Lewiac Pty Ltd and ING Real Estate Joondalup BV v Gold Coast City Council - [2002] QPEC 80

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Lewiac Pty Ltd & ING Real Estate Joondalup BV v Gold Coast City Council & Ors [2002] QPEC 080

PARTIES:

LEWIAC PTY LTD & ING REAL ESTATE JOONDALUP BV

Appellants

GOLD COAST CITY COUNCIL

Respondent

MACQUARIE ASSET SERVICES LIMITED

Second Co-respondent

GIBBS HOLDINGS PTY LTD

Third Co-respondent

CFS MANAGED PROPERTY LIMITED & COLONIAL FIRST STATE INVESTMENTS LIMITED

Fourth Co-respondent

STATE OF QUEENSLAND

Fifth Co-respondent

WESTFIELD LIMITED

Seventh Co-respondent

FILE NO/S:

1169/2001

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court, Southport

DELIVERED ON:

20 December 2002

DELIVERED AT:

Southport

HEARING DATES:

3, 4, 7, 11, 12, 13, 14 June; 13, 14, 15, 16, 19, 20, 21, 22, 23, 26,27, 28, 29 August; 2, 3, 4, 5, 6 September 2002

JUDGE:

Newton DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

LOCAL GOVERNMENT – TOWN PLANNING – application for development permit for material change of use and preliminary approval for building work for development for purposes of “extension to shopping centre development, shops, retail showrooms, service station, takeaway food premises, kiosk/restaurants totalling 35,000m² gross lettable area (in addition to existing shopping centre) generally in accordance with the Harbour Town Plan of Development (as defined)”

LOCAL GOVERNMENT – TOWN PLANNING – impact of proposal on centre hierarchy – validity of draft condition designed to take proposed development outside existing or proposed retail hierarchy – impact of proposal on centre hierarchy under draft Planning Scheme – economic impact of proposed development – whether sufficient planning need has been demonstrated for proposed development – traffic issues

Cases considered:

Cain & Anor v Pine Rivers Shire Council (1975) 33 LGRA 150

City of Bradford Metropolitan Council v Secretary of State for the Environment & Anor (1986) 53 Property Planning and Compensation Reports 55

Comiskey v Pine Rivers Shire Council & Ors [1996] QPELR 158

Cut Price Stores Retailers v Caboolture City Council [1984] QPLR 126

G Rossetto & Co Pty Ltd v Superintendent of Licensed Premises & Ors [1982] 29 SASR 337

Indooroopilly Golf Club v Brisbane City Council & Ors (No 2) 91982) QPLR 13

Intrafield Pty Ltd v Redland Shire Council [2000] QPELR 337

Kentucky Fried Chicken Pty Ltd v Gantidis (1977-1978) 140 CLR 675

Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266

Lukin Enterprises Pty Ltd v Director of Fisheries [1986] 42 SASR 463

Overton & Anor v Redcliff City Council & Anor [2000] QPELR 250

Ponton v Brisbane City Council (1970) 25 LGRA 73

Prime Group Properties Limited v Caloundra City Council & Darracott & Ors [1995] QPLR 147

Roosterland Pty Ltd v Brisbane City Council [1986] 23 APAD 58

Rowlands Surveys v Council of the City of Thuringowa [1993] QPLR 217

Seymour CBD v Noosa Shire Council [2001] QPEC 066

Transcontinental Development Pty Ltd v Pine Rivers Shire Council [1969] 25 LGRA 7

Tucker v Brisbane City Council [1999] QPELR 247

Willispap Pty Ltd v Mulgrave Shire Council [1992] QPLR 51

Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306

COUNSEL:

Mr M D Hinson SC for the appellants

Mr S Hughes SC for the respondent

Mr E T Morzone for the second co-respondent

Mr J Gallagher QC, with him Mr T N Trotter for the fourth co-respondent

Mr R S Jones for the fifth co-respondent

Mr D Gore QC for the seventh co-respondent (the seventh co-respondent withdrew from the appeal on 23 August 2002)

SOLICITORS:

Freehills for the appellants

McDonald Balanda & Associates for the respondent

Phillips Fox for the second co-respondent

Minter Ellison for the fourth co-respondent

Crown Law for the fifth co-respondent

Clayton Utz for the seventh co-respondent (the seventh co-respondent withdrew from the appeal on 23 August 2002)

This appeal is against the deemed refusal of the respondent Council of an application for a development permit for a material change of use and a preliminary approval for building work for development for the purposes of “extension to shopping centre development, shops, retail showrooms, service station, takeaway food premises, kiosk/restaurants totalling 35,000m² gross lettable area (in addition to existing shopping centre) generally in accordance with the Harbour Town Plan of Development (as defined)”.

The subject land is located at the north-western corner of Brisbane Road (Gold Coast Highway) and Oxley Drive at Biggera Waters. The site also has minor frontages to Pine Ridge Road, Coombabah Road, Mota Vu Drive, Gateway Drive and Centre View Drive. The site forms part of the land described as Lot 709 on RP 902009 and Lot 710 on SP 108981. Lot 709 is the land described in Schedule 4 of the Local Government (Harbour Town Zoning) Act 1990 as the land where the regional shopping centre mentioned in s.3(2) of that Act is to be constructed. The existing Harbour Town Shopping Centre is constructed on that land and opened in 1999. There is also a Bunnings Warehouse on that land. The site is situated approximately seven kilometres from Helensvale Plaza and the approved Westfield development at Helensvale, approximately four kilometres from Runaway Bay Shopping Centre, and approximately six kilometres from the Southport Central Business District.

The land is included within the Special Facility Development in accordance with the City of Gold Coast (Harbour Town Zoning) Act 1990; this Act expired on 7 December 2000.

Under the current 1994 City of Gold Coast Strategic Plan, the site is designated as a Regional Centre. The proposed Gold Coast City Draft Planning Scheme 2002 (which was placed on public display from 18 February 2002 to 22 May 2002), Major Activity Centres Land Use Scheme, designates the site as a Sub-Regional Centre. The Draft Planning Scheme includes Lot 709 within the Integrated Business Domain and Lot 710 within the Fringe Business Domain, Industry 2 Domain and the Residential Choice Domain. That part of Lot 710 which is intended to be developed under the application is in the Fringe Business Domain except for a small sliver in the Industry 2 Domain on which an access-way is proposed to be constructed.

Under the Albert Shire Strategic Plan the site is designated as a Major Business Centre. The Albert Corridor Development Control Plan makes specific provision for the sites of Helensvale and Coomera.

The existing Harbour Town Shopping Centre has a floor space of 52,611m² and comprises a mix of brand-direct/factory outlet and normal retailing together with cinemas and restaurants and takeaway food outlets. The breakdown of the various components is as follows:

(a) 31,166m² of shops of which 15,080m² (48%) are factory outlet/brand direct shops;

(b) 8,800m² of retail showrooms (a Bunnings Warehouse of 8,550m² and Sleepy’s The Mattress Outlet of 250m²);

(c) 7,000m² of cinema complex (a 14 screen Readings cinema);

(d) 2,660m² of restaurants and takeaway food outlets; and

(e) 2,985m² of medical, office and other non-retail space.

The current proposal is principally directed towards increasing the areas of outlet stores and retail showrooms. Within the overall building area and use area limits set out in the Plan of Development, the proposal is for 10,000m² of outlet shops and 23,900m² of retail showrooms, with a further 1,100m² of restaurant, takeaway food and service station facilities. The application, if approved, will result in an overall development of 87,611m² comprising:

(a) 41,166m² of shops of which 25,080m² (60%) will be outlet shops;

(b) 32,700m² of retail showrooms;

(c) 7,000m² of cinema complex;

(d) 2,985m² of medical, office and other non-retail space; and

(e) 3,760m² of restaurants, takeaway food outlets and service station.

Pursuant to an order of this Court on 14 December 2001 the solicitors for the respondent Council advised by letter dated 8 January 2002 the reasons why the respondent Council would have resolved to refuse the development application. Those reasons were stated as follows:

“1. The Appellants have not demonstrated that a need for additional floor space on the scale proposed exists on the land the subject of the appeal;

2. The proposal will relate to a centre that is heavily retailed biased. The proposal as lodged by the Appellants does not provide any community, business or administrative functions as envisaged by the Respondent’s transitional planning scheme;

3. The proposed development exceeds the contemplated size of a Sub-Regional Centre as identified in the Respondent’s Activity Centre Strategy. The proposal undermines the Respondent’s planned hierarchy of centres to the detriment of other existing and planned centres;

4. The development is in conflict with the City of Gold Coast transitional town planning scheme gazetted 11 February 1994 and Albert Shire transitional planning scheme gazetted 23 February 1995 in that it will undermine the primacy of Southport, Robina and planned Helensvale Town Centres and the Appellants have failed to establish sufficient planning grounds to justify approval of the Application despite the conflict;

5. The submissions received by the Respondent have raised valid concerns which the Appellants failed to adequately address in their Application for a Material Change of Use and supporting material.”

The issues in the appeal may be broadly described as:

(a) need;

(b) economic impact;

(c) the planned hierarchy of centres; and

(d) traffic.

Some preliminary observations should be made. It is for the appellants to establish that the appeal (which is by way of hearing anew) should be upheld: ss.4.1.52(1) and 4.1.50(1) of the Integrated Planning Act 1997 (IPA). The Draft Planning Scheme derives relevance from the Coty principle which is concerned with avoiding giving a judgment or establishing a principle which would render more difficult the ultimate decision as to the form the new scheme should take: see Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266 at 271. When determining whether to approve or refuse a planning application it is permissible to take account of any provisions affecting the site which are included in a general planning scheme which is in the course of preparation: Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306 at 328.

In 1995 the former Albert Shire and Gold Coast City local government areas were amalgamated and consequently Gold Coast City currently operates under two transitional planning schemes namely, the Transitional Planning Scheme for the City of Gold Coast gazetted on 11 February 1994 and the Transitional Planning Scheme for the Albert Shire gazetted in February 1995. The Activity Centre Strategy was formally adopted by the respondent as a foundation report to its proposed new IPA Planning Scheme on 17 April 1998. Various provisions of the strategy will be referred to in due course.

The appellants’ town planning consultant (Mr Humphreys) contended that the proposed development was intended to be developed and promoted in two parts: namely, showrooms on the western part (other than to the extent of 2,100m² of shops, and outlet shops on the eastern part of the site). Even allowing for such configuration, the proposed development must, in my view, be seen as comprising a “major shopping development” or, alternatively, a single integrated shopping complex used, or intended to be used, primarily for shops. It therefore constitutes “shopping centre development” as defined under the transitional 1994 Gold Coast City Planning Scheme and the 2002 draft Gold Coast Planning Scheme and is properly to be assessed as such. I do not, therefore, accept Mr Humphreys’ characterisation of the proposal as having two components in an attempt to ensure that the western part of the site not be assessed as part of the use for shopping centre development.

The definition of “shopping centre development” under the 1994 scheme includes a “major shopping development” as defined by the Local Government (Planning and Environment) Act 1990. Otherwise, the definitions of “shopping centre development” under the 1994 scheme and under the draft scheme are essentially the same. Both definitions comprise two elements: firstly, the premises forming “a single, integrated complex”; and, secondly, the premises being “used or intended to be used primarily for shops”.

The proposed development, as intended, for the purposes of the 1994 scheme falls within the definition of a “shopping centre development” by reason of it being a “major shopping development”. Apart from such definition, however, the proposed development still falls within the definition of shopping centre development by reason of it being part of a single integrated complex used or primarily used for shops.

Impact of Proposal on the Centre Hierarchy

It does not appear to be in dispute that the achievement of a sustainable and effective centre hierarchy should be recognised as a good town planning principle for reasons of orderly development, increased accessibility and convenience, greater economic efficiency and investment opportunities. Indeed, in his written submissions Senior Counsel for the respondent observed that it is remarkable that not one witness criticised the town planning principles requiring a hierarchy of centres and not one witness criticised the appropriateness of the specific hierarchy put in place for this region by the relevant planning documents.

It may be accepted then, that a centre hierarchy is vital to the functioning of a City in order to ensure the efficient, equitable and adequate provision of goods and services to all communities having regard to their needs, size and location. This evidence was given by Professor Brannock, a consultant town planner who testified on behalf of the fourth co-respondent, and it accords in general with the evidence of all the town planning experts. A successful and well-implemented centre hierarchy correlates the economic and social functions of a centre with the needs and interests of its catchment.

The degree to which the proposal will adversely impact upon the centre hierarchy provisions of the 1994 Transitional Planning Scheme, the Activity Centre Strategy and the 2002 Draft Plan must be assessed. However, it may be noted that there has previously been judicial recognition of the importance of the establishment of a retail hierarchy. Thus, in Willispap Pty Ltd v Mulgrave Shire Council [1992] QPLR 51 at 52-53 Quirk DCJ stated:

“…To establish up to 4,000m² of local shopping on the subject land would constitute an over provision for this locality. It would constitute a facility of an order that would need to rely on a far greater catchment comprising much of the area covered by the Fresh Water Valley Draft Development Control Plan. In so doing, it would prejudice the feasibility of the hierarchy of shopping facilities proposed by the plan. The location and order of retailing facilities in developing areas is no doubt an important part of strategic planning. This is a matter appreciated by (and to which careful attention has been given) by the Respondent Planning Authority for this area in its recent exhibited Development Control Plan. The Respondent’s opposition to this proposal is in my opinion quite consistent with the planning strategies found under the Development Control Plan and no real basis for any serious questioning of the strategies has been shown. I fully appreciate the Draft Development Control Plan does not yet have the force of a statutory planning instrument. It does, however, constitute a recent expression of planning strategy formally made public as required by the Act.

In a matter of this kind, it would in my view, be entirely inappropriate for this Court to make a decision which runs contrary to such a considered and carefully expressed planning strategy of a local authority.”

Again, in Overton & Anor v Redcliff City Council & Anor [2000] QPELR 250 at 253 Quirk DCJ observed that:

“The provisions with which we are concerned have fundamental importance to the establishment of a suitable and ordered hierarchy of commercial development. As I have indicated, to ignore these provisions could have fundamental and far-reaching consequences for expectations based on the Strategic Plan as it is presently drawn.”

The attainment of an effective and sustainable hierarchy of shopping centres should be acknowledged as a proper town planning principle which is to be achieved in the interests of orderly development, increased accessibility and access, greater economic efficiency and predictability in investment opportunities. It is against this background, then, that the relevant provisions of the planning documents are to be assessed.

The City of Gold Coast Transitional Planning Scheme (February 1994) provides in s.1.2, the Structure Plan:

“The Structure Plan Diagram denotes a hierarchy of commercial centres which are the principal shopping and business centres of the City and are accordingly concentrations of tertiary employment. They are the foci of the transport network, including public transport. Southport is identified as the primary regional centre for the Gold Coast Region with the intention that high order retail and commercial services be encouraged to locate there in addition to government services and offices.”

The Structure Plan Diagram designates the subject site as a Regional Centre.

The Commercial Strategy in part 1 of the Strategic Plan identifies as Key Issues:

“Retail floor space standards can be used as a broad guide for forecasting retail needs. When compared with other cities, the Gold Coast has a relatively high retail floor space standard of 1.50 square metres per head of resident population. This ratio is justified because of the substantial additional population in the form of tourists and day-trippers attracted to the City. It does, however, have the effect of placing heavy strains on shopkeepers and landlords during periods of economic downturn, rather moreso than would be experienced if the per capita ratio was closer to the national average. Planning for future retail needs is further complicated by the existence of actual and proposed regional shopping centres in the adjoining Albert Shire, such as Pacific Fair at Broadbeach which has been expanded a number of times, and the proposed Robina Town Centre which is planned to be a major Regional Centre.

Accepting the above, the City presently has an adequate supply of land zoned to accommodate office and retail development at the regional, district and local levels in line with expected population and tourism growth and having convenient access to all residential areas.

Excluding the Harbour Town site, some of which will be used for a major commercial centre, approximately one-third of the 317 hectares of zoned commercial land is vacant and awaiting development. This capacity, together with the additional capacity that can be achieved through redevelopment of under-utilised sites in existing centres, is sufficient to meet business needs well into the foreseeable future. At the neighbourhood level, however, the establishment of new local centres and some expansion of existing centres may be justified because of population growth in their individual catchment areas.

Generally speaking it will be important from an economic efficiency standpoint that the rate of commercial development remains in step with future population and tourist growth so that an oversupply of retail floor space does not eventuate.

To further minimise the danger of a future oversupply of retail floor space, a regional hierarchy of commercial centres needs to be established through co-ordination between Gold Coast City and Albert Shire Councils to ensure the orderly development of individual centres, the economic provision of roads and other services and to maximise choice and convenience for residents and visitors. Such a hierarchy would also enable developers and shopkeepers to invest with confidence in the knowledge that the pattern of competition will be geographically fixed.

The Strategic Plan only deals with the Gold Coast segment of the hierarchy and because of the significant influence of visitor expenditure in the City, the various centres within the hierarchy are more appropriately identified by their function rather than limiting them to a fixed floor area.

Strategy

The key elements of the Commercial Strategy are shown in the Commercial Strategy Diagram. The strategy envisages Southport as the Primary Regional Centre for the Region but recognises that it will take the combined efforts of the Council, the State Government and the private sector to promote future development in line with this objective. Southport’s primary role is supported by a descending hierarchy of lower order centres at the regional, district and local levels. Related aims for each of these centres propose that they will remain readily accessible to their trade catchments by progressive improvements to road networks and car parking facilities, and that their attractiveness be enhanced by better quality architecture and urban design.

The Council will give encouragement to new private enterprise development and redevelopment in Southport in order to strengthen its existing range of retail, commercial and government administration services. The existing Comprehensive Development Zone will be expanded. The feasibility of promoting better use of the Broadwater as a recreational resource and visual asset will be investigated so as to enhance the attractiveness of Southport as a shopping and leisure centre for both residents and tourists alike. It is considered that Southport is well located in relation to existing and future urban development throughout the Gold Coast Region and that its strategic location should be reinforced by highway and railway development in the future. Southport should be regarded as potentially the main tertiary employment node at the southern end of the emerging Brisbane/Gold Coast metropolitan corridor.

No further regional centres beyond those currently zoned are considered necessary as existing zoned areas are sufficient to provide for this type of centre within easy access of all residential areas. Designated regional centres at Broadbeach and Coolangatta are supplemented by major retail centres outside the City at Pacific Fair and Tweed Head sentence. Commercial development in Surfers Paradise coupled with office and administration facilities at Bundall form in effect another designated regional centre. Consolidation of existing regional centres will be encouraged through Development Control Plans which will also acknowledge their significant regional tourist function. Additional regional centres will eventually be developed at Harbour Town and Burleigh West. The size of these centres should be closely geared to population levels in their trade catchment by appropriate staging of construction.

Scope exists for a new district centre at Arundel to service population growth now occurring in the north-west sector. The existing commercial area of Palm Beach will be allowed to expand westwards to provide more room for support functions, such as offices and those “fringe” retail uses requiring large floor areas and relatively low rent levels, including showrooms and furniture stores. Similar expansion provision will be made at Tugun because of population growth currently occurring in residential areas to the west and south-west, mostly in Tweed Shire. No other district centres are envisaged within the City as existing zoned areas are considered sufficient to meet the convenience shopping needs of the existing and future population.

New local shopping centres will be restricted to sites presently zoned for commercial development unless it can be demonstrated there is a local convenience need not adequately met by existing or designated centres. In order to maintain an appropriate hierarchy of commercial centres at the local level, shopping centre development will be precluded from some designated local centres and where approved in others will not be permitted to expand to encompass district centre functions.

Commercial ribbon development along the City’s major roads will continue to be a contentious issue that is likely to persist since commercial competition dictates that businesses seek to maximise main road exposure and access. The Council will restrict such development to designated areas and impose development provisions to ensure minimal impact upon amenity and road capacity.”

Mr Humphreys pointed out that there is no clear guidance in the Commercial Strategy as to the planned scale of a regional centre. The Commercial Strategy with respect to regional centres states that:

“The preferred dominant land use is high order comparison shopping as well as major administrative and commercial business functions. The retail component will normally include at least one major department store. Some regional centres will maintain a strong bias towards meeting the needs of tourists for shopping, hotel accommodation, serviced apartments, food services and entertainment, with the built form developing a special character reflecting the greater inter-mixture of uses.

Other development which may be suitable in regional centres includes specialised retail development such as showrooms, recreational facilities, residential development including visitor accommodation as well as major community and public transport facilities. In some instances it may be appropriate for particular development to locate at the periphery of regional centres or in nearby commercial centres which complement the primary functions of the regional centre. Such development may include those with large floor area requirements or with characteristics not suited to a more central location.

Development in these areas will be required to accord with the provisions applicable to the zoning of the land and any relevant development control plan.

The following objectives have been identified for Regional Centres:

(a) To consolidate and reinforce the role of regional centres as major locations of business activity and employment and to encourage the orderly growth of such centres.

The Council considers it important that regional centres be sufficiently numerous and well located so that they provide a wide range of consumer services in convenient proximity to residential areas throughout the City. Such centres are key elements in differentiating the overall pattern of urban development. They are also areas of substantial public and private sector investment and so their role should also be protected from this point of view. To this end the Council will initiate Development Control Plans aimed at improving the physical and functional characteristics of regional centres through the use of architectural and urban design guidelines, specified performance standards and development incentives. Since there is ample land zoned for commercial development at the regional centre level, the Council will not favour applications to extend existing commercial zones in regional centres.

…(b) ”

The provisions of the Commercial Strategy of the Strategic Plan may be varied or refined by applicable Development Control Plans (DCPs). The Southport DCP No. 1 provides for the detailed planning of Southport as the traditional business and administrative centre of the Gold Coast region. The Commercial Strategy clearly intends Southport to be the Primary Regional Centre for the region supported by a descending hierarchy of regional, district and local centres. Both Harbour Town and Helensvale are designated under the Commercial Strategy Diagram and Strategic Plan Map as regional centres. Doubt has been expressed by some of the town planning consultants (in particular Professor Brannock) as to whether the existing Harbour Town development or the proposed Harbour Town has achieved or will achieve a Regional Centre. There is some basis for the reservations expressed in this regard in that, in my opinion, it cannot fairly be said that Harbour Town either presently provides or under the proposal will provide a wide range of consumer services as envisaged under Part 1-14 of the Commercial Strategy.

It may also be questioned whether the proposal will provide major administrative functions as envisaged under the strategy. Although Mr Humphreys, in advocating the consistency of the proposal with this criterion, pointed out that major administrative functions could reasonably be expected to establish over a period of time once the proposal had been constructed, I am of the view that it is reasonable to expect that such functions should have been more evident under the existing development and that there should certainly be a more structured timetable for their establishment under the proposal.

Mr Humphreys contended that Harbour Town fits into a distinct and complementary role in relation to Southport, because of the nature of the retailing and other services offered. There may be a degree of cogency in this contention, although it must be remembered that the proposed retail development is not restricted to brand-direct functions because the nominated development parameters refer only to the general purposes of shops and retail showrooms. If the proposal is approved it will result in a centre having a gross lettable floor space of 91,477m² which represents a 62 per cent increase on the size of the existing Harbour Town Centre. As a consequence, Harbour Town would become one of the largest retail shopping centres on the Gold Coast and the largest single showroom centre in Queensland. However, it would lack the major administrative, business and community functions required of a Regional Centre under the Planning Scheme. It would also fail to fulfil the requirements of a Major Business Centre under the Transitional Planning Scheme for Albert Shire. In this regard I note that the intent (s.1.4.12.1 of the Strategic Plan for the former Albert Shire) for Major Business Centres includes higher order retailing, business, administrative, entertainment, cultural and other community facilities. The provision of high-order retailing, commercial and community services is promoted by Major Business Centre Objective 1 (s.1.4.12.2).

The evidence of Professor Brannock in relation to the deficiency of the proposed development with respect to its functional components intended for Regional Centres (under the Transitional Planning Scheme for Gold Coast City) and for a Major Business Centre as intended under the Transitional Planning Scheme for Albert Shire, is compelling. He points out that the existing Harbour Town development includes only a small component of office tenancies (approximately 1,700m²). The only real business premises at the centre include branches of the National Australia Bank and Suncorp Metway together with offices for Leonie Green & Associates and the centre management. Professor Brannock notes that the proposed extensions fail to incorporate any major administrative or commercial business functions and that both the existing and proposed centre will not include any major community facilities. He further notes that at present the only community facilities at the centre include Australia Post, a dental practice, a medical practice, an optical practice, an orthodontist practice and a church. These, I accept, constitute relatively small-scale community services and not major community uses such as a library, Centrelink offices, community hall and similar facilities. No major community facilities are intended to be incorporated in the proposed extension.

The failure of the proposal to provide suitable community, business and administrative functions contravenes, in my opinion, the intent and objective (a) for Regional Centres (Part 1-14) of the Transitional Planning Scheme for Gold Coast City and the intent and Objective 1 for Major Business Centres (ss. 1.4.12.1 and 1.4.12.2) of the Transitional Planning Scheme for Albert Shire. To this extent I accept that the proposal for a heavily retail-dominated centre at Harbour Town is likely to frustrate the intents of the Transitional Planning Schemes for the City.

In reaching this conclusion, I do not overlook the submissions of Senior Counsel for the appellants which emphasise that the 1994 Planning Scheme does not prescribe a size for regional centres or other centres with the exception of Runaway Bay which is envisaged as a district centre not exceeding 30,000m² (excluding the hotel). I note also that the 1994 scheme does not provide that all regional centres must be alike in the range of functions they provide or in their character. As recognised previously the 1994 scheme identifies the various centres by function rather than by limiting fixed floor areas.

The Albert Shire Planning Scheme also expressly refrains from specifying floor sizes for centres and envisages that centres are not intended to be the same size (s.1.4.12.2). The scheme provides that Major Business Centres are to serve populations ranging from 30,000 upwards whereas the Gold Coast scheme is silent on the population intended to be served by centres.

The Activity Centre Strategy was written in 1997 and adopted by the Council as a policy in April 1998. Like the 1994 Gold Coast scheme and the 1995 Albert Shire scheme, the Activity Centre Strategy predates the development of Harbour Town and says nothing specific about the existing Harbour Town Centre. The strategy is not a retail strategy and does not seek to establish a retail hierarchy. It has some relevance as it has been adopted by the Council as a planning study for the draft scheme.

The strategy recognises an existing oversupply of retail facilities and notes that:

“current plans for retail facilities at Harbour Town and Helensvale will significantly exceed the projected demand over the next 15 years.

The situation on the Gold Coast is that there is not only a discernible oversupply of retail floor space but existing centres are either proposing or envisaging retail expansions. Tourist retail expenditure should not be granted an ‘ecumenical’ status whereby all centres are enhanced by the prospect of additional floor space based on tourist expenditure. The key tourist areas of Surfers Paradise, Pacific Fair, Broadbeach, etc. have both the capacity and sites…to accommodate much of the future tourist retail expenditure. By contrast, many of the centres listed above are residential catchment based and unlikely to require significant additional retail facilities for tourist retail activities.

In this regard, any retail strategy should aim to direct future functional retailing into the appropriate locations and centres and neither convey the impression nor permit an inflated carte blanche of retail space to be distributed among all centres.”

Table 4.8 on p 66 of the Activity Centre Strategy (Supporting Study) illustrates the 1996 and 2011 population figures for the estimated sub-regional catchment for the major retail centres on the Gold Coast and the consequent demand for retail facilities. The population difference between those dates in the case of Harbour Town/Runaway Bay is given as 6,033 which would give rise to an additional requirement for retail floor space of 10,859m². Thus, the proposal to extend the Harbour Town centre would seem to be considerably in excess of any reasonably anticipated demand for additional retail floor space. The study identifies Robina, Nerang, Beenleigh and Coomera as the retail precincts likely to generate the greatest need for additional floor space; Harbour Town is not mentioned in this respect.

The long-term future employment activity strategy for the Gold Coast region (s.6.2 of the Activity Centre Strategy (Supporting Study)) relegates Harbour Town to the position of a Sub-Regional Centre with a catchment of between 40,000 people and 60,000 people. The justification for this is that:

“The catchment based centres generally follow a hierarchical structure and as a consequence should desirably be located to maximise the community’s accessibility to the functions and services they provide…”

A nominal retail floor space of between 20,000-40,000m² together with a nominal office floor space of 15,000m² with a core area footprint of approximately 25 hectares is recognised as appropriate for a Sub-Regional Centre by the Activity Centre Strategy.

The strategy envisages in respect of a Sub-Regional Centre (p VI) sub-regional retail facilities between 20,000m²and 40,000m²including a Discount Department Store, full line supermarket and speciality support retailing, together with secondary retailing including auto sales and bulk retailing. The strategy considers that:

“Harbour Town has potential for development of around 80Ha which would clearly be sufficient to accommodate the intended sub-regional role and functions intended for it. Planning for the attraction and implementation of activities which encompass the full range of employment, services and facilities should be the focus for the future development of Harbour Town…”

Finally, in this regard, it should be noted that the Activity Centre Strategy does not mention Harbour Town in the list of future activity clusters.

The Draft Gold Coast City Council Town Planning Scheme 2002 contains a number of provisions which are of relevance to the proposal. The Gold Coast Economic Development Strategy in s.4.2.1 recognises that the Gold Coast economy is currently based largely on tourism and population growth from migration, which are not considered sufficiently robust to guarantee sustained growth. The strategy accordingly focuses on the development of new productive activities that draw wealth from outside the local areas to balance the existing businesses which are largely consumption-based. S.4.2.2 City of Gold Coast Activity Centres Strategy seeks to integrate economic activity in residential areas partly by establishing a hierarchy of catchment-based service centres.

Desired Environmental Outcomes and Performance Indicators (Part 2, Chapter 1) identifies two broad types of business centres which essentially service the existing and planned urban structure. Firstly, there are the retail and service centres, which are largely consumption-based, and which accommodate the needs of a particular catchment (Activity Centres). Secondly, there are the major concentrations of specialised business activity, such as the industrial precincts, which are largely production-based and located to meet particular business sector requirements (Activity Clusters).

The planning objectives to support both types of business centres identified in DEO Econ-4 include the following:

“Econ-4.1 to facilitate the provision of a hierarchy of viable, catchment based retail and service centres that maximise accessibility to the full range of goods and services.

Econ-4.2 to facilitate the development of a range of specialised Activity Clusters that maximise the economic advantages, resulting from the agglomeration of complementary business activities in desirable locations.

Econ-4.3 to maximise the viability of all Activity Centres, by discouraging incompatible development within the centres and by precluding the development of competing new centres that would erode the catchments of centres within the preferred Activity Centre system.

Econ-4.4 to facilitate the orderly and efficient development of Activity Centres.”

The Activity Centre Strategy in the Draft Plan (Part 3 Planning Strategy, Chapter 2 – Key Strategies p 15 of 65) identifies a role and function for individual centres and relates this to those of other centres within the city, contributing to a coordinated system of Activity Centres for the Gold Coast community. The strategy intends to achieve benefits from the clustering of certain functions, in terms of both economic and cultural considerations. The strategy recognises that the Council has an obligation to ensure that Activity Centres are provided in locations which are convenient to residential catchments. Catchment-based centres consist of nodes of commercial activity, where a relatively wide range of functions takes place. They are defined according to the particular range of functions they contain and the residential catchment size they are intended to service. In this strategy, the location of government and cultural services has a strong determining role on the designation that applies to particular centres. While retailing is considered important to all catchment-based centres, it is not the principal basis for establishing the differential rank of centres in the Activity Centre system.

As noted previously, under the strategy Harbour Town is designated as a Sub-Regional Centre to service a population catchment of between 40,000-60,000 people. Above the Sub-Regional Centres are the regional centres (to service a catchment of between 100,000-120,000 people) and the Key Regional Centres (to service a catchment of between 200,000-250,000 people). The Draft Plan envisages that the latter will contain the highest order cultural, entertainment and administrative services, as well as high concentrations of retail, office and specialist support functions. This range of functions is seen as progressively decreasing with each indicated level, down to the convenience stores, primary schools and community facilities of the Local and Neighbourhood Centres.

Sub-Regional Centres (of which Harbour Town is one) are not expected to contain the range of government, service, community and retail facilities found in Key Regional and regional centres, but are expected to provide a range of services and facilities consistent with the size of their catchment. Ultimately, the Draft Plan (Part 3 Planning Strategy, Chapter 3 – Land Use Themes, p 12 of 22) envisages that Sub-Regional Centres will provide most of the following facilities:

“(a) TAFE facilities;

(b) cinemas;

(c) medical centre and dental centre, potentially incorporating a smaller hospital;

(d) Sub-Regional retail facilities up to 40,000m² in size including a discount department store, full line supermarkets and speciality support retailing;

(e) secondary retailing including bulk retailing, automotive retailing and service stations;

(f) medium density residential including mixed use development;

(g) legal referral services;

(h) district library;

(i) Centrelink offices;

(j) secondary, primary and pre-school education facilities;

(k) places of worship;

(l) tourist accommodation;

(m) police station, fire station and ambulance facilities; and

(n) transport node or interchange.”

The strategy notes that Harbour Town Shopping Centre is seeking to establish a niche market based on factory-direct outlets, which offer international and national brand names at discounted prices. The centre has potential to develop as a Sub-Regional Centre that has a specialised retail and commercial identity. The site has approval for a maximum retail floor space of 50,000m².

The centre hierarchy in the Draft Planning Scheme is further refined by the detailed planning provided through Local Area Plans (LAPs). The Draft Coomera Town Centre LAP is contained in Chapter 2.9a, Part 6 of the Draft Planning Scheme. The intend of the LAP is to assist the Coomera Town Centre to achieve its potential as a Regional Activity Centre servicing the Coomera locality and the wider regional community of the Albert Corridor (s.1.0). The LAP area includes Town Centre Core and Showroom/Commercial Precincts, amongst others.

The Helensvale Town Centre LAP is contained in Chapter 2.14, Part 6 of the Draft Planning Scheme. The intent of this LAP is to assist the Helensvale Town Centre to achieve its potential as a Sub-Regional Activity Centre (s.1.0). The LAP area is divided into precincts which include the core area of the Town Centre and a frame area which accommodates retail showroom/bulky goods retailing.

The Southport LAP is contained within Chapter 2.22, Part 6 of the Draft Planning Scheme. The intent of this LAP recognises and implements the designation of Southport as a Key Regional Centre in the Regional Framework for Growth Management and also acknowledges and supports the historic role of Southport as a commercial and administrative centre. The precincts of the LAP area include retail and showroom function.

As indicated previously, Lot 709 is included in the Integrated Business Domain under the Draft Planning Scheme and part of Lot 710 is included in the Fringe Business Domain. The term “domain” is introduced in Part 5 Chapter 1 s.1.0, p1 of 6 of the Draft Plan to identify those areas of the city with a particular use mix or development character (or that have potential in this context) that will benefit from the application of consistent planning guidance and development control. S.4.0, p2 of 6, explains that the domains are closely related to the Land Use Themes identified in Part 3, Chapter 3. The domains are said to provide the key to the assessment status of individual development proposals within their subject areas. The controls, included in each domain, provide guidance for the assessment of a development proposal and translate the objectives and intent of the Land Use Theme into land use and development provisions. Each domain contains a specific code (place code) for the purposes of assessing development applications within its subject area.

The relationship between the domains and the Land Use Themes is relatively direct. The Table to s.4.0 indicates the relationship of the Land Use Themes and their expression into planning measures through the domains. Thus the Integrated Business Domain is directly relevant to the Urban Residential and Major Activity Centres Land Use Themes, while the Fringe Business Domain is directly relevant to the Urban Residential, Industry and Major Activity Centres Land Use Themes.

S.4.7 (Part 5 Domains, Chapter 1, Section 2 – Using Domains, p2 of 5) provides as follows:

“All uses, included in Section A: of the Table of Development, may be considered as appropriate for the domain to which the Table of Development applies, subject to each use meeting the relevant assessment criteria. Any use, not listed in A: of the Table of Development, should be considered as undesirable or inappropriate in the domain, to which the Table of Development applies. Any Material Change of Use, not individually listed in Section A: of the relevant Table of development, will be treated as impact assessable, except where this would conflict with the provisions of Schedule 8 of the Integrated Planning Act.”

The intent of the Integrated Business Domain is:

“to accommodate a concentration of larger convenience and shopping centre facilities together with a wide variety of other activities including office uses and higher order business, personal and community services, entertainment and recreational facilities and government services within locations convenient to the city’s population and to the catchments of individual centres. The individual centres, within the Integrated Business Domain will be of the size which respects the relative functions of the different centres within the city’s activity centres system.”

The table of development for this particular domain provides that showrooms are self-assessable development whereas shopping centre development is impact-assessable.

That part of Lot 710 which is included in the subject proposal is almost entirely included in the Fringe Business Domain. The intent of that domain is:

“to provide for commercial areas specialising in showrooms and bulky goods outlets to locate at the periphery of major activity centres and on major arterial routes within the built-up areas of the city. This domain is intended to provide for a limited range of activities, including light industrial uses that are not easily accommodated in the traditional activity centres. Key objectives include:

(a) ensuring that fringe business areas are complementary to existing and proposed activity centres in the city’s adopted system of activity centres;

…

(d) providing adequate land for the development of showrooms and bulky goods outlets to meet the needs of residents, visitors and businesses in the Gold Coast.”

The table of development relevant to the Fringe Business Domain indicates that showroom is self-assessable development, however, shopping centre development is not mentioned at all.

These provisions reflect an intention to preserve a degree of relativity for individual proposed developments that complies with the hierarchy in the City’s activity centre system. In particular, performance criterion PC8 requires the size of each individual integrated business centre not unreasonably to threaten the viability of other existing and proposed integrated business centres at the District, Sub-Regional, Regional and Key Regional/Metropolitan Activity Centre levels in the City’s activity centre system (Part 5, Chapter 2.7 – Integrated Business Domain, p14 of 17).

The acceptable solutions (AS 8.1 and AS 8.2) relating to the performance criteria of development requirements with respect to the maximum size of integrated business centres emphasise the importance of maintaining the relativity of the size of centres within the overall hierarchy. Thus AS 8.1 is in terms that:

“The site is located within an integrated business centre designated as a Sub-Regional Activity Centre on Planning Strategy Map PS-4 – Employment, Investment and Service Centres and the total retail floor space of the centre does not exceed 40,000m² and the total office floor space does not exceed 15,000m².”

AS 8.2 is in terms that:

“The site is located within an integrated business centre designated as a District Activity Centre on Planning Strategy Map PS-4 – Employment, Investment and Service Centres and the total retail floor space of the centre does not exceed 20,000m² and the total office floor space does not exceed 8,000m².”

The intents of the two relevant domains make clear that showrooms are self-assessable development. Shopping centre development is either impact-assessable or not listed. There is some weight in the submissions of the fourth co-respondent that the effect of not listing the use in the table pursuant to Part 5, Chapter 1, Section 2, Clause 4.7 is that such use is considered to be undesirable or inappropriate in the domain. Notwithstanding this contention, it seems clear that the provisions of the Draft Plan relating to the domains seek to contain proposals to a size which respects the relative functions of the different centres within the City’s activities centres system. There is no support for the proposed development emanating from the performance criteria and acceptable solutions to which reference has been made. In short, the acceptable solutions nominate 40,000m² total retail floor space as being the limit for a Sub-Regional Activity Centre.

Of some relevance in considering the issue of relativity within the hierarchy of centres are the provisions of the draft town plan relating to the Coomera Town Centre Local Area Plan and the Helensvale Local Area Plan. The intent of the former is expressed to assist the town centre achieve its potential as a Regional Activity Centre (within the city’s system of activity centres), servicing, not only the Coomera locality, but also the wider regional community of the Albert Corridor. (Part 6, Chapter 2.9a – Coomera Town Centre LAP Section 1.0). The LAP seeks to encourage a strong base of government, commercial, retail, residential and entertainment development, supported by core regional services such as secondary and tertiary education facilities, hospital and medical services and civic uses.

The Coomera Town Centre is seen as being of such importance to the future development of the greater Coomera area that it warrants a town centre local area plan intended to provide the detail on how this important area will be developed for the future needs of the surrounding community (Section 2.0).

The desired environmental outcomes are set out in Section 3.0 in part, as follows:

“The achievement of a town centre, which provides a wide range of services and facilities supportive of the broader Coomera area, with an emphasis on tourism and commerce and which:

a) provides a range of retail, civic and commercial uses, appropriate for a regional town centre;

…

g) provides a range of higher order medical, educational and civic uses, for the benefit of the wider Coomera community;

h) provides a range of commercial and appropriate industrial uses, to complement the town centre;

…”

Importantly in the present context is the identification in Section 4.1 of the Coomera Town Centre as a Regional Activity Centre in the Gold Coast City Activity Centre Strategy. As such, it is on the second tier in the commercial hierarchy, after the three Key Regional Centres.

The Coomera Town Centre LAP incorporates nine precincts of which the Town Centre Core is nominated as Precinct 1. The intent for this Precinct is expressed to provide the focus for major retail, commercial, cultural, civic, entertainment, leisure and related development, integrated where appropriate, with high-density residential accommodation as part of mixed use developments. Precinct 6 is showroom/commercial, the intent for which promotes the development of the Precinct as a busy, regional, bulky goods shopping and commercial area. The Precinct is expected to service the needs of the local population and also draw custom from the wider Albert Corridor area.

With respect to the Helensvale Town Centre Local Area Plan, the intent is expressed in terms to provide for the detailed planning of an integrated Helensvale Town Centre. The LAP promotes the economic growth and vitality of the Helensvale area and aims to assist the Helensvale Town Centre to achieve its potential as a Sub-Regional Activity Centre, within the city’s system of Activity Centres. Helensvale is the focus of significant government infrastructure investment which is intended to be complemented by private investment and the location of diverse facilities and services in the Helensvale Town Centre. The LAP has as its intent the promotion of a town centre that integrates retail, commercial, community, entertainment, educational and residential development and the rail transport interchange at Helensvale (Part 6, Chapter 2.14, Section 1.0 p1 of 60).

The desired environmental outcomes are provided for in Section 3. Section 3.1 refers to the creation of an integrated and functional Sub-Regional Activity Centre at Helensvale and Section 3.2 identifies the achievement of a varied mix of services and facilities to support the operation of Helensvale as a Sub-Regional Activity Centre, through the cumulative provision of retail, commercial, community, entertainment, educational and residential development.

The Helensvale Town Centre LAP has been divided into three precincts. Precinct 1 is identified as rail-oriented town centre, the intent for which (Section 5.1.1) proposes that:

“Development within this precinct includes a range of retail, commercial, community, entertainment, educational and residential development. This area will be a hub of activity. Development is to create a modern atmosphere that is innovative and attractive. Retail and tourist activities, entertainment, restaurants and eateries and services, such as chemists, newsagencies, hairdressing salons and other services for residents, are encouraged at ground floor level and within podium levels, to create a vibrant retail core. Residential development is encouraged to develop above ground floor uses. Residential development will be used to single ‘sleeve’ car parking areas and structures and, where appropriate, rear and side walls of non-residential development. The majority of retail floor space will be provided on the southern side of the Gold Coast Highway, in order to provide direct town centre connections to the railway station/transport interchange and therefore enable the development of a transit-orientated town centre. …”

Precinct 3 is described as Frame Area. The intent for this precinct is to provide support services and mixed commercial activities to support the effective functioning of Precinct 1. The preferred uses in this precinct include commercial office space, community and recreation uses, service industry (small scale and within buildings), bulky goods retailing and residential uses. Retail development is to be restricted to showrooms.

The appellants have proposed a draft condition attaching to the development in order to allay various concerns expressed by the respondents. The effect of the proposed condition as suggested by the appellants is to take the proposed development outside the existing or proposed retail hierarchy. The proposed condition is in the following terms:

“Lewiac – Draft Condition

The 10000 square metres of shop identified in the Plan of Development are to function as outlet stores. For the purposes of this condition, outlet stores are defined to mean premises primarily or substantially used for the sale of surplus, end or out of season or discontinued, seconds, end of run, superseded, outlet specific, factory direct, discounted or like merchandise.”

I have grave doubts as to whether such a condition may lawfully be imposed. In Comiskey v Pine Rivers Shire Council & Ors [1996] QPELR 158 Skoien SJDC stated:

“The next unusual circumstance is that the nature of the proposed development remains shrouded in mystery… It does not appear from the evidence what uses are proposed within the proposed building except that, as I have said, a couple of specified uses have been expressly disclaimed. It was submitted that should a rezoning to Commercial occur, conditions could be imposed prohibiting those uses.

In the absence of any such prohibition the land, if rezoned to Commercial, could be put as of right to any of the uses set out in Column 3A of the Town Planning Scheme without any consent by the Council being called for. It could also be put to any of the uses in Column 3B of the Scheme without Council consent but subject to conditions.” (at 160)

His Honour continued, after referring to Cain & Anor v Pine Rivers Shire Council (1975) 33 LGRA 150, Ponton v Brisbane City Council (1970) 25 LGRA 73 and Transcontinental Development Pty Ltd v Pine Rivers Shire Council [1969] 25 LGRA 7:

“It follows therefore that a rezoning of the subject land to the Commercial Zone would mean that any of the Column 3A and 3B uses could eventuate. Even if Mr Comiskey gave to the Court an undertaking, binding on him, not to put the land to certain uses it is very doubtful that the undertaking could effectively bind a successor in title. An undertaking to extract a similar undertaking from a purchaser would be unwieldy…” (at 161)

In Ponton (supra) Mylne DCJ stated at 77:

“…once a piece of land is rezoned it is rezoned for all purposes and it appears extremely doubtful that an approval to rezone can be granted limiting the rezoned land to a certain use or uses and prohibiting other uses which may be carried on in the particular zone without the consent of the council.”

His Honour repeated the thrust of these observations in Cain (supra) at 155 when he stated:

“…in making a decision on rezoning the Court must have regard to all the uses that may be conducted without the consent of the Council…in the event of rezoning could result in the sites being used for a purpose inimical to existing uses particularly the residential development.”

In Transcontinental Development (supra) at 12 Mylne DCJ stated:

“To impose a condition restricting in the proposed zone a use of land that may be conducted without the consent of the council in that zone would be contrary to the town planning scheme and therefore unlawful.”

A similar conclusion was reached by the Full Court of South Australia in G Rossetto & Co Pty Ltd v Superintendent of Licensed Premises & Ors [1982] 29 SASR 337 with respect to the power of the Licensing Court to impose a condition which would have the effect of abrogating the characteristics of a liquor license created by the Licensing Act. King CJ (at 340) stated:

“Whatever may be the extent to which the power is available to vary the scope and conditions of a licence of a particular class prescribed by the section creating that class of licence, it cannot extend to the imposition of conditions which are in direct conflict with provisions of the Act.”

Sangster J (at 344) agreed that:

“…the Licensing Court is clearly not empowered under the guise of imposing conditions to abrogate the basic characteristics of a particular licence as laid down by the Act itself.”

The decision in Rossetto was followed by the Full Court of South Australia in Lukin Enterprises Pty Ltd v Director of Fisheries [1986] 42 SASR 463 where it was held that the Director of Fisheries could not impose upon a licence to engage in fishing activities, including the taking of tuna and salmon, a condition which prohibited the taking of salmon. White J (at 468) stated:

“…where the Act empowers the Director to grant a licence of an indivisible kind, he is not, in the absence of express power, entitled to impose a condition which deprives the licensee of an integral part of the indivisible licence originally granted.

…the regulation constitutes the activities of taking tuna-and-salmon as one indivisible fishery and authorises the licensee to do so. The Director cannot, by the side-wind of imposing a condition, repeal or vary the regulation or substitute some other type of ‘prescribed’ fishery.

It follows from the above that the condition…is void and of no effect.”

King CJ (at 470) stated:

“The Director sought to limit the authority of the licensee to exercise his rights under the licence by imposing a condition prohibiting the taking of salmon. To my mind this purported condition was repugnant to the tenor of the licence and to the statutory provision under which it was granted and is therefore not authorised by the power to impose conditions contained in [the Act]. The purported condition which is challenged in these proceedings is therefore void.”

Von Doussa J (at 475-6) stated:

“The decision in Rosetto [sic] is…an example of the simple yet fundamental proposition that a subordinate power to impose conditions given by an Act or regulations cannot be exercised in a manner inconsistent with or repugnant to the substantive provisions in the enabling legislation.

…

A condition which forbids absolutely one of those fishing activities is in direct conflict with the authority which [the Act] and the Regulations bestow on the licence holder.

The power to impose a condition upon the right to exercise an authority implies that the authority will nonetheless continue to exist so that the condition may operate upon it. If the Director had the power to impose a condition prohibiting completely the exercise of the authority otherwise given by the licence, that authority would not be subject to a condition – it would have ceased to exist. …[a] breach would not arise from the quantity of salmon taken, or the mode, time or place of the taking, but from the very fact of taking a salmon fish. So in no circumstances would the condition permit the lawful exercise of the fishing activity authorised under [the Act]. There is complete conflict between the grant of the right and the prohibition against its exercise. The condition in its absolute terms is repugnant to the licence itself.”

It is irrelevant that the appellants have consented to the imposition of the proposed condition. Consent cannot, in these circumstances, confer the power upon the planning authority to impose such a condition. Thus, in City of Bradford Metropolitan Council v Secretary of State for the Environment & Anor (1986) 53 Property Planning and Compensation Reports 55 the Court held that the relevant condition was ultra vires regardless of consent by the applicant to the condition. Lloyd LJ (at 64) stated: “the willingness of the developer is irrelevant. Vires cannot be conferred by consent.”

Were a condition such as that proposed to be upheld, an application could be made at any time to have it set aside. (See Rowlands Surveys v Council of the City of Thuringowa [1993] QPLR 217 per O’Sullivan DCJ). Nor would a Council be estopped from claiming in a subsequent case that a previous approval was invalid. (See Seymour CBD v Noosa Shire Council [2001] QPEC 066 per Robin QC DCJ).

The proposed condition, in my view, is invalid and should be set aside.

It may be said, at the very least, that there will be significant difficulty in enforcing the condition. As Mr Buckley observed in his evidence, the proposed condition, if put into place, would effectively mean that the Council assume the role of stock controller for the Harbour Town Shopping Centre.

The difficulty of enforcing or supervising a condition such as that proposed was recognised by Wilcox in The Law of Land Development in New South Wales (The Law Book Company 1967) at 399-400 “Enforcement of Conditions” where the author states:

“Where conditions are capable of being complied with once and for all there is generally little problem in enforcement. Normally such conditions relate to the erection of a building and the council has it in its own hands to insist that any building application shall comply with the conditions. Even where no building approval is required the council can generally ensure, if necessary by injunction, that the development is not commenced until such time as the conditions are satisfied.

The real enforcement problem arises in the case of continuing conditions – conditions which apply day by day whilst a particular building or parcel of land continues to be used for the approved purpose. The difficulty is not a legal one; it seems clear that failure to abide by the conditions is an offence and that, if persisted in, the failure will entitle the council to obtain an injunction restraining the owner from using the building or land except in accordance with the conditions. Rather, the problem is one of policing the conditions: a problem rendered more difficult where the individual breaches, although cumulatively important, are of minor significance. The garnering of satisfactory evidence of breaches may occupy the time and energies of council’s servants to an extent which the council cannot afford especially where it is necessary to make inspections at inconvenient times or in a remote part of the council’s area. In such a situation there is a strong temptation upon a council to turn a blind eye to the breaches – a temptation only likely to be resisted where the persons adversely affected by the breaches are sufficiently numerous, influential or vociferous. Perhaps for these reasons the Land and Valuation Court has, in recent years, displayed an increasing reluctance to impose conditions regulating the day to day conduct of approved developments – a development only acceptable on such terms should be refused.”

In my view the attempt by the appellants to lessen or avoid the impact upon the hierarchy of centres by the proposed condition cannot be supported having regard to the matters discussed above. It should be set aside as being an invalid restriction upon the uses of land that may be conducted on the site without Council’s consent. It is, furthermore, also likely to be unworkable notwithstanding the support given to it in the evidence of Mr Humphreys.

The impacts on the centre hierarchy of the proposed development cannot, in my view, be supported by reference to the Draft Planning Scheme. It should be remembered that Harbour Town is designated as a Sub-Regional Centre in both the Activity Centre Strategy (supporting study) and the Draft Planning Scheme itself. The nominated maximum threshold for retail floor space within Sub-Regional Centres as set out in the Activity Centre Strategy (table B.1, appendix B) is 20,000m²-40,000m². The amount of retail floor space indicated for a Regional Centre is 40,000m²-60,000m² and for a Key Regional Centre is 100,000m². Section 11.5, Chapter 3, Part 3 of the Activity Centres Land Use Theme indicates that Sub-Regional Centres will ultimately provide retail facilities up to 40,000m² in size including a discount department store, full line supermarkets and speciality support retailing as well as secondary retailing in the form of bulk retailing. The indicative uses nominated for each level of centre in s.11.0, Part 3, Chapter 3 (Activity Centres Land Use Theme) of the Draft Planning Scheme includes bulk retailing or retail showroom activity within District, Sub-Regional, Regional and Key Regional Centres. The LAPs for the proposed Coomera and Helensvale Centres and the Southport Centre include showroom precincts.

The existing Harbour Town Shopping Centre mainly comprises retail floor space. The proposed development seeks to further expand this retail floor space by 35,000m². The proposed expansion of Harbour Town will result in a development with a total lettable retail floor space of 89,777m², including the cinema complex, and 83,777m², excluding the cinema complex. Thus, the total volume of proposed retail floor space is more than double that anticipated for a Sub-Regional Centre and is more appropriate for a Key Regional Centre. Even if one assumed that the proposed threshold of 10,000m² is strictly adhered to for retail shopping purposes, the primary retail shopping floor space at the centre would still be 58,777m². In addition to this the amount of retail showroom floor space proposed will result in Harbour Town becoming the largest single showroom centre in Queensland and therefore providing the highest order of secondary retailing. The proposed centre will require support from a large trade area in order to be viable. However, the extended development would still not incorporate the level of community, administrative/government and higher order retailing uses required to achieve the role of a Sub-Regional Centre under the Draft Planning Scheme. If approved, the proposed centre would, I am satisfied, adversely impact upon and undermine the centre hierarchy as envisaged under the Draft Plan.

In particular, the proposal would be contrary to:

i. The Summary Findings and Recommendations, Figures A and B and Appendix B of the Activity Centre Strategy (supporting study);

ii. The following sections of the Draft Planning Scheme:

(a) The Activity Centres Land Use Theme (Section 11.0, Chapter 3, Part 3), and Planning Strategy Map PS-1 and Employment, Investment and Service Centres Planning Strategy Map PS-4;

(b) Activity Centre Strategy (Section 4.0, Chapter 2, Part 3) including AC Policy 1 and its supporting planning objectives AC-1.2 and AC-1.4;

(c) DEO Econ-1 and its supporting planning objectives Econ-4.1, Econ-4.3 and Econ-4.4;

(d) The intent of the Coomera Local Area Plan (Chapter 2.9a, Part 6);

(e) The intent of the Helensvale Town Centre Local Area Plan (Chapter 2.14, Part 6);

(f) The intent of the Southport Local Area Plan (Chapter 2.22, Part 6).

Economic Impact

The economic impact analyses conducted by the consultant economists produced differing conclusions with respect to the anticipated competitive impact of the proposal, and there was, unfortunately, little common ground between Mr Norling (who testified on behalf of the appellants), Professor Kiel (who testified on behalf of the fourth co-respondent) and Mr Leyshon (who testified on behalf of the respondent).

Mr Norling gave evidence that the Gold Coast is one of the fastest growing regions in Australia and whose population is expected to exceed half a million by 2007. Tourism contributes significantly to the Gold Coast’s economy. Harbour Town is located within the northern growth corridor of the Gold Coast and its Trade Area is expected to enjoy annual population growth rates of around five per cent. Harbour Town is one of a number of centres designated to service the higher order needs of this northern corridor between Helensvale and Runaway Bay. Harbour Town has successfully created a special niche for itself amongst its competition by incorporating a mix of factory outlet stores, traditional retail stores, offices, cinemas and a Bunnings Warehouse. The factory outlets are marketed strongly to the tourist and wider day-tripper markets. Whilst the supermarket and other traditional shopping elements of Harbour Town draw residents from the local area, Mr Norling contends that surveys have demonstrated that the largest markets attracted to the factory outlets comprise the tourist and day-tripper markets. Mr Norling sees the proposed extensions of Harbour Town as focusing on the successful factory outlet and retail showroom components of the centre. He suggests that because traditional retail facilities targeting the local trade area are not proposed, potential impacts upon other centres in the hierarchy are thereby minimised. Mr Norling supports the proposed development which he sees as:

(a) consistent with the Planning Scheme’s classification of Harbour Town as a Regional Centre, maintaining a strong bias towards meeting the needs of tourists for shopping and including specialised retail development such as factory outlets and showrooms;

(b) consistent with the Activity Centre Strategy definition of a Sub-Regional Centre as comprising sub-regional facilities of up to 40,000m² (exceeded by less than three per cent) plus retail showrooms;

(c) consistent with the Activity Centre Strategy designation of Harbour Town as a Sub-Regional Centre, providing employment of up to 4,700 persons by 2011. The proposal would extend the employment at Harbour Town from the present 1,500 persons to about 2,700 persons;

(d) consistent with the Draft Planning Scheme designation of the Harbour Town Sub-Regional Centre, which provides sub-regional retail facilities up to 40,000m² (exceeded by less than three per cent) plus secondary retailing such as auto sales and bulk retailing. It is also consistent with the Draft Scheme’s identification of Harbour Town as having a specialised niche market of factory outlets;

(e) not detrimentally impacting upon other existing and planned centres;

(f) not undermining the hierarchy of centres to the detriment of other existing and planned centres, namely Helensvale, Southport, Runaway Bay, Surfers Paradise, Robina, Pacific Fair and Coomera;

(g) satisfying a need by improving the well-being of the public;

(h) reinforcing the tourist appeal of the Gold Coast by enhancing the attractiveness of a major tourist attraction namely Queensland’s largest factory outlet centre;

(i) creating additional jobs on the Gold Coast by attracting a higher level of day-tripper travel and expenditure to the northern part of the Gold Coast from other parts of south-east Queensland and northern New South Wales;

(j) not duplicating the usual retail and entertainment elements of the traditional retail hierarchy of centres;

(k) improving the convenience and accessibility of Trade Area residents to retail showroom facilities; and

(l) broadening the range of discounted merchandise available to members of the public.

Professor Kiel conducted an audit of existing retailing space in the northern Gold Coast and identified 194,000m²in the catchment for a Sub-Regional Centre, 254,000m² for a Regional Centre and 718,000m² for a Key Regional Centre. He then proceeded to break down this retail space into categories of convenience, comparison and bulky goods retailing, allowing the size of the extended Harbour Town to be expressed as a percentage of the total in each category. Professor Kiel concluded that in comparison retailing, Harbour Town will represent 18 per cent of the retail space in that category when considered as a Key Regional Centre and suggests that unless the centre can achieve at least 75 per cent of the outlet stores’ trade from outside the catchment, for Harbour Town retailers to trade viably the turnover of existing retailers will be adversely impacted.

Professor Kiel estimates that bulky goods retailing as proposed at Harbour Town would represent 16 per cent of such retailing space in the Key Regional catchment. However, these retailers require up to 28 per cent of total expenditure in the category for reasonable retail performance, and were this to be achieved, there would be significant adverse economic impact on existing bulky goods retailers.

Professor Kiel further suggests that the extended Harbour Town would also have adverse economic impact on the planned Helensvale shopping centre and thus the retail hierarchy. He considers that should both centres be developed, all retailers in the area, including those of established centres such as Runaway Bay, would be adversely impacted. Should the extended Harbour Town be converted to a conventional shopping centre, with two discount department stores, the centre (as a Sub-Regional shopping centre of this configuration), the centre would have a detrimental economic impact on Runaway Bay Shopping Village.

Mr Leyshon notes that Mr Norling’s assessment of the economic impact of both the proposed factory outlet and showroom retail elements of an expanded Harbour Town primarily deals with each component of additional floor space in a discrete manner. That is, it focuses on the need for and effect of providing additional factory outlet floor space and the need for and effect of additional showroom floor space. However, Mr Norling’s analysis does not examine how an expanded Harbour Town Centre will trade in its totality – taking into account both existing floor space and the floor space proposed to be added in both categories. Mr Leyshon considers that it is a relevant planning consideration to have regard to how an expanded centre will perform relative to other centres in the retail hierarchy or system of centres in any given area.

In relation to Mr Norling’s evidence that the proposed additional factory outlet floor space at Harbour Town will have very low impacts on selected established centres on the Gold Coast, Mr Leyshon suggests that considerably more than 18.4 per cent of the additional factory outlet sales will come from the trade area defined by Mr Norling. The range suggested by Mr Leyshon is from 20 per cent to 35 per cent of the predicted additional annual factory outlet sales ($37.5 million) would come from the identified trade area. This equates to between $7.5 million and $13.1 million per annum. Mr Leyshon further estimates that between $4.9 million and $8.5 million of this will be constituted by spending on clothing and associated products. The capture of this amount in clothing and related spending from the trade area in 2003 is said to be equivalent to between 41.7 per cent and 84.3 per cent of the total spending growth ($11.5 million) projected by Mr Norling for the clothing and footwear categories for the trade area as a whole between 2001-06. Mr Leyshon expressed the view that the capture of such a significant component of the projected increase in available spending between 2001-06 has direct implications for the proposed major new Sub-Regional Centre at nearby Helensvale which will contain a large component of floor space devoted to retailing such products. The actual volume of clothing and related product sales captured by Harbour Town and derived from the trade area in 2003 could range from between $12.7 million and $22.2 million per annum.

Thus, an expanded factory outlet precinct at Harbour Town could, in Mr Leyshon’s view, capture between 19.8 per cent and 34.7 per cent of all available expenditure in the trade area in the clothing and soft goods categories in 2003. He points out that this represents a very high market share which would have major implications for existing and proposed centres which contain major fashion/footwear components such as Australia Fair, Runaway Bay, Robina and the proposed Helensvale Town Centre.

On this basis, while Mr Norling’s conclusion that the overall impact of the proposed additional factory outlet floor space at Harbour Town on the total turnover of selected centres may be relatively low, I accept that it is likely to be of great significance to those retailers operating in the clothing and soft goods sectors and I accept Mr Leyshon’s evidence that it will impact, in particular, on these categories of sales at the discount department stores (K-Mart, Big W and Target) as well as specialist retailers in existing centres such as Runaway Bay, Australia Fair and at the proposed Helensvale Town Centre.

So far as the impact of the proposed expansion is concerned on centres containing showroom retailing, Mr Leyshon notes that Mr Norling’s assessment fails to include reference to components of showroom retail floor space at Coomera/Oxenford, Biggera Waters, Arundel and Andrews. Mr Norling estimates that the proposed addition of retail showroom floor space at Harbour Town will generate turnover of approximately $80 million per annum in 2003 rising to $103 million per annum by 2011. Mr Leyshon’s estimate is that the proposed showroom floor space at Harbour Town would capture between 35.2 per cent and 40.6 per cent of all available spending in 2003 in showroom retailing categories. This is seen as undoubtedly placing significant pressure on existing showroom retail precincts and retailers offering similar products in established centres elsewhere in the Gold Coast. It is also seen by Mr Leyshon as having implications for the development of such retail floor space on the Helensvale Sub-Regional Centre site.

Following the receipt by Mr Leyshon of discovered documents his revised estimation in respect of clothing and related outlet sales was that based on the existing factory outlet sales at Harbour Town and the sales likely to be generated by the increased floor space, the centre conservatively could have total factory outlet sales of $127.7 million in 2003. Mr Leyshon estimates that clothing and related outlet sales could be $83 million with the share of such sales derived from the trade area ranging between $16.6 million and $29 million. Even based on Mr Norling’s data which shows that sales in these categories are likely to be in the order of $64 million per annum in 2003, Harbour Town potentially could capture between 25.9 per cent and 45.3 per cent of all existing sales in clothing and related categories in the trade area by 2003. Mr Leyshon is of the view that this represents an extremely high share, given other centres in the area which also sell such products including Runaway Bay and Southport and also in the context of the proposed Helensvale Sub-Regional Centre.

With respect to retail showrooms, the revised data made available to Mr Leyshon following discovery did not cause him to revise his conclusions in relation to the implications for existing showroom retail precincts and for the Sub-Regional Centre site at Helensvale.

On the basis of the analysis conducted by Mr Leyshon, it is possible that if both Harbour Town and Helensvale proceed as planned by 2004, they could together be seeking to attract some $52.5 million of clothing, footwear, accessories and soft furnishings category sales ($7.5 million to Harbour Town and $45.0 million to Helensvale) from the trade area. However, Mr Leyshon estimates total growth in annual sales in these categories between 2001-06 at only some $31.2 million.

Mr Leyshon contends that the logical implication of this scenario is that up to $21.3 million of sales in the clothing, footwear, accessories and soft furnishings categories will need to be captured from other existing centres in the trade area such as Runaway Bay or Southport. Alternatively, it could result in either or both the Harbour Town and Helensvale centres under-performing.

In Mr Leyshon’s opinion, if both projects proceed by 2006 there will be a clear over-supply of floor space in these categories in the trade area relative to demand – even after factoring in the growth in demand predicted to occur between 2001-06. Mr Leyshon sees this potentially resulting in a number of possibilities including an increase in vacant space in centres, a decrease in rental returns to the owners of existing retail centres, and a disincentive to undertake new development.

The Helensvale Sub-Regional Centre is expected by Mr Leyshon to rely substantially on clothing, footwear, accessories and soft furnishing category sales for its effective operation. Because the centre has been recognised by various planning instruments for a considerable period of time there is some merit in Mr Leyshon’s view that its establishment should not be prejudiced by the expansion claims of the Harbour Town Centre.

Mr Leyshon’s analysis prompts him to forecast that the proposed expansion of Harbour Town will absorb an unreasonable proportion of the projected growth in available spending in relevant merchandise categories between 2000-11 in general and between 2000-06 in particular. This is seen as likely to have adverse implications not only for the sales of established centres such as Runaway Bay, but also for those of proposed new centres including the Helensvale Town Centre and, to a lesser extent, Coomera. Mr Leyshon considers that if the expanded Harbour Town Centre achieves annual sales of about $300 million, this would be far more consistent with the performance of a regional not a sub-regional scale shopping centre. Given the scale and potential capture of sales of the proposed expansion, Mr Leyshon considers that the proposal is inconsistent with the established and planned hierarchy of centres in the northern Gold Coast.

Mr Norling, correctly in my opinion, considers that the issue of economic impact extends beyond the commercial viability of individual businesses. Thus, if shopping facilities presently enjoyed by a community are put in jeopardy, and if the resulting community detriment would not be made good by the proposed development, the economic impact would be a relevant town planning consideration. However, the mere threat of competition to exiting businesses, if not accompanied by the prospect of a resultant overall reduction in the extent and adequacy of facilities, is not a relevant town planning consideration.

The contention by the respondents that consideration must be given to the prospect of the extensions contributing to an increased turnover level at the existing centre is acknowledged by Mr Norling. He responds by suggesting that the traditional retail elements (supermarket and other shops located mostly at the southern end of the centre) are unlikely to benefit significantly from shoppers attracted to the additional factory outlets and retail showrooms. The reason for this, he suggests, is that these two elements attract shoppers for a different type of shopping trip, compared to the grocery shopping trip. I have some concerns with Mr Norling’s approach in this regard in that it is not always possible to precisely identify those elements of a shopping centre such as Harbour Town which directly relate to each other in a functional sense.

Mr Norling has produced a table which purports to summarise the projected economic impact of the proposed extensions upon the centre hierarchy. The table is reproduced hereunder:

Centre
Distribution
Of Impact %

Turnover Impact
$m

Projected Turnover
$m
Estimated Impact on Turnover %

Key Centres:

Beenleigh 1 0.6 180 <1

Southport 19 21.6 500 4

Robina 3 3.8 260 1

Regional Centres:

Coomera 1 0.6 14 4

Nerang 7 7.9 190 4

Broadbeach 5 6.4 450 1

Coolangatta/Tweed 2 1.7 270 <1

Sub-Regional Centres:

Helensvale 4 4.5 180 2

Runaway Bay 3 3.3 180 2

Burleigh 3 3.6 230 1

Palm Beach 0 0.5 150 <1

Specialist Centres:

Surfers Paradise 3 3.6 300 1

Bundall 14 15.9 195 8

Other centres on Gold Coast: 9 10.0 n/a <3

Centres outside Gold Coast: 26 29.3 n/a <1

TOTAL

100

113.3

n/a

n/a

Mr Norling emphasises that the expected rate of population growth on the Gold Coast will increase significantly the available retail expenditure base and turnovers enjoyed by centres from 2001 to 2004 prior to the projected opening of the Harbour Town extensions. He sees this growth as particularly benefiting centres located within the high growth corridors, such as Robina, Coomera, Nerang and Helensvale. The Trade Area retail expenditure base is projected by Mr Norling to increase at a rate of $41.7 million per annum during the 2001 to 2006 period. Tourist expenditure on the Gold Coast is projected to increase by $31.3 million per annum over the same period. Mr Norling contends that this growth would significantly ameliorate the projected impacts in 2004 in terms of the projected growth enjoyed by existing facilities both before the opening of the Harbour Town extensions and subsequent to the opening.

The table shows that expected impacts upon the centre hierarchy range from zero to eight per cent at Bundall. Turnover impacts greater than 15 per cent are considered by the industry as significant. Mr Norling contends that none of the impacts on any of the centres identified in the table are considered to be significant.

With respect to Coomera, Mr Norling does not expect that any significant retail activity will commence there before 2010 due to the low population levels prior to that time. Whilst acknowledging that the retail showrooms proposed for Harbour Town will rely upon the Coomera population for support, Mr Norling contends that the proposal will not prevent retail showrooms from being developed at Coomera when a sufficient population exists there after 2010. By this time, Mr Norling suggests, there will be a sufficient population in other parts of Harbour Town’s Trade Area to compensate for the loss of the Coomera population. He therefore concludes, reasonably in my view, that the proposal will not undermine the ability of a Town Centre to develop at Coomera and operate at the regional level.

Helensvale is likely to see a discount department store and supermarket-based centre operating by late 2003 or early 2004, irrespective of whether the Harbour Town extensions proceed. Mr Norling contends that the proposed extensions at Harbour Town will not significantly impact upon the Helensvale Centre’s turnover because of their specialised nature and function. He concedes that the retail showroom component of the Harbour Town extensions may delay the opening of retail showrooms at Helensvale, but he does not expect this to prevent retail showrooms from developing at Helensvale as part of its sub-regional role. Mr Norling’s view is that (apart from the showroom elements) Helensvale and Harbour Town will cater to different catchments and shopping trips and will be very different from each other. Provided that the specialised nature of Harbour Town continues, this view may be accepted.

Runaway Bay is generally acknowledged to be presently operating successfully at the sub-regional level; no factory outlet stores or retail showrooms are provided at that centre. The opening of Harbour Town almost three years ago had no significant impact upon the centre’s operation according to Mr Norling. He does not consider that the proposed Harbour Town extensions will significantly impact on the Runaway Bay centre and that it will continue to operate successfully at the sub-regional level. In my view that is likely to be so provided that Harbour Town does not assume a more conventional retail identity.

In relation to Southport (a Key Regional Centre) Mr Norling is of the opinion that the scale and breadth of facilities are unlikely to be challenged by the expanded Harbour Town. Mr Norling contends that with respect to shopping facilities, the extended Harbour Town’s retail showrooms represent less than 60 per cent of the scale of equivalent facilities provided at Southport and the extended Harbour Town’s provision of shops equates to only about 45 per cent of the equivalent facilities provided at Southport. Overall, retail facilities at the extended Harbour Town would represent only about half that contained within Southport. Mr Norling suggests that the extensions proposed for Harbour Town are unlikely to prevent a department store from locating at Southport in the future if a suitable operator can be found. The proposal would not, Mr Norling maintains, undermine the Key Regional status of Southport. Having regard to the proposed development of a number of residential and commercial high-rise towers in Southport, this is, I think, a reasonable conclusion, although some adverse effect must be anticipated.

The role of Surfers Paradise as a specialist centre catering to a range of tourist activities is unlikely to be undermined in that role by the extended Harbour Town. Similarly, Pacific Fair is probably not going to have its regional status undermined by Harbour Town if for no other reason than its distance from that centre. Robina Town Centre also serves a different catchment from that of Harbour Town and is unlikely to be significantly impacted by the proposal.

Professor Kiel and Mr Leyshon did not identify particular impacts in their evidence with respect to Robina, Pacific Fair and Surfers Paradise and Mr Leyshon did not assess potential impacts upon Runaway Bay as a result of the expanded Harbour Town. Professor Kiel did not focus on potential impacts in respect of Coomera or Southport. In general, I am unable to conclude that economic impact forms a basis with respect to any existing or proposed centre for refusing approval of the proposal. However, I do hold some concerns with respect to the impact of the proposal on the Ferry Road showrooms at Southport although Mr Leyshon was not prepared to accept that the level of impact would be high. The impact on Australia Fair is likely to be in the region of $3-4 million or about two per cent of that centre’s turnover. Some concern remains that the proposal will threaten the vibrancy of Southport as a Key Regional Centre but the evidence in this regard is not so compelling as to warrant refusing approval in the light of the observations of Stephen J in Kentucky Fried Chicken Pty Ltd v Gantidis (1977-1978) 140 CLR 675 at 687:

“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 jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.”

Overall, the evidence in this appeal does not, in my view, support a finding that any shopping facilities presently enjoyed by any community in the city of the Gold Coast will be jeopardised by the proposed development. I reach this conclusion notwithstanding the evidence of Mr Leyshon and Professor Kiel which I accept does demonstrate that there will be some adverse implications, in the event that the proposed development proceeds, not only for the sales of established centres but also for those of proposed new centres. Those adverse implications, although significant, are unlikely, in my view, to result in an overall adverse effect of such degree as to threaten the extent and adequacy of available facilities to the Gold Coast community.

Need

It is contended by the respondent that there is no planning need, or not sufficient planning need, to warrant approval of the application, particularly in view of conflicts with the planning documents and the hierarchy of centres therein. In resolving the issue of need it is necessary to consider:

(a) the impact on other centres in the hierarchy which have been planned, located and promoted to provide an equitable distribution of facilities to the advantage of the population generally; and

(b) the impact on the hierarchy itself.

It is, in my opinion, (b) which is of major concern in this case.

Need in a town planning sense “does not mean pressing need, critical need, widespread desire or anything of that nature. A thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community”. (See Cut Price Stores Retailers v Caboolture City Council [1984] QPLR 126 at 131). Similarly, need in planing terms “does not connote pressing urgency but rather relates to the general wellbeing of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality.” (See Roosterland Pty Ltd v Brisbane City Council [1986] 23 APAD 58 at 60).

When assessing need, having these concepts in mind, it is appropriate to view them in the context of a planned hierarchy of centres within the framework of the planning documents. Of course, simply because a proposed commercial venture is predicted to be successful does not of itself mean that it is needed in a town planning sense. For example, in Intrafield Pty Ltd v Redland Shire Council [2000] QPELR 337 at 340 McLauchlan QC DCJ was asked to consider an appeal involving a proposed service station and shop. In assessing the question of need His Honour stated:

“Of course convenience for the motorist is a major element in establishing planning need, but in my opinion in this case the evidence does not go further than to show that the proposal would be an attractive and additional choice for some of those motorists. That falls short of showing that the needs of motorists are not at present adequately catered for: William McEwans Pty Ltd v Brisbane City Council (1982) 2 APA 165 at 170; Prime Group Properties v Caloundra City Council (1995) APER 147 at 149. Whether or not the proposal, if approved, would be a viable operation, is a matter hotly contested by the two expert witnesses. If it was, it would achieve this result at the expense of other service stations currently providing the service to the resident’s of Victoria Point and Redland Bay (although it is not suggested that any of these would be rendered ‘uneconomic’). The fact that a number of these commuters would be likely to purchase their petrol supplies and convenience goods at the proposed service station instead of at outlets currently patronised by them no doubt indicates a degree of convenience offered by the proposed outlet in comparison with the existing outlets. This does not, however, in my opinion, of itself demonstrate that there is a demand for the provision of a new facility in the vicinity of the proposed service station. Given an addition to existing choices a number of consumers are likely to avail themselves of it as a matter of human experience. While this indicates a consumer preference, to an extent which is, however, debatable, it does not demonstrate inadequacy in the existing arrangements and therefore falls short of showing a planning need for the development.”

Skoien SJDC in Prime Group Properties Limited v Caloundra City Council & Darracott & Ors [1995] QPLR 147 at 149-150 referred to the principles from Cut Price Stores Retailers (supra) and Roosterland (supra) which I have previously noted. His Honour then continued:

“But

‘The basic assumption must be that there is in existence at the time of the application for rezoning a latent unsatisfied demand on the part of the persons affected by the planning scheme, which is not being met at all, or not being adequately met, by the planning scheme in its present form.’ See William McEwans Pty Ltd v Brisbane City Council (1981) 2 APAD 165.

…

The conclusion I draw from that is that the residents of Caloundra and the visitors (the well-being of whom are also the legitimate concern of the Council) are quite adequately served at this time. So if this service station were to be built it would simply lead some consumers to buy from it rather than from another adequate outlet. A similar conclusion can be reached in relation to the convenience store, there being no evidence of problems with the existing facilities. It seems to me therefore, that all that would happen is that motorists would have the opportunity to patronise one extra service station and convenience store. There is no evidence that products of any different or better type, would be available there.

I do not consider that this mere addition to the consumers’ area of choice falls into the category of ‘improving’ the physical well-being of the community (Cut Price Stores, supra), nor ‘improve the services and facilities available in the locality’ (Roosterland, supra). See also William McEwans Pty Ltd v Brisbane City Council, supra.”

The principles referred to in these cases are to be applied in this appeal against a perceived oversupply of retail floor space within Gold Coast City and the consequent need to ensure that floor space is commensurate with population growth. For example, the Commercial Strategy, parts 1-11 and 1-12 in the Transitional Planning Scheme for Gold Coast City, notes that, “When compared with other cities, the Gold Coast has a relatively high retail floor space standard of 1.50 square metres per head of resident population...the City presently has an adequate supply of land zoned to accommodate office and retail development at the regional, district and local levels in line with expected population and tourism growth and having convenient access to all residential areas.”

The Activity Centre Strategy (Supporting Study) in referring to the shortcomings of the existing employment activity structure (Section IV, Summary Findings and Recommendations, p iii) refers to “an excessive supply of floor space and vacant land zoned for retail uses” and “significant overlapping of the catchments of the hierarchy-based centres, particularly of retailing, and the impact this has upon the efficient and equitable distribution of the range of retail and other services.”

Section 4.5 of the Activity Centre Strategy (Supporting Study) suggests that “the performance of the Gold Coast retail network is in a state of substantial oversupply, with a current estimated per capita floor space of 2.71m². With developer interests likely to be strong in the retail sector, this already high floor space per capita is under pressure to increase even further...It should be noted that current plans for retail facilities [at] Harbour Town and Helensvale significantly exceed the projected demand over the next 15 years...the situation on the Gold Coast is that there is not only a discernible oversupply of retail floor space but existing centres are either proposing or envisaging retail extensions.”

Section 4.5 of the Activity Centre Strategy (Supporting Study) estimates “that the overall growth in the population of the Trade Area would equate to a demand for some additional 328,000m² of retail floor space. The total floor space proposed to be added at Pacific Fair, Harbour Town, Beenleigh, Helensvale and Robina is estimated to approximate 200,000m². The difference between that demanded by 2011 and that proposed is only 128,000m².” The Section states that the retail precincts likely to generate the greatest need for retail floor space are Robina, Nerang, Beenleigh and Coomera. Harbour Town is not included in this list.

According to the Existing System of Centres (Page 16, Chapter 2, Part 3) of the Draft Planning Scheme “The Gold Coast has a large supply of retail and commercial floor space, together with an extensive supply of vacant commercial land, which is capable of being developed for such purposes.”

The proposed development would result in Harbour Town becoming one of the largest retail centres on the Gold Coast. One of the concerns expressed by the expert witnesses (e.g. Professor Brannock) is that the extended Harbour Town centre would not respond to population growth within its preferred catchment and would instead attempt to gain a much wider catchment area. In my view, notwithstanding the arguments to the contrary by those witnesses called on behalf of the appellants, this concern is likely to be well founded. I acknowledge Mr Norling’s conclusion that there is sufficient public need for the proposed addition of factory outlet stores and retail showrooms at Harbour Town. However, the bases upon which he reaches this conclusion fail to consider two significant issues. Thus, Mr Norling suggests that the proposal would:

(a) broaden the range of goods and services available to shoppers at Harbour Town;

(b) capitalise upon the strong level of interest in factory outlet shopping within south-east Queensland;

(c) strengthen Harbour Town as a major tourist attraction on the Gold Coast;

(d) improve the convenience and accessibility of retail showroom tenants to the Trade Area population;

(e) broaden the range of bulky goods available to shoppers at Bunnings Warehouse;

(f) satisfy the strong growth in the retail expenditure market by each of the three catchment areas; and

(g) broaden the range of discounted merchandise available to the public.

There is some evidence to support each of these outcomes and, by themselves and collectively, the outcomes must be accepted as having some benefits. However, as Mr Leyshon suggests, the relevant issues which should be addressed by a needs analysis are:

¨ what share of sales at an expanded Harbour Town centre will be derived from its local (that is, Gold Coast) trade area, and

¨ what is the likely growth in demand within the local trade area for the type of floor space being proposed for addition at the centre?

Mr Leyshon’s criticism of the failure of Mr Norling to discuss either of these issues in his principal report is, in my view, valid.

Professor Kiel acknowledges that need and demand for a proposed retailing development can be determined in a number of ways. One way is to enquire of people in the area (in a properly designed research study) about their retail needs and whether these are being met by the existing local facilities. Alternatively, an investigation may be carried out of existing retail facilities in the area in order to form a judgment as to whether these are equivalent to those available in other comparable areas. Again, an indication of unmet demand may be shown from existing facilities being unreasonably crowded.

Professor Kiel identifies a more objective indication of need and demand by examining the total amount of expenditure available from households in the area and determining the market share of this expenditure which needs to be captured by the proposed development for viable operation. He points out that if the share required is likely to be unachievable or unsustainable, given the existing, and planned, competing retailing facilities, it must be concluded that sufficient need and demand do not exist. Professor Kiel, in undertaking such analysis, used data agreed at the Conclave of Economic Experts, specifically in relation to the retail floor space of Harbour Town, and population and available retail expenditure figures by Statistical Local Area. He estimates that in 2004 Harbour Town would draw from a population of 56,200 as a Sub-Regional Centre, from 101,900 as a Regional centre and from 224,800 as a Key Regional Centre. He estimates total turnover of the extended centre, based on estimates of average retail productivity, extrapolated from the centre’s current performance, as ranging from $250m to $370m. Professor Kiel has then calculated required market shares for viable turnover in each of the catchments, allowing for high levels of sales to tourists and visitors from outside the catchment in the outlet stores. He concludes that there is insufficient demand in the Sub-Regional catchment to support the viable operation of an extended Harbour Town centre, and also that the required market shares in the Regional catchment are high (ranging from 33%-54%) for comparison goods retailing including the outlet stores, and especially high (41%-61%) for bulky goods retailing. Professor Kiel considers that the latter figure is unachievable. Even as a Key Regional Centre, Professor Kiel considers that relatively high market shares are necessary in both comparison goods and bulky goods retailing and that Harbour Town would be unable to achieve the trade area required to function as a Key Regional Centre. Of course, as a Key Regional Centre, Harbour Town would be in conflict with the planned retail hierarchy on the Gold Coast.

I find Professor Kiel’s methodology and data to be sound. His conclusions lead, in my opinion, quite compellingly to the view that an unacceptably large share of sales at an expanded Harbour Town centre will be required to be derived from the Gold Coast trade area and that the likely growth in demand within the local trade area for the type of floor space being proposed for addition at the centre is unlikely to be sufficient to ensure the viability of the centre as either a Sub-Regional or Regional centre.

With respect to the demand for retail showrooms, it should be remembered that the proposed development would add some 23,900m² of retail showroom floor space to the Harbour Town centre. Mr Norling estimates that the Gold Coast currently has some 336,148m² of such floor space, mainly at Southport, Bundall, Burleigh and Andrews. The annual expenditure base for retail showrooms in the trade area is estimated by Mr Norling to increase in real terms from $151m in 2000 to $218m in 2011. This projected growth is estimated by Mr Norling to give rise to an increase in demand for retail showroom floor space of 24,800m² during the period 2000-11. These estimates are said to exclude the amount of floor space which may be attracted back to the trade area but which is presently escaping outside the trade area.

Mr Leyshon takes issue with the correctness of that assertion and points out that the estimates of floor space demand contained in Mr Norling’s report are based on total available spending in the trade area and not available spending net of “escape spending”. Furthermore, Mr Leyshon notes that in relation to the projected growth in demand, sales in the merchandise categories which form the retail showroom expenditure base in Mr Norling’s report, are competed for not only by retail showrooms but also by traditional retailers including discount department stores, department stores and specialist retailers located in traditional business centres. Thus, Mr Leyshon points out that sales in these categories are not captured exclusively by the retail showroom sector but are spread relatively widely across the retail spectrum.

Mr Leyshon concludes that if the proposed development of retail showrooms proceeds, it will absorb all of the potential demand for retail showroom floor space as identified by Mr Norling for the period 2000-11. This will curtail the potential for such space to be developed at Helensvale, Coomera and Oxenford and will affect the sales potential of discount department stores and other specialist retailers and planned centres. I prefer the evidence in this regard of Mr Leyshon to that of Mr Norling.

Bearing in mind that the important consideration when assessing need is that it is the community’s interests as distinct from an applicant’s interests which are to be served by an amendment to a town planning scheme (see Tucker v Brisbane City Council [1999] QPELR 247 per Brabazon QC DCJ), I am unable to accept that there has been demonstrated in this case any need, in the relevant sense, for the proposed development. I cannot detect a latent unsatisfied demand for the retail and showroom facilities proposed which is not being met at all or being adequately met by the planning documents in their present form (see Indooroopilly Golf Club v Brisbane City Council & Ors (No 2) 91982) QPLR 13 at 35 per Carter DCJ as he then was).

Traffic Issues

Although in the light of the conclusions I have reached in this appeal it is strictly unnecessary to analyse the appropriateness of conditions relating to traffic issues, some comments in this regard may be apposite.

Gibbs Holdings Pty Ltd (the third co-respondent), is the registered proprietor of two parcels of land adjacent to Harbour Town (Lot 3 on RP 98234 and Lot 1 on RP 120957). The issues raised by the third co-respondent in the appeal are as follows:

1. The proposal will result in unacceptable changes to the existing traffic and pedestrian access arrangements to the adjacent land owned by Gibbs Holdings Pty Ltd, situated on the western side of Centre View Drive.

2. The adjacent lots owned by Gibbs Holdings Pty Ltd are contained within the general industry zone in the City of Gold Coast Planning Scheme. The intent of that zone is to provide:

“For a broad range of industrial development but primarily industries of a more intensive and potentially intrusive nature than those permitted in other industrial zones.”

The existing and future industrial uses to be conducted by Gibbs Holdings Pty Ltd require vehicular access to the standard provided by the existing Centre View Drive. The modified vehicular access arrangements proposed by the application are not sufficient to accommodate existing and contemplated industrial uses on the adjacent land.

3. The ability of separate tenancies situated within the building constructed on the adjacent Lot 3 to access onto Centre View Drive will be removed.

4. The modified traffic arrangements make inadequate provision generally for vehicular and pedestrian traffic access for the parcels of land situated west of Centre View Drive.

5. The proposal will have an unacceptable impact upon the existing car park provision for the parcels of land situated to the west of Centre View Drive. In particular, the closure of Centre View Drive will result in an immediate and irreplaceable loss of car parking capacity.

These issues ultimately devolved into the question of whether, should the proposal proceed, it should be conditioned to provide access to the third co-respondent’s land equivalent to that which it currently enjoys. Currently, this land has direct access via Centre View Drive to the Gold Coast Highway. Vehicles travelling east along the Gold Coast Highway can turn left into Centre View Drive to access Gibbs Holdings’ land and vehicles departing the land can turn left out of Centre View Drive onto the Gold Coast Highway. The present arrangements are important to the third co-respondent as they provide a high level of accessibility to customers and tenants.

Previously, the present access arrangements were approved by the Main Roads Department (on 7 November 1997), the Gold Coast City Council (on 17 February 1998) and by the Planning and Environment Court (on 10 July 1998). However, in its response of 5 June 2001 to the application, the subject of this appeal, the Main Roads Department indicated that traffic leaving the site should be required to exit by means of the Mota Vu Drive intersection where U-turns from the west would not be permitted. Fortunately, and sensibly, the attitude of the Department changed to the extent that during the hearing of the appeal the Department indicated its acceptance of an access arrangement as depicted in Sketch 3 in Exhibit 17 which has been refined in SK1 on p 7 of Mr Viney’s report (Exhibit 22). This provides an acceptable access arrangement which retains the existing left in–left out access to the Gold Coast Highway for Centre View Drive properties and slightly improves the sight distance (from 102 metres to 124 metres) for egress traffic to the Gold Coast Highway while preventing egress to the Gold Coast Highway by Harbour Town traffic.

In my view the suggested access arrangement would appropriately form a suitable condition were the proposal to be ultimately approved. It enjoys the support of the third co-respondent and is apparently acceptable to both the Gold Coast City Council and the State of Queensland.

I also consider it appropriate, as suggested by both Mr Viney and Mr Beard, to condition the proposal (were it to be approved) to avoid mixing the industrial traffic from the Gibbs Holdings land with the shopping centre traffic on the circulation route within the Harbour Town land unless the road be constructed to an appropriate width standard, i.e. 12 metres between kerbs.

There was general agreement by the traffic engineers, that should the Harbour Town development change its existing and proposed commercial character to uses more retail in character, such change would be likely to result in greater traffic impacts than those which have been presently assessed. Accordingly, should the appeal be allowed, it should be conditioned to ensure the carrying out of further monitoring of the traffic impacts upon State-controlled roads. It is unnecessary at the present time to detail such conditions which would relate to required works at the following intersection and access points:

(a) Mota Vu Drive/Ereton Drive/Gold Coast Highway intersection;

(b) Oxley Drive/Olsen Avenue/Gold Coast Highway intersection;

(c) Harbour Town southern access at Oxley Drive; and

(d) Harbour Town northern access at Oxley Drive.

In general, I am satisfied that there is no traffic issue of such significance that would warrant refusal of the proposal.

Conclusion

The appeal in respect of the proposed development should not, in my view, fail because of the issues relating to economic impact or traffic.

However, in my opinion the proposed development would exceed the level and role intended for the Harbour Town centre in the hierarchy of centres under both the 1994 scheme and the Draft Planning Scheme. More specifically, the proposed development would:

(i) fail to comply with the Transitional Planning Schemes for the City of Gold Coast in that it will not provide a wide range of consumer services as envisaged under Part 1-14 of the Commercial Strategy nor will it provide major administrative functions as envisaged under the Strategy (1994 City of Gold Coast Strategic Plan). Furthermore, the proposed development will not fulfil the requirements of a Major Business Centre (Albert Shire Strategic Plan);

(ii) be contrary to the Summary Findings and Recommendations, Figures A and B and Appendix B of the Activity Centre Strategy (Supporting Study) and the following sections of the Draft Planning Scheme:

(a)   The Activity Centres Land Use Theme (Section 11.0, Chapter 3, Part 3), and Planning Strategy Map PS-1 and Employment, Investment and Service Centres Planning Strategy Map PS-4;
(b)   Activity Centre Strategy (Section 4.0, Chapter 2, Part 3) including AC Policy 1 and its supporting planning objectives AC-1.2 and AC-1.4;
(c)   DEO Econ-1 and its supporting planning objectives Econ-4.1, Econ-4.3 and Econ-4.4;
(d) The intent of the Coomera Local Area Plan (Chapter 2.9a, Part 6);
(e)   The intent of the Helensvale Town Centre Local Area Plan (Chapter 2.14, Part 6);
(f)   The intent of the Southport Local Area Plan (Chapter 2.22, Part 6).

Furthermore, the appellants have failed to establish any sufficient need for the proposed development.

The appeal must, therefore, be dismissed and the application refused.

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CITATION:	Lewiac Pty Ltd & ING Real Estate Joondalup BV v Gold Coast City Council & Ors [2002] QPEC 080
PARTIES:	LEWIAC PTY LTD & ING REAL ESTATE JOONDALUP BV Appellants GOLD COAST CITY COUNCIL Respondent MACQUARIE ASSET SERVICES LIMITED Second Co-respondent GIBBS HOLDINGS PTY LTD Third Co-respondent CFS MANAGED PROPERTY LIMITED & COLONIAL FIRST STATE INVESTMENTS LIMITED Fourth Co-respondent STATE OF QUEENSLAND Fifth Co-respondent WESTFIELD LIMITED Seventh Co-respondent
FILE NO/S:	1169/2001
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court, Southport
DELIVERED ON:	20 December 2002
DELIVERED AT:	Southport
HEARING DATES:	3, 4, 7, 11, 12, 13, 14 June; 13, 14, 15, 16, 19, 20, 21, 22, 23, 26,27, 28, 29 August; 2, 3, 4, 5, 6 September 2002
JUDGE:	Newton DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	LOCAL GOVERNMENT – TOWN PLANNING – application for development permit for material change of use and preliminary approval for building work for development for purposes of “extension to shopping centre development, shops, retail showrooms, service station, takeaway food premises, kiosk/restaurants totalling 35,000m² gross lettable area (in addition to existing shopping centre) generally in accordance with the Harbour Town Plan of Development (as defined)” LOCAL GOVERNMENT – TOWN PLANNING – impact of proposal on centre hierarchy – validity of draft condition designed to take proposed development outside existing or proposed retail hierarchy – impact of proposal on centre hierarchy under draft Planning Scheme – economic impact of proposed development – whether sufficient planning need has been demonstrated for proposed development – traffic issues Cases considered: Cain & Anor v Pine Rivers Shire Council (1975) 33 LGRA 150 City of Bradford Metropolitan Council v Secretary of State for the Environment & Anor (1986) 53 Property Planning and Compensation Reports 55 Comiskey v Pine Rivers Shire Council & Ors [1996] QPELR 158 Cut Price Stores Retailers v Caboolture City Council [1984] QPLR 126 G Rossetto & Co Pty Ltd v Superintendent of Licensed Premises & Ors [1982] 29 SASR 337 Indooroopilly Golf Club v Brisbane City Council & Ors (No 2) 91982) QPLR 13 Intrafield Pty Ltd v Redland Shire Council [2000] QPELR 337 Kentucky Fried Chicken Pty Ltd v Gantidis (1977-1978) 140 CLR 675 Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266 Lukin Enterprises Pty Ltd v Director of Fisheries [1986] 42 SASR 463 Overton & Anor v Redcliff City Council & Anor [2000] QPELR 250 Ponton v Brisbane City Council (1970) 25 LGRA 73 Prime Group Properties Limited v Caloundra City Council & Darracott & Ors [1995] QPLR 147 Roosterland Pty Ltd v Brisbane City Council [1986] 23 APAD 58 Rowlands Surveys v Council of the City of Thuringowa [1993] QPLR 217 Seymour CBD v Noosa Shire Council [2001] QPEC 066 Transcontinental Development Pty Ltd v Pine Rivers Shire Council [1969] 25 LGRA 7 Tucker v Brisbane City Council [1999] QPELR 247 Willispap Pty Ltd v Mulgrave Shire Council [1992] QPLR 51 Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306
COUNSEL:	Mr M D Hinson SC for the appellants Mr S Hughes SC for the respondent Mr E T Morzone for the second co-respondent Mr J Gallagher QC, with him Mr T N Trotter for the fourth co-respondent Mr R S Jones for the fifth co-respondent Mr D Gore QC for the seventh co-respondent (the seventh co-respondent withdrew from the appeal on 23 August 2002)
SOLICITORS:	Freehills for the appellants McDonald Balanda & Associates for the respondent Phillips Fox for the second co-respondent Minter Ellison for the fourth co-respondent Crown Law for the fifth co-respondent Clayton Utz for the seventh co-respondent (the seventh co-respondent withdrew from the appeal on 23 August 2002)

Centre	Distribution Of Impact %	Turnover Impact $m	Projected Turnover $m	Estimated Impact on Turnover %
*Key Centres:*
Beenleigh	1	0.6	180	<1
Southport	19	21.6	500	4
Robina	3	3.8	260	1
*Regional Centres:*
Coomera	1	0.6	14	4
Nerang	7	7.9	190	4
Broadbeach	5	6.4	450	1
Coolangatta/Tweed	2	1.7	270	<1
*Sub-Regional Centres:*
Helensvale	4	4.5	180	2
Runaway Bay	3	3.3	180	2
Burleigh	3	3.6	230	1
Palm Beach	0	0.5	150	<1
*Specialist Centres:*
Surfers Paradise	3	3.6	300	1
Bundall	14	15.9	195	8
*Other centres on Gold Coast:*	9	10.0	n/a	<3
*Centres outside Gold Coast:*	26	29.3	n/a	<1
TOTAL	100	113.3	n/a	n/a