The case of North Harbour Holdings Pty Ltd v Moreton Bay Regional Council & Anor [2024] QPEC 21 concerned a submitter appeal to the Planning and Environment Court of Queensland (Court) by North Harbour Holdings Pty Ltd (Submitter) against the decision of the Moreton Bay Regional Council (Council) to approve a development application made by Lancorp Pty Ltd (Applicant) for a material change of use to facilitate a local centre (Development Application) on land located in Burpengary East, Queensland.

The Court was satisfied that the Applicant had discharged its onus, and set aside the Council's decision to approve the Development Application and replaced it with a decision to approve the Development Application subject to conditions with necessary amendments to reflect particular conditions and plans referred to in the Court's judgment.

The Development Application relates to land located at 116-122 Buckley Road and 137-143 Uhlmann Road in Burpengary East, which is approximately 230 metres west of the Bruce Highway, and has an area of 21,812 square metres (Land) (see [1] and [20]). The Land is located within the Rural Residential Zone under the Council's planning scheme (at [5]).

The Applicant made the Development Application to facilitate a new use on the Land being a local centre including a shopping centre, food and drink outlet, indoor sport and recreation, office, service industry, shop, and veterinary services (Proposed Development) (at [33]). The uses included a 3,300 square metre full-line supermarket and 1,445 square metres for specialty shops (see [33] and [253]).

The Submitter is the developer of a residential estate approximately two kilometres north of the Land (North Harbour Estate), which is also seeking approval for a local centre (at [5]). At the time of this appeal, the Submitter had an active appeal with respect to the Council's deemed refusal of its development application for a local centre (North Harbour Estate Appeal) (at [134]). 

The Development Application was properly made on 31 August 2021 when the Moreton Bay Regional Council Planning Scheme 2016 Version 4 was in effect (Planning Scheme). The Court noted that the Planning Scheme, although superseded, was a categorising instrument containing assessment benchmarks called for by section 45 of the Planning Act 2016 (Qld) (Planning Act) (at [49]).

The Court considered the following 6 issues (at [43]):

1. Use of the Land under the Planning Scheme. 

2. Character impacts.

3. Traffic impacts.

4. Relevant matters.

5. Need.

6. Whether the Proposed Development should be approved in the exercise of the planning discretion.

The Court found that the purpose and overall outcomes in the Rural Residential Zone Code in the Planning Scheme (Rural Residential Zone Code) are "complementary" and that "[t]hey seek to limit non-residential uses in the Rural residential zone to those that are low intensity and that will have minimal adverse impacts on the amenity and character of the zone" (at [71]).

The Court noted that if it only assessed the Development Application against the Rural Residential Zone Code it would be "easy to accept" the Submitter's case that the Development Application should be refused (at [75]). However, the assessment process under section 45 of the Planning Act requires assessment "…against all relevant assessment benchmarks", which relevantly includes provisions in the Planning Scheme about (at [75]):

"(a) the creation of a new local centre on land that is not in the Centre zone; and 

 (b) the settlement pattern and walkable communities."

The Court considered the Strategic Framework in the Planning Scheme (Strategic Framework) in respect of settlement pattern, walkable communities, and the creation of new local centres, which are considered in Themes 3.5, 3.6, 3.10, and 3.14 of the Strategic Framework.

Theme 3.5 seeks "[a] range of appropriate housing types, community facilities and services and safe public spaces are provided across the Region to meet community needs and lifestyle expectations, promote cultural, recreational and social interaction and community identity" (at [84]).

The Planning Scheme notes three key challenges informing Theme 3.5, being the health impacts associated with longer daily commutes, the structural aging of the population, and the increasing cost of housing requiring greater diversification for dwelling types (see [86] to [89]).

The Court noted that although Theme 3.5 seeks to increase the population living near services and to bring services and facilities closer to where people live, this does not support increased urbanisation without regard to the situation of the relevant community (at [93]).

The Submitter relied on two provisions of Theme 3.6, being 3.6.1, in particular section 3.6.1(1)(c) and section 3.6.1(4).

Section 3.6.1(1)(c) requires "…new development to be integrated into existing neighbourhoods in a spatially cohesive manner to help create walkable communities with an emphasis being placed on active transport and access by transit".

The Court accepted that the Proposed Development is not in a walkable location, with relatively few households defined by a 10-15 minute walk catchment and that future staff and customers will access the Proposed Development by car until the rural residential catchment intensifies and a new public transport route is introduced (at [120]).

Section 3.6.1(4) requires that "…Council will consolidate and maintain rural residential development in the identified rural residential areas…". The Submitter accepted that this strategic outcome is not a central provision to the appeal, and thus the Court found it unnecessary to address this in any detail, other than to observe that the Proposed Development is not a form of rural residential development (at [127]).

The Submitter argued that there was non-compliance with two provisions of Theme 3.10, being sections 3.10.1(3) and (8).

Section 3.10.1(3) relates to reducing the length and frequency of car trips. The Submitter argued that the Proposed Development supports travel by private vehicle and that it would result in longer car trips for residents of the North Harbour Estate (at [130]). The Submitter also argued that, on the balance of probabilities, a local centre will be operating in North Harbour Estate by the second half of 2025 (at [137]). Whilst the Court had reservations about this assumption, noting that even if the North Harbour Estate Appeal is resolved, this will not result in an extant right to develop a local centre. The Court held that the Proposed Development does not comply with, or does not materially advance, the strategic outcome in section 3.10.1(3) (see [138] to [140]).

Section 3.10.1(8) requires that new development ensures that it is serviced with new public transport routes (at [142]). As the Land is not currently serviced by public transport, the Court found that the Proposed Development "…does not sit comfortably…" within this strategic outcome (at [142]).

When determining the weight that ought to be attributed to the non-compliance with sections 3.6.1(1)(c), 3.6.1(4), 3.10.1(3), and 3.10.1(8), the Court noted a "…useful approach…is to examine the evil that it seeks to avoid" (at 146]). The Court found that the "evil to be avoided" by these sections is reliability on travelling by car to a local centre, and that the creation of walkable neighbourhoods is to be encouraged, noting that this "…strategy is deserving of respect" (at [150]).

However, the Court noted that non-compliance with these provisions "…does not necessarily follow that the [P]roposed [D]evelopment should be refused" (at 151]). The Court considered the relevant Theme more closely.

Theme 3.14 relates to the Council's Place Model, which identifies and describes a series of broad scale place types each with a distinguishing mix and intensity of uses, development forms, character, function, and special qualities to guide the planning and development of the diversity of the places across the region (at [106]).

The Court noted that Theme 3.14 confirms that the rural residential areas throughout the Council region are not regarded as homogenous, and that it is important to have regard to the distinctive attributes of the community in question (at [110]). The Court further noted that "[t]he Planning Scheme also expressly recognises that a rural residential neighbourhood may include a local centre…" (at [110]).

When considering the distinctive attributes of the community, the Court noted that the community of which the Land is a part already contains uses not encouraged in the Rural Residential Zone, including a commercial tennis facility and a convenience centre with a mix of commercial, retail, and community uses, including medical centres, dentist, childcare centre, shops, and take away food stores (Hub Convenience Centre) (see [180] and [4]).

The Court identified that the non-compliances with the Strategic Framework when weighed against Theme 3.14 are not matters that should stand in the way of approval of the Proposed Development (at [191]).

The Court found that the Proposed Development is not an inappropriate use of the Land (at [223]).

The Court firstly determined the character of the locality and the design attributes of the Proposed Development. The Court then determined the following issues:(at [231]):

1. Whether the Proposed Development will have a detrimental impact on the character and amenity of the Rural Residential Zone.

2. Whether the Proposed Development will maintain a distinct and recognisable transition between urban and rural areas.

The following matters were relevant to the Court's determination about the issues of detrimental impact and transition between urban and rural areas:

1. The existing lawful use of the Land and adjacent premises as required under section 45(5)(a)(i) of the Planning Scheme, which include the Hub Convenience Centre (see [236] and [244]).

2. The Proposed Development has a roofed site cover of approximately 25%, an acoustic barrier, landscaping, screening of facilities, and painted graphics and textured finishes (see [261] to [276]).

Detrimental impact on the character and visual amenity of the rural residential zone

The Court noted that the roofed site cover of approximately 25% does not reflect the low density, low-rise built form and open area environment generally anticipated in performance outcome 8 of the Rural Residential Zone Code (at [280]). With this in mind, the Court then considered whether the roofed area appears "dominant or overbearing" (at [283]). The Court had regard to the distance of the Proposed Development from the boundary of the Land, distance to the neighbouring property, and landscaping (see [291] and [299]).

The Court was satisfied that the combined effect of these design features, viewed in the context of the surrounding area, is that the Proposed Development will not appear overbearing, but will rather have an appearance of greater dominance than one would expect of land included in the Rural Residential Zone (at [299]).

Distinct and recognisable transition

The Court recognised that the Land is included in an urbanised locality, and that the Proposed Development will change the existing transition between urban and rural areas more recognisable (see [311], [314], and [315]).

The Court recognised that the design and appearance of the Proposed Development is not fully compliant with the requirements of the Rural Residential Zone Code, however the Court was satisfied that the non-compliance is mitigated by many factors (at [316]).

Prior to the hearing of the appeal, the Applicant notified the Submitter and Council that it would be content for the Proposed Development to be approved subject to conditions relating to traffic that would require updated plans, alternate access arrangements, a road dedication to the Council, lights, signage, and a detector loop (Proposed Traffic Conditions) (at [329]). The Submitter accepted the Applicant's proposal and consequently withdrew reliance on issues in relation to parking (at [334]).

Instead, the Submitter argued that alternative access arrangements provided by the Submitter's traffic expert should be adopted (at [336]). In response, the Court found that it is not the Court's function to refuse a design advanced by a developer because it is not the best possible design, rather "[t]he issue is whether the proposed design is acceptable" (at [337]). The Court was presented with traffic designs from the traffic experts for each of the parties. The Court found it unnecessary to determine which design is preferable, and accepted that the design of the Applicant's and Council's traffic experts were acceptable, and that the proposed conditions put forth in the Proposed Traffic Conditions were appropriate (at [360]).

The Applicant argued the following relevant matters for consideration under section 45(5)(b) of the Planning Act (at [364]):

1. The Proposed Development furthers the outcomes sought in the Strategic Framework, which are set out above.

2. The Proposed Development is consistent with the outcomes sought by the Planning Scheme.

3. The Proposed Development achieves outcomes sought by the Rural Residential Zone Code.

The Court found that collectively these are relevant matters to support approval (at [369]).

The Applicant argued that there is a town planning, community, and economic need for the Proposed Development (at [375]). To determine whether there is a need, the Court considered evidence from the economic experts, a proposed tenant regarding interest in a tenancy, the Applicant regarding other tenancy interest that had been received, and the Submitter with respect to their intention to develop a local centre at North Harbour Estate (at [380]).

The Court then considered the well-settled principles of need, as summarised in the case of Isgro v Gold Coast City Council & Anor [2003] QPEC 2 wherein the Court held at [21] as follows:

"Need in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community…Of course, a need cannot be a contrived one. It has been said a basic assumption is that there is a latent and unsatisfied demand which is either not being met at all or not being adequately met."

The Court noted that the existence of other sites where the Proposed Development is permitted under the applicable code may be a relevant matter, depending on the circumstances of the case (at [388]). The Court also noted that there is no extant right for a local centre to be delivered on land within the North Harbour Estate (at [384]).

When assessing need, the Court recognised the long standing approach of the Court in the case of Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPEC 7, being "…when, as here, the need to be satisfied involves the daily essentials of ordinary life, the bar should not be set too high…" (at [391]).

All three of the parties' need experts agreed that there is a need for a full-line supermarket (at [415]). The Submitter argued that the Proposed Development would have an impact on the viability of existing centres in the area, including the Hub Convenience Centre, and would disrupt the hierarchy of centres under the Planning Scheme (at [441]). The Court was satisfied that there will be an impact on existing centres, however the impact will not be sufficient to undermine the overall trading viability of competing centres (at [443]).

The Court was satisfied that there is a need for the Proposed Development that weighs in favour of its approval (at [456]).

The Court noted that planning schemes are generally an embodiment of the public interest (at [457]). The Court noted the Submitter's case against approval of the Proposed Development was founded on the following four factors (see [459] to [462]):

1. The Proposed Development does not comply with the land use intentions of the Planning Scheme as it is an out-of-centre development.

2. There is a catchment overlap with the Hub Convenience Centre.

3. The Proposed Development does not comply with the Planning Scheme provisions with respect to character and amenity.

4. The Proposed Development results in unacceptable traffic impacts.

The Court found that these matters were not established on the evidence (at [464]). The Court noted that "[w]hat rings with finality is that the [P]proposed [D]evelopment will deliver a local centre that provides essential convenience shopping and community facilities to residents who do not otherwise have convenient and appropriate access to a full-line supermarket" (at [466]). The Court found the Proposed Development to be "meritorious" and should be approved subject to reasonable and relevant conditions (at [468]).

The Court was satisfied that the Applicant had discharged its onus, and set aside the Council's decision to approve the Development Application and replaced it with a decision to approve the Development Application subject to conditions with necessary amendments to reflect particular conditions and plans referred to in the Court's judgment (at [470]).