CPT Manager Limited v Central Highlands Regional Council
[2009] QPEC 100
•21 October 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
CPT Manager Limited v Central Highlands Regional Council & Ors [2009] QPEC 100
PARTIES:
CPT MANAGER LIMITED (ACN 054 494 307)
Appellant
V
CENTRAL HIGHLANDS REGIONAL COUNCIL
Respondent
And
LASCORP DEVELOPMENT GROUP AUSTRALIA PTY LTD
Co-respondent
And
THE CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
Co-respondent by Election
FILE NO/S:
BD 2840/2008
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, at Brisbane
DELIVERED ON:
21 October 2009
DELIVERED AT:
Brisbane
HEARING DATE:
Site inspection at Emerald 14 September 2009; heard at Brisbane on 15, 16, 17, 18 and 21 September 2009; written submissions of the parties received up to and including 5 October 2009
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – PLANNING LAW – CONSTRUCTION OF PLANNING SCHEMES – CONFLICT BETWEEN DEVELOPMENT PROPOSAL AND PLANNING SCHEME – NEED FOR DEVELOPMENT – whether development proposal for discount department store, supermarket, showrooms and specialty stores in light industrial area and outside CBD in regional town is in conflict with planning scheme – analysis of scheme – level of conflict – whether sufficient planning grounds to overcome conflict – whether development needed
Integrated Planning Act 1997 s 3.5.5(2), s 3.5.14(2), s 4.1.50(2), s 4.1.52(2)(a)
Cases considered:
Luke v Maroochy Shire Council [2003] QPELR 447COUNSEL:
J E Gallagher QC and M F Johnston for appellant
S Ure for respondent
D Gore QC and J D Houston for co-respondent
N J Kefford for co-respondent by electionSOLICITORS:
Minter Ellison for appellant
King and Company for respondent
Flower and Hart for co-respondent
Crown Law for co-respondent by election
Emerald, in the Central Highlands, does not have what retailers and town planning schemes usually call a ‘discount department store’ (DDS) – a retail outlet of the likes of Target, Big W and Kmart. Lascorp seeks to develop a site on the outskirts of the town with buildings which would house a store of that kind, and a supermarket, and some retail showrooms and specialty shops. Council approved the proposal but CPT, which is associated with the operator of the two major existing shopping complexes in Emerald and is, effectively, a commercial competitor, appealed that decision.
The principal issues are whether a development which would be located on land that the local planning scheme designates for light industrial uses, and which would become the largest single retail centre in the district, is too remote from Emerald’s central business district (CBD) and, therefore, in substantial conflict with the provisions of the scheme; and, whether Emerald and the Central Highlands need it.
Council has also approved a large Bunnings homemaker centre on an adjoining site and the issues fall to be considered in light of the prospect that, in practice, these new developments in the locale will become a powerful rival to the town’s CBD and draw business away from it – whether they might, in effect, fragment the town.
Concern about the risk of fragmentation was partly dispelled, however, on the first day of the hearing which was taken up with a visit to Emerald. The town presents as attractive and prosperous but also flat, low lying and quite spread out. The CBD, both in physical form and as it appears in the relevant planning scheme, stretches in an approximate boomerang shape between the appellant’s two shopping centres which lie a significant distance apart – about 1.5 kilometres.
Between them are a variety of retail, commercial and government buildings but, despite recent improvements to the main street (Macrossan Street) it remains improbable that residents and visitors would move about the CBD as they might in a town with a more compact and walkable centre. It was noticeable during the inspection that people do not, unsurprisingly, appear to walk between the two existing nodes or, indeed, around the CBD much at all.
The scale of the town and the significant distance between its major features can be appreciated by noting that Emerald Hospital is approximately two kilometres to the north-west of the CBD, and the airport about four kilometres to the south. The approved Bunnings development will be about two kilometres to the east of the centre of town. The CBD has, in total, about 29,000 square metres of retail floor space but almost half of that is occupied by the two existing major shopping centres, which lie at its farthest reaches.
The strong impression is that the town lacks a single, recognisable central retail node and, indeed, that the main retail activity is already at the extremes of the CBD, at each of the appellant’s centres. The proposed new development will be about one kilometre to the east of the eastern end of the CBD and will, in these circumstances, simply represent another node ordinarily reached by motor vehicle.
Lascorp’s proposal involves a DDS of 8,200 square metres, a supermarket of 3,950 square metres, retail showrooms containing 3,150 square metres and specialty shops covering 3,000 square metres; plus, 829 carparks. Commitments have been received from Woolworths to operate the supermarket, and Big W for the DDS. Woolworths’ support is not affected by its very successful store in the Emerald Village Shopping Centre, the node at the north-west extreme of the CBD area.
The site itself contains 5.8 hectares and faces the Capricorn Highway, at the eastern gateway to Emerald. Immediately to the east is the site approved for the Bunnings Warehouse and Retail Homemaker Centre. To the west across Codenwarra Road is a large site containing a service station and truck stop. The Gregory Highway intersects the Capricorn Highway nearby on the south side.
The two existing shopping centres are Emerald Village which has the existing Woolworths Supermarket and a number of specialty stores; and Emerald Market Plaza, towards the eastern end of the town near the Nogoa River, which has a Coles supermarket and a very small Target store, and some other specialty shops. Save for that discount store there is no DDS in Emerald. A number of residents gave evidence to the effect that one is desirable and the nearest is much too far away, at Rockhampton.
Lascorp carries the burden of establishing the appeal should be dismissed: Integrated Planning Act 1997 (IPA) s 4.1.50(2). Because the development proposal was impact assessable, it had to be assessed against the matters set out in s 3.5.5(2) and could only be approved if it did not compromise the achievement of the desired environmental outcomes (DEOs) for the planning scheme area, or conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite that conflict: s 3.5.14(2).
Need
Each party called an expert retail analyst: for the appellant, Mr Leyshon, and for Lascorp, Ms Bonwick. They agreed that Emerald is a prosperous town with an average household income about 50 per cent greater than the Queensland norm; and, that the area is dominated by young families in the early to middle stage of the family life cycle with a high proportion of dependent offspring aged up to 14 years. In their joint opinion residents with these characteristics exhibit a heightened propensity for retail expenditure that caters to the needs of families, including bulk grocery shopping and household needs.
The absence of facilities like a DDS means, their evidence shows, that a significant proportion (in the order of 50 per cent) of their potential household expenditure escapes the town. Those conclusions, based upon research and established data were, again, reinforced by a number of lay witnesses who spoke of restricted retail opportunities in Emerald, what they saw as high prices, and their propensity to travel to the coast (e.g. Rockhampton) to purchase household items at DDSs and other stores there.
Underlying pressure for, and momentum towards, establishment of a DDS in Emerald was confirmed by evidence that the appellant, through one of its other entities (Centro) had been pursuing a proposal to expand Emerald Village to include a DDS since March 2007 and had achieved a measure of Council support; and, that since mid-2006 Centro has been considering expanding the small Target store to something over double its present size. The evidence also established that before Centro encountered some well publicised financial difficulties in recent times there were open discussions between it and Lascorp with respect to Centro’s possible involvement in Lascorp’s proposed development.
Both retail experts accepted there is a need for a DDS in Emerald (and that there was room for an additional supermarket) but they disagree about the extent to which the proposed development would ‘capture’ existing escape expenditure and, also, the extent to which what they called ‘rogue expenditure’ might contribute to the income of the new centre.
The notion of escape expenditure can be readily understood. Rogue expenditure represents money spent by persons who are not residents within what the experts call the trade area. Their evidence left it uncertain whether or not they were using the terms in the same way. The difference in respect of the first figure seemed, in any event, largely academic (Bonwick 65 per cent, Leyshon 55 per cent).
It was surprising that Mr Leyshon’s estimate of captured escape expenditure was as high as 55 per cent, but in his opinion rogue expenditure would be only 5 per cent (as opposed to Ms Bonwick’s 20 per cent). If the development is sufficiently attractive to capture such a high proportion of retail expenditure which might otherwise have left the trade area it appears to follow, logically, that rogue expenditure would increase to a more marked degree than 5 per cent, or one twentieth.
Disputes about these figures, and other aspects of the experts’ evidence, exercised the parties in their submissions but the arguments are, with respect, of limited assistance and, to an extent, arid. There was tangible and persuasive, and less technical, evidence of strong need from residents like the immediate past president of the Emerald Chamber of Commerce, Mr Taylor, who was plainly familiar with and interested in retail opportunities in Emerald and spoke with the advantage of deep seated local knowledge.
Other residents spoke in terms that were, at times, almost plaintive about the limited shopping opportunities in Emerald and the need for them to travel long distances to obtain items and products they wanted at prices they thought were reasonable. Evidence from representatives of Woolworths and Big W was persuasive that, unsurprisingly, those very large retail corporations have access to information, and expertise, which founds profitable decisions about development, and that they believed this development would meet an obvious, present need.
That evidence, combined with the conclusions of the retail experts, was strongly persuasive that there is a high degree of need for this proposal – and, importantly, the level of need is such that its satisfaction will not create any unacceptable impact on existing retail facilities in the town but, rather, contribute to its economy and bring significant advantages to the community. It will also, of course, further entrench the regional role of Emerald as the major town in the district – something which, as will be seen, is enshrined in the Council’s planning scheme.
It is appropriate to remark that despite vigorous attacks upon Ms Bonwick in the appellant’s submissions, her written and oral evidence left the plain impression that she had sufficient understanding of the history of retail development in Emerald to reach conclusions, from her research, which were sound and helpful and that criticisms of her in respect of such things as a failure to take into account the supermarket at Blackwater, a considerable distance away to the east, were of little moment and did not detract from the calibre of her evidence. In particular, in light of the fact that Mr Leyshon accepted the existence of a need for a DDS in Emerald and the presence of sufficient population to support another full line supermarket, her conclusions about need could not, in truth, be gainsayed.
It is also a matter of simple but irrefutable logic that, as she said, a development like this proposal will increase the range of economic and social benefits through additional competition and the convenience of a wider range of retail outlets.
In the result, it is inescapable that Lascorp has met the burden of showing that there is a need for a DDS in Emerald, and the level of need can be fairly described as strong; and, that there is also sufficient need for an additional supermarket which, at this location, will also provide more convenient shopping for residents in the developing, and expanding south-east portion of the town along the Gregory Highway (who are at risk of being cut off from the existing supermarkets to the west of the Nogoa River, as occurred earlier this year for some days).
There was no evidence to suggest the existence of other smaller retail outlets in the proposal will have an adverse effect upon the CBD and they will, again, provide benefits of the kind identified by Ms Bonwick. Need is not, in summary, an issue which tells against the development and is, rather, something which offers it a high degree of support.
Planning issues
The operative planning scheme at the time this development application was made, and against which it was assessed and approved by Council, was promulgated in 2007. In 2009, a new planning scheme called Emerald Shire Plan 2009 was introduced. IPA s 4.1.52(2)(a) provides that the court must decide the appeal based on laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate. The town planner called by the appellant sought to establish that the 2009 Scheme was, in effect, novel but, on examination, it can be seen to largely involve amendments to parts of the prevailing 2007 Scheme which are irrelevant for present purposes.
The appellant’s assertions that Lascorp’s proposal is in conflict with the planning scheme focussed upon the scheme’s ‘Desired Environmental Outcomes’ (DEOs); wording associated with the purpose of its Town Zone Code; overall outcomes sought for precincts called Commercial, and Light Industrial; and, the Commercial Code.
Under the 2007 Scheme Emerald is contained in the Town Zone, divided into 11 precincts including, relevantly, the Town-Commercial Precinct (effectively, the CBD) and the Town-Light Industrial Precinct (in which the site for the development is located). Analysis of the Town Plan by the planning experts was clouded, however, by a disagreement about the meaning of the expression ‘the town of Emerald’ in relevant DEOs, and the Town Zone Code; whether or not a retail/commercial complex was impact assessable in every precinct, or whether a shop in the Town Commercial Precinct would be only code assessable; and, whether a reference to a DDS containing an area greater than 1,000 square metres in the Commercial Code reflected a planning policy, in the scheme, about the importance of locating any future DDS in the CBD.
The notion that references to ‘the town of Emerald’ in relevant parts of the scheme mean only the CBD does not withstand analysis. There is, firstly, no logical reason why it should bear that meaning when the region is large, and the town is plainly an important but quite discrete entity. Then, a number of parts of the scheme make it plain that the phrase is used in a broad, general way and not with particular reference to the CBD alone: Zoning Map 2 shows all the precincts in the Town Zone and notes that it ‘...reflects the town of Emerald’; and DEO (b) refers to the town as the ‘…main centre of the Central Highlands, Queensland’ in a context which plainly refers to the entire town. Other references in Overall Outcomes Nos 1 and 2 in the Town Zone Code reinforce that construction, as do references to Industrial precincts in DEOs and the Reconfiguring a Lot Code.
Otherwise, the proposal fell to be assessed in the context of a scheme containing statements reinforcing the notion that Emerald will provide, so far as possible, important functions for the Central Highland region. One of the DEOs[1] speaks of the town as the main business and economic centre providing higher order services and a range of community and civil functions for the Central Highlands. Overall Outcomes Nos 1 and 2 speak of the purpose of the Town Zone Code in terms that the town is identified as the ‘key service town which serves the Shire’, consolidating commercial, community and public uses and ensuring that the town is easily identifiable, and an accessible community centre.
[1]DEO 3.1.1(4)(b).
At the core of the appellant’s case is the proposition that the planning scheme looks to place developments like Lascorp’s in the CBD, and turns its face against permitting it in the Light Industrial precinct, as proposed. A ‘retail/commercial complex’ is defined to include the hire and retail sale of goods in premises having a total use area greater than 2,000 square metres in a single complex, or separate buildings. That term already applies to the existing Emerald Village and Emerald Market Plaza centres, as it will to the Bunnings development and, if allowed, the proposed development.
The scheme provides[2], however, that a retail/commercial complex is impact assessable in every precinct in the Town Zone. That can be seen when the definition of these complexes is considered in the context of the definitions of ‘shop’’ and ‘showroom’. Within the definitions is wording which shows that a single shop or showroom with a total use area greater than 2,000 square metres is properly characterised as a retail/commercial complex. It follows that any proposal within the town of Emerald which includes something like a supermarket or DDS greater than 2,000 square metres is impact assessable in every precinct. The particular, relevant result is that proposals for a DDS on the scale under consideration would be impact assessable within the CBD. It cannot be said, then, that the scheme manifests an obvious design, intent or preference to posit retail/commercial complexes only within the CBD.
[2]In Table 4.3.1.
In the Light Industrial Precinct there is also, relevantly, no apparent discouragement of what the Planning Scheme describes as the ‘commercial use class’ which collectively refers to caravan parks, commercial premises, food premises, hotels, indoor entertainment, motor sport facilities, off street carparks, outdoor entertainment, plant nurseries, retail/commercial complex, service stations, shops, showrooms and vehicle showroom uses.
Within the scheme, too, four of the 10 precincts specifically provide overall outcomes which look to minimise the inclusion of uses within the Commercial Use class, but no such provision is contained in the overall outcomes for the Light Industrial Precinct. Moreover, there is express recognition in three of the seven overall outcomes that in certain circumstances a range of uses in the Commercial Use class may be located in that precinct including service industries and uses, servicing employees of industrial uses, indoor and outdoor entertainment, and showrooms and vehicle showrooms.
In the Town-Commercial Precinct (CBD) the overall outcomes specifically refer to shops but not retail/commercial complexes, and look to minimize ‘land consumptive uses such as vehicle showrooms’. The expert town planning witnesses accepted that a supermarket or DDS on the proposed scale was a land consumptive use.
In summary, while the planning scheme accommodates retail/commercial complexes within the CBD, it does not contain anything signifying a plain intention that a complex of that kind can only be located within that precinct; but, additionally and relevantly, these aspects of the scheme also indicate that the Light Industrial Precinct is identified as an appropriate alternative to the Town-Commercial Precinct for the location of a retail/commercial complex.
The way the planning scheme addresses larger retail/commercial premises was correctly described, I think, in a report from one of Council’s own officers on Lascorp’s development application in which it is observed that the scheme does not have an elaborate hierarchy of commercial centres and, in light of the fact that the assessment tables show a development of the kind proposed is impact assessable in all precincts, cannot be said to particularly favour the Town-Commercial Precinct. While the purpose of the Town Zone Code does seek to consolidate commercial uses in the town, that is a reference to the designated urban area of the entire town and extends to and allows for consideration of land outside the CBD Precinct.
The fact that the only reference to a DDS in the planning scheme is in the Commercial Code is not, it should be observed, expressed in terms indicating an actual preference for stores of that kind in any particular precinct. It simply records that DDSs and shops with a total use area greater than 1,000 square metres and showrooms are ‘acceptable’ in the Town Commercial Precinct. Indeed, the reference contains an intrinsic recognition that (as observed during inspection of the CBD) the majority of sites within the central part of the town are small.
That conclusion is supported, too, by evidence that previous attempts to expand the existing centres have incorporated proposals which involved taking part of some public parkland near the centre of town, or redeveloping an apparently abandoned RSL Club. As the evidence also indicated, and observation confirmed, no ready site for a large scale DDS presently exists in the CBD and attempts to accumulate a parcel of sufficient size would involve the acquisition and agglomeration of parcels containing other existing retail or commercial uses (or, the resumption of quite a large part of a park which, to the visitor, represents an important and attractive spine running through the town – a proposal which, it might reasonably be thought, would meet with considerable public opposition).
The Commercial Code also contains requirements for building scale and form for development outside the Town Commercial Precinct, but it does not directly pertain to the regulation of precincts in which a commercial use may locate but, rather, elements of design and structure. It is also to be observed that Overall Outcomes for the Commercial and Light Industrial Precincts do not suggest, firstly, that a retail/commercial complex can only locate in the Commercial Precinct, or is expressly discouraged in the Light Industrial Precinct.
The conflict between this proposal and the planning scheme asserted by the appellant focuses, firstly on DEO(b) which speaks of Emerald as the main business and economic centre, and Overall Outcome 2 of the Town Zone Code which refers to the consolidation, within the town, of commercial, community and public uses. As already observed, to construe these provisions as necessarily implying a reference not to the town itself but, more precisely, to the CBD alone is incorrect.
It is also alleged that there is conflict with the scheme insofar as it may be said to indicate a preference for developments of this kind within the Commercial Precinct. While it is true that one of the overall outcomes for that precinct refers to uses predominantly of a commercial and business type (including shops, commercial premises, motels and hotels) that is, in context, not a sign that a development outside the preferred area necessarily attracts conflict. Nor will conflict arise, as a matter of necessity, when a proposed development is not strongly specified or plainly promoted in a particular area, but not elsewhere.[3] ‘Overall Outcomes’ are not, either, mandatory or prescriptive and they will ordinarily do no more than signify the need to exercise a discretion – a conclusion reinforced here by the parts of the scheme already discussed.
[3]Luke v Maroochy Shire Council [2003] QPELR 447.
While the scheme refers to Overall Outcomes in the Light Industrial Precinct involving, predominantly, uses for low impact industrial purposes, the extent of any conflict arising from that reference has to be considered in context, including the location of this site which has a frontage to a major highway and sufficient land to enable the development of a large scale land consumptive retail use (in contrast, as already observed, with the CBD). The proposal also includes a large showroom component which is code assessable in the Light Industrial Precinct.
There is also, the evidence showed, more than sufficient remaining land in another three Industrial Precincts in the Town Zone and, as inspection vividly illustrated, appropriate land is in abundant supply around and about Emerald proper. Finally, all of the overall outcomes for the Light Industrial Precinct can still be achieved for the town itself – i.e., the use of this land for another purpose is not injurious either to the precinct itself or potential users of it.
This analysis of the planning scheme points, firstly, to the conclusion that it does not turn its face against this proposal; and secondly that there is not, within its deeper reaches, any serious conflict with its more detailed provisions. There is, it might be said, a whiff of conflict emanating from some of those more detailed provisions. It is excessive to term any discordance, as the appellant’s submissions did, as ‘fundamental’.
In fact, the only conflict which might be described as capable of ready discernment is that pertaining to the Overall Outcome for land in the Light Industrial Precinct with its reference to ‘predominant use’ for low impact industrial uses. The word cannot, however, be described as indicating a strong preference for uses of that kind, or a strong aversion to other uses. When that is acknowledged, and placed in the context of the balance of the planning scheme and the benefits attached to the site in terms of location and size (and the advantages the development will bring to residents of both the town, and the region), the conflict cannot be described as other than relatively low level.
That minor conflict is effectively extinguished, here, by the evidence of significant need for the proposal; the desirable effect it will have of further entrenching Emerald’s important regional role, consummate with the desires expressed in the planning scheme; the economic benefits it will bring in reducing escape expenditure; and, its obvious feasibility (i.e., that it is supported by and has commitment from experienced national retail operators). Other factors constituting supportive planning grounds include location (a conclusion supported by inspection) and the apparent absence of, presently, a suitable and available alternative site within the CBD.
Conclusion
This development proposal, approved by the local Council, meets a proven need within the local authority area. While it does not sit in perfect harmony with the terms of the planning scheme (something which, in any event, rarely occurs) any conflict between it and provisions of the scheme is less than troubling; and is, here, readily overcome by planning grounds resting upon obvious community benefits, reflected in support from the community and the local authority.
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