Ugarin Pty Ltd v Logan City Council & Anor [2004] QPEC 1 (22 January 2004)

Last Updated: 29 April 2004

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

[1] These three matters were heard together. They concern the immediate future of two nearby blocks of land at the intersection of Chambers Flat Road, Bourke Street and Tamarind Street, Marsden in the City of Logan. A new shopping centre is proposed on one of them by one developer, (the appellant), and on the other another developer (the co-respondents), wishes to extend an existing shopping centre. For convenience I will refer to the site of the new proposal as the Ugarin site and to the site of the extension as the Yung Chon site.

The Locality

[2] Chambers Flat Road is an important road in Logan, being designated as an urban arterial road. In the relevant area it runs north east (towards Brisbane) and south west. It is a four lane road with a concrete median section providing two lanes in each direction. Bourke Street is also important, being designated as a “major urban collector road – limited access” and runs east/west forming a junction with Chambers Flat Road. Tamarind Street joins Chambers Flat Road directly opposite Bourke Street and it runs to the west, linking up with a network of suburban streets. It is a “major urban collector – access permitted”. Thus the three roads form an intersection, which is controlled by traffic lights.

[3] In the north west corner of the intersection is the established Marsden Park shopping centre which is owned by Yung Chon. It generally faces Tamarind Street to the south. Because of the concrete median in Chambers Flat Road it cannot receive southbound traffic directly. That traffic must turn right at the traffic lights and proceed a short distance in Tamarind Street before entering the Marsden Park parking area.

[4] To the north of the Marsden Park shopping centre is a substantial area of flood prone land through which flows Scrubby Creek, a tributary of the Logan River. To the south and west of Marsden Park is a large area of residential housing which is towards the lower end of the socio/economic scale.

[5] On the east side of Chambers Flat Road in the vicinity of and approaching the intersection is a strip commercial development which commences with a 7 Eleven Shop/Service Station. Then there is the Ugarin site. To the south of that is a tavern, and then the intersection. To the south of the intersection is a further strip commercial development of a caravan park, a McDonalds fast food store, a video hire store, a Caltex service station, a KFC fast food store and a Carlovers carwash. Thus the Ugarin site is a gap in an existing commercial strip along the eastern side of Chambers Flat Road, and it lies directly opposite the Marsden Park shopping centre.

[6] To the north east, east and further to the south of the intersection are large areas of residential land of normal and medium density. Again the houses on this residential land could be classed as towards the lower end of the socio/economic scale.

[7] At the south west corner of the intersection is a small neighbourhood shopping centre comprising specialty shops and a service station.

Ugarin Site

[8] The site has an area of 2.08 hectares, is roughly square and is relatively flat with a slight fall from Bourke Street towards Chambers Flat Road. It is vacant with sparse vegetation. It has street frontages to Bourke Street of 160m and Chambers Flat Road of 44m. Most of it is included within the Urban Residential area designation on the Strategic Plan Map with the eastern part in the Park Residential Zone and a small area in the Public Recreation Zone. It is not contained within a Business Activity Node (“BAN”) under that Map, but it is within Precinct 8 of the Strategic Plan’s Loganlea/Kingston District under the Business Activity Nodes District Strategies. The Residential Zone portion has a density allocation of R3, pursuant to the Residential Development Density Maps.

Yung Chon Site

[9] The overall relevant area of land owned by Yung Chon contains 5.801 hectares and is relatively flat. It has a frontage to Chambers Flat Road of 128m and to Tamarind Street of 338m. It is included in the Loganlea/Kingston Business Activity Node and has a Major Retail Centre Area Designation on the Strategic Plan Map. It is part of Precinct 6 of the Loganlea/Kingston BAN District Strategy. It is made up of two parcels. The existing Marsden Park shopping centre is established on the eastern parcel, which is included in the Central Business Zone. The western parcel is vacant, contains 2.8ha and is included within the Rural Zone. This is the site over which the Yung Chon application was made.

[10] The existing Marsden Park shopping centre, which has a gross leaseable area (“gla”) of 8266m², contains a Coles Supermarket (with a gla of 3,869m²) at its eastern end. There are specialty stores totalling 3,279m² in gla some of which front the internal mall as well as the external façade of the centre facing the car park. Additionally there is a 541m² Logan City Council Library and 577m² occupied by a Prices Plus discount store.

[11] Car parking spaces are currently provided for 559 cars. Access to the Marsden Park shopping centre is currently provided from both Tamarind Street on the southern boundary of the land and from Chambers Flat Road on its eastern boundary.

Ugarin Proposal

[12] On 16 April 2002 Ugarin lodged an application with the Council for a development permit for a material change of use for the establishment of a shopping centre on the Ugarin site. The Ugarin centre would have a total gross floor area (gfa) of 4930m² and comprise a supermarket and specialty retail shops. The supermarket and specialty shops are to have a gla of 3252m² and 1098m² respectively. The supermarket is intended to be occupied by Woolworths and the proposed specialty shops are intended to comprise uses such as a newsagent, pharmacy, butcher and bakery. The maximum building height will be about 9.2 metres, with construction material of rendered concrete panels, colorbond and glazing.

[13] A total of 281 carparking spaces were proposed. Carparking will be located generally between the existing tavern and the proposed shopping centre building, with staff parking along the southern perimeter of the site. While the main frontage of the site is to Bourke Street with only a narrow frontage to Chambers Flat Road, the building is to be oriented towards Chambers Flat Road. Access to the site is to be from both Bourke Street and Chambers Flat Road.

[14] A 10 metre wide landscaped buffer is proposed along the eastern boundary. The proposal plans identify a 2.5 metres high acoustic screen fence where loading and manoeuvring facilities are proposed.

[15] The Council did not, within the statutory allotted time, decide the Ugarin application, so Ugarin’s appeal to this court (filed on 2 January 2003) is against the Council’s deemed refusal.

Yung Chon Proposal

[16] On 3 September 2002 Yung Chon lodged an application for the Yung Chon site for a development permit for a material change of use and preliminary approval for operational work and building work so as to extend the existing Marsden Park shopping centre onto the Yung Chon site. The proposal is defined as a ‘Shopping Centre’ under the Planning Scheme and involves the addition of a second supermarket with a gla of 3869m², a discount department store with a gla of 2200m² and a net increase of specialty shops of 1497m² (involving demolition of 935m² of existing specialty shops and addition of 2432m² of new specialty shops). The proposed development also involves an additional 322 car parking spaces. On 28 January 2003 the Council resolved to approve the Yung Chon application.

[17] The proposal extends and updates the form of the existing shopping centre. When completed there is to be a roughly rectangular building but bent into a very flat V shape, the apex of the V towards Tamarind Street. The existing Coles is to be at the eastern end of the building; the new supermarket at the western end. Landscape strips are proposed 6 metres in width along the north-western boundary of the site and 3 metres in width along the Tamarind Street boundary and the rear boundary adjacent to the proposed new building extension. Adequate car parking and vehicle manoeuvring space is available on site.

[18] The site of the proposed extension is proposed to be filled above the level of the Tamarind Street footpath and the adjoining public open space to place the new development above flood levels. The depth of filling at the location of the proposed building work is approximately 2 metres.

The Litigation

[19] On 2 January 2003 Ugarin appealed (No 1 of 2003) against the deemed refusal of its application to develop the Ugarin site. Then on 11 March 2003 Ugarin appealed (No 742 of 2003) against the decision of the Council to approve the Yung Chon application. The third matter before me (No 1447 of 2002) is an application by Ugarin which was filed on 15 April 2002 for a declaration that a “re-activation” resolution of the Council relating to the Yung Chon site is of no effect. To understand that it is necessary to set out the history of the Yung Chon site.

[20] Stated as briefly as I can the relevant facts are:

(a) As at December 1985 the site was zoned Rural under the 1982 Planning Scheme;

(b) On 20 December 1985 the then owner of the site (Barns) applied to the Council to re-zone it to the Central Business Zone;

(c) In November 1986 the Council resolved to approve the re-zoning application after the expiry of the time allowed for appeal under s.33 of the Local Government Act;

(d) In December 1986 an objector (Pippos) appealed the Council’s decision to the Local Government Court; That appeal was later withdrawn, in July 1987;

(e) However the Council never formally approved the re-zoning application as required by s.33(18)(p) of the Local Government Act;

(f) Barns later became bankrupt. A company (Trikon) bought the site and it later went into liquidation, ownership of the site passing to a company, Anwell;

(g) Yung Chon bought the site from Anwell in November 1996;

(h) In December 1997 the 1997 Planning Scheme came into operation, the site remaining the Rural Zone;

(i) On 16 October 2001 the Council resolved to initiate re-zoning of the site to the Central Business Zone subject to conditions different from those fixed in November 1986 and on 25 January 2002 resolved to approve the rezoniing;

(j) Ugarin seeks a declaration that the Council had no power to “re-activate” the 1985 Barns application as it has purported to do.

[21] Although Mr Gore Q.C., leading counsel for Ugarin, conceded that the main purpose of the litigation would fall to be decided under the two appeals, Ugarin maintained the application for declarations.

The Planning Scheme

[22] The first Logan City Council Planning Scheme was gazetted on 17 December 1988. Since then a Strategic Plan was inserted by amendment on 9 December 1994 and further amendments were made on 19 December 1997. So substantial were those amendments that it is clear that the entire planning scheme was reviewed at that time. It is realistic to refer to the current planning scheme as the 1997 Planning Scheme so that at all times material to these proceedings the sites have been subject to the provisions of the 1997 Planning Scheme. Clause 1.4.4 of the Strategic Plan extends to 2013 the period over which the Strategic Plan is to apply.

[23] Relevant provisions in the Strategic Plan are:

(a) policies in cl. 1.8.2 of the Industrial Commercial and Retail Strategy (shopping centres of more than 1200 m² to be located in a major retail area and not to be in a residential area); which require a major shopping centre to be established within major retail centres (e.g. Marsden Park); which provide that Marsden Park may be extended to 15,000 m² leaseable area;

(b) policies in cl. 1.8.4 which argue against commercial ribbon development;

(c) policies in cl. 1.8.5, which militate against the intrusion of the Loganlea/Kingston BAN into residential areas and emphasising the role of Chambers Flat Road as a barrier to that.

[24] Cl. 1.14.1(b)(i) of the BAN District Strategies which sets out the intent that industrial, commercial and retail uses are to be located within the BANs rather than just outside their boundaries.

[25] Cl. 1.14.8.1(b)(iv) of the Loganlea/Kingston District Strategy which prescribes the Marsden Park shopping centre for expanded retail functions, and cl.1.14.8.1(c) which requires the area outside the BAN to be developed for named uses which include residential purposes and do not include commercial or retail purposes.

[26] The objective for Precinct 6 (which contains the Marsden Park shopping centre) in cl. 1.14.8.7 contemplates development for a major shopping centre and actually specifies the Marsden Park Shopping Centre. Policy (d) of that clause states:

“(d) Retail commercial development must be concentrated on the western side of Chambers Flat Road.”

[27] In cl. 1.14.8.9 the objectives for Precinct 8 (which includes the Ugarin site) state that the precinct will be developed for residential purposes other than land previously approved or zoned for non-residential purposes before December 1994. Two policies are:

“(a) The Business Activity node must not be expanded into Precinct 8.

(b) Development within the Business Activity Node must not intrude or adversely affect the amenity of residential development in Precinct 8.”

[28] To summarise the effect of those provisions:

(a) Marsden Park shopping centre (which is within the Loganlea/Kingston BAN) is intended to be a major shopping centre with up to 15,000 m² of leaseable floor area;

(b) Marsden Park shopping centre is intended to be developed for expanded retail functions;

(c) Retail and commercial development are to be concentrated on the western side of Chambers Flat Road;

(d) the BAN at Marsden Park is not to be expanded to the eastern side of Chambers Flat Road;

(e) land on the eastern side of Chambers Flat Road is to be developed for residential purposes, unless, prior to December 1994, it had been approved for development for non-residential purposes.

The Draft Town Planning Scheme

[29] On 6 July 1999, the Council passed a resolution proposing to prepare a new planning scheme under the Integrated Planning Act 1997 (“IPA”). A statement of proposals for preparation of the planning scheme was on public display from 11 October 1999 until 3 December 1999. The most recent draft of the proposed new scheme was released for internal review in early October 2003.

[30] To date the Council has still not resolved formally to propose the new planning scheme under s.9 of Schedule 1 of IPA. The draft of the new planning scheme has not been submitted to the Minister for Local Government and Planning for consideration of State interests. The proposed new planning scheme has not been on public display.

[31] Part of the Ugarin case is that, even though it is in its relatively early stages there is good reason to conclude that the new scheme will extend the Loganlea/Kingston BAN onto the Ugarin site, or foreshadow the desirability of that happening so that the apparent conflict with the Strategic Plan is not as serious as might appear at first blush.

[32] I accept the submission made by counsel for Yung Chon that Mr Perkins, the planner called by their client, gave a cogent reason for not placing any weight on the provisions of the draft plan. He said:

“I can’t see how any weight could be given to a draft planning scheme which is in the state that it’s in, that state being not in the public arena at all. I mean, if one was making an application, one wouldn’t be able to get access to the document, so, you know, how could one take into account its provisions? So it seems obvious to me that you just can’t give any weight to the document.”

[33] The decision of His Honour Judge Newton in Pacific Exchange Corporation Pty Ltd v Gold Coast City Council (1998) QPELR 335 is, it seems, consistent with that view.

[34] Nor, of course, should I be persuaded that it would be a desirable thing if the new planning scheme were to designate the Ugarin site for commercial and retail uses. To do that would be to adopt the role of planning authority for the City of Logan. That temptation has consistently been rejected by the Court. See, for example, Elan Capital Corporation Pty Ltd v BCC (1990) QPLR 209 at 211.

[35] The evidence revealed that in the iterative process of formulation the new Town Plan consideration has been given to designating the Ugarin site, or some part of it, for commercial and retail uses. All that can be said of that is that despite that consideration the current thinking is to leave it in the residential designation.

[36] Finally, while the conclusions of the Abnett report (exhibit 7) gives support for the designation of the Ugarin site for commercial and retail purposes, that report approached the question from an economic rather than a planning viewpoint and also appears to have assumed that the Yung Chon site was unavailable for reasons of flooding. Thus it seems to have regarded the Ugarin site as the only available land. It was prepared hurriedly, on data gathered by rather inexperienced staff, some of that data (areas based on root measurements estimated from aerial photography) being somewhat imprecise. All in all, I get no persuasive assistance from the Abnett report.

[37] I put no weight on the current state of the proposed new Town Plan.

Issues – Ugarin Site

[38] The issues in the appeal against the deemed refusal of the Ugarin Proposal may be summarised as follows:

(a) conflict with the Strategic Plan;

(b) whether there are sufficient planning grounds to justify approving the Ugarin Proposal despite the conflict with the Strategic Plan;

(c) need;

(d) traffic;

(e) amenity.

Issues – Yung Chon Site

[39] The seriously disputed issues are summarized as follows:

(a) planning principles;

(b) ability of Yung Chon to meet need;

(c) commercial intentions of Yung Chon;

(d) Local Law No. 6 (Flood Plain Management) 1998 (“Local Law 6”)

Statutory Considerations

[40] It is obvious from paras [22] – [28] (and indeed it was common ground) that the Ugarin proposal conflicts with the Strategic Plan for Logan. I consider the conflict to be a serious one and I did not think counsel for Ugarin attempted to avoid that difficulty. Because the 1997 Planning Scheme is a “transitional Planning Scheme” (see IPA ss.6.1.2 et seq), pursuant to ss. 6.1.29 and 6.1.30 of IPA, the Ugarin proposal fell to be assessed by the Council, and now by this Court, under the relevant provisions of the repealed Local Government (Planning and Environment) Act 1990 (“P&E Act”). In particular s.4.4(5A) of the P&E Act applies. That provision is:

“(5A) The local government must refuse to approved the application if –

(a) the application conflicts with any relevant strategic plan or development control plan; and

(b) there are not sufficient grounds to justify approving the application despite the conflict.”

[41] Both the Ugarin application and the Yung Chon application to the Council (for material change of use under IPA) would have been applications to rezone (in each case to the Central Business Zone) under the P&E Act and as I have said the rezoning provisions of the P&E Act are expressly applied to them by IPA. So, given the substantial conflict between the Ugarin proposal and the strategic plan, it must be refused unless there are sufficient grounds to justify its approval despite that conflict.

Need

[42] Need is expressly declared to be a consideration which is relevant to an application for rezoning (P&E Act, s.4.4(3)(b)). The three experts retained by Ugarin, Yung Chong and the Council have agreed that there is a need for another supermarket in the locality of the two sites. Apart from the Ugarin and Yung Chon sites there is no suitable land in the locality for the construction of a new supermarket.

[43] Each of the two sites necessarily required a rezoning before it could accommodate a supermarket. As I have set out, the Ugarin proposal is in serious conflict with provisions of the 1997 Strategic Plan. I was not pressed with any submission that the Yung Chon site was in conflict with the Strategic Plan. The written submissions of counsel for Ugarin raise alleged insufficiency of parking spaces (which is not a conflict with the Strategic Plan) but the argument was faintly put and if any such inadequacy was raised by the Council at the detailed design stage I would be surprised if it could not be remedied.

[44] A more serious challenge to the Yung Chon proposal was that it would not meet the established need because its construction would be forbidden by Local Law No 6 which deals with flooding. Another serious challenge had to do with the commercial ability of Yung Chon to meet the need and a further suggestion that Yung Chon has no genuine intention to meet the need. I will defer discussion of these challenges.

[45] From a purely physical standpoint it is clear that Ugarin could construct on its site a building which would house a supermarket and a reasonable number of speciality stores. Woolworths has contracted to take a long term lease and would trade successfully. I do not doubt that the selected speciality shops would also trade successfully. In other words, I am satisfied that the Ugarin proposal, if established, would be able to meet the need which the three consultant economic experts agree presently exists.

Traffic

[46] Traffic access to and from the Ugarin site raised problems which took up a lot of time on the appeal. Ultimately it was established that a concern about the tightness of the turn in and out of the site from Chambers Flat Road could be alleviated sufficiently to make these manoeuvres, if not perfect, at least tolerable. This would require a contractual arrangement with the Council about an existing easement but I was told that could be achieved. As with the Yung Chon proposal the total number of parking spaces might be a little below standard but again I would be surprised if it caused a real problem.

[47] It was suggested that should the Ugarin supermarket be established there would be some pedestrian traffic between it and Marsden Park across busy Chambers Flat Road, which could be dangerous. I suppose that could happen but I think it would be rare. Most people wanting to visit both centres would be likely to finish at one and drive to the other. Most pedestrians would probably use the traffic light controlled crossing at the intersection.

Amenity

[48] Issues of amenity arise (in relation to the Ugarin proposal only) related to noise, light, traffic, visual incongruity of the building and privacy.

[49] Experts on noise gave evidence and while the details of their findings and opinion differed somewhat it seemed to me that noise from the carpark would certainly not cause a problem. Noise made by service vehicles should not be a problem provided that acoustic barriers of the proper design were put in place and that a curfew (7.00am to 6.00pm Monday to Saturday) were instituted and obeyed. Opinions differed on the practicality of the curfew. In my opinion a retailer of the size of Woolworths should be able to achieve obedience to a curfew by the operators of delivery vehicles to its supermarket. Vehicles delivering goods to the speciality stores would be more likely to offend because of the relative unimportance of those traders. Furthermore the traders themselves might cause noise nuisance by using their industrial bins outside the curfew hours. While I do not think these nuisances relating to the speciality stores would be a frequent occurrence (in which case complaints to the centre management and/or to the Council could well bring about relief) I accept that inevitably there would be occasional disturbances of a relatively minor degree to those living close to the site.

[50] The noise of air conditioning units is potentially a problem but given the evidence of Woolworths’ concern about that, I think it likely that at the design and construction stage attenuation measures would be installed to keep that noise within acceptable limits. Similarly I consider that lighting of the site would not cause glare or an unpleasant pool of light to the detriment of neighbours.

[51] The Ugarin proposal would obviously attract more traffic into Bourke Street. Some would come from the east to get access to the supermarket but I consider that most of that traffic would equally use Bourke Street to go to an enlarged Marsden Park. Of more concern would be the noise of vehicles leaving the Ugarin site and accelerating away, especially those heading east. Relatively few of them would be doing that at anti-social hours but I accept that some would. So there is the likelihood of some noise nuisance to Bourke Street occupants who live close to the Bourke Street traffic access point of the Ugarin site.

[52] There was debate about the visual effect of the Ugarin building which would intrude for a substantial distance along Bourke Street. A good deal of effort has been put into producing a traditional “Queenslander” design and the plans suggest that it would be a building which is a lot more sympathetic to a residential area than many such buildings are. And it must be conceded that the actual residential amenity of the locality (particularly because of the commercial development along the east side of Chambers Flat Road and because of the heavy traffic on that road) is not a high one. There is also the ameliorating fact that quite substantial landscaping is planned for the development.

[53] Finally there is the possibility that over the weekend, when garbage collection does not take place, the operations of the speciality shops may put waste foodstuff in the bins so that unpleasant odours would be produced. I would think that this possibility could be controlled by an alert management so that any transgressions would be rare.

[54] All in all, while not very substantial, it cannot be denied that there would be a detrimental effect on the residential amenity of the Bourke Street neighbourhood were the Ugarin proposal to proceed. This is specifically contrary to objective (b) which I have cited in para [27].

Planning Principles

[55] Ugarin submitted that Yung Chon would be unlikely to be able to achieve the potential area of 15,000 m² to which the Strategic Plan refers (see para [23]). As will be seen, I think that is not so.

[56] Ugarin further submitted that history has shown that the apparent strictures imposed by the Strategic Plan on commercial development to the east of Chambers Flat Road have been overtaken by actual events. Reference was made to the development of the commercial uses there which I have outlined in para [5]. However the evidence suggests that these uses, when permitted, were generally in accord with the planning thought of the time. And it is obvious that at the time of the substantial revision of the Strategic Plan in 1997 the presence of those commercial uses was not considered to be justification for any further extension of similar uses on that side of the road.

[57] It was the opinion of Mr Schomburgk that the approval of the Urgarin application would consolidate the existing node of commercial activity centred on the intersection. He put his opinion cogently but finally I reject it.

[58] The Urgarin development would not simply fill in a non-commercial use along the eastern side of Chambers Flat Road but would very substantially extend it to the east, along Bourke Street, a residential area. It would be a very different development from the existing commercial uses which border Chambers Flat Road but which take up quite small areas. The Ugarin development would be completely disproportionate to that, and indeed, would not so much fill in a node on Chambers Flat Road as create a new node in Bourke Street.

[59] No-one advanced the sterility argument for the Ugarin site but it is apposite to say that I can see uses to which the site could be put to fill in the node which would avoid serious conflict with the Strategic Plan. An application for a commercial use over the part of the Ugarin site which fronts Chambers Flat Road might well be for a use which would complement the existing commercial uses and occupy a similar area so as not to impinge on the residential area to the east. The Council could well decide, properly, that for such a development the conflict with the Strategic Plan was properly resolved to the benefit of the community.

[60] Ugarin submitted that the 1993 Strategic Plan was based on planning studies now shown to be outdated. That is a brave submission because it involves the concept that a court should ignore the plain words of the legislation because the legislation is no longer apposite. That, of course is not the same as the situation in which a court will interpret legislation, capable of two meanings, so as to adopt the meaning most apposite to the current state of things.

[61] I suppose that in an extreme case such a thing can be done. I expect that (on the eve of their repeal) a court would have been very reluctant to apply (in 1970) the provisions of the Second Hand Fruit Cases Acts 1940 to 1952 or (in 1958) the provisions of the Walking to Prison Act of 1852. But that is a very different proposition from the one submitted. Those two Acts had become historical oddities by the date of their repeal. Their reasons for existence had not been revisited for many years and their relevance had undoubtedly evaporated. Here I am dealing with local laws which have been constantly applied by the Council and therefore constantly considered. And they were accepted as late as 1997 as being applicable until 2013.

[62] The written submissions for the Council usefully set out the active steps taken by the Council from 1986 onward to review the relevance of the Planning Scheme. Importantly the designation of the Marsden Park Centre for development as a District Centre has remained consistent policy from 1986 till now.

[63] To accede Ugarin’s submission on this point would be an actual usurption by the Court of planning powers which reside elsewhere.

[64] Mr Schomburgk and other consultant planners put forward suggestions for the appropriate zone to which the Ugarin site might be put. But of course that begs the question because it assumes that a re-zoning ought to take place and so can be put aside until that is determined.

Comparison: Ugarin v Yung Chon

[65] It was long ago established that in the former consent application appeals it was not the function of this Court to consider whether a better site existed for the proposed use but to decide whether consent should be given for the particular use on the particular site. See, for example, SEAQ v Warwick City Council (1971) 24 LGRA 391 at 394. However it was otherwise in the former re-zoning application appeals where it was recognised that it was relevant to consider if there was another available site, suitably zoned, on which the particular use could be carried on. See, for example, Sheezel v Noosa Shire Council (1980) 6 QL 207 at 208.

[66] There were occasional cases in which there was a genuine contest between competing proposals in which the Court took the realistic view that a comparison was a necessary course to adopt and that approval should be given to that site which provided the most desirable outcome. Such a course was adopted in Kern Konstruction Pty Ltd v Cairns City Council (1978) 38 LGRA 54, Jennings Industries Ltd v Cairns City Council (1978) 37 LGRA 297 and Raintrees Pty Ltd v Cairns City Council (1978) 37 LGRA 435. Those three appeals concerned three separate sites on which each applicant proposed a regional shopping centre. They were not heard together but consecutively and Byth DCJ gave judgment in all three on the one day. He held that only one such development was needed and permitted only one to proceed. And in Green v Moreton Shire Council (1985) QPLR 328 Quirk DCJ recognised that where there was an existing application for the same use nearby to the site under appeal it would be artificial to ignore the fact. At 330-1 he said:

“If, in a given area, a community need for shopping facilities is identified, and it is also shown that it is unlikely that any site other than the one under consideration can be developed to meet that need, such a matter might add considerably to the combined weight of those factors which favour an approval.

On the other hand, if it is shown that the relevant need of the community is, in the event of a proposal being rejected, likely to be satisfactorily met by the development of another site, those factors which tell against an approval may more readily prevail. The town planning exercise involves the consideration and resolution of many (and sometimes conflicting) factors. As I see it, the matter of the competing application is but one of the factors that could be taken into account in considering this application.”

[67] Where, as here, each of the two applications for re-zoning to permit the same use is actually under appeal to the Court then the comparison is all the more a practical necessity.

[68] If this were an appeal in which neither proposal was in conflict (or serious conflict) with the Strategic Plan, or if the conflict raised by each was of a similar nature and severity, then I expect the Court could simply permit the appropriate re-zoning in favour of the proposal which the evidence showed to have the better prospects. The better prospects would be identified by considering and balancing the likelihood of each to satisfy an identified need (a “positive”), as against the likelihood of each creating a “negative” in the form of, say, traffic complications, adverse amenity impacts and the like, and the severity of those negatives.

[69] This is not such a case because on the one hand the Ugarin proposal is in serious conflict with the Strategic Plan while on the other hand the Yung Chon proposal does not raise any conflict.

[70] In the first place, it would not enable Ugarin to succeed merely to persuade me that its proposal would produce no major negative effect. Indeed I have found that it would produce some minor negative effect on the amenity of Bourke Street. And I have accepted that its traffic access arrangements are only tolerable which would be another small negative. But these negative findings, even though minor ones, could not possibly be said to constitute grounds, let alone sufficient grounds, to overcome the conflict.

[71] In the second place, in my view it would not be sufficient grounds, given the serious nature of the conflict, if Ugarin established that its development would be a better one than the Yung Chon extension of Marsden Park. It would only amount to sufficient grounds if Ugarin satisfied me that the Yung Chon development probably would be unable to satisfy the accepted need. The way in which Ugarin sought to do that is set out in para [44] and I now turn to those issues.

Ability of Yung Chon to meet need

[72] There was general agreement among the witnesses that of recent times shopping patterns for supermarkets have altered from the weekly big shopping trip to the more frequent “drop in” or “top up” event. For such an event convenience of traffic access to the supermarket, convenience of parking and ease of pedestrian entry to the shop itself are all relevant features. The Ugarin proposal was put forward as a design which would satisfy those requirements and I accept that it would.

[73] Despite the urgings of counsel for Ugarin I do not accept that the Yung Chon proposal, with its expanded Marsden Park would be materially inferior to Ugarin in those requirements. Traffic access, if less easy, would be only very slightly so. The proposed parking would permit nearby spaces both for Coles' shoppers and for the shoppers of the new supermarket. Entry doors of the complex are planned conveniently close to each supermarket. I see no particular way in which the drop in shopper would be deterred from either one of them. And it must be the case that even the drop in shopper to one supermarket may suddenly find a reason to seek out a specialty store or even the competing supermarket and for them the expanded Marsden Park would provide a greater choice of the former and greater proximity of the latter.

[74] The evidence is that the existing Marsden Park and Coles are under-performing. However there is also evidence that recent re-furbishment of key parts of Marsden Park has improved the situation, certainly to the benefit of Coles. Moreover Coles is to re-furbish in the near future. In this and other ways I am sure Coles will aggressively compete with the second supermarket, wherever it is situated.

[75] The evidence of the three economic experts, Mr McCracken, Mr Norling and Mr Leyshon and of witnesses for Coles varied on the extent to which a second supermarket would reduce the income of Coles and how that might vary according to the situation of the new supermarket. Ultimately I do not think these are matters on which I need make a mathematical finding. The experts’ joint report contains these conclusions:

“13. There is sufficient demand from the trade area to support a second major supermarket at Marsden at either site.



14. The addition of a second major supermarket will enhance the well-being of trade area residents and provide significant community benefits through greater competition, availability of a wider range of goods, greater level of choice and enhanced price competition.”

[76] In other words, while the establishment of another major supermarket will no doubt immediately reduce Coles’ share of the cake as it presently exists, there is good reason to believe that the size of the cake will increase markedly when the second supermarket is established by attracting the trade of the “escape shoppers” who now go elsewhere, for example to take advantage of comparison shopping opportunities. The experts consider that the larger cake will be big enough to feed two major supermarkets. On the evidence given by Coles' witnesses as well as general commercial knowledge I am satisfied that while Coles’ income from Marsden Park will no doubt drop initially, a combination of intelligent competitive trading and customer growth will tend to minimize the drop. There is no valid reason to think that Coles will abandon its long term lease at Marsden Park. Mr Atkins (Coles’ Property Manager) did not accept that result as likely.

[77] I was favourably impressed by Mr Atkins’ evidence which I thought reflected that of the pragmatic businessman who understands that commercial life was not meant to be perfect, that bitter pills sometimes have to be swallowed to enable commercial life to be sustained and that for Coles to continue to trade at Marsden Park, whether Woolworths were also there or over the road, would not cost him his job nor beggar the Coles shareholders. He was realistic about the likely effect of Woolworth’s competition and optimistic of Coles’ ability to meet it and trade successfully.

[78] I see no reason why that optimistic view of the economic future of Coles would not apply also to Woolworths whether at the Ugarin site or at the Marsden Park centre. If Woolworths’ only choice were to be at Marsden Park and if it declined to take up the offer, on the view expressed by the experts on need I am satisfied another supermarket such as Action would take it up.

[79] So if Coles and another major supermarket were both in Marsden Park I see no reason to be pessimistic about the trading futures of either of them. And more relevantly, Yung Chon’s prospects of running the expanded centre would have reasonable prospects of economic success. Much would depend on Yung Chon’s selection of speciality shops (and discount store) but it would be reasonable to assume that with two supermarkets as anchor tenants, the presence of important community attractions such as the post office, the library, a medical practice and a pharmacy would lead to reasonable prospects of success by the speciality stores. Local residents gave believable evidence of the community spirit they feel about the existing centre and one would think that an expanded centre would have a greater feeling of community well-being for many residents.

[80] A lot of evidence was led whether the physical layout of the proposed Yung Chon double supermarket centre was suitable. I am sure that there are centres of greater and lesser design practicality and appeal, but the evidence was that centres of varying designs can operate very well. Also it must be the case that familiarity breeds success. A stranger to an unfamiliar centre quickly becomes familiar with it. I think that in Marsden the local shoppers would soon identify the attractions of the expanded centre and patronise it.

[81] There was a tendency for this appeal to become a Coles versus Woolworths’ case, to concentrate on the net effect of each proposed development on the financial return to each of these leading supermarket retailers. But of course that was not what the appeal was about. I have simply (accepting the unchallenged evidence of the experts that there is need for and economic room for, two supermarkets at Marsden Park) to be comfortably satisfied, and I am, that there would be two supermarket operators (Coles and one other) ready to take up the challenge. It is not for me to decide whether the profits from either might be as high as the shareholders would consider to be ideal. I simply have to decide, and I do, that two supermarkets will be able to operate profitably.

[82] In summary I am satisfied that Yung Chon has the commercial ability to develop a reasonably profitable expanded centre at Marsden Park following the design generally as presently planned.

[83] It was submitted however that there is a stumbling block in the way of Yung Chon’s ability to proceed with its proposal in the form of its contractual arrangements with Coles.

[84] Ugarin’s notice of appeal relies on two clauses contained in Yung Chon’s lease with Coles:-

“13.05 The Lessor will not without the consent of the Lessee first had and obtained Lease or agree to Lease any premises in the Centre to any person conducting the business of a major supermarket”

“4.04 The Lessor reserves the right at any time to construct or permit the construction of any buildings or works in any part or parts of the Centre including the common areas and whether of a permanent or temporary nature and to add or to permit to be added to (whether the construction or additional storeys or in any manner) and to vary or alter or permit to be varied or altered any buildings or works in the Centre including the building in which the Demised Premises are situated at any time and from time to time as the Lessor sees fit and to erect scaffolding in relation thereto but the Lessor shall not be entitled to alter the Demised Premises in any way without the prior written approval of the Lessee PROVIDED THAT the Lessor shall be required to provide reasonable access to the Demised Premises during any period in which any alterations to the Centre including the building in which the Demised Premises are located are being carried out PROVIDED ALWAYS that save with the prior written consent of the Lessee no alterations or variations to the Centre shall reduce the location or area or configuration of the car parking facilities from the location or area or configuration of the same as at the date hereof including means of vehicular and pedestrian access to and from the Centre car parking facilities and the Demised premises.”.

[85] The effect of those clauses was to allow Coles to veto any proposal by Yung Chon to expand the new centre to house a second major supermarket. However on 18 September 2002 and 5 September 2003 Coles agreed to remove that obstacle and on 7 October 2003 Coles and Yung Chon executed a deed which recorded that formally. Material clauses are:

“2. Acknowledgement

2.1 The parties acknowledge that on 18 September 2002 and 5 September 2003 Coles Supermarkets provided their consent to Yung Chon to lease and/or agree to lease premises in the Marsden Park shopping centre (including the Expansion) to any entity conducting the business of a major supermarket.



2.2 The parties also acknowledge that in accordance with Coles Supermarkets’ consent, Yung Chon has:

(1) lodged a development application with the Logan City Council and obtained or on about 28 January 2003 a development approval for the Expansion (‘the Development Approval’);

(2) become an active party in an appeal to the Planning and Environment Court commenced by Ugarin Pty Ltd against the Development Approval (Brisbane Appeal No. 742 of 2003); and

(3) become an active party in an appeal to the Planning and Environment Court commenced by Ugarin Pty Ltd in relation to a deemed refusal of its proposed supermarket based shopping centre across Chambers Flat Road from the Subject Land (Brisbane Appeal No. 1 of 2003).

3. Coles Supermarkets’ Consent to the Expansion

3.1 In accordance with Clause 4.04 of the Lease, Coles Supermarkets give their consent to the Expansion, which is to occur generally in accordance with Site/Floor Plan 2071.49/SD08/B4 dated 18 September 2003 (a copy of which is included in the Annexure to this Deed), and in particular to the alterations and/or variations to the location, area and configuration of car parking facilities and the means of vehicular and pedestrian access to and from such car parking facilities and the Demised Premises as is depicted in the said Plan.



3.2 In accordance with Clause 13.05 of the Lease, Coles Supermarkets consent to Yung Chon leasing and/or agreeing to lease premises in the Marsden Park shopping centre (including the Expansion) to Woolworths or any other entity or person conducting the business of a major supermarket.



3.3 Coles Supermarkets acknowledge that their consent in Clause 3.1 and Clause 3.2 of this Deed can be amended or revoked only with the written consent of Yung Chon.



3.4 Any consent by Coles Supermarkets in accordance with this Deed is given without limitation to any restrictions or obligations imposed upon the lessor under the Lease, including Clause 4.04.”

[86] Although Ugarin sought to cast doubt upon the effect of the consent, to my mind the deed clearly establishes that the consent is unconditional provided that the car parking and access for the existing Coles supermarket is not adversely affected and the Marsden Park extension is generally as currently planned. Coles’ Property Manager, Mr Atkins’ evidence was that Coles were not involved in the actual planning of the extensions which suggests that Coles’ attitude is not intrusive. I have previously said that I accept Mr Atkins as a frank, pragmatic witness. I see no reason to think that other senior employees of Coles would differ in their attitude.

[87] Ugarin’s director Mr Klane referred to difficulties he had experienced with similar lease provisions in securing Coles’ consent to the inclusion of a Woolworths supermarket at Beenleigh. Although he suggested that Coles refused to allow a “minor” alteration to the carparking layout in that instance, Mr Atkins explained the reasons for Coles’ resistance. The alteration would have had the effect of giving much better car parking to Woolworths than to Coles and I can understand why that would lead Coles, quite reasonably, to object.

[88] It was submitted on behalf of Ugarin that Coles “has not played its last card “. In my view the evidence establishes that Coles made a pragmatic business decision to give its consent because it considered the inclusion of a major supermarket in the Marsden Park Centre as the lesser of two evils. There is no substance to the suggestion that Coles retains some right to prevent the Marsden Park other than as provided in the deeds I have referred to.

[89] I conclude that Yung Chon has the ability to meet the proven need for the second major supermarket by establishing the building generally as proposed in the current plans. Should the Ugarin proposal fail because of the decision of this Court, or for any other reason, I think it quite likely that Woolworths would show renewed interest in becoming a tenant of the new supermarket in the expanded Marsden Park. If Woolworths does not become the tenant I see no reason to doubt that Action would take the opportunity.

Commercial Intention of Yung Chon

[90] Ugarin submitted that Yung Chon’s intention actually to proceed with its proposal should be viewed with suspicion and that its application was designed simply to defeat the Urgarin application. The evidence of that, as submitted to me, was the failure of Yung Chon to pursue Action to obtain an agreement to take up the tenancy. It was submitted that the explanation given by Mr Chen (Yung Chon’s local manager) was unconvincing.

[91] Mr Chen’s explanation was that he could not get Action to commit itself while the Coles deed stood in its original form and that was the case until the deed of variation was signed on 7 October 2003. At that time, of course, the appeal was looming and I can well understand why both Yung Chon and Action would not feel inclined to enter into contractual negotiations in those circumstances. It seems to me that Mr Chen’s explanation was quite convincing.

[92] There is also the fact that Yung Chon, to enable earthworks to be done to make ready the Yung Chon site, bought nearby land for the sum of $240,000. That is hardly the act of someone who is merely pretending to proceed with a proposal.

[93] I am satisfied that the Yung Chon proposal is a genuine one.

Local Law 6 (Flooding)

[94] It is common ground that the Yung Chon proposal cannot be developed without placing almost 45,000 m³ of fill on the Yung Chon site to a depth of about 2m, and this can only be achieved by means of “compensated filling” within the meaning of s.4 of Local Law 6. The necessary “compensated filling” will involve excavation within an area of land not far from the Yung Chon site (a “borrow area” for the purpose of section 4 of the Local Law 6).

[95] Both the Yung Chon site and the borrow area are part of the flood plain of Scrubby Creek, which is flood regulated land. They are subject to frequent flooding, so excavation of the borrow area and filling of the balance of the Yung Chon site are regulated by Local Law 6. Before carrying out building works to effect the Yung Chon extension the approval of the Council must be given (s.11) after the provision to it by Yung Chon of a very detailed engineering works application (ss.12, 13). A detailed description of the intended works was in fact provided to the Council in support of the application for preliminary approval. Almost 48,000 m³ is to be excavated from the borrow area and on completion of the required works parts of the borrow area will be as much as 3.4 metres below the level of the 10 year ARI statistical flood.

[96] In broad layman’s terms, where a site within a flood plain is to be filled (with, say, Xm³ of earth) then if no compensatory precautions are taken the filling will worsen a flood within the flood plain. If, however, the Xm³ is obtained by excavating a pit of X m³ within the flood plain there is a resultant nil effect on flooding. Of course careful hydraulic consideration is given to the site of the borrow pit and the design of the pit and the filled land. In this case all of the expert hydrolic engineers, Dr Connor, Dr Johnson and Mr Collins agree that what is proposed by the Yung Chon proposal will have the desired nil effect in the flood plain. Dr Johnson expressed some concerns about the effect which some of the hydraulic engineering work may have on local stormwater drainage in the Tamarind Street, Kurrajong Street and Princess Street area but finally I am satisfied that, as the other two experts considered, when the work has been executed these areas will not be adversely affected.

[97] Ugarin submits that the proposed filling would be in breach of Local Law 6 and cannot be lawfully approved on a number of separate bases:

(a) as part of (or at least in preparation for) the building works to effect the extension which is the subject of the Yung Chon proposal, it will be necessary to create a “building platform”;

(b) that building platform is not for residential, recreational or ancillary buildings and is accordingly contrary to section 7(1)(d) of Local Law 6;

(c) further, that building platform will not comply with section 7(4)(a), (b), (e) and (g) of Local Law 6;

(d) the filling of the balance of the Yung Chon site will interrupt and materially change the surface water drainage from or onto adjoining land contrary to section 8(c) of Local Law 6; and

(e) the excavation of parts of the borrow lots will take place below the “defined limit”, contrary to 5.9(c) of Local Law 6.

[98] The relevant parts of ss.7, 8 and 9 of Local Law No. 6, are:-

Building Works Requirements

7. (1) Building works in the flood plain must:-

(d)	not comprise a building platform except where:-

(i) the building works is in respect of a residential building, recreational building, or ancillary building; and

(ii) the building platform complies with s.7(4) (Building works requirements) of this local law; and

.....

(4)	The building platform must:-

(a) not exceed 1,000m² in area measured at the level of the designated flood; and

(b) have a base area that does not exceed 20% of the area of the site; and

...

(e) be located on a site classified as a:-

(i) a low flood hazard; or

(ii) a high flood hazard where:-

(A) the minimum effective warning time is exceeded; and

(B) the building access complies with s.7(2) (Building works requirements) of this local law; and

...

(g)	be achieved from limited imported filling or from excavation and subsequent filling on the site which complies with s.8 (filling requirements) of this local law.

8. Filling in the flood plain must:

(a) be placed, in the case of:

(i) limited imported filling, on flood regulated land which cannot be further subdivided under the Planning Scheme due to the size of the lot or lots comprising the site; or

(ii) substantial imported filling in the floodway fringe only; or

(iii) compensated filling, on flood regulated land.

9. Excavation of the flood plain must:

(a) take place from a borrow area which complies with guidelines specified in a subordinate local law; and

(b) take place in conjunction with:

(i) compensated filling; or

(ii) subsequent filling on the site to create a building platform; or

(iii) the construction of a water storage dam; or

(iv) an extractive industry approved under the Planning Scheme; and

(c) in the case of compensated filling:

(i) not result in the removal of excavated material from the flood plain unless the material is:

(A) unsuitable for filling and replaced by suitable material from outside the flood plain which is placed within the flood plain; or

(B) surplus to the filing requirements on the site; and

(ii) not take place below the defined limit.

[99] Relevant definitions in s.4 of Local Law 6 are:

“building platform” means the area created by limited imported filling or by excavation and subsequent filling on the site on which a building is to be constructed.

“compensated filling” means filling where the material is excavated from within the flood plain and is placed on the same site so as to be contiguous with adjoining land so that:

(a) the lowest point at the top of the as constructed finish surface of the fill is at the level of the designated flood plus the allowable afflux; and

(b) the as constructed finished surface of the fill is free draining as approved by the local government.

“defined limit” means the limit below which excavation of compensated filling is not permitted which in the absence of a lower level approved by the local government is the level of the 10 year ARI statistical flood.

“excavation” means the removal of soil, earth, or any other material or substance from the land to lower the ground level of the land.

“filling” means the deposit of any material or substance on the land to raise the ground level of the land.

[100] Each of the three hydrolic engineers, speaking as experts whose consultancy work necessarily involves their having to read and understand local government laws relating to flooding, said that they had difficulty following much of Local Law 6. It is fair to say that lawyers would have the same, or greater, difficulty.

[101] The definition of compensated filling (see para [99] above) causes some difficulties of interpretation. First, it speaks of placing the excavated fill on the “same site”. The borrow pit is some distance removed from the Yung Chon site and itself spreads over four adjoining lots. However “site” is defined in Local Law 6 as:

“a lot or lots or part thereof the subject of an engineering works application”

and the engineering report which accompanied the application for preliminary approval made it clear that those four lots as well as the Yung Chon site made up the area under consideration. Furthermore, as Dr Connor said, from a hydrological viewpoint the five (in total) lots are part of the same “hydrological site” and therefore appropriate to be used for borrowed and compensated fill. I conclude that where compensated filling is concerned the word “site” refers to the nominated borrow area and to the nominated area to be filled.

[102] Then there is the curious reference to fill material to be on a site “so as to be contiguous with adjoining land”. Land is, by definition, contiguous with adjoining land. Probably what is meant is that the filled area itself should be contiguous with adjoining land in a different lot so as to provide the desired escape route in flood times (see para [104] below). Whatever is the answer it was common ground that what is planned amounts to compensated filling.

[103] Section 3 of Local Law 6 sets out the objects of the law. Based on the evidence given by the three experts and by what I hope is common sense I consider that the critical object is contained in s.3(c)(ii)A which is “to restrict engineering works in areas ... where engineering works may result in danger to life or property”. The local law provisions emphasise the importance of maintaining safe access to sites in times of flooding, the proper heights of floor levels, sufficient warning time for occupiers of land and emergency services plans. It seems to me to be obvious that the engineering design provisions of the local law, which (to summarise them) seek to prevent any building development in the flood plain which would have the effect of increasing flood heights or flood velocities are provisions regulating the means by which human life and property are to be protected from danger from floods. And protection of human life must surely be the more important of those two aims.

[104] That, I think, is one important reason why it is possible to discern that Local Law 6 treats differently development of residential sites and development of commercial or industrial sites in the flood plain. Where protection of human life is the prime object of a law it is easy to understand that it is proper to concentrate on and make special requirements about residential dwellings as opposed to commercial or industrial development. While people are physically present in both dwelling houses and commercial or industrial buildings there is an important distinction to be drawn about the likely dangers at each location. Leaving aside flash floods (and there is no suggestion that this area is subject to those) the increase in water levels and velocities is gradual and is easily perceptible. It is most unlikely that those people who are in commercial or industrial buildings (workers, shoppers and the like) would fail to see the developing danger. They are generally in those places in daylight hours and if present at night it is to work, not to sleep. More relevantly, emergency services would be alert and it is highly likely that appropriate warnings, even forced closures of commercial or industrial buildings, would take place. But the situation could be quite different for the occupiers of dwellings. They could go to bed at night with no awareness of the seriousness of the danger. During the night hours, while those occupants are asleep, depths and velocities could increase to the extent that real danger was imminent or even actually present. For them the height of the house building platform and the existence of flood free avenues of escape could be critical.

[105] Considerations such as these are helpful in the interpretation of the provisions of Local Law 6 upon which Ugarin relies, to which I now turn.

Section 7(1)(d)

[106] Ugarin’s argument is that the filling of the Yung Chon site is the construction of a building platform and therefore is forbidden by s.7(1)(d) (see para [98] above) unless it falls within the exceptions set out in clauses (i) and (ii). It is clear that Yung Chon’s proposed building works are not for any of the three types of buildings specified in clause (i) so clause (ii) can be passed over. The question, then, is whether the filling to be put on the site creates a building platform, the definition of which appears in para [99] above. If it is a building platform it is forbidden by subsection (1)(d); if it is not, the subsection does not apply.

[107] The definitions in s.4 of Local Law 6 specify only three different types of filling, namely substantial imported filling, limited imported filling and compensated filling. Section 8(a) is also restricted to the same three types. It seems tolerably clear that those are the only types permitted in the flood plain, when fill is brought into the site. It is common to the evidence of each expert that what is contemplated here is compensated filling. Is it possible that “excavation and subsequent filing” which appears in the definition of building platform as an alternative to “limited imported filling” can involve compensated filling? If so, compensated filling can constitute a building platform; otherwise it can not.

[108] If it had been intended that compensated filling could be involved in “excavation and subsequent filling”, then as the term “compensated filling” is specifically defined in Local Law 6, one would expect that the term would have been used. Furthermore s.9(b) of Local Law 6 (see para [98] above) refers to:

(i) “compensated filling”; or

(ii) “subsequent filling on the site to create a building platform”

That would indicate that in the drafter’s mind the terms “compensated filling” and “subsequent filling” are mutually exclusive terms. Then clause (ii) specifically refers to subsequent filling as taking place “on the site to create a building platform”, the very purpose given in the “building platform” definition and this also serves to highlight the point that compensated filling is not related to the creation of a building platform which, by definition relates to three distinct purposes, none of which is commercial or industrial.

[109] Section 8(a) (see para [98]) provides for three classes of filling only, none of which is comprehended by the phrase “excavation and subsequent filling on the site on which a building is to be constructed”. What can that refer to?

[110] In my view it most probably refers to making use of available soil or other material which is actually on the site. That is a sensible interpretation of the phrase, given the interpretation of s.9(b) which I have preferred (para [108] above). This is what Dr Connor, as I understood him, also concluded. Excavations preparatory to building may show the sub-strata to be unsuitable and, rather than replace that material by bringing in material from elsewhere, suitable and sufficient material may be available on the actual site. Section 7(4) makes it obvious that building platforms are not earthworks of large proportions and it must often be the case that limited re-working of the site itself can create the platform. On the other hand “filling” in any of the three ways defined in s.4 involves the concept of bringing fill material onto a site from elsewhere (which is consistent with the wording of s.8(a)), not the re-working of the site itself to raise one section of it at the expense of another part of it.

[111] What I have just said may not at first seem to sit easily with the provisions of s.7(4)(g) (see para [98] above) which at first sight relates excavation and subsequent filling on the site to s.8. However, I consider that the reference does not weaken the argument which I have accepted. Rather it simply applies (to sites on which excavation and subsequent filling can occur) the general provisions of s.8 which forbid the creation of a fill which will worsen a flood.

[112] It is interesting that in their oral evidence Dr Connor and Mr Collins were able to point to good hydrolic reasons for distinguishing between compensated filling, appropriate to developments such as the Yung Chon development and examples of limited imported filling or excavation and subsequent filling, appropriate to residential development. In part it related to reasons of safety (refer para [104] above), in part to the very onerous investigations to which residential developers would otherwise be put and in part to the undoubted interest of Logan City in encouraging commercial development. It is also informative that none of the experts considered that what Yung Chon was proposing to create would be described by engineers as a “building platform”. One would expect the drafter of the local law to make use of generally understood engineering concepts.

[113] In my view Yung Chon does not propose to create a “building platform”, so s.7(1)(d) of Local Law 6 is not compromised.

Section 7(4)

[114] The conclusion I have reached also deals with the submissions put by Ugarin in relation to the four paragraphs of s.7(4) which I have cited in para [97(c)] above because they all turn on the application of the definition of “building platform”. Furthermore, those paragraphs are all expressly applied by s.7(1)(d)(ii) and so the “building platform” of which they speak must be a building platform for a “residential building, recreational building or ancillary building”, which plainly this proposed filling is not.

Section 6(c)

[115] I have decided this point contrary to Ugarin’s argument. See para [96] above.

Section 9(c)

[116] The 10 year ARI statistical flood level is 9.549 AHD. The proposed borrow pit will have a bed which varies from 7.60 to 6.11 AHD. That, prima facie is in breach of s.9(c)(ii) (see para [98] above).

[117] However, the definition of “defined limit” (see para [99] above) provides that the Council may approve a level below that of the 10 year ARI statistical flood. That has been done on prior occasions. Four examples of Council approval of excavation below the Q10 level are set out in a table prepared by Dr Connor (Ex. 146).

[118] The Council’s decision notice indicates, particularly at p.2, (under the heading, “Further Advice to Applicant”) that the Council is prepared to approve the excavation limits provided for in the hydrological report tendered by Yung Chon with its application for preliminary approval for engineering work. The decision notice reflects the Council’s resolution to adopt the recommendation of the committee which considered the matter, and to notify Yung Chon that the engineering report was acceptable. The only sensible construction to give to the resolution is that the Council determined to approve a limit below the level of the Q10 flood for the excavation proposed on behalf of Yung Chon. At the very least, it is a strong indication that such an approval will be given when an engineering works application is made under Local Law No. 6. To think otherwise would fly in the face of common sense, given the expressed attitude of the Council to the application for preliminary approval and its support of Yung Chon in this appeal. It is much more probable than not that the Council will repeat its approval when the engineering works application is made.

[119] It was submitted by Ugarin that Local Law 6 is invalid to the extent of the inclusion of the works “in the absence of a lower level approved by the local government”. This was based on the decision of Moynihan J in Re: Gold Coast City (Touting and Distribution of Printed Matter) Law 1994, (1995) 86 LGERA 288.

[120] Gold Coast seems to me to involve a concept quite different from that under consideration here. It concerned a local law which “regulated” (by the issue of permits) certain activities. It turned on the point (at p.298) that “the valid issue of a regulatory power requires a statement as explicit as the circumstances reasonably permit, so that individuals may know the extent of their obligations”. Moynihan J held that the local law was imprecise on any criteria by which a permit might or might not be granted.

[121] I have usefully been referred by counsel for the Council to the width of the power to make subordinate legislation (Lynch v BCC [1961] HCA 19; (1961) 104 CLR 353 at 363-4) and the second reading speech in the Parliament which emphasised this width in the most emphatic of terms.

[122] Local Law 6 lays down a general criterion for the level of excavation of a borrow pit in a flood plain. But as the evidence in this case demonstrated (and all experts agreed), consistent with good engineering practice a deeper pit and thereby greater fill can be accommodated without any adverse effect on flooding. Indeed that has occurred not just in this case but at least on four previous occasions. The Logan City planning scheme emphasises the need for healthy commercial activity and provides for its growth. It specifically provides for this growth to occur on the Yung Chon site. So relaxation in an appropriate case is actually encouraged by the Logan City planning scheme.

[123] Applications for development in a flood plain are supported by detailed engineering plans. That is made clear by Local Law 6, subordinate local laws made pursuant to it and the very detailed guidelines for the preparation of flood studies. Each application necessarily is prepared, and considered by the Council, on a case by case basis. It would be naïve to think that a hydraulic engineer’s report tendered in order to obtain Council relaxation of the level provided by Local Law 6 would not go into appropriate detail. Nor is there any basis established by the evidence for me to think that the Council’s officers who considered the report tendered by Yung Chon failed to give it careful consideration. Finally, the three experts in this appeal all consider that the proposed filling is quite acceptable, which establishes that the attitude of those officers was not capricious or unscientific.

[124] It is common for statutory planning documents to lay down a criterion but provide for Council relaxation of the criterion in a proper case. In my view this is simply what the definition of “defined limit” provides and I see no reason to doubt the validity of the provision. On the contrary it helps to fulfil an important aim of the Logan City plan.

[125] So I conclude that the Yung Chon proposal is not in breach of Local Law 6, which is a valid law.

Declarations

[126] All the parties have made exhaustive submissions on this application. The facts are agreed but the applicable law is obviously complicated. Interesting as the legal arguments might be I am not prepared to embark on a study of them unless there is seen to be some utility in it. Courts have never been prepared to spend their time on purely academic exercises.

[127] No-one has put forward any reason suggesting the utility of the exercise. On the contrary, the only party which might have an interest in defending the Council’s decision to re-active the 1986 decision, Yung Chon, has clearly turned its back on it. Instead of applying to the Court, as it might have done, for a declaration that the 1986 decision remained alive and that the Council was legally able to re-invigorate it and apply it in favour of Yung Chon, Yung Chon chose to start from scratch by applying on 16 April 2002 for a material change of use for the site. Yung Chon’s decision not to rely on the Council’s resolution of 2001 and 2002 is candidly stated in the written submissions of its counsel as follows:

“That application (i.e. for material change of use) required referral coordination and impact assessment.

The application was not made in reliance upon rezoning to the Central Business zone. The existing Rural zoning was acknowledged by the Second Respondent in its application. From that application, which was approved by the First Respondent on 28 January 2003, the Applicant here has appealed to the Planning and Environment Court. The consequence of the Appeal to the Planning and Environment Court is that a full assessment of the impact of the proposed shopping centre has been carried out”.

[128] In fact, Yung Chon’s submissions suggest that Ugarin’s application for the declarations was in the nature of a pre-emptive strike to discourage the Council from placing any reliance on its resolutions of October 2001 and January 2002. Whether that was Ugarin’s intention, I do not know. There was no suggestion in evidence before me that the Council’s decision on Yung Chon’s material change of use application was in any way influenced by those two resolutions. In any event the proceedings before me proceeded de novo and no argument was advanced to me based on any persuasive nature of the resolutions.

[129] I decline to deal with the application.

Conclusion

[130] The Ugarin proposal is in serious conflict with the Logan City Strategic Plan and no sufficient grounds have been established to justify approving it despite the conflict.

[131] The Yung Chon proposal is an appropriate one, is genuine, is not in conflict with Local Law 6, has reasonable prospects of meeting the established community need and therefore the necessary re-zoning should be approved.

[132] Appeal No.1 of 2003, Appeal No. 742 of 2003 and Application No. 1447 of 2002 are each dismissed.