Bowden & Ors v Brisbane City Council & Anor [1991] QPEC 23 (1991) QPLR 271

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Str~t, BRJSBA.NE, 0. 4000 Tel. (07) 227 .4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority • of the Director, .State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT ROW DCJ LGA No 284 of 1990 -WILLIAM HENRY BOWDEN & OTHERS and BRISBANE CITY COUNCIL and McD & E PROPERTIES PTY LTD BRISBANE .. 14/11/91 ORDER 1 RE'/ISED (oP'f.t i~;:,:-~- f ColJI! .:i·1nr!i11, £1:1,c "1.: Appellants • Respondent Respondent by El~ction -- 1 of 62 -- 10 20 30 40 50 60 141191 HIS HONOUR: The appeal.~ are allow~d. I publish my reasons. Govt. Printer, Qld. 2 I' 10 20 30 40 50 60 -- 2 of 62 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND L.G.A. No. 284 of 1990 BETWEEN: WILLIAM HENRY BOWDEN & ORS. Appellants BRISBANE CITY COUNCIL Respondent McD. & E. PROPERTIES PTY. LTD. Respondent by Election 29th July to 13th September, 25th and 28th October, 1991 REASONS FOR JUDGMENT - ROW D.C.J. - 14th November, 1991 McD. & E. Properties Pty. Ltd. (Respondent by Election) by application dated 12th January 1990 applied to the respondent to rezone land situated at Agnew Street, Racecourse Road, Brackenridge Road and Gateway Arterial, Sandgate having an area of 59.3 hectares by excluding the subject land from the Future Urban Zone and the Sport and Recreation Zone and including the land so excluded in the Residential "B" Zone, and the Particular Development (Shopping Centre and Other Nominated Uses) Zones. An area of approximately 6. 4 hectares of the land, south of Kempster Street, is included within the Sport and Recreation Zone whilst the balance is zoned Future Urban. The proposed rezoning sought is as follows:- Residential "B" (11.95 hectares); -- 3 of 62 -- 2 Particular Development (Shopping Centre and Other Nominated Uses) (44.237 hectares); Particular Development (Car Park ... ) (1.825 hectares). The appellants duly objected to the application. On the 20th November 1990, the respondent proposed to approve the said application subject to conditions including:- (a) the gross floor area of the buildings comprising the shopping centre shall not exceed 55,000 square metres; (b) the net lettable area of the areas shown for retail premises shall not exceed 36,000 square metres; (c) intensity of the area to be zoned Residential "B" be of an average intensity of R.D.A. 3 with a maximum of 3 hectares being R.D.A. 4, and ( d) the site area for Residential "B" be reduced to 1O hectares. Since the decision of the respondent proposing to approve the application, the respondent, on the 23rd July 1991, resolved that: (i) the Council is opposed to the approval on the grounds therein stated, and (ii) the City Solicitor be instructed to oppose the granting of the application for rezoning. A number of appeals were subsequently instituted against the decision of the respondent proposing to approve the said application. All such appeals as have proceeded, namely L.G.A. 284; 288; 296; 305 and 308 of 1990 were ordered to be heard together. Although the appeals on the face thereof are against the whole of the decision of the respondent, the hearing was -- 4 of 62 -- t 3 primarily, if not wholly, directed toward that part of the application where the rezoning was sought to the Particular Development (Shopping Centre) Zone. On the hearing of the appeals, the issues in broad terms related to the following:- Environment Strategic Planning Regional Planning Need Economic Impact On the 1987 Structure Plan Map, the subject land is designated as part of the urban fabric. The land zoned Future Urban under the 1987 Town Plan has been so zoned since the 1978 Town Plan. In the 1971 Town Plan it had been included within the non-urban zone. The land zoned Sport and Recreation under the 1987 Town Plan was so zoned in the 1978 Town Plan. It is apparent that there were no objections to the zonings of the subject land under either the 1978 or 1987 Town Plan. The subject land is on the eastern side of the Deagon Deviation/Gateway Arterial. On the western side thereof is land which is of a similar terrain and character to that of the subject land and which is now developed for St. John Fisher College. Deagon Racecourse is situated immediately to the south east across Racecourse Road. The third lagoon recreation reserve is immediately to the north across Brackenridge Road. The land to the east across Agnew Street is used for both residential purposes (to the south of Brackenridge Road to Hoskins Street) and for light industrial purposes (south from Hoskins Street to Rainbow Street). -- 5 of 62 -- 4 The land is bounded to the west by the Deagon Deviation/Gateway Arterial, to the north, by Brackenridge Road, to the east by Agnew Street and to the south by Racecourse Road and Thynne Avenue. It is virtually flat and draining generally towards the south eastern corner. Although situated within the suburb of Sandgate the proposed development on the hearing of the appeal, generally has been referred to as the Deagon Shopping Centre or the Gateway Shoppingtown. The subject land other than for one title which is held by the Crown has been privately owned for a considerable number of years. The subject land is about 1.5 kilometres west of the district strip shopping centre at Sandgate and about 1 kilometre north of Fountain Plaza, Deagon, a recently approved and developed shopping facility. In relation to other existing major retail developments, the subject land is about 12 kilometres from Kippa Ring/Peninsula Fair Shopping Centre, 8 kilometres from Westfield/Strathpine, 9 kilometres from Myer Chermside and about 10 kilometres from Westfield/Toombul. The site is at a major nodal road intersection, namely the north/south Gateway Arterial, the north/south Sandgate Road/Braun Street and the Redcliffe access north/south Houghton Highway together with the east west connections of the Gateway Arterial to the Bruce Highway immediately south of the Pine River; Telegraph Road and Brackenridge Road. It is located in the far north east corner of Brisbane City. The subject site is vacant with no built improvements on the land. Most of it is covered with native woodland and forest and contains natural vegetation. It is presently not lawfully used -- 6 of 62 -- 5 but is used for many unlawful purposes including a motor cycle track and the dumping of material thereon. It is subject to frequent periodic fires during periods of dry weather. The material that accompanied the application was indicative of a very substantial development comprising two department stores and a large number of car parking spaces. The proposed plan of layout was subsequently amended in accordance with Exhibit 76 to indicate a reduced area of development with a corresponding decrease in the number of car parking spaces being a development which substantially was in conformity with the conditions proposed by the respondent. The hearing of the appeal proceeded on the basis of the amended plan of layout. On Exhibit 76 titled "Gateway Shoppingtown Stage 1", an area of 7 hectares in the north east is shown as Wetland Reservation wherein it is proposed that the existing nature and character of the land will not be changed. To the west is the proposed Residential 11 B11 Zone which is separated from an area shown as Training Track and Club House by a natural flora buffer 65 metres in width running from the proposed vehicular access off Brackenridge Road to the development to the boundary of the site fronting the Gateway Arterial and having the area of 2. 3 hectares. This area is proposed to be retained in its existing condition. Five separate areas towards the south of the site are shown as landscape areas. An additional area south of the Wetland Reservation is also shown as a landscape area. Landscaping is further proposed for that area south of Barrett Street and having frontages to the Gateway Arterial and Thynne Avenue. The off ice park is adjacent to Agnew Street and is envisaged to be contained within four structures. -- 7 of 62 -- 6 The two points of vehicular access are from Brackenridge Road to the north and Racecourse Road to the south. Overall, the layout plan provides for a circular movement for traffic on site. The respondent by election now proposes, if the subject land is rezoned, to develop it generally for the purposes of a large "themed" shopping centre having a total gross floor area of a maximum of 55,000 square metres containing 41,775 for retail, 2,707 for theatres, 220 for restaurant, 400 for Tavern, 2,688 Market/Entertainment, 560 public library, 200 community hall and 6,000 business premises. The design of the proposed Gateway Shoppingtown is based on a leisure concept: a day out, a place to relax rather than a hard cold retail sales area. The retail component comprise a department store, two discount department stores, two supermarkets, one mini-major and specialty shops. The proposed department store would be occupied by McDonnell and East. Approximately 10 hectares of land is to be transferred to the respondent or the Crown as a "Wetland Reservation" plus the buffer. An annual contribution for maintenance of the Wetland Reservation is proposed. The appeal by Queensland Conservation Council (296 of 1990) whilst alleging in the Notice of Appeal a multiplicity of grounds primarily raised environmental issues. As the appeals relate to a rezoning application which was duly made to the respondent but was not finally approved prior to the commencement of the 1990 Amendment Act, the application is to be dealt with under the now superseded legislation. On the hearing of the appeal evidence was led by that appellant on environmental and associated issues. That -- 8 of 62 -- 7 environmental issues are relevant in a consideration of the appeals was not disputed. Section 32A. Local Government Act; Clauses 2.23(a) and (b) of the Town Plan (1987). Section 8(5)(e) of the City of Brisbane Town Planning Act. Under Section 32A(1) a Local Authority when considering an application for its approval .... shall take into consideration whether any deleterious effect on the environment would be occasioned by the implementation of the proposal, the subject of the application. Under Section 8{5)(e) in respect of a rezoning application the Local Authority shall, amongst other things, take into consideration whether the provisions of Section 32A of the Local Government Act should be applied. I am satisfied on the facts therein it was proper for the respondent, and, on appeal, the Court to apply the provisions of s.32A to the application. The application is of such a nature that the deleterious affect is a relevant consideration. Aim 1 of the Strategic Plan seeks the promotion of a pleasant environment with community needs balanced against the effects on the environment and the costs of protecting that environment. The objectives of this aim include Clause 2.2.3 which provides that the preservation of the better characteristics and amenities of the City will be achieved by {a) assessing any development proposal in the light of the environmental impact, and (b) encouraging the protection or preservation of specific areas ... of special value by virtue of .... ecological .... interest .... -- 9 of 62 -- 8 Whilst a landowner has a statutory right to make an application for rezoning, a consideration of such application requires the Local Authority to consider many factors including community concerns of which the statutory right to object is but part. The Local Authority is the representation of the community interests whether such interests relate to the environment or other matters. There well might be cases where the public interest is so overwhelming that the individual interest is defeated. Indooroopilly Golf Club v. Brisbane City Council & Ors. (1982) Q.P.L.R. 13 at 32. The application of s.32A of the Local Government Act and s.8(5)(c) of the City of Brisbane Town Planning Act is not limited to exceptional circumstances but applies to all relevant applications as being a factor to be considered in the decision making process. Matters concerning the environment and the quality of the relevant area were considered by the Court to be relevant and proper factors to be considered on a rezoning application - Keys & Anor v. The Council of the Shire of Woongarra & Anor. (1983) Q.P.L.R. 229. The question in issue concerns the weight to be given to such relevant matters in the particular circumstances herein. Such an attitude has been adopted by the Court on many prior occasions with the particular circumstances of each case being the significant consideration. In assessing the weight to be given to the environmental issues raised herein, it is of significance that the subject land is and has been for many years in private ownership, and that a significant part is, and has been for some period of time, zoned Future Urban under relevant -- 10 of 62 -- 9 Town Plans for the City of Brisbane. The evidence further establishes that there were no objections lodged to the zoning of the subject land under the 1978 and 1987 Town Plans. The evidence on environmental issues comes from a number of experienced and well qualified persons with most having a Doctorate of Philosophy in a specialised field relative to environmental facets. Each of the witnesses I am satisfied had the competence and the experience to speak with authority in relation to the environmental issues that each addressed. The position of the Brisbane City Council in relation to the application of s.32A of the Local Government Act was clarified by the Local Government Acts Amendment Act of 1990 which ·specifically included Brisbane City Council within the definition of Local Authority for the purposes of s.32A of the Act. The authority of the Court to consider environmental matters on a rezoning application was recognised by the High Court in The Crown v. Murphy (1990) 64 A.L.J.R. 593 at 596. The deleterious effect would not be occasioned by the rezoning but would be occasioned only by some efficient use or development of the land,· as would be permitted if the land was rezoned. The application of s.32A will be seen as being related to the concept of the deleterious effect that an application and the subsequent development may have on the environment. The rezoning will permit the land to be used for shopping and commercial purposes. I am satisfied that matters concerning the environment and the quality of the relevant area are proper matters for consideration in respect of the subject application. In considering those matters, the Court is required to balance those interests as -- 11 of 62 -- 10 against other relevant interests, having regard to the particular circumstances of each case. The interpretation of environment as stated by the High Court is wide and permits the Court, in appropriate circumstances, to consider the various matters raised by the evidence of witnesses called on behalf of the Queensland conservation Council. In considering the nature and extent of the deleterious effect, the Court should have regard to questions of degree and the significance that is placed in relation to the environmental issues which are said to be deleteriously affected. The weight to be given to the various aspects are further dependent upon the particular circumstances of the application under review. In considering the deleterious effect in relation to environmental matters, public or community concerns are of relevance. Section 32A in itself, whilst recognising the right to have regard to relevant environmental issues does not, in all circumstances, see the rights of the private individual as being absolute, but accepts that there is a wider public or community interest that may be involved which is relevant for consideration and determination. Section 32A places an obligation upon the respondent, and, on appeal, the Court, to have regard to environmental issues, in the balancing process in arriving at a determination of the application. Such a determination is to be made on the evidence adduced before the Court on the hearing of the appeal. On the other hand the rights of the individual in relation to land are not to be ignored, such rights in themselves do not outweigh the obligation on the Court to consider and balance all issues which are raised in relation to the -- 12 of 62 -- ,, application of s.32A to an application. In part of the balancing process, regard is to be had to the intent of the zone within which the land is located and the Table of zones which are indicative of the manner in which that land may be utilised lawfully consistent with the provisions of the relevant Town Plan. When balancing the various interests, the Court is obliged to apply the law as exists as at the date of the hearing of the appeal and to apply it to the existing facts and circumstances as found at that time. The Court cannot, in its consideration of an application, go behind the statutory zoning of the subject land or any reasons whereby the land was zoned in a particular manner. The Court is bound to accept the zoning. The Court is required to have regard to the provisions of the Town Plan and relevant planning documents of the respondent as well as planning documents of any other Local Authority which may be relevant to the consideration of the subject application. The nature and character of the proposed development, if rezoning is approved, is in the particular circumstances where it is proposed to include land in a Particular Development Zone of significance in that, if the rezoning is approved, the proposed development would be a use as of right subject to a Clause 24.3 application in relation to conditions. The evidence on behalf of the appellant, Queensland Conservation Council, is quite strong in that a number of experts in many and varied disciplines have each identified the subject land as having significant environmental character, which character would be substantially depleted if the rezoning were approved and the proposed development achieved. The subject land -- 13 of 62 -- 12 plays an important environmental part in the ecology of the area in relation to flora, fauna and other environmental aspects. It has a significant melaleuca woodland with a wetland base. I accept that, in considering the environmental significance of the land, the subject land should be looked at in its totality and not in a di verse fashion as was considered by Mr. Bennett. However, it is appropriate to consider the various forms of vegetation if such is capable of classification. Whilst the approach by Mr. Bennett has, in my view, some validity, the difficulties which arise in relation to an apportionment and definition of the various areas of environmental significance has problems in that it is difficult to accept such a precise definition of various areas so classified as referred to by him. I do not consider that his approach, in the circumstances, should be preferred to that taken by most of the other witnesses who adopted a holistic analysis as opposed to the analytical approach adopted by him. Whilst the absence of data may be of some relevance, the evidence of the various experts called on behalf of the appellant, Queensland Conservation Council, is of such significance that it identifies overall by multi-faceted data the environmental value of the subject land. The fact that a significant part of melaleuca woodlands in South East Queensland have been destroyed in the past and that there is only a relatively small portion of such woodland remaining within the Brisbane City area is of some importance in a conservation sense, particularly when related to the Boondall melaleuca woodlands and those areas further north near the vicinity of the Pine Rivers. I am satisfied that, in itself, the subject land plays a part or -- 14 of 62 -- 13 role as a network of such woodland areas, and that the proposed rezoning and subsequent development would be likely to cause some ecological degradation thereto. Its significance in relation to bird species is perhaps mitigated by the existence of the third lagoon which would provide a range of habitats suitable for various species. The difficulties in categorising defined areas of the site in relation to specific vegetation types carries over, in my view, to its assessment of conservation values dependent on the relevant specific areas. In determining a conservation value of the subject site, I prefer the view that is more appropriate to look at the subject land as a whole and not at various relatively small parts of the whole. The absence of details of specific and appropriate field work in relation to many aspects of the environment does not detract, in any substantial way, from the evidence given by the various experts called on behalf of the appellant, Queensland Conservation Council. The evidence given by Mrs. Snelling and Mr. Bennett does not, in my view, have the specific qualities or expertise in various specialised areas as those witnesses called on behalf of that appellant. However, this does not mean that those witnesses honestly and sincerely did not hold the views that each expressed. A number of aspects of that appellant's case on environmental issues were not seriously disputed by Mrs. Snelling and/or Mr. Bennett. An examination of the evidence indicates that there was not substantial variation between that evidence called for that appellant and that for the respondent by election, save in relation to the approach adopted by Mr. -- 15 of 62 -- 14 Bennett to an analytical analysis of the subject land as to each vegetation type and his consequential classification of varying degrees of conservation value for specific parcels of the subject land. I am satisfied that the subject land contains a relatively large area (approximately 50 hectares) of melaleuca woodland/wetland. In itself, it constitutes an important environmental resource and constitutes a significant environmental ecological system for many and diverse populations of various fauna, flora and birds. From a local perspective, it would constitute a loss of environment and, to a limited extent, in the broader regional perspective, a much less serious loss to the environment. It is against this assessment that the Court must weigh the environmental issues as against other relevant considerations. The intent of the Future Urban Zone recognises that land within that zone is expected to be able to be developed for normal suburban development at some time in the future. The zone provides a reserve of land to be used for this purpose as services become available. The predominant form of development in this zone will be for detached houses. The uses usually associated with detached house development are allowed in this zone subject to the consent of the respondent. It is intended that development which would affect the amenity of future residential development will not be allowed. The ultimate intention of the Future Urban Zone is to facilitate the availability of an adequate supply of land for residential and associated purposes. The intent of the zone is reflected in the -- 16 of 62 -- I{ 15 Table of Development where the extent of prohibited development under Column Vis extensive whereas the permitted development under Column III is limited significantly. Under the Structure Plan for the City of Brisbane, the urban fabric classification represents that part of the city presently developed or intended to be developed for urban purposes either residential or non- residential. In the balancing process, regard should be had to the fact that the land is privately owned and is zoned and has been zoned for some time as Future Urban wherein land is intended for normal suburban development at some time in the future. The owner of the subject land has a right to put the land to any lawful purpose within the provisions of the Town Plan. In those circumstances it is difficult to imagine any form of development that would not have some disruptive effect on the existing environment. Whilst the land is privately owned it is not reasonable to require that private owner to abstain from using it for some purpose in accordance with its zoning so that the environment is not prejudiced. Although the proposed rezoning would permit a more intensive form of development than that permitted or permissible under the existing zone, the prejudice to the environment may not significantly differ. It is relevant that since the 1978 Town Plan, there has been no steps taken by the responsible Planning Authority or by the overall Planning Authority to change the zone of the subject land or to otherwise so act as to protect or preserve the land in its existing condition and character. The actions of the respondent during two Town Plans (1978 and 1987) in failing to recognise by -- 17 of 62 -- 16 an appropriate zone the environmental value of the subject land is indicative that public or community interest do not require conservation of that particular environment. The fact that the majority of the land is zoned Future Urban is indicative that the responsible planning authorities considered that community or public interest did not require the existing character of the land to be retained. The decision of the respondent proposing to approve the application is a further indication that it, as the responsible planning authority for the locality, did not regard the retention of the existing character of the subject land as determinative of the application. Under the 1987 Town Plan that part of the land zoned Future Urban could be developed as of right with detached housing within the provisions of the Town Plan. The subject land presently consists of land of varying areas held under five separate titles. In the Future Urban Zone, the minimum lot size is 4 hectares. Having regard to the zoning of the subject land, the reasonable expectations of the public would include that the land could be developed in its present state for detached housing or that it is likely in the future to be developed for normal suburban development in accordance with the intent of the Future Urban Zone. The fact that no steps have been taken to either acquire the land or otherwise deal with the land which would result in its being in public ownership is further indicative that the reasonable expectations of the public would envisage the development of the land for some,lawful purpose. Evidence on environmental issues was led from a number of local residents, some supporting and some opposing the -- 18 of 62 -- application. not in doubt. 17 The sincerity and genuineness of each witness is That evidence indicates that, as may be expected, there exists within the local community a diversity of views including views relative to the environmental significance of the subject land. The land was seen as a very ugly, bare bushland whilst it was otherwise described as a wildlife reserve or park. In so far as that evidence may be regarded as evidence of community attitudes, it does not establish any specific community attitude relative to environmental issues. As the statutory right is to object to an application and there is no similar right to support an application, the value of objections duly lodged with the respondent to establish community attitudes is not significant. Further, the weight to be given to the objections is lessened by reason of the large proportion of pro forma objections. The town planning evidence as distinct from evidence of expert witnesses in the various disciplines relating to the environment generally accepted that the Future Urban Zoning is indicative that the planning authority for the area intended the land to be developed for some purpose and that it would not be reasonable to expect the owner thereof to keep the land in its existing state. The subject land, in its existing zone, may be developed for certain purposes under and pursuant to Columns 1 and 3 of the Table of Zones. Detached house is permitted development in the Future Urban Zone. Although the costs of that form of development may be substantial, the subject land I am satisfied cannot be said to be rendered sterile if the rezoning is not approved. Similar land on the western side of the Gateway -- 19 of 62 -- 18 Arterial has been developed for a school, which form of development is permissible development in the Future Urban Zone. The matter before the Court in relation to the subject application is whether the appellant who bears an onus of proof has satisfied the Court that its objection should be upheld and the appeal dismissed. In accepting that the onus is upon the appellant, the question arises as to whether the evidence establishes that the deleterious effect that the proposed rezoning will have on the environment is such that the objection to the rezoning on environmental grounds should be upheld. In assessing the weight to be given to the various aspects, the Court is obliged to accept the existing zoning of the subject land. It is a misconception of the duty and obligation of the Court to propound that the subject land should be in public ownership or should otherwise be protected so that it may be preserved in its existing character and condition. It is significant that the land is privately owned and is zoned in a manner as accepted by the various town planning witnesses which would lead to a reasonable expectation that it would be developed for some purpose. Accepting, in general, the abundance of the environmental evidence adduced by and on behalf of Queensland Conservation Council for the purposes hereof, I am not persuaded that such evidence is sufficient to warrant refusal of the application on environmental grounds. The balancing of the various interests significantly lies adverse to the retention of the subject land in its existing character and condition. The . fact that the relevant planning authority has, in the 1978 and 1987 Town Plans zoned the majority of the subject land Future -- 20 of 62 -- 19 Urban, and that it has not, since the Bushland study, taken any steps to acquire or otherwise deal with the land, are factors that persuade me that the conservation value is not of such significance as would warrant the refusal of the application or the upholding of the objections on environmental grounds raised on behalf of the appellant, Queensland Conservation Council. That the respondent on a consideration of the application, the objections, the Bushland Study and all other relevant purposes proposed to approve the application is further indicative that the local planning authority, at the date of its decision, did not regard the environmental value of the subject land in itself was such that the rezoning should be refused. Under s.B(S)(c) of the Act, the respondent, and on appeal, the Court, is obliged to consider whether the inclusion of the subject land in the zones in which the land is proposed to be included would be in accord with or conflict with the general planning intentions of the Town Plan. The Town Plan comprises, in Volume 1, a set of planning objectives which guide the more detailed aspects of the Plan and a Structure Plan of the City which reflects these planning objectives and identifies areas for new development and the Council's policy that provide for that development. Volume 2 of the Town Plan includes Part B, supporting data. The Town Plan comprising the many elements thereof is directed towards guiding investors, developers and residents to those parts of the City which the Council has identified as being appropriate for particular types of development. The emphasis is upon providing guidance for the development industry so that community benefits -- 21 of 62 -- 20 are maximised and will be upon promotion persuasion rather than regulation. The Structure Plan draws together the major concepts of the aims outlined in the Strategic Plan so far as they relate to the overall structure of the City. The Structure Plan, though broadly based, expresses the strategies developed in the strategic Plan and provides a reference to the future growth and development of the City. The Structure Plan is an outline plan or framework for the future development of the City and defines the areas in which future growth will take place. It is not a cadastral document but a conceptual framework within which the statutory controls are intended to operate and against which development proposals will be assessed. The principal concepts embodied in the Structure Plan are set out Clause 3.3. Concept 2 provides: "The concentration and promotion of other commercial and retail development in the major Regional Business Centres and at other major suburban locations." The Structure Plan identifies a series of important elements. These are comprised of ... Regional Business Centres being those parts of the City which contain areas identified as being suitable for development as major commercial and retailing centres with a significant employment base. Such development could also include personal services, entertainment and community services: Major Suburban Centres represent those locations wherein there exist retailing facilities which, due to their size and accessibility, contain facilities which will attract consumers from a relatively large catchment area. These centres also generally contain some personal services and community -- 22 of 62 -- 21 facilities: Suburban Centres represent those locations containing retail facilities sufficient in size to attract consumers from a wider area than the adjacent suburban area. Major Shopping Centres outside B_risbane City boundary represent major retailing facilities which have an ability to attract consumers from within the City area to such centres. In addition to the text, Figure 3.1 identifies the Structure Plan. The Structure Plan has marked thereon as identified by the legend so far as is relevant hereto Regional Business Centres, Major Suburban Centres, Suburban Centres and Major Shopping Centres outside Brisbane City boundary. In addition, the Structure Plan has marked thereon proposed roads. The Structure Plan identifies those areas which are described as urban fabric and non-urban fabric. Urban fabric represents that part of the City presently developed or intended to be developed for urban purposes, either residential or non-residential. Included within this category are certain areas intended for rural residential development. Non-urban fabric represents those parts of the City where it is intended that generally the form of development should be low density. It includes areas susceptible to flooding, water supply catchment areas, steep land, and land intended as major recreational resources for the City. It was submitted on behalf of the respondent by election that the Structure Plan was not a forward planning document in that in relation to Regional Business Centres, Major Suburban Centres, Suburban Centres and Major Shopping Centres outside Brisbane City boundary, Figure 3.1 reflects only existing development other than in relation to Boondall which is shown as -- 23 of 62 -- 22 a Suburban Centre. It was further submitted that the text of the Structure Plan, s. 3, was further indicative that the document was not a forward planning document of the respondent because of references therein to Major Suburban Centres as representing those locations where there exist retail facilities ... and, in relation to Suburban Centres which represent those locations containing retailing facilities. The fact that the markings on Figure 3.1, other than for Boondall, do in fact represent existing development, does not of necessity imply that the document is not a forward planning document. A consideration of the whole of the text and other associated parts of the Town Plan are to be regarded in order to determine the meaning and nature of the Structure Plan. Boondall, because of the special circumstances, ought to be disregarded. It was part of the unsuccessful bid by Brisbane City for the Olympic Games. Under Clause 3. 2 the Structure Plan is said to be an outline plan or framework for the future development of the City and defines the area in which future growth will take place. The reference in concept 2 to the concentration and promotion of other commercial and retail development in the Major Regional Business Centres is indicative that further commercial and retail development is envisaged. The inclusion on Figure 3. 1 of proposed roads is indicative of the fact that the Structure Plan is seen as a document which does not reflect the current situation but looks towards future development. In addition, the indication of the urban fabric and non-urban fabric areas of the City is a further indication of the forward planning nature of -- 24 of 62 -- 23 the document. The provision within the Regional Business Centres wherein reference is made to areas identified as being suitable for development as major commercial and retailing centres is further indicative of the forward planning nature of the Structure Plan. I am satisfied that the proper construction of the Structure Plan establishes that it is a forward planning document. The Strategic Plan is a statement of planning intent to achieve the goal of providing for the needs of the citizens of Brisbane within the broad context of its overall sphere of influence. The aims of the Strategic Plan considered in conjunction with the existing structure of the City and the objectives and intent of the zones are reflected in the Structure Plan Maps. As the Structure Plan draws together the major concepts of the aims and objectives of the Strategic Plan, the assessment of the application in relation to the Strategic Plan is significant. It is the Strategic Plan, in broad terms, which indicates the planning strategies which the Local Authority sees as preferable for the future development of its area. The aims and objectives as set out in the Strategic Plan ought to be considered in broad general principles when assessing an application. The strategic Plan is but part of the Town Plan and is to be considered as part of the planning strategies of the respondent. The Strategic Plan plays a significant part in relation to the forward planning of the City of Brisbane and is a relevant matter to consider in relation to the expectations of people as to the manner in which land may be used within the Local Authori~y area. -- 25 of 62 -- 24 Whilst the Strategic Plan contains a number of aims, the weight to be given to any aim to a significant extent will depend on the relevance and the materiality of the particular aim and the objectives of the aim. Some of the aims and the objectives may be more relevant when considering an application that concerns retailing than on an application relating to the establishment of accommodation facilities. The provisions of the strategic Plan are inter-related with those of the Structure Plan and the contents thereof. The Structure Plan, Figure 3.1, gives diagrammatic expression to the intentions contained in the Strategic Plan. In order to assess the subject application, the nature and character of the proposed development on that area of land proposed to be rezoned Particular Development (Shopping Centre) Zone should be analysed. The Structure Plan and the Town Plan provides for a hierarchy of centres. Those indicated on the Structure Plan descend in order of importance from the Central Business District, Regional Business Centre, Major Suburban Centres and Suburban Centres. Any lower order of centre is not reflected within the legend on the Structure Plan. The four Regional Business Centres identified on the Structure-Plan are located at Chermside, Indooroopilly, Upper Mt. Gravatt and Carindale. Section 10.3.2 of the Schedule to the Town Plan sets out the intent of Regional Business Centres. In s.6 of Part B, Volume 2 supporting information to the Town Plan, the function of the Regional Business Centres is stated therein. The supporting data in Clause 6.3 refers to the two levels of centres being Suburban Centre and Major Suburban Centre, each of which -- 26 of 62 -- 25 will have certain characteristics. It therein provides that the Structure Plan does not indicate proposed sites for future Suburban Centres. Applications for the development of new such centres will be considered on their merit in accordance with Council policies. While there were some differences expressed by some of the planning witnesses in relation to the town planning consideration that was placed on such provision I am satisfied on a legal construction the reference to such centres as occurs therein is related back to Suburban Centres. The fact that the Town Plan therein expressly acknowledges that applications for the development of Suburban Centres will be considered on their merits in accordance with Council policies does not deprive the Local Authority of its obligation to consider any application, whether it be for a Suburban Centre or any other form of development, on its merits. I do not accept that there is an inference that ought to be applied therein that applications for other than Suburban Centres will not be entertained by the respondent. The City of Brisbane Town Planning Act gives a right to apply for a rezoning of land for any purpose and a right to apply to use land, appropriately zoned, for a purpose which is permissible within that zone. Town planning evidence was given by a number of expert and competent consultant town planners in addition to professional staff employed by the respondent, the Council of the Shire of Pine Rivers, Redcliffe City Council and Caboolture Shire Council. Various opinions were expressed as to function and character of the proposed development in relation to the hierarchy as set out in the Structure Plan and Town Plan. Accepting the hierarchy as -- 27 of 62 -- 26 defined, the relevant classifications are either Regional Business Centre or Major Suburban Centre. Outside of the hierarchy as therein set out, reference was made to the proposal as being a sub-regional shopping centre. Whilst possibly there is little consequences that may flow whether the proposed development is said to be a Regional Business Centre or a Major Suburban Centre, some significance does, in my view, attach to a proper determination of the function and character of the proposed development. When considering the function and character of the proposed development, relevant considerations include the size of the proposed centre; the size of the area proposed to be zoned Particular Development (Shopping Centre); the nature of the facilities proposed to be contained within the development; the provision of a substantial component of office space; provision of entertainment facilities; community facilities; and the leisure theme which is undoubtedly aimed at drawing patronage from a wide area of the City of Brisbane. The retail facilities proposed included a department store and two discount department stores. The department store is intended to draw from a very wide catchment area and is generally regarded as a significant indication that a proposal containing a department store has a regional function. The provision of a not insignificant area for commercial development is further indicative that the proposed development will function as a Business Centre and is not limited to a shopping or retail development. The provision of entertainment facilities and community facilities are further indicative of the likely catchment area of the proposed development extending to regional -- 28 of 62 -- 27 significance. In the economic impact assessment accompanying the application, the proposal is described as a proposed Regional Centre and a Regional Shopping Centre. In the introductory statement by Philip G. Breene which accompanied the application, there is a reference therein to a Major Regional Shopping Centre and Regional Shopping Centre. Accepting the relevance of those various aspects as to the proper classification of the proposed development, I am satisfied that the proposed development within the provisions of the Structure Plan and Town Plan ought be regarded as a Regional Business Centre. In the northern part of the City, a Regional Business Centre is identified on Figure 3.1 in the location of Chermside (the Structure Plan is not a cadastral document) and is so described in the text in the Town Plan as being located at Chermside. Major Suburban Centres are identified at Toombul and Aspley. Whilst the Structure Plan makes provision for a range of centres in the northern part of Brisbane, it also recognises the existence of a Major Shopping Centre outside the Brisbane City boundary, namely at Strathpine. In so doing, the Structure Plan identifies the hierarchy of centres proposed and the relative location of those centres within the life of the Town Plan. No centre of any category identified on the Structure Plan is designated at the subject site. To the extent that no such centre is so designated, the proposed development is inconsistent with the Structure Plan. The Structure Plan is intended to show the inter- relationship between the desirable future urban development and -- 29 of 62 -- 28 the public and private transport systems. In s.6 of Part B of the Town Plan express reference is made to the provision for new suburban centres. I do not consider that, on a proper interpretation, such express reference to Suburban Centres prohibits applications being made and properly considered on their merits in relation to a centre other than a suburban centre on a site not identified on the Structure Plan. Undoubtedly, on a consideration on the merits of such an application, it is of relevance and probably of significant importance that the proposed site is not identified for such form of development on the Structure Plan. The proposed development, on that basis, is inconsistent with the hierarchy of centres proposed in the Structure Plan and is not in conformity with the provisions thereof. On the basis that the Structure Plan is a forward planning document, the proposal is, to that extent, inconsistent with the planning intent of the respondent as set out in the Structure Plan. Although the Structure Plan as a forward planning document of the respondent does not, in this location, or at all on the Structure Plan show, other than existing development, it is, I am satisfied, consistent with the planning intent that future development occur in such locations in preference to new centres being developed at sites other than those identified on the Structure Plan. The force of that argument is confirmed when regard is had to certain provisions of the Strategic Plan particularly those aims and objectives which relate to the rational and ordered grouping of retailing and commercial activities into an appropriate range of centres of various functional and/or size categories to facilitate the -- 30 of 62 -- 29 provision of a wide diversity of retail and commercial services. The concept of the grouping of commercial facilities in proximity to retail facilities which do not require a central business district location is to be achieved by encouraging the development of the Regional Business Centres. The grouping of retail and commercial activities into an appropriate range of centres is seen as one of the aims to be achieved under the Strategic Plan. Other aims and objectives seek such things as high levels of mobility, convenience and accessibility. In considering the aims and objectives relative to convenience and accessibility, it is relevant to consider the function of the proposed development in that context. The proposed development is intended to function on a regional basis and, in those circumstances, the issue of convenience and accessibility ought properly to be directed having regard to that wider catchment area. It is inappropriate in those circumstances to consider solely on the question of accessibility and convenience only those persons who fall within the primary trade or catchment area. The proposal is intended to serve a much wider area and a consideration of the accessibility and convenience of those persons within that wider catchment are relevant. The existing Regional Business Centre at Cherrnside and the Major Suburban Centres at Aspley and Toombul presently provide a significant degree of convenience and accessibility for various persons within the catchment area within which the proposed development would trade. The catchment area of the proposed development is seen by witnesses called on behalf of the respondent by election, -- 31 of 62 -- 30 particularly Mr. Todd, to encompass areas within the City of Redcliffe and the Caboolture Shire. In addition to functioning as a Regional Business Centre, the proposed development will in various areas function at a lower order of centre. The Structure Plan, Figure 3.1, identifies Sandgate as a Suburban Centre. A suburban centre is described as a location containing retail facilities sufficient in size to attract consumers from a wider area than the adjacent suburban areas. The Sandgate suburban centre is not intended, under the Town Plan, to decrease in .status but is seen on the forward planning as exhibited in the Structure Plan, as a suburban centre. It is intended that the Sandgate centre would be a part of the balance of the availability of shopping centres between localities, types and sizes. The Strategic Plan further envisages the promotion of Suburban Centres. In promoting the urban structure, the Strategic Plan seeks to provide a high level of accessibility and convenience between residential areas and centres providing retail, commercial and professional services. That is to be achieved by encouraging the grouping of retail, commercial and community facilities. Evidence has been given of attempts being made by local community and interest groups to confirm and enhance Sandgate status as a suburban centre. The provision of a Regional Business Centre in such close proximity to the suburban centre at Sandgate I am satisfied would not result in an orderly grouping of retail and commercial activities into an appropriate range of centres. The establishment of the proposal would not result in a grouping of retail and commercial activities which -- 32 of 62 -- 31 could properly be described as orderly having regard to the future planning intents of the respondent as exhibited in the Structure Plan. A perusal of the Town Plan is indicative that the promotion of the four Regional Business Centres is seen as a fundamental element of the planning strategies of the respondent. Accepting that the promotion of the four Regional Business Centres as identified within the Town Plan and the Structure Plan, there is nevertheless no prohibition contained within the planning documents of the respondent to prevent the establishment of further Regional Business Centres. Considerable difficulties were experienced by the various town planning witnesses as to the effect that should be given to the Structure Plan, Figure 3.1, in relation to an application for the establishment of a regional business centre or a major suburban centre. Such opinions as were expressed related undoubtedly to a town planning approach. •1 In my view, the proper legal approach is clear. There is a statutory right given to a person to make an application for either a change of zone or, where appropriate, development for a purpose which would be permissible within a particular zone. On such an application, the respondent has a discretion to exercise as to whether the application should be approved, approved subject to reasonable and relevant conditions or refused. It is in the exercise of that discretion that weight ought to be given to the provisions of the Town Plan and Structure Plan which relate to the location of Regional Business Centres within the City of Brisbane. The weight that ought to be given to such matters will depend upon the particular facts -- 33 of 62 -- 32 and circumstances of each application that is under consideration and is being assessed. If the evidence establishes that there is a significant need in the planning sense and that there are other factors which are of sufficient weight and consideration that the application should be approved, then there is at law, in my view, no objection to such an application being approved. However, in considering such an application, the respondent is obliged to have regard to the provisions of the Town Plan, the Structure Plan and other relevant planning documents. In considering a major form of development, the planning intents and strategies of the respondent as exhibited in the Town Plan, Structure Plan and other planning documents are of particular importance. The importance of the Structure Plan and the Town Plan are indicative that, during the currency of the existing Town Plan, the respondent seeks to promote the four named Regional Business Centres. The significance of strategic planning, particularly on rezoning applications, has been recognised by the Court on many occasions. Since the forward planning documents of a Local Authority are indicative of the intent of a planning authority as to the future preferred form of development that it sees for its Local Authority area, considerable weight ought to be given to the provisions of forward planning documents of a Local Authority. The Strategic Plan further seeks a diversity of retail facilities which is to be achieved by promoting a balanced distribution of shopping centres of different types and sizes. -- 34 of 62 -- 33 Whilst the proposed development is some distance removed from the existing Regional Business Centre at Chermside and from the Major Suburban Centres at Aspley and Toombul, its sphere of influence or catchment area on the basis of a Regional Shopping Centre would extend, to a significant extent, to the catchment areas or substantial parts thereof of each existing centre. Evidence was led as to the steps which have been taken in relation to the further development of the Chermside Regional Business Centre with the recent addition of significant commercial development at that locality. That development, I am satisfied, conforms with the aims and objectives of the Strategic Plan whereby there is sought to be a concentration at the regional business centre for the provision of higher order services and significant commercial activity. Evidence relating to strategic planning was given by a number of witnesses. Whilst there was not total agreement between the evidence given, that body of evidence called on behalf of the respondent and the appellants substantially conforms to the view that the proposed rezoning and subsequent development would be inconsistent and contrary to the provisions of the Structure Plan and the Town Plan for the City of Brisbane. Mr. Todd, in his report, Exhibit 38, relied significantly on a document which was entitled "The Brisbane Plan". The document is not part of the planning documents of the respondent, nor has it been adopted by the respondent as policy or in any planning manner. The document, in my opinion, should be given no weight in those circumstances. It is a discussion paper prepared by the Brisbane City Council and has no other standing. -- 35 of 62 -- 34 The author of the document was not called to give evidence. In so far as certain witnesses agreed with certain statements contained in the document, I accept that evidence as being evidence as to the views of the various witnesses, and in no way of any assistance in relation to the weight to be given to the document itself. Mr. Todd agreed that it was inconsistent with the Town Plan to establish a new Regional Business Centre on the site. He was of the view that a major shopping centre could be so established to meet a need for future residential growth in the locality having regard to the extent of future urban zoned land therein. He acknowledged that the Structure Plan could be read as encouraging the maintenance of Sandgate' s role as a suburban centre within the hierarchy as set out in the Town Plan. His approach in relation to the Structure Plan is one which I am satisfied is not proper or preferable to adopt. The Structure Plan is a forward planning document of the respondent whereby the respondent seeks to establish a framework for the future development of the City within the time frame of the Town Plan. Mr. d'Oliveyra, an experienced town planning consultant, was of the view that the proposed development would not compromise the current strategic planning initiatives which apply and effect the region. He saw that there should be scope to accommodate such a proposal within the strategic planning framework. In his view, the proposal, though not contemplated during the preparation of the Strategic Plan, would not compromise the aims and preferred dominant land use as specified therein. He saw the proposal as not being discordant with the Strategic Plan and Structure Plan. To a substantial extent, he relied on the report -- 36 of 62 -- 35 of Mr. Todd, the findings of Professor Kiel in relation to economic impact and associated matters and the attitudinal responses to a survey. The omission in his report to the concept of consolidation leads to a conclusion that the weight to be attached to the view therein expressed is not significant. His oral evidence in relation thereto was not convincing. I prefer the approach adopted by Mr. Challoner, Mr. Brown and Mr. Feros in relation to the assessment of the strategic planning issue. The recognition by each of the provisions of the Structure Plan and the significant part that such document plays in the determination of the future pattern of development was important. In addition, each gave significant weight to the provisions of the Strategic Plan which relate to the orderly grouping of retail facilities. Whilst recognising that there is no express prohibition in the Town Plan for a new major suburban centre or reasonable business centre at a location not designated on the Structure Plan, each saw the planning documents as in effect constituting very strong reasons in a town planning sense why the application should not be approved. Mr. Challoner saw the Structure Plan and the Town Plan as providing a clear indication as to the intent of the respondent in relation to the development of Regional Business Centres and Major Suburban Centres. He saw the growth of such centres as being matters of importance to the respondent as reflected in the Structure Plan and Town Plan. He drew the distinction between the provision of higher order centres, Regional Business Centres and Major Suburban Centres, and other centres of a lower order. In his view, the proposed development was a Regional Business Centre, -- 37 of 62 -- 36 it having a significant office component. As such, the location of a Regional Business Centre at a location not shown on the Structure Map, was indicative that the respondent did not consider that such a centre should be permitted to develop at that location. He further saw the proposal as being in conflict with and likely to undermine the functioning of Sandgate as a suburban centre. The Structure Plan, in his view, seeks to promote Sandgate as a suburban centre and the establishment of the proposed development a relatively short distance therefrom would curtail the development of the Sandgate centre as a suburban centre and would be in conflict with the Structure Plan. Mr. Feros arrived at a similar view in relation to the strategic planning assessment of the application. He saw the provision of commercial space associated with the proposed development as contrary to the strategic planning intention of the respondent in relation to the development of the Chermside Regional Business Centre and the major suburban centres at Toombul and Aspley. On that town planning evidence which I prefer, I am satisfied that the proposed rezoning and subsequent development for the purpose as proposed would be significantly in conflict with the strategic planning of the respondent as exhibited in the Structure Plan, Strategic Plan and Town Plan. On the evidence as presented on behalf of the respondent by election, the catchment area of the proposed development will include the whole of the City of Redcliffe; a substantial portion of the Shire of Pine Rivers and part of the Shire of Caboolture. ' 1 -- 38 of 62 -- 37 As the sphere of influence of the proposed development will extend into such areas, it is appropriate that regard be had to the provisions of the town planning schemes for those Shires and the City of Redcliffe for the purposes of assessing whether the application should be approved. The Town Plan for the City of Brisbane expressly recognises its relationship with adjoining areas in neighbouring localities with particular reference in so far as is relevant to the reference on the Structure Plan to the Major Shopping Centre outside Brisbane City in the northern sector. That centre is identified on the Structure Plan, Figure 3 .1, as Strathpine. Within s.3.3 of the Structure Plan, that centre represents major retailing facilities which have an ability to attract consumers from within the City area to such centres. The Town Planning Scheme for Pine Rivers, which includes a Strategic Plan, was proclaimed on the 14th May, 1988. It expressly states that, in preparing the Strategic Plan, Council has also considered the planning being undertaken by Local Authorities that have a common boundary with the Shire. One of the objectives of the Strategic Plan is to promote consolidation within each of the three levels of the hierarchy of shopping/ commercial centres within the Shire. There are a number of references throughout the planning documents for the Shire of Pine Rivers where there is recognition of existing and/or proposed development in other areas particularly in Brisbane and Redcliffe. Part B of the Pine Rivers Strategic Plan (Exhibit 11) specifically addresses the possibility of the provision of sub- regional retail floor space, not only in the City of Brisbane, -- 39 of 62 -- 38 but also in Redcliffe City as being relevant considerations in the formation of the Strategic Plan. The Strathpine/Lawnton Development Control Plan (Exhibit 12) not only considers the possibility of sub-regional floor space being provided outside of the Shire of Pine Rivers but, to an extent, bases its planning and flexibility upon such possibility. In particular, Exhibit 12, considers possible developments at Rothwell ( in the Redcliffe City) and at Bald Hills (within Brisbane City) as having some medium to long term effects in relation to the provision of sub- regional retail facilities in the Strathpine/Lawnton area. In addition to the references found within the planning documents of the Pine Rivers Shire, Mr. McGrath, the shire planner, gave evidence of consultations that had occurred at or about the time of preparation of the relevant documents with officers of Brisbane City Council with reference to the development of regional and sub-regional facilities. The Town Planning Scheme for the City of Redcliffe and its Strategic Plan adopt a hierarchy for retail development. The Redcliffe Strategic Plan seeks to encourage the consolidation and maximum utilisation of existing shopping and commercial facilities and a strengthening of the revitalisation of the economic base of the existing commercial areas at Scarborough, Redcliffe and Woody Point. The Town Planning Scheme for the Shire of Caboolture and its Strategic Plan seeks to promote the provision of higher order retail commercial facilities within the Shire of Cabool ture. Objective 1 of the Strategic Plan provides for the encouragement of consolidation and expansion of existing Major Commercial and -- 40 of 62 -- 39 Business Areas within the Shire. The Central Business Area of Caboolture is seen as the Administrative, Business and Commercial Centre of the Shire. The maintenance of this position is to be encouraged to ensure that a business centre of regional significance is retained in the Shire to serve the Shire's population. Objective 4 is to permit, where justified, the establishment of sub-regional and district facilities in locations of higher access convenience where such facilities are considered complementary to the existing principal business centres. An analysis of the relevant town planning schemes indicate that each of the planning documents adopt a similar approach in that each Local Authority seeks to identify appropriate locations for retail facilities within its area and to promote the establishment of a hierarchy with consolidation and expansion of the major facilities. Whilst the terminology in the various town planning schemes and the Strategic Plans is not consistent, such planning documents are evident of proposals in relation to the establishment and consolidation of higher order shopping/commercial centres within each relevant Local Authority area. The planning documents of the Council of the Shire of Pine Rivers, particularly the Strathpine/Lawnton Development Control Plan, further reinforces the promotion of the consolidation of retailing and associated commercial development in the Strathpine Business Area which, it is stated, is intended to be a sub- regional facility and the Major Retail and Commercial Centre in the Shire. It is also recognised therein that the retail -- 41 of 62 -- 40 facilities within the Strathpine Business Area serve a catchment extending into Brisbane City, Redcliffe City and Caboolture Shire. The Strategic Plan for the City of Redcliffe recognises the establishment of a range and distribution of shopping and commercial facilities sufficient in size and function to serve the public. It specifically identifies the Kippa-Ring area as a location for consolidation and maximum utilisation for commercial and shopping purposes. It is the only sub-regional centre within the boundary of the City as indicated on the Strategic Plan. Whilst there is no statutory regional planning within the State of Queensland, I am satisfied that the relevant Local Authorities herein have had some regard to the strategic planning which has occurred in Local Authority areas with which each has a common border. The relevance in making an assessment in relation to the subject application having regard to the strategic planning of the Local Authority areas of Pine Rivers, Redcliffe and Caboolture was accepted by all town planning witnesses. The evidence of Mr. McGrath was to a significant extent directed towards matters associated with the proposed development and the relationship between it and_ the planning documents of the Shire of Pine Rivers. He was of the view that the proposed development would severely compromise the strategic planning of the Council of the Shire of Pine Rivers and not only adversely af feet the planning in relation to the existing Strathpine Business Centre area but would adversely affect and impact significantly upon proposals of the Council in relation to the -- 42 of 62 -- 41 development of Kallangur in the long term as a sub-regional centre. I prefer the approach taken by Mr. McGrath in relation to the effect the proposed development is likely to have on the strategic planning of the Council of the Shire of Pine Rivers in relation to the Strathpine Business Area and the proposed sub- regional facility at Kallangur. As the Court in Mustercliff Pty. Ltd. v. Brisbane City Council & Ors (unreported 7th March 1991) has set out in some detail the relevant provisions of the planning documents of the Council of the Shire of Pine Rivers, I do not think it necessary to repeat those provisions herein. The principles considered by the Court therein are substantially the same as those that are raised on the hearing of this appeal. Counsel for the respondent by election sought to distinguish that case on the basis that the subject land is further removed from the Strathpine Business Area and other existing centres than was the Bald Hills site. It was :,-, 11 submitted the significance of the much greater separation 1,l,,_il distance was that it was sufficiently far away not to have an adverse impact on to the consolidation and reinforcement of the Strathpine Business Area. Further differences which were submitted distinguished the case and the proposal herein include the area of the land ( the Bald Hills site was 14 hectares); traffic concerns and the failure in the Mustercliff case to establish public or community need. Whilst the facts in the two cases may be different, I do not consider that the distance separation is of significance when one has regard to the comparable nature of the proposed developments. The Bald Hills site was for a proposal which had one discount -- 43 of 62 -- 42 department store whereas the subject application is proposed to have one department store and two discount department stores. In such circumstances, the catchment area of the subject site is significantly larger than that of the Bald Hills proposal and, accordingly, the distance separation is not of such relevant significance in relation to the function of the proposed development. The fact that the subject land has an area of approximately 60 hectares as compared to an area of 14 hectares for the Bald Hills site is not a distinguishing factor, having regard to the function of each proposed development. The proposed rezoning and subsequent development, I am satisfied, will impact adversely on the Strathpine Business Area and is likely to prejudice the implementation of the planning proposals of the Council of the Shire of Pine Rivers in relation to the future development of Kallangur as a sub-regional facility. The case for the respondent by election accepts that the growth areas within its catchment are to the north and north- west being areas substantially within the Shire of Pine Rivers. Those areas are in close proximity to Kallangur and would, I am satisfied on the evidence of Mr. McGrath, be better served by the provision of retail facilities in that location. Similarly accepting that part of the catchment area of the proposed development will include the whole of the City of Redcliffe, I pref er the evidence of Mr. Kay, the town planner for the Redcliffe City Council, that the proposed rezoning and subsequent development would be likely to prejudice the implementation by Redcliffe City of its planning intentions in relation to the development of the Kippa-Ring commercial and shopping centre as -- 44 of 62 -- 43 a sub-regional facility. Evidence of the consolidation and implementation of the planning objectives of Redcliffe City Council in relation thereto is demonstrated by the recent redevelopment of Peninsula Fair Centre. The proposed rezoning and subsequent development will further prejudice the objectives expressed in the Strategic Plan which seeks to encourage consolidation and revitalisation of the existing retail and commercial centres. The area in the vicinity of Deception Bay, which is within the Shire of Caboolture is included in the catchment area of the proposal. I do not consider that the planning documents of that Shire which encourages the promotion of a centre of regional significance within the Shire being located at Caboolture will be likely to be significantly prejudiced by the proposed rezoning and subsequent development because of the distance separation between the subject site and Caboolture. The population of the Shire and its projections are such that the Shire would not be capable of supporting a department store led development within the medium or longer time frame than is envisaged under its Strategic Plan. At the present time, the residents of the Shire of Caboolture are all required to find their department store requirements outside of the Local Authority area and the proposed rezoning and subsequent development would not alter that situation. The proposed development is not materially more conveniently located to residents of the Shire of Caboolture than is the existing Regional Business Centre at Strathpine. However, the proposal would undoubtedly in the longer term be likely to prejudice the development of higher order retail facilities -- 45 of 62 -- 44 within the Shire of Caboolture. The impacts that would •be occasioned by the proposed development are not of sufficient magnitude as would warrant refusal of the application. It is difficult to see within any reasonably foreseeable time frame, that there is likely to be sufficient population within the Shire of Caboolture which could support higher order retail and commercial premises. It is of significance that in the Structure Plan, Figure 3 .1, Strathpine is shown as a Major Shopping Centre outside Brisbane City boundary which has an ability to attra·ct consumers from within Brisbane. The planning documents of the Shire of Pine Rivers are indicative of the planning intentions and strategies of that Local Authority whereby it sees the position of Strathpine as constituting the Strathpine Business Area as a sub-regional facility. The Strathpine/Lawnton Development Control Plan identifies the Strathpine Business Area as being much more extensive than Westfield Shoppingtown. I am satisfied that the proposed rezoning and subsequent development would be in conflict with the strategic planning of the Brisbane City Council, the Council of the Shire of Pine Rivers and the City of Redcliffe to an unwarranted extent. Apart from the expert town planning evidence, a number of other witnesses have given evidence relevant to the question of need. An analysis of the expert economic witnesses is difficult having regard to the fact that each witness adopted his own methodology and in the majority of instances, different catchment or trade areas were utilised for the purposes of the analysis. Whilst in some limited instances a reasonable degree of agreement -- 46 of 62 -- 45 may be reached, the basis on which such conclusions are arrived cannot in any way be compared with the methodologies adopted by the respective witnesses. The evidence adduced by the appellants through Mr. Jebb, Mr. Booth and Mr. Feros was based on methodologies which are in no way related. Each arrived at a view that there is no need for the proposed development. Mr. Jebb, in general, based his assessment on an empirical nature as to the levels of turnover and percentage market shares achieved by a number of other relatively comparable facilities. Mr. Booth adopted a sophisticated and detailed computer generated model which he has used in his experience and which, in his consideration, produces a most satisfactory result. Mr. Feros based his views significantly on consumer research market survey results and, to some limited extent, by the application of per capita retail floor space standards. The fact that each of such witnesses has for various reasons and utilising independent methodology arrived at a similar conclusion is not in itself sufficient to justify a finding that there is no need. A comparison of the prediction by the various retail analysts called does not give any confidence as to a comparative analysis of the various relevant considerations as population figures, market shares, retail expenditure or proposed turnover from the development vary significantly. A significant difference relates to the catchment or trade area as was analysed by each of the market researchers or retail analysts. The methodology of Mr. Booth is significantly bound up with his modelling process. Whilst significant detailed evidence was led as to the factors associated with the modelling process, the -- 47 of 62 -- 46 process itself justifiably was not available to be tested under cross-examination. In accepting that the methodology has, in the past, proved to be successful, the absence of traditional bases for testing it detracts somewhat from the validity of the opinions that were expressed. The methodology adopted by Mr. Jebb in relation to existing comparable developments provides some element of reality in relation to an exercise which, having regard to the fact that the proposal does not exist, is of assistance in determining probable and likely consequences. However, his approach to the catchment area is one which wants some refinement where part of the Shornclif fe area has been excluded. Whilst there may be a difficulty in selecting an analogous shopping centre for the purpose of the exercise, I am satisfied that the methodology adopted by Mr. Jebb produces the most satisfactory conclusion in all the circumstances. Undoubtedly in the formation of the methodology and its application, value judgments of necessity arise. Whilst there are a number of variables between the proposed development and the Chermside Regional Business Centre, the methodology whereby use is made of known facts within the· confines of the exercise produces a reasonable conclusion. In his view, there is insufficient market potential to support the need for the proposed development. His generation turnover of $56 million I am satisfied is within the border figure which would be insufficient to achieve on an average performance for the proposed development. The use by Mr. Feros of the per capita retail floor space standards is one which in more recent times has not been found -- 48 of 62 -- 47 to be highly persuasive. As a check on some other methodology it may provide some assistance in determining whether a need for a proposal has been established. The use of per capita retail floor space standards other than where such criteria is part of the relevant town planning scheme does not, for many reasons, reflect a true position in relation to the oversupply of retail floor space in that there is no weighting on various developments. The view of Mr. Booth and his approach to such matters is one which is to be preferred. Any question of weighting must, of necessity, involve a value judgment and the validity of apparent statistical information related thereto is not highly persuasive. The in-centre and householder surveys of Mr. Feros are of assistance in establishing a retail expenditure figure in relation to the proposed development. Mr. Norling gave evidence on behalf of the respondent. He adopted a methodology which does not accord with the methodology adopted by the witnesses called for the appellants. Mr. Norling was asked by the respondent to review the Economic Impact Assessment lodged in support of the proposal and provided a report dated September 1990 in relation thereto (Exhibit 111). At that time he expressed the view that there was insufficient need and demand for the proposed development. He was further of the view that the proposal would impact adversely and significantly on existing retail development in the catchment area with Sandgate the centre most likely to be most severely affected. For the purposes of the hearing he prepared a further report (Exhibit 35) and further addenda reports in relation to specific matters raised in general by Professor Kiel who was -- 49 of 62 -- 48 called on behalf of the respondent by election. In his view, as expressed in his recent report, there is an adequate number of regional and sub-regional shopping centres available to the majority of residents of the catchment area. Within 10 minutes driving time from the subject land, there are what he describes as two regional centres and two sub-regional centres and that a third regional centre lies just outside the 10 minute driving time. He saw the population growth as likely to occur mainly within the Pine Rivers Shire and that the subject land was not well positioned to take advantage of the population growth. In his view, the proposed development would impact severely on the Sandgate Central and on Fountain Plaza. Such a loss, in his view, would threaten the status of Sandgate as a District Centre within the Town Plan for the City of Brisbane. Professor Kiel, an experienced market analyst, gave evidence on behalf of the respondent by election. A significant part of his evidence and views were based on a Consumer Research Survey which was undertaken on his behalf. The survey was in the nature of an attitudinal questionnaire directed to people within the proposed catchment area. Based on that survey, his methodology related to determination of market share and projected turnover for the proposed development. Much critic ism was levelled to the survey and, in particular, to the questionnaire as utilised by Professor Kiel for the purposes of his report. The form of the proposal as shown to the respondents to the questionnaire was indicative of a development much more substantive than that as proposed in that the form showed to interviewees was of a development which contained two department stores as against the -- 50 of 62 -- 49 proposal before the Court which related only to one and a larger area of speciality stores than is now proposed. The reference in the questionnaire to Pacific Fair and subsequent questions which are related thereto would be likely to create a potential bias in favour of the proposal. The use of Pacific Fair I do not consider to be a reasonable comparison having regard to its location and the nature, character and form of that development. Pacific Fair is located within the Gold Coast and may be seen as part of a holiday experience whereas the proposed development would be in no way comparable in that regard. Further, the nature of the proposed development as set out in Exhibit 76 is, in my view, in no way comparable to the Pacific Fair development. The use of the Pacific Fair development in an attitudinal questionnaire would not result in an unbiased probable response, and was potentially highly misleading. The floor area is substantially larger than that of the subject proposal and the number of special ty stores far exceed that proposed. The reference to Pacific Fair created a potential whereby responses would have concepts of the Gold Coast and of a development within a tourist context. The potentiality of such bias on an attitudinal survey is one that cannot be sufficiently balanced by any subsequent discounting in relation to the responses given. Of more significance in relation to the questionnaire is the surprisingly high percentage of interviewees who stated in response to Question 1 that there was nothing lacking in terms of facilities, services and amenities available to them locally. A similarly high response was obtained to Question 4 where interviewees were specifically directed to retail facilities -- 51 of 62 -- so which they would like to see provided in their area. The fact that the introduction to the questionnaire seeks the responses from the person in the household who is usually responsible for the majority of the shopping would indicate to the interviewees that shopping or retail was likely to be the matter of enquiry. Although Question 1 did not specifically direct interviewees' attention to retail facilities, only 3% of the primary trade area interviewees referred to a major department store and 14% to a decent shopping centre as being lacking in the area. However, the responses to Question 4 which specifically directed attention to additional or upgraded retail facilities, showed an increase in the number of interviewees in favour of further department stores and supermarket facilities. In the primary trade area, 12% of interviewees favoured a department store and 17% another supermarket. The figures for Redcliffe were higher in relation to a department store but significantly lower in relation to another supermarket. Overall the figures are relatively low in relation to the number of interviewees who were in favour of additional or upgraded retail facilities of a higher order. It is significant that in the highest potential future population growth areas, the percentages in relation to a department store were relatively low. The level of satisfaction with existing shopping facilities was relatively high. A relatively high negative reaction to the proposed development was expr~ssed by those persons in the primary trade area, Redcliffe, Secondary South and Secondary North/West. Having regard to the matters set out above, I find it difficult to place significant confidence on the attitudinal survey utilised by Professor Kiel. With the -- 52 of 62 -- 51 reservations expressed the weight of his written and oral evidence lacks a certain degree of confidence. His utilisation of the material based on the survey leads to that same lack of confidence in the projected market share and turnover figure for the proposed development. The total population in his various trade areas exceed significantly those adopted by Mr. Norling and Mr. Jebb. The inclusion of the south secondary catchment area is difficult to accept having regard to the proximity of that area to existing major retail development and the undoubted sphere of influence that those developments would have. The use of an attitudinal survey, while a legitimate tool, has to be treated with some caution having regard to the nature of the questions asked and the matters associated with the questionnaire. Some discount ought also be effected because of the public perception that something new is seen as desirable in a location. The issue of demand and need do not necessarily correlate in those circumstances. Such a discounting factor is a subjective assessment and lacks objectivity as a measurement of accuracy. The emphasis placed upon the leisure features of the proposed development are not significant in relation to the issue of need on a retail analysis. The proposed development will function in a regional sense and the leisure facilities will have a similar regional context. Such a catchment would exceed the proposed catchment area of the proposed development. Of the various experts who have been called on issues relating to market or retail analysis, I prefer the evidence of Mr. Jebb based it is on actual known facts in respect of existing development. I further prefer Mr. Jebb' s assessments in relation -- 53 of 62 -- 52 to market share and the flow-on of the projected turnover for the proposed development. That turnover is of such an amount as to be insufficient according to Mr. Jebb, which I accept, to support the proposed development. A number of persons expert in the retailing industry gave evidence in relation to the proposed development. Mr. Seyffer, General Manager of Westfield Developments, was of the view that it was more appropriate for further retail facilities to be established at Strathpine or Toombul rather than on the subject land. Westfield has proposals to expand the Westfield Shoppingtown at Strathpine and Toombul Shoppingtown. In his view, if the proposal is approved, it would be necessary to re- examine such proposed extensions. Each of these proposed extensions is within existing major retail developments. The land is appropriately so zoned as would permit of the proposed extensions subject to a conditions application without a change of zone. Mr. Allpass, Controller, Corporate Retail Development Coles Myer Limited, gave evidence on behalf of the appellants in relation to the Coles Myer retailing activities in the area. There are further proposals in relation to extensions at Cherrnside. Coles Myer has no interest in establishing stores at the subject land other than an expression of interest written some time ago relating to a supermarket. In his view the existing and likely future population in the vicinity of the Deagon site is well catered for by the existing shopping facilities at Chermside, Toombul, Strathpine and Kippa-Ring. Mr. Heron, State Manager - Shopping Centres Coles Myer Properties Limited, was of the view that the proposed development did not -- 54 of 62 -- 53 have a sufficient population base within 5 kilometres to support a centre of the size and nature proposed. He further gave evidence in relation to the plans proposed by Coles Myer to expand Chermside. Mr. Anderson, Managing Director, David Jones (Australia) Pty. Ltd., Queensland Division was of the view that the northern suburbs of Brisbane are well catered for with higher order facilities. He saw the proposal as likely to have an adverse impact on the performance of David Jones and the Miser Stores at Toombul and Kippa-Ring. Mr. Sharp, Centre Manager of Peninsula Fair at Kippa-Ring, detailed the nature and extent of the refurbishment and expansion which Peninsula Fair has recently undergone. In his view the proposed development would have a significant impact on Peninsula Fair. Mr. Antcliff, Centre Manager of the Aspley Hypermarket, saw expansion of the Hypermarket likely to occur. In his view, the proposal would provide only a duplication of existing shopping and services within the catchment area. The National Property Manager for Franklins Stores, Mr. Matthews, whilst he saw a possible opening for a discount department store, was of the view that the existing facilities sufficiently serves the higher order retailing needs of the catchment area. Franklins operate a store within Fountain Plaza which, in his views, would be most affected by the proposed development with other adverse impacts on Franklins Stores at "the Fives"; Kippa-Ring, Tulip Town and Strathpine. Mr. Lakos is an appellant in Appeal 308 of 1990. He is a Director of Lakos Resources Pty. Ltd. His evidence related to Fountain Plaza and the difficulties that have been experienced -- 55 of 62 -- 54 by it in trading since it opened in December 1990. He saw the proposed development as likely to significantly prejudice the Fountain Plaza development. Mr. Bowden has, for some years, operated Brendale Shopping Market. He saw the proposed development as likely to prejudice and impact adversely on that development. This development would not be as significantly adversely affected as it would from the Mustercliff Pty. Ltd. development which was much closer located than the proposal. Evidence in support of the development was given by Mr. Gibbs, the Chairman and Chief Executive North Quay Limited; Mr. Moranta, a Director of the respondent by election, and Mr. Paul, the Managing Director of Kern Corporation. Kern Corporation had earlier expressed some interest in developing a major retail shopping centre in the locality of the subject land, but did not proceed as a better opportunity at Browns Plains presented itself. Mr. Paul saw the subject land as being suitable for the proposed development and one that would meet the needs of people in the locality for higher order facilities. The proposals of the respondent by election in relation to the development of the subject land were detailed by Mr. Gibbs. He candidly admitted that the direction McDonnell and East had taken of recent years was probably not the desirable one. His evidence was directed towards the probable future trading of McDonnell and East going back to what he describes as basics. I was impressed with the candour of his evidence in relation to the past performance of McDonnell and East Ltd. and the attempts now being taken by the various companies in relation to the -- 56 of 62 -- SS revitalisation and redevelopment of McDonnell and East as a major high order trader in Queensland. Similarly, the evidence of Mr. Moranta was again indicative of attempts by the company to re-establish itself in competition with the other major retailers in Queensland. His evidence establishes that McDonnell and East have, of recent times, improved their trading position and anticipate that they will be competitive with the major retailing chains with the adoption of new policies. The fact that McDonnell and East have, in recent years, had store closures and reductions in floor space does not in itself lead to the view that the company would not be able to trade successfully if the subject site was rezoned and developed as proposed. In the present retailing world, it is unusual to find a proposal being put before the Court wherein the major tenant is known and comes before the Court to give evidence in relation to what it proposes. The absence of known tenants for other components of the proposed development does not lead to any conclusion adverse to a granting of the application. In the modern dynamics of retailing, it is usual that, at this stage of development, no commitment has been made by a major retailer in relation to components of a large shopping centre. Town planning evidence on need was also led on behalf of the various parties. A lot of that evidence was based on the existence of adequate and appropriately zoned land within which further retail development could occur as of right or subject to the imposition of conditions only. The absence of any approvals by any relevant local authority to any such proposed developments, other than the Enbrook Application and an -- 57 of 62 -- 56 application being made for a development in Kallangur, provides some assistance in assessing need in relation to the subject land for its use for the proposed development. The evidence of the various experts in the retailing industry amount no more than to proposals in relation to future development. The fact that such proposals can be achieved on land which is appropriately zoned is of significance in determining whether further land, not appropriately zoned, should be so zoned to meet such a demand or need as has been established. The fact that Coles Myer has no interest in establishing stores at the proposed development does not detract from the issue of need as the department store is to be anchored by McDonnell and East. The interest of Coles Myer in a supermarket as expressed in the letter of interest is not of any weight having regard to the oral evidence given by various representatives of that major retailing chain. No evidence was called from the other major retailing organisation within Australia. The expression of interest by Woolworths Property, in the absence of any evidence from a representative of that company, is of little weight. However, no inference ought to be drawn one way or the other in relation to the likely participation of any other retail organisation in the proposed development. The fact that there exists adequate appropriately zoned land which is presently being used for major retailing purposes is of particular importance having regard to the proposals of the various retailers in relation to further development of that land. That evidence, in my view, is of such -- 58 of 62 -- 57 significance as to indicate the undesirability of zoning further land to provide for additional retail and associated facilities. The shopper survey undertaken by Mr. Feros revealed a very high percentage of satisfaction with existing retail facilities. The in-house or resident survey as undertaken by Mr. Feros was further indicative of the satisfaction of existing facilities. Whilst the methodology adopted therein was criticised by Professor Kiel, I am satisfied that the basis on which the interviewees were selected provided a reasonable reflection of the likely degree of satisfaction with existing facilities in that persons residing closer to the proposed centre were given some priority over those further removed. Those persons further removed would be less likely to utilise the proposed centre and consequentially less likely to be able to give a satisfactory response as to the degree of satisfaction with existing retail facilities in the locality of the subject land. I give no weight to the Hillier Parker report (Exhibit 166). The author was not called and the document was one prepared by a firm of real estate agents for marketing purposes. Similarly, the Fountain Plaza's tender brochure is not worthy of any weight. A number of local shopkeepers gave evidence. No person expressed the opinion that his business would be likely to be so severely affected that it would not be able to continue if the proposal proceeded. Most recognised that steps would have to be taken to offset the proposed competition with the most stated being a reduction of staff. The evidence, in general, demonstrated the resilience of small business to competition. -- 59 of 62 -- 58 The view of Mr. Todd of a change of function for Sandgate Central is not consistent with the planning concepts as set out in the Structure Plan wherein Sandgate is seen to function as a Suburban Centre. The severity of the impact of the proposed development on existing centres was the subject of many varied estimates from various experts called on the hearing of the appeal. Whilst the percentage may vary and the basic methodologies adopted can in no way be reconciled, I am satisfied that the proposed development will have a significant adverse affect on Sandgate Central and a serious affect on Fountain Plaza. The affect on the existing regional centres of Chermside and Strathpine are not of such significance as would warrant refusal of the application. I obtain no assistance from Mr. Calabro's evidence in relation to the impact of other major shopping development on then existing shopping areas. Any consideration of the historical impacts would require much more information than that on which Mr. Calabro purported to base his views. In any event any historical assessment may not be of significance in relation to this location and this proposed development. Adverse affects in excess of 22% on Sandgate Central undoubtedly will result in financial disbenefits occurring to existing development in the locality. I am not satisfied that approval of the application and subsequent development would result in blight within the principle stated in Kentucky Fried Chicken Pty. Ltd. v. Gantidis & Anor. 140 C.L.R. 675. The proposal, if approved, I am satisfied, would result in an alteration in the role and function of Sandgate Central as a -- 60 of 62 -- 59 suburban centre within that concept as referred to in the Town Plan for the City of Brisbane. The severe impact that would occur to Fountain Plaza which is of a much lower order in the hierarchy of retailing than the proposed development would be undesirable. It was contended by the appellants that not only would the proposed development have an adverse economic impact on existing development but that the adverse affect would amount to blight. To establish blight it is necessary that there be a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community by the displacement of facilities which are not replaced with consequent vacancies. The evidence does not go so far as to establish blight. Mr. Challoner put it no higher than the impact on Sandgate and Fountain Plaza seemed to be so significant that there would seem to be the possibility of blight occurring. Mr. Brown was of the view that Sandgate would change its function. Undoubtedly as was said by Professor Kiel Sandgate will feel a strong competitive impact from the proposed development. The evidence of Mr. Walker whilst of some value in that some less profitable, less well managed and less competitive businesses with more cornpeti tion may restructure or close does not establish blight. The use of the term !>y Mr. Harrison, a local Sandgate shopkeeper, in his objection shows a misconception. His evidence sets out the meaning he attributed to blight in reference to Sandgate. The onus is on the appellants to establish that the objections should be upheld and the appeals allowed. On all of the evidence which I have preferred, I am satisfied that no need -- 61 of 62 -- 60 in the planning sense has been shown for the proposed rezoning. I am further satisfied that the proposed rezoning and subsequent development would be contrary to the planning documents of the respondent and of the Council of the Shire of Pine Rivers and of Redcliffe City Council. I am further satisfied that the proposed rezoning is contrary to the strategic planning in the locality in relation to the Structure Plan and Strategic Plan for the City of Brisbane, the planning documents of the Council of the Shire of Pine Rivers and City of Redcliffe. The proposed rezoning and subsequent development would conflict with the regional planning concepts as are implicit in the planning documents of the Brisbane City, Shire of Pine Rivers and Redcliffe City. I am further satisfied that the proposed development would severely impact on the existing Sandgate centre and Fountain Plaza to an unacceptable extent. For the reasons above I am satisfied that the appellants have discharged the onus that lies upon them. The appeals are allowed. -- 62 of 62 --