Luke v Maroochy Shire Council

[2003] QPEC 5

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Luke v Maroochy Shire Council & Watpac Developments [2003] QPEC 005

PARTIES:

MELVYN WILLIAM LUKE

COOLUM BEACH PROGRESS AND RATEPAYERS ASSOCIATION INC

STEWART HEIL

CHRISTINE HOGAN

MATTHEW ARNOTT

ALEXA HELENE ARNOTT

ADAM JOHN ARNOTT

STORM RICKARD

ROSS & VICKI RICKARD

ROD & LYNETTE HOLT

MR & MRS JAMES

MR M MAGRI & MISS K BURSAC

J T & L J BARNS & ORS

NOLEEN JOYCE CLARK

GREGORY & KAREN WIDDISON

DEBBIE RYAN

TERRI RAE

MICHAEL RAE

CHERYL COOK

R COOK

MICHAEL GEORGE

ROD HOLT

MICHAEL HARTE

Appellants

v

THE COUNCILOF THE SHIRE OF MAROOCHY

Respondent

and

WATPAC DEVELOPMENTS PTY LTD

Co-respondent

FILE NO/S:

Appeals Nos. 15/2002, 17/2002, 18/2002, 19/2002, 20/2002, 21/2002, 22/2002, 23/2002, 24/2002, 25/2002, 26/2002, 28/2002, 29/2002 30/2002, 31/2002, 33/2002, 34/2002, 35/2002, 36/2002, 37/2002, 38/2002, 39/2002 & 40/2002

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeals

ORIGINATING COURT:

Maroochydore Planning and Environment Court

DELIVERED ON:

10 March 2003

DELIVERED AT:

 Southport

HEARING DATES:

18, 19, 20, 21, 25, 26, 27, & 28 November, and 2 & 4 December 2002

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Appeals dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – CONFLICT WITH PLANNING SCHEME – application for shopping centre and supermarket – land apparently designated for residential development in planning scheme – whether conflict with planning scheme – whether sufficient planning grounds to approve development, despite conflict

PLANNING AND ENVIRONMENT – PLANNING SCHEMES – CONSTRUCTION OF PLANNING SCHEMES – planning scheme to be read as a whole – weight to be given to various parts of planning scheme

Integrated Planning Act 1997

Maroochy Plan 2000

Acts Interpretation Act (1954) s 14A

Cases considered:

Alberton Investments Pty Ltd v Brisbane City Council (1999) QPELR 360

All-A-Wah Carapark v Noosa Shire Council (1989) QPLR 155

Arksmead Pty Ltd v Gold Coast City Council (1999) QPELR 322, at 330 (affirmed on appeal: (2000) 107 LGERA 60)

Barcoo Pty Ltd v Crows Nest Shire Council (1987) QPLR 242

Bell v Noosa Shire Council (1993) QPLR 311

Body Corporate “Greatwood” CTS 19855 v Maroochy Shire Council (2001) QPELR 293

Bower v Brisbane City Council (1990) QPLR 130

Broad v Baptist Union (1986) 2 Qd R 317

Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193
Burmah Fuels (Qld) Pty Ltd v Redland Shire Council (1995) QPLR 103

Castro v Douglas Shire Council (1992) QPLR 146

Craig v Brisbane City Council (1998) QPELR 281

Dalgety Australia Pty Ltd v Brisbane City Council (1981) APAD 340 

Degee & Anor v BCC (1988) QPELR 287

Delaview Pty Ltd v Redland Shire Council (1997) QPLR 250

Drive Type Pty Ltd v Caboolture Shire Council (1995) QPLR 141

Elan Capital Corporation v Brisbane City Council (1990) QPELR 209

Fitzgerald v Logan City Council (1993) QPLR 56

Grosser v Gold Coast City Council (2002) 117 LGERA 153

Harburg Investments Pty Ltd v BCC (2000) QPELR 313

Hervey Bay Projects v Hervey Bay City Council (1993) QPLR 104

Holts Hill Quarries Pty Ltd v Gold Coast City Council (1999) QPELR 415

Intrafield v Redland Shire Council (2001) 116 LGERA 350

Kangaroo Point Residents Association v Brisbane City Council (2001) QPELR 321

Labrador Printing Co Pty Ltd v Albert Shire Council (1995) QPLR 166

Landel Pty Ltd v Redland Shire Council (2000) QPELR 60

Lend Lease v Maroochy Shire Council and Tallenbrook Pty Ltd [2002] QPEC 40

Mitchell v Rockhampton City Council (1982) QPLR 175

Neale v Maroochy Shire Council (2000) QPELR 272

Nordale Management Pty Ltd v Maroochy Shire Council     (1995) QPLR 368 at 370

Pacific Exchange Corporation Pty Ltd v Gold Coast City Council (1998) QPELR 335

Pacific Seven v City of Sandringham (1982) VR 157

Patterson v Hervey Bay City Council (1989) QPLR 184

Phil Fletcher Planning and Investment Services v Brisbane City Council (1991) QPELR 16

Playfair v Maroochy Shire Council (1991) QPELR 87

Prime Group Realty v Brisbane City Council (1995) QPELR 173

Prime Group Properties v Caloundra City Council (1995) QPLR 147

Provincial Securities Pty Ltd v Brisbane City Council (2001) QPELR 143

Real Property Consultants Pty Ltd v Brisbane City Council (1999) QPELR 455

Queensland Adult Deaf and Dumb Society v Brisbane City Council (1972) 26 LGRA 380

R v BCC ex parte: Read (1986) 2 Qd R 22

SEAQ vWarwick City Council  24 LGRA 391

Sheezel v Noosa Shire Council (1980) QPLR 130

Skateway Pty Ltd v Brisbane City Council (1981) APAD 417

Stradbroke Island Management Organisation v Redland Shire Council (2002) 121 LGERA 390

Telstra Corporation Limited v Pine Rivers Shire Council (2001) QPELR 350

Town of Walkerville v Adelaide Clinic Holdings (1985) 38 SASR 161

Vynotas Pty Ltd v BCC (2001) QPELR 14

Weightman v Gold Coast City Council (2002) 121 LGERA 161

Wingate Properties Pty Ltd v Brisbane City Council (2001) QPELR 272

Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41

ZW Pty Ltd v Hughes & Partners Pty Ltd (1992) 1 Qd R 352

COUNSEL:

Mr S Ure for the appellant in appeal no 15/2002
Mr C Hughes SC for Council of the Shire of Maroochy in all appeals
Mr J Gallagher QC and Mr Rackemann for the co-respondent in all appeals
Mr L Manning, solicitor, for six appellants

SOLICITORS:

Butler McDermott & Egan for the appellant in appeal no. 15/2002
Lestar Manning for the appellants in appeals nos. 23/2002, 29/2002, 34/2002, 35/2002, 36/2002 & 37/2002
Maroochy Shire Council Solicitor for the respondent in all appeals
Connor O’Meara for the co-respondent in all appeals

APPEARANCES BY OR FOR LAY APPELLANTS:

Mr Peter Brown and Dr Koerner for the appellant in appeal no. 17/2002
Mrs Christine Hogan for herself in appeal no. 19/2002, and for the appellants in appeals nos. 18/2002, 20/2002, 21/2002, 22/2002, 25/2002, 26/2002, 28/2002, 31/2002, 33/2002, & 38/2002
Mr Harte for himself in appeal no. 40/2002 and the appellant in appeal no. 30/2002

1. These appeals, which were heard together, were brought by adverse submitters against Maroochy Shire Council’s decision of 3 April 2002 to approve the co-respondent’s application to develop a shopping complex, with a supermarket, in the western part of Coolum Beach township.  At present, Coolum has only one small supermarket and, while it is generally agreed another is desirable, its location is a matter which has aroused considerable interest amongst the town’s inhabitants.

1. The co-respondent bears the onus of establishing the appeals should be dismissed: Integrated Planning Act 1997 (IPA)  s 4.1.50(2).

Coolum Beach

1. Coolum is a Sunshine Coast seaside town with, presently, a permanent population of about 13,500, principally housed in detached dwellings and unit accommodation.  The population increases significantly during holiday periods.  The town’s topography is relatively simple: on the eastern side it faces the Pacific Ocean, and its western boundary is effectively defined by the Sunshine Motorway.  It is divided, on an east-west axis, by the Yandina/Coolum Road.  South of that road the distinguishing feature is a large ridge running north-south, parts of which are called, variously, Coolum Hills or Toboggan Hill.  On the eastern, beach side of that ridge most properties have ocean views, while on the western slopes the hillside housing enjoys an attractive lookout over the cane fields in the Maroochy River valley, to the Blackall Ranges.

The land

1. The subject land is on South Coolum Road and faces west, at the outer western edge of existing urban development beyond which the land, in the Coolum-Yandina Valley, remains largely rural in character save for the vivid presence of the motorway. The site is flat, and vacant and largely devoid of vegetation, and lies at the base of the amphitheatre formed by the western slopes of Coolum Hills, and a spur which runs west from them, down to South Coolum Road. It has a disturbed “lumpy” surface as a consequence of earlier earthworks. The land is not attractive but at the same time not, for those in what one witness called the “view shed”, (i.e. the hillside amphitheatre to the west, south-west and south) presently intrusive.

1. It lies a short distance south of the point at which the Coolum/Yandina Road enters the town from the west, after a crossing at the Sunshine Motorway.  Vehicles travelling along that road towards Coolum enter the town at a roundabout at which the Coolum Primary School lies to the north, on their left; the road to the beach is directly ahead to the east; and South Coolum Road travels away, to the south, roughly parallel to the Sunshine Motorway in the general direction of Maroochydore.  On the south-eastern corner of that intersection, which is a roundabout, is a small convenience-type shopping centre.  Further south on South Coolum Road are some small industrial premises, opposite a council depot and one private property at the edge of cane fields which still exist between South Coolum Road, and the motorway. The site is just south of a small street called Greenoaks Drive, and a commercial/industrial premises lies between them. The land separates these obvious commercial uses from the dwellings on the slopes, and around the base, of the amphitheatre.

1. The whole parcel is presently described as Lot 115 on SP 113215, and contains 5.681 hectares.  Under the co-respondent’s proposal it would it be reconfigured into three allotments: one containing 1.909 hectares, to accommodate the proposed shopping centre; a second, to the south, containing 7,656m² which is to be dedicated for public parkland; and the balance allotment, mostly to the east and south-east, containing 3.008 hectares. It is presently approved for standard residential allotments; but, in part, is the subject of an application for an aged care facility (on the 3ha parcel which will then, if allowed, intrude between this site and the homes of some objectors). 

1. The proposed complex would be separated from existing residential development to the south, around Magenta Street, by the proposed parkland.  It would also be separated from residences to the east in Bluegum Court, Edith Place, and Learg, Ashvale, Munga, and Meelgan Streets, by the balance of the lot – and ultimately, perhaps, by the proposed aged care facility.

The Application

1. The development approval granted on 3 April 2002 is for a shopping complex. It involves a development permit for a material change of use of premises (shopping complex – supermarket not exceeding 2,800m² GFA [gross floor area]), and specialty shops not exceeding 1,200m² GFA; another development permit to reconfigure one lot into three; and, preliminary approvals for operational (filling) engineering works and landscaping, and building works.

1. An earlier application lodged on 6 April 2001 sought a larger complex with a GFA of 5,900m², and a supermarket of 3,000m² but, in October 2001 Council’s Planning Officer recommended refusal of it.  The co-respondent lodged the present, reduced application on 11 February 2002.  The earlier application required statutory public notification which drew 751 submissions, of which 367 were in favour, and 384 against.  There was also a petition against the development, containing 907 signatures.

1. The second application was not required, by Council, to be the subject of further public notification and some of the appellants raised that as an issue in these appeals without, however, attempting to adduce any evidence touching Council’s jurisdiction to make the decision it did.  The amended proposal was, on any view, considerably smaller and less intrusive than the initial one.  The issue of public notification was one for Council to determine in the course of the application process.  Its decision cannot be overturned by this Court if it was reasonably open[1] and, so far as the matter is in issue, I am satisfied the decision was open to the Council and, indeed, correct[2].

   [1]Kangaroo Point Residents Association v Brisbane City Council (2001) QPELR 321, at 323

   [2]Professor Brannock’s report, Exhibit 8, paras 4.3.3 & 4.3.4; Mr Chenoweth’s report, Exhibit 12, para

   6.3.8; Mr Beard’s report, Exhibit 11, para 2.3; Mr Sheehan’s report, Exhibit 14, s2; Mr Covington’s

   report, Exhibit 15, para 2.0.1

1. In any event I am satisfied all interested residents had ready access to information which could keep them aware of the progress of, and changes in, the development.  The co-respondent had, at material times, a staffed site office open to the public; conducted two open days; consulted a number of community organisations, and attended local community meetings; held meetings on site with residents and stakeholders; held public meetings; and, by a variety of means, attempted to meet and discuss the issues raised by the community, at these meetings, and in the media[3]. 

   [3]See the Appeal Book (Exhibit 19) at pp 392-393, & 403

1. Council’s approval of the shopping centre was subject to 44 conditions including requirements that the co-respondent pay monetary contributions towards the provision of bike-ways and bicycle facilities; another monetary contribution of $208,000.00 towards the investigation and improvement of the Coolum Road network; a further contribution of $40,000.00 towards the relocation of the pedestrian crossing at the primary school; and a “community benefit” contribution of $100,000.00.  The conditions also contained stringent requirements about landscaping, building heights, and measures to minimise any potential problems with noise, light etc.[4]

   [4]Decision Notice - Exhibit 19, vol 2, pp 667-677

The Issues

1. The various issues raised by the appeal notices, and the evidence, may be collected under four heads:

(a)        community need and benefit;

(b)        consistency, or conflict with the Planning Scheme;

(c)        if the proposal is in conflict with the Planning Scheme, the question whether there are, or are not, sufficient planning grounds to justify approval notwithstanding that conflict;

(d)        questions of amenity including noise, light, traffic, flooding and visual amenity; and, the reasonable expectations of local residents.

1. Ultimately, because the parties agreed there is an existing need for a larger supermarket in Coolum, much of the evidence addressed these issues in a way which involved debate whether that need should be met through a supermarket at this site, or elsewhere in Coolum; and each resorted to the Planning Scheme (Maroochy Plan 2000 – Exhibit 6) in detail for support for the rival contentions that this development was not in conflict with the scheme; or that the scheme did not countenance this development in this area, and required that any new supermarket be in Coolum’s ‘village centre’, over near the ocean; or, elsewhere.

1. While all the appellants argued the proposal was in conflict with the Council’s Planning Scheme, only one group[5]submitted that it also offended, or was compromised by, the Desired Environmental Outcomes (DEOs) for the Planning Scheme area.  Under the IPA, s 3.5.14(2):

   [5]Represented by Mr Manning, solicitor, who appeared for the appellants in nos. 23, 29, 34, 35, 36 &

   37/2002

3.5.14(2)  If the application is for development in a Planning Scheme area, the assessment manager’s decision must not –

(a)  compromise the achievement of the desired environmental outcomes for the Planning Scheme area; or

(b)   conflict with the Planning Scheme, unless there are sufficient planning grounds to justify the decision.

1. It was submitted, for these appellants, that approval would offend DEO No. 3 of the Planning Scheme[6] which, under the general heading “The Vision” indicates that the shire aspires to economic sustainability, a wish expressed in these terms:

A prosperous, productive and broad economy which reinforces the shire’s strengths in tourism, commercial/business services, rural activities, educational and health facilities, and transport infrastructure, whilst diversifying this base in a manner consistent with the shire’s character and the sustainable use of the shire’s resources.  This includes having an optimal amount of good quality agricultural and other productive rural land in a form which maximises its productive use, consistent with the community’s need for other uses and the availability of other suitable land for those uses.  It also includes Maroochydore fulfilling its role as a Key Regional Centre, complemented by a hierarchy of lower order centres at suitably accessible locations across the shire.

[6]Exhibit 6,Vol 2, p5, clause 2.4(1)

1. The implementation measures for this DEO include:

2.4(2)(f)  Reinforce the roles of various centres in the achievement of the shire’s commercial hierarchy, including Maroochydore as a Key Regional Centre, Nambour as a Sub-Regional Centre and a District Centre at Sippy Downs.[7]

[7]Exhibit 6,Vol 2, p6

1. It was said this proposal compromises achievement of the DEO because it does not reinforce the roles of the nearby Coolum West Local Centre as a convenience centre, and does not reinforce the role of the Coolum Village Centre as the higher order centre (these terms are explored in greater detail later).  There is, however, no evidence at all to suggest this development would in any way compromise, or impact upon the role of Maroochydore as a Key Regional Centre, or is not suitably accessible, or would not fit reasonably within a hierarchy of centres of a lower order than Maroochydore, or adversely affects that hierarchy to a degree which compromises the DEO; and rather, for reasons expounded later, I am satisfied it sits comfortably within that hierarchy.

1. The issues were addressed through town planning evidence from Professor Brannock, Mr Buckley, Mr Schomburgk, and Mr Ryter.  Evidence about need was received from economists/retail analysts – Mr Winter, and Mr Norling.  Mr King gave evidence generally about amenity and, in particular, questions touching noise, light and air; Mr Covington about the risks of effects of floods; and Mr Sheehan, the co-respondent’s architect, discussed the design of the proposed development, and elements touching its impact.  Mr Beard, a traffic engineer, was called to discuss that issue.  Mr Sutherland, the co-respondent’s development manager and Mr Michel, Woolworths’ property manager (Woolworths has committed to operate the supermarket if the development goes ahead), and a town planner, were also called.  In addition, a large number of lay witnesses, and appellants, were called or volunteered to give evidence.  They represented both sides of the debate and were, generally speaking, people who lived in the immediate vicinity or conducted a business there (like Mrs Rae, who operates the nearby convenience store, to the north at the roundabout)[8].

   [8]Mrs Greene, Mrs Reiss, Mr Plant, Mrs Hewett, Ms Wilson, Mr Jack Wilkinson, Mr Steinhardt,

   Mrs Lewis, Mr Douglas, Mrs Bell-Hutton,  Mrs Miles, Mr Hatfull, Ms Francis, Mr Harte,

   Mrs Hogan, Ms Magri, and Mrs Rae

Supermarkets in Coolum

1. The manner in which the issues were addressed in the evidence and, in particular, the focus on other possible sites for a supermarket make it appropriate to touch upon the history of attempts to install one in Coolum. At present the town has only one shop which might fall within the ordinary definition of a “supermarket”: the small (800m²) IGA store in Birtwill Street in the Coolum Village area in what is, generally, the north-eastern part of the town, on the ocean side near the David Low Way.  A number of applications have been brought for supermarket developments, however, and some are still on foot.

1. In 1998/1999 the Heritage Properties application was brought for a “stand alone” supermarket with an area of 3,100m² in Elizabeth Street, in the village centre.  The application was assessed under the former, transitional Planning Scheme for the shire and, ultimately, determined by this Court[9].  Quirk DCJ found that the existing local area plan did not lend support for the proposal; the proposal would result in a refocusing of retail activities in the area, and create unacceptable amenity impacts; it was in conflict with the strategic plan; and, the development was not one which the local residents would have anticipated, and amenity issues could not be resolved.  Relevantly, too, his Honour was concerned about existing traffic problems in the area (while accepting that the adequacy of on-site car parking in the proposal was not an impediment to it).

   [9](1999) QPLR 217

1. In December 2000 the Council also refused a proposal called the Ariadne Centre, involving a redevelopment of the former Stewarts Hotel site on Margaret and Birtwill Streets and the David Low Way for a shopping complex, hotel and associated parking (including a supermarket of 2,250m², speciality shops of 880m², and a hotel of 1,070m²).  The grounds for refusal included, in particular, insufficient provision of car parking spaces, effects on traffic in and around the village centre, a size which exceeded the 3,000m² permitted in the village centre, and concerns that the proposal was contrary to the key character elements of the Coolum Beach area, where the (then) draft Maroochy Plan 2000 showed an intention that any supermarket be of a small scale.

1. At the western entrance to Coolum and just off the Sunshine Motorway is a property usually called the Barns site which was formerly occupied by a tourist attraction called the Llama Farm.  In 1998 the Council refused a supermarket of 2,000m² on that site.  Last year, however, Council approved an application for a large development on this property with a total area of 9,000m² which, although predominantly intended for showroom purposes, would include a supermarket of 2,750m².  Although the Council’s Planning Officer recommended a partial approval only, excluding the supermarket, Council approved the total development.  The planning grounds said to support approval included:

(a)        the intention of Council to review the strategic plan and Maroochy Plan 2000 to take into account the community demand for a large supermarket in this area; (my emphasis)

(b)        that a supermarket on the outskirts of Coolum would be strategically placed to service a wider catchment area than the town itself;

(c)        that the supermarket would have no detrimental impact on the business centre of Coolum or the economic retail strategy detailed in Maroochy Plan 2000.

Notwithstanding approval the applicant has, however, suspended the appeal period and the future status of this proposal is, presently, uncertain.

1. Council also has before it, at the present time, an application for a stand alone supermarket of 2,550m² at the rear of the existing Coolum village shopping centre on Birtwill Street (the Pithurst Centre). Its car parking provisions comply with the requirements of the Planning Scheme. It also incorporates a residential subdivision.  The application was made to Council in April 2002, and was the subject of a detailed information request issued by the Council on 1 May where, for the present, it rests.

Need

1. I accept Mr Winter’s evidence that, at present, Coolum is not well-served with this kind of facility and there is an under-provision of supermarket floor space within the relevant trade area.  The want of competition inflicts a lack of choice upon local residents who are forced to travel, in large numbers, considerable distances to shop at what are called ‘full-line’ supermarkets[10].  A little surprisingly, the permanent residents have a relatively low socio-economic profile and the additional travel costs, and want of competition are, then, an extra burden.  A new, full-line supermarket would provide convenience, an increased range of goods, an increased choice of shopping venues, more competitive pricing, improved shopper comforts and amenities, and some employment[11].  The proposed supermarket operator, Woolworths, is the preferred trader of almost 40 per cent of the Queensland population, and of 35 per cent within this trade area in circumstances where it is not, presently, represented.

   [10]Exhibit 9, Table 8, showing 44% of central Coolum residents shop at Maroochydore

   [11]Exhibit 9, p 56

1. There is effective unanimity that Coolum needs another supermarket.  The economic experts agreed[12] that the community’s wellbeing would be enhanced by the provision of a major supermarket; that the populations of the nearby residential areas at Mount Coolum, and Peregian West are presently insufficient to support a major supermarket and for the foreseeable future will rely on Coolum Beach for that facility; this centre would offer a readily accessible location for supermarket shopping for the majority of residents of both Coolum Beach, and Mount Coolum; and, its proposed location would enable it to serve other adjacent areas (Peregian West, Peregian Beach, and Marcoola). This evidence, enhanced by a view of these areas and the extensive residential development which is proceeding in some of them, clearly shows the need, and potential benefit, is not limited to residents of Coolum Beach (designated in Maroochy Plan 2000, Volume 3, as Planning Area No 11 – Coolum Beach), and better supermarket facilities in Coolum would also advantage these nearby communities.

   [12]Exhibit 10

1. A number of local residents gave evidence of their dissatisfaction with the lack of a full-line supermarket in Coolum at the present time and their support of the provision of this proposed facility, at this site[13].  Some of them lived in areas where, conceivably, the development would have an impact in terms of amenity (Magenta Drive, Learg Street, and Edith Place).  Most said they were “fed up” with having to drive to Noosa, or Maroochydore to perform supermarket shopping.  Even those opposed to the approval of this application, like Mrs Hogan, do not argue there is no need for another supermarket in Coolum.  Indeed, she conceded she would shop at this site if the supermarket was approved[14].

   [13]Exhibits 31-34, 36, 37, 42-46, 52 & 53

   [14]T p 788, l 40

1. There can be no doubt the provision of a facility like the one proposed would be of benefit to the Coolum community, and residential communities in its vicinity.  The dispute, rather, centres on the question whether this strong existing need should only be satisfied by another “small-scale” supermarket or, whatever its dimensions, one which is situated in the village centre where, as the conclave of economic experts conceded, there is sufficient land[15]. 

   [15]Exhibit 10, para 17

1. The Planning Scheme speaks, in Volume 3 at p 205, of the residents of Coolum having ‘indicated they are prepared to forgo the provision of higher order and larger scale retail…services’. The strong, clear evidence of the need for a full-line supermarket belies this assertion and the plan has, obviously, been overtaken by such things as population growth. As was made clear in Playfair v Maroochy Shire Council (1991) QPELR 87 at 88H[16], planning schemes can be overtaken by events and, in those circumstances, the relevant provisions should not, necessarily, prevail.

   [16]Cited with approval by the Court of Appeal in Grosser v Gold Coast City Council (2002) 117

   LGERA 153

1. It is also apparent that, properly construed, the planning documents simply confirm that any supermarket in the village centre area of Coolum would have to be on a relatively small scale, and that is a proposition that reflects common sense, having regard to the existing levels of traffic congestion there; the obvious town planning aim of preserving a small coastal “village” atmosphere in Coolum for tourists, and locals; and, the expressed public desire for larger new-scale retail and commercial uses to be located to the west[17].

   [17]For example, Exhibit 59

1. Otherwise, presently, so far as the village centre is concerned the Pithurst application is yet to be assessed or decided by Council, and has not progressed to a stage where it can be given any real weight in these proceedings[18].  In any event, it cannot be assumed that a facility appropriate to meet the present, pressing need would be able to be acceptably developed in the village centre.  Mr Beard, Professor Brannock, Mr Buckley and Mr Schomburgk all gave evidence to the effect that it is highly unlikely that a full-line supermarket could suitably locate there[19].  Further, as Mr Winter suggested, it is possible any new supermarket in the village centre would serve to replace rather than add to the existing small IGA facility, which may relocate.

   [18]cf Hervey Bay Projects v Hervey Bay City Council (1993) QPLR 104, at 114; Dalgety Australia Pty

   Ltd v Brisbane City Council (1981) APAD 340

   [19]Exhibit 8, para 6.6; Mr Buckley T 603-604; Mr Beard T 303-304; Mr Schomburgk T 719 l15

1. It is also incorrect to assume, as the appellants sometimes appeared to do, that Coolum Beach will only ever accommodate one further supermarket, and it is simply a question of deciding which site is the best.  There is no suggestion the co-respondent is seeking to achieve a monopoly and, rather, its development would simply introduce choice and competition where, presently, there is none.  The area is growing rapidly, and will probably continue to do so.  Further growth will fuel the need for additional facilities in the future including, conceivably, a large supermarket in the village centre if that is, ever, appropriate.  This Court has generally rejected the proposition that a development which otherwise suitably fulfils an identified need should yet be rejected because a better site can be postulated[20].  That approach would involve, as Mr Buckley said, speculation and the risk of an identified need going unfulfilled[21].

   [20]Patterson v Hervey Bay City Council (1989) QPLR 184 at 186; Castro v Douglas Shire Council

   (1992) QPLR 146 at 158; Landel Pty Ltd v Redland Shire Council (2000) QPELR 60 at 73 & 74;

   Queensland Adult Deaf and Dumb Society v Brisbane City Council (1972) 26 LGRA 380; Barcoo

   Pty Ltd v Crows Nest Shire Council (1987) QPLR 242 at 247; Town of Walkerville v Adelaide

   Clinic Holdings (1985) 38 SASR 161 at 171; and, see Land Development Law in Queensland –

   Fogg, p 419

   [21]T 591

1. There is little evidence to suggest the site is not an appropriate one, judged on its own merits.  Mr Norling, for example, did not contend the site itself was inappropriate but argued, rather, that it would simply be more logical and there would be more benefits if a full line supermarket was placed in the village centre.  This was far from a universal view and the evidence of Mr Beard concerning traffic issues was, quite powerfully, to the opposite effect.

1. Public or community need has always been highly material in this jurisdiction and, under Maroochy Plan 2000, is broadened to include community “benefit” as well as community “need” and the “public interest”[22].  The phrase “public need” involves the notion that the physical wellbeing of a particular community, or a measurable part of it, can better or more conveniently be served by providing the means for ensuring the provision of the proposed facility, subject always to other relevant town planning considerations[23].

   [22]S 8.1.1(O)

   [23]All-A-Wah Carapark v Noosa Shire Council (1989) QPLR 155 at 157; Skateway Pty Ltd v Brisbane

   City Council (1981) APAD 417 at 424

1. The question whether need exists is to be decided from the perspective of a community and not that of the applicant for development, its competitors, or objectors[24].  Otherwise, the weight to be afforded to it is not fixed[25] and where, as here, the apparent public or community need for the proposed facility is strong and relates to a basic requirement of the resident population it is, plainly, a matter to which considerable weight must be given[26].

   [24]Arksmead Pty Ltd v Gold Coast City Council (1989) QPELR 322, at 330 (affirmed on appeal: 2000

   107 LGERA 60)

   [25]Intrafield v Redland Shire Council (2001) 116 LGERA 350, at 354

   [26]See Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313, at 317

1. In this case that strong need must, however, be weighed against other factors including, in particular, impact upon the amenity of the residents.  At the same time, of course, the “community” consists of more than just particular members of it.  As the Court said in Holts Hill Quarries Pty Ltd v Gold Coast City Council (1999) QPELR 415 at 418-419:

An attempt should be made to reconcile the various provisions where there is apparent conflict.  However, there may be occasions when approval may properly be given to a proposal even though it may apparently conflict with some town planning objectives.  Provisions exist for exceptions to be made to the general planning policy in appropriate circumstances, and this may mean that on occasions what may be regarded as genuine and legitimate concerns of some members of the community who may be adversely affected by a proposed development may have to be over-ridden by what is in the best interest of the community as whole.

1. I am satisfied there is an overwhelming need for a facility in Coolum to provide for the basic weekly grocery shopping needs of the present and expanding number of residents in the area.  It is also clear that this need is something to which considerable weight must be given, particularly in the context of amenity impacts and the many and varied provisions of the Planning Scheme.

Maroochy Plan 2000

1. The Maroochy Planning Scheme is comprised of four volumes[27].  As explained in Volume 1 (at p 11), that volume contains general matter concerning the scheme’s background, principles, and administrative provisions. Volume 2 comprises the Strategic Plan which sets out the ‘Vision’ and DEO’s, and the manner in which they are to be achieved. Volume 3 contains statements of desired character for each particular Planning Area in the shire, (and smaller areas called ‘precincts’ within them) into which the shire is divided, in some considerable detail. Volume 4 contains the planning scheme codes.

   [27]Exhibit 6

1. The town of Coolum effectively comprises the whole of Planning Area No 11, in Volume 3. The subject land falls in Precinct 9, ‘Coolum Beach Hills’ within that planning area. That precinct includes much of the town south of the Yandina Coolum Road, stretching from the eastern slopes of Coolum Hills, west across the ridge to South Coolum Road. The entire precinct is marked and coloured on the map for Planning Area No 11 to indicate it is intended to be used for, and limited to, ‘neighbourhood residential’ development.

1. Immediately to the north of the subject land, however, and extending further north to Yandina Coolum Road, is Precinct 4, Coolum West Local Centre, which encompasses the shops at the roundabout, and the industrial premises south of them along South Coolum Road, down to the co-respondent’s land.  The Village Centre is Precinct 1.

1. The parties all agree the planning scheme is to be read as a whole, but divide as to the proper conclusion when that process is undertaken.  The appellants contend the exercise involves “descending” or “digging down” through these volumes, until the precise neighbourhood in which the proposed development will be located is identified, and where clear direction about the intended uses for it are stipulated.  The process was described by one of the appellants’ town planners, Mr Schomburgk, as follows:

The Planning Scheme we’re dealing with here is quite different in that what it has sought to do, and I think it has done reasonably well, it has come up with a strategic context, and it has translated that down, right down through to the lowest practical level, in this case the planning areas.  So we have a planning area which is just all shown as pink, in this case neighbourhood residential precinct, and that has embodied within it, its text.  The forward planning intentions, the statements of desired character, whatever terminology you want to use, that come from the desired environment outcomes that Planning Scheme must have, and the strategic planning intent.  And I see that has flowed down, in all the reading down of the document, it’s flowed down from chapter 2 through to chapter 3, and indeed in many cases into chapter 4, the codes[28].

[28]Transcript, pp 705-706

1. Some support for the exercise, as a process of construction, can be gained from the Plan itself: Volume 3, s 1.2[29] explains how the shire has been divided into 30 Planning Areas, and over 300 Precincts, in 18 precinct ‘classes’, and says that:

   [29]Exhibit 6, p4

The applicable Precinct Class intent should be read in conjunction with

the relevant Planning Areas and specific Precinct description when an

application requires impact assessment.

It is also said, however, that ‘each Precinct Class identifies a general intent for individual precincts’ (my emphasis).

1. The respondents argue that this method of construction imputes far too much prescience to the authors of the plan, and what is found after all the digging down is immutable, or absolutely prescriptive. In his oral submissions Mr Hughes SC, for the Council, debunked the appellants’ approach in this way:

Listening to the way they’ve analysed the Planning Scheme, it would appear that there’s really no room for material changes of use applications, within the shire, because the level of planning is so great, the natural corollary of their submissions is that unless your particular use receives support from the planning documents by reference, in the verbiage applicable to the relevant precinct, then you may as well … not bother lodging the application … That … is simply not the way the planning documents are read.  A planning document must be alive and must react to changes in circumstances and to applications which may or may not fulfil public needs, or even private desires, which is simply not contemplated by the Planning Authority at the time it prepares the document.

Rather, the respondents propound what they say is a more sensible, practical and “purposive” approach to construction, which examines the proposal, on its merits, in the overall context of the Plan.

1. A planning scheme promulgated under IPA has the status of a statutory instrument[30] and must, therefore, be interpreted in a way which best achieves its apparent purpose[31].  The process of construction must, too, be undertaken in light of IPA’s clear proscription against any elements of a scheme which purport to prohibit development on, or the use of, premises[32].

   [30]S 2.1.23

   [31]Acts Interpretation Act (1954) s 14A; Nordale Management Pty Ltd v Maroochy Shire Council

   (1995) QPLR 368 at 370

   [32]S 6.1.2

1. In ZW Pty Ltd v Hughes & Partners Pty Ltd (1992) 1 Qd R 352 it was said that, when interpreting a Planning Scheme, the Court should take a common sense approach; and, the particular document should not be read too narrowly but, rather, broadly (rather than pedantically) and in a way which adopts a sensible, practical approach[33].  These statements reflect long-settled principles in relation to the judicial approach to planning schemes.  In Pacific Seven v City of Sandringham (1982) VR 157 at 163 it was said:

Planning is a difficult exercise with flexibility as an essential ingredient.  Those entrusted with its implementation should bear in mind that neither individual or community interest is served by recourse to exotic legalism.  Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the end of justice, and the expressed intention of the legislature in the field of planning.  Whatever be the consequence of legal points which fall to be decided, every endeavour should be made to deal with the substance of an application for permission to use or develop land in a certain way with maximum expedition and fairness.

[33]per Pincus JA at 73 & 75; and MacKenzie J at 78; and, see Harburg Investments Pty Ltd v BCC

(2000) QPELR 313 at 318; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41; Body

Corporate “Greatwood” CTS 19855 v Maroochy Shire Council (2001) QPELR 293 at 302

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

It is seldom appropriate in matters such as these to rely on any specific statement of intent or of aims or objectives in the planning documents as determinative.  It is rare that an express imprimatur or injunction can be found in them for a particular proposal.  Almost invariably a diligent search of the planning documents can unearth in such statements passages which appear to argue for or against the proposal but generally speaking it would be unwise to place too much weight on such a passage.  The planning documents, while they are given the force of law…are not drawn with the precision of Acts of Parliament and the statements of intent or of aims or of objectives are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular proposal should be approved or rejected.  So such statements should be read broadly[34].

[34]Degee & Anor v BCC (1988) QPELR 287, at 289

…

I am attracted to the planning approach of the shire’s planning officer…which is to emphasise the necessity of reading the strategic plan as a whole.  That is not to say that one goes in search of an isolated statement anywhere in the document which, when taken out of context, might support an argument.  Such a search, in most planning schemes, could unearth support for almost any argument.  If however a statement can be found which clearly sets out a fundamental principle of the Planning Scheme which argues for or against a proposal, then it is proper to give weight to it even though the proposal relates to land which is specifically dealt with in another part of the document[35].

[35]Drive Type Pty Ltd v Caboolture Shire Council (1995) QPLR 141, at 143

1. Statements to similar effect were made by Robin QC, DCJ in Vynotas Pty Ltd v BCC (2001) QPELR 14, at 40:

In a complex appeal such as this, the Court should read the Planning Scheme as a whole.  I have set out extensively passages which I accept are relevant, and have taken into account.  The scheme is bulky, often repetitive, and not devoid of conflicting messages.  Provisions are there which come close to providing “support for almost any argument”, to quote Senior Judge Skoien in Drive Type Pty Ltd v Council of the Shire of Caboolture…

1. The application of this approach to construction is exemplified in another decision of Skoien SJDC, Provincial Securities Pty Ltd v Brisbane City Council (2001) QPELR 143, at 147, a case involving elements which are germane here. Faced with a statement of intent in the planning scheme for Brisbane requiring consideration whether a shopping proposal would “mainly serve residents in the immediate locality”, his Honour determined that this was not a critical point or an absolute requirement but, merely, a consideration to be taken into account – and referred, as authority for that conclusion, to Prime Group Realty v Brisbane City Council (1995) QPELR 173, at 176; and, Phil Fletcher Planning and Investment Services v Brisbane City Council (1991) QPELR 16, at 18. The Brisbane planning scheme also contained another requirement that shopping centres should be “on neighbourhood access roads” and, at 145, his Honour suggested that centres located in these places would very likely wither and die for lack of custom, and the requirement was:

…an example of the drafter’s wishful thinking and admirable as may be the wish it is unlikely to be met in today’s real world.

1. At the same time, the process of construction must not become one by which the Court usurps the role of local government.  As Quirk DCJ said in Elan Capital Corporation v Brisbane City Council (1990) QPELR 209, at 211:

It should not be necessary to repeat that this Court is not the planning authority or the city of Brisbane.  It is not this Court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a planning authority in a careful and proper way has chosen to adopt[36].

[36]And see Pacific Exchange Corporation Pty Ltd v Gold Coast City Council (1998) QPELR 335

at 339; and, Sheezel v Noosa Shire Council (1980) QPLE 130, at 134

1. It is also to be remembered, in the context of this appeal, that it is not this Court’s function to determine whether a better site exists for a particular proposal but, rather, simply whether approval should or should not be given for the particular use proposed on the particular site[37].  This appeal does not, then, involve any element requiring an assessment of other current proposals for supermarkets, or which is the “best” proposal or involves the “best site”.

   [37]Queensland Adult Deaf and Dumb Society v Brisbane City Council (?) 26 LGRA 380, at 386;

   SEAQ vWarwick City Council (?) 24 LGRA 391, at 394; and, Castro v Douglas Shire Council

   (1992) LGRA 146, at 158

1. Some aspects of this plan were considered by Robin QC DCJ in Lend Lease v Maroochy Shire Council and Tallenbrook Pty Ltd [2002] QPEC 40 (“Tallenbrook”), which also involved a submitter appeal against Maroochy Council’s decision to approve a local neighbourhood centre on land which, as here, was contained in a “neighbourhood residential” precinct, and immediately adjoined an existing local centre.  The proposed development also was similar to that sought here – a supermarket containing 2,100m² and, overall, 3,815m² of retail premises plus some offices, a service station and a small tavern.  Although the application for approval had been formally lodged under the former Planning Scheme for this shire, it was necessary for the Court to examine the provisions of Maroochy Plan 2000.

1. In Tallenbrook, and again in this case, the “retail hierarchy” described in the plan and, in particular, the importance to be attached in that hierarchy to the designation of a particular area as a village centre was in issue.  When considering places designated in that way, his Honour said:

…There is no particular significance about the relative placements of the lower order centres.  Village centres hardly fit neatly into the hierarchy; it seems clear that they are places, typically in country towns, where, historically, there has been some commercial development.  It is reasonable that this has been thought to call for recognition in the planning documents.  It does not seem to me a matter productive of particular concern that a neighbourhood or local centre might be difficult to distinguish from some village centres, or might be larger than some village centres.

…

The history of the strategic plan suggests it is accidental whether “village centres” come above or below local centres – they are, it seems to me, special or anomalous cases bequeathed by history and really stand apart from the hierarchy. [38]

[38]paras [24], [27], & [45]

1. The appellants here placed considerable weight upon some statements in Volume 3, (Planning Areas, Precincts and Precinct Classes) and, in Tallenbrook, similar issues again arose.  After analysing the specific provisions relating to the relevant planning area and precinct applicable in that case Robin QC, DCJ made a number of observations, of more general application, upon which the respondents here rely:

(a)      The fact the Planning Scheme omitted to proscribe any physical expansion of the existing local centre, which was next door to the applicant’s land, (here, the existing local centre is a short distance to the north) was significant, and to be contrasted with the deliberate proscription on the expansion of certain other local convenience centres which he referred to in para [36];

(b)      He expressed the view that an apparent size limitation of 5,000m² for local centres in the Code for those centres[39]was an error since the limit would not leave sufficient space for parking, landscaping and other outdoor aspects.

[39]Exhibit 6, vol 4

(c)      He also noted, in respect of that Code, that in light of the provisions of vol 4, s 1.2[40], failure to comply with the terms of the “acceptable measures” would be of little concern as, in terms, the governing performance criteria were met.

(d)      He noted an odd situation with respect to the definition of “shopping complex” but found that an appropriate practical approach would be against applying the definition of “shopping complex” in all its rigour because it was clear that the supermarket proposed in Tallenbrook was a “shop” which was not an inappropriate use in a neighbourhood centre.

[40]Exhibit 6, vol 4, pp 3-4

1. He also made some other general findings which, the respondent Council said, supported its decision to approve this proposal.  In particular, his Honour identified recent trends towards more frequent grocery shopping (for example, twice weekly) and mentioned earlier decisions of this Court establishing that trend; found that the Tallenbrook centre would serve both the supermarket, and convenience shopping needs of quite a large community “by providing a higher level and more comprehensive range of goods and services than is currently available in the smaller centres in the area”; accepted the proposed development was in a good location at the confluence of two important roads, within the road network; and, found that however the issue of need or demand for the facilities proposed was examined, it was clearly satisfied.

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

1. This does not mean that the structure of this plan with, as the appellants correctly point out, its apparent descent from the general to the particular is inappropriate but, rather (to use the appellant’s own metaphor) that what is found at its most detailed levels is not, necessarily, gold – but neither, of course, is it dross.  If, as here, the Planning Scheme at its most particular level suggests the proposed development might not be in harmony with what appears to be generally intended for a precinct, that cannot and does not mean the proposal automatically fails. Rather, the planning authority and if necessary the Court, considers all the relevant elements of the plan, including those matters to which the scheme itself pays significant obeisance: community need, and demand; the desirability of, and possible benefits from, the proposal; the impact it would have; and, of course, the prevailing realities – whether development in the area has advanced, or will advance, in accordance with the plan.

1. In considering these matters the Court will, of course, be careful not to substitute its own planning strategies for those which a planning authority has, in a detailed plan, carefully and properly adopted[41].  But when, as here, the Planning Scheme contains general statements which show that local neighbourhood shopping facilities are an important part of the urban fabric; yet, at the same time, suggest that approval for new retail developments is only likely to be granted where they are consistent with the apparent intent for and desired character of the particular planning area and precinct, it can readily be seen that the plan itself is fluid, has the potential for inherent contradiction, and tension, and could only in rare instances be read, in particular clauses, as absolutely determinative or prescriptive. 

   [41]Grosser v Council of the City of Gold Coast (2001) QCA 423; Elan Capital Corporation Pty Ltd v

   Brisbane City Council (1990) QPLR 209, at 211

1. The point is exemplified by two immediately adjoining clauses in the Planning Scheme, upon which the respondents on the one hand, and the appellants on the other, place significance.  At clause 3.5.6[42], which deals with retail, commercial and service industrial activity “appropriate to service the residential communities without compromising residential amenity” the “implementation” section provides:

   [42]Exhibit 6, vol 2, p 14

Council will take into account the following criteria when assessing applications for non-residential uses in urban areas and permissible areas for residential development:

1.  Approval is only likely to be granted to development of retail commercial and service uses which offer a service only to local communities (other than in the key regional centre of Maroochydore) and are consistent with the intent for, and desired character of the planning area and precinct in which it is situated.  Consideration will be given to the characteristics of the proposed use, including its location and scale, which determine its accessibility to its locality and its ability to service areas beyond an immediate locality and consequently diminish the vital role played by such facilities in providing a community focus and identity.

2.    It is envisaged that local retail, commercial and service uses will be concentrated into nodes in urban communities.  In new communities, these nodes will generally have been established, at the conceptual and detailed site planning stages.  In older ones, they may be characterised by the existence of shopping groups or centres which are adequately accessible to a locality.  Applications for retail, commercial and service uses outside these nodes are unlikely to be supported, unless a community is inadequately serviced by existing infrastructure and the opportunity does not exist to effectively provide such services within the node in the future.  (My emphasis).

1. The appellants argued that these provisions imply that because this proposed shopping centre would serve residents beyond the Coolum Beach planning area, and would be located within a neighbourhood residential precinct, it is inconsistent with the intent and desired character of the Planning Scheme area, and that precinct.  Conversely, the respondents contend the provisions mean the proposal sits comfortably with the general statements of intent for these facilities, because it proposes to locate a local neighbourhood shopping facility within an urban fabric, but on a site which does not immediately adjoin any existing homes and, rather, in an existing non-residential node, and will therefore achieve the concentration of activities sought by the plan to maximise community focus, while localising amenity impacts; and, meets a need which is pressing, and not being satisfied by existing infrastructure.

1. The plan contains a number of other instances of statements which appear to support, or detract from this proposal, and I was drawn to all of them.  Ultimately, however, the clauses set out above and those other provisions confirm that, in general, the process of construing this plan is not a matter of seizing on any part of it as expressing an absolute; and, in particular, support the conclusion that it would be erroneous to read the more detailed provisions in Volume 3 (or elsewhere)  as prescribing an absolute bar to this proposal. The proper method of construction is that adopted in the authorities set out above, involving identification of those parts of the planning scheme which are germane to the issues in the case, and their consideration to discern the tenor of the scheme, as a whole; and, by that process, to discover whether or not the proposed development accords with the scheme.

The Planning Scheme: Specific Provisions

Volume 1: Table of Assessable Development

1. While all forms of development remain possible, subject to impact assessment, Maroochy Plan 2000 gives specific recognition to the relative likelihood of some forms of impact-assessable development.  Specifically, s 5.3 of Volume 1 provides:

Table of Development Assessment for Material Change of Use in 5.3    

Residential Precincts:

(1)      The Planning Scheme incorporates five classes of residential precinct – four urban residential and a rural residential.  It is intended that land within these precincts be developed and used for residential purposes and compatible uses in accordance with the orderly provision of development and community infrastructure, and having proper regard to the environmental characteristics and values of such lands.

(2)      Such compatible uses may include premises providing for the local and convenience shopping and other business and community needs of individual neighbourhoods, and may be in the form of:

·     an individual “general store” or similar “corner shop”;

·     a convenience local centre (ie. Having a total commercial use gross floor area of up to about 2000m²); or

·     a neighbourhood local centre (ie. Having a total commercial use gross floor area of up to about 5000m²).  Such uses may also include public parkland, churches and child care centres.

1. Three clear propositions emerge from the Table: first, the scheme includes five classes of residential precincts intended to be developed and used for both residential purposes and compatible uses; secondly, those compatible uses may include local and convenience shopping which, relevantly, might include “a neighbourhood local centre” (i.e. having a total commercial gross floor area of up to about 5,000m²); and, the provisions are intended to be of general application.  No attempt is made to distinguish between any of the five classes of residential precinct, or any of the locations where they can occur.  It is plain, then, that applications for potentially compatible uses like shopping centres are to be determined, on their merits, in all residential precincts. That construction is consistent with the provisions of the strategic plan[43] and the recognition, in other precincts, of existing local centres which are not within a local centre designation; and, the code for local centres which is said to apply to development in local centre precincts “and local centre development elsewhere”[44]. 

   [43]S 4.4.1

   [44] Exhibit 6, vol 4, p 241

1. The appellants argue, however, that on its true construction s 5.3 discourages rather than encourages the development of this site, in this particular precinct; and, that the proposed catchment is too wide to enable it to be considered as a neighbourhood local centre.  This involves an unduly restrictive reading of Table 5.2, and s 5.3.  Its logical conclusion is that the location of neighbourhood level shopping facilities has been fixed, once and for all, in particular precincts where those facilities are the subject of express reference; but, as the strategic plan makes clear in Volume 2, new and expanded centres may be contemplated in response to genuine demand. 

1. The proposition is a restatement of the appellant’s argument that, on its proper construction, Maroochy Plan 2000 must be read in such a way that, when its lower levels (the particular precinct) are reached, the provisions there are paramount.  Logically, this would mean that other acceptable uses which are not self-assessable or code-assessable (churches, childcare centres, or community meeting halls, for example) would also be excluded.  In Coolum, it would also mean there could be no expansion of any existing local centre nor the development of a new one in any of the residential areas, because none are expressly mentioned.  For the reasons given earlier, this is a construction which is too limited, and limiting, and discordant with the acknowledged approach to this kind of planning document.

1. Clearly, too, questions of relativity arise: will a proposed development provide “acceptable” or “reasonable” levels of amenity or, on balance, affect amenity unreasonably?  Even if there is a demonstrated probability of adverse impact on, in this instance, residential amenity does the proposal, overall, provide insufficient protection from that?[73]  It may also be appropriate, as was submitted for the Council, that questions of amenity impact be considered in a context which includes the alternatives – here, the Pithurst application[74] involves a large supermarket (2,500m²) which is intended to be built within a distance as close as three metres from the boundary of residential allotments in a residential precinct.  In contrast, this proposed development has no residential neighbours on three sides out of four and, while the development to the east is uncertain (it may be an aged care facility or, possibly, detached houses) in either event the occupants would be alert, before anything is constructed on that land, to the presence of the shopping centre.

   [73]Alberton Investments Pty Ltd v Brisbane City Council (1999) QPELR 360, at 361; Real Property

   Consultants Pty Ltd v Brisbane City Council (1999) QPELR 455

   [74]Exhibit 67

Flooding

1. Mr Covington reported on this issue[75].  His conclusion, which I accept, is that this development would have an insignificant impact on water flow and levels and, in any event, nothing greater than if the land were to be developed for another purpose, such as detached dwelling houses.

[75]Exhibit 15

Noise

1. Mr King[76] analysed present, and potential noise issues (including noise during the construction phase).  He said he adopted, as I accept, very conservative levels for the purposes of comparison.  Some concern was raised by the residents who were appellants about noise difficulties at another supermarket near the southern end of the Sunshine Coast, but the evidence does not demonstrate that the circumstances there are equivalent to those at the subject site and, indeed, the converse applies[77].  The conditions of approval contain detailed provisions about acoustic measures[78] requiring independent certification and I am satisfied that will ensure continuance of the state of affairs reported, and prognosticated by Mr King when he concluded that the noise amenity would not be adversely affected.

   [76]Exhibit 13

   [77]Evidence of Mr Michell, T 232-233

   [78]Condition 23

Lighting

1. It was submitted, for one of the appellants, that the development would present during the hours of darkness as “...island of light in the residential precinct”, but I am satisfied, again through the evidence of Mr King, that the design of the buildings, the extensive proposed landscaping, and the lighting scheme itself can readily meet the appropriate performance criteria, and acceptable measures and all other applicable standards or conditions.  In truth, the complaints of the residents are not so much about the impact of lighting as a philosophical objection to the non-residential use within the precinct.  It is correct that the site will be lit at night – in the car park, to a greater level than applies in a residential street, and by security lighting – but as Mr King explains, the disturbance is on no view unreasonable and does not, I accept, constitute an adverse impact upon the residential amenity.

Air Quality

1. Operational phase air quality was considered by Mr King[79] and he was confident that appropriate standards can readily be met and, as I accept, the amenity impacts of dust, fumes and smells would not adversely impact upon residential amenity.

   [79]Exhibit 13, s 3.3

Vandalism

1. Some appellants and residents raised questions about the safety of a proposed walking track to the north of the shopping centre building, and mentioned some apparently errant behaviour in the locality at present.  As Mr Chenoweth pointed out, however[80], the provision of a pedestrian walkway for local access is entirely consistent with proper planning for the community and security lighting and surveillance should alleviate safety concerns.  Not all resident witnesses shared these concerns[81] and I was not persuaded any adverse impact is likely.

   [80]T 505

   [81]Wilkinson, T 215

Traffic

1. The issues raised by the appellants were diffuse but focused, principally, upon the impact of further traffic on the roundabout to the north, the school and its pedestrian crossings even further to the north, and the effect on local residential streets.  All of these issues were addressed by Mr Beard[82] and no traffic engineer was called to challenge his conclusions.

   [82]Exhibit 11

1. Concerns were also expressed about increased generation of traffic through residential streets (Learg Street/Centenary Heights Road, and Toolga/Tanah Streets [which, presently and perhaps inappropriately, is serving the function of a sub-arterial route]) but Mr Beard’s evidence showed that neither was likely to be significantly, adversely affected by the proposal.  The roundabout at Yandina-Coolum /South Coolum Road is, as he said and I accept, presently functioning well within capacity and without significant delays for all but short periods, on some days.  Certainly, during school pick-up and drop-off times, in the 150 school days per year, queues do occur on the approaches to the roundabout, exacerbated by wet weather but Mr Beard said, and I accept, that those queues do not involve significant delays or problems and, otherwise, the roundabout is essentially “normal”.  He also said, and I accept, that the extent of queuing would be reduced if and when an additional interchange is constructed on the Sunshine Motorway, to the south of Coolum.

1. One of the conditions imposed by Council requires the co-respondent to contribute to the cost of moving the existing pedestrian crossing in School Road, something which was opposed by some residents and about which others expressed concerns, particularly in respect of safety issues.  Mr Beard accepted that this exercise would need to be conducted in an integrated way but, his evidence showed, that could be achieved.  In any event, the siting of the pedestrian crossing is not a matter which goes to the approval or refusal of this shopping centre and is properly, rather, a matter for appropriate conditions.

1. Finally, some appellants raised the possibility of vehicles parking in residential streets, remote from the shopping centre, but no evidence was advanced to substantiate this fear and it was not put to Mr Beard during his evidence.

1. Some elements of Mr Beard’s evidence, and conclusions, have been traversed earlier.  To reiterate: I am satisfied this proposal is consistent with the road hierarchy in the Planning Scheme; it offers appropriate site access; it is readily accessible to Coolum residents; it is well-located and should attract a proportion of customers who will travel to it by foot, or bicycle or public transport; it is unlikely to create “rat running” through residential streets; it has a beneficial effect on the shire’s road network because it will reduce extended travel to remote shopping centres; and, it will actually have a beneficial effect upon existing residential streets by leading to a reduction of vehicles in some areas in comparison to residential development on the site, with access from Magenta Drive[83].

[83]Exhibit 11, para 7.10

Visual Amenity

1. The site for the proposed development is on flat land of relatively low elevation on the periphery of, and physically separated from an existing residential development.  It abuts an existing industrial/commercial development.  The car parking area has been located adjacent to South Coolum Road so the shopping centre buildings lie between it, and most of the residences.  To the south existing residential uses will be separated from the centre, and buffered by, the proposed parkland and landscaping.  The design of the architect, Mr Sheehan[84] is interesting, and attractive.  It uses design techniques which have become a popular part of modern Sunshine Coast architecture and is quite unlike the traditional shopping centre in appearance.  It is a significant improvement on older neighbourhood shopping centres in design, and achieves greater compatibility with the residential component of the locality – for example, it has the appearance of a series of smaller buildings rather than one large monolith.

   [84]Exhibit 14; and, see Exhibits 21 & 23

1. It will be surrounded by what appears to be an interesting and high quality landscaping scheme[85] which, as Mr Chenoweth said[86] minimises the scale of the building and softens the interface in a way which will integrate it into the local neighbourhood.  There is significant screening with embankments, acoustic fences, and dense landscaping.  Through photo montages some impression could be gained of the effect of this landscaping after five years, and it is impressive.

   [85]Exhibit 4, and Exhibit 12, p 59

   [86]Exhibit 12, para 7.6

1. Ten of the resident appellants raised visual amenity, and landscape or character issues, but I was not persuaded the outlook from their homes would be significantly affected or, in some instances, affected at all.  At the same time a number of local witnesses in the vicinity, several with views over the site, raised no objection[87]. Certainly, the outlook from the homes on the slopes of the amphitheatre on Coolum Hills above the site will be different from a view over the residences formerly anticipated, but the existing industrial/commercial uses already meant the outlook was not purely urban, and the landscaping of the shopping complex will, I am satisfied, do much to ameliorate the effects of the change.

[87]Ms Lewis, Ms Miles, Ms Reiss, Ms Green, Ms Bell-Hutton, and Mr Hatfull

Reasonable Expectations

1. Several appellants produced and referred to promotional material provided to them when they purchased their properties, which disclosed an intention of the vendor/developer to develop the subject land as further stages of a residential estate.  Some purchasers were required to enter into covenants with the developer, and referred to this material to support a contention that they were entitled to expect, and indeed require, future development to proceed in that way.  They spoke of their reliance on this material as an inducement to buy land in what they believed would be a residential estate, progressively developed towards South Coolum Road, on the land now proposed for this complex.

1. Mr Ryter referred, in his report[88], to the decision of the Full Court in Broad v Baptist Union (1986) 2 Qd R 317 in which De Jersey J said, at 326:

There is no doubt that the concept of amenity is wide and flexible.  In my view, it may in a particular case embrace not only the effect of a place on the senses but also the resident’s subjective perception viz locality.  Knowing the use to which a particular site is or may be put may affect one’s perception of amenity.

[88]Exhibit 17

1. Similar concerns were considered by Skoien SJDC in Prime Group Properties v Caloundra City Council (1995) QPLR 147 at 150, where his Honour said:

The resident/objectors gave evidence of their actual perception and the fears they held of the effect of the development.  Their fears were, I thought, sometimes overstated, even unlikely.  However I accept that the actual perception which the residents claim to have is genuinely held.  That perception is one of residential amenity.  Provided that perception can be seen to be reasonably held in an objective sense, it should be given considerable weight.

…

In my view it would be a very serious step to disappoint, perhaps destroy those perceptions.  To permit this development would do precisely that.  In my opinion to do that would be justified only if the need for the development were a demanding one or if the application of proper planning principles, as seen in the planning documents actually required it.  (My emphasis).

1. In Broad the Court was concerned with the introduction of an old persons home.  Here, the facility proposed is a neighbourhood shopping centre of a kind which is commonly found in and around residential neighbourhoods and which, vide the remarks of Skoein SJDC, is potentially compatible with the Planning Scheme and will meet a significant and pressing need.

1. While the subjective views of residents should never be disregarded, the critical question is the weight to be given to it.  As De Jersey J remarked in Broad (supra) at 325, the Court will ordinarily: “...prefer views from residents which find justification in specific, concrete likely effects of the proposed development.”  Accordingly, this Court has recognised:

Subjective perceptions are one aspect of amenity which must be considered and weighed against the merits of the proposal otherwise.  However, such perceptions, although relevant, will not necessarily prove to be determinative even where they are found to be both rational and reasonable[89].

[89]Telstra Corporation Limited v Pine Rivers Shire Council (2001) QPELR 350, at 363

1. While brochures, covenants and the like will create expectations in local residents they cannot be taken as forever determining the future development that will necessarily occur, or proscribing other kinds of development.  As Row DCJ said in Mitchell v Rockhampton City Council (1982) QPLR 175, at 178:

Whilst one accepts that the purchasers of the residential lots…were undoubtedly aware of a restrictive covenant in relation, generally, to the use of the land within the estate, for the purposes of a motel, it must also be accepted that such persons ought to have been aware of the provisions of the relevant town planning scheme as to permissible uses within the residential zone and, further, as to the provisions of the relevant town planning legislation whereby a person may apply for a change of zoning.  It is difficult, in this modern day and age, to say that a person’s expectation is not related to town planning controls which have, for many years, formed part of modern society.

Similar results, and remarks can be found in Labrador Printing Co Pty Ltd v Albert Shire Council (1995) QPLR 166, at 169 and Neale v Maroochy Shire Council (2000) QPELR 272.

1. Several of the objectors made the point that a resident who consults the town plan and looks, in particular, at Volume 3 and the section, including maps, concerning Planning Area No 11, and Precinct 9 could only conclude that nothing other than residential development would proceed on this site. That cannot be said to be an unreasonable proposition, since it reflects a simplified version of the argument advanced by experienced lawyers for some of the appellants.

1. As the lengthy discussion about the plan set out earlier shows, however, other uses are clearly permissible and that is a comprehension a careful reader will, ultimately, reach.  Both the argument, and the result, were encapsulated by Skoien SJDC in Bell & Anor v Noosa Shire Council (1983) QPLR 311, at 313:

Some general remarks can appropriately first be made.  Because the proposed use is a consent use, it obviously is one which, in the overall scheme of the town plan, should be permitted in an appropriate case.  Otherwise it would have been a prohibited use.  Under a town planning scheme a landowner must be taken to contemplate that a nearby parcel of land will be put to one of the uses to which that land may be put as of right.  He must also be taken to contemplate that such a parcel of land may come to be put to one of the uses permitted with the consent of the local authority.  Those are the expectations which he must be taken to have in relation to that parcel of land. (My emphasis).

While, as noted earlier, some of these older cases must be treated with caution, these remarks are entirely apposite in the context of this proposal, and this plan.

1. Reasonable expectations are not, of course, the sole domain of local residents or, in particular, those who choose to object on the basis of them.  Here other residents have a contrary and, it seems, equally strongly felt view in support of the proposal, based on the community’s obvious need for a larger supermarket. That is a matter which must tell, significantly, in the equation.  While those appellants who feel their reasonable expectations have been unfairly dashed are deserving of sympathy and concern, their perceptions cannot be given great weight when balanced against the strong, clear evidence of need for this facility, and the benefits it will bring the larger community.

Conclusion

1. The Council had good, cogent reasons for approving this proposal which have not been overcome by the appellants’ objections.  There is an overwhelming public need for the provision of a major supermarket of 2,500m² or larger in the area of Coolum.  While it is possible that, in time, a major supermarket might be provided elsewhere, it is not the function of this Court to select the best site for this particular land use but, rather, to determine in the context of this appeal whether the proposed development is an appropriate response to satisfy that community need.  Nor is it presently the task of this Court to determine the fate of the applications on the other land; but, it is noteworthy that the provision of facilities elsewhere is far from certain. 

1. While there are some inevitable impacts on the amenity of the surrounding residential area they are not sufficient to warrant refusal of the application, particularly in light of the overall community benefits the provision of a shopping facility in this location would entail.  A close reading of certain specific provisions of the Planning Scheme suggests the possibility the proposal is in conflict with them but, when the plan is read in its entirety and its various provisions weighed and considered, there is no clear and plainly identifiable conflict with the scheme as a whole.  Even if that view is wrong, any conflict which might be said to arise is not so strong or pressing as to overcome what are, I find, the many impressive planning grounds which are sufficient to approve the application, notwithstanding any conflict.

1. I am also satisfied that the respondent Council did not endorse the application without earnest consideration of all of the relevant issues.  Its initial, critical review led to a reduction in scale and a redesign of the proposal to take account of its legitimate concerns.  Before granting approval Council considered an extensive report from its committee[90].  This is a case in which some weight must be attached to the Council’s decision, as one which represents an expression of the views of the responsible planning authority[91].

   [90]Appeal Book, vol 2, p 615

   [91]R v BCC ex parte: Read (1986) 2 Qd R 22, at 27-28, 41 & 53; Wingate Properties Pty Ltd v

   Brisbane City Council (2001) QPELR 272, at 276

1. In this case there are also, I think, particular reasons for giving credence to the Council’s decision.  As Mr Buckley explained, the provision of retailing facilities of the type proposed here is of importance in the formation of communities.  In this part of the shire there has been a community need for these facilities for some time which has placed a practical onus upon Council, as the planning authority, to address that need by earnestly considering development on an appropriate site which does not prejudice the planning for the area as a whole.

1. The appeals are rejected.

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