Tower 720 Pty Limited v Hervey Bay City Council
[2002] QPEC 53
•15 August 2002
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Tower 720 Pty Limited v Hervey Bay City Council & Anor [2002] QPEC 053 PARTIES:
TOWER 720 PTY LIMITED (ACN 003 122 478)
Appellant
and
HERVEY BAY CITY COUNCIL
Respondent
and
C & B GROUP ON BEHALF OF KEENGULF PTY LTD
Co-RespondentFILE NO/S: D5179 of 2001 DIVISION: Planning & Environment PROCEEDING: Planning & Environment Appeal ORIGINATING COURT: Planning & Environment Court
DELIVERED ON: 15 August 2002 DELIVERED AT: Southport HEARING DATE: 6, 7 & 8 February 2002 JUDGE: Alan Wilson SC DCJ ORDER: Appeal dismissed CATCHWORDS: PLANNING AND ENVIRONMENT – PRELIMINARY APPROVAL – grant of preliminary approval for retail showrooms - whether preliminary approval, with conditions requiring proof at a later time that an economic demand exists, appropriate – whether need for development existed – certainty of conditions – finality principle
Local Government ( Planning and Environment) Act 1990, ss 4.3, 4.4
Integrated Planning Act 1997, s 3.1.5Cases considered:
Cut Price Store Retailers Ltd v Caboolture Shire Council (1984) QPLR 126
Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35
Grosser v Council of the City of Gold Coast (2001) QCA 423
Intrafield Pty Ltd v Redland Shire Council (2001) QCA 116
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Landel Pty Ltd v Redland Shire Council (2000) QPELR 60
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Mitchell Ogilvie (Mitchell Ogilvie Menswear) v Brisbane City Council (2000) QPELR 414
Mustercliffe Pty Ltd v BCC (1991) QPLR 111
Palmwoods Residents & Ratepayers Association Inc v Maroochy Shire Council (1997) QPELR 331 at 335C Intrafield Pty Ltd v Redland Shire Council (2001) QPELR 81
R v BCC ex parte Read [1986] 2 Qd R 22
Scott v Wollongong City Council (1992) 75 LGRA 112
SEQ Properties Pty Ltd v Maroochy Shire Council (1999) QPELR 36
Sheezel v Noosa Shire Council (1986) QL 207
Shell v Gold Coast City Council (1997) QPELR 27
Silverton Pty Ltd v BCC (1983) 50 LGRA 429
Skateway Pty Ltd v BCC (1980) 7 QL 296
Vynotas Pty Ltd v BCC (2001) QPELR 14Warradale Holdings Pty Ltd v Caloundra City Council (1998) QPELR 503
Weightman v Gold Coast City Council (2002) QCA 234
COUNSEL: Mr S Ure for the appellant
Mr M Connor (solicitor) for the respondent
Mr M D Hinson SC for the co-respondentSOLICITORS: Shand Taylor for the appellant
Connor O’Meara for the respondent
Freehills for the co-respondent
This is a submitter appeal against the decision of Hervey Bay City Council to grant the co-respondent a preliminary approval, subject to conditions, for a material change of use permitting retail showrooms on land adjoining Bay Central Shopping Centre in Hervey Bay. The principal issues at trial were the need for further retail showrooms in Hervey Bay, and whether a preliminary approval was appropriate. Under s 4.1.50 of the Integrated Planning Act 1997 (“IPA”) the co-respondent, the applicant for the development, bore the onus of proof.
The Land
The relevant parcel contains 2.55 ha and is part of Lot 9 on RP 883926, which has a total area of 11.17 ha. It is situated at 6 Central Avenue, Pialba, on the corner of Central Avenue and Bay Drive. Under the Council’s transitional planning scheme it is placed in the rural zone, but within a sub-regional centre designated on the Strategic Plan map. The balance of Lot 9 is in the central commercial zone and contains a development called Bay Central, a sub-regional shopping centre which is the largest in Hervey Bay, with 12,680m2 of lettable area and a Target discount department store as its major tenant. The site is reasonably flat, unoccupied and without buildings, and devoid of any significant vegetation. It is accessible from Central Avenue and Bay Drive and from Boat Harbour Drive through Bay Central.
Boat Harbour Drive is a major four-lane thoroughfare and land around it in the vicinity of Bay Central has undergone significant commercial development. It runs approximately east-west and on the northern side, almost opposite Bay Central, are developments catering for a range of commercial activities including retail showrooms, fast food outlets, commercial premises and other shops. To the west of the site, across Central Avenue, is land currently vacant but zoned for commercial use. Land to the south-west contains a relocatable home park and, to the immediate south, the land is currently vacant but part of a large undeveloped portion of a residential estate. Further to the east of Bay Central the land has, again, been developed for commercial uses.
An inspection of the site and its environs on the first day of trial showed the area around Boat Harbour Drive is an active commercial district containing retail outlets of various types and sizes interspersed with cleared parcels of vacant land.
The Development Application
The co-respondent’s application was for a stand-alone retail showroom development with an approximate gross floor area of 9,000m2, and associated car parking and driveway areas. It indicated four possible tenancies, three of 1,300m2, and a fourth of 5,200m2; and, an area for future retail shops, which would link the development with the existing Bay Central Shopping Centre and create one integrated shopping complex, on one title.
The application was lodged with Council on 28 September 2000, accompanied by an “Economic Impact Assessment” prepared by Thomas Consultants Pty Ltd which asserted that the Hervey Bay area presently contained in the order of 15,000m2 of retail showroom floor space, an estimated shortfall of approximately 10,000m2 of space in 2001. On 24 October 2000 Council sought information about proposed tenants, and a detailed survey of all existing showroom buildings in the trade area with particulars of tenancies and space, and vacancies, and which identified the amount of retail floor space that could be “associated within approval development sites”. In a further report from Thomas Consultants 20 February 2001, under the hand of Mr Veitch, Council was informed that the proposed development was “somewhat speculative in nature” and a proposed tenancy mix was not available, and that there was in fact 30,000m2 of retail showroom floor space in Hervey Bay. Nevertheless, the report asserted there was an immediate opportunity for retail outlets for carpet and floor coverings, and whitegoods and furniture and for large space retailers of manchester and fabrics, and recreational and sporting goods.
The Hervey Bay City Council Planning Scheme of 1996 is a “transitional planning scheme” within the meaning of that term in IPA. The application is for a development which, before the commencement of IPA, required an application to be made under s 4.3(1) of the now repealed Local Government (Planning & Environment) Act 1990 (“LGPEA”) for rezoning, because retail showrooms are prohibited in the rural zone. The proposal therefore required public notice, and advertising. It attracted a number of submissions to Council but none from persons who owned vacant floor space in premises suitable for retail showrooms, or vacant land which might be developed.[1]
[1] Veitch, Transcript p 36, ll 56-58
The Council’s own planners prepared a report which concluded: [2]
[2] Exhibit 1, p 187
“…need for the proposal at the present time has not been demonstrated. There is a more than adequate supply of vacant appropriately zoned land in the general vicinity of the subject land and existing vacant Retail showroom floor space to meet the projected demand for additional Retail Showroom floor space proposed by this application. This, together with the fact that the proposed development is speculative in nature must result in the conclusion that a Development Permit for the proposed use should not be issued at this point in time.
The subject land is however suitable for the proposed use and if not for the fact that need for the proposed development does not currently exist, the application would be able to be supported. As need has not been demonstrated, under the repealed Local Government (Planning & Environment) Act 1990, the only recommendation which could have been made in the circumstances of this application would have been that of refusal. The Integrated Planning Act 1997 however provides council with the option of issuing a Preliminary Approval which approves the proposed development but does not authorise the development to occur. As need is the only impediment to supporting the proposal, it is considered that it would be both reasonable and appropriate to issue a Preliminary Approval in lieu of a Development Permit and condition the Preliminary Approval to restrict the commencement of a use until such time as need can be shown to exist or alternatively a tenant or tenants have been secured and existing suitably zoned land and premises are not suitable for needs of the prospective tenant or tenants.”
The course outlined in this report was taken up by Council at its meeting on 23 May 2001 and on that day it issued a Decision Notice granting Preliminary Approval, subject to 25 conditions[3], the most relevant being condition 14, which relates to need:
[3] Exhibit 1, pp 210-215
“Prior to lodging a development application seeking a Development Permit for the development approved by this Preliminary Approval the applicant shall admit to council:
(i) A report which demonstrates to council’s satisfaction that the projected five-year demand for additional Retail Showroom floor space less the available supply of Retail Showroom floor space equals or exceeds the floor space sought by the development application.
(ii) Documentation which demonstrates to council’s satisfaction that a tenant or tenants have been secured for no less than fifty (50) per cent of the floor space of the proposed Retail Showroom subject of the development application and a report that demonstrates to council’s satisfaction that alternative suitably zoned premises and land are unsuitable for the particular requirements of the prospective tenant or tenants.”
The subsequent course of the matter within Council involved a Negotiated Decision notice and an amendment to it which ultimately issued on 26 November 2001.
Appeal Issues
As advanced in the Notice of Appeal and Particulars[4] and in Exhibit 1A the issues arising are need, in the context of an asserted existing over-supply of vacant retail showroom floor space, and suitably zoned land in the vicinity; that alleged absence of need creating a conflict with the Strategic Plan and other relevant parts of the Council’s Planning Scheme; whether or not this was an appropriate case for Council to grant Preliminary Approval; and, the terms of condition 14 which, the appellant alleges, lack certainty and finality.
[4] Exhibit 1, Tabs 13 & 15
As to need, the appellant asserts there is no evidence of any need for more retail showroom floor space in Hervey Bay and that there is an existing adequate supply, or over-supply, of both showroom space and appropriately zoned vacant land. The Council remains of the view the co-respondent has not satisfied it that need exists. The co-respondent, despite the fact it applied for a Development Approval, is content with the Preliminary Approval granted[5] but argued that need, in the sense of community need, had been established, that need in the sense of economic demand is a factor of no particular significance and, even if there is an absence of economic demand, that did not warrant refusal of the application.
[5] Per its counsel Mr Hinson SC at T 35-36
The appellant’s attack upon the grant of Preliminary Approval contained two elements. Firstly it argued that, in light of the Council’s conclusion that no need existed, a Preliminary Approval was inappropriate and the application should have been rejected. Second, it contended that notwithstanding IPA s 3.1.6 (which provides that so long as the application for Preliminary Approval has been subject to public consultation, completion of the final development which would otherwise have required a further impact assessment may be specified to require only code assessment) Council had, inappropriately, deferred the question of the analysis of need to a later time but simultaneously, and wrongly, deprived the public of any right to be involved in that assessment. Council took the view that by granting a Preliminary Approval subject to condition 14, it had dealt with the application in a responsible and appropriate fashion, providing certainty to the co-respondent but, also, protection to other owners of land who might be adversely affected in the event the development was allowed to start prematurely. The co-respondent accepted that, if it could not convince the Council that need existed, it should be content with what it had which, at least, left it able to pursue appropriate tenants in the marketplace. The appellant also asserted condition 14 is uncertain and offends the “finality principle”[6]; and, that the application was in conflict with the Planning Scheme and there were not sufficient planning grounds to transcend that conflict.
[6] Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Legislation
The Council’s transitional Planning Scheme[7] and IPA s 6.1.29 mean it, and this Court, must assess the application against the provisions of IPA s 6.1.29(3), inclusive of the matters set out in LGPEA s 4.4(3), which contains a requirement that the local government assess, to the extent relevant to the application:
“(b) The balance of zones in the Planning Scheme area as a whole or that part of the area within which the relevant land is situated and the need for the proposed Planning Scheme amendment.”
[7] IPA, ss 6.1.2 & 6.1.3
The application for development is to be decided in accordance with LGPEA ss 4.4(5) and 4.4(5A), the latter reading:
“4.4(5A) The local government must refuse to approve the application if-
(a) the application conflicts with any relevant strategic plan or development control plan; and
(b) there are not sufficient planning grounds to justify approving the application despite the conflict.”
The LGPEA gave rise to practical problems in that it only permitted approval, or refusal of a development application. IPA introduced an additional step, called a Preliminary Approval which approves assessable development, but does not authorise its commencement[8]. The Council had power to grant an approval of that kind, notwithstanding that what was applied for was a development permit: IPA s 3.5.11(3)(b). Further, so long as the application for which preliminary approval had been granted had, itself, been subject to public consultation, the later grant of a development permit for completion of the development sought which would, otherwise, have required a further impact assessment could be specified to require only code assessment[9], as happened here.
[8] IPA, s 3.1.5
[9] IPA, s 3.1.6
Planning Documents
This Council’s Planning Scheme was gazetted on 29 March 1996. It includes a Strategic Plan and two Development Control Plans, which comprise the transitional Planning Scheme under IPA. Clause 1.2.9 of the Planning Scheme announces this objective:
“To consolidate and encourage the growth of existing and proposed commercial centres within the framework of a hierarchy of commercial and business centres throughout the city.”
The Planning Scheme has a goal, expressed in these terms in clause 1.1.3:
“The Objectives, Criteria for Implementation and Preferred Dominant Land Uses have been determined in relation to the principal Planning Scheme goal being:
To provide for and promote the orderly social, economic and physical development of the City of Hervey Bay through a desirable and efficient growth pattern which recognises the existing and anticipated distribution of population, land uses, transport and service infrastructure and the need to achieve a balance between development and the conservation of the natural environment.
It is the purpose of the Planning Scheme to convert this aim into practical guidelines to be used in managing development within the city.”
Clause 1.2.9.1(iii)(b) requires that in considering applications for major commercial development like retail showrooms Council will have regard, amongst other things, to:
“(b) The community need for the proposed development, both existing and projected.”
Clause 2.3.1.1 provides:
“Before determining any application made pursuant to s 2.2.2 and without limiting the discretion of council, council shall take into consideration the following matters to the extent they are relevant to the application:
“…
(f) in respect of a rezoning application, whether there is a need and a demand for land to be included in the proposed zone in the locality and whether there is insufficient land so included in that locality to meet that demand.”
The Strategic Plan was gazetted with the Planning Scheme and shows the subject site is situated close to the middle of a “sub-regional commercial node” indicator[10] also called “commercial area – sub-regional”. The indicator is a large circle on the Strategic Plan incorporating some land immediately to the north of Boat Harbour Drive but, in the main, a much larger area to the south. As clause 1.2.9 of the Planning Scheme shows, it was the product of a Retail Strategy prepared for the purposes of the Planning Scheme. It sets two development objectives for land contained in this sub-regional commercial node:
[10] Exhibit 3, attachment 6
“To consolidate and encourage the growth of existing and proposed commercial centres within the framework of a hierarchy of commercial and business centres throughout the city.
To ensure functional and aesthetically pleasing commercial and business development.”
Under clause 1.2.9.2(i), the Strategic Plan is required to ensure that proposals for commercial development contribute to the consolidation of these “recognised commercial nodes”. The subject land is comfortably within the commercial area indicated by the circle.
The Planning Scheme also incorporates a Development Control Plan – 1 which shows the subject land as “uncommitted”,[11] but the same designation attaches to much of the land within the sub-regional commercial node including the existing Bay Central Shopping Centre development, and the extensive rezoning of land to the commercial industry zone to the north of Boat Harbour Drive.
[11] Exhibit 2, attachment 7
Need
As articulated by the various experts called by the parties, the question of need was principally considered, not by reference to community need in the traditional planning sense, but rather by having regard to the existence of a supply of vacant retail floor space, and vacant land able to be used for retail showrooms. This approach was summarised in a statement from the Council’s own planner, Mr Wallace, who said[12]:
“However, to date the assessment manager remains unpersuaded that there is currently a need for the proposal. No persuasive evidence can be provided that there currently exists a need for the proposal. Indeed a surplus of available retail floor space has been identified.”
[12] Exhibit 5, p 8
The issue attracted reports and oral evidence from Mr Coghlin, an economist, Mr McCracken, an urban economic geographer and retail analyst, and Messrs Veitch, Wallace and Ryter, town planners. Even Mr Veitch, called by the co-respondent, conceded “…there is an oversupply of general retail or commercial space…” in the Pialba area and only Mr Coghlin contended that, by reference to a number of matters including the location, configuration, and ownership of retail premises presently vacant, or undeveloped but suitably zoned land, the quantum of them did not indicate an oversupply but, rather, in what he called a “qualitative” assessment, an apparent need existed for large showrooms for such products as floor coverings, white goods, furniture, nursery items, home improvement products, and hardware[13]. Associated issues concerned the suitability, or otherwise, of various of these vacant premises or land for use or development as retail showrooms and their advantages or disadvantages when compared with the subject land, and some issues arising under the Planning Scheme concerning the availability of some of the parcels identified.
[13] Exhibit 4A, p 3; T p 75, ll 38-51
The appellant did not identify the areas of vacant floor space and land in its particulars but I was ultimately persuaded by the evidence of Mr McCracken and Mr Ryter that:
(a) about 4,046m2 of a commercial development on the north side of Boat Harbour Drive (Pialba Commercial Garden Centre) is vacant;
(b) another 1,720m2 is vacant in a new retail showroom complex which has been constructed on a site to the west of the subject land;
(c) in the general vicinity, there is some 13.2981 ha of presently vacant land of which 4.4874 ha is zoned commercial industry, 5.4178 ha central commercial, and 3.3929 ha particular development[14].
Much of the evidence was devoted to particular aspects of the parcels which go to make up this vacant land. Some of it is for sale, but much of it is not. The various parcels differ from the subject land in size, location, and suitability for development in the manner envisaged by the co-respondent. The evidence about them establishes, at most, an absence of demand for some of the parcels which lie outside the sub-regional centre designated on the Strategic Plan. Perhaps not surprisingly, the owners of these parcels did not make a submission to Council objecting to the proposed development although, in Mr McCracken’s opinion, they might be affected by it[15].
[14] Exhibit 7A
[15] Exhibit 8, p 28
In the land which is zoned Particular Development, “retail warehousing” is a permitted use, and the definition encompasses most of the usage which would be anticipated in a retail showroom[16]. Development of that land for that purpose would, with a site cover of 50 per cent, provide some 17,000m2 of retail showrooms. On the land presently zoned central commercial, retail showrooms are a consent use. Most of the available land is in various parcels around Main Street and some is already being used by retailers like Silly Sollys and Supa Cheap Autos.
[16] Exhibit 3, attachment 11
A large part of the land zoned commercial industry is in several agglomerations to the north of the subject site, and to the east of Beach Road, and a dispute arose whether an assessment of need would be relevant to a development application for retail showrooms as a “column 2” use there[17]. Under that column, the nominated uses are permitted, but subject to the imposition of conditions by Council. The appellant contended Council could not refuse an application for retail showrooms on this land but I do not think that is correct. S 2.2.5.6 of the Planning Scheme provides that, without limiting the Council’s discretion, in dealing with an application Council will take into consideration matters set out in s 2.3.3 which includes, under 2.3.3.1(d) the question whether the proposal would be in accord with, or conflict with the Strategic Plan. Under s 1.2.9.1(iii)(b) of the Strategic Plan Council is obliged, when examining proposals for such things as retail showrooms, to have regard to community need both existing and projected, and to require a town planning report addressing that criterion. Further, under s 2.3.3.1(g) the findings of any planning study or economic impact assessment submitted in connection with application are a relevant matter. Council also has power to regulate the size and scale of a column 2 use, e.g. under s 2.3.3.2(a), permitting the imposition of conditions requiring the development to conform to specified dimensions, or floor area. Hence what is permitted without consent, under column 2, is a use in accordance with the conditions Council imposes, and Council may insist upon variations from what is sought by the applicant: Silverton Pty Ltd v BCC (1983) 50 LGRA 429.
[17] Exhibit 6, p 86
The existence of other premises and vacant land which might be used for retail purposes like those for which the co-respondent aims is a relevant, but not determinative factor. S 4.4(3) of the LGPEA requires that it be assessed, in each case “to the extent relevant to the application”: Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35 at 46 per Fryberg J. As his Honour noted, this Court and its predecessors have always taken need into account as a factor of possible relevance in rezoning applications, and he quoted what Carter DCJ said so long ago as 1980 in Sheezel v Noosa Shire Council (1986) QL 207 at 208:
“This Court has over the years sought to define some of the considerations relevant to an application for rezoning. These might conveniently be summarised:
1. The need in a particular area for the particular uses or services to which it is proposed to put the site;
2. The availability or otherwise in the area of other land of the same zoning as that which is sought in respect of the subject site, and which might be put to the proposed use;
3. The proximity of the subject site to the zoning sought in respect of it.”
That list is not, however, exhaustive, and as explained in Ecovale (supra, p 46 ll 39-48), need has many aspects. The question of the weight to be ascribed to it may also vary widely, as evidenced by those cases in which it has been held that the absence of need is not fatal to an application: Palmwoods Residents & Ratepayers Association Inc v Maroochy Shire Council (1997) QPELR 331 at 335C, and Intrafield Pty Ltd v Redland Shire Council (2001) QPELR 81 at 82.
When the issue is considered, some weight is to be attached to the Council’s decision: R v BCC ex parte Read [1986] 2 Qd R 22 at 27-28, 41 and 53. Here, that decision includes a conclusion that immediate need does not exist but a grant of preliminary approval is, nevertheless, warranted on planning grounds. For reasons set out later, some novelty attaches to the course Council took. The parties’ submissions did not address the question whether the particular form of approval, with conditions, necessitates some different approach to the issue of need. There is no compelling reason to think so and, as the appellant’s case was conducted, need was addressed as a critical issue in itself.
The restraint or prevention of economic competition is not part of the orderly and proper planning which the Planning Scheme seeks to achieve: Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 681 and 687. The appellant specifically abandoned the claim, raised in its notice of appeal[18], that the proposed development would have an adverse affect upon the extent and adequacy of retail facilities available to the local community. It is also germane that the appellant does not dispute the Council’s conclusion that the subject land is suitable for the proposed development. Nor is there any challenge to Council’s determination that the proposal satisfies all relevant LGPEA s 4.4(3) considerations, and meets required development standards[19].
[18] Exhibit 1, p 252
[19] Exhibit 1, pp 173-4, 169
Need does not mean pressing or critical need, and in this jurisdiction has been referred to as “something far less than necessity”: Vynotas Pty Ltd v BCC (2001) QPELR 14 at 31 per Robin QC, DCJ. As Carter DCJ said in Skateway Pty Ltd v BCC (1980) 7 QL 296 at 299-300, in a frequently cited judgment[20]:
“In a rezoning application the need contended for is first a community need, not in the sense that there is an element of urgent community necessity for a facility or for land so zoned on which the facility can be provided. Rather it connotes the idea that the physical wellbeing of a community or some part of it can be better and more conveniently served by providing the means for ensuring the provision of that facility, subject always to other considerations of a town planning kind including the consideration that the wellbeing of the community also depends significantly on an acceptable residential amenity.”
[20] Cut Price Store Retailers Ltd v Caboolture Shire Council (1984) QPLR 126 at 131;
I am satisfied that there is a community need, in this sense, for the proposed development. The appellant has not identified any disbenefit, or disadvantage to the community. Mr Ryter, the appellant’s town planner argues[21] that approval would create an “unacceptable impact upon the balance of zones” but the proposition is not made out. It also fails to give sufficient weight to clause 1.2.9.1(iii) of the Strategic Plan, which also requires Council to consider the present and future community need for the development. The size of the parcel involved in this application is too small, in the context of the large areas the appellant identified to create any disadvantage to the community. All of the expert witnesses agreed the present zoning of this land is simply an historical one and it will, ultimately, come to be used for commercial purposes. The appellant’s own submissions did not dispute this claim. The conclusions reached by Mr Veitch[22] logically express an obvious community benefit in the ultimate provision of further variety, choice and convenience in retail facilities available in this part of Hervey Bay.
[21] Exhibit 7, p 9, para 7.1.3
[22] Exhibit 3, para 4.4.11
Nor has the appellant established the approval might ultimately have an economic impact to the extent that the community suffers a detriment. Reliance was placed upon the decision of the Court of Appeal in Intrafield Pty Ltd v Redland Shire Council (2001) QCA 116 but that was a case in which the trial Judge, McLaughlin QC, DCJ held, and the Court of Appeal accepted, that need was the predominant issue, in the sense that it was the matter to which most weight would be given. The case involved a service station and the question of need was determined in the context of existing like facilities, and whether they were adequate to serve the needs of the resident and motoring population. The adequacy of existing retail outlets and the products and services they supply to the residents of Hervey Bay has never been an issue in this case. Rather, the appellant has focused, simply, upon the existence of other premises or land which it says are suitable. That is quite a different question.
Both the appellant and the co-respondent relied, with respect to need, upon the decision of the Court of Appeal in Ecovale Pty Ltd v Gold Coast City Council (supra), a case involving a rezoning from the residential multi-unit zone to the special facility (neighbourhood tavern/hotel) zone, upheld at first instance by Quirk DCJ. Mr Ure, for the appellant here, relied upon a passage in the judgment of Pincus JA at 35 for the proposition that, in the case of a change of use from one category to another (i.e. in effect, a rezoning) the question of need would be examined primarily by reference to the requirement for additional land for that general purpose. Mr Hinson SC, for the co-respondent, submitted that the decision here involves a material change of use for, rather, a very specific purpose (retail showrooms),[23] akin to the specific change in Ecovale. I am satisfied this approval has the same degree of specificity, and the judgments of Pincus and Fryberg JJA in Ecovale are, therefore, of assistance. Both identified the various ways in which need, in the planning sense, might arise for consideration depending on the circumstances of the particular case[24]. As to the question of the weight to be given to such matters as the advantages of a particular development, as opposed to the availability of other suitable premises or land, Pincus JA said at 41-42:
[23] Exhibit 1, p 210
[24] Pincus JA at 40, Fryberg JAat 46
“The primary Judge’s treatment of this question focused on the qualities of the particular development proposed, that being, as I understand his Honour’s reasons, relevant to the question of need. The findings were to the effect that the development proposed would have advantages, as to location, of a special kind and that the character of the liquor outlet proposed was desirable.
…
It was complained that the Judge made no reference to Mr McInnes’s discussion of the various other possible sites I have discussed. This is so, but I note that his Honour referred to Mr McInnes’s evidence and other points and it seems to me unlikely that he was unaware of its contents. His not having discussed the other sites suggest in my view, that the Judge treated the issue of need as depending, at least in substantial part, on the advantages of the particular proposed development, rather than on the question whether there were a number of other places at which permission could probably be obtained for a similar development – which was the burden of Mr McInnes’s discussion.
Because of the peculiarity of this type of zoning, to which I have referred, it is my opinion that his Honour was entitled to pay attention to the need for the particular development rather than to approach the matter in the broader way proposed by Mr McInnes.
…
Circumstances combine to make a focus on the advantages of the particular development proposed a permissible approach to the problem of need.”
Fryberg J said at 47:
“… The Act refers to need in the context of a paragraph dealing with the balance of zones. It must be construed having regard to that context. That does not mean that it adds nothing to the requirement to take the balance of zones into account. It does however suggest that in considering the need for an amendment to the planning scheme, need is to be judged on a scale rather larger than one involving only the particular allotment concerned, at least where that allotment is a relatively small one. Zoning of land obviously affects the supply of land which may lawfully be used for particular purposes. A large over-supply of land in one zone might result in land falling into disuse and becoming neglected. A large under-supply might stifle development or artificially inflate land prices. Neither outcome is likely as a result of a decision to rezone or not to rezone one small block. In such a context, it would be unusual for this ‘supply and demand’ aspect of need to be a significant factor.
It must be remembered that the function of the Planning and Environment Court is to resolve appeals in individual cases. The Court is not a super planning authority for the various local authorities of Queensland. It cannot in a particular appeal carry out the sort of inquiry which must be carried out to formulate a new planning scheme. In a case involving the rezoning of small allotments, I do not think the Court derives much assistance from evidence relating to the market availability of a few other similar allotments in the neighbourhood. When such evidence is advanced by opponents of the development, its supporters may be tempted to advance evidence that the supposedly similar allotments are in fact unsuitable for the proposed development. Such an approach could turn the appeal into an inquiry in to the suitability in planning terms of all those allotments. The resulting delay and cost may easily be imagined.”
This case turned, to a degree, into the kind of inquiry against which Fryberg J warned. In any event, the land of which he spoke contained 1,872m2 [25], comparable with the 2.55 ha involved here. In his report Mr McCracken, the appellant’s retail analyst said[26]:
[25] (1997) QPELR 345
[26] Exhibit 8, p 20
“Banks of space within the Pialba commercial centre and Central Avenue Plaza take the form of several larger individual tenancies that appear well suited to retail showroom style tenancies. This is also the case for much of the vacant space situated in other locations along Boat Harbour Drive. In a city such as Hervey Bay, where the market for bulky goods/retail showroom products is active but somewhat restricted by choice of locations and sizes or premises, some space can prove difficult to lease quickly unless it matches specific tenant requirements. As a result, the existence of this vacant space will not necessarily preclude new development.” (My italics).
Mr McCracken also said that the shopping focus in Hervey Bay will in future be on discount department stores, variety stores and bulky goods/showroom retailers, rather than department or speciality stores[27]. Mr McCracken agreed, and quoted from a Jones Lang LaSalle report[28] confirming that the bulky goods retail sector has emerged as the fastest growing, in Australia over the past five years and will continue to grow at a relatively rapid pace and ahead of other sectors in the short to medium term. Here, the preliminary approval does not allow any retail showroom floor space to be built, and a development permit cannot be granted until at least 50 per cent of the space has a committed tenant.
[27] Exhibit 8, p 9
[28] Exhibit 9
The lack of any commitment from potential tenants at the present time is not evidence of the absence of economic demand: Mustercliffe Pty Ltd v BCC (1991) QPLR 111 at 125.
These matters tell against need, in the context of other available premises or land, being of significant weight. It was not, by itself, determinative, or of such weight as to prevent the Council considering, as it did, a grant of a preliminary approval.
Preliminary Approval
Under the LGPEA this application would have been categorised as one for rezoning and have required public notification. IPA s 6.1.28 perpetuates the requirement for notification, and allows third party rights of appeal. Public notification occurred before the Council granted preliminary approval but any future applications, for example, when the co-respondent applies for a development permit at the time it attempts to satisfy condition 14 are “code” assessable and do not, therefore, require those steps.
All parties agreed that a practical problem with the LGPEA was the “once only” nature of an approval under that Act. Any approval had to deal with all aspects of a development in a manner which was both final and certain, something which could be difficult in the case of large or complex applications. The concept of a preliminary approval was introduced in IPA to permit applicants to obtain what was, in effect, a “conceptual” approval, which was legally binding so far as it went. Examples are given in the Explanatory Guide, published with the Act[29].
[29] Pp 75-77
The appellant argues that preliminary approval was, here, inappropriate for three reasons[30]. First it is contended that, in the face of the Council’s own acceptance of the ready availability of showroom space and land, no approval of any kind should have been granted. In light of the finding that need was not a matter of great moment, the question becomes whether a preliminary approval is, then, suitable. Nothing in IPA s 3.1.6 or chapter 3, part 1 suggests local authorities may not grant preliminary approvals in the circumstances arising here, and one of the examples in the Explanatory Guide[31] is not dissimilar, albeit that it refers to a development on a larger scale:
[30] Exhibit 7, p 14, para 7.38 (report of Mr Ryter)
[31] At p 77
“If a large master-planned housing estate is proposed on land currently zoned rural, this section allows a preliminary approval to be given approving development to the extent stated in the approval. For example, it may identify different development precincts, broad land use intentions for each of the precincts and the major infrastructure networks for the estate. Also, under this section, the approval may establish a different regime of assessable, self-assessable and exempt development on the land. For example, in the rural zone certain animal husbandry activities may be exempt development. If the land is to be used for residential purposes those activities would probably be unacceptable. By altering the nature of assessable, self-assessable and exempt development on the land, the preliminary approval can bring the development potential of the land into line with the nature of development intended. This section overcomes the need to rezone the land as a first step in the development process. IDAS is therefore able to accommodate both large- and small-scale development projects.
An advantage of this approach is that it allows proponents to put forward specific development intentions (albeit in a conceptual form) rather than broad zoning proposals as is the case under the LG (P&E) Act. The public benefits from being able to deal with something that is more tangible and specific than a zoning proposal, but that has equivalent third party submission and appeal rights.”
Even if it is accepted that an absence of need exists, and was a proper basis for refusing a development permit, a grant of a preliminary approval would not be inappropriate in the circumstances arising here. The factors in favour of the development identified earlier including, in particular, the universal acknowledgement that this land will ultimately be used for commercial purposes all suggest that what is, in effect, a rezoning under the former Act to acknowledge that future use, accompanied by a requirement that some level of need be established before the development actually proceeds, is an appropriate course.
The second objection is that there will be no public scrutiny of matters relating to condition 14, when a development permit is applied for, and the course taken by Council has deprived the public of any further right to be involved. It is said the deferral of that question, and the deprivation of any further rights to the public to be involved in it is contrary to the philosophy and purpose of the Act. Reliance is placed upon a passage in the Explanatory Guide[32]:
[32] At p 76
“S 3.1.6 allows a preliminary approval to override a planning scheme on land the subject of the approval, and substitute different provisions on that land for the life of the approval or until the approved development is completed. This is a power in addition to the basic provisions mentioned in s 3.1.5.
The ability to use a preliminary approval in this way is limited to applications for material changes of use that require impact assessment, and accordingly public notification. This is because the mechanism will affect the way land may be used and provides for departures from the planning scheme. It is important this be subject to public scrutiny.”
The passage does not support the argument. The original application for a development permit was the subject of impact assessment involving public scrutiny, and notification. The appellant and others participated in the meeting of the Council’s Development Services Committee on 14 May 2001 and articulated their objections[33]. Owners of vacant land said to be available for use for development for retail showrooms did not object. This appeal has provided the appellant with another opportunity to ventilate its opposition. As IPA recognises, not every application under a planning scheme necessarily requires impact assessment. That is a matter which in some instances is within the Council’s discretion: IPA ss 3.1.3(1), 3.1.6(2)(a). The land zoned for commercial industry on the northern side of Boat Harbour Drive would, in the event of an application for retail showrooms, be code assessable only, although s 1.2.9.1(iii)(b) would require the applicant to address need, but without third party scrutiny.
[33] Exhibit 1, p 193
The circumstances in which preliminary approval is an appropriate course for a local authority have not been the subject of consideration by this Court. Counsel were only able to refer me to Landel Pty Ltd v Redland Shire Council (2000) QPELR 60, in which the questions arising here did not fall for discussion. The applicant had sought preliminary approval under IPA s 3.1.5(1) for a material change of use, but one which also incorporated a detailed plan of development for a supermarket. The nature of the application meant, however, that the development application for the supermarket itself would, later, require impact assessment. It was not submitted the case can be construed as supportive of the appellant’s and, in particular, Mr Ryter’s strongly held belief that deferral of the question of the analysis of need to a later time, without further rights to the public, is anathema to the intended scheme for preliminary approval under IPA. When, as here, land has been identified as being suitable in planning terms for the proposed use but the local authority has determined, and the applicant for development accepts, that the need for it is not immediate, the advantages of the course taken by this Council are apparent, and involve an appropriate use of the preliminary approval process. An appropriate change in material use is identified and acknowledged, consonant with the Planning Scheme, and the long-term development of the area is made more certain. The developer is able to seek tenants, who can be offered the security which accompanies that change. The development itself is deferred, and the developer constrained, until Council’s concern about matters touching the final instigation of the permitted use are allayed.
Third, Mr Ryter suggested that preliminary approval would create uncertainty, but without giving particulars. The matter was not advanced in argument by the appellant’s counsel, Mr Ure, save in respect of the terms of condition 14. Preliminary approval identifies the land as approved for retail showroom development, subject to demonstration of need to Council’s satisfaction and in accordance with criteria it has established under condition 14. It renders certain the Council’s attitude to the planning suitability of the land for that purpose. If uncertainty is said to arise because the time at which Council might be so satisfied is unknown, in light of the terms of the Retail Strategy and the Strategic Plan some degree of uncertainty would persist even if the application had been wholly refused because, as all the planners conceded, both indicate this land will ultimately be used for commercial purposes.
It is also relevant that, if and when a development approval is later granted, any conditions then imposed must be consistent with the various other conditions imposed by the preliminary approval: IPA s 3.5.32. The consequence is that the appellant, all interested third parties, and the public know the nature and form the development will take at the time, if ever, the co-respondent satisfies condition 14. That time is, itself, finite. The preliminary approval remains current for four years[34], and this Council has adopted a policy of being prepared to grant an extension of 12 months unconditionally[35]. A second 12-month extension will only be granted on condition the development continues to comply with current policy standards[36].
[34] IPA s 3.1.21
[35] Mr Veitch, report Exhibit 3 para 4.4.12; T 38, ll 16-24
[36] IPA s 3.5.22
Mr Ryter’s hypothesis is not supported by the provisions of IPA or the Explanatory Guide. Indeed IPA, in providing for two types of development approvals, shows Parliament clearly intended that applicants and councils would have flexibility in circumstances like those arising here to avoid inappropriate outcomes.
Condition 14
The appellant argues condition 14 is framed in such a way that it leaves, to a later decision, the question whether or not the approval can ever be put into effect, and that this offends the finality principle.
Under that principle it is impermissible to impose a condition which leaves, for later decision by the authority or some other party, an important aspect of the development which might alter it in a significant way. It is permissible, of course, to impose conditions which leave matters of detail for later determination: Scott v Wollongong City Council (1992) 75 LGRA 112 at 118-119.
The legislation shows, clearly, that a preliminary approval does not authorise development to occur and carries an obvious contemplation of a requirement for further approval, or approvals. I was referred to a number of authorities by Mr Ure for the appellant[37], but all involved cases where the permit for development was not in the nature of a preliminary approvals of the kind now provided for by IPA. All are concerned with what IPA now terms a development permit but, under LGPEA, would have involved a rezoning approval or town planning consent, or the like. Hence the finality principle has in this jurisdiction been developed through cases involving applications which, if approved, authorise some change to immediately occur. They do not immediately translate to the new kind of preliminary approval created by IPA which is not, by its nature, final.
[37] Mitchell Ogilvie (Mitchell Ogilvie Menswear) v Brisbane City Council (2000) QPELR 414, at 424,
Here, the terms of the approved development are clear, and no objection is taken to any of the conditions imposed, save condition 14. The preliminary approval relates to a material change of use for retail showrooms incorporating an approved plan. All of its terms and conditions are known, and certain, and any future alteration in them must be consistent with them[38]. The cases discussed by Robin QC, DCJ in Mitchell Ogilvie[39]involved final approvals where, for example, uncertainty remained about the location of a taxi rank, the height of a dwelling house, and the hours of operation of a food store, and neither the development permit nor the conditions made those things clear. In the present case, whatever decision is made about need at the time of an application for a development permit will not alter the development, but simply decide whether or not it can go ahead in its present form. That is not offensive to the principle.
[38] Ss 3.1.5(3), 3.5.32(1)(a)
[39] supra
It is also submitted by the appellant, if rather obliquely, that the condition is void for uncertainty because it goes to the root of the approval and is incapable of being severed but does not involve, as I understood Mr Ure’s submissions, an allegation of linguistic uncertainty. It is, then, simply a complaint that the time, if any, of a final development permit remains unknown. As I noted earlier, however, that is not very different from the uncertainty which would arise, in the face of the existing Planning Scheme, if the application had been refused outright. Similar uncertainty is likely to be an aspect of many preliminary approvals, and is not a meaningful complaint here.
Conflict with the Strategic Plan
S 4.4(5A) requires a two-stage process involving, firstly, the identification of a conflict with the Strategic Plan and then, if conflict is present, refusal of an application if there are not sufficient planning grounds[40]. The appellant’s planner, Mr Ryter, nominated a conflict with clause 2.3.1.1(f) of the Planning Scheme[41] which requires that, in respect of a rezoning application, Council take into consideration whether there is a need and a demand for land to be included in the proposed zone in the locality, and whether there is insufficient land so included in that locality to meet that demand. The course Council took, including the imposition of condition 14, clearly shows it did consider the matter of need, and available land. Otherwise, nothing in the clause suggests need, or demand are to be given some special weight, over and above the other 26 matters Council was also obliged to take into account. In any event, for reasons set out earlier, I am satisfied it is not a matter to which great weight should be given here, and the weight which was given it by Council was appropriate. Further, clause 2.3.1.1 relates, for reasons given earlier, to rezoning application and not, as here, a far more specific kind of change of material use.
[40] Grosser v Council of the City of Gold Coast (2001) QCA 423 per White J at para’s 49, 50;[41] Exhibit 7, p 7
The appellant relied in submissions on clause 1.1.3 of the Planning Scheme in which the scheme’s goal is espoused as one designed to provide for and promote the orderly social, economic and physical development of the city … through a desirable and efficient growth pattern[42], and clause 1.2.9.1(iii)(b) which focuses upon the requirement that Council have regard amongst other things to “(b) the community need for the proposed development, both existing and projected”. Because need is absent, the appellant asserts, there is clear conflict with this provision. Clause 1.2.9.1(iii)(b) focuses, however, on community need, and the appellant’s contention that there is an absence of need of that kind has not been made out.
[42] Exhibit 6, p 1
Although I am not satisfied there is a conflict it is appropriate to consider whether sufficient planning grounds nevertheless exist to justify approval. The phrase “sufficient planning grounds” refers to those planning grounds of sufficient weight to justify approval, despite the conflict, and includes any grounds which relate to the merits of the application. Although Atkinson J suggested in Weightman[43] that the process involved three steps, a later passage in her Honour’s judgment suggests only two are involved[44], a view consistent with what White J said in Grosser[45]. The word “sufficient” refers to the weight to be afforded any particular ground which is advanced as a reason for approval, despite conflict.
[43] supra, at para 36
[44] supra, at para 44
[45] supra, at para 49
Because the application is one to which IPA s 6.1.29(3)(h) applies, Council was obliged to consider the it with reference to the matters raised in LGPEA s 4.4(3). They are helpfully traversed in the planning officer’s report to Council[46]. It was not suggested by the appellant that any of these matters militated against the approval, and the planning officer’s conclusions were not disputed. They show that the proposed development accords with the requirements of the existing road network, and would not create a traffic problem. It is also consistent with existing developments in the neighbourhood, and would not result in “detrimental amenity impacts”. It will not create a need for additional, or increased facilities; it is provided with all appropriate urban services, and will not create a demand for more; it will not have a detrimental impact on the environment; and, the amenity of the surrounding land and neighbouring localities is not incompatible with it.
[46] Exhibit 1, part 6, pp 173-174
Mere compliance is not, of course, a “positive” planning ground[47], but I am satisfied grounds of that kind exist. Mr Veitch identifies a community benefit[48] in the variety, choice and convenience the development would offer, and Mr Coghlin identifies locational and size attributes making the site suitable, and useful. The site has benefits in its location adjunctive to the large Bay Central retail development. The view I had of the site and its environs showed the development, as revealed in the development plans, would complement other developments and the retail atmosphere in this section of Boat Harbour Drive. It will also provide the opportunity for specialised retail showroom tenants in the particular areas of merchandise identified by Mr Coghlin. Finally, there is a community need of the kind described in Skateway. All of these matters establish, on balance, planning grounds of sufficient weight to justify approval, even if conflict existed.
[47] Shell v Gold Coast City Council (1997) QPELR p27
[48] Exhibit 3, p 12
Conclusion
The appeal is dismissed.
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SEQ Properties Pty Ltd v Maroochy Shire Council (1999) QPELR 36 at 43; and
Warradale Holdings Pty Ltd v Caloundra City Council (1998) QPELR 503 at 513
and the cases mentioned there
Weightman v Gold Coast City Council (2002) QCA 234
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