Bunnings Building Supplies Pty Ltd v Redland Shire Council

[2003] QPEC 24

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2003] QPEC 024
PARTIES:	BUNNINGS BUILDING SUPPLIES PTY LTD (ACN 008 672 179) Appellant v REDLAND SHIRE COUNCIL Respondent And LORRAINE SKILLEN, GARY SKILLEN AND OTHERS First Co-Respondents THE WILDLIFE PRESERVATION SOCIETY OF QUEENSLAND BAYSIDE BRANCH (QLD) INC Second Co-Respondent
FILE NO:	1051 of 2002
DIVISION:	Planning & Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	7 July 2003
DELIVERED AT:	Brisbane
HEARING DATE:	20 June 2003
JUDGE:	Skoien SJDC
ORDER:	Appeal dismissed
CATCHWORDS:	Hardware warehouse; conflict with Strategic Plan, need, amenity, Council decision contrary to advice of technical staff.
COUNSEL:	Mr D Gore QC and Mr T Trotter for appellant Mr S Ure for respondent Mrs Skillen for all co-respondents
SOLICITORS:	Minter Ellison for appellant King & Co for respondent

1. This is an appeal against the decision of the Council to refuse an application by Bunnings for a development permit for a material change of use and preliminary approval for building works and operational works for the purposes of a “Bunnings Warehouse” hardware store and associated ancillary facilities.

The Site

1. The site comprises 18 allotments and contains about 3.27 hectares.  It is roughly rectangular in shape, measuring about 190m by 135m.  Its long axis lies approximately north/south.  It is located on the north west corner of the Finucane Road/Old Cleveland Road and Old Cleveland Road East/Moreton Bay Road intersection.  Those roads form a major intersection with Finucane Road/Old Cleveland Road running approximately east/west while Old Cleveland Road East/Moreton Bay Road run approximately north/south.  These are major arterial roads.  The site is bounded to the south by Old Cleveland Road and to the east by Old Cleveland Road East.  The western boundary adjoins development which includes a service station, a shopping centre and a residential property.  The site’s northern boundary is Brewer Street, a residential street.

1. The site falls gradually from the north eastern corner to the south west corner by about 7 metres.  A partially constructed road (Anderson Street) provides access to the site from the west (from Old Cleveland Road) as well as to the commercial development on Old Cleveland Road adjoining the site’s western boundary.

1. Commercial activities have previously been developed on the southern portion of the site (2.17 hectares).  The remaining northern portion (1.1 hectares) is largely cleared, with a number of remaining scattered mature trees and the remnants of nine demolished dwelling houses which formerly fronted Brewer Street.  Bunnings purchased those nine residential allotments before making an earlier application to the Council in 1998 and then demolished the houses which stood on them.  I will refer to these two portions as the “commercial portion” and the “residential portion” of the site.  The commercial portion is zoned Comprehensive Development and the residential portion is zoned Residential A.

The Locality

1. Brewer Street is a residential cul-de-sac which has a single access point to Old Cleveland Road East.  It gives access to four other residential streets all of which are themselves cul-de-sacs.  All told this area, which I will call the Brewer Street precinct, contains about 75 detached dwelling houses.  Brewer Street has an interesting physical appearance which reflects topographical features and contains a series of curves which, along with the existence of a number of mature trees, provide quite an attractive streetscape.  Brewer Street was previously developed along both road frontages for residential dwellings but now, of course, its southern frontage adjacent to Old Cleveland Road East is to the nine allotments on which the houses have been demolished.

1. On the north east corner of the intersection, that is across Old Cleveland Road East from the site, is an area which has been included in the Major Centre designation of the Strategic Plan on which a small commercial centre stands.  Proceeding north along Old Cleveland Road East, opposite the commercial portion of site, the designation is for Medium Density Residential and has been developed accordingly and quite attractively.  Still further to the north, opposite the residential portion of the site the designation is Urban Residential and it also has been quite attractively developed with detached housing.  The south west and south east corners of the intersection are designated Major Centre and have been developed commercially.  Thus the intersection itself is both designated and very substantially developed as a major commercial centre.

The Application

1. The essential part of Bunnings’ application concerns the construction of a retail hardware warehouse which is to measure 135m (some witnesses said 140m) by 70m and to stand about 9.5m high.  It is to be in the standard and familiar Bunnings shape, which presents as a large rectangular blue/green building (although the southern end actually angles back) on which the Bunnings logo and name are conspicuously displayed.  Its gross floor area is to be 11,711m², the components of which are to be a retail showroom (7,028m²), an entry (80m²), a timber sales drive-through area at the southern area of the warehouse (1,795m²) a cafeteria and children’s playground (205m²) and a plant nursery at the northern end of the warehouse (2,603m²).  The building’s long axis is to lie approximately north/south, that is, parallel to Old Cleveland Road East.  The plant nursery (34m long by 70m wide and about 6m high) will be entirely on the residential portion of the site.  Its length is additional to the 135m of the warehouse proper.  The warehouse itself is entirely on the commercial portion of the site.

1. Bunnings intends to provide road access to the site from Cleveland Road East into a re-configured mouth of Brewer Street and thence into the site from the north.  The car park (providing 358 parking spaces which is considerably more than the number actually required by the planning documents) will extend for the full length of the Cleveland Road East frontage.

1. Landscaping is proposed both within the car park and along the frontage of Cleveland Road East.  Along the Brewer Street frontage, between Old Cleveland Road East and the entry to the car park of the development, the width of landscaping is to be 16m.  Beyond that car park entry for the balance of the Brewer Street frontage of the site the landscaping is to be 27m wide.  There is also to be a small area of landscaping to the north of the mouth of Brewer Street, the intention being to make the mouth of Brewer Street attractive both for Bunnings customers and those entering and leaving the Brewer Street precinct.  The landscaping along Brewer Street is to be dedicated as parkland.

1. In December 1999 Bunnings brought an appeal before me against the Council’s deemed refusal of the 1998 application for a similar material change of use for this site.  My decision is reported as Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193. As will be seen at p 199 of the report, I was highly critical of a tactic adopted by Bunnings which I considered was designed to stifle objections from those who lived close to the site. It involved the purchase and demolition of the entire row of nine houses along the northern boundary of the site (that is, fronting Brewer Street) and the giving of dummy options to a large proportion of the nearby residents conditional upon their agreement not to object to the proposed development.

1. Bunnings did not repeat that exercise for the purposes of this application.  On the contrary it made commendable efforts to inform and involve the local community.

1. The program was implemented between October 2000 and February 2001, and included (amongst other steps) two community open days (with attendances of 106 and 55 persons respectively, three working group meetings, three meetings with senior councillors, a meeting with senior Council planning officers, a meeting with the local State Government member, various letters (and newsletters) to people likely to be interested and the establishment of a freecall community information line.

1. I accept that, following those steps Bunnings materially altered its proposal in a desire to mollify any adverse public opinion.  Some criticism was levelled at the process by objecting submitters and I accept that the criticism was genuinely expressed.  No public consultation process is likely to receive universal applause but on the whole I accept that Bunnings attempts were well meant and, within the limits imposed by its commercial aspirations, it tried to achieve compromise.

1. Although the overall proposal is similar in size, design and content, the current application is a substantial modification of the application which I refused in 2000.  The gross floor area has been reduced from 12 800m² to 11 711m²_; the height of the main building from 11m to 9.5m; the warehouse section is to be entirely on the commercial portion of the site; the buffer between the building and Brewer Street has been increased; the access to Old Cleveland Road is no longer to be at mid-point of the site but via Brewer Street which will be signalised; there has been a substantial increase in proposed landscaping both within the site and along its boundaries; there has been an attempt in the design of the building to introduce articulation and softening elements such as louvred sections and sails.  It will still, however, recognisably be a familiar Bunnings warehouse in the usual blue/green on which the Bunnings name and logo will be conspicuous.

1. The purchase and demolition of the nine Brewer Street houses is, of course, a historical fact and to that extent is water under the bridge.  It makes it harder to envisage that part of the site in a residential form.  However it can be done and during the hearing at this appeal Mr Raynor, an architect, actually demonstrated in an impromptu way how the land might be re-developed residentially.

Council’s Investigations

1. Counsel for Bunnings in their submissions sought to make much of the fact that the Council’s technical staff recommended preliminary approval of the application, subject to certain reservations.

1. This Court has on occasions expressed concern in cases where a local authority does not act on the advice of its technical staff:  See eg Nagy v Cairns CC (1981) QPLR 148, 149; Ingram v Maroochy SC (1983) QPLR 139, 139-140; Duncanson & Brittain (Quarries) Pty Ltd v BCC (1986) QPLR 330, 374-375; see now Fogg “Land Development Law in Queensland” pp 154-156.  In Duncanson,(supra) Row DCJ said:

“Accepting that it is the obligation of technical officers of a local authority to report and make recommendations on applications that come before the local authority, and that the obligation on the local authority is to decide such applications, the absence in any of the material which was before any political arm of the Respondent when it considered the application whereby it arrived at a decision contrary to the overwhelming views favourable to the application put forward by a relatively large number of its technical staff and the view of the Assessment Committee, is a matter of considerable concern. ….

The conduct of a responsible local planning authority which employs competent technical staff but does not accept such advices given to it by technical staff on technical matters and where no reason is advanced in any of the documentation as to why such advice was rejected or, where on the same basis a decision contrary to such recommendation is made, casts serious doubts as to the propriety of the decision-making process.  I regard it as proper in the exercise of the town planning functions of a local planning authority that it ought in such circumstances to refer to matters which led to the rejection of the recommendation, in fairness to an applicant who is then able to ascertain on what facts and circumstances the authority was rejected.  It is also fair to the technical officers that the local planning authority which rejects the recommendations tendered should set out the facts and circumstances which led to the rejection of such recommendations.”

1. In Ingram at 140, Carter DCJ expressed the view that, in such a case, “the whole matter deserves the closest scrutiny”.

1. I regret that I do not entirely share the concerns of the learned judges in the two authorities referred to.  The appeal before me is a hearing anew (Integrated Planning Act 1997 (“IPA”) s.4.1.52(1)). That must mean that on appeal this court has regard to the material then properly placed before it. That material includes the evidence of expert technical officers who are called, examined and cross-examined. Thus the court can form an opinion on the quality and accuracy of their opinions. Only if the other party consents to a report or statement being tendered without need for cross examination (in which case the expertise of the author and the accuracy of the opinion are accepted) is the ordinary process departed from. That was not the case here in relation to the Council’s technical officers and therefore, so far as the accuracy of their opinions is concerned, their reports are simply hearsay.

1. The reports are, of course, evidence of what was put before the Council and to that extent would be admissible if relevant as they would be, for example, if a ground of appeal was that the Council’s decision was perverse (a ground which has never been raised in any appeal I know of).  One does not know why the Council might decline to accept technical advice (although one might argue that amenity, for example, is a matter of fact upon which a layman’s opinion is as good as that of an expert).  Whatever the reason the Council, as the democratically elected representatives of the electors has the final decision and for that the councillors answer, ultimately, to the electors.  Carter DCJ, in Ingram, at 140 accepted that proposition. But on an appeal de novo, all that seems to me to be irrelevant.  The developer carries the onus on the appeal and that is so whether the appeal is brought by the developer or the submitters.  See IPA, s.4.1.50. It is the Court which must decide, on the evidence properly placed before it, whether the onus has been satisfied. This principle was recognised by Quirk DCJ in CSR Ltd v Caboolture SC (2001) QPELR 348 at paras [7]-[9]. In reaching its conclusion it would be strange, to my mind, if the Court ignored the rules of evidence. Finally, unlike for example Nagy, the Council before me led credible expert evidence in support of its refusal.

1. In any event, in this case the Council’s technical officers expressed several reservations on which they were yet to be satisfied.  I do not know how seriously held those reservations were nor do I know to what extent the officers would have been satisfied by the further material which was supplied by Bunnings.  For example, the officers spoke of a 40m wide park, almost twice as wide as what Bunnings now propose.  Would the proffered 27m wide park have satisfied them to the extent that they gave an unqualified recommendation, it being a matter which, many people might think, seriously affects the issue of amenity?

Issues

1. The issues in the appeal can be described under the headings Planning Documents, Need, Overdevelopment, Traffic and Amenity.

Planning Documents

1. The planning documents to which I was referred are the Strategic Plan, Development Control Plan (“DCP”) No 1, and draft DCP 4.

Strategic Plan

1. The commercial portion of the site (2.17 hectares) is within the area designated Major Centre on the Strategic Plan Map.  The residential portion (1.1 hectares is) is designated for Urban Residential purposes.

1. The Strategic Plan states, under Section 4.2.1 of the Preferred Dominant Land Use Intents in respect of urban residential land, that whilst –

“residential uses will dominate, certain non-residential support facilities which provide local services to residents of an area may be contemplated in certain appropriate locations and subject to detailed development requirements which are designed to achieve a satisfactory form of development compatible with residential living.  These facilities may include community support services such as local shopping developments, medical centres, churches, child car care centres, educational facilities and the like.”

1. In s.4.3 the Strategic Plan states that where development in the Urban – Employment and Services Oriented designation (which includes the Major Centre designation):-

“adjoins areas of existing or future residential development, the height, bulk, orientation and design of development and the treatment of signage, lighting, car parking, points of ingress and egress, landscaping, fencing and buffering will be required to provide for the reasonable protection of the amenity of the adjoining residential development.”

1. In their written submissions, counsel for Bunnings directed me to s.4.3.1 of the Strategic Plan which emphasises that the Major Centre designation is intended to accommodate the Shire’s major retail and commercial activities.  I was directed to s3.4 which identifies goals aimed at increasing local employment opportunities throughout the Shire with particular emphasis on the Capalaba Business Centre.  They also referred me to s3.4(e) which states the importance of providing appropriate buffers to surrounding areas in order to protect the amenity of those areas.

1. In my view it must be accepted that the proposal is in conflict with s.4.2.1 of the Strategic Plan (para [25] above).  That part of the complex which is to be set on the designated urban residential land could in no respect qualify as one of the acceptable developments contemplated by that section.  It contains a large plant nursery, a very large area of car park, the café and a children’s play area, as well as a five lane sub-arterial access road.

1. A plant nursery is a consent use in the residential zone and an argument could conceivably be mounted that this indicates a form of compatibility with residential use.  However I am reminded, appositely, by Mr Ure that this nursery structure measures 34m x 70m, is bounded by concrete walls on which would stand a chain wire fence shrouded in more or less opaque green shade cloth.  On top of the fence is to be barbed wire.  The height of wall/fence structure is to be some 6m.  The car park on the residential portion which might notionally be allocated to the plant nursery provides for over 70 cars.

1. To regard the nursery as a development separate from the overall complex would be to ignore the real nature of what Bunnings wish to create on the site.  There was no suggestion that Bunnings would proceed with a warehouse minus the plant nursery.  No observer would look at the structure which actually will be on the residential portion and see it simply as a plant nursery with attached café and child play area, supported by a car park of surprising generosity.  That person would see these things as the northern end of the Bunnings warehouse.

1. It cannot be forgotten that the entire traffic to and from the site, at peak times in very large numbers, will make use of the mouth of Brewer Street.  I leave aside for the moment the effect of that on issues such as amenity and traffic, and simply observe that such a flow of traffic would emphasise the fact that what is on the site is not merely a plant nursery or other “support facility” …. “compatible with residential living” but a very large commercial development.  This undesirable aspect was helpfully dealt with by Mr Perkins, the consultant town planner called by the Council.

1. Section 4.3 (para [26] above) squarely raises the issues of over-development and amenity and it is convenient to touch on those issues now.

1. The section specifically urges caution in relation to height, bulk, orientation and design of development where, as here, the proposed building adjoins residential land.  Indeed this proposed building, looked at as a whole (as I have said it must sensibly be) would actually encroach into residential land.  That being so, I do not see how it could sensibly be argued that there is not a serious conflict with s.4.3.

1. However, lest I should be wrong in visualising the whole building when considering its effect on s 4.3, I will look now at the warehouse section only.  It would stand entirely on the commercial portion of the land.  Despite the attempts to soften its outline it would be a very long, wide and tall building, apparently rectangular in shape.  It would extend virtually to the boundary of the residential portion of the site.  Almost the entire length of the Old Cleveland Road East frontage would contain a car park containing at least 17 lines (perpendicular to the road) of parking spaces, most lines carrying up to 14 cars.  Over 60 parked cars would be at the road frontage and would face the road and about 30, parked at the warehouse wall would present either bonnet or boot to view.  Much of this section of the road is higher than the car park so that a bird’s eye view of the car park would be obtained.

1. A commendable attempt has been made by Mr Hassall, a landscape architect, to provide screening both along the road frontage and along the lines of car parks.  Computer generated photos were tendered to show the hoped for effect.  I remain unsatisfied that the effect will be as satisfactory as the photos showed and I consider that the narrow strip of landscaping along the footpath of Old Cleveland Road East would not have much practical effect.  And of course it would take a few years at best before much effect at all would be achieved.  So despite the best that skilful landscapers could do, in my view this would be and always be visible as a large blocky building.

1. To a lesser extent (because of the increased capacity for landscaping) the view of the building from Brewer Street would also be of a large commercial building.  That would be reinforced by the effect of the heavy traffic entering and leaving the access point for the car park.

1. It is appropriate at this point to refer specifically to the proposed landscaping along the northern boundary of the site and the small section on the north side of the re-figured Brewer Street entrance.

1. I think that Mr Hassall has made a valiant attempt not only to mask the proposed warehouse by the use of mounding and tree planting, but also to actually improve the visual amenity of residents of the Brewer Street precinct.  I do not think, however, that this attempt would meet with success.  Even given optimum growth of the vegetation I consider that the large commercial building will be substantially visible.  I do not accept that the electronically produced photo montages show accurately what the final result would be.  In any event some years would elapse before any appreciable screening would be achieved.  Finally, I think it highly unlikely that anyone would make use of the 27 m wide section of park land.  The 13m un-mounded width could probably not be used actively.  Then one must doubt whether the parkland would be maintained often enough and well enough to make even its passive enjoyment as a view very enjoyable.  Finally, the provision of a pedestrian walkway to the playing fields and natural areas beyond, while convenient, is not necessary to get access to those areas.  Overall, therefore, the amenity of the residential area would not be given the protection that the Strategic Plan calls for by the landscaping and park dedication proposed along Brewer Street.

1. Of course it is no part of a responsible planning authority’s job (nor that of the Court) to refuse an application because it is not as attractive as it might be.  But where the proposal is met with a conclusion that (as here) it does not conform with a clearly stated aim of a Strategic Plan it is apposite to consider whether it is physically or economically possible for a proposal of the relevant type to conform with that aim.  If it is not, then naturally the planning authority will be more flexible in its attitude to the offending proposal.

1. In this case it seems clear that Bunnings has gone virtually as far as it can to attempt to comply.  The central problem it faces in complying with s.4.3 is the commercial necessity to present as a Bunnings Warehouse which entails the general shape, size, colour and obvious car park of the proposed development.  These are the very things which in my opinion offend the section.

1. I think it is important to bear in mind that Bunnings is not the only commercial enterprise to whom this site is likely to appeal.  Mr Raynor quickly drew a concept plan of a large commercial development which he said could easily be built on the commercial portion of the site incorporated with a residential development on the residential portion of the site.  Mr Brameld, a traffic engineer, said that it could easily accommodate necessary parking and traffic movements.  I accept the evidence of Mr Raynor and Mr Brameld.  I am not called upon to rule on that but it is obviously a concept which is vastly more sympathetic to s 4.3 than the Bunnings proposal.  It contained a cluster of buildings of much smaller size and bulk than the subject proposal with car parks very largely concealed from public view.  There would be ample room for landscaping.  All told the complex would be very much more compatible with the adjacent residential amenity, while carrying out a commercial function on the commercial portion of the site.  Furthermore the concept plan demonstrated that the residential portion would not be sterile but could be used attractively for residential purposes.

1. I conclude that the subject proposal is in conflict with s.4.3 because of its height, bulk, orientation and design and the treatment of car parking, points of ingress and egress and landscaping of the car park areas.  Because of those matters it does not “provide for the reasonable protection of the amenity of the adjoining residential development”.

1. I should make it clear that for these purposes I do not regard the “adjoining residential development” to be restricted to the residences on the north side of Brewer Street, although those are most affected.  It would also adversely affect the residential areas to the east, across Old Cleveland Road East.  The upward slope of land there would give very many residents a clear view of the site, as my inspection of the area showed.  I also take into account the amenity of the Brewer Street precinct as a whole, the residents of which could access their houses only by close contact with the Bunnings complex and its traffic.

DCP No 1

1. The residential portion of the site lies within the land designated residential under DCP No 1.  In Division 3, cl 7(2)(h) of the DCP the statement is made that:-

“An application for consent to erect a building or other structure or to use land for a residential or non-residential purpose in an area included in the Residential A Zone or designed Residential A on map sheets 2 to 19 will not be considered favourably if in the opinion of the Council, such building, other structure or use would be detrimental to the amenity or likely future amenity of an area or if it would be better located in association with or in the vicinity of an existing or approved non-residential use or in a part of the zoned or designated area which is subject to or is likely to become subject to the adverse influence of a non-residential use or uses.”

1. This provision emphasises again the need to protect the amenity of the area (that is the area I have referred to in para [41]) and expresses the intent to prefer the development to be in a less sensitive area. It does not really add much to the debate relating to the Strategic Plan except to establish the fact that not only the Strategic Plan but also a DCP are in conflict with the proposal, thus giving very clear rise to the application of s 4.13(5A) of the repealed Local Government (Planning and Environment) Act 1990 (“P&E Act”) which is made applicable by s 6.1.30(3)(b) of IPA (because this is a transitional planning scheme under s 6.1.2 of IPA).  That provision is:-

“s 4.13(5A)(1).  The local government must refuse to approve the application if –

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

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

Draft DCP No 4

1. Mr Perkins and in his submissions Mr Ure placed a good deal of weight on the provisions of this draft DCP which relates, among other areas, to the intriguingly named Black Stump Area, in which the site falls. Of course, being only a draft DCP it cannot (if relevant at all) achieve the importance of an established DCP so as to attract the attention of s 4.13(5A) cited in para [45] above. The question, however, is whether it deserves any weight at all as indicative of the Council’s planning policy. Mr Ure, submitted that it should carry considerable weight. Mr Gore QC submitted that it should be totally ignored.

1. Public exhibition of Draft DCP 4 took place just over seven years ago and the public notification period expired almost seven years ago.  There is a power to extend (apparently never applied) so it seems that under the P&E Act, s 2.20, the Council should have applied for approval of the draft by a date which, again, was some seven years ago. However there has been no activity by the Council to take the draft DCP forward since then.

1. A draft planning instrument, if well on the way to adoption can carry weight, even extreme weight.  See Lewiac Pty Ltd v Gold Coast City Council (1996) 2 Qd R 266 at 270. But all that can be said here is that the Council applied it in one decision notice in May 2001. I gave weight to it in my January 2000 Bunnings decision (at para [14]) but 2½ years have elapsed since then with no change in status of the draft. Quirk DCJ in November 2001 in MPR Constructions Pty Ltd v Redland Shire Council (2002) QPELR 256 is reported in the head note as placing reliance on it but on my reading of the decision at 258 he merely referred to it as being consistent with the Strategic Plan. To my mind the draft DCP has become virtually moribund.

1. It was said that the failure to carry the draft forward was caused, first, by pre-occupation with the hugely time consuming task of drafting an IPA scheme, and second, because of a difficulty with one aspect of the draft (not presently relevant). That may be so, but had the draft remained an active part of Council policy I would think that applicants would routinely be told of its relevance and that its provisions would be in the course of being incorporated in the IPA scheme. Then I would be more inclined to give it weight. Evidence could have been led of those things, but was not. I place no weight on it.

Need

1. The concept of need, in planning terms, is well settled:-

“need does not mean pressing need, critical need, widespread desire of anything of that nature.  Rather, a thing is needed if its provision, taking all things into account, would approve the physical well-being of the community” (Cut-price Stores Retailers v Caboolture Shire Council (1984) QPLR 126 at page 131)”;

and

“need in planning terms is a relative concept and does not connote pressing urgency but rather relates to the general wellbeing of the community; a use would be needed if it would, on balance, improve the services and facilities available in the locality” (Rooster Land Pty Ltd v Brisbane City Council (1986) 23 APAD 58 at page 60).”

1. Since the 1998 proposal was refused there has been an increase in population growth of about 10% (about 12,000 people).  The more important change has been the takeover of the only super hardware in Redland Shire (the former BBC hardware house) by Bunnings, who are operated it since as Bunnings Capalaba.

1. It is the opinion of Bunnings, as a specialist retail operator, that the existing Capalaba superstore has real deficiencies.  It is supported in this claim by Mr Norling, an economic analyst.  Bunnings’ evidence was that it trades below normal Bunnings expectations.  Only if considerable sums of money (estimated at $3 million) were spent to bring the existing store more into line with the standard Bunnings warehouse would the situation improve markedly.  Even then it would not be ideal.  The car park, for example, is said to be smaller than Bunnings would like.  It is not as visible to road users as it should be.  Furthermore a complication is that Bunnings is simply the lessor of the premises so that there would be practical and legal difficulties in making substantial alterations.

1. It was common ground between the experts that in nominal terms, an increase in floor space in the trade area comprising Capalaba and its environs is justified by the recent and forecast growth in trade area population and the accompanying increase in retail expenditure by trade area residents.  It seems clear that the proposed store would offer a greater depth of selection and that it would have advantages in accessibility and exposure.  I am prepared to accept that the hardware store proposed for the site would involve the best that the nation has to offer in the sale of hardware and home improvement products.

1. There is a substantial number of medium to large sized hardware stores in the Redland Shire.  The existing Bunnings at Capalaba is a hardware super store and is located only a short distance away from the site.  The evidence was that if this application is refused Bunnings will still operate the existing Capalaba store until an alternative site can be secured.  There is also the 13,000m² Hudson Timber and Hardware on Redland Bay Road Capalaba, a 1,600m² Mitre Ten Home and Trade store at Cleveland, a 754m² Ace Home Hardware store at Cleveland, a 1,425m² Home Hardware store at Victoria Point and a 1,155m² Mitre Ten store at Redland Bay.

1. There is also a range of small localised hardware stores that provide a convenience function for residents of the surrounding area.  They include a True Value Hardware in Alexandra Hills (187m²), a Key Hardware in Birkdale (180m²), a True Value Hardware in Birkdale Fair (240m²) and a Thrifty Link (132m²) in Ormiston.  Hardware is also available from Big W, Target and Kmart.  Further, in addition to the hardware stores and garden centres, there is a range of specialist stores located in Redland Shire which cater for the specific needs in one or two of the product groups offered by Bunnings Warehouses.

1. The lack of visibility of the existing Bunnings Capalaba is not in my opinion a very substantial disadvantage.  As Mr Coghlin said, a visit to such a large store is a destination trip, not a drop-in trip and most people will know, or find out, where it is.  Nor will they care if it is a little further away.  Mr Coghlin was also doubtful that the massive outlay suggested by Bunnings to improve the existing store was really necessary.  He thought that a re-design of the interior and the racking system would produce a substantial improvement and he also doubted that the reduced stocking capacity very much reduced the ability to stock the most popular goods.  Then, Mr Brameld was of the view that the car park could be substantially improved with relative ease.

1. The evidence of Mr Coghlin, in his report exhibit 18, and orally, was that there was no need for this proposal.  His view was that there would be no appreciable increase in convenience to trade area residents by building a Bunnings warehouse on to the site.  The proposal is for a relocation from the nearby existing Capalaba site so it would not be the creation of a competitive alternative.  Nor would there be likely to be the creation of extra jobs.  He was of the view that there was no indication that notable latent demand exists which the proposal would satisfy because, on the available figures the existing Bunnings store at Capalaba does not appear to be overtrading.  The expenditure by this trade area’s residents on hardware and home improvement items is actually higher than the Queensland average.  He considered that there is no indication of a substantial proportion of spending by this trade area’s residents who buy these retail categories going to stores outside the trade area because of insufficient selection within the trade area.  In fact, exhibits 22 and 23 (Bunnings financial records) reveal that there is very small leakage of expenditure from within the primary trade area to Bunnings Cannon Hill, the store one would expect would be capturing leakage if there were dissatisfaction with what is available within the Shire.  He felt that the proposed store would largely duplicate the format and merchandise mix of the existing Bunnings Capalaba store, albeit that there would be a benefit in the form of some increase in selection provided by the larger Bunnings store.

1. In the upshot, while I consider that the evidence establishes that the proposed Bunnings Warehouse would supply a planning need (as to which see para [50]) it is a minor need.  So far as I can tell all the articles to be sold by Bunnings in the proposed store would be available from various stores within a drive of a reasonable time and distance for any shopper.  Indeed my recollection of the inspection and of the evidence is that the drive from the site to Bunnings Cannon Hill store is about 15 minutes and that store supplies everything which the proposed store would supply. 

1. I am left with the distinct impression from the evidence that the existence of the proposed hardware store on this site would not so much improve the convenience of the shopper as work for the financial benefit of Bunnings.  There is nothing illegal or unusual in that and indeed it is an expression of the free enterprise system.  But it is not the filling of a need in planning terms.

Overdevelopment

1. This issue has been adequately covered in paras [28]-[41].  It is my view that the proposal would be an overdevelopment of the site.

Traffic

1. From the purely traffic engineering point of view I do not see any material conflict between Mr Beard, Bunnings’ consultant, and Mr Brameld, the Council’s consultant.  The quite unsatisfactory aspects of the 1998 application have been abandoned.  From the viewpoint solely of Bunnings and its customers the traffic and parking layout are both eminently safe and convenient except for the very minor inconvenience of having to give way to the comparatively few Brewer Street precinct vehicles at the actual entrance to the car park.

1. The provision of traffic lights at the intersection of Brewer Street and Old Cleveland Road East would be a vital necessity given the volume of Bunnings traffic.  I was rather surprised to hear some of the local residents say that they saw no advantage in having them.  The large volume of traffic on the arterial road must frequently make gap selection by a motorist emerging from Brewer Street a hazardous event.  Traffic lights would prevent that and the delays caused by lights would be a very small price to pay.  Without the Bunnings development traffic lights will probably not be installed for a long time to come and I think that is a disadvantage.  However it is not a sufficient disadvantage to justify the overall development.

1. The material point about this issue relates to amenity.  I have sought to describe the adverse visual effect of the very large car park on users of Old Cleveland Road East and on residents of the area.  I have touched on the effect of the volume of the Bunnings traffic in emphasising to Brewer Street precinct residents and motorists the nature and size of the Bunnings development.  The fact that the Brewer Street precinct traffic would be thrown against large volumes of Bunnings traffic, while not a matter of safety, is certainly a matter of amenity.  Many Brewer Street precinct people will have the feeling that access to their homes has to be gained via a large commercial entity which requires a five lane road.  The re-design of the mouth of Brewer Street could create actual manoeuvring difficulties for the couple of households in the stub road which is created as consequence.

1. In my view this adverse effect on the amenity of the Brewer Street precinct is a substantial one.  The concept plan drawn by Mr Raynor, as explained by Mr Brameld, demonstrates that traffic to and from a large but sympathetically designed commercial complex need not affect the residential amenity of the Brewer Street precinct.

Amenity

1. I have set out in some detail the serious adverse effects which I consider the establishment of the proposed Bunnings Warehouse would have on the amenity, most particularly, of the Brewer Street precinct, and to a lesser but still unacceptable extent on residents to the east and further north of the site.

Conclusion

1. I have found conflict between the proposal and the strategic plan as well as DCP No 1, manifested by serious amenity consequences, overdevelopment of the site and its incompatibility with the adjoining residential neighbourhood.  In favour of the proposal is the filling of a minor need and an amelioration of a slight traffic danger.  Those two advantages are insufficient to satisfy me that the application should be approved notwithstanding the conflict.  The appeal should be dismissed.