Formosa & Formosa v Maroochydore Shire Council (Now Sunshine Coast Regional Council)
[2011] QPEC 146
•16 December 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Formosa & Formosa v Maroochydore Shire Council (Now Sunshine Coast Regional Council) [2011] QPEC 146
PARTIES:
LEWIS XAVIER FORMOSA
and
JANET LYDIA FORMOSA
(Appellants)v
MAROOCHYDORE SHIRE COUNCIL (NOW SUNSHINE COAST REGIONAL COUNCIL)
(Respondent)FILE NO:
245/2006
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Maroochydore Planning and Environment Court
DELIVERED ON:
16.12.11
DELIVERED AT:
Maroochydore
HEARING DATE:
10.10.11, 11.10.11, 12.10.11 & 14.10.11
JUDGE:
J.M Robertson DCJ
ORDER:
Appeal allowed. Order the respondent to pay to the appellants the sum of $350,000.
CATCHWORDS:
COMPENSATION: appeal against decision of Council refusing compensation for injurious affection as a result of amendments to planning scheme- where appellants owned land in Eumundi Village Centre on which they operated Commercial Flea Market- where scheme amended on 7 May 2002 which made markets impact assessable- where under Superseded Planning Scheme (SPS) markets were a preferred and acceptable use on land and Code Assessable- where as a result of amendments, under the Current Planning Scheme (CPS), a Market Code was introduced- where appellants had applied under 1985 Town Plan for approval to trade on Sundays-where Council refused such permit and refused to approve after further consideration- where appellants made development application for Sunday markets for 6 hours on their land in 2004 and requested assessment against SPS-where Council assessed against CPS and refused and appeal to this Court dismissed-whether amendments to SPS caused loss of value of appellants land.
TOWN PLANNING: where expert planners held diametrically opposed views of prospects of successful development application when assessed against SPS- relevance of historical context of Eumundi market activity (especially on a Sunday) as at the date of the amendments- relevance of subsequent market development.
VALUATION: where valuers agreed to most factual matters and principles to be applied in assessing the ‘before and after’ value of the land-whether ‘before’ valuation included a component of risk of not obtaining approval.
Legislation
Integrated Planning Act 1997 (now repealed)
Cases
Barns & Barns v Maroochy Shire Council [2010] Q.P.E.L.R. 419
CMB No. 1 Pty Ltd v Cairns City Council [1999] 1 Qd R 1
Formosa & Anor v Maroochy Shire Council [2011] QPEC 116
Housing Commission of New South Walesv Falconer [1981] 1 NSWLR 547
Towne v Eisner (1918) 245 US 418
COUNSEL:
J. Gallagher Q.C. with E. Morzone for the appellants
C. Hughes S.C. with A. Skoien for the respondent
SOLICITORS:
Andrew Morris Legal Practice for the appellants
Sunshine Coast Regional Council for the respondent
Introduction
This appeal has at its heart the historical development of the Eumundi Markets which presently are an iconic focus for what is still essentially a small rural town in which there are over 600 market stalls operating on Saturdays and Wednesdays with a smaller number operating on a Sunday and which attracts 1.6 million visitors annually and has given the town a national and international tourist reputation as a place to visit.
Mr Lewis Formosa and his wife Janet and their three daughters first moved to Eumundi in 1989 and purchased a macadamia farm. The family became acquainted with the Original Eumundi Markets which then operated on a number of allotments owned by Council. Mr Formosa recalls the children queuing each Saturday morning for a market stall site in order to sell their macadamia nut harvest.
On 15 February 1991 he and his wife (the appellants) purchased from Council at auction lots 201 and 203 on RP80220 at 92 Memorial Drive, Eumundi (the land), right in the heart of the Eumundi Town Centre. Lot 201 has an area of 490m2 and was improved and used as a service station and workshop which was leased to a company operating the business. Lot 201 abuts Caplic Park which is a pleasant public space with many large trees and facilities for children’s playgrounds and other community activity. Lot 203 was across a small laneway from lot 201 and was vacant land with an area of 96m2. The contract of sale and purchase has not been located but it is common ground that it contained relevant conditions to the issues raised in this appeal relating to parking credit.
In 1992 the appellants obtained a town planning permit to operate a Commercial Flea Market on the land which commenced in 1993 on Saturdays and which traded as the Parkside Market. The appellants had sought permission to conduct the Flea Market on weekends and ultimately asked Council to review its condition that trade be confined to Saturdays which, over the recommendation of its Shire Clerk, Council refused.
In February 2004 the appellants (through a town planner) lodged a Development Application with Council which involved a Material Change of Use to permit them to conduct their market from 8.00 am to 2.00 pm on Sunday. They requested that their application be assessed under the Superseded Planning Scheme (SPS) as the Current Planning Scheme (CPS) had been significantly amended on 7 May 2002. Council elected to assess the application under the CPS and the application was refused. The appellants lodged an appeal to this Court which was dismissed by consent by order of the Court on 25 November 2005. On 24 May 2006 the appellants lodged an application with Council for compensation for the reduction in value of the land as a result of the amendments to the SPS on 7 May 2002. The Council refused the claim for compensation on 11 August 2006 without providing reasons, and from that refusal the appellant appealed to this Court under s 4.1.34 of the Integrated Planning Act 1997 (IPA). The appeal was filed on 8 September 2006 and languished for a while until it became active as a result of a 2010 review by this Court of stale matters in its list. On 19 January 2011 pursuant to a court order dated 10 December 2010 Council provided to the appellants reasons why the appeal should be dismissed. The Council asserts that the change introduced on 7 May 2002 did not reduce the value of the applicant’s interest in the land in that ‘there was no significant prospect that a development application for the proposed development would have been approved had such a development application been made under the Maroochy Plan 2000 as it was prior to the Planning Scheme change’.
The Court heard evidence from Mr Formosa whose lengthy Affidavit is Exhibit 7, and town planners, Mr James Brownsworth (on behalf of the appellants), Mr Denis Brown (on behalf of Council); and valuers Mr Michael Sheehan (on behalf of the appellants) and Mr Michael Slater (on behalf of the Council). The real issues joined in the case include a hypothetical assessment of the prospects of the appellants successfully obtaining permission to trade on a Sunday in the event that their application had been assessed against the SPS. In this regard the town planners express diametrically opposed opinions. If I am satisfied that the amendments to the SPS have reduced the value of the land there is a dispute as to the level of compensation that should be awarded. Mr Sheehan and Mr Slater have agreed to many of the factual bases for their respective opinions which is to their credit and their evidence contained in their joint expert’s report and court reports considerably narrows the dispute in relation to this issue.
The Law
Section 5.4.2 of the IPA is the source of the right to compensation for an owner of land who asserts that a change to a Planning Scheme affecting the land has reduced the value of the owner’s interest in the land. It is common ground that the only issue arising under s 5.4.2 of the IPA is whether the amendments to the SPS affecting the land have reduced the value of the appellants’ interest in the land. There is no doubt that the 7 May 2002 amendments affected the land. The appellants have otherwise satisfied the requirements of s 5.4.2(b)(c) and (d).
It is common ground that the limitations on compensation claims in ss 5.4.4, 5.4.6 and 5.4.7, are not engaged in this appeal.
Section 5.4.9 provided the manner of calculating the compensation, which essentially amounts to calculating the difference in market value of the interest in the land immediately before the change came into effect, and the market value of the interest in land immediately after the change came into effect.
In Barns & Barns v Maroochy Shire Council [2010] Q.P.E.L.R. 419 at paras [19]-[21] his Honour Judge Searles referred to the many cases dealing with compensation for injurious affection commencing with Spencer v Commonwealth (1907) 5 CLR 418 at 432, 441 and Kettering v Noosa Shire Council [2007] Q.P.E.L.R. 605 and concluded (at [22]):
‘[22]It seems to me that the hypothetical purchaser looking to purchase the subject Land
would be one who, at the very least :-
(a) was properly advised on all relevant issues by appropriate experts without necessarily getting detailed reports but, as is said above, with sufficient
detail to properly inform;
(b) had some experience in property development;
(c) was accustomed to assuming risks to achieve rewards;
(d) was accustomed to risk identification and assessment; and
(e) would not take what would be seen as unacceptable risks involving too much uncertainty and/or too much financial exposure.’
In addition, the court is entitled to and should think for itself based on the evidence it accepts, and although the primary question relates to the hypothetical and prudent purchaser as at 6 May 2002, it is nevertheless appropriate to consider subsequent events to confirm a foresight. Such events provide some evidence of the facts that were foreseeable by the prudent purchaser in calculating what price he or she would have accepted or been prepared to pay for the land as at 6 May 2002.
In Housing Commission of New South Walesv Falconer [1981] 1 NSWLR 547 at 558 Hope JA stated:
‘…[T]here are many decisions, including decisions of the High Court, in which it has been held that evidence of future events is admissible not to prove a hindsight, but to confirm a foresight: (examples omitted).’
Such principle has been affirmed in Queensland. In CMB No.1 Pty Ltd v Cairns City Council [1999] 1 Qd R 1 McPherson JA at p.13 stated as follows:
‘Taking account at the hearing of the fact that a contingency affecting value has in fact been fulfilled before the date as at which the compensation falls to be assessed has, since the decision in the Bwllfa case, become the practice in assessing damages in the law of torts. It was recognised in the passage quoted from the judgment of Williams J. in Minister for Army v. Parbury Henty & Co. In stating that principle, his Honour referred to remarks of his own in McCathie v. Federal Commissioner of Taxation (1944) 69 C.L.R. 1, 16, as well as to those of Rich J. in Australian Apple & Pear Marketing Board v. Tonking (1942) 66 C.L.R. 77, 108. In the first of the two cases, Williams J. said that the “whole tendency of the court is to admit evidence of any events prior to the date of the trial which will throw any light on the real issues”. In doing so, his Honour referred again to what was said by Rich J. in the Australian Apple & Pear Marketing Board case (1942) 66 C.L.R. 77, 108, which was that “in determining this value, the price which, having regard to the objects of the regulations, the fruit actually realised on the market can be taken into account.
…
“…that the measure of damages has to be assessed at that date, but courts in assessing damages are entitled to inform their minds of circumstances which have arisen since the cause of action occurred and throw light upon the reality of the case.” [Seward v. The “Vera Cruz” (1884) 10 App.Cas. 59, 70, Scott LJ].
The decision was followed in Willis v. The Commonwealth (1946) 73 C.L.R. 105, where the plaintiff widow had remarried before trial; and, in Curwen v. James [1963] 1 W.L.R. 748, a similar conclusion was reached where evidence of the widow’s remarriage was admitted on appeal after judgment in the action had been given at first instance… Nevertheless, I do not consider it possible, in determining compensation for injurious affection, in effect to insulate the assessment of market value from the impact of subsequent events, while at the same time admitting the relevance of such events for other purposes of the law, such as assessing compensation for reinstatement, or damages in tort. That conclusion is supported by the fact that, in the High Court decisions referred to, Williams J. specifically treated the assessment of damages as affording a direct supporting analogy with the ascertainment of value for compensation purposes…
…
Unless we are to return to the view adopted by Vaughan Williams L.J. in the Bwllfa case ([1902] 2 K.B. 135, 141) that it is irrelevant to the assessment of compensation that a particular contingency was fulfilled before the compensation hearing took place, it does not seem to me to be possible to give to the word “immediately” in s. 3.5(8)(a) the literal effect for which the respondent in this Court is forced to contend. The statements in the High Court decisions to which I have referred, which recognise that the happening of the contingency before the hearing of the claim for compensation is capable of revealing its value at an earlier date, are sufficiently authoritative not to be affected by use of that word in s. 3.5(8)(a) of the Act. In determining at the hearing in August 1996 whether or not the injurious affection on 17 December 1993 in fact reduced the market value of the subject land, the learned judge was, I consider, entitled and bound as a matter of law to take account of the fact that the error in rezoning was rectified on 27 May 1994; and that, some time before that event took place, the parties had already agreed to sell, and subsequently sold and completed their contract, at the same price of $5 million that they had always had in contemplation independently of that error…’
The Town Planning Context on 6 May 2002
Prior to the 7 May 2002 amendments, the appellants application for Sunday Markets was Code Assessable. It was agreed between the planners (at the time of their joint report on 8 June 2011), that pursuant to Table 5.3 Table of Development Assessment Precincts, a market in a Village Centre was Code Assessable.
It was accepted that an application for 87 stalls for six hours trade on a Sunday, although Code Assessable, nevertheless involved a material change in the intensity or scale of the use of the premises: s 1.3.5 of the IPA, and therefore involved a “material change of use” of the land.
The planners also agreed that the Town and Village Centres Codes and the Parking Code in the SPS were relevant. The Codes are contained in Volume 4 of the Planning Scheme. The Codes in the introduction to Volume 4 are to be applied in accordance with the guidance therein stated. Relevantly, the Code for Town and Village Centres was in these terms (the emphasis is mine):
| 5. CODES FOR COMMERCIAL AND COMMUNITY DEVELOPMENT AND USE 5.1 Code for Town and Village Centres PURPOSE (1) There is a hierarchy of Centres recognised in the Strategic Plan. This comprises Local Centres (at convenience and neighbourhood levels), Town Centres (being Regional, Sub-regional and District Centres) and Village Centres (serving the larger coastal communities and rural towns). The higher order Centres (b) This Code is also intended to provide for development that contributes to the creation of successful and attractive Centres at a scale appropriate to the Centre’s intended role and function. APPLICABILITY (1) This Code applies to development in existing or proposed Town and Village Centres throughout the Shire where the development is: (i) Material Change of Use… (2) This Code does not apply to Mapleton and Montville where development is to comply with the Blackall Range Local Area Code. (3) This Code does not apply to Buderim Village centre where development is to comply with the Buderim Range Local Area Code… (5) This code contains elements which address: · scale and layout of premises · relationship of buildings to public spaces · distinctive and legible centres · form and design of buildings · landscaping · environmental and amenity impacts… | comprise the following:.. Village Centres Buderim PURPOSE (1)(a) This Code is intended to provide for development that is consistent with the intended role and desired character of the Centre, Precinct, locality and street in which the development is to be carried out. ELEMENTS (1) Element: Scale and Layout of Premises OBJECTIVE (a) To create or maintain Centres that accommodate uses, facilities and buildings of a type and scale appropriate to each Centre’s desired role and character. … |
| PERFORMANCE CRITERIA | ACCEPTABLE MEASURES |
| P1 Premises must be of a type and scale consistent with the desired character of the Precinct and locality in which it is situated. | A1.1 Any premises used for retail or office purposes and having a gross floor area of over 3000m² are located only in a Town Centre. AND A1.2 Any Shop, Shopping complex or Office having a gross floor area of more than 150 square metres is located in a Centre or elsewhere where consistent with the desired character of the precinct and locality in which the premises are situated. AND… A1.4 Premises have a density that does not exceed the preferred maximum density provisions of the relevant precinct (Volume 3 of this Planning Scheme refers). |
(3) Element: Distinctive and Legible Centres
OBJECTIVE
To create or maintain Centres that:
respond to and enrich the characterising of their setting,
conserve places of cultural significance,
are comfortable to be in,
are distinctive, memorable and visually attractive, and
are easy to move through and around in.
| PERFORMANCE CRITERIA | ACCEPTABLE MEASURES |
| DESIRABLE TOWNSCAPE AND LANDSCAPE CHARACTER P1 Development must create or contribute to the desired townscape and landscape character of the precinct, the environs of the site and conserve places of natural and/or cultural significance in which the development is to be carried out. | A1 Development that is consistent with the desired townscape and landscape character of the precinct or locality in which it occurs with respect to: · the pattern of streets and spaces, · the siting, form and scale of buildings, · design of buildings and outdoor space having regard to the subtropical climate (with appropriate responses for coastal, mountain or hinterland climatic variations), · use of building and landscaping materials and colours, and · conservation of valued landscape elements and places of cultural heritage significance, in accordance with the acceptable measures of this schemes Heritage Conservation Code |
(6) Element: Environmental and Amenity Impacts
OBJECTIVE
To achieve development within Centres that:
· maintains or enhances the amenity of its environs,
and
· takes advantage of the prevailing sub-tropical climate,
and
· minimises reliance on non-renewable energy sources for heating and cooling.
| PERFORMANCE CRITERIA | ACCEPTABLE MEASURES… |
| P1 Development must enhance or not unacceptably reduce the amenity or environmental quality of its environs and especially any nearby residential accommodation. |
Both town planners agreed that the Parking Code is relevant to the proceedings to the extent of the extracts marked in green to Attachment 5(c) of the Joint Experts Report (JER) at pp72-73. I will return to this Code later in these reasons.
At the time of the JER on 8 June 2011 Mr Brownsworth was of the opinion the Planning Area and Precinct Intent Statements for Eumundi were not relevant to the proposal, whereas Mr Brown disagreed. Mr Brownsworth essentially relied upon s 3.5.13(2) and (4) of the IPA and his opinion that the proposal complied with the Codes or could be conditioned to comply. He also noted that by reference to Table 5.3 in Volume 1 of the CPS, markets were a preferred and acceptable use in the Statements of Desired Precinct Character in the Eumundi Village Centre Precinct provisions.
Mr Brown expressed the opinion that the stated Purpose of the Code for Town and Village Centres (which is a Shire wide Code not specific to Eumundi) necessarily takes up a consideration of ‘the intended Role and desired character of the Centre, Precinct, Locality and street in which the development is to be carried out’.
By the time of his Court report dated 30 September 2011 Mr Brownsworth’s opinion as to the relevance of the Planning Area and Precinct provisions had softened somewhat. At pp. 14-15 of his Court report he wrote:
‘The SPS did not provide express direction as to the application of the Purpose of a Code in the assessment of proposals that were code assessable. As I have detailed above, there seemed to be some intention by the planning scheme writers that the PC’s were applied to achieve the stated purpose of the code. Nevertheless, taking a common sense approach to any reading of the SPS and s 3.5.13 of IPA, I am of the view that Code Assessment of the hypothetical proposal for Markets should have included an assessment against the whole of the Code for Town and Village Centres, including its purpose.’
Certainly Mr Brownsworth seemed to make the concession in cross-examination that these provisions were relevant although he still relied upon the lack of any direction as to the purpose of a Code in the assessment of proposals that were Code Assessable.
The Planning Area No. 17 – Eumundi; and the Eumundi Village Centre Precincts provisions in Volume 3 at pp 253-256 of the SPS; (relevant to the town planning issues joined in the appeal) were in the following terms:
| 3.17 Planning Area No. 17-Eumundi 3.17.1 Location & Role Eumundi is a small rural town located in the north of the Shire, adjacent to the North Coast rail line. The town is situated at the eastern base of ‘Eumundi Hill’ in the North Maroochy River valley. The principal role of Eumundi is as a small rural service centre providing residents of the town and surrounding rural residential and rural farming communities with a broad range of lower order goods and services. Other important functions of this Planning Area include:- · accommodating a small residential population within the township; and · supporting a rural-based tourism industry. 3.17.2 Vision Statement (1) It is intended that: Eumundi will be a place where an interactive, cohesive and socially diverse community is safe and secure. Eumundi will provide a future for its youth and generate local employment by controlled, steady economic growth. The town will remain small and peaceful, retaining the identity and character it derives from its rich cultural heritage and setting within a green backdrop. (2) This means that: (a) Eumundi will remain a small country town set in an attractive rural landscape of rolling hills and coastal plains. (b) Tree-lined streets, and the natural bushland and rural land surrounding the town, will continue to provide a lush green country atmosphere and backdrop. be a prosperous and interesting place to live and visit. 3.17.3 Key Character Elements (1) Location of Uses and Activities (a) Memorial Drive will remain as the commercial focus of the town continuing to provide for a range of lower order goods and services. No extension of the existing commercial area is envisaged during the life of this Planning Scheme. (b) Memorial Drive will also remain the focus for a number of tourist related activities which draw upon and complement the charm and character of this country town main street. (c) The provision of new residential land within the town will occur in an orderly and sustainable manner. The layout of new development areas will be compatible with and connected to the established developed areas in the locality and provide for coherent road, bicycle and open space linkages. New housing development will occur in an orderly sequence, as demand arises, in keeping with the efficient provision of infrastructure. (d) Small-scale tourist accommodation facilities such as “bed and breakfasts” will be encouraged to establish in appropriate locations within the town area. (e) The future growth of Eumundi is constrained by the existing sewage treatment works. New residential development will necessitate the upgrading of the treatment works. | (c) The rural identity and character of Eumundi will continue to make it a small, peaceful and desirable place to live. (d) The town will maintain well-defined boundaries within which urban development will be consolidated. (e) Opportunities to include the town’s youth in the development of Eumundi will be actively pursued, including recreation opportunities and local employment options. (f) Rural-based tourism will continue to be a major focus for the town’s activities although this focus will not be developed at the expense of the local community’s lifestyle. Any new tourism ventures occurring within or near the town will complement the existing rural town character and will be of a compatible scale and nature. (g) Local business opportunities will be supported by local employment and business incubator strategies. (h) Memorial Drive will remain as the commercial focus of the town and will continue to provide lower-order and tourist-orientated goods and services. (i) Development along Memorial Drive will continue to reflect the architectural heritage of the town with a strong emphasis on Queensland vernacular design principles and retention of buildings that contribute to the traditional character of the town. (j) A careful balance of the roles of Eumundi as a residential area, lower order service centre and a tourism node will ensure that the town continues to (2) Design Intent (a) The traditional Queensland “country town” character of Eumundi will be retained and enhanced by controlling the demolition, removal and development of places of local cultural heritage and townscape significance. (b) The important characteristics of Memorial Drive will be retained, including: · the memorial camphor laurel street trees; · the green buffer on the east side of the main street, comprising the Eumundi Town Square and Parklands; · the current road layout at both the northern and southern ends of the main street; · a wide, open main street; · small-scale commercial buildings built to the street alignment; · predominance of street parapets of various shapes, together with post-supported awnings; · buildings generally with narrow frontages; · buildings which close the vista at the northern end of the main street; · a dispersion of community facilities along the street to reinforce halls, the museum pubs and post office … (e) The existing road pattern for entering and leaving the main street will be retained, especially the curved northern end of Memorial Drive. (f) The wide, open main street will be maintained as part of Eumundi’s “country town” character. … |
| (3) Environmental Values (a) Existing mature trees in the main street will be maintained, especially the Memorial camphor laurels, which are listed on the Queensland Heritage Register. (b) Significant vegetation surrounding the town will be protected so as to maintain the rural setting of Eumundi. … (d) The reuse of the old rail corridor north of the town’s business area as public open space and a pedestrian link to the Butter Factor is desired. (e) A linked system of open space will be established, focussed on the Eumundi Town Square/Parklands and the old rail corridor north of the town’s business area running behind the Butter Factory and linked to the Shire-wide open space system. … (4) Access and Movement… (b) The role of Memorial Drive as a business and community focus will be reinforced by providing an entry statement at the Eumundi/Noosa Road/ Memorial Drive intersection which incorporates streetscape improvements and traffic calming devices. (c) The wide, open main street of Memorial Drive will be maintained as part of Eumundi’s “country town” character. (d) Alternative on-street parking and footpath layouts in the main street will be investigated with the aim of improving vehicle movement, providing opportunities for streetscape enhancement and the Eumundi Town Square/Parklands and/or the Butter Factory. (c) A Eumundi Markets Management Strategy is intended to be produced. Any proposals for additional market activity in Eumundi will be required to address the following issues: · the economic impact on existing permanent businesses in the town; · the influence on the character of the town and the conservation of heritage and townscape values with Eumundi Town Square and Parklands; · benefits to the Eumundi community; · opportunities to provide local employment; · requirement for goods sold to be produced locally; · impacts on traffic and parking and proposed measures to address these impacts. 3.17.4 Statements of Desired Precinct Character (1) Eumundi Village Centre (Precinct Class=Village Centre) Intent The Village Centre is focussed on Memorial Drive mainly between the Eumundi- Noosa Road and Pacey Street intersections. It contains the most substantial retail, office, commercial and tourism uses in Eumundi including two Hotels. This precinct contains a number of buildings which have cultural or historical significance for the town, particularly along Memorial Drive. Accordingly, · the green buffer on the east side of Memorial Drive, comprising the Eumundi Town Square and Parklands, · a wide open main street, · small scale commercial buildings built to the street alignment, · predominance of street parapets of various shapes, together with post supported awnings, and · buildings generally with narrow frontages. The historically significant buildings fronting Memorial Drive contribute to the cultural heritage and townscape character of Eumundi. It is desirable that these buildings be conserved (where structurally sound), or if redeveloped, that new premises incorporate key characteristics of the existing building. Infill development along Memorial Drive should be sympathetic to the existing character in terms of scale and form of the street, and should incorporate existing buildings where possible. Development in this precinct, and particularly along Memorial Drive, should be of scale and form appropriate to existing surrounding premises. A linked open space system should be established, connecting the sports grounds and showgrounds, the town square and using the old rail corridor to the north of the commercial area and linking to the Butter Factory. This would contribute to creating a connected open space system for Eumundi. Improved pedestrian and bicycle access should be provided as part of this open space system. The showgrounds and associated facilities at the southern end of Memorial Drive are important community facilities. If this land It is intended that a Eumundi Markets Management Strategy be produced. Until such time, any further proposals for additional market activity in Eumundi will be required to address the following issues: · the economic impact on existing permanent businesses in the town; · the influence on the character of the town and the conservation of heritage and townscape values; · benefits to the Eumundi community; · opportunities to provide local employment; · requirement for goods sold to be produced locally; and · impacts on traffic and parking and proposed measures to address these impacts. … (2) Eumundi Village Residential Intent This precinct is intended to continue as mainly a residential area having traditional townscape qualities that are worthy of preservation and supporting the facilities in the Village Centre…The old Butter Factory provides opportunities for tourism uses, including the existing weekend markets… Landscape and Built Form… A linked open space system should be established, connecting the sports grounds (show grounds), the town square and using the old rail corridor to the north of the commercial area and linking to the Butter Factory, creating a connected open space system for Eumundi. Pedestrian and bicycle access should be provided as part of this open space system. The Eumundi markets, including the Butter Factory markets, while an important local economic activity should not physically or economically dominate planning for Eumundi or unduly influence the character | improving pedestrian safety when crossing the street … (f) Main street improvements and railway station access will be integrated with a planning Eumundi Town Square/Parklands development. (g) Opportunities to reduce the volume and speed of coastal-generated traffic through the centre of the town will be encouraged… (i) The reuse of the old rail corridor north of the business area as public open space and a pedestrian link to the Butter Factory is desired… (5) Economic Activity (a) Sustainable economic activity that benefits the whole of the Eumundi community is desired. In particular, vertically integrated industries (where production, manufacturing, distribution, wholesaling and retailing functions are managed locally and employ local residents) are encouraged to locate at appropriate locations within the town area. (b) In considering development applications for new commercial, business or industrial uses, Council will place particular emphasis on whether the activity is of a scale and nature which complements the desired character and amenity of the town. Uses which threaten Eumundi’s rural character and identity will not be supported. (6) Market Activity (a) The Eumundi markets, while an important local economic activity, will not physically or economically dominate planning for the town or unduly influence the character of the town. (b) Any further market activity will only be located in Council’s Planning Scheme Code for Heritage Conservation, found in Volume 4 of this Planning Scheme will apply to development in this precinct. Located parallel to Memorial Drive is an area of open space, both in public and private ownership, which includes Caplic Park. It is intended that this area be further enhanced to provide a greater range of recreational opportunity for the district. Within this open space corridor markets are conducted. These markets are an important economic activity for the town but should not physically or economically dominate planning for the town or unduly influence the town’s rural character- particularly with regard to conserving the landscape and heritage values of the Eumundi Town Square and Parklands. It is intended that Memorial Drive remain as Eumundi’s commercial focus and continue to provide lower order and tourist orientated goods and services that draw upon and complement the charm and character of this country town main street. T The existing wide and open character of Memorial Drive will be maintained. Opportunities for alternative on street parking and footpath layouts along Memorial Drive should be investigated with the aim of improving vehicle movement, providing opportunities for streetscape enhancement and improving pedestrian safety when crossing Memorial Drive. Preferred and Acceptable Uses Preferred uses within this precinct and those referred to in the Table of Development Assessment (refer Vol 1) for the Village Centre Precinct class. Landscape and Built Form The important characteristics of Memorial Drive that should be retained and enhanced include: · the memorial camphor laurel trees, and facilities are affected by the proposed Eumundi Bypass, another area close to the town centre should be identified for future sporting and recreational requirements of a district level. Significant stands of vegetation along the eastern side of Memorial Drive, particularly the mature Camphor Laurels, are important landscape features of the town and should be maintained. The appearance and amenity of Memorial Drive should be maintained and enhanced through appropriate design of building frontages including landscaping and street furniture where appropriate. Specific consideration should be given to creating an appropriately designed gateway or entry statement to the main commercial node of Memorial Drive at the southern entry point. The intersection of Eumundi/Noosa Road and Memorial Drive marks a significant gateway and entry point to the main commercial precinct. The configuration of the sharp curve of the road into Memorial Drive from Eumundi Noosa Drive is extremely important in defining the main street and heightening the sense of arrival in the town centre. Opportunity exists at the Memorial Drive and Arundell Street intersection for an entry statement/gateway to be developed. The quality of public spaces should continue to be improved to make them more attractive and comfortable, while continuing to express the traditional character of the town. This will involve maintaining convenient access to premises, controlling signage, developing and implementing an identifiable “theme” for street plantings, furniture and paving, and creating distinctive entry/exit statements. The Eumundi markets are conducted on land fronting the Main Street (Memorial Drive) are an important local economic and tourist activity. of the town. Any further market activity will only be located in the Eumundi towns Square/parklands and/or the Butter Factory. It is intended that a Eumundi Markets Management Strategy be produced. Until such time any further proposals for additional market activity in Eumundi will be required to address the following issues: · the economic impact on existing permanent businesses in the town; · the influence on the character of the town and the conservation of heritage and townscape values; · benefits to the Eumundi community; · opportunities to provide local employment; · requirement for goods sold to be produced locally; and · impacts on traffic and parking and proposed measures to address these impacts. … [23] x k |
During the hearing, the focus was on a proper construction of these provisions when considered in the context of a application for 87 stalls on a Sunday for (6) hours.
The CPS
The 7 May 2002 amendments made a number of significant changes affecting the land which can be summarised as follows:
(a) A change was made to the Table of Development Assessments in Volume 1 which removed markets from the list of uses in that table for the Village Precinct Class. That in turn removed that use from the list of “Preferred and Acceptable Uses” in the Village Centre Precinct.
(b) A change was made to the level of assessment for markets. Under the SPS, the use of land for markets was Code Assessable in “all” circumstances without qualification. Under the CPS the use for markets was Impact Assessable.
(c) The CPS introduced a Market Code against which an application for markets had to be assessed and which, by its provisions, restricted the use of markets. Under the SPS, no Market Code existed.
By the time of the 7 May amendments, notwithstanding the specific statement in the SPS under ‘(6) Market Activity’ a Eumundi Markets Management Strategy had not been produced.
The Code for Markets introduced for the first time in the CPS indicates a much clearer intention on the part of Council for the location of and design of markets in Eumundi:
5.5 Code for Markets
PURPOSE
(1) The purpose of this code is to ensure that markets (both indoor and outdoor, community and commercial) are established where appropriate infrastructure can be provided, and operate with consideration to the amenity of the locality and impact on permanent businesses in the area.
APPLICABILITY
(1) The provisions of this code apply to development, being material change of use, for the purposes of a Market, and to the on-going use of such premises.
(2) The following Planning Scheme Codes may also be applicable depending on the nature of the development and the location of the site.
· Local area Codes
· Parking
· Traffic Impact & Access Management
· Town and Village Centres
· Local Centres
· Landscaping Design
· Community Safety and Security
·
· Community Safety and Security
ELEMENTS
(1) Element: Site Suitability
| PERFORMANCE CRITERIA | ACCEPTABLE MEASURES |
| P1 The market must be operated at a location where the attraction of a large number of people is consistent with the desired nature and character of the locality. | A1.1 The site is situated in, or adjoining, a Town Centre Core, Town Centre Frame or Village Centre precinct. AND A1.2 Markets (other than markets operated by community or non-profit organisations) are located on private land |
| P2 The use must: · promote community, entertainment and non-profit uses in the market, and · limit commercial/business impacts on established businesses in the vicinity of the market | A2.1 Market stalls are not located adjacent similar established business uses unless the consent of the business operator is obtained AND A.2.2 A minimum of 10% of stalls are used for the following uses: · buskers, · entertainment, · non-profit organisations or uses, · community uses. |
Note- In addition to the applicable planning scheme codes applicants must refer to Council’s relevant Local Laws and the relevant State legislation for food hygiene.
ELEMENTS
Element: Site Layout and Operation
| PERFORMANCE CRITERIA | ACCEPTABLE MEASURES |
| P1 The market must be established and operated to provide a healthy, safe and comfortable environment. | A1.1 A minimum 2.0 metre wide clear pedestrian path is maintained between stall fronts. AND A1.2 Where using the footpath area for market purposes and the road reserve is being used by vehicles during the operation of the market, a minimum 1.2 metre clearance from the kerb to any structure or other use are is provided. AND A1.3 A minimum 2.0 metre wide pedestrian access is provided between stalls and existing shop fronts. AND A1.4 The site layout of the stalls provides view corridors and pedestrian circulation access to adjacent businesses and advertising signs. AND A1.5 (i) Waste containers are provided on the premises for the disposal of waste from stall holders (operators) and the public at a rate of: · 1 container for each food stall operator (not including existing street bins), and · sufficient containers for waste generated from each stall (not including existing street bins) in accordance with the Code for Waste Management in Commercial/Business and Community Uses, and |
| PERFORMANCE CRITERIA | ACCEPTABLE MEASURES |
| P2 The markets must be conducted in ways that do not adversely affect the amenity of the locality. | A2.1 Where outdoors, the markets are conducted (including set-up time) between the hours of 6am and 10pm. AND A2.2 Markets are held on not more than two days per week. AND A2.3 Markets on a site adjoining residential land are within a building, or separated from such land by: · a building or buildings not used for residential or market purposes, or · a landscaped buffer area, for the full length of the common boundary, having a minimum width of 3 metres and provided with a solid screen fence (or earth mound) having a height of at least 1.8 metres, or · an open space area of at least 20 metres in width. |
| P3 The use must prevent or minimise the generation of any noise such that: · environmental harm or nuisance is not likely to be caused to adjoining properties or other noise sensitive areas, and · desired ambient noise levels for residential areas are not exceeded. | A3 Compliance with P3 is achieved through the submission of a Noise Assessment Report which satisfies the Performance Criteria. |
ELEMENTS
Element: Vehicle Movement and Parking (3)
| PERFORMANCE CRITERIA | ACCEPTABLE MEASURES |
| P1 Sufficient vehicle access and car parking must be provided on the premises to accommodate the amount of vehicle traffic expected to be generated by the use | A1.1 Vehicle access is provided in accordance with the Code for Traffic Impact and Access Management. AND A1.2 Vehicle parking is provided in accordance with the Parking Code. AND A1.3 A minimum 3.0 metre wide clear movement path is maintained through or around the market to allow emergency vehicle access. |
Clearly, the proposal assessed against this Code alone would be far more problematical for the appellants as history of their later development application proved.
The Development History of the Site
Despite the contract and the correspondence relating to the sale and purchase of the land in 1991 being lost, it is common ground that the land was sold to the appellants subject to a contractual condition 32:
‘The Vendor (Council) acknowledges and agrees that the purchaser may build at one level over the whole of the land the subject of this contract without the need to provide off street car parking and without being required to make any contributions to car parking.’
There have been some difficulties in relation to disclosure to which I will refer later and the appellants have resorted to requests under the Freedom of Information legislation as well as an application to the Court to obtain factual information relevant to the issues in the appeal.
A letter from the appellant’s solicitor to the Shire solicitor dated 12 March 1991 was disclosed. It referred to the pending settlement of the matter on 18 March 1991 and Mr Mountford (the appellants solicitor) wrote (to Council):
‘We would appreciate clarification in writing of Special Condition 32. Firstly, would you please confirm in writing that regardless of the effluxion of time the Council accepts that it will remain bound by that condition even after resale. Secondly, does Council accept that if the owner was to build a two storey (assuming approval was available) building that the Council would provide a credit as a result of Special Condition 32 i.e. if the building was two storey then would the car parking requirement be reduced by say a half.’
No reply has been located but Mr Formosa refers to the matter in his affidavit and he was not challenged. The condition was consistent with instructions given by Council to its valuer for the purposes of marketing the land for sale at auction. Mr Formosa stated (by reference to the valuer’s report at the time):
‘20. For Lot 201, the second page of Mr Bob Henderson’s report stated (my emphasis added):
“This property is well located in the commercial area of the town and adjoins existing parkland. Any proposed development of this site will have a car parking credit which will permit full utilization of the site with a single level building for commercial purposes.” (Attachment 1, p 23).
21. For Lot 203, the second page of Mr Bob Henderson’s report stated (my emphasis added):
Development of this site will have credits for car parking and external works. The land offers consolidated, well drained, near level land, which can be developed immediately.”
Whilst the site is small, it has potentially excellent exposure in a central location.” (Attachment 1, p30).’
Although the response from Council to the solicitor’s letter was never found Mr Formosa swears at paragraph 25 of his trial affidavit:
‘Prior to settlement of the contract I was verbally informed by my solicitor that Maroochy Shire Council had confirmed in writing that the parking credit would apply to the land regardless of the effluxion of time. However I have not been able to locate this letter from Mr Mountford or Maroochy Shire Council to date.’
He was not challenged as to this recollection.
On 25 May 1992 the appellants applied under s 412 of the now repealed Local Government (Planning and Environment) Act for town planning consent to use the land as a ‘Commercial Flea Market’.
The application was prepared by Mr Formosa himself and attached plans providing for the maintenance of the historic building on Lot 201 and improvement of the unimproved portion of the land to be utilised (by weekend market and weekend car park). Council referred the application to the Queensland Transport who responded in part:
‘· The proposal seeks to establish a commercial flea market in downtown Eumundi. It is noted that traffic volumes in Eumundi increase markedly (to the point of congestion) on the weekend due to the operation of the Eumundi Market.
·It would be reasonable to expect that the additional traffic generated by this proposal would exacerbate the congestion presently experienced on the weekend.
·However, it is considered that the scope of the proposal is such that this additional traffic would not significantly affect the overall traffic flow in downtown Eumundi.
Accordingly, the Director General, Department of Transport has no objection to the proposed town planning consent as outlined in Council’s letter of 28 May 1992.’
Council issued a permit for the land as a ‘Flea Market – Commercial and Change of Existing Lawful Non-Conforming Use Ratio’ (Service Station and Tobacco, Packaged Food and Drink Sales), subject to a number of conditions which included (relevantly to the consideration of the hypothetical prudent purchaser on 6 May 2002):
‘6.Provide sealed car parking in association with each of the proposed uses to the satisfaction of the Shire Engineer …
12.The Flea Market (Commercial) shall only operate on Saturday mornings and between the same hours as the existing Eumundi Village Markets.’
On 25 August 1992 Mr Formosa wrote to his local councillor and referred to condition 12 and said ‘following our discussions there seems no tangible reason for above exclusion’. On behalf of Council a planning officer, Mr McMahon, prepared a report endorsed by the Shire Planner which said in part (by reference in part to condition 12):
‘1.The abovementioned conditions were imposed with the intention to ensure that the development was appropriately integrated with the existing Eumundi Village Market and to ensure no adverse effect upon that market and the shops at Eumundi, the latter being a concern raised by objectors to the proposal.
2.The applicant by letter dated August 25, 1992 is of the opinion that there seems no tangible reason for the exclusion to conduct a market on the Sunday.
3.It is difficult to determine on town planning grounds the effect Sunday trading may have on the Eumundi Village Market. Sunday trading, however, would not appear to be in the spirit of the ‘Market Day’ (Saturday) at Eumundi and the town’s tourist appeal attributed to the size, intensity, colour and activity of the Eumundi Village Market.
Summary
In consideration of the above matters it can be determined that any correlation between the proposed market operating on Sunday and any adverse effect on the existing Eumundi Village Market and shops is difficult to determine on town planning grounds. The requirement to operate on Saturday only would therefore be difficult to substantiate as a relevant and reasonable condition and reliance could be placed on other conditions of the approval to satisfy objectors’ concerns.
In accordance with s 4.5(1A)(d) of the Local Government (Planning and Environment) Act and that a modification of the approval to delete Condition 12 would not adversely affect any person or result in the concerns of objectors not being appropriately accounted for the Town Planning Section raises no objection to the deletion of Condition 12.
Recommendation
That L. and J. Formosa be advised that Council has modified the consent approval on the land by modifying Condition 12 to read:
“The Flea Market (Commercial) shall only operate on weekends with the hours of operation on Saturday being the same as the existing Eumundi Village Markets.”’
At a meeting of Council on 8 September 1992 Council resolved to confirm Council’s original decision because
‘Council considers Sunday trading would not appear to be in the spirit of the ‘Market Day’ (Saturday) at Eumundi and the town’s tourist appeal attributed to the size, intensity, colour and activity of the Eumundi Flea Market and that the establishment of a permanent Flea Market would not be beneficial to the long-term future development of the site.’
The appellants were notified of this decision on 16 September 1992. No appeal was lodged as Mr Formosa says at that stage he was conducting the process himself and did not obtain legal advice.
On 10 December 1992, as a result of a query from Mr Formosa in September about condition 6, Council wrote to the appellants to advise
‘…that no car parking or landscaping is required to be provided for single storey development of the subject land and that the plans accompanying the building application satisfy the requirements of Condition 9’.
This response obviously accords with the contractual obligation imposed on Council pursuant to Condition 32 of the Contract referred to earlier.
In the introduction I referred to the appellants’ application for Sunday trading under the CPS which was refused. The refusal was based on a town planning report prepared on behalf of Council. The executive summary is in these terms:
‘The proposal seeks approval to extend the existing Parkside Market, currently operating on Wednesdays and Saturdays, to include trading on Sundays on land located in the town centre of Eumundi on the northern side of the Eumundi Memorial Drive adjoining Caplic Park. To the south and west of the subject site are several public and private lots that also operate markets on Wednesday and Saturday. The Eumundi Markets, as one body, include over 500 stalls on any given Wednesday or Saturday.
The principle (sic) issues associated with the application are the Objectives and Implementation Measures of the Strategic Plan and Precinct for Eumundi which present a strong view that the central idea is for Eumundi to continue as a historic town which has markets rather than to become a ‘market town’. The application is a move towards an expansion in market activities within the town centre, potentially providing an opportunity for markets of the scale that occur on Wednesdays and Saturdays to develop.
The proposal has failed to address and ameliorate concerns regarding a number of issues for the town which include;
· Disruption to the peaceful character of the township with an influx in the number of visitors and subsequent detrimental impacts on the amenity of residents;
· The influence of the proposal in the town which has the potential to reinforce a perception of the town to the wider community as being a ‘market town’ rather than a town with markets;
· The cumulative effects of current and future markets on the Eumundi Community.
In the assessment of the application careful consideration has been given to Council’s Strategic Plan, Precinct and Code for Markets. These documents collectively discourage the further market development in Eumundi when no need for an expansion has been demonstrated where impacts on the amenity of the town are likely.
The proposal does not satisfy the requirements of the Planning Scheme and has recommended refusal as it:
a) does not comply with the intent of Planning Area 17 (Eumundi) or Precinct 1 (Eumundi Village Centre) of this Planning Area.
b) is contrary to Desired Environmental Outcome No. 2 (Social Equity and Liveability);
c) is inconsistent with Performance Criteria P2 of Element 2 of the Code for Markets and cannot be satisfactorily conditioned to comply with the Code.
d) provides insufficient planning grounds to justify approval.’
The report goes on to refer to the Council Planner’s analysis of the Planning Area and Precinct Provisions which remained the same as they were under the SPS. He also sets out the Applicable Codes and does not refer to the Code for Town and Village Centres. The Planner notes in his report that the application generally complies with the Codes, with the exception of the Code for Markets and the Parking Code.
At p. 23 of the report the planner noted:
‘It is questionable whether the town is actually coping with the traffic generation of the existing market. Congested parking occurs in the road reserves of the Eumundi Memorial Drive and Napier Road on market day. The approval of this application could potentially impose the same congestion on the town on a Sunday through the cumulative impacts of subsequent applications.’
Council subsequently refused the application and a decision notice was issued to the appellants on 15 December 2004 which set out the reasons for refusal as:
‘1.The proposed development does not comply with the intent of Planning Area 17 (Eumundi) or Precinct 1 (Eumundi Village Centre) of this Planning Area.
2.The proposed development is contrary to the Desired Environmental Outcome No.2 (Social Equity and Liveability).
3.The proposed development is inconsistent with Performance Criteria P2 of Element 2 of the Code for Markets and cannot be satisfactorily conditioned to comply with the Code.
4.The proposal provides insufficient planning grounds to justify approval.’
As noted earlier in the introduction, the appellants lodged an appeal against this decision which was ultimately dismissed by consent. In late 1996 the appellants commenced operating the Parkside Markets under the brand ‘Eumundi Country Fair’ on Wednesday. This was done without any formal approval and has to be seen in the historical context of the commencement of Wednesday markets to which later reference will be made.
The Historical Development of Markets in Eumundi
Mr Brownsworth has prepared a useful summary of the development of markets in his court report.
Up until approximately 1979, the Village Centre of Eumundi was principally focused on providing for the needs of Eumundi which was a predominantly rural community. The Centre also benefited from through traffic and related ‘stop and go’ commercial activity generated by the Bruce Highway running through the town.
The opening of the Eumundi/Bruce Highway Bypass in 1976 led to the formation of the Eumundi District Historical Association (EDHA) which, amongst other things, investigated opportunities to ensure that commercial activity and vitality for the township of Eumundi continued despite the negative economic impacts associated with the bypass. The establishment of a community market (‘Original Eumundi Market’) was determined to be such an opportunity. The EDHA commenced operating the original Eumundi Market in 1979. The markets initially consisted of the three stalls and related baking and goods production. After only one year of operation the original Eumundi Market gained a reputation as a source of local produce, arts and crafts.
By 1985 some six years after opening, the Original Eumundi Markets had built upon its reputation to grow to 97 stalls, with an estimated attendance of 143,000 visitors for the year. Such patronage included locals and a growing number of tourists to the town, mainly making the trip from nearby tourist towns and beach locations for the purposes of visiting the market.
The Eumundi township is located in one of the gateways to nearby major beachside tourist destinations being Noosa Heads, Sunshine Beach, Sunrise Beach and Peregian Beach. It is centrally located with a large catchment of locals, tourists and passing travellers.
The prudent purchaser would also take into account the significant increase in the number of stalls permitted to trade on a Sunday (albeit a minority in the Village Centre) between 1993 and May 2002. He or she would also take into account the information produced by Mr Formosa and set out in his affidavit which indicated constant demand and a waiting list for stalls on the Wednesday and Saturday at the Parkside Market.
Given that my assessment of the prospects of approval is not as fulsome as Mr Brownsworth’s the average figure of $450,000 should be reduced by a figure representing roughly one year’s income to $350,000 as being the extra money a prudent purchaser would be prepared to pay for the land as at 6 May 2002 on an unconditional basis. Given the nature of the amendments on the 7 May 2002 I am satisfied that those changes to the SPS reduced the value of the appellant’s interest in the land by $350,000.
The appeal is allowed. I order the respondent to pay to the appellants the sum of $350,000.
0
1
1