Landel Pty Ltd & Anor v. Redland Shire Council

[2002] QPEC 12

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Landel Pty Ltd & Anor v. Redland Shire Council [2002] QPEC 012

PARTIES:

LANDEL PTY LTD and LANREX PTY LTD
  Appellants

And

REDLAND SHIRE COUNCIL  Respondent

FILE NO/S:

1363 of 2001

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

25 March, 2002

DELIVERED AT:

Brisbane

HEARING DATE:

15-18 January, 2002

JUDGE:

Judge Quirk

ORDER:

Appeal allowed

CATCHWORDS:

Integrated Planning Act;ss 3.1.6 (2)&(3), 6.1.30(3)(b) Local Government (Planning and Environment) Act;ss 4.13(5)&(5A)
Landel Pty Ltd & Anor v. Redland Shire Council (2000) QPELR 60 (3 September 1999);
Arksmead Pty ltd v. Gold Coast City Council (2001) 1 QdR 347;

COUNSEL:

Mr C.Hughes SC & Mr R.Litster for the appellants

Mr S.Ure for the respondent

SOLICITORS:

Suthers Taylor for the appellants

King & Company for the respondent

1. This appeal is against the respondent’s refusal of an impact assessable application for a material change of use of land (convenience retail centre including a supermarket and speciality shops) on land on the south-eastern quadrant of the Cleveland-Redland Bay Road/Bunker Road – Colburn Avenue intersection.

1. Controversy regarding proposed development of the subject land is no stranger to the courts.  Preliminary approval of the detailed Plan of Development of the site was considered by his Honour Judge Brabazon in Landel Pty Ltd & Anor v. Redland Shire Council (2000) QPELR 60 (3 September 1999). Leave to appeal against his Honour’s decision was refused by the Court of Appeal on 2 February 2000.

1. An important question at the hearing before his Honour was whether a “full line” supermarket (included in up to 4,500 square metres gross floor area) should be part of a Plan of Development for the subject land as a discretionary use.  Arguments advanced by the respondent against such an inclusion involved alleged conflict with the relevant Strategic Plan and Development Control Plan.

1. For the reasons which he published, his Honour concluded that the appeal should be allowed and that a preliminary approval (incorporating a Plan of Development) should issue.  The Plan of Development indicated that “convenience retailing” was impact assessable development and that the term “convenience retailing” was defined to allow for a “full line supermarket” (not exceeding 4,500 square metres gross floor area).

1. It is unnecessary to set out a description of the physical and geographical features of the site and the surrounding land use.  These were dealt with in his Honour’s judgment and are sufficiently discussed in the material before this court.  The application now before me is for a development permit that will enable the establishment of a retail facility that will include a Woolworths supermarket (3,148 square metres) and speciality shops (900 square metres).  It is intended to be a “stand alone” development located in the south-eastern portion of the site.  The design and layout of the proposal can be seen in the material placed before the court and is not controversial.

1. The application is for “convenience retailing” as defined by the Plan of Development, the relevant definition having been settled by his Honour’s decision.  Other elements of the proposed development of the subject land (in accordance with the Plan of Development) which include fast food premises, showrooms class A, commercial premises, shops and tavern, were the subject of separate code assessable applications.

1. The application must be considered as an “impact assessable application”. Because the relevant town planning scheme is a “transitional planning scheme” within the meaning of Chapter 6 of the Integrated Planning Act, s6.1.30(3)(b) if that Act requires that the application (being one for which a town planning consent would have been required under the repealed legislation) must be decided under s.4.13(5) and (5A) of that legislation.

1. Section 4.13(5A) of the repealed legislation provides:-

“The local government must refuse to approve the application if:-

(a)the application conflicts with any relevant Strategic Plan or Development Control Plan and

(b)there are not sufficient planning grounds to justify approving the application despite the conflict.”

1. The matter of conflict with the Strategic Plan and Development Control Plan was again raised in this appeal.  I say it once, that in considering the application at this point in time, I do not consider myself bound by the findings of his Honour in the previous hearing.  But having said that it would not appear that a great deal has changed since the matter was earlier considered.  The Strategic Plan and the Development Control Plan considered by his Honour still apply to the subject land.  The Victoria Point District Business Centre Development Concept was considered in the earlier matter as an “adopted concept”.  His Honour was told that, at the time, it was proposed that the planning scheme be amended in accordance with the concept.  This has not occurred but, on 9 February 2000, following the decision in the earlier appeal, the concept was adopted as planning policy. 

1. His Honour’s reasons make it plain that, in deciding that “convenience retailing” (as he found it should be defined) should be a discretionary use and not excluded “by definition”, he anticipated that any application would need to be considered on its merits. However his findings (on the evidence considered in careful detail) indicate that he formed the view that a proposal of the kind now before me was, notwithstanding that the Strategic Plan and Development Control Plan, potentially acceptable on the site.  I have no difficulty whatsoever with his Honour’s reasoning which was favourably noted by his Honour the Chief Justice in the Court of Appeal.

1. Now that the Plan of Development is in place, s.3.1.6 of the Integrated Planning Act is enlivened. That the Plan of Development makes “convenience retailing” of the kind he proposed impact assessable development accords with s.3.1.6(2) and s.3.1.6(3) provides:-

“To the extent that a preliminary approval (which makes a particular use impact assessable development) it contrary to a local planning instrument, the approval prevails.”

1. Against that background it would be very difficult to accept the argument that, because of the Strategic Plan the Development Control Plan and the policy, convenience retailing of the scale here intended (whatever the desirable features the proposal might present) is inherently unacceptable.  On the evidence given before me it did seem that the respondent’s case went that far.  The suggestion appeared to be that the size of any supermarket on the subject land should be limited in a way that  his Honour was not prepared to accept.

1. Nevertheless the merits of the proposal must be considered and in that consideration the Strategic Plan and the Development Control Plan (and the planning strategies that are contained in those instruments) must be borne in mind.  Aside from the implications of the Strategic Plan and Development Control Plan for the proposal, the issue of need was central to the appeal.

1. A long line of cases have indicated that where, under the repealed legislation, town planning consent was called for, need is not a matter as important as it would have been had a re-zoning been required.  Ordinarily a demonstration of community benefit was required if an amendment to a town planning scheme was to be made.

1. On the other hand, as the decision of the Court of Appeal in Arksmead Pty Ltd v. Gold Coast City Council (2001) 1 QdR 347 indicates, an absence of need, may in certain cases involving town planning consent, work against a proposal. It is also important to note in this case that the Strategic Plan, in its statement of intent for the District Centre PDLU provides:-

“The retail component of these centres is intended to be limited to the maximum of a full line supermarket and associated convenience shopping with limited comparison goods available.  Any proposal for further retail development in these centres will be required to undertake an appropriate level of economic impact assessment to ensure that they do not adversely affect other interests in the Shire and adjoining local government areas or cause an imbalance of the hierarchy of centres intended to the Shire.”

1. The application was accompanied by an economic impact analysis and, at the hearing, I had the benefit of the evidence of its author Mr Duane, of Jebb Holland Dimasi.  After a  very careful analysis of the topic, for  the reasons which he explained he concluded : -

§  Expanded retail facilities at Victoria Point are projected to serve a large and growing main trade area population

§This growing population will generate additional retail spending in the trade area estimated at in excess of $79.2 million over the next 10 years

§Current trade area residents have to travel to Cleveland and Capalaba, distances of 8 kilometres or more to access a full line supermarket

§Given the very low provision of retail facilities in the trade area and the growing population within this area there is both ample scope and a clear need for additional retail facilities within this area.

1. For the Council evidence was given on economic need by Mr Jackson who was more conservative in his assessment and believed that residents of the (admittedly rapidly growing)  area were adequately served by supermarket facilities.  However his approach seemed almost to suppose that the community were not entitled to further facilities (and the convenience and accessibility that go with them) until existing facilities are demonstrably deficient.

1. He was more cautious about anticipated population growth than Mr Duane, who was guided by figures generated by a government authority.  It may be true that these figures are “indicative”  to an extent and care should be taken in applying them.  However, I do not believe that Mr Duane’s approach in relying to the extent that he did on these projections invalidated his conclusions.  Any suggestion that local planning would not be responsive to community pressure for further residential opportunity in the region seems to me a little unrealistic.

1. In regard to economic need, I accept the evidence of Mr. Duane supported as it was by a detailed and careful analysis of matters which appeared to be relevant.  I am not prepared to find that the proposal would have an unacceptable impact on “other interests in the Shire” (which include existing facilities at Koala Park).  The is no serious suggestion that the proposal would lead to any “imbalance of the hierarchy of centres intended to the Shire.”

1. Economic need is only one component of “need” as it is understood in a planning sense.  Weight must be attributed to the interests of the community and to a greater extent than to those of existing operators of retail facilities.. Important matters in this respect emerged not only from the evidence of Mr Duane, but from that of Mr Michel, a senior executive with the Woolworths organisation which, while having recently taken control of one of the supermarkets in Koala Park, have maintained an interest in establishing a convenience retailing opportunity in the south-eastern quadrant of the District Centre.

1. It was explained that, in more recent times, with changing social patterns there have been subtle alterations in shopping habits.  With more working couples, greater emphasis is being placed upon smaller and more frequent visits to supermarkets, these visits often being made on the way home from work.  As a consequence, patrons are arriving later in the evening and supermarkets have responded by extending trading hours.  At such times large “mall” type complexes are often uninviting, with speciality shops closed and car parking sometimes not really conveniently located.  The advantages of a stand-alone complex with nearby parking is obvious and, in this way, the proposal is aimed at providing a “convenience” opportunity to respond to a particular community requirement. 

1. Mr Michel explained that Woolworths see no difficulty in the co-existence of this proposal with the more traditional full line supermarkets in Koala Park.  Furthermore, future growth in the area will likely occur to the south and east and the south-east quadrant of the District Centre is ideally suited to provide accessibility in that respect.  Mr Holland, an experienced traffic engineer, explained the advantages that flow from this.  I found this evidence compelling.

1. In respect of this proposal’s serving the public interest I prefer the evidence of Mr Duane supported as it was by the other evidence put forward by the appellant including that of Mr Michel, Mr Schomburgk (the appellant’s town planning consultant) and Mr Holland.  I am satisfied on this evidence that the proposal would advance rather than be contrary to the public interest.  I find that it should not be rejected on the ground of need.

1. The respondent argued that, not only was there no demonstrated need (in the planning sense) for a supermarket of the kind proposed on the subject land, but that it would also be contrary to the public interest that such a facility be established on the subject land where the strategies found in the Strategic Plan and Development Control Plan favoured consolidation of the existing Koala Park Centre and the establishment of a “main street retail focus of Victoria Point which has been developed and approved on the western side of Redland Bay Road”. 

1. In this context it is noted that, in September 2001, the Council approved an application for  a further supermarket on the north-western quadrant of the intersection (the Fox & Bell or “Lakeside” plan) notwithstanding that it had, in February of that year, refused the subject application which had been lodged prior to the Fox & Bell application.  One of the stated reasons for refusing the subject application was that there was an absence of need for a further supermarket at this location.  This does little to advance the credibility of the Council’s position in regard to economic need.

1. As far as consistency with the planning documents is concerned, the proposal is intended to be established in the area designated as part of the District Centre.  I do not believe that this proposal (having regard to the role that it will fulfil) would be unacceptably inconsistent  with  the stated planning objectives of the respondent to consolidate the retailing opportunities offered by the Koala Park centre and I accept the evidence of Mr Duane on the proposal’s likely impact in that regard.  I accept that it will compliment rather than adversely affect that centre.

1. As to the more recent approval given in respect of the Lakeside land, the evidence was that, as yet, no commitment to occupy a supermarket there has been made by any recognised operator.  I treat with a good deal of reservation the suggestion that the success of any centre on that land will stand or fall depending on a supermarket’s taking its place there.  That site offers little in the way of convenience not provided by Koala Park and does not enjoy the advantages had in that sense by the subject land. 

1. I doubt whether “conflict” such as is envisaged by s.4.13(5A) of the repealed Act has been shown to exist in this case.  If I am not correct about that, I am satisfied, for the reasons which I have outlined, that there are sufficient planning grounds to justify approving the application despite any conflict.

1. In those circumstances, I am satisfied that the onus of showing that the application is one that should be approved has been discharged and accordingly the appeal will be allowed.