Sumvista Pty Ltd v Redland Shire Council

[2005] QPEC 88

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Sumvista Pty Ltd v Redland Shire Council [2005] QPEC 088

PARTIES:

SUMVISTA PTY LTD
Appellant
v
REDLAND SHIRE COUNCIL
Respondent

FILE NO/S:

4584 of 2003

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland, Brisbane

DELIVERED ON:

23 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23, 24 and 25 August 2005; written submissions received 25 and 31 August, 6 September 2005

JUDGE:

Alan Wilson SC

ORDER:

Appeal dismissed

CATCHWORDS:

Arksmead v Council of the City of Gold Coast (2001) 1 Qd R 347

Chartres Constructions Pty Ltd v Randwick Municipal Council 25 LGRA 193, per Hardie J at 195

Edgarange Pty Ltd v Redland Shire Council (2001) QPELR 331, at [14]
Fanilia Pty Ltd v Cairns City Council (1982) QPLR 221, at 223

Kentucky Fried Chicken v Gantidis (1979) 40 LGRA 132, at 141

King v Lewis (1995) 88 LGERA 183, at 202

Lewiac Pty Ltd & Anor v Gold Coast City Council [2002] QPELR 385 per Newton DCJ at [103]

Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 per Thomas J, at 229
Shire of Perth v O’Keefe (1964) 110 CLR 529, at 534-5
Weightman v Gold Coast City Council (2002) 121 LGERA 161

COUNSEL:

Mr J Haydon for the Appellant
Mr R Litster and Mr B Job for the Respondent

SOLICITORS:

Walters & Co for the Appellant
McCullough Robertson for the Respondent

1. This is an appeal against Council’s refusal of Sumvista’s application to develop a fresh food market and tourist facility on land at 613-623 Main Road, Wellington Point, comprised of Lot 2 on RP 139096 and a small part of Lot 3 on RP 14090.

1. Since 1999 Sumvista has sold fruit and vegetables from an existing farm shed on the premises.  Its director, Mr Wruck, has farmed in the area for many years and now grows strawberries and other produce on land immediately adjoining the shed, and nearby.  The business has been successful, with increases in the number of employees and farm production, and gross sales now average $20,000 per week.

1. The land lies about 1.6 kilometres south of Wellington Point Village Centre.  It is largely surrounded by conventional residential subdivision, particularly to the south.  Immediately to the north is a closed transport corridor and, directly across Main Road, the Wellington Point Garden Centre which has received preliminary approval to extend an existing nursery complex/tourist facility and introduce a number of new features including a garden centre, landscape supplies, display areas, a nursery, a garden pavilion, and lecture rooms and stores.

1. Main Road is part of a route featuring tourist attractions called the South Moreton Bay Tourist Drive, which contains facilities like the Sirromet Winery complex. 

1. The Village Centre at Wellington Point has about 60 retail outlets, including a hotel, restaurants, cafes and takeaway food stores.  It has been improved in recent years with landscaping and gardens, at significant cost to the Council, and is attractive and appears to be thriving with, presently, only two vacant retail premises.  The smaller Ormiston shopping centre, about two kilometres to the south-east, has 11 tenancies providing convenience  shopping and a restaurant.  The planning scheme envisages another future local shopping centre to the south, at the intersection of Main and Old Cleveland Roads which is presently occupied, however, only by a small general store.

1. The primary issues concern the nature and proper categorisation of the proposed development and whether it is, as the Appellant contends, a “mixed use tourist activity” which will not adversely impact upon the roles and functions of other centres depicted in the shire retail hierarchy, or whether it is essentially a variety of combined retail shop premises, with some ancillary uses, which is in vivid conflict with those elements of the Strategic Plan. 

1. Associated issues concerned other aspects of the planning documents including whether or not the proposal is appropriate within its present zone, or is consistent with Specific Planning Intent – 1 of the Strategic Plan, or Council’s proposed new Draft Planning Scheme.  Questions of need also arise.  Traffic issues were also in dispute, although in relatively small compass and not, Council conceded, at a level which would warrant refusal.

1. The application was lodged under a transitional scheme pursuant to the Integrated Planning Act 1997 (IPA) and the transitional provisions of that Act apply.  Although Sumvista submitted that the application seeks approval in the character of a town planning consent it is clear (as the town planner it called, Mr Bullen, conceded[1]) that the application is in the nature of one for rezoning as a special facility under the repealed Act:  the Local Government (Planning & Environment) Act 1990 (LGPEA) so the matters stated in s 4.4(3) of that Act apply for the purposes of assessment[2] and the Court must decide the application under LGPEA ss 4.4 including, relevantly, 4.4(5) and 5(A).

   [1] Exhibit 10

   [2]IPA s 6.1.29(3)(h)

1. The latter provides that a development application must be refused if it conflicts with the Strategic Plan and there are not sufficient planning grounds to justify approval despite that conflict.  The obligation is a mandatory one and the discretion is couched in negative terms[3].  Sumvista carries this primary onus[4].

   [3]Weightman v Gold Coast City Council [2002] 121 LGERA 161

   [4]IPA s 4.1.50(1)

1. The question where the conflict arises hinges to a degree upon the proper characterisation of the development proposal, a process made more complex by the fact that, as communications from Sumvista and Mr Wruck to the Council and various other persons show, the proposal has undergone some mutations of form and emphasis since it was first lodged in May 2002. 

1. As presently advanced, the Appellant contends that, properly construed, the present Planning Scheme encourages this development which should be characterised as one involving innovative mixed commercial, tourist and educational features, for which there is a clear planning need; and, that in its most recent form it cannot properly be categorised as a form of local retail centre which conflicts with the hierarchy of retail development promulgated under the scheme. 

1. Council’s position is that the proposal is in reality a collection of food outlets with, primarily, a retail purpose.

1. The original Development Application sought approval for a fresh produce market and tourist facility which would provide outlets for fruit and vegetable, delicatessen foods, seafood, meat and bread sales as well as cottage industry produced foods.  Later, this was amended to include a café of about 300m².  Now, as presented by Sumvista’s architect Mr Gall, the proposal will ultimately involve a market hall with an area of some 2000m², including the café, with a small heritage facility and some undefined areas for educational purposes, cooking classes, wine tastings and the like.  The broad range of goods proposed to be sold includes:

·fresh fruit, vegetables and produce;

·cottage industry products such as jams, pickles and confectionery;

·dry goods, being spices, nuts, dried fruits and gourmet lines;

·fresh and smoked traditional and exotic meats;

·delicatessen products;

·bakery and patisserie products;

·dairy products;

·fresh pasta;

·coffee and tea;

·“bush tucker”;

·fresh seafood, including sushi;

·ice cream, gelato and yoghurt;

·fresh flowers;

·wines and liqueurs produced from fruit (although not grapes);

·art work and handcrafts created by residents of the Shire; and

·small sized merchandise such as souvenirs bearing the farm’s logo or trademark.

1. The process of characterisation is, essentially, a practical and commonsense one[5].  Both the present Planning Scheme and the new Draft Scheme for the Shire include definitions of shops, and refreshment establishments, which plainly apply to the activities the Appellant intends to pursue within the market hall:

“shop” – means any premises used or intended for use for the purpose of displaying or offering goods for sale by retail: the term includes incidental storage of such goods on the same premises but does not include a “general store”, “hotel”, junk yard”, “refreshment establishment”, “service station”, “showroom class A”, “showroom class B” or “warehouse” as herein defined;

“refreshment establishment” – means any premises used or intended for use as a café, drink bar, fast foods outlet, fried fish shop, milk bar, refreshment kiosk, restaurant, snack bar, takeaway food bar, tea garden, tea room or the like: the term does not include “caterer’s room”, “hotel” or “shop” as herein defined.

[5]Kingl v Lewis 1995 88 LGERA 183, at 202; Shire of Perth v O’Keefe (1964) 110 CLR 529, at 534-5

1. The schemes do not, however, contain any definition of a mixed use tourist facility (and it is generally accepted the term tourist facilities is simply too broad for adequate description of any particular use[6]).  Although Mr Wruck said (and I accept) that he is interested in providing an educational facility for local schools where children might learn more about food production, good food, and good diet there was insufficient evidence for it to be concluded that a primary, or even a significant, use of this premises will be educational.

[6]Fanilia Pty Ltd v Cairns City Council [1982] QPLR 221, at 223

1. A similar conclusion must be reached about the claimed attraction of the premises to tourists, and its importance as a tourist facility.  While it is probable the proposal might attract tourists it will also, as Mr Wruck again quite properly conceded, attract a significant proportion of local residents; in any event, the predominant use of the premises for retail purposes means that visitors in whatever category will discover, upon entering the premises, that it is effectively a large shop, or collection of shops.

1. Descriptions of the proposal in more recent documents[7] as an agri-tourism Facility, located within a horticultural farm and incorporating a retail market, catering, educational and recreational activities associated with the production, promotion, preparing and enjoyment of high quality fresh food cloud, but do not conceal, this primary retail purpose.  Indeed, much of what has been said on Sumvista’s side about the proposed tourist and educational activities shows they are presently, at best, conceptual; and uncertain in a way which would make it impossible to find any of them comprised a predominant component.

[7] e.g. Exhibit 4

1. When properly categorised, the proposal falls into stark conflict with the relevant Planning Scheme, which came into effect in 1998 and is intended to provide direction for the overall development of the Shire for the following decade[8].  Its economic development strategies are implemented by the preferred dominant land use designations, and associated statements of intent.  It is the overarching planning document which sets the broad planning, conservation and development directions for the Shire[9].  Plainly, it is now more relevant and significant than an earlier Development Control Plan (DCP-1) relied upon by Mr Bullen, which was introduced a decade earlier, in 1988, and has elsewhere been described as “much dated”[10].

[8] s 1.2

[9] s 1.4

[10]Edgarange Pty Ltd v Redland Shire Council [2001] QPELR 331, at [14]

1. The land is within the Special Planning Intent designation in the scheme, which covers land in respect of which there is a clearly expressed intent to adopt detailed individual development guidelines: in particular, in this instance, with the objective of maintaining and reinforcing the substantial visual separation provided by this area between the urban communities of Wellington Point, Birkdale and Alexandra Hills.  This is intended to be achieved by development of a range of residential, recreational, institutional, commercial or mixed use activities. 

1. Mr Bullen sought to rely upon these general statements for the proposition that the proposal was not discordant with this part of the scheme.  In doing so, however, he construed the word commercial in a way which would include retail activities, when the terms are distinguished elsewhere in the scheme[11].  The views expressed by the town planner called for the Council, Mr Ovenden, that the designation is ambivalent and, while there is no direct conflict with it, does not provide encouragement for this proposal was, I thought, the better reading.

   [11] ss 2.0, and 3.3(b) and (e)

1. Conflict with the planned hierarchy of retail centres in the Strategic Plan is, however, much more vivid.  The ‘Vision’ section specifically recognises that major retail centres in Capalaba and Cleveland are to be supported by a hierarchy of other centre throughout the Shire integrated into local communities.  Other parts of the scheme[12] reiterate the importance of this hierarchy by identifying a “preferred distribution pattern of district and local centres throughout the Shire which are intended to serve as the local shopping, business and community needs of the surrounding resident population”; and, encouraging district and local centres to act as the major focus for local communities in relation to employment, commercial, community and recreational activities; and, by the promotion of an appropriate distribution of centres which enable trading areas to be established for each which “maintain and encourage their economic viability”.

   [12] s 2.2, 3.3 and 3.4

1. Mr Norling, a retail expert, identified retail outlets in local centres which were likely to suffer damage at the hands of this development which is, on any view, on a very large scale and substantially exceeds similar centres inspected in the Brisbane area.  Mr Bullen conceded that a substantial part of the premises would be used for retailing and that local customers, which he estimated at between 30 and 50% of the total trade, would be critical to its success. 

1. Mr Wruck’s evidence about the success of his farm shed tended to confirm fears the proposed venture would impinge on the retail hierarchy - as he conceded, the level and quality of fruit and vegetables on offer in the Wellington Point Centre, once high, has seriously declined since 1999[13].  Local shop owners provided statements showing their concerns, to similar effect.  The weight of evidence points strongly to the conclusion that the proposed development conflicts with these aspects of the Strategic Plan, and that the level of conflict is serious.

   [13] T140/45-142/35

1. Other areas of conflict also arise.  The land is in the rural/non-urban zone, which includes land expected to be acquired for urban development and also envisages other uses of a non-agricultural character, but with emphasis upon those which would assist in maintaining non-urban character.  The Table of Zones shows that shops are a prohibited use and a ‘refreshment establishment’ is a permissible use.  Under IPA s 6.1.2(3) the prohibition of shops (accepting that is the proper categorisation) is taken to be an expression of a policy that the proposed use is inconsistent with the intent of the zone.

1. Although the new Draft Planning Scheme has not yet commenced (and, accordingly, is not a matter to which the Court may give weight: IPA s 4.1.52(2)(a)) it is well advanced along its statutory path, and cannot be ignored[14].  The scheme reinforces, in clear terms, the strategies contained in the existing transitional scheme concerning the kinds of development envisaged in this locality, and on this land and also defines and develops the Shire’s hierarchy of centres.  Both shops and refreshment establishments are inconsistent uses; Mr Bullen agreed that categorisation is as close to a prohibition as IPA allows. 

   [14]Lewiac Pty Ltd v Gold Coast City Council [1994] 83 LGERA 224 per Thomas J, at 229

1. Desired Environmental outcome No. 6 – Economic Development confirms ongoing plans for a network of multipurpose centres, with Wellington Point becoming a neighbourhood centre with up to 7,500m² (i.e., with scope for further development over and above the present 6,000m²); and the Strategic Framework contains detailed provisions about these various centres:

(a)           the Redlands Planning Scheme encourages the development of centres in              accordance with a functional network, with individual centres of varying   level differentiated from one another on the basis of a centres matrix that   distinguishes centre role and function, scale and use of composition.
…

(i)         neighbourhood centres are located at Wellington Point … these    centres are intended to fulfil a traditional village centre role.    They provide for neighbourhood commercial and retail needs   of a catchment population generally up to 7,500 persons …   retail and commercial activity within the centres is to   encompass minor-markets, speciality shops, and limited   commercial premises. Full-line supermarkets are inconsistent   with the intended role and function of these centres and   accordingly are not considered appropriate;

(j)         all remaining centres in the Shire are local centres.  Local    centres are generally encouraged to develop in locations zoned   for such purposes;

(k)        the Redlands Planning Scheme actively protects the primacy of    the Shire’s centres by discouraging out of centre development   and ensuring no existing centre expands to the next level in the   centre’s matrix by virtue of size or function.

1. Need is relevant in this case because the Development Application is in the nature of a rezoning, and the transitional provisions focus upon it (even if it involves a consent use)[15]. 

   [15] LGPEA s 4.3(3)(b); Arksmead v Council of the City of Gold Coast [2001] 1 Qd R 347

1. The issue of need rested, in Sumvista’s case, upon an assertion that Redland Shire lacked a ‘high end’ fresh food market, and tourist facility of this kind, but there was no evidence of any latent, unsatisfied demand for that kind of facility which could not be met under the transitional planning scheme – for example in the proposed, nearby local centre. 

1. The absence of evidence of an unsatisfied need (which could not be met within the hierarchy set up under the Planning Scheme) means that the benefits of any increased choice which might be provided by the facility have to be weighed against potential detriment to existing and proposed centres, and that hierarchy[16].  As Stephen J said in Kentucky Fried Chicken v Gantidis 1979 40 LGRA 132, at 141:

…if the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that be due to physical or financial causes, and if the result in community detriment will not be made good by the proposed development itself, that appears to me to be a consideration properly to be taken into account as a matter Town Planning…

[16]Chartres Constructions Pty Ltd v Randwick Municipal Council 25 LGRA 193, per Hardie J at 195

1. An added difficulty for Sumvista is the (previously mentioned) uncertainty which still attaches to the proposal.  As Mr Wruck frankly conceded, he seeks approval now but will only later finalise the detail of precisely what will be developed[17].  While it appears Mr Wruck has been very successful in the business conducted through the existing farm shed, the anticipated success of the new proposal both remains uncertain and cannot, itself, be said to establish a need, in the town planning sense[18].  All of these factors dictate the conclusion that no community need has been demonstrated in a sense which meets the demands of the legislation or warrants the disruption of the Planning Scheme.

   [17] T143/12-40

   [18]Lewiac Pty Ltd & Anor v Gold Coast City Council [2002] QPELR 385 per Newton DCJ at [103]

1. The traffic experts were largely of one mind, and agreed there would need to be a roundabout constructed at the nearby intersection, from which there would be access to the site over a small portion of Lot 3.  They disagreed, however, about the provision of another access point to the north, for use by staff and suppliers.  The evidence of Mr Viney, one of the experts, was persuasive that this additional access might cause problems and it could readily be extinguished in a way which did not cause significant disruption to the proposal.  The Appellant’s expert conceded, in oral evidence, that the additional access was not “preferable”[19].  Both agreed traffic issues were minor and would not warrant refusal of the proposal.

   [19] T184/40-43

1. At the conclusion of the hearing Sumvista was permitted to deliver further written submissions about two matters: the weight, if any, to be given to the approval granted to the Garden Centre across Main Road; and planning grounds which might overcome the identified conflicts with the planning documents.

1. There are several reasons why the Garden Centre approval does not avail Sumvista.  First, it is not an approval for retailing of the kind envisaged in centres.  It does not involve the sale of products used regularly by household consumers.  Secondly, the Garden Centre is within the ambit of uses contemplated in the SPI area, and there is no suggestion its new features will somehow negate, or overtake, the Strategic Plan and harm its relevance.  Finally, even if these conclusions are not apposite, the existence of discordant uses which pre-date, or raise questions about the continuing relevance of, a planning scheme is not a matter to which weight will, necessarily, attach[20].

   [20] Grosser v Gold Coast (2001) 117 LGERA 153; Kentbrock v Gold Coast (2003) QPELR 587; Palyaris v Gold Coast (2004) QPELR 162

1. It was earlier found that the conflict is serious and, on its face, the proposal will unacceptably impact on the planned hierarchy of centres in the Shire.  It is to that conflict that any planning grounds said to favour the development must direct themselves.  Some of the matters relied on by Sumvista are, however, neutral or barely relevant – the absence of evidence of potential blight elsewhere, or of strong conflict with the intent for the SPI – 1, or the DCP – 1 areas; and, the approval granted to the Garden Centre.  Of the others it has mustered, there is no compelling evidence of need existing at this sight, and the land is not included in the tourism area under the Strategic Plan.  The exercise became, in the appellant’s hands, one of attempting to explain away or downplay conflict - and its failure, notwithstanding the best efforts of Mr Haydon, to identify grounds which are relevant and telling in the equation only confirms, in a sense, the high degree of conflict.

1. The appeal is dismissed.