PLANNING & ENVIRONMENT COURT OF QUEENSLAND

Transcription

1 PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: PARTIES: Y F G Shopping Centres Pty Ltd v Brisbane City Council and Ors [2013] QPEC 59 Y F G SHOPPING CENTRES PTY LTD (Appellant) and BRISBANE CITY COUNCIL (Respondent) and FABCOT PTY LTD (Co-respondent) and FILE NO/S: 237/2013 DIVISION: PROCEEDING: ORIGINATING COURT: CHIEF EXECUTIVE, ADMINISTERING THE TRANSPORT INFRASTRUCTRE ACT 1994 (Co-respondent by election) Planning and Environment Hearing of an appeal DELIVERED ON: 28 October 2013 DELIVERED AT: Planning and Environment of Queensland, Brisbane Brisbane HEARING DATE: 18, 19, 20, 23, 24, 25, 26, 27 September 2013 JUDGE: R S Jones DCJ ORDER: 1. For the reasons given, I would be inclined to grant the subject Development Approval, but will adjourn final determination pending hearing from the parties; CATCHWORDS: 2. The matter be listed for review at 09:30 am on 8 November PLANNING AND ENVIRONMENT Appeal against approval of major commercial development including a supermarket, specialty shops and a large format hardware

2 2 store. OUT OF CENTRE DEVELOPMENT Whether overwhelming need existed for development on an out of centre location where proposed development a centre use CONFLICT Whether there was genuine conflict with City Plan 2000 In the even that there was conflict with City Plan 2000 were there sufficient grounds to approve the application despite the conflict Substantive issues included alleged conflict with the Planning Scheme Traffic Storm water, flooding and drainage Urban design and visual amenity Intergrated Planning Act 1997 Sustainable Planning Act 2009 Transport Infrastructure Act 1994 Arpedco Pty Ltd v Beaudesert Shire Council (1980) QDR 88 Bunnings Building Supplies Pty Ltd v Redlands Shire Council & Ors [2000] QPELR 193 Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPLR 126 Elan Capitol v Corporation Pty Ltd & Anor v Brisbane City Council & Ors (1990) QPLR 209 Grosser v Council of City of Gold Coast (2001) 117 LGERA 153 Harburg Investments v Brisbane City Council [2000] QPELR 313 Intrafield v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350 Kotku Education and Welfare Society Inc v Brisbane City Council (2004) QPEC 068 Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [2003] QPELR 385 Luke v Maroochy Shire Council [2003] QPELR 447 Stockland Developments Pty Ltd v Townsville City Council & Ors [2013] QCA 210 Roosterland Pty Ltd v Brisbane City Council (1986) 23 APA 58 Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors [2007] QPEC 003 Webster v Caboolture Shire Council [2009] QPELR 455 Westfield Management Limited v Pine River Shire Council &

3 3 COUNSEL: SOLICITORS: Ors (2004) QPELR 337 Wincam Developments No. 3 Pty Ltd v Brisbane City Council [2004] QPELR 474 Woolworths Limited v Maryborough City Council (2) [2006] 1 Qd R 273 Yu Feng v Brisbane City Council [2007] QCA 382; (2007) 156 LGERA 399 Mr A N Skoien for the appellant Mr T N Trotter for the respondent Mr C L Hughes QC with Messrs B D Job and M A Williamson for the co-respondent Ms J S Brien for the co-respondent by election Barry Nilsson Lawyers for the appellant Brisbane City Legal Practice for the respondent Connor O Meara Solicitors for the co-respondent Norton Rose Fulbright for the co-respondent by election [1] This proceeding is concerned with an appeal against a decision of the respondent to approve a large commercial development including a supermarket, speciality stores and a large format hardware/home improvement store located in the well established Brisbane suburb of Everton Park. For the reasons set out below the orders of the court are: 1. For the reasons given, I would be inclined to grant the subject Development Approval, but will adjourn final determination pending hearing from the parties; 2. The matter be listed for review at 09:30 am on 8 November The site [2] The subject land is situated at 768 Stafford Road on the south-eastern corner of the Stafford Road, South Pine Road and Griffith Street intersection. The real property description of the land is Lot 1 on SP and the site comprises a total area of hectares. The site is fairly regular in shape having a 405 metre frontage to Stafford Road and a 63 metre frontage to South Pine Road. The sites frontage to South Pine Road is limited to 63 metres because of long standing strip commercial development on the eastern side of South Pine Road south of Stafford Road. The structures presently erected on the land (they could hardly be classified as improvements) comprise of an enormous abandoned warehouse/distribution centre and ancillary buildings once operated by Woolworths. The general scale of the existing structures on the land can be discerned from the aerial photograph, exhibit

4 4 36. These structures have long been abandoned and have been vandalised to a significant extent. [3] Under the applicable Planning Scheme, City Plan 2000 ( City Plan ), the site is subject to a number of relevant designations, namely: 1 (i) The north-western section fronting Stafford Road is designated Multi-Purpose Centre ( MP3 ) under the Area Designations in chapter 3 of City Plan; (ii) That area of the site is also included in Precinct 1 and identified as Sub-Precinct 1(a) under the Everton Park Local Plan of City Plan; (iii) The balance of the site is included in Precinct 2, and identified as Sub-Precinct 2(a) under the Everton Park Local Plan of City Plan and is designated Medium Density Residential. [4] Prior to the change of designation, the site and the land immediately to its south had been identified for light industry uses. [5] Generally speaking, the Stafford Road frontage of the site up to Cutbush Road sits opposite commercial development on the northern side of Stafford Road including a Coles supermarket, miscellaneous speciality shops and a gymnasium and medical centre. East of Cutbush Road the balance of the site sits opposite residential development. To the west the site abuts existing commercial development on the eastern site of South Pine Road. To the south the site adjoins significant commercial development including a Harvey Norman store, a Spotlight store and an Anaconda store. These stores are located in Sub-Precinct 2(b) under the Everton Park Local Plan. That Sub-Precinct is also identified for Medium Density Residential Development under City Plan. To the east, the site adjoins open space and public purpose areas including a waterway. [6] Proposed development on this site has been considered by this court on a previous occasion. In Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors 2 his Honour Judge Wilson SC (as he then was) described the site as, among other things, being run down, forlorn, obsolete, derelict, and a blight on Everton Park. 3 With the benefit of an inspection of the site it is clear that nothing has changed since then. Planning history [7] As previously indicated, formerly the site had been included in the light industry classification. A small area of land on the south-eastern corner of Stafford Road and South Pine Road was identified for commercial uses in recognition of the Exhibit 22 Extract from City Plan 2000 Planning Scheme Map 1 of 3 Area classifications as of 1 January [2007] QPEC 003. [2007] QPEC 003, at paragraphs 15 and 29.

5 5 existing use of that land at the time. 4 In 2006, a number of important planning changes occurred affecting the site and, in particular that: (i) The light industry classification was removed; (ii) The Centres Area designation, which had been previously limited to a relatively small area of land surrounding the Stafford Road/South Pine Road intersection, was substantially expanded south of Stafford Road, east of South Pine Road. ( The MP3 area ). The proposal [8] Following a request for and the provision of additional information, the respondent issued a Negotiated Decision Notice on 18 December 2012, which approved the proposed development subject to a number of conditions including those required to by the co-respondent by election. The major components of the proposed development include: (i) a supermarket comprising 3,800m 2 of gross floor area ( GFA ) and specialty shops comprising 2,345m 2 of GFA and associated car parking located on the north western section of the site; (ii) a large format hardware store ( Masters ) comprising 13,743m 2 of GFA and associated car parking located, broadly speaking, on the south-eastern section of the site; (iii) a proposed Everton Avenue, which would run, broadly speaking, in a south-westerly direction from Stafford Road opposite Cutbush Road through to the south-western frontage of the site to South Pine Road; (iv) three medium density residential sites, two of which would be located on opposite sides of the proposed Everton Avenue opposite Cutbush Road and one to be located on the south-western section of the site fronting South Pine Road, [9] But for a relatively small proportion of the specialty shops (about 600m 2 ) and car parking, the supermarket and the balance of the specialty shops would be located within the multi-purpose centre ( MP3 ) area of land designated under City Plan and within sub-precinct 1(a) of the Everton Park Local Plan. The westernmost residential site fronting Stafford Road also falls within that sub-precinct. The balance of the development including the Masters proposal and associated car parking is located within sub-precinct 2(a) of the Everton Park Local Plan. [10] The layout of the proposed development is shown on a number of plans, but is conveniently shown in Exhibit 7 at page For reasons associated with the final location of Everton Avenue, the Masters proposal would be located a number of metres further to the east of that depicted at page 415 of Exhibit 7 and Exhibit Exhibit 22 Extract from City Plan 2000 Planning Scheme Map 1 of 3 Area classifications as of 1 January See also exhibit 36 Aerial photograph prepared by Alan Chenoweth.

6 6 [11] As identified above, development on this site has been the subject of previous proceedings in this court. In particular, Wilson SC DCJ was concerned with a proposal which, while having some similarities to the subject proposal, had a number of distinct and material differences. In Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors 6, his Honour described the proposal before him in the following terms: 7 (The) proposal involves preliminary approval for an entire, largescale development to be called Everton Park Urban Village and associated permits for reconfigurations of lots and material changes of use. It incorporates a shopping centre (including a Woolworths supermarket) containing over 5,700m 2, a retail showroom precinct of 6,800m 2, a tavern and liquor barn, and almost 500 apartments in a number of buildings (which would also contain some small retail outlets). The proposal also includes a proposed new road, Everton Avenue, which will cut through the site between Stafford and South Pine Roads. [12] The proposal dealt with in Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors 8, is shown in Exhibit 10 at page 213. As the above passage makes clear there are a number of differences between the two proposals, but of particular significance for the purposes of this appeal, is that that area of the site to the east of the proposed Everton Avenue would change from being predominantly of a medium residential density use to one of a large format retail outlet. In Ross Neilson Properties Pty Ltd v Brisbane City Council & Ors 9, Wilson SC DCJ dismissed the appeal and his Honour s decision in that respect was upheld by the Court of Appeal in Yu Feng Pty Ltd v Brisbane City Council & Ors 10. Grounds of appeal and the real issues [13] The substantive grounds of appeal are 11 : 13. The development proposed by the development application: (a) would have unacceptable adverse hydraulic, traffic and amenity impacts; (b) would result in inappropriate provision of retail, commercial and residential development with regard to the extent, location and mix of that development; and (c) would not appropriately deal with hydraulic, traffic, amenity and economic issues relevant to the provisions of retail, commercial and residential uses on the subject land [2007] QPEC 003. [2007] QPEC 003, at paragraph 5. [2007] QPEC 003. [2007] QPEC 003. (2007) 156 LGERA 399. Exhibit 1 Appeal book volume 1 Court Documents at page 4.

7 7 14. Further, the development application conflicts with City Plan There are not sufficient grounds to approve the development application despite its conflicts with City Plan The development application conflicts with the existing preliminary approval. 17. There is no need for the development proposed by the development application [14] By the conclusion of the hearing, the real issues were identified by the appellant to be 12 : 2.1 The broad issues in this appeal are: (a) whether there is any conflict between the development application and City Plan 2000; (b) in the event that there is conflict with City Plan 2000: (i) (ii) the nature and extent of those conflicts; and whether there are sufficient grounds to justify approval of the development application despite such conflict. 2.2 More specifically, dealing with the question of conflict with City Plan 2000, the issues are: (a) whether the development application conflicts with the centre development provisions of City Plan 2000 (more accurately, the out of centre development provisions) and, in particular, whether there exists an overwhelming need for the proposed out of centre development; (b) whether the proposed development conflicts with the intent for that part of the subject land designated Medium Density Residential under Chapter 3 of City Plan 2000 as a result of the predominance of large scale retail development on that part of the site, instead of Medium Density Residential development; (c) whether the proposed development conflicts with the intent for sub-precinct 2(a) of the Everton Park Local Plan, as a result of the predominance of large scale retail development within that precinct, instead of medium density residential development (with its associated facilities and amenities); (d) whether the proposed development will have significant adverse impacts upon the local road network; (e) whether the proposed development conflicts with the provisions of City Plan 2000 with regard to the 12 Appellant s written submissions at pages 7-9.

8 8 (f) (g) avoidance of development within the waterway corridor that sits in the north-east and east section of the subject land and the maintenance of the functions of that waterway corridor; whether the proposed residential development (or potential sites for proposed residential development) accords with the intent for residential development on the subject land; and whether the proposed large scale retail development of the subject land is in accordance with the provisions in relation to such retail development (in particular provisions of the Centre Design Code of City Plan 2000). 2.3 A key issue in the Appeal is whether there is any need and any overwhelming need for the proposed development. The question of the existence of such overwhelming need is relevant both to the question of whether there exists conflict with the provisions of City Plan 2000 (in particular the out of centre retail development provisions) and whether, if there is conflict whether grounds exist to justify approval of the Development Application despite conflict. [15] In my view, the respondent and co-respondent have accurately broken the real issues down into the following broad categories: 1. Alleged conflict with City Plan Alleged conflict with the Everton Park Local Plan 3. The consequences of out of centre development 4. Urban design and visual amenity 5. Stormwater flooding and drainage (hydraulics) 6. Traffic 7. Sufficient grounds (in particular need for the Masters development) [16] At this stage, I would observe that the town planner for the respondent, Mr Brown, and for the co-respondent, Mr Schomburgk, gave evidence strongly in support of the proposed development. Mr Venn, the town planner relied on by the appellant, opposed the proposal. However, it became apparent at the conclusion of his crossexamination that the real point of difference between him and Messrs Brown and Schomburgk was with what should occur on the eastern side of the proposed Everton Avenue. At the conclusion of his cross-examination, I asked Mr Venn a number of questions and in particular the following 13 : Look I have just got a couple of questions and I will ask them now. Now, Mr Venn, as I understand your position, it s not I don t want to oversimplify it and I certainly don t intend to, but if I do, you tell me, but as I understand it notwithstanding there being conflict with the planning scheme, you would see a proposal generally in accordance with what you sketched out in Exhibit was it 49 as being an acceptable town planning solution 14? T9-38 L25 T9-39 L1-27. Exhibit 49 was a sketch plan prepared by Mr Venn showing the Masters development situated on the western side of the site west of the proposed Everton Avenue.

9 9 I suppose I don t know that I m going that far, your Honour. I m saying it replicates to a large extent the 2008 approval 15 in the areas of precinct 2(a) that it uses for commercial development. Yes? And it offers the opportunity to retain the retain the residential component. I m not necessarily advocating that in those circumstances the Masters would be acceptable. I m not really saying that. What about then the approval the prior approval with the supermarket in on the western-side of Everton Avenue? I think it comes down to, your Honour, the comment you made that it would become a commercial decision for Woolworths. No, no, no. Leaving that aside, I appreciate that you re not going so far as to say that Exhibit 49 reflected an acceptable planning solution, but again notwithstanding the conflicts what about in (sic) that proposal, the 2008 proposal you know, with the supermarket west of Everton Avenue, dominant residential east of Everton Avenue? Yes. Do you see that as an acceptable planning solution? Well I suppose at the time I would have been against it, but given the local plan that came at the same time, it seems to be that it is an acceptable arrangement because of that history and that timing, if you like. I m not asking you to commit to the exact layout, I m just trying to get a bit of a feel for this, and so? If I could make further comment, your Honour, I think Mr Schomburgk talked about infill development, this is an infill site and I don t necessarily agree in totality with that, but to the extent that you could say that you re infilling retail development, then the linking of the Harvey Norman with the supermarket MP3 area could be construed as infill, but that would be the limit of it and that generally reflects what is in the 2008 approval. So if I understand you, subsequent to the introduction of the local plan, supermarket development on the western side of Everton Avenue, despite there being conflicts, would be, in your opinion an acceptable planning solution? 15 Exhibit 10 Appeal book volume 10 Joint Reports at page 213.

10 10 But I would I would have to say, yes, your Honour. Yes? It seems so. All right. So then at the end of the day, the dispute where you take issue with Mr Schomburgk and Mr Brown really comes down to what happens on the western side of Everton Avenue and, in your opinion that should be clearly dominantly for medium density residential? That that is my view, yes, your Honour. So essentially that s where you, Mr (Brown) and Mr Schomburgk really part company isn t it? I think so. (emphasis added) [17] Apart from Mr Skoien clarifying that when I referred to the western side of Everton Avenue in the context of the medium density residential development, I was really referring to the eastern side of Everton Avenue, counsel had nothing further to raise following my interchange with Mr Venn. [18] That the proposed Masters development would effectively prevent a large area of that part of the site east of the proposed Everton Avenue for medium density residential uses was, in Mr Skoien s final address identified as creating the greater level of conflict in response to a number of questions during final submissions Mr Skoien responded 16 : There is a level of conflict. If we were here talking about the MP3 site and 600 square metres of specialty retail straying over into the MP3 site we probably wouldn t be here. The point to be made is that the greater area is consumed by the non-residential uses of the precinct 2A the greater the level of conflict. And, importantly, on the appellant s submission, the greater the amount of need the extent of need that needs to be identified to overcome the that extended conflict with the planning scheme. Your Honour, in a more direct answer to your Honour s question, can I say this. That what can be said is that, consistent with this court s decision in the earlier case and the Court of Appeal s decision is that it s been identified that there s a level of consistency that can be overcome by a level of need for uses which effectively are non-residential on that western side of the proposed Everton Avenue. So certainly it is the proposal to put large scale retail warehousing on the eastern side of the of Everton Avenue and in particular to the effective exclusion of any meaningful residential development in that precinct that creates the very substantial conflict which the 16 T9-48 L45 T9-49 L1-15.

11 11 appellant says is effectively insurmountable in on the facts of this case. Your Honour, in that regard, the appellant submits that the earlier decisions are not taken as some sort of binding authority in respect of how this matter ought be determined. (emphasis added). [19] I propose to deal with the issues identified above not in the order set out in paragraph 15, but in the order in which I feel I can more readily dispose of them. [20] As the subject development application was lodged in July 2009 this appeal must be determined under the repealed Integration Planning Act 1997 ( IPA ) pursuant to section 819 of the Sustainable Planning Act 2009 ( SPA ). Also, notwithstanding that in this proceeding, the appellant is a commercial competitor of the corespondent, the onus rests with the co-respondent to satisfy me that the appeal should be dismissed. Hydraulic Issues [21] In the second joint expert report the engineers retained by the appellant and co-respondent (Mr Collins for the appellant and Dr Johnson for the co-respondent) identified the substantive points of disagreement between them in the following terms: 17 Neil Collins states that the Filling and Excavation Code requires compliance for any filling within a waterway corridor to be in accordance with the Compensatory Earthwork Policy (as required under Performance Criteria P3). He also believes that Council generally discourages filling or excavation within a mapped waterway corridor. Trevor Johnson states that there is no formal proscription on development within a waterway corridor. The question of whether compliance is required with the Compensatory Earthworks Planning Scheme Policy is a matter which Council has determined in the negative in this case. [22] The respective positions of the engineers were maintained and expanded on in their court reports. 18 The differences between Dr Johnson and Mr Collins were further refined in the evidence-in-chief of Mr Collins 19. First, the extent to which there has been a proper assessment of offsite impacts resulting from works within the waterway immediately to the east of the subject site. Second, an associated matter, namely the extent to which the respondent council discouraged works within a waterway corridor. In this context, a significant part of the cross-examination of Dr Johnson was concerned with downstream impacts caused by the intended works associated with the proposed development. In Dr Johnson s opinion, the works would result in a non-worsening situation and that the respondent had shown in Exhibit 10 Appeal book volume 10 Joint Reports at page 55. Exhibit 14 Individual Report of Dr Trevor Johnson; Exhibit 24 Statement of Evidence of Mr Neil Ian Collins Report in Respect of Flooding and Stormwater Management. T2-40 L5-13.

12 12 the past a degree of flexibility in how it dealt with construction works within waterways. [23] It is not necessary to decide at this stage what works the respondent would or would not allow to be carried out within the waterway corridor. There is nothing to suggest that the respondent would act otherwise than in a considered appropriate way when considering that issue. In addition, as Mr Collins agreed, any adverse impacts could be addressed in the final design stages of the proposed development. 20 While it may be true that further uncontrolled and ongoing works carried out within the waterway corridor could eventually lead to unacceptable adverse impacts that is no basis for concluding that no works ought be permitted in the waterway corridor in the circumstances of this case. I did not understand Mr Collins to be saying to the contrary. [24] As I understood the oral submissions made by Mr Skoien on behalf of the appellant, the issues associated with potential impacts on the water corridor would not of themselves amount to grounds to refuse the application, but they together with the traffic issues, tended to exacerbate the more substantive conflicts and, in particular, the Masters proposal on land identified for medium density residential uses. 21 For the reasons given above and later below, I do not consider that the hydraulic issues raised by Mr Collins either on their own or together with the other issues raised by the appellant would warrant refusal of the development application. Urban design and visual amenity [25] These issues raised hardly a mention in the appellant s written and oral submissions at the conclusion of the hearing of the case. That is not particularly surprising in the context of this appeal. That is, in the event that the proposed development is in genuine conflict with the respondent s planning scheme and there are not sufficient grounds to justify it despite the conflict, then the issues of urban and visual amenity become largely academic if not redundant. [26] One of the more significant issue raised under this broad heading was the level of amenity (or lack thereof) afforded to the three proposed residential sites. Mr King, the mechanical engineer called on behalf of the co-respondent, gave evidence to the effect that an acceptable level of internal amenity could be achieved in any medium density residential development fronting Stafford Road and South Pine Road subject to appropriate design and construction. Such remedial works might include acoustic sound barriers along South Pine Road and Stafford Road and a length of the southern boundary of the site adjoining the Harvey Norman Centre together with double glazing and air-conditioning. No witness was called to contradict that evidence of Mr King and I accept it. [27] Mr King acknowledged that with the doors open, particularly for those units fronting the roads, internal amenity would be reduced to a relatively low level and T2-42 L12-22: T2-50 L3 - T2-51 L1-20. T9-46 L35-45: T9-47 L24 T9-49 L1-15.

13 13 that that situation would of course also be the case for any person wanting to sit on his or her balcony. However, the evidence is that in established suburbs, particularly those reasonably proximate to the central business district and its environs, units/apartments are frequently built on major road corridors, which offer relatively low levels of external amenity and are purchased. The reason for this being the functions of price, proximity to the city, proximity to public transport, and convenient access corridors to the city. In this context, I agree with the observation of Mr Isles, one of the town planners called by the appellant, to the effect that medium density residential development close to Stafford Road and/or South Pine Road would be fine. 22 [28] Turning to the other issues raised under this heading, Mr Chenoweth, an experienced environmental scientist and landscape architect who was called by the co-respondent gave evidence to the effect that, on the assumption that the Masters development was an acceptable development within Sub-Precinct 2(a), its proposed location together with appropriate landscaping would result in an acceptable urban outcome. Also, in his opinion, the proposed development would be a great improvement on the present state of the site. 23 Proceeding on the assumption that the Masters proposal would be an acceptable use of the land, Mr Isles also had no difficulty with the proposed development being approved. 24 There are no urban design or visual amenity grounds for refusing the appeal. Traffic [29] Both Stafford Road and South Pine Road are State-controlled roads for the purposes of the Transport Infrastructure Act 1994 ( TIA ). Pursuant to schedule 2, table 3, item 1 of the Intergraded Planning Regulation 1998 ( IPR ), as the proposed development would be on land contiguous to State-controlled roads, the corespondent by election is a concurrence agency. Section 2 of the TIA relevantly provides: (1) The overall objective of this Act is, consistent with the objectives of the Transport Planning and Coordination Act 1994, to provide a regime that allows for and encourages effective intergraded planning and efficient management of a system of transport infrastructure. (2) In particular, the objectives of this Act are: - (a) to allow for Government to have a strategic overview of the provision and operation of all transport infrastructure; and (b) for roads to establish a regime under which: - (i) a system of roads of National and State significance can be effectively planned and effectively managed; and (ii) influence can be exercised over the total road network in a way that contributes to overall transport efficiency; and T3-69 L5-25: T3-70 L5-15. T3-41 L5-42. T3-65 L34-40: T3-66 L5-7.

14 14 (iii).. account is taken of the need to provide adequate levels of safety, and community access to the road network; and [30] Traffic issues, particularly at the intersection of Stafford Road and South Pine Road were particularly important in the context of this appeal. All of the parties to the appeal retained experts in the field of traffic engineering. The traffic engineers were Mr Williams for the co-respondent by election, Mr Beard for the respondent, Mr Viney for the co-respondent, and Mr Pekol for the appellant. [31] Of particular importance to the traffic engineers was the traffic volumes that came together at the intersection of Stafford Road, South Pine Road, and Griffith Street. All agreed that at peak times this intersection operated at above desirable operation standards. According to Mr Viney (and this was not really disputed by any of the other traffic engineers) an acceptable operational standard for an intersection such as that involved here would be up to somewhere around a degree of saturation of about Under section of the co-respondent by election s Guidelines for Assessment of Road Impacts of Development ( GARID ), where an intersection is above capacity the developer is required to ensure that the intersection would be no worse (in terms of traffic impacts including pedestrian safety) in the after development situation than in the before development situation. [32] Following criticism from Mr Beard and Mr Pekol in particular to the effect that he had significantly underestimated the impact of the proposed development on the local road network, Mr Viney Carried out further investigations and concluded that as at the 2010 base case, the degree of saturation at the intersection would have been in the order of 1.14 before the proposed development and 1.09 in the after development case. 26 Accordingly, as there had been a slight improvement as distinct from a worsening, the relevant provisions of the GARID had been satisfied. [33] Mr Viney s analysis was criticised by Mr Skoien, for failing to carry out a sufficient level of investigation and, in particular, failing to carry out an appropriate, what was described as a SIDRA analysis, which had it been done, would have revealed how all of the relevant intersections in the vicinity would have operated in an integrated way. In addition, Mr Viney s analysis was criticised by Mr Beard at a number of levels. However, in my opinion, it is not necessary to deal with each and every of those criticisms in any detail. That is because following numerous joint meetings between the traffic engineers, including during the conduct of the hearing of the appeal, they produced a further joint report which relevantly provided: 27 It was agreed that: (i) South Pine Road/Everton Avenue intersection design 5654SKC35RevC(MPN Consulting) is agreed by the experts to be acceptable in accordance with the approved DTMR condition (condition 5); T2-70 L Exhibit 10 Appeal book volume 10 Joint Reports at page 38. Exhibits 32 Joint Report of traffic engineers dated and 32A Joint Report of traffic engineers dated typed.

15 15 (ii) Everton Avenue Functional Layout Plan 5654SKC44RevB(MPN Consulting) and Buchan Group Plan A-SK134 issue B is agreed by all to be an improvement in pedestrian safety which was seen as a critical issue. While the design is not considered to be entirely satisfactory by Messrs Pekol, Beard and Williams they believe that it could be reasonably conditioned. Mr Viney believes the design is satisfactory; (iii) With the Stafford Road/Everton Avenue intersection, all agree that the currently proposed layout is not so unsatisfactory as to justify refusal. AP (Pekol), CB (Beard) and SW (Williams) consider that the intersection performance and the performance of Everton Avenue would be improved by a free left turn slip lane and auxiliary lane (east to south). NV (Viney) notes that this would provide greater efficiency but the approved intersection is acceptable; and (iv) SW, CB, and NV believe that the wider traffic impacts on the road network are not sufficient to warrant refusal. AP was of the view that the analysis to date has not sufficiently demonstrated that the non worsening criteria has been met. [34] On the balance, I agree with the conclusions reached by Messrs Beard, Viney, and Williams to the effect that the traffic issues associated with the proposed development would not be sufficient to warrant its refusal. It is clear that conditions in addition to those already required by the co-respondent by election may be required to deal with matters such as pedestrian safety and an additional left turn slip lane from Stafford Road into the proposed Everton Avenue, but that such further conditions would probably be required is not sufficient grounds for refusal. [35] The further joint report of the traffic engineers (exhibit 32) came into existence after Mr Pekol s court report 28. It is clear from exhibit 32 and Mr Pekol s evidence in chief that the only area left in dispute amongst the traffic engineers was the traffic impacts caused by the proposed development on the local road network and in particular at the key intersection at South Pine Road, Stafford Road, and Griffith Street. 29 [36] Traffic issues were not dealt with at all in any meaningful way in the appellant s written submissions and were only dealt with in oral submissions with the bold assertion that there was no basis for finding that in the after development case there would be a non-worsening on the local traffic network and in the event that there was a no worsening result that was of itself not a ground to support the proposal. 30 The first oral submission made by Mr Skoien fails to recognise or, at the very least, Exhibit 27 Evidence of Mr Adam Pekol. Exhibit 32 Joint Report of traffic engineers dated ; T4-90 L T8-47, L25-40.

16 16 give sufficient weight to the expert evidence of Mr Viney and Messrs Williams and Beard in particular. As to the second point, while a non worsening traffic result might not, of itself, positively support the proposal it is clearly an important consideration. [37] In this appeal, the co-respondent by election was, if I may say so, quite enthusiastic about the proposed development. It of course had no real interest in satisfying a perceived need of the community for a supermarket and/or Masters, but it could see the benefits of a development that provided for the diversion of that traffic travelling north on South Pine Road intending to turn east on to Stafford Road. Diversion strategies could also be adopted by the Department, if thought necessary, in respect of traffic travelling west along Stafford Road intending to turn south into South Pine Road. Such options would be available by the introduction of the proposed Everton Avenue. The position of the co-respondent by election was articulated in its written submissions as follows: 31 The opinions of each of the experts are at best predictions based upon experience. As it was accepted by Mr Pekol, the Department does change phasing of signals on State controlled roads to achieve better outcomes at intersections rather than undertake road works. The introduction of the two new intersections provides the Department with additional options into the future for the management of a currently congested intersection. (footnotes deleted). [38] The two new intersections referred to are the Everton Avenue intersections on Stafford Road and South Pine Road. Based on his experience rather than any particular traffic analysis, it was Mr Viney s opinion that approximately 50% of the relevant traffic would be diverted via Everton Avenue. In his opinion, a diversion of that order would be sufficient to result in a non-worsening situation. In Mr Beard s opinion, a diversion of 66% would be required to result in a non-worsening situation, but again based on experience rather than any specific analysis, a 66% diversion could be achieved with the introduction of the left turn slip way from Stafford Road east of the Stafford Road/South Pine Road intersection. 32 [39] Whether the proposed Everton Avenue might attract 50% or 66% of the relevant traffic is not necessarily to the point according to Mr Williams, the traffic engineer relied on by the co-respondent by election. According to Mr Williams, as I understand his evidence, the Department could manipulate the traffic signals at the intersection of South Pine Road and Stafford Road to discourage or even literally ban that segment of the relevant traffic flow from using that intersection. 33 A total ban on the relevant traffic movements would of course alleviate traffic congestion at the intersection, but would force 100% of that traffic onto Everton Avenue and thereby increase the tension between that through traffic and the traffic (including pedestrians) associated with the custom of the various facilities proposed. However, I was not taken to any evidence to suggest that tension would result in unacceptable traffic conditions and/or amenity At paragraph 29. Exhibit 38 Mr Bread s diagram of Stafford Road Everton Avenue intersection. T3-29 L20-40.

17 17 [40] In cross-examination, Mr Pekol did not dispute that Everton Avenue would function as an effective bypass. Also, he agreed that it would allow the co-respondent by election a degree of flexibility regarding the operations of the signalised intersection at Stafford Road and South Pine Road and that on occasions signalised phasing has been interfered with to account for changed traffic conditions. 34 [41] In my view, Mr Pekol expressed his real concerns in his evidence in chief when he said: 35 I think, Mr Williams, if I heard him correctly on Friday, was saying that the department would have the flexibility with Everton Avenue in place would have the flexibility of effectively banning the right turn from occurring from South Pine Road into Stafford Road at the key intersection we were talking about. And effectively forcing not giving people these not giving these people a choice but forcing them to perform that manoeuvre via Everton Avenue. Now that might I guess I cant question if he speaks on behalf of the department what the department may or may not do. My concern with such a drastic approach to managing traffic is that certainly no one s tested the impact of sending 100% of that right turning traffic along Everton Avenue. Now, I am less concerned about the impact on Everton Avenue itself, okay? I think the road itself could accommodate those movements, but in terms of the additional delay caused at the two signalised intersections at either end of Everton Avenue, that s what would concern me and I just can t help but wonder whether we re robbing Peter to pay Paul. We re improving operations at this key intersection only to shift the delay from the key intersection and offset it to these other two intersections. And, so, by just focusing on that key intersection, we are getting the complete picture. I don t think we are, your Honour. [42] The onus of course is on the co-respondent to satisfy me that the traffic issues associated with the proposed development can be adequately dealt with. Based primarily on the evidence of three very experienced traffic engineers, I consider that they can be. At the end of the day Mr Pekol had no sound basis for doubting the conclusions reached by the other traffic engineers and the mere wondering about potential issues that may or may not arise is not sufficient to offset the more probative evidence of the other traffic engineers. [43] On balance, I am satisfied that with the introduction of Everton Avenue and other appropriate traffic conditions the proposed development would not worsen the traffic situation in the subject locality and, in particular, at the key intersection of Stafford Road and South Pine Road, and in fact might lead to a slight improvement in congestion at that intersection T5-3 L9-15: T5-6 L25-28 T4-94 L5-22.

18 18 Conflict with the Planning Scheme [44] As already identified, the central issue is whether or not development of that part of the site identified for medium density residential uses for other uses constitutes a conflict with the relevant parts of the respondent s planning scheme. Of particular significance is the amount of land identified for medium density residential uses now proposed to be used for car parking and the Masters proposal. As already referred to, Mr Skoien, quite properly in my view, essentially conceded that if the only infringing commercial development was limited to the 600m 2 or so of specialty shops intruding into the medium density residential area it would be hard to maintain that there was in reality real conflict with the planning scheme. To use Mr Skoien s words if the extent of the encroachment was limited to that, the appellant probably wouldn t be here. 36 That concession of Mr Skoien was of course premised on the assumption that the balance of that part or the site identified for medium density residential use would, to a significant extent, be in fact used for that purpose. [45] In the appellant s written submissions, after referring to relevant provisions of the City Plan and the Everton Park Local Plan it was stated: Clear conflict 5.9 The appellant submits that there are two clear conflicts between the proposed development and the intent for the land use on that part of the subject land designated Medium Density and Sub-Precinct 2(a). They are: (a) The absence of any significant residential development on the subject land; and (b) The proposal for large scale retail development instead of Medium Density Residential Development It will, no doubt, be suggested that the need experts have agreed that there is no issue arising from the loss of residential land as a result of the consumption of land intended for residential development by the proposed large scale retail development. However, the absence of any issue in respect of the loss of land to accommodate population growth does not remove the planning implications of the conflict between the proposed development and the planning strategy for the subject land The promotion of medium density residential living opportunities in an inner suburban location such as this, with high level of amenity, in close access to all relevant facilities, reflects sound planning strategies. It is clearly a strategy that is adopted by the planning authority in City Plan There is no reason (or justification) to depart from that strategy, in the absence of sufficient grounds. Consequential impacts and conflicts 36 T9-48 L45-50.

19 The appellant notes, of course, that it is the departure from this strategy that gives rise to further conflicts with the Planning Scheme in relation to out-of-centre development, amenity impacts for potential residents of the potential residential sites, impacts upon the local road network and development within the waterway corridor (thereby creating potential problems with regard to flood storage and amenity and recreational functions of the waterway corridor.) 5.13 Adoption of the clearly intended planning strategy avoids these impacts In addition, the proposed large format hardware store gives rise to various urban design impacts, identified by Mr Isles which brings the proposed development into further conflict with the City Plan Conclusion 5.15 In all the circumstances, it is submitted that the court would conclude that there are stark conflicts between the proposed development and the relevant provisions of City Plan Those conflicts exist at all levels of those provisions, from the provisions identifying the intent for the use of the subject land, through to specific impacts that would arise from the proposed development itself, including amenity, traffic, urban design and an interference with function of the water way corridor It is hard to see how there could be stronger conflict with the relevant planning provisions. (footnotes deleted) [46] Essentially, it is contended by the appellant that material conflict exists at two levels. First, there is no overwhelming need for the proposed out of centre Masters development. Second, that such development is in clear conflict with the intended land use for Sub-Precincts 2(a) and 2(b) and there are no sufficient grounds to warrant the development being approved despite the conflict. [47] Before going on to deal specifically with the matters raised it is appropriate to make some general observations. [48] The first is that in appeals such as this, it is not the function or role of the court to substitute its own planning strategies for those actually adopted and put in place by the relevant planning authority. 37 [49] The second is that planning schemes are to be construed as a whole and broadly rather than pedantically or narrowly and with a sensible practical approach. Planning schemes should also be construed in a way that best achieves their apparent purpose and objects Elan Capitol v Corporation Pty Ltd & Anor v Brisbane City Council & Ors (1990) QPLR 209 at 211: Grosser v Council of City of Gold Coast (2001) 117 LGERA 153. Westfield Management Limited v Pine River Shire Council & Ors (2004) QPELR 337 at page 341 and Kotku Education and Welfare Society Inc v Brisbane City Council (2004) QPEC 068 at paragraph 18: also Stockland Developments Pty Ltd v Townsville City Council & Ors [2013] QCA

20 20 [50] The third broad principle is that for there to be genuine conflict with a Planning Scheme, the proposal must be capable of being identified as being at variance with or in disagreement with the relevant provisions of the planning scheme. 39 The relevant planning provisions [51] The site at the date of the development application was included partly in the Multi- Purpose 3 Centre and Medium Density Residential Area classifications. Residential Areas are intended to be comprised mainly of dwellings and shops and commercial activities are not to be located close to existing Centres and are intended to be small in scale and serve only local community needs. 40 [52] A suburban centre ( MP3 ) is defined in s of City Plan 2000: 41 Suburban Centres ( MP3 ) provide a variety of services. They may be characterised by small tenancies within a limited area, or lower density larger tenancies over a broader area. They generally contain more than 6000m 2 of gross floor area. [53] Section of the Desired Environmental Outcomes for Multi-Purpose Centres includes, among other objectives, the following: 1. All new shop office and cultural developments including low density retailing such as retail warehousing, are clustered in Multi-Purpose Centres unless an overwhelming community need dictates otherwise and. 5. Suburban centres provide for a variety of centre activities. Building bulk and form is more substantial then that of the surrounding residential neighbourhood while building height is generally consistent with that of the surrounding suburban development. (Emphasis added.) [54] One of the more significant objectives of Multi-Purpose Centres is to act as focal point for: Service delivery and employment opportunities; Safe, convenient, and accessible public transport interchanges; Meeting places for social and community interaction; and Higher Density Residential Locations per de Jersey CJ at paragraph 26: Arpedco Pty Ltd v Beaudesert Shire Council (1980) QDR 88 at 94 per Dunn J. Webster v Caboolture Shire Council [2009] QPELR 455 at paragraph 110 where Brotherson QC DCJ sided with approval the decision of the Court of Appeal in Woolworths Limited v Maryborough City Council (2) [2006] 1 Qd R 273. Refer to exhibit 22 Extract from City Plan 2000 Planning Scheme Map 1 of 3 Area Classifications as of 1 January 2006 and Chapter 3 of City Plan (Exhibit 18 Planning Scheme extracts at pages 27-29). Exhibit 18 Brisbane City Plan 2000 Extracts at page 41, section Exhibit 18 Brisbane City Plan 2000 Extracts at page 20, section