Garyf Pty Ltd v Maroochy Shire Council & Ors - [2008] QPEC 101

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101

PARTIES:

GARYF PTY LTD
(Appellant)
v
MAROOCHY SHIRE COUNCIL
(Respondent)
and
LEONE CHRISTINE NORRIS
(Third co-respondent)
And
NORTH BUDERIM MARKET PTY LTD
(Fourth co-respondent)
And
CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS
(Fifth co-respondent)

FILE NO/S:

BD1958 of 2007

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

25 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6^th, 7^th, 8^th & 9^th May and 14^th & 15^th July 2008, with further written submissions being received until 12 August 2008

JUDGE:

Rackemann DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

Proposed new district centre – compliance / conflict with the planning scheme – whether proposal necessary to cater for an unsatisfied demand – impact on other centres – environmental impact – traffic – lack of detail / uncertainty regarding final form of development – sufficiency of grounds to justify approval

COUNSEL:

M Hinson SC with S Fynes-Clinton for the appellant
CL Hughes SC & A Skoien for the respondent
L A Manning, solicitor for the third and fourth co-respondents
J S Brien for the fifth-co-respondent

SOLICITORS:

Geoffrey Kath solicitor for the appellant
Sunshine Coast Regional Council Solicitors for the respondent
P & E Law for the third and fourth co-respondents
Crown Law for the fifth co-respondent

Introduction

The appellant was the unsuccessful applicant for development permits for a material change of use and for reconfiguration of a lot (one into two) and for a preliminary approval for building works, to facilitate the development of a shopping complex on an irregularly shaped site (of 1.962 hectares) situated at the south-western corner of Jones Road and Maroochydore Road at Buderim. The proposed shopping complex would include:

1. A 3,200m² supermarket intended to be operated by Woolworths;

2. A 1,280m² supermarket intended to be operated by Aldi;

3. 1,875m² of speciality shops;

4. A 170m² fast-food store;

5. 165m² of outdoor dining area;

6. 100m² of office space;

7. 403 carparking spaces, most of which would be in a basement.

On the opposite side of Jones Road lies the North Buderim Shopping Centre, which comprises some 1,620m² and includes a convenience store of some 360m². The fourth co-respondent is the proprietor of that shopping centre, while the third co-respondent is proprietor of the convenience store within it. Two other co-respondents have withdrawn.

The intersection of Jones Road and Maroochydore Road is formed by a bridge in the former over the latter. There are intersections at each end, with ramps providing access to and from Maroochydore Road. Maroochydore Road is controlled by the fifth co-respondent. The sole vehicular access to the site is via a stub road, which intersects Jones Road at what would become a signalised four-way intersection with Pittards Road.

The site is currently vacant. It slopes generally from Jones Road at the east down to the western boundary, proximate to Martins Creek. It is largely cleared of vegetation. There is an area of riparian vegetation associated with the creek. That vegetation is mainly located to the west of the site boundary, but some trees lie just within the site. The site is proposed to be cut and filled above the 100-year ARI flood line, to produce an essentially level site. Below that flood line, limited filling is proposed. Part of the development would be constructed on piers.

The site has the benefit of a development approval for showrooms. That approval was granted in September 2006, although there is an outstanding appeal against conditions.

The application is impact assessable. Public notification attracted a large number of submissions (418 properly made submissions). Likely traffic impacts and an asserted lack of need were recurring themes in the submissions.

The issues in the appeal, as notified and particularised by the parties, are relatively extensive and not all were the focus of the hearing. The issues, as litigated, relate to:

1. compliance / conflict with the planning scheme;

2. economic demand / need / impact;

3. stormwater / flooding;

4. environmental impact;

5. traffic;

6. lack of detail / uncertainty regarding the final form of development;

7. sufficiency of grounds to justify approval despite any conflict with the planning scheme.

The treatment of acid sulphate soils was also raised as an issue but that, it was accepted, can satisfactorily be dealt with at the operational works stage. The likely impact of the proposal on visual amenity was assessed by Mr Simpson, an architect called by the appellant. He was in no doubt that the subject proposal is “infinitely superior to the showroom proposal” in visual terms. I accept his evidence.

Compliance / conflict with the Planning Scheme

The site is within the former Maroochy shire. The applicable planning scheme is the Maroochy Plan 2000. Under that Scheme, the site:

1. is within, or mostly within, the Urban preferred dominant land use designation (PDLU) on the Strategic Plan map. The adjacent PDLU, to the west, is the Conservation PDLU. The boundary between those designations is not cadastrally based. It is reasonable to regard the Conservation PDLU as applying to the watercourse and its adjacent riparian vegetation, which extends, in some places, to just within the site boundary.

2. is also within Planning Area 8 – Kuluin / Kunda Park and, more particularly, is within the Kuluin Gateway (Precinct), which is a Town Centre Frame precinct.

Volume 2 of the Planning Scheme includes seven Shire-wide Desired Environmental Outcomes (DEOs) which include DEOs concerning environmental management (DEO 1) and economic sustainability (DEO 3). DEO 3 refers to a hierarchy of centres. Strategic implementation measure (f) seeks to reinforce the roles of the various centres in the achievement of the Shire’s commercial hierarchy.

One of ten identified key issues for Urban Development is:

“the need to service urban areas with Local Centre and General Store development, at a limited range of sites, and providing clear expectations for local communities”.

The proposal is not for a local centre or general store. Its likely impact on local centres is discussed later, in the context of the economic evidence.

The Urban PDLU identifies areas suitable for residential purposes of varying densities, but allows, as specific sites, for other uses, including retail uses, which are required to serve the day-to-day needs of local communities and which are of a scale appropriate to those needs[1]. The needs of the communities which the proposal would serve and whether the proposal is of an appropriate scale in relation to those needs are discussed later in the context of the economic evidence. The intent of the urban PDLU also refers to the need for development to be sensitive to areas of significant ecological value.
[1]Section 3.4.1.

Objective 3.5.6 states that local retail, commercial and service uses should be part of the urban fabric. The implementation provisions for that objective set out criteria for assessing applications for non-residential uses in urban areas. They include the following:

1. Approval is only likely to be granted to development of retail, commercial and service uses which are to be located on the specific site (in a centre precinct or site specifically identified) and which offer a service only for local communities (other than in the key regional centre of Maroochydore) and are consistent with the planning intent for, and desired character of the planning area and precinct in which it is to be situated. Consideration will be given to the characteristics of the proposed use, including its location and scale, which determines its accessibility to its locality and its ability to service areas beyond an immediate locality and consequently diminish the vital role played by such facilities in providing a community focus and identity.

2. It is envisaged that local retail, commercial and service uses will be concentrated into nodes in urban communities. In new communities, these nodes will generally have been established at the conceptual and detailed site planning stages. In older ones, they will be on specifically designated or referenced sites characterised by the existence of shopping groups or centres which are adequately accessible to a locality. In all Planning Areas the preferred site for the Local centre will be clearly referenced. Applications for retail, commercial and service uses outside these sites will not be supported.

The proposal is for a District level (rather than a local level) facility. The site is within a Town Centre Frame precinct, which is one of the centre precinct classifications. The area and precinct provisions applicable to the site do not however, contemplate development as proposed.

The Strategic Plan also includes a Retail and Commercial Strategy. The key issues dictating that planning strategy include the formation of a retail and commercial centres hierarchy and[2]:
“The need for a clear policy on the location of centres in order to create certainty and clear expectations for the community and investment by the private and public sector.”
[2]See s 4.2.
The retail and commercial strategy is said, in s 4.3, to embody the following elements:

1. the Principal Activity Centre of Maroochydore;

2. Major Activity Centres, at Nambour and Sippy Downs;

3. Village centres;

4. Local centres;

5. Tourist centres.

That strategy is supported by a number of objectives and implementation measures in s 4.4. Objective 4.4.1 seeks to consolidate and maintain the integrity of the retail and commercial centres hierarchy. It states:
“The maintenance of the retail and commercial centres hierarchy protects the investments made in existing centres and promotes private and public sector confidence in, and public knowledge of, the council’s continuing commitment to that investment. It also provides a basis for continuing the growth and function of centres, limiting their spread into the residential areas in which they play a fundamental role and facilitating the concentration of certain uses in highly accessible and appropriately serviced areas.”
The importance of hierarchies is well established. It was accepted by the witnesses and the parties in this case. It has recently been reaffirmed by the Court of Appeal in Australian Capital Holdings Pty Ltd v Mackay City Council[3].
[3]2008 QCA per Muir JA at [583, 593].

Objective 4.4.1 is supported by implementation provisions which deal with the various elements of the hierarchy. Those provisions contemplate that the hierarchy may, in the future, also include district centres, although such centres are not dealt with in s 4.3. In particular, paragraph 17 of the implementation provisions provides:
“District level centres may be allowed if it can be established that the existence of such a centre is necessary to cater for unsatisfied demand or to allow systematic development of a particular area”
It is common ground that the proposal, considered by itself and in conjunction with existing development, would function as a district level centre. The planning scheme contemplates that standard sized or larger supermarkets may be developed in such centres, but are not appropriate in local centres. In particular, s 4.3.4 of the Strategic Plan, in dealing with local centres (which are intended to accommodate commercial uses of up to 1000m² gross floor area), provides (my underlining):
“Local centres are not intended to be established as, or to expand into, higher order centres comprising or containing a standard size or larger supermarket. Any such facilities are defined (in Volume 1) to be a shopping complex, and it is intended that such facilities be located only within District centres or higher order centres within the hierarchy. It is acknowledged that such facilities may be argued to serve day-to-day needs in a similar way to a local centre, and that they may therefore serve a community need. It is also acknowledged that it may be argued that sites not contemplated for retail or commercial development by the planning area provisions, or contemplated only for local centre development, may be physically suitable for such higher order development. However, such development would cut directly across the retail and commercial centres hierarchy established by the planning scheme. Such development is not intended to be approved regardless of the existence of factors which may otherwise support its approval, if the conflict with the hierarchy were disregarded.”
The subject site falls within an area which is contemplated for further commercial development, but not for a new shopping complex as proposed. The existing facilities in that area function at a local level, although they are not within a Local centre precinct. The proposal would bring two supermarkets (as well as other retail facilities) and function at a district level. It was submitted, on behalf of the appellant, that although the subject site is not specifically identified in the planning scheme as intended for a district centre, the proposal is consistent with the planning scheme, because the criteria in paragraph 17 of the implementation provisions in s 4.4.1 are satisfied.

I accept the submission of Mr Hughes SC, that although the planning scheme admits of the prospect of district centres in as yet unidentified locations, it does not positively encourage them. The planning scheme does not treat the development of new district level centres as a necessary part of the planned hierarchy, although such centres may become a legitimate part of the hierarchy. Further, the planning scheme does not mandate that a district level centre must be approved, subject only to satisfaction of the nominated criteria in paragraph 17. That paragraph provides that the district level centres “may” be allowed in certain circumstances. There remains a discretion.

Further, the criteria must be applied in relation to the particular development for which approval is sought. Ultimately, the question is not simply whether some district level centre might be appropriate, but whether the proposed district level facility should be approved for the subject site.

District centres may be allowed if it can be established that the existence of such a centre:

1. is necessary to cater for unsatisfied demand, or

2. is necessary to allow systematic development of a particular area.

The first of those criteria is discussed in greater detail in the context of the economic evidence. The application of that criterion to the circumstances of a given case calls for an objective and reasonable assessment. It would be wrong to say, for example, that there is no unsatisfied demand for supermarket based shopping facilities, simply because there are other supermarkets in the Shire, no matter how inconvenient or remote. On the other hand, the test does not involve simply matters of preference, subjective desire or market opportunity. It would also be wrong to conclude that a new district centre is “necessary to cater for unsatisfied demand”, simply because it would be profitable or because some people would prefer to use the centre, if it were developed. For the reasons stated later, I am not satisfied that the proposed development is necessary to cater for unsatisfied demand.

The second criterion has a different focus. It is concerned with the systematic development of a particular area. Mr Ryter (the town planner called by the appellant) contended, in the joint report of the town planners, that the systematic development of this particular area should include a high level of accessibility for supermarket based convenience shopping centres. That is similar to the unsatisfied demand argument. In his court report, he put it on a different basis, namely that[4]:
“In my opinion, the proposal will allow the systematic development of this area. This opinion is based on the following factors:
(a)the subject land is identified as a commercial precinct within which a wide range of commercial and retail uses may establish subject to code assessment only;
(b) the subject land has the benefit of an approval for retail show rooms with floor space in excess of 6,000m²;
(c)the proposal consolidates an existing significant commercial node; and
(d)because of its location at the junction of two major roads, the subject land is unsuitable for residential development.”
[4]Para 2.12 of Ex 1.
In his oral evidence Mr Ryter said that “this (the proposal) constitutes systematic development of the locality”[5] and “systematic development of a locality is better served by using a commercial precinct for a commercial use than any other precinct under the Maroochy Plan”[6]. Mr Owen (the economist called by the appellant) considered that the test was passed “as the site is included in the Kuluin Gateway precinct and this area already contains a significant amount of retail floorspace”. In cross-examination he said, “my reading of that test is that it is better to make an existing node or precinct larger rather than creating a new node or precinct…”[7]
[5]T62.
[6]T 62, 64.
[7]T172.

That evidence does not lead me to conclude that the second criterion is satisfied. The question is not whether those who live within the area might be advantaged in some way by more supermarkets (something which is discussed later in the context of the economic evidence). It is not whether the site should be developed for some form of commercial development, rather than residential development. It is not whether the subject proposal might otherwise be appropriate or orderly development or constitute or be consistent with systematic development. It is not whether, if such a proposal were to proceed, the subject site would be a better site than one which is in a precinct which does not contemplate commercial development. The question is whether the proposed district level centre is necessary to allow the systematic development of a particular area. As Mr Shomburgk pointed out, the subject site falls within a largely established area, which has been developed systematically. It is difficult to see how systematic development of the area is dependent upon this site being developed for the proposed district level retail facilities. I am not persuaded that the second criterion is met.

It should also be remembered that paragraph 17 is part of provisions which are designed to implement an objective which seeks to consolidate and maintain the integrity of the hierarchy. Approval of a new district centre would offend that objective if, as a result, other elements of the hierarchy were thereby jeopardised. So much was recognised in the appellant’s written submissions, where it was contended that the development of district centres was supported where, amongst other things, the development would have “no significant adverse impact on any existing centre at a different level of the hierarchy.”[8]
[8]See para 31(c) of the submissions of 15 July.

The impact of the proposal on existing facilities is dealt with in greater detail in the context of the economic evidence. The evidence of Mr Norling satisfies me that, while the proposal would not jeopardise higher level elements of the hierarchy, it would significantly adversely impact on lower order facilities and, indeed, jeopardise the continued function of the Kuluin Central local centre, which is recognised and sought to be maintained by the provisions applicable to the planning area within which the subject site is situated.

Reference was made to the council’s draft Local Growth Management Strategy. The document contains a strategy for “District Activity Centres” which, amongst other things, states that “opportunities for new district centres will be investigated in the longer term”. It does not suggest any near term identification of a District Centre at this location. The document is however, at an early stage of the statutory process, being in the first State interest check. I am not prepared to give it weight.

It has already been noted that the “Conservation” PDLU adjoins the “Urban” PDLU on the Strategic Plan map. That PDLU is relevant to the Natural Resources Strategy. The objectives of that strategy are said to be best achieved by the exclusion of most forms of development in the Conservation areas[9]. It is reasonable to regard that PDLU as related to the creek and its associated riparian vegetation. The appellant does not seek to justify the destruction of that vegetation. Rather, it contends that the development would not extend into, or require the destruction of, that vegetation. For the reasons discussed later, I am satisfied that the development is capable of being carried out while retaining that vegetation.
[9]Section 10.4.1.

Volume 3 of the Planning Scheme contains provisions relating to Planning Areas, Precincts and Precinct classes. Each Planning Area provides an overall description of the character and relevant issues for the district or local area, while each individual Precinct describes the unique character of the particular locality within the relevant planning area. Each precinct class identifies a general intent for individual precincts which are similar in nature throughout the Shire[10]. The primary function of those statements is as assessment criteria in relation to applications for impact assessable development.[11]
[10]Section 1.2.
[11]Section 1.1.

The relationship between Volumes 2 & 3 is explained in the preface to both volumes in the following way:
“The statements of strategic and local policy in Volumes 2 & 3 of the Planning Scheme respectively, may include somewhat different statements of policy or intent for the same areas of land. This will generally be an unintended outcome, as the detailed local planning provisions in Volume 3 are intended to be based upon and reflective of the general principles in Volume 2. However, it may occur due to the diversity of character of the Shire.
In any such cases, Volume 3 provisions represent council’s specific planning intent for the relevant locality, and are not intended to be weakened or overwritten by anything in the Strategic Plan.
Where there is no direct inconsistency in those statements, but merely different or additional outcomes or requirements indicated, Volume 3 constitutes the primary basis for assessment but all elements of the policy or intent in both volumes are expected to be satisfied in order that development does not conflict with the Planning Scheme.
If the different statements are inconsistent, statements in Volume 3 prevail over inconsistent statements in Volume 2. This reflects the fact that the volume 2 provisions are either broad strategic statements or statements of general principle, whereas Volume 3 provisions state specific and considered planning intents for identified localities. It is an incorrect use of the Strategic Plan, and an incorrect interpretation of this Planning Scheme, to rely on anything in the Strategic Plan to support or justify as being consistent with the Planning Scheme, an outcome which is contrary to the Planning Area provisions.”
The subject site falls within Planning Area No. 8 – Kuluin / Kunda Park and, in particular, within the Kuluin Gateway Precinct. A shopping complex is not one of the preferred or acceptable uses in that precinct. The provisions do not support the notion that a district level shopping complex is intended to be developed within that area and precinct. The appellant submits that is unsurprising, in the context of a planning scheme which admits of the prospect of future district centres, but does not designate where those centres are to be located. It was submitted that it would be inappropriate to regard a proposal as being in conflict with the planning scheme simply because the local provisions in volume 3 do not refer to the establishment of a district centre. To do so would deprive the Volume 2 provisions relating to district centres of utility. This is not however, a case where the local planning provisions simply neither support nor oppose development as proposed.

It was submitted, on behalf of the appellant, that the Kuluin Gateway Precinct is an appropriate precinct for a district level facility. It was pointed out that it falls within the “town centre frame” precinct class, which is one of the centre precinct classes. That precinct class is generally intended to adjoin a town centre core area and provide for types of uses which complement each core area’s functions and environment.[12] The Kuluin Gateway Precinct however, does not frame an adjacent town centre core. It was submitted that the precinct neatly fits into the hierarchy at a level above a Local Centre or a Village Centre but below a Major Activity Centre, which is where a district centre would also fit within the hierarchy.
[12]Section 2.3(2).

While the Kuluin Gateway precinct does not adjoin a Town Centre Core Precinct, the application of a Town Centre Frame class of precinct indicates an intent for it to be developed in a similar way. It is difficult to see the general intent for that precinct class as supportive of a proposal to convert the area into a district centre by development of a substantial shopping complex anchored by two supermarkets. Both Mr Schomburgk and Mr Ryter saw the proposal as providing “core” retailing[13] and being different, in this respect, from the approval showroom development.[14]
[13]See Ryter T65 l 15.
[14]See Ryter T63 l 28.

Section 3.8.2 of the planning area provisions speaks of the residential community being “focused on the primary school and existing local centres”. In fact there is only one local centre precinct, the Kuluin Central precinct. The provisions also refer to commercial development of land at this intersection being “expected to accommodate services and facilities which are more vehicle oriented and serve both local and passing traffic”. This gives some recognition to the local function of development at this location. The Kuluin Gateway Precinct intent states that it contains a “small range” of commercial uses “oriented to visitors and passing vehicle traffic” which are intended to be “consolidated”. The economic experts agreed (unsurprisingly) that, with development of the proposal, the precinct could not be described as consisting of a small range of commercial uses oriented to visitors and passing vehicle traffic.

The appellant did not contend that the proposal sat very comfortably with those provisions, but pointed out that the existing development does not do so either. There was some debate between Mr Ryter and Mr Schomburgk as to whether the approved showroom development would do so either. Showrooms are however, expressly contemplated in the statement of general intent for the Town Centre Frame Precinct class.

What currently exists, it was submitted, is more accurately described as a range of small retail and convenience stores and small commercial offices, most likely serving the local resident population and containing little or nothing, apart from a McDonalds, of any interests to visitors or passing vehicle traffic. I note that s 3.8.3(b) recognises the role of development at this intersection in serving “local” traffic as well as passing traffic, although s 3.8.4 does not do so. In any event it is nevertheless difficult to see that the proposed new district level centre is consistent with the intent.

Section 3.8.3(2)(c) of the provisions applicable to Planning Area 8, in referring to “any new premises in the commercial centre at the intersection of Main and Maroochydore Roads” provides:

“…This centre is not intended as a primary shopping area.”

Main Street changes to Jones Road at this intersection. It was common ground that this provision applies to all corners of the intersection, including the south-western corner of the intersection, where the subject site is located. The appellant’s submissions conceded that “there may be a more direct inconsistency” with that provision, depending upon how it is interpreted.

The provision is not concerned with whether the area becomes mainly or primarily developed for shops. Nor is it limited to whether the area would become “the” primary shopping area for the former Maroochy Shire. Rather, the concern is to ensure that it does not become “a” (ie one of) “primary shopping area” or, to put it another way, that it does not become a primary shopping destination.

The proposed development includes not one but two supermarkets, including a full-line Woolworths supermarket and an Aldi. The economists agree that it would attain high retail productivity levels, attracting high shopper numbers. It would have an initial turnover in excess of $40 million. It would attain a high retail market share, including a 50 per cent share of all “convenience” expenditure from persons resident within its central trade area. The inclusion of what would be the first Aldi supermarket in the former Maroochy Shire would increase the centre’s performance and extend its reach, at least until other Aldi supermarkets were developed. It would raise the total commercial floor space at the Kuluin Gateway Precinct to some 12,200m². This area would become a primary shopping destination for many people. I am satisfied that this proposal would cause the area to become “a primary shopping area” as that expression would ordinarily be understood.

The economists, in their joint report, agreed that the proposed development would be regarded as a primary shopping destination. Mr Ryter, in the course of cross-examination, acknowledged, “I can see that there is a fundamental conflict with converting this precinct to a primary shopping area”.[15]
[15]T69-70.

It was submitted, for the appellant, that the expression should be given a particular interpretation in the context of the Maroochy Plan. It was said that, in context, the expression refers only to shopping at the highest levels of the retail hierarchy, containing the broadest range of retail offerings, such as might be found in the Principal Activity Centre of Maroochydore or one of the Major Activity Centres.

Maroochy Plan 2000 does not contain any definition of a “primary shopping area”. The provision is not just concerned with whether the centre would replicate or rival the total function of the Principal Activity Centre or a Major Activity Centre, the function of which is related to a broader intention to serve as major employment areas and preferred locations for specialist retailing, regional and local government offices and major commercial, cultural and entertainment establishments.[16] The provision is concerned only with shopping and, in particular, with ensuring that this area does not become a primary shopping area.
[16]See clause 2.3(1) of Volume 3

I note that the type of shopping to be provided is one which is found in the higher order centres, consistently with the planning scheme provisions. It was pointed out that a wide range of commercial uses, including shops, may locate within the precinct, subject only to code assessment. It was submitted that, in the circumstances, the reference to a “primary shopping area” ought be construed in the way contended for by the appellant or alternatively, that any conflict should be regarded as one of “form and literalism rather than planning substance”, since individual components of the shopping complex could be separately developed. It was argued that the proposal falls outside of the preferred and acceptable uses because it includes the uses in an integrated shopping complex rather than allowing their piecemeal development.

The intent for the area not to be a “primary shopping area” is carried forward in its inclusion in a Town Centre Frame precinct class, in which a shopping complex is not one of the preferred or acceptable uses. It is understandable, given the planning intent, that the development of an individual shop, for example, would be anticipated in this precinct, but not a new shopping complex of the kind here proposed. While it might theoretically be possible to develop individual components as separate developments:

· that is not the proposal;

· the practicality of achieving something of a similar scale and function in that way was not established; and

· development of district level supermarket facilities as code assessable shops would, if possible, appear to be an unintended outcome. Section 4.3.4 of the Strategic Plan, referred to earlier, assumes that centres “comprising” or containing a standard sized or larger supermarket will fall within the shopping complex definition. That definition includes premises comprising single buildings[17] with a gross floor area of more than 1000m² used for one shop, where that can be said to be an integrated development established in a co-ordinated way.

[17]The expression means premises (my underlining) “comprising one or more buildings in the form of an integrated development having a gross floor area of more than 1000m², established in a co-ordinated manner and used for one or more stops, either with or without one or more of the following purposes…”

Maroochy Plan 2000 does not dictate or justify the appellant’s construction. The words should be given their ordinary meaning. The proposal conflicts with the specific intent for this part of the planning area. The conflict is more than technical or minor.

The planning area and precinct provisions also contain statements about local centres and, in particular, the Kuluin Central Local Centre. It has already been noted that s 3.8.2 provides that “the community will be focused upon the primary school and existing local centres”. Similarly s 3.8.3(1)(a), in dealing with the central part of the planning area, states that, “The residential area is to be focused on the centrally situated school, local centre and open space”. The area provisions also recognise the function of commercial development at the subject intersection in serving “local” as well as passing traffic. The economists described the existing function of Kuluin Village and the North Buderim Shopping Centre as local.

The intent for Kuluin Central is carried forward in s 3.8.3(2)(b), which provides:

“The centrally located Kuluin Local Centre and school facilities are to be maintain and enhanced as much as possible”.

The Kuluin Central local centre is included in Precinct 2, which is “primarily intended to provide for the day-to-day convenience shopping and personal service needs of surrounding Kuluin residents”.[18]

[18]Section 3.8.4(2).

The subject proposal would cut across the intention to maintain and enhance the existing local centres and the Kuluin Central Local Centre in particular because it would have a significantly adverse economic impact and, in particular, jeopardise the future function of the Kuluin Central Local Centre. That is discussed further in the context of the economic evidence.

Demand / Need / Impact

(i) Unsatisfied demand

The question of whether the proposed district level retail centre is necessary to cater for unsatisfied demand was examined by the economic experts. The test calls for an objective and reasonable determination of whether:

(a) there is an “unsatisfied demand”;

(b) the proposed district centre is necessary to cater for that demand.

The proposed centre would provide supermarket based retail facilities and a substantial number of specialities (together with a fast-food store and some offices). It is evident that such facilities already exist elsewhere in the former Maroochy Shire and are being used by the population to undertake that form of shopping. On a strict approach, it might be said that there could be no “unsatisfied demand”, since existing facilities are used to satisfy the demand. That would mean that the test would only ever be satisfied where there was an absence of like facilities. Mr Hughes SC did not submit that the test should be approached in that way.

It is also evident that the proposed centre, if developed, would become the preferred destination for a significant number of people and would be commercially successful. That is not however, determinative. Mr Hinson SC also adopted the position that the question must be approached reasonably[19]. It is in that context that the economists’ evidence can be considered.
[19]Day 6 T73-75.

The joint report of the economists discussed four potential trade areas, namely the central, eastern, southern and western trade areas as shown on Map 2 of the joint report. The existing supermarkets that are of relevance are shown on Map 2A and include two Woolworths and one Coles supermarket and in the Principal Activity Centre in Maroochydore, a Woolworths supermarket at Buderim Marketplace, in the Buderim Village Centre and a Coles, Woolworths and Super IGA at Nambour. In the joint report, Mr Owen expressed the opinion that:

“The unsatisfied demand test is easily passed as there is an obvious gap for a supermarket anchored shopping centre to service the identified trade area. The Central and Western components of the trade area would have a population of 12,111 people (4774 households) in 2011 and are presently not directly serviced by any proximate centre. The subject site would also cater to a proportion of the demand generated by residents of the Southern and Eastern trade areas. These areas will have a population of 5,544 people (2,551 households) in 2011.”

Mr Norling did not dispute that the proposed centre would be commercially successful. In his opinion however, while the proposal might better or more fully satisfy demand for this type of shopping, it is not necessary in order to cater for an unsatisfied demand, because those likely to be served by it already have reasonable access to a reasonable range of reasonably convenient like facilities which reasonably satisfy the demand.

The southern and eastern trade areas are of little significance to a determination of unsatisfied demand for a new district level centre on the subject site. As Mr Owen’s court report acknowledges, the proposed development would have a relatively low market share from those areas. The vast majority of expenditure from those trade areas would remain directed to the existing facilities at Buderim Marketplace and at Maroochydore.

There was some debate about the likely market share which the proposal would achieve from the western trade area. Mr Norling considered Mr Owen’s estimate of 45 per cent a little high, but he conceded that a substantial proportion of those within that trade area could be expected to change their habits and make use of the subject proposal, if it proceeded.

The western trade area is geographically large, and its residents are not particularly close to existing facilities. That is not surprising however, when one has regard to the nature of the area which, as the joint report attests, is an established rural area in which residents are (not unreasonably) used to travelling further distances for goods and services. I accept Mr Norling’s evidence that demand from this trade area is satisfied at present by the existing facilities, including those at Nambour.

I accept Mr Norling’s conclusion that only the population within the Central Trade Area potentially qualifies for the unsatisfied demand test. The central trade area would make the greatest contribution to the turnover of the proposed centre. There are two parts to that trade area. There is a relatively small community residing in the sparsely populated area in the vicinity of Mons School Road and a larger suburban residential community living in the areas east of the subject site. The former does not enjoy the advantage of being as close to existing supermarket based facilities (being 6km or 7km from the Buderim Marketplace and up to 8km from the supermarkets in the Maroochydore centre). As Mr Norling pointed out, however, residents of this area have chosen to live in a less well serviced area, no doubt attracted by the particular amenity, featuring elevated views and attractive vegetation. This community represents only a small proportion of the population of the central trade area.

The vast majority (80 per cent) of the residents of the central trade area reside in the areas to the east of the subject site. Those areas are more proximate to existing full-line supermarket facilities, notwithstanding they may be beyond the primary catchment for those facilities. Ms Johnston, the regional property manager for Woolworths supermarkets, described the trade area for the proposed Woolworths in the subject proposal as falling within the secondary trade area of the existing Woolworths at Buderim Marketplace.[20]
[20]T140.

Residents in this part of the trade area are located only some 2.5km to 4km from the existing facilities in Maroochydore and Buderim Marketplace. Neither Mr Norling nor Mr Owen regarded that as an unreasonable distance for people to travel to a supermarket[21]. Further, shoppers have the choice of three Woolworths supermarkets and one Coles supermarket in those existing centres.[22] Mr Owen accepted that is not an unreasonable choice of facilities. He agreed competition would be expected as a result.[23] The choice also offers different types of centres, with Maroochydore being the Principal Activity Centre and Buderim a Village centre. The vast majority of residents of the central trade area have access to a choice of full-line supermarkets (and associated specialities) within reasonable proximity, offering reasonable choice and competition.
[21]See comments by Mr Norling at p 18 of the Joint Report. See also Mr Owen T171.
[22]The Woolworths at Buderim Marketplace is smaller than that proposed for the subject site and offers fewer stock units, but it has all the departments that would be expected in a full-line supermarket (T141). Mr Owen’s evidence was that the average shopper can conduct their normal weekly shopping trip at a 2,500m² Woolworths.
[23]T171.

The above suggests, consistently with Mr Norling’s evidence, that viewed objectively and reasonably, it is not necessary to provide a further district centre to cater for unsatisfied demand.

In his court report, Mr Owen suggested that “planning for the subject site must respond to practical matters as well as planning objectives”. These “practical matters” are the constraints on sites in the Buderim Village Centre, which limit their capacity to expand, and that the Maroochydore Principal Activity Centre will become less convenient over time for supermarket shopping. He saw this as leading to residents living outside the Principal Activity Centre seeking a more convenient “chore” shopping option. Ms Johnston also gave evidence of the congestion and constraints affecting the Woolworths in the Village Centre.

Mr Norling accepted that there is presently a degree of congestion in the Buderim Village Centre and that the Maroochydore Principal Activity Centre does not offer high level convenience and accessibility for supermarket shopping. In his oral evidence, however, he pointed out that that does not apply to the Woolworths at Sunshine Plaza, which presents almost as if it were a stand-alone supermarket, with a sea of carparking immediately around it. While he does not believe that this is a case of unsatisfied demand, he agrees that convenience, accessibility, choice, range and price would be improved by the provision of a supermarket based shopping centre within the central trade area, the population of which is sufficient to support another major supermarket. For these reasons he saw what he regarded as a level of “planning need”, which is more than minor, but not strong,[24] for a single supermarket based centre.
[24]He described it as “significant” being at 3 on a 7-point scale (with 0 being no planning need).

It may be noted, in relation to the issue of congestion, that the subject development is not without its own issues. In that regard:
(a)        the traffic evidence indicates that there would be congestion (reflected in elongated queues) on the external road network in the vicinity of the subject site;
(b)        the internal design of the proposal does not provide a convenient search pattern for carparking spaces;
(c)        there would be internal queuing at the single access point to Jones Road; and
(d)        the proposal offers limited “at grade” carparking.
Mr Norling considered the need for a single supermarket based centre to be no higher because:
(a)        There is capacity for existing centres to accommodate additional supermarkets, should the need arise;
(b)        The distances to existing supermarkets are not unreasonable;
(c)        The central trade area population is relied upon to support the three existing major supermarkets in the Maroochydore Principal Activity Centre;
(d)        The proposal is in conflict with the established centre hierarchy.

The last of those should be disregarded for this purpose, since the assessment of necessity to provide a new district centre, to cater for an unsatisfied demand, might lead to a conclusion that such a centre may be accepted as a legitimate part of the hierarchy.

It is perhaps debatable whether the factors which led Mr Norling to accept a level of “planning need” should also be accepted as demonstrating that there is a level of “unsatisfied demand” for additional more conveniently located full-line supermarket based shopping facilities. It was pointed out that Mr Schomburgk had, in evidence, indicated that (subject to other issues such as environmental and traffic impact), he would not be opposed to a smaller stand alone Woolworths supermarket, or one with four or five associated specialty shops, to better serve the local need for convenience retailing. In his report he said that:

“I agree with Mr Norling that, while a single, stand-alone, full-line supermarket may be argued to be meeting an unsatisfied demand, there is no unsatisfied demand for the total proposal”.

This suggests that Mr Schomburgk mistakenly thought that Mr Norling’s identification of some level of need for a single supermarket based centre was a concession that there is an unsatisfied demand. That was not Mr Norling’s opinion. Mr Norling’s view is that the demand is not “unsatisfied”, even though it might be better or more fully satisfied if another facility were provided.

Mr Norling’s evidence persuades me that there is no unreasonable deficiency in the way that the existing facilities cater for the demand for supermarket based shopping at present. Further, the proposal is not for a modest stand alone supermarket or even one supplemented by a handful of specialties. Rather it is proposed to have two supermarkets and some 15 specialities (the need for which was not separately assessed).

I accept Mr Norling’s evidence that there is insufficient population within the central trade area to support the need for two supermarkets[25]. The second supermarket is intended to accommodate an Aldi. Aldi supermarkets attract a low market share from a large population by offering a very limited range at discounted prices. They are not a complete alternative to a full-line supermarket, because the typical shopper would not obtain their full grocery list at an Aldi supermarket.
[25]Ex 11 para 11(c).

As a relatively new entrant on the Sunshine Coast, Aldi is in the process of establishing a network of stores. The newest Aldi supermarkets are located at Noosaville and Bribie Island. As at the time of the hearing, another was under construction at Caloundra. Until and unless the network of stores was further expanded, an Aldi supermarket at the subject site would serve a broad catchment within the former Maroochy Shire. It would also significantly elevate the role and function of the centre.[26]
[26]See Norling’s comments at p 19 of the Joint Report and pg 3 of his appeal report.

While the existing facilities offer a reasonable level of choice, Mr Norling conceded, in cross-examination, that there is a real and genuine demand, within the former Maroochy shire, for the alternative type of supermarket shopping offered by Aldi. That demand, however, relates to a broader area and can be accommodated by locating such a supermarket otherwise than in a new district centre on the subject site.

Mr Geary, a property director in the employ of Aldi, gave evidence of Aldi’s earnest, but as yet unsuccessful, attempts to locate stores in the former Maroochy Shire. There have been various reasons why Aldi has not been successful with other sites. These includes commercial issues (such as a site being too expensive, Aldi being beaten to a site by another buyer or the existence of covenants restricting competitors) as well as planning issues. Mr Geary sees the subject proposal as the “best and only real opportunity” to date, but is not about to abandon efforts to locate more stores within the area, whether the subject proposal is approved or not.

While I accept that Aldi has experienced difficulties to date, the economists agreed, in their joint report, that existing centres have the capacity to accommodate additional supermarkets.[27] Mr Norling maintained that there are opportunities, notwithstanding the evidence of Mr Geary.[28] The evidence leaves me short of being satisfied that the proposed development is necessary in order to cater for demand for an Aldi supermarket in the broader area.
[27]Pg 8 of the joint report.
[28]T212.

Even if the “planning need” for a single supermarket based centre to which Mr Norling referred was regarded as evidence of an “unsatisfied demand”, I am not persuaded that it is necessary to locate a centre of the scale proposed, with two supermarkets and a substantial area for specialities, in order to cater for that demand.

(ii) Economic impact

Mr Owen and Mr Norling agreed that the proposal would not impact upon the viability or function of the higher order centres of Maroochydore, Sippy Downs or Nambour.

The proposed centre would impact on the Buderim Village Centre which, as Mr Owen attested in the joint report, appears to be trading strongly. The size of its catchment and the retail strength of the centre mean that the area would retain its role and function although, as Mr Norling pointed out, it is likely that it would suffer somewhat reduced patronage levels, vibrancy and vitality by reason of the proposed development. As Mr Norling pointed out[29]:

“…But Buderim we see is a community which has a – it’s a community village which has a sense of identity and a sense of place, and there’s been quite a deal of public investment by the Council in terms of roads, the streetscaping, the pathways and the presentation and, while it’s true that it’s fairly congested in the busy times at the moment, any diminution in activity there is ultimately a diminution in the use of the scarce resources that the Council has plied in investment into that village.”

[29]T207.

Mr Owen did not carry out any assessment of the likely impact of the proposal on existing lower order facilities. Mr Norling’s opinion[30], which I accept, is that impacts on Maroochy Waters Shopping Centre, Kuluin Central, Lakeshore Convenience Centre, Kuluin Village and North Buderim Shopping Centres are likely to significantly exceed 15 per cent, which, as he explained, is a level which generally is likely to cause concern and retailers to cease trading[31].
[30]Pg 20 of the joint report.
[31]T03.

The location of those centres, which are all described as local centres in the joint report, are shown on Map 1 in that report. The Maroochy Waters Shopping Centre is included within a local centre precinct within Planning Area No. 1 - Maroochydore[32]. It is intended to provide local and convenience shopping for the residents of the northern and eastern parts of the Maroochydore Planning Area. Kuluin Central consists of six specialty shops. As previously noted, it is included within a Local Centre precinct in Planning Area No. 8. Lakeshore Convenience Centre has a small general convenience store and a total of seven specialities. It is included within the Buderim Residential Precinct within Planning Area No. 6. The intent for that precinct expressly acknowledges two “local convenience centres”, but the description of neither appears to correspond with the Lakeshore Convenience Centre. Kuluin Village and the North Buderim Shopping Centre are within the Kuluin Gateway Precinct, discussed earlier.
[32]Precinct 22.

The two adjoining centres (Kuluin Village and North Buderim Shopping Centre) may derive some benefit from increased activity in the precinct, resulting from the proposed development. Mr Norling’s view, which I accept, is that the proposal would nevertheless be expected to diminish the existing function of those two adjoining centres, by dominating them in terms of patronage levels and range of tenants.

Mr Norling held even greater concerns for the likely effect on Kuluin Central and Lakeshore Convenience Centre. Inspection of those centres gave him no confidence that the retailers have the strength, marketing power and resilience to recapitalise, reinvest and resist the likely impacts from the proposed development. In his view, which I accept, the impact of the proposed development may well see those centres continuing to lose convenience shopping functions, leading to their eventual closure.

Mr Owen did not analyse the impacts of the proposal upon the smaller centres, but he gave evidence that:
(a)        If the proposal has an impact of more than 15 per cent, some of the retailers will have difficulty trading;
(b)        The extent of the impact will depend upon how the retailers react to the new competition;
(c)        In his opinion, there are “enough dollars in the catchment to sustain good local centres”, but some existing centres are struggling even without competition from the subject proposal, indicating other inadequacies.
(d)        It is not uncommon for local centres to trade effectively and successfully despite proximity to the full-line supermarkets and any loss of facilities, by reason of the impact of the subject proposal, would be more than outweighed by the benefits of the new centre.
While it may be accepted that there are local centres which operate successfully despite their proximity to higher order centres and while retailers can be expected to endeavour to react to new competition, that is not a sufficient response to the concern about the likely impact of this particular proposal. Mr Owen has undertaken no assessment of that impact. Mr Norling’s evidence, which I accept, is to the effect that the impact is likely to be substantial and, in some cases, would jeopardise the continued function of those facilities. There is no evidence which would give confidence that those centres which are currently struggling are in a position to withstand the severity of the likely impact. Mr Norling’s evidence was that the McDonalds, which lies to the north of the subject site, is the only facility which shows signs of strength or resilience[33].
[33]T202

I was reminded of the well-known passage of a judgment of Stephen J in Kentucky Fried Chicken Pty Ltd v Gantidis & Anor[34] in which it was said:
“If the shopping facilities presently enjoyed by a community or planned for in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing business are at one and the same time also threatened by the new competition afforded by that new development. However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of the facilities available to the local community if the development be proceeded with, will not be relevant to town planning considerations.”
[34](1979) 40 LGRA 132 at 141.
That case was concerned with competition between an existing takeaway food premises and a proposed new Kentucky Fried Chicken outlet. There is no suggestion, in the reasons for judgment, that the relevant planning provisions contain anything like the detailed strategic, planning area and precinct level provisions in the Maroochy Plan 2000 with respect to the intended retail hierarchy. That is unsurprising, given that the case was decided nearly three decades ago.

The local-level facilities in the existing centre are obviously less extensive than is proposed for the subject site, although as Mr Norling pointed out, they offer a “walk up” convenience which is different from that which would be provided by the proposal. The relevant provisions of the Maroochy Plan 2000 however, does not give any support for the creation of a new district centre at the expense of the continued function of lower order centres within the hierarchy.

Local centres are not shown on the Strategic Plan map, but are identified in the planning area provisions, either by inclusion in a Local Centre Precinct, or by description in words. Even if one puts to one side the impacts on the Lakeshore Convenience Centre (which does not seem to be recognised in the planning scheme) and the existing facilities in the Kuluin Gateway Precinct (which are not well described in the intent for that precinct), the evidence still shows that there would be an adverse impact on the vibrancy and vitality of the Village centre and a significant adverse economic impact on the designated local centre of Maroochy Waters, and that the continued function of the designated local centre of Kuluin would be jeopardised. While I can understand Mr Owen’s lack of enthusiasm for protecting underperforming local centres, the planning strategy to support the hierarchy cannot be ignored.

Stormwater and Flooding

These issues were considered by Mr Walsh for the appellant and Dr Johnson for the respondent, who agreed that the proposed water quality management solutions are acceptable. Dr Johnson pointed out, in the joint report, that the applicant had yet to demonstrate that the development would not have an adverse impact on flood levels or unacceptably increased stormwater discharge flow rates beyond the boundary of the site. Those issues were examined in the evidence and in further discussions, leading to a further joint report.

It was ultimately agreed that the additional stormwater runoff storage tanks (as shown in a further drawing produced by Mr Walsh) and appropriately sized roof gutters and downpipes would be sufficient to ensure that peak discharge from the developed site would not exceed the pre-development peak. It was also agreed that proposed additional excavation underneath the footprint of the second supermarket would be sufficient to compensate for the loss of flood plain storage.

Impact on the environment

It was contended, by the respondent, that the proposal incorporates an inadequate buffer to the creek and is likely to result in the removal of riparian vegetation.

Environmental issues were assessed, for the appellant, by Ms Duke, who is an environmental engineer / scientist. Ms Duke’s court report was based on the assumption that the existing riparian vegetation was proposed to be retained (and supplemented by further planting). It transpired however, that her evidence about vegetation retention was based on little more than a walk over the property, unassisted by any survey of location of the proposed development in relation to the existing vegetation. I would not have been satisfied on the basis of that evidence, particularly given the apparent proximity of the development to that vegetation as shown on the aerial photo overlay at page 285 of the appeal book. Further, Ms Duke appeared unfamiliar with the details of the swale which, for the purposes of drainage, would be constructed between the building footprint and the boundary of the site proximate to the riparian vegetation. She conceded, in cross-examination, that she would need to see an overlay of the swale and the existing trees, to say whether the vegetation would be lost[35].
[35]T35

The appellant successfully applied for leave to reopen its case to address this issue, as well as others which had emerged during the course of the hearing. A tree survey was undertaken and overlayed with a new plan showing details of the proposed swale. The overlay justified the respondents’ concerns in relation to Ms Duke’s earlier evidence. It showed a number of trees, including trees for retention, located in, or at the boundary of the proposed swale. In a further report, Ms Duke identified non-native / invasive pest species which could be removed, but recommended protection of the tree root systems of species to be retained, as well as protection of the waterway bank components.

The obvious issue arising from that further evidence is whether the swale could be constructed consistently with the tree retention recommended by Ms Duke. Surprisingly, however, Mr Walsh had not been instructed to consider the possible impacts of the stormwater treatment devices upon the vegetation to be retained. The written submissions of the appellant conceded that there was a “less than desirable coordination between the appellant’s engineering and environmental witnesses”. That is an understatement. The appellant did not seek to again reopen its case. Rather, it elected to deal with the matter in the course of the oral evidence at the resumed hearing.

Mr Walsh’s evidence was that the trees would be damaged if the swales were constructed as shown on his plan, but that amendments could be made to protect them. The trees proposed for retention do not extend around the entirety of the western and south-western parts of the swales. They occur in particular locations. Mr Walsh’s evidence was that sections of the swale could be narrowed or replaced by piping as necessary, to avoid the loss of trees or interruption of their root zone by the swale or its construction. The efficiency of the system in achieving appropriate water quality, could be maintained by adding additional bio-retention basins in other parts of the swale. Mr Walsh has employed such techniques elsewhere. While the area within which the swale is to be constructed between the proposed buildings and the site boundary is tight, Mr Walsh’s evidence, which I accept, is that construction can be contained within the site.

Dr Johnson raised the possibility of shadows from the retained trees affecting vegetation in the swales, but the swales are not intended to disturb within the drip line of retained trees. Ms Duke was not troubled by the need for much sunlight to sustain the vegetation in the swales.

Dr Johnson acknowledged that solutions of the kind suggested by Mr Walsh could be employed, but retained a concern for seven trees[36] which are located between the intended discharge point (towards the northern end of the western boundary of the site) and the natural low point, some distance to the south. In that section, there might be a need to have filling, extending into the drip line of the trees, in order to achieve a proper grading for any pipe. He did not discount the possibility that filling in the root zone might be avoided, but pointed out that, in the absence of more detail, so much could not be assumed.
[36]Nos. 2-8

If the discharge point cannot be achieved without inappropriately filling within the root zone of those trees, then either the building footprint would have to be changed to create a greater setback from the western boundary (from within which to undertake filling clear of the root zone) or the discharge point may have to be moved back towards the low point of the western boundary, as initially proposed. In short, the problem is not so much with the concept of piping sections of the system, but with the filling which might be required to move the discharge point from its initial location at the low point to a higher point further to the north, as shown on the more recent plan.

Dr Johnson also raised another issue with respect to the relocated discharge point. He pointed out that it was in an area where there may be a depression and associated ponding. He raised a concern as to whether ponding at that site would affect the adjacent building, but conceded that it was something which could be taken into account in the building design. Off-site ponding would not be altered by the development.[37] The proposed location of the outlet is not unacceptable for that reason.
[37]T45

The proposal to move the discharge point in accordance with Exhibit 34 was prompted by Dr Johnson’s concern that the original point was too close to the waterway to provide a factor of safety if some failure occurred. It is, of course, better to have a wider buffer. The question however, is not what is optimal, but what is acceptable.

Insofar as stormwater discharge is concerned, the Code for Waterway and Wetlands provides, in part, as follows (my underlining):

Performance criteria	Acceptable measures
P4 Stormwater discharges are treated before entering the waterway or wetland buffer to prevent adverse impacts on the buffer’s integrity and on the receiving waters	A4.1 Water entering vegetated buffers adjacent to waterways and wetlands meet the water quality objectives set out in Planning Scheme Policy 5; Operational Works

Similarly, the Code for Integrated Water Management provides, in relation to water quality, as follows (my underlining):

Performance criteria	Acceptable measures
P1 The environmental values and quality of receiving waters within or downstream of the development site are protected and enhanced	A1.1 Water quality objectives identified in Planning Scheme Policy No. 5 – Operational Works are met. Where a site includes or adjoins a buffer to a waterway or wetland established in accordance with the code for waterways and wetlands, the water quality objectives are to be met prior to water entering that buffer

It is common ground that the treatment process for the subject site is to achieve the water quality objectives in Planning Scheme Policy 5 prior to discharge. There is no reliance upon further treatment, beyond the point of discharge, in order to achieve appropriate water quality.

Insofar as buffers are concerned, the Performance Criterion 1 of the Code for Waterways and Wetlands provides:
“A buffer is maintained to protect and enhance the environmental values and ecosystem services of waterways, wetlands and fish habitat areas having regard to:
·Fauna habitats;
·Adjacent land use impacts;
·Stream integrity;
·Sustainable aquatic and wetland ecosystems; and
·Recreational amenity.”
The acceptable measures nominate various buffer widths, the applicable one of which is 50 metres. That is not achieved by the proposal. That is not the end of the matter, since the code is performance based, admitting of a prospect of the performance criteria being met otherwise then by adoption of the acceptable measures. I accept the evidence of Ms Duke to the effect that the performance criterion is met.

It would be desirable for the discharge point to be moved as proposed, so long as appropriate tree retention could also be achieved. That might be achievable, although the evidence currently falls short of establishing that it would be. That uncertainty should not lead to a refusal, because I am satisfied that the proposal is acceptable in this respect, even if the discharge point needs to return to its original location.

The respondent’s submissions continued to rely upon the aerial photo overlay appearing at pg 285 of Ex 19, in order to submit that the development would interfere with the riparian vegetation. The more recent work, including the tree survey, satisfies me that, subject to the measures outlined above, it would be possible to conduct the development while retaining the nominated trees.

Traffic

(i) External impact

The site is at the intersection of two heavily trafficked and important roads, Maroochydore Road and Jones Road. Opportunities for access are limited because:

1. the Department of Main Roads will not permit direct access to Maroochydore Road;

2. only one point of access to Jones Road (directly opposite Pittards Road) is practicable;

3. that part of Jones Road features four intersections over a relatively short distance and already experiences congestion at peak times, which manifests itself in the form of undesirable queuing between, and through, intersections.

Those existing queuing difficulties were acknowledged by the traffic engineers, and were also the subject of unchallenged evidence from Mr Massie and Mr Duffy. Mr Duffy’s evidence is that:

“There are often delays at the traffic lights at the intersection of Jones Road and Maroochydore Road and Jones Road and Pittard Road. During the peak traffic times it can take more than one change of lights to get through these intersections
The traffic often banks up on Jones Road as vehicles turn right into Jones Road into Pittard Road and then have to stop at the lights at Maroochydore Road. As a result, cars often queue across from Jones Road and Pittard Road intersections.
The left-hand northbound through lane on Jones Road often blocks the left-hand turning lane into Maroochydore Road, which adds to the queuing problems at the Jones Road and Pittard Road intersection.
There can also be delays where vehicles turning left from Lindsay Road into Jones Road.”

Mr Duffy’s statement exhibited photographs illustrating the difficulties.

The proposal to locate a high traffic generating use on a site with its sole access into this section of Jones Road is obviously potentially problematic. While the site has previously been approved for a showroom development, the subject proposal would generate some six to seven times the traffic of the approved development.

The appellant proposes to deal with the impact by undertaking improvements to this part of Jones Road. Through the expert meeting process, Mr Quinn (the engineer called by the appellant); Mr Eppell (the engineer called by the respondent); and Mr Beard (the engineer called by DMR) were able to agree that a sketch prepared by Mr Beard represented an appropriate geometry for the future upgrading of this part of Jones Road. That sketch incorporates all of the upgradings which might reasonably be able to be carried out. Mr Quinn contends that the proposal would be acceptable, in terms of its impacts on the external network, if the appellant carried out some of the works shown on that sketch, while setting the development back sufficiently so as to facilitate the balance of the works being done by the Council, at some future time. Mr Beard and Mr Eppell ultimately formed the view that the proposal ought not be approved, even if all of the works shown in the sketch were carried out by the appellant in conjunction with the development.

Each of the traffic engineers carried out their own modelling of the impact of the development at the 10-year design horizon. Those assessments took account of future traffic growth, as well as other future road improvements, in the broader network. The results of the assessments differ, because of different assumptions used by each of the engineers. Mr Beard’s assessment, for example, adopted a different assumption in relation to the proportion of vehicles coming from the south.[38] Other differences were explained in the evidence of Mr Beard. Mr Quinn’s assessment was on the basis of the appellant undertaking part of the works shown on Mr Beard’s sketch. His assessment featured some conservatism, in making no allowance for diverted trips. He was challenged on other matters, including assumed lane lengths. Mr Eppell did make allowance for diverted trips. Both Mr Eppell and Mr Beard carried out their assessments on the basis of the appellant carrying out all of the works in Mr Beard’s sketch.
[38]Mr Beard’s assumption, in this respect, is not to be preferred, since it did not take account of the evidence of the economists as to the likely distribution of patronage of the centre.

Mr Eppell’s assessment is, in my view, to be preferred, but my conclusion does not depend upon a particular set of results from the modelling. The evidence demonstrates that when the performance of the intersections at the design horizon (2018) with the development and the works is compared to the position without either:
(a)        The degree of saturation of the intersections in the AM peak is either unchanged or reduced;
(b)        The theoretical queue distances in the AM peak are either maintained (in one case); extended by a relatively small amount (in two cases); or substantially reduced (in one case). The queue which is substantially reduced, in the AM peak, still extends beyond the next intersection;
(c)        The degree of saturation for each of the intersections would increase in the PM peak, although all intersections would operate within capacity;
(d)        Queue lengths in the PM peak would generally be increased.
The model analyses each intersection separately. It does not take account of the linking of signalised intersections. Currently, the two intersections at Maroochydore Road are linked so as to operate, in effect, as a single system. If the proposal did proceed, then the signals would need to be linked to manage the queues, although this would be expected to adversely affect the performance of the intersections. The effect of that signal linking has not been analysed. Linking would manage queuing in the intersections, but would, in effect, push queuing back into the areas beyond the system. That is why I used the word “theoretical” in describing future queuing through the intersections.

It should also be noted that the above analysis may not be a “worst case”, since, as Mr Beard pointed out, the shopping complex could be expected to have its weekly peak on a Saturday, rather than during the weekday PM peak. All traffic engineers were, however, content to assess performance on the basis of the weekday peaks.

As Mr Quinn acknowledged, the proposed development would, in the PM peak, increase the degree of saturation of the intersections and elongate the queues. He regarded that as acceptable because:
(a)        analysis indicated that the intersections would still operate within capacity;
(b)        the queue lengths would be elongated by only about half a dozen cars or less, which he did not regard as significant;
(c)        the impact on the PM peak should be judged in the context of the relative improvement on the AM peak, which currently has higher volumes.
Mr Beard and Mr Eppell were not so sanguine about the impacts during the PM peak. Neither had modelled the AM peak, which would not be expected to be a critical time for assessing the impact of the proposal, because of the relatively small amount of traffic which the shopping complex would generate at that time. As Mr Eppell pointed out, however, the improvement in terms of queuing during the AM peak applies to one intersection queue only, which remains at a length which would extend back through the previous intersection. Other queues are either maintained or slightly elongated. Further, while the AM peak might currently be experiencing greater traffic, the influence of the proposal (with the works) would change that, such that the PM peak would become the more critical of the two.

Mr Eppell conceded that the results for the PM peak showed “marginal worsening” of queuing, but he believed that the impacts themselves would be more significant. Further, while he agreed that some degree of worsening could sometimes be acceptable, he did not think it acceptable in this instance. In that regard, he was influenced by the fact that the works shown on Mr Beard’s sketch are all the works that could reasonably be done in this part of Jones Road. Constructing those works to minimise the “worsening” caused by the subject development removes the scope for the council to otherwise undertake such works to address the existing problem.

The results only show a marginal worsening because they compare the development with the road works to a scenario which assumes that, absent the development, works would not be undertaken by the council to address the current problem. The development would , in effect, entrench the problem, by compromising the capacity for the council to address an existing problem while not fully mitigating its own impacts. As Mr Eppell explained in his evidence[39]:
“I think what’s significant is that is what you can achieve when you do all the works that you can reasonably do in the system. So with all the works that you can reasonable do, you still can’t ameliorate fully the effect of the development, and given that’s all the works you can reasonably do, what do you do next?...”
[39]T63.
When it was put to him that regular commuters would not notice much difference in the road system as the result of the development, Mr Eppell responded[40]:
“ I think you will notice a difference, on two aspects. One is your comparing with no shopping centre and no external works and with a shopping centre and with all of the reasonable road works achieved. And under that scenario, it’s a worsened situation, it’s worse in its degree of saturation, it’s worse in its queuing. So it is a worse situation and I do believe that with the increased queue ends, what you’ll get is a compounding worsening situation, which is worse than the figures suggests on the face of it. The second part of the answer to that question is that if there were no shopping centre and if the core situation were to prevail in the future, then the road authorities would be expected to do something to the external road system to improve it. With the shopping centre in place, they will not be able to, because it will all be done already.”
[40]T72.
Similarly, Mr Beard said[41]:
“The bottom line is that even if we do all of the works that we can practically do, that problem is going to get a lot more difficult with this development than it would be without it.”
[41]T91.
And:
“…It is a situation where we know we’ve already got traffic problems associated particularly with queue interactions and on his calculations and mine, there is no question that those problems will get significantly worse with this development and even with all of the works that you can reasonably do at the intersection so that makes it very difficult to get it over the line, so to speak.”
I accept, as was submitted for the appellant, that the court does not seek a “counsel of perfection” in traffic matters. The question is what is reasonable or tolerable[42]. Given the particular circumstances which apply to this part of Jones Road however, I do not consider the impact of the proposal to be acceptable, for reasons given by Mr Eppell, whose evidence I prefer, and whose conclusions were also supported by Mr Beard.

(ii) Design issues

[42]See Jedfire Pty Ltd v Logan City Council [1995] QPELR 41 at 43, Petroleum Design & Management Pty Ltd v McKay City Council [2004] QPELR 593 at 595-596, Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 7 at para 16 and Glenvale Properties Pty Ltd v Toowoomba City Council [2008] QPEC 20 at 17.

Issues were also raised with respect to internal design. That was a matter of further evidence at the resumed hearing. No final detailed design of the internal layout has yet been carried out. The evidence of Mr Quinn satisfies me however, that the issues can be dealt with when more detailed design work is carried out. That might involve yet further loss of “at grade” carparks, in favour of more in the basement, but there appears to be sufficient scope to accommodate that. One of the design issues relates to internal queuing from the exit point of the development. The arrangements for storing the queued vehicles were shown conceptually, although it would require some further amendment to accommodate a greater length of two-lane storage. The queues may still extend back to beyond the first theoretical conflict point, but the evidence of Mr Quinn satisfies me that, subject to appropriate prioritisation of movements, that would not be unacceptable.

The internal arrangement has some unresolved (but resolvable) issues, relies significantly on basement carparking and, as Mr Eppell pointed out, does not have the easiest search route for carparking spaces. It might not be the most convenient of shopping centre layouts, from a traffic perspective, but the internal design issues would not have led me to refuse the application.

A further design issue was whether the proposal could be sufficiently set back to facilitate the external road works shown on Mr Beard’s sketch. It is, at this point, impossible to know precisely how far the proposed buildings would have to be set back in order to accommodate the dedication of land for those works. The road works have not yet been designed, other than in a conceptual form. The council, as the road authority, would obviously be involved in the design process.

In the absence of that information, Mr Quinn and Mr Beard have done their best to assess what the likely future requirement might be. The evidence suggests that there may well have to be changes, particularly in the area of the fast-food restaurant, drive-thru and tenancy 10, to accommodate the required setback. Mr Quinn’s evidence is that there is sufficient scope to carry out whatever changes might be necessary in that part of the site. I accept that evidence.

Design uncertainties

It was submitted against the appellant that, at the conclusion of the case, the court still did not have before it a plan of development capable of incorporation into an approval showing all of the potential design changes. It was submitted for the council that, “considerable doubt still attends the final form of the development with respect to matters which, in all of the circumstances, cannot be regarded as immaterial or insignificant.”

Similarly, it was submitted, on behalf of the third and fourth co-respondents, that:
“The changes above are significant and the court could not have reasonable satisfaction that any plan it approved would have a reasonable prospect of development.”
An application for development approval for a material change of use is not ordinarily accompanied by full detailed design. That would, in many instances, be unnecessary for the purpose of deciding the application. As Skoien SC DCJ remarked, in the context of rezoning applications under the now repealed legislation[43]:
“On an application for a rezoning, it would obviously be unreasonable in most cases to require an applicant to supply detailed plans and specifications for the development which is to be constructed if the application should be successful. That would often involve great expense which would be wasted if the application were refused. All the applicant need do is supply conceptual plans which indicate with reasonable accuracy the proposed development together with evidence that it can be developed in accordance with acceptable principles of planning and engineering procedures. If the application should be successful conditions can properly be imposed requiring that technical and engineering works be carried out to the satisfaction of the council’s proper officer. If the matter is sufficiently sensitive, that satisfaction may be required before approval to rezone is given.”
[43]Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor [1996] QPELR 251 at 254.
That is not to say that an applicant who seeks approval for material change of use will never be required to descend to matters of detail. What is required in a given case will depend upon the type of approval which is sought and the matters of relevance in the particular case. In Keristar Pty Ltd v Maroochy Shire Council [2003] QPEC 64, for example, the level of site investigation was insufficient to satisfy the court that a proposed reconfiguration was capable of being achieved.

One area where more detail could have been provided in this case relates to the ability to relocate the stormwater discharge point. That relocation can, no doubt, be achieved. The difficulty is that to be acceptable, it must be achieved without loss of the trees which are marked for retention. Greater design detail would have been required to establish that that could be done. Had the acceptability of the proposal been dependent upon the relocation of the discharge point, then the level of detail provided would have been insufficient. I have already observed that the acceptability of this proposal is not dependant upon that. The issue does however, illustrate the necessity for applicants to focus upon the matters of relevance to a particular case before assuming that all matters of “detailed design” can necessarily be left to a later stage.

The evidence otherwise satisfies me that the proposal, if approved, could be developed and that changes necessitated by, for example, the need to set buildings back from the road and the need to attend to outstanding matters of internal layout are, in context, relatively minor and would not result in any substantially different proposal. Had I otherwise been minded to allow the development application, I would have adjourned the further hearing of the appeal to permit the formulation of conditions of approval, which could have included reference to an amended plan.

Sufficient Grounds

The proposal is not without some merit. It would provide further shopping facilities and some additional convenience for a substantial number of people and would assist in facilitating the entry of Aldi into the area of the former Maroochy Shire. It would do so by providing an integrated shopping complex on a site within an area where there is existing and approved commercial development and where future commercial development, including shops, may be carried out. It would relieve some of the congestion which is experienced in the Village Centre in busier times.

On the other hand:
(a)        The development would result in a new district centre in an unplanned location;
(b)        While the strategic plan contemplates that new district centres may be approved in certain circumstances,
(i)         that is a matter of discretion;
(ii)       a new district centre, of the scale proposed, is not necessary to cater for unsatisfied demand; and
(iii)      the establishment of the proposed district centre is not necessary to allow systematic development of the particular area.
(c)        The relevant area and precinct provisions not only fail to encourage or envisage a district level shopping complex, but envisage development with a different function and expressly provide that this area “is not intended as a primary shopping area.” The proposal is in conflict with that intent.
(d)        The proposal would diminish, to some extent, the vibrancy and vitality of the Village Centre; adversely impact upon existing lower order facilities; and, in particular, jeopardise the continuing function of the Kuluin Central local centre, which is otherwise supported by the provisions for Planning Area No. 8.
(e)        The proposal would generate substantial traffic volumes in an area already characterised by undesirable queuing. Even if all of Mr Beard’s recommended works were undertaken, the proposed development would still lead to some exacerbation of that existing problem during the PM peak, and would adversely affect the capacity of the council, as the road authority, to address the existing problem.
The proposal conflicts with the planning scheme and there are not sufficient grounds to warrant approval notwithstanding the conflict. Even had I concluded that the criteria in paragraph (17) of s 4.4.1 were met, I would still have exercised my discretion against approval. Any need or unsatisfied demand is not strong and other factors favour refusal.

The appeal is dismissed.

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Garyf Pty Ltd v Maroochy Shire Council [2008] QPEC 101

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Keristar Pty Ltd v Maroochy Shire Council [2003] QPEC 64

CITATION:	Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101
PARTIES:	GARYF PTY LTD (Appellant) v MAROOCHY SHIRE COUNCIL (Respondent) and LEONE CHRISTINE NORRIS (Third co-respondent) And NORTH BUDERIM MARKET PTY LTD (Fourth co-respondent) And CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS (Fifth co-respondent)
FILE NO/S:	BD1958 of 2007
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	25 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	6^th, 7^th, 8^th & 9^th May and 14^th & 15^th July 2008, with further written submissions being received until 12 August 2008
JUDGE:	Rackemann DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	Proposed new district centre – compliance / conflict with the planning scheme – whether proposal necessary to cater for an unsatisfied demand – impact on other centres – environmental impact – traffic – lack of detail / uncertainty regarding final form of development – sufficiency of grounds to justify approval
COUNSEL:	M Hinson SC with S Fynes-Clinton for the appellant CL Hughes SC & A Skoien for the respondent L A Manning, solicitor for the third and fourth co-respondents J S Brien for the fifth-co-respondent
SOLICITORS:	Geoffrey Kath solicitor for the appellant Sunshine Coast Regional Council Solicitors for the respondent P & E Law for the third and fourth co-respondents Crown Law for the fifth co-respondent