Koerner & Ors v Maroochy Shire Council & Ors

[2003] QPEC 54

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Koerner & Ors  v Maroochy Shire Counci, Barnes & Ors  [2003] QPEC 054

PARTIES:

RJ KOERNER

PITHURST PTY LTD

SOUTH PINE INDUSTRIES PTY LTD

Appellants

v

THE COUNCIL OF THE SHIRE OF MAROOCHY

Respondent

and

JT BARNES

LJ BARNES

First Co-respondents

and

STATE OF QUEENSLAND       

Second Co-respondents

FILE NO/S:

Appeals Nos. 59/2002, 60 & 61/2002, 9/2003

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeals

ORIGINATING COURT:

Maroochydore Planning and Environment Court

DELIVERED ON:

12 September 2003

DELIVERED AT:

Southport

HEARING DATES:

14, 15, 16, 17 & 18 July 2003

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Appeals dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – CONFLICT WITH PLANNING SCHEME – application for supermarket, showrooms and funeral parlour – whether conflict with planning scheme – whether sufficient planning grounds to approve development despite conflict.

PLANNING AND ENVIRONMENT – PLANNING SCHEMES – CONSTRUCTION OF PLANNING SCHEMES – weight to be given to Desired Environmental Outcomes

Integrated Planning Act 1997

Maroochy Plan 2000

Acts Interpretation Act (1954) s 14A

Cases considered:

Brisbane City Council v Cunningham (2001) 115 LGERA 326
Bunnings v Redland Shire Council (2003) QPEC 024
Grosser v Gold Coast City Council (2001) 117 LGERA 153
Kentucky Fried Chicken v Gantidis (1979 40 LGRA 132 Liquorland (Australia) Pty Ltd v Gold Coast City Council (2002) 121 LGERA 197
Luke v Maroochy Shire Council & Watpac Developments [2003] QPEC 005
North Sydney Council v Ligon302 Pty Ltd (1996) 185 CLR 470

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485

Stradbroke Island Management Organisation v Redland Shire Council (2002) 121 LGERA 390
Weightman v Gold Coast City Council (2002) 121 LGERA 161
Westfield Limited v Stockland (Constructions) Pty Ltd (2002) QPEC 032

COUNSEL:

Mr J Haydon for the appellants in appeals nos. 60 & 61 of 2002, and 9 of 2003. 
Mr C Hughes SC for Council of the Shire of Maroochy in all appeals.
Mr M D Hinson SC for the first co-respondents in all appeals.
Mr E Morzone for the second co-respondent in all appeals.

SOLICITORS:

Mullins and Mullins for the appellant in appeal no. 60 & 61 of 2002.
Stubbs Barbeler Grant for the appellant in appeal no. 9 of 2003.
Maroochy Shire Council Solicitor for the first respondent in all appeals.
P&E Law for the first co-respondents in all appeals.
Crown Solicitor for the second co-respondent in all appeals.

APPEARANCE BY LAY APPELLANT:

Dr Koerner, appellant in person in appeal No 59 of 2002.

1. This proceeding involved four adverse submitter appeals, which were heard together, against Council’s approval of two development applications concerning land at the west of Coolum on the Sunshine Coast.  Dr Koerner, Pithurst Pty Ltd and South Pine Industries Pty Ltd appealed against the decision to permit the development of a commercial complex containing showrooms, a service station, convenience restaurant, garden centre and supermarket.  Pithurst Pty Ltd alone appealed a separate decision to approve the construction of a funeral parlour and crematorium.  Council approved each application by way of a Negotiated Decision Notice under the Integrated Planning Act 1997 (IPA) in November 2002[1].

   [1]These Notices are Attachment B to Mr Schomburgk’s Reports, Exhibits 11 and 12.

1. More appeals were originally instituted by other submitters but only these four remain on foot.  In particular, appeals by Watpac (the developer of another supermarket site nearby in west Coolum, to the south) and Forrester Kurts (the developer of Peregian Park, a new residential development a few kilometres to the north) have been withdrawn.  At the commencement of the hearing the second co-respondent, the State of Queensland, was shown to have no ongoing interest in the matter and its representative was allowed to withdraw.  The remaining co-respondents, Mr and Mrs Barnes, bear the onus of establishing the appeals should be dismissed:  IPA, s 4.1.50(2).

Coolum Beach

1. Coolum is a seaside town with, presently, a permanent population of about 13,500, increasing significantly during holiday periods.  On its eastern side the town faces the Pacific Ocean, and its western boundary is effectively defined by the Sunshine motorway.  This appeal has as its central issue a matter which has previously excited the interest of the citizens of the town, the Council and this Court on several occasions:  the number, and location of supermarkets in the environs of Coolum.  A history of previous attempts to obtain approval for a supermarket in Coolum proper is set out in the judgment of this Court in Luke v Maroochy Shire Council & Watpac Developments [2003] QPEC 005 (“Watpac”)[2].  That case involved an unsuccessful appeal against Council’s decision to approve the Watpac supermarket shopping complex on South Coolum Road about 800 m from this site.

[2]At paras [20]-[24].

The Site

1. The subject land is located immediately beside the Sunshine Motorway and to the east of it.  The motorway forms the western boundary of the parcel, the Yandina-Coolum Road the southern, and Barnes (or, variously, “Barns”) Lane defines the eastern border.  The constructed part of Barnes Lane terminates adjacent to the northern boundary of the site.  Coolum State School is across Barnes Lane, to the south east, and Noosa National Park lies to the north east.  Land to the west of the motorway is used for predominantly agricultural, but some industrial purposes.  The urban area of Coolum commences to the east of South Coolum Road and Sturmers Creek.

1. There are two dwellings on the site at the present time, and a local produce store and various outbuildings.  The land is low lying and flat and any future development will require filling to achieve flood and stormwater immunity.  The parcel has for many years been known locally as the “Llama Farm”, reflecting a former use.

1. The land contains a total of 6.987 hectares and constitutes the whole of Precinct 7 in Planning Area 11 in Maroochy Plan 2000.  The northern portion of the land, containing 6,420m² is planned for the funeral parlour, and crematorium.  The balance, of 6.345ha, is the site of the application and approval for the commercial complex.

1. Precinct 7 is described in the Plan as Coolum West Gateway (Master Planned Community).  The intent for this Precinct is expressed in the following terms:

…a Local Area Structure Plan, overall master plan or other Development Plan for this precinct is required if the precinct were to be redeveloped.  Showrooms would be an appropriate use for this precinct, provided…

-     buildings set within well-landscaped grounds;

-     carparking located behind the buildings and not visible from the Sunshine Motorway and the Coolum Yandina Road;

-     a range of goods and services which does not compete with … the Village Centre Precinct.  Items for sale should be restricted to larger scale items such as bulky goods.

Provisions should be made for an entry statement which introduces the motorist to the Coolum Beach township.

Any redevelopment needs to address flooding and drainage problems and have regard to the sensitive surrounding land uses. 

In this precinct, Council would also support the establishment of a “Government facility” node housing ambulance, police, fire and other necessary functions serving Coolum Beach and beyond.

The Proposal

1. The proposed commercial/retail centre is shown to contain the following facilities:

(a)        service station comprising eight (8) multi pump bowsers and a convenience store having a gross floor area (GFA) of 300m²;

(b)        fast food outlet (convenience restaurant) having a GFA of 300m²;

(c)        full-line supermarket having a GFA of 2,750m²;

(d)        garden centre with a GFA of 750m² (together with a further 1,250m² of growing areas under shade cloth);

(e)        showrooms, having a GFA of 5,100m² intended for various tenancies including a hardware store opposite the garden centre.  Other possible tenancies include a whitegoods showroom outlet; and

(f)        car parking and manoeuvring areas and landscaping.

1. The proposed funeral parlour and crematorium encompasses a building of 350m², intended to include a reception area, administrative offices, casket display room, chapel; and, the crematorium, mortuary and associated facilities.

1. Not all of the larger portion is intended for development now.  Proposed possible future uses for parts of it (described as a Sports Centre and further showrooms containing, in total, 2,800m²) are not the subject of either application, although they are still shown on some of the documents. 

Issues

1. As identified in the Notices of Appeal, by the evidence over a five day hearing, and in the written and oral submissions of Counsel and Dr Koerner, the issues devolved to:

(a)  Need;

(b)  Conflict with the Planning Scheme including Desired Environmental Outcomes, and the Strategic Plan;

(c)  Other Town Planning issues (that the application was “piecemeal”; and, traffic and access issues);

(d)  Amenity;

(e)  The appropriateness of the funeral parlour on the site.

As the case unfolded these issues were considered, principally, in the context of the proposed supermarket development.  Mr Haydon of Counsel for the appellants put it in these terms, “… the bottom line is, if the supermarket wasn’t there, we wouldn’t be here”[3]

[3]T 33/45; T 34/20-35.

Town Planning Need

1. The economics experts, Messrs Shimmin and Coghlin (called by one of the appellants, and the co-respondents respectively) were in agreement with an unqualified proposition which appears in Exhibit 18 (their ‘Statement of Agreements and Disagreements’):

…there is a need for another supermarket in Coolum Beach in addition to the existing IGA supermarket and the proposed supermarket on the Watpac site.

1. At the present time, Coolum has only one operative supermarket:  the IGA store, referred to in the passage from Exhibit 18 recited above, which is quite small (800m²)  It is located in Birtwill Street in the Village Centre in what is, generally, the north east part of the town on the ocean side near the David Low Way.  The Watpac supermarket will be some considerable distance away on the west side of the town on South Coolum Road, but it will not be constructed and operative for some time. 

1. In the course of the hearing of this matter Council approved an application from one of the appellants, Pithurst Pty Ltd, for a supermarket in the Village Centre, but it is not known if that approval will be, itself, the subject of any appeals.  As approved, it will replace the existing small IGA supermarket with one with a GFA of 2,550m².

1. The economic experts also agreed however that, even if the Pithurst proposal went ahead, when both it and the Watpac supermarket are trading there will remain a deficiency in supermarket floor space for the anticipated population of Coolum, by the year 2007, of 1,841m² [4].

   [4]Ex 9, p 7; Ex 13 p 28; and, T 127-128.

1. Even if the most conservative view of the evidence of the economic experts is taken, by the probable opening date of a third supermarket there would be, then, a need for additional supermarket space.  As those experts also said supermarket developments are best described as “lumpy”, a word used to mean they cannot usually be provided incrementally, as the population grows; and, in any event, proper planning would dictate that they ought to be provided as the population is growing, rather than continuing the present, inappropriate situation in which residents are required to travel some considerable distance to reach appropriate facilities, until population numbers have settled or optimums are achieved.  In Watpac the need for a supermarket in Coolum was described as “overwhelming”, and the situation remains unchanged[5].  I am satisfied the evidence on the issue strongly favours the co-respondents.

   [5]Watpac (supra) at paras [25]-[37].

1. In the face of this strong evidence of need the appellants contended, nevertheless, that the proposed supermarket on the Barnes’ site would compromise or delay the development of the Pithurst supermarket, or another in Peregian Springs, which is a residential development presently under way to the north west of Coolum.  The subject approval was also categorised as one having an unacceptable impact on the retail hierarchy, and likely to create a conflict with the Strategic Plan (discussed later); but, in the context of need as an issue, these arguments must fail, as viable objections, in the face of the decision of the High Court in Kentucky Fried Chicken v Gantidis (1979 40 LGRA 132 where it was made clear that protection from competition is not a proper planning matter unless the proposed development would have the result, overall, of reducing facilities available to the public. As Stephen J said, at 141:

If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that be due to physical or financial causes, and if the result in community detriment will not be made good by the proposed development itself that appears to me to be a consideration properly to be taken into account as a matter of town planning … 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 facilities available to the local community, if the development be proceeded with, it will not be a relevant town planning consideration.

1. Evidence of population growth and the existing relative paucity of provision in Coolum of convenience restaurants, service stations, and showrooms also demonstrates there is an apparent need, in the relevant sense, for those facilities.

Conflict with the Planning Scheme

1. The appellants contended the proposed development was in conflict with desired environmental outcomes Nos 3, 4 and 1 of Maroochy Plan; its provisions concerning Precinct 7, and 1; and, the Strategic Plan.

1. The Maroochy Planning Scheme is comprised of four volumes.  Volume 1 contains general matter concerning the Scheme’s background, principles, and administrative provisions.  Volume 2 contains the Strategic Plan which sets out the “vision” and the Desired Environmental Outcomes, and the manner in which they are to be achieved.  Volume 3 contains statements of desired character for each particular planning area in the Shire (and smaller areas called “Precincts” within them) into which the Shire is divided, in some considerable detail.  Volume 4 contains the Planning Scheme codes.

1. In Watpac (supra, at paras [51]-[60]) it was concluded that in construing town planning documents like Maroochy Plan 2000 a purposive approach is to be adopted, requiring the scheme to be interpreted in a commonsense way; and, in so doing, that it not be read too narrowly, or pedantically but with some degree of flexibility – but giving, of course, due weight to the provisions of the scheme and its importance as the central planning document for the Shire.

Desired Environmental Outcomes (‘DEOs’)

1. The Appellants primary submission was that the proposal offended three of the DEOs set out in part of the Strategic Plan, Volume 2 in a section called ‘The Vision’ and, in particular, nos 1, 3 and 4.  Because the first was only faintly argued it is convenient to address it last.

1. Under IPA s 3.5.14(2)(a) an assessment manager in considering an application for development in a planning scheme area must not compromise the achievement of desired environmental outcomes of that area.  DEO No 3 relevantly provides:

…Maroochy fulfilling its role as a Key Regional Centre, complemented by a hierarchy by lower order centres at suitably accessible locations across the Shire.

DEO No 4 requires that land uses which reduce private vehicle dependency and encourage pedestrian access are to be supported. 

1. It is contended for the appellants that the hierarchy, including the Coolum Village Centre designation on the Strategic Plan, the approved Watpac site, and the Peregian Springs Village Centre (presently undeveloped, but shown on the Strategic Plan map) will be compromised because the Barnes’ site cannot be considered as a Village Centre, nor a Local Centre (like the Watpac site) as those terms are defined in the Plan and is, then, anomalous.

1. IPA s 3.5.14 otherwise goes on to provide that proposed developments must not conflict with the Planning Scheme unless there are sufficient planning grounds to justify the decision.  There is, then, a distinction between compromising the achievement of DEOs, and conflicts with the Planning Scheme.  For a development to compromise the achievement of a DEO there would, it is clear, have to be an obvious and significant cutting across of that DEO in such a manner that its achievement on a Shire wide basis had plainly been compromised.  The first part of the section, concerning DEOs, looks to the macrocosm of the entire planning area and the possibility that the “vision” for it is, as a whole, adversely affected.  The other looks, comparatively speaking, to the microcosm of particular parts of the Strategic Plan and involves a much more pedantic exercise.

1. The appellants reliance here upon the DEOs is in fact the obverse of that urged in Watpac where it was suggested that the DEOs “flowed down” to specific precincts, and the verbiage about the latter created a precise and definitive code for precincts.  For the reasons given in that judgment the approach is flawed[6], as is the appellants’ contention here.  The DEOs simply form part of all of the relevant elements of the Plan which the Court must consider, including those matters to which the scheme itself pays significant obeisance:  community need, and demand; the desirability of, and possible benefits from, the proposal; the impact it would have; and, of course, the prevailing realities – whether development in the area has advanced, or will advance, in accordance with the Plan[7].

   [6]Supra at para [56].

   [7]Supra, at para [56].

1. When Maroochy Plan 2000 is properly construed in that fashion it is clear that it will be a relatively rare occasion in which “compromise” of the DEOs is manifest.  Certainly, it is very difficult to see how a compromise could arise here.  In terms of DEO No 3, this proposal would simply constitute a “lower order centre” at a “suitably accessible location” in the Shire.  On no view will it prejudice the desired role of Maroochy as a key regional centre.  As to DEO No 4, while access to this site would be, principally, by private vehicle, in the context of a comparatively small community with little in the way of public transport, and a developed pattern for consumers to travel to shopping centres in, and transport their purchases home by means of motor vehicles, the DEO has no meaningful application. 

1. The appellants’ reference to DEO 1 is, as I understand it, one which involves objection to the proposal on the grounds it does not comprehend a complete development of the whole of  Precinct 7 or one which is ‘master planned’.  A ‘Strategic Implementation Measure’ for DEO 1 requires the assessment of the ‘…likely individual and cumulative impacts…on the natural and built environments to ensure ecologically sustainable development’.  Very general provisions of this kind must be read in concert with the specific planning provisions for the precinct, and that exercise is undertaken later.  It shows there is, again, no evidence the DEO is ‘compromised’ in the sense there is plain damage to the ‘Vision’ for the Shire and, rather, the proposal is consonant with the parts of Maroochy Plan 2000 directly touching this land.

The Strategic Plan (Volume 2)

1. Under the Plan local retail, commercial and service uses are to be concentrated into nodes in urban communities: s 3.5.6.  Indeed, applications for those uses outside nodes are unlikely to be supported.  The benefits of concentration are said to include “community focus objectives” and the localising of “any potential amenity problems”.  An “appropriate level of services” is to be provided “without compromising residential amenity”.  Section 4.3.4 expressly discourages retail showrooms from village centres such as the Coolum Beach Village Centre (Precinct 1).

1. Although the Plan speaks of the approval of retail, commercial and service uses which offer a service only to local communities this aim is, as has previously been observed, more wishful thinking than a mandatory requirement[8].  This site, Precinct 7, is on land immediately adjacent to a motorway with access from it and will be convenient to and therefore attract not only residents of the nearby community but also passers by on the motorway.

   [8]Watpac, supra at para [69].

1. Otherwise, Precinct 7 does not on its face fit comfortably within the hierarchy envisaged in the retail and commercial strategy[9].  It is specifically promoted for commercial, non-residential activity.  At the same time it is a planned precinct of some 7 hectares, in an area in which showroom development is encouraged.  On any view it is inevitable that showrooms beside a motorway, and with direct access from it will attract customers beyond the immediate local area.  Hence if Precinct 7 was developed as it is described in vol 3 it would always have a trade area beyond that of a local centre.  In context that cannot be described as an unacceptable result but, rather, as an inevitable consequence of the planning decision to promote showrooms on the site.

   [9]Strategic Plan p 18, s 4.3

1. Coolum Beach Planning Area No 11, Vol 3 promotes only three areas for commercial activities – this precinct, Precinct 1 (the Village Centre) and Precinct 4 (the Local Centre, to which the Watpac development now forms an adjunct).  There are however specific provisions which qualify the promotion of these three precincts.

1. First, in respect of Precinct 1, there are a number of provisions indicating it is not intended to contain or provide large retail facilities.  Section 3.11.1 speaks of the Village Centre retaining a small scale, 3.11.2 of it having a “Compact Village Centre” with development which is “compatible with the small scale function of the Centre”, and 3.11.3 refers to the “small scale Village Centre of Coolum”.  Relevantly, it is expressly stated that it is not expected any further convenience restaurants will be established in Precinct 1:  Vol 3, p 207; rather, “small scale retail outlets and a variety of small scale restaurants and cafes” are encouraged.

1. In contrast Precinct 7 promotes showrooms, with criteria which include:

a range of goods and services which does not compete with the range of goods and services available in the Village Centre Precinct.  Items for sale in this Precinct should be restricted to large scale items such as bulky goods.

Other preferred uses are for indoor recreation, outdoor recreation and government facilities. 

1. Certainly, nothing is said about shops or supermarkets.  The absence of a reference for those facilities also means of course that there is no express prohibition.  While there is discouragement for enterprises offering a range of goods and services which may compete with the range in the Village Centre, there was no evidence before me of any competition at all between the two precincts.  Neither can it be said that discouragement approaches anything like an absolute bar.  In context, it is clear the provision is intended to reflect the goal that Precinct 7 does not develop in a way which means it might rival Precinct 1 as the main focus of retail in Coolum Beach Planning Area No 11.

1. Although a supermarket on this site might compete with another in Precinct 1 (and with the Watpac Development in Precinct 4) a supermarket would not, by itself, provide goods and services constituting a “range”.  On any view Precinct 1 remains the predominant retail area notwithstanding the Watpac development, or another supermarket in Precinct 7.  Indeed, that dominance may be enhanced by the Pithurst proposal for redevelopment of the IGA supermarket.

1. These provisions are to be considered in the context of the established need for a third supermarket to provide the “appropriate level of services” which the Strategic Plan seeks: s 3.5.6.  Planning Area No 11 clearly envisages three “commercial” Precincts:  Nos 1, 4 and 7.  If there is an obvious need for a third supermarket, provision of it can only be achieved in one of these three non-residential, commercial precincts.  Its inclusion in Precinct 1 would be contrary to all the provisions which seek to promote that Precinct as a small, compact village centre with small scale retail facilities.

1. It is both inappropriate and unnecessary to comment on the recent approval of the Pithurst proposal[10] save to note that the provision of a larger supermarket meets an apparent need and, otherwise, may be defensible on planning grounds.  The IGA supermarket has served the people of Coolum for many years and it might well be perfectly reasonable to allow it to expand into a more modern facility.  Nevertheless, it is on any view highly unlikely that a second supermarket could be included within that precinct without unacceptably offending the provisions promoting a small scale beachside village.

   [10]Ex 23.

1. Otherwise, it is practically impossible to contemplate a third supermarket in any other location.  These considerations point strongly to the most appropriate location for that third supermarket as within the third commercial precinct, i.e. the Barnes site.  Words within the precinct verbiage which might be seen as discouraging a supermarket do not, as this analysis has shown, amount in truth to a prohibition:  they indicate, rather, a mere desire to avoid duplication of the retail experience offered by Precinct 1.

Other Town Planning Issues

Piecemeal application

1. The applications for the retail centre, and the funeral parlour and crematorium were made separately to Council; and, some parts of the site to which the former relates are not intended to be developed at the present time.  As the Council conceded, however, they were assessed at the same time with full knowledge of each other.  The issue of separate applications raises what is called the Pioneer principle[11] under which, in short, proposals for the use of a discreet parcel should be dealt with all at once, and simultaneously.  The decision has, however, been distinguished in circumstances not dissimilar to those arising here by both the High Court[12] and the Queensland Court of Appeal[13].  In the latter, the Court of Appeal reaffirmed that Pioneer does not require that two distinct uses for a single parcel must necessarily be contained in the one application. 

   [11]Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485.

   [12]North Sydney Council v Ligon302 Pty Ltd (1996) 185 CLR 470.

   [13]Brisbane City Council v Cunningham (2001) 115 LGERA 326; Liquorland (Australia) Pty Ltd v Gold Coast City Council (2002) 121 LGERA 197.

1. In Westfield Limited v Stockland (Constructions) Pty Ltd (2002) QPEC 032 Senior Judge Skoien said at para [31]:

In this case I am unable to see any respect in which the consideration of any one of these applications could prejudice the fair consideration of the other two or either of them.  None of them is “incidental to and necessarily associated” with another of them.  They are quite independent, as reference to each application shows.  Each identifies its defended position on the site.  Each identifies its points of access and available car parking.  The fact that each will, no doubt, complement the others does not make them interdependent when none of them relies on the existence of another as a sine qua non to its own existence.

These comments plainly apply here.

1. Council required that development which was not certain nor approved should be removed from the plans before final approval, but that is not a matter of any moment.  Precinct 7 contains a large area of almost 7 hectares and, in a township of Coolum’s size, it is unlikely to be developed all at once.  In their present form the plans show that the developers have considered, and planned for, the balance area.  Council’s requirement reflects no more than a resolve that applications for any future development should not be pre-judged, so that a proper determination of them can proceed in due course, on their merits.  It was not suggested, for the appellants, that in those circumstances the applicants were compelled to apply for a form of preliminary approval.  These matters are sufficient to avoid any notion that the development proposed in the Precinct is piecemeal.

1. The provisions in respect of this Precinct require “a local area structure plan, overall master plan or other development plan”.  Exhibit 1 clearly represents evidence of “master planning”, and the developers have provided an overall plan of development for the whole site demonstrating that the entire development has been contemplated.  This both contradicts the suggestion the application is “piecemeal”, and goes so far as can be expected towards the requirements of the provisions for Precinct 7.

Private vehicle travel, and access

1. The question of vehicle use arose in the context of DEO No 4, and is also to be considered as a general town planning issue.  Again, there is limited public transport in Coolum and the obvious and preferred method for travel by customers of the supermarket and showrooms will have been by private vehicle.  It may also be said that the provision of a range of supermarkets in different locations will enhance levels of convenience for users.

1. Questions of access, and traffic safety were dealt with in a report of a traffic consultant, Mr Brameld[14].  He was not required for cross examination and his report discharges the developer’s obligations in connection with traffic issues including safe and appropriate public access.

   [14]Ex 7.

Town Planning evidence

1. Evidence was taken from four town planners:  Messrs Brown, Schomburgk, Connors and Wright.  Mr Wright is a Council planner who had recommended refusal of the original application, and who was called in the appellants’ case.  His recommendation, contained in Ex 17, was made before the decision in Watpac and, as he frankly conceded, he did not take into account the issue of town planning need for the supermarket when preparing his recommendation.  Hence his conclusion was reached in the absence of strong evidence from the economic experts, establishing need, or the analysis of the relevant planning scheme provisions contained in the Watpac judgment.

1. There is, on occasion, good reason for local authorities to reject the advice of their own technical officers.  As His Honour Senior Judge Skoien recently noted in Bunnings v Redland Shire Council (2003) QPEC 024[15] appeal proceedings in this Court are a hearing anew and criticism of the Council in the circumstances arising here is inappropriate.  Those circumstances include the apparent advancement of cogent reasons for rejecting Mr Wright’s recommendation for a refusal, the considerable weight to be given to the views of the economic experts, and the views of Mr Brown, a very experienced town planner whose evidence I found very helpful.

   [15]At paras [16]-[21]

1. As he said[16] when a community need has been established for a facility like a supermarket, it can only reasonably be refused if there is a clear prohibition in the planning documents against the provision of the facility on the relevant land, a clear direction as to where the facility ought to be located, and unacceptable impacts.  None of those features arise here.

   [16]T 215/15-30.

Amenity

1. It was submitted for the appellants, albeit faintly, that the built form of the development would be box-like, and not aesthetically pleasing.  The submission is unmeritorious in light, first, of the fact showrooms have been promoted in the Precinct and they are structures of, ordinarily, a regular, often box-like shape.  Secondly the evidence of the landscape architect[17] and the architect[18] made it clear that attempts have been made to minimise the box-like appearance, and that the careful and complex landscaping plan has been prepared, and will also have that effect.

   [17]Ms Robbins, Ex 6.

   [18]Mr Peabody, Ex 5.

1. Some attention was devoted, in particular, to the proposed location of the service station and convenience restaurant at the southern end of the site, in the vicinity of the Yandina-Coolum Road as it leaves the Sunshine motorway.  Conditions imposed by the Council require a minimum of 20m landscaping buffer to all road frontages, but Mr Brown conceded in cross examination that the service station and convenience restaurant would require exposure to the roads and the former would need high volumes of traffic.  Mr Connors, too, was initially concerned about the landscaping proposals but in cross examination said that those concerns had, effectively, disappeared[19].  The conditions imposed by Council and the landscaping plan are, however, very clear in their articulation.  Coolum is presently served by only two service stations; and, convenience restaurants are strongly discouraged in the village centre.  The landscaping proposals and Council’s requirements for these proposed premises are plain and any tension between them and the desires of future occupiers of those premises, with those uses, is simply a long-term commercial issue which, as I think Council has rightly determined, ought not tell against the proposal.

   [19]T 270/10.

1. Volume 3 of Maroochy Plan 2000 postulates an “entry statement” in the vicinity of the Yandina-Coolum Road at the southern end of Precinct 7 and that has not been finally resolved, but through no fault of the co-respondents.

The Funeral Parlour

1. Dr Koerner did not address this issue in his written submissions and Mr Haydon, for the other appellants, argued shortly that it was to be considered simply in the context of master planning for the site, and amenities.  No serious argument against amenity was raised up.  If the occupants of Coolum Beach are to be provided with these facilities, then this seems close to an ideal location, at the end of a cul-de-sac in area surrounded by bushland, well away from present or future dwellings.  Mr Drysdale[20] was not required for cross examination.

   [20]Ex 10.

1. The “piecemeal” and master planning issues have already been rejected as the basis for any meaningful objection.

Sufficient planning grounds

1. This analysis shows there is not, in truth, any conflict with the Planning Scheme.  It is appropriate, nevertheless, to consider the adverse matters asserted by the appellants and whether, if it is accepted they establish a conflict, that conflict is of sufficient weight or seriousness to prevail over the planning grounds said to support the proposal.  When that exercise is undertaken in the fashion prescribed in the decisions of the Court of Appeal in Grosser v Gold Coast City Council (2001) 117 LGERA 153, Weightman v Gold Coast City Council (2002) 121 LGERA 161 and Stradbroke Island Management Organisation v Redland Shire Council (2002) 121 LGERA 390 there is, firstly, nothing to suggest any serious or major conflict with any relevant provision; and, even if that view is wrong and conflict of a significant kind arises I am satisfied that there are a number of persuasive planning grounds which would justify the decision to approve the proposal.

1. First, there is a strong need in the community or town planning sense for the provision of a third supermarket.  The scheme does not direct where that need might otherwise desirably be met nor prohibit the provision of the needed facility on the subject land.  Secondly, the site itself is highly convenient and accessible for residents of Coolum and for those to the north and south of the town who, for the foreseeable future, will not be provided with full line supermarket facilities in their own locale.  Third, there is complete absence of unacceptable impacts in terms of traffic, and amenity (a matter discussed at greater length later). 

1. Fourth, the proposal achieves the Council’s apparent planning aims in connection with Precinct 7: namely, a precinct primarily for showroom uses conveniently located to the people of Coolum (with the potential for indoor recreation in the fullness of time).  Finally, the provision of a supermarket on this site involves an appropriate grouping of commercial and retail facilities in a “node”, which is a planning aim clearly promoted by the Plan[21].

[21]Strategic Plan, s 3.5.6(2); and see Volume 1, p 29, Fig 3.3 in which retail premises are “nested” – and include garden centres, shops, shopping complexes and showrooms

Decision

1. For these reasons, the submitter appeals are dismissed.  The application ought to be approved subject to the conditions contained in the respective Negotiated Decision Notices (subject only to an amendment with respect to the car parking spaces, in which an error occurred and there should be a requirement for 311 spaces in respect of the commercial development).