Yu Feng P/L v Maroochy Shire Council & ors

(1996) 92 LGERA 41; [1996] QCA 226

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Planning and Environment
2. › Town planning
3. › Combined rezoning and town planning consent application
4. › Consistency with draft strategic plan
5. › Construction of draft strategic plan
6. › Meaning of 'at the periphery of the centre'
7. › Whether site 500-700 metres from regional centre was 'at the periphery'
8. › Whether periphery to be assessed at time of application or by reference to future expansion
9. › Local Government (Planning and Environment) Act 1990 (Qld), ss 4.4(3), 4.4(5A), 4.11(3), 4.13(5A), 7.4(3)
1. Planning and Environment
2. › Town planning
3. › Draft strategic plan
4. › Weight to be given to draft planning instruments not yet gazetted
5. › Coty principle
6. › Whether inconsistency with draft strategic plan requires refusal of application
7. › Local Government (Planning and Environment) Act 1990 (Qld), ss 4.4(5A), 4.13(5A)
1. Planning and Environment
2. › Town planning
3. › Construction of planning instruments
4. › Meaning of 'retail warehousing and other retail and commercial development which requires large display areas'
5. › Whether shopping complex comprising supermarket, discount department store and specialty shops fell within description
6. › Whether 'higher order retailing including national department stores' included discount department stores
1. Administrative Law
2. › Error of law
3. › Appeal on question of law only
4. › Whether misconstruction of draft strategic plan without statutory force constitutes error of law
5. › Finding of material fact without evidentiary support
6. › Local Government (Planning and Environment) Act 1990 (Qld), s 7.4(3)

Quick Take

The 'periphery' of a regional centre in a strategic plan must be assessed by reference to the existing outer boundaries of the centre at the time of the application, not by reference to speculative future expansion over the life of the plan. A 'dynamic' or elastic periphery that stretches to accommodate a development application is inconsistent with the purpose of planning. The Coty principle permits but does not require consideration of draft planning instruments; inconsistency with an advanced draft strategic plan is a significant factor against approval but does not automatically require refusal. Misconstruction of a draft strategic plan can constitute an error of law where the plan has legal significance through the Coty principle and relevant statutory provisions.