Kelly Consolidated Pty Ltd v Ipswich City Council & Anor
[2024] QPEC 12
•25 March 2024
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Kelly Consolidated Pty Ltd v Ipswich City Council & Anor [2024] QPEC 12
PARTIES:
KELLY CONSOLIDATED PTY LTD (ACN 050 719 312)
(Appellant)v
IPSWICH CITY COUNCIL
(Respondent)AND
YAMANTO HOLDINGS PTY LTD (ACN 621 651 750)
(Co-Respondent)FILE NO/S:
2165 of 2021
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
25 March 2024
DELIVERED AT:
Brisbane
HEARING DATE:
27 May 2022 (site inspection), 30 and 31 May 2022, and 17 to 21 October 2022 and further submissions received 9 February 2023, 3 March 2023 (but dated 28 February 2023) and 17 May 2023
JUDGE:
Kefford DCJ
ORDER:
I ORDER:
(A) THE APPEAL BE ALLOWED; AND
(B) IPSWICH CITY COUNCIL’S DECISION TO APPROVE THE DEVELOPMENT APPLICATION FOR A MATERIAL CHANGE OF USE – BUSINESS USE (BULKY GOODS SALES, CAFE, FAST FOOD PREMISES, FOOD DELIVERY SERVICE, RESTAURANT, SHOP, SNACK BAR, AND/OR TAKEAWAY FOOD PREMISES) NOTIFIED IN THE DECISION NOTICE DATED 13 JULY 2021 IS SET ASIDE AND REPLACED WITH A DECISION TO REFUSE THAT PART OF THE DEVELOPMENT APPLICATION THAT SOUGHT A DEVELOPMENT PERMIT FOR A MATERIAL CHANGE OF USE.
CATCHWORDS:
PLANNING AND ENVIRONMENT – PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s approval of development application – where Yamanto Holdings Pty Ltd seeks to make a material change of use to establish an integrated retail facility comprising multiple tenancies used for bulky goods sales – where the appellants contend the development is an inappropriate use of the subject land – where the appellants contend that there is no need for the proposed development – whether the proposed development is properly characterised as a shopping centre – whether the proposed development is explicitly supported by the Ipswich Planning Scheme 2006 – whether there is a need for the proposed development – whether the proposed development will have an adverse economic impact on the Yamanto Major Centre – whether the proposed development will support the Yamanto Major Centre – whether the development application should be approved in the exercise of the planning discretion
LEGISLATION:
Planning Act 2016 (Qld), ss 43, 45, 59, 60
Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46, 47
Planning Regulation 2017 (Qld), s 31, sch 24
CASES:
Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied
AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved
Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404, applied
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied
Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52; [2019] QPELR 221, approved
Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, applied
Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39, applied
Family Assets Pty Ltd v Gold Coast City Council & Anor [2008] QPEC 3; [2008] QPELR 448, approved
Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, applied
Gold Coast Carlton Pty Ltd & Anor v Beaudesert Shire Council & Anor [1985] QPLR 343, approved
Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33; [2022] QPELR 705, approved
Harburg Investments Pty Ltd v Brisbane City Council & Anor [2000] QPEC 32; [2000] QPELR 313, approved
Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied
Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, cited
Lizzio v Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, applied
Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, approved
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, applied
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved
Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council [2021] QPEC 77; [2023] QPELR 398, approved
Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, cited
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, applied
SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied
Sonter v Commissioner of Land Tax (NSW) (1976) 7 ATR 30, considered
St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378, applied
SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, cited
Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied
Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied
Wu & Kuo Childcare Pty Ltd v Brisbane City Council & Anor [2022] QPEC 27; [2023] QPELR 1004, approved
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, applied
Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied
COUNSEL:
M Batty and R Yuen for the Appellant
K Buckley for the Respondent
C L Hughes KC, B Rix and J Bowness for the Co-RespondentSOLICITORS:
Connor O’Meara for the Appellant
McCullough Robertson for the Respondent
Mills Oakley for the Co-Respondent
TABLE OF CONTENTS
Introduction
What is the applicable framework for the decision?
What are the issues in dispute?
What are the parameters of the proposed development and its proper characterisation?
What are the general principles that inform the proper characterisation of a use?
What context is provided by the legislative regime and the Planning Scheme?
What is the proper characterisation of the proposed development?
Is the proposed development a land use of the subject land that is explicitly supported by the Planning Scheme?
What assessment benchmarks does Kelly Consolidated Pty Ltd rely on?
What is the relevant context for those assessment benchmarks?
Conclusion about whether the proposed development is explicitly supported
Is there a need for, and an absence of adverse economic impact occasioned by, the proposed development?
What are the general principles that inform and guide an assessment of need?
What is the available evidence?
What assistance is provided by the reports prepared prior to the minor change?
What do the reports prepared after the minor change address?
What is the demand for bulky goods sales uses?
What is the supply of retail facilities to address the demand?
Is the supply of trade showroom floorspace relevant?
Is the new Yamanto Shopping Centre approval limited in the extent to which it can cater to the demand for bulky goods sales?
Is there a demonstrated need for the proposed development?
What is the potential impact of the proposed development?
Conclusion regarding the need for, and economic impact occasioned by, the proposed development
Is the proposed development consistent with the specific outcome for the Urban Areas as a whole in s 4.3.3(1)(a)(iii)?
Is the proposed development consistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(c)?
Is the proposed development consistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(e)?
Is the proposed development consistent with the specific outcome for Sub Area LB6 – Yamanto in s 4.11.4(6)(g)?
What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
Is the proposed development appropriate and well-located in town planning terms?
Will the proposed development result in positive social and economic benefits for the local community?
Is the location of the proposed development consistent with good planning and the reasonable expectations of the community?
Should the development application be approved in the exercise of the planning discretion?
Conclusion
Introduction
At the intersection of Saleyards Road, Hall Street and Warwick Road in the suburb of Yamanto sits a vacant parcel of land comprising 140 lots that has a total area of approximately 18.33 hectares (“the subject land”). Yamanto Holdings Pty Ltd wants to develop part of the subject land for retail uses.
The subject land is located about five kilometres south of the Ipswich central business district and about one kilometre from the Cunningham Highway. The RAAF Amberley Base is located to the west of the subject land and the suburb of Ripley is located to the southeast, on the other side of the Cunningham Highway.
Yamanto includes rural and urban areas and is comprised of land in a mix of zones, including the Low Density Residential Zone, the Local Business and Industry Zone and the Major Centres Zone under the Ipswich Planning Scheme 2006 (“the Planning Scheme”).
The character of Yamanto is reflected in the mix of uses located near the subject land, which include retail, commercial and community uses, along with residential development on the western side of Hall Street.
Directly opposite the subject land, fronting the southern side of Warwick Road, is land that the Planning Scheme designates as the Yamanto Major Centre. It is comprised of:
(a)Yamanto Central, anchored by a Coles Supermarket of 3,920 square metres, a Kmart of 6,600 square metres, and 8,000 square metres of speciality retail, lifestyle and health tenancies;
(b)Yamanto Tavern, which adjoins Yamanto Central to the south and comprises a bar, gaming lounge and bistro; and
(c)Yamanto Village Shopping Centre, which is located at the corner of Warwick Road and the Cunningham Highway. It is anchored by a Woolworths Supermarket and includes Super Amart, Supercheap Auto, McDonalds, Snap Gym and other speciality retailers.
In addition, on 13 October 2022, Ipswich City Council (“the Council”) granted a development permit to Kelly Consolidated Pty Ltd for a further shopping centre in the Yamanto Primary Business Area of the Yamanto Major Centre Zone (“the new Yamanto Shopping Centre approval”). That approval authorised a material change of use for:
“Shopping Centre (Shops and Bulky Goods Sales but limited to premises not less than 300m2 per tenancy used for the display and sale of large bulky goods, or large stocks of similar goods or related goods (in the interests of clarity, and for emphasis, this definition does not extend to, or include, a supermarket, department store, discount department store in the form of discount department stores currently conducted by Target, Kmart and Big W), Restaurant, Medical Centre and Office)”.
A range of other retail showrooms, trade and warehouse activities, and light or service industrial uses are also located along Warwick Road. They include:
(a)KFC and Hungry Jacks, which are located on Warwick Road, opposite the subject land and to the north;
(b)an Ampol Service Station, which is located further to the north and is co-located with a collection of fast food restaurants, including Zarraffas Coffee, Zambrero and Subway; and
(c)Aldi, which is located on the opposite side of Warwick Road to Yamanto Central and Yamanto Village Shopping Centre, and on the opposite side of Hall Street to the subject land.
The subject land is in Sub Area LB6 - Yamanto of the Local Business and Industry Zone. It is located about 100 metres from the Yamanto Major Centre. The Planning Scheme records that land in Sub Area LB6 – Yamanto of the Local Business and Industry Zone is to support the intended business functions of the Yamanto Major Centre.
The subject land is approved to be reconfigured into six lots, being proposed lots 12 to 17, and an access road. Yamanto Holdings Pty Ltd wants to develop about 7.61 hectares of the subject land, being proposed lots 12 and 13, for what it describes as a bulky goods sales complex. To facilitate that goal, it made a development application to the Council.
During the public notification of the development application, Kelly Consolidated Pty Ltd made a submission objecting to the proposed development.
On 13 July 2021, the Council notified Yamanto Holdings Pty Ltd of its decision to approve the development application subject to conditions. It granted a development permit for making a material change of use and a development permit for operational works for advertising devices, being five pylon signs.
This is an appeal by Kelly Consolidated Pty Ltd against the Council’s decision to give Yamanto Holdings Pty Ltd a development permit for material change of use. There is no appeal with respect to that part of the decision that relates to the proposed operational works.[1]
[1]For that reason, subsequent references to the development application and the Council’s decision relate only to that part of the development application and decision that relate to the proposed material change of use.
Kelly Consolidated Pty Ltd contends that there is no need for the proposed development. It also contends that the proposed development does not accord with provisions of the Planning Scheme that relate to the proper functioning and support of the centres, which it says is a fundamental aspect of the proper planning for the Ipswich local government area.
Yamanto Holdings Pty Ltd and the Council dispute these contentions.
Yamanto Holdings Pty Ltd bears the onus of establishing that the appeal should be dismissed.[2] There are two propositions that are fundamental to Yamanto Holdings Pty Ltd’s case for approval. First, the proposed development has the explicit and unconditional support of the Planning Scheme in that it is a use that is contemplated and encouraged on the subject land. Second, there is a need for the proposed development. In addition, Yamanto Holdings Pty Ltd says that an approval is supported by the absence of alleged impacts (other than economic impacts) and the exceptional locational attributes of the subject land that make it eminently suitable for the proposed development.
[2]Planning and Environment Court Act 2016 (Qld) s 45.
The ultimate question for me to decide is whether, in the exercise of the planning discretion, that part of the development application that sought a development permit for material change of use should be approved.
What is the applicable framework for the decision?
The appeal proceeds, generally, by way of hearing anew.[3] The Court assesses the development application under s 45 of the Planning Act 2016 (Qld) as if it were the assessment manager.[4]
[3]Planning and Environment Court Act 2016 s 43, subject to ss 46(2) and (5) of the Planning and Environment Court Act 2016.
[4]Planning and Environment Court Act 2016 s 46(2).
The Court has a broad discretion in determining the appeal. It has power to confirm the decision appealed against, or change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.[5]
[5]Planning and Environment Court Act 2016 s 47. The type of decision that may be made is also governed by s 60 of the Planning Act 2016.
The Court’s broad discretion should be exercised judicially[6] and subject to the limitations in the relevant statutes.[7] The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 provides relevant guidance in that respect.
[6]Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20.
[7]Planning and Environment Court Act 2016 s 47; Planning Act 2016 s 60(3).
The development application required impact assessment. For that reason, the exercise of the discretion with respect to that part of the development application must be based on an assessment that:[8]
(a)must be carried out:
(i)against the assessment benchmarks in the Planning Scheme[9] to the extent that they are relevant;[10]
(ii)having regard to, relevantly:
(A) any development approval for, and any lawful use of, the premises and adjacent premises;
(B) the common material, including properly made submissions about the development application;[11] and
(b)may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise).
[8]Planning Act 2016 ss 45 and 59.
[9]The Planning Scheme is a local categorising instrument: Planning Act 2016 s 43. Version 03/2017 of the Planning Scheme was the categorising instrument for the development in effect when the development application was properly made on 7 August 2020. By the end of the hearing, it was still in force and, as such, no party raised an issue under s 45(8) of the Planning Act 2016.
[10]In the appeal, it is only necessary to carry out an assessment against the assessment benchmarks in the Planning Scheme to the extent that they are put in dispute by the parties.
[11]Planning Regulation 2017 (Qld) s 31 and sch 24.
The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,[12] Abeleda & Anor v Brisbane City Council & Anor,[13] Wilhelm v Logan City Council & Ors[14] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[15] Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors.[16] That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[17]
[12][2020] QCA 253; [2021] QPELR 987.
[13][2020] QCA 257; [2021] QPELR 1003.
[14][2020] QCA 273; [2021] QPELR 1321.
[15][2021] QCA 95; [2022] QPELR 309.
[16][2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].
[17][2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].
What are the issues in dispute?
In accordance with the usual practice of the Court at the time of the hearing,[18] an agreed list of issues was tendered by the parties identifying the focus of their dispute.[19] As is apparent from that document, only a select number of the assessment benchmarks in the Planning Scheme have been put in issue. In addition, each party identifies the relevant matters on which they rely to support their position.
[18]Practice direction 2 of 2020 [25].
[19]Exhibit 9.08.
Having regard to those aspects of the relevant assessment benchmarks placed in issue, and the Agreed Issues in Dispute,[20] the real issues that require determination can be summarised as follows:
[20]Exhibit 9.08.
1.Is the proposed development a land use of the subject land that is explicitly supported by the Planning Scheme?
2.Is there a need for, and an absence of adverse economic impact occasioned by, the proposed development?
3.Is the proposed development consistent with the specific outcome for the Urban Areas as a whole in s 4.3.3(1)(a)(iii)?
4.Is the proposed development consistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(c)?
5.Is the proposed development consistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(e)?
6.Is the proposed development consistent with the specific outcome for Sub Area LB6 – Yamanto in s 4.11.4(6)(g)?
7.What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
8.Is the proposed development appropriate and well-located in town planning terms?
9.Will the proposed development result in positive social and economic benefits for the local community?
10.Is the location of the proposed development consistent with good planning and the reasonable expectations of the community?
11.Should the development application be approved in the exercise of the planning discretion?
The answer to these questions requires an understanding of the development that is proposed. Ordinarily, the characterisation of a proposed use is an uncontroversial matter. This is not such a case. Here, there is a dispute between Yamanto Holdings Pty Ltd and Kelly Consolidated Pty Ltd about the character of the proposed development. The dispute informs their respective positions about:
(a)the extent to which the Planning Scheme contemplates, and encourages, uses of the type proposed; and
(b)whether there is a demonstrated need for the proposed development.
As such, it is instructive to consider the parameters of the proposed use, and its proper characterisation, before addressing the substantive issues in dispute.
What are the parameters of the proposed development and its proper characterisation?
Yamanto Holdings Pty Ltd seeks a development permit for making a material change of use of premises. On the first day of the hearing, I approved an application by Yamanto Holdings Pty Ltd to proceed to hearing based on a minor change to the development application.[21] Yamanto Holdings Pty Ltd describes the use as “Business use (bulky goods sales, café, fast food premises, food delivery service, restaurant, snack bar and/or takeaway food premises”).[22]
[21]The changes are identified in Exhibit 1.35 and 1.34.
[22]Transcript of Proceedings, Kelly Consolidated Pty Ltd v Ipswich City Council & Anor (Planning and Environment Court of Queensland, 2165 of 2021, Kefford DCJ, 30 May 2022) 47.
Kelly Consolidated Pty Ltd contends that the proposed development is properly characterised as a shopping centre under the Planning Scheme, rather than a business use because:
(a)the definition of business use excludes the use of premises for a shopping centre; and
(b)a premises used for bulky goods sales is a shop and, as such, the proposed development complies with the definition of shopping centre.
The Council and Yamanto Holdings Pty Ltd disagree. They say that a premises used for bulky goods sales is not a shop for the purpose of the definition of shopping centre in the Planning Scheme.
Before turning to the relevant provisions of the Planning Scheme, it is helpful to consider the general principles that can be distilled from case law about the proper characterisation of a use.
What are the general principles that inform the proper characterisation of a use?
It has long been recognised in town planning law that there is a close correlation between the relevant planning unit and the characterisation of a use.[23] The identification and delineation of a planning use is a question of fact. It is determined by undertaking an evaluative exercise that calls for consideration of the circumstances of the case, the applicable legislative regime and the planning context.[24]
[23]See, for example, Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38]-[40].
[24]Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 160 and 161; Lizzio v Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, 217; Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404, 409; Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 291 [40]; Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52; [2019] QPELR 221, 227-8 [14].
Undertaking a comparison of the situation that pertains in one case to other cases, or a process of cataloguing the similarities and differences in the circumstances pertaining in each case, is unlikely to assist. The task may be assisted by consideration of general principles about the identification of a planning unit and the characterisation of its use. These can be distilled from earlier cases, provided care is taken to identify any material difference in the legislative regime and planning context. Relevant general principles include:
(a)a planning unit is the entire physical area that is used for a particular purpose, including any part of that area where a use is incidental, or ancillary, to the achievement of that purpose;[25]
(b)where a single unit of occupation contains two or more physically separate and distinct areas that are occupied for substantially different and unrelated purposes, each area that is used for a different main purpose (together with its incidental and ancillary activities) should be considered as a separate planning unit;[26]
(c)where the whole premises is used for two or more purposes, none of which are subservient to the others, it is irrelevant to inquire which of the multiple purposes is dominant;[27]
(d)where premises are used for two or more purposes, one of which is described as the dominant purpose, and the others are described as ancillary to the dominant purpose, the ancillary purpose or purposes take their colour from the dominant purpose;[28]
(e)consideration of an entire unit of occupation might reveal a composite or mixed use in circumstances where the occupier carries on a variety of activities that are not confined within separate and physically distinct areas of land, the component activities fluctuate in their intensity from time to time, and it is not possible to say that one is incidental or ancillary to another;[29]
(f)although considering the intended use of premises by reference to the activities, processes and transactions to be undertaken will be useful in casting light on the purpose of the proposed use, it is inappropriate to determine the relevant purpose by doing no more than identifying activities, processes or transactions and then fitting them to one or more uses as defined in a planning scheme or into the definition that provides the best fit;[30] and
(g)where a planning scheme does not purport to cover every possible use to which land or buildings might be put, such as where it refers to a use for “any other purposes” or innominate uses, a planning authority need not regard a proposed use as necessarily coming within any of the definitions in the planning scheme if such placement is inappropriate in terms of the planning scheme and the definitions. To treat the planning scheme definitions as all-encompassing would render provision for an innominate use otiose.[31]
[25]Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244.
[26]Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244.
[27]Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 161.
[28]Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 160; Cook v Woollongong City Council (1980) 41 LGRA 154, 159.
[29]Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] and [39], citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244 and Fidler v First Secretary of State [2005] 1 P & CR 169, 175.
[30]Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, 381; AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, 11-12 [37], 13 [44]-[49], and 18-9 [72]-[73].
[31]St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378, 392; Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, 381.
With those principles in mind, I now turn to the context provided by the applicable legislative regime and the Planning Scheme.
What context is provided by the legislative regime and the Planning Scheme?
The development application is made under the Planning Act 2016. It defines:
(a)premises as:
(i)a building or other structure; or
(ii)land, regardless of whether there is a building or other structure on the land; and
(b)a use, for premises, to include “an ancillary use of the premises”.
At the time the Planning Scheme was prepared, the Integrated Planning Act 1997 was in force. It defined premises in materially similar terms, but defined a use, in relation to premises, to include “any use incidental to and necessarily associated with the use of the premises”.
With the legislative differences about the extent of a “use” in mind, I turn to the definitions in the Planning Scheme and the context in which they occur. The whole Planning Scheme, including the provisions defining terms, is to be construed using the principles that apply to the construction of statutes. The Planning Scheme is to be read as a whole and in a way that is practical and intended to achieve a balance between the individual outcomes.[32]
[32]AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58]. See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, 381-2 [69]-[71]; SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, 368 [14]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20].
Schedule 1 of the Planning Scheme contains a dictionary that has two divisions. Division 1 of sch 1 is headed “Defined Uses and Use Classes”. A note at the start of div 1 explains:
“(1)The use definitions describe a use for a single purpose such as “Caretaker Residential” or “General Store”.
(2)The use class definitions cover a range of uses having different purposes but broad characteristics in common, for example the “business use” class covers a range of uses for business purposes such as shops, service stations and hotels.”
Division 2 of sch 1 of the Planning Scheme is headed “Administrative Terms”. A note at the start of div 2 explains:
“(1)The Administrative definitions describe terms commonly used throughout the planning scheme that need specific definition to ensure consistent interpretation e.g. “overlay” and “site area”.
(2)To assist in interpretation, some of the terms used in the use classes (e.g. “Bulky Goods Sales” in the “Business Use” class) are also defined in this division. These terms are defined to assist in the administration of the scheme. They do not constitute defined uses or use classes, which are set out in Division 1.
(3)The scheme is a statutory instrument that operates within the overall umbrella of the parent Act, the IPA. It is important for consistent statutory interpretation that the scheme and Act work together. To ensure there is no confusion about the meaning of words, the Act states that if there are inconsistencies between the meaning of a word in a scheme and the meaning of the same word in the Act, the Act meaning prevails. Where an IPA term is listed in the administrative definitions, such as “development”, the scheme deliberately avoids potential conflicts by stating that the term has the same meaning as in the Act.”
Consistent with the description of the difference between uses and use classes in the note at the start of sch 1, div 1 of the Planning Scheme, div 2 defines use and use class as:
““Use” in relation to a use class, means a use for a single purpose that is part of that use class, such as “shop” in a “Business Use” class.
“Use Class” means a group of uses having different purposes but broad characteristics in common, such as a “Business Use” class that includes uses for a shop, restaurant, hotel and the like.”
In sch 1, div 1 of the Planning Scheme, “Business Use” and “Shopping Centre” are defined as:
““Business Use”
(1)“Business Use” means the use of premises for business purposes, including the following—
(a)auction depot;
(b)bulky goods sales;
(c)broadcasting station;
(d)cafe;
(e)cake shop;
(f)farm supply outlet;
(g)fast food premises;
(h)food delivery service;
(i)funeral premises;
(j)garden centre;
(k)hot bread shop;
(l)hotel;
(m)laundromat;
(n)medical centre;
(o)non mechanical car wash
(p)office;
(q)produce/craft market;
(r)professional office;
(s)restaurant;
(t)service station;
(u)shop;
(v)snack bar;
(w)takeaway food premises;
(x)vehicle sales premises; or
(y)veterinary clinic.
(2)The term does not include the use of premises for “Community Use”, “Recreation Use”, “Entertainment Use”, “General Industry”, “General Store”, “Home Based Activity”, “Service Trades Use”, “Shopping Centre”, “Special Industry” or “Temporary Sales Office”.
…
“Shopping Centre”
(1)“Shopping Centre” means the use of premises primarily for shops comprising two or more individual tenancies, and that functions as an integrated complex.
(2)The term includes the use of individual tenancies for “Business Use”.”
(emphasis added)
In div 2 of the Planning Scheme defines “Bulky Good Sales” are defined as:
““Bulky Goods Sales”
(1)“Bulky Goods Sales” means a building having a gross floor area of more than 500 square metres used for the sale, or displaying or offering for sale, by retail of bulky goods which are of such a size, shape or weight as to require—
(a)a large area for handling, storage or display; and
(b)direct vehicular access for the purpose of loading into or onto vehicles.
(2)The term includes the sale of—
(a)floor coverings and tiles;
(b)furniture;
(c)domestic appliances such as washing machines, dishwashers, clothes dryers, refrigerators, hot water systems, air-conditioning systems and the like; or
(d)building and construction materials and fittings with or without hardware.”
Although there is no definition of “shop” in the Planning Scheme, Kelly Consolidated Pty Ltd contends that a premises that meets the definition of “Bulky Goods Sales” falls within the ordinary meaning of shop, being “a building where goods are sold retail.”[33]
[33]Macquarie Dictionary Online, 2023, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd,
The Council, with whom Yamanto Holdings Pty Ltd agrees, contends that, when construing the Planning Scheme, “shop” should not be construed as including a premises used for “Bulky Goods Sales”. The Council advances three reasons for that contention.
First, “Bulky Goods Sales” is separately defined. The Council says that this ensures that it is consistently interpreted across the Planning Scheme and not read as a subset of another use, such as shop. The Council submits that “bulky goods sales”, “cake shop”, “hot bread shop”, “shop” and “Shopping Centre” receive different treatment in the Planning Scheme and, as such, that they are not terms that should be read interchangeably. The Council seeks to demonstrate its point by reference to provisions of the Planning Scheme wherein the Council says:
(a)different levels of assessment are ascribed to “cake shop”, “hot bread shop” and “shop” as compared to “bulky goods sales” and “Shopping Centre”; and
(b)different parking rates apply for “bulky goods sales”, “cake shop”, “hot bread shop”, “shop”, and “Shopping Centre”.
Second, the Council submits that if “shop” were read as including “bulky goods sales”:
(a)there would be internal inconsistencies, where the Planning Scheme has specifically identified “bulky goods sales” as an inconsistent use but has not attributed the same characterisation to a “shop”; and
(b)the definition of “Bulky Goods Sales” would have no work to do.
Third, the Council submits that a development does not fit the definition of a “Shopping Centre” where it is not anchored by a supermarket or large department store and where it does not offer the usual centre-type convenience or comparison retail services.
I do not accept the Council’s submissions. They overlook important context. Each of the references in the Planning Scheme to “bulky goods sales”, “cake shop”, “hot bread shop”, or “shop” are made in a context where they are identified as part of the “Business uses” use class.
Read in context, the provisions to which the Council refers reveal that, when indicating the preferred land uses for various locations and managing the impacts of land uses, in certain locations the Planning Scheme draws a distinction between each of “Business use (bulky goods sales)”, “Business use (cake shop)”, “Business use (hot bread shop)”, and “Business use (shop)”. No such distinction is present in the definition of “Shopping Centre”.[34] The definition of Shopping Centre refers only to “shops”, not “Business use (shops)”.
[34]Kelly Consolidated Pty Ltd addresses each of the Council’s examples in its Supplementary Written Submissions, wherein it applies the generalia specialibus non derogant prinple (i.e., the general term does not detract from the specific) to each of the Council’s examples. The analysis is compelling.
In addition, assuming for the moment that a shopping centre is ordinarily anchored by a supermarket or a large department store and usually offers centre-type convenience or comparison retail services, the absence of those features in the proposed development is not determinative of its characterisation. Those features are not requirements of the definition of Shopping Centre.
The focus of the definition of Shopping Centre is a composite use comprised of two or more individual tenancies that together function as an integrated complex. The use is to be “primarily as shops”, with shops given its ordinary meaning.
Such a construction sits harmoniously with the structure of the definition of Shopping Centre. The definition is structured to remove any doubt that what is identified by the inclusion in the second limb of the definition falls within the scope of the designated meaning in the first limb. As such, if the use of premises is primarily for those uses in the Business Use class that could be ordinarily regarded as a shop (such as bulky goods sales, cake shop, or hot bread shop) and comprises two or more individual tenancies that function as an integrated complex, it falls within the definition of Shopping Centre.
That construction fits comfortably with all the other provisions of the Planning Scheme, which recognise that different planning considerations arise for:
(a)a composite use comprised of two or more individual tenancies that together function as an integrated complex, as compared to
(b)a single lot that contains two or more physically separate and distinct areas that are occupied for substantially different and unrelated purposes, such as a premises used for a “Business use (bulky goods sales)” and a “Business use (hot bread shop)”.
With that context in mind, I now turn to consider the facts and circumstances of this case.
What is the proper characterisation of the proposed development?
As I have already mentioned, the subject land is a vacant parcel of land comprising 140 lots that has a total area of approximately 18.33 hectares. It is approved to be reconfigured into six lots. As is apparent from the plans,[35] the material change of use only relates to part of the subject land, being proposed lots 12 and 13 and the access road. Proposed lots 12 and 13 have an area of approximately 7.61 hectares. They are oriented to front Warwick Road.
[35]See Exhibit 1.34 pp 76 – 85. These also appear in Exhibit 9.02 pp 6 – 15.
The plans show that the proposed development involves two buildings, each with associated car parking.
The larger of the two buildings is on proposed lot 12. It has an area of 14,061 square metres. It contains:
(a)10 tenancies that are described as “bulky good sales” with:
(i)four tenancies of 700 square metres;
(ii)two tenancies of 1,100 square metres;
(iii)two tenancies of 1,352 square metres;
(iv)two tenancies of 3,000 square metres;
(b)two tenancies of 88 square metres that are to be used for “café, fast food premises, food delivery service, restaurant, snack bar or takeaway food premises”; and
(c)181 square metres for the centre management office and amenities.
Proposed lot 12 also contains a single, large carparking area at the front of the building, accommodating 385 car parking spaces and 18 bicycle spaces. There are four pylon advertising signs. There are two loading docks – one at each end of the rear of the building (away from the carpark) – and a service road that provides access to them.
The smaller of the two buildings is on proposed lot 13, which is north of proposed lot 12. The building has an area of 4,800 square metres. It contains five tenancies that are described as “bulky good sales”. One of the tenancies is 800 square metres in area and the other four are each 1,000 square metres. Proposed lot 13 also contains a car parking area in front of the building, accommodating 133 car parking spaces and 12 bicycle spaces, and one pylon sign. There is a service road that runs behind the building.
Access to proposed lots 12 and 13 will be via an internal road that includes a roundabout. That internal road is to be constructed with access to Warwick Road. It connects Warwick Road to Salesyard Road.
Yamanto Holdings Pty Ltd describes the use as “Business use (bulky goods sales, café, fast food premises, food delivery service, restaurant, snack bar and/or takeaway food premises”).[36] It says that the proposed development is one that presents as an integrated facility with a total retail gross floor area of 18,861 square metres, inclusive of the centre management office and the two small tenancies.[37] Yamanto Holdings Pty Ltd proposes to use those tenancies marked “bulky goods sales” for uses that accord with the definition of bulky good sales in the Planning Scheme.[38]
[36]Transcript of Proceedings, Kelly Consolidated Pty Ltd v Ipswich City Council & Anor (Planning and Environment Court of Queensland, 2165 of 2021, Kefford DCJ, 30 May 2022) 47.
[37]Written Submissions on behalf of the Co-respondent p 7 [18].
[38]Written Submissions on behalf of the Co-respondent p 43 [131].
Consideration of the combination of activities, processes and transactions to be undertaken on proposed lots 12 and 13 is useful in casting light on the purpose of the proposed use. However, it does not follow that it is necessary to fit the proposed development into one or more uses as defined in the Planning Scheme or into the definition that provides the best fit.[39] The Planning Scheme does not purport to cover every possible use to which land or buildings might be put. It provides for uses that are “other (not defined)”. To treat the Planning Scheme definitions as all-encompassing would render those provisions that contemplate an undefined use otiose.
[39]Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, 381; AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, 11-12 [37], 13 [44]-[49], and 18-9 [72]-[73].
Here, the use that is to be assessed is a use with those parameters identified in paragraphs [53] to [59] above. Although I consider that the proposed development may fit the definition of Shopping Centre, it does not follow that the proposed development is properly so characterised. To characterise the use in that manner would ignore important characteristics of the proposed development, such as the intention to limit the flexibility of the type of shop that can be conducted in the identified tenancies. The proposed development seeks the use of premises comprising two or more individual tenancies that functions as an integrated complex where all except two of the tenancies must be used only for the type of shop that accords with the “bulky goods sales” definition. This is the use that I am to assess.
For completeness, it is unnecessary to ascribe a definitional label from the Planning Scheme to the proposed development and it would be inappropriate to do so in this case. This is because, choosing a definition from the Planning Scheme would not adequately reflect the characteristics of the use that is proposed here.
Is the proposed development a land use of the subject land that is explicitly supported by the Planning Scheme?
As I have already mentioned, one of the fundamental propositions that underpins Yamanto Holdings Pty Ltd’s case in support of approval is that the proposed development is explicitly supported by the Planning Scheme. The Council agrees. Kelly Consolidated Pty Ltd does not.
Kelly Consolidated Pty Ltd contends that the proposed development:
(a)constitutes an “out of centre” development;
(b)would compromise the viability of higher order centres including the Ipswich Homebase at West Ipswich, the Booval Homemaker Centre, the Booval Fair Shopping Centre and the Yamanto Major Centre;
(c)would compromise, and potentially jeopardise, the function of the Yamanto Major Centre;
(d)does not support the Yamanto Major Centre; and
(e)does not cater to the needs of just the local community.
For those reasons, Kelly Consolidated Pty Ltd alleges that the proposed development is inconsistent with several core features of the Planning Scheme. It says that the proposed development is inconsistent with:
(a)the specific outcome for the Urban Areas as a whole in s 4.3.3(1)(a)(iii);
(b)the overall outcomes for the Local Business and Industry Zone in ss 4.11.2(2)(c) and (e); and
(c)the specific outcome for Sub Area LB6 – Yamanto in s 4.11.4(6)(g).
It is uncontentious that the provisions to which Kelly Consolidated Pty Ltd refers are relevant assessment benchmarks. This is unsurprising given:
(a)the subject land is in the Council’s local government area and its lawful use is regulated by, amongst other things, the Planning Scheme;
(b)the Planning Scheme provides a framework for managing development in a way that identifies:
(i)those forms of development that require a development permit to lawfully proceed;
(ii)the outcomes sought to be achieved in the Council’s local government area as the context for assessing development;[40]
[40]Planning Scheme s 1.1: Exhibit 2.01 p 10.
(c)the framework is provided by dividing:
(i)the local government area into localities, which are identified geographical areas within the Planning Scheme area;
(ii)each locality into zones, which provide the primary organisational layer in the Planning Scheme and are based on broad land use allocations;
(iii)some of the zones into sub areas that have certain features, such as those related to uses or the physical character of the area, and which may affect the application of assessment categories and assessment criteria;[41]
[41]Planning Scheme ss 1.11, 1.12, 1.13 and 1.15: Exhibit 2.01 pp 18-29. Overlays provide the secondary organisational layer in the Planning Scheme and are based on special attributes of land that need to be protected or that may constrain development. The overlays are not relevant to the issues in this appeal.
(d)under the Planning Scheme, the subject land is mapped as part of:
(i)the Urban Areas locality on Strategic framework Figure 1-1;
(ii)the Local Business and Industry Zone on the Zoning Map;
(iii)Sub Area LB6 – Yamanto on the Zoning Map;[42]
[42]Exhibit 2.01 pp 1-2.
(e)the assessment tables identify development that is assessable (and requires a development permit to proceed) and the relevant level of assessment;[43]
[43]Planning Scheme s 1.16: Exhibit 2.01 p 29.
(f)the proper characterisation of the proposed development does not change the level of assessment in that impact assessment is required for the making of a material change of use in the Local Business and Industry Zone for:
(i)Business Use if it is bulky goods sales;
(ii)Shopping Centre;
(iii)other uses that are not defined;[44]
(g)the relevant assessment benchmarks against which development must be assessed are identified in column 3 of Table 4.11.1; and
(h)the proper characterisation of the proposed development does not change the need to assess the proposed development against the Urban Areas Code, including the specific outcomes in s 4.3.3 and div 11. These are identified as relevant assessment benchmarks for a material change of use for:
(i)Business Use if it is bulky goods sales;
(ii)Shopping Centre; and
(iii)other uses that are not defined.[45]
[44]Planning Scheme ss 1.16 and 2.2(5) Table 4.11.1: Exhibit 2.01 pp 29, 30, 32, 103, 104 and 107.
[45]Planning Scheme s 4.2.2 and Table 4.11.1: Exhibit 2.01 pp 39, 102, 103, 104 and 107. A footnote clarifies that the identification of relevant assessment criteria in column 3 is not intended to detract from the need to have regard to the whole Planning Scheme.
Development complies with the Urban Areas Code if it is consistent with the specific outcomes for the Urban Areas in s 4.3.3 and the specific outcomes for the applicable zone, here the Local Business and Industry Zone in div 11.[46]
[46]Planning Scheme s 4.3.1: Exhibit 2.01 p 39.
Yamanto Holdings Pty Ltd disputes the alleged non-compliances with the Planning Scheme. It says that the provisions of the Planning Scheme to which Kelly Consolidated Pty Ltd refers demonstrate that the proposed development has the explicit support of the Planning Scheme.
In considering the respective cases, it is useful to first identify those assessment benchmarks relied on by Kelly Consolidated Pty Ltd to allege that the proposed development is not an appropriate land use.
What assessment benchmarks does Kelly Consolidated Pty Ltd rely on?
The first assessment benchmark relied on by Kelly Consolidated Pty Ltd is the specific outcome for the Urban Areas as a whole in s 4.3.3(1)(a)(iii). It is part of a specific outcome about centres that states:
“(1) Specific Outcomes
(a)A network of centres is established which—
(i) supports the development of the Ipswich City Centre as a Key Centre for the Western Sub Region of South East Queensland;
(ii) supports and provides for Major Centres at Booval, Brassall, Goodna, Redbank Plains, Redbank Plaza, Ripley, Rosewood, Springfield Town Centre (refer Part 14), Yamanto and Walloon, to service the main convenience and comparison shopping needs of the City’s residents;
(iii) supports and provides for the distribution of neighbourhood centres and local shopping areas, which mainly cater for convenience shopping and local services, across the City and generally within the locations depicted on Map 3 in Schedule 7.”
(emphasis reflects the alleged non-compliance)
The next two assessment benchmarks that are relied on are overall outcomes for the Local Business and Industry Zone about land use mix, namely those in ss 4.11.2(2)(c) and (e). The overall outcomes are the purpose of the Local Business and Industry Zone. They state:
“(2) The overall outcomes sought for the Local Business and Industry Zone are the following—
Land Use Mix
(a)Uses and works within the Local Business and Industry Zone support the Business and Industry Strategy contained in the Strategic Framework including—
(i) providing local employment opportunities as a means to ensure that there is a high level of employment self containment across the City;
(ii) ensuring that there is a high correlation between job opportunities and workforce skills and qualifications;
(iii) improving the skills base of the City by ensuring that there are employment opportunities to match or meet skilled or qualified personnel;
(iv) improving the diversification of the economic base of the City by promoting the City’s economic strengths and potential;
(v) increasing value added production; and
(vi) improving the City’s net trade account.
(b)A mix of compatible business and industry activities, is established, including commercial, service and trade activities, and appropriate low impact manufacturing activities, that support and are within close proximity to Major or Neighbourhood Centres.
(c)Uses and works do not compromise or jeopardise the intended retail and service functions of the City Centre and designated Major or Neighbourhood Centres.
(d)New uses and works are established on fully serviced land.
(e)Uses and works cater to the needs of the local community.”
(emphasis reflects the alleged non-compliance)
The final assessment benchmark that is relied on by Kelly Consolidated Pty Ltd is the specific outcome about the business mix for Sub Area LB6 – Yamanto in s 4.11.4(6)(g). It states:
“The Sub Area supports the intended business functions of the Yamanto Major Centre by providing for—
(i)bulky goods retailing and retail warehouses;
(ii)commercial uses which directly service the surrounding local population;
(iii)food and beverage industries;
(iv)general industries;
(v)outdoor sales and storage yards;
(vi)plant nurseries, garden centres and landscape supplies;
(vii)service/trades uses;
(viii)sport, recreation and entertainment uses (excluding cinemas);
(ix)transport depots;
(x)vehicle sales premises and automotive parts sales, fitting, servicing and repairs; and
(xi)warehousing and distribution activities.”
(emphasis reflects the alleged non-compliance)
In resisting the alleged inconsistencies with these assessment benchmarks, and advancing its case that the Planning Scheme explicitly supports the proposed development, Yamanto Holdings Pty Ltd urges consideration of those provisions in conjunction with:
(a)the Strategic Framework;
(b)the desired environmental outcomes;
(c)overall outcomes and specific outcomes for the Urban Areas as a whole; and
(d)overall outcomes and specific outcomes for the Local Business and Industry Zone.
Likewise, the Council submits that additional provisions of the Planning Scheme provide context that clarifies the relevant land use strategy. I agree.
What is the relevant context for those assessment benchmarks?
Given the position of the parties in this case, it is important to understand the intended function of, and relationship between, areas that are zoned as part of a centre and land that is in a business and industry zone.
At a strategic level, the Planning Scheme indicates that commercial uses, which include retail uses, are to be on land designated as a centre in the existing urban areas and urban growth corridors, as shown on Map 3 in sch 7. They are to be located to achieve diversity in commercial and community facilities, commerce and trade type development and either or both of low impact business and industry uses. They are also to be located and designed to be compatible with the preferred function and population catchment of the centre.[47]
[47]Planning Scheme s 1.6(11): Exhibit 2.01 pp 11-2.
The overarching centre strategy is to direct the focus of commercial activity to the development of the Ipswich local government area as a “City of Centres”. In that “City of Centres”, Ipswich City Centre is to function as the Key Regional Centre and Springfield Town Centre is to function as a “Gateway CBD”. There is also to be a network of other major centres (including major future urban centres), neighbourhood centres and local shopping/commercial areas as shown on Map 3 in sch 7.[48]
[48]Further guidance on what the network of centres is to provide is outlined in the overall outcome in s 4.3.2(2)(t) of the Planning Scheme.
In general terms, land in the Major Centres Zone of the Urban Areas is intended to “service the main convenience and comparison shopping needs of the City’s residents”.[49] That land may be divided into Primary Business Areas and Secondary Business Areas.
[49]Planning Scheme ss 4.3.3(1)(a), 4.9.2(2)(a) and (b): Exhibit 2.01 pp 41 and 49.
The function of the Primary Business Areas is to provide for more intensive development within compact, central locations. Development in the Primary Business Area is to generally function as integrated shopping facilities, providing convenience and comparison shopping, supplemented by special retail, professional offices, eateries, some entertainment uses and residential uses.
The function of the Secondary Business Areas is to provide for less intensive development in peripheral areas surrounding the Primary Business Areas. Those areas are to include “traditional” commercial and retail strip shopping, ground floor retailing and other active shop-front uses. They may include “‘stand alone’; drive to, ‘destination’ retailers, such as hardware stores and video shops, who prefer peripheral locations and often larger sites”. Collectively, the Primary Business Areas and the Secondary Business Areas of the Major Centres Zone in the Urban Areas are planned to provide an extensive range of retail services.[50]
[50]Those services are described as including convenience shopping, and comparison shopping, specialty retail, “traditional” commercial and retail strip shopping, “‘stand alone’; drive to, ‘destination’ retailers, such as hardware stores and video shops, who prefer peripheral locations and often larger sites”, land extensive retailers, specialised retailing, “less intensive retail and commercial uses including showrooms, video outlets, fast foods, hardware and bulky goods retailers”, “higher order comparison shopping specialty stores”, “traditional retail services targeting convenience to district level customer markets”, and “traditional retail services targeting convenience to neighbourhood level customer markets”: Planning Scheme ss 4.3.3(1)(a), 4.9.2(2)(a), (b) and (h), 4.9.4(1)(e) and (f), (2)(e), (3)(e) and (f), (4)(h), (j), (m), (n), (p), and (q), (5)(d) and (h), (6)(e) and (i), and (7)(e), 4.9.5(1) and (2): Exhibit 2.01 pp 41, 49, 50, 56, 57, 58, 59, 68, 69, 70, 71, 72, 73, 74, 75, and 76.
The Yamanto Secondary Business Area in the Major Centre Zone is planned to provide for less intensive, retail and commercial uses including showrooms and bulky goods retailers.[51]
[51]Planning Scheme s 4.94(3)(f): Exhibit 2.01 p 59.
Major Centres may operate in conjunction with nearby service trades, and business and industry areas.[52]
[52]Planning Scheme s 4.9.2(2)(d): Exhibit 2.01 p 49.
On Map 3 in sch 7, the subject land is mapped “Local Business & Industry Areas”. It is not mapped as a centre. By way of contrast, the land on the opposite side of Warwick Road that is in the Major Centre Zone (i.e., the land that contains Yamanto Village Shopping Centre, Yamanto Tavern and Yamanto Central) is mapped as “Major Suburban Centres – Existing”. The mapping shows a “Local Neighbourhood Centre – Existing” at the intersection of Warwick Road and Ash Street.
Business and industry uses are to provide a diverse range of activities. They are also to take advantage of:
“the economic potential available, the comparative advantages and competitive strengths for the preferred uses nominated for each Sub Area in the relevant zone.”[53]
[53]Planning Scheme s 1.6(10)(d): Exhibit 2.01 p 11.
Business and industry uses are to be in the business and industry areas in the existing urban areas and urban growth corridors as shown on Map 3 in sch 7. The business and industry uses are to be located to achieve a diversity of enterprise and employment nodes, including local business and industry nodes and regionally significant business and industry nodes or clusters as shown on Map 3 in sch 7.[54]
[54]Planning Scheme s 1.6(10)(a) and (b): Exhibit 2.01 p 11. As is made clear by s 1.6(10)(c) of the Planning Scheme, business and industry uses are to be capable of being economically serviced with the appropriate level of infrastructure. There is no dispute that the subject land is suitable in that sense. Although the Strategic Framework does not have a role in development assessment and does not confer land use rights, it summarises the overall effect of the balance on the Planning Scheme on the nature and location of development in the local government area: Planning Scheme s 1.5: Exhibit 2.01 p 10. The overall outcome in s 4.3.2(2)(t) of the Planning Scheme confirms that a range of business and industrial uses and other employment opportunities are planned to be provided, including local, mixed business and services trade areas and regionally significant business and industry lands.
The Planning Scheme is not concerned with preventing competition between developers or traders or ensuring an absence of any prejudice to individual commercial operators located in the Major Centre Zone. Rather, it seeks to ensure that uses do not compromise or jeopardise the intended retail and service functions of the Yamanto Major Centre.
Yamanto Holdings Pty Ltd submits that an expectation that prejudice to existing operators will be avoided is only reasonable insofar as that prejudice compromises or jeopardises the planned functions of the centre within which the operator is located. It says that the evidence before the Court does not establish such prejudice.
In so framing the issue, Yamanto Holdings Pty Ltd seeks to reverse the onus. It is for Yamanto Holdings Pty Ltd to establish that the proposed development will not compromise or jeopardise the intended retail and service functions of the Yamanto Major Centre. It has not done so.
Having regard to all my findings above, Yamanto Holdings Pty Ltd has not satisfied me, to the requisite standard, that the proposed development is consistent with good planning and the reasonable expectations of the community.
Should the development application be approved in the exercise of the planning discretion?
The appropriate approach to the exercise of the planning discretion is explained in paragraphs [17] to [21] above.
Yamanto Holdings Pty Ltd’s case in support of approval is founded on two propositions. Each is fundamental to Yamanto Holdings Pty Ltd’s case for approval. The first is that the proposed development has the explicit and unconditional support of the Planning Scheme in that it is a use that is contemplated and encouraged on the subject land. The second is that there is a demonstrated need for the proposed development.
Against that backdrop, the real issue in this case centres on whether it is necessary, or appropriate, to approve the proposed development to address the presently unmet demand (as opposed to need) for bulky goods sales. The answer to that issue requires the Court to balance numerous considerations including:
(a)the extent of support provided by the Planning Scheme, including by reference to whether the scale of bulky goods retailing to be incorporated in the proposed development is explicitly supported by the Planning Scheme;
(b)the prevailing realities in terms of whether other development in the area has advanced, or will advance, in accordance with the Planning Scheme to meet the demand;
(c)the likelihood that the proposed development could proceed without jeopardising or compromising the Yamanto Major Centre having regard to the new Yamanto Shopping centre approval, which is development that is approved to meet the demand in a manner anticipated in the Planning Scheme; and
(d)other relevant matters that support approval of the proposed development.[108]
[108]The relevance of such matters was recognised by this Court in Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, 459 [56].
Here, Yamanto Holdings Pty Ltd has not satisfied me to the requisite standard of either of its fundamental propositions.
Yamanto Holdings Pty Ltd has not persuaded me that the proposed development:
(a)is explicitly supported by the Planning Scheme given the scale of bulky goods retailing that is proposed to be incorporated;
(b)would not compromise or jeopardise the intended retail and service functions of the Yamanto Major Centre; and
(c)would support the intended business functions of the Yamanto Major Centre.
As I have already identified, there is a planning policy that seeks bulky goods retailing on the subject land provided it will support the intended business function of the Yamanto Major Centre. There is no suggestion that this policy is unsoundly based or overtaken by events. It is entitled to be given its full force and effect.
This is a compelling reason to allow the appeal and refuse the development application.
Yamanto Holdings Pty Ltd has also not satisfied me, to the requisite standard, that there is a demonstrated need for the proposed development.
In the circumstances, I am not persuaded that a combination of partial compliance with the Planning Scheme and the matters supportive of approval provide a sound town planning basis to approve the proposed development.
Conclusion
Yamanto Holdings Pty Ltd has not discharged its onus. The Council’s decision to approve the development application for a material change of use – Business Use (bulky goods sales, cafe, fast food premises, food delivery service, restaurant, shop, snack bar, and/or takeaway food premises) notified in the decision notice dated 13 July 2021 is set aside and replaced with a decision to refuse that part of the development application that sought a development permit for a material change of use.
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