Leda Holdings Pty Ltd v Caboolture Shire Council and Anor;; Jeanfern Pty Ltd v Caboolture Shire Council

[2005] QPEC 56

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Leda Holdings Pty Ltd v Caboolture Shire Council & Anor;
Jeanfern Pty Ltd v Caboolture Shire Council [2005] QPEC 056

PARTIES:

LEDA HOLDINGS PTY LTD (ACN 001 004 557)
Applicant
v
CABOOLTURE SHIRE COUNCIL
Respondent
And
JEANFERN PTY LTD (ACN 068 435 941)
First Co-Respondent
And
STATE OF QUEENSLAND
Second Co-Respondent

And

JEANFERN PTY LTD (ACN 068 435 941)
Appellant
v
CABOOLTURE SHIRE COUNCIL
Respondent
And
LEDA HOLDINGS PTY LTD (CAN 001 004 557)
Co-Respondent

FILE NO/S:

BD 3950/2004, BD3492/2004

DIVISION:

Planning and Environment

PROCEEDING:

Appeals

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

26 July 2005

DELIVERED AT:

Brisbane

HEARING DATES:

9, 10, 11, 12, 13, and 17 May 2005

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1 Dismiss the appeal in BD 3950/2004

2 Adjourn the appeal in BD 3492/2004 for further          mention

CATCHWORDS:

PLANNING – PLANNING LAW – CONSTRUCTION OF PLANNING SCHEMES – whether conflict with planning scheme – whether sufficient planning grounds for approval despite conflict

Cases considered:


Beck v Council of the Shire of Atherton (1991) QPELR 56
Burmah Fuels (Qld) Pty Ltd v Redland Shire Council (1995) QPLR 103
Colonial Sugar Refining Co Ltd v Sydney City Council (1959) 4 LGRA 1
Cornerstone Properties v Caloundra City Council (2004) QPELR 54
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Delaview Pty Ltd v Redland Shire Council (1997) QPLR 250
Drive Type Pty Ltd v Caboolture Shire Council (1995) QPLR 141
Flinn & Anor v Bundaberg City Council 24 LGRA 408
HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230
 Intrafield Pty Ltd v Redland Shire Council (2001) QCA 116
Jensen & Bowers Pty Ltd v Redland Shire Council (2004) QPELR 86
Lewiac Pty Ltd v Gold Coast City Council (1996) 2 Qd R 266
Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors (2003) QPELR 385
Luke & Ors v Maroochy Shire Council & Anor (2003) QPELR 447
Lukin Enterprises Pty Ltd v Director of Fisheries (1986) 42 SASR 463
Pacific Exchange Corporation Pty Ltd v Gold Coast City Council (1998) QPELR 335
Ponton v Brisbane City Council (1970) 25 LGRA 73
Prodap Services Pty Ltd v Gold Coast City Council (2000) QPELR 176
Rossetto & Co v Superintendent of Licenses Premises & Ors (1982) 29 SASR 337
Roy Sommerville & Anor v Logan City Council (1990) QPLR 262
Stubberfield v Redland Shire Council (1993) QPELR 214
Trans Continental Development Pty Ltd v Pine Rivers Shire Council (1969) 25 LGRA 7
Weightman v Gold Coast City Council (2002) 121 LGERA 161
Westfield Management Limited v Pine Rivers Shire Council & Anor [2004] QPELR 1
Westfield Management Ltd v Pine Rivers Shire Council [2005] QPEC 015

Woolworths Ltd v Caboolture Shire Council & Ors [2004] QPEC 015 and [2004] QPEC 026
Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 (CA)

COUNSEL:

Mr J Gallagher QC and Mr T Trotter for Leda Holdings Pty Ltd
Mr S Ure for Caboolture Shire Council
Mr P Lyons QC and Mr D O’Brien for Jeanfern Pty Ltd

SOLICITORS:

Minter Ellison for Leda Holdings Pty Ltd
King & Co for Caboolture Shire Council
Nicholsons for Jeanfern Pty Ltd

1. These two appeals were heard together.  They arise out of Council’s decision to approve Jeanfern’s application for a material change of use affecting premises at 312-344 Morayfield Road, Morayfield.  The practical effect was to regularise the existing use of two tenancies there.  Leda’s appeal is against the whole of the decision; Jeanfern appeals against various conditions imposed by Council as part of the approval.  The State of Queensland took no part in the hearing.

1. The relevant land is described as Lot 5 on RP 901611 in the Parish of Caboolture, County of Stanley containing 8.0798ha.  It has a frontage of 402.54m to Morayfield Road, a major arterial road running north to the town centre of Caboolture.  The site already contains a large commercial building with a gross floor area of 12,616m², with nine retail tenancies.  The two major tenancies, the subject of the approval and the appeals, are the Warehouse Group (‘the Warehouse’) occupying 3,300m² and a Makro store (‘Makro’) with an area of about 5,000m².

1. These stores have some relevant history in this court.  The building in which they are located is called the “Morayfield Supa Centre”, and was constructed in 2001.  Makro and the Warehouse are the two largest tenants but proper development permits were not obtained before they commenced trading in 2002.  Each contended it was a “retail showroom” under the Caboolture Shire Planning Scheme and permission was unnecessary.  In proceedings brought by Woolworths Limited in 2004 this court declared that they were in fact “shops” as that term is defined in the Planning Scheme and should cease trading, although that order was later suspended pending an application for the approval which has prompted these appeals[1].

   [1]Woolworths Ltd v Caboolture Shire Council & Ors [2004] QPEC 015 and [2004] QPEC 026.

1. On 21 September 2004 Council granted approval for a material change of use subject to this condition about the use of the stores: 

Conduct the shop activities on site in accordance with the following:

“Discount Variety Warehouse – Premises used or intended to be used for the purpose of a large shop for the display or offering for sale by retail to members of the public a variety of goods where:

(a) The total use area is not less than 3,000 square metres of lettable floor area for each tenancy;

(b) The goods to be displayed in a warehouse format where the majority of the goods are displayed for sale and stored in the same area; and

(c) The use of the premises for the sale of food items (including but not limited to confectionary and soft drink) does not exceed 300 square metres of the total lettable floor area of the premises.

The term does not include the use of the premises for the sale of fresh fruit, vegetables, meat and fish and refrigerated or frozen food or drink or for the purpose of a supermarket.”

1. During the course of the appeal a new proposed condition was advanced, but not pressed by either the Council or Jeanfern.  It changed the name of the use to ‘Shops (Discount Variety Store)’ and provided that, in calculating the area for the purpose of clause (c) ‘…there shall be included any areas where food is physically displayed as well as half the width of any customer aisles immediately adjacent to the food displayed’.

1. The current Caboolture Planning Scheme was introduced on 12 March 1988, followed by a Strategic Plan in 1993 and a Development Control Plan, touching the area around this site, in 1996.  They cannot comfortably be read together, at least not in a way which engenders confidence that they reflect a clear and consistent plan for this site or Morayfield Road in general.  This state of affairs reflects what is apparent both from the number of important planning documents introduced within a relatively short period, and the documents themselves: the dramatic growth in the population of the Shire within the last two decades[2] (and the planners’ attempts to keep pace with it) and the significant development which has occurred along Morayfield Road since 1993.  The extensive nature of that development was apparent on inspection and is well illustrated in a map prepared by one of the town planners called in the case, Mr Kumskov[3].

   [2]It is also predicted the population will almost double within the next two decades: Ex 8, Pt 7.2.

   [3]Ex 18.

1. At the northern end of Morayfield Road there is a shopping centre called Morayfield Market Plaza.  Further south is the very large (and expanding) Morayfield Shopping Centre owned by Leda.  Travelling south there is a composite of retail and commercial premises including retail showrooms and then, at the intersection of Morayfield and Walkers Road, a large Bunnings Warehouse, which has recently obtained approval for a significant extension.  To the west of the subject site there is a community centre on a large parcel of land zoned Open Space.  To the east, on the opposite side of Morayfield Road, there is another large parcel whose owners were recently granted approval to develop retail showrooms. 

1. The present impression, vivid on inspection, is that Morayfield Road is a busy retail and commercial precinct over a considerable distance between the Caboolture River, just south of the town centre, and this site; and, the recent approval on the opposite side for retail showrooms combined with the fact the land immediately to the south of the subject site is under single ownership makes it highly probable that  development of a similar kind will expand further south on Morayfield Road to, at least, the railway overpass; indeed, this is something the Strategic Plan predicted, as I noted in Woolworths Ltd v Caboolture Shire Council & Ors [2004] QPELR 551, at 554:

[10]The Strategic Plan states, unequivocally, that for the purpose of the Plan itself:

… retail should be maintained in the northern section

but acknowledges that in future the:

… southern area will evolve more to retailing activities.

That is, in truth, what has occurred and development within the immediate locality has obviously overridden any residential intention.

1. The 1988 Scheme is a transitional one under the Integrated Planning Act 1997 (IPA) and pursuant to s 6.1.30(3)(b) the local authority is obliged to decide the application under ss 4.13(5) and (5A) of the Local Government (Planning and Environment) Act 1990 (PEA).  The latter provides:

(5A)    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. Whether or not a conflict arises is a question of law[4].  Any conflict said to arise must be plainly identified, through a process undertaken by looking at the Scheme as a whole, rather than its isolated provisions[5].  The section requires that the decision maker identify whether any conflict exists; if so, examine the nature of that conflict; determine whether there are any planning grounds relevant to the part of the application which is in conflict with the Planning Scheme, and if the conflict can be justified on those planning grounds; and, determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict[6].

   [4]Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 (CA).

   [5]     Burmah Fuels (Qld) Pty Ltd v Redland Shire Council (1995) QPLR 103; Delaview Pty Ltd v Redland Shire Council (1997) QPLR 250, at 253.

   [6]Weightman v Gold Coast City Council (2002) 121 LGERA 161.

1. Principles relevant to the construction of planning schemes which have been developed by the courts were helpfully summarised by Britton SC, DCJ in Westfield Management Limited v Pine Rivers Shire Council & Anor [2004] QPELR 1 at para [18]. Although, as his Honour said, planning documents have the force of law they are not drawn with the precision of an Act of Parliament and should be read as a whole and applied in a practical and commonsense, and not an overly technical way and in a fashion which will best achieve any evident purpose. Strategic plans, which set out broad desired objectives should be read broadly and not pedantically; not every objective in them needs to be met before a proposal can be approved. Similarly, Statements of Intent or aims or objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate.

1. In the present case expert town planners all advance, to a greater or lesser degree, views about the proper analysis and construction of the planning documents but (intending no disrespect) they attract no weight.  The proper construction of the planning documents is a question of law and is a matter for the court[7].

   [7]     HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 (per Fitzgerald P at 59).

1. It is to be remarked that, as sometimes occurs, the various planning documents here do not adopt a uniform approach to development on this site, and its locality.  To determine whether a development proposal is, in truth, in conflict with any part of the planning documents it is necessary to read them as a whole, as Skoien SJDC remarked in Drive Type Pty Ltd v Caboolture Shire Council (1995) QPLR 141 at 143:

“It is seldom appropriate in matters such as these to rely on any specific statement of intent or of aims or objectives in the planning documents as determinative.  It is rare that an express imprimatur or injunction can be found in them for a particular proposal.  Almost invariably a diligent search of the planning documents can unearth in such statements passages which appear to argue for or against the proposal but generally speaking it would be unwise to place too much weight on such a passage.  The planning documents, while they are given the force of law … are not drawn with the precision of Acts of Parliament and the statements of intent or of aims or of objectives are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular proposal should be approved or rejected.  So such statements should be read broadly ….

I am attracted to the planning approach of the shire’s planning officer … which is to emphasise the necessity of reading the strategic plan as a whole.  That is not to say that one goes in search of an isolated statement anywhere in the document which, when taken out of context, might support an argument.  Such a search, in most planning schemes, could unearth support for almost any argument.  If however a statement can be found which clearly sets out a fundamental principle of the Planning Scheme which argues for or against a proposal, then it is proper to give weight to it even though the proposal relates to land which is specifically dealt with in another part of the document.”

1. I was reminded, too, of what I said in Luke & Ors v Maroochy Shire Council & Anor (2003) QPELR 447:

“This plan is a dramatic example of the growth in the size and complexity of planning schemes in recent times.  Inevitably, the expansion of these planning documents will generate internal tensions or inconsistencies and, occasionally, different passages in them will appear to express a desire for what seem to be competing objectives.  That prospect compounds the necessity for a careful and balanced, but not unduly pedantic, approach to the interpretation of their provisions.

…

The undeniable purpose of a town Planning Scheme is to regulate, within reasonable limits consonant with the personal liberties of landowners, the provision and distribution of appropriate community facilities, both private and public, with a view to promoting the general wellbeing of the occupants of the relevant local government area.  The approach to construction of Maroochy Plan 2000 advanced by the respondents seems to me to accord with that discussed in the authorities I have reviewed and, in this instance, with the approach taken by Robin QC, DCJ in very similar circumstances in Allynbrook, which places weight upon the purposive elements of the scheme, with its emphasis on community need as an important aspect of town planning, and gives no special weight to what might be called, here, the “microcosmic” aspects of the plan touching, at its lowest levels, individual communities.

This does not mean that the structure of this plan with, as the Appellants correctly point out, its apparent descent from the general to the particular is inappropriate but, rather (to use the Appellant’s own metaphor) that what is found at its most detailed levels is not, necessarily, gold- but neither, of course, is it dross.  If, as here, the Planning Scheme at its most particular level suggests the proposed development might not be in harmony with what appears to be generally intended for a precinct, that cannot and does not mean the proposal automatically fails.  Rather, the planning authority and if necessary the Court, considers all the relevant elements of the plan, 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.”

1. Under the 1988 Town Planning Scheme this parcel is included in the Commercial Industry zone, intended to cater for showroom and service industry pursuits in “high access areas outside the central business area”.  Retail showrooms were permitted uses and shops, permissible[8].  Importantly, prohibited uses in the Commercial Industry zone included all residential uses, and customary associated purposes like general stores, and child care centres.  That zoning is one of the two major commercial designations in the Morayfield area and the Intent for it appears to offer encouragement for substantial retail activity on land like the subject site.  Its significance is illustrated, too, by nearby recent development:  Bunnings has developed a large store of about 10,000m² in the zone a short distance to the north and has recently obtained approval to expand its floor area to 15,000m²; and, a little further north on the eastern side of Morayfield Road the Harvey Norman development, also in the Commercial Industry zone, contains floor space in excess of 6,000m².

   [8]Ex 3.

1. The Strategic Plan, adopted on 17 December 1993, deals with parts of the southern end of Morayfield Road in a surprising way.  The subject site is included in the residential area designation; part of the Bunnings site (later rezoned Commercial Industry) and land to the north of Walkers Road is included in the Open Space Area designation.  Not surprisingly, Leda’s appeal focussed on the residential description  and also on the commercial area/retail hierarchy strategy contained in the Strategic Plan.  As to the first matter, if conflict arises it is between the proposal to use the land in accordance with the zoning, and the planning objectives and designation under the Strategic Plan.

1. Inspection of the site and the area strongly suggests the designation of the subject land for residential purposes is no longer appropriate and as the town planner called by the Council, Mr Ryter said, commercial reality dictates that has been so for quite some time.  It is to be remembered, too, that the Strategic Plan did not change existing zonings or alter existing land uses, and at the time it was introduced the land was not zoned for residential purposes.  I am not persuaded there is any conflict with the residential area strategy appearing in the Strategic Plan or the associated residential Objectives, because in light of the zoning under the original Scheme they have no true relevance here.  Evidence to the contrary from a town planner and a retail expert called by Leda placed excessive weight upon the mere fact of designation as a residential area, and paid insufficient heed to the existing zoning.

1. The question of conflict with the provisions of the Strategic Plan about commercial and retail strategies and hierarchies (including the question of adverse economic impacts) is more complex.  Consideration of the issue must begin, again, with an acknowledgement of the relevance of the zoning: as Robertson DCJ said in Cornerstone Properties v Caloundra City Council (2004) QPELR 54 at 62:

It is also well established that when there is a conflict between the zoning of the site and the planning objectives and designation in a forward planning document (such as a strategic plan or DCP) it is the zone that ought to prevail as it is the zone (in transitional planning schemes) which determines development rights.

1. The Commercial Area Objectives in the Strategic Plan reinforce the role of the town centre (north of the Caboolture River) as the traditional commercial and administrative centre for the Shire and the intended location for commercial and administrative office development and otherwise, relevantly, express aspirations for the establishment of a hierarchy of retail facilities including, importantly, the establishment of a regional retail centre at Morayfield[9].  There is also recognition, however, of the existence of zoned areas not designated as commercial on the Strategic Plan Map and provision for their expansion in certain circumstances: Commercial Objective (4), Implementation Measure (b).  Many of these aspirations have come to fruition including, in particular, the establishment of a large regional shopping centre on Leda’s site which, presently undergoing expansion, will soon contain about 60,000m². 

   [9]Commercial Objective (2)(b).

1. At the same time the Plan encourages development which consolidates and reinforces existing commercial and retail areas, for which this site is zoned[10].  While the town planner and retail expert called by Leda placed considerable weight on a planning study prepared for the Strategic Plan which suggested major retail development would remain to the north, those statements in the study were never incorporated into the Plan itself which simply envisaged a general retail hierarchy and provided for commercial, including retail development in the vicinity of zoned areas.

   [10]Commercial Objective 4(a).

1. It was said, in particular, that the Makro and Warehouse Stores are “core retailing” which should be located in the area around the Leda Shopping Centre and, if not, that they will create a regional or sub-regional shopping centre which the Scheme discourages.  The Scheme does not use the term “core retailing” and instead focuses on the establishment of a retail hierarchy.  In a more direct and particular way it was suggested Makro and the Warehouse are “discount department stores”, which should (by inference) be sited in primary retail areas within the hierarchy but I found the evidence of Mr Leyshon, a research analyst and town planner called for Jeanfern, helpful and persuasive that they should not be categorised in that way, and their nature does not dictate that they must be located in major shopping centres. 

1. Nor was it apparent that their presence in the existing structure on this site created a regional or sub-regional shopping centre.  As Mr Leyshon explained and I accept, this is not an instance of a shopping centre setting up outside the retail hierarchy, containing a supermarket or the like and offering true competition to other similar elements within that hierarchy.  Rather, it involves two stores which sell a range of products of a discount nature to bargain-conscious shoppers, in company with retail showrooms of a smaller but not dissimilar kind – ie, as inspection of the centre showed, there is an emphasis in a number of the stores on bulk, and low prices.

1. It is also germane that there was no evidence of any adverse impact upon the retail hierarchy or, in particular, Leda’s operations from the trading of Makro or the Warehouse.

1. In summary, the tenor of the Strategic Plan and its associated documents is to encourage retail development within or adjacent to land committed for those purposes, in a way which consolidates and reinforces existing commercial and retail areas.  When that is acknowledged and considered in combination with the historic zoning of this site and the nature of the surrounding and ongoing development over a considerable part of Morayfield Road including sites nearby this parcel, there is no evidence of actual conflict with the Strategic Plan, read and construed in the proper way. 

1. This analysis of the approach of the Strategic Plan to future retail and commercial development in and around Morayfield Road over most of its length is in accord with what is now reflected in the new Draft Plan for the Shire and, too, the Regional Framework for Growth Management and draft SEQ Regional Plan, discussed by Mr Kumskov in his report[11], which identifies Caboolture/Morayfield as a Principal Activity Centre intended to serve a catchment of sub-regional significance and accommodate key concentrations of employment in addition to business, major comparison and convenience retail and service uses.

   [11]Ex 2.

1. The purpose of Development Control Plan 6, introduced in August 1996 is to “… produce a Land Use Plan for the future balance development of Morayfield, with appropriate development guidelines that identify suitable areas for medium density housing and reinforce the area as the dominant retail commercial industry/showroom district”.  It identified the preferred dominant land use for this site as residential and included it in Special Planning Area 1 despite its continued zoning as “Commercial Industry”.  (The Bunnings site, mentioned earlier, had a similar designation even though Council had approved a rezoning of the land on which it is situated to Commercial Industry.)  DCP 6 was intended to implement, with greater detail, the strategies contained in the Strategic Plan but must necessarily be considered in the light of the previous finding that the proposed development is not in conflict with that Plan and, also, its zoning under the original Planning Scheme and the fact it is located on and has a high exposure to a major arterial road, Morayfield Road. 

1. It is clear that the principal aim of DCP 6 was to encourage the establishment of only one integrated regional shopping centre in Morayfield, and that has been achieved in the Leda centre.  The presence of the Makro and Warehouse Stores does not change or undermine that goal; a view consonant with Council’s approach to the Bunnings site and other nearby parcels.  Nor, again, for the reasons advanced by Mr Kumskov[12] is this development a regional shopping facility of a kind contemplated by Objective (3) of the DCP and it will not interfere with the development of an integrated, regional shopping centre on the Leda site (and, plainly, has not done so).  When read in conjunction with the other planning documents including, again, the zoning under the original Planning Scheme it cannot be said this development is in conflict with the DCP.

   [12]Ex 2, para [134].

1. Previous references to and reliance upon zoning focus attention upon Statements of Intent in the Town Plan concerning the Commercial Industry zone.  That Intent must be read in conjunction with the Table of Zones which shows that permitted development includes, on this site, commercial premises, garden supply centres, retail showrooms and the like and permissible development includes shops.  It is clear that the present development is consistent with the scale and character envisaged by the tables, particularly on a parcel of 8ha.

1. Council’s new Draft Planning Scheme was released for public exhibition on 20 September 2004, and removed on 10 December.  In its original form the Draft placed this parcel in the Metropolitan Centre zone, in Precinct 5, for which shops were an inconsistent use.  As a result of a submission prepared by the town planning consultant engaged by Jeanfern, Council later resolved to amend the Scheme to allow shops as consistent uses, code assessable, subject to each shop tenancy having a floor area of least 500m².  The evidence of Mr Madden, a Council planner called late in the case showed careful consideration was given to this change by Council officers and I am satisfied it was not inappropriate, nor inconsistent with Desired Environmental Outcomes in the Draft Plan.

1. The Draft Plan has proceeded past the exhibition stage and must be accorded some weight[13].  As Thomas J said in Lewiac Pty Ltd v Gold Coast City Council (1996) 2 Qd R 266, at 270:

It is obvious that a strategic plan cannot be prepared overnight.  Its production is part of a wide ongoing process of planning with provision for regular review.  It would be extraordinary if a planning strategy which was well on the way to adoption, or even adoption with an amendment, could be frustrated by developments created in circumstances where neither the Council nor the court could give any weight to the plan as it had so far emerged  That is not to say that it should be given decisive weight, but in circumstances where one proposal is as good as another, it does not seem inappropriate that an existing draft strategic plan be given some weight.

[13]   Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, per Hardie J at 125; Colonial Sugar Refining Co Ltd v Sydney City Council (1959) 4 LGRA 1 per Sugerman J at 7-8.

1. In a similar vein Fitzgerald P said in Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 at 62:

Coty establishes no more than that, when determining whether to approve or refuse a planning application, it is permissible, in appropriate cases, to take account of any provisions affecting the site which are included in a general planning scheme which is in the course of preparation; the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstances, including the stage to which the draft planning scheme has progressed, and usually will be only one of the factors to be considered, although in a particular case it might be decisive”.

1. While I do not think the Draft Plan and the later amendment affecting this site is, as Mr Ryter suggested, of overwhelming weight in establishing both justification for approval of this proposal, and something which extinguishes any suggestion of conflict with the planning documents, these recent developments are not, for reasons which appear from the analysis of the previous planning documents set out earlier, inconsistent with them nor with the development which has occurred under them. 

1. Leda contended that the later amendment was “colourable” because it had been introduced after a submission from the developer’s planning consultant, without a preliminary planning study and without proper consultation[14] but Mr Madden’s evidence established due process involving proper consideration by Council officers and the briefing of councillors had been observed; and, as Mr Ryter said and I accept, the amendment was the product of a logical process arising out of the change in the definition of “retail showrooms” in the Draft Plan.  That Plan has also, I accept, been the subject of over 1,000 submissions and has been amended in other respects as a consequence of them, and is expected to come into force in October this year.  All of these factors point to the conclusion that it should attract some weight in this appeal, and it plainly supports Jeanfern’s case.

   [14]   See, eg, Roy Sommerville & Anor v Logan City Council (1990) QPLR 262 at 270; Flinn & Anor v Bundaberg City Council 24 LGRA 408.

1. The appellant raised need, always a relative concept to be given greater or lesser weight depending upon all the circumstances which the planning authority must take into account[15].  Witnesses called for the appellant conceded, however, that there were no vacant retail areas in Morayfield Road where a Makro or Warehouse Store could take up a tenancy in the near future, while the evidence of Leyshon and Kumskov revealed a significant planning need, albeit by reference to past trading in those stores without planning permission.  Inspection supported Mr Leyshon’s conclusion that they cater for persons of limited means and meet a need exhibited by that part of the community in the Shire.  When those factors are considered in concert with the zoning it is clear need is not an issue which tells against the development.

   [15]Intrafield Pty Ltd v Redland Shire Council (2001) QCA 116, at para [20] per Moynihan SJA

1. The same conclusion attaches the matters concerning traffic where the unchallenged evidence of a traffic engineer, Mr Viney, showed there were no car parking problems with the proposed development and the adequacy of parking justified Council’s decision to use its power to grant a relaxation in the number of parking spaces.

1. These elements show that conflict with the various planning documents does not, in truth, exist.  Even if the contrary view is taken no more can be said than that, at the highest, any perceived conflict could only arise by reference to those parts of the planning documents which concern the retail hierarchy; and, which attach a residential designation to this site.  The analysis of those matters undertaken earlier shows any presumed conflicts manifest only from a particular and, in my view, unduly constrained reading of parts of the scheme.  In any event, even if conflict is conceded there nevertheless remain strong planning grounds which would justify approval.

1. The first is the zoning of the land.  As Mr Ryter said, no sensible landowner would contemplate attempting to rezone it back to residential.  The weight to be given to zones under pre-IPA planning schemes has long been acknowledged[16].

   [16]   Stubberfield v Redland Shire Council (1993) QPELR 214 at 216; Prodap Services Pty Ltd v Gold Coast City Council (2000) QPELR 176; Cornerstone Properties Ltd v Caloundra City Council (2004) QPELR 54.

1. The second arises from the characteristics of the site; it is a very large block located on and with high exposure to Morayfield Road which already contains major retail developments over its considerable length.  Use for any other purpose including, in particular, something of the nature of local convenient shopping needs is simply impractical, and illogical.

1. Those factors warrant a reiteration of the conclusion expressed earlier: that parts of the planning documents have simply been overtaken by events (as Mr Buckley ultimately conceded[17]).  As Robin QC,DCJ said in Jensen & Bowers Pty Ptd v Redland Shire Council[18] “… the planning arrangements, as they apply to (the site) … will achieve nothing of what they are intended to achieve”.

   [17]T 212 ll 40-42.

   [18]2004 QPELR 86 at [95].

1. The Draft Plan is unequivocal in its support for the proposed development in circumstances where the respondent Council must be taken to be aware of the history of the site and the litigation involving it, and has amended that Plan so as to support it.  It is also apparent that Council has itself departed from DCP 6 by the subsequent approval, in 2005, of extensions to the Bunnings site (which was designated partly Residential, and partly Open Space under the Strategic Plan).  Just before the introduction of DCP 6 Council also approved a rezoning of that site from Special Rural to Commercial Industry and, after DCP 6 was introduced (and designated the site as a special planning area intended for residential development) yet approved the Bunnings development and extensions.  As Mr Buckley properly conceded these decisions were departures from the planning documents.  This is a case in which previous planning decisions at odds with elements of the local Scheme mean the court should give any suggested conflict little weight[19].

   [19]   Grosser (supra) per White J at [44]; and, see Beck v Council of the Shire of Atherton (1991) QPELR 56 at 59, and Pacific Exchange Corporation Pty Ltd v Gold Coast City Council (1998) QPELR 335 per Newton DCJ at 339.

1. While the court will naturally hesitate to make findings that a planning document prepared and approved by a local authority contains significant mistakes or errors, it is impossible to ignore the fact that in designating this land for residential purposes DCP 6 may have fallen into error.  Neither the Plan itself nor its supporting study mention the site, which is the largest block of commercial industry zoned land in the study area, or the likely development that might occur on it as a consequence of its existing zoning.  (The Plan also appears to ignore the 1995 Bunnings approval on the land immediately to the north).  Whether mistaken or not, these considerations militate against a finding that the DCP is sufficiently clear to generate a conflict in this instance.

1. There are other relevant planning grounds in favour of the development, albeit of a lower order.  I accept the development is readily accessible and convenient to users and satisfies an established need while creating no adverse impacts, economic or otherwise.  There are plain benefits in providing a wider choice of shopping venues and a greater range and competition and, of course, employment.  Within the existing complex it is clear existing tenants derive benefit from the operations of Makro and the Warehouse.

1. All these factors are relevant planning grounds which, in concert, would be plainly sufficient to overcome any conflict which did exist assuming, as I do, that if found it could never be categorised as being other than minor and relatively inconsequential.

1. Council’s approval of 21 September 2004 included a condition which required the premises to be used as “Discount Variety Warehouses”, ie as a large shop containing goods for retail sale with a total use area of not less than 3,000m² for each tenancy, that goods be displayed in a warehouse format ie stores and displayed for sale in the same area; and, that the sale of food items (including but not limited to confectionary and soft drink) should not exceed 300m² of the total lettable area of the premises.  The conditions specifically excluded the sale of fresh fruit, vegetables, meat and fish and refrigerated or frozen food or drink “… for the purpose of a supermarket”.  Mr Walkley, an expert in retailing called by the appellant contended the clause was unenforceable and the appellant also argued the Condition was itself invalid and should be set aside.  During the course of the hearing the Council indicated that because the proposed use will be a consistent one under the Draft Plan as amended, it was prepared to simply remove the Condition. 

1. The appellant referred to a number of cases in which conditions have been imposed which were inconsistent with a permitted use[20] or in which the Condition was inconsistent with the use right[21], but this is a case in which the permitted use is not specifically allowed under existing planning documents although it may be approved by Council with conditions.  That is what has occurred.

   [20]Ponton v Brisbane City Council (1970) 25 LGRA 73; Trans Continental Development Pty Ltd v Pine Rivers Shire Council (1969) 25 LGRA 7; and Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors (2003) QPELR 385.

   [21]   Rossetto & Co v Superintendent of Licenses Premises & Ors (1982) 29 SASR 337; Lukin Enterprises Pty Ltd v Director of Fisheries (1986) 42 SASR 463.

1. In Westfield Management Limited v Pine  Rivers Shire Council (supra) Brabazon QC,DCJ held that a condition prohibiting the sale of groceries in a shop was within the power of the local authority, but too imprecise to permit enforcement, and unworkable.  Here, however (as Mr Walkley conceded) it was possible to calculate the area which was being used for the display of food items; and I am satisfied that food, which simply means what is eaten or taken into the body for nourishment, lacks the complexity and uncertainty which attaches to the word “groceries”.

1. Nor is the Condition an unreasonable one.  It might be clarified, appropriately, by amendments showing that the area of 300m² is to apply to the display as opposed to the sale of food, in the form of Ex 14 which, Mr Buckley conceded, would be enforceable and Mr Walkley acknowledged would not involve real, practical difficulty.

1. Leda also complained that on the proper construction of Condition 5 there had been breaches of it but, again, Mr Walkley’s report [22] demonstrated the food display area in each of the stores has, since the previous order of this court, been limited to 300m².  I do not think the Condition can be construed in any other way than as a limitation upon the food display area to that dimension, there being no logic nor apparent purpose in determining it by reference to the total use area of the store, as distinct from display areas.  Further, the applicant in the previous proceedings, Woolworths, has not raised the matter and there is no evidence of any complaint on its part.  In any event even if some illegality had occurred that ought not be a bar to a development permit. 

   [22]Ex 12.

1. Nor, for the sake of completeness, can evidence of a use previously carried on unlawfully (as occurred here before the proceedings in 2004) be seen in this instance as a significant impediment to later approval.  The proper approach in those circumstances was summarised by Brabazon QC, DCJ in Westfield Management Ltd v Pine Rivers Shire Council[23] at [22]:

In my opinion, it is appropriate to look at all factual matters, even those created by a period of unlawful use.  They may be for or against the application.  To consider them is not to give an applicant a benefit because of improper conduct.  Rather, it is to use the best available information about the present merits of the application.  The real principle is to ensure that such an applicant receives no benefit merely because the use is already in place.  Likewise, hardship to an applicant will usually be irrelevant.

[23](2005) QPEC 015.

1. Save in the very limited respects already mentioned no weight has been given to the earlier unlawful use, this being a case in which the parties’ contentions are to be considered primarily be reference to the planning documents and the legislation.  Nor, on the other hand, has any relevance been attached to the possibility of hardship to any of the present tenants.  The former has been despatched in earlier proceedings, in which the latter was an element.  For present purposes, their effects are neutral (or neutralising).

1. I am satisfied, in accordance with the reasons already set out, that the Leda appeal should be dismissed.

1. The Jeanfern appeal concerns conditions attached to parking, the length of an acoustic fence between the site and an adjoining premises and a need to clarify the approval to show that it relates to two premises within the site, not just one.  Jeanfern and the Council have agreed on the form of a condition which reflects a proper basis for a relaxation for car parking across the whole site, and nothing more is required.  (At the conclusion of the hearing Mr Lyons QC for Jeanfern indicated that he was obliged to obtain instructions about a proposed change incorporated in Ex 33, which remained unresolved.)

1. There is an existing house at the north-east corner of the lot adjoining this parcel to the south and Jeanfern seeks to limit the length of an acoustic fence required under a Council condition.  I am satisfied the amended condition, which requires the fence to be located between the existing residence and proposed extensions to the building on the subject parcel is sufficient.  The balance of the southern boundary adjoins vacant land and an acoustic fence there would serve no practical or useful purpose.

1. It is appropriate to adjourn Jeanfern’s appeal to permit resolution of the terms of the conditions to be attached to approval, including that mentioned in para [47].