Tanby Gardens Pty Ltd v Livingstone Shire Council
[2007] QPEC 97
•16 November 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Tanby Gardens Pty Ltd v Livingstone Shire Council & Ors [2007] QPEC 097
PARTIES:
TANBY GARDENS PTY LTD ACN 106 996 172
(Appellant)
and
LIVINGSTONE SHIRE COUNCIL
(Respondent)
and
LIVINGSTONE SHIRE COUNCIL (Public and Environmental Health)
(First Co-Respondent by Election)
and
KEPPEL BAY HOLDINGS PTY LTD ACN 107 192 843
(Second Co-Respondent by Election)
and
LANDEL PTY LIMITED ACN 010 899 193
(Third Co-Respondent by Election)
and
CHIEF EXECUTIVE UNDER THE TRANSPORT INTRASTRUCTURE ACT 1994
(Fourth Co-Respondent by Election)
FILE NO/S:
BD 2850 of 2006
DIVISION:
Appellate
PROCEEDING:
Applicant appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
16 November 2007
DELIVERED AT:
Brisbane
HEARING DATE:
3-7 September, 15-16 October 2007
JUDGE:
Robin QC DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
Integrated Planning Act 1997 s 6.1.30(3)(a) - Local Government (Planning and Environment) Act 1990 s 4.4(5A) – Developer appeal against refusal of application for material change of use for “major mixed use/retail development” on rural zoned land designated urban at Yeppoon – issues included need, visual amenity and traffic – need for the bulky goods retail component asserted in the sense that planning arrangements made no provision – doubtful whether traders would be available to take up the space – that component not proposed in the short term, when supermarket and specialty stores only (for which there was no need) would be provided – proposal conflicted with the centres hierarchy and threatened the Yeppoon CBD – planning grounds lacking to overcome conflict
COUNSEL:
Hinson SC and Cochrane for appellant
Ure for respondent
Gallagher QC and O’Brien for second co-respondent by election
Hughes SC and E Morzone for third co-respondent by election
SOLICITORS:
Robert Harris and Company for appellant
King and Company for respondent
Home Wilkinson Lowry for second co-respondent by election
MacDonnells for third co-respondent by election
This is an applicant appeal under s 4.1.27(1)(a) of the Integrated Planning Act 1997 (IPA) by Tanby Gardens relating to a large site of some 25.12 hectares of triangular shape at the north-eastern corner of the intersection formed by Taranganba Road and Tanby Road at Taroomball in Yeppoon. The road frontages are about 900 metres and 650 metres respectively. The eastern part of the site, other than a knoll rising as one moves to the east along Taranganba Road, tends to be low-lying. As Mr Priddle puts it, the third north-easterly running boundary “is demarcated, in part, by low-lying areas associated with the adjoining Ross Creek riparian corridors.” The appellant on 6 April 2005 applied for a development permit for a Material Change of Use for what was called a “major mixed use/retail development (22,189 m²).” This would represent a very large shopping centre, indeed the gross floor area roughly equates to that of the Yeppoon CBD. The application was lodged before the Council’s current (2005) planning scheme was adopted. While regard may be had to the 2005 scheme under the Coty principle, assessment occurs under the “Transitional Planning Scheme” originally gazetted in December 1991 in which the land had a Rural B zoning.
Three adverse submissions were attracted during public notification of the proposal, which required impact assessment, from commercial rivals, two of which have become the second and third co-respondents by election.
Visual amenity impacts
The proposal is for four principal buildings, two of which are of football field proportions, the others not far behind. This gives rise to an obvious tension with the proposed location, in an extensive area whose past has been rural, but whose future is seen as residential, in the form of single houses on largish blocks. To the west, on Keppel Bay’s land, and to the north, there can be expected to be some dozens of new residences located on building envelops some 50 metres or so higher in elevation than the site, which is to be levelled, including by a cut which will remove part of the knoll.
In rejecting Tanby Gardens’ development application, the Council considered various provisions in its transitional planning scheme:
“•The planning intent for land in the Rural B zone was as follows:
‘This Zone provides for smaller Rural allotments which do not require urban services and on which bona-fide farmers, who require smaller rural holdings, or hobby farmers may pursue their activities and erect a single dwelling as of right.’
•the proposal effectively seeks to rezone the land. The Intent of the Urban PDLU (in the Strategic Plan) was as follows:
‘The designation is for all uses normally associated with an urban area, this includes residential (and park/residential), commercial, industrial and community and public uses which are located in clearly defined areas. The predominant use is residential, but includes other uses which service both the urban area and surrounding rural areas.
The designation also includes the smaller village-like settlements in the Shire, such as Marlborough, Ogmore, Yaamba, Byfield, Cawarral, Mt Chalmers, Nerimbera and Keppel Sands, and include all the uses within these settlements. Although the predominant use is residential, non-residential uses may be intermixed.’•Objective 1.3.5.2 of the Strategic Plan is of particular relevance, and is as follows:
To provide for the growth of retail, commercial, and other areas.
ImplementationA The Planning Study of the strategic plan analyses demand for various urban land uses.
B Council will not support any additional Central Business (or Tourist Business) zoning in the foreseeable future, other than in proximity of the existing commercial centers of Yeppoon and Emu Park.
•A development of the magnitude proposed would reasonably be expected to locate in the Central Business zone. The Local Business zone would not have been appropriate, given its intent, which is as follows:
This Zone provides for convenience shops, sometimes combined with residences and meeting the retailing needs of the residential neighbourhood. Generally the sites are located within a residentially zoned neighbourhood, and contain a general store or shop, to serve the immediate area.
•The following Major Commercial Centre objectives are also relevant to an assessment of this application.”
1.3.11 Major Commercial Centre is set out below in par [26].
The following reasons were given:
“1.The proposal conflicts with Urban Objective 1.3.5.2 of the superseded Strategic Plan because the Planning Study does not identify a major commercial or retail area on the subject land, and the proposal is the equivalent of the rezoning of a significant area of land to Central Commercial zone in a locality not proximate to Yeppoon or Emu Park.
2.The proposal conflicts with Major Commercial Centre Objective 1.3.11.1. Whilst an economic impact assessment was provided in support of the application, it is nevertheless considered that the adverse economic impacts of an oversupply of retail floor space that would be caused by the proposal are unacceptable.
3.The proposal conflicts with the Centres Hierarchy intended by the current Planning Scheme. In particular the proposal will impact detrimentally upon the role of Yeppoon as the retail and commercial hub of the Shire.
4.The proposal conflicts with DEO’s of the current scheme because of its impact upon the role of Yeppoon as the new business/retail centre of the Shire.
5.The proposal is for inconsistent development in the Residential A zone in which the subject land is included in the current scheme.
6.The proposal is inconsistent with the Intent of the Residential Zone Code which limits non-residential uses to those of a local business/community nature.
7.The proposal exceeds the floor space and function of centres intended within Area 1 of Table 8C Centres Hierarchy.
8.The proposal fails to comply with the local centre definition set out in the current Planning Scheme.
9.The impact likely to be occasioned by this development will exceed those that would reasonably anticipated if the land was developed for residential purposes in accordance with Council’s planning documents.
10.Submitters have raised valid grounds that warrant the refusal of the application.
11.The proposal will prejudice the proper and orderly development of the locality.”
The proposal contains an unusual amount of landscaping, which the appellant highlighted by commencing its case with its evidence on this aspect, which it is convenient to discuss at this point. Mr van Pelt, engaged to consider visual impacts, has produced and defended (as an acknowledged expert in this field) the landscaping proposals which he describes as designed to “integrate” the development with its residential context. Efforts unprecedented in shopping centre design in the State (in my experience, at least) have been gone to, based on wholesale planting of trees on a site which is at present effectively cleared. Tanby Gardens proposes “eleven different landscape treatment types” which are summarised as follows:
·TREATMENT 1 – Mass planting around site
·TREATMENT 2 – Entry statements and sign pods
·TREATMENT 3 – Petrol station planting
·TREATMENT 4 – Carpark planting
·TREATMENT 5 – Main walkways
·TREATMENT 6 – Main car access
·TREATMENT 7 – Inter-building landscape
·TREATMENT 8 – Planting in carparks between buildings
·TREATMENT 9 – Forecourts
·TREATMENT 10 – Planting on fill
·TREATMENT 11 – Planting on cut bank.
Except for the two-way entrances to the development (one on each frontage) and a left-only exit between the Tanby Road entrance and the intersection, there will be dense planting along the road frontages, effectively hiding what lies behind from the roadways. The proposed petrol station planting is said to be an exception “where some visibility under a tree canopy is allowed for [which] will still provide screening to overview locations while allowing for limited views from adjourning road areas.” In the carparks, big trees are envisaged “at variable spacing 1.5 – 3.5 m to create a dense planting of tall trees such as melaleuca leucadendrum. All planting beds will be irrigated and rock mulched.” Large hoop pines are proposed on the main car access road and in “inter-building areas.” Within the site, good visibility will be preserved by use of tree species with a single trunk and canopies at higher levels. Mr van Pelt said he proposed in carpark areas a tree for every four carpark spaces representing about double the densities attempted elsewhere, for example at a centre in Noosa, a local government area said to be celebrated for its visual sensitivity. Tall trees are expected to play their part in reducing the visual impact of the large flat roofs, about which little else can apparently be done other than adoption of a small number of appropriately muted colours applied in a variegated way. Mr van Pelt is correct in his assertion that, from a distance, even the largest roof will occupy only a modest amount of a nearby observer’s field of vision. This point pays scant regard to the psychological aspects.
On the assumption (which may be a very big one) that Mr van Pelt’s proposals (which he says will led to superior amenity to that likely to be encountered where residents’ separate choices and actions will determine what trees if any eventuate, and survive) are expeditiously put in place and maintained in the long term, there would be an impressive degree of visual “integration” except from the elevated residences nearer the rim of the valley. It is a valid question whether potential tenants of the centre would be attracted to it given its lack of visibility: indeed, Mr Hughes hinted there might even be safety considerations flowing from confusion by tourists or other visitors having difficulty in finding the centre.
The conclusion is difficult to avoid (although Mr van Pelt resisted it) that what he has done is hide or camouflage the shopping centre, so that so far as possible it cannot be seen. He himself in the Joint Experts’ Report prepared with Mr Chenoweth said in paragraph 14 that “the proposed built-form is low-rise and of no greater height than would be expected in residential estates, and the proposed buildings are set well back from the road frontage and almost “buried” in landscape planting including multiple bands of trees, such that they will be screened from most external viewpoints.”
Mr van Pelt left the court with the impression that a leap of faith is required to accept that what he advises will be delivered and maintained: even then, there will be visual impacts which the Shire’s planning documents would not have led persons contemplating becoming residents on the elevated surrounding sites to expect. Mr Chenoweth agreed that from street level, the proposed development would “appear more attractive than a residential estate, provided the proposed landscaping is planted and maintained in accordance with the plans” (Joint Experts’ Report of 20 August 2007). Assuming that appropriate lofty tree species are selected for planting and flourish, views of buildings (save for the service station which is proposed to be visible from Tanby Road) will be screened. The situation in respect of Building Four (the largest at some 7,000 m², and most southerly) will be alleviated by its occupying a cut into the knoll necessary to flatten the site. There will also be cut and batter to accommodate the neighbouring Building Three to the north. Mr Chenoweth welcomed the screening of the shopping centre, which he found unprecedented. He considered it would not overcome the visual amenity impacts on future residents of the area who will see the site from above. Those impacts, essentially to do with scale (four large buildings in a line extending 400 metres or thereabouts) caused the problem, representing something inconsistent with expectations. Under the Transitional Planning Scheme those would be that the land would remain as Rural B or be rezoned for predominantly residential purposes (in neither case having more than some small shops). Section 1.3.5.4 sets out an objective “to protect and enhance the amenity of existing and future residential areas while providing for a diversity of types of accommodation,” s 1.3.5.5 “to enhance the visual qualities of towns within the Shire” (see Exhibit 14 1.5.3). In the 2005 Planning Scheme, the site is in the Residential Zone (R1 Precinct) the applicable code including among the desired overall outcomes:
“(4) non-residential uses locating in a residential area comprised purposes of a local business/community nature which support the enjoyment of residential areas by residents but do not detract from the character and amenity of localities in which they are established.”
Practical considerations raised by Mr Chenoweth which I think important are the protracted construction period, which would last for an uncertain number of years, pushing out the time when the large trees would attain the maturity necessary for their intended screening function.
Overall, the acceptability of visual amenity impacts confounding reasonable expectations falls to be measured against the benefits offered by a proposed development. If it is assessed to be vital or worthwhile in light of the benefits it would bring some unwelcome impacts might well be judged acceptable.
Traffic
Considerations with respect to traffic are similar. Tanby Road is a state-controlled road. Unfortunately, the priorities of the Department of Main Roads are such that their requirements in light of the proposed development are unknown. Mr Beard and Mr Holland who gave evidence for the second and third co-respondents were of the view that the now familiar process of meetings of experts (they had three such meetings with Mr McClurg, the appellant’s traffic engineer) had inevitably failed to produce the expected outcome of something like consensus because of the appellant’s failure to be more definite about its proposals (the relevant drawings were castigated as “architect’s” work of little utility to traffic engineers): further, it was said by them that the circumstances made it incumbent upon the appellant to perform the Department’s job in the circumstances in accordance with what was said to be something of a developing practice when the Department is not ready with its proposals, and produce traffic engineering proposals with a more useful amount of detail. Yet to be resolved are important issues such as whether the proposed entrance to the site north of the centre of the Tanby Road frontage should be treated as a roundabout or a signalised intersection. The Department in its planning for Tanby Road thus far has favoured roundabouts, which minimise delay. It was interesting that Mr McClurg (while indicating the appellant’s willingness to satisfy the Department) appeared to favour signalisation, in the interests of safety of pedestrians and cyclists, whereas Mr Beard favoured roundabouts, expressing the opinion that those categories of road user were more able to attend to their own safety than given credit for. Criticisms of the proposal included the lack of sufficient room for queuing space at both the Tanby Road and Taranganba Road entrances (i.e. length of roadway within the site which may be traversed without encountering any “conflict” with other traffic), particularly for entering vehicles which it was feared would create serious danger by blocking the public road while queuing to get into the site. The internal traffic layout and parking arrangements attracted criticism, and other details such as the tightness of additional lanes at the south end of Tanby Road indicated in drawings.
Both men conceded that traffic issues could be resolved, given the generous space available on the site, which, being vacant, has few constraints. What is necessary is more certainty in the appellant’s plans.
It is the appellant’s proposal which gives rise to traffic engineering issues, as it is estimated by Mr McClurg to be likely to generate traffic movements up to 2,000 per hour (some 10 times the present traffic on Tanby Road). Further, such planning as had been done for Tanby Road envisaged that it would not provide access (or the principal access) to the site, which would be taken from Taranganba Road. Explanation for this was given in terms of the guideline under which a road occupying its place in the hierarchy as envisaged by the Department ought to provide intersections at intervals no less than 500 metres. The Tanby Road entrance proposed is opposite the entrance to the second co-respondent’s residential development. A “T” intersection there would create no concerning issues. Establishment of a crossroads will require a roundabout or signalisation. Mr Beard and Mr Holland were critical of the location of the proposal in aspects such as the likely catchments (in terms of where potential patrons actually live rather than its geographical extent), lack of adequate pedestrian, bicycle and public transport links, lack of integration with other commercial and community facilities and a diversion of “trip-ends including trips potentially made by public transport, away from central Yeppoon to the detriment of that centre” (Exhibit 17 6.1). Such considerations merge with more general considerations for the court, and issues dealt with by other experts. As Mr Holland put it, if the proposal was assessed as one having merit, it would be worthwhile (and the community would expect it to happen) that the traffic issues that would not exist but for the proposal be resolved. All three traffic engineers were confident they could be resolved if necessary. At this stage, however, traffic considerations tend to work negatively in the balance, if only for the problems created at the Tanby Road entrance.
The proposal and need for it
Mr Brown’s town planning report (Exhibit 16) conveniently sets out in paragraph 26 a table indicating the way in which the proposed make-up of the appellant’s overall proposal has changed:
Component Proposal as Submitted
(m2)
Proposal as Publicly Notified
(m2)Current Proposal
(m2)
Supermarket 3160 2450 2450 Specialty Shops 715 2935 2935 Retail Showrooms 10325 13450 11650 Service Industry -- 2770 2770 Gymnasium 1300 1300 1300 Fast Food 500 600 500 Petrol Station 35 40 40 Garden Supply and Building (Floor area not nominated) 1540 1540 Other Retail/Sales/Service Trades 6089 -- -- Total 22124 25085 23185
He calculates 17,535 m2 of “retail floorspace”. The most significant change has been the fourfold increase in space for speciality shops. In the appeal, an alternative terminology for retail showrooms was bulky goods: the products concerned range from those of small or modest size such as one would find in computer shops to large items in the whitegoods category and furniture. The economic experts who gave evidence were Ms Bonwick (for the appellant), Mr Haratsis (for the Livingstone Shire Council), Mr Leyshon (for the second co-respondent) and Mr Duane (for the third co-respondent). When they met, by a process of compromise, which may mean that the outcome is not wholly satisfactory to any of them, they identified two different catchments the proposal would support and be supported by, one for the supermarket, the other for the retail showroom component. Essentially, the former extends south from Rockhampton-Yeppoon Road to the Rockhampton-Emu Park Road with two excisions east of Tanby Road in the north. There is an extension to the south of the area of the main town of Yeppoon bounded in the east by Ross Creek and in the south extending along Tanby Road more than half way to the site. The excision further to the south allocates rather more than half of the area east of Tanby Road to Emu Park, which the planning arrangements have relevantly always recognised as a centre. The larger retail showrooms catchment includes the excisions mentioned, extending in the south beyond Emu Park and extending north of Rockhampton-Yeppoon Road for a comparable distance. In the west the agreed retail showroom catchment extends about a third of the way to North Rockhampton where there has been a burgeoning of retail showrooms operated by major national players, only a 25 minute drive from Yeppoon; these represent daunting competition for any operator contemplating setting up in Yeppoon.
Mr Haratsis in recent years has conducted a study for the Council which identifies a lack of provision in the Council’s planning instruments for bulky goods retail. The study proposed other possible sites as suitable for this use, being the approved O’Brien development (approximately 13.5 ha of commercial land specifically limited to uses that would not conflict with the retail uses within the Yeppoon CBD, according to Council officers’ planning report) and, somewhat closer to central Yeppoon, the Council’s depot which is proposed to be abandoned. The merit of those sites was seen as lying in their enjoying the visibility and accessibility offered by their being on Rockhampton-Yeppoon Road.
Another possibility is the currently disused Queensland Rail site at the western end of the Yeppoon CBD (opposite the existing Keppel Bay Plaza Shopping Centre, which contains a full-line Coles Supermarket (formerly BiLo)). This site offers possibilities of expansion and revitalisation of the CBD. It might be suitable for bulky goods retail, on the assumption that returns would justify the market rent; disproportion between the two was said to be the main reason for this use usually being located outside major commercial centres. The evidence showed that the Council, which is engaged in discussions with Queensland Rail about the future of the site, is against “big box” development there.
Mr Haratsis said that he was aware of the Tanby Gardens site when he conducted his study, and he had looked at it from the perspective of suitability for bulky goods retailing (Transcript 261). He may not have treated it as seriously as the sites he recommended. Essentially, his criticism is that it lacks the exposure available on a more major road.
A criticism of the O’Brien site is that it is constrained by its relatively small size, and by offering only scope for free-standing, independently owned outlets. There may be as many as seven openings potentially available, but that is not clear.
The fact is that the market has not been tested, that there is no sign of any operator being interested in establishing bulky goods retailing in Yeppoon over and above the limited extent of it in the main street already. Without derogating from the lacuna in planning instruments identified by Mr Haratsis, the economic experts are against the notion that there is any present unmet need, even more against the notion that an operator is likely to come forward to meet such a need in the foreseeable future. Attractive as may be the notion of preventing spending “escaping” to Rockhampton, nothing is likely to eventuate to make it a reality. What I have said about the economic experts is subject to the exception of Ms Bonwick, who suggested the others had underestimated social and consumer trends influencing retail development and consumption patterns, which she considered relevant to the likely demand for additional retailing in Livingstone Shire. She refers to growth in recent years in bulky goods retailing, increased interest in construction and renovation, including “do-it-yourself” in house and garden, promoted by “reality” and “lifestyle” programs in the media, all of this coinciding with rising disposable incomes, increasing dwelling sizes and car ownership. She says there is an increased interest in and availability of leisure (including sport and other fitness activities), and alludes to other factors such as Australia’s increasing cultural diversity and the Sea Change phenomenon, of which Livingstone Shire is a beneficiary, although she emphasises that it is a working community already, likely to grow and attract young working families interested in “a more diverse mix of market segments”.
It may be accepted that there is a need for bulky retail facilities in Yeppoon, and that it would be a benefit for the community to make provision for them. On the evidence before the court, however, the economic reality is that for the foreseeable future, no operator is likely to step forward to satisfy that need. The appellant has pointed to no expression of interest in its site from any such operator. Doubtless, this has been influential in its staging.
Mr Hinson, senior counsel for the appellant, had to concede that his client’s case for need as a planning ground justifying the overlooking of conflict with the planning instrument was stronger in respect of the bulky goods retailing aspect than for the supermarket/specialty shops aspect. It is those less-in-demand components which Tanby Gardens proposes for Stage 1, which is expected to create a cash flow to facilitate construction of Stage 2 at some uncertain future time.
The case is an odd one in its “need” aspect, in that the carrot of provision of bulky goods retail facilities (if a development approval authorising them is acted on) is to be made available by approval of the proposed supermarket, “need” for which is asserted by Ms Bonwick, but cannot be taken as established. The economic experts were agreed that to support a full-line supermarket as proposed, a catchment of 8,000 people to 10,000 people is required, as a rule of thumb. Further, the assumption is that the catchment is uncontested. If population forecasts are achieved, which will depend on actual provision of residential land and dwellings, the catchment will not grow to the requisite size until 2016. Further, the agreed catchment will be contested. The bulk of the existing population reside to the east of the site, on the coast. There is every likelihood that, rather than patronise the new supermarket, consumers in the established areas would continue to travel north along the coast road to the CBD for supermarket shopping. For some of them, it would be closer. In the heart of this developed population area is the existing Cedar Park Shopping Centre. The actual development there has been more modest than might have been anticipated. There is a small Foodway at Cedar Park, listed among the trade or catchment area supermarkets, currently defined as those greater than 400 m2 in size. Foodway is said to be 500 m2. Also in the group is the Coles at Keppel Bay Plaza (2,540 m2) and the 900 m2 Woody’s Supermarket in the town centre, a long established local institution. Indeed, the proposed operator of the supermarket on the site is to be Woody’s, which would continue to trade at its existing outlet. Yet to be mentioned are any future entrants, most significantly a giant Woolworths Supermarket of 4,150 m2 at the “Landel site”, which will probably be trading by the end of 2007 in premises whose construction is well advanced. This is located some 400 metres from the CBD and, at a stretch, could be regarded as part of the CBD. Landel is the third co-respondent by election, which was represented by Mr Hughes SC and Mr Morzone. The Landel (or Lancini) site is large (13,860 m2, including a Big W discount department store) and is reasonably categorised by Mr Leyshon as operating as a sub-regional centre. In the convenience category comes Cedar Park Shopping Village (1,204 m2), as well the approved Keppel Bay Estate Convenience Centre which the second co-respondent by election hopes to establish across Tanby Road from the appellant’s site.
Development conditions effectively make Keppel Bay Holdings (represented by Mr Gallagher QC and Mr O’Brien) responsible for creating their own market for that convenience centre, by bringing in sufficient population. Mr Brown’s report (Exhibit 16) contains in Appendix 8 the Council’s Decision Notice of 29 March 2006, containing conditions of the development permit, among which are:
“1.2Approved uses for the final development shall generally be limited to the following areas
Use Floor Space Shops/offices (tenancies 1-5, convenience store, storerooms) 785m2 Medical Centre (tenancy 6) 115m2 Café/Restaurant 100m2 Alfresco Dining 100m2 Gymnasium 130m2 Shopping Centre Total 1,230m2 1.3The layout of the development as shown on the approved plan(s) shall not be altered or modified (whether or not to comply with any Statute, Statutory Rule, Local Law or for any other reason) without the written approval of the Chief Executive Officer.
2.GROSS FLOOR AREA & DEVELOPMENT STAGING
2.1Staging of the development is to be commensurate with population growth within the concept Forecast Main Trade Area that is identified on page 5 within the ‘Assessment of Need and Demand Proposed Local Retail Centre Keppel Bay Estate Hidden Valley, Queensland’ Report, prepared by Foresight Partners Pty Ltd and dated April 2005. Accordingly, the advancement of the development shall be limited as follows:
(a)Whilst the resident population within plan 2005/355/MCUI Trade Catchment Area is 2000 persons or less, the neighbourhood centre (excluding the child care centre) shall not exceed a maximum floor space of 500m2 (excluding café/restaurant and alfresco dining area) of which, the ‘convenience store’ component of the centre shall not exceed a maximum floor space of 350m2 (including 100m2 that is to be used for storage purposes). All other individual tenancies that are to be used as ‘Shops’ shall not exceed a maximum floor space of 135m2 per tenancy.
(b)The maximum floor space of the neighbourhood centre (excluding the child care centre) at full capacity shall not exceed 1230m2 (including the alfresco dining area) of which, the ‘convenience store’ component of the centre shall not exceed a maximum floor space of 500m2 (including required storage). All other tenancies that are to be used as ‘Shops’ shall not exceed a maximum floor area of 135m2 per tenancy. The collective area of all commercial activities (excluding café/restaurant and alfresco dining area) the shops shall not exceed 1000m2.”
If the Tanby Gardens proposal goes ahead, it seems inevitable that Keppel Bay Holdings’ neighbourhood or convenience centre will not. While part of the approved development might proceed, the conditions quoted place the developer in an unusual position. It would act reasonably, in my opinion, by deciding to wait until the population benchmark of 2,000 was achieved, in which circumstances, it cannot be treated as a developer sitting on an approval and doing nothing. Its site and the appellant’s would be four or five kilometres south of the CBD (the O’Brien site is roughly halfway to the south, but further west.)
Mr Gallagher pointed to some significant aspects of the chronology. The appellant’s development application was filed after the Council had approved the proposal for the Landel site by a Negotiated Decision Notice issued on 4 August 2004. That approval attracted an adverse submitter appeal by the proprietor of the Keppel Bay Plaza Shopping Centre, where there then was a BiLo Supermarket. The appeal was dismissed on 18 November 2005. See JPF Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359. This is an approval which has been implemented on the ground. That makes some important differences for purposes of this appeal. It is unknown whether Woody’s interest in the appellant’s supermarket survives. Further, there is the known fact of Woolworths’ entry into the competition among supermarkets. It will attract custom from the agreed supermarket catchment identified by the economic experts. It cannot be left out of the equation in exercises such as the economic impact study/assessment required under 1.3.11 of the transitional planning scheme:
“1.3.11 MAJOR COMMERCIAL CENTRE
Aim
To ensure that a full range of goods and services are (sic) provided to efficiently serve the Shire residents and visitors.
1.3.11.1Objective
To develop upon and consolidate the existing commercial/ business centres within the Shire.
Implementation
AThe existing commercial centres within the Shire have generally been recognised by appropriate zonings on the town planning scheme maps.
BNo additional major shopping centre approval will be granted by Council for sites external to the existing commercial areas in Yeppoon unless the applications are supported by an economic impact study which establishes the need for the proposed development.
1.3.11.2Objective
To provide an adequate level of commercial facilities for Shire residents.
Implementation
Council will be supportive of neighbourhood shopping centres provided the developments make adequate provision for engineering infrastructure including external roads and carparking areas in accordance with the requires (sic) of the Town Plan and Council policies.”
Ms Bonwick provided such a study, dated March 2005. While there are suggestions there that the Landel project has been taken into account, and the Woolworths supermarket in particular, I am not persuaded that the combined impacts of the Landel/Woolworths development (which will actually be felt within months) and the Tanby Gardens project on the Yeppoon CBD have been worked out. The March 2005 report contains the following:
“This EIA examines the need and demand for 13,114m2 of retail showroom activities, including the defined retail showroom and remaining sales uses. It is likely that the ‘sales’ space may be occupied by non-retail activities but for the purposes of this EIA, it has been assumed to comprise some form of retail use.
…
In order to better service the supermarket needs of the expanding Yeppoon population, Woody’s is also seeking to develop a full-line supermarket in Yeppoon. In particular, the operator has identified a need to provide a more extensive array of fresh produce, which can not be accommodated within the existing 700m2 store on James Street.The existing store also presents difficulties in terms of access for trolley shopping, with no on-site parking, and reliance on on-street parking, which can be difficult for customers to access, particularly during peak holiday periods.
The proposed development is located at the entrance to the expanding Taranganba community and other growth areas within the southern Yeppoon urban corridor, and would represent a unique mix of convenience and comparison activities differentiated from the existing network of centres in Livingstone Shire. In particular, the mixed-use centre offers the opportunity for residents of the Taranganba and southern growth corridor to access a full-line supermarket.
The proposed development will provide benefits to the Capricorn Coast community and to Livingstone Shire and satisfy unmet demand for bulky goods and convenience retailing, including supermarket retailing in the southern Yeppoon urban area.
A 2006 opening timeframe has been assumed within this EIA for stage one of the development, which is intended to be the supermarket and specialty shops, with a first full year of operation in 2007. The remainder of the mixed use development will be staged progressively to meet tenant and market demand. It is the developer’s intention that the second stage of the centre will focus on components at the northern end of the development, including the boat wash, garden supply/display centre and service trade activities. Retail showroom facilities are likely to comprise the later stages of the development.
The crux of the EIA report was:
“
7.0 IMPACTS 7.1 IMPACT OF THE PROPOSED CENTRE
It is appropriate to examine the potential impacts of the proposed Taranganba centre on the existing and approved network of centres. Section 5.4 prepared potential turnovers for the proposed centre. It was estimated that the centre could achieve a total turnover of $20.6 million in 2007 and $48.7 million 2009. Urban Economics has examined the impact of the turnover of the centre for the first full year of operation and the additional $26.5 million in turnover projected by 2009 as a result of the expansion, as outlined in the following TABLE 7.1 and TABLE 7.2.TABLE 7.1: 2007
Centre 2007 Distribution
$M2007
Share of Impact
%% Impact Keppel Bay Plaza
Yeppoon CBD remainder
Rockhampton
Supermarket approval
Cedar
Other3.1
4.1
4.1
7.2
0.4
1.615
20
20
35
2
813
14
<1
19
5
N/aTOTAL 20.6 100.0 N/a Source: Urban Economics’ estimates, PCA Directory
‘Other’ includes small convenience centres, centres outside the Trade Area including facilities in Brisbane, and expenditure on line etc to which residents may otherwise direct their expenditure.
Facilities in Rockhampton are projected to experience a share of the impact of the first stage of the centre. The increased choice in supermarket operator offers an alternative shopping destination and may reduce the need to access major supermarket shopping in Rockhampton and thus reduce escape expenditure. This impact would be distributed amongst a wide number of retailers and centres and would not be significant.
Impact on the Yeppoon CBD includes impact on the turnover of the existing Woody’s supermarket and therefore overall impact on the CBD is not considered significant and will not undermine the role and function of the CBD as the higher order commercial centre. The operator of Woody’s has allowed for this impact and intends to focus the CBD supermarket as a convenience oriented supermarket for the top-up shop, whilst the proposed Tanby Road supermarket is intended to provide opportunities for Woody’s shoppers and catchment area residents to undertake a full-line supermarket shop.
Impacts on the CBD and Keppel Bay Plaza have been projected on the assumption that the approved Woolworths centre opens prior to the Tanby Road centre.
These impacts would be experienced within a growth environment, with increasing demand for retail facilities ameliorating the effects of these impacts. The impact of Stage 1 is not considered significant.
Whilst the opening of the first stage of the centre maybe two or three years premature, it will allow the supermarket operator to better meet the needs of customers and improve access and convenience for residents of southern Yeppoon, with continued population growth ameliorating impacts over time.
As described in Chapter 5.9, it is the developer’s intention to stage the opening of the retail showroom component and thus the full impact of the additional $26.5 million as a result of the expansion is not anticipated between 2007 and 2009, with the impact to be staggered over a longer time period. However, this EIA has assumed all the additional impact is experienced in 2009 for simplicity, thereby overstating the likely actual impacts of the expansion of the centre.
TABLE 7.2: 2009
Centre 2009 Distribution
$M2009
Share of Impact
%2009
% ImpactKeppel Bay Plaza
Yeppoon CBD remainder
Rockhampton
Supermarket approval
Cedar
Other1.3
2.1
11.9
1.3
0.4
9.35
8
47
5
2
356
8
<1
4
5
N/aTOTAL 26.5 100.0 N/a Source: Urban Economics’ estimates
Other facilities outside the local area and facilities in Rockhampton are projected to experience the dominant share of the impact, given the lack of showroom facilities in Yeppoon and the comparison shopping nature of these facilities. The distribution of this impact is not expected to be significant and the proposal will seek to retain a share of the expenditure that is currently escaping to Rockhampton and other centres.
The impact of the second stage of the centre will not be significant and is not expected to undermine the role of existing and approved centres in Livingstone Shire. This centre will be uniquely positioned within the network and present an alternative comparison and convenience shopping destination to travelling to Rockhampton.”
I accept Mr Duane’s evidence that, in the field, impacts under 5 per cent are regarded as negligible, up to 10 per cent are regarded as normal, from 10 to 15 per cent are high and, over that, very high. The impacts described, it appears, come on top of those caused by the new uses in the Landel project. In the assessment of need, impacts of that kind may be relevant. There is a useful passage in Arksmead v Council of the City of Gold Coast [1999] QPELR 332 at 330 (which Mr Gallagher submitted attracted their support of the Court of Appeal in Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347 at 359):
“… approaches to need have been summed up this way:
‘The matter of need may, in some circumstances, work in favour of a particular application … Usually however the fact that a particular proposal might give rise to commercial difficulties for competitors is not relevant unless it is accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community …’ (See Hughes v Emerald S.C. (1996) QPELR 110 at 112).
It must be kept in mind that it is community need that is to be investigated, not the commercial need of a developer, or the needs of those who oppose a development. Need must be distinguished from demand, which is not the same thing. There may be some demand for a certain proposal, but an objective view of it can show that there is no community need, in the planning sense, for it to be implemented.
The question of need usually will not involve a moral judgment about the desirability of some community activity. There may be a need for something even though a portion of the community disapproves of it. That is why, in one of many descriptions of need in the planning sense, words are chosen which do not reflect value judgments:‘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 not being adequately met, by the planning scheme in its present form.’ (See Williams McEwans Pty Ltd v Brisbane City Council (1981) 2 APA at 165).”
In this connection, reference was made to other cases such as Atkinson v Ipswich City Council [2006] QPELR 550, Comkey Pty Ltd v Caboolture Shire Council [2006] QPELR 399, Moistbrook Pty Ltd v Miriamvale Shire Council [2003] QPELR 229 and Lewiac Pty Ltd & ING Real Estate Joonadalup BV v Gold Coast City Council [2003] QPELR 385, at [117]. The requirement of “an existing need, not something that may be built up in time” should a proposal be approved and built (Die Galerie Pty Ltd [1972] SALCR 97 at 95), the important of population considerations, in the interest of avoiding “white elephant” developments (not to protect the developer, but, rather the public good) – see All-A-Wah Car Park v Noosa Shire Council [1989] QPELR 155 at 157[1] and that “mere increase in choice and net improvement in facilities that a development may produce is not sufficient on its own to establish need” (Cf Intrafield Pty Ltd v Redland Shire Council [2000] 337 at [7], Isgro v Gold Coast City Council [2003] QPELR 414 at [26].
[1] “I interpret the phrase ‘public need’ as involving a different concept from the word ‘demand’. The latter suggests a subjective desire for the development, and connotes ‘the idea that the physical well-being of a community, or some part of it, can be better and more conveniently serviced by providing the means for ensuring the provision of that facility, subject always to other considerations of a town planning kind’. See Skateway Pty Ltd v Brisbane City Council & Ors (1980) 1 APAD 417 at 424. To illustrate by example, most residents of a small country town, if asked, might voice a demand for the establishment in the town of a large department store. However an objective judgment might well conclude that there was no public need for a development which was doomed to fail, for example, because of lack of sufficient resident population and the presence in a nearby large city of similar established stores. It is difficult to imagine the existence of a public need without the presence of a recognisable demand, but the presence of the latter does not necessarily establish the existence of the former.
…
In my view a highly relevant question in determining need is whether the proposed development will be at least reasonably successful. The overall well-being of a community is not enhanced by the existence within it of a development which is unlikely to achieve that goal. A responsible planning authority should not permit the establishment of a white elephant. So if the population is insufficient to support the development, that would be a proper ground to refuse it.32
_________________
32At 158D”
In this appeal, need has not been shown. Especially is that so in respect of the proposed supermarket component. I would not accept that the way in which Tanby Gardens has “stage”-managed its proposal, by relying on a somewhat stronger case of need for the bulky retail facilities component, which would not be satisfied for a considerable number of years into the future, if ever, enhances the “need” for the supermarket or other components of Stage 1. The need for the bulky goods retail facilities is a theoretical one, rather than one shown to exist in practice. Granting the approval sought is highly likely to dissuade any other developer from advancing a proposal to establish such facilities. The likelihood is that the review of the Shire planning arrangements required by s 2.2.1 of the IPA within each eight years of original adoption or last review would be undertaken in ample time to review the site’s suitability for the use well in advance of the time when Tanby Gardens would wish to embark on serious planning.
The Livingstone Shire Planning Scheme 2005 came into force on 17 October 2005, having gone on public display from 6 March 2004. Tanby Gardens’ Development Application was lodged in the interim and under s 4.1.52(2)(a) the court “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 the court considers appropriate”. The applicable planning scheme was the Livingstone Shire Planning Scheme 1991 and s 6.1.30(3)(a) of the IPA requires the application to be decided under s 4.4(5) and (5A) of the Local Government (Planning and Environment) Act 1990, the latter of which mandates that a development application be refused if it “conflicts with any relevant strategic plan … and (b) there are not sufficient planning grounds to justify approving the application despite the conflict.”
The Council and the co-respondents allege conflict with the 1991 Strategic Plan, in particular with the assertedly irrelevant urban designation – part of the site may carry rural designation. Urban Objective 1.3.5.2 is “to provide for the growth of retail, commercial and other areas” with implementation to be on the following basis:
“A.The Planning Study of the Strategic Plan analyses demand for various urban land uses.
(b)Council will not support any additional Central Business … zoning in the foreseeable future, other than in proximity of the existing commercial centres of Yeppoon and Emu Park.”
The Planning Study recognised shopping centres at Yeppoon, Rockhampton/Yeppoon Road and Cedar Park. It is reasonable to say that the Planning Study pointed to the central area of Yeppoon for commercial activities. (Emu Park was given similar recognition). The Strategic Plan underlines this in 1.3.11 (see [26]):
Tanby Gardens’ planner, Mr Priddle, resisted the notion of conflict with the foregoing Strategic Plan provisions. There is a double aspect: firstly, as he put it at p 159, the absence in a Strategic Plan “or the current 2005 Planning Scheme of any indication of this site being suitable or being contemplated for retail development of the nature that’s currently being proposed”, the second aspect being that both schemes “set up a retail hierarchy which promotes predominance of the CBD in terms of locating retail uses and that this application offends that”. He placed reliance on documentation underlying each of the planning schemes. As to the 1991 scheme study, he said (p 163) that there were at that time three approved centres at that particular location:
“That planning study implied that at that stage there was no further need for retail development within the Shire … it’s not surprising that provisions to accommodate a centre of the nature that’s being proposed weren’t contemplated and included within the scheme.”
He referred to a scoping study preceding the 2005 scheme and his interpretation of the retail part of it that “the retail demand was in balance at that stage … again, it’s not surprising that the provision for a larger centre of this nature wasn’t contemplated.” Some lack of foresight was suggested to have been confirmed by the study commissioned by the Council from Mr Haratsis’ firm, MacroPlan Australia which has been adopted by the Council, as Mr Priddle said (163): “they indicate that to their mind by 2011 there’s a requirement for up to 13,000 m2 of bulky goods retailing. And that’s over and above 10,000 m2 that have been allocated to the O’Brien land … up to recently a demand for that hasn’t been identified.” He noted a subjective comment by the MacroPlan author that O’Brien did not represent “an appropriate site for a homemaker type centre which … you would equate to the bulky goods retailing component of this centre to.” He summarised this aspect on the following page, after noting some details (including the Council’s support) for the Landel centre, which sought (although for an equivalent sized centre it did not strictly need) a change of use of some Residential B land to enlarge the core of its site, which was already “local business”, giving as-of-right uses. He said that, in contexts like Landel’s and the present development, “you have quandary and if there’s an established need for this proposal a literal reading in the planning scheme suggests that it couldn't be located anywhere. So a degree of flexibility has to be accommodated in all planning schemes, to accommodate applications where there’s a community need and a public benefit.” It was significant to him that the subject proposal could not locate in the CBD because of some of the uses.
In this regard, Mr Priddle had in mind provisions of the 2005 scheme Division 6,
at p 3-74:
“3.11 Yeppoon Central Zone Code
(1) Purpose
(a)The purpose of the Yeppoon Central Zone Code is the achievement of the overall outcomes sought for the Yeppoon Central Zone.
(b)The overall outcomes sought for the Yeppoon Central Zone are:
(i)Development for retail premises64, in the Location nominated in column 1 of the table below that fulfils the specific centre function identified in column 2, is not to exceed the floorspace index nominated in column 3 of the table:
Column 1
LocationColumn 2 Centre
Function65
Column 3
Maximum Gross Floorspace (m2)
[see Note below]Yeppoon Central66
District
______________
Local25,000m2
_____________________________
5,000m2NOTE:
To remove any doubt, reference in column 3 is made to the sum of all development for retail premises in Yeppoon Central, and not to each individual development comprised of retail premises in Yeppoon Central.
________________________
64 Refer to the schedule 1, division 1 (3) Commercial Purposes to determine which defined purposes comprise the descriptive term ‘retail premises’.
65 Refer to schedule 1, division 2 for a description of centre function.
66 Yeppoon Central comprises the extent of the Yeppoon Structure Plan Area shown on PSM 3A.”
and Division 7 at 3-102 to 3-104:
“3.13 Business Zone Code
(1)Purpose
(a)The purpose of the Business Zone Code is the achievement of the overall outcomes sought for the Business Zone.
(b)The overall outcomes sought for the Business Zone are:
(i)Development for commercial purposes79, in an Area nominated in column 1 of the table below that fulfils the specific centre function identified in column 2, is not to exceed the floorspace index nominated in column 3 of the table:
Table 8C – Centres Hierarchy
Column 1
Area
[see Note below]Column 2 Centre
Function80
Column 3
Maximum Gross Floorspace81 (m2)
[see Note below]Area 1 Local 10,000m2 Area 2 Local 10,000m2 Area 3 Local
Convenience500m2 NOTE:
The Areas referred to in column 1 of the above table are defined as follows:
• Area 1 – the localities of Yeppoon82, Pacific Heights, Barlows Hill, Meikleville Hill, Cooee Bay, Taranganba, Lammermoor, Taroomball, Mulambin, Causeway Lake.
• Area 2 – the localities of Emu Park, Kinka Beach, Zilzie.
To remove any doubt, the Area 1 and Area 2, reference in column 3 is made to the sum of all development for commercial purposes in the respective Areas, and not to each individual premises for commercial purposes in those Areas.
• Area 3 – the villages of Marlborough, The Caves, Keppel Sands, Stanage, Ogmore, Byfield.
To remove any doubt, for Area 3, reference in column 3 is made to the sum of all development for commercial purposes in each individual village, and not to each individual premises for commercial purposes in those villages.(ii)Development for district83 level functions does not occur in the Areas identified in column 1 of Table 8C.
(iii)Development of business centres is characterised by:
(A) building layout and form is suitable to accommodate the range of consistent uses, and
(B) the provision of infrastructure services commensurate with the type and scale of development, and
(C) premises that are designed, constructed and operated to be sympathetic to the surrounding natural and built environment by:
-integrating existing mature vegetation within landscape design to mitigate adverse visual affects of new buildings on streetscape and the surrounding environment; and
-contributing to the retention or attainment of a desirable streetscape and character; and
(D) buildings with a high standards of finish contributing to attractive and safe urban spaces;
(iv)Buildings and structures are not higher than 12 metres;
(2)Elements
(a)Land use and development
(i)Consistent uses
Specific outcomes O1(a) Only uses consistent with the overall outcomes for, and preferred for development within the Business zone are established in the zone.
(b)The following uses and use classes are consistent with, and preferred within the Business zone:
(iii)all Commercial Purposes other than:
- Convenience restaurant,
- Garden centre,
- Hotel,
- Market,
- Produce store,
- Retail warehouse,
- Sales or hire premises.
O2 Provided the following uses are developed:
»to be compatible with surrounding Commercial Purposes by being of similar scale, intensity and character, and
»to support preferred uses, and
»to not adversely affect the amenity of the locality; or
»to provide recreational or community facilities that are more appropriately located in the Business zone;
they are consistent within the Business zone:
(a) Accommodation building
(b) Caretaker’s residence,
(c) Local utility,
(d) Telecommunications facilities (medium impact).
(ii)Inconsistent uses
Specific outcomes O3 Uses other than:
»preferred uses nominated in O1, or
»consistent uses developed to comply with the provisions set out in O2;
Do not establish in the Business zone, do not comply with the overall outcomes sought for the Business zone and conflict with this code.
______________________________
79 Refer to the schedule 1, division 1 (3) Commercial Purposes to determine which defined purposes comprise the descriptive term ‘commercial purposes’.
80 Refer to schedule 1, division 2 for a description of centre functions.
81 The maximum gross floorspace nominated in column 3 excludes approved development on land that is not zoned Business on the Commencement day.”
82 Yeppoon comprises the locality of Yeppoon excluding Yeppoon Central – refer to Table 7C.
83 Refer to schedule 1, division 2 for a description of centre functions.”
A particular feature of the alleged conflict with the hierarchy arrangements, which I think can be detected in both planning schemes (although very embryonic in the 1991 one) is the sheer size of the proposal, which challenges and may even outstrip the CBD (not so if the Landel centre, which has doubled in size since the proposal stood at 6,550m2 of retail shop space when the appeal in JFP Australia Pty Ltd v Livingstone Shire Council [2006] QPELR 359 was determined) is added in. The Council’s and co-respondents’ economic and planning experts understandably pointed to the distortion of commercial arrangements in the Shire by the emergence of what some of them saw as a rival town centre. Tanby Gardens points out that there is no prospect of the proposal becoming the administrative hub provided by Yeppoon Central; nor of there being uses such as professional offices. I agree that the judgment here should not focus on floor area alone, but should consider function. Bulky good retail is a use greedy for space without a corresponding incidence of activity by people and traffic comparable with that associated with successful supermarkets and specialty stores. The notion of counting up square metres should not be rejected, however, where the exceedence of what planning arrangements contemplate for Yeppoon, indeed for the Shire as a whole, is gross. The better view is that there is conflict.
Mr Priddle concedes conflict with the 2005 Planning Scheme provision limiting non-residential development in the applicable Residential (R1) Zone to “purposes of a local business/community nature which support the enjoyment of residential areas by residents but do not detract from the character and amenity of localities in which they are established” - noting, too, that nominally (and in accordance with Specific Outcome 02 of Council’s Residential Zone Code), any retail development in the zone is to be limited to a maximum of 100 m2. He conceded “that this current proposal offends the realistic expectations of how this particular site should be developed.” (T159). The following were suggested by him as constituting sufficient planning grounds to justify approval, notwithstanding the conflict:
“▪the demonstrated planning and economic need for the development;
▪the overall community benefits that will result from the establishment of the proposal (including employment opportunities, reduced travel time to existing similar centres in Rockhampton, greater choice and range of local facilities, etc);
▪the convenient and highly accessible location of the site;
▪the ability to develop the site in a manner which will not result in unacceptable impacts on the amenity of the surrounding area;
▪the ability to adequately service the proposal with all necessary public infrastructure services;
▪the absence of any significant impacts on the environmental values of the site; and
▪the ability to adequately service the proposal from a traffic engineering perspective.”
The last five dot points are neutral, it seems to me, assuming them to have been established, and not the positive countervailing considerations contending with areas of established conflict which the court would usually require. The first two of them have not been established on the evidence, the traffic engineers’ evidence tending to deny the convenience and accessibility of the site. Need has not been demonstrated, nor overall community benefits, except for the highly uncertain prospect of facilities for bulky goods retailing. There are community disbenefits flowing from the proposal on the evidence, particularly the gross oversupply of space devoted to supermarket use, which, for years, as Mr Duane demonstrated (para 2.11 of his report, Exhibit 19) will hugely exceed the State average for supermarket floorspace provision. Further, the Yeppoon CBD would be greatly threatened by the development of the proposal, with its large provision for specialties, especially coming, as it does, on top of the Landel centre.
Mr Hinson, for Tanby Gardens, submitted that all seven dot points represented planning grounds, noting what McLauchlan DCJ said in Kentbrock Pty Ltd v Gold Coast City Council [2003] QPELR 587 at 592:
“[31] There is no definition of the expression ‘planning grounds’, but some assistance with respect to its meaning can be gathered from the definition of ‘town planning’ which is defined to include all matters necessary or expedient for securing the improvement, orderly development, healthfulness, amenity, embellishment, convenience, conservation or commercial advancement of an area or part of an area.”
And what the Court of Appeal said in Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271 at [37]:
“For reasons already expressed, I agree with Mr Gore QC that item No 6 ought not to have been taken into consideration, nor, in item No 8, the benefit that existing tenants already derived from the operations of Makro and the Warehouse. But the judge was entitled to take notice of the lack of adverse impacts on the amenity of the area, provided the judge was satisfied that that was unlikely to change in the foreseeable future, and also to take into account the benefits of choice and a greater range of shopping venues and competition. Those are relevant planning matters.”
On the basis of there being some conflict between the second respondent’s development proposal and a Strategic Land Use Plan or Development Control Plan, the primary Judge had identified the following as possible planning grounds:
“1.the site zoning;
2.the proposition that zoning will always attract substantial weight;
3.the improbability of the site being used for some lower order of shopping premises, such as a neighbourhood shop;
4.the support given by the 2004 DPS, as amended;
5.the possibility that there was an error in DCP 6;
6.established need;
7.the absence of adverse impacts, economic or otherwise; and
8.the benefits of a choice and a greater range, including the benefits existing tenants at the Morayfield Supa Centre already derived.”
One might also note from Leda Holdings that:
“[36] …Regarding item No 5, the learned judge said that neither the SLUP nor its supporting study mentioned the site, which was the largest block of land zoned Commercial industry in the study area, and nor did either of those mention the likely development that might occur on it as a consequence of its existing zoning. For that reason, the judge thought it impossible to ignore the fact that in designating the land for residential purposes the DCP might have been drafted in error; those observations were made in support of the learned judge’s finding that there was no clear conflict between the DCP and the application. The judge did not take the possibility of error in the DCP into account as a planning matter positively favouring the application.”
The “expectations” point was said to lose force from a lack of adverse submissions from individual residents. There was no evidence enabling the court to estimate how many affected individual residents there might have been when the proposal was publicly notified. Mr Hinson’s submission in relation to retail hierarchy, in either scheme, was that “approval of the proposal would not offend the key principle that the CBD remains the predominant centre”. He noted that both planning schemes contemplated what he called “major shopping centres” outside the Yeppoon CBD. This aspect in my opinion comes down to a matter of scale of a proposal. Here, the proposal’s size counts against it.
Apropos need, Mr Hinson relied on Cut Price Stores v Caboolture Shire Council [1984] QPLR 126 at 131 at Rooster Land Pty Ltd v Brisbane City Council (1986) 23 APAD 58 at 60 for the proposition that there is no requirement of pressing need, critical need or pressing urgency, that it was common ground that “the supply of retail floor space will never exactly march in step with the demand for such floor space. It will either lag behind the demand, or be provided in advance.”
In reliance on Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 687, for the proposition that if there were to be adverse economic impacts from the proposal, notably on the CBD (which would diminish with population growth and expenditure increases), that would be of concern only “if the resultant community detriment will not be made good by the proposed development itself.” It was said that 14,420m2 out of 23,185m2 of the proposal was for showrooms and service industries not appropriate in the town centre.
The only scope for application of the “Coty” principle here, as enacted in s 4.1.52(2)(a) is in respect of the 2005 Planning Scheme, upon which considerable weight ought to be placed in the circumstances. It would be taking Coty too far, as Mr Hinson submitted, to refuse the present application on the basis of putative planning arrangements not yet formulated in respect of proposals under consideration by the Council but not yet adopted by it for its own depot site and the Queensland Rail site. See Mt Marrow Blue Metal Quarries v Moreton Shire Council [1996] 1 Qd R 347, 356. Here, proceeding in that way would involve the court in presuming to select a “better site” than the appellant’s for its proposed use(s). That exercise is eschewed by the court.
In the 2005 scheme an early reference to the “centres hierarchy” is found in Division 3 – Shire Outline which “provides an explanation of the strategic framework supporting the planning measures … and is declared to be extrinsic material under the Statutory Instruments Act 1992 s 15”. PSM1 is the Shire Outline Map – “a spatial representation of the achievement of the Desired Environmental Outcomes”. 1.14 nominates the basic land use pattern (urban, park residential, rural and areas of significant constraints affecting development) and then recognises:
“(b) Other nominations
Nomination Explanation Centres Hierarchy • The hub of retailing, business and administrative/community services for the Shire focussed on Yeppoon.
• Other centres at Emu Park, Keppel Sands, Cawarral, The Caves, Marlborough, Ogmore, Stanage Bay, Byfield providing local service and community functions.
”
In respect of that nomination, the map identifies “Yeppoon – Focus for Shire” and “other centres providing local services”. Mr Ure for the Council established from other maps that the site is not, for relevant purposes, in Yeppoon, but in Taroomball.
It probably tends to assist the appellant (and therefore I am willing to note it) that in the 2007 MacroPlan Study, which the Council has approved, to the extent of resolving to amend the Planning Scheme to take account of it, the following is found:
“• Major road exposure
•Gateway type location (ie to capture in board and outboard traffic)
•The ability to accommodate ‘critical mass’
•The ability to build on ‘existing’ premises.
There are a limited number of sites appropriate sites within the Shire that could accommodate bulky goods retailing. Based on the above criteria, MacroPlan has identified the Depot site (area broadly bounded by Tanby Road, Cordingley Street and Shaw Avenue – excluding reserves for cemetery) as a preferred location for bulky goods.
MacroPlan considers that there is potential for an additional 22,000sqm of floorspace of the period to 2021. This level of bulky goods floorspace would need to be carefully managed over this timeframe to ensure the sustainability of the floorspace being developed. The sustainability of the amount of bulky goods floorspace, and the timing of development, should form part of the regular review of the retail strategy.
Beyond 2021, critical mass of bulky goods and the attraction of the centre from a wider regional catchment, could increase floorspace demand potentially up to 30,000sqm by 2026. The demand for bulky goods retailing is supported by a significant market gap in large format shopping such as ‘homemaker centres’ in Livingstone Shire.
Future planning and development of a dedicated bulky good precinct should emphasise the ability to foster interaction between residential and industrial uses and transport nodes.”
(I do not treat the above as a presently relevant endorsement of the depot site or rejection of Tanby Gardens’ site.)
Absence of Adverse Impacts
Leda Holdings would appear to require revision of the observation of mine in Jensen & Bowers Pty Ltd v Redland Shire Council [2004] QPELR 86, 95 (on which Mr Gallagher relied) that “absence of negative impact, if it ever was so regarded, can no longer be seen as a planning ground sufficient to justify approval of an application conflicting with a Strategic Plan or DCP.” There must be some risk (which I would consider regrettable) that the emergence over time of a collection of judicial statements to the effect that some factor or other was not a planning ground might, in some combination, be relied on to defeat a genuinely meritorious proposal.
I agree with Mr Gallagher’s written submissions in the following respects:
“The facts of the present case are quite different from those before the Court in Cairns Real Estate Pty Ltd v Council of the City of Cairns (1996) QPELR 319 and Westfield v Gold Coast City Council [2002] QPELR 542 where the Court approved the proposed development despite a suggestion of prematurity. In Cairns, the evidence established that there was a ‘strong case’ for a greater level of shopping to serve the community and that there was a ‘distinct benefit’ to the community from the proposed development. It was also accepted that the proposed site was an appropriate location for the proposed development. In Westfield, the planning scheme specifically identified the subject site as the location for a shopping centre. There was also evidence of a gap in the relevant retail facilities and that there was a strong need for the facility which was not being met.
The present case is on par with that which confronted Skoien SJDC in Jadmont Pty Ltd v Council of the Shire of Miriam Vale & Anor [1998] QPELR 351. In refusing a development application as being premature, his Honour warned against approving a development which, because of a lack of sufficient population to support it, would bring about unhealthy competition.”
The burden of the economic evidence is that unhealthy competition does threaten here. Mr Leyshon put it in his report that construction of the proposal with 8,558m2 of supermarket and specialty floor space and 11,650m2 of bulky goods retailing, together with Landel “will have a major detrimental impact on the Yeppoon CBD”. Another scenario he envisaged was that the proposed supermarket would trade so poorly, in the face of competition from Woolworths and Coles, that the specialty stores attached to it would not be viable. As Mr Ure submitted, either impact would be unacceptable.
As suggested above, it is virtually certain that the second co-respondent’s shopping centre would not go ahead if Tanby Gardens’ development proceeds; the mere granting of approval would be likely to dissuade Keppel Bay Holdings from constructing the useful facilities contemplated to service its residential subdivision. More generally, there is a troubling concern that the approval the appellant seeks, which will not be implemented on the ground for a long time, if ever, would be there as a threat, discouraging applications in respect of other sites where similar developments might otherwise proceed and enhance facilities for the community.
The assertion that there are planning grounds sufficiently weighty to justify approval of the appellant’s proposal despite the conflict identified is not persuasive in this appeal; indeed, as things stand, even if there were no conflict, the proposal, if implemented, bodes to being community disbenefits. The appeal will be dismissed.
0
1
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