Petroleum Design and Management Pty Limited v Whitsunday Regional Council
[2009] QPEC 115
•24 November 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Petroleum Design & Management Pty Limited & Anor v Whitsunday Regional Council & Ors [2009] QPEC 115 |
PARTIES: | PETROLEUM DESIGN & MANAGEMENT PTY LIMITED ACN 050 059 946 AND WOOLWORTHS LIMITED ACN 000 014 575 (Appellants) v WHITSUNDAY REGIONAL COUNCIL and UNITED PETROLEUM PTY LTD ACN 085 779 225 and CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS |
FILE NO/S: | BD 891 of 2008 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning & Environment Court |
DELIVERED ON: | 24 November 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 08, 09, 10 September 2009, 07 and 08 October 2009 |
JUDGE: | Robin QC DCJ |
ORDER: | Appeal to be allowed upon finalisation of conditions |
CATCHWORDS: | Integrated Planning Act 1997 s 4.1.52(2)(a), s 6.1.29, s 6.1.30 Local Government (Planning and Environment) Act 1990 s 4.3(3), s 4.3(5A) Developer appeal against refusal of proposal for a service station (and shop) – Council now supportive – first co-respondent by election (a trade competitor) asserts conflict with applicable 2000 Planning Scheme (lack of need shown generally or to justify notional rezoning from medium density residential) and with supervening 2009 Planning Scheme which envisaged such proposals in the Industrial Zone, not the new Commercial Zone) – weight to be accorded to 2009 scheme considered – whether 2000 planning arrangements overtaken by events – whether the appellant Woolworths should be struck out of the appeal as not an “applicant” |
COUNSEL: | T Trotter for the Appellant B Job for the Respondent J Hodgkinson (solicitor) for the First Co-Respondent by Election (08, 09 and 10 September 2009) G Allan for the First Co-Respondent by Election (07 and 08 October 2009) S Rowland for the Second Co-Respondent by Election (07 October 2009 only) |
SOLICITORS: | Allens Arthur Robinson for the Appellant Deacons for the Respondent In-house solicitor for the First Co-Respondent by Election (08, 09 and 10 September 2009) p&e Law for the First Co-Respondent by Election (07 and 08 October 2009) Crown Law for the Second Co-Respondent by Election (07 October 2009 only) |
This is a developer appeal commenced on 11 April 2008 against the Respondent Council’s refusal of a development application seeking principally a development permit for a material change of use for a service station on a site on Proserpine-Shute Harbour Road, Cannonvale. The site gained some special attention in the Whitsunday Shire Council Planning Scheme gazetted 16 June 2000. Since the lodging of the IDAS Form 1 Development Application in the middle of 2007, there has been considerable reference to s 2.4.3(b) of the Strategic Plan which commences:
“(b)Development should address genuine community needs for services and facilities.
Services and facilities to meet community needs to 2011 that will be encouraged within the Shire include:
· a Town Centre at Proserpine and Airlie Beach;
· a possible Future District Centre at the corner of Milk Depot Road, Shute Harbour Road and Paluma Road;
· neighbourhood Centre at Jubilee Pocket and a District Centre at Cannonvale;
…
Council may support commercial and community development within identified nodes where development accords with the following:
…
· demonstrated public need for facilities consistent with the planned hierarchy of centres; and
…”
This all goes to explain the focus there has been on whether “need” for development has been or must be established, as provisions in 2.5.7 Coastal Settlement, a designation which “includes small coastal settlements within the Shire” may reinforce:
“Objective 2: Provide for uses to service the immediate residential and tourist needs
…
A possible future district retail centre has been indicated on the corner of Milk Depot Road. Shute Harbour Road and Paluma Road. The timing of need for this centre will need to be established. It is unlikely that the facility will be needed until after 2006.”
Milk Depot Road is now called Galbraith Park Drive.
(At the time of the development application the site was within the Urban Residential Zone, the Statement of Intent for which (5.5.1) was in terms that it “provide for development for urban residential purposes and for compatible purposes which directly service residents in the locality”.)
That centre, variously described as Cannonvale Shopping Centre and Centro now exists with some 22,000m2 of trading space, it is the largest by far in the region. It contains many specialty stores, a Harvey Norman and significantly a full line Woolworths Supermarket and a Big W discount department store of more than 5,000m2. These last two operations may be identified with the appellant Woolworths. Part of its case asserts the advantage that customers of those Cannonvale enterprises (and of the Woolworths Supermarket in Proserpine who find themselves in Cannonvale, which is some 20km distant) would get from being able to use fuel discount vouchers to obtain fuel at a price a few cents below the ordinary pump price. There is no service station in the region offering that facility to customers, who are unlikely to be inclined to avail themselves of such possibilities as there are in distant locations like Bowen. Customers of Woolworths’ main rival, Coles, operator of a smaller size supermarket further east in Cannonvale are able to use their discount fuel vouchers at the nearby Shell service station.
I adhere to the view expressed in passing (not even as a makeweight) in Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QPELR 224 at [42] that there may be public and private advantages if supermarkets issuing fuel discount vouchers and service stations disposed to honour them are located close to each other. Other judges have been of the same mind: Sitelist Pty Ltd v Cairns City Council [1999] QPEC 36; [2000] QPELR 37, [5], [21]; Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPEC 020, [2], [25].
Exhibit 9 is a report of the Australian Competition & Consumer Commission of December 2007, Petrol Prices and Australian Consumers. It contains survey material upon which the court was invited to act. It seems that 60% of fuel sold through outlets branded Woolworths-Caltex relates to discount voucher transactions. In the market generally, use of discounts against fuel prices offered by supermarkets has been on the increase since the inception of such schemes in 1996. A survey reported at page 185 of Exhibit 9 conducted in 2007 found that 79% of motorists surveyed had used shopper dockets, 48% were regular users, up from 19% in 2003 and 40% in 2005. Another survey commissioned by the ACCC in November 2007 produced results of 75% and 49%, which it was suggested might indicate use of dockets has peaked (page 195). It is interesting to note that the great majority of shopper docket users buy petrol only when they need it rather than on the basis of price and that 29% of motorists do not check the prices of other service stations before using a shopper docket.
It is therefore unsurprising that the court heard evidence that, assuming there is such a phenomenon as a fuel price cycle on a weekly basis, fuel is at its most expensive on the days when the supermarkets are busiest. The benefit of the proposal to Woolworths customers may be to an extent psychological, especially if Mr Coghlin’s analysis of the true value is correct, but I regard it a benefit nonetheless.
Intrafield Pty Ltd v Redland Shire Council [2000] QPELR 337 was an unsuccessful developer appeal against refusal of a material change of use for a service station. The proposal was otherwise favoured by the court, but the expressed conclusion was that “the failure of the appellant to demonstrate need for the development means that the appeal must be dismissed”. The Court of Appeal granted leave to appeal on the basis that this court may have given effect to a principle (declared to be erroneous) “that the failure to demonstrate need inevitably required the dismissal of the appeal”. Although “in addressing the question of need, his Honour made a number of findings of fact suggesting that the question was finely balanced”, the case for leave to appeal was seen as so strong that the respondent Council ought not get its costs of the application for leave, even if the appeal failed. See Intrafield Pty Ltd v Redland Shire Council [2001] QPELR 81. A second basis for the granting of leave was Pincus JA’s view (apparently shared by Ambrose J) that the effect of the reasons of the primary judge was “to emphasise protection of the business of existing traders in the area and to treat that … as a dominant consideration. The case possibly may involve a question of the extent of the Planning and Environment Court’s function in protecting existing traders from new competition.”
The appeal by leave failed: Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116. Their Honours who decided the principal appeal agreed with those who had granted leave that it would have been an error to conclude that the appellant’s failure to demonstrate need required that the appeal be dismissed, but considered ([12]): “on a fair reading of the reasons the primary judge did not regard himself as compelled to dismiss the application because of the appellant’s failure to establish need, although in the end that was the decisive factor”. On this point it was concluded:
“[20]… that need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account. The findings of the primary judge amount to no more than that the existing facilities were adequate and the proposal would do no more than give a choice which some consumers might choose to avail themselves of.
[21] The findings were open and authorities do not support a conclusion that this satisfies the requirement of need.”
The primary judge had regarded as a “problem” for the appellant the Council’s local planning policy ENPE012 – “Development of Land for the purpose of Service Stations (including combined premises for service stations and shops)”, objective 8 of which was “to permit the provision of new service stations only where a need can be clearly demonstrated” ([2000] QPELR 342 – 43). The merit of the proposal was said to lie in its offering “convenience shopping” for home bound motorists. At 340 his Honour noted the lack of
“evidence of inadequacy in respect of the two major (existing service stations) … or overcrowding of existing outlets. Of course convenience for the motorist is a major element in establishing planning need, but in my opinion in this case the evidence does not go further than to show that the proposal would be an attractive and additional choice for some of those motorists. That falls short of showing that the needs of motorists are not at present adequately catered for.”
As to the competition aspects and effects on existing operators in the relevant market, the Court of Appeal said:
“[22]Kentucky Fried Chicken Pty Ltd v Gantidis & Anor (1977-1978) 140 CLR 675 at 687 was cited in support of a proposition that the reference to the “viability of the operation” in paragraph seven of the reasons of the primary judge show a concern with the protection of existing traders from competition which was irrelevant unless the impact of the new proposal resulted in a nett loss of facilities to the public not made good by the new development. The passage does not however suggest a conclusion that the judge gave effect to any such concern. The primary judge did not suggest any existing facilities would be rendered uneconomic.
[23]In any event Gantidis was not concerned with need in the sense that the primary judge was concerned with it. It was concerned with the stage at which an overall adverse affect on facilities of the local community becomes a relevant town planning consideration. That is irrelevant in this case.”
The Whitsunday Shire Council Planning Scheme of 2000 by no means requires “need” to be demonstrated in such a clear way as did the Redland provisions considered in Intrafield. In any case, that the District Centre was up and running by the time of the development application goes far to establish “need”. The Statement of Intent for the Urban Residential Zone, applicable to the majority of residential land in the Shire says it “is intended to provide for development for urban residential purposes and for compatible purposes which directly service residents in the locality” (5.5.1). That may be taken as requiring a “need”, although the word is not used. The artificiality of seeking to limit facilities such as service station/shop to local users has been noted in cases such as Seven Eleven Stores Pty Ltd v Pine Rivers Shire Council [2006] QPELR 85. On a fair, practical reading, the 2000 scheme presents need as an issue in respect of whether there should be retail at all (in a District Centre) not as one to be assessed in relation to individual retail outlets within the centre. The proposal undoubtedly will directly service local residents and a wider clientele.
The Whitsunday Shire Planning Scheme which commenced 9 January 2009.
The development application included an additional use of “shop” because of the uncertainty about the meaning of “service station” in the 2000 scheme and whether “sale by retail of … (v) goods for the comfort and convenience of travellers by motor vehicles” covered the full range of products that might be offered for sale, the definition otherwise being “restrictive” and not going beyond “TBA” (tyres, batteries and accessories, etc). The 2009 scheme defines “service station” to include a shop of not more than 150m2 gross floor area. It is more welcoming of the proposal because it includes the site (hitherto “medium density residential”) in the Commercial Zone, the Intent for which (4.13.1) states that it “includes uses that will benefit from a relatively centralised location, however will not have an adverse impact on the adjoining residential land uses and activities … it is intended to provide a range of urban services to support retail, commercial, business and administration activities.” “Service station” not being specifically provided for, proposals in that regard are impact assessable; they must comply with the Commercial Zone Code (4.14), the Commercial Uses Code (6.3.1) and the Service Stations and Vehicle Washing Stations Code (6.3.3). It is common ground that the proposal complies with the codes – in the sense that United did not contend otherwise. There is no requirement to establish “need” under the 2009 scheme. A new application, were the appellants driven to one, for example, because attracted to Mr Coghlin’s opinion that there were more suitable alternative sites in the general area for the proposal, would, it was accepted, attract adverse submissions from commercial rivals, United in particular, presenting obstacles sure to involve cost and delay.
Section 4.1.52(2) of the Integrated Planning Act 1997 (IPA) provides relevantly that the court:
“(a) must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies that the court considers appropriate.
It may be appropriate to give great weight to the 2009 scheme.
I reject the alternative site arguments, which Mr Allan effectively abandoned. Mr Trotter for the appellants asserted that the court is not attracted to such arguments, citing The JAG Superannuation Fund v Brisbane City Council [2008] QPEC 30; [2008] QPELR 659 [62]. As in Gracemere Surveying v Peak Downs Shire Council [2008] QPEC 97; [2009] QPELR 416, the alternative sites suggested, on examination, are less suitable than the site proposed; it is not clear that any of them is available. The co-location of a service station with the commercial uses established in the Centro Shopping Centre at Cannonvale is a planning advantage not available at the proposed alternative sites. If the co-location advantage needed any reinforcing, it is available in the circumstance that the bulk of the service station’s customers are likely to be customers of the fuel discount voucher issuers located in the same shopping centre.
It cannot be said that the proposal fits ideally into the shopping centre. As Mr Beard said, it has to be “retro-fitted” in a location that was originally planned to accommodate a fast food outlet. Had it been intended all along to be a service station use, the overall design would certainly have made a better provision for traffic arrangements within the Centro centre. Although the solutions available now may be less than optimal, arrangements that are satisfactory can be devised, indeed, have been devised by the traffic experts.
The Council rejected the development application on 11 March 2008, leading to the institution of the appeal on 11 April 2008. The decision notice was signed on 12 March 2008, providing the following reasons for refusal (which the officers’ planning report of 11 March 2008 had described as “inconsistencies” with the Planning Scheme:
“● The proposed development is inconsistent with the objectives of the Strategic Plan District Commercial Centre designation.
● The proposal is inconsistent with the Urban Residential Zone.
● The Applicant has not demonstrated that existing service stations are inadequately servicing the community.
● The Applicant has not demonstrated sufficient “need” exists for an additional retail fuel outlet based on convenience and improved well being of the community in this locality.
● The Applicant has demonstrated that an additional retail fuel outlet is not required immediately but will be required around 2013.
● The proposal provides an industrial focus along Shute Harbour Road that is considered to be out of character with existing and approved development for this locality.
● The proposal will adversely affect amenity of the locality and is considered to be poor urban planning.
● Approval of the proposal may set a precedent, for further industrial development along Shute harbour Road that will further diminish the streetscape and character of the locality.”
The Council adopted its new planning scheme on 17 December 2008, 23 days before it came into effect. In anticipation of such adoption the Council on 24 September 2008 resolved to settle this appeal on conditions set out in its resolution which can be found in the Appeal Book, Exhibit 1, at Tab 31. The court was asked to proceed on the basis that the conditions resulted from pursuit by the Council as assessment manager of a full-blown impact assessment process; United did not present any case to the contrary.
The Council’s role in the appeal has been entirely supporting of the appellants. There were no differences between its planning expert, Mr Schomburgk, and the appellants’, Mr Brown. Their joint town planning report of 3 August 2009 is at Tab 34 of Exhibit 1. Their conclusions are:
“CONCLUSIONS
A.The proposal does not conflict with the superseded transitional Planning Scheme. When read fairly and broadly, it is our opinion that the Urban Residential Zoning of the subject land is to be considered in the context of the Strategic Plan provisions, and these intentions have been realised through the establishment of a retail centre at this location.
B.The proposal does not conflict with the Whitsunday Planning Scheme 2009.
C.The proposal would not be likely to result in any significant traffic, amenity, or character issues that would suggest refusal of the application.
D.The proposal would be of benefit to the community generally by contributing to the satisfaction of community need from a number of perspectives, including convenience and accessibility, choice, competition, market growth, standard of facilities, and long term viability.
E.Given that there are no points of disagreement and that there are no town planning experts engaged by any of the other parties, the experts agree that, subject to legal advice, no further reports dealing with town planning matters are necessary in this appeal.”
United engaged no expert planner. It did engage an economic expert, Mr Coghlin, who prepared a joint economic report with Mr Duane, engaged by the appellants. (Tab 33). He has prepared subsequently his own report and he gave oral evidence. The economic experts differed as to “need”.
Ought Woolworths Limited be struck out as an appellant?
Mr Allan appeared for the first time on 6 October 2009, to which date the appeal had been adjourned for the purpose of additional evidence pertinent to the new traffic issue being presented. At the outset, he submitted that the court lacked jurisdiction to entertain the appeal, asking that Woolworths Limited be struck out as appellant before the hearing advanced any further. Any notice to the other parties that the “preliminary point” would be raised came very late. Woolworths has been an appellant since the institution of the appeal and it is unsatisfactory from every point of view to have objections to the constitution of it raised so late. Nonetheless, it is incumbent on the court to look into such a challenge to avoid the risk of making orders that might be vitiated by a successful jurisdictional challenge on appeal.
It was not suggested that United suffered any disadvantage from the presence of Woolworths which throughout has had common representation with the other appellant. The evidence would have been same without Woolworths’ participation. Its participation has made no practical difference to the way in which the appeal was conducted.
Mr Allan’s submission in this regard was founded on s 4.1.52 of the IPA one of the principal provisions establishing how the court ought to proceed. Relevantly, the appeal is one by “the applicant”, a term which was said not to extend to Woolworths. Entitlement of an “applicant” to appeal is established by s 4.1.27. Prima facie, the “applicant for (the) development application” referred to in s 4.1.52(2) is Petroleum Design and Management Pty Ltd which identified itself as applicant in the Form 1 IDAS development application of 29 June 2007. The covering letter was from Planning Australia. It enclosed Mr Brown’s town planning report, commencing:
“Planning Australia has been commissioned by Petroleum Design and Management Pty Ltd on behalf of Woolworths Ltd to prepare a town planning report to accompany a development application to the Whitsunday Shire Council for a Development Permit for a Material Change of Use of Premises for:
(a)a service station;
(b)shop;
(c)an environmentally relevant activity being ERA No 11a – storage of petroleum product in tanks having a combined total storage capacity of less than 500,000 litres.”
Mr Allan placed reliance on what was said by the Court of Appeal in Sushames v Pine Rivers Shire Council [2007] 1 Qd R 382 (a case which he acknowledged arose in a very different factual context) at [15] which acknowledges the expansion of the concept of “applicant” in Schedule 10 of the IPA:
“[15] It should also be emphasised that an application for a development approval contemplated by the IPA is one coherent proposal, which is put forward as such and is to be assessed as such. The application is, necessarily, directed by an applicant. When the IPA speaks of ‘the applicant’ as ‘the person in whom the benefit of the application vests’, it is referring to the person or group who, at the time of the appeal, is exclusively entitled to control the application as the person with the beneficial interest in the application for the development permit. Importantly, the provisions of the IPA do not envisage a multiplicity of such ‘applicants’ at any one time. The IPA does not envisage that an application to be assessed may be advanced or modified or withdrawn by several divergent voices. The situation would be intolerable for an assessment manager.
[16]Of course, an ‘applicant’ may be a group, comprised of more than one person, that has joined together to make the application with one voice (if that group is exclusively entitled to the beneficial interest in the application for the development permit), and the identity of an ‘applicant’ may change from time to time as a result of the benefit of the application being vested in a person other than the person originally named as the applicant (which I discuss further below). This case is not, however, an example of either of these situations.”
Earlier in the reasons, it had been noted that the relevant development application had not been made originally by the company wishing to be let into an appeal as “applicant”, further that “the application was not made on its behalf”. In my opinion Sushames acknowledges that there may be more than one applicant where a development application is made by A for B, as plainly happened here. An example of both the nominal and the true applicant being permitted to participate in an appeal as applicant or “developer” is Bower v Brisbane City Council [1990] QPLR 127. The change in the statutory regime since Bower was considered not to have affected the possibility of there being multiple applicants in Ogle v Pine Rivers Shire Council [2005] QPELR 291 at [12]. In a later instalment of that saga the Court of Appeal gave a company called Tendiris Pty Ltd (which acquired the Ogle land in a mortgagee sale and had been allowed to commence its own developer appeal when Mr Ogle refused to be dislodged from his) and its director Mr Smits were given the option to decide which of them ought to replace Mr Ogle as appellant: see Ogle v Pine Rivers Shire Council [2008] QCA 232 at [32]. Mr Smits was selected, with inconvenient consequences when he and the company engaged their own independent solicitors and counsel (and the possibility could not be excluded of their propounding different development proposals for the site); see Smits v Moreton Bay Regional Council [2009] QPEC 63. No difficulties of that kind have eventuated here.
The court did raise with Mr Trotter (Day 3, transcript page 20) how it was that Woolworths got into the appeal – which may have instigated United’s or Mr Allan’s interest.
Through Mr Trotter both appellants assert that they are content with the way the appeal has been constituted, that they do not wish to forestall a confrontation about this court’s jurisdiction on appeal by the removal at this stage of either of them.
The court issued a challenge to Mr Allan that a precedent be produced which might establish that this court lacks jurisdiction to determine an appeal in which there is at least one appellant with standing on the basis that additional appellants joined in who might have lacked standing. No response was expected, and none was forthcoming.
The Traffic Issue
Against the other parties’ objections, the appellants’ in particular, the court indulged Mr Hodgkinson, an in-house lawyer who had suddenly found himself conducting the appeal upon the cessation of retainers to local solicitors and counsel, by allowing investigation of a traffic issue. Although such an issue ought to have been properly identified in the customary pre-trial procedures, the public safety aspect persuaded me that United should be permitted to demonstrate through expert evidence that there was something which, as guardian of the public interest, the court should look into. Mr Beard made himself available at short notice and gave oral evidence which clearly satisfied the court’s requirement. The proposed service station site is bounded on the south by Shute Harbour Road, on the west by an access by left hand turn from that road to the shopping centre proper. That access carries “one way” traffic into the shopping centre site a short distance only to a “T” intersection with a ring road or similar servicing the shopping centre which in the east forms the northern boundary of the service station site. While it may have been advantageous for the proposal to have direct access from Shute Harbour Road, as the United site to the east does, that would clearly be unacceptable as a third exit from Shute Harbour Road within a short distance. The proposal is to have an entrance at the west of the site by a right hand turn from the one way access, with a second entrance “around the corner”, so to speak of what I have called the ring road (which would necessitate a right hand turn across oncoming traffic, if there was any, not only to get on to the ring road, but also to get off it into the site). Such arrangements are likely to confuse and discourage patrons proceeding east along Shute Harbour Road; they are not replicated in the easy access to United’s site. United’s goal, as pursued by Mr Hodgkinson, understandably enough appeared to be to have presented to customers considering patronising United’s unwelcome new competitor next door, which might discourage some of them, the inconvenient double right turn access described. Mr Beard’s provisional views sufficed to show the existence of a traffic issue regarding the appellant’s proposed access, aspects of which concerned safety on the one way access road and at the “T” intersection. Further, there was concern about the suitability of arrangements for large vehicles, among which were those delivering bulk fuel to the new service station. Directions were given which bore fruit in the form of communication between Mr Beard and the appellants’ traffic engineer Mr Trevilyan and a joint report. The result will bring improvements, including a wider separation, for safety reasons, between the egress from the service station (further to the east along the ring road) and a nearby intersection on the opposite side of the ring road. The experts agreed on virtually everything, including the capacity of the site to permit necessary manoeuvring by vehicles delivering fuel (which may represent a stroke of good luck, given that the site was originally envisaged to be a fast food outlet). The appellants’ plans have had to be revised to accommodate the experts’ view that, for the avoidance of confusion, vehicles entering the access from Shute Harbour Road should be channelled into a single lane, from which they could turn right or left on to the ring road, rather than be offered two lanes, one for left turns, the other for right turns. This preserves the appellants’ desired “western” entrance to the service station and should obviate potential confusion as to the path a driver indicating a right hand turn intends to take. The only difference between Mr Beard and Mr Trevilyan concerned whether the restriction in width of the access intersection with the Ring Road should be achieved by a raised kerb or by marked chevrons, associated with “rumble strips”, as favoured by Mr Trevilyan. The advantage of this would appear to be that trucks turning left would not have to veer on to the wrong side of the ring road. The court was relieved from having to make a judgment, as the appellants indicated agreement to Mr Beard’s more stringent recommendations. The Council was agreeable, provided the works involved carried no cost implications for it. There is probably no cause for concern, as everything is to occur on private land.
In closing addresses, Mr Allan did not cover the traffic issue. There is no occasion for the court to reject the traffic engineers’ joint views and reject the contentious access to the site (the one nearest Shute Harbour Road).
Conflict with the 2009 Planning Scheme
Much of the time taken by the day and a half of addresses was devoted to determining whether the proposal conflicted with the 2009 Planning Scheme. The expert planners’ joint conclusion that there was no conflict was disputed by Mr Allan. He was without the support of any expert planning opinion and he was not there to cross-examine Mr Brown or Mr Schumburgk, but is clearly correct that interpretation of planning schemes is a matter of law in which, in the end, the court’s view is what matters, rather than the opinions of planners. Mr Allan made the most of Mr Trotter’s submissions for the appellants that in draft from the 2009 Scheme was entitled to receive weight, that “where a new scheme, such as this, has been in force for nearly a year, it may be determinative”; the written submission went so far as to assert that “there is no warrant for giving any weight to the old scheme so far as it relates to this site”.
In the 2009 Scheme, use classes are identified in 2.1.1 under the headings Rural, Residential, Commercial, Industrial and Community. In the Planning Scheme Zone Map, the site is placed within the “Commercial” Zone, as is United’s site in the same swathe of blue colouring, rather than in the purple “Industrial” Zone. Service Stations is one of the Industrial use classes and not one of the Commercial use categories, the only one of which apt to include a service station is “Retail/Commercial Complex” which it might be contended covers sale by retail of fuel, as proposed here. The industrial use of “service station” clearly describes the proposal:
“ ‘SERVICE STATION’ means any premises used for the sale by retail of petrol, diesel or automotive distillate or any derivatives thereof, for use in internal combustion engines. The term includes a shop of not more than 150 metres squared gross floor area but it does not include any use otherwise specifically defined herein.”
Thus, it would not include a “vehicle washing station” or the “low impact industry” of “automotive repair and services” (another industrial use).
The definition of “service station” in the 2000 Scheme brought in the considerable range of activities over and above retailing:
“ ‘Service Station’ means any premises used or intended for use for the sale by retail of petrol and automotive distillate or any derivatives therefrom, capable of use in internal combustion engines and for all or any of the following purposes, namely:
(a)The sale by retail of:
(i)lubricating oils and greases; or
(ii)batteries and tires; or
(iii)accessories and other things associated with vehicles motivated by internal combustion engines; or
(iv)power and lighting kerosenes; or
(v)goods for the comfort and convenience of travellers by motor vehicles;
(vi)other products manufactured or distributed by oil companies and motor accessory manufacturers;
(b)The carrying out of all or any of the following operations, namely:
(i)fitting, removal and exchange of tyres; or
(ii)repairing of tubes; or
(iii)supply of compressed air; or
(iv)charging of batteries; or
(v)lubrication and greasing of motor vehicles; or
(vi)cleaning and adjustment and replacement of spark plugs; or
(vii)receipt of tyres for retreading and other processes and the re-delivery thereof; or
(viii)washing of motor vehicles;
(c) The rendering of minor services incidental to any of the foregoing;”
“Vehicle repair workshop” covered repairs and servicing in respect of motor vehicles and agricultural machinery apart from body building, panel beating involving dismantling or spray painting (other than of a touching up character). It seems to me, notwithstanding the relatively innocuous nature of service stations under the 2009 definition, that the new Planning Scheme envisages their being located in the Industrial Zone, perhaps something rather unwelcome to potential new entrants who may regard visibility of their sites as important to successful trading. An odd feature is that not only United’s service station but others in the vicinity identified by Mr Job (who did not have the opportunity to investigate every case) are located in the Commercial Zone in the 2009 Scheme, rather than in the Industrial Zone. Typically, in the 2000 Planning Scheme these service station sites were zoned “Particular Development”: see Planning Scheme Map 2 and note the distinctive yellow colouring. The formerly novel combination of service station and some other use (such as shop) has attracted specific legislative intervention, for example in the Local Government (Planning and Environment) Act 1990 s 8.4. It seems odd that the 2009 Scheme envisages service stations in the Industrial Zone (as Mr Trotter said, they are not actively discouraged in the Commercial Zone). The existing service stations are in the Commercial Zone and, should they cease to operate so that continuing use rights are lost, they may well not be replaceable on the same sites.
Mr Allan’s argument for conflict with the 2009 Scheme was not limited to contentions along the lines that a service station ought to be in the Industrial Zone: he submitted that by reason of the associated storage of fuel, the proposal necessarily involves the industrial use of “high impact industry” in the category:
“(c) storing chemicals, including ozone depleting substances, gases or dangerous goods under the Dangerous Goods Code”
The next use listed brings in environmentally relevant activities under the “Environment Protection Act” which include No. 7 – Chemical Storage. I understood the argument to relate to “dangerous goods under the Dangerous Goods Code”. I am not sure whether the italicized words apply only to “dangerous goods” or more generally in (c) quoted above. The preamble to 2.1.1 indicates that where a term is not defined in the Planning Scheme but is defined in the IPA or “any other relevant Act” the term has the meaning given by that Act. The Environmental Protection Act 1994 which would appear to be the relevant Act, in Schedule 4 identifies the Dangerous Goods Code as the Australian code for the transport of dangerous goods by road and rail. The extracted material placed before the court was from the 7th Edition.
Without the implications of the annotations included in that extract or of the Code generally, it may be accepted for the purposes of argument that the proposal involves storage of dangerous goods.[1] United, in support of its argument that the 2009 Planning Scheme, far from supporting the proposal, is inconsistent with it, asserts that a putative development application brought under the new Scheme would have to apply not only for the service station use but also for the high impact industry use of storage of petroleum. Impact assessment would be required (but this is the case whether the site is zoned industry or commercial and it was the case for the appellants’ proposal).
[1]
The court ought to avoid gratuitous pronouncements about the proper interpretation and effect of the new planning scheme or the Code or the Environmental Protection Act (which in places such as Items 7 & 29 in Schedule 3 distinguishes between “chemical storage”[2] and “storage of petroleum products”). In the absence of proper submissions, I am not persuaded that a specific application for a storage use would be required, given the recognition of the use of service station which in my opinion is a well understood use necessarily and inevitably involving storage of the petroleum products to be sold by retail. This appears to be one of those rare cases in which the extended definition of use in IPA Schedule 10 to include “any use incidental to and necessarily associated with the use of premises” is satisfied, accepting the restrictive construction placed on an indistinguishable expression in Boral Resources (Qld) Pty Ltd v Cairns City Council [1997] 2 Qd R 31. Uses that may well be “incidental” rarely satisfy the requirement of being “necessarily associated”: see for example Esk Shire Council v John Jackson [2001] QPELR 253 at [28]; Barro Group Pty Ltd v Girgenti [2001] QPELR 177 at [13] (leave to appeal refused at ibid 407); Daniels v Brisbane City Council [2006] QPELR 13 at [1] and [38]-[45]; Thaya Morgan-Phoenix v Gold Coast Council [2007] QPELR 470.
[2]See also the way chemical storage is defined in the Environmental Protection Regulation 2008, sch 2, item 8.
The intents of the contending zones are as follows:
“DIVISION 11 – INDUSTRIAL ZONE
4.11.1 Intent
The Industrial Zone is intended to facilitate development of industrial nature that is incompatible with other urban uses, particularly residential uses, due to their potential impact on amenity as a result of externalities including noise, dust, light and odour. It is intended that the Industrial Zone provide for the development and continued operation of industrial developments in a sustainable manner that enables the containment of detrimental environmental effects. This zone is also intended to allow for the controlled establishment of general and heavy industries in locations where they will be effectively segregated from incompatible land uses. Such industries will establish on larger sites and the zone will be located away from residential or future residential areas where possible.
…
DIVISION 13 – COMMERCIAL ZONE
4.13.1 Intent
The Commercial Zone forms the focus for retail, commercial, business and administration activities within the Whitsunday Shire in an attractive environment that draws visitors to the townships and provides a high level of pedestrian amenity. This Zone includes uses that will benefit from a relatively centralised location, however will not have an adverse impact on the adjoining residential land uses and activities. This zone is intended to provide a range of urban services to support retail, commercial, business and administration activities.”
If it be accepted that the selling of petrol comes within “retail, commercial, business and administration activities”, a service station as defined and proposed may be thought to fit as easily as (if not more easily than) in the industry zone. The change made in the definition, many might think, was designed with a view to service stations being acceptable as a commercial use; there may be some significance here in the zoning of existing service stations in the area (or their sites) in commercial rather than industry. The focus that has been on this issue may lead the Council to consider whether some mistake has crept in. There is nothing in the zone codes following the intents including the “overall outcomes” listed as desired which sheds any light on the issue. Reference was made only to “(v) non-commercial uses are integrated in buildings with commercial uses to maintain a dominantly commercial character when viewed from the street” in the Commercial Zone Code. Notwithstanding the foregoing, taking the 2009 Planning Scheme at face value, there is a “conflict” in the limited sense that, without discouraging a service station use in the Commercial Zone, the Scheme indicates a preference for location in the industry zone. There is something in Mr Allan’s criticism of the planning experts’ approach. It would be inappropriate in circumstances where (relevantly) the criticisms emerged only during addresses, to proceed on the basis that the appellants “sink or swim” by reference to the new planning scheme, notwithstanding their embracing it so whole-heartedly in written submissions already prepared by Mr Trotter. The court’s conclusion is that it is difficult to find positive support for the proposal in the current planning scheme. On the other hand, it would be totally unrealistic to reject the development proposal by reference to the new scheme. It is to be assessed on the basis of the 2000 Scheme, but with the court entitled to give appropriate weight to the replacement one. The proposal will add a new service station to others now operating (albeit technically on the basis of a continuing use) next door to one of them, only recently established.
The Council officers’ planning report of 11 March 2008 recommending refusal of the application, apropos public notification, submissions and representations noted that the sole submission received (United’s) asserted that “the proposal will prejudice the implementation of Council’s draft IPA Planning Scheme where the proposed use is not consistent (with) the proposed Commercial Zone”, offering the comment:
“Council officers agree that the proposed development will lead to industrial use within an area for commercial purposes under the advertised draft IPA Planning Scheme. However, it is unlikely that this would prejudice the Planning Scheme’s implementation once gazetted.”
This last observation is one with which the court agrees. It is not one of those cases in which a proposal, if implemented, would “cut across” the new scheme and what it set out to achieve. The new scheme does not stand in the way of approval of the proposal.
Conflict with the 2000 Scheme
United took issue with the planning experts’ conclusion of lack of conflict with the superseded Transitional Planning Scheme (the 2000 Scheme). The argument I understood to be that need for the facility had to be established and that it had not been established. Alternatively, if the scheme did not require need to be shown, there was nonetheless conflict with the scheme because of the inappropriate location of the proposal and need as a basis for approval notwithstanding the conflict had not been established. The appeal is another of those involving transitional planning schemes which by reason of ss 6.1.29 and 6.1.30 of the IPA require an assessment and decision by reference to the Local Government (Planning and Environment) Act 1990, s 4.4(3) of which provides:
“(3) In considering an application to amend a planning scheme or the conditions attached to an amendment of a planning scheme a local government is to assess each of the following matters to the extent they are relevant to the application—
(a)whether the proposal, if approved, or buildings erected in conformity with the proposal, or both the proposal, if approved, and the buildings so erected would—
(i) create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network;
(ii) detrimentally affect the amenity of the neighbourhood;
(iii) create a need for increased facilities;
(b)the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment;
(d)whether the land or any part thereof is so low-lying or so subject to inundation as to be unsuitable for use for all or any of the uses permitted or permissible in the zone in which the land is proposed to be included;
(e)whether, having regard to the permitted or permissible uses of the land and the potential for subdivision in the zone in which it is proposed to be included water, gas, electricity, sewerage and other essential services should be made available to the land and to each separate allotment thereof if the land were subsequently subdivided;
(f)the impact of the proposal on the environment (whether or not an environmental impact statement has been prepared);
(g)the situation, suitability and amenity of the land in relation to neighbouring localities;
(i)the advice given by it, in respect of any consideration in principle concerning the relevant land pursuant to section 4.2;
(j)whether any plan of development attaching to the application pursuant to a requirement of the planning scheme should be altered;
(k)where the land is land prescribed pursuant to section 8.3A, the site contamination report in respect of the land;
(l)such other matters, having regard to the nature of the application, as are relevant.
….
(5A)The local government must refuse to approve the application if—
(a)the application conflicts with any relevant strategic plan or development control plan; and
(b)there are not sufficient planning grounds to justify approving the application despite the conflict.
…”
The argument ran that, whatever the transitional Planning Scheme might require in respect of need, paragraph (3)(b) required need for the proposal to be established. Mr Allan submitted that the notional “proposed planning scheme amendment” is still required notwithstanding what has now transpired in respect of the Centro Cannonvale Shopping Centre, well ahead of the schedule the Planning Scheme contemplated. Against Mr Trotter’s objection, he was permitted to tender as Exhibit 12 a bundle of Council approvals relating to the land identified in the Strategic Plan as the “possible future district centre at the corner of Milk Depot Road, Shute Harbour Road, and Paluma Road” including 18 October 2000 a material change of use for service station including catering shop (fast food outlet), shop (convenience store) and carwash (now the United operation) and a preliminary approval for a temporary outdoor sale/display area for motor vehicles, boats, machinery and the like, 13 August 2001 for a reconfiguration, 3 October 2002, preliminary approvals for a further reconfiguration and material change of use for a retail centre comprising retail warehouses, show room and shopping centre, etc., finally 6 December 2004 being a further reconfiguration and a development permit for material change of use for the district shopping centre. The point of the exercise was to show that there was certain “future development (subject to approval) shown on the plans” in relation to the fast food outlet depicted. In those circumstances, the medium-density residential designation was overtaken by events (including the approvals and what was done under them) in respect of most of the land, but not in respect of the particular part allocated for potential future fast food activity, now the site for the proposed service station. In this way, conflict with the 2000 Planning Scheme and Strategic Plan is established, the designation Medium Density Residential (2.5.6) including “land intended for medium density housing”. The three specified objectives were achievement of orderly, environmentally sustainable medium density residential development, separated from incompatible land uses, achievement of site planning to provide inhabitants and neighbours with a quality living environment enhancing local streetscape character and identity and:
“Objective P
Provide for uses to service the immediate resident and tourist needs.
Performance criteria for Objective 3(a) development which fulfils criteria applicable to the Integrated Neighbourhood Designation (the Integrated Neighbourhood Designation 2.5.5) is characterised by predominantly detached housing.”
There is room for argument, to say the least, about the appropriateness of a service station. Certain factors reduce the potency of that argument. The first is that the strategic plan map specifically isolates from medium-density residential in general in the locality this site with a special designation indicated by a letter ‘C’ in a circle to show “POSSIBLE FUTURE DISTRICT COMMERCIAL CENTRE”. As at 2000, prospects for a residential future were tenuous and for the bulk of the land they have gone. While technically the 2000 designation may remain, it is inconceivable that anyone would be minded to establish medium-density (or any other) residential uses on that land which comprises a site about 54 metres by 54 metres less a tranche sliced off to reduce the southern or western boundary to 26 metres located in the middle of the roadways and parking areas for a large shopping centre. Not only may the technical designation of this site be seen as highly provisional, it has clearly been overtaken by events to such an extent as to be of historical interest only.
While failure to establish need for the proposal does not require its rejection under s 4.4 of the 1990 Act (Intrafield) establishing need might supply a planning ground to overcome the minor technical conflict with the strategic plan that has been identified, and in this case, in my opinion, would (and it does) do so.
Need
Need in this context refers to community need, not to the requirements of the developer-applicant. That its proposed activity would operate successfully (as the evidence clearly establishes this one would) is irrelevant. The unusual feature of the case for need is the emphasis placed on the provision of a retail fuel operation which will honour Woolworths shopper dockets. On 29 January 2008, the Council’s town planning officer sent out a request for additional information seeking a needs analysis:
“… that demonstrates that the existing service stations are inadequately servicing the community and that a discernable need for an additional service station directly adjoining the shopping centre is required. The analysis may be a number crunching exercise that demonstrates increased facilities is required in relation to the anticipated growth of the Cannonvale area. Latent demand created by the applicant’s loyalty programme (shopper dockets) is economically driven by way of the applicant’s core business and should not be considered an indicator of genuine need.”
United relied on the doctrine adumbrated by Stephen J noted in the following passage from Carter J’s judgment in matter Matijesevic v Logan City Council (1982) 51 LGRA 29 at 31:
“It is well established that a town planning consent once granted is one which attaches to the land and is not a mere personal right in the owner for the time being. Stephen J. in Eaton and Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293; 25 LGRA 369 said:
“First although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor…” ”
I take the argument to be that the appellants (or “the applicant”) must justify the service station proposal without any reference to or reliance on Woolworths’ trading methods.
The doctrine is part of statutory planning law. It underlines that there is no guarantee that, if approved and established, the service station would always honour shopper dockets or even remain a Woolworths outlet. The approval would simply be for “service station”, if forthcoming, not for a Woolworths service station. I had contemplated the appropriateness of a condition that might contain a requirement to that effect or to preserve the public’s entitlement to opportunities to use their shopper dockets, so long as they remained a feature in the market, finding no support from Mr Trotter. Conditions along those lines would appear idiosyncratic and to be unprecedented. I would expect that, should they be imposed and circumstances change, there would be little difficulty in the way of any concerned person’s obtaining relief from the court by change of condition under s 3.5.33 of the IPA.
Taking a general approach, I think that development applications will often be strengthened by “brand” considerations. It is common to have shopping centre proposals lauded because they will be anchored by, say, a supermarket to be run by a nominated established operator, especially where competition in the locality may increase. I would think that an application for a place of worship for a faith or “brand” not represented in a locality might fare better than one for a faith already well represented. One can imagine a privately owned sporting club applying for a stadium for exclusive use of its own professional (or non-professional) teams bolstered by claims that this would be a benefit for fans and supporters. Arguments that some other facility could be shared with other sporting codes or clubs might be outweighed. In this case, while it might be thought troubling to encounter an application by a large commercial enterprise justified by reference to its “loyalty” program, the number of customers in any locality generated by one of its supermarkets who would benefit from being able to use their shopper dockets is so great that I have no difficulty, on consideration, in determining that a need of the requisite kind is shown. The benefit to 25% or so of purchasers of fuel in the Whitsunday area is undeniable, in my view. Even shorn of the shopper docket aspect, in my opinion, need is established. The evidence is that the general level of prices charged for fuel reduces where shopper docket schemes operate. The Coles-Shell scheme does operate in the area, but Woolworths shoppers outnumber Coles. A Woolworths petrol outlet should have an additional effect by way of price advantage for consumers in the market generally greater than that where only the Coles scheme is working.
The needs analysis required by the Council planning officer was forthcoming; to an extent it has been replicated by work of the economic experts the court heard from. While United does not welcome competition from Woolworths, it is presently trading so well that the experts are confident it will remain viable even if the competition eventuates. It is thought that more than half of its profit comes from activities other than sale of fuel, in any event. There are prognostications, especially from Mr Duane, that some current operators, particularly in Proserpine, may not last, instead, may not be viable at present, even if trading to the satisfaction of the present operators.
The court has no evidence to suggest that the proposal would be the cause of failure of or unsustainable impacts on any present fuel retailer in the area, and can take some comfort from United being the only one to complain
On the assumption that the appellants must show “need”, they have done so, even excluding the fuel discount vouchers aspect entirely. If that aspect is taken into account, the demonstrated need is incontrovertible. While the appeal ran on the basis that all fuel is the same, Woolworths is the only major brand not represented in the area. According to the economists, within only a few years there will be room for not just one new service station, but for two.
The appeal should be allowed. The parties may wish to revisit the conditions of approval endorsed by the Council, especially because of the traffic issue.
UN No. (1)
Name and Description
(2)Class or Division
(3)
Subsi-
Diary
Risk(4)
Pack-
ing Group(5)
Special Provis-
ions(6)
Limited Quan-tities
(7)
Packagings & IBCs Portable Tanks & Bulk Containers Packing Instruc
-tion(8)
Special Packing Provis-ions
(9)
Instruc-tions
(10)Special Provisions
(11)
Ref
3.1.2
2.0
2.0
2.0.1.3
3.3
3.4
4.1.4
4.1.4
4.2.5
4.3.24.2.5
…
1267 PETROLEUM CRUDE OIL 3 I 500 ml P001 T11 TP1
TP83 II 1 L P001
IBC02T4 TP1
TP83 III 223 5 L P001
IBC03
LP01T2 TP1 1268 PETROLEUM DISTILLATES, N.O.S. or
PETROLEUM PRODUCTS, N.O.S.(see 3.2.5 for relevant [AUST.]entries)
3 I 500 ml P001 T11 TP1
TP83 II 1 L P001
IBC02T7 TP1
TP8
TP283 III 223
AU025 L P001
IBC03
LP01T4 TP1
TP291270 PETROLEUM FUEL [AUST.] 3 Restricted usage – s 3.2.5 T4 TP1 …
6
2