Ross Nielson Properties Pty Ltd v. Caloundra City Council & Ors
[2008] QPEC 55
•19 August 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Ross Nielson Properties Pty Ltd v Caloundra City Council & Ors [2008] QPEC 55
PARTIES:
ROSS NIELSON PROPERTIES PTY LTD (ACN 010 754 873)
Appellant
v
CALOUNDRA CITY COUNCIL
Respondent
and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT
First Co-Respondent
and
MICHAEL CHANDLER
Second Co-Respondent
and
RIDGEHAVEN RETIREMENT VILLAGE (ACN 011 013 540)
Third Co-Respondent
and
ACEBECK PTY LTD (ACN 011 013 540)
Fourth Co-Respondent
and
JOHN WALCOTT CARMICHAEL
Fifth Co-Respondent
and
STEVEN CRAIG PRESTON
Sixth Co-Respondent
and
GREGORY FRASER
(Seventh Co-Respondent)
FILE NO:
Appeal No. BD 1301 of 2007
PROCEEDING:
Appeal
DELIVERED ON:
19 August 2008
DELIVERED AT:
Brisbane
HEARING DATES:
07, 08, 12, 13, 14, 15 February; 21, 22, 23, 24 April 2008
WRITTEN SUBMISSIONS:
To 20 June 2008
JUDGE:
Judge Brabazon QC
ORDER:
Appeal Dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – CONFLICT WITH PLANNING SCHEMES – whether sufficient grounds to overcome conflict – whether floor space limits soundly based – proposed shopping complex – competing shopping centre sites – community need – traffic – amenity – economic impact – hierarchy of centres
LEGISLATION CITED:
Integrated Planning Act 1997 (Qld)
CASES CITED:
Arksmead v Council of the City of Gold Coast [1999] QPELR 322
Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157
Lewiac Pty Ltd & ING Real Estate Joondalup BV v Gold Coast City Council & Ors [2003] QPELR 385
Ug
Williams McEwans Pty Ltd v Brisbane City Council (1981) 2 APC 165
COUNSEL:
Mr D Gore QC and Mr M Williamson for the Appellant
Mr P Lyons QC and Mr B Cronin for the Respondent
Mr G Gibson QC and Mrs N Kefford for the Third
Co-Respondent
Mr M Conrick for the Fourth Co-Respondent
Mr J W Carmichael and Mr G Fraser in person
SOLICITORS:
Connor O’Meara for the Appellant
DLA Phillips Fox for the Respondent
IPA Law Planning Lawyers for the Second Co-Respondent
McCullough Robertson for the Third Co-Respondent
Praeger Batt Solicitors for the Fourth Co-Respondent
The Issues
This appeal is about land at the corner of Parklands Boulevard and Sunset Drive, Caloundra. Ross Nielson Properties wants approval to build a full-line supermarket and some shops on the land. The council is against the proposal. Ridgehaven Retirement Village and Acebeck are against it. Local residents, represented by Messrs Carmichael and Fraser, are against it.
On their face, the council’s plans for the land, and other land nearby, seem to be against the proposal.
It is submitted for RNP that a careful examination of the proposal and the evidence, will show that the appeal should be allowed. The purpose of this appeal is to consider the strength of those arguments.
The Court
This is a fresh hearing. The duty of the court is to take into account all the evidence before it, and to give an impartial decision on the merits of the application. The court has all the powers of the council, but considers the application quite independently of council. The court is not bound to accept or be influenced by the decision of council in any way.
RNP bears the burden of establishing that the appeal should be allowed, and its application approved.
The court is in no sense a planning authority. That is the responsibility of council, or the state government. The court takes into account the planning strategies and policies adopted by council or government. It also must consider any objections which have been duly made to the proposal.
Usually, the court will be concerned to implement the council’s planning scheme. Sometimes, and this is one of those cases, an applicant sets out to persuade the court that there are sufficient planning grounds to justify the decision, despite a conflict with council’s planning scheme. The court has power to approve the proposal if there are sufficient grounds to justify the decision, despite the conflict. (See s 3.5.14(2) of IPA.)
The court must act with care and restraint. The Court of Appeal has recently mentioned the matters to be taken into account – see Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157. At paras 54-57 it confirmed earlier statements of principle, which can be repeated here in an abbreviated way:
[55] ….
The proper approach of the Planning and Environment Court …. to matters of planning policy has long been recognised as one of restraint. Most recently this court affirmed the desirability of a self-limiting approach, at least when considering town planning …. It should not be necessary to repeat it but this court is not the planning authority for the City of Brisbane. It is not this court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a planning authority in a careful and proper has to adopt …. It would be quite inappropriate for this court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to `cut across' in quite unacceptable manner, a planning strategy which has been adopted by the planning authority and publicly exhibited for community comment.
….
…. conflict between a development application and strategic plan was often fatal to the application, even prior to the introduction of s 4.13(5A) and its counterparts in 1992. …. “As has been said repeatedly, this court is not the planning authority for this area and it is my view that it would be inappropriate for the court to approve a proposal which is squarely in conflict with the formally expressed planning strategies of that authority.”
….
“The strategic plan and the strategic plan map are legitimate planning tools adopted by a local authority for the future planning of the local authority area. The local authority in those circumstances is planning ahead and endeavouring to direct its future planning process in an orderly manner.”
….
“The court has, however, repeatedly stressed the importance of strategic planning and the need to respect and support the integrity of the important planning tool which the strategic plan is. There may be cases where a departure from the strategic plan could be justified; where, for example, the planning strategies which it represents, having been overtaken by events (or for some other reason), clearly no longer have any application; or where it can be demonstrated plainly the land has been given a designation on the basis that was and remains invalid”
….
“The significance of strategic planning, particularly on rezoning applications, has been recognised by the court on many occasions. Since the forward planning documents of a local authority are indicative of the intent of a planning authority as to the future preferred form of development that it sees for its local authority area, considerable weight ought to be given to the provisions of forward planning documents of a local authority”
….
The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme. It is important not to minimise the force of this consideration. In the striking of the overall balance in a planning scheme, there will be ‘winners and losers’ so far as individual interests are concerned.
Planning documents should not be interpreted in a legalistic or pedantic way. If their meaning is not immediately clear, then they should be interpreted in a way that seems best to achieve their purpose.
The Proposal
The shopping complex is proposed at the intersection of Parklands Boulevard and Sunset Drive, Caloundra. The land is roughly square in shape, about two hectares in size, slopes towards the north-east corner, and is presently undeveloped. There would be a full-line supermarket of 2,500m² GFA and three separate buildings containing shops with a total area of 1,750m². The final proposal has a GFA of 4,527m², and will provide 250 car spaces. It is partly over two levels, with parking at the lower level.
The amended plans can be seen in Exhibit 2A. The elevations can be seen in Exhibit 2. The views of the finished buildings from the road can be seen in Mr Elliott’s photomontage, Exhibit 15. Vehicles would drive in and out from Sunset Drive.
The development of nearby land might have a significant influence on this proposal. The proposed Camcos railway will run along the eastern side of the supermarket, on its way to Maroochydore. A station is proposed on the opposite side of Parklands Boulevard. Adjoining the station, and across the road from this proposal, is a triangular piece of land owned by Ridgehaven. Ridgehaven also plans to build a shopping centre on its land. There is not room for two supermarkets. They are competitors.
This proposal requires impact assessment, under IPA.
The Case for RNP
The contentions on behalf of RNP can be summarised this way:
(a) There is a present, community need for a second full-line supermarket to service the people of the relevant trade area, which is in an emerging community.
(b) The proposed development can meet that need, as it is in an appropriate location.
(c) It is unlikely that the need can be adequately met, either in the short or long term, on the Ridgehaven site. That is because the site is too small, constrained by its overall dimensions and shape, and is insufficient to accommodate a 5,000m² centre, either in the short or long term. There is a need to acquire further land to the west, to do that. The Aroona train station will mean inconvenience, particularly in the competition for carparking spaces.
(d) The proposed development will deliver a full-line supermarket, at a level of convenience which is now reasonably demanded by the public.
(e) There will be an improvement to the local road network, because of the upgraded intersection of Sunset Drive and Parklands Boulevard.
(f) There will be no unacceptable impacts on amenity, on the hierarchy of centres, or on existing retail traders in the area. Conflicts with the 2004 planning scheme can be overcome, because of these additional reasons:
(i) the city plan and the draft LGMS do not make adequate provision to meet the need for the type of facility proposed. Their timing is not soundly based;
(ii) the present limit of 2,500m² GFA is not soundly based. This development will be as good as, if not better than, the Ridgehaven development, as models of appropriate transit oriented development;
(iii) the planning scheme is poorly drafted.
The City Plan
Caloundra City Plan 2004 came into effect in September 2004. This land is in the Caloundra West Planning Area, and within the Emerging Community Precinct. It presently has approval for the development of 20 residential lots.
Overall outcomes for the Caloundra West Area are set out in a code. In particular, an outcome is the development in the precinct of a local business centre with a GFA not exceeding 2,500 m². That centre is to be located ‘proximate to’ the proposed Camcos railway station, providing a mix of retail, business and community uses (6-65(g)). The location of the station is shown on map DEO5. The rail corridor is shown on the precinct maps. The Camcos rail project is part of City Plan. Land next to the station is allocated to higher intensity land uses – p1-11. The expression ‘proximate’ is probably wide enough to include the RNP land.
The term ‘local business centre’ is not defined. Its meaning can be seen in the Precincts and Other Elements Code’s provisions about floor area. A shopping complex with a gross floor area exceeding 2,500m² is an inappropriate use, not to be located in a local business centre (see page 5-13). Shopping complexes exceeding 2,500m², and less than 10,000m², are intended to be located in a larger, district business centre.
There is a Code Map CWP4 of the planning area. It shows a local business centre on the northern side of Caloundra Road, slightly to the west of the Ridgehaven land. The Code shows that the local business centre is to be located proximate to the Camcos station. On the southern side of the road, beside the railway line, the map shows an indicative mix of unit residential and detached housing. That covers the RNP site.
A Local Business Centre Precinct has a local or neighbourhood function. It meets the needs of a single adjacent residential neighbourhood. See pp 5-7, para 5.2.4.4.
Caloundra City Plan 2004 recognises the importance of the Camcos corridor. It was taken into account in the drafting of the scheme. It is shown on precinct maps for forward-planning purposes. The location of the railway line is shown on Map DEO5. The land use pattern adjacent to rail corridors is meant to support the rail system, and opportunities for innovative mixed-use developments are to be provided adjacent to railway stations (page 1-5).
The proposed Camcos railway station has an impact in this case, even though the likely building of the station may be about 16 years away.
The Regional Plan
The Southeast Queensland Regional Plan 2006-2026 is a statutory instrument. It provides for integrated land use and transport planning. Transit oriented development principles should be applied to detailed planning near proposed railway stations. Local governments are expected to prepare local growth management strategies. The aim is pedestrian accessibility, generally within a comfortable 10 minute walk of the transit node, or 600-800 metres (page 75).
In this case, an expected outcome is that residential uses are developed at medium densities within walking distance of the railway station and associated local business centre at Parklands Boulevard / Kalana Road (page 6-66(s)). Development in this area is to protect and support the functional characteristics of the rail line (page 6-68(f)).
Section 8.8 of the SEQ Regional Plan provides for a LGMS. The aim is to achieve the strategic intent of the regional plan at a local level. It is to become part of the SEQ Regional Plan (Exhibit 3, Tab 3).
A draft LGMS has been prepared by council, and approved by council on 22 November 2007. Following the recent council amalgamations, it is now proposed that the merged councils of Caloundra, Maroochy and Noosa should work towards an integrated LGMS.
While this draft LGMS is not yet finally in place, it would be consistent with usual planning principles to take it into account. Because it is well advanced, considerable weight should be given to it. It is a substantial document – see Exhibit 7. The issue is whether or not this proposal would cut across council’s planning intentions in an unacceptable way.
The strategic role of the LGMS is to shape the rapid development and population growth in Caloundra. Emphasis is placed on the transport system, including the Camcos railway. The structure of the city is meant to support this public transport corridor by encouraging the public to use it. The plan also encourages a more diverse range of housing, to meet emerging community needs.
It identifies the station north of Parklands Boulevard. It calls it the Aroona Transit Oriented Community Area. The strategic aim is that the proposed Aroona local centre will develop into a district activity centre within the life of the LGMS 2005-2006. It speaks of an indicative floor space requirement at the Aroona centre, up to 2026, of 5,000m². That becomes an indicative 8,000m², by 2046. The Aroona Transit Oriented Community Area, of about 80 hectares, comprises undeveloped sites generally within 800 metres of the proposed railway station. See map 603.
The proposed development is shown as one of the undeveloped areas, south of Parklands Boulevard. The aim is to develop that area as a suburban transit oriented neighbourhood with new development on vacant and semi-developed lots providing a range of medium density housing types and a small district activity centre:
“While the long-term potential of this location to perform as a fully functional transit oriented community has been substantially compromised by recent development activity and pre-existing development approvals, opportunities remain on some undeveloped and partly developed sites to increase the intensity of residential development and mix of supportive land uses within the walking distance of the station. Features of the fully developed Aroona Transit Oriented Community Area are to include:
· A new railway station and associated park and ride facility;
· A small district activity centre that is integrated with the railway station and that evolves and expands over time; and
· A range of medium density housing types with at least 300 new infill dwellings. The Aroona railway station is to be developed as a prominent feature in the locality.” (Exhibit 7, pp 115-116).
An overall outcome is a small centre established on land needed to be adjoining, and to the west of, the proposed Aroona railway station. It is to be effectively integrated with the station in terms of levels, building forms and continuity of movement for pedestrians between the centre and the station platform. It is proposed that the centre will expand over time, to include adjoining land immediately to the west of the existing Ridgehaven land, establishing a district level centre by 2026. It is expected that there will be 2,500m² total GFA floor space within one centre by 2016. That might rise to 5,000m² GFA by 2026. The aim is that vacant and undeveloped sites within walking distance of the railway station are developed with a range of high quality, medium density housing types in discrete configurations. It will be seen that the RNP land is expected to remain for residential use (see Exhibit 7, p 117 and the coloured plan, TOC2).
The Ridgehaven Site
An attack on a competitor is made by RNP, as part of its ‘sufficient grounds’ argument. This is one of those cases where there is a genuine contest between competing proposals – see Ug at 400.
The Ridgehaven site is directly to the west of the proposed railway station. Can a development on the Ridgehaven site adequately cater for the needs of the community, in accordance with the aims of City Plan and the LGMS?
There is a current application before council, on behalf of Ridgehaven. It is for the development of the site for a local shopping complex, with provision to expand to a district level centre in the future. The latest plans for the application have been criticised, particularly because the land is triangular in shape, and not as large as the RNP land. There is room for further development of the proposal, as it progresses, but there are difficulties because the land at the rear, away from the road, narrows to the point of a triangle. While there are challenges to achieve a suitable design, it is capable of supporting a shopping complex of up to 2,500 m², including a 1,500 m² supermarket. There may be an opportunity to acquire adjoining land on the northern side of Parkland Boulevard. The LGMS assumes that will happen.
There are also difficulties in integrating the shopping complex and the proposed railway station. For example, there will be difficulties in segregating the commuter parking and the shopping parking. However, it should be accepted that the challenges are not insurmountable, in a practical sense. In that respect, the evidence of Mrs Hely, Mr Pekol and Mr Beard should be accepted. Mr Holland, the traffic engineer, appears to have been the only witness who believed that a 2,500m2 centre could not be developed on the land. The land does have the advantage of being flat, with good access to Parklands Boulevard.
The supermarket operator, IGA, has expressed interest in a tenancy on the Ridgehaven site. It has identified an experienced successful operator, Mr Luke, as a suitable occupier. He has experience in expanding IGA stores. He appears to be an energetic businessman who has supervised the refurbishment or expansion of stores, to achieve a higher standard.
It might be noted that the Ridgehaven proposal would be more advanced, were it not for a successful challenge by RNP to the validity of an earlier approval. Its original application was made in December 2005. It turned out that there was a defect in the advertising procedure. The judgment of this court was given on 25 May 2007. So far, there is still no comprehensive and developed plan for its development. The current application was made in June 2007. That application revealed difficulty with the integration of the shopping complex and the railway station. Those continuing difficulties led to the council requiring more information. A later plan (Exhibit 39A) has not been presented to council. It does show a 1,500m2 supermarket, the first step in a staged development with a total GFA of 2,500m2 and 137 car parking spaces.
For RNP, it is also pointed out that the usual terms of a lease to any established supermarket tenant, would give the tenant significant influence over the owner’s capacity to develop the centre without the lessee’s consent. That is literally correct, but the commercial reality must be often enough, that expansion is for the mutual benefit of the owner and lessee, and can be negotiated.
The Ridgehaven site is a challenging one. However, it is not likely that the difficulties are as formidable as suggested on behalf of RNP. It is not unusual for proposed plans to change many times before the final version is accepted. Mr Schomburgk and Mr Ovenden (town planners) agreed that the site can support a shopping complex around 2,500m2, with a 1,500m2 supermarket and that there are opportunities for expansion. The commuter parking difficulties are not insurmountable in a daily, practical sense. The interest in a supermarket tenancy by IGA is encouraging. A supermarket of 1,500m2 would provide 80% of weekly shopping needs, and would have the advantage of flexible shopping hours, if trading with less than 20 staff at any one time.
It is suggested for Ridgehaven that a 1,500m² supermarket has the potential to provide substantial ‘convenience’ benefits to the community. It would satisfy the need for ‘top up shopping’, would be capable of capturing about 80% of the weekly shopping needs of a typical household, would support local suppliers and local distributors, as the stock would not be controlled by a national buying team, and it could adjust its opening hours to suit the community, as it could trade with less than 20 staff at any one time. It is said that it would also offer a higher level of direct integration with the railway station, and that it would be on the most appropriate location for a supermarket in that locality.
The site also has a significant advantage by offering direct integration with the railway station. That is important, from the planning point of view (Messrs Owen and Vann support it for that reason).
Overall, the conclusion is that this land is capable of providing that which the planning documents assume – it can be developed as a local centre, with integrated access to the railway station.
The Hierarchy of Centres
It is true that the council’s City Plan does not literally give a local business centre a place in the hierarchy of centres. After assuming rapid population growth, its first desired environmental outcome is that ‘Caloundra city has a diverse dynamic and sustainable economy based on (i) a hierarchy of multi-purpose and special-purpose business centres…’. The nominated hierarchy goes from the CBD to district business centres. See p 2-2.
The planning scheme is divided into precincts, which identify land intended to facilitate economic development and ‘promote a business centre hierarchy and uses which are most suitable to the particular centres having regard to their position in the hierarchy’. See p 2-2. It is apparent that a shopping centre which is designed to serve a local function is one which has a GFA of less than 2,500m2, and which serves only the nearby neighbourhood. See, by analogy, the provisions of the Precincts and Other Elements Code, s 5.2.4(2) (Exhibit 6, p 74), and the Business Centre Precinct Class at p 75 – with a reference to ‘a single adjacent residential neighbourhood’. See p 1-7, parts 2 and 4.
The Business Code aims for an overall outcome which sees the type and scale of development in business centres being appropriate to their role within the business centre hierarchy. In particular, business and commercial uses with a GFA over 3,000m² are to be located in regional or district business centres. Any shop or office having a GFA over 150m² has to be located in a business centre. The maximum GFA should be appropriate to the business centre hierarchy and business centre precinct in which the site is located. See Exhibit 6, p 10. The increase to 3,000m2 includes all businesses, not just shopping complexes.
So, the intention is that a shopping complex in a local business centre should not exceed 2,500m². Larger shopping complexes are intended to be found in district or regional business centres.
Provisions of this type are now familiar, and are an important part of strategic planning. This court, and the Court of Appeal, have emphasised the need to take fully into account this aspect of forward planning. See Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157.
Provisions in the Business Code reinforce that conclusion.
The Business Code
It was submitted for RNP that the Business Code did not apply to this proposal, on the basis that the proposal is not a development within an existing business centre. It is identified as a future business centre, appropriate for development within the life of the plan. It is the only future centre in City Plan.
It is true that the Overall Outcomes sought for the Business Code at p 8-56 go on to refer to ‘the business centre hierarchy identified in subsection 2.2.1(1)(c)’. That refers to a hierarchy of multi-purpose and special-purpose business centres down to the level of district business centres. It was submitted for RNP that local business centres were not protected by the hierarchy in DEO1.
It can be noted that this application to council was presented on the basis that the Code applied. If this proposal goes ahead, it will constitute a local business centre. The proposed development is clearly a shopping complex – that is the use for which approval is sought. In terms, it applies to premises with a GFA over 3,000m², and to any shop or office having a GFA over 150m², in a business centre. (8.15.2, s 1.3). On page 8-64, 039 applies to shops in residential areas. They can be quite small buildings, on an area of at least 500m².
Most significant is Table 8-3, at p 8-65. It deals with maximum plot ratios and it includes a provision for ‘Local Business Centre’. That Table is referred to in 02 on p 8-65 – “The maximum GFA is appropriate to the business centre hierarchy and business centre precinct in which the site is located.” It can be seen that council intended that local business centres be subject to the Business Code.
The Business Code is to be found in Part 8 of the planning scheme, in that part which contains the Business and Commercial Use class.
It was surely not the overall intention of council to exclude local centres from the further references in the Business Code to ‘business centres’. To do that would be to exclude all local business centres, the existence of which is recognised in the text and maps of the City Plan, in numerous places. There are specific codes for developments which are relatively minor – bed and breakfasts, rural holiday accommodation, and caravan parks. It is most unlikely that the Business Code was not intended to apply to a significant development, such as a shopping complex exceeding 4,000m² GFA.
The specific outcomes set out a number of requirements for buildings. The Code intends to achieve certain architectural and design aims. A significant aim is to discourage large carparking areas between streets and buildings which are set back from the street. The aim is to have buildings at or near the street alignment, and to have a streetscape characterised by a continuous edge. The buildings are to be closely related to the existing streets and footpaths. Carparks are not to be a dominant visual feature of the centre or of the streetscape. The aim is to have buildings provide ‘active edges’ at the street or the pedestrian footpath.
As the architectural drawings and photomontages illustrate, this proposal does not achieve those aims. An aim is to have an attractive and well designed shopping centre which faces out towards the street, and which has an ‘active’ streetscape. That aim means that carparks are not to be a dominant visual element of the design. The benefits of that aim include a sense of activity, which many people find attractive, a visually interesting development, and active surveillance of public areas. See the specific outcomes of the Business Code, 04, 06, 07, and 023, at p 8-57.
It may be the case, as Messrs Vann, Van Pelt and Sheehan agreed, that it is hard to identify any unacceptable town planning consequences, if there were a departure from those rules of development. However, it is for the council and not the court, to make those choices, which are rational ones.
Conflicts
It will be apparent so far that the proposal conflicts with the City Plan and the LGMS in a number of ways:
· The shopping complex exceeds a GFA of 2,500m²;
· It is contrary to the indicative use of the RNP land on the southern side of Parklands Boulevard, for residential buildings;
· It is contrary to the aim of having a local business centre on the northern side of the road;
· It is contrary to the aim of achieving integration between the proposed Aroona railway station;
· It is contrary to the council’s aim of having an orderly hierarchy of centres – it would prematurely provide services of a district, rather than local level;
· It is contrary to the Regional Plan and the LGMS Plan.
· Its design is contrary to the Business Code.
Therefore, it is necessary to consider the real point of this litigation. Can RNP demonstrate that there are such sufficient planning grounds in favour of the proposal that it should be allowed, despite that conflict?
Need
For RNP, it is submitted that there is a community need for this development.
In this case it is necessary to distinguish between a real planning need, and mere demand, when some residents go to a new shopping complex, because it presents an attractive and additional choice for them. The distinction can be significant:
“It should not, in my opinion, be thought that a rezoning can be justified by merely contriving a need which is, essentially, nothing more than an exercise in entrepreneurial skill, the effect of which is to give the applicant some commercial advantage. Nor will land be rezoned in favour of the entrepreneur who seeks to create the need by the use of his land in the manner he desires. The basic assumption must be that there is in existence at the time of the application a latent unsatisfied demand on the part of the persons affected by the planning scheme which is not being met at all or being adequately met by the scheme in its present form.”
Williams McEwans Pty Ltd v Brisbane City Council (1981) 2 APC 165 at 170 per Judge Carter and Arksmead v Council of the City of Gold Coast [1999] QPELR 322. In the second case, the evidence showed that there was sufficient population to support a new liquor outlet. However, the application was refused, as that was not enough to show need. The application was refused.
Before turning to the economic experts, it is instructive to recall the evidence on behalf of Coles. It is prepared to commit to a 30 year lease of the proposed supermarket. Not surprisingly, a significant factor in its decision to take up the tenancy, was the opportunity to have a store competing with the established Woolworths at Currimundi. That was explained by a Coles executive, Mr Atkins. He said that Coles would be prepared to open a supermarket before sufficient need exists, for strategic commercial reasons. It would be prepared to operate unprofitably for up to three years, with the aim of capturing a market. Its offer would equal Woolworths at Currimundi.
Mr Atkins did not believe that there was sufficient population to make a supermarket profitable at this stage, on the basis of what he regarded as the primary trade area. He would not expect this supermarket to be profitable for about three years.
He explained that a 1,500m² supermarket was capable of capturing 80% of the weekly shopping needs of a typical household. However, to encourage customers to do all their weekly shopping there Coles would take a strategic decision to open a full-line supermarket. The aim would be to provide a supermarket where weekly, not just local, shopping could be done.
He explained that Coles preferred a primary trade area of between 8,000 and 10,000 people, to support a full-line supermarket. Here, the economic experts agreed that their agreed trade area, overall (in Fig 1 to their joint report, which included the contentious south trade area), would contain about 19,635 people by 2011. With an expected opening in 2010, that would be sufficient to support two full-line supermarkets, if Mr Coghlin’s larger trade area is correct.
Two earlier reports by Mr Norling, one of the economic experts, are interesting. See his letters to council dated 20 February 2006 and 21 December 2006 (Exhibit 13 pp 291 and 477). It is literally true that he supported the idea of a major supermarket in the Caloundra West community. His first letter says that the impacts of that arrangement would be acceptable if the development of the larger centre were delayed until a significant population develops.
In his second letter, he refers to an Ultimate Population of an estimated 10,800 persons by about 2020. He goes on to say:
“ …. the Ultimate Population would be better served by a major supermarket. This supermarket needs to be located on Parklands Boulevard …. it would be preferable if one of the three designated local Business Centres on the Boulevard were to expand in the future to service this need, rather than a fourth centre become established along the Boulevard.
It is my opinion that there is insufficient planning need for the subject proposal at this time ….”
At the hearing, he maintained his opinion that there was no planning need for this proposal.
So, there would be enough demand to attract a large and patient operator, like Coles, for the first three years. However, the question here is this – is there now a planning need for the full-line supermarket?
Figure 1 attached to the economic experts’ joint report shows their forecast trade area, containing four separate areas. To the east is the Caloundra CBD. It is about four kilometres from the proposed supermarket. It now contains three supermarkets, Coles, Woolworths, and Super IGA, plus an Aldi Food Store.
On the north-eastern edge of the trade area, there is the established Currimundi Market. It contains a full-line Woolworths supermarket. There are four smaller food stores to the west and southwest of the proposed supermarket. One of them is the food store, owned by Acebeck.
The established Woolworths is at Currimundi, about two kilometres to the east of the proposed supermarket.
Four economic experts gave evidence. Three of them thought there was no need for this additional supermarket, at the present time. Mr Coghlin thought there was a present need. A significant difference between them lay in his methodology. He measured the distances that it would take to travel by road to each of the supermarkets from various areas. On that basis, he concluded that there was a need for the proposed supermarket.
The other experts relied on different criteria, such as a preference to go to the CBD, or the likelihood of residents keeping up a habit of going to a particular shopping centre, or the effect of perceived barriers, such as a main road or dangerous intersection (Mr Fraser’s explanation).
Unlike his colleagues, Mr Coghlin proposed a larger trade area, including an area called the South Trade Area. That area included substantial development to the south of Caloundra Road. It was interesting to note that Coles had not taken that area into account, in doing its own assessment. It does seem that he was overly optimistic, in including it in his predictions for this proposed supermarket, when the southern residents could just as easily travel to the CBD.
It should be noted that all the experts agreed, that this proposed development would be unlikely to generate sufficient commercial impacts to threaten the viability of existing supermarkets at Currimundi Marketplace or the CBD. The majority (excluding Mr Coghlin) thought that the most significant impact of the proposed development would be to prejudice the ordinary development of the local business centre approved by council in the Caloundra West / Aroona area.
No resident gave evidence to the effect that there was disadvantage by having to travel to the present network of supermarkets and shops. Mr Fraser said that he was content to shop in the CBD, though he lived close to the proposed RNP supermarket.
It is true, as Mr Atkins said, and it was submitted for RNP, that the development of this site for a supermarket would provide a genuine improvement to the convenience competition and choice that the community currently experiences. In that sense, the supermarket would provide a public benefit. However, that is not enough to demonstrate a planning need. While Coles might be able to successfully carve out a share of the shopping market, because there are enough households to support it, that does not necessarily mean that it is fulfilling a planning need, in addition to its own commercial ambitions.
Bearing in mind the relatively short distances any residents travel to go shopping, it is likely that factors other than the actual distance, will play a significant part in their choices. Overall, the opinions of the majority of the economists should be accepted. At the present time, the needs of Caloundra residents are adequately met by the existing supermarkets and shops.
The conclusion is that this proposal would be an attractive additional choice for Caloundra residents, but that it goes no further than that. It would not satisfy any existing, current need in the community. With regard to the expert economists, it can be seen that Mr Coghlin was too optimistic. The others, especially Mr Brown, presented a more balanced view, in saying that there was no need for a full-line supermarket.
The Planners
All the planners who gave evidence accepted that the establishment and maintenance of a hierarchy of centres in any city is now regarded as being an important planning principle. A planning authority has to make significant decisions about where those centres will be located. The economic and social life of any centre depends upon the planning framework which supports those centres. In the case of this council, where growth is rapid and there is planning for centres in an emerging community area, arrangements have to be made to meet the needs of the community as the population grows.
Not surprisingly, such important principles have been recognised often in this court. See the recent decision of the Court of Appeal in Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157 at para 58, approving the decision of Judge Newton in Lewiac Pty Ltd & ING Real Estate Joondalup BV v Gold Coast City Council & Ors [2003] QPELR 385 at 389.
Mr Schomburgk said that prescribing a 2,500m2 limit on any shopping complex on the RNP land, was not soundly based. He thought that such a floor space provision was arbitrary and had no practical basis. It failed to provide for more than one possible future location. He also thought there were internal inconsistencies in the drafting of the City Plan, and that the drafting generally was of poor quality. He thought that the 2,500m2 limit had been overtaken by events, especially the mention in the LGMS of a centre of 5,000m2. He believed that a local business centre should allow for a full-line supermarket.
Mr Schomburgk observed that, of all the identified local business centres shown on the planning maps, only that at Caloundra West is new. The others are all existing centres. He observed that there is no existing, or planned, district business centre to serve this locality. He also says that the planning has sought to provide artificial limits to growth of business centres for the next 40 years – referring to the projections in the LGMS. The LGMS does plan for a district business centre in Caloundra West, though admittedly, the present intention is that it will first establish as a local centre, and will expand over time into a district centre.
Fundamentally, Mr Schomburgk complains that the 2,500m2 limit is not big enough to accommodate a full-line supermarket, together with other shops. That limit has been overtaken by events, especially the LGMS.
Mr Schomburgk agreed that the proposal would have certain consequences. He agreed that its size was greater than that intended by the planning documents for a local business centre (up to 2,500m2). At around 4,500m2, it would serve more than a local function being consistent with the intent for a shopping complex in a district centre. From the point of view of timing, it would be a long way in advance of what the LGMS envisaged for a larger supermarket in this area. Significantly, he agreed that the proposal would take up virtually all the allocations for an activity centre proposed under the LGMS, up to 2026.
The practical consequence would be that the RNP development would prevent the development of a local business centre on the northern side of Parklands Boulevard for many years.
The council did not attempt to lead evidence of any planning study or report which might have explained the reasons behind the choice of the 2,500m2 limit. Mr Norling, the council’s consultant was not able to advance a rational basis for the floor space limit. The absence of any study or investigation into the retail floor space needed in Caloundra was also relied on.
Therefore, it was submitted for RNP, it could be seen that the floor space limits in local business centres were not soundly based, and open to challenge here.
The other planners were unhappy with Mr Schomburgk’s support for this proposal. They identified significant conflicts with the planning documents. Development on the RNP site would prevent meaningful integration between the shopping complex and the proposed railway station. That is an important goal, because the planners (and the traffic engineers) pointed out the unsustainable traffic systems which were presently being used, and the need to place more emphasis on rail patronage in the future.
Apart from location, the other planners thought that the 2,500m2 limit to present development on the RNP land was the result of a deliberate choice by council to limit the centre to one providing only a local level of service, which would not include a full line supermarket. That was a rational and reasonable planning outcome which was open to council, as the planning authority for the area. Even with a limit of 2,500m2 the local shopping centre would provide many of the shopping needs of the local community, because it could contain a supermarket of around 1,500m2. A supermarket of that size would supply two or three times the weekly ‘top up shopping’. It would be capable of capturing about 80% of the weekly shopping needs of a typical household.
In their opinion, the planning documents were soundly based, particularly in the emphasis on a hierarchy of centres, including local centres, and have not been overtaken by events.
Messrs Vann and Ovenden thought that the aim of council was to limit the centre to one providing a local level of service, rather than one big enough to include a full-line supermarket. The council is the planning authority, and that aim was both rational and reasonable. Such limitations are often seen, in other cities. As Mr Vann put it:
“(the idea that the size of the centre is inappropriate) was suggested in the joint statement, in which it was recognised that there is a trend to the provision of full-line supermarkets in centres of the local neighbourhood level. However, both the Caloundra City Plan and the LGMS are relatively recent documents, and have chosen to adopt a different approach to local centre provision. … This ground seems of little significance.”
Mr Ovenden said that the RNP proposal would be separated from the station by Parklands Boulevard, and that would be a significant dislocation, rather than integration, with the railway station.
Therefore, it was submitted by the opponents of this proposal, it was not open to the court to substitute the RNP proposal, in place of carefully structured plans with different intentions. That submission should be accepted for the reasons advanced by the planners other than Mr Schomburgk. Fundamentally, council made a recent choice, and the objections to that choice do not fall into any of these categories where this court might be persuaded to interfere, such as an obvious mistake, or where a planning decision has been overtaken by events, and is plainly no longer appropriate. Mr Schomburgk explained how the City Plan could have been different, but that is not enough. Council has made other choices, and, as his planning colleagues explained, in effect, they are acceptable and considered choices that have not been overtaken by other events. A large part of council’s plan is to have the business centre on the northern side of Parklands Boulevard, leaving RNP land available for residential use. That is a significant reason for rejecting the RNP proposal.
Traffic and Mr Fraser
Some earlier plans for traffic movement throughout the shopping centre resulted in various criticisms. At the hearing, the traffic experts gave evidence concurrently. Some adjustments to the plan had been made before then. The result was that, by the time they had finished giving evidence, all the traffic issues between them, about the development, were resolved.
It should be accepted, as those experts say, that this proposal would see an improvement to the traffic situation at the corner of Sunset Drive and Parklands Boulevard. At the moment, it is simply a T intersection. The development would see the addition of lights, which, it is agreed, would be an improvement.
From the point of view of the legal practitioners, there were no remaining traffic issues. However, Mr G Fraser (seventh co-respondent) gave evidence about traffic matters.
Messrs Carmichael, Preston and Fraser represented the interests of the residents of Sunset Drive. They encouraged the lodging of objections to this proposal. The most important motivation for their objections was their feelings about the traffic problems along Sunset Drive. During the inspection, before the hearing, Mr Fraser pointed out their concerns. They are mentioned in his evidence. In substance, Mr Fraser felt that Sunset Drive was dangerous to pedestrians and motorists, particularly because of obstacles, such as power poles, and the absence of proper footpaths with kerb and channelling. In places, the road drops sharply, or has a deep unformed gutter at its edge. The road curves, making it dangerous for the people driving out of their properties on to the road. He felt that this development, and any other similar development on the northern side of Parklands Boulevard, would increase the level of traffic and hence the level of danger.
There is no doubt that Mr Fraser’s concerns are genuine, and based on personal observations of the difficulties along Sunset Drive. He, and others from Sunset Drive, would have been disappointed to hear the traffic engineers in this case. They did not support the concerns of the residents. They thought that Sunset Drive was built to an acceptable standard, bearing in mind its location and the fact that council was responsible for its repair and maintenance.
Mr Fraser acknowledged that their concerns would have to be addressed to council, rather than to a developer such as RNP.
Mr Fraser’s objection, and his evidence, does mention other matters. He expressed the view, in his objection, that a supermarket was not required in this location as the area was already well served by the existing nearby shopping centres at Currumundi, Aroona and Parkdale, all five minutes drive away, at the most. He said that Coles at Stocklands in Caloundra was another major alternative that was about eight minutes drive away.
However, when Mr Fraser later had an opportunity to frame issues for this hearing he raised the traffic issues. Also raised was the impact on nearby residents from noise generated by the shopping centre – that is, the noise made by large trucks supplying the centre, and the effect of noise, fumes and dust resulting from continued operation of refrigeration and air-conditioning. Those things, it was said, would happen to some residents, because they would only be separated from the shops by a fence, with planting having little or no effect.
Amenity
The amenity impacts of the supermarket were debated during the hearing. Attention was paid to the visual impact of the blank wall of the supermarket facing residents in Greensboro Place. That is why RNP’s architect has tried to soften the impact of that wall, by having articulated screens attached to it, and by planting.
From the point of view of the amenity of the neighbourhood, some nearby residents will see a supermarket, rather than adjoining houses or home units. It should be accepted that the presence of the supermarket in a residential area, will mean reduced amenity for its neighbours. There will be increased traffic and some increase in noise, from vehicles and people.
Apart from these impacts on amenity, and the position of the carparking, the other complaints about the built form of the supermarket and shops are unimportant in this appeal. The traffic problems have been resolved. The land does slope to the north-east corner, so parking and access is not ideal, but it is quite workable. A blank wall does face the south, but its appearance has been thoughtfully designed to lessen its visual impact. Overall, the design of the project has been carefully and thoughtfully carried out, and is beyond any real criticism.
Conclusions
RNP has been doing everything it can, to achieve its plans to build this shopping centre. In this court, its legal representatives have comprehensively and tenaciously put forward every argument in its favour. Fundamentally, it is said that the planning documents have been shown to be inadequate, in dealing with the timing scale and position of development, in a rapidly growing city. There may have been persuasive substance in its arguments, and in the opinions of its witnesses, if they had been addressed to council before its plans came into effect.
Now, the difficulty for it is the constrained role of this court, with its duty to consider if there are sufficient grounds to overcome the considerable conflicts with council’s planning documents. As these reasons demonstrate, there are not sufficient grounds to do that.
The appeal must be dismissed.
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