The Planning and Environment Court
delivered a decision in the case of McConaghy
Properties Pty Ltd v Townsville City Council & Anor  QPEC 11
which involved a submitter’s appeal against a decision of the Townsville City
Council to approve a shopping complex and fast food outlet on land in
The proposed shopping complex and fast food
outlet was “out-of-centre” development which was to be located on land owned
and used by the Townsville District Rugby Union as sporting grounds for rugby
Significant conflicts of the proposed
development with the Council’s City Plan
2005 and 2014 were asserted by McConaghy Properties which premised on its
unacceptable adverse impacts on the centres network, open space network and
The Court accepted that the proposed
development was in significant conflict with the centres hierarchy and the open
space strategies under both planning schemes, whilst finding that its impact on
the transport planning strategies to be minor.
Given the significance of the identified
conflicts, “very strong grounds” were required to overcome them.
Parkside relied on a number of grounds for
approval which included the community benefits generated by the proposed
development by enabling the relocation of the rugby club, the need for an
additional full-line supermarket and the absence of unacceptable economic or
However, the Court was not persuaded that
the grounds were strong enough to overcome the identified conflicts and therefore
allowed the appeal.
of Court’s consideration and findings
shopping complex and fast food outlet
Parkside sought to redevelop the land,
which was owned and used by the Townsville District Rugby Union as sporting
grounds for rugby union, for a shopping complex and fast food outlet.
Whilst the Council approved the proposed
development, it took a neutral position in the appeal. McConaghy Properties which owned and operated
a nearby shopping centre called “CastleTown” opposed the proposed development.
development contrary to planning schemes
The land was included in the “Green Space
Precinct” and “Community facilities and open spaces zone category (sport and
recreation zone)” under the City Plan
2005 and 2014 respectively and the proposed development was therefore an
“out-of-centre” development. In
contrast, the CastleTown shopping centre was relevantly included in a “centre”
zone or precinct under both planning schemes.
It was agreed by the town planning experts
that “the centres hierarchy is a “central
plank” or core policy position underpinning the planning and development of the
city of Townsville.” Against that
background, the Court gave consideration to both town planning experts’
observations on the role and function of centres in the centres hierarchy under
both planning schemes.
The Court, accepting the evidence of
McConaghy Properties’ town planning expert, found that the proposed development
was plainly in conflict with the established centres hierarchy under both planning
It was also found that the proposed development
would have a negative impact on retailers in CastleTown and its viability and
future development. There was a
likelihood that it would “unduly erode
and prejudice the planned centres hierarchy strategy given the proposal’s size,
location, overlap and function”.
As noted above, the land was included in
zoning for open space and recreational purposes. Both planning schemes included clear intent to
deter non-recreational or open space uses on land zoned for such purposes.
Further, there was evidence before the
Court by the open space experts which indicated a deficit of land being able to
be used for organised sporting activities.
On this basis, it was found by the Court that the proposed development
was in significant conflict with the open space strategies under both planning
McConaghy Properties submitted that the
proposed development would have an adverse impact on the traffic network and
the transport planning strategies under both planning schemes. Having considered the evidence of the traffic
experts, the Court did not find the impact to be significant.
grounds required to overcome the significant conflicts
In light of the identified conflicts,
Parkside was required to satisfy the Court that there were sufficient grounds
to overcome the conflicts.
Parkside submitted that the proposed
development would meet the planning, community and economic need for an
additional full-line supermarket, without unacceptable amenity or economic
It was also submitted that the zoning of
the land had been “overtaken by events” and the proposed development would
facilitate the relocation of the rugby club to an alternate site in
circumstances where the existing facility was inadequate to meet the existing
and future needs of its members, volunteers, supporters and their families.
The Court was of the view that a second
full-line supermarket within CastleTown was not “far-fetched, fanciful” whilst noting the commercial and temporal
uncertainty. It was accepted by the
Court that there was a “modest” economic and community need but the planning
need for an additional full-line supermarket within the defined catchment was
considered to be weak.
Any amenity impacts caused by the proposed
development would not warrant a refusal.
However, as noted above, the Court did not accept that there were no
economic impacts, particularly as they related to the existing retailers and
Finally, the Court did not accept that the
zoning of the land had been overtaken by events given its zoning under the
latest planning scheme and that it remained available for a number of sporting
uses. As to the circumstances and unique
opportunity for the relocation of the rugby club, it was held to be personal to
the Townsville District Rugby Union which constituted “private economics” and
was not a relevant ground for approval.
In the circumstances, the Court was not
persuaded that there were sufficient grounds to overcome the significant
conflicts as identified.
A public or community benefit in the public
interest would ordinary constitute a ground for approval. However, where the benefit was personal to an
individual and it was simply about convenience or private economics for the
individual, it would not be a relevant ground of approval (See Brown v Moreton Shire Council  26
LGERA 310 at 313 and Hymix Australia Pty
Ltd v Brisbane City Council & Ors  QPELR 645 at ).
It is a well-established position taken by the Court that its role is to determine whether an approval should be given for a particular use proposed on a particular site. It is not the function of the Court to determine whether a better site exists for a particular development (See Luke v Maroochy Shire Council (2003) QPELR 447 at ).