Town Planning – ‘need, like love, is hard to measure’

In Brisbane Prestige Property Developments Pty Ltd v Mackay Regional Council [2023] QPEC 48 (23 November 2023), Everson DCJ, sitting in the Planning and Environment Court at Brisbane, in dismissing a planning appeal – and with his musical hat on – wrote:

Is the proposed development required?

[15]  As noted above, Overall Outcome 3(a)(iii)(A) and PO3 of the MDRZC only contemplate non-residential uses in circumstances where they are “required to serve the needs of the local area”. The use of the word “required” is unorthodox. A more orthodox approach would be to refer to a planning need in this context. When regard is had to the definition of the word “require” nothing appears to turn upon this however. In circumstances where this term is not defined in the planning scheme, I note that the word “require” is defined in the Macquarie Concise Dictionary as, inter alia, “to have need of; need”.^[29] The appellant has approached this provision as requiring the demonstration of a planning need for the proposed development and the appeal proceeded on this basis.^[30]

[16]  The concept of planning need was explained by Wilson SC DCJ in Isgro v Gold Coast City Council & Anor in the following terms:

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 that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met…^[31]

[17]  Need, like love, is hard to measure. For example, when Michael Hutchence sang: “I need you to tonight cause I’m not sleeping. There’s something about you girl that makes me sweat,”^[32] he was arguably also referring to a latent unsatisfied demand which is either not being met at all or, more likely, not being adequately met. This may well be a manifestation of love but certainly not in the biblical sense. When assessing a declaration of love, or an assertion of planning need, context is everything. As the Court of Appeal identified in Intrafield Pty Ltd v Redland Shire Council, “need is a relative concept to be given greater or lesser weight depending on all the circumstances which the planning authority was to take into account.”^[33] The circumstances to be taken into account include:

1. The extent of the demand for the use;
2. The extent to which the demand is already met or could be met pursuant to the provisions of the planning scheme, enabling the use to be provided in a way consistent with public interest; and
3. The extent to which the use would improve the services or facilities available in a locality.

[18]  As noted above, the proposed development must serve “the needs of the local area” pursuant to the relevant provisions of the planning scheme. The term “local area” is not defined in the planning scheme. In the Macquarie Concise Dictionary it is defined as, inter alia, “relating to, characteristic of, or restricted to a particular place or particular places”.^[34] Obviously the term involves a fluid concept when consideration is given to the proposed service station use. It is inherently a use which will be availed of by people using motor vehicles. The two town planners who gave evidence, Mr Stott who was called by the appellant and Mr Mewing who was called by the respondent, agreed that it is greater than a “walking catchment”.^[35] Under cross-examination, Mr Stott agreed that the “local area” is “that within a car trip of approximately 5 kilometres or 10 minutes of travel time.”^[36]

…..

[29]  The proposed development is not required to serve the needs of the local area. It would have unacceptable impacts as a consequence of the intensity of the proposed development in the context of surrounding residential development. These impacts are such that it is not consistent with the amenity and character of the surrounding urban area. The appeal is therefore dismissed.

[29] Fourth Edition Macquarie University 2006.

[30] T4 – 12, ll 35 – 42.

[31] [2003] QPELR 414 at [21], approved in Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168 at [30].

[32] Need You Tonight, INXS, Kick 1987.

[33] [2001] QCA 116 at [20].

[34] Macquarie University 2006.

[35] Ex. 5, para 56.

[36] T3 – 26, ll 15 – 20.

The full decision may be found here: https://www.queenslandjudgments.com.au/caselaw/qpec/2023/48