanding the Lewani Springs site would not appear likely to involve the same -- 27 of 49 -- 28 environmental impact. Other respects in which the Family Assets proposal was said to be inappropriate are discussed later. [60] It is difficult and probably both unnecessary and undesirable, to carry out a better or best site analysis, particularly when one is comparing a fully planned and resolved detailed proposal on one site to hypothetical “first sketch” options on another and when the analysis is not directed to what might be best in current circumstances, but at some point, years into the future, when a need arises. I do not propose to express a concluded view on which would be the best site, if it came down to a future competition. That is something the Council might consider if it determines to designate land about this intersection, for a further supermarket, when it reviews its planning scheme. To the extent it is a relevant exercise for this appeal, it is sufficient, for present purposes, to conclude that the evidence does not persuade me to find that there is likely to effectively be no potentially suitable alternative to the Family Assets site, for consideration when the need arises, or that there is a public or community need to give what would otherwise be a premature approval, to avoid the prospect of the Family Assets site becoming unavailable for future consideration. [61] It was pointed out, on behalf of Family Assets, that the commitment of Family Assets to the construction of a further supermarket stands in contrast to the lack of any expressed intention to date by the proprietor of Lewani Springs, or any other land owner, to carry out such a development in the future. That does not mean -- 28 of 49 -- 29 however, that a proposal will not come forward when the need becomes more proximate, particularly if the Council gives greater guidance through a timely review of the LAP. [62] There is merit in the submission made on behalf of the Council that: “On the limited evidence appropriate in an appeal such as this, the Court could not exclude the provision of such facilities on Lewani Springs land (particularly to the east of the facilities presently under construction); or on land in the vicinity of the “local centre” designation at Brygon Creek drive. Nor should the Court speculate that no other alternative might arise during the six (6) year period between now and when the need for such facilities occurs. Prejudgment of the appropriate location for shopping facilities not yet needed is a matter for the strategic future planning of a properly resourced local government and, with respect, not for this Court on the basis of the limited evidence presented in an appeal such as this”. [63] Further, it is at least possible that the Family Assets site, or a sufficient part of it, might remain available, as a possible future option, even if its proposal is refused at this time. Given the superior investment returns of supermarket development, there would likely be some incentive for the site not to be developed in a way which would preclude the prospect of it, or part of it, being proposed for that use, when the need arises. Logically, that incentive would be all the greater if the directors of Family Assets believe that the site is indeed the best and only likely feasible option for meeting that future need. Mr Brown thought it possible that the site may be retained for a prospective future centre, but possible that it might not.39 39 T470-471. -- 29 of 49 -- 30 [64] I accept that Family Assets might choose to develop its land in some other way, in the absence of an approval at this stage, but the evidence of Mr Rix was not completely unequivocal. Mr Gore QC opened his evidence by saying that Mr Rix would have to “give more serious consideration”40 to alternative development options. Mr Rix, in his evidence-in-chief said waiting “is not necessarily an option anymore”.41 He said he would “like to try to keep some form of commercial” given what he saw as the locational advantages of the site, but if asked whether a sufficient area would be reserved for a possible future development of what is now proposed he would say “I don’t think so”.42 [65] In cross-examination Mr Rix said that he has never concentrated on anything other than the supermarket proposal for the land and agreed that he has not even done a notional layout of a potential development for residential purposes.43 Asked specifically whether he had decided to develop the land for residential purposes if the current application were not approved, he responded by saying “sooner or later you’ve got to draw the line in the sand…”.44 [66] Moreover, while the evidence demonstrates some constraints to achieving further supermarket development on the two particular alternative sites identified to date, I am left short of being persuaded that, absent approval of the current application, there would likely be no or no significant prospect of achieving development in the 40 T 546 l 30. 41 T 548 l 4. 42 T 548. -- 30 of 49 -- 31 future to meet a future need for an additional full line supermarket, when that need matures. I am not satisfied that the possibility that the Family Assets site might be developed for other purposes, creates an existing planning need to grant an approval to ensure that the future need is met. An approval at this point would, in my view, be premature and would inappropriately have the effect of designating the Family Assets site in advance of Council’s review of planning for this area. [67] Proper planning should, of course, provide guidance and direction, rather than play “catch up” by reacting after the event. A planning need to give a development approval, on a site not now planned for such development, might arise if, for example, the need for facilities becomes more proximate and the need to designate land, other than at Brygon Road, clearer; but the Council does not, in a sufficiently timely way, review the LAP to provide for satisfaction of the then impending need. That planning need has not arisen at this point. [68] That is sufficient to dispose of the appeal, even if all remaining matters are assumed in the appellant’s favour. I will however, traverse other respects in which the co- respondent claimed that the Family Assets proposal is inappropriate. Assessment otherwise [69] Lewani Springs contended that the Family Assets proposal is otherwise inappropriate for reasons which include that it conflicts with the planning 43 T 551. 44 T 553. -- 31 of 49 -- 32 instruments, is not appropriately located central to its own catchment, and would detrimentally affect the environmental values of the site. These matters will be examined in the context of the planning documents. (i) The Transitional Planning Scheme [70] Under the transitional planning scheme the land was included within the Future Urban zone, the intent for which was to set aside areas planned for urban development until all services and urban facilities could be provided. The uses proposed by Family Assets fall within Column 4 of the Table of Development for that Zone and are “prohibited development”.45 In the context of the IPA, that is taken to be an expression of policy that the development is inconsistent with the intent of the Zone.46 Little significance is attached to that in this case however, given the nature of the zone which is, in effect, a “holding zone”, pending the land being ready for development in accordance with the provisions of the Strategic Plan and any relevant Development Control Plan. [71] The site was included within the “Urban Residential” PDLU under the Strategic Plan. Within that PDLU, residential land use was to dominate, but non-residential land uses, which serve or complement housing areas, were also expressly contemplated. That expressly included the prospect of “local and district level shopping centres”.47 It is common ground that, were the Family Assets proposal to 45 pg 11.1 pf the Transitional Planning Scheme. 46 S 6.1.2(3) 47 See s 1.4.4.1. -- 32 of 49 -- 33 proceed, then the facilities located around the Days Road / Old Coach Road intersection would, in aggregate, be district level in size.48 [72] Urban Residential Objective 7, in the Strategic Plan, related to the establishment of district level shopping and commercial facilities to complement the proposed structure of Major Business Centres. The implementation provisions to that objective stated that the function of district centres is primarily related to the supply of weekly grocery shopping requirements. They were not located specifically on the Strategic Plan Map, but were to be established as part of the development of urban residential areas. Large district centres were not to be permitted to establish in situations where the development would “unduly compromise” the intended development of retailing facilities in a proposed Major Business Centre. 49 [73] The implementation provisions also provided that the location of District centres should meet the criteria of being convenient to a major road network of the district intended to be served, where possible be physically associated with district level facilities otherwise and be central to the population intended to be served. The implementation provisions identified a number of district centres to be established. The list does not include Coomera. I accept the submission, on behalf of Family Assets, that the list should not be regarded as exhaustive, but the list demonstrates that Coomera was not specifically identified and planned to have a district centre. Implementation Provision (v) provided that, in assessing applications for major 48 See the Joint Report of the Economic Experts. -- 33 of 49 -- 34 shopping development, the Council would take into account, amongst other things, “the needs of the community and the demand for such development”. [74] The Family Assets site is not in one of the listed locations but it is at a significant intersection, is convenient to a major road network of the district intended to be served and is proximate to other facilities. On the other hand it is not “central to the population intended to be served” and there is presently no need or demand for the development. [75] It was also contended, on behalf of Lewani Springs, that the development of a further supermarket, at this stage, on the Family Assets site, would potentially affect the major business centre constituted by the Coomera town centre. In that regard, Mr Shimmin expressed the view that supermarkets will be an important component of the initial stages of the planned Coomera town centre. Premature approval of an additional supermarket on the subject site could affect the timing of the planned Coomera town centre or the success of the centre, if launched in a similar time frame to the proposed development. This could, in turn, affect the confidence of retailers, in particular, in the early years of the town centre. Mr Shimmin did not contend that the proposed development would affect the ultimate scale and composition of the town centre. [76] Insofar as timing is concerned, the effects of premature approval need to be seen in light of the fact that the catchment for the Coomera Town Centre, on the eastern 49 s 1.4.4.8 -- 34 of 49 -- 35 side of the motorway, will differ from that of any supermarket based centre on the Family Assets site and also in light of the fact that, even on the appellant’s case, a centre on the Family Assets site should not be permitted to open until the need arises. While the proposal would likely have some impact on the supermarket component of the town centre, I do not consider that it would “unduly compromise” the intended development of the Coomera town centre, if it did not open until the need arose. [77] The land also fell within the Albert Corridor DCP under the transitional planning scheme. Under the DCP, the corridor was divided into 6 sectors, one of which was Coomera. Controls within those sectors were aimed primarily at promoting community self-sufficiency and public management viability. The Coomera sector was predicted to have the largest population within the DCP area and was intended to provide regional level commercial, retail and community uses in addition to meeting the needs of local residents. [78] Under the DCP, the area about the subject intersection was designated with an urban neighbourhood tri-colour spot, indicating development for urban residential / type R2, special use and a neighbourhood centre. The expression “neighbourhood centre”, was defined to mean a local or district commercial centre. Urban neighbourhoods were said to provide local, and in some cases district, centre functions to serve the community in which they are located. Medium density (R2) residential development was said to be an integral part of urban neighbourhoods. -- 35 of 49 -- 36 [79] A neighbourhood centre about the subject intersection was envisaged in the DCP. Such need as might have existed for retail development has been taken up by the Lewani Springs development. The DCP does not provide positive support for the location of two competing retail neighbourhood centres, one beside the other, about the intersection. While the Family Assets proposal and the other development about the intersection, would, in aggregate, be of a district level size, it is difficult to accept that the facilities would be sufficiently integrated to function as a single district centre. [80] Provisions relating to neighbourhood centres are contained in s 2.6.4.4 of the transitional planning scheme. It was intended that neighbourhood centres be developed in a compact and intensive manner, supporting both pedestrian and vehicle amenity. Surface carparks should not dominate individual sites. The implementation provisions were as follows: “(1) The configuration of uses in Neighbourhood Centres must balance pedestrian and vehicle comfort, visibility and accessibility; (2) Neighbourhood Centre buildings should occupy at least 30% of their site area. Higher intensities are encouraged. (3) Buildings in Neighbourhood Centres should be brought to the street edge with minimum setbacks. (4) Buildings in neighbourhood centres are limited to four habitable stories. Residential uses are encouraged on upper floors.” [81] The Family Assets proposal does not fit with all of those provisions. The proposed development is not compact and intensive. The shopping centre is set back, rather than brought to the street edge and sits in a substantial area of surface carparking. -- 36 of 49 -- 37 Mr Vann described the proposal as representing a fragmented and spread out built form, with a “big box in a sea of carparks” outcome, contrary to the planning scheme intentions for integrated, compact centres featuring high quality urban design. Leaving environmental issues (discussed later) to one side, the design of the proposal is however, a not unreasonable response to the challenges of locating a supermarket-based centre on the site.50 I would not have refused the Family Assets application on this basis, had there been sufficient need and had it otherwise been acceptable. [82] As Mr Vann pointed out, the DCP envisaged “urban neighbourhoods” being located throughout the corridor, with the area of development for each urban neighbourhood being typically a 400 metre radius (approximately a 5 minute walk) from its neighbourhood centre.51 Centrality and accessibility were to be features of such neighbourhoods. Coomera, in particular, was intended to have “transit supportive urban neighbourhoods”, a centrally located rapid transport stop, an urban residential (R2) area, a centrally located neighbourhood centre and public open space. [83] The DCP records that it was a product of the “Building Better Cities Program” funded by the Commonwealth Government. It embodied principles of “Transit Supportive Development” or, as Mr Vann described it, “new urbanism” or “traditional neighbourhood design”. It sought increased densities focused around a 50 The matters which drove the design were outlined by Mr Sheehan. See Ex 7. 51 Ex 16 Mr Vann Report p11. -- 37 of 49 -- 38 number of neighbourhood centres. As Mr Vann pointed out, this philosophy is also reflected in the LAP provisions under the current planning scheme. [84] Mr Vann saw the Family Assets proposal as being contrary to the planning intent, as reflected in those provisions, because it seeks to locate a competing neighbourhood centre immediately beside another, rather than at some other location central to its own catchment. Further, insofar as it is said to be justified as contributing to a district centre, the proposal would result in a fragmented and disjointed centre. Those are matters to which I will return in discussing the provisions of the LAP. (ii) The Current Planning Scheme [85] I have already noted that substantial weight should be given to the provisions of the current planning scheme. The proposal conflicts with that scheme. [86] As has already been noted, the site is not designated for development of a retail centre, at any level, in the current planning scheme. The current planning scheme provides for a system of “activity centres”, which include catchment based centres. The preferred system of activity centres is shown on planning strategy map PS-4. This shows centres down to the District Centre level. Such centres serve populations of 20,000 – 30,000 (approximately). The Family Assets site does not have and is not proximate to, a centre designation on maps PS-1 or PS-4. [87] Map PS-4 does not show the location of local centres (with catchments of around 5,000 – 10,000 people) or neighbourhood centres (with catchments of less than -- 38 of 49 -- 39 5,000 people). Such centres are contemplated within the Urban Residential land use scheme. As was pointed out on behalf of Lewani Springs, the development of such centres is closely linked to the issue of need. The planning intent for the Urban Residential land use theme states: “Neighbourhood and local centres are included within the Land Use Theme and, as such, are not specifically identified on the planning strategy maps. Such centres provide a limited range of goods and services to satisfy the convenience requirements of an immediate catchment. Council will ensure that any new centre, or a proposal to expand an existing centre, does not exceed its genuine catchment requirements… Local centres will normally provide less than 8,000 m² of retail floor space. However, the ultimate size of such centres will be determined through a comprehensive needs assessment and factors such as the size and location of other centres, vacancy rates in the locality, and any existing commercial development approvals not yet acted upon.” [88] The development of a further supermarket-based centre of the kind proposed, cannot, at this stage, be justified on the basis of a needs analysis and would currently exceed catchment requirements. [89] The current planning scheme also contains provisions to the effect that centres will not be permitted to expand to the point where they “significantly compete” with those designated on planning strategy maps PS1 and PS4.52 As previously discussed, subject to postponement of the commencement of trade, I do not consider that the proposal would “significantly compete” with the Coomera town centre or compromise its role in the hierarchy. 52 See s 1 of Part 3, Division 3, Chapter 7 (urban residential) and s 1 of Part 3, Division 3, Chapter 12 (major activities centres). -- 39 of 49 -- 40 [90] More detailed provisions for the subject area are contained in the LAP. That shows planned local centres. The Family Assets site is not designated as a local centre (or any other retail centre) in the LAP. [91] Not only does the subject site fail to have a designation which would engender an expectation that it may be developed for the purposes of a retail centre of the kind proposed, but the designation which it does bear creates a contrary expectation. As has already been noted, the site is mostly included within the rural living / open space designation under the LAP and has a “conservation and landscape protection” designation overlay. The site is vegetated and has a low-lying / wetland area. The intent for the rural living / open space precinct is as follows: “To provide for rural style residential development and also to provide for the effective servicing of current and future needs for recreational land within the Coomera LAP area. Further, to contribute to the open space network within the Coomera area for landscape and habitat protection purposes.” [92] None of the provisions relating to this precinct give any indication that the land might be considered suitable for development of a supermarket-based shopping centre. It was submitted, for Family Assets, that the impact of the proposal on the environmental qualities of the site where not undue. That is a matter dealt with below. Even if that were accepted, it does not lead to a conclusion that the land could necessarily be appropriately used for shopping centre purposes, given the current planning intent. -- 40 of 49 -- 41 [93] The LAP carries forward the concept of “walkable neighbourhoods”. LAP map 9.9 shows some 13 such neighbourhoods on the western side of the Pacific Motorway north of the Coomera River. One is centred on the Days Road / Old Coach Road intersection. Figure 9.1 shows residential intensity “development options” within a 400 walking metre distance of a transit stop / neighbourhood centre. The LAP does not however, provide that each walkable neighbourhood should have its own full line supermarket-based shopping centre.53 That would clearly be unrealistic and unachievable. The only designated local centre for the area is the Coomera West centre. While other retail centres have in fact been developed, none other are designated. [94] Mr Vann was supportive of the planning philosophy embodied in the DCP and the LAP, in relation to planning for neighbourhoods, although he acknowledged a degree of “unevenness” in its achievement. Mr Beard was supportive of the concept of locating centres so as to reduce motor vehicle travel and dependence. Mr Brown, on the other hand, pointed out that neither the distribution of neighbourhood centres, nor increased residential densities in the “walkable neighbourhoods” had been achieved.54 As he also pointed out, there is likely to be a need in the future for only one further full line supermarket in the catchment area and a site about the subject intersection, while not central to a discrete catchment, affords convenient 53 see s 5.2 54 see also pg 31 of Leyshon’s report of April 2007. -- 41 of 49 -- 42 accessibility for those using motor vehicles, who are likely to be the vast majority of supermarket customers. [95] I accept that the location of two full line supermarket based centres, immediately opposite one another, appears at odds with the principles upon which the DCP and LAP were based and would have the consequence that the average trip length is likely to increase, compared with a more even distribution of centres central to their own catchments.55 The failure of the proposal to promote that more even distribution is however, something which, in the circumstances, could be accepted, if a sufficient public or community need was demonstrated, and the proposal were otherwise acceptable. (iii) Environmental Impact [96] Lewani Springs also contends that the Family Assets development is inappropriate because of its environmental impact. [97] The vegetation on the subject site is shown, in the regional ecosystem maps, as mostly remnant vegetation comprising RE 12.11.5 (which is “not of concern”) and RE 12.3.11 (being “of concern”). A patch of RE 12.3.11 vegetation in the northeast part of the site coincides with the confluence of two mapped watercourses. This RE extends in a south-easterly direction as a narrow strip around the base of the southern hill, connecting to a wider patch immediately downstream of the dams. 55 Exhibit 16 page 19. -- 42 of 49 -- 43 The extent of that RE on the site is less than that shown on the mapping, but there is still a long band of such vegetation on the subject site.56 [98] While the majority of the northern patch of RE 12.3.11 vegetation would be preserved, some would be removed as would part of such vegetation extending to the west. The proposal also involves filling an existing creek tributary, and its replacement with an engineered drainage channel in a different location within a different substrate.57 This engineered solution would, in Mr Chenoweth’s view, not have the same ecological values as the existing alluvial creek.58 Mr Chenoweth and Mr Collins saw that as significant. Mr Collins was critical of what he saw as a “retrofitted” drainage solution which does not retain the waterway and floodplain corridor through the site. [99] Mr Hassall, on the other hand, pointed to the intention to preserve the majority of the northern patch of the “of concern” vegetation, while designing the new drainage channel to take the form of the natural channel, so as to provide, if anything, improved diversity of habitats from that which exists in the existing intermittent channel.59 [100] Mr Chenoweth saw the solution as “brutal” to the environmental values of the site. He pointed out that a supermarket is one of the most difficult forms of development 56 Exhibit 19 page 4, paragraph 2.3.4, see also T 304 line 35. 57 T 306 line 10. 58 T 306 line 15. 59 T 270. -- 43 of 49 -- 44 to undertake in an environmentally sensitive way.60 It would, on the other hand, be possible to design an attractive and successful residential development in a way which better protected the ecological values of the site.61 [101] The major points of disagreement between Mr Hassall and Mr Chenoweth related to their different opinions about the significance and long-term sustainability of the existing ecological values on the low-lying parts of the site. Mr Chenoweth considered that these are sufficiently significant to preclude the development proposed. Mr Hassall considered that the values have been compromised, by both upstream and downstream development approvals, such that they are presently diminished and areas of environmental value are not of sufficient size or quality to provide core habitat or practical linkages in the foreseeable future. In his view, the proposal provides for the ecological values of the site in a way which is similar to that which has been adopted and implemented along neighbouring parts of the waterway and other similar waterways in upper Coomera. [102] The transitional planning scheme contained a number of provisions which sought to respect environmental values,62 but did not map the subject site as having any particular environmental significance. The position is different under the existing planning scheme. 60 T 307 line 50. 61 T 307. 62 Set out pages 5 and 6 of Mr Chenoweth’s report. -- 44 of 49 -- 45 [103] The site is within the “conservation and landscape protection” designation on LAP map 9.2, but that designation does not trigger any particular assessment under the LAP. The subject site also appears on overlay map 11.1 Natural Wetland or Waterway areas. That map shows two drainage lines designated as “other natural waterways” with “riparian communities” crossing the site and an area of “riparian communities”. The site is also shown, on overlay map 20.1, dealing with the Conservation Strategy Plan, as part of a “major area of existing bushland committed to development”, which is one of the categories of conservation significance under the Nature Conservation Code. That code recognises that some loss of ecological values is likely to occur in areas committed to development, but intends development to be designed or constructed in a way which contributes to the function of the particular Conservation Strategy Plan to the greatest extent possible, given the commitments. [104] Mr Chenoweth and Mr Hassall expressed different opinions about the proposal’s compliance with the Natural Wetland Areas and Natural Waterways Code and the Nature Conservation Code. Each of those codes seek to appropriately respect “ecologically significant areas”, an expression which is defined in the planning scheme and also dealt with in planning scheme policy 8. The difference between Mr Chenoweth and Mr Hassall is largely explained by their different opinions about the ecological significance and long term sustainability of the areas proposed to be disturbed by development. Mr Chenoweth, in concluding that the development would inappropriately disturb areas of ecological significance, focused more on the -- 45 of 49 -- 46 parts of the site which have greater value. Mr Hassall, on the other hand, placed more weight on the broader context, in concluding that the ecological features proposed to be disturbed are not significant. [105] PC6 (and its acceptable solution) of the Natural Wetland Areas and Natural Waterways Code deals with the maintenance and enlargement of the natural hydrological regimes of wetlands and waterways, including natural water quality, quantity and groundwater conditions. Mr Hassall, in his report, deferred to the stormwater quality experts with respect to this aspect of the Code. Mr Collins, who was called by Lewani Springs, rightly pointed out that the appellant’s experts had failed to fully address that issue, particularly in relation to geo-hydrology, although the geo-hydrology is likely to already have been altered.63 [106] The opinions of Mr Hassell and Mr Chenoweth are each reasonably open and the difference between them is not easy to resolve. I am satisfied that the part of the site proposed to be disturbed has some environmental value, that the proposal would have some negative impact and indeed, would have a greater impact than at least some other possible forms of development. Even if the ecological features of the site are accepted to be “significant”, in the relevant sense, the matters relied upon by Mr Hassall are nevertheless relevant in considering the gravity of any resulting departure from the codes. Given those matters, and the extent to which the amended design seeks to lessen the impact of the proposal, an approval may have 63 T 225 line 40 – 45. -- 46 of 49 -- 47 been justified notwithstanding the interference with those ecological features, if the proposal were otherwise acceptable and sufficient public or community need had been demonstrated for the subject site to the approved for a future supermarket based shopping centre. Conclusion [107] The Family Assets proposal has a lengthy history and has sought to be supported in an unorthodox way. The justification for it at the time the application was made, has been overtaken by events, and its approval, at this time, to take up the next opportunity for development of a supermarket based centre would, at best, be premature. [108] Development approval was first sought in 2003 under a planning scheme which then contemplated a neighbourhood centre about the Days Road / Old Coach Road intersection. Any need as may have existed, at that time, for such a centre about that intersection has since been taken up by the Lewani Springs development. Further, the transitional planning scheme has been superseded by the current planning scheme. The current scheme should be given substantial weight. The development is in conflict with that scheme. [109] There will likely be a need, at some point in the future, for a further full line supermarket within the catchment. It is that need upon which Family Assets now focuses. It points out that the current Local Area Plan does not designate where that -- 47 of 49 -- 48 need is to be met, beyond the designation of a single local centre at Brygon Creek Drive. Family Assets has been unsuccessful, to date, in having the Council amend its LAP to designate the Family Assets site as the one to fulfil that future need. It invites the Court to, in effect, give it that designation, by granting a development approval while deferring the opening of the centre. [110] While the need for a further centre might have seemed more proximate prior to publication of the 2006 census data, the evidence now shows that previous population forecasts for the trade area have been significantly over optimistic. There is presently no need for the facilities proposed to be provided and the need will not mature for some years. A review of the planning provisions is likely in the meantime. It would seem appropriate in those circumstances, to refuse an application which is contrary to the current planning documents and is premature in terms of any public or community need. [111] Family Assets contended that there is a planning need to grant an approval at this time, lest it decide to develop its land for some other purpose before the need matures. It was contended that loss of its site would be to the dis-benefit of the community, because of a lack of appropriate alternatives for meeting the future need. I was not satisfied however, that the appellant made out its case in that regard. That is sufficient to dispose of the appeal. [112] There were other respects in which Lewani Springs contended that the Family Assets proposal was inappropriate. They have been traversed in these reasons. -- 48 of 49 -- 49 Generally, they are matters which, to the extent they have substance, might have been overcome or outweighed by a demonstration of a sufficient public or community need to grant an approval, at this stage, for a future supermarket based centre on the Family Assets site, but such need has not been demonstrated. [113] The appellant has failed to discharge its onus and I dismiss the appeal. -- 49 of 49 --