Noosa Gateway Pty Ltd v Noosa Shire Council
[2004] QPEC 34
•30 July, 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Noosa Gateway Pty Ltd v. Noosa Shire Council & Anor [2004] QPEC 034
PARTIES:
Noosa Gateway PTY LTD (Appellant)
v
Noosa Shire Council (Respondent)
&
WA Stockwell PTY LTD (Co-respondent by election)
FILE NO/S:
7/03
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
30 July, 2004
DELIVERED AT:
Maroochydore
HEARING DATE:
June 8th – 11th, 2004
JUDGE:
K.S. Dodds, DCJ
ORDER:
Appeal Dismissed
CATCHWORDS:
APPEAL – Material change of use; application to alter existing approved use for indoor entertainment to additional showroom floor space. Whether change of use would conflict with aims of the Strategic Plan and Planning Scheme Policy; whether need shown for proposed change of use;
Cases Cited :
Skateway Pty Ltd v. Brisbane City Council 1981 APAD 417 at 423-4
Charters Construction Pty Ltd v. Randwick Municipal Council (1972) 25 LGRA 193 at 195
Ecovale Pty Ltd v. Gold Coast City Council 1999 2 QR 35 at 45-46
Watts & Hughes Prime Properties Pty Ltd v. BCC 1998 QPELR 273 at 275
Cut Price Stores Retailers v. Caboolture Shire Council 1984 QPLR 126 at 131
Roosterland Pty Ltd v. Brisbane City Council (1986) 23 APAD 58 at 60
Prime Group Properties Limited v. Caloundra City Council & Dearcolt & Ors 1995 QPLR 147 at 149
William McEwans Pty Ltd v. Brisbane City Council (1981) 2 APAD 165
Lewiac & Ing Real Estate, Joondalup BV v. Gold Coast City Council & Ors 2003 QPELR 385
Willispap Pty Ltd v. Mulgrave Shire Council & Anor 1992 QPELR 51
Overton & Anor v. Redcliffe Shire Council & Anor 2000 QPELR 250
Grosser v. Council of the Gold Coast (2001 117 LGERA 153
Weightman v. Gold Coast City Council 2004 1 LGERA 161
Yu Feng v. Maroochy Shire Council (1996) 92 LGERA 41
Degee & Anor v. Brisbane City Council & Anor 1998 QPELR 287 at 289
Des Forges v. Brisbane City Council & Anor 2002 QCA 90
Legislation Cited:
Integrated Planning Act 1997;
Local Government (Planning and Environment) Act 1990
COUNSEL:
Mr S.M. Ure (Appellant)
Mr T.Trotter (Respondent)
Mr G. Gibson (Co-respondent)
SOLICITORS:
Mr David Fahl, P& E Law, for the Appellant
Mr Wakefield Sykes, for the Respondent
Hopgood Ganim Lawyers for the Co-respondent.
This is an appeal by an applicant against refusal of an application for a development permit for a material change of use for land situated at 196 Silkwood Drive Noosaville (the subject land) to convert 1685 m2 of floor space of an existing approval for indoor entertainment (1285 m2) and restaurant (400 m2) to showrooms.
The reasons for refusal were the issues in the appeal. They were:
· The proposed extension is likely to adversely impact on the showroom / homemaker uses to be established at the Shire Business Centre;
· The applicant has failed to demonstrate a need for the proposed increase in showroom floor space;
· The applicant has failed to demonstrate the proposed increase in showroom floor space will not adversely impact upon the Shire Business Centre;
· A submission has been received that raises valid planning grounds in objection to the proposal;
· The proposal is contrary to Strategic aims 27.2.3.3 and 27.2.3.4 and the Planning Scheme Policy for Business Development Impacts on the Shire Business Centre (which had effect on 14 December 2001) to protect the long term viability and the successful operation of the principal business, retail and administrative centre (Shire Business Centre).
Three issues emerge:
Is it shown the increase in floor space sought would not adversely impact upon the operation of the showroom / homemaker uses of the Shire Business Centre;
Is it shown there is a need in a planning sense for the proposed increase in showroom floor space;
Is the proposal contrary to the Strategic Plan and Planning Scheme Policy 39 (PCP 39).
If so are there sufficient planning grounds to justify approving the application despite the conflict.
The subject land is described as Lot 308 on SP114181 Parish Tewantin, County Marsh and has an area of 1.179 Hectares. It is located at Noosaville, about 1 kilometre distant from the Shire Business Centre land. It is bounded by Noosa Eumundi Road on its southern side, Gateway Drive on its eastern side and Silkwood drive on its northern side. On its western side is a church. Across Gateway drive to the east and across Noosa Eumundi Road to the south is a variety of industrial development. To its north and northwest the land has been developed as a housing estate for detached dwellings. Its frontage to Noosa Eumundi Drive is separated by a 10 metre wide vegetated buffer.
In 1991 the subject land was rezoned from the Future Urban zone to the Special Facilities (Special Business) Use zone as part of a larger rezoning of land for the “Noosa Woods” residential development to the north and west. Accompanying the approval was the plan of development. In it the subject land is Precinct K for Special Facilities –Special Business Uses. The aim of Precinct K was said to “provide for a transition of use between the industry use and the church and residential uses of the area. It will primarily be used for low key uses not relying on passing trade or a commercial frontage. Dwelling houses may be established in the western sector as an extension of adjoining precinct J”. (Precinct J was for Special Residential Use in the plan of development). The only permitted use in Precinct K was “park”. Development requiring consent approval in Precinct K included “bulk garden supplies, bulk store, dwelling house, funeral parlour, nursery, passenger terminal, place of worship, service industry, showroom, special purpose, warehouse”. Car parking requirements were the “minimum number of spaces required by the planning scheme.”
The subject land is in the northeast corner of the Tewantin locality next to its border with the Noosa locality in the respondent’s Strategic Plan which commenced in 1997. It has a preferred dominant land use designation of service industry: Objective 23.4.1 for “Industry” is to “Encourage the use of land with a service industry designation for home businesses and low impact industrial functions.” Referring to the subject land, the objective acknowledges the subject land will receive some “impact from the industrial estate and is intended as a transitional area between industrial uses in the Noosaville industrial estate and the residential uses of Noosa Bushlands” Para 23.4.1.1.
The zoning together with the plan of development for the subject land and the objectives relating to the subject land in the Strategic Plan are compatible. In Precinct K, showroom is a use requiring consent. The aim of the Precinct is “to provide for a transition of use between the industry use and the church and residential uses of the area. It will primarily be used for low key uses not relying on passing trade or a commercial frontage”. In the Strategic Plan on land with a service industry designation home businesses and low impact industrial functions will be encouraged. The subject land “will receive some impact from the residential estate and is intended as a transitional area between industrial uses in the Noosaville industrial estate and the residential uses of Noosa Bushland”.
In August 2000 the respondent approved a development application for the subject land to include 1,300 m2 of showrooms and for restaurant, gymnasium, ten pin bowling centre, service shops and service industry. The gross floor area was either 4410 m2 or 4731 m2 depending on whether Mr Dillon’s evidence (a town planner who gave evidence in the appellant’s case) or Mr Venn’s evidence (a town planner who gave evidence in the respondent’s case) is relied upon. In January 2001 a further approval increased the area of showrooms to 2, 580 m2 in a total gross floor area of 4,380 m2.
In January 2002 and February 2003 there were further approvals altering the tenancy use mix. The end result was that at the time of the application the subject of the appeal there was approval for 2,580 m2 of showrooms on the site and for other uses for a gross floor area of 4415 m2. If the application is approved, the approved showroom floor space will be 4,265 m2 with 150 m2 approved for service shops.
Other than earthworks, clearing, levelling and providing access to the site no development, to the time of the inspection on the first day of the appeal, had occurred on site.
The respondent’s planning scheme is a transitional planning scheme for Chapter six of the Integrated Planning Act 1997 (IPA). Impact assessment of the application was required. Section 6.1.29 of IPA requires account be taken of a number of specified matters including the planning scheme policies as well as any other matter to which regard might have been had if the application had been made under The Local Government (Planning and Environment) Act 1990 (the P & E Act). Section 6.1.30 (3) (a) requires the application be decided pursuant to Section 4.4 (5) and Section 4.4 (5A) of the P & E Act. Relevantly, if the application conflicts with the respondent’s Strategic Plan, the application must be refused if there are not sufficient planning grounds to justify approving it despite the conflict.
The co-respondent is the developer of Stage 1 of what is called in the respondent’s planning instruments, the Shire Business Centre. Stage 1 of the Shire Business Centre has been approved by the respondent and has passed through the appeal process in the court. The approval for Stage 1 of the Shire Business Centre comprised
- A retail centre with shop floor space not exceeding 18,000 m2 total use area, containing a supermarket, mini-major, discount department store specialty retail and professional offices. Also included was a service station, restaurant, centre management, staff areas and public toilets. Uses permitted were shops, professional offices, commercial premises, commercial services, restaurants, service station, service shops, fast food premises, medical centre, outdoor entertainment, special purposes.
- A showroom / homemaker component not exceeding 7,000 m2 total use area. Uses permitted were showroom, commercial premises, commercial services, medical centre, professional offices, warehouse ,educational establishment and special purposes.
- A commercial / business component not exceeding 5,000 m2 total use area. Uses permitted were commercial premises, commercial services, medical centre, professional offices, warehouse, educational establishment, special purposes.
- Areas of at grade parking.
Development was required to be staged so that a discount department store was to be constructed as part of the retail component, the 5000m2 Commercial Business component was to be constructed concurrently with the construction of the Retail Centre component and the Retail Centre component was not to commence until at least 40% of the proposed Commercial / Business component of floor space was contracted for sale or lease. Homemaker / showroom components were excluded from these requirements.
Stage 1 involves some 15.47 hectares. Developer contribution to external road infrastructure and provision of internal road works was part of it. The extent of work involved, in the order of one hundred million dollars, means that its components are unlikely to be able to commence trading before mid 2006 at the earliest.
The Shire Business Centre is the subject of a good deal of attention in the Strategic Plan. It is plain it is a major long held and planned for outcome of the respondent’s planning strategies. It is to be at the apex of the hierarchy of retail administrative and business centres within the shire. Inextricably bound up in it is what is seen as long term benefit to the economy of the shire, the transport network in the shire, business and retail development in the shire, the overall amenity of the shire in terms of regulation of the proliferation of retail and business centres in the shire. Its location is identified in the Strategic Plan. Reference to some parts of the Strategic Plan will suffice to demonstrate.
The Strategic Plan of the respondent contains a strategic vision “underpinned by a series of Strategic Principles and Development Principles” and strategic aims to achieve the vision. The latter addresses a number of matters, eg, character and lifestyle, environment, economic matters. There are objectives and implementation provisions for achieving the aims. These sorts of matters are dealt with in a broadly based part of the strategic plan for the whole of the shire. They are also dealt with in detail for a number of locality specific areas in the strategic plan.
The land identified in the Strategic Plan for the Shire Business Centre is in the Noosa Heads / Noosaville locality in the Plan. In the locality specific part of the Strategic Plan, for Noosa Heads / Noosaville locality, there appears “Significant economic activities will take place in this locality, in addition to those relating to visitor populations. A new business centre (Shire Business Centre) will be established which will service shire wide needs, as well as the needs of residents in the north east of the Maroochy shire. The highest level of business retail and administrative services will be accommodated in a multi function centre on Eenie Creek Road, east of the industrial estate. Development of the centre will be staged consistent with the needs of the resident and visitor populations to the shire. This centre as well as resident and visitor based service functions will form the major focus of employment growth in the coastal area of the shire.” Paragraph 18.4. “A number of new road connections will provide improved accessibility across the locality in the future. These include:
- “The construction of the first stage of Eenie Creek Road from Eumundi Road to Reef Street enabling traffic to bypass significant parts of the Noosaville urban area …
- The provision of a new road between Emu Mountain Road and Eenie Creek Road providing an alternative entrance to the shire from the south, without the need to travel through the Noosaville industrial estate”. Paragraph 18.1.
Part 19 of the Strategic Plan sets out Objectives and Implementation provisions for the locality. Paragraph 19.3.1 “Objective. Provide for a multi function employment node serving shire wide needs and including provision for business retail, administrative, community and industrial functions.
Land on Eenie Creek Road and a new road between Emu Mountain Road and Eenie Creek Road will be developed as a multi function employment node catering for the highest level of business retail and administrative facilities in the shire consistent with Strategic Aim 27.2.3.2. The significance of this site is recognised in the Shire Business Centre designation of around 40 hectares. Variation of potential size could occur through more detailed evaluation of land capability over the site or as a consequence of variation in the alignment of the Emu Mountain Road and Eenie Creek Road route”…Para 19.3.1.1. “Within the life of this Strategic Plan the development will include:-
- Retail component in the order of 15,000 m2 of floor space which in its first stage will include a discount department store
- Homemaker / showroom component in the order of 10,000 square metres.
- Commercial and administrative office components in the order of 10,000 m2.
- Civic and community service components.
- Business components of the order of 20,000 m2 where low impact manufacturing, transport, storage and communication facilities may be established.
- Passive and active open space areas.” Para 19.3.1.2.
“The Shire Business Centre site will be developed in stages consistent with the needs of the community. The first stage of the development will only proceed following:-
- The construction of Eenie Creek Road between Eumundi Road and Reef Street;
- Commitments being made for the construction of a new road between Emu Mountain Road and Eenie Creek Road.” Para 19.3.1.3.
“Planning and development principles are critical to the development of the shire business centre. These principles defined in 19.3.1.5 – 19.3.1.18 are to be refined as part of a master planning process.” Para 19.3.1.4.
“A master plan will be prepared to guide the overall development process. The master plan will be prepared by a multi-disciplinary team and will include:-
o Overall development concepts including the definition of areas for development, roads and open space provision.
o Sequencing guidelines for the overall development designed to co-ordinate the construction of roads servicing the site and other relevant issues
o Desired guidelines including controls on size, scale, mix of uses aesthetics, amenity and the like”. Para 19.3.1.5
“The development will contribute toward the construction of external road works through a construction and contribution strategy which has regard to the sequencing requirements of 19.3.1.3 and 19.3.1.5. This strategy will recognise the staging programme and provide for the timing of construction and contributions consistent with that programme”. 19.3.1.13.
The master planning process resulted in Shire Business Centre Master Plans 1 and 2 providing detailed planning for the centre.
In the broad based whole of shire provisions of the Strategic Plan, Paragraph 27 sets out strategic aims of the plan. Under the aim for Business Retail and Administrative Development appears to “Encourage the development of the principal business retail and administrative centre on Eenie Creek Road at Noosaville in stages consistent with the needs of the population of the shire.” Para 27.2.3.2.
Another aim is to-
“Protect the long term viability of the principal business retail and administrative centre to the extent that:-
- Short term needs may be set aside to ensure the medium long term implementation of the centre
No other centres are developed in the coastal urban area with the exception of those servicing predominantly neighbourhoods and local communities”. Para 27.2.3.3.
Another aim is to “Recognise that it may be necessary to increase floor space in existing centres to meet changing needs:-
… …
In Noosaville .. and Tewantin any increased floor space is to be of a scale consistent with the direct needs of the area served by those centres and in keeping with the character of those centres… In all cases any increased floor space is not to impact on the successful operation and development of the principal business retail and administrative centre” Paragraph 27.2.3.4.
As part of the implementation for the Shire Business Centre on the land identified and set aside for it, the respondent on the 14th of September 2001 adopted PSP 39. It took effect on 14 December 2001. It is titled “Business Development Impacts on the Shire Business Centre”. In its introduction, it says that “Provisions of the Strategic Plan seek to protect the long term viability and the development and operational success of the Shire Business Centre site. The intent of this planning scheme policy is to:
- Assist in ensuring that provisions of the Strategic Plan are met;
- Provide guidance to the community, Council and its staff in the assessment of development applications”.
In discussing the strategic plan, and strategic aims in Paragraphs 27.2.3.3 and 27.2.3.4 thereof it says “The reasons for inclusion of protective aims of this nature are discussed in Business and Retail Development in Noosa Shire (Jackson 1996). These reasons are further highlighted in Independent Review of the Economic Impact of the Noosa Shire Business Centre (Urban Economics 2000) where it indicates that:
The impact of the Shire Business Centre can be reduced if Council places a moratorium on further retail approvals at existing centres. Incremental growth of existing centres (which has been occurring to date) absorbs the need identified at the Shire Business Centre site making it more difficult for the consequent impacts to be absorbed”… It goes on “where business development in the coastal area of the shire (where the subject land is) must follow an impact assessment process (the subject land) it is likely that the development will conflict with Strategic Aims 27.2.3.3 and 27.2.3.4 where it:
Is not on the Shire Business Centre;
Is not a material change of use of an existing building.
In such cases it is unlikely that Council will support the proposal”.
There was some expression of views in the evidence about whether the present application was for a material change of use of an existing building. “Existing building” was interpreted to include an existing approval for a building.
I consider the present application is not one for a material change of use of an existing building. While it is true some flexibility may be required in interpreting planning instruments, there is no sensible reason to torture the language used. As senior counsel for the co-respondent submitted, the policy provision plainly does and was intended, to provide an exception to the rigour of the policy for a property owner who has invested in improvement of the land by constructing a building.
I will deal with the issues under two headings, need and conflict with the Strategic Plan.
Need
As a town planning consideration, need has received attention in numerous appeals. In 1980 in Skateway Pty Ltd v. Brisbane City Council 1981 APAD 417 at 423-4 Carter DCJ said “need in planning terms is a relative concept. As Hardy J pointed out in Chartres Constructions Pty Ltd v. Randwick Municipal Council (1972) 25 LGRA 193 at 195 consideration of need in a town planning case must yield to the decisive effect of amenity and other town planning considerations. In a rezoning application the need contended for is firstly a community need, not in the sense that there is an element of urgent community necessity for a facility or for land so zoned on which a facility can be provided. Rather it connotes the idea that the physical wellbeing of the community or some part of it can be better and more conveniently served by providing the means for ensuring the provision of that facility subject always to other considerations of the town planning kind including the consideration that the wellbeing of the community also depends significantly on an acceptable residential amenity. If the provision of a facility which would otherwise advance the physical wellbeing of the community would effect the capacity of residents of that community to enjoy life then it can in truth be said that there is no need.”
In Ecovale Pty Ltd v. Gold Coast City Council 1999 2 QR 35 at 46-47 Fryberg J said “what is important (in considering need in planning appeals) is that neither in the concept as judicially developed, nor in the statute is need propounded as a matter which invariably carries weight. Often it may be a factor of no importance at all. The Act (the P & E Act) requires a council to assess it to an extent that it is relevant. It requires no more than that.”
In Watts & Hughes Properties Pty Ltd v. BCC 1998 QPELR 273 at 275, Skoien SDCJ said “Need in a town planning sense does not mean a pressing need or a critical need, or even a widespread desire. A thing is needed if its provision taking all things into account improves the physical wellbeing of the community. Cut Price Stores Retailers v. Caboolture Shire Council 1984 QPLR 126 at 131 Need does not connote a pressing urgency but relates to the wellbeing of the community. A use would be needed if it would on balance improve the services and facilities available in the locality” (see Roosterland Pty Ltd v. Brisbane City Council (1986) 23 APAD 58 at 60.
In Prime Group Properties Limited v. Caloundra City Council & Dearcolt & Ors 1995 QPLR 147 at 149 Skoien SDCJ in addressing the issue of need referred with approval to Cut Price Stores Retailers, Roosterland and William McEwans Pty Ltd v. Brisbane City Council (1981) 2 APAD 165. In the latter case it was said “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”
In Lewiac.& Ing Real Estate, Joondalup BV v. Gold Coast City Council & Ors 2003 QPELR 385 Newton DCJ considered that the attainment of an effective and sustainable hierarchy of retail facilities was a proper town planning principle to be achieved in the interests of orderly development, increased accessibility and access, greater economic efficiency and predictability in investment opportunities. Similar considerations had been referred to by Quirk DCJ in Willispap Pty Ltd v. Mulgrave Shire Council 1992 QPELR 51 and Overton & Anor v. Redcliffe City Council & Anor 2000 QPELR 250. In Lewiac, Newton DCJ considered that in resolving the respondent’s contention that there was no planning need for the development sought, it was necessary to consider the impact of the development sought on the hierarchy.
The Strategic Plan plainly establishes the Shire Business Centre at the pinnacle of the retail hierarchy in Noosa Shire. It is to be a multi function centre for the highest level of business retail and administrative services. Other retail centres are envisaged to serve local community needs.
The appellant’s evidence about need for the additional showroom floor space applied for comprised evidence from Mr Grisman, the general manager, development division, Reed Property Group by way of written statement, exhibits 12 and 12A and oral evidence. Reed Property Group owns the appellant. It also comprised evidence from a Mr Coghlin, an economist, by a written report exhibit 4 and oral evidence.
Mr Grisman is obviously experienced in commercial property development and management. He gave evidence of the appellant’s attempts to develop the subject property since acquiring it in 2001, of a shortage of showroom floor space in the Noosa shire., and of a level of enquiry from persons and businesses for showroom premises resulting from a sign on the subject land asking for expressions of interest in leasing part of constructed premises. Exhibit 12A contains the details. He said he did not envisage the subject land showrooms competing for the same type of showroom space tenant as would be likely to be attracted to the Shire Business Centre.
Mr Coghlin’s evidence in his written report exhibit 14 provided an analysis of trade area market growth up to 2011. In the report, although he dealt with existing showroom floor space in the shire, its location and utilisation and concluded there was a need and a demand for the additional floor space proposed the subject of the application, he did not refer in terms to any existing latent demand for showroom floor space nor to any existing tenants in showroom uses in the industrial area interested in upgrading to purpose built showroom premises. In his oral evidence however Mr Coghlin also expressed the opinion that in addition to trade area market growth supporting something like 8000m2 of showroom floor space from 2004 to 2011 there was an additional 5000 to 6000 m2 of existing unsatisfied latent demand for showroom floor space in the shire. There were tenants in less than appropriate locations in the industrial area and persons from that area who would take up 1000m2 of showroom space, whom Mr Grisman had told him had enquired about relocating if they could. Mr Grisman did not give this evidence to the court.
Mr Coghlin’s written report exhibit 14 did not clearly show a need for additional showroom floor space to 2011, beyond that approved for the Shire Business Centre and the appellant, see Table 2 on page 13 of exhibit 14. It is only if his opinion about an existing unsatisfied latent demand is correct that there may be shown to be a need for this additional showroom floor space.
The other evidence about market demand for showrooms in Noosa shire was given by Mr Norling, an economic analyst called in the respondent’s case. Mr Norling and his business Urban Economics had been professionally involved for a number of years in the process of economic analysis for the Shire Business Centre for the respondent. Mr Norling differed from Mr Coghlin, He adopted a more restricted trade area than Mr Coghlin, in particular not including the northern part of Maroochy shire. This attracted some criticism of his opinion. He used a higher productivity level for showrooms than Mr Coghlin. However even if Mr Coghlin’s productivity level is assumed, his resulting conclusion that no need for the additional showroom floor space the subject of the appeal has been shown is not affected. Mr Norling did not agree there was an existing unsatisfied latent demand for showroom floor space. In his opinion, the market for showroom floor space at the present time was at about equilibrium. The latent demand Mr Coghlin identified was in fact demand already satisfied albeit in the industrial area with inherent shortcomings. Putting the latent demand to one side, both he and Mr Coghlin had identified future demand at 7000 to 9000m2. The application under appeal sought to increase a small showroom use to a larger one, 2580m2 of showroom floor space to 4265m2 of showroom floor space, that is to 60% or thereabouts of the approved area in stage one of the Shire Business Centre. In the event the appellant’s showroom floor space is approved it can be developed about 18 months prior to Shire Business Centre and thus access the potential pool of tenants for showroom floor space.
Mr Coghlin sought to draw support from a document prepared for the co-respondent by a Mr McCracken from Economic Associates dated June 2002, exhibit 15. It was a report on a study assessing the demand and market prospects of the subregional shopping centre and retail component of the Shire Business Centre and its potential impacts upon the Noosa and wider Sunshine Coast retail network. Mr Coghlin considered his findings were similar. Mr McCracken’s report had concluded “our investigations and market assessment of the proposed 18200m2 Noosa subregional centre and 7000m2 retail showroom centre (the Shire Business Centre Stage 1) indicates that there is more than sufficient market demand and growth to support these additions to the retail network by the planned 2004 opening. Impacts upon the retail network in Noosa or the wider Sunshine Coast region are not of a magnitude to threaten the role and function of any existing centres currently serving the Noosa market area”. This study had used a similar trade area to Mr Coghlin. Mr Norling had provided an independent review of Mr McCracken’s study for the respondent dated December 2002 see exhibit 1 page 96. Whilst Mr Norling’s review contains some criticisms of Mr McCracken’s work, it said that the conclusions in Mr McCracken’s report were based upon a sound methodology, reasonable assumptions and a robust analysis. It concluded that despite an understatement of impacts in Mr Mc Cracken’s report, the impact of the subregional centre and showrooms (Stage One of the Shire Business Centre) “can be contained within manageable levels provided that future expansion of the retail network is contained”.
Mr Norling’s opinions were challenged by reference to previous reports he had provided to the respondent and also by reference to a market review Urban Economics had done for a company Mount Dean Pty Ltd in 2000. Mount Dean at that time was the owner of the subject land. The objectives of the review were to examine the competitive network within which the proposed retail showroom development would operate, identify its trade area, examine the size and characteristics of the trade area population and determine the total available retail expenditure bases within the trade are. At that time, Mount Dean was considering a development comprising 2580m2 retail showrooms floor space 1250 m2 bowling centre, 400m2 restaurant and 150m2 service shops. It seemed that the Mount Dean report had been compiled by Mr Norling’s partner. It used a trade area that mirrored Mr Coghlin’s and Mr McCracken’s and was positive for the 2580m2 of retail showrooms.
With regard to the economic analysis about retail showroom floor space I prefer the opinions of Mr Norling. His experience in Noosa Shire providing professional advice and review for the Shire Business Centre, its components and its impacts are factors which give weight to his evidence. The criticisms directed at his evidence do not in my judgment effect its value. I do not consider various isolated statements extracted from other studies and reports written some years ago for various purposes raise doubt about his evidence in the appeal. As to the trade area he used for the purposes of his evidence in the appeal, he acknowledged that it would have been appropriate to include a northern part of Maroochy shire in that but pointed out that Mr Coghlin had not included a level of escape expenditure in his work, that is, expenditure going out of the shire whereas he (Mr Norling) had by allowing for incoming expenditure to offset it.
Conflict with the Strategic Plan
In Grosser v. Council of the Gold Coast (2001) 117 LGERA 153 White J identified that Section 4.4 (5A) of the P & E Act required “a simple two stage process which first requires the identification of conflict with the Strategic Plan, then if conflict is present the application must be refused if there are not sufficient planning grounds to justify approving the application despite the conflict”. In Weightman v. Gold Coast City Council 2004 1 LGERA 161 Atkinson J further elaborated; - there should be;
an examination of the nature of the conflict;
a determination whether there are any planning grounds which are relevant to the part of the application which is in conflict with the Planning Scheme and if the conflict can be justified on the planning grounds;
a determination whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.
It has long been recognised that Strategic Plans setting out statements of intent aims and objectives should be read broadly rather than pedantically. Yu Feng Pty Ltd v. Maroochy Shire Council (1996) 92 LGERA 41. They “are not drawn with the precision of Acts of Parliament”, Harburg Investments Pty Ltd v. Brisbane City Council 2000 QPELR 313 at 319. They “are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide if a particular proposal should be approved or rejected” Degee & Anor v. Brisbane City Council & Anor 1998 QPELR 287 at 289. “They should be read in a practical common sense way determining ambiguities and inconsistencies in context and adhering to the intent of the planning document …. A town planning document is not a carefully drafted piece of legislation. Ambiguities must be determined in a practical common sense way, according to the planning intent” Des Forges v. Brisbane City Council & Anor 2002 QCA 90 21 March 2002 paragraphs 41 and 44.
Each party led town planning evidence.
The appellant called evidence from Mr Dillon a town planner. He considered that the proposal was for a use on an appropriately zoned site, which had been in existence prior to the 1997 Strategic Plan and PSP 39. He did not consider the proposal to be in conflict with PSP 39, or based upon the advice of Mr Coghlin, the Strategic Plan. He considered in any event there were strong planning grounds supporting the proposal. These consisted of the zoning, the nature of the uses already approved for the site, the replacement of two non-preferred uses (that is, not mentioned in the plan of development list of consent uses) by the proposed showroom space, that an approved building is soon to be erected on the site, that approval already exists for eight showroom tenancies on the site, that the proposal has the potential to improve the nature of level of facilities to the local community. He considered PSP 39 ought to be interpreted having regard to the existing zoning, plan of development and schedule of use intentions already given to the site, together with any current development approvals over the site.
Mr Reynolds, a town planner gave evidence in the co-respondent’s case. In his opinion the proposal was in conflict with the intent of the zone, PSP 39, the Strategic Plan preferred dominant land use designation for the subject site and the Strategic Plan provisions relating to the Shire Business Centre. He thought the proposal was likely to harm the implementation and ongoing viability of the Shire Business Centre. The consequences of harm would have shire wide implications upon economic, social and ecological strategies interconnected with the Shire Business Centre strategy. A cautious approach was warranted.
Mr Venn, a town planner gave evidence in the respondent’s case. He considered the proposed use was not consistent with the strategic intent for the site, nor with the aim of Precinct K of the plan of development. The uses already approved and proposed were neither low key nor home businesses. Nor did they provide the transitional buffer intended. Moreover the proposal conflicted with the strategic aims of the Strategic Plan directed towards the protection of the Shire Business Centre. The proposal was in conflict with the strategic aims in paragraphs 27.2.3.3 and 27.2.3.4 of the Strategic Plan and the intent of PSP 39. There was insufficient planning merit to overcome the conflict with the Strategic Plan.
Paragraphs 27.2.3 .3 and 27.2.3.4 of the Strategic Plan in the context of the detailed identification of the Shire Business Centre in the Noosaville locality provisions of the Plan attempt to ensure so far as town planning can, that the Shire Business Centre vision, that is of a multi function employment node accommodating the highest level of business retail and administrative services for the Shire, and including as part of it the development of integrated transport infrastructure, comes to fruition and does not unduly impact on existing centres. The aim is to “Protect the long term viability of the principal business retail and administrative Centre… Short term needs may be set aside to ensure the medium- long term implementation of the centre. No other centres are developed in the coastal urban area with the exception of those servicing predominantly neighbourhoods and local communities…. In all cases any increased floor space is not to impact on the successful operation and development of the principal business retail and administrative centre”
PSP 39 is consistent. Impact assessable business development sought in the coastal area of the shire would be likely to conflict with Strategic Aims 27.2.3.3 and 27.2.3.4 where it is not on the Shire Business Centre.
If the application under appeal is approved the development of the appellant’s showrooms will potentially be completed 12 to 18 months before the Shire Business Centre Stage One can commence to operate. Potential tenants of the showroom floor space will be able to establish in modern purpose built showrooms with significant main road exposure despite the vegetated buffer. I accept the evidence that many businesses requiring showroom floor space would be interested in both the Shire Business Centre site and if approved the Noosa Gateway space. There may be a clear commercial advantage in establishing in a desirable location rather than waiting for the development of the Shire Business Centre. If that was to occur it is commercially unrealistic to consider that those tenants, 12 to 18 months later would relocate to the Shire Business Centre. To that extent if the application under appeal is approved, there is a potential for a reduction of the pool of tenants that might otherwise be available to the Shire Business Centre.
The intent of the Strategic Plan is plainly to successfully implement the Shire Business Centre and the infrastructure which is part and parcel of it. A part of the successful implementation of the centre is the viability of Stage One. Underlying the Strategic Plan’s provisions about the Shire Business Centre is recognition that the respondent’s planning can provide the vision and the framework but cannot legislate a successful implementation. That can only come from Business Retail and Administrative services perceiving worthwhile commercial or business reasons to support it, in simple terms, a high level of customers or users for the facilities in the centre. The centre is to be a multi function centre. For optimum success its various parts and facilities should compliment and draw synergies from each other. The Strategic Plan sets out in part to ensure the developer has available the widest range of prospective tenants to maximise the prospects of the Shire Business Centre achieving the vision. It is also concerned with limiting the impact of the Shire Business Centre for other existing centres.
These sorts of considerations I think lie behind the provisions of the Strategic Plan to encourage the successful operation and development of the Shire Business Centre. The Shire Business Centre is not only about showrooms. It is concerned with the successful development of a multi-function centre for the highest level of business retail and administrative services. It is an integrated development with many components, one of which is showrooms.
The application under appeal is not shown to be development designed to service predominantly neighbourhoods and local communities. Nor is it shown to be for home business or a low impact industrial function. Mr Grisman gave evidence that the appellant would, if the application was approved, make the most of the road exposure to the heavily trafficked Eumundi Noosa Road. The development which is sought is intended to be almost entirely showrooms. Plans for it indicate one hundred and two parking spaces are to be provided almost double, the number required by the plan of development for Precinct K.
Conclusion
It has not been shown there exists a need as that word is understood in town planning, for the increased showroom floor space the subject of the application. Moreover, although the increase sought is not particularly large in itself, it will increase the already approved but not yet constructed showroom floor space on the subject land. I think it is shown there is potential for this showroom floor space to adversely impact on the optimum implementation of the Shire Business Centre. Putting it another way, it has not been shown it will not. Finally, I think the application under appeal is in conflict with the planning intent of the Strategic Plan in the ways I have indicated. None of the planning considerations identified by Mr Dillon in my opinion are sufficiently weighty in the circumstances of this case to justify approving the application.
The appeal is dismissed.
Costs
The corespondent sought an order for costs thrown away by early adjournment of the hearing on the 10th of June. The Court adjourned at 4:05 pm until the next day.
At the time of the adjournment the respondent was presenting its case. The co-respondent’s case was yet to be presented. Later the co-respondent called evidence from one witness a town planner Mr Reynolds. The corespondent was not prepared to call that evidence before the respondent closed its case. It was entitled to take this position.
The early adjournment came about because during the cross examination of the respondent’s expert witness about economic matters. Mr Norling, by the appellant, a report written by Mr Norling’s firm Urban Economics in October 2000 for a company Mount Dean Pty Ltd, entitled as a market review of a retail showroom development at Noosaville, was produced by cross examining counsel. It later became exhibit 16. Mount Dean Pty Ltd had at that time owned the subject land subsequently acquired by the appellant. Disclosure by the appellant to that point in time had not revealed the report. Mr Norling was stood down to allow an opportunity for counsel to read the report and seek any instructions deemed necessary.
Disclosure is required of all documents directly relevant to an issue in a proceeding. It is ongoing until a proceeding is decided - Rule 211 UCPR. Disclosure is not required of a document relevant only to credit – Rule 212 (1) (b) UCPR.
An issue in the appeal was whether the development the subject of the application under appeal was needed in a planning sense. Bearing on that was economic evidence about retail demand in the Noosa shire. Another issue was whether the application, being for an increase in showroom floor space, would impact on the successful operation and development of the Shire Business Centre.
These matters were plainly in contemplation of the parties in particular the appellant when it commissioned Mr Coghlin, its economic expert to investigate and report.
The subsequent cross examination of Mr Norling based upon exhibit 16 drew out that the trade area relied upon for the purpose of exhibit 16 mirrored the trade area used by Mr Coghlin but was greater than Mr Norling had used for exhibit 7 his evidence in the case. It also drew out that exhibit 16 contained no suggestion of a negative impact of a contemplated 2580 m2 of retail showrooms on the then contemplated 10000m2 retail showroom space in the Shire Business Centre concept. Counsel suggested there was in fact a latent unsatisfied demand in Noosa Shire for in the order of 5000m2 of retail showroom floor space an opinion expressed by his economic witness Mr Coghlin. The purpose of the cross examination was to shake the credit worthiness of Mr Norling and enhance the prospect of Mr Coghlin’s opinion being acted upon by the court.
Counsel for the appellant tendered the report which became exhibit 16. The tender may suggest some latent purpose other than the credit worthiness of Mr Norling. Mr Norling had not disputed any of its content.
The other relevant matter is whether the appeal was lengthened by the early adjournment in a way relevant to an increase in costs. When Mr Norling returned to court on the 11th of June 2004, his cross examination by the appellant’s counsel commenced at 10:27 am. It concluded at 10:42am thus occupying fifteen minutes. Counsel for the co-respondent then cross examined him and he was then re-examined. His evidence concluded at 11:10am. In all his evidence in total occupied 43 minutes.
The corespondent then commenced its evidence calling its town planner commencing at 11:10am. This was the final evidence in the case. The evidence finally concluded at 12:46 pm.
Translating these times to the afternoon of the previous day, Mr Norling’s cross examination by the appellant would have continued until 4:20pm and his evidence concluded at 4:48 pm. If the court was minded to sit on, the evidence in the case would have concluded at 6:24pm on that day. Instead it occupied two hours and nineteen minutes of the next day.
In truth I think exhibit 16 was only relevant to credit. It was not directly relevant to a matter in issue. Additionally, given the time involved, I am not persuaded any costs were generated that would not have been generated in any event. There will be no order for costs.
0
2